Selected quad for the lemma: parliament_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
parliament_n	house_n	majesty_n	speaker_n	3,398	5	10.9405	5	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A38261	The proceedings in the House of Commons, touching the impeachment of Edward, late Earl of Clarendon, Lord High-Chancellour of England, Anno 1667 with the many debates and speeches in the House, the impeachment exhibited against him, his petition in answer thereto : as also the several weighty arguments concerning the nature of treason, bribery, &c. by Serj. Maynard, Sir Ed. S., Sir T.L., Mr. Vaughan, Sir Rob. Howard, Mr. Hambden [sic], and other members of that Parliament : together with the articles of high-treason exhibited against the said Earl, by the Earl of Bristol in the House of Lords on the 10th of July, 1663 : with the opinion of all the learned judges therein.	England and Wales. Parliament. House of Commons.; Clarendon, Edward Hyde, Earl of, 1609-1674.; Vaughan, John, Sir, 1603-1674.; Seymour, Edward, Sir, 1633-1708.; Littleton, Thomas, Sir, d. 1681.; Hampden, Richard, 1631-1695.; Maynard, John, Sir, 1602-1690.; Howard, Robert, Sir, 1626-1698.; England and Wales. Parliament. House of Lords.	1700 (1700)	Wing E2683; ESTC R3660	65,855	176

Opinion upon it and carrying it up to the Lords that Judgment will be utterly Damned else you may proceed by Act but consider then the Consequence For if you go by Act you bound the liberty of Speech unless in penning it you prevent it but an unknown limitation is better than bounding for an Act it self is subject to exposition but your Vote and the Lords Concurrence is not Mr. Vaugh. It is not safe for you to Circumscribe Priviledges therefore that must be done which may take away what destroys them The Laws and Rights of this Kingdom are Rights by Common-Law or Act of Parliament what is an Act of Parliament may be Repealed by Parliament what is Common-Law may be altered by Parliament and whatever is both may be altered by a New Law and how is it possible to do one or the other without liberty to speak about it And how can there be any inconvenience about freedom of Speech about any Thing which cannot be a Law without passing King Lords and Commons Then it being moved to put the Question for confirming that Report And it being Replyed that some passages in that Business viz. about keeping the Speaker in the Chair were not warrantable and so not to be joined in the Question with the rest Mr. Vaugh. That Business which is so much talked of and Condemned I shall state to you The House is to adjourn it self tho' sometimes the King advised them to Adjourn themselves as then he did but the Adjournment is always made by a Question and without it the Speaker cannot leave the Chair The Speaker acquainting the House then with the King's Message Sir Iohn Elliot stood up to Speak but the Speaker would not hear him but was going to leave the Chair whereupon some said if you go out without a Question the Parliament is Dissolved upon which he was leaving the Chair some kept him and told him if this be a House you as Speaker have no place in it but the Chair and this was all the Irregularity in that Business so much talk'd of Resolved That the Iudgment given against Sir John Elliot c. 5 Car. was an illegal Iudgment and against the Freedom and Priviledge of Parliaments The Lords sent for a present Conference after which Report was made that the Lords had Voted the Commons denying them a Conference lately was contrary to the Course of Parliamentary Proceedings and gave Reasons why it was not yet time for a free Conference Novvember 25. After Debate whereof it was Resolved to grant them that the Commons agreed to the Conference formerly desired At which the Lords declared that they had considered of the Presidents and Reasons formerly sent them by the Commons but were not satisfied to secure the Earl of Clarendon or to Sequester him from Parliament untill some special Treason be Assigned Novem. ●8 The Commons sent to the Lords to desire a free Conference upon the Matter of the last Conference To which the Lords Concurring Mr. Vaugh. Sir Rob. How Sir Tho. Litt. and others were appointed to manage it who went up immediately to that end Mr. Vaugh. Made Report of the Conference with the Lords yesterday to the purpose following The Lords told us That no President can be against the Law We Answer'd If that can be made good we shall press Presidents no more but what they most stood upon was the Petition of Right where 't is provided that none shall be Committed without special Cause whereby the Party may Answer according to the Law thence they infer that our Proceedings are against Law because a general Charge is against the Petition of Right Commons The Case of the Petition of Right rightly Stated will clear this which was This Some Persons were Committed by no other Warrant but the King 's special Command they bring their Habeas Corpus to the Kings-Bench to know the Cause This Cause was returned by the Judges that they could not Bail a Man when so Committed because they knew not the Cause nor had any way to bring him to his Tryal Then the Petition of Right provides That the Cause should be returned whereby the Crime might appear and that before and after the Petition of Right to this Day if upon bringing a Habeas Corpus it be returned that the Party is Imprisoned for Treason the Judges ought to Remand unless there be some special Cause to make them take Bail So that the Petition of Right was against them for they say a Man ought not to be Imprisoned upon a general Charge because 't is against the Petition of Right We say it is not against the Petition of Right because the Judge may Remand the Party if there be no special Cause Then the Lords said That the Reason why the Iudges Remanded in that Case was because the Party Committed knew it was for Treason Therefore they Re-committed We owned it because it was the Rule for the Judges to proceed by but that was no Rule for Proceedings of Parliament for as a Magistrate Commits for Treason and is supposed to be acquainted with it so also is he with the probability upon the Proof But the Lords insist not now upon that but specifie Treason and if the Course of Parliaments so much varied in such Cases that was no concluding Proof why they should have special Treason And for the other part That upon the Return there should be a Cause Returned that so the Party might Answer for when a Return is made if the Cause be such as that the Party ought not to be Imprisoned the Judges free him otherwise they leave him to come to his Tryal Then to the President about the Earl of Strafford they Replyed That it was made in bad times And we Answered That as good Laws were made before in and after that time as any other and if the Lords then might make such Laws we could not see why it should be a good time to make Laws and no good time to Administer to Persons the Laws already made Farther to their Objection that in the time whence those Presidents were brought there was a Face of War We Answered That could not alter the Case for the Law calls no time a time of War whilst the Courts of Justice have freedom as they had when Strafford Finch Canterbury and Ratcliff were Impeached and it was strange that in the Parliament-House there should be such a Consternation as to make their Proceedings invalid when in other Courts there were none Besides in Holland of many Years there was a constant Scene for War and can we imagine that there was not Justice done at that time Then they pressed Presidents against ours One 14 Ed 2. against the Spencers where a great Man moved the King to Commit one of them and the King Answered it could not be unless Cause was shewed We Replyed This was a President like that a Man was Committed because he was Committed for there was no Allegation of Treason Second

should run into by Entering into a War before any Alliances made with the Neighbouring Princes and that it may not be imputed to His Majesty's want of Care or the Negligence of his Councellors that no such Alliances were entered into I must take the boldness to say His Majesty left nothing unattempted in order thereunto and knowing very well that France Resolved to begin a War upon Spain as soon as his Catholick Majesty should depart this World which being much sooner expected by them They had in the two Winters before been at great Charges in providing plentiful Magazeens of all Provisions upon the Frontiers that they might be ready for the War His Majesty used all possible means to prepare and dispose the Spaniard with that apprehension offering his Friendship to that degree as might be for the Benefit and Security of both Crowns But Spain flattering it self That France would not break with them at least that they would not give them any Cause by Administring Matter of Iealousie to them never made any real approach towards a Friendship with His Majesty but both by their Embassadors here and to His Majesty's Embassador at Madrid always persisted as Preliminaries upon the giving up of Dunkirk Tangier and Jamaica Tho' France had an Embassador here to whom a Project of a Treaty was offered and the Lord Hollis His Majesty's Embassador at Paris used all endeavours to pursue and prosecute the said Treaty yet it was quickly discerned That the principal Design of France was to draw His Majesty into such a nearer Alliance as might advance their Design without which they had no mind to Enter into the Treaty proposed And this was the State of Affairs when the War was Entred into with the Dutch from which time neither Crown much considered the making any Alliance with England As I did from my Soul abhor the Entring into this War so I presumed never to give any Advice or Councel for the way of managing it but by opposing many Propositions which seemed to the late Lord Treasurer and my self to be unreasonable as the payment of the Seamen by Tickets and many other Particulars which added to the Expence My Enemies took all occasions to enveigh against me and making their Friendship with others out of the Council of more licencious Principles and who knew well enough how much I disliked and complained of the Liberty they took to themselvs of reviling all Councils and Councellours and turning all things Serious and Sacred into ridicule They took all ways imaginable to render me ungrateful to all sorts of Men whom I shall be compelled to Name in my Defence perswading those that miscarryed in any of their Designs That it was the Chancellours doing whereof I never knew any thing However they could not withdraw the King's Favour from me who was still pleased to use my Service with others nor was there ever any thing done but with the joynt Advice of at least the Major part of those who were consulted with And as His Majesty commanded my Service in the late Treaties so I never gave the least Advice in private nor wrote one Letter to any one Person in either of those Negotiations but upon the Advice of the Council and also after it was read in Council or at least by the King himself and some other and if I prepared any Instructions or Memorials it was by the King's Command and the request of the Secretaries who desired my Assistance nor was it any wish of my own that any Embassador should give me any account of the Transactions but to the Secretaries to whom I was always ready to advise nor am I conscious to my self of ever having given Advice that hath proved mischievous or inconvenient to His Majesty and I have been so far from being the sole Manager of Affairs that I have not in the whole last Year been above twice with His Majesty in any Room alone and very seldom in the two or three Years preceding And since the Parliament at Oxford it hath been very visible that my Credit hath been very little and that very few things have been hearkned to which have been proposed by me but contradicted eo nomine because proposed by me I most humbly beseech Your Lordships to remember the Office and Trust I had for seven Years in which in Discharge of my Duty I was obliged to stop and obstruct many Mens pretences and refused to set the Seal to many Pardens and other Grants which would have been profitable to those who procured them and many whereof upon my Representation to His Majesty were for ever stopt which naturally have raised many Enemies to me And my frequent concurring upon the desires of the late Lord Treasurer with whom I had the Honour to have a long and vast Friendship to his Death in Representing several Excesses and Exorbitances the yearly Issue so far exceeding the Revenues provoked many Persons concerned of great Power and Credit to d● me all the ill Offices they could And yet I may faithfully say That I never medled with any part of the Revenue or the Administration of it but when I was desired by the late Lord Treasurer to give him my Assistance and Advice having had the Honour formerly to serve the Crown as Chancellour of the Exchequer which was for the most part in His Majesty's presence Nor have I ever been in the least degree concern'd in point of Profit in letting any part of His Majesty's Revenue nor have ever Treated or Debated it but in His Majesty's presence in which my Opinion concurr'd always with the Major part of the Councellours who were present All which upon Examination will be made manifest to Your Lordships how much soever my Integrity is blasted by the Malice of those who I am confident do not believe themselves Nor have I in my Life upon all the Treaties or otherwise received the value of one Shilling from all the Kings or Princes in the World excepting the Books of the Louvre Print sent me by the Chancellour of France by that Kings direction but from my own Master to whose intire Service and the Good and Welfare of my Country no Man's Heart was every more devoted This being my present Condition I do most humbly beseech Your Lordships to entertain a favourable Opinion of me and to believe me to be Innocent from those foul Aspersions untill the contrary shall proved which I am sure can never be by any Man worthy to be believed And since the Distempers of the Times and the Difference between the two Houses in the present Debate with the Power and Malice of my Enemies Who gave out that I should prevail with His Majesty to Prorogue or Dissolve this Parliament in Displeasure and threaten to expose me to the Rage and Fury of the People may make me to be look'd upon as the Cause which obstructs the Kings Service and Vnity and Peace of the Kingdom I most humbly beseech Your Lordships

the Affections of His Majesty's Subjects from him by venting in his own Discourse and by the Speeches of his nearest Relations and Emissaries opprobrious Scandals against His Majesty's Person and course of Life such as are not fit to be mentioned unless necessity in the way of Proof shall require it That he hath traiterously endeavoured to Alienate the Affections of his Highness the Duke of York from His Majesty by suggesting unto him Iealousies as far as in him lay and publishing abroad by his Emissaries that His Majesty intended to Legitimate the D. of Monmouth That he hath Wickedly and Maliciously contrary to the Duty of a Privy-Councellour of England and contrary to the perpetual and most important Interest of this Nation perswaded His Majesty against the Advice of the Lord General to withdraw the English Garrisons out of Scotland and to demolish all the Forts built there at so vast a Charge to this Kingdom That His Majesty having been graciously pleased to communicate the Desires of the Parliament of Scotland for the remove of the laid Garrisons to the Parliament of England and to act their Advice therein the said Earl of Clarendon not only perswaded His Majesty actually to remove those Garrisons without expecting the Advice of his Parliament of England concerning it but did by Menaces of His Majasty's displeasure deter several Members of Parliament from moving the House as they intended to enter upon consideration of that Matter That he had Traiterously and Maliciously endeavoured to Alienate His Majesty's Affections and Esteem from this his Parliament by telling His Majesty that there was never so weak and inconsiderable a House of Lords nor never so weak and so heady a House of Commons or words to that effect and particularly that it was better to sell Dunkirk than to be at their Mercy for want of Money or words to that effect That he hath Wickedly and Maliciously contrary to his Duty of Counsellour and to a known Law made last Sessions by which Money was given and particularly applyed for the maintaining of Dunkirk advised and effected the Sale of the same to the French King That he hath contrary to Law enriched himself and his Treasures by the Sale of Offices That contrary to his Duty he hath wickedly and corruptly Converted to his own use great and vast Summs of publick Money raised in Ireland by way of Subsidy private and publick Benevolences and otherwise given and intended to desray the Charge of Government in that Kingdom By which means a supernumerary and disaffected Army hath been kept up there for want of Money to pay them off occasioned it seems to be because of the late and present Distempers of that Kingdom That having arrogated to himself a supream Direction of all His Majesty's Affairs be hath with a malicious and corrupt Intention prevailed to have His Majesty's Customs Farmed at a far lower Rate than others do offer and that by Persons with some of whom he goes a share in that and other parts of Money resulting from His Majesty's Revenue July 10th 1663. BRISTOL The Earl of Bristol having Exhibited against the Lord Chancellour Articles of High-Treason and other Misdemeanours This Order was made by the House of Peers Die Veneris 10 July 1663. ORDERED by the Lords Spiritual and Temporal in Parliament Assembled That a Copy of the Articles or Charge of High-Treason Exhibited this Day by the Earl of Bristol against the Lord Chancellour be delivered to the Lord Chief-Iustice who with all the rest of the Judges are to consider whether the said Charge hath been brought in regularly and legally and whether it may be proceeded in and how and whether there be any Treason in it or no and make Report thereof to this House on Monday next if they can or else as soon after as possibly they may Whereupon all the Judges met at Serjeauts-Inn in Fleet-street and my Lord of Bristol repaired to us thither desiring to see the Order which being Read he told us he came out of respect to know of us whether we were informed how it came into the House of Peers whether as a Charge or not but one of the Judges who had been present when it was delivered in saying we were tied up by our Order his Lordship took some exception at the manner of his Expression as if his Lordships Address was unnecessary at that time anb taking it as a rebuke unto him went away but according to our Order which supposed it to be a Charge of High-Treason and not mentioning Misdemeanour we did upon Consideration unanimously agree upon this ensuing Answer which on Monday the 13th of Iuly the Lord Chief-Iustice Foster did deliver in viz. We conceive that a Charge of High-Treason cannot by the Laws and Statutes of this Realm be originally Exhibited by one Peer against another unto the House of Peers and that therefore a Charge of High-Treason by the Earl of Bristol against the Lord Chancellour mentioned in the Order of Reference to us of the 10th of this Instant July hath not been regularly and legally brought in and if the Matters alledged in the said Charge were admitted to be true altho' alledged to be traiterously done yet there is no Treason in it Which Answer being given in the Earl of Bristol took some exceptions at it and some of the Lords inferred thence that if it were Irregularly and Illegally brought in it was a Libel but we satisfied them that it was not under Consideration of us whether it came in as an Information or Charge our Order required us to give Answer to it as a Charge Secondly We did not meddle with any thing concerning accusing him of Misdemeanour for our Order reached only to Treason Thirdly It did not follow that if this Charge were Irregular or Illegal that therefore he was Criminal There might be Presidents to give Colour to such kind of Proceedings for which till it be declared or known that they are Illegal they are Titular and ought not to be punished But it was much insisted on That we should deliver the Reason of our Opinions the Lord of Bristol and his Friends seeming unsatisfied We Replyed That it was never known that when the Justices to whom Questions were referred from Parliament had unanimously agreed in their Opinions that Reasons were required from them Yet notwithstanding it being the desire of the Lords after some things premised and a desire that this should not be drawn into an Example which the Lords assented unto as I took it for no Order was entred concerning it there being no Order as I think for delivering our Reasons entred and it was agreed amongst us that no Note should be reduced least we might be required to deliver our Reasons in writing nor had I time to digest it in writing having only Monday Night after Conference with my Brethren to think upon it I did on the next Tuesday being the 14th of Iuly deliver the Reasons of all the Judges of their

THE PROCEEDINGS IN THE HOUSE of COMMONS Touching the Impeachment of EDWARD Late EARL of CLARENDON Lord High-Chancellour of England Anno 1667. With the many Debates and Speeches in the House The Impeachment Exhibited against him His Petition in Answer thereto As also the several Weighty Arguments concerning the Nature of Treason Bribery c. By Serj. Maynard Sir Ed. S. Sir T. L. Mr. Vaughan Sir Rob. Howard Mr. Hambden and other Members of that Parliament TOGETHER With the Articles of High-Treason Exhibited against the said Earl by the Earl of Bristol in the House of Lords on the 10th of Iuly 1663. With the Opinion of all the Learned Judges therein The second Edition carefully Corrected Printed in the Year 1700. THE PREFACE TO THE READER I Think there needs not much be said to recommend the following Sheets to the Intelligent Reader It has been the Opinion of the Wisest Men that Letters Memoirs and Publick Speeches have ever been the Clearest and Most Exact Histories of Times and have given the truest Light into the Spirit and Bent of a People especially where Liberty that Darling of the Vniverse that sweetest Cordial of Mankind bears Sway and where shall We find it so justly Claim'd so strenuously maintain'd as in our English Constitution a Constitution so exactly sitted for the Preserving that Inestimable Jewel that the Deepest Arts and Subtilties of the most Crafty Statesmen cou'd never yet Undermine or Ravish our Envied Freedom from us on the Contrary They have ever met their own Destruction when They have been so Rash as to make the Attempt and I dare boldly say that We our selves must give it away if ever We are not Masters of it for it cannot be forc'd from us If We reflect on the Hardships other Nations Groan Vnder and then consider the Plenty and Ease We sensibly Enjoy We must justly Honour the Memories of our Glorious Ancestors who have handed down so dear a Prize to us If we look backward we shall find there have been great Attempts both Open and Secret to break in upon or lessen our just Rights and Priviledges but there have ever been Persons of Generous Spirits and Unshaken Resolutions Who have nobly Oppos'd the bold Invaders being neither to be Aw'd nor Brow-beaten by any Higher Power nor Brib'd by the most Advantageous offers of Profit or Honour to betray so Glorious a Cause We have never yet found a Wicked Councellour or an Evil Minister that cou'd Escape the Justice of a House of Commons 'T is true in some former Reigns a Parliament was no very desirable Thing and seldom call'd but whenever they met they bravely Attack'd the Enemies of the Nation tho' never so Potent and brought down such as have thought themselves Secure and Out of Reach and I trust as we have not yet we never shall see Ill Men in such a Station We live now God be thanked in a time when we need not fear Encroachments on our Just Liberties and Properties are we not Blest with a King who hath no Design to Enslave or Burthen his People Have we not Ministers that Act with Uprightness and Integrity Are we not rul'd by a Monarch who makes the Interest of the Nation his own and regards Merit only in the Choice of his Ministers do we see any Court-Minion or haughty Favorite Advanc'd or any Man of worth pass Unregarded and Despis'd In short have we not a King who only thinks himself happy because he sees his People so And as the common Adage has it Regis ad exemplum Do we not see our Grandees following their Great Masters Steps Are not Envy and Ambition now Banish'd the Palace Gates What Courtiers do we now find breaking their Promises or giving only Words instead of just Performances Do they now covet Perferments to get vast Estates Are they not contented with their moderate Perquisites What Ministers can the most observing Eye find Guilty of Acting or Advising Ill Or who amongst them are afraid to stand the Test of the severest Scrutiny Such is the Happiness we now Enjoy such are the Blessings of our Present Administration But I have wander'd beyond my purpose my Zeal to so much Goodness has carry'd me wide of my Design which was to say something by way of Preface of the following Sheets which were Publish'd not to reflect on the Memory of any but at the desire of some very Iudicious Persons who thought it pitty a Collection so fill'd with Law and solid Sense shou'd be kept secret and I believe none who read it but will highly applaud the Publishing The World must own that the Learned Persons whose Speeches are contain'd in the following Pages have been famous for the depth of their Iudgment and profoundness of their Sense and many of them have been justly Esteem'd the most eminent Lawyers of their Time I shall only add that several of our greatest Men have highly valued it in Manuscript and I doubt not but all who read it will think it fit not only for a Lawyer 's but every English Gentleman's Study A COLLECTION Of Proceedings in the HOUSE of COMMONS About Impeaching the EARL of CLARENDON Late L d CHANCELLOR With the Debates and Speeches concerning that Matter October 26th 1667. Mr. Ed. Seym. Charged him viva voce with many great Crimes whereupon a Debate arose what Proceeding ought to be had upon it some moving to Impeach him in the Name of the Commons till Articles should be prepared others urg'd that Witnesses should be first examined to see how the Charge could be made good least failing it should reflect on the Honour of the House after long Debate a Committee was appointed to search Records for Parliamentary Proceedings in the like Cases and to make Report 30th The Report being made by Sir Tho. Litt. that various Proceedings were found in several Parliaments it occasioned a long Debate several Members speaking to the effect following Sir Tho. Litt. That in Cases Criminal they find Proceedings to have been sometimes by Articles sometimes by word of Mouth but in Capital Crimes no Proceedings appear till the Earl of Strafford's Case against whom the House carried up a general Impeachment the Reason whereof seems to be this Some Votes were made in the House at which the King takes Offence as if they would proceed upon common Fame whereupon they vindicate their Proceedings as done in a Parliamentary way and appoint a Committee to withdraw for about half an Hour to consider the Matter for a Conference with the Lords about the Charge and upon their Report a general Charge is carryed up to the Lords Bar the principal Charge then was for advising to bring over the Irish Army and the single Proof was Sir Henry Vane so the Impeachment went up for High-Treason tho' no Member would positively say he would make the Charge good So for the Bishop of Canterbury there was no Impeachment but a Charge in general And if you take not the same Course now but

insist upon examining Witnesses first the Difficulties will be unanswerable for is it like that Men before they shall see you in earnest will have their Names produced against the Earl of Clarendon If this be your proceeding we must never expect to Impeach a great Man more If you think there is nothing in the Charge leave it but if you think 't is worth your while take heed of making such a dangerous President as by neglecting it to wound your Liberties but proceed in the usual way with a general Impeachment Serj. Mayn I stand not up to give Advice but to speak to matter of Fact in the business of Strafford and Canterbury I attended that business from the beginning Sir Iohn Clotworthy informed something against Strafford to be direct Treason that he had assumed an Arbitrary Power in Ireland and dispossessed one Savage by force of Arms and undertook to prove it Sir Henry Vane also told them that he had a Note taken out of his Fathers Cabinet containing the Advice which Strafford gave the King in that Case Namely the King wanting Money and the Question being how he should supply it he replyed That if the Parliament was refractory and would not you stand loosed and absolved from Rules of Government you have an Army in Ireland which you may employ to reduce them Then there was a Debate whether they should accuse him of Treason And Sir Edward Herbert the Attorney said if you are perswaded the Truth is as is pretended you may and so it was but when the close Committee had examined the business they moved the House that some Lawyers might be added to them and had they gone when they said they were ready they had not touched one Hair of Strafford's Head Then it was considered what was fit to be done To accuse him of Treason would be a dangerous President as if out of many other Crimes a Treason could be drawn thereupon it was Resolved not to demand Judgment from the Lords because some Articles were not Treason Then it was propounded not to State what his Offences were lest it should give advantage to inferior Courts so to proceed but said he deserved to be accused of Treason and in conclusion a Proviso was added not to make that Case a President For the Bishop of Canterbury the four Articles were general and he was long in Prison without any proceeding against him but after long time he demurr'd then new Articles were framed on which he dyed Mr. Iohn Vaugh. You have had a Charge opened of a strange Nature and I know not what part of it can be proved but the reputation of This House is at Stake and of the King too For where a Charge is brought in by some of your Members whereof one Article is That he should say such words of the King as by a Statue made by you is a Praemunire and to give Councel to levy War upon the Kingdom is it agreeable to our Duty to the King and Kingdom to let it die For the Person concerned I know not which way his Honour can be whole without his giving an Answer to his Charge for Mark the Consequence if the King should take him to favour again before clear'd will not the World say a Person is received to favour again who gave the King Councel against the Kingdom and traduc'd the King and how can he be whole in his Honour this way Obj. But it will be said we must have ground to put him to Answer Ans. Whether you have ground enough to prove I know not but you have ground enough to make him Answer to clear himself Suppose those two Articles had been Charged on a Member of this House what would it have become that Member to do Should he sit still and say I will make no Answer but see whether the House will make more proof If he should do so the not making an Answer is Reason enough to Charge him I can give you Instances of Persons charged in Parliament who tho' not nominated yet being as it were pointed at Petitioned that they might Answer and so would any Man but when this is bruited up and down will not the World say You never ask the party whether Guilty The Duke of Suffolk was Charged upon Common Fame and if that were a ground for a Charge then which I do not say it was so it is in this Case but he moved that he might be heard and tho' it was desired he might be Committed yet it was justly rejectly till he had Answered Then for the Nature of the Charge if it be true it is very High but whether it be Treason is another Matter it is brought to you under no Name when you make the Charge it becomes you to say what it is therefore Choose a Committee to reduce the Accusation into Heads and bring them to you without which you cannot right you selves nor him if Innocent For the way of it it cannot be thought fit to publish your Witnesses and the Matter before-hand if in private Causes the Defendant and Plaintiff should have a Publication before hand no Cause would be rightly Judged much less when you have Publication of all which concerns the One but nothing of the Other Again if a Witness be examined concerning Matters in his own Knowledg if he gives Evidence where he is not brought judicially to give it if he hath testified any Thing which brings him within the Statute of false News how can he avoid the Penalty For it s not enough for him to say he knows it but he must have others to justifie it As for the Persons who bring the Charge they are your own Members which the Writs return for honest and discreet Men and if you are satisfied of that how can you reject their Complaint tho' grounded upon Common Fame as all Accusations are seeing they tell you they can bring-Proof of what they say Then for Common Fame if a Man spends largely and hath no visible way to get an Estate no Man accuseth him to have gotten it unlawfully yet he may be put to clear himself from what Common Fame chargeth him with Upon suspicion of Felony I may bring a Man before a Magistrate to clear himself so in the Course of Indictments and Presentments a Charge is given of what Things are to be Presented then a Proclamation is made That if any one can give Evidence he may be Sworn but if no Evidence appear yet they may Indict Then it will be said the Oath is a Material Thing but we are proceeding without an Oath To this I Answer What this House shall Charge is of more Authority than the Oaths of ordinary Witnesses Peers tho' not upon Oath are supposed to do right so are we upon the Reputation of our Honesty and Discretion Mr. L. H. I am sensible the House may think me Partial but I shall endeavour to shew my self not so much a Son of the Earl of Clarendon as

a Member of this House and I assure you that if he shall be found Guilty no Man shall appear more against him than I if not I hope every one will be for him as much as I let every Man upon his Conscience think what of this Charge is true for I believe that if one Article be proved he will own himself Guilty of all Sir Hen. Fin. An Impeachment there must be if there be Cause such Accusations are not to be passed over in silence I believe not one truth in the Law more than this Proposition That there is no such thing as Treason by Common-Law or by Equity and we hold our Lives by that Law before the 25th of Ed. the 3d. a Man could scarce speak any think but it was Treason in Parliament or out but no Man ought to die as a Traitor who hath not literally offended that Law or some other made since There is indeed in that Law a Proviso about the Parliaments declaring what is Treason but note the danger of taking declaratory Powers which I fear hath brought us into a Reckoning of Blood which we have not yet paid for The Power of Parliaments is double Legislative which hath no bounds Declaratory by pronouncing Judgments And tho' I know not what the Legislative Power of a Parliament cannot do yet it is not in the power of the Parliament King Lords nor Commons to declare any thing to be Treason which is not in the Common-Law Felony before The Proviso in Strafford's Case was it's true made for Inferior Courts but I hope we shall not so proceed as must needs draw after it a Netrahatur in Exemplum and your own Act this Parliament shews That all done by Strafford a-part or together was not Treason And it behoves us to take heed we thwart not our own Argument For the manner then Consider how you should proceed if it were out of Parliament and how the bringing of it into the House alters it If it were out of Parliament without doubt the Accusation should be proved before hand and those who discover it are guilty of Felony This provides for the Subject that the Witnesses must be Two and for the King that none shall discover the Evidence But suppose the Charge be for Misdemeanours the Tryal then is not to be by the Lords but by the Commons for the Lords are his Peers only in Cases Capital How then doth the bringing it in to Parliament alter the Case If the Parliament set aside Laws in this Case we should be happy to see Law declaring what is the power of Parliaments There is no President produced which is singly of Weight to guide you therefore if you proceed let it be as near as possible by the good Old Laws Namely That there be an Accusation founded upon an Oath and the Evidence kept secret I propose that way for the very reason that others oppose it viz The Accusation goes over the Kingdom and it will bring dishonour to the House the King and the Earl For the Honour of the House it will be hard to say the Charge was brought in upon misinformation a Person accused for advising to bring in Arbitrary Government c. And for saying the King is not fit to Govern If this be true tho' it be not Treason in the formality of the Law it deserves no less Punishment then if it were but if not found Guilty Consider the Case If one say A killed a Man and it is not so must not he give reparation We have an accusation upon hear-say but if it be not made good the blackest Scandal which Hell can invent lies at our door Then Sir Tho. M rs moving to referr it to the Committee of Grievances Mr. Vaugh. You should have put the first Question before another had been moved the Earl of Middlesex Cranfield's Case will not hold paralel He was accused of Bribery which might be proved by their own Books but this is for Scandalizing the King c. And where shall the Committee of Grievances enquire about it you say let them hear the Persons But suppose they be of the Lords House Can you send for them Or if you do will they come and say it The matter of this Accusation is such that if it lies in the knowledge of a single Person if he delivers it extrajudicially which he doth if not upon Oath he may be undone by it and hazard his Person too At the Committee of Grievances the Persons must be known and what they can say and then we may conclude what will follow Besides their Quality may be such as they cannot be brought or their Discretion such as they will not answer Sir Rich. Temp. Tell but the Lords that a Man in publick place hath misbehaved himself and they will sentence him if he purge not himself Never yet were Witnesses examined before the Tryal in case of Treason or Felony for then if there be two Witnesses a way may be found by Poyson or some other way to take away one Serj. Mayn No Man can do what is Just but he must have what is true before him where Life is concern'd you ought to have a moral Certainty of the Thing and every one be able to say upon this proof in my Conscience This Man is guilty Common Fame is no ground to accuse a Man where matter of Fact is not clear to say an Evil is done therefore this Man hath done it is strange in Morality more in Logick Upon the whole Debate it was Voted That the Committee do reduce the Accusation to Heads and present them to this House November 6th 1667. Sir Tho. Litt. Reports that the Accusation was reduced to Heads which he read in his Place and afterwards delivered the same in at the Clerks Table which are as followeth ' viz. I. THAT the Earl of Clarendon hath designed a Standing Army to be raised and to govern the Kingdom thereby and advised the King to Dissolve this present Parliament to lay aside all Thoughts of Parliaments for the future to govern by a Military Power and to maintain the same by Free Quarter and Contribution II. That he hath in the hearing of the King's Subjects falsely and seditiously said That the King was in his heart a Papist or Popishly Affected or words to that effect III. That he hath received great Sums of Money for the procuring of the Canary Patent and other illegal Patents and granted illegal Injunctions to stop proceedings at Law against them and other illegal Patents formerly Granted IV. That he hath Advised and Procured diverse of His Majesty's Subjects to be Imprisoned against Law in remote Islands Garrisons and other Places thereby to prevent them from the Benefit of the Law and to produce Presidents for the Imprisoning any other of His Majesty's Subjects in like manner V. That he procured His Majesty's Customes to be Farmed at under Rates knowing the same and great pretended Debts to be paid by His Majesty

not say For Scarce any Man can tell what was Treason before 25 Ed. 3. was made to bring things to a Certainty and what was uncertain to them who made that Law can be certain to us now As the Judges can declare no other Treason so in your Declaratory Power neither can you declare Treason unless there be Resemblance to some other like Case The Advice said in the Article to be given the King cannot be within that Statute unless the Councellour must run the hazard of his Advice Mr. Vaugh. The greatest Declarations of Treasons which ever were equal not those 22 Rich. 2. in Nottingham Castle The Judges are called to deliver their Opinions upon their Faith and they declare the Acts to be Treason because Felony before and tho'some of them were hang'd for it yet the Parliament declared the same Thing Serj. Mayn Was what is mentioned Treason by the Common-Law tho' so said by the Lords And what was so declared was repealed H. 4. Sir Tho. Litt. Pray resolve whether it was Treason by Common-Law and if so when made so Some think not because they find not the Parliament declaring them Treasons as being so at Common-Law and that that Statute was made to bound them but that was only to bound Inferior Courts not themselves for the Parliament makes not a new Crime and then Condemns it but the Crime was before and the Parliament declares it Sir Ed. Thur. Hath the Parliament declaratory Power now Yes but it must be by King and Parliament so it was in the Case of the Genoua Ambassador The Judges would not conclude the Articles Treason nor would the Lords alone and if you come to an equal declarative Power with them you must examine Witnesses or go by a Bill Serj. Charl. The Question is Whether it be Treason by the Practice of England the Common-Law is the Custome of England and the usuage is grounded on Presidents I know not one President where Words or Intentions were Treason at Common-Law for they are not Treason where no Act follows Sir Rich. Temp. The Article is Treason by Common-Law and Judges have recourse to Glanvil c. Who say that giving Advice to overthrow the Realm is Treason by Common-Law Serj. Mayn The Question is whether he shall be Impeached of Treason upon this Article If you go to Treason at Common-Law before 25 Ed. 3. you fly out of sight for the word Seductio was soon after called Seditio Seducing but not said to what nor were those Authors ever reputed of Authority It 's true they are sometimes quoted for Ornament but not Argument and not one Case in one hundred of Glanvil is Law but when a Case comes that is the Sheet-Anchor of Life and Estate you should be wary for by Wit and Oratory That may be made Treason which is not and this which is a great Crime ought not because great to be made Treason Object But it will be said levying War against the Law is against the King and here was an intent to alter the Law Answ. True yet a design no levy War is not Treason within the Statute here is nothing of Act but Words to that end If a Councellor gives bad Advice it makes it not Treason but by a Bill it may be made what you please By that Statute of 25 Ed. 3. are more Treasons than are metnioned for it faith if any Case happen the Judges shall stay till the King and Parliament hath declared so that there is a Power but the Modus is the Question whether by Impeachment or Bill you may the latter not the former It was done but you have Repealed it and have said None of which pretended Crimes are Treason and what was pretended against him * Of Strafford That he had Traitorously Endeavoured which is worse than design'd to alter the Government c. Now where is the Difference Here is advice to Raise an Army there to use an Army Raised and these you have called pretended Crimes and no Treason which is not Comprechended by a Law but to Impeach as a Treason and yet the thing No Treason is strange In this House other then by Bill you have no Power you carry your Impeachment to the Lords and they may give Judgment without coming back to you declaring by Bill is by way of Judgment but as an Impeachment is only an Accusation So that whatsoever the Consequence is the Lords judge it and it never comes back to you and if you go by Bill you make it Treason ex post sacto Mr. Vang Concerning what you have declared about Straffords that this Case is if not less equal to it and you have declared that not one Charge aganst him is Treason is true thus far when that Act was made I repaired to it because there were some Things which should not have passed so if there had not been something to secure such Charges as these for there is no expression of any Particular Charge but that the Charge against the Earl of Strafford was not in the particular Treason and in the Ciose of the Bill it is said that the whole Proceeding shall be taken away and if so no Man should speak against the Particulars but look on it as Repealed Then this is said to be levying War and its true it must be Actual and so not within the Charge And the Charge against Spencer was for Councelling the King c and is called levying War against the Kingdom and the Judgment against him was but Banishment because the Sentence was mitigated at the instance of the King And for Councel tho' Councel is given but in Words yet Words are more than Councel and are an Action otherwise a Councellour is Sworn to nothing But it may be thought I have not dealt ingenuously with the House than which I abhor nothing more when the Case of Strafford was before the Lords I was of opinion the Parliament had no Declarative Power left because 1 Hen. 4. there was an abolishing of all declared Treason and that no Treason for the future should be so and then the Treason about the Genoua Ambassadour was gone and all declared Treasons were gone 1 Hen. 4. and no Statute hath recovered them and if all Actual Treasons were taken away 1 Hen. 4. or if not then 1 Ed. 6. then what doth the first of Q. M. do unless it take away all declaratory Treason Upon the whole the Question was whether to accuse of Treason upon the first Article Yeas 103. Noes 172. 275. November 11. The Second Article was read Mr. Pr n. Let the Act made by you about defending the King be Read because it limits Prosecution to a Time to see if this be within Time Mr. Vaugh. In Things wherein there is a publick Defaming the King it becomes no Man here to defend the Person accused if the Charge be not proved let the Party himself plead it you had that which induced you to Impeach him and have

declared not to Impeach of Treason upon the first Article And if any Man will add to the rest of the Articles he may but you ought to accuse Mr. Sollicitor None accuseth but for Justice sake and should be glad if the Party accused prove himself Innocent There is a Duty to the King and to Truth and it is not fit that an Article of this Kind brought into the House should be laid by upou pre tence that the time is clapsed for the Crime is more than what is mentioned in the Act made by you it is an Offence at Common-Law and if it be prosecuted by Fine and Imprisonment no time is limited The Third and Fourth Articles read and Voted Mr. Vaugh. Your reading every Article is needless unless it be to see whether any one may be Charged as Treason for if one may be objected against so may all as to Misdemeanours Fifth Article read Sir Iohn Sh w. The old Farmers had not the Customes till others said they would give no more and they had no reason to thank the Chancellour because they gave more than others And I declare upon my Life I know no reward given him Sir Tho. Litt. It appears by the Farmers Confession that they had it 50000 l. under besides time of Payment which was 30000 l. more Mr. Seym. Your are at liberty to receive Objections to the Articles but tho' others bad more they were told they should not have it and had about 1000 l. each given them to bid no more Sixth seventh Eight and Ninth Articles Read and Voted The Tenth Mr. Vaugh. This is an Article of an high Nature Dunkirk was then as much a Part of His Majesty's Dominions as Ireland and if the Sale of it be nothing I know not what you would think of it if England should be Sold you lately debated whether on the first Article he should be accused of Treason and found by the Statute of 25 Ed. 3. he could not tho' it was absolute Treason at Common-Law and it s reported abroad that I said that the Right of the Parliament in declaring Treason is taken away which I did not for there are Treasons not mentioned in that Statute Therefore it provided that the Judges should not upon any one Treaso proceed to Judge untill declared before the King and Parliament and what is signisfied by it If we think before the King Lords and Commons that is impossible for how can the Commons possibly declare before the King and Lords nor was that the Case but this that there is the ultimate Power of determining what the Law is in a doubtful Case In Writs of Error let them pass from Court to Court at last they come to the Lords 24 Ed. 3. If the Judges cannot resolve what the Law is it is to be brought thither that is where it is questionable but that is not in the House of Commons any more than in a Writ of Error How than is the Case here If a Question be whether a Thing is Treason or not it shall be Resolved where the Law useth to Resolve that is before the King in Parliament that is in the Lords House Had the Words of the Act been these there shall be no Proceeding untill Resolved by the King in the Lords House and Suppose that Clause taken away That Treason shall not be Resolved but suppose it shall not be declared otherwise doth it follow it is taken away No if you charge Treason which is not within the Statute it is another Thing but I said not there is no Treason at Common-Law Mr. Sollicitor There was a great Mischief in the declaring Treason by Parliaments for Mortimer was made a Traitor for incroaching upon Royal Power which every Man who incroacheth upon any Power doth Hence the Commons Petition'd the King to explain what incroaching upon Royal Power was and when no Answer could be gotten to it 25. Ed. 3. They Petion'd it might be declared certainly and so Treasons were enumerated and if the Judges be in doubt it is Provided that the King and Parliament shall first declare it Declaration in Parliament is a Declaration before the King Lords and Commons Would our Ancestors leave what is to be Resolved Treason to the Lords and themselves have no share in it And Talbots being declared Treason by the Lords is said to be no Treason by Judge Cook because the Commons had no hand in it there is no Treason in Common-Law because there can be no Treason where there is no way to Judge it which is not at Common-Law Mr. Vaugh. When the Law is made uncertain the Lords must declare it it appears there were Treasons at Common-Law not mention'd 25 Ed. 3. It is one Thing for a Matter to be Treason before and the Parliament to declare it another for the Parliament to make a Thing Treason which was not Sir Will. Lewis I desire to be Resolved whether Dunkirk was annexed to England because a Bill to that end was carryed but not Passed Mr. Waller To shew that Dunkirk was annexed to England consider we were Passing a Bill for 1200000l But when we were making a Preamble to the Bill we were to seek for Reasons for giving the Money seeing we had no War some said to keep Dunkirk but were told we should take heed of looking upon it as annexed unto the Crown but it was replyed Dunkirk was look'd upon as a Frontier Town and accordingly noted in the Bill Therefore the Sale of it Treason Mr. Coven Had it been part of the Crown of England what needed a Bill to make it so Mr. Pr n. It cannot be Treason because Sold by the King's consent Mr. Vaugh. If the King agreed to it doth it follow that he who adviseth the King to a Thing destructive to his Kingdom and King is not a Traitor If any part of the King's Dominions may be alienated especially when a Parliament is Sitting for they concurring it may be alienated by the same Reason the King may alienate Ireland or England too without the Parliament For by what Act of Parliament doth the King hold Ireland or England It is by Acquisition I say not Tangier for that was part of his Portion and is his own But Dunkirk would have been the Kingdoms if not thus disposed of and tho' it might have been alienated with the Parliament it could no more without than England or Ireland Mr. Ed. Hart. The Act of Parliament for annexing was not This Parliaments but of the Convention and came in thus the King was pleased to tell me that the Spanish Ambassadour might press him to part with it which he had no mind to do therefore he would have a Bill to annex it to the Crown which shews it was the King's Will to have it annexed accordingly this Parliament passed it and Dunkirk might have been as useful as Calice At length this Article was passed by without determining whether Treason or not Eleventh Twelfth Thirteenth and Fourteenth

Articles read and Voted Fifteenth Article read Lord Vaugh. I brought in this Article His Betraying the King's Councels was to the French King during the War and that in the secrecy of State which was the occasion of the late Mischiefs Sir Tho. Osb. That is direct adhering to the King's Enemies and so it is Treason Mr. Sollicit This must be Treason if you have any inducement to believe it Sir Rob. How I have heard it from an Eye-Witness who told it me and added that we are neither to be trusted nor dealt with who were so betrayed Serj. Mayn Betraying the King's Councel to his Enemies is doubtless Treason Corresponding is another Thing Betraying must be without the King's Knowledge otherwise it is but delivering the King's Words to his Enemies Sir Iohn Bramp Did this Information come from a Subject or from one of the King's Enemies Sir Rob. How I would not have brought you Information from one of the King's Enemies nor did I ever converse with them during the War Coll. Birch We cannot accuse of Treason except it be said Betraying the King's Councel or Corresponding with his Enemies Mr. Vaugh. You have declared that you have had inducement to Impeach and ought to put the Question whether on this Article he shall be Impeached of Treason Mr. Sollicit To betray the King's Councel taken generally is not Treason for it may be to the King's Friends but to his Enemies it is If the Article be so Lord Vaugh. Let it be put betraying His Majesty's secret Councels to his Enemies during the War Then the Question was put whether these New Words delivered by the said Lord Vaugh. should be added Carryed in the Affirmative Sir Iohn Holl. Was this Information given by an Enemy or by a Subject Mr. Vaugh. It must come from a Forreigner or you could not know it may not the King have from a Forreigner a discovery of Treason against him The end of questioning it must be to know the Man for it might as well be asked whether his Beard be red or black Sir Tho. M rs The words are discovered not betrayed and discovering may be with the King's consent Lord Vaugh. Add the word Betraying for so I meant it Serj. Mayn They who give the Information say not they had it from more than one Witness which Stat. Ed. 6. requires and only one of them Names the Earl of Clarendon Mr. Seym. This exception is proper to be made before the Judges Then the Question was put Whether to Impeach of Treason on this Article Yeas 161. Noes 89. 250. Sir Tho. Litt. That an Impeachment of Treason and other Crimes and Misdemeanours be carryed up to the Lords against him by Mr. Scym Serj. Mayn For Misdemeanour he may have Councel not for Treason Therefore so distinguish the Charge that he may have Councel Resolved That a Charge be carryed up Resolved That the Speaker and the whole House carry it Novvember 12. It being considered that if the Speaker go up with the Charge some dispute might arise about carrying the Mace and otherwise It was Resolved That Mr. Seym. carry it Accordingly he went where at the Bar of the Lords House the Lord-keeper Bridgman being come to the Bar to meet him he delivered himself to this purpose My Lords THE Commons Assembled in Parliment having been informed of several Traiterous Practices and other high Crimes and Misdemeanours commited by Edward Earl of Clarendon a Member of this Honourable House have Commanded me to Impeach him and I do accordingly Impeach him of High-Treason and other Crimes and Misdemeanours in the Name of the said Commons and of all the Commons of England And they have farther Commanded me to desire your Lordships to Sequester him from Parliament and to Commit him to safe Custody and in convenient time they will exhibit Articles against him November 15. The Lords sent down to desire a Conference in the Painted Chamber At which the Earl of Oxford delivered a Paper in writing without any Debate the Contents whereof were to this effect The Lords have not Committed the Earl of Clarendon becase the Accusation is only of Treason in general without charging any thing in particular Mr. Garra I had rather the House should loose the Punishment of this Man tho' a great Offender then that this House should loose its priviledge for if this House may at no time Impeach a Lord without giving in particular Articles it may fall out to be at a time as in the Duke of B s Case where a great Man by his Interest with the King procured the Dissolution of the Parliament and then the Accusation falls Mr. Vaugh. Either you can justifie your Proceedings so as to satisfie the Lords what you have done or you cannot you must name a Committee as well to consider what you are to do if your Reasons satisfie not as to draw those Reasons Mr. Sollicitor Without doubt this House was not mistaken in demanding that the Party accused for Treason should be committed That is that Treason is worthy of Commitment and you can but find Presidents that Persons have been accused of Treason and thereupon have been committed But the Case is this Treason is an Offence for which Bail cannot be taken the Lords tell you not they will or will not Commit But it is true Persons have been Committed for Treason and Persons accused of Treason Judges may Commit or not Consider this Law Let the Crime be what it will an Imprisoning till the Charge it given is but an Imprisoning to security not to Punishment otherwise the Law is not Just and if the Judges of the Kings-Bench have a Judgment of Discretion whether to Commit or not can we wonder that the Lords have not Imprisoned till they know the Article when they have Judgments of Discretion tho' they knew it You may find Presidents but it is not an Argument it must always be so But as the Judges have a Latitude much more then the Lords the Impeachment from the Commons of England is properly the King's Suit for there is no Treason but against him and if the Judges may Bail in that Case may not the Lords But you are not told he shall be Balied but they desire to know what his Crime is and then you shall know their Answer the Resolution seems reasonable having gone no farther I cannot except against it Sir Tho. Litt. The Long-Parliament had some good Presidents which we are not to cast away least we smart for it Resolved To Resume the Debate to Morrow Nov. 16. Mr. Vaugh. The Lords do not say Commitments should follow because Treason is Bailable by the Kings-Bench its true the Kings-Bench Bails for Treason but how If Persons be brought thither for Treason directly there is no Bail but when a Commitment is by the Councel Table for suspition of Treason then if the Matter fall not be to what was expected they give notice to take Bail else the great Article of the Great Charter

Article accordingly Mr. Vaugh. What is Moved is to put you upon an impossible Business for an Article presented from the Parliament needs not that Certainty as if it were to be tryed at the Kings-Bench Sir Tho. Litt. It is not for the Honour of this House to recede so easily from such a Priviledge for besides the Earl of Straffords Case we have express Presidents for but none against us We have heard that we must have no more Impeachments because they are dangerous and tend to Rebellion Consider the Arch-Bishop of Canterbury's Case Finch Ratcliff and others in the Long Parliament and we should not so easily part with them William Delapool being commonly reported to be no true Man which is a less Charge than Treason desired he might acquit himself and the Lords required no special Matter before they imprison'd him and afterward he was accused more Specially Sir Rob. Atk. In the Case of Anselm Arch-Bishop of Cant. the Commons Accused him but the Lords did not Commit him and gave no other Reason for it but that he was a great Man and yet afterwards he was Condemned as a Traitor tho' the King reduced his Punishment only to be Banishment Tho' a Priviledge is much spoken of yet I shall never be fond of any Priviledge which shall Intrench upon my Liberty as a Subject Mr. Vaugh. I hear it Objected That as you Charge a Lord generally so may the Lords a Commoner but that cannot be for the Lords cannot cause a Commoner to be Committed tho' for Treason without your consent Therefore put a Question whether a Committee shall be named to draw up Reasons to justifie what you have done Resolved That the Question shall be put Resolved That a Committee shall draw Reasons November 18. The Committee brought in their Reasons First What can or ought to be done by either House of Parliament is best known by the Customes and Proceeding of Parliament in former times And it doth appear by Example that by the Course of Parliaments the Lords have Committed such Persons as have been generally Charged by the House Commons for High Treason to safe Custody tho' the particular Treason hath not been specified at the time of such Charge Second That a Commitment for High Treason in general is a Legal Commitment and if the Party so Committed bring his Habeas Corpus and the Cause of his Commitment thereupon be returned for High Treason generally he may lawfully be remanded to prison by the Judges upon that Return Third If before securing the Person the special matter of the Treason should be Alledged it would be a ready course that all Complices in the Treason might make their Escape or quicken the execution of the Treason intended to secure themselves the better there Fourth If the House of Peers should require the particular Treason to be Assigned before the Party Charged be secured they leave the Common uncertain and doubtful and that from time to time how particular they must make their Charge to their Lordships satisfaction before the Offenders be put under any restraint Fifth The Commons conceive that if they should desire the Lords to secure a Stranger or Native Commoner upon suspition of Treason which the Commons had of him and which was by them under Examination to be Evidenced to their Lordship in due time their Lordships in Justice for the safety of the king and People would secure such Person or Persons upon the desire of the Commons and in such Case there would be no difference between a Lord and a Commoner so desired to be secured Sixth The Proceedings of inferior Courts between the King and the Subject or Subject and Subject and the discretion of Judges in such Courts is bounded and limited by the discretion of the Parliament which trust them and 't is not left to the discretion of the Judges in ordinary Jurisdiction to give the King or take from him inconvenient Power for the Subject nor to dispence the Law partially between Subject and Subject for Malice or Affection but the discretion of the Parliament which is the whole Publick comprehending the King Lords and Commons for the Kings presence is supposed to be in the Lords House is and ought to be unconsin'd for the safety and preservation of the whole which is it self It cannot be malicious to a part of it self nor affect more Power than already it hath which is absolute over it self and part and may therefore do for preservation of it self whatsoever is not repugnant to natural Justice Mr. Prynn I like not the first Reason because it cannot be called a Custom where only one Parliament hath done it Mr. Swinf The great strength lies upon this first Reason and is like to be a President for exact Presidents I find none except that of Michael Delapool and in the Long Parliament But consider the reason why there was no express President before and what was the Custom of Parliaments before The Parliament was wont to proceed formerly by Bill and thus that proceeding makes against the Lords now and for committing the Party accused for then the proceedings upon Treason were by Common-Law and because the Judges could not proceed therefore the Paliment went by Bill and it cannot be supposed that the Parties were at liberty all that while Second Third Fourth and Fifth Reasons Voted Sixth Read Mr. Solicit I am against this Reason not as a Reason but unnecessary for if the former Reasons satisfie not this will not because it supposeth things not in question Our Debate must at last end in this Question betwixt Priviledge of Parliament and former proceedings and there being no priviledge in Case of Treason why should not former proceedings Sway Except we call that Treason which is not for otherwise no Priviledge will help Therefore add this to your Reason That there is no priviledge for Treason and the Lords ought not to think that the Commons will call that Treason which is not or if they do the Lords may by a speedy Trial determine it Resolved That a Conference be desired with the Lords and the Reasons carryed up November 21. The Lords sent down to desire a Conference about the Subject matter of the last Conference But the Commons doubting that if they should consent to it the Lords might afterwards refuse a Free Conference because the business in dispute concerns Judicature which belongs to the Lords and so the Impeachment generally falls Resolved To send an Answer by Messengers of their own and accordingly did with Order to acquaint the Lords how far they had proceeded and they expected they should rather haue desired a free Conference November 23. The Debate about the freedom of Speech in Parliament was resumed And the Report Read of Proceedings abut Sir Iohn Elliot Mr. Holles c. 5 Car. 1. Mr. Solic If you are satisfied that the Judgment passed upon them was Illegal two ways you have to be safe by taking notice of that Judgment giving your

Case then than if the Treason were general But the Lords still pressing that the Impeachment it self of the Earl of Strafford was Repeal'd in the Act about him Commons We Reply'd one part of the Act ought to be severed from the other and that which is without exception shall stand tho' the other be taken away For suppose a Man Prosecutes in a Court of Justice for what he apprehends to be his right and yet the Cause goes against him and he hath no effect of his Suit afterward the Party being an evil minded Man and thinking to reach his Ends Forgeth a Deed or Suborns Witnesses and then begins a Suit in some other Court and by those ways attains his Ends. Then a Bill comes before this Parliament to Reverse the Judgment reciting that such a Person hath been a Suborner of Witnesses c. so and so and therefore the Judgment is made void certainly tho' this Person is named to be an evil minded Person yet this lays no blemish on his first Proceedings So that it appears by the Act that the Proceedings against the Earl of Strafford were legal at first if those afterwards when the times became tumultuous were not it is not to be applyed to what was well done and legal Then we told them that we had pressed them with four Presidents and to three of them nothing was Replyed Lords They Answered the Reason why my Lord Finch was Committed was because of his Flight Commons He was fled before the Impeachment but it was Ordered That he should be Committed when found Then we told them That we must Report to them that be the Treason what it would we could not go to the Lords to have it punished without that disadvantage which the Publishing the Treason before-hand would expose us to by making of Witnesses escaping of Parties and the like then bad them consider whether if we should lay before them a Treason in every Thing circumstanced as Gun-Powder Treason they would not Imprison the Party till the whole Matter was opened Lords They Answered to hear that Case put for in Matter of State other Courses are to be taken and they could see no inconveniency in Publishing that to the Lords which must be Published before 400 in the House of Commons Commons The Commons may proceed with what secresie or openness they please and the Lords are not to take Notice of their Proceedings whether open or secret Farther That by a Matter of State must be understood when a Parliament is not Sitting and we know not whether to resort but when a Parliament is particularly called to prevent the Mischiefs threatning the Kingdom If that be not capable of Remedying no other Council could or we are not bound to resort to that we are excluded ftom that to which we ought to resort Lords That the Lords had us take heed of the Liberty of the Subjects to which they are now fain to have Regard bidding us consider the Bishop of Canterbury's long Imprisonment without knowing the Cause and they must satisfie their Consciences lest they should Commit for Treason and it not prov'd so Commons It appears not that the Bishop of Canterbury should have lain less time had the Impeachment been Special and for the Liberty of the Subject we know not how a Subject should have more Liberty by Special Matter than General Special being but adding a formal Title and the subject goes to Prison as well for the one as the other For their Consciences Suppose a Person accused generally they are then to know whether it be Treason and is not it as much that they Commit an Innocent Person so as if the matter was Special December 2. The Lords sent down a Message to the Commons by two Judges to this effect That upon the Report made to them of the last free Conference they are not satisfyed to Commit or Sequester from Parliament the Earl of Clarendon without the particular Treason be mentioned or assign'd who being withdrrwn Lord Torring General M cks Son Moved not to part with any Priviledges of the Commons of England but adhere to the General Impeachment Sir Rob. How The Matter before us is of as great concernment as ever came before us if there should be Malice supposed in a Nation against it self it might be exercised by giving a particular Charge as well as a General many of the Lords are convinced by the Reasons we gave and Concur thinking our Presidents good and have entred their Protestation in the Lords House asserting the Rights of the Commons of England to Impeach generally So that excepting the Spiritual Lords I think I may say the Major part of the Lords are for us and should we give up this we may be wrested out of all Right and the Commons have no way to proceed to an Impeachment but some Men to be so great as not to be fairly reach'd Therefore adhere Mr. Wall The Lords are a noble Estate but whatever the Matter is they have of late some Advice given them which makes them proceed as they never did yet for scarce any Thing happens betwixt us but they incroach upon us The Militia is now as burthensome to the Fifty Pound Man in the Country almost as all other Taxes and the Lords have gotten this Advantage on us that they touch not the Burthen of it with their Finger So in time of the Plague the Commons must be shut up but not they insomuch that a good Act provided to that purpose passed not we Impeach'd the Lord Mordant and could not bring him to the Bar tho' formerly I have known an Earl and a Lord brought thither you desired a free Conference about it but could not obtain one to this Day Rome was at first modest and only medled with Spirituals but afterwards concerned themselves so much with other Matters that every Thing almost was made to be in Ordine ad Spiritualia and many Kingdoms thereupon break from them The Lords now insist upon one Thing because they say 't is in order to their Judicature perhaps hereafter they will tell us we must come to them on our Knees because it is in order to their Judgment Consider therefore whether there be any hope of giving them satisfaction then whether you will adhere and what you will do afterwards for the present my Motion is to adhere Mr. Vaugh. It is truly said the Business before you seems to be as great as hath been in Parliament many of the Consequences being invisible therefore before you Resolve what to do take the whole Matter before you The difference between the Lords and us is upon a general Impeachment of Treason the Lords after a Free Conference say they will not Commit unless Special Treason be mentioned or assign'd those whom you employed to Manage the Conference were very unwilling to differ with them but it seems it hath Produced nothing and I have nothing to make me believe but that the Reason is that the

Lords were Resolved say what we would not to be satisfied for I know nothing which they Offer'd but it was fully Answer'd nor any thing left undone to satisfie them if they would have been satisfied what I have to say now is to clear something which the Lords may make much sound of When we urged Presidents and made them our principal Reason we told them the way to decide what was in Difference betwixt the Houses is the usuage of Parliaments but to our Presidents we received no full Answer Then the Lords used this Reason Namely that they cared not for Presidents because it was against the Express Law of the Land I Answer'd them we would join with them if they could shew Law against it and expected what they would Answer but heard nothing Much discourse there was without Application of the Great Charter and of the Statute of 28 Ed. 3. but not applyed so that I thought Law in a Lords Mouth was like a Sword in a Ladies Hand the Sword might be there but when it comes to cut itwould be awkward and useless But I hear since that their meaning was this which must be cleared by mentioning some Laws that by Magna Charta it is provided That no Man shall be taken or Imprisoned or Condemned but by the Law and thence they infer That no Man may be Imprisoned but it must be by the Peers or by the Law of the Land Again 5. Ed. 3. No Woman shall be attached upon Accusation or be adjudged of Life or Limb but according to the Law 25. Ed. 3. No Man shall be taken by a Petition to the King or his Council unless by Indictment of lawful People or by process of Writ at Common-Law and say they this Case is to none of these 28 Ed. 3. No Man shall be Imprisoned without due Process according to the Old Law of the Land But this Case being neither by Presentment nor Indictment the Lords would not stand upon our Presidents but relied on this as if it were enough in Bar of all our Presidents Therefore to open this and the danger of the Consequence there are in the Land many different Laws and proceedings in these Laws and Imprisonment upon them and yet not one of them by Presentment Indictment or Tryal by Peers tho the Lords thought this was the Law and there was no other 1. It is known that the Crown-Law or Prerogative is distinct Law from that between Party and Party 2. There is the Law and Custom of Parliament called a Law ab omnibus quaerenda a multis ignorata a paucis Cognita 3. Then the Cannon-Law and it is much the Bishops forgot that and there is nothing in that Law more than standing in a White Sheet which proceeds not by Indictment or Presentment yet there is Imprisonment even in that Law 4. There is the Law of Admiralty and the Articles of Cleron where there is proceedings of another Nature and by Imprisonment 5. The Law of Merchants or of the Staple 6. The Law of Arms where is Imprisonment and Death and yet different proceedings from the Common-Law in the Great Charter Now no Man thinks that all those Courses of Proceedings are taken away by the Common-Law and it is gross Ignorance to think it 7. The Law of the Forrest which is most different So that to urge Magna Charta to this purpose as if all Proceedings in those Cases must be according to the Common-Law is absurd Then there are divers Writs in the Register One When a Man hath received the King's Money to serve him and went not then there is a Writ to Arrest him upon a Certificate from the Captain under whom he was to serve Then the ordinary Writ which belongs to the Law Ecclesiastic de Excommunicato Capiendo Another de Apostata Capiendo to recover a Regular Run-away from his Convent Another called ne exeat Regno to Imprison a Man who will not give Security not to go out of the Kingdom and this is not Traversable any where because it suggests that he will Machinat somewhat hurtful to the Kingdom and upon that Suggestion he is Imprisoned Another when a Man hath a Leprosie Another to burn Hereticks which concern'd the Bishops also if they had pleas'd to think of it These Proceedings are no way agreeable to those mentioned in the Common-Law Then consider how this Resolution of the Lords strikes at the Law of Parliaments 1. It is certain that all Imprisonment by Parliament is not by Presentment Indictment c. So that by this means that Power is taken away 2. Contempt against Parliamentary Authority whosoever he is to appear before them and disobeys them they may Imprison him in the Tower and yet it is not against Magna Charta Whither therefore tends this The Conclusion must be that no Impeachment by the Commons must go on unless it be by Presentment and so there is an end of all that for which the Parliament is principally called unless we are part of those 500 contemptible Ones who are only fit to give Money That may be reserved for us but nothing else tho' 23 Ed. 3. saith For redress of grievances in the Kingdom a Parliament shall be called every Year I would know which way we should redress Abuses if we are so far from remedying in Parliament that we must be shut out to the Common Courses in other Courts Obj. The Lords may say if you find the Statutes broken and short you shall have New Answ. And when these New Ones are broken then we shall have a Remedy so rise up Remedy and go to the Remedy ad infinitum for there is no more Reason to think that a Second Law shall be maintained more than the First and what way a Mischief shall be Redressed other than by Parliament I know not So that by this Resolution of the Lords and denying to Commit upon this Ground for they shew'd no other every Thing for which a Parliament is useful is denyed us After all this come to the very Case If a Treason be Committed and the Fame is that A. B. is guilty of it it is lawful to Apprehend him for it If Hue and Cry pursue a Man tho' he be not of evil Fame yet he may lawfully be Imprisoned If it proves false he hath his Remedy but that obstructs not the Law to bring him to Tryal Any Watch-Man may Arrest a Night-Walker and hath a Warrant in Law for it and this is as good Process in Law as any original Writ And after all this Consider with what Kind of Colour when there are weighty Reasons why we should not mention special Treason and that mentioning it generally answers the Petition of Right the whole Commons of England who are in no degree represented by the Lords They only represent their own Persons should be denied the Securing a Person Impeached unless a particular charge be given how prejudicial so ever to the Kingdom Another thing there is no

Right which a Man hath in this Land or any part of the World but his Right is such that if it be kept from him he hath a means to come to it otherways it is Damnum sine Injuria for where the Law gives no remedy there is but a supposition of Right By the same measure it will follow that there is no civil wrong can be done to any Man but the Law provides a Remedy if that wrong be done and if by the Law there is no Remedy it is no wrong consider then this Case There are in this Kingdom in the Civil State of it three Estates which the King hath then in making Laws There are three Estates whereof the King is Principal sometimes they are mentioned as the King 's three Estates and he none of them The Estates in general are the Commons of the Kingdom who are perfectly represented in this House the Lords another and the King another and these are such that there is no Petitory Action nor the Laws directed to any one of them but the Laws you make are to distribute Justice in other Courts For Instance If all the Commons of England who are one of the Estates should Accuse one of themselves the Party can have no wrong because the Parliament can have no Action brought against them nor can they be supposed to do any thing for Malice It is the same between the Body of the Lords and Commons and there is no Law either to Vindicate the one or the other but they stand as if there were no communicable Law betwixt them but the measure between them is that which is good for the whole for they are the makers of Laws for others but no Laws can be fancied to reach the whole of the Commons or of the Lords So that 't is easily to be seen how it hath been put upon us so that now we are in such a Case we know not to what end we shall proceed upon this or any other Impeachment for by this Judicial power you shall be excluded from any proceedings by Laws of Parliaments and so you take away the whole Right of the Kingdom Quest. But now what shall you do Ans. I see many Inconveniencies which may happen both ways but I see so many this way that if any Man gave such Councel as is Charged upon the Earl of Clarendon it is not so dangerous as the Case before you for the Inconveniencies attending that Councel would quickly shew it self by the Misery following But this is a small thing begun with which like a Canker may eat till it be uncurable and that is as absolutely justifiable as this And now I have said this I am perplexed what to say more for all can bear me witness what respect I have endeavoured to preserve to the House of Peers but I am so sensible of this that tho' I cannot forget my respect to them yet I must lament the Condition into which they have brought themselves first and us next for they cannot think to avoid it The House of Peers is but a New Stile called so as Iurors are called Peers from the Word Par for every Commoner hath his Peers as Lords have and the whole Stile formerly was Arch-Bishops Bishops Dukes c. But Pares Regni is a new Stile It is called the Vpper House and is to be look't upon with Reverence The Lords have a jurisdiction but in this Case I must be plain their granted Jurisdiction ariseth from the House of Common if you Impeach not there your Judicial Power will be very little If a Lord be to be Tried for Treason the Lords are but his Jurors and tho' they Try him upon Honour not upon Oath yet they are no more his Tryers than as out of Parliament The Judge of Treason in the Lords House is Constituted by the King as a Lord High-Steward and there is no other Judge therefore I know not the Judicature they speak so much of There is another for Writs of Error which are there determined but the Jurisdiction of that is very little for the Inconveniency of the Lords determining what could not be determined in other Courts is so found out 25 Eliz. They are to be brought first into the Exchequer Chamber There is another way when Persons carry Complaints to the Lords which is a Question for Commoners ought not to carry Complaints there except in some Cases from Chancery therefore this Matter of Jurisdiction which they talk of is not such a wonderful thing as they would make it Therefore whatever we shall do after it your Rights being so much concerned that you know not where the stay will be it is necessary that you make a Committee to draw up a Protestation to be made by this House concerning this Matter The Invasion of your Right in it and the danger to the Kingdom by it Mr. Colem The Lords say That committing upon a general Impeachment is against Law and I think it will appear so I deny not but a Mittimus without special Cause is legal and grounded upon the Petition of Right the Reason of which is to secure Men against Commitment by a special Warrant and a Judge ought not to discharge where Treason is alledged but in this Case it is different The Judges cannot discharge a Man Committed after Examination but the Lords ought not to Commit a Man except there be particular Treason If I come before a Justice of Peace and say I accuse this Man of Treason will any wise Man Commit him he makes his Warrant indeed but he that accuseth must go farther and make it more particular and the special Matter must appear before he Commits and this is the present Case The Common-Law is That no Man ought to be Committed without particular Cause because no Man can Commit in Capital Matters without taking Examination before hand otherwise no Man can justifie a Commitment Therefore I am not satisfied that the Lords had not reason to deny The Commons are in the nature of a Grand-Iury to present but the Lords are the Iudges Commitment is not the Judgment but in order to it and the Lords have a discretionary Power in the Case The Lords say not that they will not Commit but that they are not satisfied to do it without special Matter therefore we ought to send it up Sir Rob. How I have attended the Reasons given against making a Protestation and whatever is said is but levelling a House of Commons with every private Accuser a Justice of Peace it is said must have Evidence before he Commit and this House has had Inducements to Impeach and may not a House of Commons Judge what is Treason as well as Justice of Peace The Inconveniencies and Dangers laid before you if you proceed are nothing in comparison of those on the other side Had the Lords Imprisoned they had before this had the Particular Charge and the Protestation is not to stop it but to make way for

it some other way for it will resolve into a Remonstrance by which you may give the Nation an Account of your Proceedings to come to a Tryal of this Business Mr. Vaugh. By the Protestation spoken of is meant to preserve the Rights of this House upon the whole Matter and to give the Reasons of your Proceëdings Sir Tho. M rs What is said not being explained I know not what is meant by the Protestation if it be but to enter it into our Book I am not against it if it be an Appeal to the Nation pray consider what you do Mr. Vaugh. This way of Protestation differs from entring in our Books but the best way is to draw it up and to bring it to you and then any Man may take Exceptions against it for the meaning is that this House Claims its Rights Mr. Garaw First make your Protestation and then Appeal to the King Mr. Vaugh. None can surmize that you mean an Appeal to the People by what is moved for what is done must be done to some part of the Parliament the King Lords or your selves And they who speak of it if it were done with evil intent deserve to be called to the Bar when it is brought before you for your Approbation you may either retain or reject it Sir Walt. You. I desire that the House may know before hand to whom they are to Remonstrate and on what ground and therefore to Adjourn their Debate now Mr. Trev. What Appeal you make ought to be to the King but bring it in hither and give it what Name you please Sir Rob. Atk. As I would be tender of your Priviledges so of giving Offence to the Lords therefore we shall endeavour to be Unanimous in this House a Protestation is Named I am a stranger to it and would understand clearly what is is before we do it That it is a Course warranted by Presidents and Proceedings of Parliaments considering what effect it hath had in late times therefore we may do well to adjourn the Debate and Consider of it Sir Tho. Litt. This Protestation will be like that in the Lord Maynard's Case but somewhat longer and ought to go farther then to one of the Estates and be kept within the walls Mr. Swinf You sent up a Charge to the Lords in general desiring that the Earl of Clarendon should be secured and in covenient time you would send up Articles from that time it hath not been done and the Lords have passed several Votes about it since but you have not passed one First they Voted that they had not complied with your desires for want of particular Treason Then you give them Reasons they are not satisfied with them then a Free Conference they are still unsatisfied and all this while you have not come to any resolution So that till you come to a Vote no Man knows but that you are satisfied with their Answer for when the Matter of the Protestation is brought in we shall not be ready for it till we have resolved that what the Lords Insist on is an obstruction of Justice and you cannot agree with them without great Inconvenience to the Nation Therefore put a Question That the Lords not having agreed to Secure the Earl of Clarendon upon the general Impeachment have obstructed the Publick Iustice of the Kingdom in proceedings of Parliament and is of dangerous Consequence This is necessary because the Lords have heard nothing from you but endeavour to satisfie them Sir Iohn Good This Question will be a greater Accusation of the whole House of Lords than the other is of the Earl of Clarendon If you will go by way of Protestation and keep it within your own Walls I like it better than this Question Sir Rob. How The putting this Question is no Charge upon the House of Lords and therefore if that Gentleman thinks it so great an one sure he thinks the Charge against the Earl Clarendon to be a very small one Is there any Obstruction to Justice If not Why do we not Comply If there be we cannot it seems Complain without Charging the Lords Keeping it within your own Walls is but like a Man when he is alone muttering Arguments to himself and Commending himself for it If you meet with any Obstructions pray first put the Question whether you are obstructed Sir Rob. Atk. It is no light matter to Charge the Lords with Obstructing Justice therefore the thing being new pray adjourn it till to morrow that we may be more of one Mind Then the Question was stated Namely That the Lords not having complied with the desire of the Commons in Committing the Earl of Clarendon and Sequestring him from Parliament upon the Impeachment from this House is an Obstruction to the publick Justice of the Kingdom and is a President of evil and dangerous Consequence Resolved That the Question be Put And being put Resolved in the Affirmative Resolved That a Committee be appointed to draw up a Declaration to Vindicate the Proceedings of this House Decemder 3. A Message from the Lords by two Judges That they have received a large Petition from the Earl of Clarendon which Intimates that he is withdrawn Sir Tho. Tompk Moved to take care to get the Sea-ports stopt Sir Tho. Lit. I believe he is now past stopping but we should do it tho' it have no effect lest it look as tho' we would have him escape Sir Rob. How The Lords seem now mistaken in their Opinion at the Conference they said there was no fear of his Running away and in our House it hath been Jested that he was not like to Ride Post. Besides the Expression in the Message is withdrawn which may be an inward Chamber therefore 't is fit to desire to see the Petition and Command some Members to prepare something to Vindicate your selves in discharge of your Duty Mr. Seym. You cannot take Notice to the Lords of the Petition unless they think good to Communicate to you but make the Declaration Mr. Vaugh. I look upon what the Lords say as doubtful therefore beware lest you do something misbecoming you They only say that he is withdrawn but not what is his Petition for the saying that he is withdrawn is not the Matter of a Petition Perhaps he is gone into the Country the Message seems light and you are to take no notice of it If it be of Moment and they think us Concern'd they should let us know it and I cannot think so of the Lords that they would use that word if he were fled therefore send a Message to know whether fled or withdrawn Mr. Sol. Gen. When a Delinquent signifies to his Judges that he is withdrawn it cannot signifie any thing but that he is withdrawn from their Judgment None but a mad Man will tell them that he is fled fearing what may follow it would be well if their Care would prevent his flying but you cannot Answer it if you hear they do nothing