I THE PROCEEDINGS IN THE House of Commons, Touching the Impeachment of EDWARD Late EARL of CLARENDON, Lord High-Chancel!oiirof Eng- /W, Anno 166']. With the many Debates and Speeches in the Houfe. The Impeachment Exhibited againft him. His Petition in Anfwer thereto. As alio the feveral Weighty Arguments concerning the Nature of Treafon^ Bribery^ Suc. By Serj. Maynard^ Sir Ed. S. Sir T. L. Mr. Vmghan.^ Sir Rob. Howard., Mr. Hambden, and other Mem- bers of that Parliament. TOGETHER, With the Articles of High-Treafon Exhibi- ted againft the faid Earl, by the Earl of BriFiol in the Houfe of Lords on the loth of July., 1553. With the Opinion of all the L.earned Judges therein. The Second Edition carefully Correfted., Printed in the Year*1700. P R E F"A C E, TO THE READER. 1 Thinks there needs not much be [aid to recommend the following Sheers to the In- telligent Reader. It has been the Opinion of the IVifejt Men that Letters, Memoirs, and Pub- lick Speeches, have ever been the Clearefi and Moft ExaH Hi/tories of TimeSy and have given the truejl Light into the Spirit and Bent of a People^ efpecially, where Libcrty> that Darling of the VnU verfe, that fweetefl Cordial of Maw kfndy bears Sway 5 and where /hall We find it fo juflly Clainidy fo ftrenuoujly maintaind as in our A 2 Eligliih i,%nuic The preface. Englifh Conftitution ? a Con- flitution fo exactly fitted for the Prefervirtg that Ineftimable Jewel,-I'hat the Veepefl Arts and Suhtiltiei of the moft Crafty Statefmen ecu d never yet Under- mine, or Ravifh our Envied Freedom from us ; on tl^e Con- trary. They have ever met their own Deftru6tion, when They have been fo Rafh as to make the At- tempt; and I dare boldly fay, that We our felves mufi give it away, if ever We are not Majiers of it 5 for it cajinot be forc'd from us. If We re fie a on the Hard/hips other Nations Groan Vnder, and then confider the Plenty and Eafe We fenfibly Enjoy, We mufi ]ufily Honour the Memories of our Glori- ous Ancefiors, who have handed down fo dear a Prize to us. If we look backward, we fhall find there The PREFACE. there have been great Attempts, both Open and Secret, to break, in upon-, or leffen our ju/l Rights and Priviledges, but there have ever been Ferfons of Generous Spirits and UnQiaken Refoluti- ons, 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 moji Advantageous offers of Profit or Honour, to betray fo Glorious a Caufe: We have never yet found a Wicked Goun- cellour or an Evil Minifter that coud Efcape the Juftice of a Houfe of Commons, 'tis true in fome former Reigns a Parliament was no very deferable Thing, and feldom calTd, but whenever they met they bravely Attacked the Ene- mies of the Nation thd never fo Potent, and brought down fuch as The PREFACE. 05 have thought themfelves Secure, and out of Reach; and I truji^ as vpe have not yet, vpe never (hall, [ee 111 Men in fuch a Station. We live now ( God be thanked ) in a time when we need not fear Encroachments on our Juft Li- berties and Properties; are we not Blefl with a King who hath no Defign to Enflave or Burthen his People ? Have we not Minifters that API with Uprightnefs and Ih' tegrity ? Are we not ruVd by a Monarch who makes the Intere/i of the Nation his own, and regards Merit only in the Choice of his Minifters ? do we fee any Court- Minion or haughty Favorite Ad- vancd ? or any Man of worth pafs Unregarded and Defpis'd? In fhort, have we not a King who only thinks himfelf happy^ beeaufe he fees his People Jo ^ And as the common Adage The PREFACE. Adage has Regis ad exemplum. "ifi (K Do ff>e not fee our Grandees foUowing H their Great Majiers Steps ? Are not Envy and Ambition now Banifh'd the Palace Gates ? What Courtiers h do we now find breal^ng their Pro- iHj. mifes^ or giving oyly Words infiead of jufl Performances ? Do they W)« now covet Per ferments to get vajl icnte Eftates^ Are they not contented flilidi with their moderate Perquifites ? niilil' What Minifters can the moji obfer^ i ving Eye find Guilty of Adting, or mf Advifing,///? Orwho amongft them are afraid to ft and the Teft of the fe- pis Vereft Scrutiny ? Such is the Hap- Hirt- pinefs we now Enjoy, fuch are the H Blegings of our Prefent AdminU pli ftration. But 1 have wander d be- In yond my purpofe, my Zeal to fo itlf much Goodnefs has carry d me jits vpide of my Defign, which was to [ay 0 fomething by way of Preface of the 0 foUowing The PREFACE. , following Sheets, which were Pub- /ijb'd, not torefleSion the Memory of any, but at the defire of fome very Judicious Perfons,who thought it pitty a Coliebiion fo fiil'd i^ith Law and folid Senfe fhoud be kept fecret 5 and I believe none, who read it, hut will highly applaud the Publijhing. The World mufi own that the Learned Perfons, whofe Speeches are contain d in the fol- lowing Pages, have been famous for the depth of their Judgment^ and profoundnefs of their Senfe, and many of them have been jujlly E- fieem'd the mofi eminent Lawyers of their Time: I fhall only add that fever a I of our great eji Men have highly valued it in hianujcript, and I doubt not but all who read it, will think, i^ fi-L not'only for a Lawy- ers, but every Englijh Gentleman s Study. A (I) COLLECTION Of Proceedings in the House of Commons, About Impeaching the EARL of CLARENDON, Late L-"'CHANCELLOR. f With the Debates and Speeches concerning that Matter* OEtober 25thj 166']* R. Ed, Seym, Charged him yiv^ .wcf with many great Crimes, whereupon a Debate arofe what Proceeding ought to be had up-' on it, fome moving to Impeach him in the" Name of the Commons till Articles fhould be prepared, othets urg'd, that Witnefles ihould be firft examined to fee how the JB Charge" M (=) Charge could be made good, leaft falling, it Ihould refied on the Honour of the Houfe-^ after long Debate, a Committee was ap- pointed to fearch Records for Parliamenta- ry Proceedings in the like Cafes, and to make Report. 30t^, The Report being made by SixTho. Litt. that various Proceedings were found in feveral Parliaments, it occalioned a long Debate, feveral Members Ipeaking to the effed following, Sir Tho. Litt. That in Gales Criminal, they find Proceedings to have been, fome- times by Articles, fgmetimes by word of Mouth; but in Capital Crimes no Pro- ceedings appear till the Earl of Str^^ord'^ Cafe, againft whom the Houfe carried up a general Impeachment, the Reafon where- of feems to be this: Some Votes were made in the Houfe at which the King takes Offence,as if they would proceed upon com- men Fame^ whereupon they vindicate their Proceedings as done in a Parliamentary way, and appoint a Committee to withdraw for about half an Hour to confider 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 advif^ng to bring over the Irifo and thefingle^ Proof was Sir Henry Vfo the Impeach-^ ment went up for High-Treafipf no . Member ^ ^ Membef wotrld pofitively fay he would make the Charge good. So for the Bijljop of Canterbury there was no Impeachment, but a Charge in ge- neral. And if you take not tlie fame Courfe now, but infill; upon examining Witnefles |[rll:, the Difficulties will be unanfwerable *, f6r is it like that M'en before they (hall fee you in earneli will have their Names pro- duced againffi the Earl of Clar^endon ? If this beyourpfoceediiig,we niuft never expeft to Imp^ath a great Man more. If you think there is liotiiing in the Charge leave it, but if you think 'tis worth your while take heed of making fUch a dangerous Ere- lident as by neglefting it to wound your Liberties' *, but proceed in the ufual way with a general Impeachment. Strj. Mayn. I Hand not up to give Ad- vice, bht tb {peak to matter of Fad in the bulinefs oi Strafford zndi Canterbury'^ I at- te'nde'd that bufinefs from the beginning : Sir Jdhn'Clotwo-rthy informed fomething a- gainli StrdffordXo be dired Treafbn, that hp' had afllimed an Arbitrary Power in ffc- and difpoflelTed one Savage by force of Arms, and undertook to prove it. Sir Hinr'y Vane'-A^o told them that he had a P^bte' tak'en but of hif Fathers Cabinet, con- tainih^ the'Advice which Strafford gave the l^ihg in that Caf6 Namely-j i\i€King wnan- B ■ 2' tiiigl (4)i ting Money, and the Queftion being hoyr he Ihould fupply it, he replyed, That if the Parliament was refraElory and would not^ you fland loofed and abfohed from Rales of Govern' ment ^ you have an Army in Ireland which you may employ to reduce them. Then there was a Debate whether they fhould accufe him of Treafon. And Sir Edward Herbert (the Attorney) laid, if you are perfwaded the Trnth is, as is pre- tended, you may, and fo it was ^ but when the clofe Committee had examined the bu- finefs, they moved the Houfe^ that fome Lawyers might be added to them, and had they gone, when they faid they were ready, they had not touched one Hair of Strtfford^i Head. Then it was confidered what was fit to be done : To accufe him of Treafon would be a dangerous Prefident, as if out of many other Crimes a Treafon could be drawn, thereupon it was Refolved not to demand Judgment from the Lords, becaufe fome Articles were not Treafon. Then it was propounded not to State what his Of- fences were, left it Ihould give advantage to inferior Courts fo to proceed but faid he deferved to be accufed of Treafon, and in conclufion a Provifo was added, not to make that Cafe a Prefident. For the Bifliop of Canterbury ^ the four Ar- tides were general, and he was long in Pri- fon without any proceeding againft him j but after long time he demurr'd, then new Articles were framed, on which he dyed. Mr. John C ^ ) Mr. John Vangh. You have had a Charge opened of a ftrange Nature, and I know not what part of it can be proved, but the reputation of This Houfe is at Stake, and of the King too ^ For, where a Charge is brought in by fome of your Members, whereof one Article is. That he fliould fay fuch words,of the King, as by a Statue made by you is a VrAmmire^ and to give Coun- eel to levy War upon the Kingdom ; is it agreeable to our Duty to the King and Kingdom to let it die ? For the Ferfon concerned, 1 know not which way his Honour can be whole with- out his giving an Anfwer to his Charge; for Mark the Confequence, if the King fhould take him to favour again before clear'd, will not the World fay a Ferfon is received to favour again, who gave the King Councel againft the Kingdom, and traduc'd the King,and how can he be whole in his Honour this way ; Oh']. But it will be faid, we mufh have ground to put him to Anfwer. Anf. Whether you have ground enough to prove I know not, but you have ground enough to make him Anfwer to clear him- felf. Suppofe thofe two Articles had been Charged on a Member of this Houfe., what would it have become that Member to do ; Should he fit ftill and fay, I will make no Anfwer, but fee whether the Houfe will make more proof ; If he fliould do fo, tlie B 3 not 'C 6 ^ jiot making an Anfvver is Reafon enough to Charge him. I can give you Inflances of Perfons charg- cd in Parliament, who, tho' not nominated, yet being ( as it were ) pointed at, Petiti- pned that they might Anfwer, and fo would any Man ^ but when this is bruited up and down, will not the World fay ? 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 fay it was) fo it is in this Cafe •, but he moved that he might be heard, and tho' it was de- lired he might be Committed, yet it was jultly rejcdly till he had Anfwercd : Then for the Nature of the Charge, if it be true, it is very High, but whether it be reafon is another Matter, it is brought to you un- der no Name, when you make the Charge, it becomes you to fay what it is \ therefore Choofe a Committee to reduce the Accufa- tioninto Heads, and bring them to you, without whiph yon cannot right you felves, nor him, if Innocent. For the way of it, it cannot be thought fit to publi/h your Witneffes and the Mat- ter before-hand ^ if in private Caufes the Defendant and Plaintiff fhould have a Pub- Jication before hand, no Caufe would be rightly Judged, much lefswhen you have f Publication of all which concerns the One, hat nothing of the Oth^r. Again, if a ' Witnef^ 17 y Witnefs be examined concerning Matters in his own Knovvledg, if he gives Evidence, where he is not brought judicially to give it, if he hath teftified any Thing which brings him within the Statute of falfe News, how can he avoid the Penalty ? For its not enough for him to fay he knows it but he mufbhave others to juftifie it. As for the Perfons who bring the Charge, they are your own Members, which the Writs return for honefl; and difcreet Men, and if you are fatisfied of that, how can you rejeft their Complaint, tho' ground- ed upon Common Fame^ as all Accufations arc, feeing they tell you, they can bring- Proof of what they fay ? Then for Common Fame^ if a Man Ipends largely, and hathno vifible way to get an Eftate, no Man accufeth him to have got- ten it unlawfully •, yet he may be put to clear himfelf from what Common Fame chargeth him with. Upon fufpicion of Fe- lony, I may bring a Man before a Magi- ftrate to clear himfelf, fo in the Courfe of Indictments^ and Prejentments, a Charge is given of what Things are to be Prefented ? then a Proclamation is made. That if any one can give Evidence, he may be Sworn, but if no Evidence appear, yet they may Indift. Then it will be faid, the Oath is a Mate- flalThiiig, but we are proceeding without ah Odth. B 4 To ( 8 ) To this I Anfvver^ ,What this Houfe lhall Charge is of more Authority than the Oaths of ordinary Witnefles •, Feers tho' not upon Oath are fuppofed to do right, fo are we upon the Reputation of our Honefty and IDifcretion. Mr. X. H. I am fenfible, the Houfe may think me Partial, but I (hall endeavour to Ihew my felf not fo much a Sonoi the Earl of Clarendon as a Member of this Houfe; and I afiure you that if he (hall be found Guilty, no Man (hall appear more againfb him than I ^ jf not, I hope every one will be for him as much as I •, let every Man upon his " Confcience think what of this CJiarge is true, for I believe that if one Article be proved, he will own' himfelf Guilty of all. Sir Hen. Fin. An Impeachment there mull be, if there be Caufe \ fuch Accufati- on? are not to be palTed over in filence. I believe not one truth in the Law more than this Propofition, That there is' ho liich thing as Treafon by Common-Law, or by Equity, and we hold our Lives by that Law j' before the 2.5 th of Ed. the 3^. a Man could fcarce fpeak any think but it vms lrcafon in Parliament or but no Man ought to die as a Traitor, who hath not literally offended that Law, or fome pfher jnade lince; There is "indeed in that ( 9 ) Law a Provifo about the Parliaments de- daring whatisTreafon, but note the dan- ger 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, Legiflative^ which hath no bounds, Declara- tory, by pronouncing Judgments. And tho' I know not what the Legijla- 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 Treafon which is not in the Common-Law Felony before. The Provifo in Strafford's, Cafe was (it's true ) made for Inferior Courts ^ but I hope we fliall not fo proceed as mull needs draw after it a Ne trahatur in Exemplnm^ and your own Ad: this Parliament ftews. That all done by Strafforff a-part^ of together^ was not Trea- [on: And it behoves us to take heed we thv/art not our own Argument. For the manner then, Confider how you Ihould proceed if it were out of Parliament, and how the bringing of it into the tioiffe alters it, If it were out of Parliament, without doubt the Accufation Ihould be proved be- fore hand, and thofe who difcover it are guilty of Felony. This provides for the Subjed, that the Witnehes muft be Two, and for the King, that none fhall difcover the Evidence. . , , > - - But fio; Bat fuppole the Charge be for MifHe- meanours, theTryal then isnot to be by the Lords, but by the Commons •, for the Lords are his Peers only in Cafes Capital. How then doth the bringing it in to Par- liament alter the Cafe ? If the Parliament fet afide Laws in this Cafe, we fhould be happy to fee Law declaring what is the _ power of Parliaments. There is no Prefident produced which is lingly of Weight to guide you, there- fore if you proceed, let it be as near as pof^ fible by the good Old LaWS j Namely, That there be an Accufation founded upon an Oath and the Evidence kept fecret, I propofe that way for the very reafon that others oppofe it (visi) The Accufation goes over the Kingdom, and it will bring difhonour to the Houfe, the King^ and the Earl; For the Honour of the Honfe, it will be hard to fay, the Charge was brought in upon mifinformation j a Perfon aecufed foradvifing to bring in Arbitrary Govern- ment, And for faying the King is not fit to Govern •, If this be true, tho' it be not Treafon in the formality of the Law, it deferves no lefs Punifhment then if it were j but if not found Guilty, Confider the Cafe. If one fay, ^ killed a Man and it is not lb, mufl not he give reparation ? We have an accufation upon hear-fay, but if it be not made good, theblackeft Scandal which Hell can invent, lies at our door. ' ^ * Then (II) Then Sir Tho-. M—rs moving to referr it to the Committee of Grievances. Mr, VaHgh. You fliould have put the firft Qiieftion before another had been moved, the Earl of Middufex (Cranfield^^ Gale ) will nqt hold paralel \ He was accufed of Bribery, which might be proved by their own Books, but this is for Scandalizing the King, &e. And where lhall the Gommit- tee of Grievances enquire about it ? you fay let them hear the Perlbns. But fuppofe they be of the Lords Hottfe^ Can you fend for them ? Or if you do, will theycomeandiay it ? The mutter of this Accufation is Eich, that if it lies in the knowledge of a lingle Perlbn, if he delivers it extrajudicially (whichhe doth, if not upon Oath) he may be undone by it, and hazard his Perfon too : At the Committee of Grievances the Perlbns mull be known, and what they can fay, and then we may con- elude what will follow : Befidcs, their Qiia- lity may be fuchasthey cannot be brought, or their Difcretion luchas they will not an- fwer. Sir Rich. Temp. Tell but the Lords that a Man in publick place hath misbehaved himfelf, and they will fentence him-, 4f he purge not himfelf ^ Never yet were Wit- nefles examined before the Tryal in cafe of • < — ' , Treafon C ) Treafon or Felony^ for then, if there be two Witnefles, a way may be found by Poyfon^ or fame other voayj to take away one. Serj. Mayn. No Man can do what is Jufl:, but he muft 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 fay upon this proof in my Confcience, This Man is guilty. Common Fame is no ground to accufe a Man where matter of Fad is not clear; to fay an Evil is done, therefore this Man hath done it, is ftrange in Morality^ more in Logick. ■ Upon the whole Debate it was Voted, » *> That the Committee do reduce the Ac- cufation to Heads and prefent them to this Houfe. ' ' ' Nozjem. (n) November 6thy 166j. Sir Tho. Litt. Reports that the Accufation was reduced to Heads, which he read in his Place, and afterwards delive- red the fame in at the Clerks Table, which are as follow- eth* viz. I. HAT the Earl of Clarendon X hath defigned a Standing Army to he raifed and to govern the Kingdom thereby^ and advifed the KingtoDiffolve this prefent Parliament^ to lay afide all Thoughts of Parliaments for the future, to govern ly a Military Power, and to maintain the fame by Free Quarter and Contribution. II. That he hath, in the hearing of the Kiu^s Suhjells, falfely and feditioufly [aid. That the King was in his heart a Papifl, or Popifhly Affetled, or words to that effeli. III. That ( 14.) in. That he hath received great Sums of Money for the procuring of the Canary Patent, and other illegal Patents ; and granted illegal Injunliions to (lop procee- dings at Law againfi them^ and dther illegal Patents formerly Granted. IV. That he hath Advifed and Pro- cured diverfe of His Ma]efty s Suh)etts to he Imprifoned againji Law, in remote Ijlands^ GarriJons,and other Places,there- hy to prevent them from the Benefit of the Law, and to produce Prefidents for the Imprifoning any other of His Maj'ejlys Suhjells in like manner. V. That he procured His Majejly's Cujiomes to be Farmed at under Rates, knowing the fame; and great pretended Debts to he paid hy His Majeflj, to the payment of which, his Majejly was not inJirilinefs hound: And afterwards re- ceived great Summs of Money for pr\tcu- ring tlje fame. Vf. That he received great Sumtms of Money from the Company of Vintntrs, or .fome of them or their Agents, for In- hauncing W-" 9 ( '5 ) hauncing the Prizes of Wines, and for freeing them from the payment of legal Penalties which they had incurred. VII. That he hath in a jhort time gai- ned to himfelf a greater Eft ate than can he imagined to he gained lawfully in jo Jhort a time, and contrary to his Oath, he hath procured feveral Grants under the Seal from His Majejhy, to himfelf and Re- latioHS,of feveral of His Majejlys Lands, Hereditaments and Leafes, to the dijpro- fit, (fi His Majejly. ' Vril. That he hath Introduced an Ar- hitrary Government in His Majefifs For- reign Plantations, and hath caufed fuch as complained thereof before His Mayejly and Councel, to he long Imprifoned for fo doing. IX. That he did rejell andfrujlrate a Propofal and Vndertaking, approved hy His Majejly for the prefer vat ion of Me* vis, and St. Chriflophers, and reducing the French Plantations to his Majeflys Obedience after the Commifjfons were drawn for that purpofe, which was the occafion ( i6 ) ) occa^on df out great Lojfes and Damage in thoje Parts. X. That he held Correfpodence with Cromwell his Complices, when he was in Parts beyond the Seas attending His Majejly, and thereby adhered to the Kings Enemies. XI. That he advifed and effetled the Sale of Dunkirk to tbe French King, be' ing part of His Majefly's Dominions; tO' gether with tbe Ammunitions^ Attillery^ and all forts of Stores there, and for no greater value, than the faid Ammuniti' ons, Artillery, and Stores were loorth, XII. That the faid Earl did unduely caufe Hii Majejlys Letters Patents, un' der the Great Seal of England, to one Dr. Crowther, to be alter d, and the En- role me nt thereof to be unduly rafed. XIII. That he hath in an Arbitrary way examined and drawn into quejlion di- vers of His Maje fly's Sub jells, concern- ing their Lands, Tenements, Goods,Chat- tells, and Properties, determined there of at the Council Table, and flopped Pro- ceedings ( ^7 ) • ceeJings at Lars hy Order of the Councel' Tahle, and threatned fome that pleaded the Statute of i-/ Car. i. XIV. That he hath caufedQuo War* ran re's to he iffued out againjl mofl of the Corporations of England, immediately af- ter their Charters were Confirmed hy All of Parliament^ to the intent he might require great Summs of Money of them for renewing their Charters^ which when they complyed withal, he caufed the faid Quo Warranto's to he Difcharged, and Profecution therein to ceaje. XV. That he procured the Bills of Settlement of Ireland, and received great Summs of Money for the fame in mojt ccr-* rupt and unlawful manner. XV r. That he hath detuied and let ray* ed His Majejly and the Nation in all For' reign Treaties and Negotiations relating to the late War, and betrayed and difco- vered His Majejly's fecret Councils to his Enemies. XVII. That he was a principal Author of that fatal Council of dividingthe Fleets ahout June, 1666. C The (80 The Clerk having read them a fecond time it was moved. That in regard the Arti- cles were many, they might be referr'd to the Committee to fee how far they were true, becaufe Fame is tooflender a ground to bring a Man upon the Stage. Sir Fratj. Coodr. Seconds it, becaufe new matter was now added to what was for- merly charged Viva voce ih the Honfe. Sir Rob. How. Suppofe the Earl of Cla- rendon Innocent, and yet Charged and Im- prifoned (which is the worft of the Cafe) he afterwards appears Innocent and is dif- charged, receiving no more hurt than other Subjeds have donej Namely, * D. Buck- * one great Man lately. OhjeEt. But why Ihould you Commit him ? Anfw. For proof, whether the Articles be true or not: Suppofe Men for felf pre- fervation will not venture to come, not knowing how they may truft themfelves, and fo you have no Proof, He very guilty, and You not able to proceed \ is the In- eonveniency greater for an Innocent Per- fon (if he prove fo.) to fuffer a few days, than for you to loofe your Repuation for ever. If this Man be not brought to his Tryal, it may force him to fly to that which he Councelled, that is.^ that we may never have Parliament more. Sir C '? ) Sir Fra.Geodr. I im not agamftproeceding,- but unfatisfied to do it without Witnels, it being like Swearing in rerbo Mc.gifiri, Sir John Holl. That the Committee un- dertake to make good the Charge, other- wife examine Witnellcs. Mr. Faugh. You admit the Aecuration to be matter for a Charge, if the Committee find proof ^ if you intend to make this a diftind Cafe I leave it to you ^ but if this be to fettle the Courfe of the Proceedings of the Honfe.y I am againfl: it ^ for this is ordering a way of Proceeding in the Earl of Clarendori's Cafe, which fnall not he a general Rule, Tho' I cannot fay one of the Articles to be true, yet I know them to be a full Charge if made good, and you are prefcribing a Courfe neither proper, nor e- verpradifed. A Witnefswho fpeaks with- out Oath is fubjed to Damage ^ not fo up- on Oath, becaufe the Law compells him: And whereas it hath been faid, if Witnefe fes atteft. before the Houfe of Commons^ what Judges dare middle in't ? I anfwer, fuch Judges as meddled in the Cafe of Sir John EHiot^ &c. and the Shi^ Money. Sir Rich. Te/Mp. A Grand Jury is capable to prefent upon their own-knowledge, and are Sworn to keep the King's Council and C i their C iO ) their own, and I believe there is not one Article ofthe Accufation but will be made good. Sir^tf^. /Aip. As I am fenfible of the danger of publifhing Witnefles beforehand, fo I would have every one fatisfied j there- fore take the Articles one by one, and ac- cording as you lhall find what your Mem- bers may fay for the Truth, you may be in- duced to proceed or not. Sir 7170. Osb. The Houfe ought to have fomething to induce their belief, which they have had from feveral Members, and I know how fome will be made good. Sir Tho. Littl. What Article Members of thcHonfe do notofier you matter to in- duce you to believe, you may lay it afide j therefore hear what ftiall be faid and pro- ceed accordingly. Mr. John Tr. You connot exped Witnef- fes will appear before you. Lords will not, nor can you exped Commoners fhould j for when you are up and gone, nothing can pro- ted a Commoner if this Information be not Jndicial. At laft the Queftion was put whether to refer it to a Committee. Teas^ 128. Noes^ 194. 322. ^ -v.. * Then C 2-1 ) Then the firfl Article was read to fee what would be faid to induce the //ju/e to Impeach. The Firjt Article read. Sir Rob. Horv.'? Heard from Perfons of Lord 5 Quality, That it would be proved. The Second Article voas read. Lord St. Job. Peribnsof great Quality have aflhred him to make it good, and if they perform not, he will acquaint the Hoafe who they are. The Third Article read. Mr. Ed. Seym, Sufficient Perfons will make it good, with this Addition, When he received the Money, he faid. So lom as the King is King., and I Lord Chancello^ the Patent -will ft and. ^ The Fourth and Fifth Articles read. Sir Rich. Ttm^. Divers have undertaken to make them good, if they do not I will Name them. About the receiving Money of Vintners. • • Sir C iO . Sir Rob. C—r. That he knows who will prove it. jiboHt his getting a great Eflate fo fud- denly, Ed. Seym. I fuppofe you n^d no proof the Sun Ihines at Noon-day. ■ Sir Tho. Litt. The matter of Fad iji the Article is eafily made out, for his Place as Chancellor could not be worth above 4 or §000 1, per About introducing an Arbitrary Government, jn tho plantations. Sir Tho, Litt. 1 One Earmer and others Sir Tho. Osh. j came from the Barba- does to complain of it, and lodg'd their Fe- tion in this Eloufe., but were Imprifbn'd' that they might not be heard. About frufirating Preyofals for preferving Nevis, &c. Sir Char. Wheel* My Lord Chancellor on- 3y oppofed it. About holding Correfpondence with Crom- Wel. Mr. ( ) Mr. Swinf. That is Pardon'd bjr the Ad of Indempnity. Mr. Faugh. The Committee were aware of that, but the Defendant may plead it, and prove that he is not Out-law'd. Sir Char. Wheel. I want hot clearly to prove it. Sir Rob. How. For fuch fecret things as thefe, he ought to plead, notwithftanding the Ad of Obliviouj that the World may khow who are undifcern'd Enemies. Mr. Hamd. It is not only an Ad of Par- liament, but Oblivion \ and no Man ought to be lb much as Accufed for what was done before. Mr. Faugh. If the Pardon be general, the Judges and you are to Note it, but if it hith Qualifications (as that Ad hath ) they are not to Note it ^ for you mull fay there is no Irididmeht or Outlawry againl^ him ( for fuch the Ad excepts ) or the Article is to Hand. Then the Act was read. Mr. Swinf. The Claufe for Pardon is Ab-« folute, and any Man accufed, pleadirig it fliall not be Sued, nor his Fault mentioned, G a and (M) and this is fo Offences and Offenders 5 and for thofe who betrayed the Ring be- yond Sea fwho are excepted) they muff be Profecuted within Two Years. Qbje5t, You will fay, he may plead that A A. By the fame rule, any Man who committed a Fault, during the Troubles, may be put to plead it for Pardon. Serj May ft. We profefs that there fhall be Candour in onr Proceedings, Do we there- fore believe this great Man is Out-law'd ? If not, how fhall we accufe him of what we believe not true. Mr. J^augh. When I am fatisfied of a thing I am not afhamed to own it •, I find now, having perufed the Aft, that it is within the Claufe. The Indempnity is general, and he is within it if not excepted,^'the Ex- ception reaches thofe who have held Intelli- gence with the King's Enemies, fo as they be Profecuted within two Years, this he is not, therefore is clear. So upon the Debate, the Article was ex* jjmnged the Paper without a Vote. Ahoiit the Sale o/Dunkirlt, Sit ( ) rs; Sir Tho. Osh. A great Lord told me that the Earl of Clarendon had made a bragain forthree quarters of a Year before it was known. tin: AboHt Sealing Dr. Crowther's Patent. wlio Mr. Street. The King gives the Living to blfi, CroTPther., in the Grant is a miftake of a County, Crowther finds the miftake, and Pe- titions the King to amend it, the King ill be calls for the Chancellor and Seal, and in the 3er^ King's prefence it was amended. and Seal- w'dl cd. ItK Sir Tho. Littl. The Crime feems as great as a Chancellor could commit ^ the King tliiiij was to prefent by fuch a day, or not at all, now, the Error was found after the day, fo that iithk the King (by Ad of Parliament) had loft nenl, his right. The Chancellor did alter the (Ex- Patent, and the Record was fetch'd away telli- by one of the Chancellor's Servants, and they brought back rafed, and altered, which hen might be done (and in other Cafes is done) where a word only hath been miftaken; but that is in Cafe of fomething perfedly in the jfi, Ring's Power, and to favenew fealing but here could be no new fealing the time be- ing elapfed ; It was to throw another Man out of his Freehold, and is a great Crime. jif Abont (i6) About drawing Mens Lands into Quefiion. Mr. Thorn. I fhall be able to make it out. About Quo Warranto's to Corporations. Sir Tho. Litt. This is fo Publick a thing, that it need not be proved. Abont the Settlement of Ireland. . Sir Rob. How. I dOubt not but it will be made out. About Forreign Treaties. Sir Tho. Litt. This will appear by the Treaties themlelves, putting us in hopes of Peace, and fo hindering the Fleets fet- ting out. About Mifcarrlage of the iVar. Mr. Thorn. I want not Perfons to bring to bring to make it good. Sir Tho. Litt. Sir Edward Sprag defires Money to give an Intelligencer, arid has it 9 Sprag brings the Intelligencer to the Ring, the King commands him to meet him at the Chancellors, there he met the King, and then Order was given to divide the Fleet. Mr. ( 17 ) Mr. Marvel Charged Mr. Seymour with faying in his Acculation, That the King was infufficieat for Government, which is now omitted in the Charg^ and defires he may declare where he had it. Mr. Seym. The Party that told me at firft, difFer'd fomething afterwards, thei-e- fore I rather withdrew it than to trouble you with uncertainties ^ but a Gentleman in the Htmfe can give yon farther fatisfadi- on in if Sir John Den. A Peer of the Land heard the Earl of Clarendon fay in a Coach, That the King was anunadive Perfon and indif- pofed for Government: This will be made good. t Upon Debate it appearing probable that thefe words were Ipoken before the Ad of Oblivion, it pafledover. About the Cujhmes, Sir Rich. Temp. I have been Informed that he had a lhare for under-letting the Cu- Homes and 40000 /. Bribe for getting pre- tended Debts from-the King. Sir Tho. Osh. The Earl of Clarendon faid, Bid who would for the Cuftomes, none Ihouid' have tliem but the Old Farmers, ■ Mr. C xS ) Mr. P"-n. Having gone over the Arti- cles, we fhould know where and when the words were Ipoken. Mr. Seym^ That will be a way to Supprefs the Evidence, I hope you will Impeach him at the Lords Bar, and in due time produce your Witnefles. t Mr. P—». You muftrefolveto Impeach him of Treafon, or Mildemeanour, and name it accordingly. « Sir. Ed. Walp. You ought firft to give a Title to your Impeachment ^ for if it be |br Treafon, you will move for Commit- ment ^ if it be for Impeachment in general, not. Mr. Colem^ What is laid before you is only by Hear-fay, but -no AlTurance that it will be made good j only that if they who reported it do not make it good, you lhall know who they are. In the Earl of Strafford's CclCq ( the worll of Prefidents) the Houfe proceeded not till one fpake in the Honfe upon his own Knowledge, and another engag'd his Reputation to make it good. Sir Rob. Ath Thofe who have given you inducement to proceed, do it at third • . hand \ AV ( 2p ) hsnd, and tho' they may know the Credit ^rti- and Impartiality of thofe that told them, yet you do not. Sir Tho. Litt. A Queftion fliould be put, ipjRil Whether this Houfe hath fufficient induce- cliltj ment to Impeach; Afterwards Confider rodic what the Title fhall be, then appoint a Committee to frame Articles. Which Queftion being put, was carrycd ipeacl in the Affirmative, am Then Adjourned. 1 if it Ik November^ 9. The Firft Article read. ^ ;end 1 Sir John Goo dr. Treafon ought to termi- nate in an Overt-Ad, which defigning is F is not, therefore pray read the Statutes. 'tkf Thereupon fundry Statutes were read. I,y(w arlol 25 Ed. 3. [eats] I Efen. 4. Cap. 10. fpaii I Ed. 6. Cap. 12. ie,ffl(l I Qi Afa. laieit 13. Car. 2d. 14 Car. 2d. Cap. 29. lifCC ( 30 ) Mr. Stew. Declared it to be tranfcendant Mifdemeanour but no Treafon. Mr. rangk Two Queftions will be conil- dered. One, whether what's Charged in the Article was Trealbn in Common-Law be- fore the 25 Ed. 3. That fo we may under- Hand the nature of Treafon; The other. Whether by any fubfequent Aft it is made otherwife. Mr. Wall. The Advice given to the King I look upon to be this. To eftablifh a New Government, TobeGovern'dby Jamz.aries inftead of a Parliament, To have 3. Divan and a great Minifter of State, a Kiz^ier-Baf' fan., a worfe Plot than that of the 5 th of November ; There, if the Lords and Com- mons had been deftroyed, there would have been Succeflion, but here both had been de- ftroyed for ever. Then in order to the Debate, confider how the Law looks on it; fortho' we may accufe on lefs Evidence than Ihe may Judge, yet we mult be Cau- tious in naming the Grime: What there- fore doth the Law call this before 25 Ed. 3 ? Then look whether the power of Conftru- ftive Treafon be taken away iince. Sir Era. Goodr. The matter concerns Life, therefore wefhould be wary intheExercife of Legiflative Power ; you are not tyed to Rules, ( 30 Rules, but you are now a ftep towards Ju- ® dicature •, The Common-Law is "Jus mn Serif turn, and tho' every Treafon includes Felony, yet not every Felony Treafon. 25 5®' Ed. s- There is a Declaratory Power, whe- liaiii ther a thing be Treafon, or other Felony, iw V not whether it be Treafon, and conld.not undc be declared Treafon if not Felony before, otk In Cafes Capital at Common-Law they fflt might declare it Treafon, but in Cafes not Capital at Common-Law, they never exer cifed their Deqlaratory Power. eKk Amon^ other things that Statute declares a to falfe Com'd Money to be Treafon, which is nbn but Felony at Common-Law •, afterwards aBsi Money being imported, which was not ac- uir-k cording to the Stamp, there was no Puniih- jtlii mentfor it, but as a MifHemeanour : There- d Cm fore 4 Hen. 7. Provifion is made agaiafl that Idto Pradice, and it is made Treafon, but if the mi Parliaments Declaratory-Power could have to ti Made it Treafon, what need,ed a Statute on ojjt purpofe ? So that I caunot think the Arti- fideiic cle before you is Treafon, it not coming e Cat within the words of the Statute, thei: Mr. I lhall fpeak to the firfl; Qiic- ;oiifn ftion, whether this Article was Treafon at Common-Law, and firfl remove what fome have aflerted. Namely, Tfiat nothing is jslitt Treafon but whgt was Felony before. 2 5 Ed. 3. where petty Treafoa is fppkenof, yalto the Wife killing the.cg-,0 Thefe. liiilfi words :22C222®BC2S2*r^y C ) Words follow, if hereafter it come into Qpe- flion whether there be another Treafon, it lhall not be refolved by the Judges, till the Parliament determine it ^ For in petty Treafon, if it be Treafon, itmuftbe Felo- ny, becaufe there is killing. Then comes more, whether railing, cfr. and it follows whether it be Felony or Tref- pafs •, And the thing it felf is more ftrange. None ever doubted, but that all Treafons of 25. Ed. 3. was Treafon before, and was fo refolved 12 Q_Eliz.. That by that Aft the King declares what fliould be Treafon; Na mely, I f any Man Vitiates the King's El- deft Daughter, &c. But by this Doftrine if it were not Treafon, what was it ? Either Adultry or Fornication, when it is only the Eldeft Daughter, not the Youngeft. It hath been in all Ages a Reputation to Perfons who have been Councellors to Prin- ces according to Emergencies to give Coun- cil to extricate out of danger, and there- fore hard to tax a Minifter of State in a Cafe which he acquaints his Mafter with ; for there can be no Treafon but againft the King himfelf. I will fhew you what I mean. It is true this is a Treafon which cannot arife from Mif- prifion, becaufe it was Ipoke to the King himfelf j but as a Minifter of State he has liberty to give Councel for the King's fafe- ty. If a Perfonbe able to Inform his Mafter what Alliances are good for him, it his du- ty C33) ty i fowhat Trades are prbfitable, what not, &c. So where Men or Money are want-, ing, to advife how to extricate is coinmeiv*^ dable ^ but when it comes to this, that he breaks in upon the Laws, invading the Con-^ trad: between the King and his Subjeds, it will be as if a Man advifeth. That if the King wants Money, he may fetup High- way Men to take it, and bring it to him, and fo the skilfulleft for breaking the.Law fhall be efteemed the beflCouncellor^ there- fore, whoever thinks to ferve his Prince by breaking the Laws, he is fo far from a wife Man, that he is the higheft Criminal. 0'c. then for the Nature of the thing, the Treafons declared 25 Ed. 3. were declared by the King's Commiffion, and the Trea- • fons were of that Nature which concern'd Councel, &c. they were not like to be de- elared, and there is a paflage in Glar>vil^ called Sediiclio Domini Regis., that is, de- ceiving th^ King to what is pernicious to Him, and his People, Now fee the Nature of this Crime; if a Man Councel his Prince, and pradice it fuch a way as lhall render him Prince of Confci- ence, who hath broken his Oath, and all this to his Injury, fo that he hath no Afient. to it. Compare this with any Treafon of 25 Ed. 3. confider it: Here is a perfon who gives the King Advice, which at once mult make his People fee he hath broken all his Faith to his Kingdom (and is not the Coun- r D ccl ( 34 ) eel of Governing by an Army fuch ?) all the Laws broken, to keep which the King has Sworn, and this the King put upon tho' not inclin'd to, I alTert not this upon the Earl of Clarendon^ but upon the Article, who doth this, Councels the higheft Trealbn a- gainft the Common-Law, becaufe others are fo ^ but if a Man will pretend to give Councel, wherein many lhall have no bene- fit by the Law, he breaks all parts, and therefore I think this Councel was Treafon at Common-Law. Mr. Colem. The Queflion is, Whether it be in your Power to declare this Article Treafon by 25 Ed. 3. If headvifed an Ar- my againft the King's confent, it is againft the Statute;, but I fuppofe that the ExpreC- fion in the Article was Advice to the King in Aid of his Government. Your Enading Power is a kind of Omnipotency, but in a Declaratory Power you can declare no more than is committed to you, and with fafety to the Subjed you cannot declare this Treafon ^ Then what muft be our Rule in Declaring I dare not fay :, For fcarce any Man can tell what was Treafon before 25 Ed. 3. was made to bring things to a Cer- tainty, and what was uncertain to them who made that Law can be certain to us now. As the Judges can declare no 'Other Treafon, fo in your Declaratory Power neither can you declare Treafon unlefs there ( 30 there be Reremblance to feme other like Cafe: The Advice faid in the Article to be given the King, cannot be within that Sta-* tute, unlefs the Councellour mull run the hazard of his Advice. Mr. Faugh. The greatell Declarations of Treafons which ever were, equal not thofe 22 Rich. 2. in NottinghamCa^lc : The Judges are called to deliver their Opini-" ons upon their Faith, and they declare the Afts to be Treafon, becaufe Felony be-* fore, and tho' fome of them were hang'd for it, yet the Parliament declared the lame Thing. Serj. Mayn. Was, what is mentioned, Treafon by the Common-Law, tho' fo faid by the Lords ? And what was fo declared was repealed, H. 4. Sir Tho. Liu. Pray refolve whether it was Treafon by Common-Law i and if fo, when made fo. Some think not, becaufe they find not the Parliament declaring them Treafons, as being fo at Common- Law, and that that Statute was made to bound them, but that was only to bound Inferior Courts, not themfelves ^ for the Parliament makes not a new Crime and then Condemns it, but the Crime was before, and the Parliament declares it< Sir ( ) Sir Ed. Thtir. Hath the Parliament decla- ratory Power now ? Yes, but it mull be by King and Parliament, fo it was in the Cafe of the Gemua Ambaflador. The Judges would not conclude the Articles Treafon, nor would the Lords alone y and if you come to an equal declarative Power with them, you muft examine Witnefles, or go by a Bill. Serj. Chart. The Queftion is. Whether it be Treafon by the PraSollkiter. None accufeth but for Ju- nice fake, and Ihould be glad if the Party accufed pimve himfelf 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 Houfe.^ Ihould be laid by, upou pre fence that the time is elapfed ^ for the Crime is ( 4i ) is more than what is mentioned in the Ad: 'made by you •, it is an Offence at Common- Law, and if it be profecuted by Fine and Imprifonment, no time is limited. The Third and Fourth Article$ read, and Voted. Mr. Vaugh. Your reading every Article is needlefs, unlefs it be to lee whether any one may be Charged as Treafon, for if one may be objeded againft, fo may all as to Mifdemeanours. Fifth Article read. Sir John Sh—w. The old Farmers had not the Cuftomes till others faid they would give no more, and they had no reafon to thank the Chance/lour, becaufe they gav^ more than others: And I declare upon my Life I know no reward given him. Sir Thof Litt. It appears by the Farmers Confeffion, that they had it 50000 1. un- der, befides time of Payment, which was 300001. more, Mr. Seym. You are at liberty to receive Objedions to the Articles, buttho' others bad more, they were told they Ihoiild not have (4i) . have it, and had about looo-I. each given them to bid no more. Sixth^ Seventh J Eight and Ninth Articles Rjet^d and VHed. The Tent hi Mt.Vaugh. This is an Article of an high Nature, was then as much a Part of His Majelly's Dominions as Ireland^ and if tlie Sale of it be nothing, I know not what you would think of it if England fliould be Sold, you lately debated whether on the firfl: Article he fhould be accufed of Treafon, and found by the Statute of 25 Ed, 3. he could not, tho' it was abfolute Treafon at Common-Law, and its reported abroad that I laid that the Right of the Parliament in declaring Treafon is taken away, which I did not, for there areTrea- fons not mentioned in that Statute. There- fore it provided that the Judges fliould not upon any one Treafon proceed to Judge, untill declared before the King and Parlia- ment, and what is fignified by it? If we think before the King,Lords,aud Commons, that is impolTible, for how can the Com- mons polfibly declare before the King and Lords, nor was that the Cafe, but this, that there is the ultimate Power of determi- ning what the Law is in a doubtful Cale. In Writs of Error let them pais from Court to ■p C 43 ) to Court, at lalt they come to the Lords, 24. Ed. 3. Ifthe Judges cannot refolve what the Law is, it is to be brought thither, that is, where it is queftionable, but that is not in the Hmfe o f Commons., any more than in a Writ of Error : How than is the Cafe here ? If a Quellion be whether a Thing is Treafon, or not, it fhall be Refolved where the Law ufethto Refolve, that is, before the King in Parliament, that is in the Lords Hotil^e. Had the Words of the Act been theie, there lhall be no Proceeding until! Refolved by the King in the Lords Houfe., and Suppole that Claufe taken away. That Treafon lhall not be Refolved, but fuppofe it lhall not be declared otherwife, doth it follow it is taken away ? No, if you charge Treafon which is not within the Statute, it is another Thing, but I faid not, there is no Treafon at Common-Law. Mr. Sollicitor., There was a great Mifchief in the declaring Treafon by Parliaments^ for Mortimer was made a Traitor for in- croaching 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 Anfwer could be gotten to it, 25. Ed. 3. They Pe- tion'd it might be declared certainly, and fo Treafbns were enumerated, and if the Judges be in doubt, it is provided that ' ■" ■ the i1 C 44 J the King and Parliament lhall firll de- dare it. Declaration in Parliament, is a Declara- tion before the King, Lords, and Commons. Would our Anceftors leave what is to be Refolved Treafon to the Lords, and them- felves have no (hare in it ? And Talbots be ing declared Treafon by the Lords is faid to be no Treafon by Judge Cook, becaufe the Gjwwohj had no hand in it, there is no Treafon in Common-Law, becaufe there can be no Treafon where there is no way to Judge it, which is not at Common- Law. Mr. Vaugh. When the Law is made iin- certain the Lords muftMeclare it, it ap- pears there were Treafons at Common- Law not mention'd 25 Ed. 3. It is one Thing for a Matter to be Treafon before, and the Parliament to declare it •, another, for the Parliament to make a Thing Trea- fon which was not. Sir Will. Lewis. I defire to be Refolved whether Dunkirk was annexed to England., becaufe a Bill to that end was carryed, but not Paffed. Mr. Waller. To (hew that Dunkirk was annexed to England, confider we were Paf- ling a Bill for 1200000I. But when we were making a Preamble to the Bill, we were / w ■■ C 45 ) were to feek for Reafons for giving the Money, feeing we had no War, fome faid to keep Dunkirk^ but were told we Ihould take heed of looking upon it as annexed unto the Crown ^ but it was replyed, Dun- kirk was look'd upon as a Frontier Town, and accordingly noted in the Bill. There- fore the Sale of it Treafon. Mr. Coven. Had it been part of' the Crown of England^ what needed a Bill to make it fo ? Mr. tr—n. It cannot be Treafon, becaufe Sold by the King's confent. Mr. F'augh. If the King agreed to it, doth it follow, that he, who advifeth the King to a Thing deftruftive to his King- dom arid King, is not a Traitor ? If any part of the King's Dominions may be alie- nated, eipecially when a Parliament is Sit- ting, for they concurring, it may be alie- nated, by the fame Reafon the King may alienate Ireland or England too without the Parliament \ For by what Aft of Parliament doth the King hold Ireland or England! It is by Acquifition *, I fay aotTangier, for that was part of his Portion., and is his own : But Dunkirk would have been the Kingdoms if not thus difpofed of, and tho' it might have been alienated with the Parliament, it could no more without, than England or Ireland. Mr. * C 4« )•' Mr. Ed. Hart. The AA of Parliament for annexing was not This Parliaments,but of the Convention, and came in thus ^ the King was pleafed to tell me, that the Spamjii Ambafladour might prefs him to part with it, which he had no mind to do j therefore he would have a Bill to annex it to the Crown, which fliews it was the King's Will to have it annexed, accordingly this Parli- ament pafled it, and Dmki^ might have been as ufefnl as CaUce. At length this Article was pafled by, without determining whether Treafonor not. Eleventh., Twelfth, Thirteenth and Fourteenth jdrticles read and Voted. Fifteenth Article read, hoxdiVauah. I brought in this Article. His Betraying the King's Councels was to the French King during the War, and that in the fecrecy of State, which was the oc- cafion of the late Mifchiefs. SixFho.Osh. That is dire A adhering to the King's Enemies, and fo it is Trea- fon. Mr. Sollicit. This mull be Treafon if you have any inducement to believe it. Sir C 47 )• "Mt Sir koh. How. I have heard it from an sjiut Eye-Witnefs who told it me, and added that we are neither to be trulled nor dealt W with, who were fo betrayed. will r«fa Serj. May». Betraying the King's Coun- ofii eel to bis Enemies is, doubtlels, Treafon, WJ Correfponding is another Thing, Betray- Pari ing mull be without the King's Knowledge, to! otherwife it is but delivering the King's Words to his Enemies ? . . . r . 5Dor Sir John Br amp. Did this Information come from a Subjed:, or from one of the King's Enemies ? irtKiti Sir Roh. How. I would not have brought you Information from one of the King's Enemies, nor did I evereonverfe with them during the War. jtdf. Coll. Birch. We cannot accufeof Trea- lihit fon, exceptit be faid. Betraying the King's eoc- Councel, or Correfponding with his Ene- mies. jgdi Mr. Vau^h. You have declared that you have had inducement to Impeach, and ought to put the Queftion, whether on this Article he lhall be Impeached «f jdQ Treafon. Mr. Sir ( 48 ) Mr. Sollicit. To betray the King's Conn- eel, taken generally, is notTreafon, for it may be to the King's Friends, but to his Enemies it is, If the Article be fo. Lord Faugh. Let it be put betraying His Majefty's fecret Councels to his Enemies during the War. _ Then theQueftion was put whether thefe New Words delivered by the faid Lord Famh. Ihould be added. Carryed in the Ajfirmative. Sir 'john Holl. Was this information given by an Enemy or by a Subjed ? Mr. Faugh. It mull come from a For- reigner, or you could not know it, may not the King have from a Forreigner a difcove- ry of Treafon againfl; him *, The end of queftioning it muft be to know the Man, for it might as well be asked whether his Beard be red or black. Sir Thf.M—rs. The words are difcovered not betrayed, and difcovering may be with the King's confent. 'LovdiFaugh. Add the word Betrayingj for fo I meant it. Strj, ( 49 ) Serj. Mayn. They who give the Infer ma- tion fay not they had it from more than one Witnefs, which Stat. Ed. 6. requires, and only one of them Names the £arl of Clarendon. ^ Mr. Seym. This exception is proper to be made before the Judges. Then the Quejiion was put. Whether to Impeach of Treafon oil this Article. , feasy i6i. JSfoes., 89. 250. 7 ^ir 7%o. Lt'it. That an impeachment of Treafon and other Crimes and Mifdemea^ nours be carryed up to the Lords againlt him by Mr. Seyr/i. Serj. Mayn. for fvlifdenleanour he rtiay have Councel, not for Treafon; There- fore fo diftinguidi the Charge, that he may have Councel, Refblvdl, That a Charge be carryed up^ Refolved, That the Speaker and the whoU Hohfe carry iti E Novi t It ( JO ) Nowember^ li. It being confidered that if the Speaker go tip with the Charge, fome difpute might a- rife about carrying the Mace and otherVvife. It was Refohed, That Mr. Seym, carry it. Accordingly he went ^ whereat the Bar of the Lords Houfe,the Lord-keeper man being come to the Bar to meet hmiihe delivered himfelf to this purpofe. My Lords, .—.J . *■ . f The Commons j^embledin Fartiment^ ha^ ving been informed offeveral TrditeroUs TraShices^ and other high Crimes and Jldifde- meanours commited by Edward Earl of Cla- rendon a Member of this Honourable Houfe, have Commanded me to Impeach him^andldo accordingly Impeach him of High-Treafon and other Crimes and Mifdemeanours in^the Name of the faid Commons, and of all the Cottirndtis of England .• ^nd they have farther Corn- rnanded me to defireyour Lordjhips to Se^uefier him from Farliament.^ and to Commit him to fafe Cujlody^ and in convenient time they rvill exhibit Articles againfl him. November^ 15. The Lords lent down to defire a Confe- rence in the Painted Chamber. At which the Earl of delivered a Paper in writing (without any Debate) the Contents whereof were to this effed. The C so The Lords have not Committed the Earl of Clarendon^ becafe the Accufation is on- ly of Treafon in general, without charging any thing in particular. Mr. Garret, I had rather the Houfe fliould loofe the Punifliment of this Man, (tho' a great Oftender)then that this Houfe ftiould loofe its priviledge ^ for if this Houfe may at no time Impeach a Lord with- out giving in particular Articles, it may fall out to be at a time ( as in the Duke of B" ■ ^ Cafe) where a great Man by his Intereftwith the King procured the Dillb- lutionofthe Parliament, and then the Ac- cufation falls. MrVadgh. Either you can juftific your Proceedings, fo as to fatisfie the Lords what you have done, or you cannot; you mult name a Committee as well to confiderwhat you are to do if your Reafons fatisfie not, as to draw thofe Reafons. Mr Sollkitor^ Without doubt this Houfe was not miftaken in demanding that the Party accufed for Treafon fhould be com- mitted. That is, that Treafon is worthy of Commitment ^ and you can but find Preli- dents that Perfbns have been accufed of Treafon, and thereupon have been com- mitted: But the Cafe is this, Treafon is an Offence, for which Bail cannot be taken •, E 2 the C 5'2' ) the Lords tell you not they will, or will not Commit: But it is true, Perfons hav been Committed for Treafon, and Perfons accu- fed of Treafon Judges may Commit, or not. Confider this Law. Let the Crime be what it will, an Impfifoning till the Charge it given is but an Imprifoning to fecurity, not to Punilhment •, otherwife the Law is not Juft, and if the Judges of the KingS' Bench have a Judgment of Difcretion, whe- ther to Commit or not ^ can we wonder that the Lords have not Imprifoned, till they know the Article, when they have Judgments of Difcretion tho' they knew it? You may find Prefidents, but it is not an Argument it muft always be fo : But as the Judges have a Latitude much more then the Lords, the Impeachment from the Com- mons of England is properly the King's Suit, for there is no Treafon but againft him, and if the Judges may Bail in that Cafe, may not the Lords. But you are not told he fhall be Balled, but they defire to know what his Crime is, and then you fhall know their Anfwer, the Refolution feems rea- fonable, having gone no farther, I cannot except againft it. Sir Tho. Lin. The Long-ParliameHt had fomc good Prefidents whichi we are not to caft away leaft we fmart for it. Rcfolved, To Refume the Debate to Morrow. Nov. C 53 ) Nov. 16. '^x.Va.Hgh. The Lords do not lay Commitments Ihould follow becaiife Trealbn is Bailable by the Kings-Bench., its true, the Kings-Bench Bails for Treafon, but how ? If Perfons be brought thither for Treafon direftly there is no Bail, but when a Commitment is by the Councel Ta- ble for fufpition of Treafon, then if the Matter fall not be to what was expefted they give notice to take Bail, elfe the great Article of the Great Charter, Mamely that Jullice fhould not be delay'd nor denied, would be to no purpofe ^ and in fucha Cafe a Man may be in Prifon for ever. On the other fide, what is the Cafe of Commit- thing for Treafon? when a Perfon is Com- mitted by the Councel-Table, they fay, thay do no more but by Ipecial Command of the King, and that is - the ground of his Committing, and were not this fo, what would follow ? Intelligence would be given of a Treafon difcovered, wherein many might be concerned, and if they who Com- mit Ihould Commit with the Treafon, all the Complices would efcape, and there- fore fometimethey make it Treafon Gene- ral. Then for the Cafe, before you have gone up with a Charge of Treafon general- ly, which is to the Lords a Warrant fuffici- ent for Commitment,fay they,we will know the Particulars ^ then will not the fame in- conveniencies follow, if other Perfons be concerned, and fo the danger of all ex- poled upon the nicety ? £3 If :C H ) If a Bufinefs comps before this Houfe, which concerns others, and may prove Treafon, if we go to the Lords ( for we have not Jurjidiftion except in Cafe of our Priviledges) but yet are nop ready to bring up Particulars, and defivp the Lords tq ap- jn-ehcnd fuch PeiTous, woufd |t be reafbna- ble for them to refufe it, there being no inconvenience like to follow the doing it, much the not doing it ? I fay not to Commit them, and we not profeeute, for that fs de- lay of Jultice. Qjf. But why do the Lords refule ? Tho' I have great refped to the Lords, yet to cleap fomething in poipt of Priviledge, the Lqtds have the fame Privi- ledge with us in point of Speech, their Members, &c. as they arp ehential to pals Lawsi but that great Priviledge whieh they often afliime as Ppeps, is as the King is thereprefent in the highpft Court: How then will it fall out in refped of this Pri- viledge ? If the King be there, there be ma- ny Things which the Lords as Peers cannot pretend to; for the King hath often fate there not only in paifing Bills, but in Judg- ment. Had this Charge then come before the King there, it b^ been reafon if the King Ihould have faid, I defire to know what this Tre^on is^ we muft then have told it, becaufe he, whom it concerned, required it, or if w^e defire Commitment, he, who could Reieafe pr Pardon him,might C 5; 3 fay, kthim he Bailed. The Lords indeed retain this Priviledge, but it is in the King's Right, not as Peers. Now we have carryed a Charge, if the Lords Bail him, I know not what would follow, for no Example can be given of it, and I think they will not do it, if the King do not direft it. On the other fide, I would be glad we might be no more troubled than is necefia- ry, becaufe others are liftening what we do, and think there is nothing in the Cafe: Therefore 1 am not for delay, but fatisfy- ing others that what we have done is not barely for Imprifoning the Earl of Claren-r ^o«,but for Juftice j and if you go this way, give the Lords the Realbns why we fent the Charge as we did, and yet keep up their Priviledges, and declare fo to them. But than we muft go up with more than that Head, on which we Refolved to Im^ peach of Trcafon; for your Articles mult be fo formed as to make it a Charge fit to be Anlwer'd for Time and Place, and that Article hath fomething of that which muih be penned fo as to make it more certain ; for the Article goes but thus; That there was Difcovery and Betraying of the King's Cotmcels to his Enemies., and if you leave it there, thofe who fcruple doing any Thing becaufe particular Treafbn is not mentioned, will fay, yon fay he hath dilcovered and betrayed Councels to Enemies, hut as we E 4 tnijl ( ) tri:fi yoii not what U Treafon^ hut we will know itfo we know not whom yon mean hy. Enemies; for we may think them not fo. Thei'efore appoint a Committee to forn; Articles. Mr. Solicit. It is a great miftake to fay. That the Power of the Kings-Bench to take Bail for Treafon is no other but what is aflerted, as if the Judges there had only Power from Magna Charta. When a Man is Committed upon fufpition of Treafon, and no Profecution follows, and the Party bringing his Habeas Cor^us.^ the Bench Bails him becaufe he Ihould not lie there eter- nally, it is not to be faid the Judges Bail for Treafons, feeing no Crime is produced: For whena Man hath been accufed ofTrea- fon for Coining falfe Money and brought to the Bar, the Judges have Bailed him not be- caufe they ought, but from the difcretio- nary Power wherewith'the Law trulls them ; they may 'Bail if they will, for no other Judicature, but they, can Bail in that Cafe : for feeing Imprifonment before Try- al is only that the Prifoner may 'be forth- cbmrning, if they fee there is no danger of efc'aping they may take Bail, for he is a Prifoner when Bailed, and the Bail is his Keeper y but there are few Cafes of this kind wherein they will Bail'^ they have £ furidamentai Power to do it, placed |n them to preferve the Rights of the Crown, 5P ( SI) Crown, and the Lords will not think them- felves lefs trailed Avith the Rights of the Cxowa. then the Kinas-Bench, Yet tho' the Lords may Bail, they will notexercife their difcretion when there is a probable Truth in the Impeachment ^ lhall we then refufe this Intimation from the Lords ? Who fay- ing, becaufe they have not a particular Ar- tide of Treafon do not fecure, feem to im- ply, that if they had they would, tho'they might refufe. The Right of Bailing comes not from an imaginary apprehenlion of the King's fitting thgre, tho fome Kings have fate there in Jndicature, but from their Inherent Authority of .being trailed Avith the Right of the Crown; Let us do then Avhat becomes us, and not let the Impeach- ment mifcarry upon a mifundcrllanding but draw up the Article. But how is it pollible to draw it as an Article Avhich you expeft he Ihould be imprifoned upon ? For your Impeachment is in the Nature of an Indid- ment, and mull contain fo much of Cer- tainty as to put him to plead, that fo he may not Demur. How may it then be Gircumllantiated, fo as that he may put to plead ? if you do it according to 25 Ed^ 3. (for difcovering the Thing's Secrets to his Enemies is within that Statute.) The firll part of the Article is not pleadable 3 for Ave mull fiievv how he adhered to the King's Enemies, and wemull add what the Councel Avas that he betrayed, elfc (sS) elfe he will deny to plead, and lay, I can void it: Therefore confider what kind of certainty this Article muft have to make him plead, for the other Articles,its enough to fay them without proving Time or Place, if the Fafts were after the AA of Ob- livion-^ but in Treafon, the Matter muft ap- pear in the Indiftment, for he hath liberty not only to plead not Quilty, but to avoid it: Therefore prepare the Article accor- dingly. Mr. Vaugh. What is Moved is to put you upon an impofllble Bufinefs, for an Article prefented 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 Houfe to recede lb eafily from fuch a Priviledge, for, befides the Earl of Btraf- fords Cafe, we have exprels Prefidents for, but none againft us. We have heard that we muft have no more Impeachments, be- caufe they are dangerous and tend to Re- bellion. Confider the Arch-Bifhop of Can- terburyh Cafe, Finch^ Ratcliff, and others in the Long Parliment^ and we ftiould not fb eafily part with them. William Delapool be- ing commonly reported to be no true Man, (which is a lefs Charge than Trealbn) defired he might acquit hiralelf,and the Lords requi- red no fpecial Matter before they imprifon'd ' him, ( S9 ) him, and afterward he was accufed more Specially. Sir In the Cafe of jinfelm Arch- Bifhop of Cant, the Commons Accufed him but the Lords did not Commit him, and gave no other Reafon for it, but that he was a great Man, and yet afterwards he was Condemned as a Traitor, tho' the King reduced his Punilhraent only to be Banifliraent. Tho' a Priviledge is much fpoken of, yet I fliall never be fond of any Priviledge which fliall Intrench upon my Liberty as a Subjeft. Mr. Vaugh. I hear it Objeded, That as you Charge a Lord generally, fo may the Lords a Commoner, but that cannot be; for the Lords cannot caufe a Commoner to be Committed tho' for Treafon, without your confent: Therefore put a Queftion, whether a Committee fliall be named to draw up Reafons to jultifie what you have done. Refolved, That the QKcfiion Jhall be put. Relblved, That a Committee JbaJl draw Reafons. ' November^ i8. The Committee brought in their Rea- fon?. Firji^ Clfio ) \ Flrfi^ What can or ought to be done by citherof Parliament is belt known by the Cuftomes and Proceeding of Parli- araent in former times And it doth ap- pear by Example, that by the Gourfe of Parliaments the Lords have Committed fuchPerfons, as have been generally Char- ged by the Hjttfe Commons for High Trea- fon to fafe Cullody, tho' the particular Treafon hath not been Ipecified at the time of fuch Charge. Second. That a Commitment for High Treafon in general, is a Legal Commit- ment, and if the Party fo Committed bring his Hxheas CorpHs^ and the Caufe of his Com- mitment thereupon be returned for High Treafon generally, he may lawfully be re- manded to prifon by the Judges upon that Return. Third. If before fecuring the Perfon the fpecial matter of the Treafon Ihould be Al- ledged, it would be a ready courfe that all Complices in the Treafon might, make their Efcape, or quicken the execution of the Treafon intended, to fecure themfelves the better there. Fcunh. If the Honfe of Peers fhould re- quire the particular Treafon to be Alfigned before the Party Charged be fecured, they \ • leave (6y) leave the Commons uncertain and doubt- fill ( and that from time to time ) how par- ticular they mull make their Charge to their Lordfliips i fatisfadion, before the Offen- ders be put under any reftraint. • Fifth, The Commons conceive, that if they fliould defire the Lords to fecure a Stranger, or Native Commoner, upon fu- Ipition of Treafon which the Commons had of him, and which was by them under Examination to be Evidenced to their Lord- Ihips in due time •, their Lordlhips in Juftice for the fafety of the King and People would fecure fuch Perfon or Perfons, upon the de- fire of the Commons,and in fuch Cafe there would be no difference between a Lord and s a Commoner fo defired to be fecured. Sixth, The Proceedings of inferior Courts, between the King and the Subjeft, or Subjed and Subjed, and the difcretion of Judges in fuch Courts is bounded and limited by the difcretion of the Parliament which truft them •, and 'tis not left to the difcretion of the Judges in ordinary Jm if- didion to give the King, or take from him, inconvenient Power for the Subjed, nor to difpence the Law partially between Subjed and Subjed for Malice or Affedion^ but the difcretion of the Parliament, which is the whole Publick, comprehending the King, Lords and Commons (for the Kings pre- fence ( ^2 ) fence is fiippofed to be in the Lords Houfe ) is, and ought to be unconfin'd for the fafety and prefervation of the whole, which is it felf. It cannot be malicious to a part of it felf, nor affeft more Power than already it hath, which is abfolute over it felf and part, and may therefore do for prefervation of it felf whatfoever is not repugnant to natu- ral Juftice* Mr. Vrym I like not the firft Realbn, be- caufe it cannot be called a Cuftom where only one Parliament hath done it. Mr. Swinf. The great ftrength lies upon this firft Reafbn, and is like to be a Pre- lident *, forexad Prefidents I find none, ex- cept that of Michael Delapool^ and in the Long Parliament: But confider the reafon why there was no exprefs Prefident before, and what was the Cuftom of Parliaments before. The Parliament was wont to pro- ceed formerly by Bill, and thus that pro- ceeding makes againft the Lords now, and for committing the Party accufed •, for then the proceedings upon Treafon were byCom- mon-Law, andbecaufethe Judges could not Eroceed, therefore the Paliment went by ill, and it cannot be fuppofed that the Parties were at liberty all that white. Second^ Third^ Fonrth and Fifth Reafons Voted, Sixth Read. Mr. ( 6} ) Mr. Solicit. I am againft this Reafon, not as a Realbn, but uiineceflary^ for if the former Reafons fatisfie not, this will not, becaufe it fuppofeth things not in queftion. Our Debate muft at laft end in this Que- ftion, betwixt Priviledge of Parliament and former proceedings ^ and there being no priviledge in Cafe of Treafon, Why Ihould not former proceedings Sway ? Except we call that_ Treafon which isnot^ for other- wile no Priviledge will help. Therefore add this to your Reafon, That there is no privifedge for Treafon, and the Lords ought not to think that the Com- mons will caU that Treafon which is not, of if they do, the Lords may by a fpeedy Trial determine it. Refblved, That a Conference be defireJ with the Lords^ and the Reafons carryed ay. November^ 21. The Lords fent down to C Sj ) 6ut I heat fince, that their meanuig was this, (which mufl: be cleared by mentioning fomeLaws) that by. Chartit is provided^ That no Man pall hi taken or Im- prifoned^ or Condemned hut hy the Loop ; and thence they infet. That no Man may be Imprifoned, but it mull be ,hy the Peers^ on by the Law of the Land. Again, 5. pd. 3. No Woman lhall be attached upon Accufation, or be adjudged of Life or Limb, but accordijig to the Law. 25 Edi 3. No Man ihall be taken by a Petition to the King or his Council, unlels by Indiftment of lawful People, or by pro- cefs of Writ at Common-Law, and ( fay they ) this Cafe is to none of thefe. 28 Ed. 3. No Man fhall be Imprifoned without due Proccfs according to the Old Law of the Land : But this Cafe being nei- ther by Prefentment nor Indiftment, the Lords vYould not ftand upon our Prefidents^ but relied on this, as if it were enough in Bar of all our Prefidents. :• Therefore to open this, and the danger of the Confequence, there are in the Land many different Laws, and proceedings in thefe Laws, and Imprifonment upon them 3 and yet not one of them by Prefentment, Indidment, or Tryal by Peers, tho' the Lords thought this was the Law and there was no pthcn G 3 I, It ( 84 ) 1. It is known that the Cf Own-Law, or Prerogative, is diftind: Law from that be- tween Party and Party. 2. There is the Law and Cuftom of Par- liament, called a Law, c.b omnihvu qu^irenda, A mnltis ignoYAta^ & a fAKcis CognltA. 3. Then the Cannon-Law, ( and it is much the Bifhops forgot that) and there is nothing in that Law, more than Handing in a White Sheet, which proceeds not by Indiftment or Prefentment, yet there is Imprifonment even in that Law. 4. There is the Law of Admiralty, and the Articles of Cleron^ where there is pro- ceedings of another Nature, and by Im- prifonment. 5. The Law of Merchants, or of the Staple. 6. The Law of Arms, where is Impri- fonment and Death, and yet different pro- ceedings from the Common-Law in the Great ChArter ; Now no Man thinks that all thofe Courfes of Proceedings are taken away by the Common-Law, and it is grofs Ignorance to think it. 7. The Law of the Forrefl, vv>hiGh is moil different: So that to urge Magnii ChartA \ \ ( 8j ) Chart a. to this piirpofe, as if all Procee- dings in thofe Cafes muft be according to the Common-Law, is abfurd. Then there are divers Writs in the Re- gifter. One, When a Man hath received the King's Money to ferve him, and went not, then there is a Writ to Arreft him upon a Certificate from the Captain under whom he was to ferve. Then the ordinary Writ, which belongs to the Law Ecclefiaftic, de Excommmka- to Capiendo. Another, de jipoflata Capiendo., to recover a Regular Run-away from his Convent. Another, called ne exeat Regno., to Im- prifon a Man, who will not give Security not to go out of the Kingdom, and this is not Traverfable any where, becaufe it fug- gefts that he will Machinat fomewhat hurtful to the Kingdom, and upon that Suggeftion he is Imprifoned. Another, when a Man hath a Leprofe. Another, to burn Heretkh, which con- cern'd the Bifliops alfo, if they had pleas'd to think of it. G 3 Thefe ( 80 Thefe Proceedings are no way agree- ^ble to thofe mentioned jn the Common- I.aw. .. Then con fider ho\y this Refolntion of the Lords ftrikes at the Law of Parliaments. 1. It is certain that all Imprifonment by Parliament is not by Prefentment, In- diAmeiit, So that by this means that ■t'ower is taken away. a. Contempt againfl: Parliamentary An- thority, whofoever he is to appear before them, and difobeys them, they may Imprt- fon himin the Tc/ipe?', and yet it is not a- gainlt Magna Charta. Whither therefore tends this ? The Concliilion piuft be, that no Im- peachment by the mult goon, unlefs it be by Prefentment, and fo there is an end of all that for which the Parliament is principally called, iinlefiweare part of thofe 500 contemptible Ones, who are on- ly fit to give Money 7 That may be referved forps, but nothing elfe'; tfio' 23 Ed. 3. laith. For redrefs of grievances in the King.- dom a Parliament pall be catted every Tear, J would know which way we Ihould redrefs Abufes, if we are fo far from remedying in Parliament, that vye muft be Ihut out to the Common Coiirfes in othex Courts ? ' / . ' 0^. The "( ) Obj.y The Lords may fay, if you find the Statutes broken, and fhort, you ihall have New. Anfw. And when tliefe New Ones are broken, then we fhall have a Remedy, fo rife up Remedy, and go to the Remedy, ad ififimtum, for there is no more Reafon to think that a Second Law fhall be maintained more than the Firfl, and what way a Mif- chief fhall be Redreffed, other than by Par-, liament, I know not. So that by this Refohulo?: of the Lords, and denying to Commit upon this Ground ( for they fhew'd no other ) every Thing for which a Parliament is ufeful is deny- ed us. After all this come to the very Cafe, If a Treafon be Committed, and the Fame is that A. B. is guilty of it, it is law- ful to Apprehend him for it. If Hue and CVj purfue a Man, tho' he be not of evil Fame, yet he may lawfully be Imprifoned : If it proves falfe, he hath his Remedy; but that obftruAs not the Law to bring him to Tryal: Any Watch-Man may Arreft a Night-walker, and hath a Warrant in Law for it, and this is as good Procefs in Law, asany original Writ. G 4* Au(4 (88) A nd after all this, Coiifider with whaf l^ind of Colour, when there are weighty Ileafbns why we fhould not mention fpe- cial lYeafon, and that mentioning it ge- nerally, anfwers the Petition of Right, the whole Commons of Fngland (who are in no degree reprefented by the Lords, They only reprefent their own Perfbns ) fhould be denied the Securing a Perfon Tmpeached uniefs a particular Charge be given, how prejudicial fo eVer to tHe King- jdom. Another thing, there is no Right which a Man hath in this Land, or any part of the Vyorld, but his Right is fuch, that if it'be kept from him, he hath a means to jcome to it, otherways it is Damnum fine In- 'juria \ for where the Law gives no remedy, there is but a fuppofition of Right; By the fame meafure it will follow, that there is no civil wrong can be done tp any Man, but the Law provides a Remedy if that wrong be done; and if by the Law there is no Remedy, it is nd wrong, confider then this Cafe ' There are in this Kingdom in the Civil State of it, three Efiates, which the King hath then in making Laws: There are three Ellates, whereof the King' is Principal; ibmetimes they are mentioned as the King's three Efiates, alid he none of them : The ^flaps in general are, the Commons of the ^ '' . Kingdom, (%) . k Kingdom, (who are perfeftly reprefented ''tj in Houfe) the Lords another, and the King another, and thefe are fuch, that there is no Petitory AAion, nor the Laws dircfted to any one of them, but the Laws you make are to dillribute Juilipe in other Courts. ' fops] erfo; For Inftance, If all the Commons of gelt la»d (who are one of the Eftates) fhould Accufe one of themfelves, the Party cap have no wrong, becaufe the Parliament can have no Adion brought againfl them, itt hof can they be fuppofed to do any thipg ffio! for Malice, tei ansa It is the lame between the Body of the M In- Lords and Commons ^ and there is no Law medf, either to Vindicate the one or the other-, ijtlit but they ftand as if there were no com- limis municable Law betwixt them \ but the .to, meafure between them is that which is tki good fcr the wholes for they are the ma- tliers kers of Laws for others, but no Laws can tta be fancied to reach the whole of the Com- mons, or'of the Lords. ;CW , , , iKiii^ So that 'tis eafily to be feen, how it hath been put upon us ^ fo that now we are in fuch a Cafe, we know not to what end we jig's fhall proceed upon this or any other Im- ]■)]{ peachment^ for by this Judicial'pow'er, yon lhali be excluded from any proceed- , ■(9o) ings by Laws of Parliaments, and fo you take away the whole Right of the King- dom. 'P®'' Jon Ouefi. But now what fhall you do ? tWi ^»f. I fee many Inconveniencies which y®" may happen both ways, but I fee fo ma- If ^ iiy this way, that if any Man gave fuch Councel as is Charged upon the Earl of Tit Clarendon^ it is not fo dangerous as the Cafe before you j for the Inconveniencies P®!' attending that Councel would quickly fhew W it felf by the Mifery following : But this ssii is a fmall thing begun with, which, like ote a Canker, may eat till it be uncurable, juiii and that is as abfolutely juRifiable as T 'this. iiliic And now'I have laid this,! am perplexed ot what to fay more, for all can bear me wit- erol nefs, what relped 1 have endeavoured to is ii preferve to the Houfe of Teen^ but 1 am fb bs lenfible of this, that tho' 1 cannot forget Tt my relped to them, yet 1 muft lament the Condition into which they have brought Qte' themfelves firll, and us next, for they can- ryC not think to avoid it. . fror The Houfe of Peers is but a New Stile, fifd called fb, as Jurors are called Peers^ from the i m Word Par; for every Commoner hath his J Peers as Lords have; and the whole Stile yon formerly was Arxh-BifoofSy Biflwps^ DukeSy yoo 5cc, ( 91 ) But Pares Pegni is a new Stile. It is called the Vf^er Houfe^ and is to be look't upon with Reverence. The Lords have a Jurifdidion>but in this Cafe,l mult be plain, their granted Jiirildiclion arifeth from the Hon[e of Commons^ if you Impeach not there your Judicial Power will be very little. If a Lord be to be Tried for Treafon, 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 Treafon in the Lords Hoiife, is Conftituted by the King, as a Lord High-Steward^ and there is no other Judge, therefore I know not the Judicature they fpeak fo much of. There is another for Writs of Error, which are there determined, but the Jurif- diAion of that is very little, for the In^ conveniency of the Lords determining what could not be determined in other Courts, is fo found out 25 EUz.. They are to be brought firft into the Exchequer Chamber. There is another way when Ferfons car- ry Complaints to the Lords, which is a ^eftion, for Commoners ought not to car- ry Complaints there, except in fome Cafes, from Chancery ^ therefore this Matter of Ju- rifdidion, which they talk of, is not fuch a wonderful thing as they would make it. Therefore whatever we lliali do after it, your Rights being fo much concerned that you know not vVhere the fray will l?e, it- '■ is ( 9"^ ) is neceflary that you make a Committee to draw up a Proteftation to be made by this Honfe concerning this Matter, The Invali- on of your Right in it, and the danger to the Kingdom by it. Mr. CoLem. The Lords fay. That commit- ting upon a general Impeachment is againft Law, and I think it will appear fo *, I de- ny not, but a Mittimus without fpecial Caufe is legal, and grounded upon the Pe- tition of Right, the Reafon of which is to fecure Men againft Commitment by a fpe- cial Warrant, and a Judge ought not to difcharge where Treafon is alledged, but in this Cafe it is different \ The Judges cannot difcharge a Man Committed after Examination, but the Lords ought not to Commit a Man, except there be particu- lar T reafon. If I come before a Juftice of Peace, and fay, I accufe this Man of Treafon, will a- ny wife Man Commit him? he makes his Warrant indeed, but he that accufeth muft go farther and make it more particular, and the fpecial Matter muft appear before he Commits, and this is the prefent Cafe. The Common-Law is. That no Man ought to be Committed without particu- lar Caufe \ becaufe no Man can Commit in Capital Matters, without taking Examina- tion before hand, otherwife no Man can ju- ftifie a Commitment : Therefore I am H9t ( 19 ) not fatisfied that the Lords Ifad not rea^ fon to deny. The Commons are in the nature of a Grand-'Jury to prefent, but the Lords are the Judges-^ Commitment is not the Judgment but in order to ic, and the Lords have a difcretionary Power in the Cafe: The Lords fay not that they will not Commit, but that they are not fatisfied to do it without fpecial Matter, therefore we ought to fend it up. Sir Rob. How. I have attended the Rea^ fons given againft making a Proteifation, and whatever is faid, is but levelling a Houfe of Commons with every private Ac- cufer; a Juftice of Peace (it is faid) mulb have Evidence before he Commit, and this Hoiife has had Inducements to Impeach, and may not a Houfe of Commons judge what is Treafon as well as a Juftice of Peace ? The Inconveniencies and Dangers laid before you, if you proceed, are nothing in comparifon of thofe on the other fide. Had the Lords Imprifoned, they had be- fore this had the particular Charge, and the Proteftation is not to ftop it, but to make way for it fome other way •, for ir willrefolveinto a Remonftrance, by which you may give the Nation an Account of your Proceedings to come to a Tryal of this BiKinefs. Mr. ( H ) Mr. Faugh. By the Proteftation fpoken of, is mcaat to preferve the Rights of this Houfe upon the whole Matter, and to give the Reafons of your Proceedings. Sir'tho.M—rs. What is faid, not being explained ^ I know not what is meant by the Proteftation if it be but to enter it into our Book, I am not againft it, if it be an Appeal to the Nation, pray conilder what you do. Mr. Faugh. This way of Proteftation differs from entring in our Books, but the belt way is to draw it up, and to bring it to you, and then any Man, may take Ex-- ceptions againft it; for the meaning is, that this Houfe Claims its Rights. Mr. Gar aw. Firft make your Proteftati- on, and then Appeal to the King. Mr. Faugh. None can furmize that you mean an Appeal to the People by what is moved, for what is done, muft be done to fome part of the Parliament •, the King, Lords, or your lelves: And they who fpeak of it (if it were done with evil intent) de- ferve to be called to the Bar ^ when it is brought before you for your Approbation, you may either retain, or rejed it. Sir C 95- D Sir Wdt. Ton. I defire that the Honfc may know before hand to whom they are to Remonftrate, 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 pleafe. Sir Rob. Atk. As I would be tender of your Privil edges, lb, of giving Offence to the Lords, therefore we fhall endeavour to be Unanimous in this Honlea Proteftation is Named, I am a ffrahger to it, and would underftand clearly what is is before we do it i That it is a Gourfe warranted by Prefidents and Proceedings of Parlia- ments, confidering what effed it hath had in late times, therefore we may do well to adjourn the Debate and Confider of it. Sir Tho. Litt. This Proteftation will be like that in the Lord Afaynards Cafe, but fomewhat longer, and ought to go far- ther then to one of theEftates, and be kept within the walls. Mr. Swifjf. You fent up a Charge to the Lords in general, defiring that the Earl of Clarendon fhould be lecured, and in coveni- ent time you would fend up Articles ^ from that time it hath not been done, and the Lords i 915.3 Lords have palled feveral Votes about it fince, but you have not pafled one. Firllthey Voted, that they had not com-' plied with yourdefires for want of parti- cular Treafon \ Then you give them Rea- fons, they are not fatisfied with them; then a Free Conference, they are ftill un- fatisfiefd; and all this while you have not come to any refolution: So that till yoU come to a Vote, no Man knows but that you are fatisfied with their Anfwcr ; for when the Matter of the Proteftation is brought in, we fhall not be ready for it till we have refolved, that what the Lords Infill on, is an obilruftion of Juftice, and you cannot agree with them without great Inconvenience to the Nation; Therefore put a Qiieftion, That the Lords, ttot having agreed to Secure the Earl of Clarendon ufon the general Impeachment, have obfiruEled the Publick Jufiice of the Kingdom in proceedings of Parliament, and is of dangerous Confe- ejuence: This is neceflary, becaufe the Lords have heard nothing from you, but endea- vour to fatisfie thenii Sir John Good. This Queflion will be a greater Accufation of the whole Houfe of Lords, than the other is of the Earl of Clarendon. If you will go by way of Pro- teilation, and keep it within your own Walls, I like ifi better than this ^ieftton. Sir 'C 97 ) Sir Rok How. The putting this Qiieltion is no Charge upon theHoiife of Lords ^ and therefore if that Gentleman thinks it fo great an one, fure he thinks the Charge againft the Earl Clarendon to be a very Imallone. Is there any Obftruftion to Ju- ftice ? If not. Why do we not Comply ? If there be, we cannot it feems Complain without Charging the Lords. Keeping it within your own Walls, is but like a Man, when he is alone, muttering Arguments to hinifelf, and Commending himfelf ifor it. If you meet with any Obftrudions, pray firft put the Queftion, whether you are ob- ftrufted. Sir Rob. Ath It is no ligfit matter to Charge the Lords with Obftruding Juftice; therefore the thing being new, pray ad- jouVn it till to morrow, that we may be more of one Mind. Then the Qnejlion was flated^ Namely, That the Lords not having complied with the dejire of the Commons in Com- initting the Ead of Clarendon, and Seque- ftring him from Parliament upon the Ini- peachmeut from this Hoafe, isanObilru- dion to the puMick Juftice of the King- dom, and b a Prefident of evil and dange- fousGonlcquenec. H Re- ( 98 ) Refoived, That the Quefiion be Tufy And being put, Refolded in the Affirma- tive. Refblved, That a Committee be appointed to draw «p a Declaration to Vindicate the Froceedings of this Houfe. Decemdery 3. A Meflage from the Lords by two Jud- ges. That they have received a large Peti- tion from the Earl of Clartndony which In- timates that he is withdrawn. Sirlho.Tomph Moved to take care to get the Sea-ports ftopt. Sir Tho.Lit. I believe he is now pall Hop- ping, but we fhould do it, tho' it have no cffed 'y left it look as tho' we would have him elcape. Sir Rob. How. The Lords feem now mi- ftaken in their Opinion at the Conference, they faid there was no fear of his Running away, and in our Houfe it hath been Je- fted that he was not like to Ride Poft. Be- lldes the Expreffion in the Meftage is (with- drawn) which may bean inward Chamber, therefore 'tis fit to defire to fee the Petiti- on, and Command fome Members to pre- pare ( 99 ) pare fomething to Vindicate your felves in difcharge of your Duty. Mr. Seym. Yon cannot take Notice to the Lords of the Petition, unlefs they think good to Communicate to you, but make the Declaration Mr. Vaugh. I look upon what the Lords lay as doubtful, therefore beware left you do fomething misbecohiing yoii. They on- ly fay, that he is withdrawn, but not what is his Petition j for the faying that he is withdrawn, is not the Matter of a Peti- tion. Perhaps he is gone into the Country, the Meflagefeems light, and you are to take no notice of it. If it be of Moment, and they think us Concern'd, they fliould let us know it y and I cannot think fo of the Lords, that they would ule that word, if he were fled; therefore fend a Meflage, to know whether fled or withdrawn. Mr. Sol. Gen. When a Delinquent Ilgnifies to his Judges, that he is withdrawn, it cannot lignifie 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 Anfwer it, if you hear they do nothing, and fo feera to fay, fare him well. H 2 Upon V 100 > Upon all which Motions, Ordered^ That Sir Tho. Clif. ( Comptroler of the King's Houfehold) be fent to the King, to defire the Ports may be Hopped. " \ December^ 4 The Lord Fitzharding makes Report from the King, that the Meflage for Hopping the Ports being delivered him, he had taken Care accordingly. A Meflage from the Lords to defire a Ipcedy Conference: From which Mr. Solicitor Reports. We attended the Lords at the Confe- rence, which was delivered by the Duke of Buck, who faid to this purpofe. That the Lords had Commanded him to deliver to us that Scandalous and Seditious Paper fent from the Earl, of Clarendon^ de- firing us to prefent it to you 5 and to defire you in convenient time to fend it to them again, for it had a Stile which they were in love with, and defired to keep it. Which faid Paper was read, apd is as follows, viz,. Jo ( lOI ) / TO THE Right Honourable THE LORDS Spritnal and Temforal^ i n Parliament AS S E MB LED. The humble Petition and AddreG of Edward Earl of Ciaren- don. May it pleafe Your Lord^ips., I Cannot exprefs the unfupportahle Trouble and Grief of Mind Ifu- ftain under the Apprehenfion of be- ing Mifreprefeuted to tour Lord"- (hips, and when I hear how much of Tour Lord (hips time hath been fpent upon the mention of me, as it is attended with H 3 more C lOX ) more puhlick Confequences^ and of the differences of Opinion which have alreu' dy, or may prohahly arife between four Lordlhips and t^e Honourable Houfe of Commons; wherehj the great and weighty f airs of the Kingdom may be ^hftraded in. the time of fogeneral a diffatisfahlion. I am very unfortunate to find my Jelf to fuffer fo much under two very difad- vanttigeous Re fled ions, which are in no degree applicable to me. The Firfl from the greatnefs of my E- ft ate and Fortune, colleti&d and made info few Tears, which if it be proportionable to W bat ii reported, may very reafonabhy caufe my Integrity to be fufpelled' The Second, That I have been the fole Manager and chief Minifter in all the Tranjadicns of State ftnce the Kings re- turn into England, to Auguft laji, and therefore that aU Mifcarriages and Mif- fortunes ought to be imputed to me and my C ounce Is, Concerning ray Eft ate, Tear Lordfllips will not believe, that after Malice and Envy bath been fo inquifitive and fo jharp fighted, / wi% offer any thing to Tour ^ Lordfliips, ( 103 ) Lordftlips, lut what is exatlly true; and I do afure Tour Lordlhips, in the firji place. That ( exceptingfrom the Kings Bounty ) I have never received nor taken one Penny hut what was generally under- flood to he the jufl lawful Perquifites of my Office, hy the conflani Practice of the heft Times, which I did in my ownjudg- ment conceive to he that of my Lord Co- ventry, and my Lord^MmoiQ; thePra- hike of which I conflantly ohjerved, althd the Office in hoth their Times was lawful- ly worth double to what it was to me, and I believe now is. That all the Courtejies and Favours which I have been able to obtain from the King for other Perfons in Church or State, or in Weftminfter-Hall, have ne- ver been worth me Five Pounds; So that Tour Lordftlips may be confident I am as innocent from Corruption as from any dif- loyal Thought, which after near Thirty Tears Service of the Crown, in fome Dif- ficulties and Diflreffes, I did never ex- pe^ would he ohjelied to me in my Age. And I do afure Tour Lordftlips, and fhall make it very Manifefl, That the H 4 feveral ( 104 ) feveral Sums of Money^ and feme "Parcels of Land, which His Ma]ejly hath Bonn- tifully hejlovoed upon me fince his return into England, are worth more than all I have amounts unto; fo far I am from ad- vancing my EJlate hy indire^ means. And tho' this Bounty of his hath very far exceeded my Merii^ or my expelia- tion, yet feme others have been as fortu- nate at leajl in the fame Bounty who had as fmall pretences toits and have no great Reafon to envy my condition. Concerning the other Imputation of the Credit and Potter of being chief Mini- fier, andfo caujing all to be done that / had a mind to, I have no more to fay, than that I had the good fortune to ferve a Mailer of a very great Judgment and Vndexfianding, and be always joynd with Terjons of great Ability and Experience, without whofe Advice and Concurrence, never any thing hath been done. Before His Majejly's coming into Eng- land, he was conflantly attended hy the then Marguefs of Ormond, the late Lord Cui|")eper, and Mr. Secretary Nicholas, who were equally trufied with my felfand without whofe Joynt Advice and Concur- rence'i C 105 ) rencej when they were all prefeut (as fame of them always were) I never gave any Conncel. As foon as it pleafed God to hring His Ma]efly into England, he Ella- llifhed his Privy-Council, and fhortly^ out of them he Choo/e a Number of Ho- nourahle Perfons of great Reputation (who for the mofl part are fiiU alive) as a Committee for Forreign Affairs and Con- f deration of fuch things as in the Nature of them required much Secrefie, and with thefePerfons he vouchfafed to Joyn me: And / am confident this Committee never tranfaded any thing of Moment ( His Majefly being always prefent ) without prefenting the fame firfi to the Council- Boards and Imufiappeal to them concern- ing my Carriage, and whether we were not aU of one Mind, in Matters of Importance. For more than two Tears I never knew any Differences in the Councils, or that there were any Complaints in the King- dom, which 1 wholly impute to His Ma- jeftys great Wifdem, and the intire Con- currence of his Councellours, without the Vanity of affuming any thing to my felf; and therefore I hope I fhall not he fingly charged with any thing that hath fence ( io6 ) faVn out amifs. But from the time Mr. Secretary Nicholas was removed from his Place, there were great Alterations ; and whofoever knew any thing of the Court and Councils, know well how much my Credit hath fince that time heen dtmi- nifhed, thd His Majefty gracioujly vouch' fafedJHll to here my Advice in mojl of his Affairs: Mor hath there been,from that time to this, above one or two Per fans brought to the Council, or preferrd to any confiderable Office in the Court who have been of my intimate Acquaintance, or fufpetled to have any kindnefs for me ; and mojl of them, mojl Motorioufly kpown to have been very long my Enemies, and of different Judgment and Principles from me, both in Church and State, and have taken all opportunities to leffen my CrO' dit with the King, and with all other Perfons, by Mif-reprefenting and Mif-re- porting all that I faid or did, and per- fivading Men I have done them fome prejudice with His Majefly, or croffed them in fome of their Pretenfions ; Tho* His Majejly's Goodnefs and Ju(lice was Juch, that it made little Impreffion upon him. In C 107 ) In my humlle Opinion, the great Mif- fortunes of the Kingdom have proceeded from the fVar, to which it u Notorioufly known that I was always mojl averje, and may without vanity fay, I did not only forefee, hut declare the Mifchiefs we fhould run into, Entering into a War^ before any Alliances made with the Neighbouring Princes, and that it may not be imputed to His Majejly s want of Care, or the Negligence of his Councellors, that no juch Alliances were entred into, I mujl take the holdnefs to fay. His Ma- jefly left nothing unattempted in order thereunto ; and knowing very well, that France Refolved to begin a War upon Spain, as foon as his Catholick Majefty fhould depart this World, which being much fooner expelled by them. They had in the two Winters before been at great Charges in providing plentiful Magazeens of all Provijions upon the Frontiers, that they might be ready for the War, His Majefiy ufed all pojfthle means to prepare and difpofe the Spaniard with that appre- henfion, offering his Friendjhip to tbat degree, as might he for the Benefit and Security of both Crowns. But ( ) But Spain flattering it felfl That France would not break with them, at leafl, that they would not give them any Caufe by Adminiflring Matter of Jealoufie to them, never made any real approach towards a Friendjhip with His Majefiy, but, both by their Embaffadors here, and to His Majeflys Embajfador at Madrid, always perfifled, as Preliminaries, upon the giving up of Dunkirk, Tangier and Jamaica. Thd France had an Embaffador here, to whom a ProjeH of a Treaty was offered, and the Lord Hollis, His Majeflys Em- baffador at Paris, ufed all endeavours to purfue andprofecute the faid Treaty, yet it was quickly difcerned. That the princi- pal Deflgn of France was to draw Hit Majefly into fuch a nearer Alliance as might advance their Dejign; without which, they had no mind to Enter into the Treaty propofed. And this wastbe State of Affairs when the War was Entredinto with the Dutch, from which time, neither Crown much conjidered the making any Alliance with England. ( lop ) As I did from my Soul alhor the En- tring into this War^ fo J prefumed ne- ler to give any Advice or Councel for the way of managing it^ hut by cppofing many Tropojitions^ which Jeemed to the late Lord Treafurer and my felf to he unreafonahle^ as the payment of the Sea- men by Tickets^ and many other Particu- bars which added to the Expence. My Enemies took all occajions to enveigh againfi me, and making their Friendjhip with others out of the Council, of more licentious Principles, and who knevo well enough how much I difliked and complain- ed of the Liberty they took to themfelvs of reviling all Councils and C ounce Hours, and turning all things Serious and Sacred into ridicule. They took all ways ima- ginable to render me ungrateful to all forts of Men, ( whom 1 {hall be compelled to Name in my Defence) perjwading thoje that mifcarryed in any of their Defigns, That it was the ChancePeurs doing; whereof, I never knew any thing. How- ever, they could not withdraw the Kings Favour from me, who was f ill pleafed to ufe my Service with others, nor was there ( tio ) there ever any thing done hut with the joynt Advice tf at leajl the Major part of thofe who were confulted with. And as His Majefly commanded my Service in the late Treaties, fo I never gave the leajl Advice in private, nor wrote one Letter to any one Perfon in either of thofe Negotiations but upon the Advice of the Council, and alfo after it was read in Council, or at leajl by the Kinghimfelf, and fome other ; and if I prepared any Injlrutiions or Memorials, it was by the Kings Command, and the requejl of the Secretaries who defired my Affijlance ; nor -was it any wifh of my own, that any Emhaffador Jhould give me any account of the TranfaUions, but to the Secret a- ries, to whom I was always ready to ad- vife ; nor am J confcious to my felf of ever having given Advice that hath proved mijchievous or inconvenient to His Majefly ; and I have been fo far from be- ing the fole Manager of Affairs, that I have not in the whole lafl Tear been above twice with His Majefly in any Room a- lone, and very feldom in the two or three Tears preceding. And > (III) And fince the Parliament at Ox- ford, it hath been very viftlle^ that my Credit hath beenvery little, and that very few things bave been hearkned to, which have been propojed by me, but contraditied, eo nomine, becauje propo-^ fed by me. I mojl humbly befeech Lord (hips to remember the Office and Truft I had for /even Tears, in which, in Difcharge of my Duty I was obliged to flop and cb- Jlrutl many Mens pretences, and refufed to fet the Seal to many Pardons and other Grants, which wculd have been prrfita- hie to thofe who procured them, and many whereof, upon my Reprefentaticn to His Majefiy, were for ever Jlopt, wbich na- turally have raifed many Enemies to me: And My frequent concurring, upon the de- fires of the late Lord Treafurer, ( with whom I had the Honour to have a long and vajl Friendjkip to his Death ) in Reprefenting feveral Excejfes and Exot' litances,the yearly Iffue fo far exceeding the Revenues, provoked many Perfons con- cerned, of great Power and Credit, to eb C 112- ) ■me all the ill Offices they could. And yet I may faithfully fay. That I never medled with any part of the Revenue or the Adminiflration of it, hut when I was defired hy the late Lord Treafurer to give him my Affifiance and Advice, having had the Honour formerly to ferve the Crown as Chancellour of the Ex- chequer, which was for the mofl part in His Majeflys prefence* Nor have J ever heen in the leafi degree concern d,, in point of Profit, in letting any part of Hu Ma- jefly s Revenue; nor have ever Treated or Delated it, hut in His Majejly*s pre fence, in which my Opinion concurr d always with the Major part of the C ounce Hours who were prejent. All which, upon Examination, will he made manifefi to Tour Lord (hips, how much foever my Integrity it llafied ly the Malice of thofe who I am confident do not believe themfelves. Nor have I in my Life, upon all the Treaties, or other- wife, received the value of one Shilling from all the Kings or Princes in the War Id, ( excepting the Books of the Louvre Print fent me ly the ChanceJlour of France^ C 113 ) France that Kings direilion) lat frcm my own Mafter^ to whofe intire Service^ and the Good and Welfare of my Com^ tryy no Mads Heart was every mote devot ed. This leing my prefent Condition ; / do moft humbly hefeech Tour LordOiips to entertain a favourable Opinion of me, and to believe me to he Innocent from thofe foul Afperjtons, untill the contrary jhalt he proved; which t am fire can never be hy any Man worthy to be believe A: And fince the Diflempers of the Times, and the Difference between the two Houfes in the prefent Debate^ with the Power and Malice of my Enemies, Who gav^ out that I fhould prevail with His Ma- ye fly to Prorogue or Diffolve this Parlia- ment in Difpleafurey and threaten to ex- pofe me to the Rage and Fury of the Peo^ plCi may make me to be looPd upon as the Caufe which obflrubis the Kings Servicej and Ztnity and Peace of the Kingdom. / mofl humbly hefeech Tour Lordfhipi?^ that I may not forfeit lour Lord ill ips Favour and Proteliion, by With-drawing I my ( ) my felffrom fo powerful a Perfecution, in hope that I may he able, hy fuch with' drawings hereafter to appear, and make my Defence, when His Majejlys Jujlice (to which I fhall always fuhmit) may not he Ohjlructed^ or Controled^ hy the Pow- er and Malice of thofe who have /worn my Dejlruction. CLARENDON. Mr. Vamh. I think it not convenient to o ^ loofe more time about this Paper. Since the time of the Earl of Clarendons Name being mentioned here, I had nothing to Charge him with till now, but molt of the Heads of this Charge are fo weighty, that I am confident, they will beeafily and thorough- ly proved, tho' I know not how; lb that I admire at his Confidence, to Charge this Houfe, and fb the Nation, as hisPerfecu; tors, and that in fuch a Condition, as he hopes to vindicate himfelf. Its the firll time that ever I heard an Innocent Man run away under the greateft Charge, with hopes to return again and vindicate him- felf. Then \ ( 125 ) Then mark one Expreffion ^ he faith, he ii us far from CorraptioKj as from. Di(loyalty. If he faid he was guilty of neither, he had laid feme thing ^ but by that Expreffion he may be guilty of both: So infolent a Paper I never met with in this Kingdom, nor have I ever read the like in any other*, lb inconfi- derable a part of the Nation as he is to lay it upon the Nation, who, if innOcent, might defend himfelf, if Guilty, why doth he Charge the Nation with perfecuting ? Therefore without trcubling your felves with it, do, as the Lords have done; who deliver it to you as a Scandalous and Sediri- ous Paper ^ it hath Malice in it, and is the greateft Reproach upon the King and the whole Nation,that ever was given by Man. Therefore put the Queftion whether his Paper ffiall not have the Charader, that it is a Scandalous and Malicious Paper^ and a Rs" proach to the Jufiice of the Nation, Reiblved upon the Qjiellioii. That the Paper feat to the Lords by thd Earl of Clarendon^ and by them fent down to the Houfe of Commons^ and now read, is Scandalous and Seditious^ and doth Reproach the King and the Publick Jufiice of the Na- tion. Sir Roh, How. You haVe voted this Paper Scandalous, and therefore it ffiould not I 7. live, ( ) live, wherefore I move it ihould be burnt by the Hangmm. Mr. Garraw. The Paper is the Lords, and you mufl: fend it to them, but enter it into your Books, and your Vote upon it. Refolved, To have it burnt. Sir Rob. Car, The Paper is the Lords, the/efore move them to Concur that it may be burnt. Sir Rob. How. The meaning of my Moti- on is,becaufe the Duke of Buckingham defired the Paper again for the admirablenefs of the Stile, it is entered into their Books al- ready, and they need it not to that end; therefore delire the Lords Concurrence to burn it. Refolved, To fend it to the Lords to thi^ end. December5. A Motion being made to fend to the Lords in purfuance of the Vote about bur- ning the Paper. "bJlr.Vatigh. I am againft fending up to the Lords to that purpofe, becaufe you have Ordered to enter the Paper into your Books, and when a Paper is burnt, it is not t-o Rand upon Record, but Ihould be rafed out j t "7 ) outi which two Things area perfeftCon- tradition, therefore let it reft as it is; We have Voted it Scandalous^ &c. The Lords tell us not that they have done any fuch Thing, tho' they ought to have done it firft. As for the Earl of Clarendon^ he being now gone, if fuch a like occafion Ihould fall out, we are in a worfe Condition than we were ^ for there is this Prefident againft us, in a Cafe now Manifeft: And it becomes us to do fomething in Order to the Lords Concurring, that fo a good Underftanding may be got ^ therefore I lhall propound this to you, to be fent up to them to that end. Namely, when any Subjecft lhall be Im- peached by the Commons before the Lords in Parliament with delire to fecure him, fuch Perfon by the Law of the Land ought to be fecured accordingly. This you have in effed Voted already, in faying the Jh- fiice of the Kingdom is ohflrncled by their not doing it. Secondly^ when fuch Impeached Perfons lhall be fecured, the Lords may limit a cer- tain time for bringing in the Charge, to prevent delay of Juftice. This may Salve all, and prevent fuch ways, as may be difpleafing to the Lords, and perhaps us alfo, in fome Cafes here- after, f Mr. Swin. (ii8) Mr. S-win. I am perfwded that according to Rules of Parliament, when you Charge hy Impeachment generally, and promife in due time to fend up your Charge, they ought to fccure, but they not having done it, I queftion whether you could do what you have, but the Earl of flying, it is Manifeft Juftice was obftrufted •, for he might have been brought to his Tryal, if the Lords had fectired him •, but now your Vote is made good, which feems tq lay the advantage on your fide. Sir Roh^ How. I think this Melfage to the Lords will deftroy the way of vindicating our felves by Declaration therefore finifh the Declaration, and then Refolve before you publilh it, whether to fend up this Meflage. Mr, Haugh. If the Lords agree with us, yve may fpare the Declaration, but if they agree not now, they will much lefs here- after; Your Declaration, can amount to no more but this, make a Narrative of thp invalidity of the Lords Prefidents, but then you mult of neceffity do fom?thing more, elfe your Labour is in vain ^ therefore this Meflage with thefe Votes are neceflary. Sir Riih. Temp. I expeded that when the flarl of Clarendon had been fled, the Lords yVQuI^ havp d^fir^d ^hp lUng to Iffue out a Proclamation C "9 ) Proclamation to apprehend him, feeing they have been the occafion of his Efcape ; therefore now defire their Concurrence to go to the King to that end, and if they Concur, they have upon the Matter grant- ed Commitment upon a general Impeach- ment. Mr. Fangh. I thought it my Duty to of- fer you what I have done, if you like it not, I defire to be excufed in ferving you in the Declaration, and that they who think it neceilary would be pleafed to take the pains to do it. Sir Tho. Lee. If you declare, it will beget an Anfwer, and where will that end ? If you fend up your Votes, and the Lords agree, your end is Anfwered ; for it is a yielding that which they have yet denyed: Your declaring, and entring it upon the Journal, will be to no purpofe j it is but like a Man, who having been beaten pub- iickly, in the Chamber calls him who did it Rogue. Mr. Hamfd. I defire that the Words (Lavp of the Land) may be left out, and the V/ords ( Law of Parliament., or, Vfa age of Parliament) put inftead of them for it hath been {hewed us, that there are feveral ways of Impeachment befides Common- Law. I 4 Isiv.Vaugh. ( 120 ) Mr, Thofe Words were pur-r- pofely put in, becaufe at the free Confe-r rence, when we prefled the Larp of TarlU- mems^ the Lords prefled the Livm of the Land by way of Negative, as if the Lavo of the Land were otherwife, but rather than that fhall be any obftruftion, put it hy Law. Mr. Stew. Leave obt the Words (hy Law) for if a Man be fecured, it is Iinplyed by them who do Commit that it is according to Law. Then it being Moved to draw both Votes in one. Sir Tho. Lift. Tho' you fliould put both Votes into one. It will not Anfwer your end, for the Lords will not Concur with the firft Part, and yet may inakt; ufe of what Fart you grant of it, that is the lall, and fo have advantage againft you ; but there is another Reafon, why you Ihould forbear thefe Votes, Namely, Priidtnce. The Earl of Clarendon being gone, there is an expedation that a Bill fliould be prepa- red to do fomething farther, wherein I hope toth Hbufes will Join; if you fend up this, you will give diEurbance to that Bill, and if you fliould enter this in your Books, in Order to fend it up hereafter, they will bear of it, as done to make them fwallow ( lil ) their former Refohes. Therefore defer it for the prefent. Mr. Trev. Confider whether the Matter betwixt you and the Lords is not well as it is : You have Voted, That when a Man is generally Impeached, he ought to be fecu- red, and that the Lords not having done it, is an obftruftion to Juftice ^ and what will it fignifie to carry it to the Lords ? vyhat hath llnce fal'n out, juftifies you, and lays the difadvantage upon the Lords: The World expeAs now what you will do farther, and that mull be by Concurring with the Lords. Sir Tho. Clijf. We all agree to thele Votes,in Order.to jullifieyour Rights^ but what is the ufe of it ? You have already done it in your Books, and you cannot ex- ped the Lords ihould go fo much again ft their own Votes, this therefore will but widen the Gap, it being telling them they muft eat their words. Sir The. Lift. Thofe, who have had a hand in the Charge againft the Earl of Cln- retidon^ have been thought fometimes too Violent, fometimes too Remifs, as not a- ble to make out the Charge : But what I fpeak now, is for your Honour, which will be wrong'd in this Proceeding ^ I am for bringing th^ Impeachment to fomething C 1^2, ) and therefore againft thefe Votes: Now you make a Declaration of your own Rights, and Enter it upon your Books, that not only the Vote may appear, but the Ground of it, but not to declare to the Lords, which will beget an Anfwer and ex- afperate. It isnow unfeafonable to make the Lords retrad:,therefore lay it afide ^ for tho' I am confident that Gentleman did it to no fiich end, yet if I would Defign any Thing to the Earl of Clarendon's advan- tage, I could not take a better way than this. Mr.F'ano'j. This is but the affirming all which hathbeendone already, and I am for noneof thofe, who are contriving for any Thing out of the Houfe. Siv Will. Covent. This Queftion is not now fearonable,tho' it is a better expedient than the Declaration as Things now ftand, and coniidcring what hath paft, I am apt to think the Lords may do it of their own accord, and you would not willingly have a Negative to your Votes. Therefore fee- ing your Votes may be of ufe hereafter, put no Qiiellion at all, but adjou rn the De- bate to a proper Seafon. M.r:. fCangh. lamagainfl the Adjourning of it, and have given Teftimony, that I have done nothing to be thought to do that which C 12.3 ) which is fo much for the advantage of the Earl of Clarendon, and lhall take heed of doing any Thing hereafter to be fo re- fiefted on. Sir Tho. Lin. I hope I avoided any fuch Refleftionnor fpeak any Thing to fuch purpofe, I do not beleive, nor ever did think any fuch Thing, and hope that Gen- tleman himfelf believes that ho Man in this Houfe hath more Honour for him than I, Sir Job Charle. Let the World iec that you do not intend to reftrain your proceedings to the Earl of Clarendon, but make it a general Care •, and therefore are concerned in Honour to put the Qiieltion. Refolved upon the QHeJlion. That the Queflion be fut, Relblved, That both the Qjtefiions propoHn- dedby M^. Vaugh. and put Jingly in the Af- firmathe, be carryed up to the Lords. December, 13. A Bill was brought from the Lords, to Banilh the Earl of Clarendon, and read. After reading, feveral Objeftions being made, and it being Alledged, that it was an abufe put upon the Commons by the Lords, and C IM J and that a Bill of Attainder being pro^ pounded, after fome Debate, the ^ou/e pafs'd this Vote. Refolved, iTjat this Houfc taking notice of the flight of the Earl of Clarendon, being under an Impeachment of High Ereafon by this Hoafe y the Kin£s Aiajefiy be humbly deflred to Ijfue out his Proclamation for Summoning the faid Earl to appear by a Day^ and to apprehend him in Order to his Tryal. Relblved, To fend to the Lords for their Concurrence to this Tote. December^ 14. A Mellage from the Lords for a Confe^ rence, at which they delivered two Rea- Ions, why they could not Concur. 1. Eirftffor that they conceivea'ProclamatT on in the way propofed, would be inejfeElual^ jince it is not fupana Convidionis, which cannot be till particulars in Order to Tryal be declared. 2. Thaty what the Houfe of Commons hath propofedy and do propofe at prefenty is intended in Order to a judicial way of Pro- ceeding y but flnce the Earl of Clarendon'j" Flight y their Lordfkips upon Confiderati- on of the whole State of .Afldirsy and of the Kingdomy have upon Grounds of Prudence and Jufticey C ) Jufiice, thought fit for fecuring of Kin? an4 Kingdom^ to proceed in a Legifiative way a- gainfi the [aid Earf and haue to that end^ pafi and fent down to them a Bill of Banijh- ment and Incapacity againfl him^ with which this Vote is inconfiflent. December^ i6. The faid Reafons from the Lord being Reported and Confidered, and it being Moved that the Houfe would declare them- felve unfatisfied with. them. -Sir Tho. Clif. I am againfl: pafling a Vote at prcfent upon the Lords Reafons, but read the Bill fent down from thence, and Summons him by it to appear by a Day. Mr. Trev, Some are againfl: the Bill, be- caufe it goes too far. Condemning before Hearing, others would have it to go far- ther. Summons is in Order to Hearing, Tryal, and Judgment \ of thofe he hath made himfelf incapable by Flight, and hath in his Paper told you. That he will nei^ ther be heard^ nor tryed by you: Tho' you expeAed to have hira fecured by a gene- ral Accufation, yet you never expefted Judgment upon it. Then it is laid. This Banifinment falls fljort of Treafon^ but we arc- nottopafs Sentence for Crimes but as a Council propound to the King what is ne- cellary in this Cale; Then confider whether ( la6 ) this Bill will Anfwer our Ends, and if it doth, delay will make it worfe ^ I think we Ihould make it reach them. What if he hath Life in other Parts, his Family Untainted, and his Children alive, and en- joy his Eftate? Sir Rob. Carr. You have Ordered to con- fider the Reafons from the Lords, there- fore do it. Mr. Hen. Covent. The Motion to read the Bill is not againll your Order, becaufe part of the Reafons given by the Lords is. That you have a Bill., and till you have read the Bill., you cannot lay by the Reafons. The Earl of Clarendon is fled, you have a tye upon him in having his Innocent Re- lations, and by Proceeding farther, you make him defperate, you are now in an even way with the Lords ; therefore read the Bill. Mr. Swinf. You may go upon the Rea- fons, and yet not rejed: the Bill •, for when you fent to the Lords about a Proclama- tion, and went not upon the Bill, it was, becaufe what the Bill drives at is the highefl: Punifliment next to Death. There- fore Confider what weight is in the Rea- fons *, One of them feeming to put you upon the Bill, they put you thereupon on a Legillative Way ^ they will neither Secure nor C 12.7) nor Summon him, but will Condemn him Unheard. They cannot Secure him upon a Charge of Treafon, nor yet Summon him, but they can Condemn him ^ and this they put you upon, which is againft Ho- nour and Juftice, efpecially to do it up on Reafon of State. The Legiflative Power of Parliaments is great, it hath no bound but the Integrity and Juftice of Parlia- ments. If Reafon of State be a Motive of Parliament to Banilh one Man, fo it may be for many. If you go in this Le- giflative way, you bring upon your felves all the Difhonourof theBufinefs, but the Lords will have fome excufe, which you cannot, for they look'd upon the Charge fo flight, as not to Imprifon him ; the party is gone, becaufe he was not Seai- red, apprehending ( he faith ) fear of the Multitude, not of his Tryal, fo that the Lords not giving Credit to your Charge againft him, he fays, he fiiesnot frcm juflke. Now, if upon this Bill you ihall Banilh him, it would be faid you could not make good the Charge; and therefore laid this Sentence upon him. The Prefident is alfo dangerous, if ha- ving gone fo far in a Judicial Way, ,yon ftiould now go in 'a Legiflative. If upon Reafon of State Lords may be Banilhed, it may be by dozens : As you proceed Juftly, fo you will be Juftified. Nor ( iz8 ) Nor is the Danger greater if the Lords bid go by Proclamation, and he be put into Uf Cuflody when he comes, if he can praftice any Thing, will not he be lefs capable A when under the Proclamation, than when Nan this Bill is Pafled, which Condemns him iftl without Hearing, and I am not for any vvbii Punifhment till Heard. In Cromrve//s Cafe, of who Moved in VIII. time^ to Attaint Com a Lord Unheard, the Judges declared they ties, might, and it would ftand, afterward the conif faid Cromwell was Attainted and Condem- you ned Unheard, and fuch Councel ulually KtC falls upon thofe that Councell'd it.- fcE , , to Sir Rob. Ho-Wt The Earl of Clarendon faitb^ Cojf That he doth not mthdraw from your Ju- Jllce^ but fear of Tumults ^ bllt that Reafbn any Man may give for his flying, "if it jij- will be an excufe; but he might have fe- cured himfelf from Tumults by rendring himfelf, and his Innocency upon his Tryal would have cleared him. This at lafl; may come to a free Conference, then you may be left to go along with the King y the fnij Houfe rifeth and doth nothing, and then tee; the World will fee that this Bufinefs will jn, allure the King of Francey That he hath p^g a Man with him fo Great, as to hin- der us from doing any Thing againll ^ him: Therefore as you ought to do fomething againll him, fee whether it may not be done by the Bill by refuming his C iip ) his Lands, if he come not in by a Day. An Exception may be againft this way,- Namely, That there is no Attainder, but if there had been fuch a Bill, the Thing which fhould fway me fhould be the Duke of TorKs Marriage ; So, that if you Commit this Bill, you may add all Severi^ ties, except that of Attainder, and if he come by a Day, then all to be void. If you go by Proclamation, the Lords may not Concur and you loofe your Ends. By this Bill all favour that he can expeft is fhewed, and this way will be the bell: Confutation of the Lords Reafons ^ there- fore Commit the Bill. Mr^ Secretary Morri I am for Committing the Bill, tho' it be condemning Unheard •, becaufe he could not but conclude it would be fo. Et volenti non fit Jnjuriai RiciTemp You have proceeded againil: this Earl in all ordinary ways, and have been baffled by the Lords. In Edward the Third's Reign, Adam de Berry fled, and a Proclamation went againft him, and the Commons neither did, nor ever were bound to deliver their Articles till the Party appeared, and in that Cafe they delivered not their Articles till the laft Day, when K ht ( no ) he not appearing was Convifted. When you would go by Attainder, they tell you. Deliver fpecial Matter,and we will Summon himj when you ask a Proclamation,they tell you. Deliver Ipecial Matter : If you declare the Matter to the Court, it is upon Re- cord, and all may know it. You have tryed all ways Legal and Regular, and they will do you Juftice in neither. Now what can you do ? except you and the Lords combine in Juftice together, he muft efcape, and if you can be made to differ, he goes away in a Smoak. If you go to the King for a Proclamation, you muft return to the Lords for Juftice. I am forry the Ivey hath been fo near the that you cannot touch it, without touching that. There remains a Bill before you, and in that you are upon equal Terms with the Lords ^ therefore give him a Day to be Heard, and if he come, let him, but then his Penalties are too low for his Crimes ^ therefore read the Bill, go higher, degrade him of Ho- nours. Forfeit his Lands, and whether you will go fo far, 1 leave with you. Mr. 5*io t-i'i V \;,\ » rnv(T,VK.iii\\ iT.V'i iaV* '.-tilH -^^'A M K 'x'-^ \(!i Vvb ,u-.\v ,f.V-S> -iA «r»\\ wn^ j^v'^A^'in .'iWU'iC vlf/[ •JOM J.01ZI.M . . .•. •-. ■■ > ■ L <■ si/; r in; 77;^ 0/ Briftol having Ex- bibited againji the Lord Charr cellour, Articles of High- Treafon, and other Mi We- mcanours. This Order was made by the Houfe of Peers. DieVeneris^ 10 July, 1563. ORDERED^ by the Lords Spiritu- al and Temporal in Parliament Aflembled, That a Copy of the Articles or Charge of High- Treafort Exhibited this Day by the Earl of Brifiol^ again'll the "Lord Chatjcellour^ be delivered to the Lord Chief-J^iftice ^ whOj with all the reft of the Judges are to con- llder whether the faid Charge hath been brought in regularly and" legally, and whether it' may be proceeded in, and how, and whether there be any Treafon in it or no, and make Report thereof to this Houfe on Monday next if they can, or elfe as foon after as polTibly they may. Whereupon, all the Judges met at Ser- jeams- ^■WiWIWpiiy ( 154 ) jcKuts-Ittn in Fleet-flreet^zxi'^ my Lord of BrifioL repaired to us thither, dellring to fee the Order, which being Read, he told us he came out of refpeft to know of us whe- ther we were informed how it came in- to the Houfe of Peers^ whether as a Charge or not i but one of the Judges, who had been prefent when it was delivered in, faying, roe were tied up by our Order^ his Lordfhip took fome exception at the'man- ner of his Expreflion, as if his Lordfhips Addrefs was unneceflary at that time, anb taking it as a rebuke unto him, went away •, but according to our Order, which fuppofed it to be a Charge of High-Trea- fon^ and not mentioning Mifdemeanour, we did upon Confideration unanimoufly agree upon this enfuing ^yipfr, which on Mon- duy the 13 th of Julyy the Lord Chief-Jufiiu Fofier did deliver in, viz.. We conceive th^t a Charge of High-Trea- fon cannot by the leaves and Statutes of this Realm be originally Exhibited iy one Peer againfi another unto the Houfe of Peers, and that therefore a Charge of High-Trea- Ibn by the Earl of Briftol againfi the Eord Chancellour, mentioned in the Order of Re<- ference to m of the loth of this Infiant Julj, hath not been regularly and legally breuglrtt in., and if the Matters alledged in the faid Charge., were admitted to be .true^ althoi* be traiteroujly done, yet there i$ no Treafoa in it. Which rx C 1^5 ) Which w^fiver being given in, the Earl of Brifiol took feme exceptions at it, and ibme of the Lords inferred thence, that if it were Irregularly and lllegaUy brought in, it was a Libel ^ btit we iatisfied them that it was not under Conlideration of us, whether it came in as an Information or Charge our Order required us to give jinfiver to it as a Charge. Sfcondly, We did not meddle with any thing concerning acculing him of Mifde- meanour^ for GUI" Order reached only to Treafon. Thirdly^ It did not follow that if this Charge were Irregular, or Illegal, that therefore he was Criminal: There might be Prelidents to give Colour to fuch kind of Proceedings, for which, till it be de- dared or known that they are Illegal, they are Titular, and ought not to be pu- nifhed. But it was much infifted on, That wc ihould deliver the Reafon of our Opini- ons, the Lord of Brijtol and his Friends feeming uniatisfied. We Reflyedy That it was never known, that when the Jullices to whom Qjieflions were referred from Parliament had una- nimoufly agreed in their Opinions, that Reafons were required from them. Yet, notwithftanding, it being the defire of the " Lords. C 15^ ) Lords after feme things premifed, and a defire that this fliould not be drawn into an Example, (which the Lords af- fented unto as I took it, for no Order was entred concerning it, there being no Order as I think for delivering our Rea- fons entred ) and it was agreed amongft us, that no Note Ihould be reduced, leafb we might be required to deliver our Rea- fons in writing, nor had I time to digeit it in writing, having only Monday Night after Conference with my Brethren to think upon it, I did on the next 7 Mjday^ being the 14th oijuly^ deliver the Reafons of all the Judges, of their Opinions, by their Confents. To the firft Point, That a Charge of High-Treafon cannot originally be Exhibited by one Peer againfi another unto the Hanfe of Peers^ the Emphalis of the word originally was Ihewed. For Firfij an Indidment of Treafon a- gainft a Peer -may be removed up to the Lords Houfe to be tryed, as it was in the 31 H.6. in the Earl of Devonjhirh Cafe, but a Steward was then to be made. Secondly^ If an Impeachment came from the Houfe of Commons unto the Lords Houfe, we did not take upon us the Confidera- tion, whether this could be proceeded in or not, for it was not the Cafe to which we were required to give Anfwer. We C 1^7 ) We Replyed^ Upon the Statute i H. Chap. 14. which recits the many great Inconveniencies and Mifchiefs by Appeals, and provides that all Appeals of Things within the Realm, lhall be Tryed and De- termined by the good Laws of the Realm made and iifed in the time of the King's noble Progenitors, and Appeals of Things out of the Realm before the Conftable and Marfhal; But We relyed upon the Claufe enfuing, and thereupon it is accor- ded and aHented, That no Appeals be from thenceforth made, or in any wife purfued in Parliament in time to come. I Ihewed Appeals in this Statute, and Ac- cufations by fingle Perfons were one and the fame Thing, and that this Statute reached to all Appeals, Charges, Accufa- tions or Impeachments delivered in, in Parliament, whereupon the Perfon Ac- cufed was to be put to his ^nfwer., and that they were but feveral Names of the fame Thing, I Ihewed firft Hiftorically, that the Appeals the iii?. 2. and 21 R. 2. were but Accufations by thofe Lords of Felons againlt the other, and differed from the Cafe of the Duke of Hereford and Norfolk., which was to be tryed as 21 R. 2. PI. Cor. laParl. No. 19. is by the Courfe of the Civil Law, and thereupon Batle was waged. That tho' it concerned PP. 4. in Interell to confirm the 11 2. and Repeal , C 158 ) Rcpell the 21 2. he being Appellant in the former, yet he faW the Mifchief fo great, that he himfelf made Provilion againll them for the time to come j and indeed, the Mifchief was lb great, that it ceaiM not after the deftruaion of ma- ny Lords and Families (there being lex talionis in that ufed towards moft of thofe Appellants in the 11 R. 2.) till it tumbled King R^ 2. Firlt out of his Throne, and then into his Grave. That there were but two Ibrts of Pro- ceedings in Capitaltbus^ the Suit of the Party which was called an Appeal, or the Suit of the King, who ought to proceed by IndiAment, and fo to Tryal by vertue Or Magna Charta. Nec fuper earn ihimiu^ &:c. and that, in an Appeal, being the Suit of the Party, there was no Preroga- tive of appearance if it were an Appeal at the Common-Law, 10 Ed. 4. Lord Gray\ Cafe. That an Appeal was taken in our Law-Books frequently for an accufa- tion by the Party, I fcited Wefim. the 1/, Cap. 14. where the words Appeal reaches to Indidment. And 9 Coo^, 119. Lord Zartchar's Cafe, that an Appeal of two iignifications, one general and fre- quent in our Books for an Accufation, and Stamford., 142. In Cafe of an Appro- ver, the Felon after Confeffion may Ap- peal, that is, (Ihith he) accufe others, Coad- jutors C 159 ) jufbrs with him to do the Felony, CC 189. Appellant, cometh from the Frenth word ^pfcUer, which fignifies to accufe, or peach, and C C, 287. Appel fignifieth an- ^ccHjation ■, and therefore to Appeal » Man is as much as to accule, and in an- cient Books : that doth Appeal a- Man- is called accufator, vide 9 Ed. 2. Articuli Cleri, Cap. 16. That I hnew no rcalbn why in thofe tumbling Times of R. 2. ( which caufed this Statute, for the Sta- tute-Roll is c6mant ad aiucrmam efh us en temps la darren Roy, R. 2.) They Ihould proceed by way of Appeal, but becaufe they were then allowed at the Suit of the Party, to accule any other of trea^ ffon, but at the King's Suit there ought to be an Indidment, and an Indidment could not be found but by Jury. That in all other Cafes, an Appeal Was to be brought by the Party concerned, the Wife or Heir, or Party Robbed, c^c. But in Cafe of Treafon, any Man may Appeal another, and therefore in all reafon it mull be underftood of an Accufation, and any Man might accufe another of Trca- fan-, and if it can be proved by Witnefr fes, it muft not be Tryed by Battle, as other Appeals may. I concluded that the 8 H. 6. No. 38. this Statute, the 1 H. 4. ffap. 14. is recited, and defired it Ihould he duely kept and put in Executioji, which was C i6o ) was granted, that Stamford 78. See PL Cor. 31.132. agree that Appeals of High- Treafons were not commonly ufed to be Sued in Parliament, till the i H. 4. Cap - 14. Since which time this manner of Ap- peal hath gone out of ufe j and I laid, I had fearched many Prelidents, and tho' of late, there may be a Prefident ( as it was of the Earl of Brifiols Father againll the Duke of Buckingham.^ of feme kind of Impeachment) yet I did confidently be- lieve there was not iince that Statute, I H. 4. Cap 14. any one Prefident of fuch an Impeachment at the Party-Suit where- upon there was any IndiAment; In truth in the Earl of BrifioLs Cafe, the Common'% Houfe did Impeach the Duke of Treafon.^ and fo the Earl of BrifioPs Impeachment proceeded not. For the Second Point, TW there was no Treafon in the Charge., tho' the Mat- ters in it are alledged to he Traiteroufy done. I laid we had perufed each Arti- cle feriatim, and we had found no Trea- fon in them, the great Charge, which is endeavoured to be proved by many Par- ticulars, was. That he did Traiteroujly, and Malicioujly, to bring the King into Con- temp, and with an intent to Alien the Peo- pies AjfcPlions from him, fay, &(. fuch and fuch words, &c. And And fb it runs on, That in purfuance of the TraiteroHs Intent^ &c. he did, &c. and that in farther purfuance of the faid TraiteroHs De/ign, &c. And in like man- ner was moll of the Articels upon which the Charafters of Treajon feemed to be fixed. I laid that it is a tranfcendant Milprifion or Offence to endeavour to bring the King into Contempt, or to endea- voUr to Alienate the Peoples AffeAions froitl him, but yet it was not Tredfon. This Statute, 13 Car. 2. Caf. i. makes Treafcn during the King's Life; But if a Man Calls the King Herctich., or or that he endeavours to introduce Popery^ ( which is more in exprefs Terms than the Ar- tide of that kind infinuates) or by Words, Preaching, Prayer, to ffir up the Peopfe to hatred or diflike of the PeiTon of His Majefty, or the Eftabliffied Government ^ the Penalty is only Difability to enjoy any Place Ecclefiaflical, Civil, or Milita^ ry, and fubjeA to fuch Penalties as by the Common-Law or Statute of this Realm may be infliAed in fuch Cafe, ( which is Fine and Ranfom, with Imprifonment) and it limits a time and manner of Pro^ fecution. There was an Objettloh made yefterday upon the 25 £. 3. That this being in Par- liament, the King and Parliament had Power to declare Treafof/, and then we M ought () ought to have delivered our Opinions with a qualification, unlefs it be declared Treafon by Parliament where this Charge is depending ^ to this I Jn[wer''d. I. 'Tis not Treafon in prafenti^ and if fuch a Declaration fliould be non confiaty whether it would relate to the time paft ? Secondly^ That I conceived that the Sta- tute as touching that Declaratory Power^ extended but to fuch Cafes as were clearly Felony^ as Single Adls, if not Treafon. (the words being) Whether It be Treafon or o- ther Felony^ but in refpeA of the doubts of Efcheats., which, if Treafon^ belonged to the King, if Felony., to^the Lords of the Fee., it was left to the Parliament. I did not fay we Refolved the Point. Thirdly, That admitting the Declarato- ry Power did extend to other Cafes than fuch as w^re before the Judges, and was not taken away by i M. Cap. or any o- ther Statute, -yet I read my Lord Cooks Opinion at large, PI. Cor. Fol. 22. That this Declaration muft be .by the King, Lords and Commons, ancf^y any two of them alone •, and we were now in a ju- dicial way before the Floufe of Peers on- ly ■, and I did affirm as clear Law, that by this judicial way no Treafon could be declared nor adjudged, but as were ex- prefly within the Letter of the 25 T. 3. and faid, That Statute 25 E. 3. was a fecond () lecond Magna Chartaj and that their An- cellors thought it their greateft Security to narrow, and not to enlarge Treafo'j, and Cited i H.a^.Cn^. lo. to which in the Parliament Roll is added Rot. No. 17. (it coming of the King's Free-grace) That the Lords did much rejoyce and humbly thank the King : And i read the Statute i M. Cap. I. That the now Earl of Briflol in my Lord of Sr^or^s Cafe, was the great Af- lertor of the Law againft Conftrudive and Accumulative Treafin., which if ad- mitted, their Lordfhips could better fug- geft unto themfelves, than I cxpreft, how' great a Door they would let open to other Inconveniencies and Mifchiefs to the Peerage. I concluded with reading the Ad, i^Car. z. for Reverfing the Attainder of the Earl of Strafford-., the firft part whereof I read to them, wherein is ex- prelfed. That they who Condemned him, did purpofely make an Ad of Parlia- ment to Condemn him upon an Accu- mulative Tretfon, none of the pretended Crimes being Treafon a-part, and fo could not be in the whole, if they had been proved. After I had fpoken to this effed, the Earl of Bristol ikemed to acquiefs, info- much as concerned our Opinions as the M 2 Cafe xsr".* f 164) Cafe was delivered to us, but it being to be put to the Qjiefiion^ whether the Lords did Concur with the Judges Opinions, and himfelf being concerned in the Ilia- tive, that therefore the Charge was Ille- gal and Irregular ^ yet not being inten- ded by him, as he faid, as a Charge, but an Information he delired (tho' as the Cafe was put to us, it was a good In- ference ) that the Voting of that might bs.fpared till it wzs Refohedhy the Lords whether he delivered it in as a Charge, or only as an Information for the Mat- ter of the Charge if it Ihould be thought lit for their Lordlhips to proceed in "it: After fome Debate upon the QHeftion^ the l.ords Refoived the fame Day according to our Opinions. That a Charge of Hlgh-rTreafon cannot by the Laws and Statutes of this Realm be originally Exhibited by one Peer againfl; another, unto the Houfe of Peers. Secondly., That in thefe Articles, if the " Matters alledged in them were admitted to be true, there is no Treafon in them, ' and becaufe the Lords unanimoufly Conr cnrred in them, t my Lord of BriHol freely as as any other) it was by order e irred, that thefe Votes were ATmfw tradii £Kie,\ ^ NotCj C^^s) Note, That in Judge Hattom Rtportsl Fol. the Refolution of the Judges is ex- prefled to be. That a Peer cannot be Im- peached but by IndiAment, and 'Mt.RHjh- ■worth in his ColleAions, Fol, 272. expref- fes fuch an Opinion to be delivered by the Judges in i-or 2 Car. but upon fearch it was found to be entred in the Journal of Parliament of that time, but it was cautions referring' to the Common-Law only. But that, for Proceedings in Parli- taraent, did not belong to them to De- termine, or to that effed ^ but no mention of 1 H. 4. Caf. 14. It hath been credibly reported that fome of the Judges in my Lord of StrafforcFs Cafe, being asked fome Quellions, did with the like Caution de- liver their Opinions, and did fpeak with Refervaions, (as the Cafe is put) tho' they upon Hearing, did know the Cafe mif- put^ which, after, troubled the Confcience of one of them, (at aadivi) being a grave learned Man. Fide Peacocks Cafe, Cook Fol. But we, having the Cafe referred to us in Parliament upon Articles Exhi- bited in Parliament, did Refolve to deliver our Opinions without any fuch Referva- tion ^ and the Aft of i H. 4. being expreft againfl; Appeals in Parliament, (and of Afts of Parliaments after they are once made, none under the King, and without him are Interpreters but the Judges. See Kings jinfwer Printed^ in the old Print of 3 Car. I. ( ) 3 Can 3^ at the end of the Petition. ) ^nd therefore did deliver thefe Opinions which I conceive of great Benefit to the Lords themfelves, and a juft ground for far- ther enquiry to be made, whether fuch Impeachments may be in the Honfe of Peers fox oth&C Mifdemeanours^ without the King's leave, or being Exhibited by his Attorney. And fecoadly to take into Conllderati- on the Validity of Impeachments of Trea- fonhY the Honfe of Commons., notwithftan- ding the late Prefidents which yet ended in a Bill, and fo in the Legillative, not Judiciary Way, , F I I S.