against him from the House of Commons And the Votes of the 27 of Decemb. 1678. concerning his Lordships not being committed shall not be drawn into President for the future The Opinion of the Judges That no Prisoners indicted for any Capital Crime shall have a Copy of the Indictment without Order of the Court. That such a Prisoner cannot of right demand Copies of Information of Witness against them note that Oats and Bedlows Informations were entred into the Journal April 12. Another free Conference concerning the Earl of Danbys Bill alledging the Lords Commissions April 15. The Lords Ordered to come to the Bar to put in their Answers next morning The Lord Bellasis Answer received the same day April 16. My Lord Danby was brought to the Bar and put in his Answer and having excused himself for withdrawing and hoping to clear his Innocence made several Requests in order to his answering the Charge in making his Defence The Lords granted him a Copy of his Articles and gave him time to put in his Answer and promised him farther time to answer any new Articles and assigned him Council and gave him leave to name other Council and liberty to explain himself at his Tryal after any words by him then spoken which he apprehended might be to his prejudice and then he was committed to the Tower April 16. 1679. The other came to the Bar and put in their Answer April 21. 1679. A farther time given the Earl of Danby to put in his Answer to the 25th Instant April 24. 1679. A Conference desired by the Commons containing Objections concerning the Pleas and Answers of the four Lords and requiring my Lord Bellasis to appear personally April 25. 1679. My Lord Danbys Plea was put in The same day the Lord Bellasis put in an Answer in Person April 26. 1679. Lord Powis Lord Stafford Lord Arundell put in their further Answers April 28. 1679. The Commons desired the Earl of Danby may be sent for to the Bar to know whether he will rely upon and abide by the Plea of his Pardon April 29. 1679. The Earl of Danby being brought to the Bar said the Question was new to him and of great importance and he knew not how to answer at present and desired further time to answer which was granted till Saturday following The same day the Indictments found by the Grand Jury against the five Lords were brought into the House May 2. 1679. It is Ordered That on Monday following the House will take into consideration whether the Lords Spiritual ought to Vote in Judicature in Cases of Blood and Bills of Attainder May 3. 1679. The Earl of Danby put in his Answer of abiding by his Plea of his Pardon The Plea I have put in was put in by the advice of my Council who tell me that my Pardon is good in Law and advise me to insist upon my Plea put in which I now do and desire that my Council may be heard to make out the validity of my Pardon Ordered Serjeant Barrell and Mr. Polluxfein may be added to the Earl of Danby his Council May 5. 1679. The House of Commons sent up to demand Judgment against the Earl of Danby Post Meridiem Ordered That the House will take into consideration whether the Lords Spiritual are to give their Votes in Judicature of Blood and Bills of Attainder as a Preliminary to the consideration of the Demand of the Speaker of the House of Commons concerning the Earl of Danby May 6. 1679. The Commons send up their Message that they will and are ready to make good their Articles in Charge against the five Lords upon which they were ordered to be brought to their Tryal that day seven-night Ordered That Saturday following be appointed for hearing the Earl of Danby to make good his Plea May 8. 1679. Upon Reading the Petition of Thomas Earl of Danby praying that the Order of this House of the sixth Instant made in his Case which he suggested to be defective as to the assistance of his Council in defence of his Plea may be explained It is Ordered by the Lords Spiritual and Temporal in Parliament assembled That the Council of the said Earl of Danby are to attend with him and be heard in his Defence Post Meridiem A Conference desired for a Committee of both Houses concerning the Tryal of the five Lords and the Earl of Danby Vide Journal House of Commons To adjust the Proceedings in Order to the Tryals of the Lords May 9. 1679. An Answer to the Conference Vide Journals House of Commons Several Orders touching the Order of the Lords going to Westminster-Hall and bringing the Earl of Danby to the Bar and for keeping distinct Seals for the Members of the House of Commons May 10. 1679. Upon Reading the Petition of the Earl of Danby shewing that he is now attending according to their Lordships Order and expecting to have met his Council assigned by their Lordships for the Defence of his Plea That he hath received a Message from every one of them that they dare not appear to argue for him by reason of a Vote of the House of Commons passed yesterday whereby the Petitioner is destitute of all Council and is thereby totally disabled of making his legal Defence therefore prayeth relief and directions therein Ordered That the Petition be communicated to the House of Commons at a Conference to know of them whether they have made any such Vote Another Conference desired by the Commons upon the Subject matter of the last Conference Vide Journal of the House of Commons After which the Question being put whether a Committee of that 〈…〉 â—hould be appointed to meet with a Committee of the House of Commons to confer about 〈…〉 â—â—ods and Forms of proceedings in Order to the tryal of the Lords It was resolved in the 〈…〉 â—ssentientibus fifty May 10. 1679. An Order that there shall be a free Conference had 〈…〉 the Commons concerning the Forms and Methods of proceedings to be had at the Tryal of the 〈◊〉 in the Tower Ordered that the Managers of the free Conference are not to enter â—â—o any dispute about Judicature May 11. 1679. The Report from that free Conference was that the Lords asked the Commons what those Forms and Methods were in reference to the tryals of the Lords in the Tower which they desire to confer about At which the Comons say they were not instructed to discourse because they expected this free Conference was concerning a Committee of both Houses touching which their Lordships had given them yet no denyal Therefore the Commons said they must resort to their House for directions herein Another free Conference desired by the Commons whereupon it was ordered that a Committee of that House be appointed to meet with a Committee of the House of Commons to consider of Propsitions and Circumstances in reference to the tryal of the Lords in the Tower May 12. 1679. From the Committee of both
sealed Whereupon the Person that usually carried the Purse offered to seal it my Lord Chancellor said that at the very time of affixing the Seal to the Parchment he did not look upon himself to have the Custody of the Seal And concluded that he took upon himself to know that there was no Memorial in any Office whatsoever of this Pardon from the Secretaries Office until it came to his Lordship But that it was a stampt Pardon by Creation Resolved That a Message be sent unto the Lords to demand Justice in the Name of the Commons of England against Thomas Earl of Danby And that he may be immediately Sequestred from Parliament and committed to Safe Custody Resolved That an humble Address be made to his Majesty representing the Irregularity and Illegality of the Pardon mentioned by his Majesty to be granted to the Earl of Danby and the dangerous Consequence of granting Pardons to any Persons that lye under an Impeachment of the Commons of England And it is referred to a Committee to prepare and draw up the same The Lords sent a Message viz. Mr. Speaker WE are commanded by the Lords to let the House of Commons know That the Lords taking into Consideration the Message received from the House of Commons on Saturday that the Earl of Danby might be sequestred from Parliament and put into safe Custody did this morning upon Debate order That the Gentleman Usher of the black Rod do forthwith take the said Earl into Custody and him safely keep till be bring him to the Bar of their House to morrow morning And their Lordships thought fit to acquaint the House of Commons That this was done before they received their last Message to that Purpose 25 March 79. A Message sent from the Lords viz. Mr. Speaker We are commanded by the Lords to acquaint the House that they sent to apprehend Thomas Earl of Danby both to his House here in Town and to his house at Wimbleton And that the Gentleman usher of the Black Rod had returned their Lordships Answer that he could not be found Ordered That a Bill be brought in to summon Thomas Earl of Danby to render himself to Justice by a Day to be therein limited or in Default thereof to attaint him and a Committee is appointed to draw up the same 26 March 79. A Bill to Summon Thomas Earl of Danby to render himself to Justice by a certain Day or in Default thereof to be attainted Was read the first time 27 March 79. A Message from the Lords viz. Mr. Speaker The Lords have past a Bill intituled an Act for banishing and disabling Thomas Earl of Danby to which they desire the Concurrence of this House A Bill to Summon Thomas Earl of Danby to render himself to Justice or in default thereof to Attaint him was read the first time Resolved That the said Bill be committed and the Committee to bring in a Clause for discovery of all Trusts relating to the Earl of Danby and that he may be made incapable of receiving any Pardon but by Act of Parliament wherein he shall be particularly named An engrossed Bill sent from the Lords entituled an Act for banishing and disabling Thomas Earl of Danby was read the second time Resolved That the Bill be rejected April 79. A Bill for summoning Thomas Earl of Danby to render himself to Justice by a certain Day or in default thereof to attaint him of High Treason Was read the third time Resolved That the Bill do pass and Sir Robert Peyton to carry up the Bill to the Lords for their Concurrence April 4. 79. The Lords desire a Present Conference concerning the Bill sent up against Thomas Earl of Danby Sir Francis Winnington Reports from the Conference That the Lord Privy Seal said at the said Conference to this Effect That the Lords chose to deliver back this Bill by Conference rather than by Message to preserve a good Understanding and prevent Debate or Controversie between the two Houses The Lords observe that the great Affairs of this Nation are at a Stand at a time of the greatest Danger and Difficulty that this Kingdom ever laboured under That the King hath alwayes in his Reign inclined to Mercy and Clemency to all his Subjects Therefore to a King so merciful and compassionate the first Interruption of his Clemency they did desire should not proceed from the two Houses pressing the King to an Act of the greatest Security Therefore have passed the Bill with some Amendments which he delivered Resolved That an humble Address be made to his Majesty to Issue out his Royal Proclamation for the apprehending of Thomas Earle of Danby with the usual Penalties upon such as shall Conceal him And that his Majesty would be further pleased to give order to the Officers of his Majesties Houshold that they take care that the said Earle of Danby be not permitted to reside within any of his Majesties Pallaces of Whitehal Somerset-House or St. James's And a Committee is ordered to draw up the same Apr. 7. 79. The House considered of the Amendments made by the Lords to the Bill of Attainder of Thomas Earle of Danby The Second Third and Fifth Amendments were agreed to The First Fourth Sixth Seventh Disagreed to And a Conference thereupon ordered with the Lords Apr. 8. 79. Mr. Powle Reports the Reasons why the Commons disagreed to the Lords Amendments which are as followeth The Addition to the Title doth shew that the Amendments made by your Lordships to the Bill do wholly alter the Nature of it and from a Bill of Attainder have converted it into a Bill of Banishment which the Commons cannot consent to for these Reason 1. That Banishment is not the Legal Judgment in case of high Treason And the Earle of Danby being Impeacht by the Commons of high Treason and fled from Justice hath thereby confest the Charge and therefore ought to have the Judgment of high Treason for his Punishment 2. That Banishment being not the Punishment the Law inflicts upon those Crimes The Earle of Danby might make use of this Remission of his Sentence as an Argument That either the Commons were distrustful of their Proofs against him or else that the Crimes are not in themselves of so high a Nature as Treason 3. That the Example of this would be an Encouragement to all Persons that should be hereafter Impeached by the Commons to withdraw themselves from Justice which they would alwaies be ready to do if not prevented by a Commitment upon their Impeachment and thereby hope to obtain a more favourable Sentence in a Legislative way than your Lordships would be obliged to pass upon them in your judicial Capacity The Amendments being all in order to those alterations the Commons do not agree to them for the former Reasons A Conferrence desired of the Lords upon the Amendments made by them to the Bill of Attainder of the Earl of Danby 8. Apr. Post Meridiem The Lords desire a Conference
and ordered that he should have a Copy of the Articles to which he was appointed to bring in his Answer before the third of January and that he should have Councel to assist him It is also referred to the said Lords Committees for Priviledges to consider of the state of the Impeachments of the late horrid Conspiracy and all the incidents relating thereunto and to report thereunto Decemb. 17. The same Order renewed after the Prorogation March 18. The Committee reports their Opinion that the dissolution of the last Parliament doth not alter the state of Impeachments brought up by the Commons the last Parliament March 19. 1678 9 The House agrees with the Committee in that Report March 20. 1678 9. Ordered that the Earl of Danby put in his Answer in writing to the Articles of Impeachment brought up against the Earl of Danby and to desire he may be forthwith sequestred from Parliament and committed to safe custody March 22. 1678 9. After his Majesties Spâ—ech to both Houses the Lords appointed a Bill to be brought in that the Earl of Danby be made for ever uncapable of coming into his Majesties presence and of all Offices and Imployments and of receiving any Grants or Gifts from the Crown and of sitting in the House of Peers and resolved to communicate their Resolutions to the House of Commons at a Conference A Message from the House of Commons to remind them that they would immediately proceed upon the Impeachments against the Earl of Danby and cause him to be forthwith sequestred from Parliament and committed to safe custody March 24. The Bill for disabling the Earl of Danby was received then ordered that the Earl of Danby be taken into custody of the Black Rod and brought to the Bar the next morning A Message was sent from the House of Commons That they had by a Question Nemine Contradicente ordered to demand justice of the Lords that the Earl of Danby may be sequestred from Parliament and to be committed to safe custody The Lords by a Message to the Commons acquainted them That upon their first Message to this purpose they had ordered the black Rod to take him into custody and that they thought fit to acquaint the house that they had done this before their last Message to that purpose March 25. 1679. The Lords agree with the Commons in the Vote concerning the Plot carryed on by the Papists March 25. 1679. Privy Seal's Reasons for his protestations against the Bill for banishing of the Earl of Danby April the 1st The Bill of Attainder of the Earl of Danby brought up and read the first time April the 2d Read the second time April the 3d. Reported from the Committee and the house agreed with the amendments April the 4th The Bill read the third time now entituled An Act for the Attainder of Thomas Earl of Danby of High Treasons in case he shall return into or be found in any of the King's Dominions This Bill was delivered with Reasons of the Amendments at a Conference vide Journals house of Commons Barkley Hatton Le Ware Northampton Arundel Alesbury Byron Lindsey Dissentientibus April 7. 1679. Articles of Impeachment against the five Lords were brought hereupon it was ordered by the Lords Spiritual and Temporal in Parliament assembled That the Lords Committees for Priviledges do consider of the Methods and Progress of the Proceedings to be had upon the Tryals of the Lords upon the Impeachments brought up against them April 8. 1679. The Lords Committees report That the Lords now Prisoners in the Tower are to be brought to the Bar together and kneel there and then stand up and hear the Articles of the Charge against them read That the said Lords may have Councel to plead for them in matters of Law but not in matters of Fact That such Councel as the Lords shall name to the House shall have free liberty of access to their Lordships in order to their Tryals This Report was read and agreed to and the Lieutenant of the Tower ordered to bring the said Lords to the Bar of the house the next Morning A Conference desired by the Commons upon the Amendments of the said Bill vide Journals of the Commons A second Conference held the same day by the desire of the Lords vide Commons Journals April 19. 1679. Lord Powis Lord Stafford Lord Peters Lord Arundel brought to the Bar and the Articles of Impeachment read to them and being askt what they had to say for themselves they made several requests in order to their answering their charge and making their defence The House consider'd their Request and Ordered that the several Indictments found against them and my Lord Bellasis should be brought in by Certiorari And that they may have Copies of the Articles of Impeachment and time given to Answer the Impeachment to the 15th and farther time to answer to new Articles and liberty to search and take out Copies of Records and Journals and to send for Witnesses and the Council assigned them that they have named and the same Order made for my Lord Bellasis who upon Oath was reported sick and could not come A Certiorari Ordered to bring in their Indictments An Order whereby Council is assigned to the five Lords severally in order to their Defence upon their Tryal upon the Impeachment of the House of Commons whereby they are charged with High Treason And that the said Council have free access from time to time for that purpose An Order reciting it is the duty of the whole Body of Peers to attend the Tryals that therefore the Lord Chancellour to write to every Peer to attend c. April 10. Afternoon A free Conference desired upon the Matter of the last Conference Mr Edward Vaughan opens the free Conference urging and reinforcing the Reasons which they had offered at a former Conference and which the Lords at the last Conference had waved the answering of Taking notice that the Reason and Justice being for the Bill as they sent it they could not yet doubt their Lordships Concurrence in it these being their only Motives to the passing of the Law which being occasioned by the parties flight from Justice and in affront of this highest Court They hoped their Lordships who are Judges for the Kingdom and not only for themselves will follow the example of their Ancestors and proceed by Rules of Law which are to guide in passing of Acts of Parliament as well as in the ordinary course of Judicature Sir Francis Wennington spake next and urged Presidents Vide Journal Lords April 10. 1679. A free Conference had at the desire of the Commons upon the Amendments of the Bill of the Earl of Danby April 10. 1679. Ordered That an Entry be made of the Journal of this day The Vote of this House of the 23d of Decemb. 1678. concerning the Earl of Danbys not withdrawing after he had been heard in his place upon the Articles of Impeachment brought up
concerning matters in the Bill concerning the Earl of Danby which was agreed to Sr. Francis Winnington Reports from the said Conference that the Lord Huntingdon managed the said Conference which was to the Effect following The Lords have desired this Conference with the House of Commons not so much to argue and dispute as to mitigate and reconcile They have already observed that the Debates of this Bill have given too long and too great an obstrution to publick Business and therefore they desire you to believe that that is the Reason which hath chiefly prevailed with their Lordships in a matter of this Nature And upon this it is that if a way may be found to satisfie and secure the publique Fears by doing less then the Bill you have proposed the Lords do not think it advisable to insist upon the utmost and the most vigorous satisfaction to publique Justice which might be demanded To induce you to this Complyance the Lords do acknowledg that Banishment is so far from being the Legal Judgment in case of high Treason that it is not the Legal Judgment in any case whatsoever since it can never be inflicted but by the Legislative Authority But they see no reason why the Legislative Authority should always be bound to act to the utmost extent of its Power for there may be a prudential necessity sometimes of making abatements and might be of a fatal consequence if it should not be so And the Lords to remove all Jealousies of the Presidents of this kind do declare that nothing which hath been done in the Earl of Danby's case shall ever be drawn into Consequence for the time to come and will so enter it upon their Journal And thereupon their Lordships insist upon their Amendments so far as to exclude all Attainders and do promise themselves the Commons will in this Point comply with their Lordships who do again assure them that their Resolutions are grounded only upon their Tenderness and Consideration of the Publick Apr. 9. 79. Sr. Francis Winnington Reported the Conference had with the Lords touching the Amendments made by the Lords to the Bill for the Attainder of Thomas Earle of Danby to which Amendments the Commons did not agree The Commons sent a Message to the Lords to desire a free Conference upon the subject matter of the last Conference 10. Apr. 79. A free Conference was had accordingly and the Members that managed the same are ordered to draw up such Matters as are fit to be entred that passed at the said free Conference Post Meridiem The Lords desire a present free Conference upon the subject Matter of the last free Conference Sr. Francis Winnington Reports the matters of the said free Conference 12 Apr. 79. ☞ Sir Francis Winnington acquaints the House that in pursuance of their Order he had drawn up the substance of the matter that was delivered at the last free Conference with the Lords as followeth At a free Conference with the Lords the Lord Privy Seal said that the Commons might see by the present quick free Conference which the Lords desired that their Lordships did shew their willingness by using all means possible to Reconcile both Houses and to come to such an understanding as to pass the Bill with all expedition He declared that the Reasons of the Commons for passing the Bill as they Proposed were unanswerable and therefore the Lords were content to make the Bill absolute without giving the Earl of Danby any day to Appear and the Penalties to continue He observed that the Lord Impeach'd would not only by the Passing of the Bill be ruined together with his Family but likewise those Acquisitions which he got by the Marriage into a Noble Family would be lost And he Intimated that if the House of Commons would have any other Penalties added to the Bill their Lordships would leave it to the Commons so that they run not to the absolute Obstruction of the Lord Impeacht And the Lord Privy Seal took notice that all the Reason and Justice were of the Common's side yet in a Legislative Capacity they were to consider Circumstances in Relation to the Good of the Publick Upon this his Lordship said that in the Transaction of this Affair there were too great Points gained by this House of Commons The first was that Impeachments made by the Commons in one Parliament continued from Session to Session and Parliament to Parliament notwithstanding Prorogations or Dissolutions The other point was that in Cases of Impeachment upon special matter shown if the Modesty of the Party Impeach'd directs him not to withdraw the Lords admit that of Right they ought to order him to withdraw and that afterwards he must be Committed His Lordship observed that a Member of the House of Commons mentioned the Earl of Clarendon's Case but in regard that Case was general and not special matters shewn it was not like this and therefore he did not understand the Lords intended to extend the point of Withdrawing and Commitment to general Impeachments without special matter alledged for if it should be otherwise the Lords did not know how many of their Lordships might be picked out of their House of a sudden The Earl of Shaftsbury said that they were as willing to be rid of the Earl of Danby as the Commons and in the first place as to the Right of the Commons That upon Impeachments the Lord Accused ought to Withdraw and then be Committed He said their Lordships did agree it was their Right and well warranted by Precedents of former Ages And as to the distinction the Lord Privy Seal made where the Impeachments were General and when special matter was alledged He said the Lords gave no Order to make any such Distinction for that General Impeachments were not in the Case And the Duke of Monmouth and the Lord Falconbridge affirmed the same and that the Earl of Shaftsbury was in the right and delivered the true sence of the Lords He also said that the Expression which was sent with Reasons from the Lords the other day viz. That the Lords would not draw into Example the Proceedings of the Earl of Danby but would vacat them They intended that to extend only to the point of Not-Withdrawing and Not-Committing He likewise declared that the way now proposed he thought would be a means to have the Bill pass for the Commons might have other Penalties if they would as Confiscation of Estate And although they had no particular Order to mention Honours yet by the general words he thought Honours were included and if they were insisted on by the Commons he knew not but that they might be Agreed to be inserted in the Bill He desired the Commons would consider that there were weighty Reasons which were better understood than expressed that prove it necessary for the Good of the Publick that this Bill should speedily pass The Commons replyed that they hoped their Lordships did not think the Commons did