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lord_n	bill_n	house_n	read_v	15,049	5	8.0831	4	false

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

the Law of Parliaments the Lords pressed the Law of the Land by way of Negative as if the Law of the Land were otherwise but rather than that shall be any obstruction put it by Law Mr. Stew. Leave out the Words by Law for if a Man be secured it is Implyed by them who do Commit that it is according to Law Then it being Moved to draw both Votes in one Sir Tho. Litt. Tho' you should put both Votes into one It will not Answer your end for the Lords will not Concur with the first Part and yet may make use of what Part you grant of it that is the last and so have advantage against you but there is another Reason why you should forbear these Votes Namely Prudence The Earl of Clarendon being gone there is an expectation that a Bill should be prepared to do something farther wherein I hope both Houses will join if you send up this you will give disturbance to that Bill and if you should enter this in your Books in Order to send it up hereafter they will hear of it as done to make them swallow their former Resolves Therefore defer it for the present Mr. Trev. Consider whether the Matter hetwixt you and the Lords is not well as it is You have Voted That when a Man is generally Impeached he ought to be secured and that the Lords not having done it is an obstruction to Justice and what will it signifie to carry it to the Lords what hath since fal'n out justifies you and lays the disadvantage upon the Lords The World expects now what you will do farther and that must be by Concurring with the Lords Sir Tho. Cliff We all agree to these Votes in Order to justifie your Rights but what is the use of it You have already done it in your Books and you cannot expect the Lords should go so much against their own Votes this therefore will but widen the Gap it being telling them they must eat their words Sir Tho. Litt. Those who have had a hand in the charge against the Earl of Clarendon have been thought sometimes too Violent sometimes too Remiss as not able to make out the Charge But what I speak now is for your Honour which will be wrong'd in this Proceeding I am for bringing the Impeachment to something and therefore against these 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 Answer and exasperate It is now unseasonable to make the Lords retract therefore lay it aside for tho' I am confident that Gentleman did it to no such end yet if I would Design any Thing to the Earl of Clarendon's advantage I could not take a better way than this Mr. Vaugh. This is but the affirming all which hath a been done already and I am for none of those who are contriving for any Thing out of the House Sir Will. Covent This Question is not now seasonable tho' it is a better expedient than the Declaration as Things now stand and considering what hath past 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 seeing your Votes may be of use hereafter put no Question at all but adjourn the Debate to a proper Season Mr. Vaugh. I am against the Adjourning of it and have given Testimony that I have done nothing to be thought to do that which is so much for the advantage of the Earl of Clarendon and shall take heed of doing any Thing hereafter to be so reflected on Sir Tho. Litt. I hope I avoided any such Reflection nor speak any Thing to such purpose I do not beleive nor ever did think any such Thing and hope that Gentleman himself believes that no Man in this House hath more Honour for him than I. Sir Iob Charle Let the World see that you do not intend to restrain your proceedings to the Earl of Clarendon but make it a general Care and therefore are concerned in Honour to put the Question Resolved upon the Question That the Question be put Resolved That both the Questions propounded by Mr. Vaugh. and put singly in the Affirmative be carryed up to the Lords December 13. A Bill was brought from the Lords to Banish the Earl of Clarendon and read After reading several Objections being made and it being Alledged that it was an abuse put upon the Commons by the Lords and that a Bill of Attainder being propounded after some Debate the House pass'd this Vote Resolved That this House taking notice of the flight of the Earl of Clarendon being under an Impeachment of High Treason by this House the King's Majesty be humbly desired to Issue out his Proclamation for Summoning the said Earl to appear by a Day and to apprehend him in Order to his Tryal Resolved To send to the Lords for their Concurrence to this Vote December 14. A Message from the Lords for a Conference at which they delivered two Reasons why they could not Concur 1. First for that they conceive a Proclamation in the way proposed would be ineffectual since it is not supaena Convictionis which cannot be till particulars in Order to Tryal be declared 2. That what the House of Commons hath proposed and do propose at present is intended in Order to a judicial way of Proceeding but since the Earl of Clarendon's Flight their Lordships upon Consideration of the whole State of Affairs and of the Kingdom have upon Grounds of Prudence and Iustice thought fit for securing of King and Kingdom to proceed in a Legislative way against the said Earl and haue to that end past and sent down to them a Bill of Banishment and Incapacity against him with which this Vote is inconsistent December 16. The said Reasons from the Lord being Reported and Considered and it being Moved that the House would declare themselve unsatisfied with them Sir Tho. Cliff I am against passing a Vote at present upon the Lords Reasons but read the Bill sent down from thence and Summons him by it to appear by a Day Mr. Trev. Some are against the Bill because it goes too far Condemning before Hearing others would have it to go farther Summons is in Order to Hearing Tryal and Judgment of those he hath made himself incapable by Flight and hath in his Paper told you That he will neither be heard nor tryed by you Tho' you expected to have him secured by a general Accusation yet you never expected Judgment upon it Then it is said This Banishment falls short of Treason but we are not to pass Sentence for Crimes but as a Council propound to the King what is necessary in this Case Then consider whether this Bill will Answer our Ends and if it doth delay will make it worse I think we should make it reach them

him the King can do it without your help for he may be Outlawed for High-Treason for tho' that be Reversable at Common-Law if he be beyond Sea yet by two express Acts of Parliament it is otherwise but the King cannot Banish him without your Concurrence Suppose him Fled and Attainted so that the Question is not upon his Life but his Estate suppose your Justice satisfied in that is it not past all manner of Consideration that the King cannot upon Application restore it So that all you lookt for by Attainder is done by this Bill of Banishment for his Life is saved by Flight as would his Estate by Compassion but there is something in this Bill which without it you can never get that is you put him under your Displeasure which the King cannot Pardon and and will you have it thought abroad that the Earl of Clarendon fled as he is hath been something too hard for the Two Houses Sir Tho. Litt. If there be a necessity of differing with the Lords and I thought the difference would produce such Effects I should not speak but they only tell you 't is unnecessary and ineffectnal You have Impeached and are now told if you proceed it will make difference but I fear another greater Danger than this difference The World will say you were willing he should fly because you could not prove by flying he hath Forfeited his Estate if the King give it him again it is his Mercy but do you Justice Therefore press for a Proclamation for the Bill is inconsistent with your Honour Mr. Vaugh. I have listned with much attention to this Discourse and understand it as little now as at the beginning the Discourse being nothing adequate to that end You have Reasons from the Lords why They agree not with you and if you agree with the Reasons the Summ is to read the Bill but if you agree not you must desire a Conference and if they Concur you may have a Proclamation if not as I think they will not you are where you were We suppose him not to be in England and if so what is the Proclamation more than the King 's Writ it reacheth no Man out of the Kingdom It s true in some Cases if the Persons are gone out of the Land they are Summon'd and if they come not their Lands are Seized but it is not by Proclamation which signifies nothing if the Party be gone Then go on suppose the Lords Joyn in desiring a Proclamation the end of which is Appearing and Apprehending possibly you gain one part that if he be apprehended they do Imprison him upon a general Impeachment but if they agree not what benefit have you by it None But if he appears to what is it there is no Charge if apprehended to Answer the general Charge Then the Third way is if the Lords agree not that you should go to the King and there is a more dangerous Rock in that than in any thing for we never heard of a Commitment per ipsum Dominum Regem but per mandatum Domini Regis because against the King lies no Damages What then must you do many think it injustice to proceed if he be not called by Proclamation But it is plain if you proceed upon this Bill you go not upon your Impeachment but because he is fled from the Justice of the Land wherewith you have Charged him in burning his Paper and it imports little that he saith he is Innocent for why then doth he fly Shall we abate him of what he ought to suffer for his saying so He is fled from the Justice of the Parliament and therefore is proceeded with and for what others say you ought not to regard popular Reasons but to pursue your own it is enough for you to hear some Proofs made When was it known in any Court that Proofs should be taken only on one side So that you cannot acquit your own Justice nor bring him any ways to Answer he being gone nor can you have any effect of the Proclamation tho' the Lords join in it Therefore unless you will have nothing done after all this for he may not be Guilty of all Charged who yet hath made himself Guilty of what is Charged by flying Read the Bill At last the Question was put whether the Bill should be Read and Committed 109 for it 55 against it 164 December 18. The Bill for Banishing the Earl of Clarendon was Reported from the Committee and Read Sir Rob. How I desire that to the Preface of the Bill this addition may be made That whereas the Earl of Clarendon was Impeached of Treason by the Commons who desired he might be secured but was not and thereupon is fled And this to the end the protesting Lords may be gratified who took so much Care of the Commons Sir Rob. Carr. Seconds the Motion Sir Iohn Talb. I cannot Concur with that Motion because we cannot take Notice of what the Lords do Sir Rich. Temp. We may take notice of Things in the Lords Books which are Records and there the Protest is entered and tho' not to gratifie them who owned our Right yet we ought to take Care of our own Right And that the World may see we have some Cause to Pass this Bill neither deal so modestly with a Man who flies from Justice as to use his own Word withdrawn but call it flying Sir Tho. Gow Let the Words be that having been Impeached and Moved to be Secured hath withdrawn himself Mr. Solicitor The word Moved destroys the Bill it self the word of the Bill is to Unite the Two Houses and this Amendment tends to destroy that End for the addition to the Preface being insisted on the Lords will add the Reasons for not Committing and so revive the whole Matter again Let the Lords add in their Books what they will your Books will as much justifie you as theirs them Sir Hum. Win. Let the Words be added whether the Lords agree or not that it may appear upon our Books Mr. Hugh Boscow The Preface is but History yet add the Words and let the Lords insert what they please I should rather Concur with them than leave out those Words Mr. Vaugh. Put no Question upon these Words but whether the Preface shall go as it is The Bill in all probability is a safe Bill because it came from them But if you begin an Alteration you your selves render it unsafe for if you put in these Words then the Lords will add for want of Special Matter and so it will come to nothing Then the Bill was read the Third time Mr. Vaug. I am against the Word Withdrawn and for the Word Flight instead of it and in regard the Justice of this Bill depends upon the Word Flight put it expresly Sir Rob. Carr. I am against this Bill tho' I was as earnest in the Matter as any one while I thought there was Proof but now none appearing I am against the

to the payment of which his Majesty was not in strictness bound And afterwards received great Summs of Money for procuring the same VI. That he received great Summs of Money from the Company of Vintners or some of them or their Agents for Inhauncing the Prizes of Wines and for freeing them from the payment of legal Penalties which they had incurred VII That he hath in a short time gained to himself a greater Estate than can be imagined to be gained lawfully in so short a time and contrary to his Oath he hath procured several Grants under the Seal from His Majesty to himself and Relations of several of His Majesty's Lands Hereditaments and Leases to the disprofit of His Majesty VIII That he hath Introduced an Arbitrary Government in His Majesty's Forreign Plantations and hath caused such as complained thereof before His Majesty and Councel to be long Imprisoned for so doing IX That he did reject and frustrate a Proposal and Vndertaking approved by His Majesty for the preservation of Mevis and St. Christophers and reducing the French Plantations to his Majesty's Obedience after the Commissions were drawn for that purpose which was the occasion of our great Losses and Damage in those Parts X. That he held Correspondence with Cromwell and his Complices when he was in Parts beyond the Seas attending His Majesty and thereby adhered to the King's Enemies XI That he advised and effected the Sale of Dunkirk to he French King being part of His Majesty's Dominions together with the Ammunitions Attillery and all sorts of Stores there and for no greater value than the said Ammunitions Artillery and Stores were worth XII That the said Earl did unduely cause Hii Majesty's Letters Patents under the Great Seal of England to one Dr. Crowther to be alter'd and the Enrolement thereof to be unduly rased XIII That he hath in an Arbitrary way examined and drawn into question divers of His Majesty's Subjects concerning their Lands Tenements Goods Chattells and Properties determined thereof at the Council Table and stopped Proceedings at Law by Order of the Councel-Table and threatned some that pleaded the Statute of 17 Car. 1. XIV That he hath caused Quo Warranto's to be issued out against most of the Corporations of England immediately after their Charters were Confirmed by Act of Parliament to the intent he might require great Summs of Money of them for renewing their Charters which when they complyed withal he caused the said Quo Warranto's to be Discharged and Prosecution therein to cease XV. That he procured the Bills of Settlement of Ireland and received great Summs of Money for the same in most corrupt and unlawful manner XVI That he hath deluded and betrayed His Majesty and the Nation in all Forreign Treaties and Negotiations relating to the late War and betrayed and discovered His Majesty's secret Councils to his Enemies XVII That he was a principal Author of that fatal council of dividing the Fleet about June 1666. The Clerk having read them a second time it was moved That in regard the Articles were many they might be referr'd to the Committee to see how far they were true because Fame is too slender a ground to bring a Man upon the Stage Sir Fran. Goodr. Seconds it because new matter was now added to what was formerly charged Viva voce in the House Sir Rob. How Suppose the Earl of Clarendom Innocent and yet Charged and Imprisoned which is the worst of the Case he afterwards appears Innocent and is discharged receiving no more hurt than other Subjects have done Namely * D. Buck. one great Man lately Object But why should you Commit him Answ. For proof whether the Articles be true or not Suppose Men for self preservation will not venture to come not knowing how they may trust themselves and so you have no Proof He very guilty and You not able to proceed is the Inconveniency greater for an Innocent Person if he prove so to suffer a few days than for you to loose 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 Fra. Goodr. I am not against proceeding but unsatisfied to do it without Witness it being like Swearing in Verbo Magistri Sir Iohn Holl. That the Committee undertake to make good the Charge otherwise examine Witnesses Mr. Vaugh. You admit the Accusation to be matter for a Charge if the Committee find proof if you intend to make this a distinct Case I leave it to you but if this be to settle the Course of the Proceedings of the House I am against it for this is ordering a way of Proceeding in the Earl of Clarendon's Case which shall not be a general Rule Tho' I cannot say one of the Articles to be true yet I know them to be a full Charge if made good and you are prescribing a Course neither proper nor ever practised A Witness who speaks without Outh is subject to Damage not so upon Oath because the Law compells him And whereas it hath been said if Witnesses attest before the House of Commons what Judges dare middle in 't I answer such Judges as meddled in the Case of Sir Iohn Elliot c. and the Ship Money Sir Rich. Temp. A Grand Jury is capable to present upon their own knowledge and are Sworn to keep the King's Council and their own and I believe there is not one Article of the Accusation but will be made good Sir Rob. How As I am sensible of the danger of publishing Witnesses beforehand so I would have every one satisfied therefore take the Articles one by one and according as you shall find what your Members may say for the Truth you may be induced to proceed or not Sir Tho. Osb. The House ought to have something to induce their belief which they have had from several Members and I know how some will be made good Sir Tho. Littl. What Article Members of the House do not offer you matter to induce you to believe you may lay it aside therefore hear what shall be said and proceed accordingly Mr. Iohn Tr. You connot expect Witnesses will appear before you Lords will not nor can you expect Commoners should for when you are up and gone nothing can protect a Commoner if this Information be not Judicial At last the Question was put whether to refer it to a Committee Yeas 128. Noes 194. 322. Then the first Article was read to see what would be said to induce the House to Impeach The First Article read Sir Rob. How Lord Vaugh. Heard from Persons of Quality That it would be proved The Second Article was read Lord St. Ioh. Persons of great Quality have assured him to make it good and if they perform not he will acquaint the House who they are The Third Article read Mr. Ed. Seym. Sufficient Persons will make it good with this Addition When he received

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

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

that I may not forfeit Your Lordships Favour and Protection by With-drawing my self from so powerful a Persecution in hope that I may be able by such withdrawing hereafter to appear and make my Defence when His Majesty's Iustice to which I shall always submit may not be Obstructed or Controled by the Power and Malice of those who have sworn my Destruction CLARENDON Mr. Vaugh. I think it not convenient to loose more time about this Paper Since the time of the Earl of Clarendons Name being mention'd here I had nothing to Charge him with till now but most of the Heads of this Charge are so weighty that I am confident they will be easily and thoroughly proved tho' I know not how so that I admire at his Confidence to Charge this House and so the Nation as his Persecutors and that in such a Condition as he hopes to vindicate himself It s the first time that ever I heard an Innocent Man run away under the greatest Charge with hopes to return again and vindicate himself Then mark one Expression he saith he is as far from Corruption as from Disloyalty If he said he was guilty of neither he had said something but by that Expression he may be guilty of both So insolent a Paper I never met with in this Kingdom nor have I ever read the like in any other so inconsiderable a part of the Nation as he is to lay it upon the Nation who if innocent might defend himself if Guilty why doth he Charge the Nation with persecuting Therefore without troubling your selves with it do as the Lords have done who deliver it to you as a Scandalous and Seditious Paper it hath Malice in it and is the greatest Reproach upon the King and the whole Nation that ever was given by Man Therefore put the Question whether his Paper shall not have the Character that it is a Scandalous and Malicious Paper and a Reproach to the Iustice of the Nation Resolved upon the Question That the Paper sent to the Lords by the Earl of Clarendon and by them sent down to the House of Commons and now read is Scandalous and Seditious and doth Reproach the King and the Publick Iustice of the Nation Sir Rob. How You have voted this Paper Scandalous and therefore it should not live wherefore I move it should be burnt by the Hangman Mr. Garraw The Paper is the Lords and you must send it to them but enter it into your Books and your Vote upon it Resolved To have it burnt Sir Rob. Car. The Paper is the Lords therefore move them to Concur that it may be burnt Sir Rob. How The meaning of my Motion is because the Duke of Buckingham desired the Paper again for the admirableness of the Stile it is entered into their Books already and they need it not to that end therefore desire the Lords Concurrence to burn it Resolved To send it to the Lords to that end December 5. A Motion being made to send to the Lords in pursuance of the Vote about burning the Paper Mr. Vaugh. I am against sending up to the Lords to that purpose because you have Ordered to enter the Paper into your Books and when a Paper is burnt it is not to stand upon Record but should be rased out which two Things are a perfect Contradiction therefore let it rest as it is We have Voted it Scandalous c. The Lords tell us not that they have done any such Thing tho' they ought to have done it first As for the Earl of Clarendon he being now gone if such a like occasion should fall out we are in a worse Condition than we were for there is this President against us in a Case now Manifest And it becomes us to do something in Order to the Lords Concurring that so a good Understanding may be got therefore I shall propound this to you to be sent up to them to that end Namely when any Subject shall be Impeached by the Commons before the Lords in Parliament with desire to secure him such Person by the Law of the Land ought to be secured accordingly This you have in effect Voted already in saving the Iustice of the Kingdom is obstructed by their not doing it Secondly when such Impeached Persons shall be secured the Lords may limit a certain time for bringing in the Charge to prevent delay of Justice This may Salve all and prevent such ways as may be displeasing to the Lords and perhaps us also in some Cases here after Mr. Swin I am perswded that according to Rules of Parliament when you Charge by Impeachment generally and promise in due time to send up your Charge they ought to secure but they not having done it I question whether you could do what you have but the Earl of Clarendon flying it is Manifest Justice was obstructed for he might have been brought to his Tryal if the Lords had secured him but now your Vote is made good which seems to lay the advantage on your side Sir Rob How I think this Message to the Lords will destroy the way of vindicating our selves by Declaration therefore finish the Declaration and then Resolve before you publish it whether to send up this Message Mr. Vaugh. If the Lords agree with us we may spare the Declaration but if they agree not now they will much less hereafter Your Declaration can amount to no more but this make a Narrative of the invalidity of the Lords Presidents but then you must of necessity do something more else your Labour is in vain therefore this Message with these Votes are necessary Sir Rich. Temp. I expected that when the Earl of Clarendon had been fled the Lords would have desired the King to Issue out a Proclamation to apprehend him seeing they have been the occasion of his Escape therefore now desire their Concurrence to go to the King to that end and if they Concur they have upon the Matter granted Commitment upon a general Impeachment Mr. Vaugh. I thought it my Duty to offer you what I have done if you like it not I desire to be excused in serving you in the Declaration and that they who think it necessary would be pleased to take the pains to do it Sir Tho. Lee. If you declare it will beget an Answer and where will that end If you send up your Votes and the Lords agree your end is Answered for it is a yielding that which they have yet denyed Your declaring and entring it upon the Journal will be to no purpose it is but like a Man who having been beaten publickly in the Chamber calls him who did it Rogue Mr. Hampd I desire that the Words Law of the Land may be left out and the Words Law of Parliament or Vsuage of Parliament put instead of them for it hath been shewed us that there are several ways of Impeachment besides Common-Law Mr. Vaugh. Those Words were purposely put in because at the free Conserence when we pressed

What if he hath Life in other Parts his Family Untainted and his Children alive and enjoy his Estate Sir Rob. Carr. You have Ordered to consider the Reasons from the Lords therefore do it Mr. Hen. Covent The Motion to read the Bill is not against your Order because part of the Reasons given by the Lords is That you have a Bill and till you have read the Bill you cannot lay by the Reasons The Earl of Clarendon is fled you have a tye upon him in having his Innocent Relations and by Proceeding farther you make him desperate you are now in an even way with the Lords therefore read the Bill Mr. Swins You may go upon the Reasons and yet not reject the Bill for when you sent to the Lords about a Proclamation and went not upon the Bill it was because what the Bill drives at is the highest Punishment next to Death Therefore Consider what weight is in the Reasons One of them seeming to put you upon the Bill they put you thereupon on a Legislative Way they will neither Secure nor Summon him but will Condemn him Unheard They cannot Secure him upon a Charge of Treason nor yet Summon him but they can Condemn him and this they put you upon which is against Honour and Justice especially to do it up on Reason of State The Legislative Power of Parliaments is great it hath no bound but the Integrity and Justice of Parliaments If Reason of State be a Motive of Parliament to Banish one Man so it may be for many If you go in this Legislative way you bring upon your selves all the Dishonour of the Business but the Lords will have some excuse which you cannot for they look'd upon the Charge so flight as not to Imprison him the party is gone because he was not Secured apprehending he saith fear of the Multitude not of his Tryal so that the Lords not giving Credit to your Charge against him he says he flies not from justice Now if upon this Bill you shall Banish him it would be said you could not make good the Charge and therefore laid this Sentence upon him The President is also dangerous if having gone so far in a Judicial Way you should now go in a Legislative If upon Reason of State Lords may be Banished it may be by dozens As you proceed Justly so you will be Justified Nor is the Danger greater if the Lords go by Proclamation and he be put into Custody when he comes if he can practice any Thing will not he be less capable when under the Proclamation than when this Bill is Passed which Condemns him without Hearing and I am not for any Punishment till Heard In Cromwells Case who Moved in Hen. VIII time to Attaint a Lord Unheard the Judges declared they might and it would stand afterward the said Cromwell was Attainted and Condemned Unheard and such Councel usually falls upon those that Councell'd it Sir Rob. How The Earl of Clarendon saith That he doth not withdraw from your Iustice but fear of Tumults but that Reason any Man may give for his flying if it will be an excuse but he might have secured himself from Tumults by rendring himself and his Innocency upon his Tryal would have cleared him This at last may come to a free Conference then you may be left to go along with the King the House riseth and doth nothing and then the World will see that this Business will assure the King of France That he hath a Man with him so Great as to hinder us from doing any Thing against him Therefore as you ought to do something against him see whether it may not be done by the Bill by resuming his Lands c if he come not in by a Day An Exception may be against this way Namely That there is no Attainder but if there had been such a Bill the Thing which should sway me should be the Duke of York's Marriage So that if you Commit this Bill you may add all Severities 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 loose your Ends. By this Bill all favour that he can expect is shewed and this way will be the best Confutation of the Lords Reasons therefore Commit the Bill Mr Secretary Morr I am for Committing the Bill tho' it be condemning Unheard because he could not but conclude it would be so Et volenti non fit Injuria Sir Ric. Temp. You have proceeded against 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 against him and the Commons neither did nor ever were bound to deliver their Articles till the Party appeared and in that Case they delivered not their Articles till the last Day when he not appearing was Convicted When you would go by Attainder they tell you Deliver special Matter and we will Summon him when you ask a Proclamation they tell you Deliver special Matter If you declare the Matter to the Court it is upon Record and all may know it You have tryed all ways Legal and Regular and they will do you Justice in neither Now what can you do except you and the Lords combine in Justice together he must escape and if you can be made to differ he goes away in a Smoak If you go to the King for a Proclamation you must return to the Lords for Justice I am sorry the Ivey hath been so near the Oak 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 Honours Forfeit his Lands and whether you will go so far I leave with you Mr. Soll. Gene. It is not possible to agree with the Lords in their Reasons but the Reason must be because the Bill is good But if any Man thinks it is good upon the Lords Reasons he is mistaken and therefore my Advice is to proceed upon the Bill tho' not upon the Reasons from the Lords Some think the Punishment in the Bill too little for the Crime others too much because not Summon'd so that it must fall out That a Person Impeached by the House of Commons must see the House rise without any marks of displeasure upon him Can any Man be Heard who will not be Heard Why should not you proceed in such a way against him as whose very Flight amounts to a Confession And have you not burnt his Paper for refiecting upon the House and can you think he will appear who is departed in despair of the Court and now you are contending to give him time Then consider the Thing in it self Suppose the King had a mind to Attaint

Bill because you are Confirming what the Lords have done Mr. Vaug. Many Men wonder that no Reason is given for passing this Bill but the Question is mistaken the Bill is grounded upon his Flight after his Impeachment and his flying Implys some Guilt if none it is the safest Argument for any Man to run away and then there is nothing to catch him A Proclamation to a Man out of the Kingdom signifies nothing But in the whole it is plain that he saith that finding the King's Justice obstructed in Parliament he is fled Obj. But it will be said upon bare Flight never was any Man Punished Answ. If one Man kills another and flies tho' upon his Tryal he shall be acquitted yet he shall never recover his Goods because of his Flight There has been several Acts of Banishment Spencer c. And in this is something more severe than in them Namely that none shall Correspond with him then there is some advantage Namely that if he come in by the First of February all shall be void but when the Crime is laid and his Flight makes him Guilty he ought not to have a Day Then the Question was put for passing the Bill 65 For it 42 Against it 107 And then the House Adjourned ARTICLES OF HIGH-TREASON And other Heinous MISDEMEANOURS Exhibited against Edward Earl of Clarendon Lord High-Chancellour of England in the House of Lords on the Ioth of Iuly 1663. By the Earl of Bristol 1. THAT being in Place of highess Trust and Confidence with His Majesty and having arrogated a Supream Direction in all His Majesty's Affairs both at Home and Abroad hath Wickedly and Maliciously and with a Traiterous Intent to draw Scandal and Contempt upon His Majesty's Person and to alienate from him the Affections of his Subjects abused the said Trust in manner following viz. That he hath Traiterously and maliciously endeavoured to Alienate the Hearts of His Hajesty's Subjects from him by words of his own and by artificial Insinuations of his Creatures and Dependances that His Majesty was inclined to Popery and had a Design to alter the Religion Established in this Kingdom That in pursuance of that Traiterous Intent he hath to several Persons of His Majesty's Privy-Council held Discourses to this effect viz. That His Majesty was dangerously corrupted in his Religion and inclined to Propery That Persons of that Religion had such Access and such Credit with him that unless there were a careful Eye had unto it the Protestant Religion would be overthrown in this Kingdom and in pursuance of the said Wicked and Traiterous Intent upon His Majesty's admitting Sir Henry Bennet to be Principal Secretary of State in the Place of Mr. Secretary Nicholas he hath said these words or words to this effect That His Majesty had given 10000l to remove a zealous Protestant that he might bring into that Place of High Trust a concealed Papist notwithstanding that the said Sir Henry Bennet is known to have ever been both in his Profession and Practice constant to the Protestant Religion That in pursuance of the same Traiterous Design several near Friends and known Dependances of his have said aloud that were it not for my Lord Chancellours standing in the Gap Popery would be introduced in this Kingdom or words to that effect That in pursuance of the aforesaid Traiterous Design he hath not only advised and perswaded the King to do such things contrary to his own Reasons and Resolutions as might confirm and encrease the Scandal which he had endeavoured to raise upon His Majesty as aforesaid of his favour to Popery but more particularly to allow his Name to be used to the Pope and several Cardinals in the sollicitation of a Cardinals Cap for the Lord Aubigney one of his own Subjects and great Almoner at present to his Royal Consort the Queen That in pursuance of the same Wicked and Traiterous Design he had recommended to be employed to the Pope one of his own Domesticks Mr. Rich. Bealing a Person tho an avow'd Papist known to be trusted and employed by him in Dispatches and Negotiations concerning Affairs of greatest Concernment to the Nation That in pursuance of the said Traiterous Design he being chief Minister of State did himself write by the said Mr. Rich. Bealing Letters to several Cardinals pressing them in the King's Name to induce the Pope to Confer a Cardinals Cap on the said Lord Aubigny promising in Case it should be attained exemption to the Roman Catholicks of England from the Penal Laws in force against them by which Address unto the Pope for that Ecclesiastical Dignity for one of His Majesty's Subjects and Domesticks he hath as far as from one Action can be inferred traiterously acknowledged the Popes Ecclesiastical Soveraignty contrary to the known Laws of this Kingdom That in pursuance of the same traiterous Design he has called unto him several Priests and Iesuits whom be knew to be Superiors of Orders here in England and desired them to write to their Generals at Rome to give their help for the obtaining from the Pope the Cardinals Cap for the Lord Aubigny as aforesaid promising great Favour to Papists here in Case it should be effected for him That he hath promised to several Papists he would do his endeavour and said he hoped to compass the taking away all Penal Laws against them which he did in pursuance of the traiterous Design aforesaid to the end they might presume and grow vain upon his Patronage and by their publishing their hopes of a Tolleration encrease the Scandal endeavoured by him and by his Emissaries to be raised upon His Majesty throughout the Kingdom That in pursuance of the same traiterous Design being intrusted with the Treaty betwixt His Majesty and His Royal Consort the Queen be concluded it upon Articles scandalous and dangerous to the Protestant Religion That in pursuance of the same traiterous Design he concluded the same Marriage and brought the King and Queen together without any settled Agreement in what manner the Rights of Marriage should be performed whereby the Queen refusing to be married by a Protestant Priest in case of her being with Child either the Succession should be made uncertain for want of the due Rights of Matrimony or else His Majesty to be exposed to a suspition of having been married in his own Dominions by a Romish Priest whereby all the former Scandals endeavoured to be raised upon His Majesty by the said Earl as to point of Popery might be confirmed and heightned That having thus traiterously endeavoured to Alienate the Affections of His Majesty's Subjects from him upon the score of Religion he hath endeavoured to make use of all the malicious Scandals and Iealousies which he and his Emissaries had raised in His Majesty's Subjects to raise from them unto himself the popular Applause of being the zealous Vpholder of the Protestant Religion and a promoter of new Severities against Papists That he hath traiterously endeavoured to Alienate

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

the Money he said So long as the King is King and I Lord Chancellor the Patent will stand The Fourth and Fifth Articles read Sir Rich. Temp. Divers have undertaken to make them good if they do not I will Name them About the receiving Money of Vintners Sir Rob. C r. That he knows who will prove it About his getting a great Estate so suddenly Mr. Ed. Seym. I suppose you need no proof the Sun shines at Noon-day Sir Tho. Litt. The matter of Fact in the Article is easily made out for his Place as Chancellor could not be worth above 4 or 5000 1. per ann About introducing an Arbitrary Government in the Plantations Sir Tho. Litt. Sir Tho. Osh. One Farmer and others came from the Barbadoes to complain of it and lodg'd their Petion in this House but were Imprison'd that they might not be heard About frustrating Proposals for preserving Nevis c. Sir Char. Wheel My Lord Chancellor only opposed it About holding Correspondence with Cromwel Mr. Swinf That is Pardon'd by the Act of Indempnity Mr. Vaugh. 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 not clearly to prove it Sir Rob. How For such secret things as these he ought to plead notwithstanding the Act of Oblivion that the World may know who are undiscern'd Enemies Mr. Hamd It is not only an Act of Parliament but Oblivion and no Man ought to be so much as Accused for what was done before Mr. Vaugh. If the Pardon be general the Judges and you are to Note it but if it hath Qualifications as that Act hath they are not to Note it for you must say there is no Indictment or Outlawry against him for such the Act excepts or the Article is to stand Then the Act was read Mr. Swinf The Clause for Pardon is Absolute and any Man accused pleading it shall not be Sued nor his Fault mentioned and this is to Offences and Offenders and for those who betrayed the King beyond Sea who are excepted they must be Prosecuted within Two Years Object You will say he may plead that Act. Answ. By the same rule any Man who committed a Fault during the Troubles may be put to plead it for Pardon Serj Mayn We profess that there shall be Candour in our Proceedings Do we therefore believe this great Man is Out-law'd If not how shall we accuse him of what we believe not true Mr. Vaugh. When I am satisfied of a thing I am not ashamed to own it I find now having perused the Act that it is within the Clause The Indempnity is general and he is within it if not excepted the Exception reaches those who have held Intelligence with the King's Enemies so as they be Prosecuted within two Years this he is not therefore is clear So upon the Debate the Article was expunged the Paper without a Vote About the Sale of Dunkirk Sir Tho. Osb. A great Lord told me that the Earl of Clarendon had made a bragain for Dunkirk three quarters of a Year before it was known About Sealing Dr. Crowther's Patent Mr. Street The King gives the Living to Crowther in the Grant is a mistake of a County Crowther finds the mistake and Petitions the King to amend it the King calls for the Chancellor and Seal and in the King's presence it was amended and Sealed Sir Tho. Littl. The Crime seems as great as a Chancellor could commit the King was to present by such a day or not at all the Error was found after the day so that the King by Act of Parliament had lost his right The Chancellor did alter the Patent and the Record was fetch'd away by one of the Chancellor's Servants and brought back rased and altered which might be done and in other Cases is done where a word only hath been mistaken but that is in Case of something perfectly in the King's Power and to save new sealing but here could be no new sealing the time being elapsed It was to throw another Man out of his Freehold and is a great Crime About drawing Mens Lands into Question Mr. Thom. I shall be able to make it out About Quo Warranto's to Corporations Sir Tho. Litt. This is so Publick a thing that it need not be proved About 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 themselves putting us in hopes of Peace and so hindering the Fleets setting out About Miscarriage of the War Mr. Thom. I want not Persons to bring to bring to make it good Sir Tho. Litt. Sir Edward Sprag desires Money to give an Intelligencer and has it Sprag brings the Intelligencer to the King 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. Marvel Charged Mr. Seymour with saying in his Accusation That the King was insufficient for Government which is now omitted in the Charge and desires he may declare where he had it Mr. Seym. The Party that told me at first differ'd something afterwards therefore I rather withdrew it than to trouble you with uncertainties but a Gentleman in the House can give you farther satisfaction in it Sir Iohn Den. A Peer of the Land heard the Earl of Clarendon say in a Coach That the King was an unactive Person and indisposed for Government This will be made good Upon Debate it appearing probable that these words were spoken before the Act of Oblivion it passed over About the Customes Sir Rich. Temp. I have been Informed that he had a share for under-letting the Customes and 40000 l. Bribe for getting pretended Debts from the King Sir Tho. Osb. The Earl of Clarendon said Bid who would for the Customes none should have them but the Old Farmers Mr. P n. Having gone over the Articles we should know where and when the words were spoken Mr. Seym That will be a way to Suppress the Evidence I hope you will Impeach him at the Lords Bar and in due time produce your Witnesses Mr. P n. You must resolve to Impeach him of Treason or Misdemeanour and name it accordingly Sir Ed. Walp You ought first to give a Title to your Impeachment for if it be for Treason you will move for Commitment if it be for Impeachment in general not Mr. Colem What is laid before you is only by Hear-say but no Assurance that it will be made good only that if they who reported it do not make it good you shall know who they are In the Earl of Strafford's Case the worst of Presidents the House proceeded not till one spake in the House upon his own Knowledge and another engag'd his Reputation to make it good Sir Rob. Atk. Those who have given you inducement to proceed do it at third hand and tho' they may know the Credit and Impartiality

be inflicted in such Case which is Fine and Ransom with Imprisonment and it limits a time and manner of Prosecution There was an Objection made yesterday upon the 25 E. 3. That this being in Parliament the King and Parliament had Power to declare Treason and then we ought to have delivered our Opinions with a qualification unless it be declared Treason by Parliament where this Charge is depending to this I Answer'd 1. 'T is not Treason in praesenti and if such a Declaration should be non constat whether it would relate to the time past Secondly That I conceived that the Statute as touching that Declaratory Power extended but to such Cases as were clearly Felony as Single Acts if not Treason the words being Whether it be Treason or other Felony but in respect of the doubts of Escheats which if Treason belonged to the King if Felony to the Lords of the fee it was left to the Parliament I did not say we Resolved the Point Thirdly That admitting the Declaratory Power did extend to other Cases than such as were before the Judges and was not taken away by 1 M. Cap. or any other Statute yet I read my Lord Cooks Opinion at large Pl. Cor. Fol. 22. That this Declaration must be by the King Lords and Commons and by any two of them alone and we were now in a judicial way before the House of Peers only and I did affirm as clear Law that by this judicial way no Treason could be declared nor adjudged but as were expresly within the Letter of the 25 E. 3. and said That Statute 25 E. 3. was a second Magna Charta and that their Ancestors thought it their greatest Security to narrow and not to enlarge Treason and Cited 1 H. 4. Cap. 10. 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 1 M. Cap. 1. That the now Earl of Bristol in my Lord of Sraffords Case was the great Assertor of the Law against Constructive and Accumulativë Treason which if admitted their Lordships could better suggest unto themselves than I exprest how great a Door they would let open to other Inconveniencies and Mischiefs to the Peerage I concluded with reading the Act 14 Car. 2. for Reversing the Attainder of the Earl of Strafford the first part whereof I read to them wherein is expressed That they who Condemned him did purposely make an Act of Parliament to Condemn him upon an Accumulative Treason none of the pretended Crimes being Treason a-part and so could not be in the whole if they had been proved After I had spoken to this effect the Earl of Bristol seemed to acquiesce insomuch as concerned our Opinions as the Case was delivered to us but it being to be put to the Question whether the Lords did Concur with the Judges Opinions and himself being concerned in the Illative that therefore the Charge was Illegal and Irregular yet not being intended by him as he said as a Charge but an Information he desired tho' as the Case was put to us it was a good Inference that the Voting of that might be spared till it was Resolved by the Lords whether he delivered it in as a Charge or only as an Information for the Matter of the Charge if it should be thought fit for their Lordships to proceed in it After some Debate upon the Question the Lords Resolved the same Day according to our Opinions First That a Charge of High-Treason cannot by the Laws and Statutes of this Realm be originally Exhibited by one Peer against another unto the House of Peers Secondly That in these Articles if the Matters alledged in them were admitted to be true there is no Treason in them and because the Lords unanimously Concurred in them my Lord of Bristol freely 〈◊〉 〈◊〉 any other it was by order entred that these Votes were Nemine Con 〈…〉 Note That in Judge Hattons Reports Fol. the Resolution of the Judges is expressed to be That a Peer cannot be Impeached but by Indictment and Mr. Rushworth in his Collections Fol. 272. expresses such an Opinion to be delivered by the Judges in 1 or 2 Car. but upon search 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 Parlitament did not belong to them to Determine or to that effect but no mention of 1 H. 4. Cap. 14. It hath been credibly reported that some of the Judges in my Lord of Strafford's Case being asked some Questions did with the like Caution deliver their Opinions and did speak with Reservaions as the Case is put tho' they upon Hearing did know the Case mis-put which after troubled the Conscience of one of them ut audivi being a grave learned Man Vide Peacocks Case Cook Fol. But we having the Case referred to us in Parliament upon Articles Exhibited in Parliament did Resolve to deliver our Opinions without any such Reservation and the Act of 1 H. 4. being exprest against Appeals in Parliament and of Acts of Parliaments after they are once made none under the King and without him are Interpreters but the Judges See Kings Answer Printed in the old Print of 3 Car. 3. at the end of the Petition And therefore did deliver these Opinions which I conceive of great Benefit to the Lords themselves and a just ground for farther enquiry to be made whether such Impeachments may be in the House of Peers for other Misdemeanours without the King's leave or being Exhibited by his Attorney And secondly to take into Consideration the Validity of Impeachments of Treason by the House of Commons notwithstanding the late Presidents which yet ended in a Bill and so in the Legislative not Judiciary Way FINIS