Lunæ, 26 Maii, 1679.
Leave of Absence.
ORDERED, That Sir John Robinson, and Mr.
Francis Pawlett, have Leave to go into the Country.
Earl Danby's Impeachment.
Resolved, &c. That it be an Instruction given by this
House, to the Committee appointed to join with the Committee of Lords, to propose to the Committee of Lords,
Whether they be yet impowered to give any Answer to
the Propositions already made by the Committee of this
House, touching the Lords Spiritual, and the Tryal of the
Pardon of the Earl of Danby; and to acquaint the Lords,
That the Committee cannot give any Answer to the
Propositions made by their Lordships, preparatory to the
Tryal, until those Matters be adjusted.
Proceedings on the Impeachments.
Mr. Sachaverell reports from the Committee appointed
to draw up Reasons why this House cannot proceed to the
Tryal of the Lords before Judgment given upon the Earl
of Danby's Plea of his Pardon; and the Point of the
Bishops not voting in any of the Proceedings upon Impeachments for Capital Offences, and the Methods of Proceedings, adjusted; That the Committee had agreed upon
an Answer to be returned to the last Message of the House
of Peers, touching their Appointment of the Tryal of the
Five Lords in the Tower to be on Tuesday next; together
with Reasons for their insisting upon their former Vote:
Which he read in his Place; and afterwards delivered the
same in at the Clerk's Table: Where the same were again
read; and, with some Amendments made at the Table,
upon the Question, agreed; and are as followeth; viz.
The Commons have always desired, That a good Correspondency may be preserved between the Two Houses.
There is now depending, between your Lordships and
the Commons, a Matter of the greatest Weight; in the
Transaction of which, your Lordships seem to apprehend
some Difficulty, in the Matter proposed by the Commons.
To clear this, the Commons have desired this Conference; and by it they hope to manifest to your Lordships,
that the Propositions of the House of Commons, made
by their Committee, in Relation to the Tryal of the Lords
in the Tower, have been only such as have been well warranted by the Laws of Parliament, and Constitution of the
Government; and in no Sort intrench upon the Judicature of the Peers; but are most necessary to be insisted
upon, that the ancient Rights of Judicature in Parliament
may be maintained.
The Commons readily acknowledge, that the Crimes
charged upon the Earl of Powys, Viscount Stafford, Lord
Petre, Lord Arundell of Wardour, and Lord Bellasis, are
of deep Guilt, and call for speedy Justice: But withal,
they hold any Change in Judicature in Parliament, made
without Consent in full Parliament, to be of pernicious
Consequence, both to his Majesty and his Subjects; and
conceive themselves obliged to transmit to their Posterity
all the Rights, which, of this Kind, they have received
from their Ancestors, by putting your Lordships in mind
of the Progress that hath already been between the Two
Houses, in relation to the Propositions made by the Commons, and the Reasonableness of the Propositions themselves: They doubt not to make it appear, that their Aim
hath been no other than to avoid such Consequence, and
preserve such Right; and that there is no Delay of Justice
on their Part: And, to that End, do offer to your Lordships the ensuing Reasons and Narrative:
That the Commons, in bringing the Earl of Danby to
Justice, and Discovery of that execrable and traiterous
Conspiracy of which the Five Lords now stand impeached,
and for which some of their wicked Accomplices have already undergone the Sentence of the Law, as Traitors and
Murderers, have laboured under great Difficulties, is not
unknown to your Lordships: That, upon the Impeachment of the House of Commons against the Earl of Danby
for High Treason, and other High Crimes, Misdemeanors,
and Offences, even the common Justice of sequestring him
from Parliament, and forthwith committing him to safe
Custody, was then required by the Commons, and denied
by the House of Peers; though he then sat in their House:
Of which your Lordships have been so sensible, that, at a
free Conference, the Tenth of April last, your Lordships
declared, That it was the Right of the Commons, and
well warranted by Precedents of former Ages, That, upon
an Impeachment of the Commons, a Peer so impeached
ought of Right to be ordered to withdraw; and then to be
committed. And had not that Justice been denied to the
Commons, great Part of this Sessions of Parliament,
which hath been spent in framing and adjusting a Bill for
causing the Earl of Danby to appear, and answer That
Justice from which he was fled, had been saved; and had
been employed for the Preservation of his Majesty's Person, and the Security of the Nation; and in Prosecution
of the other Five Lords: Neither had he had the Opportunity of procuring for himself that illegal Pardon,
which bears Date the First of March last past; and which
he hath now pleaded in Bar of this Impeachment; nor of
Wasting of so great a Portion of the Treasury of the Kingdom as he hath done, since the Commons exhibited their
Articles of Impeachment against him.
After which Time thus lost, by reason of the Denial of
That Justice which of Right belonged to the Commons,
upon their Impeachment; the said Bill being ready for the
Royal Assent, the Earl of Danby surrendered himself;
and, by your Lordships Order of the Sixteenth of April
last, was committed to the Tower: After which he pleaded
the said Pardon; and, being pressed, did at length declare,
That hd would rely upon and abide by That Plea. Which
Pardon pleaded, being illegal and void, and so ought not to
bar or preclude the Commons from having Justice upon
their Impeachment; they did thereupon, with their
Speaker, on the Fifth of May Instant, in the Names of
Themselves, and of all the Commons of England, demand
Judgment against the said Earl, upon their Impeachment;
not doubting but that your Lordships intended, in all Proceedings upon the Impeachment, to follow the usual
Course and Methods of Parliament.
But the Commons were not a little surprised by the
Message from your Lordships, delivered on the Seventh
of May; thereby acquainting them, That as well the Lords
Spiritual, as Temporal, had ordered, That the Tenth of
May Instant should be the Day for hearing the Earl of
Danby make good his Plea of Pardon; and that, on the
Thirteenth of May, the other Five Lords impeached
should be brought to their Tryal: And that your Lordships had addressed to his Majesty, for naming a Lord
High Steward, as well in the Case of the Earl of Danby,
as of the other Five Lords.
Upon Consideration of the said Message, the Commons
found, That the admitting the Lords Spiritual to exercise Jurisdiction in these Cases, was an Alteration in the
Judicature in Parliament; and which extended as well to
the Proceedings against the Five Lords, as against the
Earl of Danby: And that, if a Lord High Steward be
necessary upon Tryals on Impeachthe Power of Judicature in Parliament, upon Impeachments, might be defeated, by suspending or denying a
Commission to constitute a Lord High Steward: And that
the said Days of Tryal, appointed by your Lordships, were
so near to the Time of your said Message, that the Matters, and the Methods of Proceedings upon the Tryals,
could not be adjusted by Conferences between the Two
Houses before the Day nominated; and consequently the
Commons could not proceed to the Tryal, unless the Zeal
which they had for speedy Judgment against the Earl of
Danby, that so they might proceed to the Tryal of the
other Five Lords, might induce them, at this Juncture,
both to admit of the Enlargement of your Lordships
Jurisdiction, and sit down under those and many other
Hardships, though with the Hazard of the Commons
Power of Impeachment for the time to come, rather than
the Tryal of the said Five Lords should be deferred for
some short time, whilst these Matters might be agreed on
For reconciling Differences in these great and weighty
Matters, and for saving that Time which would necessarily have been spent in Debates at Conferences be twixt the
Two Houses; and for expediting the Tryal, without
giving up the Power of Impeachments, or rendering them
ineffectual; the Commons thought fit to propose to your
Lordships, That a Committee of both Houses might be
appointed for this Purpose: At which Committee, when
agreed to by your Lordships, it was first proposed, That
the Time of the Tryal of the Lords in the Tower should
be put off, till the other Matters were adjusted: And it
was then agreed, That the Propositions, as to the Time
of Tryal, should be the last Thing considered: And that
the Effect of this Agreement stands reported upon your
After which, the Commons communicated to your Lordships, by your Committee, a Vote of Theirs; viz. That
the Committee of the Commons should insist upon the
former Vote of their House: And that the Lords Spiritual
ought not to have any Vote in any Proceedings against
the Lords in the Tower: And that, when That Matter
should be settled, and the Methods of Proceedings adjusted,
the Commons would be then ready to proceed upon the
Tryal of the Pardon of the Earl of Danby, against whom
they had before demanded Judgment; and afterwards, to
the Tryal of the other Five Lords in the Tower: Which
Vote extended, as well to the Earl of Danby, as the other
Five Lords. But the Commons as yet received nothing
from your Lordships towards an Answer of that Vote, save
that your Lordships have acquainted them, That the Bishops have asked Leave of the House of Peers, that they
might withdraw themselves from the Tryal of the said Five
Lords, with Liberty of entering their usual Protestations.
And though the Commons have almost daily declared
to your Lordships Committee, That That was a necessary
Point of Right to be settled before the Tryals; and offered
to debate the same; your Committee always answered,
That they had not any Power from your Lordships, either
to confer upon, or to give any Answer concerning that
Matter: And yet your Lordships, without giving the Commons any satisfactory Answer to the said Vote, or permitting any Conference or Debate thereupon, and contrary to
the said Agreement, did, on Thursday the Fourteenth of
May, send a Message to the Commons, declaring, That
the Lord Spiritual, as well as Temporal, had ordered, That
the Twenty-seventh of this instant May be appointed for
the Tryal of the Five Lords: So that the Commons cannot but apprehend, that your Lordships have not only departed from what was agreed on; and, in effect, laid aside
That Committee which was constituted for preserving a
good Understanding betwixt the Two Houses, and better
Dispatch of the weighty Affairs now depending in Parliament; but must needs conclude, from the said Message
and Vote of your Lordships, on the Fourteenth of May,
that the Lords Spiritual have a Right to stay, and sit till
the Court proceeds to the Vote of Guilty or Not Guilty:
And, from the Bishops asking Leave, as appears by your
Lordships Books, Two Days after your said Vote, that
they might withdraw themselves from the Tryal of the said
Lords, with Liberty of entering their usual Protestations;
and by their persisting still to go on, and give their Votes,
in Proceedings upon the Impeachment; that their Desire,
of Leave to withdraw at the said Tryal, is only an evasive
Answer to the forementioned Vote of the Commons; and
chiefly intended as an Argument for a Right of Judicature
in Proceedings upon Impeachments; and as a Reason to
judge of the Earl of Danbye's Plea of his Pardon; and upon
those and other like Impeachments; although no such
Power was ever claimed by their Predecessors, but is
utterly denied by the Commons: And the Commons are
the rather induced to believe it so intended, because the
very Asking Leave to withdraw seems to imply a Right
to be there; and that they cannot be absent without it;
because, by this Way, they would have it in their Power,
whether or no, for the future, either in the Earl of Danbye's
Case, or any other, they will ever ask Leave to be absent;
and the Temporal Lords a like Power of denying Leave,
if That should be admitted once necessary.
The Commons, therefore, are obliged not to proceed
to the Tryal of any of the Five Lords, the Twenty-seventh
of this Instant May, but to adhere to their former Vote:
And for their so doing, besides what hath been now and
formerly by them said to your Lordships, do offer you
these Reasons following: First, Because your Lordships
have received the Earl of Danbye's Plea of his Pardon,
with a very long and unusual Protestation; wherein he hath
aspersed his Majesty by false Suggestions; as if his Majesty
had commanded or countenanced the Crimes he stands
charged with; and particularly suppressing and discouraging the Discovery of the Plot, and endeavouring to
introduce an arbitrary and tyrannical Way of Government: Which remains as a Scandal upon Record against
his Majesty, tending to render his Person and Government
odious to his People; against which it ought to be the
principal Care of both Houses to vindicate his Majesty,
by doing Justice upon the said Earl.
2. The Setting up a Pardon to be a Bar of an Impeachment defeats the whole Use and Effect of Impeachments:
For should this Point be admitted, or stand doubted, it
would totally discourage the Exhibiting any for the future;
whereby the chief Institution for the Preservation of the
Government would be destroyed, and consequently the
Government itself: And therefore the Case of the said
Earl, which in Consequence concerns all Impeachments,
ought to be determined before that of the said Five Lords,
which is but their particular Case.
And, without resorting to many Authorities of greater
Antiquity, the Commons desire your Lordships to take
notice, with the same Regard they do, of the Declaration which that excellent Prince King Charles the First, of
blessed Memory, made in this Behalf, in his Answer to
the Nineteen Propositions of both Houses of Parliament:
Wherein, stating the several Parts of this regulated
Monarchy, he says, "The King, the House of Lords,
and the House of Commons, have each particular Privileges:" And, amongst those which belong to the King,
he reckons Power of Pardoning: After the Enumerating
of which, and other his Prerogatives, his said Majesty
adds thus again, That "the Prince may not make use of
this high and perpetual Power, to the Hurt of those for
whose Good he hath it; and make use of the Name of
publick Necessity for the Gain of his private Favourites
and Followers, to the Detriment of his People."
The House of Commons (an excellent Conserver of
Liberty) is solely intrusted with the First Propositions
concerning the Levies of Monies, and the Impeaching of
those, who, for their own Ends, though countenanced by
any surreptitiously gotten Command of the King, have
violated that Law, which he is bound (when he knows it)
to protect; and to the Protection of which they are bound
to advise him, at least not to serve him in the contrary:
And the Lords being intrusted with the Judicatory
Power, are an excellent Screen and Bank between the
Prince and the People, to assist each against any Incroachments of the other; and by just Judgment, to
preserve that Law which ought to be the Rule of every
one of the Three.
Therefore the Power, legally placed in both Houses,
is more than sufficient to preserve and restrain the Power
3. Until the Commons of England have Right done
them against this Plea of Pardon, they may justly apprehend, That the whole Justice of the Kingdom, in the
Case of the Five Lords, may be obstructed and defeated
by Pardons of the like Nature.
4. An Impeachment is virtually the Voice of every
particular Subject of this Kingdom, crying out against an
Oppression, by which every Member of that Body is
equally wounded: And it would prove a Matter of ill
Consequence, That the Universality of the People should
have Occasion ministred and continued to them, to be
apprehensive of utmost Danger from the Crown, whereby
they of Right expect Preservation.
5. The Commons exhibited Articles of Impeachment
against the Earl of Danby, before any against the other
Five Lords; and demanded Judgment upon those Articles: Whereupon your Lordships having appointed the
Tryal of the said Earl before That of the other Five
Lords; now your Lordships having since inverted that
Order, gives a great Cause of Doubt to the House of
Commons, and raises a Jealousy in the Hearts of all the
Commons of England, That, if they should proceed upon
the Tryal of the said Five Lords in the First Place, not
only Justice would be obstructed in the Case of those
Lords, but that they shall never have Right done them
in the Matter of the Plea of Pardon; which is of so fatal
Consequence to the whole Kingdom, and a new Device
to frustrate publick Justice in Parliament.
Which Reasons and Matters being duly weighed by
your Lordships, the Commons doubt not but your Lordships will receive Satisfaction concerning their Propositions
and Proceedings; and will agree, That the Commons
ought not, nor cannot, without deserting their Trust,
depart from their former Vote communicated to your
Lordships; That the Lords Spiritual ought not to have
any Vote in any Proceedings against the Lords in the
Tower. And, when that Matter shall be settled, and the
Methods of Proceedings adjusted, the Commons shall
then be ready to proceed upon the Tryal of the Earl of
Danby, against whom they have already demanded
Judgment; and afterwards to the Tryal of the other
Five Lords in the Tower.
Ordered, That all Committees be revived; and do sit
this Afternoon, in the Places formerly appointed.
Ordered, That the Committee to whom the Bill for
reversing Outlawries in the King's Bench . . . . . be impowered to consider of the Supersedeas out of the Court
of Common Pleas: And that Sir Richard Head, Mr.
Wright, Mr. Morgan, Mr. Mildmay, and Mr. Papillon,
Mr. Browne, Mr. Williams, Mr. Pilkington, Alderman
Love, be added to the said Committee.
Proceedings on the Impeachments.
Sir John Trevor reports from the Committee appointed
to join with the Committee of Lords to consider of Propositions and Circumstances relating to the Tryal of the
Lords in the Tower, That the said Committee had communicated to the Committee of Lords the Instructions
this Day given them by this House: Unto which the
Lords of the Committee gave this Answer, That they
had no Power from their House to give any further
Answer to those Matters, or to debate the same with the
Committee of this House.
Lords to continue sitting.
Resolved, &c. That a Message be sent to the Lords,
to desire their Lordships to sit some time: And that Sir
Thomas Meres do go up with the said Message.
Resolved, &c. That a Conference be desired with the
Lords upon Matters of great Importance to the Kingdom; and for preserving a good Correspondence between
the Two Houses: And that Sir John Trevor do go up
with the said Message.
Lords desire a Conference.
A Message from the Lords, by Sir Timothy Baldwyn
and Sir Miles Cooke;
Mr. Speaker, The Lords desire a present free Conference with this House, in the Painted Chamber, upon
the Subject Matter of the last free Conference, relating
to the Bill for securing the Liberty of the Subject, and for
Prevention of Imprisonments beyond the Seas.
The Messengers being withdrawn;
Resolved, &c. That this House doth agree to meet
the Lords at a present free Conference in the Painted
The Messengers being called in, Mr. Speaker acquaints
them, That this House had agreed to meet the Lords at a
present free Conference, in the Painted Chamber.
Ordered, That the Members that managed the last free
Conference had with the Lords, relating to the Amendments made by their Lordships to the Bill for the better
Securing the Liberty of the Subject, and for Prevention
of Imprisonments beyond the Seas, do attend, and manage
this free Conference.
Lords will continue to sit.
Sir Thomas Meres reports, That he had attended the
Lords with the Message: And that the Lords had agreed
to sit for some convenient Time.
Leave of Absence.
Ordered, That Sir George Speake have Leave to go
into the Country for Three Weeks.
Ordered, That Sir Wm. Morley have Leave to go into
the Country for Fourteen Days.
Lords agree to Conference.
Sir John Trevor reports, That the Lords had agreed to
a present Conference in the Painted Chamber.
Ordered, That the Members that prepared the Answer
and Reasons, do attend, and manage this Conference.
Mr. Hamden reports from the free Conference had
with the Lords, concerning the Bill for securing the
Liberty of the Subject, and for Prevention of Imprisonments beyond the Seas, the Reasons offered at the Conference: And delivered the Bill and Amendments in at
the Table: Where the Amendments being read, were,
upon the Question, agreed.
Ordered, That the Report from the Committee appointed to examine concerning the Train of Artillery,
shipped for Portsmouth, be made To-morrow Morning.
Conference desired with Lords.
Resolved, &c. That a free Conference be desired with
the Lords upon the Subject Matter of the last free
Conference, relating to the Bill for securing the Liberty
of the Subject, and for Prevention of Imprisonments
beyond the Seas.
And then the House adjourned till To-morrow
Morning, Seven of the Clock.