Monday, December 2.
[A message from the Lords by two Judges:
Mr Speaker: The Lords have commanded us to deliver this
message to you: " That upon the report of the last free conference given to the House of Commons, and upon the whole matter, the Lords are not satisfied to commit the Earl of Clarendon, and sequester him from Parliament, before particular Treason be specified or assigned."]
Mr Sollicitor.] Persons have been accused, and committed: But no doubt but for High Treason the Courts
do commit or not commit, upon discretion—Imprisonment non ad pænam, only ad custodiam. The Lords have
a latitude as great as these Courts.
It was said] The Commons do not specify the Treason,
by reason the Abettors may escape, and so expose all the
information to be invalid.
By another] We may be angry and talk, but can do
nothing effectual without the House of Lords—Privilege
as Peers, is because of the King's presence there, as anciently the King was as present in the House as the Lords
—If the King had been in person, and had demanded the
cause, he might have said, "Let him be bailed!" The
Lords have this privilege, quatenus the King's right.
Mr Sollicitor.] No extricating ourselves out of this
difficulty, but by sending up the articles.
It was said] The King's Bench bail not when committed, but before—The Justices of the King's Bench
have more than an ordinary trust in the Law, and therefore discretionally they bail: But it is in few cases, not
all—The Lords will say, they have a discretionary power,
being a greater court—The Law does not suscipere magis
et minus, because we or a private person accuses him.
Edward VI. sat in the King's Bench, the Judges at
his feet.—Henry IV. sat in the Lords House in De la
Pole's case; but the Lords protested against the King's
interposing in their rights and privileges—King James sat
once in the Star Chamber.
"How and in what manner he has discovered the
King's counsels," must make up the indictment—So
penned that the party may make his answer.
Mr Vaughan.] There needs no such niceness in an Article from the House of Commons as from the King's
Bench.—They bail not as a right to them, but they must
bail where bail is due.
Sir Rich. Temple.] No precedents that the Lords ever
bailed a man upon an impeachment from the House of
Commons.—'Tis special matter to say Treason.
Mr Prynne.] Godwin Earl of Kent was impeache dby
the King in person, when he came into the House of
Lords; so six Lords went to the King for his pardon,
and had it—Anselm, Bishop of Canterbury, would not
acknowlege the Pope, and was impeached for it.
Sir Tho. Littleton.] Betwixt the impeachment of William de la Pole, and Lord Strafford, no precedent of any
impeachment—De la Pole's accusation, "not being a
true man," it is no word in any old statute for Treason
—So that if the Commons had brought in Treason, it
had been a specialty in comparison of that.
Sir Edward Walpole.] Moves it may be considered
what we would do, if a Member was impeached in general, from without doors.
Sir Robert Atkins.] The impeachment against Thomas
Arundel, Bishop of Canterbury—The Lords proceeded discretionally—We cannot demand it in debito justitiæ.—Approves of the Lords tenderness in imprisoning—Asserts his
right as a subject as well as a Member of Parliament.
Mr Waller.] The Lords have not complied: They
say not they will not comply.—They are tender of our
liberties—Why should we make such haste to give that
away, which the Lords vote not away? The law appoints
a trust in the King, Lords, and Commons.
[Resolved, (upon the question) That the Lords not having
complied with the desires of the House of Commons, for the
commitment of the Earl of Clarendon, and sequestering him from
Parliament upon the impeachment of treason from this House, is
an obstruction to the public justice of this kingdom, by the proceedings of both Houses of Parliament; and, in the precedent
of it, is of evil and dangerous consequence.]
Tuesday, December 3.
[The Bill of general Naturalization was read a second time.]
Pro.] Col. Birch and others said, We want people to consume our provisions—Other countries have worked us
out of all trade by doing it.—An encouragement to the
Protestant Religion, which we ever have been the protectors of—The destruction of trade is by naturalizing a
few people, who draw away our trade by dealing with
the French and other Foreigners, whose families reside
not amongst us.
Con.] It was urged, That it would draw on the pretence of a standing army to keep so many strangers quiet,
and would endanger the religion established, by introducing liberty of conscience.
Mr Sollicitor.] A fortunate and a prosperous people
will be ever a populous people—But the fairest morning
that ever was, we see, is set under a cloud—Till we are
an established people, we must never think of this Bill
but as a mockery—In 1637, we were looked upon as an
established and flourishing people; then Land and
Trade were at the height—At that time several foreign
nations delighted to settle amongst us, whose posterity
still remain—This Bill of Naturalization seems to forbid
and deny foreigners, for it provides not for freedom in
corporations, to set up a trade without being free, which
he must buy—Merchants we want not, nor they stock,
but we want handicraft-people to make up our commodities.
[A message from the Lords, [by two Judges] That they have
received a long petition from the Earl of Clarendon, intimating
that he was withdrawn (fn. 1) .]
Sir Robert Howard.] The Lords said, There was no
danger of his withdrawing—Withdrawn, we know not
whither—May be, into the next chamber—Desires to
know the reasons of it in his paper to the Lords—Moves
to draw a narrative of our proceedings.
Mr Vaughan.] Would not have the House take notice
of the Lords paper, for if it be of moment, the Lords
will communicate it to the King or to us—Seconds the
motion for a narrative.
Mr Waller.] The Lords have been civil to him—In
three weeks we have not heard from them—Withdraw is
a Parliament word; he desires to know what the Lords
mean by the word Withdraw.
Mr Sollicitor.] When a delinquent sends his Judges
word he is withdrawn, it can have no other meaning but
fled—Shall we say, if he be gone, fare him well!—In
Lord Finch's case the ports were stopped.
[This business of Privilege interposed.]
'Twas said] In Sir James Thynne's case, of Privilege for
his servant arrested, it was ordered, that the person at
whose suit he was arrested, should be sent for in custody,
as being the first mover; then the Sheriff and Under
Sheriff and Bailiffs will come afterwards in course to be
sent for, if found faulty.
[Upon a private Bill to supply the defects of a conveyance lost:
Some of the most material ones referring to that conveyance
being by the Committee perused;]
Mr Sollicitor.] It is needless to do that by Bill,
which every Court of Westminster does daily, and
he fears something may lie hid; the parties would not
else put themselves to such a charge and trouble as an
Act of Parliament.
[The Bill passed.]
Wednesday, December 4.
[A message from the Lords, by two Judges, desiring a present
conference touching the paper they received yesterday from the
Earl of Clarendon; which having been agreed to, Mr Sollicitor
General reported, that his Grace the Duke of Buckingham did
manage the conference; and declared, That the Lords had commanded him to deliver the scandalous and seditious paper of the
Earl of Clarendon; which they desired might be returned again (fn. 2) .
Which paper was read at the Clerk's table.]
Sir Robert Howard.] This paper calls itself a petition,
but is a remonstrance, having no prayer—The account
in it of affairs all false—If "the King's Bounty," as the
Chancellor says, be "as much to others as to him (fn. 3) ,"
no wonder the King cannot live upon it. "The books
the King of France gave him (fn. 4) ," a bribe for his better
understanding—He had rather be guilty of his crimes
than of that he imputes to the House of Commons—
He says, "he is withdrawn from those who persecute
him, and controul the King's Justice (fn. 5) "—We must be in
tended by "those persons"—He has left more seeds in a paper than his person could have sown—He calls the King
"a wise Prince (fn. 6) ," and yet charges the King with injustice,
for not leaving the Nation to cleave to him—We are
changed; the King has a nation instead of him—Says,
he cannot call it any thing else, than a scandalous, seditious, and malicious paper.
Mr Vaughan.] Believes that the Earl knew not the
weight of the articles; admires his confidence to charge
this House with persecuting him, and hopes to return to
be clear. He says, "he is as far from corruption as disloyalty (fn. 7) ;" it may be he is guilty of both—Never so insolent a paper, to charge the nation for unjustly prosecuting him—It has scandal, malice, and sedition in it
upon us and the King, and reproaches the Justice of the
Nation and the King.
[Resolved, That this paper of the Earl of Clarendon's is scandalous and seditious, and doth reproach the King and the public
justice of the nation.
Resolved, That the paper be entered into the Journal, that all
the world may know what we have condemned (fn. 8) .]
Sir Humphry Winch.] Though the person cannot be
impeached, yet moves to impeach the paper, and to have
it burned by the hands of the common hangman, with
the concurrence of the Lords: Which was voted (fn. 9) .
[It was agreed to by the Lords, Dec. 10. and ordered to be
burned at Gresham College.]
Thursday, December 5.
[Votes proposed by Mr Vaughan in order to impeachment.
That the person impeached ought by law to be secured.
That the Lords [shall (fn. 10) ] appoint a convenient time to bring
up the articles; and that whenever the Commons shall impeach
any Member of that House, that the Lords shall sequaster him
Sir Richard Temple.] Would have added to the declaration, the inconvenience of not sequestering the person,
and to vote, that we may desire the Lords concurrence,
in desiring his Majesty to issue out his proclamation for
apprehending the Earl of Clarendon that is fled.
Sir Thomas Lee (fn. 11) .] Says, that the Lords will answer
our declaration, if made, and so no end of answering.
Sir John Birkenhead.] An oath ceases to be necessary
when it ceases to be lawful, and so may this Declaration.
Sir Thomas Littleton.] The vote for remonstrance, not
for information of the people, but to remain upon the
journal to posterity.
Mr Vaughan taking exceptions at what fell from Sir
Thomas Littleton, in some more than ordinary transport,
replied,] He is none of those that contrive things without doors.
Sir Thomas Littleton.] Disowns the reflection, and if
he could explain himself in speaking in plainer terms, he
Sir Robert Howard, endeavouring to appease them, said,]
He cannot express himself more, than every person here
thinks, of Mr Vaughan's worth.
Mr Swynfin.] Impeachment is more satisfaction than
any information from a common informer; and if an
impeachment may not be so brought up, neither Lord
nor Commoner for the future can ever be impeached—
The dividing of the two Houses is a greater blow than
the whole business besides.
[The Votes above-mentioned, were agreed to by the House.
See the journal of this day.]
[Dec. 6, 7, 9, and 10, omitted.]
Wednesday, December 11 (fn. 12) .
Mr Vaughan, who was ordered to attend the Lords to
desire their concurrence with the Votes of the Commons
concerning freedom of speech, took care at the conference to enquire what ancient laws did fortify this, the
greatest privilege of both Houses; and they found, in 4
Henry VIII. an Act concerning one Richard Stroude, who
was a Member of Parliament, and was fined at the Stannary Courts in the West, for condescending and agreeing,
with other Members of the House, to pass certain Acts
to the prejudice of the Stannaries. This Act was made
occasionally for him, but did reach to every Member of
Parliament, that then was or shall be; the very words
being these: "And over that be it enacted, by the same
authority, that all suits, accusements, condemnations,
executions, fines, amercements, corrections, grievances,
charges, and impositions, put or had, or hereafter to be
put or had, unto or upon the said Stroude, and to every
other the person or persons afore specified, that now be
of this present Parliament, or that of any Parliament
hereafter shall be, for any Bill, speaking, reasoning, or
declaring, of any matter or matters concerning the Parliament, to be commenced and treated of, be utterly
void, and of none effect. And over that be it enacted,
by the said authority, that if the said Richard Stroude, or
any of all the said other person or persons hereafter to be
vexed, troubled, or otherwise charged for any causes as
is aforesaid; that then he or they, and every of them,
so vexed or troubled, of or for the same, may have action upon the case against every such person or persons so
vexed or troubling any contrary to this ordinance and
provision, in the which action the party grieved shall
recover treble damages and costs. And that no protection, essoyne, nor wages of law in the said action in any
wise be admitted nor received."
The Lords agreed with the House of Commons to
both their other Votes (fn. 13) , and ordered Lord Holles to
cause the Roll of the Court of King's Bench, wherein
the said judgment, 5 Car. 1. against Elliot, Holles, &c.
is recorded, to be brought before the Lords in Parliament by a writ of error, to the end, that such farther
judgment may be given upon the said case as the Lords
should find meet.
[The House then resumed the hearing of the Report touching
the matters of Restraints upon Juries.]
Sir Thomas Gower reports, from the Committee, the
following articles of accusation against Lord Chief
Justice Keeling (fn. 14) . " 1. That he imposed upon the
consciences of the Grand Jury of Somersetshire to find
a verdict contrary to their judgments, and bound them
to their good behaviour. Sir Hugh Wyndham (who
first complained to the House of this business) he re
proached for being the head of a faction, for no other
cause, than finding a Bill according to his conscience.
He drew the verdict and made the Jury find it. Sir Hugh
said, he was the King's servant and Member of Parliament (upon his reproaches). He told the Grand Jury
they were his servants, and he would make the best in
England stoop. 2. In an indictment for murder, which the
Jury found Manslaughter, because they found no malice prepense, he told them they must be ruled by him
in matter of law, and forced them to find the Bill, Murder. The man was executed accordingly, without reprieve, notwithstanding the Address of the Gentlemen
of the Bench to him. The Juries rather would lose their
issues in that county than starve by reason of his severity.
3. One before him speaking of Magna Charta, he said,
"Magna Farta, what ado with this have we?" 4. He forbid
a Habeas Corpus and a Plures to be issued out, so that the
party was constrained to petition the King."
[Upon these informations proved to the Committee, They
resolved, "That his proceedings were arbitrary and illegal:
That he vilified Magna Charta:
That he be brought to tryal, in order to condign punishment, in such manner as the House should think fit; these proceedings being to the danger of the lives and liberties of the
people, and tending to introduce an arbitrary government in
judicature in their place."]
Mr Streete, for him.] Moves that he may have the
same justice that Pett had, viz. to be heard at the Bar,
and says, it is no such innovation as the Committee would
have it, citing Weer's case in Queen Elizabeth. To the
words of "vilifying Magna Charta," he says, that the person offered a law that warrants not the thing then in
question, and so he called it Magna Farta.
Sir Thomas Higgins, for him.] Said, he heard the Judge
say to the Jury that were upon the Quaker's case, that
he would not have a verdict contrary to an Act of Parliament, (inferring from thence his great regard to those
Acts.) To that of the Somersetshire jury, he did an indiscreet
thing, yet it was not illegal. All the Judges approved
of what he did. The law supposes Murder when a person kills another, doing an unlawful thing or action, as
the killing a man with a gun. He says, Lord Keeling
[is] a man of choler and passion—Right-handed faults
his zeal for the laws, but no ill man of bribery or corruption. Magna Charta he slighted not, but as being
urged impertinently, nothing to the business; spoken by
way of indignation to the man who said it. Desires it
may be remembered what he has done and suffered for
Magna Charta, and that his former life may be put into
the balance with his present offence.
Sir Humphry Winch.] Says, the Chief Justice desires to
wave all privilege of attendance at the Lords House, and
to appear to justify himself.
Sir Anthony Ierby.] Moves that the evidence and the
Lord Chief Justice may be heard both at the same time.
[Leave was granted that he should be heard at the Bar on Friday the 13.]
[Dec. 12. omitted.]
Friday, December 13.
[An ingrossed Bill, sent down from the Lords, for banishing and
disenabling the Earl of Clarendon, was read the first time (fn. 15) .]
Sir Thomas Clifford.] Occasionally said, every Act has
its seven tests, three in the Lords House, three in the
Commons, and Royal Assent.
Mr Coventry.] Said, he had his particular and his obedient opinion in this business of Lord Clarendon.
Mr Swynfin.] The Lords put us from our judicial way
to a legislative way.—Lord Clarendon is departed, because
he was not secured.—He flies not from our justice; we
would have tryed him, if we might have been heard, and
in the legal way.—He makes good what he has done,
and what the Lords have done.—He may, by this Bill of
Banishment, say justly, he is condemned without hearing
one witness, against the law of nature and nations. Lord
Cromwell was so attainted.
Sir Robert Howard.] Lord Clarendon withdrawn, for
fear of tumult! Any person may pretend that; so may
any malefactor—He had rather end his days here than
prolong them miserably in another country.
Mr Secretary Morrice (fn. 16) .] Qui accusare videt minus amat.
Edw. II. Gaveston and the Spencers banished without process. Gregory Nazianzen said, "If I be the Jonas, let
me be thrown over board."—Not to attaint the blood,
that once may be sacred.—Alludes to the Papists wine in
the sacrament, if spilt they make relics of the earth.
Mr Prynne.] Shall not the Judge of all the earth do
right? Shall the Parliament condemn a man unheard?
Scipio banished himself, the Romans did not—Shall we,
without matter, blindfold?—The King cannot do it; it
is against his Coronation Oath and Magna Charta—There
have been Banishments, but the Bishops not consenting,
not good—They were without hearing or process—Those
proceedings condemned by three Parliaments as erroneous,
and never to be drawn into consequence again—Cicero
was banished without cause, and to his honour, not to
that of the Romans who banished him.
Sir Richard Temple.] In Adam de Berry's case, in 15
Edw. III. they delivered no special matter till the party
appeared—Lord Clarendon makes the fire betwixt the
two Houses, and goes away in the smoke—Two exceptions against the Bill of Banishment—1. To commit
without a day of hearing—2. His penalty too low for
the crimes—It cannot be less than degradation of his
Honour and loss of Estate for life.
Mr Sollicitor Finch.] We cannot hear him that will
not be heard; the Bill of Banishment is in the nature of
an out-law—The King may attaint him, without our
leave, by proceedings in law.
All ends are attained in Banishment. Will you let him
live abroad with more power than he had at home? viz.
To keep the two Houses at difference, and, like Sampson,
to go away with the House upon his back? The two
Houses have a greater influence on the nation than the
houses of the planets.
Mr Vaughan] The King's Proclamation and Writ
reaches not out of the nation—Would have the House go
to the King—The King commits no man per mandatum
Sir Walter Yonge.] If our charge be true, then the
Bill is far less than his punishment.
Mr R. Holt.] The Lords would not sequester him without
special matter, and yet now they would banish him without special matter—They take our accusation for granted,
by this way of proceeding.
Mr Prynne.] He ought to be summoned to appear by
a day, or process against him.
Sir George Reeves.] They would not sequester him without special cause, and yet they banish him without special matter—Moves that he may have a day assigned to
Lord Cavendish. (fn. 17) ] Moves the same, and that we may
give the world a testimony that we have done something
—This Bill of the Lords enables him to spend the estate
he has gotten by our ruins, in another country—Moves,
if he comes not by a day, to bring in a Bill of attainder.
[Resolved, That his Majesty be humbly desired to issue out a
Proclamation for summoning Lord Clarendon to appear by a day,
and for apprehending him in order to his tryal; to which Vote
the Lords concurrence was ordered to be desired.]
[The House then proceeded to the hearing of the Lord Chief
Justice Keeling's accusation (fn. 18) .]
To the article, that upon tryal of the Quakers, he directed the Jury to find guilty without evidence—Answers,
He had the testimony of the witness, the confession of
the party where the persons were taken—The Quakers
said, they met, not to rebell, but to seek God—Their
meeting was proved by persons that pulled them out of
the place where they were met—He told them, that if
for the future they would conform, their conviction
should be taken off—They said, the Church of England
was not a true Church—He was much thoughtful about
the fining of the Jury, for not finding the Bill—He did
it not without precedents—It is resolved, by all the Judges,
that Juries are finable.
He said, he did not remember "the words about
Magna Charta," but if any such thing did fall from him,
he spoke it to the impertinency of those men that urged
it, but no way in scorn of it—If he did say it, he owns
he said what he should not.
To the "fining of the Jury, who would not find that
Murder, about the Master's killing his servant boy," said
Masters are only justifiable in correction when they do it
with lawful instruments—The Judges delivered their opinion, that he had legally fined and bound the Somerset
gentlemen of the Grand Jury—Upon the whole matter, submits himself to the Justice of the House.
Sir Hugh Wyndham (fn. 19) .] Moves, that since the Chief Justice had forgot to answer the reproachful language he
gave him, that the House would likewise forget it, for
[Resolved, after some debate, that this House proceed no farther upon the matter against the Lord Chief Justice Keeling.
Ordered, That a Bill be brought in for declaring the fining
and imprisoning of Jurors, illegal.]
Saturday, December 14.
[A Report from a Conference, occasioned by the message sent
to the Lords, desiring their Concurrence in an Address to his
Majesty for a Proclamation to summon and apprehend the Earl
Lord St John reports] That, at the conference, the
Lords gave them two reasons for their dissenting from
the Vote of the House of Commons.
1st. That they conceived a Proclamation, in the way
proposed, would be ineffectual since it is not sub pœna
convictionis, which cannot be, till particulars, in order to
tryal, be declared—2dly, 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 justice,
thought fit, for the security of the King and Kingdom, to
proceed in a legislative way against the said Earl, and
have to that end passed and sent down unto them a Bill of
Banishment, and Incapacity against him, with which our
Vote is inconsistent.
[The consideration of these reasons was adjourned till Monday.]
Monday, December 16.
[Sir Thomas Higgons makes a Report from the Committee,
appointed to examine Abuses and Extortions in enhancing the
Prices of Wood, Coal, and Fewel.]
Sir William Thompson.] Said, that the freight and
charges of the Norway trade for timber, are two thirds
of what we bring from thence. We go four times in
the year—Sweden and Denmark, by the articles of peace,
may bring their own timber in their own bottoms, and a
Hollander, by naturalization, or other cheats, may easily
pass for one of them.
Col. Birch, to the By-laws of Companies, occasionally
of the Woodmongers.] No By-law can be made in any
Corporation of Trade without the approbation of the
Judges, under penalty of 40 l; neither can that corporation repeal a By-law without consent of the Judges.
[Resolved, That the farther Debate of the Votes concerning
Ballast, be adjourned till after Christmas.]
[On the petition of the Adventurers of Ireland, by Alderman Barker of Dublin.]
Mr Sollicitor Finch.] The petition is pretended from the
body of the Adventurers, not avowed by the Chairman
of the Committee from Ireland—We may repeal an Act
of Ireland by our power, if we measure our wisdom by
our power—The enquiry into the business of the Adventurers, will be a means to make Ireland a prey to any foreigner, by discontenting that kingdom in this settlement.
[Lord Ancram reported, from his Royal Highness the Duke of
York, the following answer in writing to the desire of the House,
"Being desired by the House of Commons to let them know
what orders I gave for the fortifying of Sheerness; and to whom,
and when; I am very ready to give them what satisfaction I can,
though it be but little I am able to say to them on this subject.
"I waited on his Majesty, when he went to Sheerness, at the
latter end of February last; and I [was] present when his Majesty
caused the Fort to be marked out; and also when he gave order
to the Commissioners of the Ordnance, to go in hand with the
building of it: But it not being my Province to give orders on
shore, neither the Commissioners of the Ordnance, nor any body
else, did ever receive orders from me for doing that work. It is
very true, that, knowing the importance of that place for the securing his Majesty's Navy, I did, presently after his Majesty's return from thence to London, recommend to the Commissioners
of the Ordnance the going in hand with the battery upon the
point at Sheerness. James."
In the Afternoon.
[Resolved, That the Bill, for banishing and disenabling the
Earl of Clarendon, be now read the second time, 109 to 55.]
[Dec. 17, omitted.]
Wednesday, December 18.
[Passed the Bill, with amendments, for banishing and disenabling the Earl of Clarendon, (65 to 42,) which were agreed
to on the 19th by the Lords.]
[The House was adjourned by a message of his Majesty, from
December the 15th to February the 6th.]
[Feb. 6. the House met: But the first Debate taken notice of