Journal of the House of Commons: Volume 9, 1667-1687. Originally published by His Majesty's Stationery Office, London, 1802.
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Lunæ, 26 Maii, 1679.
Leave of Absence.
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.
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 and settled.
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 Lordships Books.
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.
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 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 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.
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.
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.
Leave of Absence.
Lords agree to 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.
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.