Journal of the House of Lords: Volume 12, 1666-1675. Originally published by His Majesty's Stationery Office, London, 1767-1830.
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DIE Martis, 19 die Novembris.
E. North'ton's Privilege. French & al. who arrested Capes his Servant, Petition to be released.
The Petition of Richard French, Richard Gibbons, and Robert Barrett, was read, being sent for as Delinquents, and now in the Custody of the Gentleman Usher of the Black Rod, for arresting Arthur Capes, a menial Servant to the Earl of North'ton; declaring their Ignorance, in not knowing the said Capes to be Servant to his Lordship, therefore humbly beg their Releasement.
Message from H. C. for a Conference about committing the E. of Clarendon.
Report of the Conference.
"That the House of Commons, by Sir Robert Howard, have offered some Reasons, which they hope will satisfy their Lordships, to agree to the Desires of the House of Commons for committing the Earl of Clarendon, upon their general Accusation of Treason.
"1. That what can or ought to be done by either House of Parliament is best known by the Custom and Proceeding of Parliament in former Times; and that it doth appear by Example, that, by the Course of Parliament, the Lords have committed such Persons as have been generally charged by the House of Commons for High Treason to safe Custody, though the particular Treason hath not been specified at the Time of such Charge.
"2. 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 to be for High Treason generally, he may be lawfully remanded to Prison by the Judges upon that Return.
"3. 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 thereby.
"4. If the House of Peers shall require the particular Treason to be assigned before the Party charged be secured; they leave the Commons uncertain and doubtful, and that from Time to Time, how particular they must make their Charge to their Lordships Satisfaction, before the Offender be put under any Restraint.
"5. The Commons conceive, that, if they should desire the Lords to secure a Stranger, or native Commoner, upon Suspicion of Treason which the Commoners had of him, and which was by them under Examination, to be evidenced to their Lordships 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 will be no Difference in the Consequent between a Lord and a Commoner so desired to be secured.
"6. The Proceeding of Inferior Courts between the King and Subject, or Subject and Subject, and the Discretion of Judges in such Courts, is bounded and limited by the Discretion of the Parliament, which trusts them; and it is not left to the Discretion of Judges in ordinary Jurisdiction to give the King, or to take from Him, inconvenient Power for the Subject, nor to dispense the Law partially between Subject and Subject, for Malice or Affection: But the Discretion of the Parliament, which is the whole Public, comprehending the King, Lords, and Commons (for the King's Presence is supposed in the Lords House), is and ought to be unconfined, for the Safety and Preservation of the Whole, which is itself. It cannot be malicious to a Part of itself, nor affect more Power than already it hath, which is absolute over itself and Parts, and may therefore do, for Preservation of itself, whatsoever is not repugnant to natural Justice."
His Lordship further reported, "That afterwards Mr. Vaughan offered to their Lordships Consideration some Precedents; as, that of the Earl of Strafford's, the 11th of November, 1640; the Archbishop of Canterburie's, the 18th of December, 1640; the Lord Keeper Fynche's, the 22th of December, 1640; and Sir George Radcliffe, 29th December, 1640; who were all accused of Treason by the House of Commons, and committed; which Precedents were within Two Months after the Beginning of the Parliament begun the 3d Day of November, 1640."
Peers Testimony upon Oath and Honour.
Next, the House took into Consideration the Report made from the Committee of Privileges, concerning Peers giving their Testimony upon Honour in Inferior Courts, which at present concerns the Lord Holles.