Journal of the House of Lords: Volume 4, 1629-42. Originally published by His Majesty's Stationery Office, London, 1767-1830.
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DIE Martis, videlicet, 8 die Martii.
The King's Letter, clearing the Attorney General.
"We have thought good hereby to certify, that We did, on the Third of January last, deliver to Our Attorney General certain Articles of Accusation, ingrossed in Paper (a Copy whereof We have sent here inclosed); and did then command him, in Our Name, to acquaint Our House of Peers, that divers great and treasonable Designs and Practices, against Us and the State, had come to Our Knowledge, for which We commanded him, in Our Name, to accuse the Six Persons in the said Paper mentioned of High Treason and other high Misdemeanors, by delivering that Paper to Our said House, and to desire to have it read; and further to desire, in Our Name, that a select Committee of Lords might be appointed, to take the Examination of such Witnesses as We would produce, as formerly had been done in Cases of like Nature, according to the Justice of that House, and that Committee to be under a Command of Secrecy as formerly; and further, in Our Name, to ask Liberty to add and alter (if there should be Cause) according to Justice; and likewise to desire that Our said House of Peers would take Care of the securing of the said Persons, as in Justice there should be Cause.
"We do further declare, That Our said Attorney did not advise or contrive the said Articles, nor had any Thing to do with, or in advising of, any Breach of Privilege that followed after; and for what he did, in Obedience to Our Commands, We conceive he was bound by his Oath and the Duty of his Place, and by the Trust by Us reposed in him so to do; and, had he refused to have obeyed Us therein, We would have questioned him for the Breach of Oath, Duty, and Trust. But now, having declared, that We find Cause wholly to desist from Proceeding against the Persons accused, We have commanded Our Attorney to proceed no further therein, nor to produce or discover any Proofs concerning the same.
Accusation of the Attorney General to be proceeded in.
This House, conceiving this Letter to be a Prelimiting of the Judgement of this House, Ordered, To proceed in the Business against Mr. Attorney General now; and that this Letter shall be taken into Consideration hereafter, as a Matter of great Consequence.
Message to the H. C. with the King's Letter.
To communicate the King's Letter to the House of Commons; and to let them know that, notwithstanding this Letter, their Lordships are ready to proceed in the Business concerning Mr. Attorney General, if they will send a Committee of their House to manage the Evidence.
Report of the Instructions for the Commissioners for Ireland.
The Earl of Leycester, Lord Lieutenant of Ireland, presented to this House a Draught of Instructions to be given to the Commissioners that are appointed by both Houses to manage the Affairs of Ireland: The Instructions were read, and committed to these Lords following, to consider further of it; videlicet,
Ds. Willoughby de Parham.
Ds. Grey de Warke.
Ds. Howard de Charlton.
A Message from the King, about granting Letters of Mart.
The Lord Admiral signified to this House, "That he had received a Command from the King, to let their Lordships know, that His Majesty, understanding of the Order made by both Houses for the taking of such Ships by Letters of Mart as are or shall be going to relieve the Rebels of Ireland; His Majesty doubts that this will be a great Hindrance of Trade, unless some Course be taken therein; therefore offers it to their Lordships Consideration whether it were not fit to have Licences granted to such as shall be permitted to trade, and that Notice thereof be given to Foreign States:" Hereupon this House Ordered, That the Consideration of granting Licences to such as shall trade into Ireland, that may secure them from those that shall take Letters of Mart, is hereby referred to the Irish Committee.
Miller versus Weight, etc.
Ordered, That the Petition and Business concerning Michaell Miller, against John Weight and John Bickers, is hereby referred to the Consideration of the Right Honourable the Earl of Holland, Lord Lieutenant for the County of Midd. (fn. 1) whose Lordship is hereby appointed to hear, settle, and determine this Business, as in his Wisdom he shall think (fn. 2) fit; and that the said Weight and Bickers shall attend the said Lord Lieutenant, and obey and perform his Directions herein, and then to be dismissed of the present Restraint laid upon them by this House.
Babb and Trelawny in Error.
Ordered, That the Cause between Babb and Trelawny, depending now in this House, upon a Transcript of a Record brought out of the King's Bench by Writ of Error, shall be peremptorily heard here at the Bar on Tuesday come Fortnight, being the 29th of this Instant March; at which Time the Parties, with their Counsel, [ (fn. 2) shall attend] for the pleading of the said Cause accordingly.
Ld. Strange and Mr. Heywood.
Ordered, That the Lord Strange may put in his Charge in Writing into this House, against Peter Heywood, concerning a scandalous printed Paper, dispersed and published, wherein his Lordship is mentioned; and that the said Mr. Heywood shall have a Copy of the said Charge, and put in his Answer thereunto in Writing, and attend this House from Day to Day, until the said Cause shall receive some Determination, or the Pleasure of this House be further known, touching the said Mr. Heywood's Attendance.
E. of Cambridge Leave to attend the King.
Delamaine may print an Addition to his Table for Ireland.
Answer from the H. C. about the Trial of the Attorney General.
Attorney General brought to the Bar.
The Committee of the House of Commons being come; Mr. Attorney General was brought to the Bar, by the Gentleman of the Black Rod, where he kneeled, until the Speaker, by the Directions of this House, bid him stand up.
Serjeant Wylde opens the Charge.
Hereupon Mr. Serjeant Wylde, one of the Committees, said, "That they were commanded and appointed, by the House of Commons, as Committees, to come before this House, to make good their Charge against Sir Edward Herbert, Knight, His Majesty's Attorney General, a Person of Eminency in the Common Law, both eminent in Place and eminent in Crime.
Then (fn. 3) he observed, "That this Charge is of Three Parts:
"3. The Falsehood, Scandal, Malice, and other Ingredients also, mixed and incorporated together, that they can be no more severed than Blackness from the Ethiopian; or, if they could be separated, yet either of them is sufficient to call for Judgement against Mr. Attorney.
"3. Upon this, it was put into a Course of Proceeding, by desiring a Committee might be appointed for Examination of Witnesses, under a Command of Secrecy, with a Prayer to add and alter as there should be Cause.
"4. A Desire to the Lords, to (fn. 4) take Care that the Persons accused might be secured; these were the Steps and Degrees of his Proceedings; and all this appears in his own Answer.
"But, in his Answer, he denies the advising or contriving of these Articles; and saith, he was so far from that, that he knew nothing at all of them till he received this Command from His Majesty for the exhibiting of them immediately before, being sent by His Majesty for that Purpose.
" (fn. 5) In Case of Trover and Conversion of Goods, though the Denial of them upon Demand be no Conversion in Law whereon to ground an Action; yet, upon Not Guilty pleaded, it is good Evidence to a Jury to find him Guilty of the Conversion.
"The Contriving without the Publishing is but an Inception of an Offence; the Publishing is the Consummation of it, and therefore so much the more heinous. The Publisher is the grand Offender; he blows the Coals and the Trumpet.
"If it could be imagined that there were another Author or Contriver of these than Mr. Attorney (as he would pretend); yet his exhibiting and promoting of them is an Offence so heavy, as needs no other Addition of Weight to press him down to the Ground, who, by such an Act of Injustice and false Accusation, would so grievously have oppressed them.
"Mischiefs hatched in the Brain are only mischievous to the Inventor; but the Vegetation and Life is from the Publisher, and he gives Motion and Agitation to it, which otherwise would be but as an abortive or inanimate Creature.
"But for the Excuse which he seeks to shelter himself, that is, the King's Command, this adds more to his Offence, a foul Aspersion upon His Majesty, and Wrong to his Gracious Master; for he could not but know that the King's Command in Things illegal is utterly frustrate, and of no Effect. His Patents and Grants, if against the Law, in Matter of Interest, are merely void, quia in Deceptionem Regis; if against the Weal Public, they are, ipso Jure, vacua; much more his Commands in Matters Criminal, because no Action lies against him.
"The Cases in 7° E. IV. 14. of a Feoffment to the King, to the Use of another, or by an Infant or Feme Covert, all are void, because no Sub-pæna, no cui in Vita nondum fuit infra Ætatem, lies against His Majesty.
"16 H. VI. Tit. M'rans, 182, per tot. Cur. the King in His Presence cannot command one to be arrested, but an Action lies against him that doth it; if not in His Presence, much less in His Absence; if not to be arrested, much less to be accused, and that of so a high a Crime as High Treason, 22 H. VI. 6. pro Newton, Acc.
"1 H. VII. 4. Hussey, Chief, saith, That Markham, Chief Justice, told King Edward IV, that His Majesty could not arrest or imprison a Man, because no Action lay against (fn. 6) Him. This was that famous Marham, who suffered the Loss of his Place rather than he would suffer Shipwreck of his Conscience, in another Case.
"Plo. Com. 226. The Common Law hath so admeasured the King's Prerogative, that He cannot prejudice any Man in his Inheritance. Now the greatest Inheritance that a Man hath, is in the Laws and Liberty of his Person: Major Hærcditas unicuique a Legibus quam a Patre aut Parentibus.
"This Proceeding here by Mr. Attorney was expressly against Magna Charta, because without due Process of Law; the Force of that Statute, and the many Confirmations by after Laws, serving as Commentaries thereupon to out all Manner of Scruples.
"Lex Terræ, and due Process of Law, are the Hinges of those Laws. By the Statute of 5 E. III. Cap. 9. no Man is to be attached by any Occasion, nor fore-judged of Life or Limb, etc. against the Form of the Great Charter, but by the Law of the Land.
"The Statute of 25 E. III. Cap. 4. more full, none to be imprisoned, or put out of his Freehold, or Free Custom, unless by the Law of the Land; videlicet, by Indictment or Presentment of good and lawful People de Vicinitate, etc. Nor none to be outed of his Frauchise unless he be duly brought to Answer, 28 E. III. Cap. 3.
"30 E. III. Rot. Parliamentar. Num. 9. The Great Charter and Carta de For. to be put in due Execution, without making Disturbance or Arrest contrary to (fn. 7) the same, by special Command; so that provides against special Command.
"Mr. Attorney hath broken all these Laws, and infringed all our Liberties, even the Rights of Parliament, by which no Member of either House ought to be impeached, either for Felony, Treason, or other Offences, without representing the Cause first to that House whereof he is a Member, and their Consent and Direction therein desired; for otherwise all the Members of each House may be pulled out one after another upon a Pretence of Treason, which perhaps was now Mr. Attorney's Design.
"Besides, Mr. Attorney hath done contrary to his Oath in this Business; for he is sworn to the King duly and truly, according to his Cunning, to issue out the King's Writs, and give the King true Advice, according to the Law, which in this Action he hath not done; but contrary to his Oath."
"2. His long Experience in the Course and Privileges of the High Court of Parliament, having been so often and of late a Member of the House of Commons, and obliged to them by many Favours, and now an Assistant or Attendant in the House of Lords.
"3. Considering the Quality of the Persons accused, their singular Parts, Integrity, and Merits, their indefatigable Labours and Travails for the Public Good, which could not expect such (fn. 8) a Reward as this, the odious Name of Traitors.
"4. The woeful and dangerous Consequences that de Facto have ensued this; for, by Colour of these Articles, they were proclaimed, posted, sold up and down for Traitors; they were hunted and sought for by Officers, demanded even from the Horns of the Altar; their Studies, Chambers, and Trunks sealed up; the House of Commons strongly besieged; their Privileges strangely invaded; their last and uttermost Hopes ready to be utterly confounded.
"As these are beyond Expression, so the Consequences that might have happened are beyond Imagination; Bloodshed, Horror, Devastation, and Confusion. All the Evils, Dangers, Troubles, and Distractions, which have happened since, and what now the Houses lie under, may be imputed to this Act of Mr. Attorney.
"Had he stood in the Gap, and humbly besought or advised the Forbearance of this, or declined the doing of it, as in Equity he ought to have done; all these Miseries had been prevented, and a happy Reconciliation in all Likelihood settled between His Majesty and His People before this Time.
"It remains, therefore, that he which, wittingly, judiciously, and upon Record, hath contracted to himself the Guilt of all these Evils and Calamities, should receive from their Lordships such a Measure of Punishment as may make the Fact more odious, and himself the Mark of their exemplary Justice to this and After-ages."
Attorney General desires to be heard by Counsel.
Serjeant Wylde excepts against it.
Serjeant Wyld excepted to this; and said, "That they are Committees, representing the House of Commons; and it doth not stand with the Dignity of that House to have Counsel come and confront them." Further he alledged, "That this Offence of Mr. Attorney's hath been voted by both Houses of Parliament to be a high Breach of the Privileges of Parliament, which no Counsel can, neither ought they to, judge of. And because it concerns the House of Commons in a high Degree in their Privileges, as well as it doth their Lordships, he desired that Mr. Attorney might not be admitted Counsel, but that he might speak for himself."
Mr. Attorney General's Reply.
Mr. Attorney replied, "That their Lordships have been pleased, upon his humble Petition, to assign him Counsel in this Cause; and his Answer is put in by their Advice, and they are ready to maintain it; which if their Lordships should not allow, he is not provided to make a Defence to his Charge; therefore desired their Lordships to hear him by his Counsel."
Debate about it.
Thereupon both Sides were commanded to withdraw, and the House took this into Consideration; and, for the better Debate thereof, the House was adjourned into a Committee during Pleasure, to consider whether Mr. Attorney General shall be admitted Counsel to plead for him, or no, in this Case as it now stands, it being a mixed Case, consisting of Breach of Privilege of Parliament, Matter of Fact, and Matter of Law.
Mr. Attorney allowed Counsel in Matter of Privilege.
To be proceeded in To-morrow.
Then the Committee of the House of Commons were called in; and the Speaker, by the Directions of this House, told them, "That this House hath Resolved, That Mr. Attorney General shall have Counsel in this Cause; and that their Lordships have appointed to proceed further in this Cause To-morrow, at One of the Clock in the Afternoon."