House of Lords Journal Volume 13: 26 May 1679

DIE Lunæ, 26 die Maii.

REX.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

Lords take the Oaths.

This Day these Lords following took the Oaths of Allegiance and Supremacy, and made and subscribed the Declaration against Transubstantiation, in Pursuance to the Act in the 25th Year of His now Majesty's Reign, for preventing the Dangers which may happen from Popish Recusants.

The Witnesses, which were first sworn at the Bar, were examined by the Lord Chancellor, to prove the Truth of the Certificates concerning their Lordships receiving the Sacrament of the LORD'S Supper.

Christopher Duke of Albemarle.

Henry Marquis of Worcester.

Henry Earl of Arlington, Lord Chamberlain of His Majesty's Household.

James Earl of Salisbury.

Arthur Earl of Essex.

Richard Earl of Burlington.

Message to H. C. for a Conference on the Habeas Corpus Bill.

A Message was sent to the House of Commons, by Sir Tymothy Baldwin and Sir Miles Cooke:

To desire a Free Conference, presently, in the Painted Chamber, concerning the Matter of the last Free Conference, touching the Amendments in the Bill for the better securing the Liberty of the Subject.

The Commons will give no Answer about the Method of Trial of the impeached Lords, proposed by this House, till their former Propositions are answered.

The Lord President reported, "That on Saturday the Lords delivered to the Commons what was resolved and ordered the Day before, touching the Bishops being at the Trial of the Five Lords; as also concerning the Earl of Danby's Trial; and likewise touching the Paper containing the Rules de bene esse to be observed by the Lords at the Trials; and told the Commons, that that was all they had in Command to say.

"To which the Commons answered, That, since the Lords have not thought fit to give such satisfactory Answers to the Propositions formerly made by them as they required, they have received Instructions from their House to give no Answer to the Propositions made by the Lords, till the Commons former Propositions be answered.

"That the Lords Committees met the Committee of the House of Commons again this Morning; where the Commons said, That they had received Instruction this Morning from their House, to propose to the Lords, Whether they be yet empowered to give any Answer to the Propositions already made by the Commons, touching the Lords Spiritual, and the Trial of the Pardon of the Earl of Danby; and to acquaint the Lords, that they cannot give any Answer to the Propositions made by their Lordships preparatorily to the Trial, until those Matters be adjusted."

"To which the Lords answered, They are not yet empowered."

The Messengers return with this Answer:

Answer from H. C.

That the House of Commons will give a Free Conference, as is desired.

The same Lords who managed the last Free Conference are appointed to manage this.

Message from thence, to sit a while.

A Message was brought from the House of Commons, by Sir Thomas Meares, &c.

To desire their Lordships would please to sit a convenient Time.

The Answer returned was:

Answer.

That the Lords have considered their Message; and they will sit a convenient Time.

The House was adjourned during Pleasure, and the Lords went to the Conference; which being ended, the House was resumed.

Report of the Conference on the Habeas Corpus Bill.

The Lord President reported, "That the Lords have delivered their Lordships Resolutions to the Amendments in the Bill concerning the Liberty of the Subject to the House of Commons; who, after some Discourse, said, They would acquaint the House of Commons therewith, and receive their Directions therein."

Message from H. C. for a Conference, to preserve a good Correspondence.

A Message was brought from the House of Commons, by Sir John Trevor, &c.

To desire a Conference, upon Matters of great Importance to the Kingdom, and for preserving a good Correspondence between the Two Houses.

The Answer returned was:

Answer.

That the Lords agree to a Conference, as is desired; and appoint the same to be presently, in the Painted Chamber.

These Lords following were appointed to report this Conference:

The House was adjourned, and the Lords went to the Conference; which being ended, the House was resumed.

Then the Lord President reported the Effect of the Conference with the House of Commons; (videlicet,)

Report of the Conference concerning the Trials of the impeached Lords.

"The Commons have always desired, that a good Correspondence 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 Matters 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 Trial of the Lords in The Tower, have been only such as are 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 Powis, Vicecomes Stafford, Lord Petre, Lord Arundell of Wardour, and Lord Bellasyse, 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; and by putting your Lordships in Mind of the Progress that has 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 has been no other than to avoid such Consequence, and to preserve that 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 in Discovery of that execrable and traiterous Conspiracy (of which the Five Popish 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 many great Difficulties, is not unknown to your Lordships.

"Nor is it less known 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 sequestering 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, a great Part of this Session 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 his Impeachment, nor of wasting so great a Proportion of the Treasure 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 said Earl then rendered himself, and, by your Lordships Order of the 16th of April last, was committed to The Tower; after which, he pleaded the said Pardon; and, being pressed, did at length declare, he 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 Name of themselves and all the Commons of England, demand Judgement against the said Earl upon their Impeachment; not doubting but that your Lordships did intend, in all your 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 10th of May Instant should be the Day for hearing the Earl of Danby to make good his Plea of Pardon; and that, on the 13th of May, the other Five Lords impeached should be brought to their Trial; and that your Lordships had addressed to His Majesty, for naming of a Lord High Steward; as well in the Case of the Earl of Danby, as the other Five Lords.

"Upon Consideration of this said Message, the Commons found, that the admitting the Lords Spiritual to exercise Jurisdiction in these Cases, was an Alteration of the Judicature in Parliament, and which extended as well to the Proceedings against the Five Lords, as the Earl of Danby; and if a Lord High Steward should be necessary upon Trials on Impeachments of the Commons, the 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 Trial appointed by your Lordships were so near to the Time of your said Message, that these Matters and the Methods of Proceedings upon the Trials could not be adjusted by Conference betwixt the Two Houses before the Days so nominated; and consequently the Commons could not then proceed to Trial, unless the Zeal which they had for speedy Judgement against the Earl of Danby (that so they might proceed to the Trial of the other Five Lords), should induce them at this Juncture both to admit the Enlargement of your Lordships Jurisdiction, and to sit down under these or any Hardships (though with the Hazard of all the Commons Power of impeaching for Time to come), rather than the Trial of the 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 betwixt the Two Houses, and for expediting the Trials, 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 Trial of the Lords in The Tower should be put off till the other Matters were adjusted; and it was then agreed, that the Proposition as to Time of Trial should be the last Thing considered; and 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, (videlicet,) That the Committee of the Commons should insist upon the former Vote of their House, "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 then be ready to proceed upon the Trial of the Pardon of the Earl of Danby, against whom they had before demanded Judgement, and afterwards to the Trial 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 have 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 Trial of the said Five Lords, with Liberty of entering their usual Protestation.

"And though the Commons Committee have almost daily declared to your Lordships Committee, that that was a necessary Point of Right to be settled before the Trials, 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 having given 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 22th of May, send a Message to the Commons, declaring that the Lords Spiritual as well as Temporal had ordered that the 27th of this Instant May be appointed for the Trial 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 also needs conclude, from the said Message and the Vote of your Lordships on the Fourteenth of May, that the Lords Spiritual have a Right to stay and sit in Court 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 Trial of the said Five Lords, with Liberty of entering their usual Protestation; and by their persisting still to go on and give their Votes in Proceedings upon the Impeachments, that their Desire of Leave to withdraw at the said Trial is only an evasive Answer to the beforementioned Vote of the Commons, and chiefly intended as an Argument for a Right of Judicature in Proceedings upon Impeachments, and as a Reserve to judge upon the Earl of Danbye's Plea of a Pardon; and upon these 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. And 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 once be admitted necessary: The Commons therefore are obliged not to proceed to the Trial of any of the Lords the 27th of this Instant May, but to adhere to their aforesaid 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:

"1. Because your Lordships have received the Earl of Danbye's Plea of Pardon, with a very long and unusual Protestation; wherein he hath aspersed His Majesty with 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 First and 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. And 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 (and consequently the Government itself) would be destroyed: And therefore the Case of the said Earl, which in Consequence concerns all Impeachments whatever, 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 1. 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 among those which belong to the King, He reckons Power of pardoning; after the enumerating of which, and other His Prerogatives, His Majesty adds thus: "Again, that the Prince may not make Use of the high and perpetual Power, to the Hurt of those for whose Good He hath it, and make Use of the Name of public 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, &c.) is solely entrusted 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 were bound to advise Him, at least not to serve Him in the contrary; and the Lords, being trusted with a Judicatory Power, are an excellent Skreen and Bank between the Prince and People, to assist each against any Encroachments of the other, and by just Judgements to preserve that Law, which ought to be the Rule of every One of the Three, &c. Therefore the Power legally placed in both Houses, is more than sufficient to prevent and restrain the Power of Tyranny, &c."

"3. Until the Commons of Engl'd 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 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 will prove a Matter of ill Consequence, that the Universality of the People should have Occasion ministered and continued to them, to be apprehensive of utmost Danger from the Crown, from whence they of Right expect Protection.

"5. The Commons exhibited Articles of Impeachment against the said Earl, before any against the other Five Lords, and demanded Judgement upon those Articles; whereupon your Lordships having appointed the Trial of the said Earl to be 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 Engl'd, that, if they should proceed to the Trial of the said Five Lords in the First Place, not only Justice will be obstructed in the Case of those Lords, but that they shall never have Right done them in the Matter of this Plea of Pardon, which is of so satal Consequence to the whole Kingdom, and a new Device to frustrate Public 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 can, 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 Method of Proceedings adjusted, the Commons shall then be ready to proceed upon the Trial of the Pardon of the Earl of Danby (against whom they have already demanded Justice), and afterwards to the Trial of the other Five Lords in The Tower."

Order concerning the D. of Norfolk's Bill.

Upon Report made from the Lords Committees appointed to consider of the Bill for settling some of the Manors and Lands of the Duke of Norfolk, and Henry Lord Mowbray his Son, in Trustees, for the Satisfaction and Payment of Debts:

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the Duke of Norfolke shall have Notice that the said Bill is committed; and that his Grace hath hereby a Fortnight's Time allowed, after the Delivery of this Order, either to his Person, or leaving it at his House or Lodgings, to appear himself to offer his Reasons against the said Bill, or to empower some Person sufficiently instructed to offer what his Grace shall think fit concerning the said Bill.

ORDERED, That the Duke of Albemarle is added to the Committee for the Lord Mowbray's Bill.

Adjourn.

Dominus Cancellarius declaravit præsens Parliamentum continuandum esse usque in post meridiem hujus instantis diei, hora quinta, Dominis sic decernentibus.

Post meridiem.

REX.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

Sir C. Houghton's Bill.

ORDERED, The Lord Chief Baron have Notice to assist the Lords Committees for the Bill concerning Sir Charles Hoghton, To-morrow Morning.

Debate upon the Report of the Conference about the Trial of the impeached Lords.

The House took into Consideration the Report of the Conference with the House of Commons this Morning.

And, for the more free Debate, the House was adjourned during Pleasure.

The House was resumed.

And, after a long Debate,

This Question was proposed, "Whether this Debate shall be adjourned till Eight of the Clock To-morrow Morning?"

Then this previous Question was put, "Whether this Question shall be now put?"

It was Resolved in the Affirmative.

Debate adjourned.

The main Question was put, "Whether this Debate shall be adjourned till Eight of the Clock To-morrow Morning?"

It was Resolved in the Affirmative.

Adjourn.

Dominus Cancellarius declaravit præsens Parliamentum continuandum esse usque in diem Martis, 27^um diem instantis Maii, hora octava Aurora, Dominis sic decernentibus.