DIE Martis, videlicet, 8 die Martii.
The Earl of Leycester, Lord Lieutenant
of Ireland, was appointed to be Speaker
A Letter from the King, directed to the Lord Keeper,
Speaker of the House of Peers, was opened, and read;
The King's Letter, clearing the Attorney General.
"Right Trusty and Well-beloved Counsellor, We
greet you well.
"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.
"Given at Our Court at Royston, the 4th Day of
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.
A Message was sent to the House of Commons,
by Sir Robert Rich and Mr. Page:
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.
Their Lordships, or any Five or more, to meet
To-morrow Morning, at Nine of the Clock, in
the Painted Chamber.
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
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. *) whose Lordship is hereby
appointed to hear, settle, and determine this Business,
as in his Wisdom he shall think (fn. †) 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. †) shall attend] for the pleading of the said
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.
E. of Cambridge Leave to attend the King.
Ordered, That the Earl of Cambridge hath Leave
to go to Newmarket, to attend the King.
Delamaine may print an Addition to his Table for Ireland.
Ordered, That Mr. Delamaine shall have Liberty
to deliver to the Printer an Addition to the Table con
cerning the Propositions for Ireland; and that they may
The Messengers return this Answer from the House
Answer from the H. C. about the Trial of the Attorney General.
That they will send some of their Members, as Committees, to manage the Evidence against Mr. Attorney
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.
Then the Speaker told the Committee of the House
of Commons, "That they might now begin the Evidence they have to maintain the Impeachment against
Mr. Attorney General."
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.
"The Nature and Deformity is set forth in the Impeachment, which he desired may be read;" which
accordingly was done.
Then (fn. *) he observed, "That this Charge is of Three
"1. The advising and contriving of these soul Articles.
"2. The publishing and exhibiting of them into this
"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.
"He began, First, with the exhibiting of them,
which was 3 January 1641; that appeared by the
Journal Book of this House, which was read.
"2. By the King's Proclamation, reciting that His
Attorney General, by His Majesty's Command, had
accused the Six Members of High Treason in the
"3. His Majesty's Letters to Dover, and other Ports,
for the apprehending of them; reciting that they
were accused by Mr. Attorney General.
"Next, he desired that Mr. Attorney's Answer
might be read; and therein, he said, that was Matter enough to condemn him; which was read accordingly.
"1. He confesseth the exhibiting of the Paper of
Articles, as a Message from His Majesty, and by His
Command; so they were brought in by him, and recorded in the Clerk's Book of the Lord's House.
"2. The Six Members were hereby actually accused
of High Treason.
"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
"4. A Desire to the Lords, to (fn. †) 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.
"This, he said, is so far from Satisfaction of the
House of Commons, or Qualification of the Offence,
as it rather aggravates and augments it.
"1. The exhibiting and promoting of these Articles
is, in Judgement of Law, an evident Demonstration
of his Contrivance of them.
"As in Case of Stolen Goods, the Receipt and Possession of them is an Evidence to a Jury of Life and
Death of the Stealing of them, unless the Party can
shew how he came by them.
" (fn. *) 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.
"In Case of a Libel, the Finder and Publisher shall
be adjudged the Author and Contriver of it, unless
he can produce some other Author.
"So here, the Publishing and Exhibiting of these
Articles by Mr. Attorney General is a clear Evidence
that he contrived them; the one doth necessarily imply the other.
"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
"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
"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. †) Him. This was that famous
Marham, who suffered the Loss of his Place rather
than he would suffer Shipwreck of his Conscience, in
"Fortescue, Cap. 8. proprio Ore nullus Regum usus
est, etc. videlicet, to commit, or consequently to accuse, any Man.
"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
"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. *) the
same, by special Command; so that provides against
"36 E. III. Rot Parliament. 22. more full against
"Stat. 27 E. III. Cap. 18 & 37. E. III. Cap. 17.
for such as are taken upon false Suggestions, etc.
42 E. III. Cap. 13. to avoid Mischief and Damage
done by false Ministers, etc.
"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."
Mr. Serjeant Wyld said, "That many Circumstances
of Aggravation might be added; as,
"1. Mr. Attorney's Knowledge and Profession in the
"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. †) 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
"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
Mr. Serjeant Wylde, having made an End of the Evidence, desired, "That, if Mr. Attorney will make
any Answer to this Charge, that he may speak himself."
Attorney General desires to be heard by Counsel.
But Mr. Attorney desired that his Counsel might be
heard for him.
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
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
The Committee of the House of Commons desired
the Judgement of this House herein.
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
Mr. Attorney allowed Counsel in Matter of Privilege.
And the House being resumed; the Question was
put, whether Mr. Attorney General shall have Counsel
in Matter of Privilege in this Case.
And it was Resolved affirmatively.
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."
The Committee of the House of Commons withdrew
Comes Leycester declaravit præsens Parliamentum continuandum esse usque in diem Mercurii, videlicet, 9m
diem instantis Martii, hora 1a post meridiem, Dominis sie