Saturday, November 16.
[The Vote of the Lords (fn. 1) concerning the impeachment of
the Earl of Clarendon was taken into consideration.]
Earl of Torrington
(fn. 2) .] Moved, that the House would
not depart from the privileges of the Commons of
Mr Lau. Hyde.] Moves, that rather than the Earl of
Clarendon's case should set the two Houses at difference,
the Earl may be brought to his tryal to answer the crimes
objected against him.
Colonel Sandys.] Moves for protestation.
Mr Waller.] The Lords stand upon some things they
were not wont to do, as in the Militia.—Pray God it may
be as useful as burthensome!—The Lords scarce touch
that great burthen with one finger, assessing themselves
by one another, the burthen lying upon the forty and
fifty pound Members—The Court of Rome began their
power in great humility, but at length grew great by
their in ordine ad spiritualia—And so the Lords in
ordine ad judicialia.—The Pope lost most part of the
northern kingdoms by it.—Concludes, that to ramble too much into antiquity is as dangerous as to innovate.
Mr Vaughan.] When precedents were pressed, it was
urged, that usage of Parliament was the properest way.
Some of the precedents were not answered at all. They
said to that in H. VI. they cared for no precedent, for the
express law was against it.—Law, in a Lord's mouth, is
like a sword in a Lady's hand; when to be used, managed
awkwardly and uselessly.—The Bishops at the conference
so full of common law, that they had forgotten canon law.
—The Admiralty, as well as in canon law, commit without
showing cause, Statute mechant, staple, law of honour, or
law of arms, laws of the forest—All which do not proceed
by way of presentment, only that of the forest, but very
different.—Divers writs whereby persons are imprisoned by
way of suggestion only, without indictment or presentment.—Writ de excommunicato capiendo.—An ancient writ
de apostato capiendo, when any man ran out of his monastery.—A writ ne exeat regnum; this is colour sufficient
to take a man, the suggestion not traversable, and the
party imprisoned for want of security.—Writ de leproso
amovendo, imprisoned in these cases without indictment.
—By this course all impeachments in Parliament are taken
away without information.—For contempt we may imprison in the Tower, and yet all these not against Magna
Charta—For miscarriage, in the House, of a Member—
All impeachments then for the future must be in Parliament by way of indictment, and so we are no way considerable, but as the "four hundred to give money (fn. 3) ," and
so rise up remedy, go to thy remedy; no way being left to bring
any great person to justice.—If treason or felony be committed, it is lawful for any man to apprehend him; and
in hue and cry, the party may have his action or Habeas
Corpus, if innocent—The watchman may arrest a night
walker.—Our law has a remedy for all injury.—Where
the law gives no remedy, there is no right.—Damnum sine
injuria.—No injury where the law gives no remedy.—
Sometimes the Parliament is three states, as they are three
powers.—Sometimes as in law-making, where the King
is one.—If all the Commons accuse a man, it is impossible to call them to an account.—This judicial law is a
taking away the whole right of England.—The Counsel
the Earl of Clarendon gave, is not so dangerous as these
proceedings.—The measures upon the House of Commons, may spread like a gangrene every where.—Whatever the ill is, the Upper House is the cause of it, that
being the true name of it; a Grand Jury being Peers as
well as they.—No such thing as Pares Regni.—Their
greatest judicial power is from the House of Commons.
—The Lords are Tryers, but like a Jury, the Lord High
Steward being constituted by the King, for matters of
fact.—Moves for a Committee of six to draw up a protestation against these proceedings, thereby to maintain
Mr Coleman.] Would agree with the Peers, they having modestly dissented from us only.
Mr Prynne.] Writ de apostato capiendo, by certificate
from the Abbot or Prior that the person is gone out of
his monastery in secular habit, to the great scandal of
religion.—All this is for particular cause; and the writs,
he says, cited by Mr. Vaughan; the same law is for the
Sir Robert Howard.] That the House of Commons
shall not be capable to judge of treason, not so much as a
private Justice of Peace, is the question.—Moves for a
protestation, to give an account of ourselves, in nature
of a declaration or remonstrance.
Mr Vaughan.] Would have the thing drawn up, and
then to judge of it.
Sir John Goodrick's expression of the people, calling
them, bellua multorum capitum, gave offence.
Mr Garroway.] Moves that the protestation may tend
to move the King to do us right in this business.
Sir Edward Walpole.] Thinks it too indifferent a way;
would have it plainly expressed; would have him brought
to justice.—But against a protestation.
Mr Waller.] The people are at home no where but in
the House of Commons, knock when you will.—Strange
that the Lords should take more care of the Commons in
protesting, than the Commons do of themselves.—Many
speak of the danger of protesting it, but none of not
doing it, and so lay all upon our own backs.
[Resolved, That a Committee be appointed to draw up the
reasons of the present proceedings.]
[November 18, 19, and 20, omitted.]
Thursday, November 21.
[A message from the Lords, by Sir William Child and Sir John
Coell, to desire a present conference.]
Mr Vaughan.] Naturally a free conference should be
desired.—If we admit, and they require, special cause,
and if afterwards they require a free conference, where
are we ?—They will insist upon what they did before.
(fn. 4) .] It is free for either House to demand a
free conference.—The Lords have not voted any binding thing, nor we.
Sir Robert Howard.] The Lords say, they have not
agreed to our reasons, and no more; and so we are locked
up from proceedings, and cut off from all possibility of
reasoning with them.
Sir William Coventry.] It is as reasonable that the Lords
should send their reasons at a conference, as well as we
ours.—Who knows but that the Lords reasons may as
well convert us as ours them.
Sir Richard Temple.] This being a message only, the
Lords are not to have a free conference; but we may,
by our Messengers, desire one.
Mr Vaughan.] This is a denial of a present conference, which is dangerous.
Mr Scawen.] The house that is denied a conference,
has a right to ask a free conference.
The Speaker.] In the legislative power we may demand a free conference, as upon the amendment of a
Bill; but in the judicial, not.—It was denied in the case
of Lord Mordaunt.—This a point of judicature.
Mr Vaughan.] If the Lords refuse free conference, we
must never move them in the same nature again, and
eternally no fruit of this business, but sending up the
impeachment, and consequently we must make a protestation against the unjust proceedings of the Lords in
this business (that it may not lie at our doors,) and a
remonstrance of the injustice of that House.
Mr Swynfin.] The Houses deny always with reasons,
not peremptorily; and from thence arise conferences.
Mr Vaughan and Sir Robert Howard] Move for sending a present answer to the Lords message by Messengers
of our own, and so the true method of conference may
Mr Waller.] Go first to the conference, and then resolve on protesting, or what you will.
Sir Thomas Littleton.] In Lord Strafford's case the
Lords desire a Committee of both Houses, if the occasions of the House of Commons will give leave.—The
Committee of both Houses not select, but in the nature
of a free conference.
Mr Waller.] Conference from us is precarious.—The
Lords have denied it; we may deny it also.—Both they
and we may, when bars are against us, by votes, or
otherwise.—In cases of adhering, that a Bill falls to the
ground, conferences are denied.
The Speaker.] Conferences never demanded upon
Mr Waller.] Additio probat minoritatem in heraldry.—
The Lords say, they have the only privilege of desiring a present conference; we a conference only.
[The answer of the House was, that, being in a great debate,
they would send an answer by Messengers of their own. Sir
Robert Howard went up to the Lords to desire a conference, and
acquainted the Lords, that the House conceived there was a mistake in the last message, and that it should have been for a free
conference, by the usual course of proceeding between the two
Houses.—Sir Robert Howard reports from the Lords, that they
had consented to a present conference, and it was agreed to by the
Friday, November 22.
[On the examination of the French Merchants in relation to
Mr Ashburnham, a Member, who received a gratuity from them
for promoting their business (fn. 5) .]
Sir Job Charlton said] Concerning his accusation,
(meaning that light which Mr Hartlibb, the French Merchants Sollicitor, gave of the 500l. the Merchants gave
him) they were like the Devil, both tempters and accusers.
It was said, kneeling to receive his sentence is not for
punishment merely, but for an acknowledgment that the
censure of the House is just.
[The resolves of the House, in this case, were these, That
Mr John Ashburnham, in receiving the 500 l. from the French
Merchants, hath committed an offence to the dishonour of the
House, and contrary to his duty as a Member thereof:—That
he be discharged from his service in this House, and a warrant
issued for a new election in his place.—The House having notice
by Mr Cofferer (Colonel William Ashburnham) that his brother,
Mr John Ashburnham, was gone home to his house ill of the
gout, the House thought fit to forbear to send to him to receive
his sentence at the bar:—And it was ordered, That the Clerk
should give Mr John Ashburnham notice of the resolves of the
House concerning him.
The persons that were accused of receiving wine from the
French Merchants, were spoken of, viz. Lord Fanshaw, Col.
Kirby, and Mr Crouch: Some were in the Merchants lists that
never had any, as Sir John Birkenhead, Col. Kirby, and others.
The Serjeant had fifty guineas, and Golesborow the Clerk, and
March his assistant, twelve guineas. The Serjeant said, his was
due to him, part upon fees, and part as he was a Barrister, for
assisting the Merchants at the Lords House.]
Mr Waller, speaking against receiving in this nature
by Members] Qui leges fixit, leges refixit, a man takes not
so much as is given in a small bribe.—Sir Thomas More,
when Chancellor, caused the silver flaggons that were sent
him to be filled up with wine, and desired the man that
brought them, that if his master liked the wine he
might send for more.—Vitium temporis non hominis.
Saturday, November 23.
[The Debate concerning freedom of speech, resumed.]
Mr Vaughan.] Nothing lawful but may be made unlawful, if the intent be judged of.—Where a thing is
unlawful, the intent may make a trespass felony.
Mr Sollicitor Finch] Presumes that this Debate is only to
establish the ancient freedom of speech in Parliament.—
Would not build any thing on the vote of another Parliament.—We may be safe in voting them now, and
having the Lords concurrence, which will wipe away all
former stains of this nature.—Perhaps we are much safer
in an unknown limitation, than in describing the bounds
of this freedom of speech.—An Act in this case may be
subject to constriction, and so restrain the liberty we have
already.—The votes are not subject to constriction, but
do sufficiently condemn the former proceedings by the
Lords declaratory concurrence.
Mr Waller.] Argues the danger of circumscribing the
liberty of the House.
[Resolved, That the judgment given, 5 Car. I. against Sir
John Elliot, Denzil Holles, and Benjamin Valentine, Esquires, in
the King's Bench, was an illegal judgment, and against the freedom
and privileges of Parliament.]
Monday, November 25.
Sir Thomas Littleton, when he brought in the Bill
for settling the Heralds Office, (the substance, to make
descents matter of record) said] A descent cannot be made
out upon record but by Offices, tho' not now of much
use tenures cease.
[The Bill was ordered to be read a second time.]
[Report was made from the conference, at which the reasons (fn. 6)
of the House, for their proceedings concerning the Earl of Clarendon, were delivered to the Lords.]
At this conference Mr Swynfin, who was one of the managers, asserted to their Lordships—Reasons grounded
upon usage of Parliament.—When the Commons accuse
they have a charge.—Lord Strafford's case.—Finch and
Ratcliffe.—Bishop of Canterbury, (Laud)—The manner
of proceedings not annulled by the Act of repeal of Lord
Strafford's attainder.—Things in it relating to the attainder only repealed, the method of proceedings not repealed; and for the other three precedents, they took them
to be good.—They called that a clear precedent, when
the thing has been done.—Michael de la Pole imprisoned,
not for a charge, but by his own words.—He desired to be
cleared in Parliament.—The particular charge was common same, which was less matter than in the Earl of Clarendon's case.
The Lords answered.] The repealing word razes out
the Attainder and manner of proceeding.
Lord Holles understood this to be of that nature.
Answered.] This repealing had no relation to the manner of Attainder, only antecedent in time.
Bishop of Rochester (Dolben
(fn. 7) ) said] These were recent,
not ancient precedents.
Answered.] The newness of them gives them, in some
sense, the greater strength, as precedents in the Courts of
Another Bishop said] Times commend good prececents.—Things to be laid aside done in barbarous times,
as the Earl of Stamford's case.—They are good, or bad, as
the times are.
Mr Vaughan, a manager.] The 3 Car. Parliament's
objection when the Petition of Right was urged.—No
precedents against law.—Inferred, if they were against the
law, of no force, which was assented to; and if so, not
to be made precedents by the Commons.
Answered.] No imprisonment without special cause, by
the Petition of Right.
Replies, to the petition of right.] The occasion of getting it, was, that some persons were committed by the
King without special cause; the Judges could not bail,
release, nor try, not knowing the cause of commitment;
so it was remedied by Habeas Corpus.—Should be awarded, and if high treason, the Judge, without special cause,
The reason, they say, why the Judges did remand the
person, was, because they knew not the proof.—Upon the
Habeas Corpus the man is remanded in order to his tryal.
The badness of the times was alleged.
Answered.] If they meant the Scotish disturbance, in
that time good laws were past and in force.—If faulty
to one, then to the other.—War, was never in law, but
when the King's writs could not proceed.—At this time
the Courts were open, and it is strange their Court should
be invalid at that time, and none else.—There was a war
in Holland one hundred years, and no obstruction of justice. This the Lords replied not to.—The precedent of
14 Ed. II.—Spencer could not be committed by the King
without cause shown.—By special commitment from the
But this was replied, not to be for treason.
Hen. VI. 1. Lord Stanley's case.—The Commons upon
articles moved for imprisonment; but the King answered,
vult adviser.—This they could not allege to be treason.—
It is trespass only to the King.—When the offence is only
against the King, he may do what he pleases.—But it is
otherwise when impeached.
Arundel Bishop of Canterbury was, by the Commons,
accused for being put into a certain commission, which
the Commons would have treason, which was none, and
therefore not strange that there was no commitment;
but all this was repealed, 1 H. IV. and so as much annihilated as if never in nature.
The repeal of the Act of Attainder of the Earl of
Strafford cannot take away any thing that strengthens the
supposition of itself, it being recited in the preamble,
that he was impeached.—Mr Vaughan adds farther, that
the House of Commons must assume to themselves the
knowledge of treason.—We have many amongst us
Justices of the Peace, who have power of committing,
for treason, a Peer out of Parliament.—The ignorance
of the law excuses no man.
Answered.] The Lords have power in judicial proceedings, and must know what is treason; but it follows not
because the Commons know it, they have judiciary power.—Leak's case cited, about counterfeiting the great seal,
out of Lord Coke.
Sir Robert Howard.] The Lords told us we must have
a care of the liberties of the subject.—Bishop of Canterbury
(Laud) lay under a long imprisonment by a general impeachment, and it might be no treason at last.
Answered.] The times came on, and it could not be
sooner.—Special matter was no more than giving a formal title to the thing only.
Mr Waller.] Lord Ashley urged, that if the Commons had been then urged for special matter, Lord
Strafford had been safe, their accusation being constructive
and accumulative treason.—He answered, For matter of
fact the inducements were strong, for persons of good quality undertook the proof; so that none of his friends
could be against his impeachment to clear him, so no
heat was in the House.—Case of the five Members
urged, but that was a perfect war, they being brought
down by the trained bands, and great guns discharged,
and wondered they should bring such a precedent from turbulent times.
Sir Thomas Littleton.] The discretion of the Parliament ought to be unconfined.—Precedents in the beginning of the Long Parliament, before any tumults.—Message by Mr Holles, to accuse the Bishop of Canterbury of
high treason, and to be sequestered from Parliament,
Dec. 22, the message 18th.—In Lord Finch, prout ante,
he was not to be found, but ordered to be committed
when found.—The Commons so answered.—Nov. 19,
against the Earl of Strafford the Lord Keeper reported.
Answer.] The Lords doubt not but the Commons
have taken the matter into their consideration, and the
Lords resolved that the Earl be sequestered upon the
charge of treason.—Dec. 29, Sir George Ratcliffe's case.
—There was no desire of commitment; but the Lords sent
to know whether the Commons would commit him.—
Sir George was sent for from the Gatehouse, where the
Commons had committed him.
Sir Thomas Littleton.] That the Lords ought to commit him, and are pleased to commit him, different.
Objection.] By this way the Commons might empty
the House of Lords.
Answer.] They should not suspect us to empty them,
who had filled it with the Lords spiritual by restoring
[The report was, that "upon the precedents and reasons of the
House of Commons, and the whole Debates thereupon, the Lords
are not satisfied to comply with the desires of the House of Commons for sequestring from the House, and committing, the Earl of
Clarendon, without any particular treason assigned or specified."
The consideration of it was adjourned till to-morrow.]
Tuesday, November 26.
[Consideration of the report from the conference (fn. 8) .]
Mr Prynne.] What was done only by one Parliament
cannot be called custom of Parliament; Tertullian says,
Illud verius quod antiquius.—Thomas Arundel, Bishop of
Canterbury, was not secured till the first protestation was
made.—He was afterwards banished.—William de la Pole,
his charge, an untrue man.—The impeachment was general, and the Lords could not commit him.
Mr Swynfin.] No express cases, but of Michael de la
Pole.—In H. VI. and the long Parliament, in proceedings
by Bill persons were not secured before both Houses were
Mr Waller.] Commitment for high treason in general
a good commitment.—The person may have his Habeas
Corpus—Approved.—If the matter declared be specified
before commitment, the person might escape justice.—
Speaking to the business of Lord Strafford, for whom
he was in the long Parliament, said, they would take an
order with him, they were men of honour and as good as
their words.—They laid him by the heels.
Mr Sollicitor.] It is, upon the whole matter, a discourse
betwixt forms of proceedings and privilege of Parliament.
—If we call that treason which is really treason, no man
Mr Vaughan.] Parliaments are confined to no rules or
precedents, where there is a concern of their own safety.
Sir Thomas Littleton.] Record of 12 H. II. It is there
declared, that in great cases that concern the King and
kingdom, ways are to be made use of which tend most
to the common good.
[A free conserence was ordered to be desired with the Lords.]
[Information was given to the House, of a person who could
make a discovery of 65,000 l. cheat on his Majesty.]
Sir Thomas Bloudworth said] That a person would
discover, that ships were sent out full stored, and yet
recruited in ports soon after.—Mr *** of Bristol acquainted Sir William Batty with it, who bid him meddle
with his own business.
Mr Love.] One Gilsthorpe, a servant to Sir William
Batty, and Clerk in the Office, discovers things of this
nature.—The sick person, on whose conscience these informations lay, desiring, before he died, to discharge his
conscience, caused this information to be given him, and
Sir Thomas Bloudworth, who, if he could have his books,
which he was not able to peruse, he could discover
much of this—His brothers and others said, they were
afraid of discovering for fear of being put out of the payment of what is owing him for waste cloaths, 500 l.
value—His brother was sent down to survey the ships,
who found 3000 men wanting; he conjectured that
the commanders connived at their running away, and so
had their tickets—A master's boy enlisted for a midshipman, and entered for an able seaman, at 24s. per month,
and he but a boy at a noble per month—Other persons,
he desires their names may be concealed, untill the bill of
accounts be in practice—Sir William Warren brings not
materials, as masts and other things against the war, as he
had contracted for, but long after—Other things stood
the King in eight times as much as they were worth,
and they dare not speak of higher values for fear of losing their moneys due to them.
[An enquiry was ordered to be made into the affair, and a reward promised if such discovery was made.]
[Nov. 27, 28, and 29, omitted.]