Thursday, May 15.
Sir John Trevor reports, from the Committee, appointed to join
with the Committee of Lords, &c. That the Committee had
made two Propositions to the Committee of Lords: [First, That
they did desire to see the Commission of the Lord High Steward,
and the Commissions to former Lords High Stewards.
Secondly, That they did desire to know, what Resolutions had
been taken about the Lords Spiritual being present or absent at
the Tryals of the Lords impeached.
To the first Proposition, the Lords of the Committee produced Copies of the Commissions to the Lords Stewards, for the
several Tryals of the Lord Morley, and the Lord Cornwallis:
But those Tryals were out of Parliament. Next, they produced
the Copy of the Commission for the Tryal of the Earl of Pembroke, for Murder; which Tryal was before the Peers in Parliament, and so differed from the two former Commissions.
The Lords did farther produce a Copy of the Commission
passed under the Great Seal, for the Tryal of Thomas Earl of
Danby, and also a form of the Commission for the Tryal of the five
other Lords impeached—And farther declared to the Committee,
"That a Lord High Steward was made pro hâ vice only: That
notwithstanding the making of a Lord High Steward, the Court
remained the same, and was not thereby altered, but still remained the Court of Peers in Parliament: That the Lord High
Steward was but as a Speaker, or Chairman, for the more orderly proceedings at the Tryals."
As to the second Proposition, the Lords communicated to the
Committee a Resolution of the House of Peers, in hæc verba:
"Die Martis, 13 Maii, 1679.
"Resolved, By the Lords Spiritual and Temporal, in Parliament assembled, That the Lords Spiritual have a Right to stay
in Court in capital Cases, till such time as Judgment of Death
comes to be pronounced."
The Lords explained themselves, "That the meaning of the
above Resolution is, That the Lords Spiritual have a Right to stay
and sit in Court, till the Court proceed to the Vote of Guilty, or
The second Proposition, being a matter of great weight and
consideration, the Committee of the Commons had commanded
him to report it to the House, in order to receive their directions
for their farther Proceedings. Journal of the Day.]
Sir Thomas Clarges.] It is necessary that you leave something upon your Books of what the Lords have resolved,
viz. "That the Lords may proceed to Tryal upon Impeachments without a Lord High Steward."
Sir William Coventry.] I would have the whole settlement of the matter entered into the Journal, under
one draught and regulation of it, for posterity to be guided by.
Sir Robert Howard.] I hear that the Lords are going
to strike at any method of Proceeding in Impeachments
of the House of Commons. Their first Vote is, "That
the Bishops shall not stay in Court at any sentence of Guilty, or Not guilty, &c." This is a dark Text, and should
have a Commentary. This does nothing to the case of Lord
Danby; it seems, they take not voting to the validity, or
invalidity of his Pardon, to be life or death. This gives
occasion to the Lords Spiritual to judge any Pardon good.
If the Pardon be not a good Plea, the charge is confessed,
and there remains nothing but execution to be demanded, and the Spiritual Lords call this nothing but matter of Law. Now their Canons are turned upon themselves. I have heard say, that if a Bishop kills a man, he
is to have one Tryal in Parliament-time, and another out
of Parliament; he is to be tryed by twelve men of the
neighbourhood. If this be so, no man shall be tryed,
but by his Peers, if Bishops sit. This is taken generally
so far for granted, that Mr Selden says, "They sit as
Barons in Parliament, as Jure Regis, and they are to
withdraw from the Tryals." If they were Peers in Parliament, it would be in their Blood and Generation, and
they must sit to appear upon Blood and Generation. This
seems, that they who exclude themselves from judging in
matters of Blood, by Canons and all Gospel business, have
some reservation upon this, to show an object of kindness, rather than Justice. Then see the state of this case.
Say they, "It is Guilty, or Not guilty." But in the Plea
of his Pardon, it is nothing; it is but only a point of
Law. If that be over-ruled, he is left to come over
again to Tryal. In short, that they who should avoid
Seats of Blood, should press this in particulars that they
deny in the universal, is strange. If in a surreptitious Pardon the Bishops come to help men, the Law of England
is in the power of one body of men, and the Statute 25
Edw.III. will be wholly voided, if the Party be so well instructed as to plead a Pardon. I would therefore give the
Committee instructions, wholly to disagree with the Lords,
as an Error of Judgment, if the Bishops sit, and so the
Judgment may be reversed.
Sir Thomas Meres, to what Howard says.] The Bishops
press not this; they leave it to the Lords. I know not
that the Bishops said one word in this matter. Now,
when the Lords judge, whether this Pardon be good, or
not, there it is you would have it proposed, whether the
Bishops shall withdraw then? I conceive, that the Lords
take it, as you do, that if the Pardon be good, or bad,
it is decisive, whether life or death. The same reason
carries it by their Canons. They are not to sit, for it is
life or death. I believe you will have the thing explained
to-morrow, and carry the point.
Sir William Harbord.] I desire not to be governed by
the Canons of the Church, but by the Laws of England,
When you sent up your Message to imprison Lord Danby,
the Bishops were very instrumental to save him from being
committed. I appeal, if they voted not against the Law
of England? The thing must be so settled, that posterity
may be safe. But suppose the Bishops exclude themselves,
as is said; if they judge to Misdemeanor, if that man
lose his life by it, or be saved, they judge in matter of
fact. If the Lords come to some determination, &c.
we may be safe. I would set this matter without dispute.
Mr Sacheverell.] Consider a little the state of the case.
It is a great point, and I would settle it so, as never to
trouble the House more. It is all one to me whether
they proceed in any part, or the whole. They have
power to acquit, and not condemn. I say, the Bishops
ought not to be present by the Law of England. If the
offences of Lord Danby turn to Misdemeanor, it is as dangerous as the Judgment itself. I would turn it thus,
"That in Capital Cases the Lords Spiritual have no Vote
at all, in Proceedings of Impeachment from the House of
Serjeant Maynard.] I look upon the whole matter to be
upon the old string, viz. to keep the five Lords from
Tryal. A great man may be pardoned toties quoties as
he can get a Pardon, let the offences be ever so great, if
this Pardon be good. The matter is now the Bishops,
&c. If their meaning be to deliver their Opinion,
"That this is a good Pardon, or no," it is all one,
whether "Guilty, or Not guilty," of the charge. Now,
was it ever seen that a Judge has power of one part of
the Law, and not the other? To do Justice on one side,
and not on the other? To save, and not to condemn?
The main end of all these things looks to another purpose. They may say, he shall be acquitted, but not
condemned, and so all the Justice of the Lords is shut up
against offenders. I would therefore have an express
Declaration from the Lords, "Whether the Bishops shall
judge in Lord Danby's Pardon?" Be pleased therefore to
appoint your Committee to offer their Reasons for a farther explanation of this Vote, to the Lords, and aboveboard. I did hear that one Lord should say, "That he
was for the Bishops voting, &c. because they would acquit Lord Danby."
Sir Robert Carr.] I will speak to matter of fact only.
Your Committee finding only, that the Bishops should
stay in Court till the Temporal Lords voted, Guilty, or
Not guilty, desired to know, "Whether their Judgment
upon Lord Danby's Pardon was taken for Guilty, or
Not guilty?" One of the Lords said, "He was for the
Bishops voting in the Pardon because they were for Lord
Sir Thomas Clarges.] For aught we know, the five
Lords have five Pardons. The Law says, "That the
King can do no ministerial Act." But the King took
the Seal from the Chancellor and sealed Danby's Pardon.
The five Lords may, at the Bar, produce such Pardons
as this. It is plain, that this Judgment of the Bishops
is a Judgment in part, to acquit and not condemn, so that
all this Proceeding upon the Pardon will be coram non
judice. So that if the Bishops will take all this upon their
shoulders to obstruct the Justice of the Nation, let them
bear it themselves.
Sir Thomas Lee.] Two or three things have startled me
much. I find this is a novel thing. In Lord Strafford's
case, there was no Question of the Right of the Bishops,
and this matter never came in question. The Lords did
commit Danby early in this Parliament, and said, "It was
fit a new Parliament should correct the Error of the last."
This may prove an Error in the proceeding, if the Bishops judge the Pardon, and the next Parliament may
restore Danby. As long as we keep old methods of proceedings, there is no harm. The Lords say, "the Bishops
may be in Court," but say not, so long, and no longer—
In all cases, as they call themselves "the Great Court,"
they will make what Rules they please, to be observed.
But those that are Judges of methods, by the same reason may be Judges of life and death, and dispense with
their own Canons. I would have this matter stay, till the
Kingdom is at better leisure to dispute it. If the Lords
had said, "That the Bishops shall withdraw, or stay so
long, and no longer," yet I cannot be satisfied, if
they shall say, "The Bishops shall withdraw for this
time, and may resume it in another." I would not make
one step till this matter be adjusted, and go on with no
Sir William Coventry.] You have been told what has
been done in the case of Lord Strafford. There was a
Committee then to consider, whether to try him in the
Lords House; for said the Lords, "The Bishops will
be absent, and the Barons may sit upon their Benches."
For this that is the proper Question before you was,
"this stay," stirred by your Committee. One or two
of the Lords said, "They would move their House in
it." I see no fruit of voting any thing, till you see how
the Lords will proceed upon it, and possibly you may
have satisfaction from the Lords, and you may avoid
doing it. It is necessary only to have your Committee
at liberty to urge this to the Lords to-morrow.
Sir Francis Winnington.] The Debate now is the Jurisdiction of the Lords in Proceeding, &c. I am unwilling to give offence to the Lords, or to let them have
a Jurisdiction unusual. When the Question was proposed, "Whether the Bishops should withdraw," it was
Answered, "They should, at the Vote of Guilty, or Not
guilty." But now, so far as the thing stands, we must
look to our Rights in Proceedings. If that be a reason
for their stay, that the Bishops may countenance the
Pardon, it is in vain to proceed in any matters of Parliament, till that be settled. I will not enter into the
Debate, how far the Bishops may be present in point of
Blood. I propose this as to matter of Jurisdiction. If
we see the Lords Proceedings not coherent to Law, we
are as interested in that as the Lords are in the Judgment. When we think of the Chancellor's Speech,
that this is the cogent time, that all is at stake, I did not
think these difficulties would arise. Those who raise
them will do it for the five Lords in the Tower, as well
as this Lord. This, to my understanding, extends to all
Pleas, Guilty or Not guilty, to life and death, "No:"
But to pardon or not pardon, "Yes." But surely the
Bishops are better versed in the Art of Disputing, than to
stick to that. They will not judge what the life of a man
depends upon, but to save him. If I knew their meaning, whether they would do this in all cases—Whether
in a Pardon only, or where life and death is immediately
judged. If we meet with this, it is our inheritance we
have in the methods of the Court in their Proceedings,
as this is of Judgment, and we may interest ourselves
Mr Vaughan.] This thing is of that consequence, and
one of the fatalest and most absurd things I ever saw.
From Edw. III's time to the Tryal of Lord Pembroke
(fn. 1) ,
the Bishops never sat in Capital Judgments, and they have
formerly made a Declaration of Parliament, that they
ought not to sit. The novelty of the thing makes me
jealous, that it is for some particular end of their own.
They are Judges for themselves in this matter, in the
Lords House, and vote. If they were absent, you would
have another account of it. They pretend to sit upon
this Pardon of Lord Danby, and I pray God they sit not
to pass Judgment upon their whole Function!
Mr Powle.] The House is possessed of the matter only,
I will speak to the manner. If you dispute with the Lords
about Rights and Privileges of their House, it will be
dilatory, and I would not enter upon it now. This day
this proposal was made to the Lords, and they seemed to
intimate that they would move it. If it prove contrary
to-morrow to your desire, then I would confer with the
Lords about it. But if they tell you, "The Bishops
will not meddle with it," you may then decline it. You
may instruct your Committee to insist upon having a resolution from the Lords to-morrow. But for to-day, I
would lay it aside.
Sir William Coventry.] If I had an intention to save
the Lords in the Tower, I would contest with the Lords
upon their Jurisdiction in this matter; but if you put it
as it is moved, it will put an end to all things.
Sir Thomas Lee.] I do say, that, next to my fears of
the Pope's Jurisdiction, I apprehend heightening the
Mr Sacheverell.] If in this case Gentlemen take a little
more liberty than ordinary, you may pardon them. If
the Bishops tell you, "They will be absent," does that
settle the Jurisdiction? Settle the point so that their voluntary withdrawing now does not entail their Jurisdiction upon you for ever.
Resolved, That it be given as an instruction to the Committee,
&c. That they insist upon it, that the Lords Spiritual ought not
to have any Vote in any Proceeding upon the Impeachments
against the Lords in the Tower
(fn. 2) .
The Bill to disable the Duke of York to inherit the Imperial
Crown of this Realm, was called for, and read the first time (fn. 3) .
Sir John Trevor.] First, consider, whether the Bill be
drawn according to your Order, before you give it a second reading. You now are going to dispose of the
most valuable thing in the World, the Crown of England.
But I cannot consent to this Bill; it is not drawn according to your Order. This does not only disable the Duke
from inheriting the Crown of England, but banishes him.
The Parliament may dispose of the Crown, but cannot,
without cause, banish him. I cannot consent to this Bill,
but I would not throw it out, but let it lie upon the Table.
Let Gentlemen consider well of it at this time; but I cannot consent to reading it a second time.
Sir Robert Peyton.] I move, that it may have a second
reading in a full House on Saturday.
Mr Colt.] If you lay it aside without a day, you will
give as great encouragement to Popery, as you have
given discouragement on Sunday last; therefore I am for
a second reading on Saturday.
Mr Powle.] This Bill is of great consideration, and
Saturday is too soon for a second reading. If ever this
Bill be put in execution, it will cause great disturbance
in the Kingdom. If we be too hasty in it, both we and
our posterity may repent it.
Sir Thomas Meres.] If you do any thing in this matter, put it off your hands. If you will not do this, do
another thing. Something must be done.
The Bill was ordered to be read a second time, on Monday.
In the Afternoon
Counsel was heard to the affirming or annulling the Judgment given by the Judges in the Case of Sir Samuel Barnardiston,
and the Sheriff of Suffolk, upon a false Return (fn. 4) .
Mr Pollexfen, Counsel for the Reversal of the Judgment (fn. 5) .] An
Action upon the Case was brought upon a Writ directed to Mr
Soames, High Sheriff of Suffolk, to elect a Knight of the Shire in
the room of Sir Henry North, deceased. The Sheriff returned Sir
Samuel Barnardiston duly elected, but caused a false Return also
to be made of Lord Huntingtower and Barnardiston; which put
Barnardiston to great charges. An Action upon the Case was
brought against the Sheriff, &c. and Barnardiston had a Verdict
and Damages, and a Judgment in the King's-Bench for the
Plaintiff. A Writ of Error is brought to the Exchequer-Chamber,
where, upon divers Arguments, the Judgments were reversed.
Upon the whole matter, five Judges were for the Plaintiff, and six
for the Defendant; Rainsford gave no opinion; so that against
this Reversal is the complaint. What I am to show is the wrongful Reversal. I take it, by Rules of Law, that any man voluntarily, unjustly, maliciously, and without cause, being injured
in a false Return, the party may have remedy by an Action upon
the Case. It is impossible that two persons can be rightfully elected. For a man to be kept from the execution of an Office
of the greatest Dignity, by a miscarriage of the Sheriff, and put
to the trouble and charge of petitioning the House, surely this is
a wrong sufficient: And this false Return was the Cause.
Words, though otherwise not actionable, yet where they are to
the reproach of a man in his Honour and Dignity, are so. This
in the Case of a Parliament-man is much more a Cause of Action. If it be in the power of a Sheriff to make such false and
undue Returns, it may be such a mischief and inconvenience as
strikes at the being of Parliament. No sober man will venture
that service, when he must try over his Election. This, if permitted, will deter all sober men from standing. This may take
away the very being of Parliaments; if Sheriffs throughout England shall combine, there may be no Parliament, and their numbers are not so many, but they may possibly combine (and we
know who makes Sheriffs.) Suppose popish Sheriffs, and they
would return so many to make the House of their Religion, and
Double Returns of the rest. Thus you may have a Parliament,
and a legal Parliament too. This is a Judgment of so great consequence, that it deserves your consideration.
Sir Creswell Levens, against the Reversal.] We say, this Judgment was well reversed in the Exchequer Chamber, and it was
ill given in the King's Bench; because never such a one was
given before. We know we walk safely, when in the same
steps that others have gone in before us. In Mr Neville's case, in
1655, he brought an Action that could not be maintained. He
was elected, and omitted out of the Return, and that was removed into Parliament as an Action never brought before. This
Action, when brought, the Judges were not capable to proceed in,
as being to be tryed in Parliament only, and the Judges ought
not to meddle with it, and would not presume to give such advice as should not be binding. In 3 Edw. III. Records, Fo. 18.
& 19. an Information was against the Bishop of Winchester for
absenting himself from the Lords House; the King's Bench was
hasty in their Judgment—by original Action—Say the Judges,
"How can the King maintain this Action?"—It is an injury
to the whole Kingdom, and every man must sue him for his
non-attendance, for he is not the King's Member. 1 Char. a
Judgment was given in the King's Bench, and reversed by Writ
of Error, because they had nothing to do with matters relating to
the House of Commons. In the Statute of Hen. VI. if a Sheriff misbehave himself, there is a Penalty upon him, so much
to the Party, and the King, &c. How unreasonable would
it be, to desire an Act of Parliament for an Action of Debt,
for goods sold ! If the King's Bench meddle with one Parliament-matter, they may bring in all. Suppose an Action
be brought in the King's Bench, that the Person was unjustly
cited to the Parlaiment for Breach of Privilege against a
Member; or suppose an Action be brought against a Member for giving a Protection, whereby I have lost my debt;
surely the determination of this is in Parliament, and not
there. This Action cannot lie in this case, because the Sheriff
has no other way, but by a Double Return, to excuse himself. They say, "That the Sheriff has power to give an Oath,
and therefore has discrimination of who are Freeholders." But
the Statute says not, "Whoever swears that he has 40s. a year, is
a Freeholder," but "he who really has so." Suppose one swears
"that he has 40s. a year," and another "that he has not 40s.
year," or "that the Party has got it fraudulently," and the Sheriff
has not time to make his Returns in this case, as in other Writs,
for want of time to examine it—Should this be, there would be
great disorder in Elections, and the Sheriff has not time of deliberation: Therefore, where the matter is doubtful, the Parliament
is the proper place to decide it in. It did appear in this Election, that there was great sctutiny, and it was not carried by
many voices. And must the Sheriff therefore hastily judge it?
Here not a Return made to the House of Commons, and
was it not the business, and is it not the business, of the House
of Commons to decide it? The House of Commons has judged
this Return, and given Judgment upon it, and the House found
no fault with it. They determined the Election, and found
not the Sheriff culpable nor blameable, and punished him not.
This cannot be said to be an unlawful thing, when they had
judged it lawful; and what is the Judgment of the House of
Commons, is the Law of Elections. But what is said, "this Return was made falsly and maliciously," will not bear an Action
—But there must be another ingredient—Suppose a tree shelters
a man's house, and I cut it down, and his House is blown
down, and he charges me with maliciously cutting it down—
The last reason is in the manner of the Action: "He is kept
out from sitting in the House, and put to charges, &c." I answer, he came not to sit here for his own benefit, but for the
Kingdom's. At the same rate, every one of the Electors might
bring an Action against the Sheriff. He has brought his Action
against the Sheriff for keeping him out of the House, and for
charges to get into the House. For this reason, I conceive that
the Judgment was ill given in the King's Bench, and well reversed
in the Exchequer Chamber.
Mr Holt, against the Reversal.] The Law gives no Action of
the Case against a Judge; you cannot have an Action of the Case
against a Grand Jury-man, for making or causing his neighbour
to be indicted. This is done in a public, and not clandestine
manner, in conspectu omnium, and the Law suffers no averment
against his honesty and integrity. There is no profit in being a
Member of Parliament; it is an Office of burden and attendance;
there is no profit, and therefore no loss. A Justice of the Peace
was called "an ass, a coxcomb, a buffle-headed Justice, &c." an
Action of the Case was brought in the King's Bench, and it was a
great Debate, &c. that an Action could not lie, because a Justice
of the Peace has no profit by it, and therefore no loss. Lord Coke
speaks of damnum sine injuriâ. Barnardiston might have chosen
whether he would be a Member of Parliament, or no. It was
his own inclination, and therefore there was no necessity. The
Sheriff doubts the Election, and therefore makes a Double Return; and it cannot be said, "That the Sheriff does it falsly and
maliciously," when he doubts, and no Action of the Case can
be brought against him; it is not an Office, or Tally, or Profit,
but voluntary, &c. I doubt, that the Return at Common Law is
no Return. The Judges therefore must not take cognizance of
the thing, of a Double Return, because the Parliament does it
only. Suppose, as has been alleged, a Popish Parliament should
be returned, (which God forbid !) Westminster-Hall cannot judge
of that. In Elliot's Case, &c. because it touched or concerned
the Parliament, though it was a Battery, the Judgment was reversed in the House of Lords; and better a cause of this nature
should be utterly lost, than the Privilege of Parliament invaded.
Mr Pollexfen.] The first Objection is, "That no such Action
was ever brought." But we find such new contrivances, that
there must be new Actions for remedy; as often as new Cases
arise. There were always Writs framed for Actions of the Case,
that the people might not say, that the Law was defective. In
Jones's and Bulstrode's Reports, there is an Action of the Case
for accusing a man wrongfully of Treason. There was lately an
Action of the Case brought for seducing a girl to get her hair to
make perriwigs, which is no Felony. The Case of buying and
selling Negroes. New Actions must be brought for new cheats
and tricks. I cannot say how old Double Returns in Parliament
are; but I have heard a Parliament-man say, "That there
have been more, in twenty years last past, than in all the world
before." Suppose, in the Ecclesiastical Court, an Apparitor, or
Summoner, returns a Person summoned, that he has not summoned, the Law judges it, though it be in another Court, and
if the Party be damaged, he has an Action upon the Case. As
for Sir John Elliot's case, &c. that was for matters in Parliament;
that was for words against the King, and laying hands upon the
Speaker. But admitting that was in Parliament, is this case of
Barnardiston a matter of Right in Parliament, of liberty of Speech?
—The Return is not into Parliament: I take it, that gives a
difference (Dyer 168.) Colonel King exhibited a Petition against
Sir Edward Lake at the Committee of Grievances, which set
forth Misdemeanors, &c. Afterwards, an Action was brought
against King, for a scandalous Petition, &c. Though this was in
Parliament, yet it concerning not Members of Parliament, it was
judged for the Plaintiff, because he could not justify the printing
of his Petition. As for that of 3 Edw. III, it makes not one way
nor other. As to the Statute of Hen. VI. objected, &c. it is frequent, that where there is remedy by Statute Law, there is remedy at Common Law too, as in a multitude of Cases.
Sir Creswell Levens.] In Smith's and Crashaw's Case there was
an Action upon the Case brought for indicting a man for High
Treason, and Felony, both Capital. It cost three years time
before Judgment was got. But I challenge any man to show
me a Case of an Action brought for any matter depending in Parliament. In the Case of Sir Edward Lake, and Colonel King,
an Action was brought for Papers delivered to Parliament-men
at the door, which were Libels, &c. But what relates that Case
to this, which was a false Return in the Parliament House? This
Petition was but a Paper of information of his Case delivered to
Parliament-men. It may as well be objected, that 40s. a year
for a Freehold, is too little to make him an Elector, as that the
Penalty of the Statute is too little for a false Return. The Courts of
Westminster-Hall cannot alter the Law. It is for the Parliament to do it; and shall Privilege of Parliament be controuled
by Westminster-Hall? If there be inconvenience in it, you are
the judges of it. In the case of Lake and King, Lake had printed the Petition before he presented it to Parliament, but King could
not have brought his Action after it had been depending.
Another Action was brought by Lake against King, for printing a Petition, &c. Said King, "I presented my Petition before I printed it, and then I printed it." And so no Action did
lie in the case.
Serjeant Maynard.] I would put it upon the learned
Gentlemen to show you any Action upon the Case brought
before Hen. VIII's time. As for that Case cited, of a
Writ in a Sheriff's pocket, and not executed, an Action
upon the Case was brought. That which is proper before you to consider, is the Grievance—He hath his proper remedy at the Lords House, by Writ of Error.
The Action was not brought upon the Double Return,
but for the Sheriff's maliciously being a Party. This is
proper to be remedied. You may redress it by Act of Parliament, but not judge whether it be right, or no.
Serjeant Stroude.] This is the first cause of this nature,
that ever came hither, in matter of Law. Here is not a
word of Corruption or Bribery in it, &c.
Friday, May 16.
Some of the Amendments made by the Lords to the Bill of
Habeas Corpus, (which see in the Journal,) were this day rejected,
and others agreed to by the Commons.
Saturday, May 17.
Sir John Trevor reports, from the Committee of Lords and Commons, [That the Lords had communicated to the Committee certain Proceedings of the House of Lords, which he read in his
place, in these words:
May 16, 1679.
"Resolved, &c. That Thursday next be appointed to begin the
Tryal of the five Lords in the Tower, &c.
"After which Resolution passed, The Lords Spiritual asked
the leave of the House, "That they might withdraw themselves
from the Tryals of the said Lords, with the liberty of entering
their usual Protestation." And that the Committee of the
House did desire the direction of the House, how they should
Mr Sacheverell.] If I understand the Report right, this
is clearly in contradiction to what both you and the
Lords have agreed upon your Books already. The
point of time of Tryals was the last thing to be adjusted.
I farther observe, that the Lords have not in any sort agreed
that the Bishops have no Votes in the Tryal of the five
Lords. The Lords Spiritual are so far from it, that they
ask leave to be absent. As to that point, which the Committee did insist upon, I think the Lords have made no
Answer. I conclude, that the Lords apprehend, very
rightly, that, should the Lords make a difference between
the five Lords and Lord Danby, that would look too
broad in the eyes of the Nation, that you should not argue
the Pardon; which I value more than any ten Lords Tryals. If these five Lords only are taken out of the way, and
you confirm this Pardon to Lord Danby, you make the
King absolute. Any man may then embezzle the King's
Revenue, ships, and stores, and may produce a Pardon.
And what difference is there between that, and Arbitrary
Government without Law? I would show this to the
Lords, as the great concern of the Nation, and that the
Commons will never give that Power away; if they do,
they are undone. If once you admit this Pardon, in bar
of Justice, against the Commons, who shall call them to
account, when they have a Pardon to help them?—And
new Judges will be taken to assist to make it good, and
there is an end of all. You have demanded Judgment of the
Lords about the Pardon, &c. and have had no Answer; and
when the Tryal of the five Lords is over, they will settle
the Pardon (by the strength of Danby's friends in the
Lords House) and there is a Precedent upon you eternally.
No; I would let the Lords know, that we value settling
this Pardon, more than any five Lords, and that the
Commons will not give them such a handle to undo
themselves; and let it lie at the Lords door. And I
would let the Lords know, "That it is contrary to
their Agreement, and that, till the nature of the Pardon be tryed, we cannot proceed."
Sir Robert Howard.] What has been said, is so well,
that I shall repeat no Arguments; but I will come closer
to the distinction that is made, and by that distinction it
will appear closer to you, what the thing is. But here is
a recedency in the Bishops; but the receding is to such
and such Lords, but not to Lord Danby. When you
sent up the Impeachments, the rest of the Lords pleaded
guilty, or not guilty. Danby takes the choice of another advantage, viz. "That of his Pardon, which he will rely upon."
You say then, "That his Plea was guilty, for he confesses
the Charge by pleading his Pardon." Upon which you
demand Judgment. If his Pardon be good, he has the
benefit of it; if not good, nothing remains but sentence.
Now this is, by the recedency of the Lords Spiritual, a
kind of tryal of skill. When the Pardon is good, or not
good, there is a reservation of Guilty, or Not guilty. This
shall only in the consequence be to stay Judgment. This
is a good way to tie up all declaratory Treason. I only
add, if this is taken here, that this is a Plea of Pardon,
and by which Danby must stand, then the Lords Spiritual
ought not to be present. It is plain that the Bishops
will sit upon this of the Pardon, and not on the other
five Lords, &c. You ought to be clear first in this case.
We take Danby's Plea to be his Issue; and if so, you
ought not to proceed till this is determined.
Sir Thomas Meres.] I agree that the Bishops ought as
equally to withdraw in one Tryal as the other. I agree
that it is the interest of this House and England that the
Pardon should not stand good. There are six Lords
concerned in the Tryal, in the Lords House, and the
Bishops have complied with five of the six to withdraw;
and I see nothing but that the Lords House may comply
with five of the six—I do not say, but that there is a
shorter way to be rid of Danby and his Pardon. If fairly
and regularly the five Lords may be tryed, we may, for
discountenancing of Popery, go on with them and finish
Mr Montagu.] I have been silent in this matter of
Lord Danby, out of respect to the House, left it should
look like private pique against him, &c. But since, by
his Pardon, I have made observation that the Justice of
the Nation will be stopped, and that by his ambition he
may be on the same foot still, to the ruin of the Nation,
I would not proceed to the Tryal of the other Lords till
this be over.
Sir William Pulteney.] Till this Pardon be judged,
you can have no fruit of the Tryal of the five Lords,
&c. If they get Pardons, all your Proceedings are to no
purpose; though there is some difference between Pardons, impending Impeachments, and not impending. If
the King can pardon, &c. there is an end of all your
lives and liberties, till you settle that.
Sir William Coventry.] I differ, &c. because the safety
of the Nation depends upon a good correspondence between the two Houses. I am afraid, if this dispute is
inextricable, we shall have all the disadvantage in the
world abroad, who do not see the matter so plain as we
do, and so will lay the blame on us. The power in Judicature is always in the Lords, and in Bills we have an
equal power with the Lords; but even in that, time and
place are in the Lords nomination. If in a thing wherein
we are co-ordinate with the Lords, they have that power,
it will be dangerous to pass this Vote, &c. Gentlemen would have this matter of the Bishops clear—Thrust
the needle through, and the thread will follow; you will
have it in all. Divers Bishops have said, and do say,
"That if the Pardon do determine Danby's life and death,
they will withdraw." If the Lords determine not that
point, I am not sure that Danby has not a second post to
pass, to pretend his innocence. What is the prudential
Reason of Danby's first expectation?—The five Lords
have been seven or eight months imprisoned, and we assert
the Habeas Corpus, &c. "That the subject shall not be
without Tryal." Shall we assume that to ourselves, and
stand in that gap which the King has no power to do?
Will the Proceeding against the five Lords make Danby's Pardon better or worse, when it comes to be judged?
But have not the five Lords Pardons? some may say.
But that thing would be so odious, that it will bear down
Danby's Pardon, and twenty more on the back of it, so
that the thing weighs down on that side of the argument.
If the Bishops shall not withdraw, then it will follow,
that the Bishops are partial to Danby, and the weight
and odium will lie on the Bishops. Whoever wishes
the Bishops well, would have them do neither. This will
plain the way for Danby's Tryal, &c. If we do not
agree with the Lords, we know not how the Lords will
insist upon the constituent power of their House; so that
if you would secure your passage to all the rest, instruct
your Committee to agree to the Tryal of the five Lords
Lord Cavendish.] I agree with Coventry, "That the
Nation expects Justice against the five Lords," and against Lord Danby also: (By the way, I think him as
great a Criminal.) We are not to consider what the Nation expects, but what the Constitution of the Government is. Why was this Committee appointed? The
five Lords Tryals may be long, and I know not what
there may be of Prorogation. I move, "That you will
not agree to the Tryal of the five Lords till the validity
of the Pardon be decided."
Mr Bennet.] The meaning of what is done in the
Lords House is to cozen and cheat us of the Rights of
our House, and in this it is more than the Tryal of
twenty Lords. They will put the Pardon by, till the five
Lords are tryed, and so they shall never be impeached,
&c. My meaning is to impeach any Lord that shall
play the rogue with us; you must supply the King,
when you have Lords picked out, fit to be hanged for
the ill they have done—Your fault is, that you did not
proceed upon that Lord's stamped Pardon by creation.
When the Lords feel the Commons of England, then
they will be honest.
Mr Vaughan.] The Question is, "Whether all crimes
shall be legitimated and pardoned?" Which will be so,
if this Pardon stand good. Some things are Laws, and
as obligatory as Statute Law. For instance, the Powers
of Parliament are Laws, but the effect of those Laws is
Right of Impeachment, and that is your Right, and if
this Pardon stand betwixt you and home, Law and all is
gone. This is equal to any thing whatsoever; if there be
no punishment to these crimes, that tears you up root and
branch, and farewell all!
Sir Joseph Williamson.] I speak to Order. Some of
these points are not now in question before you. If you
go upon the Pardon, or the priority of the Tryal of the
Lords, that is not properly the Question. The matter
plainly before you is, "That the Bishops ought not to
have a Vote in this Pardon." The Lords say, "They
will sit on Thursday to try the five Lords;" and the Bishops
have prayed leave of the Lords not to be present there—
My Motion is, That you will insist upon your own assertion, "That the Bishops ought not to be present, &c."
And it must be cleared before you can proceed to the
Tryal of any of the Lords. The Question is no circumstantial Question, but a fundamental Right of Judicature,
the fourth, fifth, or sixth part of the whole Judges. The
Question is, Who judges? Till that be decided, the Tryal will be nothing; for all may be void by error of
Proceeding, of which there have been several Precedents.
By that leave that is asked by the Lords Spiritual to
withdraw, it implies, if not amounts to a proof, that
the Spiritual Lords may sit if they please. Get this matter clear, and the other will follow; but I am far from
doing any thing whereby you may lose your Right, by
implication; it is affirming the point against you for ever
hereafter. In fundamental points who shall be Judges?
—Contrary to that, the point is settled against you;
therefore I would give instructions to your Committee,
to insist upon your last Vote, "That the Bishops ought
not to sit upon the Pardon, &c." and to desire the Lords
minds in that.
Sir Edmund Jennings.] By the Arguments I have heard,
it may be as well said, that the other Lords shall not
come to Tryal, as Danby, &c. and that Danby shall be a
sacrifice of expiation for the rest. It is said, "That the
Bishops have no right to sit." And who shall be the
Judges of that? If Coleman himself were now alive, he
could not more promote the designs of Popery than this
discourse I have heard. I move, "That you would let
the Lords know, that this House will proceed to manage the Charge against the five Lords, the day appointed."
Mr Bennet.] He speaks of "making Lord Danby a
sacrifice, &c." Nobody said that. The Question is now,
"Whether Pardons for crimes shall take away all Impeachments."
Sir Robert Carr.] The words "sacrificing Lord Danby" are a little too hard. If the Articles be true against
him, and the Pardon not good, his pleading his Pardon
is a confession of the Charge. If he is condemned for
confessing his Charge, he is not made "a sacrifice to
save others." The Question is, "Whether you have had
satisfaction from the Lords, &c." Now the Lords tell
you, "That, as to the Tryal of the five Lords, the Bishops are content to withdraw," and your Committee
was to adjust the Right of the thing. And whereas it
is said, "it is easier to get the point of the Bishops not
judging the Pardon, after the five Lords are tryed, than
before," now you see plainly, that the Lords insist upon
their old Vote of the Right of the Lords Spiritual to sit
till Judgment be given; so that upon your Vote the
Lords say nothing, and the Bishops insist upon it. I
think this is a new Judicature, to take Spiritual Lords to
judge in capital causes and crimes. The Lords themselves
settled the point, so that this should be the last thing
to be adjusted, and they have made it the first. Those
without doors think Danby as deep in the Plot as any of
the five Lords. But what cannot be pardoned if these
crimes pass? How appears it, but that the five Lords
have Pardons? And then neither you nor posterity can be
safe. If you settle not the point now, I believe you will
scarce have time to do it a second time.
Sir Francis Winnington.] I desire to answer some objections. It may be, some things are not fit to be expressed,
but I will speak plain. If we consider what the Lords
have done, as to the matter of the Bishops, there are two
great things before us. Lord Danby, the last Parliament,
desired time to answer. He renders himself, and pleads
his Pardon. You would then know, whether he would
stand to it; and he adhered to it. When we declared,
that we were ready to try the five Lords, the last Parliament, Jennings says, "Danby is to be a sacrifice." I
do believe Danby one of the Plot; to separate him from
the Plot, I cannot. He took his advantage to rise, by
his interest with the Papists, and hath stifled the Evidence of the Plot. He hath pleaded his Pardon, in bar
of his Charge, and confesses all the Charge to be true.
Now the Question is, "Whether you will do any business, if such a thing hang over your heads, as a Pardon
in bar to an Impeachment of the Commons of England?
Now, as for the priority in proceeding against him,
the Court always asks the Prosecutor, "Which Indictment are you ready with?" Who knows the Evidence best
to assign a time. It appears, that to one Impeachment a
Pardon is pleaded in bar. You have voted that it is not
good. If the Lords do think it good, to what purpose
should we impeach any man else? So that this is a bigger
point than the Tryal of Danby: Here will be no Impeachment for ever hereafter; it fell out first, how the Bishops
were concerned. It looks like a nice distinction, as if the
Popish Lords should be found not guilty, if Danby's
Pardon be good. Then, as to the Tryals of the five Lords,
there is a day appointed, and the Bishops say, "They will
withdraw at their Tryals," and, to be sure, Danby is not
one of them. They name the five Lords. Your Committee answered, "That this is an Answer to part, &c. but not
to the whole." And had they put Danby's Tryal sine die,
they said, "they had no Order to answer that." So that
Danby's Tryal is postponed. It is to no purpose to proceed to any Impeachment, till this preliminary matter
be removed, that stops all things for the future. After all
Proceedings are over, he will plead his Pardon in bar.
But, says a Gentleman, "If the five Lords have Pardons,
it is the worse for Danby." Can we believe, that Pardons will not be granted, when we see it has been granted?
It is to no purpose to spend out time and estates, when a
Pardon be thrown in your teeth, and there is an end.
"It is to no purpose to try the five Lords" (the people will say) "till we have asserted their liberties." And
I believe we shall have Logic enough to make the people understand us that sent us. I propose, that you will
give your Committee Instructions, "That you have had
an Answer in part, as to the Lords Spiritual trying the
five Lords, but you find no Answer to that of Lord
Danby." The great matter, which concerns the Government, is the Pardon of Danby. I desire that the Pardon may
be cleared, that we may have satisfaction in that point. It
may be, the Bishops have as much kindness for the Popish Lords, as for Danby, and e contra; for they do not
(it seems) stand much to their Votes. Let us stand upon
the Pardon, and then I hope the Lords will do you Right
as to the five Lords.
Sir Thomas Lee.] The Bishops will withdraw, with
Protestation to their Right, as they did in the case
of Lord Strafford. I am sure, the Pardon is illegal, or
ought to be so, and I am sure England is undone, that day
this is a good Pardon. But, says a Gentleman, "there
may be Pardons granted to the five Lords, betwixt Judgment and Execution;" but the Lords Spiritual tell you,
they will go away. How shall we satisfy Gentlemen in
the country that sent us hither? I agree, that, if the Government had depended, this Plot must have been, else
you could not have asserted this—Oates and Bedlow die,
and there is an end of your Prosecution. It is of the most
dangerous consequence in the world that this Pardon
stand good. If Danby be not the Creator of the Plot,
but the Supporter, let us be constant in our opinion.
Mr Swynfin.] I take not what is moved to be the most
convenient way with the Lords. If you make that your
ground to insist upon, consider how this communication
of the Lords has been with you. The Lords say, "They
have appointed such a day for the Tryal of Danby and the
other Lords." A day after, you appoint a Committee
to adjust the manner, &c. You considered then the Bishops presence, &c. and the Lords Vote, "That they
have a Right to stay in Court untill sentence of Guilty or
Not guilty, &c." Then the Lords appoint the five Lords
to be tryed first, and settle no point as to Danby. But to
the Tryal of the five Lords, they tell you that the Bishops
have asked leave to withdraw; they will not be present.
I would say, "That we have had satisfaction as to the
Bishops, in the Tryal of the five Lords, but not as to
Mr Paul Foley.] The Bishops have voted, as to this
Tryal of the five Lords on Thursday next. I doubt, the
Lords in Judicature will stand stiffly upon their points,
which they always do. I think you have not yet made
an Order for the Committee to insist upon your former Vote, as to the Bishops presence at the Tryal of the
Sir Henry Capel.] I think it not the Question, "Whether the five Lords be tryed first," but "Whether the
validity of the Pardon, to prevent the ill consequences of
it for the time to come." Parliaments sit upon two great
things, giving Money, and questioning great men for
offences, &c. and you had better part with your power
of giving Money, than that. You will be of no use at
all, if your power be taken away of questioning exorbitances in the Government. This is the great point,
and I move it for Instructions to the Committee, "That,
till this point be settled, you cannot proceed to any other
Mr Powle.] I cannot agree, that this Answer of the
Lords is satisfactory to your propositions. The Lords
have asserted their Right to be present, and then tell us,
"That the Bishops have asked leave to withdraw;" both
voluntary things; and the Lords may tell you, "That
their leave to withdraw is not accepted," and so they may
sit; and if the Spiritual Lords do not ask it, the Temporal Lords will not give it; and so you are where you were
before. At Lord Strafford's Tryal, the Spiritual Lords
sent you word, that they would withdraw; now, they
will ask leave to withdraw. The Lords have not dealt
with you according to intercourse of Parliament. They
tell you, "They will not proceed to Tryal, &c. till all
matters are adjusted," and now they set down a peremptory day for Tryal of the five Lords. I move, "That
the Lords may be desired not to appoint a day, till all
matters are adjusted." If the Lords will force a dispute upon us, and cram it down upon us, they may,
but let us not give them occasion. I would only desire
their Vote to be explained, as to the Lords Spiritual, &c.
and that they would not proceed to Tryal, till matters are
Mr Hampden.] For Instructions to the Committee, I
would have satisfaction, as to the Bishops, &c. before we
proceed upon Danby's Tryal. You were some time before you had the honour done you to have a Committee
of Lords and Commons for adjusting matters, &c. The
matter of the Lord Steward is well adjusted. The next
thing is, that of the Bishops being present, which is more
in relation to Lord Danby's Pardon than any thing else.
The Lords said, "The Bishops should not be present at
the Judgment of Death;" but when the Committee
urged that of their presence in the Judgment of the Pardon, the Lords say, "They had no power to debate
that." Then you proceeded to vote, "That no Bishops
ought to be present at the Tryal of the Pardon," and
the Lords go quite out of the way of that, and tell you,
"That the five Lords are to be tried on Thursday, and
that the Bishops shall ask leave to withdraw." The
Lords distinguish the Cases, and naturally have brought
you to this, and had appointed the time for Danby, &c.
before. This is not expressed, that the Tryal of Danby
is postponed, but plainly implied. I respect not Danby
in the matter, &c. but the business of the Pardon. If it
be so heavy a thing that nobody can bear it, yet if the
Pardon be good, what can the Nation bear? This matter
of the Lords Spiritual, &c. is less understood, because it is
less explained. What if there should come a Prorogation,
how will you dispute the Pardon then, and Mr Bertie's
Book, &c.? I can see no hurt in pressing the Lords to
go upon the Pardon first. I would therefore plainly know
the Bishops mind as to this of Lord Danby's Pardon, &c.
and then proceed to that of their withdrawing at the Tryal
of the other Lords.
Mr Garroway.] By the last proposition, there is no
danger of meddling with the Lords Judicature. The
Lords cannot be angry with it. All England is too heavy a weight for them to bear.
Sir Nicholas Carew.] The five Lords would destroy
the Nation one way by Popery, and Lord Danby another, by a standing Army, and Pensions to Parliamentmen, and would deliver us up to France that way. He
that takes away our Money, takes all, and he is as culpable as the five Lords. If you decide not this matter
of the Pardon first, you may be sent home before you decide the other.
Mr Sachevereli.] I would not give occasion of difference betwixt the two Houses, but I would preserve our
Right. I like what is proposed. I would know whether the Lords will proceed upon the Pardon, and would
have the Bishops explain themselves. You have demanded
Right against Danby, and the Lords cannot give Judgment, till you demand it, and so you cannot proceed
upon the other Lords, till then.
Resolved, That it be given as an Instruction to the Committee,
To insist upon the former Vote of this House, 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, this House shall then be
ready to proceed upon the Tryal of the Pardon of the Earl of Danby, against whom this House hath already demanded Judgment;
and afterwards, to the Tryal of the other five Lords in the Tower.
[May 19, omitted.]