House of Lords Journal Volume 12: 29 November 1667

DIE Veneris, 29 die Novembris.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

Bp. of Durham's Lead Mines Bill.

Hodie 3^a vice lecta est Billa, "An Act for enabling John Lord Bishop of Durham and his Successors to make Leases, for Three Lives, of certain Lead Mines."

The Question being put, "Whether this Bill, with the Alterations and Amendments, shall pass?"

It was Resolved in the Affirmative.

Message to H. C. with it.

A Message was sent to the House of Commons, by Sir William Childe and Sir Justinian Lewyn:

To return the Bill concerning the Lead Mines; to which the Lords do concur, with some Amendments and Alterations, to which the Concurrence of the House of Commons is desired.

Sir C. Stanley's Bill.

Hodie 3^a vice lecta est Billa, "An Act for enabling Trustees to make Leases, for Payment of the Debts, and providing for the Children, of Sir Charles Stanley."

The Question being put, "Whether this Bill shall pass?"

It was Resolved in the Affirmative.

Committee to prevent the Importation of Irish Cattle.

ORDERED, That the Committee appointed to examine the Complaints of Abuses to defeat the Act against Importation of Irish Cattle, and also the Committees to consider of the Deceit in making Woollen Draperies, do meet on Tuesday next in the Afternoon.

Mangy, D. of Bucks Servant, to be brought again by Hab. Corp.

Whereas, by His Majesty's Writ of Habeas Corpus cum Causa, directed to the Marshal of the King's Bench Prison, commanding him to bring the Body of George Mangy, a Prisoner in the said Prison, before the Lords in Parliament this Day, he was accordingly brought to the Bar:

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That the Marshal of the King's Bench Prison shall return the said George Mangy to the King's Bench Prison, and bring him again to the Bar of this House on Monday the Second Day of December next, together with the Writ abovementioned, and the Return thereof: And this shall be a sufficient Warrant on that Behalf.

Bill for taxing Adventurers in the Fens.

Hodie 2^a vice lecta est Billa, "An Act for the taxing and assessing the Lands of the Adventurers within the Great Level of the Fens."

Petitioners against it to be heard.

Upon the Second Reading of the Bill, intituled, "An Act for the taxing and assessing the Lands of the Adventurers within the Great Level of the Fens;" as also upon receiving the several Petitions of the Governor, Bailiffs, and Commonalty of the Company and Conservators of the Great Level of the Fens, of John Bridgman and Edward (fn. 1) Gent. George Under wood of The Spittle without Bishopsgate, in the County of Midd. Gentleman, George Underwood of Kensington Gentleman, John Childe Esquire, Thomas Batson of London Merchant, Thomas Osborne Gentleman, Jonathan Wade, David Offley of London Gentleman, and Michaell Holman Esquire, and Richard Holman Gentleman, relating to the said Bill:

It is ORDERED, by the Lords Spiritual and Temporal in Parliament assembled, That Counsel shall be heard, at the Bar of this House, on both Parts, concerning the Matters contained in the said Bill and Petitions, on Friday the 6th Day of December next, at Ten of the Clock in the Morning, whereof the Prosecutors of the said Bill and the said Petitioners are to take Notice, to the End they may be prepared accordingly.

Report of the Conference about committing the E. of Clarendon on a general Charge.

Next, the Lord Chamberlain and the other Lords appointed to manage the Free Conference with the House of Commons Yesterday reported the Substance and Effect of the said Free Conference, as followeth:

"This Conference was managed, on the House of Commons Part, by Sir Robert Howard, Mr. Vaughan, Mr. Swinfin, and Mr. Waller.

"The Introduction was made by my Lord Chamberlain; who told the Commons, That this Free Conference was desired by them; and though that House had lately declined giving the Lords a Conference when desired, yet the House of Peers upon this Occasion had dispensed with some Forms, to keep a good Correspondency with the House of Commons, and were willing to confer freely with them, and ready to hear what they had to say.

"Sir Robert Howard was the First that opened the Business. He said, This Conference was not upon particular Account of any Person, but in relation to Public Justice.

"The Lords closed in the same, and were very glad it was so understood; for they had no particular Regard to the Earl of Clarendon in what they had resolved, but to the Justice of the Kingdom; in the Administration whereof in this Particular, nothing was ordered in the Case of the Peer now impeached, which they should not have insisted upon in the Case of any Commoner.

"Then Sir Robert Howard and the rest of the Commons proceeded; and made the Subject-matter of this Free Conference to be some of the Reasons formerly given by the House of Commons, which they enforced what they could; and the Proceedings of the Earl of Strafford's Case, the Archbishop of Canterbury, Lord Keeper Finch, and Sir George Ratcliff's. But the Precedent chiefly pressed, was the Earl of Strafford's; on which by large Discourse (which intimated their insisting mainly on that) they urged that Precedents did shew best the Course of Parliaments, which was the Law of Parliaments; and that the Precedents they had vouched, especially that of the Earl of Strafford's, were clear in the Point; that the End of the Act of Repeal was to repeal the Act of Attainder, and the Proceedings relating thereunto; that the Manner of Impeachment and Commitment, and other Proceedings thereupon, were still in Force; and that the latest and newest Precedents were the best. They descanted long upon the Words of the Act of Repeal, to evince what they had said; and distinguished the First Year of the Long Parliament, for Gravity and Wisdom, from the rest, which was disorderly and unquiet; and said, That their Precedents were made in the First Year; and that Proceedings in Times of Peace, when the Courts of Westminster were open, were always allowed for good; and concluded, that the Lords ought to commit upon every general Impeachment of the Commons for Treason: And this grew to be the Question stated at this Conference; which the Commons affirmed, and the Lords denied. Some Things were also said by the Commons, of the Credit that was to be given to all the Commons of England, which they represented; and that they could not be supposed to intend any Thing herein but Public Justice and Safety, &c.

"The Lords answered, and argued from the very same Act for reversing the Earl of Strafford's Attainder, as followeth: That this Precedent was not allowable, being in an ill Time, and branded by an Act of Repeal, by which, it was clear, this very Parliament intended it should never be made Use of; for, besides that the Act of Attainder recites the very Impeachment particularly, and other Proceedings thereupon, and stands absolutely and totally repealed, which is enough to condemn the Whole, yet they were so careful that this Precedent which led on the other Three should never rise in Judgement again, that they further enacted in express Words, That all Records and Proceedings of Parliament relating to the said Attainder be wholly canceled and taken off the File, or otherwise defaced and obliterated, to the Intent the same may not be visible in After-ages, or brought into Example to the Prejudice of any Person whatsoever; in which general Words, every Circumstance and Passage of that Precedent must needs be included, none being excepted, so that this left the Course of Parliament for Accusations and Trials for Treasons as it was before. And there were no other Proceedings previous to the said Attainder, but the said Impeachment upon Trial, and Proceedings thereupon.

"The Lords said, They could not allow all for Good that was done in Parliament whilst the Courts of Westminster fat; nor would the Commons, if they reviewed the Transactions of the Long Parliament. They absolutely denied the newest Precedent to be the best. Antiquity was always venerable; Laws, and old Precedents, with a constant Course of them, were most to be esteemed. They had both for them in this Controversy.

"The Lords gave these further Reasons in Answer to the Commons, and to shew why they ought not upon every general Accusation of Treason by the Commons to commit to Custody the Person or Persons accused:

"That there could be no Precedent of Commitment produced upon a general Accusation of Treason, before the Earl of Strafford's Case; which must necessarily have been, to make it the Course of Parliament. The last Drops of a River make not a Stream or Course, but the constant Current. So a new Precedent, but of Yesterday as it were, and within the sad Memory of us all, could not be called the Course of Parliament.

"It seems contrary to natural Justice and Reason, that a Person accused should be punished before he knows his Crime; and though the Imprisonment may be said to be for Custody, yet there is no Person that knows not his Fault, but takes it for a Punishment; and it is really so, if he come after to be acquitted.

"It is not suitable to the Dignity or Trust of Judges in Inferior Courts, much less in Parliament, the Highest Court, that they should be kept ignorant of the Crimes, whilst they are pressed to commit to Prison upon a general Mention of them, or that the Prosecutors should conceal what they know from the Judges, or have Ground to ask what they will, and not let the Judges have Ground to proceed upon.

"If the Lords ought to commit upon the Commons Impeachment, they seem rather to be Executors of Process or Orders, than Judges; which ever implies a Power to consider, and do as they shall be satisfied in Judgement.

"The Precedents are contrary; as, 14° E. II. M. 7. Archbishop Arundell's Case, 21 R. II. the Lord Stanley's Case, 38 H. VI.; and William de la Poole Duke of Suffolk's Case; as the Commons themselves, in the Argument at the Free Conference upon the Petition of Right, by Sir Edward Cooke, acknowledged, and urged strongly, as being in the very Point: This was 28 H. VI. N°. 16, &c.

"Such a Course of Proceeding would not leave it in the Power of the House of Peers to preserve Magna Charta and the Petition of Right (which favour Liberty) from Invasion; and herein the Lords insist not only for themselves, but for all the Commons.

"Though this be a House of Commons excellently composed; yet the admitting this Claim of theirs just or warrantable, if ever there should be a House of Commons ill disposed or engaged in Faction, as such have been, they might by Pretence thereof make dangerous Inroads upon the Justice and ancient Government of the Kingdom, terrify and discompose the highest Judicature, and invade that Freedom which ought to be in Parliament, and indeed bring the House of Lords to as small a Number as they please to leave unaccused.

"Judges in Inferior Courts may bail for Treason specified; À majore, may the House of Lords refuse to commit till Specification, or Bail after.

"There are no real Mischiefs or Inconveniences the other Way, but many appear by committing before the Judges be satisfied in the Crimes.

"The Practice of all Judges and Justices, in Favour of Liberty, and to prevent Oppression, is to examine upon Oath the particular Crimes before Commitment, that the Ground may appear to them for Commitment, or else they are of Duty to bail where the Offence is bailable, though the Accusation may be laid to be Treason; much more should the Parliament be careful herein, who gives Examples and Precedents of Justice to all other Courts.

"If the King and His Council are not to imprison without special Crime, as the Commons now argue, and did so before in the Conference for the Petition of Right, to which the Lords agreed, and yet the King is Caput Parliamenti; whence comes this Power of the House of Commons by Vote to enforce a Commitment? And how dangerous is it to the Subject!

"The Petition of Right having concluded, "That no Man ought to be imprisoned or detained without being charged with something to which they might make Answer according to Law;" how will it stand with that to commit upon Generals, to which no Man can make Answer, or defend himself?

"There were no new Reasons offered by the House of Commons; and therefore the Lords told them, That having considered of those they had given, and overruled them, after a Rule Twice given by the Highest Court, it is not to be disputed but the Parties must submit; or, as they resolved last Session, there could be no Proceedings or Dispatch in Causes.

"At this Conference, Mr. Vaughan said, The House of Commons do think the Judicature so well and safely lodged in the House of Lords, that the Commons do not with any Part of it.

"The Commons would not agree, that the Case of William de la Poole was upon the Impeachment of the House of Commons; and said, That the Case of Archbishop Arundell was repealed 1 H. IV. But the First the Lords evinced clearly, by the Record which was present; and the Repeal of Arundell's Case did not weaken, but strengthen it as a Precedent in this Case, being in the Repeal it was not in the least impeached in the Point the Lords vouched it for. And the chief Ground of repealing the Acts of that Parliament was, for the hard Measure it shewed to the House of Yorke, for Maintenance of whose Title the said Archbishop was a chief Instrument.

"Some Members of the House of Commons urged their former Third Reason before, That if, before securing the Person, the special Matter of Treason should be alledged, it would be a ready Course that all Complices in the Treason might make their Escape, or quicken the Execution of the Treason intended, to secure themselves the better thereby.

"To which the Lords made Answer, That it would be very hard with the Subject, if they should be committed when neither the Judge nor the Accuser did know the Crime; and if, in this Case, the House of Commons, who were the Accuser, did know it, they might safely impart it to the Lords, for though in Five Hundred Counsellors, there may be allowed to be Wisdom, yet there is not to be expected Secresy."

E. of Claredon not to E. committed on a general Charge.

The House took this Report into Consideration; and, after a long Debate,

The Question being put, "Whether, upon the Report of the last Free Conference given the House of Commons, and upon the whole Matter, their Lordships are satisfied to commit the Earl of Clarendon, and sequester him from Parliament, before particular Treason specified or assigned?"

It was Resolved in the Negative.

Adjourn.

Dominus Custos Magni Sigilli declaravit præsens Parliamentum continuandum esse usque in diem Lunæ, secundum diem Decembris, 1667, hora decima Aurora, Dominis sic decernentibus.