House of Lords Journal Volume 13: 26 March 1681

DIE Sabbati, 26 die Martii.

REX.

Domini tam Spirituales quam Temporales præsentes fuerunt:

PRAYERS.

Ld. Willoughby of Parham takes the Oaths.

This Day Thomas Lord Willoughby of Parham took the Oaths of Allegiance and Supremacy, and made and subscribed the Declaration, in Pursuance of the Act for the more effectual preserving of the King's Person and Government, by disabling Papists from sitting in either House of Parliament.

Message from H. C. to demand Judgement against the E. of Danby.

A Message was brought from the House of Commons, by the Lord Cavendish and others:

That the Commons of England, in Parliament assembled, having heretofore, by their Speaker, demanded Judgement against Thomas Earl of Danby, upon the Impeachment of High Treason; they do now desire their Lordships would appoint a Day, to give Judgement upon him.

ORDERED, That the Consideration of this Message shall be on Monday next.

Message from thence, for a Conference concerning the Method of passing Bills.

A Message was brought from the House of Commons, by the Lord Dursley and others:

To desire a Conference, upon Matters of great Importance, relating to the Constitution of Parliament, in the Method of passing Bills.

Answer.

The Answer returned was:

That their Lordships will give a Conference, as is desired; and do appoint the same to be presently, in the Astronomy School.

These Lords following were appointed to report the Conference:

Message from H. C. to impeach Fitzharris.

A Message was brought from the House of Commons, by Sir Leolin Jenkins and others, in these Words:

"The Commons of England, assembled in Parliament, having received Information of divers traiterous Practices and Designs of Edward Fitzharris, have commanded me to impeach the said Edward Fitzharris of High Treason: And I do here, in their Names, and in the Names of all the Commons of England, impeach Edward Fitzharris of High Treason.

"They have further commanded me to acquaint your Lordships, that they will, within convenient Time exhibit to your Lordships the Articles of Charge against him."

Fitzharris Indicted.

Mr. Attorney General gave the House an Account of the Examinations taken against Edward Fitzharris; and said, "He had an Order of the King's, dated the 9th of March Instant, to prosecute the said Fitzharris at Law; and accordingly he hath prepared an Indictment against him at Law."

And, after a long Debate;

To be proceeded against by Indictment, and not by Impeachment.

The Question was put, "Whether Edward Fitzharris shall be proceeded with according to the Course of the Common Law, and not by Way of Impeachment in Parliament, at this Time?"

It was Resolved in the Affirmative.

Memorandum, That, before the putting the above Question, Leave was asked for entering Protestations; which was granted.

"Dissentientibus,

Protest against that Resolution.

"Because that in all Ages it hath been an undoubted Right of the Commons to impeach before the Lords any Subject, for Treasons or any Crime whatsoever; and the Reason is, because great Offences that influence the Government are most effectually determined in Parliament.

"We cannot reject the Impeachment of the Commons, because that Suit or Complaint can be determined no where else: For if the Party impeached should be indicted in the King's Bench, or in any other Court, for the same Offence, yet it is not the same Suit; for an Impeachment is at the Suit of the People, and they have an Interest in it. But an Indictment is the Suit of the King: For one and the same Offence may entitle several Persons to several Suits; as, if a Murder be committed; the King may indict at His Suit, or the Heir or the Wife of the Party murdered may bring an Appeal; and the King cannot release that Appeal, nor His Indictment prevent the Proceedings in the Appeal, because the Appeal is the Suit of the Party, and he hath an Interest in it.

"It is, as we conceive, an absolute Denial of Justice, in regard (as 'tis said before) the same Suit can be tried no where else. The House of Peers, as to Impeachments, proceed by virtue of their Judicial Power, and not by their Legislative; and as to that, act as a Court of Record, and can deny Suitors (especially the Commons of England) that bring legal Complaints before them, no more than, the Justices of Westminster Hall, or other Courts, can deny any Suit, or Criminal Cause; that is regularly commenced before them.

"Our Law saith, in the Person of the King, Nulli negabimus Justitiam, We will deny Justice to no single Person: Yet here, as we apprehend, Justice is denied to the whole Body of the People.

"And this may be interpreted an exercising of an arbitrary Power, and will, as we fear, have Influence upon the Constitution of the English Government, and be an Encouragement to all inferior Courts to exercise the same arbitrary Power, by denying the Presentments of Grand Juries, &c.; for which, at this Time, the Chief Justice stands impeached in the House of Peers.

"This Proceeding may misrepresent the House of Peers to the King and People, especially at this Time; and the more in the particular Case of Edward Fitzharris, who is publicly known to be concerned in vile and horrid Treasons against His Majesty, and a great Conspirator in the Popish Plot, to murder the King, and destroy and subvert the Protestant Religion.

"Kent.

"Huntingdon.

"Monmouth.

"Bedford.
Salisbury.

"Pagett:

"Clare. Essex.

"Shaftesbury.

"Sunderland.

"Stamford. P. Wharton.

"Mordaunt.

"Grey.

"C. Cornwallis.

"J. Lovelace.

"Maclesfeld.

"Herbert.

"Westmorland.

"Crewe."

Information by an anonymous Person, of Busby a Priest concealed, &c.

The Earl of Huntingdon reported, from the Lords Committees for Examinations, "That Anchitell Grey Esquire informed their Lordships, That Master Gilbert of Locco, in Derbyshire, and Justice of Peace for that County, received an Information, by Writing without a Name, that he had somewhat to communicate to him of great Consequence; (videlicet,) That he should find Busby, a Popish Priest, in Mr. Powdrell's House of Westhallum, in the said County, if he searched very carefully. Whereupon the said Mr. Gilbert made a Search accordingly on the Seventeenth Instant, which lasted Eight and Forty Hours before the said Busby was found. But, being found in a private Hole under the Tiles of the House, Mrs. Smalley the House-keeper charged him the said Mr. Gilbert with taking Eighty Pounds out of a Desk in the same Room with Busby; but the Accusers differed in their Evidence; and the Desk being searched, One Hundred Guineas were found in it (which the House-keeper said belonged to the said Busby); and a Conveyance of Lands in Ashburne in that County of One Hundred Pounds per Annum Value, bought of Sir Aston Cockine; which the said House-keeper, catching up suddenly, burnt before Mr. Gilbert and the said Grey (who was then present) were aware of it.

"There was also an Accompt Book for the Rents of the said Land, and an Annual Allowance to Busby out of the said Land, with a Mention of Harcourt the Jesuit; the Book being signed in every Page by Henry Heton, who had been Superior of the Jesuits in that Quarter, and died about Three Years since.

"The Person that gave Mr. Gilbert the Information continues his Obscurity; and desired him, according to what he should find true in what he had informed him concerning Busby, and the rich Copes and Vestments which he then found, he should believe him in the rest which he should discover.

"Mr. Grey believes he hath something extraordinary to discover; but conceals himself, till he hath Assurance of Protection and Encouragement. And being asked the Question, he further saith, That if he be intrusted with any Assurance to this Man, he believes it might be conveyed to him, as Mr. Gilbert hath done other Notes; but is humbly of Opinion, that a Proclamation, by Advice of Parliament, assuring Pardon and Encouragement, may be yet more effectual to a full Discovery."

Informer to be pardoned, &c.

It being moved, "That His Majesty may be addressed to, to grant a Pardon to the Person without a Name, that hath discovered Busby the Priest:"

The House was informed, "That His Majesty hath promised him His Pardon already."

And it is ORDERED, That Anchetill Grey Esquire be desired to bring in the Person mentioned in the Information, and acquaint him therewith.

Conference on the Method of passing Bills, concerning the Bill for Repeal of 35 Eliz. not being presented for the Royal Assent.

The Members of the House of Commons being ready for the Conference; the House was adjourned during Pleasure, and the Lords went to the Conference; which being ended, the House was resumed.

Then the Duke of Monmouth reported the Effect of the Conference; (videlicet,)

Report of it.

"That the Commons have desired this Conference in a Matter relating to the Constitution of Parliaments in passing of Bills.

"The Commons do find, that in the last Parliament a Bill was sent up to your Lordships, from the Commons, intituled, "An Act for the Repeal of a Statute made in the 35th Year of Queen Elizabeth;" which Bill was returned from your Lordships with some Amendments, to which the Commons agreed; and signified so much to your Lordships, by a Message. And then (according to the usual Course of Parliament) the Bill was left with the Clerk of the Parliaments, to be tendered to His Majesty for the Royal Assent. But, to the great Dissatisfaction and Surprize of the Commons, the said Bill was never tendered, nor any Answer given to it.

"The Commons apprehending this to be a great Violation of the Constitution of Parliaments in passing Laws, and of most dangerous Consequence, do think it necessary, and of the highest Importance, that this Matter be strictly enquired into, that both Houses may be informed who are guilty of that Offence, and who the Accomplices therein, that they may receive such condign Punishment as will deter all Persons from the like Practice for the future.

"Therefore the Commons do propose to your Lordships, that a Committee of both Houses be appointed, for the Examination of this Matter."

Report to be considered.

ORDERED, That the Matter of this Conference be taken into Consideration on Tuesday next.

Adjourn.

Dominus Cancellarius declaravit præsens Parliamentum continuandum esse usque in diem Lunæ, 28^um diem instantis Martii, hora decima Aurora, Dominis sic decernentibus.