Debates of 1667: December

Monday, December 2.

[A message from the Lords by two Judges:

Mr Speaker: The Lords have commanded us to deliver this message to you: " That upon the report of the last free conference given to the House of Commons, and upon the whole matter, the Lords are not satisfied to commit the Earl of Clarendon, and sequester him from Parliament, before particular Treason be specified or assigned."]

Mr Sollicitor.] Persons have been accused, and committed: But no doubt but for High Treason the Courts do commit or not commit, upon discretion—Imprisonment non ad pænam, only ad custodiam. The Lords have a latitude as great as these Courts.

It was said] The Commons do not specify the Treason, by reason the Abettors may escape, and so expose all the information to be invalid.

By another] We may be angry and talk, but can do nothing effectual without the House of Lords—Privilege as Peers, is because of the King's presence there, as anciently the King was as present in the House as the Lords —If the King had been in person, and had demanded the cause, he might have said, "Let him be bailed!" The Lords have this privilege, quatenus the King's right.

Mr Sollicitor.] No extricating ourselves out of this difficulty, but by sending up the articles.

It was said] The King's Bench bail not when committed, but before—The Justices of the King's Bench have more than an ordinary trust in the Law, and therefore discretionally they bail: But it is in few cases, not all—The Lords will say, they have a discretionary power, being a greater court—The Law does not suscipere magis et minus, because we or a private person accuses him.

Edward VI. sat in the King's Bench, the Judges at his feet.—Henry IV. sat in the Lords House in De la Pole's case; but the Lords protested against the King's interposing in their rights and privileges—King James sat once in the Star Chamber.

"How and in what manner he has discovered the King's counsels," must make up the indictment—So penned that the party may make his answer.

Mr Vaughan.] There needs no such niceness in an Article from the House of Commons as from the King's Bench.—They bail not as a right to them, but they must bail where bail is due.

Sir Rich. Temple.] No precedents that the Lords ever bailed a man upon an impeachment from the House of Commons.—'Tis special matter to say Treason.

Mr Prynne.] Godwin Earl of Kent was impeache dby the King in person, when he came into the House of Lords; so six Lords went to the King for his pardon, and had it—Anselm, Bishop of Canterbury, would not acknowlege the Pope, and was impeached for it.

Sir Tho. Littleton.] Betwixt the impeachment of William de la Pole, and Lord Strafford, no precedent of any impeachment—De la Pole's accusation, "not being a true man," it is no word in any old statute for Treason —So that if the Commons had brought in Treason, it had been a specialty in comparison of that.

Sir Edward Walpole.] Moves it may be considered what we would do, if a Member was impeached in general, from without doors.

Sir Robert Atkins.] The impeachment against Thomas Arundel, Bishop of Canterbury—The Lords proceeded discretionally—We cannot demand it in debito justitiæ.—Approves of the Lords tenderness in imprisoning—Asserts his right as a subject as well as a Member of Parliament.

Mr Waller.] The Lords have not complied: They say not they will not comply.—They are tender of our liberties—Why should we make such haste to give that away, which the Lords vote not away? The law appoints a trust in the King, Lords, and Commons.

[Resolved, (upon the question) That the Lords not having complied with the desires of the House of Commons, for the commitment of the Earl of Clarendon, and sequestering him from Parliament upon the impeachment of treason from this House, is an obstruction to the public justice of this kingdom, by the proceedings of both Houses of Parliament; and, in the precedent of it, is of evil and dangerous consequence.]

Tuesday, December 3.

[The Bill of general Naturalization was read a second time.]

Pro.] Col. Birch and others said, We want people to consume our provisions—Other countries have worked us out of all trade by doing it.—An encouragement to the Protestant Religion, which we ever have been the protectors of—The destruction of trade is by naturalizing a few people, who draw away our trade by dealing with the French and other Foreigners, whose families reside not amongst us.

Con.] It was urged, That it would draw on the pretence of a standing army to keep so many strangers quiet, and would endanger the religion established, by introducing liberty of conscience.

Mr Sollicitor.] A fortunate and a prosperous people will be ever a populous people—But the fairest morning that ever was, we see, is set under a cloud—Till we are an established people, we must never think of this Bill but as a mockery—In 1637, we were looked upon as an established and flourishing people; then Land and Trade were at the height—At that time several foreign nations delighted to settle amongst us, whose posterity still remain—This Bill of Naturalization seems to forbid and deny foreigners, for it provides not for freedom in corporations, to set up a trade without being free, which he must buy—Merchants we want not, nor they stock, but we want handicraft-people to make up our commodities.

[A message from the Lords, [by two Judges] That they have received a long petition from the Earl of Clarendon, intimating that he was withdrawn (fn. 1).]

Sir Robert Howard.] The Lords said, There was no danger of his withdrawing—Withdrawn, we know not whither—May be, into the next chamber—Desires to know the reasons of it in his paper to the Lords—Moves to draw a narrative of our proceedings.

Mr Vaughan.] Would not have the House take notice of the Lords paper, for if it be of moment, the Lords will communicate it to the King or to us—Seconds the motion for a narrative.

Mr Waller.] The Lords have been civil to him—In three weeks we have not heard from them—Withdraw is a Parliament word; he desires to know what the Lords mean by the word Withdraw.

Mr Sollicitor.] When a delinquent sends his Judges word he is withdrawn, it can have no other meaning but fled—Shall we say, if he be gone, fare him well!—In Lord Finch's case the ports were stopped.

[This business of Privilege interposed.]

'Twas said] In Sir James Thynne's case, of Privilege for his servant arrested, it was ordered, that the person at whose suit he was arrested, should be sent for in custody, as being the first mover; then the Sheriff and Under Sheriff and Bailiffs will come afterwards in course to be sent for, if found faulty.

[Upon a private Bill to supply the defects of a conveyance lost: Some of the most material ones referring to that conveyance being by the Committee perused;]

Mr Sollicitor.] It is needless to do that by Bill, which every Court of Westminster does daily, and he fears something may lie hid; the parties would not else put themselves to such a charge and trouble as an Act of Parliament.

[The Bill passed.]

Wednesday, December 4.

[A message from the Lords, by two Judges, desiring a present conference touching the paper they received yesterday from the Earl of Clarendon; which having been agreed to, Mr Sollicitor General reported, that his Grace the Duke of Buckingham did manage the conference; and declared, That the Lords had commanded him to deliver the scandalous and seditious paper of the Earl of Clarendon; which they desired might be returned again (fn. 2). Which paper was read at the Clerk's table.]

Sir Robert Howard.] This paper calls itself a petition, but is a remonstrance, having no prayer—The account in it of affairs all false—If "the King's Bounty," as the Chancellor says, be "as much to others as to him (fn. 3)," no wonder the King cannot live upon it. "The books the King of France gave him (fn. 4)," a bribe for his better understanding—He had rather be guilty of his crimes than of that he imputes to the House of Commons— He says, "he is withdrawn from those who persecute him, and controul the King's Justice (fn. 5) "—We must be in tended by "those persons"—He has left more seeds in a paper than his person could have sown—He calls the King "a wise Prince (fn. 6)," and yet charges the King with injustice, for not leaving the Nation to cleave to him—We are changed; the King has a nation instead of him—Says, he cannot call it any thing else, than a scandalous, seditious, and malicious paper.

Mr Vaughan.] Believes that the Earl knew not the weight of the articles; admires his confidence to charge this House with persecuting him, and hopes to return to be clear. He says, "he is as far from corruption as disloyalty (fn. 7);" it may be he is guilty of both—Never so insolent a paper, to charge the nation for unjustly prosecuting him—It has scandal, malice, and sedition in it upon us and the King, and reproaches the Justice of the Nation and the King.

[Resolved, That this paper of the Earl of Clarendon's is scandalous and seditious, and doth reproach the King and the public justice of the nation.

Resolved, That the paper be entered into the Journal, that all the world may know what we have condemned (fn. 8).]

Sir Humphry Winch.] Though the person cannot be impeached, yet moves to impeach the paper, and to have it burned by the hands of the common hangman, with the concurrence of the Lords: Which was voted (fn. 9).

[It was agreed to by the Lords, Dec. 10. and ordered to be burned at Gresham College.]

Thursday, December 5.

[Votes proposed by Mr Vaughan in order to impeachment.

That the person impeached ought by law to be secured.

That the Lords [shall (fn. 10) ] appoint a convenient time to bring up the articles; and that whenever the Commons shall impeach any Member of that House, that the Lords shall sequaster him from Parliament.]

Sir Richard Temple.] Would have added to the declaration, the inconvenience of not sequestering the person, and to vote, that we may desire the Lords concurrence, in desiring his Majesty to issue out his proclamation for apprehending the Earl of Clarendon that is fled.

Sir Thomas Lee (fn. 11).] Says, that the Lords will answer our declaration, if made, and so no end of answering.

Sir John Birkenhead.] An oath ceases to be necessary when it ceases to be lawful, and so may this Declaration.

Sir Thomas Littleton.] The vote for remonstrance, not for information of the people, but to remain upon the journal to posterity.

Mr Vaughan taking exceptions at what fell from Sir Thomas Littleton, in some more than ordinary transport, replied,] He is none of those that contrive things without doors.

Sir Thomas Littleton.] Disowns the reflection, and if he could explain himself in speaking in plainer terms, he would.

Sir Robert Howard, endeavouring to appease them, said,] He cannot express himself more, than every person here thinks, of Mr Vaughan's worth.

Mr Swynfin.] Impeachment is more satisfaction than any information from a common informer; and if an impeachment may not be so brought up, neither Lord nor Commoner for the future can ever be impeached— The dividing of the two Houses is a greater blow than the whole business besides.

[The Votes above-mentioned, were agreed to by the House. See the journal of this day.]

[Dec. 6, 7, 9, and 10, omitted.]

Wednesday, December 11 (fn. 12).

Mr Vaughan, who was ordered to attend the Lords to desire their concurrence with the Votes of the Commons concerning freedom of speech, took care at the conference to enquire what ancient laws did fortify this, the greatest privilege of both Houses; and they found, in 4 Henry VIII. an Act concerning one Richard Stroude, who was a Member of Parliament, and was fined at the Stannary Courts in the West, for condescending and agreeing, with other Members of the House, to pass certain Acts to the prejudice of the Stannaries. This Act was made occasionally for him, but did reach to every Member of Parliament, that then was or shall be; the very words being these: "And over that be it enacted, by the same authority, that all suits, accusements, condemnations, executions, fines, amercements, corrections, grievances, charges, and impositions, put or had, or hereafter to be put or had, unto or upon the said Stroude, and to every other the person or persons afore specified, that now be of this present Parliament, or that of any Parliament hereafter shall be, for any Bill, speaking, reasoning, or declaring, of any matter or matters concerning the Parliament, to be commenced and treated of, be utterly void, and of none effect. And over that be it enacted, by the said authority, that if the said Richard Stroude, or any of all the said other person or persons hereafter to be vexed, troubled, or otherwise charged for any causes as is aforesaid; that then he or they, and every of them, so vexed or troubled, of or for the same, may have action upon the case against every such person or persons so vexed or troubling any contrary to this ordinance and provision, in the which action the party grieved shall recover treble damages and costs. And that no protection, essoyne, nor wages of law in the said action in any wise be admitted nor received."

The Lords agreed with the House of Commons to both their other Votes (fn. 13), and ordered Lord Holles to cause the Roll of the Court of King's Bench, wherein the said judgment, 5 Car. 1. against Elliot, Holles, &c. is recorded, to be brought before the Lords in Parliament by a writ of error, to the end, that such farther judgment may be given upon the said case as the Lords should find meet.

[The House then resumed the hearing of the Report touching the matters of Restraints upon Juries.]

Sir Thomas Gower reports, from the Committee, the following articles of accusation against Lord Chief Justice Keeling (fn. 14). " 1. That he imposed upon the consciences of the Grand Jury of Somersetshire to find a verdict contrary to their judgments, and bound them to their good behaviour. Sir Hugh Wyndham (who first complained to the House of this business) he re proached for being the head of a faction, for no other cause, than finding a Bill according to his conscience. He drew the verdict and made the Jury find it. Sir Hugh said, he was the King's servant and Member of Parliament (upon his reproaches). He told the Grand Jury they were his servants, and he would make the best in England stoop. 2. In an indictment for murder, which the Jury found Manslaughter, because they found no malice prepense, he told them they must be ruled by him in matter of law, and forced them to find the Bill, Murder. The man was executed accordingly, without reprieve, notwithstanding the Address of the Gentlemen of the Bench to him. The Juries rather would lose their issues in that county than starve by reason of his severity. 3. One before him speaking of Magna Charta, he said, "Magna Farta, what ado with this have we?" 4. He forbid a Habeas Corpus and a Plures to be issued out, so that the party was constrained to petition the King."

[Upon these informations proved to the Committee, They resolved, "That his proceedings were arbitrary and illegal:

That he vilified Magna Charta:

That he be brought to tryal, in order to condign punishment, in such manner as the House should think fit; these proceedings being to the danger of the lives and liberties of the people, and tending to introduce an arbitrary government in judicature in their place."]

Mr Streete, for him.] Moves that he may have the same justice that Pett had, viz. to be heard at the Bar, and says, it is no such innovation as the Committee would have it, citing Weer's case in Queen Elizabeth. To the words of "vilifying Magna Charta," he says, that the person offered a law that warrants not the thing then in question, and so he called it Magna Farta.

Sir Thomas Higgins, for him.] Said, he heard the Judge say to the Jury that were upon the Quaker's case, that he would not have a verdict contrary to an Act of Parliament, (inferring from thence his great regard to those Acts.) To that of the Somersetshire jury, he did an indiscreet thing, yet it was not illegal. All the Judges approved of what he did. The law supposes Murder when a person kills another, doing an unlawful thing or action, as the killing a man with a gun. He says, Lord Keeling [is] a man of choler and passion—Right-handed faults his zeal for the laws, but no ill man of bribery or corruption. Magna Charta he slighted not, but as being urged impertinently, nothing to the business; spoken by way of indignation to the man who said it. Desires it may be remembered what he has done and suffered for Magna Charta, and that his former life may be put into the balance with his present offence.

Sir Humphry Winch.] Says, the Chief Justice desires to wave all privilege of attendance at the Lords House, and to appear to justify himself.

Sir Anthony Ierby.] Moves that the evidence and the Lord Chief Justice may be heard both at the same time.

[Leave was granted that he should be heard at the Bar on Friday the 13.]

[Dec. 12. omitted.]

Friday, December 13.

[An ingrossed Bill, sent down from the Lords, for banishing and disenabling the Earl of Clarendon, was read the first time (fn. 15).]

Sir Thomas Clifford.] Occasionally said, every Act has its seven tests, three in the Lords House, three in the Commons, and Royal Assent.

Mr Coventry.] Said, he had his particular and his obedient opinion in this business of Lord Clarendon.

Mr Swynfin.] The Lords put us from our judicial way to a legislative way.—Lord Clarendon is departed, because he was not secured.—He flies not from our justice; we would have tryed him, if we might have been heard, and in the legal way.—He makes good what he has done, and what the Lords have done.—He may, by this Bill of Banishment, say justly, he is condemned without hearing one witness, against the law of nature and nations. Lord Cromwell was so attainted.

Sir Robert Howard.] Lord Clarendon withdrawn, for fear of tumult! Any person may pretend that; so may any malefactor—He had rather end his days here than prolong them miserably in another country.

Mr Secretary Morrice (fn. 16).] Qui accusare videt minus amat. Edw. II. Gaveston and the Spencers banished without process. Gregory Nazianzen said, "If I be the Jonas, let me be thrown over board."—Not to attaint the blood, that once may be sacred.—Alludes to the Papists wine in the sacrament, if spilt they make relics of the earth.

Mr Prynne.] Shall not the Judge of all the earth do right? Shall the Parliament condemn a man unheard? Scipio banished himself, the Romans did not—Shall we, without matter, blindfold?—The King cannot do it; it is against his Coronation Oath and Magna Charta—There have been Banishments, but the Bishops not consenting, not good—They were without hearing or process—Those proceedings condemned by three Parliaments as erroneous, and never to be drawn into consequence again—Cicero was banished without cause, and to his honour, not to that of the Romans who banished him.

Sir Richard Temple.] In Adam de Berry's case, in 15 Edw. III. they delivered no special matter till the party appeared—Lord Clarendon makes the fire betwixt the two Houses, and goes away in the smoke—Two exceptions against the Bill of Banishment—1. To commit without a day of hearing—2. His penalty too low for the crimes—It cannot be less than degradation of his Honour and loss of Estate for life.

Mr Sollicitor Finch.] We cannot hear him that will not be heard; the Bill of Banishment is in the nature of an out-law—The King may attaint him, without our leave, by proceedings in law.

All ends are attained in Banishment. Will you let him live abroad with more power than he had at home? viz. To keep the two Houses at difference, and, like Sampson, to go away with the House upon his back? The two Houses have a greater influence on the nation than the houses of the planets.

Mr Vaughan] The King's Proclamation and Writ reaches not out of the nation—Would have the House go to the King—The King commits no man per mandatum Domini Regis.

Sir Walter Yonge.] If our charge be true, then the Bill is far less than his punishment.

Mr R. Holt.] The Lords would not sequester him without special matter, and yet now they would banish him without special matter—They take our accusation for granted, by this way of proceeding.

Mr Prynne.] He ought to be summoned to appear by a day, or process against him.

Sir George Reeves.] They would not sequester him without special cause, and yet they banish him without special matter—Moves that he may have a day assigned to appear.

Lord Cavendish. (fn. 17) ] Moves the same, and that we may give the world a testimony that we have done something —This Bill of the Lords enables him to spend the estate he has gotten by our ruins, in another country—Moves, if he comes not by a day, to bring in a Bill of attainder.

[Resolved, That his Majesty be humbly desired to issue out a Proclamation for summoning Lord Clarendon to appear by a day, and for apprehending him in order to his tryal; to which Vote the Lords concurrence was ordered to be desired.]

[The House then proceeded to the hearing of the Lord Chief Justice Keeling's accusation (fn. 18).]

To the article, that upon tryal of the Quakers, he directed the Jury to find guilty without evidence—Answers, He had the testimony of the witness, the confession of the party where the persons were taken—The Quakers said, they met, not to rebell, but to seek God—Their meeting was proved by persons that pulled them out of the place where they were met—He told them, that if for the future they would conform, their conviction should be taken off—They said, the Church of England was not a true Church—He was much thoughtful about the fining of the Jury, for not finding the Bill—He did it not without precedents—It is resolved, by all the Judges, that Juries are finable.

He said, he did not remember "the words about Magna Charta," but if any such thing did fall from him, he spoke it to the impertinency of those men that urged it, but no way in scorn of it—If he did say it, he owns he said what he should not.

To the "fining of the Jury, who would not find that Murder, about the Master's killing his servant boy," said Masters are only justifiable in correction when they do it with lawful instruments—The Judges delivered their opinion, that he had legally fined and bound the Somerset gentlemen of the Grand Jury—Upon the whole matter, submits himself to the Justice of the House.

Sir Hugh Wyndham (fn. 19).] Moves, that since the Chief Justice had forgot to answer the reproachful language he gave him, that the House would likewise forget it, for he did.

[Resolved, after some debate, that this House proceed no farther upon the matter against the Lord Chief Justice Keeling.

Ordered, That a Bill be brought in for declaring the fining and imprisoning of Jurors, illegal.]

Saturday, December 14.

[A Report from a Conference, occasioned by the message sent to the Lords, desiring their Concurrence in an Address to his Majesty for a Proclamation to summon and apprehend the Earl of Clarendon.]

Lord St John reports] That, at the conference, the Lords gave them two reasons for their dissenting from the Vote of the House of Commons.

1st. That they conceived a Proclamation, in the way proposed, would be ineffectual since it is not sub pœna convictionis, which cannot be, till particulars, in order to tryal, be declared—2dly, That what the House of Commons hath proposed, and do propose at present, is intended in order to a judicial way of proceeding, but, since the Earl of Clarendon's flight, their Lordships, upon consideration of the whole state of affairs and of the kingdom, have, upon grounds of prudence and justice, thought fit, for the security of the King and Kingdom, to proceed in a legislative way against the said Earl, and have to that end passed and sent down unto them a Bill of Banishment, and Incapacity against him, with which our Vote is inconsistent.

[The consideration of these reasons was adjourned till Monday.]

Monday, December 16.

[Sir Thomas Higgons makes a Report from the Committee, appointed to examine Abuses and Extortions in enhancing the Prices of Wood, Coal, and Fewel.]

Sir William Thompson.] Said, that the freight and charges of the Norway trade for timber, are two thirds of what we bring from thence. We go four times in the year—Sweden and Denmark, by the articles of peace, may bring their own timber in their own bottoms, and a Hollander, by naturalization, or other cheats, may easily pass for one of them.

Col. Birch, to the By-laws of Companies, occasionally of the Woodmongers.] No By-law can be made in any Corporation of Trade without the approbation of the Judges, under penalty of 40 l; neither can that corporation repeal a By-law without consent of the Judges.

[Resolved, That the farther Debate of the Votes concerning Ballast, be adjourned till after Christmas.]

[On the petition of the Adventurers of Ireland, by Alderman Barker of Dublin.]

Mr Sollicitor Finch.] The petition is pretended from the body of the Adventurers, not avowed by the Chairman of the Committee from Ireland—We may repeal an Act of Ireland by our power, if we measure our wisdom by our power—The enquiry into the business of the Adventurers, will be a means to make Ireland a prey to any foreigner, by discontenting that kingdom in this settlement.

[Lord Ancram reported, from his Royal Highness the Duke of York, the following answer in writing to the desire of the House, viz.

"Being desired by the House of Commons to let them know what orders I gave for the fortifying of Sheerness; and to whom, and when; I am very ready to give them what satisfaction I can, though it be but little I am able to say to them on this subject.

"I waited on his Majesty, when he went to Sheerness, at the latter end of February last; and I [was] present when his Majesty caused the Fort to be marked out; and also when he gave order to the Commissioners of the Ordnance, to go in hand with the building of it: But it not being my Province to give orders on shore, neither the Commissioners of the Ordnance, nor any body else, did ever receive orders from me for doing that work. It is very true, that, knowing the importance of that place for the securing his Majesty's Navy, I did, presently after his Majesty's return from thence to London, recommend to the Commissioners of the Ordnance the going in hand with the battery upon the point at Sheerness. James."

In the Afternoon.

[Resolved, That the Bill, for banishing and disenabling the Earl of Clarendon, be now read the second time, 109 to 55.]

[Dec. 17, omitted.]

Wednesday, December 18.

[Passed the Bill, with amendments, for banishing and disenabling the Earl of Clarendon, (65 to 42,) which were agreed to on the 19th by the Lords.]

[The House was adjourned by a message of his Majesty, from December the 15th to February the 6th.]

[Feb. 6. the House met: But the first Debate taken notice of is on