The proceedings in the House of Commons, touching the impeachment of Edward, late Earl of Clarendon, Lord High-Chancellour of England, Anno 1667 with the many debates and speeches in the House, the impeachment exhibited against him, his petition in answer thereto : as also the several weighty arguments concerning the nature of treason, bribery, &c. by Serj. Maynard, Sir Ed. S., Sir T.L., Mr. Vaughan, Sir Rob. Howard, Mr. Hambden [sic], and other members of that Parliament : together with the articles of high-treason exhibited against the said Earl, by the Earl of Bristol in the House of Lords on the 10th of July, 1663 : with the opinion of all the learned judges therein.

December, 16.

The said Reasons from the Lord being Reported and Considered, and it being Moved that the House would declare them∣selve unsatisfied with them.

Sir Tho. Cliff.

I am against passing a Vote at present upon the Lords Reasons, but read the Bill sent down from thence, and Summons him by it to appear by a Day.

Mr. Trev.

Some are against the Bill, be∣cause it goes too far, Condemning before Hearing, others would have it to go far∣ther. Summons is in Order to Hearing, Tryal, and Judgment; of those he hath made himself incapable by Flight, and hath in his Paper told you, That he will nei∣ther be heard, nor tryed by you: Tho' you expected to have him secured by a gene∣ral Accusation, yet you never expected Judgment upon it. Then it is said, This Banishment falls short of Treason, but we are not to pass Sentence for Crimes but as a Council propound to the King what is ne∣cessary in this Case: Then consider whether

this Bill will Answer our Ends, and if it doth, delay will make it worse; I think we should make it reach them. What if he hath Life in other Parts, his Family Untainted, and his Children alive, and en∣joy his Estate?

Sir Rob. Carr.

You have Ordered to con∣sider the Reasons from the Lords, there∣fore do it.

Mr. Hen. Covent.

The Motion to read the Bill is not against your Order, because part of the Reasons given by the Lords is, That you have a Bill, and till you have read the Bill, you cannot lay by the Reasons. The Earl of Clarendon is fled, you have a tye upon him in having his Innocent Re∣lations, and by Proceeding farther, you make him desperate, you are now in an even way with the Lords; therefore read the Bill.

Mr. Swins.

You may go upon the Rea∣sons, and yet not reject the Bill; for when you sent to the Lords about a Proclama∣tion, and went not upon the Bill, it was, because what the Bill drives at is the highest Punishment next to Death. There∣fore Consider what weight is in the Rea∣sons; One of them seeming to put you upon the Bill, they put you thereupon on a Legislative Way; they will neither Secure

nor Summon him, but will Condemn him Unheard. They cannot Secure him upon a Charge of Treason, nor yet Summon him, but they can Condemn him; and this they put you upon, which is against Ho∣nour and Justice, especially to do it up on Reason of State. The Legislative Power of Parliaments is great, it hath no bound but the Integrity and Justice of Parlia∣ments. If Reason of State be a Motive of Parliament to Banish one Man, so it may be for many. If you go in this Le∣gislative way, you bring upon your selves all the Dishonour of the Business, but the Lords will have some excuse, which you cannot, for they look'd upon the Charge so flight, as not to Imprison him; the party is gone, because he was not Secu∣red, apprehending (he saith) fear of the Multitude, not of his Tryal, so that the Lords not giving Credit to your Charge against him, he says, he flies not from justice. Now, if upon this Bill you shall Banish him, it would be said you could not make good the Charge; and therefore laid this Sentence upon him.

The President is also dangerous, if ha∣ving gone so far in a Judicial Way, you should now go in a Legislative. If upon Reason of State Lords may be Banished, it may be by dozens: As you proceed Justly, so you will be Justified.

Nor is the Danger greater if the Lords go by Proclamation, and he be put into Custody when he comes, if he can practice any Thing, will not he be less capable when under the Proclamation, than when this Bill is Passed, which Condemns him without Hearing, and I am not for any Punishment till Heard. In Cromwells Case, who Moved in Hen. VIII. time, to Attaint a Lord Unheard, the Judges declared they might, and it would stand, afterward the said Cromwell was Attainted and Condem∣ned Unheard, and such Councel usually falls upon those that Councell'd it.

Sir Rob. How.

The Earl of Clarendon saith, That he doth not withdraw from your Iu∣stice, but fear of Tumults; but that Reason any Man may give for his flying, if it will be an excuse; but he might have se∣cured himself from Tumults by rendring himself, and his Innocency upon his Tryal would have cleared him. This at last may come to a free Conference, then you may be left to go along with the King; the House riseth and doth nothing, and then the World will see that this Business will assure the King of France, That he hath a Man with him so Great, as to hin∣der us from doing any Thing against him: Therefore as you ought to do something against him, see whether it may not be done by the Bill by resuming

his Lands, &c, if he come not in by a Day.

An Exception may be against this way, Namely, That there is no Attainder, but if there had been such a Bill, the Thing which should sway me should be the Duke of York's Marriage: So, that if you Commit this Bill, you may add all Severi∣ties, except that of Attainder, and if he come by a Day, then all to be void. If you go by Proclamation, the Lords may not Concur and you loose your Ends. By this Bill all favour that he can expect is shewed, and this way will be the best Confutation of the Lords Reasons; there∣fore Commit the Bill.

Mr, Secretary Morr.

I am for Committing the Bill, tho' it be condemning Unheard; because he could not but conclude it would be so. Et volenti non fit Injuria.

Sir Ric. Temp.

You have proceeded against this Earl in all ordinary ways, and have been baffled by the Lords. In Edward the Third's Reign, Adam de Berry fled, and a Proclamation went against him, and the Commons neither did, nor ever were bound to deliver their Articles till the Party appeared, and in that Case they delivered not their Articles till the last Day, when

he not appearing was Convicted. When you would go by Attainder, they tell you, Deliver special Matter, and we will Summon him; when you ask a Proclamation, they tell you, Deliver special Matter: If you declare the Matter to the Court, it is upon Re∣cord, and all may know it. You have tryed all ways Legal and Regular, and they will do you Justice in neither. Now what can you do? except you and the Lords combine in Justice together, he must escape, and if you can be made to differ, he goes away in a Smoak. If you go to the King for a Proclamation, you must return to the Lords for Justice. I am sorry the Ivey hath been so near the Oak, that you cannot touch it, without touching that. There remains a Bill before you, and in that you are upon equal Terms with the Lords; therefore give him a Day to be Heard, and if he come, let him, but then his Penalties are too low for his Crimes; therefore read the Bill, go higher, degrade him of Ho∣nours, Forfeit his Lands, and whether you will go so far, I leave with you.

Mr. Soll. Gene.

It is not possible to agree with the Lords in their Reasons, but the Reason must be because the Bill is good. But if any Man thinks it is good upon the Lords Reasons he is mistaken; and there∣fore my Advice is to proceed upon the

Bill, tho' not upon the Reasons from the Lords. Some think the Punishment in the Bill too little for the Crime, others too much, because not Summon'd; so that it must fall out, That a Person Impeached by the House of Commons must see the House rise without any marks of displeasure up∣on him: Can any Man be Heard, who will not be Heard? Why should not you pro∣ceed in such a way against him, as whose very Flight amounts to a Confession? And have you not burnt his Paper for refie∣cting upon the House? and can you think he will appear who is departed in despair of the Court? and now you are contending to give him time.

Then consider the Thing in it self. Sup∣pose the King had a mind to Attaint him, the King can do it without your help, for he may be Outlawed for High-Treason; for tho' that be Reversable at Common-Law, if he be beyond Sea, yet by two express Acts of Parliament it is otherwise, but the King cannot Banish him without your Concurrence: Suppose him Fled and At∣tainted, so that the Question is not upon his Life, but his Estate, suppose your Ju∣stice satisfied in that, is it not past all manner of Consideration that the King can∣not upon Application restore it? So, that all you lookt for by Attainder, is done

by this Bill of Banishment, for his Life is saved by Flight, as would his Estate by Compassion; but there is something in this Bill, which, without it, you can never get, that is, you put him under your Displea∣sure, which, the King cannot Pardon; and and will you have it thought abroad, that the Earl of Clarendon, fled as he is, hath been something too hard for the Two Houses?

Sir Tho. Litt.

If there be a necessity of differing with the Lords, and I thought the difference would produce such Effects, I should not speak, but they only tell you 'tis unnecessary and ineffectnal. You have Impeached, and are now told if you proceed, it will make difference; but I fear another greater Danger than this dif∣ference. The World will say you were willing he should fly, because you could not prove by flying he hath Forfeited his Estate; if the King give it him again it is his Mercy; but do you Justice: Therefore press for a Proclamation, for the Bill is inconsistent with your Honour.

Mr. Vaugh.

I have listned with much at∣tention to this Discourse, and understand it as little now as at the beginning, the Discourse being nothing adequate to that end. You have Reasons from the Lords

why They agree not with you, and if you agree with the Reasons, the Summ is to read the Bill; but if you agree not, you must desire a Conference, and if they Con∣cur, you may have a Proclamation, if not (as I think they will not) you are where you were: We suppose him not to be in England, and if so, what is the Procla∣mation more than the King's Writ? it reacheth no Man out of the Kingdom. Its true, in some Cases, if the Persons are gone out of the Land they are Summon'd, and if they come not, their Lands are Sei∣zed, but it is not by Proclamation, which signifies nothing if the Party be gone.

Then go on, suppose the Lords Joyn in desiring a Proclamation, the end of which is Appearing and Apprehending, possibly you gain one part, that if he be apprehended, they do Imprison him upon a general Impeachment; but if they agree not, what benefit have you by it? None: But if he appears, to what is it? there is no Charge, if apprehended, to Answer the general Charge.

Then the Third way is, if the Lords agree not, that you should go to the King, and there is a more dangerous Rock in that, than in any thing; for we never heard of a Commitment per ipsum Dominum Regem,

but per mandatum Domini Regis, because against the King lies no Damages: What then must you do? many think it injustice to proceed, if he be not called by Pro∣clamation. But it is plain, if you proceed upon this Bill, you go not upon your Im∣peachment, but because he is fled from the Justice of the Land, wherewith you have Charged him in burning his Paper; and it imports little, that he saith he is Innocent; for why then doth he fly? Shall we abate him of what he ought to suffer for his saying so? He is fled from the Justice of the Parliament, and therefore is proceeded with, and for what others say, you ought not to regard popular Reasons, but to pur∣sue your own; it is enough for you to hear some Proofs made: When was it known in any Court, that Proofs should be taken only on one side? So that you cannot acquit your own Justice, nor bring him any ways to Answer, he being gone, nor can you have any effect of the Pro∣clamation, tho' the Lords join in it: There∣fore unless you will have nothing done after all this, (for he may not be Guilty of all Charged, who yet hath made himself Guilty of what is Charged by flying) Read the Bill.

At last the Question was put, whe∣ther the Bill should be Read and Com∣mitted.

• 109 for it.
• 55 against it.
• 164