Resolved upon the question, that the question be put. Resolved, "That both the questions propounded by Mr. Vaughan, and put singly in the affirmative, be carried up to the Lords." December 13. A Bill was brought from the Lords, to banish the earl of Clarendon, and read. After reading, several objections being made, and it being alledged that it was an abuse put upon the Commons by the Lords, and that a bill of attainder being propounded, after some debate, the House passed this vote : Resolved, "That this House taking notice of the flight of the earl of Clarendon, being under an impeachment of High-Treason by this House; the king's majesty be humbly desired to issue out his Proclamation for summoning the said carl to appear by a day, and to apprehend him in order to his trial." Resolved, "To send to the Lords for their concurrence to this Vote." December 14. sary 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 enjoy his estate? Sir Rob. Carr. You have ordered to consider the Reasons from the Lords, therefore do it. Mr. Hen. Coventry. 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 until 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 relations, and by proceeding farther you make him desperate, you are now in an even way with the Lords; therefore read the bill. Mr. Swinfen. You may go upon the Reasons, and yet not reject the bill; for when you sent to the Lords about a Proclamation, and went not upon the bill, it was because what the bill. drives at, is the highest punishment next to death. Therefore consider what weight is in the reasons. 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. 1. "First, for that they conceive a Proclamation in the way proposed would be ineffec-They cannot secure him upon a charge of tual, since it is not sub pana convictionis, which cannot be until particulars in order to trial be A Message from the Lords for a Conference, at which they delivered two reasons, why they could not concur. declared. 2. "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 securing of king and kingdom, to proceed in a legislative way against the said earl, and have to that end past and sent down to them a bill of banishment and incapacity against him with which this vote is inconsistent." December 16. The said Reasons from the Lords being reported and considered, and it being moved that the House would declare themselves unsatisfied with them : Sir Tho. Clifford. I am against passing a vote present upon the Lords' Reasons, but read the bill sent down from thence, and summons him by it to appear by a day. Mr. Trevor. Some are against the bill, because it goes too far, condemning before bearing, others would have it to go farther, Summons is in order to hearing, trial, and judgment; of those he hath made himself incapable by flight, and hath in his paper told you, That he will neither be heard, nor tried by you: Though you expected to have him secured by a general 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 neces VOL. VI. treason, nor yet summon him, but they can condemn him; and this they put you upon, which is against honour and justice, especially to do it upon reason of state. The legislative power of parliament is great, it hath no bound, but the integrity and justice of parliaments. If banish one man, so it may be for many. If reason of state be a motive of parliament to you go in this legislative way, you bring upon yourselves all the dishonour of the business, but the Lords will have some excuse, which yon cannot, for they looked upon the charge so slight, as not to imprison him; the party is gone, because he was not secured, apprehending (he saith) fear of the multitude, not of his trial; 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 precedent is also dangerous if having 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 practise any thing, will not he be less capable when under the Proclamation, than when this bill is passed, which condemns hira without hearing? and I am not for any punishment till heard. In Cromwell's case, who moved in Hen. 8's time, to attaint a Lord unheard, the judges declared they might, and it would stand; afterward the said Cromwell was attainted and condemned unheard, and such counsel usually falls upon those that counselled it. 2 C Sir Rob. Howard. The earl of Clarendon | man thinks it is good upon the Lords' Reasons, saith, That he doth not withdraw from your he is mistaken; and therefore my advice is to justice, but for fear of tumults;' but that proceed upon the bill, though not upon the reason any man may give for his flying, if it Reasons from the Lords. Some think the will be an excuse; but he might have secured punishment in the bill too little for the crime, himself from tumults by rendering himself, and others too much, because not summoned; so his innocency upon his trial would have cleared that it must fall out, that a person impeached him. This at last may come to a Free Con- by the House of Commons must see the House ference, then you may be left to go along with rise without any marks of displeasure upon the king; the House riseth and doth nothing, him: can any man be heard, who will not be and then the world will see that this business heard? Why should not you proceed in such a will assure the king of France, that he hath away against him, as whose very flight amounts man with him so great, as to binder 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 cominit this bill, you may add all severities, 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 lose 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; therefore commit the bill. Et volenti non fit injuria.' to a confession? And have you not burnt his paper for reflecting 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 itself. Suppose the king had a mind to attaint him, the king can do it without your help, for he may be out-lawed for high-treason; for though that be reversible 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 attainted, so that the question is not upon his life, but his estate, suppose your justice satisfied in that, is it not past all manner of consideration that the king cannot upon application restore it, so that all you looked 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 displeasure, which the king cannot pardon; and will you have it thought abroad, that the earl of Člarendon, fied as he is, hath been something too hard for the two Houses? Sir Tho. Littleton. 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 it is unnecessary and ineffectual. You have impeached, and are now told if you proceed, it will make difference; but I fear another greater danger than this difference. 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. Sir R. Temple. You have proceeded against this Earl in all ordinary ways, and have been baffled by the Lords. In Edw. 3rd'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 record, and all may know it. You have tried 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 smoke. If you go to the king for a Mr. Vaughan. I have listened with much Proclamation, you must return to the Lords for attention to this discourse, and understand it as justice. I am sorry the Ivy hath been so near little now as at the beginning, the discourse the Oak, that you cannot touch it, without being nothing adequate to that end. You have touching that. There remains a bill before you, Reasons from the Lords why they agree not and in that you are upon equal terms with the with you, and if you agree with the Reasons, the Lords; therefore give him a day to be heard, sum is to read the bill; but if you agree not, and if he come, let him; but then his penal-you must desire a conference, and if they ties are too low for his crimes; therefore read the bill, go higher, degrade him of honours, forfeit his lands, and whether you will go so far, I leave with you. Mr. Sol. Gen. It is not impossible to agree with the Lords in their Reasons, but the reason must be because the bill is good. But if any concur, 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 Proclamation more than the king's writ? It reacheth no man out of the kingdom. It is true, in some cases, if the persons are gone out of the land they are sula moned, and if they come not, their lands are seized, but it is not by Proclamation, which signifies nothing if the party be gone.—Then go on; suppose the Lords join 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 shall 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 Proclamation. But it is plain, if you proceed upon this bill, you go not upon your impeachment, 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 pursue 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 Proclamation, though the Lords join in it: therefore 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, whether the bill should be read and committed: 109 for it. 55 against it. December 18. The Bill for banishing the earl of Clarendon was reported from the Committee, and read. Sir Robert Howard. I desire that to the Preface of the Bill this addition may be made; "That whereas the earl of Clarendon was impeached of Treason by the Commons, who desired he might be secured, but was not, and thereupon is fled." And this to the end the protesting Lords may be gratified, who took so much care of the Commons. Sir Robert Carr seconds the motion. Sir John Talbot. I cannot concur with that motion, because we cannot take notice of what the Lords do. Sir R. Temple. We may take notice of things in the Lords' books which are records, and there the Protest is entered; and though not to gratify them who owned our right, yet we ought to take care of our own right: And that the world may see we have some cause to pass this bill, neither deal so modestly with a man who flies from justice, as to use his own word (withdraw) but call it flying. Sir Thomas Gower. Let the words be, 'that having been impeached, and moved to be secured, hath withdrawn himself.' Mr. Solicitor. The word moved,' destroys the bill itself: the word of the bill is to unite the two houses, and this Amendment tends to destroy that end, for the addition to the Preface being insisted on, the Lords will add the reasons for not committing, and so revive the whole matter again. Let the Lords add in their books what they will, your books will as much justify you, as theirs them. Sir Hum. Winch. Let the words be added, whether the Lords agree, or not, that it may appear upon our books. Mr. Hugh Boscawen. The preface is but history, yet add these words, and let the Lords insert what they please. I should rather concur with them, than leave out those words. Mr. Vaughan. Put no question upon these words, but whether the Preface shall go as it is: The bill in probability is a safe bill, because it came from them: But if you begin an alterateration, you yourselves render it unsafe; for if you put in these words, then the Lords will add, for want of special matter,' and so it will come to nothing. Then the Bill was read the third time. Mr. Vaughan. I am against the word 'withdrawn,' and for the word flight' instead of it, and in regard the justice of this bill depends upon the word flight,' put it expressly. Sir R. Carr. I am against this bill, though I was earnest in the matter as any one while I thought there was proof; but now none appearing, I am against the bill, because you are confirming what the Lords have done. Mr. Vaughan. Many men wonder that no reason is given for passing this bill, but the question is mistaken, the bill is grounded upon his flight after his impeachment, and his flying implies some guilt; if none, it is the safest argument for any man to run away, and then there is nothing to catch him. A proclamation to a man out of the kingdom signifies nothing. But in the whole it is plain, that he saith, that finding the king's Justice obstructed in parlia ment, he is fled. Obj. But it will be said, Upon bare flight never was any man punished. Answ. If one man kills another and flies, though upon his trial be shall be acquitted, yet he shall never recover his goods because of his flight. There have been several Acts of Banishment, Spencer, &c. And though in this there is something more severe than in them, namely that none shall correspond with him; yet there is also some advantage, namely, that if he come in by the 1st of February all shall be void; for when the crime is laid, and his flight makes him guilty, he ought not to have a day. Then the question was put for passing the bill; 65 for it, 42 against it. So the bill passed the Commons, and afterwards obtained the royal assent. It is as follows, stat. 19 Car. 2, | Against this Act, the following PROTESTS were c. 10. An ACT for Banishing and Disenabling the soever. entered in the Lords' Journals. December 12. An Act for banishing and disabling the earl of Clarendon, was read a third time. The question being put, whether this Bill shall pass; It was resolved in the affirmative. "Whereas Edward earl of Clarendon having been impeached by the Commons assembled in parliament, of treason and other misdemeanors, hath knowingly withdrawn himself, and is fled, "I whose name is underwritten do, accordwhereby justice cannot be done upon him ac-ing to the ancient right and usage of all the cording to his deinerit, Be it enacted by the peers of the realm assembled in parliament, king's most excellent majesty, by and with the after due leave demanded from the House in advice and consent of the Lords spiritual the usual manner and form, as the Journal Book and temporal, and Commons in parliament as- doth shew, enter and record my Protestation and sembled, and by authority of the same, That dissent as follows. 1. That without having ever the said Edward earl of Clarendon shall and been in prison, or imprisonment appointed, or do suffer perpetual Exile, and be for ever ba- any legal charge brought, it seems unjust to nished this realm, and all other his majesty's punish the earl of Clarendon for only withdraw dominions, and shall be for ever disabled from ing himself; it not being at all certain to the having, holding or enjoying any office or place house, that he is gone out of the kingdom; and of public trust, or any other employment what- if it were known to the Lords that he were fled beyond the seas, though the fault would be "And be it further enacted by the authority very great in a person who hath lately been aforesaid, That it shall be, and be taken to in such trust, yet perpetual exile, and being be treason, for the said Earl at any time to re- for ever disabled from bearing any office, and turn into, or be found in England, or any other the penalties in the bill, seem too severe a cenhis majesty's dominions, after the 1st day of sure. 2. That it may, perhaps, give some ocFebruary, according to the account of Eng-casion for the scandal to have it believed, that land, 1667; and that in case the said Earl the House of Commons, and others, by standshall at any time return into, or be found in ing so long upon pretence of a privilege to reEngland, or any other his majesty's dominions, quire commitment before special matter of after the said 1st day of February, That the Treason assigned, were in doubt, that no proof said Earl shall suffer the pains and penalties of Treason could be made out against the party of treason, and be made incapable of any accused; and that they had therefore designed, pardon from the king's majesty, his heirs and through terror, to make him fly; and fear, lest successors, but by act of parliament; and that he should yet return to be tried, in case they all correspondency with the said Earl, except should bring in special matter of Treason, as it be of his children, or such persons as shail they ought to do, whensoever they accuse. be licensed by the king in council, concerning 3. That by this bill, power being taken from his estate and domestic affairs only, after the the king to pardon, it appeareth to be a great said 1st day of February, shall be, and he taken entrenchment upon his majesty's royal preroga to be of the same nature as correspondency tive. 4. That there can be no such case, as with a traitor; and the offender therein shall have been pretended, ever to cause a necessity suffer such pains and penalties, as by the laws in the House of Commons not to acquaint the of this realm are to be inflicted upon such per-Lords with the particulars openly made known sons as keep correspondence with traitors; and that all letters sent to the said Earl, he shewed to one of the principal Secretaries of State before they be sent; and that all letters which shall be received from the said Earl, beparting the particulars to the Lords, do seem likewise shewed to one of the principal Secretaries within ten days after each receipt, under the penalties aforesaid. to them, by which they were first satisfied to find ground to accuse. 5. That the Commons, so far judging any article to be Treason, as to insist upon commitment, without im therein to usurp that first part of judicature from the Lords, who are the highest court of justice in the kingdom. 6. That to require "Provided always, That if the said earl of such commitment seems to be contrary to the Clarendon shall on or before the said 1st day Petition of Right and Magna Charta, and the of February next, render himself unto one of rights not only of the peers, and great persons his majesty's principal Scerctaries of State, of this kingdom, but the birth-right even of the or to the Lieutenant of the Tower of London meanest subjects; and therefore those proceed. for the time being, in order to his trial, which ings not having been according to law and the shall be in parliament, That then and in such ancient rules of parliament, hath given oppor case, all and every the penalties and disabili-tunity to the earl of Clarendon to absent himties by this act imposed upon the said Earl of Clarendon, shall be utterly void and of no effect, any thing herein before mentioned to the contrary notwithstanding." self. 7. The commitment upon a general impeachment hath been heretofore, and may be again, of most dangerous consequence; and as is conceived, the Lords have yet no way for them so well to justify their fair and upright proceedings in the earl of Clarendon's business, and the true regard they have had herein to the king and kingdom, as to decline this Bill of Banishment, and to expect a particular accusation of the said earl; and thereupon according to law and justice to appoint him a day for appearance, which if he observe not, without farther process, sentence might lawfully be pronounced against him. Strafford." "We having this day given our negatives to the passing of a Bill for banishing and disenabling the earl of Clarendon; and having asked leave of the house to enter our dissents, to the end that it may appear to posterity that we did not give our consents to that bill, we do now take liberty to enter our dissents, by subscribing our names. Berkeley of Berkeley, Holles, Ro. Lexington, T. Culpeper." The Earl of CLARENDON'S Vindication of Himself against the Articles of Treason exhibited against him in Parliament.* Mr. Seymour's SPEECH to the House of Lords. "My Lords: "The Commons assembled in parliament, having received information of divers treason this House, (Edward earl of Clarendon) comable practices and designs of a great peer of mand me to accuse the said Edward earl of Clarendon of Treason, and other crimes and misdemeanors; and I do here in their names, "As nothing could be more surprising to But, above all, it was of the highest consolame, nor I think to any man else, than to find tiou to me, when it was publicly and industrimyself, after near thirty years service of the ously declared, that the king was firmly re crown in the highest trust; after having passed solved to destroy me, and would take it very all the time of his majesty's exile with him be well from all men who would contribute thereyond the seas, and in his service, and in which unto, by bringing in any charge or accusation the indefatigable pains I took was notorious to against me; when the most notorious enemies many nations; and after I had the honour and I had, were the only persons trusted in em-, happiness to return again with his majesty into ployment; men who had most eminently disEngland, and to receive from him so many served and maliciously traduced the king, and eminent marks of his favour, and to serve him been to that time looked upon as such by his near eight years after his return, in the place majesty; and all who were believed to have of the greatest trust, without ever having dis- kindness for me, were discountenanced; when covered that his majesty was offended with me, men of all conditions and degrees were daily or, in truth, that he had ever the least ill solicited and importuned, by promises and success from any counsel I had ever given him; threats, to declare themselves against me, at or that any person of honour and reputation, least if they would not be wrought over to do or interest in the nation, had ever made any thing against their consciences, that they the least complaint against me, or bad any absent themselves from those debates; that all thought that the miscarriages (for miscarriages this malice and conspiracy, with so long deliwere enough spoken of) had proceeded from beration and consultation, should not be able me, or any advice of mine: I say, as after all at best to produce and exhibit any other charge this I could not but be exceedingly surprised, and accusation against me, but such a one, as to find myself on a sudden, when I had not the most men who knew me, or had any trust and least imagination of it, bereft of the king's employment in the public affairs, were well favour; and fallen so far from his kindness, able to vindicate me from the guilt of, and even Even within three or four days after his majes- my enemies themselves did not believe : ty had vouchsafed to condole with me in my The particulars whereof (as far as I can take house for the death of my wife, that he resolv-notice of them, they having not to this day ed to take the Great Seal from me: So it was no small comfort to me, to see and know, that very few men of honour or reputation approved or liked what was done; but that the same was contrived, pursued and brought to pass by men and women of no credit in the nation; by men, who had never served his majesty or his blessed father eminently or usefally, but most of them in trust and credit ander Cromwell, or never of credit to do him the least service; and who were ouly angry with me for not being pleased with their vicious and debauched lives, or for opposing or dissuading their loose and unreasonable counsels, which they were every day audaciously administering in matters of the highest moment, with great licence and presumption. been reduced to any form, so much as in the House of Commons itself) I shall now examine; and if I shall appear too tedious in the examination and disquisition of them, and to say more than is necessary for my own Defence, and to mention many particular persons in another manner than is usual upon occasions of this kind; I desire it may be remembered and considered, that this is not written as a formal Answer to an Impeachment, nor like to be published in my life-time; a judgment of Banishment being passed against me (without the least proof made, or offered, for the mak ing good any one Article of Treason or Mis demeanor) by act of parliament; but is a debt due to my children and posterity, that they may know (how much soever they are or may |