but yet it was not treason. This statute, 15 Car. C. 1. makes treason during the king's life: but if a man calls the king Heretic, or Papist, or that he endeavours to introduce Popery, (which is more in express terms than the article of that kind insinuates) or by words, preaching, prayer, to stir up the people to hatred or dislike of the person of his majesty, or the esta felon after confession may appeal, that is (saith he) accuse others, coadjutors with him to do the felony. C. P. C. 129, appellant cometh from the French word appeller, which signifies to accuse, or appeach, and 1 Co. Inst. sect. 189. Appel signifieth an accusation; and therefore to appeal a man is as much as to accuse, and in ancient books he that doth appeal a man is called accusator, vide 9 Edw. 2, Arti-blished government; the penalty is only disculi Cleri, c. 16. That I knew no reason why in those tumbling times of R. 2, (which caused this statute, for the statute-roll is Coment ad ́auterment este eus en temps la darrein roy,' R. 2,) they should proceed by way of appeal, but because they were then allowed at the suit of the party, to accuse any other of treason, but at the king's suit there ought to be an indictment, and an indictment could not be found but by jury. That in all other cases, an appeal was to be brought by the party concerned, the wife or heir, or party robbed, &c. But in case of Treason, any man may appeal another, and therefore in all reason it must be understood of an accusation, and any man might accuse another of Treason; and if it can be proved by witnesses, it must not be tried by battle, as other appeals may. I concluded that the 8 Hen. 6, No. 38, this statute, the 1 Hen. 4, c. 14, is recited, and desired it should be duly kept and put in execution; that Stamford 78 and Coke Pl. Cor. 31, 132, agree that appeals of High-Treasou, were commonly used to be sued in parliaments till the 1. Hen. 4, c. 14. Since which time this manner of appeal hath gone out of use; and I said, I had searched many precedents, and though of late there may be a precedent (as it was of the earl of Bristol's father against the duke of Buckingham, of some kind of inpeachment) yet I did confidently believe there was not since that statute 1 Hen. 4, c. 14, any one precedent of such an impeachment at the party-suit whereupon there was any indict ment: In truth, in the earl of Bristol's case, the Commons House did impeach the duke of Treason, and so the earl of Bristol's impeachment proceeded not. For the second point, "That there was no Treason in the charge, though the matters in it are alledged to be traitorously done." I said we had perused each article seriatim, and we had found no Treason in them; the great charge, which is endeavoured to be proved by many particulars, was, That he did traitorously and maliciously, to bring the king into contempt, and with an intent to alien the peoples affections from him, say, &c. such and such words, &c. ability to enjoy any place ecclesiastical, civil, or military, and subject to such penalties as by the common law or statute of this realm may be inflicted in such case, (which is fine and ransom, with imprisonment) and it limits a time and manner of prosecution. There was an objection made yesterday upon the 25 E. 3. That this being in parliament, the king and parliament had power to declare treason, and then we ought to have delivered our opinions with a qualification, unless it be declared treason by parliament where this charge is depending; to this I answered. 1. It is not treason in præsenti, and if such a declaration should be, non constat, whether it would relate to the time past. 2. That I conceived that the statute as touching that declaratory power, extended but to such cases as were clearly felony, as single acts, if not treason, (the words being) whether it be treason or other felony; but in respect of the doubts of escheats, which, if treason, be longed to the king; if felony, to the lords of the fee, it was left to the parliament. I did not say we resolved the point. 3. That admitting the declaratory power did extend to other cases than such as were before the judges, and was not taken away by 1. Mar. cap. 1. or any other statute, yet I read my lord Coke's opinion at large, Pl. Cor. Fol. 22. That this declaration must be by the king, lords and commous, not by any two of them alone; and we were now in a judicial way before the House of Peers only; and I did affirm as clear law, that by this judicial way no treasons could be declared nor adjudged, but as were expressly within the letter of the 25 E. 3. and said, That statute 25 E. 3. was a second Magna Charta, and that their ancestors thought it their greatest security to narrow, and not to enlarge treason, and cited 1 II. 4. cap. 10. to which in the parliament-roll Rot. No. 17. is added (it coming of the king's free grace) that the lords did much rejoice and humbly thank the king: and I read the statute 1. M. cap. 1. That the now earl of Bristol in my lord of Strafford's Case, was the great asserter of the law against constructive and accumulative trea son, which, if admitted, their lordships could better suggest unto themselves, than I express, how great a door they would set open to other inconveniencies and mischiefs to the peerage. And so it runs on, That in pursuance of the traitorous intent, &c. he did, &c. and that in farther pursuance of the said traitorous design, &c. And in like manner was most of the articles upon which the characters of treason * As to Treason at Common Law declaraseemed to be fixed. I said that it is a trans-ble by Parliament, though not within 25 Edw. cendent misprision or offence to endeavour to 3, See the note to Lord Capel's case, ante, vol. bring the king into contempt, or to endeavour 4, p. 12, 13, and the case of the Earl of Danby to alienate the people's affections from him, A. D. 1678; infra. I concluded with reading the Act, 14 Car. 2. for reversing the attainder of the earl of Stråfford; the first part whereof I read to them, wherein is expressed, That they, who condemned him, did purposely make an act of parliament to condemn him upon an accumulative treason, none of the pretended crimes being treason apart, and so could not be in the whole, if they had been proved. After I had spoken to this effect, the earl of Bristol seemed to acquiesce, insomuch as concerned our opinions as the case was delivered to us: but it being to be put to the question, Whether the Lords did concur with the Judges opinions, and himself being concerned in the illative, that therefore the charge was illegal and irregular; yet not being intended by him, as he said, as a charge, but an information, he desired (though as the case was put to us, it it was a good inference) that the voting of that might be spared till it was resolved by the Lords whether he delivered it in as a charge, or only as an information for the matter of the charge, if it should be thought fit for their lordships to proceed in it: after some debate upon the question, the Lords resolved the same day, according to our opinions, 1. "That a charge of high-treason cannot "by the laws and statutes of this realm be ori"ginally exhibited by one peer against another, unto the House of Peers. 2. "That in these Articles, if the matters al"ledged in them were admitted to be true, "there is no treason in them. And because "the Lords unanimously concurred in them "(Lord Bristol freely as any other) it was by or"der entered, That these Votes were nem. con." Note, That in Judge Hutton's Reports, the Resolution of the Judges is expressed to be, That a peer cannot be impeached but by indictment, and Mr. Rushworth in his Collections, Fol. 272, expresses such an opinion to be delivered by the judges, in 1 or 2 Car. but upon search it was found to be entered in the Journal of Parliament of that time, but it was cautious, referring to the common-law only. But that for proceedings in parliament it did not belong to them to determine, or to that effect; but no mention of 1 H. 4. cap. 14. It bath been credibly reported that some of the Judges in my lord of Strafford's case, being asked some questions, did with the like caution deliver their opinions, and did speak with reservations, (as the case is put) though they upon hearing did know the case mis-put? which, after troubled the conscience of one of them, (ut audivi) being a grave learned man; for "Suppression of the truth is the oppression of the innocent." Vide Peacock's Case, Co. 9. Rep. Fol. 71. But we having the case referred to us in parliament upon Articles exhibited in parliament, did resolve to deliver our Opinions without any such reservation; the act of 1 II. 4. being express against appeals in parliament (and of acts of parliaments after they are once made, none under the king, and without him, are interpreters but the judges. See King's Answer printed in the old print of 3 Car. 1. at the end of the Petition.) And therefore did deliver these Opinions which I conceive of great benefit to the Lords themselves, and a just ground for farther enquiry to be made, whether such impeachments may be in the House of Peers for other misdemeanours, without the king's leave, or being exhibited by his attorney. And secondly, to take into consideration the validity of impeachments of treason by the House of Commons, notwithstanding the late precedents, which yet ended in a bill, and so in the legislative, not judiciary way. Thus ended this attempt against the earl of Clarendon; but thus far it had its effect, in diminishing the king's favour towards him, and lessening his interest with the Lords, and with. the people, whereby he became exposed to a second attempt, four years after. Aug. 30, 1667, the king removed him from his place of lord chancellor; and the House of Commons impeached him of high treason, and of high crimes and misdemeanors, in the manner following: Proceedings against the Earl of CLARENDON, A. D. 1667, upon an Impeachment of High-Treason and High Misdemeanors. [The following passages relating to these Proceedings are extracted from Burnet: "The Dutch war had turned so fatally on the king, that it made it necessary for him to try how to recover the affections and esteem of his people. He found a slackening the execution of the law went a great way in the city of London, and with the trading part of the nation. The House of Commons continued still in their fierceness, and aversion to all moderate propositions: but in the intervals of parliament the execution was softened. The earl of Clarendon found his credit was declining, that all the secrets of state were trusted to Bennet, and that he had no other share in them than his post required. The lady Castlemain set herself most violently against him. And the duke of Buckingham, as often as he was admitted to any familiarities with the king, studied with all his wit and humour to make lord Clarendon and all his counsels appear ridiculous. Lively jests were at all times apt to take with the king. The earl of Clarendon fell under two other misfortunes before the war broke out. The king had granted him a large piece of ground near St. James's to build a house on; he intended a good ordinary house: but, not understanding those matters He Aimself he put the managing of that into the hands of others; who run him into a vast charge of about 50,000l. three times as much as he had designed to lay out upon it. During the war, and in the plague year, he had about 300 men at work, which he thought would have been an acceptable thing, when so many men were kept at work, and so much money, as was duly paid, circulated about. But it had a contrary effect. It raised a great outcry against him. Some called it Dunkirk house, intimating that it was built by his share of the price of Dunkirk. Others called it Holland house, because he was believed to be no friend to the war so it was given out, that he had the money from the Dutch. It was visible, that in a time of public calamity he was building a very noble palace. Another accident was, that before the war there were some designs on foot for the repairing of St. Paul's: and many stones were brought thither. That project was laid aside during the war. upon that bought the stones, and made use of them in building his own house. This, how slight soever it may seem to be, yet had a great effect by the management of his enemies. Another misfortune was, that he lost his chief friend, to whom he trusted most, and who was his greatest support, the earl of Southampton. "As soon as the peace was made, the king saw with what disadvantage he was like to meet his parliament. So he thought the disgracing a public minister, who by his being long in so high a post had drawn upon himself much envy, and many enemies, would cover himself and the rest of his court. Other things concurred to set this forward. The king was grown weary of the queen: and it was behieved he had a great mind to be rid of her. The load of that marriage was cast on the lord Clarendon, as made on design to raise his own grandchildren. Many members of the House of Commons, such as Clifford, Osborn, Ker, Littleton, and Seimour, were brought to the king; who all assured him, that upon his restoration they intended both to have raised his authority, and to have encreased his revenue; but that the earl of Clarendon had discouraged it, and that all his creatures had possessed the house with such jealousies of the king, that they thought it was not fit to trust him too much, nor too far. This made a deep impression on the king, who was weary of lord Clarendon's imposing way, and had a mind to be freed from the authority, to which he had been so long accustomed that it was not easy to keep him within bounds. "Yet the king was so afraid to engage himself too deep in his own affairs, that it was a doubt whether he would dismiss him or not, if a concern of one of his amours had not sharpened his resentment; so that what other considerations could not do, was brought about by an ill grounded jealousy. Mistress Steward had gained so much on the king, and yet had kept her ground with so much firmness, that the king seemed to design if possible to legiti mate his addresses to her, when he saw no hope of succeeding any other way. The duke of Richmond, being a widower, courted her. The king seemed to give way to it; and pretended to take such care of her, that he would have good settlements inade for her. He hoped by that means to have broke the matter decently; for he knew the duke of Richmond's affairs were in disorder. So the king ordered lord Clarendon to examine the estate he pretended to settle. But he was told, whether true or false I cannot tell, that lord Clarendon told her, that the duke of Richmond's affairs, it was true, were not very clear; but that a family so near related to the king could never be left in distress, and that such a match would not come in her way every day; so she had best consider well, before she rejected it. This was carried to the king, as a design he bad that the crown might descend to his own grandchildren; and that he was afraid, lest strange methods should be taken to get rid of the queen, and to make way for her. Whew! the king saw that she had a mind to marry the duke of Richmond, he offered to make her a duchess, and to settle an estate on her. Upon this she said, she saw she must either marry him, or suffer much in the opinion of the world. And she was prevailed on by the duke of Richmond, who was passionately in love with her, to go privately from Whiteball, and marry him without giving the king notice. The earl of Clarendon's son, the lord Cornbury, was going to her lodgings, upon some assignation that she had given him about her affairs, knowing nothing of her intentions. He met the king in the door coming out full of fury. And he, suspecting that lord Cornbury was in the design, spoke to him as one in a rage that forgot all decency, and "for some time would not hear lord Cornbury speak in his own defence. In the afternoon be heard him with more temper, as he himself told me. Yet this made so deep an impression, that he resolved to take the seals from his father. "The parliament were upon their first opening set on to destroy lord Clarendon. Some of his friends went to him a few days before the parliament met; and told him, many were at work to find out matter of accusation against him. He best knew, what could be brought against him with any truth; for falsehood was infinite, and could not be guessed at. They desired, he would trust some of them with what might break out, since probably nothing could lie concealed against so strict a search. And the method in which his friends must manage for him, if there was any mixture or allay in him, was to be very different from that they could use, if he was sure that nothing could be brought out against him. The lord Burlington and bishop Morley both told me, they talked to this purpose to him. Lord Clarendon upon that told them, that, if either in matters of justice, or in any negociations abroad, he had ever received a farthing, he gave them leave to disown all friendship to him. The French king, hearing he had sent for all the books of the Louvre impression, had sent these to him, which be took, as thinking it a trifle, as indeed it was and this was the only present he ever had from any foreign prince: be had never taken any thing by virtue of his office, but that which his predecessors had claimed as a right. But now hue and cry were sent out against him: and all persons, who had heard him say any thing that could bear an ill construction, were examined. Some thought, they had matters of great weight against him: and, when they were told these would not amount to high treason, they desired to know what would amount to it. : censure, since he had served both his father and himself so long, so faithfully, and with such success. But the king was now so sharpened against him, that though he named no particulars, he expressed a violent and irreconcilable aversion to him; which did the king much hurt in the opinion of all that were not engaged in the party. The affair of the king's marriage was the most talked of, as that which indeed was the only thing that could in any sort justify such a severity. Lord Clarendon did protest, as' some that had it from himself told me, that be had no other hand in that matter, than as a counsellor and in that he appealed to the king himself. After many debates, and conferences "When twenty three articles were brought and protestations, in which the whole court into the House against him, the next day he de- went in visibly to that which was plainly desired his second son, the now earl of Rochester, structive both to the king and to the ministry, to acquaint the House, that he, hearing what the majority of the House stood firm and adArticles were brought against him, did in order bered to their first resolution against committo the dispatch of the business, desire that those, ment. The Commons were upon that like to who knew best what their evidence was, would carry the matter far against the Peers, as desingle out any one of the Articles, that they nying justice. The king seeing this spoke to the thought could be best proved; and, if they duke, to persuade Lord Clarendon to go be could prove that, he would submit to the cen-yond sea, as the only expedient that was left sure due upon them all. But those, who had the secret of this in their hands, and knew they could make nothing of it, resolved to put the matter upon a preliminary, in which they hoped to find cause to hang up the whole affair, and fix upon the Lords the denial of justice. So, according to some few and late precedents, they sent up a general impeachment to the Lords bar of high treason, without any special matter; and demanded, that upon that he might be committed to prison. They had reason to believe the Lords would not grant this: and therefore they resolved to insist on it; and reckoned, that, when so much money was to be given, the king would prevail with the lords. Upon this occasion it appeared, that the private animosities of a court could carry them to establish the most destructive precedent that could have been thought on. For if this had passed, then every minister upon a general impeachment was to be ruined, though no special matter was laid against him. Yet the king himself pressed this vehemently. It was said, the very suspicions of a House of Commons, especially such a one as this was, was enough to blast a man, and to secure him: for there was reason to think, that every person so charged would run away, if at liberty. Lord Clarendon's enemies had now gone far: they thought they were not safe till his head was off: and they apprehended, that, if he were once in prison, it would be easy either to find, or at least to bring witnesses against him. This matter is all in print: so I will go no farther in the particulars. The Duke was at this time taken with the small-did not come in, he might incur the punishpox so he was out of the whole debate. The peers thought, that a general accusation was only a clamour, and that their dignities signified little, if a clamour was enough to send them to prison. All the earl of Clarendon's friends pressed the king much on his behalf, that he might be suffered to go off gently, and without VOL. VI. to make up the breach between the two houses; And he let fall some words of kindness in case he should comply with this. The carl of Clarendon was all obedience and submission; and was charmed with those tender words, that the king had said of him. So, partly to serve the king, and save himself and family, but chiefly that he might not be the occasion of any difference Letween the king and the duke, who had heartily espoused his interest, he went privately beyond sea, and writ a letter from Calais to the House of Lords, protesting his innocence in all the points objected to him, and that he had not gone out of the kingdom for fear, or out of any consciousness of guilt, but only that he might not be the unhappy occasion of any difference between the two Houses, or of obstructing public business. This put an end to the dispute. But his enemies called it a confession of guilt, and a flying from justice; Such colours will people give to the most innocent actions. "A bill was brought ia, banishing him the king's dominions under pain of treason if he should return: And it was made treason to correspond with him, without leave from the king. This act did not pass without much opposition. It was said, there was a known course of law when any man fled from justice: And it seemed against the common course of justice, to make all corresponding with him treason, when he himself was not attainted of treason; Nor could it be just to banish him, unless a day were given him to come in: And then, if he ment upon contempt. The duke, whom the king had employed to prevail with him to withdraw himself, thought he was bound in honour to press the matter home on the king; which he did so warmly, that for some time a coldness between them was very visible. The part the king had acted on this matter came Y to be known; and was much censured, as there was just cause for it. The vehemence that he shewed in this whole matter was imputed by many to very different causes. Those who knew him best but esteemed him least, said to me on this occasion, that all the indignation, that appeared in him on this head, was founded on no reason at all; but was an effect of that easiness, or rather laziness of nature, that made him comply with every person that had the greatest credit with him. The mistress, and the whole bedchamber, were perpetually railing at him. This by a sort of infection possessed the king, who without giving himself the trouble of much thinking, did commonly go into any thing that was at the present time the easiest, without considering what might at any other time follow on it. Thus the lord Clarendon fell under the common fate of great ministers; whose employment exposes them to envy, and draws upon them the indignation of all who are disappointed in their pretensions. Their friends do generally shew, that they are only the friends of their fortunes: and upon the change of favour they not only forsake them in their extremity, but, that they may secure to themselves the protection of a newfavourite, they will labour to redeem all that is passed by turaing as violently against them, as they formerly fawned abjectly upon them: Ard princes are so little sensible of merit or great services, that they sacrifice their best servants, not only when their affairs seem to require it, but to gratify the humour of a mistress, or the passion of a rising favourite."] October 26, 1607. * Mr. Edward Seymour charged him viva voce with many great crimes, whereupon a debate arose what proceeding ought to be had upon in it, some moving to impeach him in the name of the Commons till articles should be prepared; others urged that witnesses should be first examined to see how the charge could be made good, lest failing, it should reflect on the honour of the House. After long debate a com mittee was appointed to search records for parliamentary proceedings in the like cases, and to make report. Oct. 30th. The report being made by sir Thomas Littleton, that various proceedings were found in several parliaments, it occasioned a long debate, several members speaking to the effect following. Sir Tho. Littleton. In cases criminal, we find proceedings to have been, sometimes by articles, sometimes by word of mouth; but in capital crimes no proceedings appear till the earl of Strafford's Case [A. D. 1644, ante, vol. iii. p. 1381.] against whom the House carried up a general impeachment, the reason whereof seems to be this: Some votes were made in the House, at which the king takes offence, as if they would proceed upon common fame; whereupon they vindicate their proceedings as done in a parliamentary vasion was to be resisted.' He mentioned many other odious particulars which' he said 'he would prove,' and therefore proposed, That they would presently send up to the Lords to accuse him of High Treason, and require that his person might be secured.'' It may seem as if lord Clarendon did not think the four hundred country gentlemen competent even to direct the application of money which they had granted, for as Mr. Hatsell (S Prec. 81), notices, his lordship mentioning an appropriation clause proposed by sir George Downing, expresses himself thus: The Soli* According to lord Clarendon's own ac- 'citor General brought in the Bill for Supply, count (Continuation of his Life, 445); "After according to course, in that form as those many days spent in close contrivances and bills for money ought and used to be; and combinations, Mr. Seymour, a young man of after it had been read a second time, when great confidence and boldness, stood up in the it was committed, Downing offered his proHouse of Commons, and spake long and with viso; the end of which was, to make all the great bitterness against the Chancellor, and of money that was to be raised by this bill to be his great corruption in many particulars, by applied only to those ends to which it was which, he said, he had gotten a vast estate. given, which was the carrying on the war, and That he had received great sums of money from to no other purpose whatsoever, by what auIreland, for making a settlement that every 'thority soever, with many other clauses in it body complained of, and that left that king-so monstrous, that the Solicitor, and many dom in as great distraction as ever it had been. others who were most watchful for the king's That he had gotten great sums of money indi-service, declared against it as introductive to rectly and corruptly from the plantations, the a commonwealth, and not fit for monarchy.' governments whereof he had disposed; by pre- Lord Clarendon's Contin. p. 315. See further, ferments in the law and in the church; and for in p. 316, 317, et seq. the arguments that were the passing of charters. And that he had re-used for and against this proviso, at the Comceived 4,000, from the Canada company for mittee of Council, which met in lord Clarenestablishing that company, which was so great don's bedchamber, he being ill in bed; the and general a grievance to the kingdom. And, King present.' which was above all this, that he had traitorously persuaded, or endeavoured to persuade, the king to dissolve the parliament, and to govern by a standing army; and that he had said that 400 country gentlemen were only fit to give money, and did not understand how an in In the same volume, Mr. Hatsell having occasion to mention some very ancient instances of parliamentary appropriation of grants, and of examination into the particulars of expenditure, says, "The antiquity of this practice of appropriating the grants of Parliament, shews |