House of Lords Journal Volume 7: 4 January 1645

DIE Sabbati, 4 die Januarii.

PRAYERS, by Mr. Sallaway.

Ds. Grey de Warke, Speaker.

Message from the H. C. for a Conference about the Directory.

A Message was brought from the House of Commons, by Sir Rob't Harley Knight, &c.:

To desire a Conference, so soon as it may stand with their Lordships Conveniency, concerning the Directory.

The Answer returned was:

Answer.

That this House will give a present Conference, as is desired, in the Painted Chamber.

Clerks Fees on Private Ordinances, &c.

"Ordered, by the Lords in Parliament, That no Private Ordinance do pass this House, until the Parties that are concerned therein do first pay such Fees for the same unto the Clerk of this House, as hath usually been paid upon the passing of Private Bills; and all Members of this House, that do present any Ordinance wherein the Advantage or Benefit of any Private Person is concerned, are desired to acquaint the Persons that are or shall be concerned herewith; and to appoint them first to pay such ancient and accustomed Fees as aforesaid, to the Clerk of this House."

Conference concerning the Archbishop of Cant's Attainder.

The Lord Admiral reported the late Conference with the House of Commons, concerning the Archbishop of Canterburie's Business, to satisfy their Lordships in Point of Law, that the Charge of Matter of Fact, laid down in the Ordinance for his Attainder, is Treason by the Common Law. (Here enter the Report.)

Witnesses concerning the E. of Denbigh's Complaint against Stone, & al.

Ordered, That Tho. Crompton Esquire, Edw. Leigh Esquire, Wm. Gough, Captain Tho. Hunt, Rob't Willmot, Hugh Foard, Rob't Lees, Samuell Jerricke, Peter Stepkin, Captain Wagstaffe, Lewis Chadwicke, Lieutenant Bradhurst, Captain Tho. Willington, shall be summoned to appear as Witnesses, before the Committee for the Earl of Denbigh's Business, against the Committee of Staffordshire, on Thursday come Fortnight.

Message to the H. C. to refer this Business to the former Committee.

A Message was sent to the House of Commons, by Mr. Serjeant Whitfield and Mr. Serjeant Fynch:

To let them know, that the Lords do desire that the Consideration of the Articles preferred by the Earl of Denbigh, against Henry Stone and others, may be referred to the Committee of both Houses, formerly appointed for the Earl of Denbighe's Business, concerning his Association; and that they may meet upon Tuesday next, at Two of the Clock, in the Lord Keeper's Lodgings; and to have Power to adjourn themselves from Time to Time.

Ordinance for the Attainder of the Archbishop of Cant.

Next, the House commanded the Ordinance for the Attainder of the Archbishop of Canterbury of High Treason, [ (fn. 1) to be] read the Third Time; and Agreed to as it came from the House of Commons. (Here enter it.)

Report of the Conference concerning the Directory.

The Lords went to the Conference, and the House was adjourned during Pleasure; which being resumed, the Speaker reported the Effect of the Conference:

"That whereas Yesterday their Lordships sent down the Ordinance for re-calling of the Service-book, and establishing the Directory, with some Alterations and Additions; the House of Commons, taking the same into Consideration, do agree unto all, except Two Alterations; and, instead thereof, have made these Alterations: Instead of the Words ["according to the Preface"], put in ["according to the true Intent and Meaning of this Ordinance"].

"Besides public Reading of the Holy Scriptures, every Person that can read is to be exhorted to read the Scriptures privately; and all others that cannot read (if not disabled by Age or otherwise) are likewise to be exhorted to learn to read, and have a Bible."

The Alterations being read, this House Agrees to these Alterations.

Directory to be printed.

Ordered, That the Printer belonging to this House shall print this Directory; and that the Assembly be desired to appoint Two of the Assembly, to oversee and correct the Press.

Message to the H. C. that the Lords have passed it; and the One for the Archbishop of Cant's Attainder.

A Message was sent to the House [ (fn. 2) of Commons,] by Mr. Baron Trevor and Mr. Justice Bacon:

To let them know, that the Lords have passed the Ordinance for the Attainder of the Archbishop of Canterbury.

2. To let them know, that the Lords do concur with the House of Commons, for the passing of the Ordinance for the Directory, with the Alterations; and have given Order, That the Printer belonging to the House of Peers may print it; and that the Assembly will appoint some to correct and oversee the printing of it.

"The Report of the Lord Admiral, of the Matter delivered by Mr. Browne, at the Conference concerning the Ordinance for Attainder of the Archbishop of Canterbury.

Report of the Conference concerning the Matter of Law in the Attainder of the Archbishop of Cant.

"That Mr. Browne offered to their Lordships Consideration these Things ensuing, to move them to concur with the House of Commons in the Ordinance for Attainder of the Archbishop of Canterbury:

"1. The Objections that were made by the Archbishop's Counsel, against the Lords giving Judgement upon the Articles, were answered.

"2. Reasons were given, why the Lords should concur in the Ordinance.

"The Objections were:

1. That there is no Treason at this Day, that is not within the Statute of 25 E. III.

"2. That no Act done by the Archbishop is within the Statute of 25 E. III.

"This was answered by Four Grounds, that were taken:

"1. That there are Treasons at the Common Law, which are not within the Statute; and those are not taken away by that Statute.

"2. Divers of those Treasons are Treasons against the Realm; or thus, That Treason may be against the Realm as well as against the King.

"3. Of all those Treasons that are Treasons against the Realm, or at Common Law, the Parliament is the only Judge; and no inferior Judge can judge of them, but upon the Declaration of the Parliament.

4. That, ever since the Statute of 25 E. III. the Parliament hath Adjudged, Declared, and Enacted, divers Things to be Treason, which are not within the Words of the Statute of 25 E. III.

"1. That there are other Treasons than those mentioned in the Statute, appears plainly by the Words of the Statute, which are, "Because many other like Cases of Treason may happen in Time to come, which a Man cannot think or declare at this present, &c. "If any such Case happen before any Justice, the Justice shall tarry, without going to Judgement of the Treason, till the Cause be shewed before the King and His Parliament."

"Glanvill, Lib. 10°. "To do any Thing in Seditione Regni, is Treason. This no Judge in any inferior Court can judge Treason, yet the Parliament may."

"30° Ass. 19. In E. I. Time, One was a Traitor for bringing a Bull of Excommunication against a Subject here. Compare these with the Case in Question.

"These Treasons, or any other Common Law Treasons, the Parliament may adjudge Treasons; for there are no Words in that Act to restrain the Parliament.

21 E. III. Rot. Parliam N° 15. It was cited by the Archbishop's Counsel, that incroaching of Royal Power was Treason at the Common Law.

2. Of these Treasons, some are Treasons against the Realm; and Treason may be as well committed against the Realm as against the King.

"1 E. III. Cap. 1st, the Spencers were Traitors against the King and His Realm.

"1 Mar. Cap. 6. Treason against the Realm.

"28 H. 8.Cap. 17. An Act to make them Traitors against the Realm, that should claim the Crown in any other Way than is there prescribed.

"3. These Common Law Treasons, and all Treasons that are against the Realm, which are not mentioned in the Statute of 25 E. III. belong to the Parliament, and to them only, to Judge, Declare, or by Bill to Enact. There is Lex Parliamenti; and the Parliament (as Coke, Jurisdictions of Courts, 15, saith) is not, in Proceedings upon Treasons, bound to the Proceedings of inferior Courts.

"21 R. II. Therning, Chief Justice, being demanded by the Lords a Question concerning Treason, said, "I cannot judge it Treason, because I am bound up by 25 E. III. But, if I was a Peer of the Realm, I would adjudge it Treason."

"4. That, in all Times since 25 E. III. the Parliaments have both Adjudged, Declared, and Enacted, Things to be Treason, that are not Treasons within the Statute of 25 E. III.

"1. They have adjudged Treasons that are not within the Statute of 25 E. III.

"1 R. II. N° 38, 39, Parliament Rolls. Gomines and Weston were adjudged Traitors in Parliament, for surrendering Two Castles in France out of Fear, but without any Compliance with the Enemy. This had no Colour of being within the Statute of 25 E. III.

"II R. II. Judgement was given in Parliament against divers Persons for Treasons; but not One of them within the Statute of 25 E. III. The Case then was, There was a Commission, 10 R. II. that was granted by Parliament, to divers great Men, for the Well-government of the Kingdom; this was to last a Year: Those that gave their Opinions, and endeavoured to overthrow this Commission, and the Commissioners that were appointed by Parliament, were adjudged Traitors to the Realm as well as to the King; and there it was said, "That, in Cases of Treason which concern the King and Kingdom, they are not to proceed according to the Rule of the Common Law and inferior Courts; but according to the Course of Parliament, so as may be for the common Good."

"II R. II. Cap. 1, 2, 3, mentions the Judgements.

"1 H. IV. N° 48, those Judgements confirmed by Parliament. The same is in the printed Statutes.

"The Main of that Treason was, the Overthrow of One Statute, which was to last but a Year. But this Archbishop endeavoured to overthrow both the Common Law, the Statute Laws, and the Parliaments, all at once.

2. The Parliament hath, since the Statute of 25 E. III. declared divers Things to be Treason, which are not Treasons within that Statute.

"3 R. II. Rot. Parl. N° 18, John Kirby and Algore, that slew John Imperiall, an Ambassador from Genoa, was indicted for Treason; the Indictment found, the Judges before whom it was found advised with the Parliament, who declared it Treason; and thereupon Judgement was given. This is no Treason within 25 E. III. Parliament Roll, N° 10. In Parliament, they declared the Judgement against Thorpe, of Treason for Bribery, to be lawful, and agreeable to Treason.

"3. As the Parliament is the Supreme Court of the Kingdom, it may inflict Punishment of Treason on Capital Offenders by their Legislative Power: This they have done, this they may do, although the Offence was not Treason when it was committed.

"15 H. VI. N° 15. Wm. Pull did ravish the Widow of John Boteler: She complains in Parliament. They Enact, That if Pull yield not himself before such a Day, he shall for that Fact be a Traitor attainted: Yet, before he committed this Offence, there was no such Law.

"25 H. VIII. Cap. 12. Eliz. Burton attainted of Treason, for her fantastical Prophesies; none of them within the Statute of 25 E. III.

"3 E. VI. Cap. 18. The Lord Seymour the Admiral was attainted, for procuring Letters from the King of ill Consequence; for saying, "He would make that Parliament the blackest Parliament that ever was in the Kingdom;" and for taking Bribes. These not within 25 E. III.

"To apply all this to the Case in Question:

"This Archbishop hath endeavoured to overthrow the Laws, and, instead of them, to bring in arbitrary and tyrannical Government; to overthrow Religion, and bring in Popery and Superstition; and to incense the King against Parliaments, and to overthrow Parliamentary Proceedings.

"All these have (fn. 3) been voted by your Lordships.

"If this be not Treason against the Realm, nothing can be Treason.

"The King enjoys His Crown, your Lordships your Honour and Possessions, the Subjects their Liberties, Proprieties, all by the Law; and this he would overthrow. He sticks not at it, to acroach or usurp upon Royal Power, by taking to himself Power to punish and pardon all Offences in the High Commission Court; that is to say, to moderate Fines and Forfeitures there at his Pleasure, and to exclude the King for intermeddling with them.

"This One Offence, some Ages would have made Treason without Scruple.

"Compare these Treasons with all former Treasons, and they are beyond all the former.

"My Lord of Strafford's, it was Resolved, by all the Judges, That, for the Offences voted by the Lords, he deserved to undergo the Pains of Treason, and the Forfeitures of Treason; his overthrowing the fundamental Laws was One, and as great a One as any. This Archbishop did not endeavour only, but shewed his Endeavour by Actions and Counsels.

"We all agree in the Fact and Offence; we desire your Lordships, we may agree in the Punishment; and that your Lordships would pass the Ordinance."

Ordinance for the Attainder of the Archbishop of Cant.

"Whereas the Knights, Citizens, and Burgesses of the House of Commons, in this present Parliament assembled, have, in the Name of themselves and of all the Commons of England, impeached William Laud Archbishop of Canterbury, for endeavouring to subvert the fundamental Laws and Government of the Kingdom of England, and, instead thereof, to introduce an arbitrary and tyrannical Government, against Law; and to alter and subvert God's true Religion by Law established in this Realm, and instead thereof to set up Popish Superstition and Idolatry; and to subvert the Rights of Parliaments, and the ancient Course of Parliamentary Proceedings; and, by false and malicious Slanders, to incense His Majesty against Parliaments; for which the Archbishop deserves to undergo the Pains and Forfeitures of High Treason; which said Offences have been sufficiently proved against the said Archbishop upon his Impeachment: Be it therefore Ordered and Ordained, by the Lords and Commons in this present Parliament assembled, and by Authority of the same, That the said Archbishop, for the Offences aforesaid, stand and be adjudged attainted of High Treason, and shall suffer the Pains of Death, and shall incur all Forfeitures both of Lands and Goods, as a Person attainted of High Treason should or ought to do: Provided, That no Judge or Judges, Justice or Justices whatsoever, shall judge or interpret any Act or Thing to be Treason, or hear or determine any Treason, nor in any other Manner, than he or they should or ought to have done before the making of this Ordinance, and as if this Ordinance had never been had nor made: Saving always unto all and singular Persons, and Bodies Politic and Corporate, their Heirs and Successors (others than the said Archbishop and his Heirs, and such as claim by, from, or under him), all such Right, Title, and Interest, of, in, and to, all and singular such of the Lands, Tenements, and Hereditaments, as he or any of them had before the First Day of this present Parliament, any Thing herein contained to the contrary notwithstanding."

Adjourn.

House adjourned till 9^a, Monday next.