crime; the nature and deformity of which is set forth in the Impeachment, which he desired might be read. Then he observed, That his Charge was of 3 parts: 1. The advising and contriving of these foul Articles. 2. The publishing and exhibiting of them in this house. 3. The falsehood, scandal, malice, and other in their evil designs and intentions towards us. 5. That it causeth a great interruption in the proceedings of parliament.-These considerations threaten so great danger to your majesty's person, and to all your dominions, that, as your majesty's great council, they hold it necessary to represent to you this their faithful advice, that so, whatsoever followeth, they may be ex-gredients, mixed and incorporated so together, cused before God and man." These Reasons were also voted by the lords to be presented at the same time with the Declaration. Proceedings in the Trial of the Attorney General.] March 8. This day a Letter from the King, directed to the lord keeper was read, viz. "C. R. Right trusty and well-beloved counsellor, we greet you well; We have thought good hereby to certify, that we did, on the 3rd of Jan. last, deliver unto our Attorney General certain Articles of Accusation, ingrossed in a Paper, (a copy whereof we have sent here inclosed) and did then command him, in our name, to acquaint our house of peers, that divers great and treasonable designs and practices against us and the state, had come to our knowledge; for which we did command hin, in our name, to accuse the six persons, in the sad paper mentioned, of high treason, and other high misdemeanors, by delivering the paper to the said house, &c. [as before recited.] We further declare, That our said Attorney did not advise or contrive the said Articles, nor had any thing to do with, or in, advising any Breach of Privilege that followed after; and for what he did, in obedience to our commands, we conceive he was bound by his oath and the duty of his place, and by the trust by us reposed in him, so to do; and had he refused to have obeyed us therein, we would have questioned him for the breach of his oath, duty, and trust: but now having declared, That we find cause wholly to desist from proceeding against the persons accused, we have commanded our Attorney to proceed no farther therein, nor to produce or discover any proofs concerning the same. Given at our Court at Royston, the 4th day of March, 1641." The lords conceiving this letter to be a prelimiting the judgment of their house, ordered to proceed in the business against the Attorney General, now; and this Letter to be taken into consideration afterwards, as a matter of great consequence. A message was also sent to the commons, to inform them of the Letter, and that their lordships were ready to proceed against the Attorney General, if they would send a committee of their house to manage the evidence. Accordingly, the committee being come, the lord keeper told them they might be gin their evidence; whereupon Mr. Serjeant Wylde, one of them, said, "That they were appointed by the house of commons, to make good their Charge against sir Edw. Herbert, his majesty's Attorney Ge neral; a person of eminency in the common law, both eminent in place, and eminent in VOL. II. that they could no be more separated than blackness from the Ethiopian; or, if they could be separated, yet each of them was sufficient to call for judgment against Mr. Attorney.-He then mentioned the exhibiting of these Articles, Jan. 3, 1641. and they were read out of the Journal Book of that day. Also the king's Proclamation, reciting, That his Attorney General, by his majesty's command, had accused the 6 members of high treason in the house of lords. Likewise his majesty's Letters to Dover, and other ports, for the apprehending of them, reciting that they were accused by the Attorney General. Next he desired that Mr. Attorney's Answer might be read; wherein, he said, there was matter enough to condemn him: In which he confessed the exhibiting the paper of Articles, as a Message from his majesty, and by his command; on which it was recorded in the clerk's book; put into a course of proceeding; a committee appointed for examination of witnesses, under a command of secrecy; and a desire to the lords that their persons might be secured. These were the steps and degrees of his proceedings; but, in his Answer, he denies the advising and contriving of these Articles; and saith, That he was so far from that, that he knew nothing at all of them, till he received this command from his maj. for the exhibiting of them; being sent for, immediately before, by his maj. for that purpose. But this, he said, was so far from satisfaction to the commons, or qualification of the offence, that it aggravated and augmented it.-For the exhibiting and promoting of those Articles, is, in judgment of law, an evident demonstration of his contrivance of them: As, in the case of stolen Goods, the receipt and possession of them, is an evidence, to a jury of life and death, of the stealing of them, unless the party can shew how he came by them. In case of Trover and conversion of goods, though the denial of them, upon demand, be no conversion, in law, whereon to ground an action, upon Not guilty pleaded; it is a good evidence to a jury to find him guilty of the conversion. In case of a Libel, the finder and publisher shall be adjudged the author and contriver of it, unless he can produce some other author. So, in this case, the publishing and exhibiting of these Articles, by the attorney general, is a clear evidence that he contrived them; the one doth necessarily imply the other. The contriving, without the publishing, is but an inception of an offence; the publishing is the consummation of it, and therefore the more heinous. The publisher is the grand offender; he blows the coals and the trumpet. If it 4C Mr. Seijcant Wylde having made an end of this Charge, desired, That if Mr. Attorney would make any Answer to it, he might speak himself; but the attorney desired that is counsel might be heard for him: To this the Serjeant objected, and said, That they were a committee representing the house of commons, and it did not stand with the dignity of that house to have counsel come to confront them. He further alledged. That this offence of Mr. could be imagined that there was another confounded. As these are beyond expression, author, or contriver of these, than Mr. Attor- so the consequences that might have happened ney, as he would pretend, yet the exhibiting are beyond imagination; bloodshed, horror, and promoting of them is an offence so heavy, devastation, and confusion; all the evils, danas needs no other additional weight to press gers, troubles, and distractions which have him down to the ground; who, by such an act happened since, and what now the houses lie of injustice and false accusation, would so under, may be imputed to this act of Mr. Atgrievously have oppressed them. Mischiefs, torney. Had he stood in the gap, and humbly hatched in the brain, are only mischievous to besought or advised the torbearance of this, or the inventor; but the vegetation and life is declined the doing of it, as in all equity he from the publisher; he gives motion and agi- ought to have done, all these miseries had tation to it, which, otherwise, would be but an been prevented; and a happy reconciliation, abortive and inanimate creature.-But for the in all likelihood, settled between his majer Excuse, under which he seeks to shelter hin- and his people before this time. It remains, self, that is, the king's command, this adds therefore, that he who, willingly, judicially, more to his offence; a foul aspersion on his and upon record, hath contracted to humed majesty, and wrong to his gracious master; for the guilt of all these evils and calamities, he could not but know that the king's com- should receive, from their lordships, such a mand, in things illegal, is utterly frustrate, and measure of punishment as may make the fact of no effect: his patents and grants, if against more odious, and himself the mark of the the crown, in matter of interest, are merely exemplary justice to this and after ages." void, quia in deceptione regis; if against the weal-public, they are, ipso jure, vacua; much more his command, in matters criminal, because : o action les against him.The Serjeant, next, proceeded to cite several cases, from the Statute Books, &c. to prove that the Attorney General had broken all those laws, and infringed all those liberties; even the rights of paruament, by which no member of either house ought to be impeached, either for felony, treason, or other offences, without represent-Attorney's had been voted, by both houses of ing the cause first to that house whereof he is a member, and their consent and direction therein desired: for, otherwise, all members of each house may be pulled out, one after another, upon a pretence of treason; which, perhaps, he said, was now Mr. Attorney's de-lordships, he desired that Mr. Attorney might sign. Besides, he said, that the Attorney had done contrary to his oath, in this business; for he is sworn to the king, duly and truly to issue out the king's writs, and give the king true advice according to the law; which, in this action, he hath not done, contrary to his oath, --The Serjeant then said, That many aggravating circumstances might be added; as, the Attorney's profession and knowledge in the law; his long experience in the course and privileges of parliament, having been so often, and of late, a member of the house of commons, and obliged to them by many favours; and now an assistant or attendant in the house of lords: Then considering the qualities of the persons accused; their singular parts, integrity, and merit; their indefatigable labours and travail for the public good, which could not expect such a reward as this, the odious name of traitors: the woful and dangerous consequences that have, de facto, ensued upon this; for, by colour of these Articles, they were proclaimed, posted, sold up and down, for traitors; they were hunted and sought for by officers, demanded even from the horns of the altar; their studies, chambers, and trunks scaled up; the house of commons strongly beeged; their privileges strangely invaded; eir last and uttermost hopes ready to be parliament, an high Breach of the Privileges of Parliament, which no counsel can, neither ought they to judge of. And because it concerned the house of commons, in an high de gree, in their privileges, as well as it did the not be allowed counsel, but that he migh speak for himself. The Attorney replied, That their lordships had been pleased, up his humble Petition, to assign him counsel this cause; that his Answer is put in by ther advice, and they are ready to maintain it which if their lordships should not allow of he was not provided to make a defence to li charge; therefore desired their lordships hear him by his counsel, and the committed to take the judgment of the house upon itHereupon both sides being commanded t withdraw, the lords put themselves into a con mittee, for the more free debate in this matter; it being a mixed case, consisting of breach of privilege of parliament, matter of fact, and matter of law. The house being resumed, the question was put, Whether Mr. Attorney should have counsel, in matter of privilege, in this case? and it was resolved in the affirma tive. The committee of the commons, the Attorney and his counsel, being called in again, were told of this Resolution; and that their lordships had appointed to proceed farther in this cause the next day. March 9. The lords proceeded in the Attor ney General's cause, and his counsel were told, that they were to begin with assisting him in his defence, upon their perils. The counse The rest craved their lordships pardon therein, for they cune not now provided for his defence; because the business concerned the privilege of parliament, as was alledged yesterday. The Trds not being satisfied with this Auswer, directed the Attonley and his counsel to withdraw; and, upon consideration of it, it was o.dered, That they should be commanded to give a direct Answer, severally, whether they would plead or not; and if they would not it should be taken as a denial.'-Being called in again, the lord keeper commanded them to proceed; when sir Thos. Beddingfield, one of the counsel, answered, He desired some time to prepare for it, not being now provided. Sir Thos. Gardiner, recorder of London, another counsel, answered in like manner. of them said, That they were willing plead now, at their lordships command, and thought it was their duty so to do; but the chief part of Mr. Attorney's Detence being committed to he aforesaid gentlemen, by that means they we not provided now, but desired some furher time, as their lordships should please to ppoint. On this, all being commanded to withdraw again, the lords considering the refual of sir Thos. Beddingfield and sir Thos. Jardiner, to plead, as a contempt of that ouse, ordered them both to be committed to he Tower, there to remain during the pleasure of the house and further ordered, That if dr. Attorney desire other counsel, in the room f the former, that he bring in the names of uch as he desires, the next morning, for the etter expediting of this cause." March 10. The Attorney made his humble etition to the lords, That they would assign a Mr. Serj. Green, and Mr. Serj. Pheasant, s counsel in the room of the former two coinitted; which was granted, and the 12th intant was peremptorily appointed to proceed in hat busines. The King's Speech to the Committee, on their resenting the lust Declaration to him, at Newrket.] March 12. The lords appointed to resent the parliament's Declaration to the ug, reported, That they had done so at Newparket, and that the next day they had reeived the following Answer: ive y "I am confident that you expect not I should e you a speedy Answer to this strange and nexpected Declaration; and I am sorry, in he distraction of this kingdom, you should hink this way of address to be more convenient han that proposed by my Message, of the 20th f January last, to both houses. As concerning he Grounds of your Fears and Jealousies, I will take time to answer particularly, and doubt not but I shall do it to the satisfaction of all the world. God, in his good time, will, I hope, discover the secrets and bottoms of all plots and treasons, and then I shall stand right the eyes of all my people. In the mean me, I must tell you, that I rather expected vindication for the imputation laid on me in Mr. Pym's Speech, than that any more general rumours and discourses should get credit with you. For my Fears and Doubts I did not think they should have been thought so groundless or trivial, while so many seditious pamphlets and sermons are looked upon, and so great tumults are remembered, unpunished uninquired in o: I still confess my fears, and call God to witness, that they are greater for the true Protestant profession, my people, and laws, than for my own rights or safety; though I must tell you, I conceive that none of these are free from danger. What would you have? Have I violated your laws? Have I denied to pass any one bill for the ease and security of ny subjects? I do not ask you what you have done for me. Have any of my people been transported with fears and apprehensions? I have offered as free and general a pardon, as yourselves can devise. All this considered, there is a judgment from Heaven upon this nation, if these distractions continue. God so deal with me and mine, as all my thoughts and intentious are upright, for the maintenance of the true Protestant profession, and for the observation and preservation of the laws of this land; and, I hope, God will bless and assist those laws for my preservation. As for the Additional Declaration, you are to expect an Answer to it, when you shall receive the An swer to the Declaration itself." Remarkable Passages on that Occasion.] A Narrative of some remarkable Passages that happened between the king and the committee of both houses, upon delivering the foregoing Declaration to his majesty, was published at this time as follows: When his majesty heard that part of the Declaration which mentioned Mr. Jermin's transportation, his majesty interrupted the earl of Holland in reading, and said, 'That's false.' Which being afterwards touched upon again, his majesty then said, "Tis a lie.' And when he was informed, "It related not to the date, but the execution of the warrant:' his majesty said, It might have been better expressed then, and that it was a high thing to tax a king with breach of promise.' As for this Declaration, his majesty said, I could not have believed the parliament would have sent me such a one, if I had not seen it brought by such persons of honour. I am sorry for the parliament, but glad I have it; for, by that, I doubt not to satisfy my people, though I am confident, the greater part is so already. Ye speak of ill counsels; but I am confident the parliament hath had worse informations than I have had counsels.' His majesty asking What he had denied the parliament? The earl of Holland instanced that of the Militia: His majesty replied,That was no Bill:' The earl of Holland then said, 'It was a necessary request at this time: And his majesty also then said, 'He had not denied it,' The next London, printed for W. Gaye, 1642. The printer of this Narrative was questioned for it afterwards in the house of lords; but upon his saying, that he had the copy from the lord keeper's clerk, he was dismissed, day, when his majesty delivered his Answer, which was read by the earl of Holland to the rest of the committee; and that being done, his lordship endeavoured to persuade his maj. to come near the parliament: his maj. answered, I would you had given me cause, but I am sure this Declaration is not the way to it; and in all Aristotle's Rhetoricks there is no such argument of persuasion.' The earl of Pembroke thereupon telling him. That the parliament had humbly besought his maj. to come near them as aforesaid: His majesty replied, 'He had learned by our Declaration, that words were not sufficient.' His majesty, being again moved by the earl of Pembroke, to express what he would have, said, He would whip a boy in Westminster school that could not tell that by his Answer.' And further said They were much mistaken, if they thought his Answer to that a denial,' ́And being asked by the said earl of Pembroke, 'Whether the Militia night not be granted, as was desired by the parliament, for a time.' His majesty swore, By God, not for an hour; you have asked that of me in this, which was never asked of a king, and with which I will not trust my wife and children.' His majesty added, The business of Ireland will never be done in the way you are in, 400 will never do that work; it must be put into the hands of one. If I were trusted with it, I would pawn my head to end that work,; and though I am a beggar myself, yet,' speaking with a strong asseveration, I can find money for that." ་ counsel, argued, "That it was the duty of the Attorney to prosecute the king's causes in all courts of record, when he shall be called, and be assistant in all these matters; to this pur pose he read the Attorney's oath. Further be alledged, That the king's Datum est nobis intelligi, is warrant enough to the Attorney to proceed against any person, as in the record of Edw. 3. Rot. 38. where Wm. abp. of York, upon Datum est nobis intelligi, was brought be fore the king and his counsel, and prosecuted by the attorney general. He also urged the Re ports of the Judges in the earl of Arundel's case, April 1626." He said, "That the Attorney General is bound, by his oath, to proceed in all courts of record, though the king gave him no command; and that in parliament he hath prose ted a Commoner at large, as 31 of Edw. I. Rot. 22. where Nicholas de Segrave was summoned, by the sheriff of Northampton, to appear Coram Domino rege in provin parliamento suo, apud Westmonasterium pr mo adventu Domini regis, ibidem ad audien dam voluntatem Domini regis, super hüis que tunc ibidem proponere intenderet versus eur; et ad faciendum et recipiendum ulteri quod Curia Domini Regis consideraret is premissis.' The said Segrave appearing parliament, he was prosecuted for the king and accused by Nic. de Warwick, That h maliciously stirred up discord and contention against John de Crumbwell, who was emples ed by the king in the war against the Scots A day being given to make answer, Segrave sab Farther Proceedings in the Trial of the At-mitted and acknowledged his offence: upa torney General.] The foregoing Answer being read, the lords ordered the Attorney General and his counsel to be called in, and proceed in his defence. Serjeant Pheasant desired to be excused from pleading in a business which required so much pains to attend, by reason of his bodily infirmites; and the other, serjeant Green, saying, That being assigned so lately to this business, he found it so intricate to be put in a method, and the records to be perused so many, that he could not, upon so short warning, undertake to make this defence; he therefore humbly craved their lordships to excuse him then, and allow him some further time to prepare himself for this purpose. But, upon consideration of this, the lords resolved to allow no longer time; on which Mr. Hearne, another of the Attorney's counsel, desired that the Impeachment might be read; which being done, he said. "That for the matter of fact, nothing appears by way of charge, but the exhibiting of the Articles; and that no witness was produced, in all the cause, to prove any crime; that there was but an Impeachment and a denial; and no act proved but what was confessed, which is the exhibiting the Articles. He further alledged, That whereas the Attorney was charged to do the fact maliciously, he did nothing but by the command of the king, and knew not of the Articles until they were delivered to him by his majesty." Next Mr. Chute, another of Mr. Attorney's this the king desired the advice of the lords, what punishment should be inflicted upon grave for such a fact, so fully and expressty confessed; the lords gave this Judgment, That for his fault, he deserved to lose his life; yt the king, out of his special grace and piety, mitted the judgment of life and members; and ordered the said Segrave to find seven g and sufficient men to be bail for him, body body. Also 4 Edw. III. Sir Tho. Berkeley and John Maltravers were prosecuted in liament, for the murder of Edw. II. and wet tried and acquitted by a jury. And 4. Rot? No. 17. Rauf de Ferrers was prosecuted a parliament, upon suspicion of treason: So the parliament 17 Rd. 2. No. 20. Tho. Talbot chevalier, was accused in parliament, fr conspiring the death of two of the king's un cles." The counsel having spoken concerning the matter of fact, Mr. Attorney made his own de fence to that which concerned the matter privilege of parliament; and cited the case Philip Courtney, 16 Rd. 2. No. 16. and the case of the earl of Arundel, and his remonstra tion made therein, April 19, 2. Caroli. also insisted, lastly, on the case of the earl « Bristol, the same year. And concluded w observing, That he did not conceive any thugi urged against him could make up the cre that he is charged with, but only the vot passed by both houses, touching the breach e the privileges of parliament; and so submitted imself to the justice of that house. Nothing more was done in this cause at this time. Sir 1. Beddingfield and sir T. Gardiner, on their humble petition to the lords, were released from the Tower. March 15. The lords again took the cause of Mr. Attorney into consideration, What Judgment was to be given on the Impeach nent of the commons against him? After a ong debate, it was put to the question, 1. Whether, upon the whole matter, Mr. Attorey had committed a crime for which he ought o be sentenced by that house? Resolved in he affirmative. 2. Whether for his offence, he ball lose his place? Resolved negatively. To his last vote the following lords dissented: arls of Northumberland, Essex, Leicester, Varwick, Holland, Bolingbroke, Stamford; ards, Hastings, Willoughby de Parham, St. ohn, Spencer, Paget, Grey de Werk, Roberts. . Whether the Attorney shall pay a fine to e king for his offence? Resolved negatively; e same lords, as above, dissenting. 4. Wheer Mr. Attorney shall pay damages for this fence to the parties that were accused? 5. Whether the Attorney shall be committed to e Tower for this offence? Both these were, iso, resolved in the negative; the same lords ill dissenting. in point of law, as to this vote? It passed in the negative; and, upon another question, the said vote was also agreed to. A Protest was entered, in form, against the third vote, and against the Resolution for not consulting the judges; but as it does no more than repeat the two questions, and their dissent from them, we pass it over. The lord Lovelace is the only additional name to those last mentioned. 4. "Resolved, upon the question, That these shall be the Heads of a Declaration." Agreed to. 5. "Resolved, That such persons as shall be nominated deputy lieutenants, and approv ed of by both houses, shall receive the commands of both houses, and execute their offices." Agreed to; the lords Southampton and Dunsmore only dissenting.-Ordered, That these Votes of both houses should be printed, and a committee next day to meet, and draw up a Declaration upon them." The Commons Answer to the King's Reply about Mr. Pym's Speech.] This day sir Wm. Lewis reported the Cominous Answer to the King's Reply, concerning Mr. Pym's Speech relating to persons passed into Ireland; which was agreed to, and ordered to be sent to his majesty, by lord Compton and Mr. Baynton ; as follows: "May it please your majesty; Your majesty's most humble and faithful subjects, the knights, Votes of the Commons, for putting the King-citizens and burgesses of the commons house om into a State of Defence, &c.] March 15. .m. A message was brought up from the comons, to acquaint the lords with some Votes, at had passed their house; to which they dered their lordships concurrence, as those otes were to be the Heads for Declaration be drawn up by a committee: They were bese: of parliament, having considered your majesty's Reply to their Answer, touching such persons as have been licenced by your maj, to pass into Ireland; do most humbly beseech your maj. to believe, that they shall always, with thankfulness and joy, receive from your maj. any satisfactory Answer to their just requests: and, as they hope they shall find in your maj. a rea1. "That the Kingdom hath been of late, and diness to rectify those things, which have been till is, in so evident and imminent danger, from done to their prejudice; so will they be careful nemies abroad, and from a Popish and dis- to remove all apprehensions of their actions or ontented party at home; that there in an speeches, which may seem to cast any dishonour rgent and inevitable necessity of putting his upon your majesty. For your majesty's better najesty's Subjects into a posture of Defence for satisfaction concerning the positive affirmation, he safeguard both of his majesty and his peo-That many of the chief commanders, now in le." The lords agreed with the commons inthis the head of the rebels, (after the ports were Vote, the following lords dissenting: earls of stopped by order of both houses) have been Bath, Southampton, Cleveland, Newport; lords suffered to pass by your majesty's immediate Dunsemore, and Capell. 2. "That the lords warrant:' May it please your maj. to consider, and commons, fully apprehending this danger, That, herein, they have affirmed nothing but and being sensible of their own duty to provide what they had cause to believe was true; the a suitable prevention, have, in several petitions, Grounds whereof they humbly present to your addressed themselves to his majesty, for the majesty. The first Ground is this, That both ordering and disposing of the Militia of this houses of parliament, (having, upon your makingdom, in such a way as was agreed upon byjesty's recoinmendation, taken into their care the wisdom of both houses to be the most effectual and proper for the present exigence of the kingdom; yet could not obtain it, but his majesty did several times refuse his royal assent thereto." Agreed to by the lords. 3. "That in case of extreme-danger, and of his majesty's refusal, the Ordinance agreed on by both houses, for the Militia, doth oblige the people, and ought to be obeyed by the fundamental laws of this kingdom." The question was put, Whether the Judges should be heard, the suppression of the rebellion in Ireland) had reason to be especially watchful over the forts; hecause the rebels, abounding in numbers of men for the most part ignorant of the use of arms, could by no means become dangerous or formidable to this kingdom, but by the access of soldiers and commanders; wherewith they were like to be furnished either out of France or Flanders; from both which places the passage into Ireland is speedy and easy through this kingdom; and therefore they could not |