ANCEUj> 
 
 N x1& 
 
 ^^^ ^ 
 U CT
 
 A N 
 
 EXAMINATION 
 
 O F 
 
 . PRE CE D E N TS 
 
 AND 
 
 PRINCIPLES; 
 
 FROM WHICH IT APPEARS 
 
 That an IMPEACHMENT is determined 
 
 by a DISSOLUT/ON of PARLIAMENT; 
 / 
 
 / -": 
 '.' "\r -/ v ' T ri A N 
 
 v A P/P E N D I X, 
 
 In wliiclj''^!! the PRECEDENTS are collected* 
 
 The SECOND EDITION, much enlarged. 
 
 By EDWARD CHRISTIAN, E% 
 
 BARRISTER> 
 
 And PROFESSOR of the LAWS of England, in the Univerfity 
 of CAMBRIDGE. 
 
 L ON D ON: 
 
 PRINTED FOR J. STOCKDALE, PICCADILLY, AN9 
 J. DEIGHTON, N 274, HIGH-HOLBORNr- ; 
 M.DCC.XCI*
 
 :. J N' 
 
 T** " ''^ &*, * 
 
 INTRODUCTION. 
 
 \"\ c \\ 
 
 r ROM my fituation in the Univerfity 
 of Cambridge, I think it my duty not to 
 be uninformed upon any queflion which 
 concerns the Constitution of this country. 
 That consideration alone impelled me to 
 inftitute the prefent Examination. Many 
 gentlemen of late have deprecated the dif- 
 cuflion of abftracT: queftions, and have de- 
 clared that fuch fpeculations are mifchie- 
 vous and dangerous ; but I have never heard 
 any reafon affigned for their alarms. It 
 certainly would be inconfiftent with their 
 dignity, and a wafte of that time which 
 might be more profitably employed, if the 
 two Houfes of Parliament or Courts of 
 JuStice Should be occupied in the folution 
 of problems and fubtleties which were not 
 necefTary for the dccifion of any particular 
 cafe. 
 
 A But
 
 But all fcience confifts of abflradl quef- 
 tions. There are many who are perfe&ly 
 acquninted with aftronomy, who never made 
 an obfervation with a quadrant or a telefcope: 
 , and there are many who have a profound 
 knowledge of the Conftitution and the Laws 
 of EhgUiid, who never had the honour of a 
 feat in the Senate, or the misfortune to 
 be engaged in a law-fuit. It happens to 
 be peculiarly my occupation to inveftigate 
 abflra<5l queltions ; and it certainly ought 
 to be confidered immaterial to the extension 
 of fcience, whether a queftion is propofed 
 with the name of Warren Haftings, or 
 with that of Titius or Sempronius. Thofe 
 who have moft examined the Englifh 
 government, 'will be the moft convinced, 
 allowing for a few defects incident to every 
 human institution, that it preferves invio- 
 late alhthe RIGHTS OF MEN, which men 
 in fociety ought 'to enjoy, or, if they are 
 wife, would cefire 'to enjoy; that it is 
 fach a fyllem of liberty and juftice, that 
 the communication of its principles muit 
 jieceflarily give (lability to its exigence. 
 
 It
 
 ( iu ) 
 
 *t is a common pbfervation, that the pre- 
 fent important queftipn depends upon the 
 principles of the Conftitution, and not upon 
 the principles of law j and that we lawyers 
 have narrow and contracted habits of rea- 
 foning^ which difqualify us from forming 
 a corredh.; judgment upon fubjects of fuch 
 magnitud^, and we find, that when a pre- 
 cedent, or;i|,rule of law, is fuggefied by a 
 profeilional^gentleman, as an impediment 
 to the protection of certain favourite mea- 
 flires, the impatience which is felt from 
 the reftraint, is dignified with the name .of 
 a liberal way of thinking. But perhaps the 
 country owes much to this ilhberaiity of the 
 lawyers, as it prevents, in no inconfiderable 
 degree, both "Reafons of State, arid the Quid 
 placuit of politicians, from introducing a 
 chaos into our government. From our 
 employment,, unaccuftomed to yield our 
 affent without examination, we are not 
 eafily fcduced by eloquence, nor frightened 
 by the anathemas of combined power, into 
 acquiefcence, where no arguments have 
 been brought to convince. It is rather 
 A 2 remarkable,
 
 remarkable, that though the conjlitution is 
 the moft favourite term in the Englim lan- 
 guage, yet no word has been lefs honoured 
 by explanation. I have never feen, in any 
 book of fcience, either ancient or modern, 
 any attempt to give a definition of it, ex- 
 cept in Mr. Paley's Principles of Moral and 
 Political Philofophy. Nothing that flews 
 from his pen can be undeferving of attention 
 and refpecl. "By the constitution of acoun- 
 try is meant, fays he, fo much of its law as 
 " relates to the defignation and form of the 
 ' legiflature; the rights and funclionsofthe 
 " feveral parts of the legiflative body; the 
 " conftruclion, office, and jurifdiction of 
 *' courts of juftice. The conftitution is 
 " one principal divifion, fection, or title of 
 " the code of public laws ; diftinguimed 
 * f from the reft only by the fuperior im- 
 ** portance of the fubject of which it 
 " treats. Therefore the terms conjlitu- 
 f< tional2&& unconjlitutiGnal, mean /<?#/ and 
 " illegal. The diftindtion and the ideas, 
 " which thefe terms denote, are founded 
 f< ip the fame authority with the law of 
 
 " thi
 
 *' the land upon any other fubjeft, and 
 " to be afcertained by the fame inquiries. 
 " In England the fyflem of public jurif- 
 " prudence is made up of acts of parlia- 
 " ment, of decilions of courts of law, 
 (t and of immemorial ufages : confe- 
 " quently thefe are the principles of 
 * which the Englim Conftitution itfelf 
 " coniifts ; the fources from which all our 
 " knowledge of its nature and limitations 
 " is to be deduced, and the authorities 
 " to which all appeal ought to be made, 
 " and by which every conftitutional doubt 
 " and queftion can alone be decided. This 
 <c plain and intelligible definition is the 
 " more neceffary to be preferved in our 
 " thoughts, as fome writers upon the fub- 
 *' je(ft abfurdly confound what is conJHtutio- 
 " nal with what is expedient-^ pronouncing 
 '* forthwith a meafure to be unconftitu- 
 " tional, which they adjudge in any 
 ff refpecl: to be detrimental or dangerous ; 
 " whilft others again afcribe a kind of a 
 " tranfcendent authority, or myfterious 
 " fandtity, to the conftitution, as if it 
 
 " were
 
 " were founded in fome higher original 
 
 " than that which gives force and obli- 
 
 " gation to the ordinary laws and (tatutes 
 
 " of the realm, or were inviolable 90 any 
 
 " other account than its intrinfic uti- 
 
 " lity."* 
 
 In proof of this excellent definition, we 
 'ufe the word Conftitution, when we fpeak 
 of the King, Parliament, Courts of Juftice, 
 Juries, and the Magiftracy of the Coun- 
 try ; but the rules relative to private or 
 inferior fubjcct?, as wills, prom iflbry notes, 
 and bills of exchange, are included under 
 the more general denomination of Law : 
 but we may always fubfiitute law for the 
 conflitution, being only a more cornpre- 
 henfive term j for the ia\y. controls every 
 member of the government : even the King 
 himfelf is a fuhjeft to the Law Rexeftjub 
 
 
 
 kge, quia lex 'juc'it Regem, is one of cur 
 facred maxims. Every constitutional quef- 
 tion is neceiTarily a legal que.flion : who, 
 then, are the bell qualified to afford infor- 
 mation 
 * Vol. il. n. 190.
 
 ( vii ) 
 
 mation upon conftitutional fubjeftsj ihofe 
 who have traced the Nile to its fource, and 
 who have fpent years in travelling along 
 its ftream, or thofe who in general have 
 only flammed acrofs its furface, and have 
 contented themfelves with a tranfient admi- 
 ration of its beauties ? 
 
 We have lately, from, a general concur- 
 rence in opinion, been charged with a com- 
 bination, and an efprit de Corps, What- 
 ever may be the truth of our principles, 
 the coincidence of our conclufions proves 
 the confiftency of our reafoning. With re- 
 gard to myfelf, lean declare that I fent the 
 firft edition of this pamphlet to the prefs 
 without any communication or confultation 
 with any peribn whatever but my book- 
 feller, and without knowing the opinion of 
 any individual from the hieheft to the low- 
 
 J O 
 
 eft of the profeffion. But I now think it 
 no mean honour to ha"' volun- 
 
 teer, and to have lent my feeble aid to that 
 independent phalanx of veterans in the pro- 
 
 fefficn,
 
 ( viii ) 
 
 fcflion, who, upon this occafion, have flood 
 firm in the defence of what they are con- 
 vinced is the Conftitution and the Law 
 of England. 
 
 AN
 
 A N 
 
 EX A MI NAT I ON 
 
 o P 
 
 PRECEDENTS, &c. 
 
 important Constitutional Queftion 
 at prefent engages the attention and ex- 
 pedtation of the Public, in which the 
 interefts of an Individual, and the privi- 
 leges of both Houfes of Parliament, are 
 materially concerned 3 viz. Whether an. 
 Impeachment abates, and is determined, 
 by a diilblution of the Parliament in 
 which it was commenced ; or, whether 
 the proceedings in the Houfc of Lords 
 remain fo unaltered and undifturbed, that 
 the Trial can be continued after the dif- 
 folution, juft as it could have been after 
 an adjournment or prorogation in the laft 
 Parliament. This is a point which, folely 
 B for
 
 for his own information, and the gratifica- 
 tion of his curiofity, the author of this 
 Examination was induced to inveftigate ; 
 and, the refult of his refearches, he con- 
 ceives, will not be unufeful or uninftruc- 
 tive to his Profeffion, or to the Public. 
 
 With regard to that Gentleman who has 
 been charged by the Commons of Great- 
 Britain with high crimes and mifdemeanors, 
 the author protefts that he has been fo 
 incurious to the circumftances of the trial, 
 that his mind has not the leaft bias 
 or inclination to induce him to pro- 
 nounce, like the Peers, Guilty or Not 
 guilty, upon his honour. But, even if 
 the defendant were guilty of the charges 
 exhibited againfi him, in the fulled: extent, 
 no one, who has a due regard and proper 
 veneration for the Englifh Conflitution, 
 would with to fee the two Houfes of Par- 
 liament trsnfgrefs the bounds of their jurif- 
 didlion prefcribed by the Law, in order to 
 inflidt a punifliment commenfuratc to his 
 crimes. 
 
 The
 
 ( 3 ) 
 
 The firft object of the laws, is the pro- 
 tection of the innocent j and the beSt way 
 to fecure this, is by the punimment of 
 the guilty. For this end, judicatures have 
 been eftablifhed, and magistrates appointed ; 
 but where thefe magiftrates difregard the 
 authority delegated to them, fuch confufioh 
 muft be the confequence, that the inno- 
 cent will fufFer, and the guilty efcape un- 
 punifhed. 
 
 It is the tranfcendent excellence of the 
 BritiSh government, that the whole is 
 comprehended and embraced by the Law. 
 Thofe bleffings of liberty which we enjoy, 
 we owe to that Law, which accurately de- 
 fines the prerogatives of the King, the ex- 
 tent of the privileges of the two Houfes 
 of Parliament, and the power and autho- 
 rity of every fubordinate magistrate in the 
 kingdom. 
 
 Thefe prerogatives, privileges, and pow- 
 ers, conSlitute no inconfiderable portion 
 of the Rights of Englishmen : from a 
 B 2 du
 
 ( 4 ) 
 
 due exercife of thefe, the fecurity and tran- 
 quillity of the whole are produced : and 
 though cafes of great delinquency may 
 perhaps fometimes exift, which the arm 
 of the Law cannot reach, which it can 
 neither punifh nor prevent; yet I fhould 
 fay, in the ftrorig and feniible language 
 of Sir 'Martin Wright, " * That thefe 
 " are particular and fingle inconveniences; 
 " and the policy of the law of England, 
 " and indeed the true principles of all 
 " government, will rather luffer many 
 " private inconveniences than introduce 
 *' one public mifchief." 
 
 Since the commencement of the prefent 
 Impeachment, a monflrous dodrine has 
 been urged, which, if eftabliflied, would 
 arm the Houfe of Lords with a defpotic 
 power, and might eventually prove fatal to 
 our liberty and conftitution ; which is, that 
 they are not bound, like inferior courts, 
 by the rigid and inflexible rules of evidence, 
 but that they might admit, at their dif- 
 
 cretion, 
 
 * Toiler, 29.
 
 ( 5 ) - 
 
 cretion, any fpecies of information which 
 they might think neceilary for the invefti- 
 gation of truth. 
 
 But I trufl that the Lords will always 
 have wifdom and virtue to reject fuch per- 
 nicious proportions, and will remember 
 that, in their character of judges, it is 
 their province jus dicer e, and not jus dare.* 
 
 The rules of evidence, like the rules 
 of morality, are prefumed to be founded 
 in the beft fenfe poffible, in reafon and 
 wifdom matured and confirmed by the 
 experience of ages ; and, in all criminal 
 proceedings, both in the higheft and 
 
 loweft 
 
 * This .may be thought to be exprefTed with an. 
 unbecoming vehemence. It is a doctrine which I 
 have frequently been obliged to reprobate among the 
 'circle of my friends ; and I introduce it here, to en- 
 force that univerfal principle, that the fpirit and 
 fubftance of Engliili liberty confifts in the ftrift 
 adherence to rules and the letter of the law; and the 
 more we introduce of arbitrary difcretion, the more 
 we fhall approximate to the deteilable maxims of die 
 Eaftcrn Governments.
 
 ( 6 ) 
 
 loweft courts, whether at the Quarter-fef- 
 fions, or in the High Court of Parliament, 
 and in the Court of the Lord High Stew- 
 ard, are, and ought to be precifely the 
 fame. 
 
 And my Lord Coke folemnly cautions 
 Parliaments " * to leave all caufes to be 
 " meafured by the golden and ftreight 
 " metwand of the Law, and not by the 
 " uncertain and crooked cord of difcre- 
 " tion." 
 
 But though each of the two Houfes of 
 Parliament may do many acls, from which 
 there is no remedy or appeal, yet I truft 
 that they will always havefuch a confcien- 
 tious regard to the extent of their pri- 
 vileges and jurifdiction, that they will ne- 
 ver adopt the maxim, That they can do 
 no wrong, becaufe they can do wrong 
 with impunity. 
 
 Indeed, ever fince the Revolution, the 
 two Houfes of Parliament have been fcru- 
 
 pulouily 
 
 * 4 Infl. 41.
 
 ( 7 ) 
 
 puloufly anxious to keep within the limits 
 of their authority j and if we did not per- 
 ceive this folicitude in the two Houfes, 
 " to meafure their conduct by the golden 
 " metwand of the Law," the people of 
 England would have much more to ap- 
 prehend from the improper exercife of the 
 privilege of Parliament, than of the prero- 
 gative of the Crown. 
 
 We hear much of the Lex et Confuetudo 
 Parliament? t and it has always been re- 
 prefented as a myftery beyond the corn- 
 prehenfion of vulgar, uninitiated minds : 
 that it is " * cib omnibus qu&renda, a 
 " mult is ignorata, a paucis cognita-" and 
 that there is a " -j- particular cunning in 
 " it, which even our Judges are unac- 
 " quainted with." But, as thejudicature 
 of the Houfe of Lords is always open, 
 and as all the proceedings which are in 
 exiftence, of both Houfes, have been pub- 
 lifhed, I have never been able to fee any 
 
 reafon 
 
 * i Lift, ii b. 
 
 J Mr. J. Powell, a Lord Raymond, 944.
 
 ( 8 ) 
 
 reafon why the Law of Parliament fhould 
 be more unintelligible than the Lex Co- 
 rona, which has been fo freely and amply 
 difcuffed, or more inexplicable than the 
 proceedings of the inferior courts. The 
 ufage and cuftom of Parliament conftitutes 
 the Law of Parliament, which is part of 
 the common law of the land, or part of 
 the Lex et Confuetudo Anglicz. 
 
 Many of the proceedings of Parliament 
 have been introduced by modern flatutes, 
 as by Grenville's act, the Septennial act, 
 &c. and where they depend only upon 
 ufage, this ufage, like all the common 
 law, may be prefumed to have had as 
 valid and as refpeclable an origin. 
 
 But this Lex et Confuetudo Parliaments 
 
 */ 
 
 is befl underftood, as my Lord Coke de- 
 clares, " * by reading the Judgments and 
 " Records of Parliament at large, and the 
 " Journals of the Houfe of Lords, and 
 < e the book of the Clerk of the Houfe of 
 " Commons." 
 
 , 
 
 * 4 Inft. 23.
 
 ( 9 ) 
 
 In addition to the orders and precedents 
 which may be found there, conclusions, 
 in doubtful cafes, may be drawn from 
 principles; viz. by confidering the nature 
 of the original conftitution, of Parliaments, 
 their hiftory and progrefs, their relation 
 and analogy to other parts of the Law, and 
 the convenience and inconvenience of the 
 different determinations propofed; for, as 
 all Law muft be fuppofed to have general 
 convenience for its object, where there is 
 no other confideration to guide the judg- 
 ment, that determination muft be pre- 
 fumed to be the beft law, which is the 
 mofl convenient. 
 
 Upon this Queftion refpecling the Im- 
 peachment, both Precedents and Principles 
 compel me to conclude that the Impeach- 
 ment is determined by the diflblution. 
 
 It is not now a queftion of the firft im- 
 preffion; but it has been frequently agi- 
 tated, upon the moft folemn occafions, in 
 the two Houfes of Parliament. 
 
 C
 
 No lefs than four Committees in the 
 Houfe of Lords have been appointed 
 within the fpace of forty years, to fearch 
 for precedents upon this fubject. Thefe 
 Committees made their inquiries in times 
 of great anxiety and expedition, and have 
 given abundant proofs of their attention 
 and induflry. 
 
 But I (hall here briefly ftate, in chrono- 
 logical arrangement, the fubflance of thefe 
 * Orders and Precedents; and (hall after- 
 wards make a few obfervations upon each 
 of them. 
 
 j- II March, 1672. It was referred, by 
 the Houfe of Lords, to a Com- 
 mittee, to confider whether writs 
 of error and appeals continued in 
 
 Jlatu 
 
 * Vide thofe Precedents at length, in the Appendix. 
 
 f Nota. At that time the legal year begun on the 
 25th of March; fo that when December and March, 
 till the 25th, &c. are mentioned of the fame year, 
 December will precede March.
 
 ( 'I ) 
 
 Jlatu quo unto the next feffion of 
 Parliament. 
 
 29 March, 1673. The Lords Commit- 
 tees produce feveral precedents 
 from the time of Edward I, and 
 report that bufinefles depending in 
 one Parliament, or SeJ/wn of Par- 
 liament, have been continued to the 
 next Seffton of the fame Parliament, 
 and the proceedings thereupon have 
 remained in the fame ftate in which 
 they were left, when lail in agita* 
 tion. 
 
 II March, 1678. It is referred to the 
 Lords Committees, whether ap- 
 peals can be proceeded upon after 
 the diflblution. 
 
 17 March, 1678. It is referred to the 
 
 Committee to confider appeals as 
 
 in the preceding Order ; and alfo to 
 
 confider the ftate of Impeachments 
 
 C 2 brought
 
 (12 ) 
 
 brought up at laft Parliament (a dif- 
 folution having intervened). 
 
 ig March, 1678. -The Lords Commit- 
 tees report that appeals and writs 
 of error continue in Jlatu quo, 
 and that the diffolution does not 
 alter the Jlate of the Impeachments ; 
 and it was ordered accordingly. 
 
 22 May 1685. It was refolved, that the 
 preceding Order, of the 19 March 
 1678, fhould be reverjed and an- 
 nulled as to Impeachments f 
 
 5 April, 1690.' -An Order was made to 
 take into confederation, whether 
 Impeachments continue from Par- 
 liament to Parliament, 
 
 7 J u fy> I 69O. 'The Parliament prorogued, 
 and no report made, 
 
 2 October, 1690. The Parliament met after 
 prorogation. 
 
 6 QSlober,
 
 ( 13 ) 
 
 6 Qftober, 1690. A Committee was ap- 
 pointed to infpect and confider 
 precedents whether Impeachments 
 continue in jlatu quo from Par- 
 liament to Parliament. 
 
 so Offober, 1690. The Committee re- 
 port various precedents (vide the 
 Appendix, p. xiii) 5 upon confide- 
 ration of which, and former Orders, 
 the Houfe of Lords difcharged 
 Lord Peterborough, and Lord Sa- 
 lifbury, who had been impeached 
 before the diflblution, from their 
 bail. 
 
 22 May, 1717. It was ordered, that all 
 the Lords mould be a Committee 
 to fearch for and report fuch pre- 
 cedents as relate to the continuance 
 of Impeachments from Seffion to 
 Seffion, or from Parliament to Par- 
 liament. 
 
 25 May,
 
 ( '4 ) 
 
 25 May, 1717. The Lords Committees 
 make a very full report of pre- 
 dents, from the year 1660 ; which 
 being read, it was propofed to re- 
 folve, That the Impeachment of 
 the Commons, againft the Earl of 
 Oxford, is determined by the inter- 
 vening prorogation. 
 It was refolved in the negative. 
 
 So here are the Reports of four Com- 
 mittees in the Houfe of Lords, betides the 
 important vote of that Houfe, on the 22d 
 of May, 1685, when no Committee had 
 been previoufly appointed ; and it appears 
 that for forty years this Queflion mufl 
 have ferioufly engaged the attention of that 
 Houfe ; and if a material cafe, upon the 
 fubjed:, could have been difcovered by any 
 of the Lords, it would certainly have been 
 considered a valuable prize. 
 
 The inftrudtions to the firft Committee, 
 on the nth of March, 1672, relate only 
 to appeals and writs of error. But in the 
 
 Report
 
 ( is ) 
 
 Report, the Lords Committees ftate various 
 precedents from the time of Edward I. 
 from which it appears, that they had not 
 confined their inquiries to appeals and 
 writs of error, but had extended them to 
 every fpecies of judicial proceeding before 
 Parliament ; for they cite two inftances of 
 criminal proceedings, of which that of the 
 Archbimop of Canterbury is one of the 
 moft important cafes which I have feen 
 referred to, or have found, in the Rolls of 
 Parliament in ancient times. 
 
 * In the 1 5th year of Edward the Third, 
 the Archbimop of Canterbury had, of his 
 own accord, dated in Parliament, that he 
 had been defamed throughout the kingdom 
 and elfewhere, and prayed the King that 
 he might be arraigned before the Peers, 
 which the King granted. Afterwards, cer- 
 tain of the Lords were appointed to hear 
 the anfwers of the Archbiihop -, and if the 
 anfwers (hould be convenables, the King of 
 his good grace would excufe him. " Et 
 *' en cas qu'il femble aa Roi & a fon Con- 
 
 " fell, 
 * Vide Appendix, p. xxxvii.
 
 ( 16 ) 
 
 " feil, que meifmes les refpons ne font mye 
 " furfifantz, adonques les ditz refpons fer- 
 " ront dcbatuz en prefcbein Parkment, & 
 " iJIoques eut juggement rendu" 
 
 And in a Parliament or Sefllon held two 
 years afterwards, 17 Ed. III. every thing 
 touching the arraignment of the Arch- 
 bifhop is annulled and cancelled, as not 
 being reafonable or true. From this, it 
 certainly appears, that the arraignment 
 and anfwer might be made in one Parle- 
 ment, and that judgment might be given 
 in the next. 
 
 But I (ball mew by and by, that the word 
 Parlement, or Parliament, was applied al- 
 ways to a Seffion, and not confined to a Par- 
 liament, according to the modern accep- 
 tation of the word. But upon looking 
 into Prynne's Brevia Parliamentaria Redi- 
 viva, I find there is a ftrong prefumption, 
 that the whole of the proceedings in the 
 Archbimop's cafe were tranfacted in what 
 
 we
 
 ( '7 ) 
 
 We call the fame Parliaments, or that the 
 proceedings were not continued after a dif- 
 folution. When Mr. Prynne informs us 
 that there was a new writ of fummons, 
 we are fure that there has been a difiolu- 
 tion ; but where no writ is found in his 
 collection, it certainly is not equally con-' 
 clufive that no diffolution or new election 
 has intervened, becaufe all the writs of that 
 year may have been loft : he tells us, that 
 part of many of the bundles of writs, as for 
 inftance the writs for Cornwall or Cam- 
 bridgemire, are decayed or wanting ; but if 
 he found any writs remaining for any other 
 county, it is clear that there had been 
 a new election. 1 do not know, (though 
 perhaps it may be very well known by 
 others) that it appears either from parlia- 
 mentary records, or from any general or 
 local hiftory, that in fa<ft there were elec- 
 tions in ancient times, of which the writs 
 of fummons do not appear in Prynne's Ca* 
 talogues. It appears from Prynne, that 
 writs ifTued for a new Parliament tefted ; 
 
 D An
 
 An. 15. Edw. III. apud Wood/lock, 3 die 
 Martii; that his next writ is tefted $ 
 An. 17. Edw. III. apud Kenelwortb, 26 
 die Decembris : and it alfo appears from the 
 Rolls of Parliament, that the Parliament 
 in which the* Archbidiop complains, was 
 held at Weflminfter 1 5 days after Barter ; 
 the Archbifhop's arraignment is concluded 
 in a Parliament held at Weftminfter 15 
 days after Eafler, in the I7th of Edw. III. 
 the new writ does not ifTue till the 26th of 
 December in that year : fo that the pro- 
 ceedings with refped: to the Archbifhop 
 may have been in one Parliament pro- 
 rogued, or in different feffions of the fame 
 Parliament : and, from thefe dates, as no- 
 'thing appears to the contrary, it is fair to 
 prefume it. And before the reader has got 
 to the end of this pamphlet, I truft he will 
 have fome reafon to fuppole, that the Par- 
 liament was prorogued and not diflblved, 
 becaufe the Archbifhop's arraignment was 
 pending and unfinished *. 
 
 The 
 
 * Vide the Archbifhop's cafe at length. Ap- 
 pendix, xxxvi.
 
 ( 19 ) 
 
 The cafe of Hugh Suffolk, called Hugh 
 Faftolf in the Roll of Parliament, 51 Ed. 
 III. is this : The Record ftates, that fur 
 k fyn du darrem Parlement, he had been 
 impeached by the malice and hatred of 
 fome of his neighbours, his enemies, of 
 extortion, and other mifconducl: ; that fpe- 
 cial commiffioners had been appointed to 
 try him, and that by feventeen inquefts he 
 had been acquitted : the Commons, there- 
 fore, pray the Lords, that the faid Hugh 
 might be reftored to his good fame and 
 name. This Parliament fat at Weftminfter 
 15 days after St. Hilary; and, according to 
 Prynne, the writ of fummons is tefted 
 Ann. 50, E. III. apud Havering, i die 
 Decembris. But the darrein Parlement, 
 which this Roll in the 51 Ed. III. perpe- 
 tually refers to, was held in the 50 Ed. III. 
 in April, and which, by the Roll itfelf, ap- 
 pears to have been diffolved : and this 
 correfponds with Prynne's writs. So this 
 proceeding was unqueftionably in a new 
 Parliament. But it cannot be confidered 
 as a continuation of the former extraordi- 
 D 2 nary
 
 ( 20 ) 
 
 nary profecution j but it is an original peti- 
 tion : " q'il ent fuft ore en ceft Parlement, 
 " reftorez a fa bone fame et bone loos par 
 " mefme, la manere come il eft trovez 
 " devante les Juftices." 
 
 There are many inftances in the Rolls of 
 Parliament, where the fame perfons are 
 named in different records. But we muft 
 always confider whether they are continua- 
 tions of the original proceedings, or whe- 
 ther they are notfiefli impeachments, bills 
 of attainder, or reverfals of attainder, or 
 original proceedings of themfelves ; and 
 from what I have feen in every inftance 
 where the fame perfon is named after a 
 diiiblution, it is a frefh or original proceed- 
 ing (except writs of error, which I fhall 
 fhortly take notice of), as in this Roll of 
 Parliament there area number of petitions 
 to the King to pardon feveral perfons there- 
 in fpecified, who, as they ftate, had been 
 impeached wrongfully, and of great malice, 
 in the laft Parliament. Thefe petitions are 
 certainly as diftincl: proceedings, from the 
 
 petitions
 
 ( 21 ) 
 
 petitions of impeachment in the former 
 Parliament, as the bill to reverfe Lord Staf- 
 ford's attainder was diftin<fl from his im- 
 peachment. 
 
 But before we proceed farther, it will 
 be abfolutely necefTary to enquire into the 
 original iignification of the word Parlia- 
 ment.- I will not trouble the reader with 
 the foolifh and ridiculous etymologies which 
 have been given of this word. It fimply 
 means a council, or conference, without 
 any regard to the manner by which the 
 members of that conference are convened. 
 
 * My Lord Coke, fomehow or other, 
 had become poffeiTed of a manufcript, 
 entitled, " Modus tenendi Parliamentum, 
 " tempore regis Edwardi, filii regis Ethel- 
 <ff dredi, &c." which he beaded of, as if he 
 had found the philofopher's ftone. It pre- 
 tended to give a defcription of the corifti- 
 tution of Parliaments before the Conqueft ; 
 which Selden, Spelman, and Prynne, both 
 
 from 
 * Vide 4 Inft. 12.
 
 from feudal principles, and from fads, 
 
 were convinced did not exift till lon^ after 
 
 w 
 
 the Corjquefl , and from an attentive exa- 
 mination, they difcovered it to be fpurious 
 from the word Parliament^ which, they 
 prove, was not in ufe till near two hundred 
 years after the Conqueft. Sir Henry Spel- 
 man fays *, " Johannes Rex, haud dicam 
 " Parliamentum, nam hoc nomen non 
 " turn emicuit, fed communis concilii 
 " regni, formam et coactionem perfpicuam 
 ' dedit/' 
 
 And Prynne, in his animadverfions up- 
 on the 4th Inftitute of my Lord Coke, 
 proves, that this word was not ufed in 
 England till the time of Henry the Third, 
 
 But, after its introduclion, it uniformly, 
 for many centuries, figmfied a Seffion of 
 what we now call a Parliament. In all 
 the prorogations, from the firfl records of 
 Parliament, till at leaH the time of Henry 
 the Seventh, the former Seffion is always 
 
 called 
 * GlofT. Voc. P
 
 ( 23 ) 
 
 called the laft Parliament, or a Parliament 
 held at fuch a time and place. In the 
 ffotute of 4th Edward III. c. 14, which 
 enacts, that a Parliament Should be held 
 once every year, or oftener if need be, the 
 word Parliament has always been conftrued 
 a Seflion ; for no one ever fuppofed there 
 was any limit to the duration of. Parlia- 
 ment, till the Triennial act, in the time of 
 King William *. The firft Parliament, 
 after the convention, at the Restoration, {lit 
 17 years, and its length was never com- 
 plained of as unconftitutional. After the 
 word Seffion was introduced, and Parlia- 
 ment began to be applied to the duration 
 of the writ of fummons, {till the ufe of 
 it was very unfteady and unfettled, as, in 
 this very report, it has both figniiications. 
 When it is declared, that " bufinefTes in 
 " one Parliament, or Seffion of Parliament, 
 " have been continued to the next S'Jjlon 
 " of the fame Parliament" the fir ft word 
 Parliament can fignify nothing but a Seffion. 
 Many other inftances of this uncertainty, 
 if it were necefTary, might be adduced. 
 
 Hence 
 6 W and M. c. ?..
 
 ( 24 ) 
 
 Hence we fee the abfurdity of that argu- 
 ment, which has been frequently ufed, viz. 
 That, upon a writ of error, theft ire facia* 
 is generally faid to be returnable ad proxi- 
 mum Parliamentum, or the next Parliament. 
 For the word Parliament, in this cafe, mud 
 necefTarily fignify the next SefTion, and not 
 a Parliament, after a diflblution. For it 
 would be the grolTeft folly to fuppofe, that 
 the plaintiff in error might affign his errors 
 in this Seflion, and have a fcire facias to 
 give notice to the defendant to appear in 
 the next Parliament, which may now be 
 after feven years, and might have been, we 
 have feen formerly, after 17, or even 70 
 years. 
 
 * A learned friend of mine has fuggefted 
 to me, in converfation, that the vulgar 
 phrafe, a fcire facias, returnable in the next 
 Parliament, though ufed in all times, is inac- 
 curate, and, in fa<fl, exprefles a non-entity ; 
 that no Jcire facias could be fued out till the 
 
 day 
 
 * I have fince found, that this fuggeftion of my 
 friend is confirmed by a MSS. of my Lord Hale's, 
 who fays exprefsly, that the fcire facias muft be re- 
 turnable OD a day certain. P. 151.
 
 day and place for the meeting of the next 
 Seffion or Parliament were fixed, and that 
 it muft be made returnable on a certain day ; 
 as far as I have been able to confider the 
 nature of* writs, and to examine the par- 
 ticular inftances, one of which is in the 
 Regifter, p. 17, this obfervation is well 
 founded. Befides, it would be abfurd, and 
 would defeat the purpofeof the writ, if the 
 Sheriff might return at his pleafure the 
 execution of the writ at any time, even 
 upon the lad day of the next Seiiion. 
 From whence it follows, that this writ 
 cannot be fued out till after a prorogation 
 or diflblution, and till the time of the next 
 Seffion or Parliament is fixed by the King. 
 
 I have examined, with fome depree of 
 
 o 
 
 attention, all the cafes of writs of error re- 
 ferred to by the report of 1673. 
 
 In thofe in the time of Ed. I. I can find 
 nothing to lead me to declare whether they 
 were pending after a prorogation or a diflb- 
 
 E lution
 
 lution : but as there feems only to be a 
 cefTation of bufinefs during the holidays of 
 Chriftmas, Eafter, and Michaelmas, it af- 
 fords fome prefumption that the vacations 
 were only prorogations. But, upon exa- 
 mining the reft, with Prynne's catalogues 
 before me, I find that three of thofe writs 
 of error were proceeded on in new Parlia- 
 ments : thefe are the cafes in i R. II. 
 7 R. II. and i Hen. V. * The nrft is very 
 remarkable, and proves that the record in 
 a writ of error was not preferved in Par- 
 liament after a difTolution. The Earl of 
 Salifbury is the plaintiff in error ; he af- 
 iigns his errors, and prays a fclre facias to 
 fummon the defendant to appear in the 
 next Parliament; and the Record proceeds 
 " Et celle brief lui eftoit grantez illoeques, 
 " 6c commandez eflre fait retournable en 
 " dit proche Parlement : et puis apres, fur 
 " le fin du dit Parlement , le dit Monfieur 
 " Johan de Cavendim, par comandement 
 " des Prelatz, & Seig'rs du Parlement, ent 
 " a lui fait portaft memes les record & pro- 
 
 " ces 
 * Vide Appendix, v. andvn.
 
 ( 27 ) 
 
 " ces en le Bank le Roi, pur y demurer, 
 " comme en garde, tan qu'au dit profch* 
 ff Parlement ; et eft ordonnez et accordez, 
 " que mefmes les records et proces foient 
 " en dit profch 1 Parlement, par la caufe 
 t( avant dite." 
 
 Here it is clearly ordered at the end of 
 the Parliament, that the record and pro- 
 cefs mould be carried back to the King's 
 Bench, and that the whole mould be 
 brought up again in the new Parliament. 
 In that of 7 R. II. n. 20, it is awarded 
 only that the record and procefs mall be 
 in the next Parliament, and in that of i. 
 Hen. V. n. 19, the fclre facias only is 
 awarded : though thefe two latter cafes are 
 not fo full as the firft, yet they are con- 
 fident with it. But every authority of law 
 concurred, that a writ of error was deter- 
 mined by a diffolution, till the order of the 
 Lords in 1678 ; and from a confideration 
 of the precedents which they produce, the 
 Committee, in 1673, confine their report 
 to prorogations, when they conclude that 
 E 2 bufmelTes
 
 " bufinefles depending in one Parliament, 
 *' or Seffion of" Parliament, have been con- 
 " tinued to the next Sejfion of the fame Par- 
 " Hament; and whatever they had found in 
 point, in the cafe of adiflblution, they would 
 unqueftionably have ftated, becaufe what- 
 ever proceeding would furvive a diflblution, 
 would a fortiori furvive a prorogation. 
 
 But the references to the Committee, 
 on the nth of March and i7th of March, 
 3678, are extended to the effect of a dif- 
 iolution ; and the order of the Houfe, 
 upon the report of this Committee, with 
 the cafes which followed, would have 
 been conclufive and decifive at prefent, 
 that a diflblution did not difturb an Im- 
 peachment, if this order had not, a few 
 years afterwards, been reverfed and an- 
 nulled. 
 
 It is remarkable, that no precedent, au- 
 thority, or principle whatever, is cited or 
 referred to by the Committee, for this pre- 
 cipitate and confident report. 
 
 But
 
 ( 29 ) 
 
 But let us confider under what circum- 
 flances this order of the Houfe was made. 
 
 On the 5th of December preceding, 
 Lord Stafford and four other Lords had 
 been impeached for being concerned in 
 the Popilh Plot; Lord Danby had been 
 impeached alio fome time afterwards in 
 that month; and articles had been exhi- 
 bited againft him by the Commons, char- 
 ging him with high treafon. In January 
 following, the Parliament was diiTolved, 
 and the new Parliament met again in 
 March ; and one cannot but fuppofe, that 
 the Lords were infected with the madnefs 
 of the times, or were flruck with the gene- 
 ral panic, when the Committee report 
 within two days, and the Houfe order, 
 without any precedent, or femblance of 
 authority, that the impeachments were not 
 affeded by the previous difToiution. 
 
 But, in confequence of this order, the 
 proceedings were continued in the next 
 Parliaments againft Lord Danby and Lord 
 
 Stafford
 
 [ 3 1 
 
 Stafford. The courfe of the proceedings 
 againft Lord Stafford was as fol lows: 
 
 * Anno 1678. 
 
 December 5, Impeached by the Commons. 
 December 28, Examined. 
 
 Jn the next Parliament, Anno 1679. 
 April 9, Heard his accufation read. 
 April 26, Put his anfwer in. 
 
 In another Parliament, Anno 1680. 
 November 12, His trial appointed. 
 December 7, Condemned. 
 
 From whence it appears, that this Im- 
 peechment was pending in three different 
 Parliaments. After he was pronounced 
 guilty, he urged this in arreft of judgment, 
 and prayed that he might have counfel to 
 argue it, which mod unreafonably and 
 unjuilly was denied him ; fo that the pri- 
 foner, who, from his fears, or the natural 
 imbecillity of his mind, feems to have 
 been in a ftate of confufion and flupidity 
 
 during 
 
 * Vide Appendix.
 
 t 31 ] 
 
 during the whole of his trial, was left to 
 fuggeft feebly to the Court, that there was 
 no precedent to fupport the proceedings *. 
 
 Sir Francis Winnington, one of the 
 Managers, replies, that at a conference 
 between the two Houfes in 1678, it had 
 been fettled to be the law of Parliament, 
 upon a fearcb of precedents in all ages (it 
 would have been better if it had been a dif- 
 covery or production of precedents from all 
 ages). 
 
 Sir William Jones, another Manager, 
 fimply and candidly refers to the order of 
 1678. But Serjeant Maynard, a third, fays, 
 <c that which is moft infifced upon, is, that 
 " this charge that is made againft this Lord 
 " was prefented in another Parliament. It 
 " is true ; but under favour, what is once 
 " upon record in Parliament may at any 
 " time afterwards be proceeded upon. It 
 
 " is 
 
 * Vide Harg. State Trials, 3 vol. p. 201. &c. Mr. 
 Hume fays, he was felefted as the firft victim, from 
 his age,infirrnities, and narrow capacity. S vo].p. 130,
 
 [ 32 i; 
 
 fc is a fudden objection, but I conceive it 
 ' hath been done. However, in a cafe of 
 * this nature, where the life of the King, 
 " when our own lives, and our nation, 
 * f and our religion lies at ftake, if there 
 " were not, I hope you would make a 
 " precedent." 
 
 The learned Serjeant fays it is a fudden 
 objection -, as if he had not been in parlia- 
 ment in the year 1678, and had never 
 heard of it before. This proves how ill 
 prepared the moil learned men were at that 
 time to fupport the order of 1678 by pre- 
 cedent or argument. We are told that this 
 Gentleman was afterwards very adive in 
 bringing about the Revolution : if we 
 knew nothing of him but what we fee here* 
 notwithftanding the folemnity with which 
 he concludes, we mould have reafcn to 
 execrate his memory. That the Lords 
 fhould make a precedent to deprive a Peer, 
 or the meaneit fubjecT:, whether innocent or 
 guilty, of his life, but a Peer whom all the 
 world now believe to have been innocent, 
 
 is
 
 ( 33 ) 
 
 is a propofition which every Englimman 
 muft fhudder at. 
 
 But Parliaments deferve little credit for 
 the correftnefs of their proceedings, in 
 times when the Houfe of Commons could 
 contend that the King had no power to 
 pardon a perfoo impeached, and that the 
 Bimops had no right to vote upon any 
 preliminary queftion, in capital cafes, 
 in the High Court of Parliament. I mall 
 only obferve, upon thefe points, that no 
 principle ,or authority can be found in 
 which the King's prerogative to pardon (the 
 equity of our criminal law) has ever been 
 retrained, but by the united concurrence of 
 the Legiflature *. 
 
 It is true, that it does not extend to the 
 
 barbarous and favage proceeding of appeal, 
 
 which flill remains a difgrace to the Eng- 
 
 F 
 
 * The Rolls of Parliament abound with inftances 
 of pardons, in cafes of impeachment. But now, by 
 12 and 13 W. III. c. 2. the King cannot pardon a per- 
 fon impeached before conviction.
 
 ( 34 ) 
 
 lifti Law 3 a profecution which has not for 
 its object the purpofes of public juftice, 
 but the gratification of private revenge, that 
 the mifery and death of the criminal Jint 
 Jblatio cognatisinteremptorum. 
 
 With regard to the other point, the 
 Bifhops retain their feat and voice in Par- 
 liament by a more ancient title than per- 
 haps any of the Temporal Peers can pro- 
 duce at prefent, except the Duke of 
 Norfolk, from his poffeffion of the Caftle 
 of Arundel. The trifling quaint obfer- 
 vation tranfmitted even by my Lord Coke, 
 that they are not noble by blood, can fig- 
 nify nothing more than that their iffue will 
 no* inherit their rank and dignity : fo that 
 to fay a Bimop is not entitled to all the 
 privileges of Peerage, becaufe his blood 
 is not noble, communicates no more in- 
 telligence to the mind/ than to afTert that 
 a Bimop is not entitled, becaufe he is a 
 Bimop ; for it will hardly be contended, 
 that his Majefty cannot by his patent make 
 a Peer for life, who (hould in every in- 
 
 ftance
 
 ( 35 ) 
 
 fiance be entitled to the rights of Nobility. 
 And I mould think that a doubt witf 
 never again be entertained, that the Bifhops 
 have every right and privilege of Peerage, 
 which is confiftent with the Canons of the 
 Church, or which they have not voluntarily 
 relinquifhed or loft by defuetudc. 
 
 I make thefe fhort obfervations upon 
 thofe important fubjecls, which I con- 
 ceive are now well underflood, in order 
 to remark, that in times when fuch illegal 
 and unconftitutional pofitions were ad- 
 vanced, and when the Houfe of Commons, 
 however animated with a fpirit of liberty 
 andjuftice, were unqueftionably wrong in 
 two grand points, there is a poffibility, 
 that even in conjunction with the Lords, 
 they might be miftaken in a third , and 
 that no great refpecl: ought to be fhewn to 
 the refolutions of either Houfe, when un- 
 fupported by principle or authority. 
 
 It appears that fome of the Lords them- 
 
 felves confidered the order of 1678 as an 
 
 F 2 innovation ^
 
 ( 36 ) 
 
 innovation ; even that very Lord Anglefea*, 
 Lord Privy Seal, who afterwards was one 
 of the three who protefted againft the 
 reverfal of it. He fays it was a great point 
 gamed to the Commons ; but, when points 
 are gained, points are loft ; and, if either 
 Houfeof Parliament can gain a point, with- 
 out an aft of the Legiflature, from the 
 mifchievous confequences of the precedent, 
 many points may be loft to the Constitution 
 and People of England. rThe Commons 
 certainly deny that they had gained a point; 
 but, notwithftanding that, it is evident 
 that it was Lord Anglefea's opinion that 
 they had* 
 
 In 1682, Lord Danby moved the Court 
 of King's-Bench, that he might be ad- 
 mitted to bail j and he argued his own caufe 
 with great learning and ability-)- : he af- 
 ferted that the impeachment was at end 
 by the diflblution ; otherwife, as it was 
 
 uncertain 
 
 * Vide Appendix. 
 
 f Vide his Speech, Harg. State Trials, Vol. 2 a 
 p. 746, and his cafe in the Appendix.
 
 \ 37 ) 
 
 uncertain when another Parliament would 
 be afTembled, his imprisonment might be 
 indefinite, or for life, which was repug- 
 nant to the fpirit of the English Law and 
 Conftitution. The Court declared that hrs 
 arguments had great force, but that they 
 muft remand him till the reft of the Judges 
 were confulted upon a queftion of fuch 
 magnitude. In February 1683, he and 
 the other Lords were bailed to appear the 
 firft day of the next Parliament, he having 
 been in prifon near five years, and the 
 other Lords more than that time. 
 
 No Parliament fat from 1681 till the 
 I9th of May, 1685; upon which day, 
 the firfl and only Parliament of James II. 
 aflembled, when Lord Danby and the 
 other four Lords appeired, agreeably to 
 their recognifance, and prefented petitions 
 ftattng the circumftances of their refp.?c"Uve 
 cafes, and prayed that the Lords would 
 bring them to a fpeedy trial, or do what- 
 ever they might think juft: upon which, 
 the queftion was put, on the 22d of May, 
 
 Whether
 
 ( 38 ) 
 
 Whether the OrJ<sr of the I9th of March, 
 1678, fhall be reverfed and annulled as to 
 Impeachments ? It was refolved in the 
 affirmative, three Lords only protefting 
 againft it : and upon this, Lord Danby 
 and the four Lords were difcharged, with 
 their fureties, from their recognifance. It 
 tnuft be obferved, that there is another 
 cafe, which happened after the Order of 
 the 1 9th of March, 1678, and before its 
 reverfal ; in which an Impeachment was 
 continued after a diflblution ; that is the 
 cafe of Sir William Scroggs, Chief Juftice 
 of the King's-Bench : on the 7th of Ja- 
 nuary, 1680, he was impeached, and ar- 
 ticles were then exhibited. On the i8th, 
 Parliament was difTolved ; on the 21 ft of 
 March, the new Parliament met ; on the 
 24th of March, the anfwer of the Chief 
 Juftice was read ; but nothing farther was 
 done in it.* 
 
 It has generally been argued as if this 
 
 vote 
 
 * Vide Appendix, the Report on the 25th of 
 May, 1717. p. xxn.
 
 vote of 1685, and the difcharge of Lord 
 Danby and the four other Lords in con- 
 fequence of it, merely cancelled the order 
 of 1678, and deftroyed the effect of the 
 cafes fubfequent to it ; fo that the Law 
 upon the fubject ought to be confidered 
 and collected, as if all thefe orders and 
 cafes were expunged, or had never exifted. 
 I cannot but think that this conceffion is 
 more extenfive than is necefTary to grant j 
 and that, when the order of 1678, and 
 the fubfequent cafes, are fairly weighed 
 againft the vote of 1685 and the proceed- 
 ings in confequence, there is a coniider- 
 able balance in favour of the latter. I 
 fhall not lay any ftrefs upon the general 
 fury in 1678 againft the Roman Catholics, 
 from an idle apprehenfion of univerfal de- 
 ftruction : but it clearly appears, that the 
 Lords came to the refolution, after an in- 
 quiry of two days only, that in confe- 
 quence of this order one venerable Peer 
 loft his life, and five others remained in 
 prifon fix years with conftarit apprehenfions 
 of maring the fame fate. From thefe cir- 
 
 cumftances,
 
 ( 40 ) 
 
 cumftances, the legality of the order in 
 1678 muft have been perpetually under 
 contemplation : when therefore the Lords 
 came to the vote in 1685, they had the 
 benefit of the mature confederation and 
 reflection of the laft feven years. But, 
 befides this difadvantage, the very terms 
 and nature of the vote prove, beyond all 
 controverfy, their real and fincere opinion 
 of the order of 1678. I mall now fuppofe, 
 for a moment, that it was the only object 
 of the Lords in 1685 to protecl the im- 
 peached Peers in defiance of all law and 
 precedents, and confequently were deter- 
 mined to remove every obftacle to their 
 defign. If they had thought there had 
 been any authorities in corroboration of 
 the order of the year 1678, they would 
 have refolved generally that Impeachments 
 abated by a dilTolution, which would have 
 over-reached every principle and precedent 
 to the contrary ; but when they fimply 
 refcind the order of 1678, they muft have 
 been convinced that there was no further 
 enemy to encounter, or that this folitary 
 
 order
 
 ( 41 ) 
 
 order was unfupported by any allies or 
 auxiliaries. If the order of 1678 had 
 been merely declaratory of the former law, 
 the reverfal would have been inefFe&ual 
 and nugatory. 
 
 But it is faid that the Parliament in that 
 year was very profligate and corrupt. Icon- 
 fefs I know no reafon why thefe afperfions 
 fhould be thrown upon the Houfe of Peers 
 at that time; for, before the end of the year, 
 they made fuch oppofition to the meafures 
 of the King, that he was determined never 
 to meet them again : and the Bimops, who 
 are generally fuppofed not to be the leaft 
 obfequious of the Lords, throughout the 
 whole of this reign conducted themfelves 
 with extraordinary fpirit and firmnefs. And 
 it is chiefly to the exertions of this Houfe 
 of Lords that we are indebted for the Die/T- 
 ings of the Revolution. 
 
 We hear nothing more of this Queftion 
 till the 5th of April 16905 when an Order 
 was made, that a Committee fhould in- 
 
 G quire
 
 ( 4* ) 
 
 quire> (t Whether Impeachments continue 
 " from Parliament to Parliament j" but, 
 on the 7th of July, 1690, the Parliament 
 was prorogued, and no report had been 
 made : but, on the 2d of October, 1690, 
 the Parliament met, after the prorogation, 
 when Lord Peterborough and Lord Salif- 
 bury, who had been impeached on the 26th 
 of October, 1688, in a former Parliament, 
 of high treafon, prefented petitions to the 
 Houfe of Lords, flating they had been pri- 
 foners in the Tower near two years, and 
 prayed the Houfe to take their cafe into 
 confideration. On the 6th of October they 
 are bailed ; and on the fame day a Com- 
 mittee is appointed to infpect and examine 
 precedents, whether Impeachments con- 
 tinue \i\Jlatu quo from Parliament to Par- 
 liament. On the 30th of October, the 
 Lords Committees produce the cafes in the 
 Appendix; upon a confideration of which, 
 by the Houfe, Lord Peterborough and 
 Lord Salifbury were difcharged from their 
 recognizances. 
 
 This
 
 ( 43 ) 
 
 This is a mofl important precedent j for 
 it is refolved upon, after a full and folemn 
 investigation of all the preceding cafes ; 
 and it ought not to pafs unnoticed, that 
 this Committee called in the affiftance of 
 one of the moft learned antiquarians of the 
 age, Mr. Pettyt, that champion for the 
 antiquity and dignity of the Houfe of 
 Commons, that afferter of the ancient rights 
 of the Commons of England, who would have 
 been in raptures, if he could have produced 
 authorities to have extended their power 
 and jurifdidtion.* 
 
 G 2 It 
 
 * At the end of this Report of the Committee, 
 it is ftated that Mr. Pettyt's Clerk read three records 
 to the Houfe, the dates and numbers of which are 
 given, but no abridgment of them. (Vide Ap- 
 pendix, p. xviii). That in the I5th Ed. III. is the 
 cafe of the Archbifhop of Canterbury, which has 
 already been noticed. The Record, 4 Ed. III. No. 16, 
 is given at length in Fofter's Fourth Difcourfe, 
 p. 387 ; from which it appears, that Thomas de 
 Berkele was tried in full Parliament by a jury of 
 Knights, for being concerned in the murder of 
 Ed. II. of which charge the jury completely ac- 
 quitted him ; but, becaufe he had appointed thofc 
 perfons his fervants who had murdered the Kitg,
 
 ( 44 ) 
 
 It has been faid that there is another 
 point in this cafe, upon which the Lords 
 may have difcharged Lord Salifbury and 
 Lord Peterborough, and not becaufe they 
 thought the impeachment determined by 
 the diffolutibn. It is true they had con- 
 fulted the Judges upon the effecl: of an adl 
 of general pardon, who delivered their opi- 
 nions, That if the faid Earl's crimes and 
 offences were committed before the i3th 
 of February 1768, and not in Ireland, nor 
 beyond the feas, they were pardoned by 
 the faid aft. 
 
 Two things, I think, in this cafe, are 
 clear : 
 
 I ft, That they did not difcharge thefe 
 Lords upon this aft of pardon. 
 
 2d, That they could not pcffibly in 
 
 point of law. 
 
 They 
 
 he was committed till the next Parliament, to hear 
 his judgment, &c. This was in the 4th of Ed. Ill; 
 there are no new writs in the 5th of Ed. Ill ; fo that, 
 on the day of this trial, probably a long adjourn- 
 ment (perhaps over Chriftrnas) had been expected. 
 The third Record referred to, I have not been able 
 to find in the Colle&ion of the printed Records.
 
 < 45 ) 
 
 They certainly thought there was fuch 
 a probability of their being pardoned, that 
 they might mitigate the rigour of their 
 impriibnment, or, as is faid in Lord Dan- 
 by's cafe, . might lengthen their chain, by 
 admitting them to bail. But afterwards 
 moft confidently they proceed to inquire 
 whether they ought to retain them under 
 bail, which is only a gentler fpecies of 
 imprifonment, or whether their profecution 
 was not wholly at an end by the difiblu- 
 tion. Was Mr. Petyt called in to affift 
 them in finding cafes of pardons ? The 
 protecting Lords fpeak incoherently of 
 pardons ; but what they alledge befides 
 the precedents produced, proves inconte.f- 
 tably that the whole of this moft induf- 
 trious and folemn inveftigation was con- 
 fined to this queftion folely, viz. Whether 
 impeachments were determined by a difib- 
 Jution ? 
 
 But it was impoilible, in point of law, 
 that the Lords could give the Earls the 
 benefit of this at, and difcharge them 
 
 without
 
 ( 46 ) 
 
 without putting them upon their trial. 
 The crime of which they were accufed, 
 viz. of being reconciled to the Church of 
 Rome, might .be, and mofl probably was 
 committed, if committed at all, fince the 
 1 3th of February 1688, or in parts abroad. 
 Thefe exceptions were fuch, whether the 
 parties muft plead the act fpecially, or 
 might have the advantage of it from a 
 provifion in the act itfclf upon the general 
 iffue, that no Judge or Court whatever 
 could take notice of it but upon a trial, or 
 upon hearing what the profecutor had to 
 anfwer to it. 
 
 It is certainly true that Mr. Juftice 
 Fofter takes no notice of the queftion 
 reflecting the effect of a diffolution : but 
 he fays, the only ufe which he makes of 
 this cafe is, " that the Lords exercifed a 
 tf right of judicature without a High 
 " Steward ;" * which they indifputably 
 did when they inquired into the effect of 
 
 * Vide an extraft from Mr. Jufticc Fofter. Ap- 
 pendix, xliv.
 
 ( 47 ) 
 
 a difTolution, and in confequence of that 
 inquiry difcharged the prifoners. 
 
 The next cafe is that of the Duke of 
 Leeds in 1701.* This is reprefented as the 
 laft decifion upon the fubjecl:, and as that 
 gigantic precedent which has fwallowed up 
 all the reft. I confefs, when I firft faw it, 
 I thought it fuch a pigmy that I had almoft 
 palled it over without obfervation : and 
 notwithstanding all that I have heard of it, 
 I am not inclined to think more highly of 
 it at prefent than I did at the firft. In the 
 Lords Journals of the 24th of June, 1701, 
 
 we find this Order : " The ,Houfe 
 
 *' of Commons having impeached Thomas 
 " Duke of Leeds of high crimes and mif- 
 " demeanours, on the feven and twentieth 
 " of April 1695, and on the nine and 
 " twentieth of the faid April exhibited 
 " articles againft him, to which he an- 
 *' fwered ; but the Commons not profe- 
 
 " cuting, 
 
 * Vide Appendix, p. xxviii. This Duke of 
 Leeds is the fame Lord Danby, who has fo often 
 been upon the ftage before.
 
 ( 48 ) 
 
 " Cuting, It is ordered, by the Lords Spi- 
 " ritual and Temporal in Parliament aflem- 
 ' bled, That the faid Impeachment and 
 " the Articles exhibited againft him fhall 
 *' be, and they are hereby difmifled." 
 
 The inactivity of the Commons for fix 
 years would afford a prefumption that they 
 had acquiefced in the deciiion of 1790 : 
 but we are told they were obliged to adver- 
 tife for a witnefs ; but from the length of 
 time, it mould feem, with no degree of 
 fuccefs. But the argument drawn from this 
 cafe is this, viz. That the Lords muft necef- 
 farily have thought the Impeachment con- 
 tinued beyond the diflblution, and that it 
 was not extinguimed by that event -, or 
 they would not have given themfelves the 
 trouble of difmiffing it. This muft be 
 admitted to be a fair argument; but the 
 force and effect of it will depend entirely 
 upon circumftances. There is not a fingle 
 word exprefled upon the queftion, in the 
 Order; but after our declarations it is true 
 that our actions are the next befl witneiTes 
 
 of
 
 ( 49 ) 
 
 of our thoughts. But when an action is 
 produced as evidence of intention, the 
 whole chain of previous actions from which 
 that action originated, ought to be taken 
 into confideration, or we mall be apt to 
 pronounce an erroneous verdict from its 
 teftimony alone. 
 
 And if this difmiffion of the impeach- 
 ment does not prove, in the Lords, an act 
 of deliberation upon the effect of a dilu- 
 tion, it proves nothing more than any other 
 order in their journals. 
 
 In the beginning of May 1701, there 
 was a ^plentiful harveft of impeachments. 
 The Earl of Portland, Lord Somers, the 
 Earl of Orford, and Lord Halifax, had all 
 been impeached in the courfe of that 
 feffion ; the Duke of Leeds had been im- 
 peached above fix years before, and more 
 than one difTolution muft have intervened.* 
 
 On the 5th of May 1701, the Lords ap- 
 point a Committee " to draw a meflage to 
 H be 
 
 * The Triennial Aft patted 6 W. and M.
 
 *' be fent to the Commons, to put them in 
 " mind of the Impeachments brought up 
 " by them againft the Earl of Portland, the 
 " Earl of Orford, the Lord Somers, and 
 " the Lord Halifax :" and a meflage was fent 
 in confequence to the Commons, <e to ac- 
 " quaint them, that they having, on the firft 
 te day of April laft, fent up to their Lord- 
 " fhips an Impeachment againft William, 
 " Earl of Portland, of high crimes and 
 " mifdemeanors ; and having alfo on the 
 " fifteenth day of the fame month feveral- 
 t ly impeached John Lord Somers, Ed- 
 " ward Earl of Qrford, and Charles Lord 
 *' Halifax, of high crimes and mifde- 
 " meanors j their Lordmips think them- 
 " felves obliged to put them in mind, that 
 " as yet no particular articles have been 
 exhibited againft the faid Lord s, which, 
 " after Impeachments have been fo long de- 
 *' pending^ is due in juftice to the perfons 
 * c concerned, and agreeable to the methods 
 " of Parliament in fuch cafes." This pro- 
 duced from the Commons, on the 9th of 
 May, articles againft Lord Orford. On the 
 
 jjth 

 
 ( 5' ) 
 
 i^th of May, the Lords fend again the fame 
 mefTage verbatim, only omitting Lord Or- 
 Ford. On the 1910 of May, the Commons 
 exhibited articles againft Lord Somers. On 
 the 2ift of May, the Lords fend again the 
 fame mefTage, including only the Earl of 
 Portland, and Lord Hallifax, but vary 
 the conclufion, thus, " which, after Im- 
 *' peacbments have fo long depended 9 is d 
 *' hardjhip to the perfons concerned, and not 
 * e agreeable to the ufual methods and pro- 
 " ceedings of Parliament." On the 3Oth 
 of May they fend again the fame meflage 
 verbatim. The Commons anfwer, " As 
 " to your Lordfhips' meffage, the Com- 
 " mons take it to be without precedent, 
 " and unparliamentary $ they, as profecu- 
 " tors, having a liberty to exhibit their Ar- 
 " tides of Impeachment in any time, of 
 *' which they, who are to prepare them, 
 "' are the proper Judges : and therefore, 
 * f for your Lordfhips to affert, they having 
 *' not yet exhibited particular articles 
 t( againft William Earl of Portland, and 
 * r Charles Lord Hallifax, is a hardship to 
 H 2 them,
 
 ( 5* ) 
 
 " them, and not agreeable to the ufual me- 
 " thods and proceedings in Parliament in 
 " ' fuch cafes, does, as they conceive, tend 
 " to the breach of that good correfpon- 
 " dence betwixt the two Houfes, which 
 " ought to be mutually preferred." 
 
 And in another anfwer, the Com- 
 mons complain of the frequent repe- 
 tition of thcfe mefiages. On the 2d of 
 June, the Lords reply, and conclude thus : 
 " The Lords hope the Commons, on their 
 "part, will* be as careful not to do any 
 " thing that may tend to the interruption of 
 " good correfpondence between the two 
 " Houfes, as the Lords ihall ever be on 
 " their parti and the beft way to preferve 
 " that is, for neither of the two Houfes to 
 " exceed thofe limits, which the law and 
 " cuftom of Parliament have already efta- 
 " blilhed." 
 
 The Commons afterwards exhibited ar- 
 ticles againft Lord Halifax -, and the Lords, 
 a fter that, remind them again of the Earl 
 
 of
 
 ( 53 ) 
 
 of Portland's impeachment. The reader 
 will fee why I have given fo full a narra- 
 tive of thefe proceedings ; for in all thefe 
 mefTages, in which Lord Portland's name 
 is fent to the Commons five times, the 
 name of the Duke of Leeds is never once 
 mentioned. 
 
 From the 5th of May till the 24th of 
 June, there are daily mefTages between the 
 two Houfes relative to the Impeachments; 
 and within that time there are the moft 
 angry refolutions, which are to be found 
 in the Journals of the two Houfes. Lord 
 Havermam, at a conference, told the Com- 
 mons, " That their Lordfliips cannot but 
 " look upon it as a great hardship, that 
 " any mould lie under long delays in im- 
 " peachments : perfons may be incapable, 
 " facts may be forgotten, evidences may 
 " be laid out of the way, witneilcs may die, 
 " and many the like accidents may hap- 
 " pen ; and proceeded to fay, that ij was a 
 " demonftration to him, that the Com- 
 4t mons thought the Lords impeached in- 
 
 " nocent. 3 '
 
 ( 54 ) 
 
 * nocent.' This, of courfe, they refented* 
 and complained to the Houfe of Lords 
 againfl Lord Haverfham, for thefe fcan- 
 dalous words. 
 
 But, when the Lords were bringing char- 
 ges againft the Commons for the hardfhip in 
 keeping impeachments fo long depending, 
 none of which had depended three months; 
 would they not have reminded them* and 
 upbraided them with the impeachment of 
 the Duke of Leeds, if they had not thought 
 it was totally terminated and extind: ? And; 
 when they were at open war with the 
 Commons, for two months delay, in the 
 cafe of the reft of the Lords, would they 
 not have infinuated that the Duke of Leeds 
 had experienced fome degree of hardfhip 
 for the fpace of fix years ? 
 
 But the Commons were refolved not to 
 profecute, and the Lords were refolved 
 not to difmifs. Lord Orford and Lord 
 Somers had been put to the bar ; and no 
 profecutors appearing, they were acquitted. 
 
 On
 
 ( 55 ) 
 
 On the laft day of the feffion, the charge 
 againft Lord HaverQiam, and the impeach- 
 ments againft Lord Portland and Lord 
 Halifax, are difmiffed ; and that of the 
 Duke of Leeds, who had never appeared, 
 or had been heard of for fix years before, 
 is added to the lift. From this account 
 of the cafe, is it poffible, that any candid 
 man can confider the Duke of Leeds's 
 Impeachment like that of the Earl of 
 Portland's or Lord Halifax's ? and will he not 
 think it a ftrong confirmation of Lord 
 Peterborough's cafe ; and that the Lords, 
 from their zeal t refift (and perhaps to 
 jnfalt) the Houfe of Commons, added the 
 Duke of Leeds to the lift, merely that he 
 might make a figure upon paper, though 
 they were convinced, in fact, he was a 
 perfect fhadow and non-entity ? And is it 
 within the fcope of human credulity to 
 fuppofe, that this was a deliberate deter- 
 mination and an unanimous refolution, 
 that this was necefTary to the abolition of 
 the Impeachment of the Duke of Leeds, 
 when they had given no previous notice to 
 
 the
 
 ( 56 ) 
 
 the Commons, which they had done re- 
 peatedly in every other cafe; and when, a 
 few years before, they had declared, almoft 
 una voce, that a diflblution determined an 
 Impeachment -, and when, a few years 
 afterwards, there was a moft ferious debate 
 whether a prorogation had not the fame 
 effed ? 
 
 The next and laft time that this queftion 
 came into difcuffion, was in the year 1717. 
 The Earl of Oxford and Mortimer had 
 been impeached of high treafon, and of 
 high crimes and mifdemeanors, on the 
 9th of July, 1715* when he was commit- 
 ted. In September afterwards, he an- 
 fwered, and the Commons replied and 
 joined iffue. On the 26th of June, 1716, 
 the Parliament was prorogued. On the 
 loth of February afterwards, the Parlia- 
 ment met after the prorogation, on which 
 day the Earl of Oxford prefented a petition 
 to the Houfe of Lords, praying their Lord- 
 fhips to take his cafe under confideration, 
 and that his imprifonment might not be 
 3 indefinite,-
 
 ( 57 ) 
 
 indefinite : upon which it was ordered, 
 that all the Lords mould be a Committee* 
 to fearch for and report fuch precedents as 
 relate to the continuance of Impeachments 
 from feflion to feffion, or from Parliament 
 to Parliament. 
 
 On the 25th of May, 1717, they report 
 as in the Appendix; and it is refolved by 
 the Houfe, that the Impeachment of the 
 Commons againft the Earl of Oxford was 
 not determined by the intervening proro- 
 gation of the Parliament. 
 
 From the Lords Debates, it appears that 
 the divifion upon this queflion was 87 to 
 45; fo that 45 Lords at that time were 
 of opinion that an Impeachment abated 
 by a prorogation. Ten Lords protefted 
 againft the refolution; and the mode of 
 reafoning, in the proteft of the diffentients, 
 is a ilrong authority with regard to a dif- 
 folution. 
 
 J " DifTen-
 
 " Diffentient, 
 
 " Becaufe there feems to be no difFe- 
 " rence in Law between a prorogation 
 " and a dilTolution of a Parliament, which, 
 " in conflant practice, have had the fame 
 " effect, as to determination, both of ju- 
 16 dicial and legiflative proceedings ; and 
 " confequently the vote may tend to 
 " weaken the refolution of this Houfe, 
 " May 22, 1685, which was founded 
 *' upon the law and practice of Parlia- 
 " ment in all ages, without one precedent 
 " to the contrary, except in the cafes 
 "which happened after the Order made 
 ** the 1 9th of March, 1678 ; and, in pur- 
 " fuance hereof, the Earl of Salisbury was 
 *' difcharged in 1690." 
 
 It is manifeft, from this proteft, that it 
 muft have been the decided and unanimous 
 opinion of the Houfe of Lords, that it 
 would have been determined by a difTo- 
 lution ; for it is here aflumed, as a firft and 
 uncontrovertible principle; and if the next 
 ftep were true, viz. t'iat there was no dif- 
 ference
 
 ( 59 ) 
 
 ference between a prorogation and a diflb- 
 lution, the conclufion of the diffentients 
 would have been a flri<5tlv mathematical 
 
 * 
 
 demonftration. 
 
 This argument has been greatly mifun- 
 derflood, and therefore I muft endeavour 
 to make my meaning more intelligible. 
 I afTert, that it appears from this pro- 
 teft, that it is manifeft, in the opinion of 
 the diflenting Lords, that the reft admitted 
 that a diflblution would determine an Im- 
 peachment ; for they argue thus : You ad- 
 mit, or it cannot be denied, that a diilblu- 
 tion determines it; but a prorogation is 
 equivalent to a diffolution ; ergo a proro- 
 gation determines it. I care not, whether 
 the fecond ftep and the conclufion are 
 right or wrong; but the argument incon- 
 teflably proves, that the diilentients thought 
 that none in their Houfe could controvert 
 the firfl ftep cr major of their fyllogifm. 
 
 Though I were ignorant of every propo- 
 
 iition of Euclid's Elements, or were con- 
 
 I 2 vinced
 
 ( 6 ) 
 
 vinced that every one of his conclufions 
 was falfe ; yet, if I faw that he began with 
 averting, that " things which are equal 
 " to one and the fame thing, are equal to 
 " each other;" and that the whole of his 
 geometry was built upon it ; I mould con- 
 clude that Euclid was convinced, that 
 every man in his time, who had a clear 
 underfhmding, aflented to that fimple pro- 
 pofition. But, fay the Gentlemen, who 
 deny the inference drawn from this pro-> 
 teft, it even proves our cafe j for we can 
 make as good an argument as the difTen-. 
 tients. We fay that it is decided, that a 
 prorogation does not put an end to it ; and 
 your proteft affirms there is no difference 
 between a difTolution and a prorogation ; 
 ergo, a diflblution does not put an end to 
 it : but they muft remember, when the 
 intermediate ftep was advanced, there were 
 87 to 45 again ft it - } fo it is near 2 to i 
 againft their conclufion. 
 
 I confefs, that none of the cafes pro- 
 duced by this Committee, appear to me 
 tx> prove much, except the firit, with re- 
 
 fpeft
 
 fpedl to the prefent inquiry: but Drake's* 
 cafe, in my mind, is a very ftrong in- 
 ftance to (hew the prevailing opinion of 
 the Houfe of Lords, in the year 1660; 
 for, after his conviction, by his pleading 
 guilty, the Lords muft neceffarily have 
 thought that the Impeachment would be 
 determined by the diffblution, and that 
 they could not give judgment in the next 
 Parliament without a frefh trial ; for, if that 
 had not teen their opinion, it is highly 
 probable they would have wimed to have 
 given judgment themfelves; and befides, if 
 it had not been at an end, I apprehend the 
 Attorney-General cold not have profecuted 
 for the fame offence, in the inferior Courts. 
 
 f- Fitzharris, who, though a Commoner, 
 was impeached by the Houfe of Commons, 
 in 1 68 1, for high treafon (another inftance 
 of the wild unconstitutional experiments 
 of thofe times), was indided, and pleaded 
 to the indidtment, that there was an im- 
 peachment pending againft him for the 
 
 fame 
 
 * Vide Appendix, 25 May, 1717. 
 I Harg. State Trials, Vol. III. p. 226
 
 fame crime. This plea was over-ruled by 
 the Court of Kings-Bench for defect in 
 form. But as the Lords afterwards rejected 
 the Impeachment of Fitzharris, the infe-. 
 rior Courts would now be juftified in 
 declaring fuch a plea bad, from the ineffi- 
 cacy or nullity of the Impeachment : but 
 where a perfon is impeached, before the 
 Houfe of Lords, of crimes of which they 
 legally and conftitutionally have cognizance, 
 the pendency of the Impeachment, I appre- 
 hend, might be pleaded in abatement to 
 an indictment ; otherwife this folecifm 
 would be the confequence, that a perfon 
 might be punimed in two different Courts 
 for the fame offence. 1 am aware that it 
 has been held*, that the pendency of one 
 indictment cannot be pleaded in abatement 
 to another, for the fame offence ; but I 
 fhould think that this mufl be confined 
 to indictments in the fame Court. 
 
 But, upon this fubject, as I find nothing 
 certain, I fpeak with diffidence : but it is 
 
 furely 
 
 * R. v. Stratton Doug. 228. Hawk. c. 34. 
 fcft. i. &c.
 
 ( 63 ) . 
 
 furely not unreafonable to fuppofc that the 
 Lords thought their jurifdiction at an end, 
 when they directed the Attorney-General 
 to commence a frefh profecution. 
 
 Peter Longueville* had been impeached, 
 but was never profecuted after the difTolu- 
 tion ; but eight of his afTociates had been 
 convicted, and heavily fined : fo the Com- 
 mons might reafonably think that preven- 
 tive juftice had been fufficiently fatisfied. 
 
 It is remarkable, that Lord Stamford's 
 feems to be the only cafe of an indictment 
 which was not profecuted with effect, in 
 the fame Parliament to which the indict- 
 ment was fent ; but, as it does not appear 
 that he ever was arraigned, or pleaded to 
 the indictment, I can hardly think that 
 any inference can be drawn from it. I 
 mould fuppofe, that an indictment, pro- 
 perly found by an inqueft of 12 men, can 
 never difcharge its office till it is quamed 
 by an act of the court, or the party has 
 pleaded to it. The words of the certioran 
 
 are, 
 * Vide Appendix, 25 May,
 
 . ( 64 ) 
 
 are, that " We * do command you (the 
 " Jufticcs of Oyer and Terminer), that} 7 ou 
 " do fend, under your feals, before us, in 
 " our prefcnt Parliament, all and fingular 
 " indictments, &c." Upon the return of 
 this writ, the indictment muft be in the 
 cuflody of the Clerk or cujlos rotulorum 
 of the Houfe of Lords -, and I mould 
 think that, without further certiorari or 
 mandate, the next or any Parliament might 
 proceed upon it, like a commiffioner of 
 goal-delivery, when the defendant is in 
 cuftody, upon the Coroner's in quell, or an, 
 indictment found at Quarter- Seffions ; and 
 I mould imagine, that there could be little 
 doubt but the Clerk of Parliament might 
 be directed, by certiorari, to fend this in- 
 dictment to the Court of the Lord High 
 Steward. 
 
 I fhall now confider fome cafes in the 
 pourts of Law, which are fuppofed to be 
 authorities upon this fubjecl:. I have given 
 
 the 
 
 * Vide the cafe of the Dutchefs of Kingfton. 
 . XI. Harg, State Trials.
 
 ( 65 ) 
 
 the cafe of Lord Danby at full length in 
 the Appendix ; but I do not fee what in- 
 ference on either fide can be collected from 
 it. The Court of King's Bench, it is agreed, 
 have a difcretionary power of 'bailing, even 
 in cafes of treafon or felony, perfons com- 
 mitted by the Houfe of Lords, when Par- 
 liament is not fitting; for circumfbnces 
 may appear, which may render it a debt of 
 juftice, that they mould be liberated from 
 confinement ; and there would be a failure 
 in the difcharge of that juftice, if fuch a 
 power were not veiled in the Court of 
 King's Bench. The next cafe is that of 
 Lord Salifbury, who had been committed 
 in a former Parliament upon an impeach- 
 ment for high treafon : his imprifonment 
 had been continued; and, upon an adjourn- 
 ment for two months, he applied to the 
 Court of King's Bench, to be bailed. His 
 counfel argued, that he ought to be bailed, 
 becaufe he was entitled to the benefit of an 
 act of pardon. The Court declared they 
 could take no notice of that ad:, becaufe 
 there were many exceptions in it. And 
 K with
 
 ( 66 ) 
 
 with refpect to the other ground, the Court 
 of King's Bench had never difcharged any 
 perfon committed by the Peers for treafon 
 or felony. And this queftion refpecling the 
 effect of a diffblution at that time, was cer- 
 tainly a doubtful point; as appears from the 
 iiibfequent inquiry and determination in the 
 Houfe of Lords, in this very cafe of Lord 
 Salisbury. And it was impoflible for the 
 Court of King's Bench to declare, that the 
 Lords jurifdiction was at an end, when the 
 proceedings in confequence of the order of 
 1678, had made it fuch a fubject of debate 
 and controverfy. But whatever might have 
 been the opinion of the Court, every psrfbn 
 muft think they acted with great propriety ; 
 as Lord Saliibury's imprifonment had been 
 continued by the Houfe after the diffolution, 
 and as they had only adjourned for two 
 months, when they remand his Lordfliip, 
 and recommend him to make an application 
 to thofe by whom he had been com- 
 mitted*. 
 
 The 
 
 * Vide Lord Salifbury's cafe at length, in the 
 Appendix, p. xlii.
 
 ( 67 ) 
 
 The next cafe is that of Peters and 
 fcing, which was a queftion, whether a 
 writ of error, under particular circumfrances,, 
 abated by a diflblution; in which it is ftated^ 
 that Lord Holt advanced that impeach- 
 ments continued after a diiTolution. From 
 the internal evidence of the cafe, bne 
 would conclude, that Lord Holt muft have 
 faid directly the reverfe, and that the re- 
 porter muft have omitted the negative par- 
 ticle. This may be thought an eafy wa^ 
 of difpofing of this extrajudicial dictum of 
 my Lord Holt* But I appeal to the candid 
 or to the moft uncandid reader, if there is 
 any confiftency in this, viz. " And per 
 " Holt, If an impeachment be in one Par- 
 " liament, and fome proceedings thereon, 
 *' and then the Parliament is difTolved, and 
 * e a new one called, there may be a conti- 
 " nuance upon the impeachment j and he 
 " quoted the cafe of James and Bertly/' 
 &c. in which a writ of error was deter- 
 mined by a prorogation. And the whole 
 tenor of this cafe is to prove that writs of 
 error determine by a diflblution, and that* 
 K 2 in
 
 ( 68 ) 
 
 in the year 1701, the Court of King's 
 Bench were not bound by the extra) udicial 
 order of the Lords in 1678. This incohe- 
 rent and heterogeneous report is given at 
 full length in the Appendix, p. xlvi. 
 
 Comyns's Digeft has been cited, where 
 this proportion is found, viz. " When a 
 " Parliament is diflblved, appeals or writs 
 " of error pending in Parliament do not 
 " abate by the diflblution, but the next 
 " Parliament fhall proceed upon them in 
 <( the flate which they were in at the dif- 
 " folution, without beginning de novo." 
 Ray. 383*. *' So an impeachment by the 
 " Commons is not altered by a diflblution." 
 Ray. 383.' 
 
 In Sir Thomas Raymond's Reports, to 
 which Comyns refers, it is mortly ftated, 
 that Lord Stafford applied to the Court of 
 King's Bench to be bailed ; and Mr. Juftice 
 Raymond fays, " we did not think fit, in 
 " diicretion, to bail him, and we alledged 
 
 " likewife 
 
 * Parliament, p, 2.
 
 ( 69 ) 
 
 *' likewife the orders of the Houfe of 
 *' Lords, though we did not rely thereon," 
 which are as followeth : and then the order 
 of 1678, &c. is ftated as in the Appendix. 
 
 So Comyns refers here to an author, who 
 fays the Court did not rely upon what they 
 alledged j and at beft, it is but an abridg- 
 ment of the order of 1678. Chief Baron 
 Comyns's Digeft is a moft valuable dictio- 
 nary ; but as every dictionary of language 
 contains many words which no good writer 
 or perfon of delicacy would adopt, fo every 
 dictionary of law contains many propofi- 
 tions which no experienced or judicious 
 lawyer would rely upon. Lawyers would 
 make ftrange confufion in the affairs of 
 their clients, if they gave them advice from 
 Comyns's Digeft, though it is the befl book 
 extant of its fort. It is intended only to 
 facilitate labour, by directing us where we 
 may find more information upon the fub- 
 jedt ; and our conclufions mufl be drawn 
 from a compreheniive and comparative view 
 
 of the authorities at length. 
 
 Chief
 
 Chief Baron Comyns is always regarded 
 as very high authority, when he gives his 
 own opinion, and refers to no other book j 
 but otherwife, his Digeft is nothing but an 
 alphabetical abridgment of the authors he 
 has read, without taking any refponfibility 
 upon himfelf. But it may be afked, why 
 does he not refer to the order of 1685? 
 Becaufe it is clear, that he had never un- 
 dertaken the arduous talk of reading over 
 the Journals of the Houfe of Commons and 
 Houfe of Lords, with an intent to make an 
 index or abridgment of them ; and moft 
 probably we mould have had no abftract of 
 the order of 1678, if he had not found it 
 in Sir Thomas Raymond's Reports ; and 
 even here, he makes no reference to the 
 Lords Journals. But notwithftanding this 
 abridgement, in direct contradiction to it, 
 two or three paragraphs afterwards, he tells 
 us, that " a writ of error is determined by 
 " a diflblution, and there mall be another 
 " writ of error at the next Parliament, 
 " 2 Cro. 342." And in the preceding 
 page, he informs us, t( That all orders, 
 
 " and
 
 ( 7' ) 
 
 " and every thing before Parliament, deter- 
 " mine by a prorogation, except a fcire 
 " facias and a writ of error.'' 
 
 But in oppofition to thefe fragments of 
 cafes, I might cite the authority of a very 
 learned author, who profefles to give you 
 what he thinks, upon mature and profound 
 deliberation, the befl law upon every fub- 
 ject he invefligates, and who did not intend 
 his work merely as an affiftant to ftudents 
 and practifers, but a rule of action for 
 Judges and Magiftrates ; I mean, Mr. Ser- 
 jeant Hawkins *. He fays, " All the or- 
 " ders of Parliament are determined by a 
 " diilblution or prorogation ; and all mat^ 
 *' ters before either Houfe mull be com- 
 * c menced anew at the next Parliament, ex- 
 <c cept only in the cafe of a writ of error." 
 
 In my opinion, all thefe cafes and quota- 
 tions prove exadly nothing at all; but, upon 
 a general review of the Precedents, it ap- 
 pears that there never was a cafe in which 
 
 the 
 
 * Bk, 2. c. 15. fed. 74.
 
 ( 7* ) 
 
 the proceedings of an Impeachment were 
 continued after a diflblution, before the 
 Lords made the Order of the ipth of 
 March, 1678; and that the cafes of Lord 
 Stafford and the other four Popifh Lords, 
 Lord Danby, and Sir William Scroggs, 
 were legalized by no authority but that Or- 
 der. The cafe of Lord Peterborough and 
 Lord Salifbury was decided, after a full in- 
 veftigation and mature confederation of 
 principles and precedents anterior to 1678, 
 and from a conviction that the three fubfe- 
 quent cafes had no legal and conftitutional 
 foundation : the authority alfo of this pre- 
 cedent derives fuch ftrength from the pro- 
 ceedings in my Lord Oxford's cafe, as to 
 bid defiance to every attack which induftry 
 or ingenuity can make againft it *. 
 
 But 
 
 * I fay nothing here of the Duke of Leeds's cafe ; 
 though, from the account I have given of it, 1 
 fhould fuppofe that it will be thought rather to cor- 
 roborate, than to weaken the authority of the deci- 
 lion in 1690.
 
 t n \ 
 
 fiut I mall endeavour to prove that this 
 cafe is itrongly fortified both by ancient 
 authorities, and by general principles. 
 
 I have already obferved, that in our re- 
 fearches into the records of Parliament, we 
 inuft be cautious in diftinguifhing, when we 
 find the fame perfon mentioned in different 
 Parliaments, whether it is a continuation of 
 the fir ft proceeding, or whether in the fub- 
 fequent Parliament it is not an original 
 tranfaftion. No one can be fuppofed to 
 have read the rolls of Parliament from the 
 beginning to the end 3 and therefore it is 
 impoffible to pronounce with certainty what 
 does not exift, or may not be found there. 
 But, among all the cafes which I have exa- 
 mined, the Archbimop's arraignment is the 
 only one, where there is a clear continua- 
 tion of the fame proceeding or profecutlon* 
 In all the reft which I have feen, where 
 the name is repeated in a fubfequent Parlia- 
 ment, a new and original proceeding is in- 
 ftituted. And from the time of Edward I. 
 L to
 
 A 74 ] 
 
 to the reign of Henry VI 1 1.* I have not 
 feen one petition which was prefented in 
 one Parliament, and anfwered in another ; 
 and through all the rolls of Parliament, till 
 that time, every Impeachment is in the form 
 of a Petition. 
 
 In the 5oth of Edward III. feveral per- 
 fons had been impeached, and various judg- 
 ments pronounced, according to the offence 
 or prayer of the petition. 
 
 In the new Parliament, in the 51 ft of 
 Edward III. after the petitions of the Com- 
 mons were read and anfwered, the Speaker 
 of the Commons informed the King and the 
 Lords, that feveral perfons had been im- 
 peached in the laft Parliament without due 
 procefs, and adjudged to undergo various 
 punifhments j and therefore he prayed, that 
 in this Jubilee Year they might be reftored 
 to their former eftate and degree, notwith- 
 flanding their judgments. The King alked 
 
 if 
 
 * The printed records of Parliament extend no 
 farther.
 
 [ 75 3 
 
 if his requeft extended to all who had been 
 impeached -, and having declared, to all, the 
 King ordered the Commons to make a bill 
 for each perfon, that he might extend his 
 grace to which he pleafed. Upon which 
 feven petitions or bills are prefented, in mod 
 of which it is ftated, that the perfon was 
 impeached in the lafl Parliament wrong- 
 fully and of great malice, and the bill prays 
 that he may be included in the pardon. 
 After thefe petitions, there is this remark-' 
 able memorandum : 
 
 Fait a remembrer que en ceft Parlement 
 nulle refponce efloit faite par les ditz Seig- 
 n'rs a les dites fept Billes cy deiTus pro- 
 {cheinement efcritz, ne poet ejlre a caufe 
 qiie le dit Parlement s'eftoit defiartiz & finiz a 
 mefme lejour, devant querienz ne fuft pluis 
 fait a ycelles. Here is a clear declaration 
 that no anfwer can be given to a petition 
 but in the Parliament in which it is pre- 
 fented, Though thefe petitions are here 
 called bills, yet they begin, like all the other 
 petitions, with Prie le Commune, or les 
 Communes priont, &c, 
 
 L 2 In
 
 [ 76 ] 
 
 In the 7th of R. II. n. 3. this entry is 
 made in the margin : ' Refponfio vacat, 
 < quia fie non placiiit Domino Regi pro 
 " tune illud concedere. Et ideo cancellatur 
 
 *' & damnatur." This proves, that if 
 
 parliamentary petitions were not anfwered 
 in the fame Parliament, they were cancelled 
 and void. In the 8th year of Henry V, 
 (Rot. Parl. n. 16.) we find a very remark- 
 able inftance, which proves, that the Com- 
 mons thought this an eftablifhed part of the 
 conflitution, and they feel great jealoufy 
 and apprehenfions that an innovation might 
 be introduced in confequence of an extraor- 
 dinary circumftance. While Henry was in, 
 France, the Duke of Gloucefter was ap- 
 pointed his Lieutenant, and Guardian of the 
 kingdom, arid a Parliament had been fum 
 moned by writs under the tefte of the Guar- 
 dian. Jn this Parliament feveral of the pe- 
 titions are anfwered, " Soit faite comme eft 
 defire, fi le pleft au Roij," and " Soit advifee 
 par le Rpi." 
 
 From
 
 [ 77 1 
 
 From thefc conditional anfwers the Com- 
 mons faw that it might introduce the cuf- 
 tom of anfwering petitions out of Parlia- 
 ment, or of refuming them in another Par- 
 liament ; and therefore to prevent this inno- 
 vation they prefent a petition, in which they 
 {late, that they are informed by feveral of 
 the Lords, that their petitions prefented in 
 this prefent Parliament were not to be en- 
 grofTed before they are fent into France to 
 the King for his royal affent : they therefore 
 pray that it may be ordained in this prefent 
 Parliament, that all the petitions prefented 
 In this prefent Parliament may be anfwered 
 within the kingdom of England during this 
 fame Parliament -, and if any petitions re- 
 main not anfwered, and not terminated 
 during this fame Parliament, that they 
 fhould be void, and of no erTec't ; and that 
 this ordinance may be obferved in every fu- 
 ture Parliament. Refponiio. Soit advifee 
 par le Roi.* Mere the Coiiimons pray that 
 their own petitions, if they are not abfo- 
 
 lutely 
 
 * This petition is fo deferving of attention, that 
 I have given it verbatim in the Appendix, xlviii.
 
 lutely concluded in the fame Parliament, 
 may never be refumed, but may be perfectly 
 void. And it clearly appears from the 
 former authorities, and from the nature of 
 this cafe, that this is a petition for the pre- 
 fervation of the ancient law, and not for 
 the introduction of any new regulation. 
 This anfwer feems to import the fame as 
 " Le Roi s'advifera," which has always been 
 confidered a negative. But as this ordi- 
 nance was intended to prevent, and not to 
 produce an alteration, of courfe the law and 
 ufage of Parliament remained as it was 
 before. 
 
 I have not obferved more than one pro- 
 rogation recorded in the Rolls of Parlia- 
 ment, before the time of Henry the Vlth; 
 but from the beginning of his reign, till 
 the end of the reign of Henry the Vllth, 
 there is a prorogation recorded in almoft 
 every Parliament, in Latin ; except in the 
 ad of Henry VI. it is in French. 
 
 But
 
 ( 79 ) 
 
 But what is mod extraordinary, and 
 what is a " confirmation ftrong as proofs 
 of holy writ," of this doctrine, that im- 
 peachments and all buiinefs in Parliament 
 end with a difTolution : in every proroga- 
 tion, one reafon affigned for the proro- 
 gation is, that the bulinefTes before Parlia- 
 ment, on account of their arduoujhefs, can- 
 not be difcuffed and finally terminated, before 
 Chriflmas, or fome other time, when it 
 becomes neceffary for the Members to re- 
 turn home ; therefore the King prorogues' 
 them to a future day, when they (hall 
 re-affemble, for \hzjina! conchifion and de- 
 termination of the faid buiinefTes. 
 
 For what poffible purpofe can this rea- 
 fon be affigned for a prorogation, but 
 becaufe every bufinefs muft be recom- 
 menced after a diflblution. It might be 
 conjectured, perhaps, that this was done to 
 fave time, as they might be prorogued to a 
 day before which they could not be con- 
 vened after a diflblution ; as, by the Magna 
 Charta of King John, ii was provided, 
 
 there
 
 there mould be 40 days between the tefte 
 and the return of the writ of fummons. 
 But that reafon fails, as in moft inftances 
 they are prorogued for more than 40 days ; 
 fometimes for two or three days more or 
 lefs than 40; but often for two, three, or 
 four months. In the firft cafe which I 
 have met with, 21 R. II. c. 36. this 
 reafon is afiigned thus : The King, con- 
 iidering that great caufes and matters moved 
 and pending in this Parliament, could not 
 be terminated at that time, and for other 
 reafons, adjourned the Parliament. Some- 
 times thus : e< Quod diverfis petitionibus 
 " in eodem Parliamento exhibitis, minime 
 <f refponfum fuerit, nee adtunc commode 
 " fieri potuerit, Rex, &c. didurn Parlia- 
 *' mentum prcrogavit." 31 Hen. VI. n. 20. 
 But in general, with very little variation of 
 expreffion, the Chancellor declares : " qua- 
 " liter negotia Parliament!, propter ipfo- 
 " rum negotiorum arduitatem difcuti non 
 *' poterant nee finaliter terminari, Dominus 
 " Rex prefens Parliamentum duxit pro- 
 ** rogandum, et prorogavit to a time and 
 
 " place,
 
 " place, when and where, pro final! con- 
 *' clufione negotiorum Parliamenti predifti 
 ** convenient." That there may be no 
 doubt that a prorogation was preferred to 
 a diflblution, to prevent the deftructive ef- 
 fects of the latter j in three inftances, at the 
 leaft, it is exprefsly declared : " qualiter 
 ts negotia per Communes, ante diffolutionem 
 " ejufdetn Parliamenti provident? ordinand' 
 " Gf notificand* adoptata, difcuti non pote- 
 " rant, nee finaliter terminari/' the Parlia- 
 ment is prorogued. 8 Hen. VI, n. 16 ; 27 
 Hen. VI. n* 10; 12 & 13 E. IV. n. 
 u. 
 
 There is generally a reafon affigned, why" 
 the Parliament fhould be difmifled, as 
 that the Noblemen might have leifure 
 to enjoy their recreations, and the Com- 
 mons, " circa congregationem frugum," 
 to collect their crops ; or on account 
 of the approach of Chriftmas or Eafter, 
 &c. but the reafon why they are difmifled 
 by a prorogation, and not by a diflblution, 
 is always this, that bufmefs is unfinifhed. 
 M In
 
 In one cafe, a particular bufinefs unfinifhed 
 is fpecified ; the record of which proro- 
 gation I have given at lengthen the Ap- 
 pendix, p. xlix. 
 
 The reader will now fee what ftrong 
 ground I had to intimate, that it was 
 probable that the Parliament might be pro- 
 rogued and not difTolved, on account of the 
 pendency of the arraignment of the Arch- 
 bifhop of Canterbury. But no diftin&ion 
 which I have been able to difcover, in the 
 Rolls of Parliament, is made in the petl- 
 tlo & negotium of an impeachment ; and 
 the other negotia & fetitlones before Par- 
 liament; and it will be incumbent upon 
 thofe who maintain that an impeachment 
 can furvive a diflblution, to point out when 
 and how that diftindion originated. My 
 Lord Coke cites his manufcript, Modus 
 tenendi Parliamentum, &c. which declares 
 " The Parliament ought not to be ended, 
 " while any petition dependeth undifcufled, 
 
 " or
 
 " or at the Jeaft, to which a determinate 
 " anfwer is not made."* 
 
 f- Prynne, with his accuftorned hoftility 
 to this manufcript, declares, " that though 
 " this is an ufual, it is no general binding 
 " law or cuftom; many Parliaments having 
 " been ended before all petitions in them 
 " have been anfwered ; yea, certain Lords 
 " and other Commiffioners, or the King's 
 " Council, have been appointed to anfwer 
 " after Parliaments ended ; and refers to 
 " various inftances :" but in all thofe in- 
 fiances, thefe Commiffioners were ap- 
 pointed by the authority of Parliament 
 itfelf. 
 
 After thefe authorities, we mould be a 
 
 little furprifed, if the proceedings in the 
 
 Duke of Suffolk's cafe, in the 28th year of 
 
 Hen. VI. were a contradiction to them. 
 
 M 2 But, 
 
 * 4lnft. ii. 
 f Prynne's Animadv. 15.
 
 But, upon a minute examination of that 
 cafe, I find, in every inftance, it is ftri&ly 
 conformable to this general dodtrine. 
 
 In the 28th year of Hen. VI. * the 
 Commons, by their Speaker, accufaverunt 
 et impetiti fuerunt Willie Imum De la Pole 
 Ducem de Suffolk, de quibitfdam proditioni- 
 bus, &c. prout in quadam B I L L A certos ar-> 
 ticulos continente magls evident er apparebit : 
 and they befeech, ut difla billa In 
 frcefinti Parliamento inaftitaretur ; and 
 that it might be proceeded ag'aiiift the 
 Duke in eodein Parliamento, according to 
 the law and cuftom of England. And 
 after ftating the articles, they conclude, > 
 ft And of all the treafons in thefe articles 
 " contained, we accufe and empecbe the laid 
 f< Duke of Suffolk, and pray, that this 
 t( be en4& 9 in this your High Court of 
 " Parliament, and thereupon to proceed, 
 " in this your prefent Parliament, as the 
 
 matters aforefaid require, 6cc." 
 
 They 
 
 * N. 18. 
 
 et
 
 ( 85 ) 
 
 They afterwards .prefer additional ar- 
 ticles, which they conclude as before. 
 The Duke anfwered the articles, but did 
 not afterwards put himfelf upon his Parage, 
 but fubmitted himfelf to the King's rule & 
 gouvernaunce. And the King ordered him 
 to be bammed the kingdom for five years ; 
 upon which feveral of the Lords requefted 
 to enter a proteft, that this was not done 
 by their advice and concurrence, and that it 
 might not afterwards be conlidered as a 
 
 precedent. 
 n 
 
 In the next year, the 2pth of Henry VI. 
 a new Parliament after a diflblution was 
 fummoned. The new Commons were dif- 
 fatisfied with the proceedings of the King 
 with refpect to the Duke of Suffolk in the 
 laft Parliament. But they do not demand 
 that he ihould be put upon his Peerage, ac- 
 cording to the articles of impeachment ex- 
 hibited in the formei; Parliament, and that 
 he mould be proceeded againft according to 
 the law and cuftom of Parliament, and that 
 ;a proper judgment Ihould be pronounced 
 
 upon
 
 ( 86 ) 
 
 upon that impeachment ; but they carry up 
 a petition, in which they ftate at length all 
 the former articles, and the procefs thereon, 
 and requeft that it may he granted, ordained, 
 and eftablimed, that the faid Duke mould 
 be deemed and declared a traitor. The 
 King anfwers, " Le Rois'advifera."* 
 
 This is clearly a bill of attainder, and as 
 much a new and original proceeding as Lord 
 Strafford's bill of attainder was feparate and 
 diftinct from his impeachment. So far I 
 wifhed to confider this cafe upon the autho- 
 rity of the records of Parliament folely ; 
 but if we can give credit to the chroniclers of 
 the times, this could not poffibly be a con- 
 tinuation of the impeachment : for at this 
 time the Duke had not only been banifhed, 
 but had been beheaded ; and this confe- 
 quently muft have been a bill of attainder 
 after his death. 
 
 Mod 
 
 * I have given the firft part of this petition or bill 
 verbatim in the Appendix, p. 1. ; the remainder only 
 ftates at large the confequences of the attainder as 
 forfeiture, corruption or" blood, &c.
 
 Moft of my readers will remember the 
 Duke of Suffolk and Captain Whitmore, 
 in Shakefpeare's Henry the Vlth. 
 
 But I fhall now examine how far the 
 decifionof 1690, and thefe ancient authori- 
 ties, are fupported by general principles. 
 
 Impeachment is a kind of criminal pro- 
 fecution, which modern times have reduced 
 to fyftem and confiflency. It is certainly 
 Jiii generis, and in many great points diffi- 
 milar and unanalogous to every other fpecies 
 of criminal procedure. The Houfe of Com- 
 mons, when they impeach, have been de- 
 nominated, by high authority, the * fokmn 
 Grand Inqueft of the Nation ; but this mud 
 be regarded rather as a compliment to exalt 
 their dignity, than an aflertion that, in rea- 
 lity, they exercife the function of a Grand 
 Jury, and are to be governed by the fame 
 rules. If we purfue the allegory (and in 
 truth it is nothing more), we mould degrade 
 the Lords to the lefs dignified character of 
 the Petty 'Jury of the Nation. 
 
 With 
 
 * Lord Hale, P, C. 150,
 
 ( 88 ) 
 
 With the fame propriety, the Attorney- 
 General, who ex officio can file an informa-* 
 
 ' *JJ 
 
 tion for a mifdemeanour committed in any 
 part of England, upon which the defendant 
 may be tried, without the intervention "of a 
 Grand Jury, might be called a Grand In- 
 queft of the Nation. The Commons, in 
 one cafe, like the Attorney- General in the 
 other, are, in every ftage of the pro- 
 ceeding, merely profecutors -, but, as they 
 profecute in the name of themfelves and all 
 the Commons of Great-Britain, they need 
 not require a more honourable appellation. 
 
 When they inquire whether there are 5 
 grounds to impeach, they do nothing more 
 than what is done by every confcientious 
 profecutor, who, with fcrupulous caution, 
 will convince himfelf that there is a juft 
 reafon, or probable caufe, to prefer the ac* 
 cufation ; and both from principles of 
 juftice, and the current of authorities, the 
 Hpufe of Commons are bound to admit the 
 party to go as far into his defence as he may 
 think proper, or be advifed. 
 
 But
 
 But though the Houfe of Commons are 
 the profecuturs who have joined iflue with 
 the defendant in an impeachment, I fhould 
 think it but a puerile argument, that the im- 
 peachment is at an end by the extinction of 
 that Houfe, as an action or an appeal abates 
 by the death of the plaintiff. All the Corn- 
 mom of Great Britain , whether the expref* 
 iion may be taken in the ancient fenfe of the 
 eleftors, or in the modern vulgar accepta- 
 tion of th? people at large, may be pre- 
 fumed, like the Kingj* never to die ; but* 
 as the new Houfe of Commons, and the 
 new Managers, may be fuppofed to be 
 perfect flrangers to the party, and 'to the 
 progrefs of the fuit, one would be apt 
 to fufpect that the profecution would 
 be an unconnected and incoherent per- 
 formance, unlefs the new Houfe adopted 
 the fame means to obtain information 
 as the preceding Houfe; that is, by an 
 N original 
 
 * Though, if one be indifted in the time of one 
 King, and plead to ilTue, and afterwards the King 
 dies, he fhall plead de novo. Co. 31. but nowton- 
 tra y by I Ann, c. 8*
 
 ( 9 ) 
 
 original inquiry: and how is it poflible 
 that thefe ftrangers can be convinced of 
 the juflice and propriety of the continua- 
 tion of the trial, but by an examination 
 of the whole Houfe, or a report from 
 their Committees, or, in ftiort, but by the 
 fame means by which the j.uftice and pro- 
 priety of its commencement at firft were 
 manifefted ? 
 
 Whatever is true when part of the Houfe 
 is changed, will alfo be true if the whole 
 were changed. The Members of the Houfe 
 of Commons have a right to infpect the 
 Journals of the Houfe of Lords ; but that 
 is a right which will not affift them upon 
 this occaiion -, for the evidence upon trials 
 before the High Court of Parliament is 
 never recorded. The Lords, upon the 
 prefent trial, have ordered it to be taken 
 down by clerks, and afterwards to be printed 
 for their own benefit. But they were not 
 -bound to make fuch an order ; rior can the 
 Houfe of Commons claim any advantage 
 from that circumftance j and therefore it 
 
 is
 
 ( 9* ; 
 
 is poffible that a new Houfe of Commons 
 may know nothing more, and have no 
 better means of procuring information, of 
 the progrefs of an impeachment unfinished 
 in a former Parliament, than they would 
 have of being acquainted with the circum- 
 ftances of a trial conducted before the 
 Court of Seffion in Scotland. If it (liould 
 be alledgedj that the former Managers 
 might inform the new Houfe by affidavits 
 I can only fay that the Conftitution has 
 provided no power to compel luch affida- 
 vits, or to give authenticity to them ; for 
 even if they were fworn before the Chan- 
 cellor and the Houfe of Lords, they would 
 only be wafte paper, and have no more 
 validity than a common letter ; nor is there 
 any power to compel the former Managers 
 to undergo an examination viva voce~at the 
 bar of the Houfe. But this certainly is only 
 an argument ab wconvenienti or ex abfurdo* 
 
 When we look back to ancient times, 
 
 we behold much confufion and obfcurity; 
 
 but yet there are certain objeds which 
 
 N 2 anti-
 
 ( 9* ) 
 
 antiquarians can diftinclly delineate : in 
 general they agree, that when the Com- 
 mons, or a certain number of the minor 
 Barons, or free tenants of the Crown, 
 were compelled by the King to attend the 
 High Cpurt of Parliament (a duty from 
 which they had before been exempted, and 
 a right which they feldom had had an incli- 
 nation to aflert), being too numerous, or too 
 diffident, to fit in the fame Houfe with the 
 Lords or greater Barons, they became hum- 
 ble petitioners to the King and to the Lords, 
 to redrefs the grievances with which they 
 and the country were opprefTed*. Their 
 petitions, either by ftating general com- 
 plaints, contained a prayer to provide 
 fneafures to prevent, or, by describing 
 particular offenders, a requeft to .puni(h 
 and correct ; and the grant of the petition 
 with Soit droit fait comme il eft dcfirc, or Le 
 Rot le veut, became the judgment of the 
 Court, or the law of the land. 
 
 The 
 
 * Les Communes prient a noftre Seigneur Roi, & a 
 fen Confol, &f. in the old Statutes and Records,,
 
 ( 93 ) 
 
 The one fpecies of petitions was the 
 prigin of Impeachments j the other, of 
 Acts of Parliament. Thefe are coeval, 
 and fo nearly related to each other, that 
 they ftill bear a ftriking refemblance. 
 Selden, in his Judicature of Parliament, 
 fays, that in ancient times the King ex- 
 prefled his aflent to the judgment in an 
 Impeachment for treafon or felony. The 
 conviction had then the declared concur- 
 rence of the Three Eitates of the Legifla- 
 ture.* In treafon and felony, the judg- 
 ment is defined by the Law -, but that 
 judgment, as in other Courts, cannot be 
 pronounced by the Lords till it is demanded 
 by the Commons ; and therefore, as they 
 poffefs this tranfcendent power of pardon- 
 ing immediately after the verdict, it would 
 be injuftice to the party, if the Commons 
 were not acquainted with thofe circum- 
 ftances which might recommend him to 
 
 that 
 
 * In all the old authorities, it is the King and 
 the Three Eftates : but I know no ufe in feparating 
 the Lords Spiritual from the Lords Temporal; it 
 Simplifies both the ideas and exprefllo'.i to call the 
 King, Lords, and Commons, the three Eftates.
 
 ( 94 ) 
 
 that benefit. In other cafes, the extent of 
 the judgment within certain limits is in 
 the difcretion of the Court ; but it muft 
 be previoufly demanded by the Commons. 
 This feems to have been well underftood 
 between the two Houfes fo Jong ago as the 
 ift Hen. IV,* when the Commons declare 
 that the judgments of Parliament appertain 
 folely to the King and to the Lords ; and 
 the King replies : Mefmes les Com- 
 * e munes font petitioners & demandours, 5c. 
 " que le Roi & les Seigneurs de tout temps 
 *' ont cues, & averont de droit les juge- 
 " ments en Parlement en manere come 
 " mefmes les Communes ount monflrez." 
 So, though the judgment is pronounced 
 by the Lords, jhe Commons are deman- 
 dours -, and if the execution of it is not 
 arrefted by the pardon of the King, it ftill 
 has the affent of the three Eftates of the 
 Legiflature, or fupreme power of the Na- 
 tion. 
 
 The Impeachment of a Commoner fre- 
 quently contains a confiderable portion 
 
 of 
 
 * Rot. Parl. p. 79.
 
 ( 95 ) 
 
 of legiflation j and it is generally undef- 
 ftood, that the two Houfes of Parliament 
 may create both a crime and jurifdidion 
 unknown to the Common Law, as admi- 
 niftered by the inferior Courts ;* for, till 
 the 1 3th of Geo. III. c. 63-)-, no offences 
 
 what" 
 
 * The Houfe of Lords, in Fitzharris's cafe, re- 
 jected the Impeachment for treafon, in conformity 
 with the declaration of the Barons, in the cafe of 
 Simon Bereford, 4 Ed. IIF. 4 Bl. Com. p. 259; be- 
 caufe he was not their peer, and other Courts were 
 competent to bring him to juftice : but they have 
 never declared that they will not receive an Im- 
 peachment for a mifdemeanor cognizable in the in- 
 ferior Courts by indiftment or information. In- 
 deed, there feem to be feveral cafes to the contrary* 
 Drake's cafe clearly proves that the libel was fuch, 
 that the Lords thought that the Attorney-General 
 might profecute : Dr. Sacheverell, I apprehend, 
 might alfo have been proceeded againft by in- 
 diftment or information. This difference of con- 
 duel: in cafes of felony and mifdemeanor, is not, I 
 think, eafy to reconcile. 
 
 -^ This aft contains a feftion which provides, 
 that, when the Chancellor, or Speaker of the Houfe 
 of Commons, fhall fend to India for evidence, no 
 bill, or other proceeding depending in Parliament, 
 fhall be determined by a prorogation or diffolution,
 
 ( 96 ) 
 
 Whatever, except murder, committed in 
 India, were cognizable in the ordinary 
 Courts of Juftice in England; but, if any- 
 atrocious or ruinous aft had been committed 
 there by a Britifh fubjecl:, the perpetrator^ 
 I conceive, might, in all times, have been 
 compelled to arfwer for it as a high crime 
 and mifdemeanor , in an Impeachment be- 
 fore Parliament. 
 
 I pfemife this parity in the origin, and 
 fimilarity in the excrcife, of the legiflature 
 and judicature of Parliament, to fuggeft, 
 that, in doubtful cafes, we may fairly draw 
 an inference from the one to the other, and 
 conclude, that if the two Houfes, after a 
 diffolution, have not power to complete an 
 imperfect Act of Parliament, they have not 
 jurifdiction to continue an unfinimed Im- 
 peachment. 
 
 This 
 
 till the evidence arrives : but the claufe is drawn 
 with great caution, to prevent Parliament from ex- 
 preffing any opinion relative to an Impeachment. 
 So, from this aft, no argument qan be raifed.
 
 ( 97 ) 
 
 This may be thought to prove nothing, 
 by proving too much, as it would make 
 Impeachments either determine by a pro- 
 rogation, or an unfinimed ftatute continue 
 \nftatu quo after a prorogation. There can 
 be little doubt but this ufed to be the cafe 
 with public ftatutes ; and it is only altered 
 by a refolution of each Houfe not to aflent 
 before the King to a bill which had not 
 patted the other Houfe in the fame feflion. 
 And, that the Houfe of Commons may 
 not be furprifed when the King convenes 
 the two Houfes in full Parliament, the 
 Lords always previoufly fend a meflage to 
 the Commons, to inform them that a bill 
 fent.from them has palled through the 
 ceremonies of their Houfe ; and it after- 
 wards receives the joint attent in the Aflem- 
 fcly of all the Eftates. That the King could 
 have given his aflent to a bill patted the 
 two Houfes any number of feflions before, 
 provided it was in the fame Parliament, is 
 clear from Brooks's Abridgment,* where* 
 
 this is laid down : 
 
 O " If 
 
 * Title Parlement, pi. 86, 33 Hen. VIII.
 
 ( 98 ) 
 
 " If there be divers feffions in one Par- 
 liament, and the Klngjigns not a bill till 
 <* the loft, then all is but one and the fame 
 " day, and all fhall have relation to the 
 " firfl day of the firfl feffion > and the firft 
 " day and the lafl are but one Parliament, 
 cc and one and the fame day, unlefs fpecial 
 " mention be made in the act when it 
 4C (hall take its force : but every feffion 
 <* wherein the King figns bills is a day by 
 " itfelf, and one Parliament by itfelf, and 
 '< fhall have no other relation but to 'the 
 c fame feffion," 
 
 But fo late as the 38th Hen. VI* we 
 find an impeachment anfwered by the King 
 precifely in the fame words by which he 
 gives his negative to a public flatute. 
 
 The Commons impeach Lord Stanley 
 for not bringing his tenants to fupport the 
 King, and becaufe his brother had joined 
 the Earl of Salifbury at the battle of Blore- 
 heath. The Impeachment begins thus : 
 
 '' TP 
 * N. 38.
 
 ( 99 ) 
 
 " To the Kyng our Soveraigne Lord. 
 *' Shewen the Commons in this prefent 
 ** Parliament aflembledj" and then it ftates 
 the articles, and concludes : " Of all which 
 lft matters doon and commytted by the faid 
 *' Lord Stanley, we youre faid Commons 
 *' accufe and empeche hym, and pray your 
 kt mooft high Regalie that the fame Lord 
 <* be commytted to prifon, there to abide 
 " after the fourme of lawe." To which 
 the King immediately anfwerfc, LeRoi sad- 
 vifera* 
 
 Some gentlemen have thought that per- 
 haps the record may remain in force, like 
 the record of an indidment, or of an in- 
 queft -y but they will fee that it has never 
 been treated as fuch, except between the 
 years 1678 and 1685 : but it has always 
 been conlidered a parliamentary record, or 
 like the record of a ftatute, which, unlefs 
 determined in the fame Parliament, acord- 
 ing to the words cited before, cancellatur 
 & damnatur. 
 
 O 2 Bat
 
 y 
 
 fiut the great principle upon which all 
 proceedings depending in Parliament are 
 or were determined by a diflblution, is 
 this, viz. that the writ or commiffion by 
 which the Court fat and exercifed jurif- 
 didtion, is at an end. It cannot but be 
 obferved with what reluctance the two 
 Houfes of Parliament acknowledge any 
 kindred or connection with the inferior 
 Courts. They confider it an humiliating 
 circumftance to have any principle in com- 
 mon with a quarter- feffions : but there arc 
 certain principles which pervade the whole 
 fyftem of law, like certain principles in 
 nature which extend throughout the uni- 
 verfe. It is no diminution to. the fplendor 
 of a diamond, that it owes its weight to 
 that principle which gives a proportionate 
 degree of gravity to a pebble ; and we are 
 told that the father of our philofophy, by 
 obferving that an apple was drawn to the 
 earth, juilly concluded that, by the fame 
 principle, the plants muft be drawn towards 
 the fun. But as it is generally fuppofed that 
 the Courts at Weflminfler were originally 
 
 only
 
 only committees from the Aula Regis, or 
 the High Court of Parliament, the two 
 Houfes need not be amamed if they find 
 there preferved entire thofe principles, 
 which were at firft derived from them- 
 felves. The Barons of the Exchequer 
 ftill retain their primaeval title. It has 
 been a common obfervation in every com- 
 pany, that, as the Houfe of Lords is a 
 Court of Record, their proceedings muft 
 continue in Jlatu quo, like the proceed- 
 ings of the Courts at Weftminfter, and the 
 Court of Quarter-Seffions. 
 
 I am inclined to think, too, that the 
 continuation of the proceedings in all 
 Courts ought to be precifely the fame, 
 unlefs a fatisfaclory reafon can be affigned 
 for the difference; and, by the Common 
 Law, I apprehend, the High Court of Par- 
 liament, the Courts at Weftminfter, the 
 Court of Quarter-Seffions, and perhaps 
 all other Courts, were fubjeft to the fame 
 rules, with regard to the commencement 
 and termination cf their jurifdiclion: but 
 
 feveral
 
 feveral Afts of Parliament have made regu- 
 lations in the Courts of Weftminfter and 
 Quarter-Seflions, which have not extended 
 to the Court of Parliament itfelft 
 
 It is a general principle in the Englifh 
 Law, that the King is the fountain of all 
 jurifdiftion, and that all Judges derive 
 their authority from him by commiflion or 
 writ; which words are frequently, upon 
 this fubject, fynonymous* : and it is alfo 
 another general principle, that, upon a re- 
 Vocation or dillblution of that commiflion, 
 all caufes and proceedings before the Judges 
 appointed by it, were determined, and 
 muft be commenced de novo before their fuc- 
 ceflbrs. This latter principle feems to be 
 grounded upon a fundamental rule of juf- 
 tice, that no Judge (hall condemn whom 
 he has not heard, or whom he has but par- 
 tially heard ; and the proceedings before 
 his predeceffor muft, with refpecT: to him, 
 be confidered cor am non judice. Upon the 
 death of the King, all commiflions were 
 
 dif- 
 * 2 Hawk, ao.
 
 diflblvedj and confequently, all writs an4 
 caufes pending before the commiflioners 
 abated, and muft have been inftituted 
 afrefh. Chief Baron Comyns fays, " At 
 * f Common Law, all actions abated by the 
 '* demife of the King, and the defendant 
 " went without day."* Much learning 
 upon this fubject, may be feen in the 
 firft chapters of 2 Hawkins's Pleas of 
 the Crown ; 7 Coke's Reports 30, where 
 there is a chapter upon the difcontinuance 
 of procefs, by the death of Queen Eliza- 
 beth ; and the ftatute of i Ed. VI, c. 7, 
 which, by its provilion for the future, will 
 give the reader a perfect idea of the effect 
 of the dilfolution of a commiffion, in the 
 inferior Courts, by the Common Law. By 
 virtue of commiflions from the King, the 
 Judges of the different Benches at Weft- 
 
 minfter 
 
 * And therefore difcharged. Thefe are Chief 
 Baron Comyns's own words. Coin. Dig. Abatement, 
 H. 38. It is remarkable that all judgments of ac- 
 quittal do not fay the defendant is innocent, or 
 difcharged, but quod eat fine die, or {hall go without 
 a day; /. e. any further time fixed for his re-ap- 
 pearance in Court.
 
 ( 104 ) 
 
 minder, and the Juftices of the Peace, 
 exercife their authority. The Terms at 
 Weflminfter, and Quarter-Seffions in the 
 country, are only prefcriptive or ftatutable 
 times, from which and to which they con- 
 tinue and adjourn their jurifdiction; but, 
 whenever their commiffions expired, all 
 caufes before them were determined. By 
 the Common Law, a new commiflion of 
 the peace was a fuperfedeas to, or a difib- 
 lution of, the former commiflion, and all 
 bufmefTes pending before the Juftices muft 
 have been at end; for it is exprefsly pro- 
 vided, by i Ed. VI. c. 7, that no procefs 
 mall be difcontinued by the grant of a new 
 commiffion.* The fame is alfo provided 
 with refpect to feveral other commmif- 
 fions. 
 
 In confequence of feveral acts of par- 
 liament, intended to fecure the indepen- 
 pendence of the Judges, and the perma- 
 nence of their proceedings, the commif- 
 fions of the four Judges of any one Bench 
 
 can 
 See alfo 1 1 Hen. VI, c, 6.
 
 Can hardly ever be annulled at once, and 
 the act of any one of them is efFectual-f- ; 
 but, if all the Judges, for inflance, of the 
 Court of King's-Bench, mould die before 
 a new patent was granted, I apprehend, 
 that all actions and profecutions would be 
 as much determined as they were by the 
 demife of the King, before i Ed. VI. c. 7. 
 Commiffioners of Oyer and Terminer mud 
 both hear and determine the whole of a 
 profecution before them; and confequcntly 
 the Commiffioners, under one commiffion, 
 Can have no cognizance whatever of what 
 
 .paHed under thofe appointed by a former 
 commiffion. Commiffioners of Gaol-De- 
 
 , livery can try a prifoner upon the Coroner's 
 Inqueft, or upon an Indictment found by 
 the Grand Jury at the Quarter-Seffions ; 
 but, by the Common Law, if a prifoner 
 had been tried by a Commiffioner of Gaol- 
 Delivery, and had been found guilty by 
 the jury, but no fentence had been palTed 
 upon him, the next Commiffioner of 
 Gaol-delivery had no authority to pro- 
 P n ounce 
 
 * 
 
 2 Hawk. 3.
 
 nounce judgment; and, if he had been put 
 again upon his trial, he might, it feems, 
 have pleaded autrefoits consist ; for the 
 " plea * of autrefoits convitf, or a former 
 " conviction for the fame identical crime, 
 " though no judgment was ever given, or 
 " perhaps \#ill be (being fufpended by the 
 " benefit of clergy, or other caufes,) is a 
 " good plea in bar to an indictment ; and 
 " this depends upon this principle that 
 " no man ought to be twice brought in 
 " danger of his life for one and the fame 
 " crime/' 
 
 Therefore, when a felon had been con- 
 victed by a verdict, if the Judge had neg- 
 lected' to pronounce judgment upon him 
 before his commiffion expired, the convict 
 mult afterwards have been difcharged, for 
 he could neither be fentenced nor re-tried 
 by another Judge; and therefore, to pro- 
 vide againft this cafe (probably fome re- 
 markable inftance had occurred), it is ex- 
 
 prefsly 
 
 4 Bl. Com, 336.
 
 prefsly enabled by i Ed. VI. c. vii, f. 5, 
 ** that the Juftices of Gaol-Delivery (hall 
 " have full power and authority to give 
 " judgment of death againft fuch perlbn 
 " fo found guilty:" and My Lord, Coke 
 fays, " Before this aft, at the Common 
 *' Law, if a man had been indicted and 
 " convicted by verdict or confeffion, before 
 '* any Commiffioners, and, before judg- 
 " ment, the King died, in that cafe no 
 " judgment could have been given; for 
 " the King, for whom the judgment 
 " fhould have been given, was deadj and 
 " the authority of the Judges who Jhould 
 " give judgment , was deter mined -, and this 
 *' adl doth remedy thofe fpecial cafes. * 5> 
 
 The reader's mind cannot but anticipate 
 the application of thefe general and exten- 
 five principles to the writ, or commiflion, 
 by virtue of which the High Court of 
 Parliament is conftituted. When the King 
 P 2 has 
 
 * 7 Co. 30.
 
 has ordered * quoddam parliament um nof- 
 tnun teneri, or, a certain Parliament to be 
 bolden, each Peer has a right ex debit o juj- 
 titi<z to a writ of fummons ; but he has 
 no inherent legiflative," or judicial capacity 
 annexed to his perfon ; and till he has 
 received his writ of fummcns, or commif- 
 iion, he has no right cither to a voice or 
 feat in Parliament: to this commiflion, he 
 owes his authority; and that power which 
 can create, can at any lime deflroy; fo the 
 jurifdidion of the Lords, like the jurif- 
 diction of all Judges and Juftices by the 
 Common Law, can, at any time, be de- 
 termined by the act, or the death of the 
 King-)-; and before the triennial act, like all 
 other commiilions by the common law, it 
 had no other limit. From the hereditary 
 rio;ht of each Lord to a writ of fummons 
 
 O 
 
 when a Parliament is convened, many ima- 
 gine that it mull: be an hereditary, or rather 
 
 an 
 
 * Thefe have been the words, in all times, both 
 in the Lords' writs and Commons' writs. 
 
 "}~ Ey 6 Ann. c. 7. continued iix months after- 
 wards.
 
 ( 109 ) 
 
 an eternal court. But from this it would 
 follow, that they might be a court inde- 
 'pendent of the Commons, or independent 
 of any commiffion. This is a right which 
 may be waved, and an obligation which 
 may be difpenfed with. And no Lord can 
 exercife any judicial or legiflative ac~l but 
 when he is pofTefTed of hi' commiffion, or 
 writ of fummons. It is no argument, to fay 
 that their proceedings ought to continue in 
 Jlatu qitOj becaufe they are the fame per- 
 fons j for the fame Judges might, upon a 
 vacancy of their cornmifiions, have been re- 
 appointed to the fame bench : yet we have 
 feen, by the Common Law, every caufe 
 muft have been re-heard. 
 
 And, in fa<t, the prefent Houfe of Lords 
 may confifl of entirely different members 
 from the' next Houfe of Lords; for, one 
 half might either not infill upon having 
 their writs of fummons, or might be ex- 
 cufed their attendance in one Parliament, 
 and the other half in another. 
 
 With
 
 With regard to the probable change 
 among the Scotch Peers, no argument 
 can be drawn from that circumftance, be- 
 caufe, whatever was the law upon the 
 fubjecl:, before the year 1707, it was not 
 intended to be altered by the Act of Union 
 with Scotland. 
 
 If the queftion was nearly in equilibria, 
 perhaps the convenience or inconvenience 
 of prefent circumftances, might caufe one 
 fide or the other to preponderate. 
 
 From thefe principles, we fee the diffe- 
 rence of the effect of a prorogation and 
 difToliuion; for, after a prorogation, the 
 Lords and Parliament ftill fit under the 
 fame commiffion, and a prorogation is 
 exactly fimilar to an adjournment from 
 term to term, and from quarter-feffions 
 to quarter-feffions*. 
 
 The 
 
 * I Lord Raymond, 343. Treby, Chief Juftice, 
 and the Court, declare, that the principal of the 
 Parliament is the King ; and when he comes to 
 
 meet
 
 f I" ] 
 
 The diflblution of Parliament imports 
 the fame as the diflolution of every other 
 Court, by the abrogation of the commif- 
 ilon. We have feen before, from an autho- 
 rity out of Brook, that a Seffion of Parlia- 
 ment is, in law, confidered all one day. 
 So the term at Weflminfler, from the be- 
 ginning to the end, is all reckoned but one 
 day. 
 
 Hence alfo, we may form a reafonable con- 
 jecture,] how the words " Le Roi s'avifera" 
 came to imply a negative, which are pre- 
 cifely the fame in their primary fignifica- 
 tion, as the words which have been always 
 ufed by all the Courts at Weftminiter, 
 when they took time to confider of their 
 
 de.cifion, 
 
 meet the two Houfes, then the Parliament begins. 
 And this refembles the holding of other Courts, 
 viz. when the Judges come, the Court is faid to be 
 held. The adjournment of the Houfes is the aft 
 of each Houfe : but when the Parliament is ad~ 
 "ourned by the King, they call it a prorogation. 
 Heretofore adjournments and prorogations were 
 
 looked upon as the fame thing, but the effefts o>' 
 
 them are very different at this day.
 
 [ 112 ] 
 
 decifion, viz. curia advifarevult. Le Rot 
 sadinfera import nothing more; and it is 
 probable, that originally they only became 
 an abfolute negative, when the King had 
 deprived himfelf of the power of alTent- 
 ing, by annihilating the Court and all its 
 unfinimed proceedings. 
 
 i 
 It is true, that writs of error, and 
 
 the Scotch and other appeals, now remain 
 injlatu quo, after a diflblution; bat I con- 
 ceive this practice has no other foundation,, 
 but the extraordinary Order of the i9th of 
 March> 1678, which was only reverfed and 
 annulled as to Impeachments ; for, in the 
 cafe of Heydon v. Godfalve, Cro. Jac. 342. 
 Croke fays exprefsly, that the " Court all 
 *' held (of Whom Lord Ccke was one), that 
 " a writ of error in Parliament is, by the 
 ' diflblution of the Parliament, deter- 
 
 " mined."* 
 
 Before 
 
 * Lord Hale fays, If the Parliament be diflblved 
 before judgment affirmed or reverfed, then the writ 
 of error is wholly diicontinued and abated. MSS. 
 p. 167.
 
 ( "3 ) 
 
 Before the Lords made this order in 
 1678, every Writer, Lawyer, Judge, Com- 
 moner, and Peer, concurred, without a fin- 
 gle difienting voice, that a writ of error was 
 determined by adiflblution of Parliament. 
 
 It is faidj that there is a principle efta- 
 blifhed in this order of 1678, refpecting 
 writs of error, which may now be extended 
 to any other fpecies of judicial proceeding. 
 The only principle I can difcover in it, is 
 that of encroachment and ufurpation ; and 
 becaufe you have done one uncontroverti- 
 ble and flagrant acl: of ufurpation, you may 
 fafely venture to do another* 
 
 But had the order of 1678 been as confo- 
 nant, as it is manifeftly repugnant, to every 
 authority with regard to writs of error, I 
 jfhould hardly think that any conclufion can 
 be drawn, applicable to an impeachment, 
 from the practice in a writ of error, merely 
 becaufe they are both judicial; for not 
 Only in thofe parts in which they are fiip- 
 pofed to correfpond, but in every other 
 
 circum-
 
 ( "4 ) 
 
 circumftance, they are fo totally diflimilar, 
 that no two things in nature are fo unlike. 
 And you might with the fame propriety 
 pronounce upon the elegance and fym- 
 metry of a fine lady, from the form and 
 proportions of a whale, becaufe natu- 
 ralifls have placed them together in the 
 fame clafs of Mammalia. 
 
 This practice, with refpect to appeals and 
 writs of error, may be very ufeful and con- 
 venient; but it ought to have been intro- 
 duced hy an act of the Legiflature, and not 
 by the arbitrary^/ of the Lords them- 
 felves. It would be highly confident with 
 the dignity of the Houfe of Commons, and 
 conducive to the general interefts of the 
 kingdom, that they mould examine wit- 
 nefles upon oath ; but it is to be hoped, 
 that no oath will ever be adminiftered 
 there without the fanction of an Act of 
 Parliament. That fingle inftance might 
 be wholefome and falutary; but, if they 
 could do one lawlefs act for our benefit, 
 
 they
 
 they might do ten thoufand for our de- 
 ftruction. 
 
 No one, I think, can doubt that the 
 Court of the Lord High Steward begins 
 and ends with the High Steward's com- 
 miflion, and therefore, if the commiffion 
 mould be diflblved before the conclufion of 
 the trial, that it would be completely ter- 
 minated - f and I mould even think that the 
 indictment would be fo annulled, that, if 
 the trial of the Peer could be re-com- 
 menced, a frefh indictment mufl be found 
 by a Grand Jury. This is a cafe which 
 might eafily happen, either by the death 
 of the High Steward, or by the death of 
 the King ; for the continuation of this 
 commiffion is not provided for by any Act 
 of Parliament. And if the High Steward 
 had proceeded with the trial till the Lords 
 triers had pronounced a verdict of guilty, 
 and then the commiffion had become va- 
 cated by death, if autrefoits convifl is a 
 good plea in bar, I fliould conclude that 
 the convicted Peer could not afterwards 
 receive judgment, nor confequently exe- 
 
 cution j
 
 cution ; and it would be precifely the cafe 
 already mentioned before a Commiffioner 
 of Gaol-delivery. And what difference can 
 be pointed out between a conviction before 
 the High Court of Parliament, if their 
 commiffion mould ceafe before judgment 
 is pronounced, and this cafe, I confefs, I 
 am unable to form a conjecture, 
 
 Mr. Juftice Fofter* has clearly mown, 
 that in time of full Parliament the 
 commiffion of a High Steward does not 
 conflitute any effential ingredient of the 
 the jurifdiction of the Court, and that the 
 Steward is appointed merely to add dignity 
 and folemnity to the occafion, 
 
 But ftill it muft be prefumed, that his 
 commiffion will be confiftent with the writ 
 or commiffion of the Peers -, and therefore 
 what is clear in the one, m iy fairly be 
 admitted to explain what is doubtful in the 
 other. Now the commiffion of the High 
 Steward, both in cafes of impeachments and 
 
 in- 
 
 * 141, &c.
 
 ( "7 ) 
 
 indi&ments before the High Court of Par- 
 liament, is exprefsly confined to the prefent 
 Parliament ; and the indifputable intent 
 and meaning is, that the party muft be 
 heard, examined, fentenced, and adjudged, in 
 one and the fame Parliament. The words 
 of part of his commiffion are thefe : " We, 
 4t coniidering that juftice is an excellent 
 " virtue, and pleafing to the Mod High, 
 " and being willing that the faid Eliza- 
 " beth,* of and for the felony whereof 
 " fhe is indicted as aforefaid, before us in 
 ** our prefent Parliament, according to the 
 *' law and cuftom of our kingdom of 
 " Great-Britain, may be heard, examined, 
 " fentenced, and adjudged, and that all other 
 " things neceffary may be executed, &c. 
 " we have ordained and conftituted you 
 " Steward of Great-Britain, &c. to execute 
 " for this time the faid office." 
 
 The fame words of coram nobis in $r<z- 
 fenti Parliamento audiatur, fententietur, & 
 
 adju- 
 
 * Duchefs of Kingfton, State Trials, Vol. XL 
 p. 198.
 
 atfjndicetur, are ufed in every High Stew- 
 ard's commiflion when a Peer has been im- 
 peached in the High Court of Parliament. 
 
 The words <s for this time," or pro 
 hac i)ice t certainly import that the High 
 Steward fhall execute his office during the 
 whole of the trial ; but the words in pr&- 
 fenti Parliament o adjudicetur re ft rain it to 
 the prefent Parliament : fo, if the im- 
 peachment or trial could continue beyond 
 the prefent Parliament, this dilemma would 
 enfue either the Steward does not execute 
 his office pro bac vice, or the party is not 
 in prcefinti Parllamento adjudicatus ; and 
 therefore a repugnancy would arife in the 
 commiffion, and one part of the King's 
 will muft neceilarily be frustrated,* 
 
 Thefe folemn and ancient records have 
 been held, by all Judges, in all times, the 
 flrongeft evidence of what the law is > and 
 
 it 
 
 * The reader would obferve, in the Duke of Suf- 
 folk's impeachment, that the Commons requeft, over 
 and over again, that the proceedings, &c. may be in 
 theprtfent Parliament, and this fame Parliament t &c.
 
 it can hardly be fuppofed that a commifiion 
 which has iflued upon the moll awful oc- 
 cafions, when every iota has been weighed, 
 a commiflion which has always been exe- 
 cuted by men of the moft profound learning 
 and fplendid talents in the State, a com- 
 miflion too tranfcendent in its powers ever 
 to be entrufted to a fubject, but when the 
 juftice of the nation calls for it, mould be 
 compofed in fuch a manner that any event 
 mould render it incongruous and abfurd ; 
 and therefore it is not too much to con- 
 clude that no fuch event can 
 
 There is one argument more which has 
 
 been adopted upon this occafion, which I 
 
 think it necefiary to take notice of before 
 
 I conclude, which is, that when the Par- 
 
 liament* took away the King's power to 
 
 protect his favourites by granting them a 
 
 pardon in the firft inilance, it virtually took 
 
 away the King's prerogative of putting an 
 
 end to the trial by a diffolution for it is 
 
 faid, the abolition of one is to no purpofe, 
 
 if the other remains. 
 
 '* 12 & 13 W. C. 2. 
 
 But
 
 But it is an invariable rule in the con- 
 ftruclion of ads of Parliament, that the" 
 rights and prerogatives of the King cannot 
 be altered or abridged by any ftatute, but 
 where the King and thofe rights are ex*- 
 prefsly and fpecifically named. All the 
 prerogatives of the King are facred trufts 
 repofed in him by the people, to be exer- 
 cifed for their benefit ; and that the two 
 Houfes of Parliament may never fteal from 
 the King thofe valuable depofits by an in- 
 ference or a ftratagem, the Conftitution has 
 wifely pronounced, that they fhall never, 
 in any degree, be affected, but when they 
 are fully and clearly defcribed. 
 
 And after the recent proceedings in the 
 year 1785, and the deliberate and almoft 
 unanimous decifion of Lord Salifbury's cafe, 
 this ftatute cannot poilibly be produced as 
 evidence that, as this prerogative was not 
 removed at the fame time, no one could 
 entertain an opinion that the King pof- 
 feffed it. 
 
 It
 
 It has been argued with much vehe- 
 mence, that it is fo dangerous a prerogative, 
 that it is impoffible fuch a monfter can 
 exift ; but many monfters have had exift- 
 ence in our government; and it is only 
 from their extirpation, by the arm of the 
 legiilature, that we enjoy our prefent hap- 
 pinefs and fecurity. 
 
 It has been defcribcd with all the force 
 and energy of eloquence, what a lament- 
 able and dreadful condition this country 
 would be in, if the King poifeiTed the pow- 
 er of preventing the impeachments of his 
 Miniflers by a diflblution ; yet it is an un- 
 queflionable and indisputable truth, that if 
 his Minifler mould be convicted of the moil 
 nefarious treafons againit his Sovereign, and 
 horrid machinations agamit the liberties of 
 his country, the King can the next moment 
 reftore him to credit, and to his iitua- 
 tion, as a public Minifter of that country 
 which he has irreparably injured, or at- 
 tempted to injure. The King can ruin ths 
 
 R country,
 
 ( 122 ) 
 
 country, and fave the greateft criminal from 
 impeachment, by never calling a Parliament 
 but once in three years ; and then, only for 
 the purpofe of proroguing them for another 
 three years : he can cancel all the criminal 
 laws, by pardoning all crimes -, he can de~ 
 bafe the public money; he can put his 
 negative upon the mcft falutary laws -, he 
 can appoint to public offices the worft and 
 mod ignorant of his fubjects : but, notwith- 
 ftanding the horrible confequences of thefe 
 infinite powers, they not only exift, but 
 they are peculiarly the favourites of the Peo- 
 ple of England. With perfect lecurity they 
 have repofed in the hands of the King, thefe 
 fovereign prerogatives, thefe dearefl of their 
 own rights ; convinced that a good King will 
 exercife them for their happinefs, and that a 
 bad King dare not exert them for their de- 
 ftrudtion. The principle of felf-prefervation 
 is a fundamental doctrine in the law of Eng- 
 land ; and that law which cautioufly re- 
 ft rains me from brandiming my fword Qver 
 the head of my Sovereign, or ofthemeaneft of 
 
 his
 
 his fubjects, permits me to wear it peace- 
 ably by my fide, andj when the occafion re* 
 quires it, to draw it for my defence. 
 
 However we may feel at the rude doctrine 
 of camiering Governors, or be charmed with 
 brilliant difquifitions upon the abdication of 
 Kings, I have always thought it a fact, too 
 plain to be made clearer by argumenr> 
 that the people of this country did de- 
 throne James the Second, and did elect 
 another King in his room ; and that af- 
 terwards, to provide a fucceflbr to Queen 
 Anne, they elected again one who had 
 no right by inheritance, who had no 
 right by previous election, and therefore 
 who had no more right than any other 
 man. 
 
 But they elected him and bis heirs, I hope, 
 I may add>y^r ever. The People of Eng- 
 land have experiencedtoo much happinefs 
 from that choice, ever to admit the idea of 
 another election, but as the laft melancholy 
 effort of desperation . 
 
 R 2 But
 
 ( 124 ) 
 
 But the whole hiilory of their anceftors 
 will inform our Kings, that it can never 
 conduce to their happinefs or to their fafety, 
 to outrage the feelings of their people. 
 
 Thefe 1 have always regarded as firft and 
 fundamental principles, which are only 
 dangerous when they are treated with wan- 
 ton nefs and levity. The Majefty of the 
 People (a grand expreffion, but brought in- 
 to contempt by familiarity) ought never to 
 be introduced but when the folemnity of 
 the occafion demands it, ' Nee Deus in- 
 " teriit, niii dignus vindice nodus incident." 
 This awful attribute of the people oughtto be 
 mentioned with a reverence, little lefs than 
 that with which we fpeak of the attributes of 
 the Deity : but there is a doctrine which can- 
 not be too familiar to our minds, and which 
 we cannot too much cherifh, viz. that, by the 
 aid of the King, we can at any time cafhier 
 and elect our Houfe of Commons. It is 
 this change which gives a perpetual motion 
 to cur Government, and preferves it incor- 
 ruptible and immortal. If the Commons 
 
 were
 
 ( 1*5 ) 
 
 were impioufly to attempt to repeal Magna 
 Charta, the Habeas Corpus Act, the Bill of 
 Rights, and all that is dear to an Englifli- 
 man, we mould find it a much more arduous 
 undertaking to compel a Houfe of Com- 
 mons, than to compel a King, to abdicate. 
 But we are fafe, while the King can liften 
 to the voice of his people, and can, in an 
 inftant, annihilate thofe in whom they can 
 no longer confide. 
 
 Charles the Firft never violated the Con- 
 (Htution more, by his oppofition to Par- 
 liaments, than by his compliance, when he 
 alTented to an act that the two Honfes of 
 Parliament mould difiblve themfrives. 
 
 Thefc are all the authorities and argu- 
 ments which have occurred to the Au- 
 thor of this Examination in the courfc 
 of his inquiry : and he can affure the 
 Reader that he has fupprefTed nothing 
 which he has thought material or re- 
 levant on either fide; and however erro- 
 neous his own obfervations and conftruc- 
 tions may be, he has flated nothing with 
 
 an
 
 ( 126.) 
 
 <m intent to miflead. The only prejudice 
 which he feels upon the fubject, is iri 
 favour of an opinion which he has collected 
 with fome degree of labour, and what 
 arifes from a natural anxiety to fupport 
 that opinion, and to convince others of 
 what he has convinced himfelf. And he 
 cannot but indulge a hope, however delu- 
 iive, that when this fubject is better under- 
 flood, the opinions of lawyers will b6 
 treated with more attention and refpecl, 
 or rather, he mould fay, with lefs fcorn and 
 contempt : but he can affirm, of himfelf, 
 that he is one who is folicitoufly deiirous of 
 being always thought a ftrenuous afferter of 
 the dignity and privilege of Parliament, and 
 a zealous advocate for the public juftice of 
 the Nation, but who, from fome attention 
 to the Englilh Conftitution, has taught 
 himfelf that in this Country nothing can 
 be public Jujlice t which is not administered 
 by the hand of the Law. 
 
 APPENDIX,
 
 APPENDIX. 
 
 Extrafts from the Journals of ike HOUSE of 
 LORDS. 
 
 ORDI 
 
 Die Mart is, il die Mar tit, 1672* 
 
 )ERED, by the Lords Spiritual and Tempo- 
 ral, in Parliament aflembled, That it be referred to 
 the Lords Committees for Privileges, to confider whe- 
 ther an appeal unto this Houfe (either by writ of error, 
 or by petition) from the proceedings of any other 
 court, being depending and not determined in one 
 feffion of Parliament, continue mjtatu qua unto the 
 next feflion of Parliament, without renewing the writ 
 of error, or petition 5 and report their opinion unto 
 the Houfe. 
 
 Die Sabbati, 29 die Mart li, 1673. 
 
 Upon report made by the Lord Widdrington, from 
 the Lords Committees for Privileges, &c, ' That, in 
 * purfuance of the matter referred to their Lordfhips 
 ' by order of the nth inftant (videlicet), whether an 
 ' appeal unto this Houfe (either by writ of error or 
 ' petition), or any other bufmefs wherein their Lord-
 
 U APPENDIX. 
 
 * (hips a& as in a court of judicature, and not If! 
 their legiflative capacity, being depending, and not 
 e determined in one feffionof Parliament, continue in 
 
 * Jiatu qut>) unto the next feffionof Parliament, with- 
 
 * out renewing the writ of error or petition, or be- 
 
 * ginning all anew, their Lordfhips confidered feveral 
 1 proceedings, both ancient and modern (which were 
 
 * produced to their Lordfhips at the Committee), iu- 
 
 * delicti : 
 
 * I. In general : Crompton, Parliament 9.O. A ge- 
 
 * neral rule for writs of error depending, to be con- 
 
 * tinued to the next Parliament, and the writ of Jcire 
 ' facias to be made then returnable. 
 
 * 2. In particular: 1 8 E. I. Placita Parliamentarian 
 p. 44 and 49, the cafe of William de Valentia and 
 
 * Ifabell Marefchall. William de Valentia had been 
 
 * impleaded, and put to anfwer, the Parliament before, 
 
 * which was presently after Chriftmas, at the fuit of 
 
 * Ifabell le Marefchall, for exercifing the office of a 
 Sheriff in the Hundred of Hoftereflegh, he pleaded, 
 
 * he did it in the right of his wife, and that he ought 
 f not to be put to anfwer without her : whereupon 
 
 * he had time given for him and his wife to appear as 
 
 * this day, at this Parliament, beginning three weeks 
 
 * after Eafter 5 and Ifabell le Marefchall had the famQ 
 1 time given to profecute. 
 
 * The fame year, p. 43, Hugh de Louther's cafe ; 
 
 * there being a queftion concerning; lands held in 
 
 * that had been formerly belonging to one 
 
 * Henry
 
 APPENDIX, lit 
 
 ' Henry de Edelyngthorp, then in the pofleffion of 
 
 * Henry de Louther as his heir j of which Thomas 
 
 * de Normanvill, the efcheator, was to give an. account 
 
 * this Parliament, for recovering of the King's right 
 
 * upon that defcent ; and one Adorn coming and lay- 
 ' ing claim to thofe lands, faying that he was right- 
 c heir, the efcheator is ordered to make inquifition 
 
 * into it by a Jury, ita quod ad proximum Parliamentum 
 
 * Pft feflum S 'ti Micbaelis diftintle et aperte inde re- 
 
 * fpondeat* 
 
 * 21 E. I. p. 1 60. Magdulphus Earl of Fife had 
 ' made his complaint, that John King of Scotland 
 
 * had unjuftly taken from him certain lands in the 
 ' county of Fife. A writ of fiire facias was thereupon 
 
 * directed to the Sheriff of Northumberland, to warn 
 4 the King of Scotland to appear before the King in 
 
 * Parliament fuch a day. The King of Scotland ap- 
 
 * peared, and made fome defence, which did not 
 ' fatisfy ; fo they were pronouncing judgment againft 
 
 * him : but, before it was pronounced, he defired 
 ' refpite till the next Parliament after Eafter, to advife 
 ' with his Council in Scotland ; and that then he 
 
 * would come (as he faid) et feray cs que fane devray 9 
 ' do what in duty he was to do. Upon which, day 
 ' is given him till the next Parliament, which was to. 
 
 * be after Eafter, in omnibus sodcinjlatu quo nunc. 
 
 * 30 E. I. p. 234, the cafe of William de Breoufe 
 ' and Walter de Pederton, conftable of Kermerdyn, 
 
 * touching the manor of Gower, for which William 
 
 * was fummoned in, to do fuit and fervice at the caftlc 
 
 a 2 ' ci
 
 hr APPENDIX. 
 
 * of Kermerdyn ; of which he had complained, and 
 
 * day had been given to all parties to appear next Par- 
 
 * liament : and then it was not determined, but re- 
 
 * ferred to a further hearing at the following Parlia- 
 
 * ment, which was to be held at Lyncolne, in Qttabis 
 
 * Hillarii'i and from thence, after fome debatings and 
 ' arguings, put off again to this Parliament, in the 
 
 * 3Oth of the King, in Off alls '/;' Johannis Baptijia^ 
 < where the bufmefs was more fully heard, and courfe 
 
 * taken in it. 
 
 ' The fame year, p. 605, fome merchants petition 
 6 in Parliament for fome debts owing to them, for 
 
 * which they have no other fhewings but the court- 
 
 * rolls, which are in the keeping of the ftewards and 
 
 * marfhals, officers to the King, before whom thofe 
 
 * recognizances were taken, who refufe to (hew them 
 ' without fpecial warrant ; whereupon they are or- 
 ' dered to bring all their court-rolls to the next Par* 
 
 * liament. 
 
 6 15 E. III. N. 8, 43, 49. The Archbifhop of Can- 
 
 ( terbury being arraigned in Parliament (according to 
 
 ' hisowndefire) before his peers; the Bifhops of Dur- 
 
 ' ham and Sarum, and the Earls of Northumberland, 
 
 * Arundell, Warwick and Salisbury, were appointed 
 to hear his anfwer, the fame to be debated the next 
 ( Parliament ; and all things touching his arraign- 
 ' ment to remain with Sir William of Keldefby, 
 4 keeper of the privy feal.
 
 APPENDIX. V 
 
 51 E. III. N. 96. Hugh Scaffolk, of Yarmouth, 
 
 * had been accufed, the Parliament before, of divers 
 c extortions j whereupon commiflion had been granted 
 
 * to the Earl of Suffolk and Sir John Cavendifh, chief 
 ' juftice, to examine the bufinefs ; and Sir John Ca- 
 
 * vendifh gave account in open Parliament, that by 
 
 * eighteen inquefts he had been found guiltlefs. 
 
 I R. II. N. 28. The Earl of Salifbury, William 
 
 * de Mountacute, brings his writ of error upon a 
 ' judgment in the King's Bench, by which Roger 
 
 * de Mortimer Earl of March, father to Edmond, had 
 
 * recovered from him fome lands in Wales. The 
 c record is brought into the Houfe by the Chief Juf- 
 ' tice, there to remain j and a fcire fac las awarded, to 
 
 * warn Edmond Earl of March to appear the next 
 
 * Parliament. The next Parliament, 2 R. II. N. 21, 
 
 * 22, 23, 24, the Earl of March appears 3 faith, the 
 
 * writ was not duly ferved, for that there was an 
 
 * error in the Sheriff's return ; Edmond Mortimer, 
 e his grandfather, being there faid to be an Earl, 
 f which he never was. The Earl of Salifbury, on the 
 
 * other fide, affirmed it to be a good return. So, there 
 ' being difficulty in the matter, and the Parliament 
 ' drawing towards an end, day was given to both par- 
 
 * ties till next Parliament, with all advantages 3 and 
 
 * the matter to ftand as now it doth. 
 
 * 7 R. II. N. 20. The Prior and Convent of Mon- 
 
 * tague complain of a judgement given in the King's 
 ' Bench, in behalf of Sir Richard Seymor, in which 
 
 * due form had not been obferved, and obtains to have 
 
 * thcMii
 
 VI A P P E N D I X, 
 
 e them amended-: then prays the whole judgment tor 
 
 * be reverfed, for certain errors ; and a fcire facia*) for 
 
 * Sir Richard to appear the next Parliament. All 
 6 which v^as ordered ; and the old procefs and record 
 ' to be at the fame next Parliament. 
 
 * 13 R. II. N. 15. Sir Thomas Methain brings a 
 c writ of error upon a judgment in the King's Bench, 
 
 * by which he was to pay five hundred marks to John 
 
 * Afke j and prays for a fare facias^ returnable the 
 
 * next Parliament, for Afke then to appear. Which 
 ' was granted. 
 
 * 15 R. II. N. 22. John Sheppy brings his writ of 
 
 * error for a judgment in the King's Bench, given in 
 
 * the behalf of the Prior of Huntington : ordered a 
 
 * fare facias , to warn the Prior to appear next Parlia- 
 
 * ment, to 'abide the order therein to be taken ; and 
 
 * the whole record and procefs to be then there. 
 
 * N. 24. Edmond BofTett prays a fcire facias , for a 
 c judgment given in the King's Bench, for feveral 
 ' lands in the county of Sommerfett, between the King 
 c demandant, and the faid Edmond deforcient. Upon 
 ' this petition, the fcire facias is granted; and it is 
 ' likewife ordered, that the matter fliall continue in 
 ' the fame ftate until the next Parliament. 
 
 ' 5 H. IV. N. 40. Roger Deyncourt complains of 
 
 * an' erroneous judgment given againft him in the 
 ' King's Bench, for Ralph de Alderley ; affigns the 
 
 * errors j then a fcire facias is granted, for Alderley to 
 
 3 ' appear
 
 APPENDIX. Vli 
 
 * appear next Parliament. The next Parliament, 
 6 H. IV. N. 31. this fcirt facias is returned tardt 
 
 * venit j fo a new one is granted, returnable the Par- 
 
 * liament after that, and the procefs to be continued. 
 
 . " 
 
 * I H. V. N. 19. Gunwardby complains of a judg- 
 
 * ment in the King's Bench, in behalf of John Wind-* 
 
 * for, for feveral lands in Cambridgeshire ; affigrrs the 
 ' errors j hath zfcire facias granted, to warn Windfor 
 
 * to appear at the next Parliament, to hear the record 
 
 * and procefs. 
 
 * 3 H. V. N. 19. Cathermaine prays zfcire facias 
 
 * againft William Hore and John Hore/ executors of 
 ' Thomas Hore, for an erroneous judgment given in 
 
 * the King's Bench, on the behalf of Thomas, uport 
 ' an adtton of trefpafs : it is granted, returnable the 
 
 * next Parliament. 
 
 * 21 Jac. 28 Mail. The Lord Chief Juftice brings 
 
 * into the Houfe the record of judgment given here 
 
 * in the King's Bench, in placito tranfgreffionis ft ejeftio- 
 
 * nis firm&) between William Macdonnagh plaintiff, 
 
 * and John Farrar defendant, for lands in Ireland. 
 
 * Macdonnagh makes Thomas Stafford his attorney, 
 
 * by a letter there produced, and proved by two wit- 
 
 * nefles. Stafford affigns the errors ; whereupon a 
 
 * writ is ordered, to go to the Chief Juftice of Ireland, 
 
 * requiring him to iffue out a writ of fare facias to 
 
 * the Sheriff of Wexford, to warn Farrar to appear 
 4 before their Lordihips at the next feffion of Parlia- 
 
 * ment,
 
 *Iil A P P E N 1 X, 
 
 ' ment, to hear the record and procefs of error irt (he 
 ' judgment given in the King's Bench in that caufe. 
 
 * The fame day, the Earl of Bridgwater reports from 
 
 * the Committee for Petitions, the opinion of that 
 
 * Committee upon divers petitions, of which his Lord- 
 
 * fhip did then give an account unto the Houfe ; and 
 
 * it was, That they fhould be retained in Jlatu quo 
 
 * until the next feflion of Parliament, which was or- 
 dered accordingly. 
 
 * Firft Parliament of King Charles the Second, 
 
 * 28 December, feveral petitions of Awbrey de Vefe, 
 c Earl of Oxon, Charles Earl of Derby, an-d Thomas 
 
 * Lord Windfor, were read, concerning the office of 
 
 * the Great Chamberlain of England j and the Lords 
 6 ordered, That the confideration of the faid petitions 
 
 * fhould be adjourned to the fourth day of the fitting 
 of the next Parliament. 
 
 < The cafe of Dame Alifimon Reade, the 4th of 
 
 * April, 1671, wife of Sir John Reade, praying to be 
 ' relieved againtt the hard ufage of her hulband : it 
 
 * was ordered, that counfel on both parts fhould be 
 
 * heard, on Thurfday the 6th of the fame April, on 
 ' which day the Lords ordered, That the further de- 
 
 * bate of that bufmefs fhould be adjourned to the firft 
 
 * Tuefday of the next fitting of the Parliament, after 
 
 * the recefs then at hand. 
 
 ; 
 
 * The cafe of the Lord Delawarr, and the Lord 
 
 * Berkeley ot Berkeley, concerning precedency, the
 
 APPENDIX. i* 
 
 c I4th of April, '1671. It was ordered, that they 
 * fliould be heard on the fecond Monday of the next 
 ' meeting of the Parliament after the recefs." 
 
 Upon the confideration of thefe precedents, and of 
 feveral others mentioned at the Committee, their 
 Lordmips came to a refolution, and accordingly de- 
 clared it their opinion, That bufmefies depending in 
 one Parliament, or feffion of Parliament, have been 
 continued to the next feffion of the fame Parliament, 
 and the proceedings thereupon have remained in the 
 fame ftate in which they weie left when laft in agi- 
 tation. 
 
 The Houfe, taking the faid report into their con- 
 fideration, do approve thereof, and order it accord- 
 ingly. 
 
 Die Marti 's, n c * die Mart //, 1678. 
 
 It being moved, ' That this Houfe would declare 
 c whether Petitions of Appeal, which were prefented 
 ' to this Houfe in the laft Parliament, be ftill in force 
 ' to be proceeded on :' 
 
 It is ordered, by the Lords Spiritual and Temporal, 
 in Parliament aflemb'ed, That it be and is hereby 
 referred to the Lords Committees for Privileges, to 
 confider thereof, and report their opinion thereupon, 
 unto this Houfe j and that the faid Lords Committees 
 do meet on Thurfday next, at three of the clock in 
 the afternoon, for that purpofe. 
 
 Dl&
 
 X APPENDIX? 
 
 Die LuntSy 17 die Martii, 1678: 
 
 Ordered, by the Lords Spiritual and Temporal, in 
 Parliament afiembled, That it be, and is hereby, re- 
 ferred to the Lords Committees for Privileges to con- 
 fider, Whether petitions of appeal, which were pre- 
 fented to this Houfe in the laft Parliament, be ftill in 
 force to be proceeded on ; as alfo to confider of the 
 ftate of the impeachments brought up from the Houfe 
 of Commons laft Parliament, and all incidents relating 
 thereunto j and make report thereof unto the Houfe. 
 
 Die Mercurii, 19 die Martii, 1678. 
 
 The Houfe this day taking into confideration the 
 report made from the Lords Committees foi Privileges, 
 That, in purfuance of the order of the lyth inftant, 
 to them directed, for confidering whether petitions of 
 appeal, which were prcfented to this Houfe in the laft 
 Parliament, be ftill in force to be proceeded on, and 
 for ccnfidering of the ftate of the impeachments 
 brought up from the Houfe of Commons the laft Par- 
 liament, and all the incidents relating thereunto; 
 upon which the Lords Committees were of opinion, 
 That, in all cafes of appeals and writs of error, they 
 continue, and are to be proceeded on, in ftatu quo^ as 
 they ftood at the difiblution of the laft Parliament, 
 without beginning de novo ; and that the diflblu'ion 
 of the laft Parliament doth not alter the ftate of the 
 impeachments brought up by the Commons in that 
 Parliament. 
 
 After
 
 APPENDIX. XJ 
 
 After fome time fpent in confideration thereof, 
 It is refolved, by the Lords Spiritual and Tempo- 
 ral, in Parliament aflembled, That this Houfe agrees 
 with the Lords Committees in the faid report. 
 
 Die Veneris, 22 die Mail, 1685. 
 
 Upon confideration of the cafes of the Earl of Powis, 
 Lord Arundell of Warder, the Lord Belafis, and the 
 Earl of Danby, contained in their petitions. 
 
 After fome debate, 
 
 This queftion was propofed, Whether the order of 
 the i gth of March, r67|, fhall be reverfed and an- 
 nulled, as to impeachments ? 
 
 The queftion being put, * Whether this queftion 
 
 * fhould be now put ? 
 
 It was refolved in the affirmative. 
 
 Then the queftion was put, ' Whether the order of 
 the igth of March, 167^, ihall be reverfed and an- 
 
 * nulled, as to impeachments ?' 
 
 It was refolved in the affirmative. 
 Diflentiente, John Earl of Radnor. 
 
 The Earl of Anglefey, before the putting of the 
 above-faid queftion, defired leave of the Houfe to enter 
 his difftnt, if the queftion were carried in the affirma- 
 tive ; which was granted. 
 
 b 2 Several
 
 Xii APPENDIX. 
 
 Several other Lords defired leave to enter their 
 
 diflents. 
 
 
 
 ' According to the right of peers to enter their 
 ' diflent and proteftation againft any vote propounded 
 ' and refolved upon any queftion in Parliament, we 
 ' do enter our diflent and proteftation to the aforefaid 
 
 * vote or refolution ; for thefe reafons, among many 
 ' others : 
 
 ' i. Becaufe it doth, as we conceive, extra-judicially, 
 c and without a particular caufe before us, endeavour 
 ' an alteration in a judicial rule and order of the Houfe, 
 ' in th'e higheft point of their power and judicature. 
 
 c 2. Becaufe it fhakes and lays afide an order made 
 
 * and renewed upon long confideration, debate, report 
 
 * of committees, precedents, and former refolutions, 
 
 * without permitting the fame to be read, though 
 
 * called for by many of the Peers, and againft weighty 
 ' reafons, as we conceive, appearing for the fame, and 
 
 * contrary to the practice of former times. 
 
 ' 3. Becaufe it is inherent in every court of judica- 
 ' ture, to aflert and preferve the former rules of pro- 
 ' ceedings before them, which therefore muft be fteady 
 
 * and certain, efpecially in this High Court j that the 
 ' fubject and all perfons concerned may know how to 
 
 * apply themfelves for juftice. The very Chancery, 
 
 * King's Bench, &c. have their fettled rules and ftand- 
 ' ing orders, from which there is no variation. 
 
 Anglesey 
 
 Clare 
 
 Stamford.
 
 APPENDIX. Xlll 
 
 Die Salbatiy 5 die Apr ills ^ 1690. 
 
 Ordered, That on Wednesday next this Houfe will 
 take into confideration, * Whether impeachments con- 
 * tinue from Parliament to Parliament ?' 
 
 Die Luna, 6 die Oftobris^ 1690. 
 
 Lords Committees appointed by the Houfe to in- 
 fpe& and confider precedents, whether impeachments 
 continue \nftatu quo from Parliament to Parliament ; 
 whofe Lordfliips having confidered thereof, are to re- 
 port their opinions to this Houfe. 
 
 Die Jov'tSi y? die Oftolrisj 1690. 
 The Earl of Mulgrave reported from the Lords 
 Committees appointed to infpedl and confider prece- 
 dents, whether impeachments continue in flatu quit 
 from Parliament to Parliament, feveral precedents 
 concerning impeachments, brought to the Committee 
 by Mr. Petyt from the Tower, as followeth : 
 
 Edw. III. * Num. I. Roger de Mortimer"* 
 A 4. ' Num. 2. Symon de Berry ford 
 ' Num. ^. J^hn Matravers 
 
 All con- 
 demned 
 Num. 4. Bogo de Bayons, J, t h e fame 
 
 Jn Deverall 
 * Num. 5. Tho. Gurny, 
 Will. Ogle 
 
 Parlia- 
 ment. 
 
 ' Num. 16. Berkly, accufed by the King, 
 ' found not guilty by twelve Knights ; 
 * yet, becaufe the King was murdered 
 
 f by
 
 XIV APPENDIX. 
 
 f by perfons under his command, was 
 
 * kept under bail till the next Parlia- 
 e ment, which was A 5 ; then he was 
 ' difcharged from his bail; and, A ii 
 ' he is adjudged innocent; wherein alfo 
 ' there is fome mention made of proceed- 
 c ings about him A 9, of which pro- 
 ' ceedings theie is no record. 
 
 A e 15. ' Num. 8. 43. Archbifhop of Cant, defires 
 ' to be examined in Parliament ; who is 
 
 * taken notice of again A 17. Num. 22, 
 c where it is called an arraignment; but 
 
 * it is not plain that it was an impeach- 
 ' ment, either from the King or the 
 ' Commons. 
 
 A* 42. ' Num. 20. Jn de la Lee, Steward of the 
 Houfehold. 
 
 A 50. ' Num. 17. Rich. Lyons, merchant of Lon- 
 ' don, impeached by the Commons, 
 
 * judged to prifon till he paid a fine to 
 ' the King. 
 
 ' On further enquiry, it was found, that 
 ' he was awarded to prifon at the will 
 
 * of the King, and put to fine and ran- 
 4 fom according to the horribility of his 
 
 * offence, and to lofe his franchife of the 
 c city of London. 
 
 A 51, * Memb. 27. Rot. Par. Afterwards he was 
 ' pardoned in part by the JubiJee Par- 
 
 ' don
 
 APPENDIX. XV 
 
 * don ; but pardoned fully by a particu- 
 ' Jar pardon, for the procuring of which, 
 ' Alice Pierce is accufed in the firit year 
 ' of Rich, the Second. 
 
 A 50. f Num. 21. Lord Latimer, impeached by 
 c the Commons, had then judgment 
 ' given on him ; but not exprefled what. 
 
 * Num. 31. 33. 34. William Ellis, Jn 
 
 * Peachy, Lord Nevill, impeached by 
 ' the Commons. 
 
 * Numb. 47. Adam de Bury impeached. 
 
 A 51. ' Num. 91. The Commons defired he might 
 4 be pardoned ; and he had a particular 
 ' pardon under the Great Seal. 
 
 ' John Lefter's was the fame cafe. 
 
 ' Num. 87. 89. 90. 92. Alice Pierce, Jn 
 ' de Lefter, Walter Spurrier, were all 
 ' condemned. 
 
 A 50. e Num. 95. 96. Hugh Farftaffs was ac- 
 ' cufed and acquitted, in A 51 : Rich. 
 ' lid Par. defired he might be reftored 
 ' to his favour, without any effecT:. 
 
 A i. ' Nu. 38. William de Wefton,'Jn Sier de 
 
 4 Gomine, condemned. 
 
 * Nu. 41. Alice Pierce accufed and ba- 
 
 * nifhed. 
 
 A 4. ' Num. 17. Sir Ra. Ferrers, accufed by the 
 4 King, acquitted ; but put under bail 
 
 4 to
 
 XVJ APPENDIX, 
 
 c to appear before the King any timff 
 c between that and the next Parliament. 
 
 A 7. ' Par. i. Num. 15. 23. 24. Bifhop of Nor- 
 ' wich, Sir Wm. Ellemhan, Sir Tho. 
 6 Tryvet, Sir Hen. de Ferrers, Sir Wil- 
 ' Ham de Farringdon, Rob't Fits Ralph 
 
 * Efquire, arraigned by the Commons, 
 * and condemned. 
 
 Pars zd. Nu. n. Mich. De la Pool ac- 
 
 * cufed of bribery by Jn Cavendifli, and 
 ' acquitted. 
 
 A 10. ' Nu. 6. Accufed by the Commons, con- 
 ' demned to be fined and imprifoned at 
 ' the will of the King. 
 * Pars i% Lords Appellants accufed feve- 
 ' ral Lords and Commoners, whom the 
 ' Commons it feems themfelves had a 
 c mind to impeach ; which therefore 
 
 * they reprefent to the Lords, that pro- 
 
 * ceedings might be flayed, who not- 
 ' withftanding proceeded ftill in their 
 4 own way. 
 
 ' The Commons then impeach Sir Rob't 
 
 * Beiknap Lord Chief Juftice, Sir Jn 
 ' Gary Chief Baron, and other Judges, 
 
 * who were condemned the fame Parlia- 
 4 ment. 
 
 ' Memb. 10. Sir Symon De Burly, Sir 
 
 * Jn Beauchamp, Sir Jn Salifbury, Sir 
 ' James Earners, impeached by the Com- 
 
 * mons, and adjudged. 
 
 A2I.
 
 APPENDIX. XVli 
 
 A2i.Placita] < Rot. Par. Duke of Gloucefter, Earls 
 Coronae. J ( of Arundell and Warwicke, ap- 
 ' pealed by the Earl of Rutland, be- 
 ' fore the King at Nottingham, and 
 * the proceedings brought into Par- 
 c liament. 
 
 f Nu. 15. 19. Thomas Arundell, Archbifhop of Cant., 
 ' Sir Tho. De Mortimer, accufed by 
 ' the Commons. 
 
 Hen. VI. < Nu. 14. De la Pool Duke of Suffolke 
 A 28. * defired to have his fame vindicated in 
 
 ' open Parliament, then impeached by 
 ' the Commons, but not committed by 
 4 the Lords, becaufe it was a general 
 ' accufation. At laft there came a fpecial 
 * accufation, upon which he was com- 
 ' mitted by the Lords, and bani(hed by 
 4 the King; againft which proceeding 
 c and banifhment all the Lords, Spiritual 
 ' and Temporal, protefted. 
 
 ' The Committee fent for the Clerk of the Rolls, 
 ' in order to find more precedents ; the records in the 
 
 * Tower reaching no further, the Clerk accordingly 
 
 * attended, but faid there was nothing regiftered there 
 
 * befides Acts of Parliament. 
 
 ' Then the Committee examined the Journals of 
 ' the Houfe, which reach from the izth of Hen. VII. 
 ' and all the precedents of impeachments fmce that 
 ' time are in a lift now in the Clerk's hands j among 
 
 c * all
 
 XV1U APPENDIX. 
 
 all which, none are found to continue from ons 
 ', Parliament to another, except the Lords who were 
 
 * lately fo long in the Tower. 
 
 ? The proceedings againft the Lord Stafford were 
 
 * as follows : 
 
 CHARLES the lid, 
 
 A 1678, Dec. 5. ' Impeached by the Commons. 
 Dec. 28. 'Examined. 
 
 In the next Parl. r 'April 9. Heard his accufation read* 
 1679. I 'April 26. Put his anfwer in. 
 
 In another Parl. r ' Nov. 12. His trial appointed. 
 1683. 1 Dec. 7. Condemned. 
 
 ' The Committee alfo, in obedience to the Houfe, 
 ' fent for the late proceedings in the King's Bench in 
 ' cafes of impeachments, which are ready to be laid 
 ' before the Houfe, as well as all the extracts out of 
 * the records produced by Mr. Petyt. 
 
 ' Then Mr. Petyt's Clerk, who attended by order, 
 ' being called in, read the precedents following : 
 
 'Rot. Par. 4 E.III. N. 16. Thomas de Berkeley's 
 c cafe. 
 
 ' Rot. Par. 15 E.III. N. 8. The Archbifhop of 
 ' Cant. cafe. 
 
 And Rot. Clauf. 15 E. III. P. 3/M. 25. Dorf. 
 f prohibilio pro Rege.' 
 
 After the confideration of which precedents, &c, &c. 
 
 (as in the two loft pages of this A^endlx.) 
 
 Die
 
 APPENDIX. XIX 
 
 Die Mercurii, 22 Man, 1717. 
 
 Ordered, That all the Lords be a Committee to 
 fearch for and report precedents. 
 
 Ordered, That it be an inftru&ion to the faid Com- 
 mittee, in the firft place, to fearch for and report fuch 
 precedents as relate to the continuance of impeach- 
 ments from feflion to feflion, or from Parliament to 
 Parliament. 
 
 Die Sabbati, 25 Mail, 1717. 
 
 The Lord Trevor (according to order) reported 
 from the Committee, appointed to fearch and report 
 fuch precedents, as may the better enable this Houfe 
 to judge what may be proper to be done, on occafion 
 of the petition of the Earl of Oxford, and the cafe of 
 the faid Earl, as it now ftands before this Houfe, 
 
 * That, purfuant to the inftrudtion given them, in the 
 c firft place, to fearch for and report fuch precedents 
 ' as relate to the continuance of impeachments from 
 ' feflion to feflion, or from Parliament to Parliament, 
 
 * they had fearched feveral precedents j and find, 
 
 ' That, on the 6th of December 1660, an impeach- 
 
 * ment againft William Drake, citizen and merchant 
 ' of London, was brought from the Commons, and 
 4 read j charging him with printing a feditious pam- 
 
 * phlet : and he was ordered to be apprehended as a 
 
 * delinquent. 
 
 ' 1 2th December 1660, he was brought to the bar ; 
 
 * and confefled he wrote the book mentioned in thd 
 
 * articles. 
 
 c 2 * I9th
 
 XX APPENDIX. 
 
 * I Qth December, the faid impeachment confidered, 
 e it was ordered and declared, Thar, if this Parlia- 
 
 * ment be diflblved before this Houfe have time to give 
 ' judgment, the Attorney General fliould proceed 
 ' againft him at Law, upon the faid offence. 
 
 ' 3d Jan'y 1666, articles of impeachment, of high 
 ' crimes, &c. were delivered, at a conference, againft 
 ' the Lord Vifcount Mordaunt. 
 
 ' loth Jan'y, he was ordered to put in his anfwer. 
 
 ' i yth Jan'y, he accordingly prefented it. 
 
 
 
 * yth Feb'y, a conference and free conference were 
 
 * had, concerning this impeachment, 
 
 ' 8th Feb'y 1666, the Parliament was prorogued ; 
 ' and no further proceeding on that impeachment 
 ' after the prorogation. 
 
 ' 24th April 1668, articles of impeachment, for high 
 4 crimes, &c. againft Sir William Penn, were delivered 
 ' by the Commons, at a conference. 
 
 ' 27th April, he was ordered to anfwer. 
 
 * 2gth April, he delivered his anfwer, at the bar; 
 ' and a copy of it was fent to the Commons, 
 
 ' After two adjournments, by His Majefty's defire; 
 
 , the Parliament was, on the rirft of March 1668, pro- 
 
 ' rogued, by commiflior, to the 19th of October fol- 
 
 * lowing ;
 
 APPENDIX. XXI 
 
 * lowing; and no more proceedings were had con- 
 
 * cerning the faid impeachment. 
 
 * 5th Dec'r 1678, Lord Arundell of Wardour, Earl 
 ' of Powys, Lord Bellafis, Lord Petre, and Lord Vif- 
 
 * count Stafford, were impeached of high treaibn, &c. 
 
 ' 23d Dec'r, Earl of Danby was impeached of high 
 
 * treafon j and articles were brought up. 
 
 ' 2yth Dec'r, he was ordered to anfwer. 
 
 f The Parliament was diflblved by proclamation, 
 c dated 24th of January 1678. 
 
 * 6th March 1678, a new Parliament met. 
 
 ' I3th of the fame month, the Parliament was pro- 
 ' rogued to the i5th of that month. 
 
 1 7th of March, the Houfe, confidering whether 
 c the laft prorogation made a feffion, were of opinion, 
 ' That it was a fcflion in relation to the acts of judi- 
 
 * cature, but not as to the determining laws deter- 
 
 * minable upon the end of a feilion. And the fame 
 
 * day it was referred to the Committee for Privileges 
 
 * to confider, Whether petitions of appeal, prefented 
 ' laft Parliament, be flill in force to bs proceeded on ; 
 
 * and alfo to confider of the irate of the impeachments 
 
 * brought up from the Commons laft Parliament, and 
 
 * all the incidents relating thereto, 
 
 6 i8th
 
 XXII APPEND1JK 
 
 ' 1 8th March, report was made from the faid Com- 
 
 * mittee for Privileges, That, upon perufal of the 
 
 * Journal of the 2Qth of March 1673, they were of 
 ' opinion, That, in all cafes of appeals and writs of 
 
 * error, they continue and were to be proceeded on 
 
 * injlatu qus, as they ftood at the diflblution of the 
 
 * laft Parliament, without beginning de novo; and alfo 
 ' were of opinion, That the diflblution of the laft 
 
 * Parliament did not alter the ftate of the impeach- 
 ' ments brought up by the Commons in that Parlia- 
 6 ment. 
 
 * igth March, that report was confidered ; and, 
 c upon the queftion, was agreed to. 
 
 c 2Oth of March 1678, the Earl of Danby was or- 
 
 * dered to anfwer ; and divers further proceedings 
 4 were had upon the faid impeachments, in that and 
 
 * fubfequent Parliaments. 
 
 * 1 2th Nov'r 1680, the Commons, by meflage, ac- 
 
 * quaint the Lords with their refolution to proceed to 
 
 * the trial of the Lords in the Tower, and forthwith 
 4 to begin with Vifcount Stafford ; and to defire a day 
 ' for his trial. 
 
 6 Whereupon his trial was appointed on the 3oth 
 
 * inftant. 
 
 ' 3th of the fame Nov'r, his Lordfliip's trial began 
 
 * in Weftm'r HaU. 
 
 4 4th
 
 APPENDIX. 
 
 * 4th Dec'r following, the Lord High Steward gave 
 
 * the Houfe an account, That, after Vifcount Stafford 
 
 * had fummed up his evidence, and the Managers had 
 
 * replied, his Lordfhip propounded feveral points in 
 
 * law, arifing out of the matter of fadr, to which he 
 
 * defired to be heard by his counfel ; one of which 
 
 * points was, 
 
 * Whether proceedings ought to be continued from 
 
 * Parliament to Parliament upon impeachments ? 
 
 * To which the Houfe, upon confideration, refufed to 
 
 * hear his counfel. 
 
 * yth Dec'r, judgment upon him was pronounced, 
 f as ufual in cafes of high treafon. 
 
 e 2ift of the fame month, Mr. Seymour was im- 
 
 * peached of high crimes, &c. ; and articles were 
 
 * brought up, and read ; and he was ordered to anfwer. 
 
 * 23d of the fame December, he put in his anfwer ; 
 
 * and the fame was read, while he was at the bar 5 
 
 * and a copy of it to be fent to the Commons. 
 
 e ^d Jan'y following, which was the next day the 
 
 * Houfe fat, he petitioned for a fpeedy trial. And a 
 ' meflage was fent to the Commons, to give them no- 
 6 tice of it ; their Lordfhips rinding no ifTue joined by 
 ' replication. And counfel were affigned him. 
 
 ' 8th Jan'y his trial was ordered to be on the 
 of the fame January j and a meffage was fent to the 
 
 ' Commons,
 
 XXIV 
 
 Commons, to acquaint them with it, that they might 
 * reply if they thought fit. No further proceeding 
 ' was had on that impeachment. 
 
 c 7th of the fame January, Sir William Scroggs 
 
 * was impeached of high treafon ; and articles of im- 
 
 * peachment were brought up. He was bailed j and 
 
 * ordered to anfwer the 1 4th of the fame month. 
 
 4 The faid yth of January, the Earl of Tyrone was 
 * impeached of high treafon. 
 
 * loth of Jan'y 1680, the Parliament was pro- 
 c rogued ; and diffolved by proclamation the i8th of 
 ' that month. 
 
 ' 2ift March 1680, a new Parliament met. 
 
 ' 24th of the fame March, Earl of Danby petitioned 
 
 * to be bailed : and the fame day Sir William Scroggs' 
 ' anfwer was read ; as alfo his petition, defiring a 
 ' fhort day for the Commons to reply ; copies of 
 4 which anfwer and petition were fent to the Com- 
 c mons. 
 
 < No further proceedings were had againft Sir Wil- 
 ' liam Scroggs, 
 
 ' 26th March 1681, meff^ge from the Commons, 
 
 * That they, having formerly demanded judgment 
 
 * againft the Earl of Danby, defire now a day may be 
 ' appointed to give it. 
 
 4 The
 
 APPEtfDltf. 
 
 * The faid meflage was ordered to be confidered ori 
 
 * Monday next. 
 
 c a8th of the fame month, the Parliament was dif- 
 
 * folved. 
 
 * I9th May 1685, the Houfe was acquainted, That 
 
 * the Lords committed to the Tower upon impeach- 
 
 * ment had entered into recognizancesj in the King's 
 
 * Bench, to appear the firft day of next Parliament ; 
 ' which was that day. Accordingly they were called 
 
 * to the bar, and their appearances recorded j and 
 ' they petitioned for relief. 
 
 ' 22d May 1685, upon confideration of the cafes of 
 c the Earl of Powys, Lord Arundell, Lord Bellafi?, 
 
 * and Earl of Danby, contained in their petitions, it 
 
 * was refolved, upon the queftion, That the order of 
 ' the I9th of March 167^ fhould be annulled and re- 
 
 * verfed as to impeachments. 
 
 ' 25th May 1685, an order made, for the Attorney 
 
 * General to have recourfe to the indictments againft 
 c the Earl of Powys, Lord Arundell, and Lord Bel- 
 
 * lafis, in order to the entering a noli profequi thereon, 
 
 * according to His Majefty's warrant ; and it was fur- 
 f ther ordered, that their bail fhould be difcharged. 
 
 ' i ft June 1685, upon motion on behalf of feveral 
 
 * Peers, who were bail for the appearance of the Earl 
 ' of Powys, Earl of Danby, Lord Arundell, Lord 
 
 * Bellafis, and Earl of Tyrone in the Kingdom of 
 
 d Ireland,
 
 xxv ApfrfcttbtXh 
 
 * Ireland, the firft day of this Parliament, whofe re- 
 
 * cognizances were entered into in the King's Bench; 
 ' it was ordered, That the faid Lords, as alfo all per- 
 
 * fons, Peers or others, that were bailed for their ap- 
 
 * pearance, fhould be difcharged. 
 
 ' a6th October 1698, the Earl of Salifbury and Earl 
 ' of Peterborow were impeached of high treafon, in 
 ' departing from their allegiance, and being recon- 
 
 * ciled to the Church of Rome, by meflage from the 
 ' Commons. And the Earl of Peterborow being, by 
 
 * the Black Rod, brought to the bar, was ordered to 
 ' be committed to the Tower j and the Earl of Salif- 
 
 * bury to be brought to the bar, by the Chief Gover- 
 < nor of the Tower, on Monday. 
 
 * 28th O&ober, the Earl of Salifbury accordingly 
 
 * was brought to the bar j and the faid Governor of 
 ' the Tower was ordered to take him into his cuftody. 
 
 * 27th Jan'y following, the Parliament was pr- 
 e rogued ; and diffolved by proclamation the 6th of 
 
 * February following. 
 
 c A new Parliament met, 2Oth of March 1689. 
 
 c 5th April 1690, an order was made, to take inta 
 c conllderation, whether impeachments continue from 
 
 * Parliament to Parliament, on the Wednefday fol- 
 
 * lowing. 
 
 ' 8th and loth of the fame month, confideration of 
 
 * that matter was adjourned. 
 
 7th
 
 APPENDIX. XXvii 
 
 * 7th July 1690, the Parliament was prorogued. 
 
 * 2d October 1690, the Earl of Peterborow peti- 
 
 * tioned to be difcharged, having been kept prifoner in 
 ' the Tower for almoft two years, notwithftanding a 
 
 * diflblution and feveral prorogations had intervened, 
 ' as alfo an act of free and general pardon : where- 
 
 * upon the Judges were ordered to attend, to give their 
 
 * opinions, whether he be pardoned by that act. The 
 
 * Judges were alfo ordered to give their opinions, on 
 
 * the fame matter, upon the Earl of Salilbury's petition, 
 ' praying likewife to be difcharged. 
 
 * 6th of the fame month, the Judges, according to 
 
 * order, delivered their opinions, as follow; viz. That, 
 c if the faid Earls crimes and offences were committed 
 
 * before the igthof February 1688, and not in Ire- 
 
 * land, nor beyond the feas, they were pardoned by 
 the faid act ; and it was refolved,that the faid Earls 
 * fhould be admitted to bail. And a Committee was 
 
 * appointed to infpect and confider precedents, whe- 
 
 * ther impeachments continue injiatuquo fromParlia-* 
 
 * ment to Parliament. 
 
 '7th October, the faid Earls were both bailed at 
 the bar. 
 
 * goth of the fame October, report was made from 
 
 * the Committee, appointed the 6th of the fame Octo- 
 
 * ber, of feveral precedents brought to their Lordfhips 
 by Mi\ Petyt from the Tower 5. and alfo that they 
 
 d 2 * had
 
 XXVlll APPENDIX. 
 
 * had examined the Journals of this Houfe, which 
 reach from the I2th of Henry the Vllth ; and all 
 ' the precedents of impeachments fince that time were 
 ' in a lift now in the Clerk's hands ; among all which, 
 c none are found to continue from one Parliament to 
 ' another, except ths Lords who were lately fo long 
 
 * in the Tower. 
 
 ' After confideration of which report, and reading 
 e the orders made the i9th of March 167?-, and the 
 ' 22d of May 1685, concerning impeachments ; and 
 
 * long debate thereupon ; it was refolved, That the 
 
 * Earl of Salifbury and Earl of Peterborow fhould be 
 ' difcharged from their bail ; and accordingly they and 
 f their fureties were ordered to be difcharged from 
 4 their faid recognizances. 
 
 e A lift has been produced before the Committee, 
 
 * which to them fcems to be the lift referred to in the 
 
 * faid report ; which is ready to be prpduced, if the 
 
 * Houfe fiiali think, the fame neccflary. 
 
 ' i2thNov'r 1690, upon motion, * That a day be 
 ' appointed, for the explanation of the votes of the 
 6 5Oih of October laft ;' it was ordered to take the 
 
 * fame into confideration on the i8th of the fame No- 
 6 vember, and all the x Lords to be fumrnoned j 01% 
 ' which day the Houfe fat : but it doth not appear by 
 'the Journal that any thing was done in purfuaace of 
 ' that order. 
 
 c 27th April 1695, the Duke of Leeds was im- 
 
 * peached of high crimes and mifdemeanorsj and arti- 
 
 cles
 
 APPENDIX, 
 
 cles were on the 2gth of the fame month exhibited 
 againft him. He put in his anfwer the next day; 
 
 * and a copy of it was fent to the Commons. 
 
 * ift May following, a meflage was fent to the 
 
 * Commons, to put them in mind of the faid impeach- 
 
 * ment; the Lords conceiving the feflion could not 
 
 * continue much Jonger. 
 
 * 3d of the fame May, the Parliament was pro- 
 
 * rogued j and diflblved by proclamation, dated the 
 ', nth of Odober 1695. 
 
 ' 24th of June 1701, the Houfe of Commons hav- 
 
 * ing impeached the Duke of Leeds on the ayth of 
 < April 1695 j an d on l ^ e 2 9 1 ^ f l ^ e f ame nionth 
 
 * exhibited articles againft him, to which he anfwered; 
 
 * but the Commons not profecuting, the laid im- 
 peachment and articles were ordered to be difmifled. 
 
 c I)th May 1698, Peter Longueville was, amongft 
 4 others, impeached of high crimes, &c. ; and articles 
 
 * were brought up, 
 
 27th of the fame May, he put in his anfwer, and 
 ' pleaded Not Guilty. 
 
 * 28th June, the trial of Goudet and others, upon 
 the impeachments againft them, was appointed on 
 
 * the 4th of July next, 
 
 * The fame day, the faid Goudet, Barrau, Seignoret, 
 BaudQwin a Santiny, Diharce, and Pearfe, re^in- 
 
 ' quilhed
 
 quiflied their pleas, and pleaded Guilty and tht 
 
 * Black Rod ordered to take them into cuftody. 
 
 * 3Oth June, Dumaiftre put in his anfwer, and 
 
 * pleaded Guilty ; and the Black Rod ordered to take 
 
 * him into cuftody. 
 
 4th July 1698, judgment was pronounced againft 
 
 * the eight perfons above mentioned ; and no further 
 ' proceedings concerning Longueville. 
 
 * The next day the Parliament was prorogued; and 
 
 * diflblved by proclamation, dated the Jth of July 
 1698. 
 
 * The Committee have alfo inquired of precedent! 
 
 * of indi&ments againft Peers, which have been re- 
 moved into the Houfe of Lords by Certiorari, and 
 ' the proceedings thereupon ; and find, that, on the 
 
 * I9th of March 1677, the proceedings againft the 
 
 * Earl of Pembroke, upon an indictment, for the death 
 ' of Nathaniel Cony, had before the commiffioners of 
 
 * Oyer and Terminer at Hicks' Hall, upon which his 
 
 * Lordfliip was found guilty of felony and murder* 
 
 * was brought into this Houfe, in order to his trial. 
 
 ' 4th April 1678, the faid Earl was tried a and found 
 
 * guilty of manflaughter. 
 
 I5th July following the Parliament was prorogued. 
 
 nth Nov'r 1685, the Lord Mayor and the reft 
 
 * of the Jufticts of Oyer and Terminer and General 
 
 Gaol
 
 XX3U 
 
 f Gaol Delivery for London and Middlefex were or- 
 
 * dered to return, by virtue of His Majefty's writ of 
 c Certiorari, the indictment of high treafon, found 
 before them, againft the Earl of Stamford, theft 
 
 * prifoner in the Tower. 
 
 * I4th Nov'r, the indictment was delivered. 
 
 4 1 6th Nov'r, the faid Earl was ordered to be 
 
 * brought to the bar. 
 
 4 1 7th Nov'r, his Lordfliip was brought according* 
 
 * ly, examined, and his trial appointed on the ift of 
 4 December following ; and an addrefs to His Ma- 
 < jefty, That a place be prepared in Weftm'r Hall for 
 
 * his trial. 
 
 4 1 8th Nov'r, the King's anfwer was reported, 
 
 * That He had given order accordingly. 
 
 4 2Oth Nov'r 1685, the Parliament was prorogued; 
 4 and, after feveral prorogations, was diflblved the 
 4 ad of July 1687. 
 
 4 And there doth not appear any further proceeding 
 
 * on the faid indictment. 
 
 4 4th Jan'y 1692, the Coroner's Inqueft was brought 
 4 in, concerning the death and murder of William 
 4 Mountfort, wherein the Lord Mohun was found 
 4 to be aiding and a/lifting. 
 
 * 4th Feb'y following, his Lordfliip was tried ; and 
 c found Not Guilty, and difcharged, 
 
 4 1 4th
 
 Xxxli A * P E N f Xi 
 
 < 14-th March following, the Parliament Was 
 
 * rogued. 
 
 * I3th Dec'r 1697, a writ of Certloran was ordered, 
 
 * for removing the indi&ment found againft the Lord 
 ' Mohun, concerning the death of William Hill. 
 
 f * loth Jan'y 1697, re ^v ec ^ to proceed to his trial. 
 
 * 4th July 1698, the Clerk of the Crown read the 
 
 * indictment to his Lordfliipj and he pleaded His 
 ' Majefty's pardon: which was allowed by the Houfej 
 ' and he was difcharged. 
 
 * 1 3th March 1698, an indictment againft the Earl 
 
 * of Warwick, for the murder of Coote, was brought 
 ' by Certiorari. 
 
 * 2$th March 1699, Lord Mohun allowed a copy 
 
 * of his indictment. 
 
 a8th March, the Earl of Warwick was tried, and 
 
 * found guilty of manflaughter. 
 
 ' agth of the fame month, the Lord Mohun was 
 
 * tried, and found Not Guilty. 
 
 * 4th May 1699, the Parliament was prorogued,' 
 
 Which report being read by the Clerk : 
 It was propofed, ' To refolve, That the impeach- 
 ' ment of the Commons againft the Earl of Oxford 
 ' is determined by the intervening prorogation/ 
 
 And,
 
 And, after debate thereupon, 
 
 The queftion was put, That it is the opinion 
 
 * of this Houfe, that the impeachment exhi- 
 
 * bited by the Commons of Great Britain, 
 ' againft Robert Earl of Oxford and Earl Mor- 
 c timer, for high treafon and other high crimes 
 ' and mifdemeanors, is determined by the in- 
 ' tervening prorogation. ' 
 
 It was refolved in the negative. 
 
 Dijfentient) 
 
 ' i. Becaufe there feems to be no difference iri law 
 
 * between a prorogation and a diffblutionof a Parlia- 
 
 * ment, which, in conftant practice, have had the 
 c fame effect, as to determination both of judicial and 
 ' legiflative proceedings; and confequently this vote 
 ' may tend to weaken the refolution of this Houfe, 
 4 May the 22d> 1685, which was founded upon ths 
 ' Jaw and practice of Parliament in all ages, without 
 c one precedent to the contrary; except in the calts 
 
 * which happened after the order made the igth of 
 ' March 1678, which was reverfed and annulled in 
 ' 1685 ; and in purfuance hereof the Earl of Salisbury 
 
 * was difcharged in 1690. 
 
 * 2. Becaufe this can never be extended tb any but 
 ' Peers ; for, by the ftatute 4 Ed. Ill 1 ', no Commoner 
 c can be impeached for any capital crime : and it is 
 
 * hard to conceive why the Peers fhould be dirtiii^ 
 
 * guifhed, and deprived of the benefit of all the laws 
 ' of liberty to which the meaneft Commoner in Britain 
 
 e * is
 
 fcxxiv A r P B N b i at. 
 
 * is entitled ; and this kerns the more extraordinary, 
 ' becaufe it is done unafked by the Commons, who, 
 
 * as it is conceived, never can afk it with any colour 
 
 * of law, precedent, reafon, or juftice. 
 
 NOTTINGHAM, 
 ' ABINGDON. 
 
 * FR. ROFFEN. 
 
 ' NORTH & GREY< 
 
 ' BRUCE. 
 e DARTMOUTH, 
 
 ' BATHURST. 
 
 * GUILFORD. 
 ' MANSEL. HAY* 
 
 ' FOLEY.' 
 
 Die Marth} 24 Junii, 1701. 
 
 Then the Houfe, taking into confideration that 
 there were feveral Lords charged and impeached bjr 
 the Commons^ and no profecution againft them, or- 
 dered as followeth (videlicet)^ 
 
 TheHoufe of Commons not having profecuted their 
 charge which they brought up againft John Lord Ha- 
 verfham, for words fpoken by him at a free conference 
 the thirteenth mftant ; 
 
 It is this day ordered, by the Lords Spiritual and 
 Temporal in Parliament affembled^ That the faid 
 
 charge
 
 APPENPIX. XXXV 
 
 charge againft John Lord Haverfham fhall be, and is 
 hereby, difmhTed. 
 
 The Earl of Portland being impeached, by the Houfe 
 of Commons, of high crimes and mifdemeanors, the 
 firft day of April laft : 
 
 It is ordered by the Lords Spiritual and Temporal in 
 Parliament aflembled, That the impeachment againft 
 William Earl of Portland (hall be, and is hereby, dif- 
 mifled, there being no articles exhibited againft him, 
 
 The Houfe of Commons haviag impeached Charles 
 Lord Hallifax, of high crimes and mifdemeanors, on 
 the fifteenth day of April laft, and on the fourteenth 
 day of this inftant June exhibited articles againft 
 him ; to which he having anfwered, and no further 
 profecution thereupon : 
 
 It is ordered by the Lords Spiritual and Temporal 
 in Parliament aflembled, That the faid impeachment 
 and the articles exhibited againft him fhall be, and 
 {hey are hereby, difmifled. 
 
 The Houfe of Commons having impeached Thomas 
 Duke of Leeds of high crimes and mifdemeanors on 
 the feven and twentieth of April, 'one thoufand fix 
 hundred ninety-five, and on the nine and twentieth 
 of the faid April exhibited articles againft him; to 
 which he anfwered : but the Commons not profe- 
 cuting, 
 
 It
 
 XXXVI APPENDIX. 
 
 It is ordered by the Lprds Spiritual and Temporal 
 in Parliament affembled, That the faid impeachmenK 
 and the articles exhibited againft him fhall be, and 
 they are hereby, difmifled. 
 
 Rotul. Parl. XV. Edw. III. 
 
 Le Parlement tenuz a Weftm' le Lundy en la 
 Quinzeyne de Pafch', 1'an du regne n're Seignur 
 le Roi, c'eft aflaver d'Engleterre Quinzifme, et de 
 France Second. 
 
 8. ET meiftne cefti jour vient noftre Seignur le 
 Roi en la Chaumbre dc Peynte, & illocques vient 
 PErcevefque de Canti.'burs, & les autres Prelatz, & 
 Grantz, & Communes j & le dit Ercevefque fe hu- 
 milia a n're Seignur le Roi, enquerant fa bone 
 Seignurie & fa bienvoilliance ; et n're Seignur le 
 Roi lui refceut a fa bone Seignurie : dont les Prelatz 
 & autres Grantz lui mercierent tant come ils favoient 
 ou purroient. Et puis pria 1'Ercevefque au Roi, 
 q'il pleuft a fa Seignurie, que deficome il eft diffamez 
 notoirement par tut le Roialme & aillours, q'il puifle 
 eftre ar.efnez en pleyn Parlement devant les Pieres, & 
 illocques refpoundre, iffint, q'il foit overtement tenuz 
 pur tiel come il .eft. Queu chofe le Roi ottreia. 
 Mes il dit, q'il voleit que les bufo'gnes touchantes 
 1'eftat du Roialme & commune profit fuflent prime^ 
 inys en exploit, & puis il feroit exploiter les autres. 
 
 43. ET
 
 APPENDIX. XXXVU 
 
 43. ET fait rerrembrer, que le Samady, en la 
 Veille de Pentecouft, feurent acordez & aflentuz en 
 dit Parlement les chofes fouzefcrites, c'eft aflavsr. 
 
 44, Primerement, que les Evefques de Durefme, 
 & Sarum, les Countes de Norht', Arundell, Warr% 
 & Sarum, oient les Refpons 1'Ercevefque, des chofes 
 qui lui font furmys par le Roi ; iffint que fi fes dites 
 Refpons foient covenables, adonques le Roi de fa bone 
 grace lui tendra pur excufe. Et en cas q'il femble au 
 Roi & a fon Confeil, que meifmes les Refpons ne font 
 mye fuffifantz, adonques les ditz Refpons ferront 
 debatuz en prefchein Parlement, & illocques ent jug- 
 gement re.jidu. 
 
 49. ET fait a remembrer, que totes les chofes 
 touchantes 1'Arefnement 1'Ercevefque de Cantirburs, 
 demurent devers S. William de Hyldefby, Gardeyn 
 du Prive Seal notre Seignur le Roi. 
 
 Rotul. Par. XVII. Edvv. III. 
 
 Le Parlement le tenuz a Weftm'r, a la Qulnzeyne 
 de Pafk, 1'an du Regne n're Seign' le Roi Edward 
 tiercz apres le Conqueft, c'eft afTaver d'Enleterre 
 dys & feptifme, & dc France quart, 
 
 22. FAIT a remembrer, que notre Seign' le Roi 
 ad commandez, que totes les chofes touchantes 1'ar- 
 
 reynement 1'Ercevefque de Cantirbirs, lef- 
 
 queux chofes demurerent devers Seiga' William dc 
 
 Kyldefby,
 
 APPENDIX. 
 
 Kyldefby, au Parlement tenuz a Weftm' a la 
 zeyne de Pafke Ian quinzifme pur aver ent avifement 
 tan que ne font pas refonables ne veritables. Par quoi 
 comande fu a Meftre Johan de Ufford, de porter meif- 
 roes les chofes en Parlement pur anienter iiloeques. 
 
 COMMONS' JOURNALS. 
 
 Die Sabbati, 12 die Jprilis 9 1679, 
 Sir Francis Winnington reports from a con- 
 ference.* 
 
 The Lord Privy Seal faid, that in the tranfaclion. 
 of this affair, there were two great points gained by 
 this Houfe of Commons. 
 
 The firft was, that impeachments made by the 
 Commons in one Parliament, continued from fefiipn, 
 to fefflon, and from Parliament to Parliament, not- 
 withftanding prorogations or ditTolutions. 
 
 The other point was, that in cafes of impeach- 
 ments upon fpecial matter {hewn, if the modefty of 
 the party impeached directs him not to withdraw, the 
 Lords admit that of right they ought to order him to 
 withdraw; and that afterwards he muft be committed. 
 
 The Commons replied, that they hoped their Lord- 
 ihips did not think the Commons did take it, as if 
 they had now gained any point : for that the points 
 which their Lord/hips mentioned as gained, were no- 
 thing but what was agreeable to the ancient courfe 
 and methods of Parliament.
 
 APPENDIX. XXXlX 
 
 My Lord of Danlys Cafe, Skinner's Reports*, p. 56, 
 34. Car. II. R. B. 
 
 The Earl of Danby having been twice before in 
 Court, upon his Habeas Corpus, came again this 
 term, and made a very long harangue; but the 
 Court would not bail him, his cafe being the fame 
 with my Lord Stafford's and the Earl of Tyrone's, fcil. 
 he was committed by the Lara's Houfe, and there was 
 an impeachment by the Commons pending in the Lords 
 Houfe againft him ; but it was taken clearly by the 
 Court, that where the party is committed by an order 
 of the Lords Houfe, as in Pritchard's cafe, remem- 
 bered by Raymond Juftice, 17 Car. II. that upon a 
 prorogation he may be bailed. And fo Pemberton^ 
 Chief Juftice, faid it was his cafe^ he was committed 
 by the Commons : he faid the King was willing to bait 
 him., and fo were the Lords ; but he was fain to lie, 
 till the King prorogued the Parliament; and then he 
 came out, and he faid, that if any one be detained 
 after a prorogation, an aftion of falfe imprifonment 
 lies ; moreover, 'twas faid, that no man could come 
 into that Court and demand to be bailed de jure, in 
 cafe of high treafon ; nay, that in murder fometimes 
 they take bail, and fometimes refufe it. 
 
 My Lord Danby' s Cafe, Skinner's Reports, p. 162^ 
 35 and 36 Car. II. R. B. 
 
 Things chiefly infifted on by the Ccunfel and jtutg/s 
 in my Lord Danby's cafe. Wallop, That this was a 
 cafe of great neceflity, and if there (hould be no 
 
 relief
 
 xl APPENDIX; 
 
 relief here, there would be a failure of juflice, which, 
 rather than the law will fuffer, it will allow things 
 to be done contrary to the exprefs words of an Act 
 of Parliament} and cited the 2 Inft. 23. 
 
 That bailing would not affecT: the impeachment, 
 but only modify the confinement ; for they fhould 
 not deliver him out of cuftody, but only lengthen 
 his chain; for his ball, if they plcafe, may keep 
 him, and confine him : that all imprifonment is ei- 
 ther in ciiftodiam, or in paenam', where 'tis the for- 
 mer, this Court may give eafe by bailment; but in fo 
 doing, they determine not de re but de modo rel or de 
 modo modi : that this Court is the Supreme Court of 
 ordinary Judicature, to which no fubjedl can come 
 but he finds relief, and that Curia regis ne deficeret in 
 jujlitia exbibenda ; the King being the fountain of 
 juftice, no one (hall come to this fountain and die for 
 third. He cited the cafes where the Court hath bailed 
 in cafe of extreme old-age, though the party was in 
 execution ; and fo of a woman near her time of tra- 
 vail : Which cafes are in the ift Inft. 
 
 Pollexfen infiffed that it was a cafe judicially in the 
 Houfe of Lords; and then by diflblution of Parliament 
 the proceeding is determined, like cafes of writs of 
 error out of the King's Bench. Holt cited the cafe of 
 Okey and Baxter, who were attainted by Act of Par- 
 liament, and the records of Parliament removed by 
 certicrari in Chancery, thence by mittimus into R. B. 
 where the parties were oppofed, wherefore they fhould 
 
 not
 
 APPENDIX. Xll 
 
 ftot be executed, and were executed accordingly j and 
 after, by the unanimous opinion of the Court, the Lord 
 Danby was bailed. 
 
 For, Firjl, Treafon cannot be committed but 
 dgainft the King. 
 
 Secondly, That the Cotirt has power to bail in all 
 cafes of treafon. Zachary Crofton's cafe, the opinion 
 of the Judges, in the Lords Houfe, 1678. 
 
 Thirdly^ That when the Lords Houfe is fitting, 
 the power of this Court is fufpended, as to perfons 
 and caufes before them ; but when the Lords Houfe 
 is diflolved, their original power reverts back to this 
 Court. 
 
 Fourthly, This Court may bail, in cafes where 
 they cannot t r y the party bailed ; as perfons taken here 
 for offences committed in Ireland, are bailed here, 
 to appear in Ireland, though they cannot be tried 
 here: fo any Lord of Parliament committed for high 
 treafon by a Juftice of Peace, or Secretary of State, 
 may be bailed in R. B. though he cannot be tried 
 there. 
 
 Fifthly, For a man committed of high treafon to 
 be bailed by law, and yet no Court in being that 
 hath power to bail him, is an abfurdity. 
 
 Sixthly, That in cafes of writs of error depending 
 in Parliament, upon a lung Prorogation^ they ceafe to 
 
 f be
 
 x APPENDIX. 
 
 be a JujMrffJeas, but the party may have execution in 
 R. B* and if it be fo, but where the property is con- 
 cerned, it ought much more to be fo, where the li- 
 berty is concerned, which is fo much dearer ; that in 
 one cafe or the other, the Parliament, when it meets, 
 may go on; and, if they reverfe the judgment, the 
 party will be reftored to all that he has loftj and fo 
 they may proceed to the trial of my Lord Danby, &c. 
 
 As to the power of the King's pardoning treafon, 
 though the perfon was impeached by the Commons in 
 England in the Lords Houfe, many records were cited 
 by the Lord Danby ; and Pollexfcn, and Jewries, 
 Chief Juftice, cited Elfin g of Parliaments^ and infifted 
 that the Habeas Corpus Acl fhews the intent of the 
 Parliament, and their fentiments in fuch cafes. 
 
 Lord Salifiury's Cafe, Carthew, p. 131. 2 Wil. and 
 Mary, B. R. 
 
 He was' brought from the Tower by Habeas Cor* 
 pus, and being at the bar, his cafe was thus : 
 
 He was by the convention which was afterwards 
 turned into a Parliament, Anno I W. and M. im- 
 peached by the Commons for high treafon, for being 
 reconciled to the Church of Rome, contrary to the. 
 itatute in that cafe made and provided, and upon this 
 impeachment he was committed to the Tower by the 
 Houfe of Peers, and there continued till the Parlia- 
 ment was diilolved, and a new Parliament called, 
 
 and 
 
 --
 
 APPENDIX. xliii 
 
 and now (after a long feflions) adjourned for two 
 months. 
 
 The Counfel for the Earl moved, that he might be 
 difcharged upon the new A61 of Oblivion, which pall- 
 ed in the laft feflions of Parliament, wherein neither 
 his crime nor his perfon were excepted, but clearly 
 within the A61 of Pardon. But per curlam : notice 
 cannot be taken of this A& of Pardon, unlefs 'tis 
 pleaded with the averments, becaufe there are feveral 
 exceptions in it, both as to crimes and perfons ; there- 
 fore it is neceflary that the party who would have the 
 benefit thereof, fhould aver himfelf by plea capable of 
 fuch benefit ; and not excepted therein, as 'tis ruled 
 in Plowden, and other books ; and here the Lord at 
 the bar cannot plead this pardon, becaufe there is no- 
 thing before the Court, upon which to ground fuch 
 plea. 
 
 Then it was moved, that he might be bailed, and 
 for that purpofe the Lord Danby's cafe was cited, who 
 was bailed, though committed by the Peers in Parlia- 
 ment, as in this cafe ; and the Earl of Shaftefbury's 
 cafe was likewife mentioned. 
 
 Sed per curiarn : The Earl of Salifbury was not 
 bailed, becanfe there was a very fhort adjournment of 
 the prefent Parliament, and that is the proper place 
 for him to make application to be bailed. 
 
 That the chief reafon for bailing the Lord Danby 
 
 was, becaufe the then Parliament were prorogued, 
 
 f 2 and
 
 APPENDIX. 
 
 and the time uncertain for their meeting again ; and 
 fo no profpeft of an opportunity to apply himfelf that 
 way: 4)efides, he was denied to be bailed, by feveral 
 Judges of the Court of B. R. until the Chief Juftice 
 Jefferies came in. 
 
 And the Court cited the Lord Stafford's cafe, who 
 was committed by the Houfe of Peers ; and notwith- 
 ftanding that Parliament was diflblved, by which he 
 was committed, yet he was continued a prifoner, and 
 afterwards tried upon the fame impeachment, con- 
 vi&ed, and executed ; which fully proves that com- 
 mitments by the Peers in Parliament, are not made 
 void by the prorogation or diffolution of the fame 
 Parliament. 
 
 Befides, the Lord Danby was bailed to appear at 
 the next Seffions of Parliament, which was an affir- 
 mance of the commitment, and a plain proof of the 
 opinion of the Court at that time, that the commit- 
 ment was not avoided or discharged by the prorogation 
 of the Parliament. 
 
 And for thefe reafons, the Lord Salifbury was re- 
 manded to the Tower. 
 
 Extratt from Mr. Juftice Fofter's Crown Law, p. 157. 
 
 In the cafe of Lord Salifbury, who had been im- 
 peached by the Commons for high treafon, the Lords, 
 upon his petition, allowed him the benefit of the a<5t 
 of general pardon, pafled in the fecond year of Wil, 
 
 liam
 
 APPENDIX. xlV 
 
 Ham and Mary, fo far as to difcharge him from his 
 imprifonment, upon a conftrulion they put upon 
 that acl ; no High Steward ever having been appointed in 
 that cafe. 
 
 On the sd of October, 1690, upon reading the 
 Earl's petition, fetting forth, that he had been a pri- 
 foner for a year and nine months in the Tower, not- 
 withftanding the late act of free and general pardon, 
 and praying to be difcharged ; the Lords ordered the 
 Judges to attend on the Monday following, to give 
 their opinions, Whether the faid Earl be pardoned by 
 the ah On the 6th, the Judges delivered their opi- 
 nions, that if his offence was committed before the 
 ijth of February 1688, and not in Ireland, or beyond 
 the feas, he is pardoned. Whereupon it was ordered, 
 .that he be admitted to bail j and the next day he and 
 his fureties entered into a recognizance of bail, hirn- 
 felf in iO 5 OOOl. and two fureties in 5000!. each ; and 
 on the 3Oth, he and his fureties were, after a long 
 debate, difcharged from their recognizance. 
 
 It will not be material to inquire, whether the 
 I-Joufe did right in difcharging the Earl without giving 
 the Commons an opportunity of being heard ; fince, in 
 fac~r, they claimed and exercifed a right of judicature 
 without an High Steward, which is the only ufe I make 
 cf this fafe* 
 
 MODERN
 
 APPENDIX. 
 
 MODERN REPORTS, Vol. XII. p. 604,13 W. III. 
 B. R. 
 
 Peters verfus Benning. 
 
 A writ of error ad proximam frjjianem in Parliament, 
 and before that time the Parliament by proclamation 
 was difiblved, and day fixed for the meeting of a new 
 one; und upon motion, the queition was, Whether 
 this writ were a fuperfedeas of execution, or even 
 could be a warrant to fend up the record to the new 
 Parliament, there being no term 'intervening between 
 the return of the writ and the time fixed for the Par- 
 liament's meeting. And, ift, it was agreed on, that 
 the Court can take no notice of any extrajudicial de- 
 termination or order of the Lords. And, per Holt^ If 
 an impeachment be in one Parliament, and fome pro- 
 ceedings thereon, and then the Parliament be diflblved, 
 and a new one called, there may be a continuance 
 upon the impeachment ; and he quoted the cafe of 
 James and B<;rtly, Pafch. <; W. and M. where a writ 
 of error was tefled the fourth of May, returnable the 
 nineteenth of November following, to which t ; me the 
 Parliament was prorogued, fo that a whole term in- 
 tervened ; and he faid it was his opinion, they might 
 fue out execution, notwithftandisig that writ. And 
 he remembered to have known it ruled in Keeling and 
 Halis time, that a writ of error was no fuperfedeas^ 
 after a prorogation, if a term intervened. Vide 3 Keb. 
 416. i /"//. 266. And the cafe in 2 Cro. 341. was 
 faid to be in point, that a writ of error, and all the 
 
 proceed-
 
 % APPENDIX. Xlvii 
 
 proceedings thereon, are determined by -the diflblution 
 of a Parliament* Fide Lane, 57. I H. VII. 19, 20. 
 pi. 50. Br. Err. pi. 25. That plaintiff in error is 
 not bailable in Parliament for two reafons j one, That 
 if the judgment (hould be affirmed, they could not 
 award execution on the recognizance ; Secondly, If 
 the Parliament fhould be diflblved before any thing 
 done, all matter depending before the Parliament would 
 be thereby determined. Likewise a tranfcript of the 
 record, and not the very record itfelf, is before the 
 Lords upon a writ of error; and in that it differs from 
 a writ of error from Ireland, or from the C. B. into 
 this Court, where, in the one cafe, the execution is to 
 be awarded here j but in the other cafe, it is not fo, 
 for the neceffity of the thing, becaufe the King's writ 
 runs not into Ireland ; the courfe is to fend a mandate 
 to the Chief Juflice of Ireland to grant execution. 
 Fide Jo. 66. That diflblution determines error actu- 
 ally depending, Ray. 5. That a prorogation and a 
 whole term intervening, is a fuperfedeas of a writ of 
 error in Parliament ; and fo of a difiblution, though 
 the errors had been afiigned. If, before the tranfcript 
 be left above, the Parliament was diffolved, the writ 
 was no fiperfedeas of execution ; but if it had been 
 left above, the diilblution would be a fuperfiacas of 
 it : but the writ of error would not be difcontinued^ 
 there being a day certain for the meeting of a new 
 Parliament, by the very act of diffolution. 
 
 It may be a queftion, if a writ of error ad proxi- 
 mum Parliamentum, when a Parliament is to- meet at 
 a day certain, be a fuperfedeas^ though a term doe 
 
 noc
 
 Xlvili APPENDIX; 
 
 not interpofe between the tefte of the writ and the 
 time fixed for the meeting of the Parliament by the 
 diflblution of the former Parliament j but the Chief 
 Juftice faid, that as the prefent cafe was, the writ in 
 queftion could not be an authority to carry up the re- 
 cord, neither could the Lords be legally poffefled of it, 
 by virtue of that writ. And he faid, in cafe of pro- 
 rogation, the writ of error was returnable ad prtffeni 
 Parliamentum ; but in cafe of adjournment, it was 
 ad pr&fentem fejjionem. And after all, here the Court 
 left them to do what they could by law* 
 
 Rot. Parl. 8 Hen. VI. n. 27. 
 
 ITEM priount les Communes, pur tant que lour 
 fuft declarre en ceft prefent Parlement, par diverfes 
 Seigneurs de mefme le Parlement. que lez petitions 
 a baillers par les ditz Communes a tres noble & 
 puiffant Prince le Due de Gloucefter, Gardeyn 
 d'Engleterre, en ceft prefent Parlement, ne ferroient 
 mye engroffes avaunt ceo q'ils ferrount envoiez de par 
 dela le Myer, a no're Soverayne Seignur le Roy, pur 
 ent avoir foun aflent Roiall & advys ; que pleafe a dit 
 trea haut & puiflant Prince le Due de Glouc', Gar- 
 deyn d'Engleterre, de ordeiner par au6lorite de ceft 
 prefent Parlent, que toutz lez petitions baillez par lez 
 ditz Communes, a dit tres haut & tres puiflant Prince 
 le Due de Glouceftre, Gardeyn d'Engleterre, en ceft 
 prefent Parlement, foient refponduz & terminez de- 
 deins ceft Roialme d'Engleterre, durant mefme cell* 
 Pdilcment. Et fi afcuns petitions remaignount nient 
 
 ref-
 
 APPENDIX. 
 
 tefpohduz & determinez, duraunt mefme cell Parle- 
 ment, q'ils foient tenuz pur voides & de null effect ; 
 5c que ceft ordenaunce foit de force & tiegne lieux en 
 chefcun Parlement a tenir en ceft Roialme d'Engleterre 
 en temps a venir. 
 
 Refponfio. Soit advifee par le Roi. 
 
 Rotul. Par!. 4 Hen. Vft. n. 25. 
 
 ITEM, die Veneris, Quarto die Decembris, an- 
 no fupradi6to, preditus Archiepifcopus declaravir, 
 qualit' Ambailiatores Francie, intelligentes Dominum 
 Regem & tres Status hujus Regni, cum ipfomm Am- 
 bafliatorum a rege noftro deilderatis minime fora 
 Contentos, pecierunt a Rege licenciam antmadver- 
 t^idi Dominum fuum Francor' Regem per unum 
 ipforum, Iperantes, in bri' fufficienciorem & lar- 
 giorem audloritatem a didto Francorum Rege habi- 
 tur', qua pofient ad noftri Regis 'complacentiam 5c 
 utriufque Regnorum Anglie & Francorum commo- 
 dum firmius concordare. Et quia appropinquante 
 Fefto Natalis Domini, ante quod feftum, ditum ne- 
 gotium & alia quam plura bonum publicum huju 
 regni concernentia, in Parliamento prediito mota & 
 defiderata, finiri & concludi minime poterant j idem 
 Dominus Rex Anglie, prefens Parliamentum fuum 
 ufque vicefimum quintum diem Januarii tune prox.' 
 futur' duxit prorogand', & illud realiter prorogavit : 
 premuniens omnibus quorum interfuit in hac parte 
 
 T e'endi
 
 1 APPENDIX. 
 
 e'endi apud Weftm', ad diem predi&um, locis con- 
 fuetis, quavis poftpofita excufacionem, ad convo- 
 cand' fuper negociis ante diftis, & aliis quae ex eor' 
 co'ini aflenfu pro bono publico, Domino concedente, 
 contigerint ordinari. 
 
 Rot. Parl. 29 Hen. VI. Pars 2. 
 
 Soit as bailie as Seigneurs. 
 
 To the Kyng our Soverain LorJ. 
 
 PRAYEN the Commons, that where in your Par- 
 lement laft holden at Weftminfter, the Communaulte 
 of this your Roialme in the fame Parlement affem- 
 bled, accufed and empeched, William De la Pole, 
 thenne Duke of Suffolk, as well of divers greje, 
 heynous, and deteftable treafons, as of many other 
 fauxtees, deceites, and other untrue mefprifions, by 
 him doon and commyted : unto which accufements 
 and empechements, he being put to anfwere therto, 
 gaue not anfwere fufficient after the lawes of this 
 your lande, as in the a&es and proceiTe hadde upon 
 the faid accufement and empechement, the tenour 
 whereof herto is annexed more pleynly itappeareth; 
 by caufe whereof, jugement of atteyndre of the feid- 
 treafons ought to have been given agenft him, and he 
 convift of the feid mefprifions after the cours of youre 
 feid lawes j and forafmuche as fuch jugement agenft 
 him than was nought hadde, as juftice after his me- 
 
 ritei
 
 APPENDIX. it 
 
 iles required. Pleafe hit your Hi^hnefle to graunte, 
 ordeyne and eftablifh, by the avyfe and afTent of the 
 Lordes Spirituelx and Temporelx, in this prefent 
 Parlemeht aflembled, that by authorite of this 
 fame Parhment^ the faid William De la Pole be ad* 
 juged, demed, declared, publifhed, and reputed as a 
 traytor to your, &c. 
 
 Dorfo, Le Roi s'advifera ; 
 
 Addenda
 
 Ill APPENDIX. 
 
 Addenda to Page xviii. of this Appendix. 
 
 After the confideration of which precedents, and 
 others mentioned in the debate, and reading the orders 
 made nineteenth of March, 167!, and two and twen- 
 tieth of May, one thoufand fix hundred eighty-five, 
 concerning impeachments ; and after long debate 
 thereupon, and feveral things moved : 
 
 This queftion was prppqfed, 
 
 * Whether James Earl of Sarum and Henry Earl 
 * of Peterborough fhall be now difcharged from their 
 
 bail 
 
 Then this previous queftion was put, c Whether 
 ' this queftion (hall be now put ?' 
 
 It was refolved in the affirmative. 
 
 Then the main queftion was put, Whether 
 ' James Earl of Salifbury and Henry Earl of 
 
 * Peterborough {hall be now difcharged from 
 < their bail ?' 
 
 It was refolved in the affirmative. 
 
 ' Leave having been given to any Lords, to enter 
 
 * their diflents, if the queftion was carried ia 
 ' the affirmative ; 
 
 ' And thefe Lords following do enter their 
 < difients, in thefe reafcns : 
 
 < I. Be-
 
 APPEND IX. liil 
 
 ' I. Becaufe we conceive it is a queftion not at all 
 f relating to the real debate before us j but urged upon 
 
 * us, not for the fake only of the two Lords inen- 
 ' tioned. 
 
 c 2. Becaufe we ought to have examined precedents 
 of pardons, to fee how far an impeachment was con- 
 ' cerned, before we had adjudged the Loids dif- 
 6 charged ; or whether an impeachment could be 
 
 * pardoned without particular mention in an a<3: of 
 ' grace ; and what difference there is between an al 
 ' of grace and an at of indemnity. 
 
 ' 3. Becaufe we did not hear the Houfe of Com- 
 e mons, who are parties, and who in common juftice 
 ' ought to have been heard before we had pafled this 
 *- vote.' 
 
 * BoLTON. 
 
 ' NORTH & GB.EY. 
 
 * STAMFORD. 
 4 J. BRIDGWATER. 
 
 * BATHE. 
 
 ' MACLESFELD. 
 
 ' GRANVILLE. HERBERT/ 
 
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