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I. The Impeachment of the Earl of Clarendon

Published online by Cambridge University Press:  20 December 2011

Clayton Roberts
Clayton Roberts
Affiliation:
Assistant Professor of History, Ohio State University
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Extract

Few Lord Chancellors have defended the laws of England with greater steadfastness than Edward Hyde, first Earl of Clarendon. Yet the House of Commons impeached him in 1667 for attempting to subvert those laws. Standing guardian over the English constitution, he was accused of plotting its ruin. Less guilty than Francis Bacon, he suffered a harsher fate. More innocent than Lord Keeper Finch, he endured the same painful banishment from the England he loved. On 11 November 1667 the House of Commons impeached him for high treason, and though they were unable to prove their accusation, they forced him, by the violence of their prosecution, to flee to France. It was his personal tragedy to suffer disgrace, calumny, and banishment though guilty of no crime.

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Articles
Information
Cambridge Historical Journal , Volume 13 , Issue 1 , 1957 , pp. 1 - 18
Copyright
Copyright © Cambridge University Press 1957

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References

1 Lister, T. H., The Life and Administration of Edward, First Earl of Clarendon(3 vols., London, 1838), II, 376–460;Google Scholar Craik, Sir Henry, The Life of Edward, Earl of Clarendon (2 vols., London, 1911), II, 282–97.Google Scholar

2 The Life of Edward, Earl of Clarendon…Written by Himself (3 vols., Oxford, 1761)Google Scholar. Vol. I is An Account of the Chancellor's Life from his Birth to the Restoration in 1660. Vols. 11 and III are A Continuation of the same, and of his History of the Grand Rebellion, from the Restoration to his Banishment in 1667.

3 Winifred, , Lady Burghclere, George Villiers, Second Duke of Buckingham (London, 1903), 182–6Google Scholar, Chapman, Hester, The Great Villters (London, 1949), 138–9Google Scholar; Wilson, John Harold, A Rake and His Times (New York, 1954), 99–108.Google Scholar

4 Airy, O, Charles II (London, 1904), 220–3Google Scholar, Imbert-Terry, H. M, A Misjudged Monarch (London, 1917), 183–5;Google Scholar Bryant, A., [King] Charles II (revised edn London, 1935), 189–93.Google Scholar

5 Carte, Thomas, [The Life of James, Duke of] Ormond (6 vols, Oxford, 1851), IV, 302–11.Google Scholar Carte's Ormond was first published in three volumes in 1735–6

6 Foxcroft, H C., [The Life and Letters of Sir George Savile, Bart., First Marquis of] Halifax (2 vols, London, 1898), 1, 53–61.Google Scholar

7 Barbour, Violet, [Henry Bennet, Earl of] Arlington (Washington, D C, 1914), 105–19.Google Scholar

8 Browning, Andrew, [Thomas Osborne, First Earl of] Danby [and Duke of Leeds] (3 vols,Glasgow, 1944–1951), 1, 50–6.Google Scholar

9 Hallam, Henry, The Constitutional History of England From the Accession of Henry VII to the Death of George II (3 vols, New York, 1871), II, 346–56Google Scholar; Ranke, Leopold von, A History of England (6 vols, Oxford, 1875)Google Scholar Hallam's work was first published in 1827, Ranke's (in German) from 1859 to 1869 There are accurate accounts of Clarendon's impeachment in Ogg's, David England m the Reign of Charles II (Oxford, 2nd edn 1955)Google Scholar and Clark's, G N The Later Stuarts (Oxford, 2nd edn 1955)Google Scholar, but they are too brief to be of original importance

10 Tanner, J. R., English Constitutional Conflicts of the Seventeenth Century (Cambridge, 1928), 233–4;Google Scholar Felling, Keith, A History of the Tory Party (Oxford, 1924), 122;Google Scholar Thompson, Mark, A Constitutional History of England, 1642 to 1801 (London, 1938), iii.Google Scholar

11 Holdsworth, W. S., A History of English Law (13 vols, London, 1908–1952), VI, 178–9.Google Scholar

12 Bryant, Charles II, 151–4; Nussbaum, Frederick, The Triumph of Science and Reason, 1660–1685 (New York, 1953), 96–7.Google Scholar

13 It should be remarked that Holdsworth, Bryant, and Nussbaum, when assessing the significance of Clarendon's fall from power, dwell upon his dismissal and say little about his impeachment J. R. Tanner, Keith Felling, and Mark Thompson dwell upon the impeachment and view the dismissal as the first chapter in that story.

14 Clarendon, Life, iii, 811, 826, 836, 838–9; Lord Macaulay, as well as Lister and Craik and others, repeats this error (Macaulay, T. B., The History of England from the Accession of James II[London, 1863], IV, 13).Google Scholar

15 Pepys, Diary, 28 Oct. 1667. Court buffoons and ladies of pleasure no doubt contributed to Clarendon's dismissal, but their role has been given undue emphasis. Charles had never employed Clarendon because he liked him personally, but because he was indispensable. Sir William Coventry, not Lady Castlemaine, offered Charles the means to dispense with the Lord Chancellor.

16 H[istorical] M[anuscripts] C[ommission], Report 14, Part 9, 370; Bryant, Arthur, ed., [The] Letters, [Speeches and Declarations] of [King] Charles II(London, 1935), 205Google Scholar. Baron Lisola, the Imperial ambassador, believed that it was Arlington who persuaded Charles to dismiss Clarendon. On 2 September Lisola wrote to Vienna that Arlington had told the King that he ‘möge den Kanzler bewegen gutwillig dem Sturme zu weichen und die Siegel abzuliefern’. Whereupon, continues Lisola, ‘werde der König sich selber wohl berathen und zugleich den Kanzler der Rache seiner Feinde entziehen’ (Klopp, Onno, Der Fall des Hauses Stuart (Vienna, 1875), 1, 190).Google Scholar But in these matters Pepys, who believed that Coventry's counsels were decisive, is to be trusted before the ambassador. This is especially true since Henry Savile agreed with Pepys (Foxcroft, Halifax, 1, 41).

17 Bodleian Library, Carte MSS. 220, fo. 326: Lord Ossory to his father, the Duke of Ormond, 4 Jan. 1668.

18 P[ublic] R[ecord] Offfice], Baschett Transcripts: Ruvigny to Louis XIV, 20/30 Oct. and 30 Oct./8 Nov. 1667; Barbour, Arlington, 115.

20 Macpherson, James, Original Papers(London, 1775), I, 38.Google Scholar

20 Richard Baxter, Rel[iquiae] Baxt[erianae] (London, 1696), Pt. iii, 20.

21 For Clarendon's role in thwarting those ambitions see Browning, Danby, I, 33.

22 Baxter, Rel. Baxt. Pt. iii, 21. Charles also found it advisable to release the Duke because he could not prove the charges brought against him.

23 Carte, Ormond, IV, 307.

24 Burghclere, Lady (Winifred Gardner), The Life of James, First Duke of Ormond (London, 1912), 11, 139.Google Scholar

25 Reresby, Sir John, The Memoirs of Sir John Reresby (Glasgow, 1936), 71Google Scholar; Browning, Danby, 1, 32–3.

26 Ormond wrote to his son, Lord Ossory (B[ritish] M[useum], Harleian MSS. 7001, fo 264), that the opposition to Clarendon arose largely from those ‘seeking public employments’ Sir Richard Temple, in a memorandum written in 1668, confessed that he and the other anti-Clarendomans joined in the impeachment in the full expectation that there would be a change of persons at Court (B M Sṭowe MSS 304, fo 88) Buckingham admitted the same to John Doddington, Temple's brother-in-law (Doddington to Temple, 28 Jan 1669, Huntingdon Library, Stowe MSS ).

27 H M C, Report 14, Part 9, 370, Ruvigny to Louis XIV, 30 Sept /8 Oct. and 20/30 Oct. 1667

28 Ruvigny to Louis XIV, 19/29 Oct 1667.

29 Ruvigny to Louis XIV, 13/23, 18/28, 19/29 and 20/30 Oct. 1667.

30 Lord Conway wrote to Ormond, ‘This day was once designed for bringing in the impeachment of the late Lord Chancellor, but they thought it was not yet strong enough, and so ‘tis delayed.’ (22 Oct. 1667, Carte MSS. 35, fo. 778.)

31 Sir Richard Temple's description of the composition of the House (B.M. Stowe MSS. 304, fos. 87–8) is the basis for this analysis. It adds much important detail to Wilbur C. Abbott's picture of the House of Commons in the 1660's (‘T h e Long Parliament of Charles II, Part I’, E[nglish] H[istorical] R[eview], Jan. 1906), but it does not alter the main features of that portrait.

32 Ruvigny to Louis XIV, 19/29 Oct. 1667.

33 Lord Conway wrote to Ormond (Carte MSS. 35, fo. 778): “Tis certain that poor Lord Chancellor of England destined for death and the King is to be the chief witness against him…Buckingham governs all and 'tis like to be well done without morality or judgment…his undertaking that the Parliament shall give money makes him continue very acceptable to the Court.’ Buckingham fully described the terms of the undertaking to John Doddington in Jan. 1669 (Doddington to Temple, Huntington Library, Stowe MSS.)

34 Clarendon, Life, II, 454, iii, 676–7; Pepys, Diary, 8 Sept. 1667. E. I. Carlyle, in ‘Clarendon and the Privy Council’ (E.H. R., 1912), argues that this difference of opinion over the role of the Council in the administration was the principal cause for Charles's dissatisfaction with Clarendon.

36 Welwood, James, Memoirs of the Most Material Transactions in England for the last Hundred Years (London, 1820), 112–13Google Scholar; Thoyras, Rapin de, History of England (4 vols, London, 1739), II, 879.Google Scholar

35 Burnet, Gilbert, History [of His Own Time] (Oxford, 1823), I, 436–7.Google Scholar

37 Ruvigny to Louis XIV, 25 Oct./4 Nov. 1667.

38 Carte, Ormond, IV, 306; Ruvigny to Louis XIV, 10/20 Oct. 1667.

39 Eachard, Laurence, History of England (London, 1720), 884; Pepys, Diary, 16 Nov. 1667.Google Scholar

40 Lord Ossory to his father, 24 Jan. 1668, Carte MSS. 220, fo. 327; Verney, F. P. and Verney, M. M., Memoirs of the Verney Family during the Seventeenth Century (London, 1907), II, 305.Google Scholar

41 John Nicholas to his father, Sir Edward Nicholas, 14 Nov. 1667, B.M. Egerton MSS 2539, fo. 138.

42 The Earl of Carhngford wrote to Ormond (Carte MSS. 35, fo 737) on 28 Sept. 1667, ‘I find the King angry with my Lord Chancellor, and that he believes that [to be] the greatest misfortune that can occur to him, being confident to vindicate himself from any crime can be laid to his charge’

43 The Proceedings in the House of Commons, Touching the Impeachment of Edward hate Earl of Clarendon, Lord High-Chancellor of England, Anno 1667 (London, 1700), 29–30Google Scholar. Some rough notes entitled ‘Authorities to prove the first Article treason’ (B.M. Stowe MSS. 425, fos. 86–98) set forth the case for common law treason. According to the author of these notes (and there is every appearance that he was a manager of the impeachment or one who wished it to be severely prosecuted), it was treason to surrender the King's forts, to advise the alteration of the laws, to say that the King was a false man, to deny access to the King's person, to persuade the King that falsehoods were true, to rise up against the law of villenage, to free prisoners from the Tower, to throw down enclosures, or to say that the King had not the love of his subjects.

44 John Nicholas, who was a member of the House of Commons, wrote to his father, 12 Nov. 1667 (B.M. Egerton MSS. 2539, fo. 135), ‘It was the parallel of my Lord of Strafford and I much fear we are acting that tragedy over again; the face of things looks dismally.’

45 Ruvigny to Lionne, 14/24 Nov. 1667; John Nicholas wrote to his father (B.M Egerton MSS 2539, fos. 135–6), ‘The additional words were brought in by Lord St John of Basing, The Lord Vaughan and Sir Robert Howard. All the testimony we heard from them is that one of them heard it from a person of honour….The business upon which they make this impeachment is a story which Baron Lisola tells of what he heard De Witt say in Holland, that the King's counsels were betrayed and fixed it on my Lord Chancellor.’

46 To the objection that Strafford's impeachment by the Long Parliament was no fit precedent, Sir Thomas Osborne answered that Clarendon himself, then Edward Hyde, had promoted it (Danby Papers, B M. Add. MSS. 28,045, fo. 11). In the very same manner, Osborne's role in prosecuting Clarendon was remembered against him when the Commons impeached him in 1678.

47 Ruvigny to Louis XIV, 18/28 Nov. 1667; John Nicholas to his father, 14 Nov. 1667, B M Egerton MSS 2539, fo. 138.

48 John Nicholas wrote to his father (B M. Egerton MSS. 2539, fo. 145), ‘If we split on this rock [commitment on a general charge] the town will then talk loudly what they now whisper, that we are glad of the occasion because we cannot prove our accusation. And if we carry this privilege it is in our power to empty the House of Lords by impeaching all those that stand in our way’

49 Ruvigny to Louis XIV, 18/28 Nov. 1667, Lord Conway wrote to Ormond (P.R.O. Carte Papers, vol 35) that Clarendon's enemies being ‘somewhat diffident of the validity of evidence, do purposely decline the trial of the whole House, that he may come afterwards to a trial by commission directed only to twenty-four of such as they shall choose’.

50 Sir Richard Temple complained bitterly at Charles's refusal to give office to the ‘undertakers’ (B M. Stoue MSS 304, fos 85–6).

51 A Country party pamphleteer (possibly Thomas Baker) wrote in the year 1681: ‘Seeing preferment came by thwarting the King's party and designs, the whole nation, I mean their representatives, made it their constant trade. A great many got it that way and for the present were reconciled and highly offensive to us; but afterwards being laid bv for others that had the same game to play, they became disgusted and more inveterate than ever [against the Court]..’ (The Head of the Nile: or the Turnings and Windings of the Factious Since Sixty [London, 1681])

52 Bray, William, ed, Diary of John Evelyn (London, 1906), II, 224Google Scholar.

53 Clarke, James Stanier, compiler, The Life of James II (London, 1816), I, 593, 662Google Scholar

54 Bryant, Letters of Charles II, 205, 216; Ruvigny to Louis XIV, 2/12 Dec. 1667; Carte, Ormond, v, 67; Pepys, Diary, 22 Apr 1668. There is reason to believe that Charles himself came to see his error In 1674, at the time when the Commons were attacking the members of the Cabal, the Venetian ambassador wrote (Calendar of State Papers, Venetian, 1674–1675, 368), ‘As his Majesty had not the heart to dismiss the late Chancellor Clarendon, Parliament was encouraged to impeach him, and the King now sees the inconvenience of having his ministers attacked by Parliament to the prejudice of his repute and authority.’

55 Charles's dismissal of an over-bearing minister can easily be justified as an assertion of the prerogative, less easily so his dismissal of a minister threatened by an impeachment; and not at all his joining in the impeachment.

56 Clarendon believed that a minister of state should execute the King's commands, even though he had advised against them. Speaker Onslow, in a note to Burnet's History (1, 53), describes this as ‘a very unhappy practice of my lord Clarendon's, which subjugated him to more censure for what he was not the author of, than what he really did advise procured him either blame or approbation It wrought his ruin with the people, and put the King himself very likely upon venturing at measures he would otherwise have been afraid to have attempted.’