The lords, incensed at this step of the commons, which they considered as an insult upon their tribunal, and a violation of common justice, drew up and delivered a counter-address, humbly beseeching his majesty that he would not pass any censure upon the accused lords until they should be tried on the impeachments, and judgments be given according to the usage of parliament. The king was so perplexed by these opposite representations, that he knew not well what course to follow. He made no reply to the counter-address; but allowed the names of the impeached lords to remain in the council-books. The commons having carried their point, which was to stigmatize those noblemen and prevent their being employed for the future, suffered the impeachments to be neglected until they themselves moved for trial. On the fifth day of May the house of lords sent a message to the commons, importing, That no articles had as yet been exhibited against the noblemen whom they had impeached. The charge was immediately drawn up against the earl of Orford: him they accused of having received exorbitant grants from the crown; of having been concerned with Kidd the pirate; of having committed abuses in managing and victualling the fleet when it lay on the coast of Spain; and lastly, of having advised the partition treaty. The earl, in his own defence, declared that he had received no grant from the king except a very distant reversion, and a present of ten thousand pounds after he had defeated the French at La Hogue; that in Kidd’s affair he had acted legally, and with a good intention towards the public, though to his own loss; that his accounts with regard to the fleet which he commanded had been examined and passed; yet he was ready to waive the advantage, and justify himself in every particular; and he absolutely denied that he had given any advice concerning the treaty of partition. Lord Somers was accused of having set the seals to the powers, and afterwards to the treaties; of having accepted some grants; of having been an accomplice with Kidd; and of having some guilt of partial and dilatory proceedings in chancery. He answered every article in the charge; but no replication was made by the commons either to him or the earl of Orford. When the commons were stimulated by another message from the peers, relating to the impeachments of the earl of Portland and lord Halifax, they declined exhibiting articles against the former on pretence of respect for his majesty; but on the fourteenth of June, the charge against Halifax was sent up to the lords. He was taxed with possessing a grant in Ireland, without paying the produce of it according to the law lately enacted concerning those grants; with enjoying another grant out of the forest of Deane, to the waste of the timber and the prejudice of the navy; with having held places that were incompatible, by being at the same time commissioner of the treasury and chancellor of the exchequer; and with having advised the two treaties of partition. He answered, that his grant in Ireland was of debts and sums of money, and within the act concerning confiscated estates; that all he had ever received from it did not exceed four hundred pounds, which, if he was bound to repay, a common action would lie against him; but every man was not to be impeached who did not discharge his debts at the very day of payment. He observed, that as his grant in the forest of Deane extended to weedings only, it could occasion no waste of timber nor prejudice to the navy; that the auditor’s place was held by another person, until he obtained the king’s leave to withdraw from the treasury; that he never saw the first treaty of partition, nor was his advice asked upon the subject; that he had never heard of the second but once before it was concluded; and then he spoke his sentiments freely on the subject. This answer, like the others, would have been neglected by the commons, whose aim was now to evade the trials, had not the lords pressed them by messages to expedite the articles. They even appointed a day for Orford’s trial, and signified their resolution to the commons. These desired that a committee of both houses should be named for settling preliminaries, one of which was, That the lord to be tried should not sit as a peer; and the other imported, That those lords impeached for the same matter should not vote in the trial of each other. They likewise desired that lord Somers should be first tried. The lords made no objection to this last demand; but they rejected the proposal of a committee consisting of both houses, alleging that the commons were parties, and had no title to sit in equality with the judges, or to settle matters relating to the trial; that this was a demand contrary to the principles of law and rules of justice, and never practised in any court or nation. The lords, indeed, had yielded to this expedient in the popish plot, because it was a case of treason, in which the king’s life and safety of the kingdom were concerned, while the people were jealous of the court, and the whole nation was in a ferment; but at present the times were quiet, and the charge amounted to nothing more than misdemeanors; therefore the lords could not assent to such a proposal as was derogatory from their jurisdiction. Neither would they agree to the preliminaries; but on the twelfth day of June resolved, That no peer impeached for high crimes and misdemeanors should, upon his trial, be without the bar; and that no peer impeached could be precluded from voting on any occasion except in his own trial. Divers messages passed between the two houses,—the commons still insisting upon a committee to settle preliminaries; at length the dispute was brought to a free conference.