of the Clock in the Treasury-Chamber A Message from the Lords to desire a free Conference by the same Committee that last met touching the Demands concerning the Trial of Thomas Earl of Strafford in the Painted-Chamber presently if it may stand with the conveniency of this House Answer returned by the same Messengers That this House has taken their Lordships Message into Consideration and will give a meeting presently by the same Committee as is desired The Committee for the Earl of Strafford are appointed to manage and Report this Conference Friday March 12th 1640. Mr. Whitlock Reports from the Earl of Strafford's Committee such Heads as that Committee does present unto this House to be the Heads of a free Conference to be desired with the Lords concerning the matter of the last free Conference with the Lords touching the Trial of Thomas Earl of Strafford Upon this Report It was Resolved upon the Question That this shall be the first Head of the free Conference viz. 1. As concerning Place that this House doth conceive that although the Bar of the Lord's House be removed and some Members thereof absent yet without the Bar the Room will not be sufficient to contain the Members of the House of Commons and that their Lordships will be pleased to direct some other Place for the Trial. For the Presidents concerning the Place their Lordships take notice in their Conference That the Parliament sate in the Chamber Blank 1 R. 2. but the Parliament being Summoned to appear at the King's Palace at Westminster if one Room be not convenient another Room might be desired that shall be more convenient Resolved upon the Question That this shall be the Second Head of the free Conference viz. 2. That the Earl of Strafford being Impeached by the Commons it doth belong to the House of Commons to Resolve who are to be present at the Trial and that of Right they may come as a House if they please but however they are Resolved to send their own Members as a Committee of the whole House Resolved upon the Question That this shall be the Third Head of that free Conference viz. 3. That by the managing of the Evidence this House doth mean the ordering applying and inforcing the Evidence according to the truth of the Fact Ordered That the Fourth Head of this Report now made from the Committee of the Earl of Strafford concerning the matter of Council be recommitted to the same Committee with the addition of the Lawyers of the House as was Yesterday made and they are likewise to take into Consideration what those Gentlemen have incurred that have been of Council with the Earl of Strafford he being accused of High Treason by this House in the Name of Themselves and of all the Commons of England and to present to this House what they think is fit to be done in that business and Mr. Peirepoint and Mr. Martin are added to this Committee as to this business and they are to meet this Afternoon at Two of the Clock in the Treasury-Chamber Saturday March 13th 1640. Mr. Peirepoint is appointed to go to the Lords to desire a free Conference by the same Committee that was last appointed for the free Conference touching the Trial of Thomas Earl of Strafford Mr. Whitlock Reports from the Committee for the Earl of Strafford That the House had heard part of this Report the other day viz. 1. The place of Trial. 2. The Persons to be present 3. The managing of the Evidence these three passed their Vote Yesterday The Fourth Head concerning Counsel was recommitted which received this Resolution That the Commons do acquaint their Lordships that if at any time during the Evidence the Counsel for the Earl of Strafford shall interpose when the Members of this House that are appointed to manage the Evidence are speaking they must of necessity desist because it will not become them to plead against Counsel and as concerning the allowing of Counsel in matters of Law and reserving to their Lordships to judge the Doubts what is matter of Law and what Fact the Commons do save to themselves all Right that doth appertain to them according to Law and course of Parliament and do declare That the Proceedings in this Case shall not be drawn into President to the prejudice of the Commons For the other matter concerning the Offence of the Counsel of the Earl of Strafford by being of Counsel with him without leave of this House the Committee could not proceed the other matter taking up the whole time The Committee for the Earl of Strafford are to manage this Conference Mr. Whitlock acquaints the House That according to the Command of this House he had delivered unto the Lords the Votes that had passed here concerning the Trial of Thomas Earl of Strafford A Message from the Lords desiring a free Conference by the same Committee touching the Demands concerning the Earl of Strafford presently in the Painted-Chamber if it may stand with the conveniency of this House Answer returned by the same Messengers That this House has taken their Lordships Message into Consideration and will give a meeting presently as is desired The same Committee is to manage and Report this Conference Mr. Whitlock Reports from the free Conference touching the Demands concerning the Trial of the Earl of Strafford That the Lord of Bath was pleased to declare in the Name of the Lords That the House had taken into Consideration those Demands made this Morning and agreed upon an Answer to every one of them First As to the Place they had agreed it should be in Westminster-Hall and the King to be made acquainted with it by the Lord Great Chamberlain Secondly For Persons their Lordships agreed to it That the House of Commons be present as a Committee of the whole House for this time with a saving of the Right of the Lords House either according to Law or Parliamentary Proceedings and that this shall not be drawn into President hereafter on either side For the Third For the managing of Our Evidence they grant it wholly For the Fourth For Counsel in managing and forcing of Evidence the Counsel of the Earl of Strafford is not to speak nor interrupt the matter of the House of Commons until all the Evidence is finished and the Counsel is not to stand at the Bar but in some convenient place where they may hear and that they may speak for matter of Law but not for matter of Fact and that not unless their Lordships shall see fitting Next For the time my Lord of Bath did tell Us They could not yet Resolve upon it till the Surveyor and Workmen that did take care to build the Scaffolds did give account how soon they could be ready Ordered That it be referred to the Committee for the Earl of Strafford with the addition made to the Committee for this purpose to consider of the saving and the other part of the Report now made from the
of Mr. Peard shall be present at the several doors at the Entrance of the place appointed for the Members of the House by Six of the Clock and are directed and required by the House to admit none but such as shall bring Tickets of their Names and the Places for which they Serve and that none of the Members of the House shall be admitted to come in before those that are appointed to attend at the doors shall come and if any either Stranger or Member of the House shall offend this Order those who are appointed to attend this Service shall Report it to the House And it is further Ordered That all of the House shall be there by Eight of the Clock at the farthest and that such places shall be reserved for them who shall attend this Service as they shall find to be most proper and convenient for them 4. Ordered That the Serjeant at Arms shall attend within the Court and his Men without to be imployed in such Service as they who manage the Evidence shall appoint Sir Iohn Culpepper further Reported That the Speaker might be present in some private place and as a particular Member of this House but the Committee doth not think fit that the House should declare any Order in it Touching the Members of the House being covered at the Trial the Committee thinks it not fit for them to deliver any Opinion only they offer the difference that may be when both Houses meet or Committees of both Houses and the present Case where the Lords are to meet as a House and the Commons as a Committee of their House Resolved upon the Question That the House shall sit this Afternoon and shall meet at Two of the Clock Mr. Bellasis went up to the Lords with this Message To desire their Lordships That in regard this House is much straitned in time and hath great Affairs in hand and will sit this Afternoon and may have occasion of a Conference with their Lordships that they will be pleased to sit likewise The humble Petition of Thomas Earl of Strafford was this day read wherein he desires That he may make use of some Members of this House nominated in his Petition as Witnesses at his Trial and the House leaves those Members nominated in the said Petition to do therein as they shall please without their giving any offence to the House Mr. Martin is to go up to the Lords to desire a free Conference with their Lordships by the same Committee that was formerly appointed touching the matter of the last free Conference concerning the Trial of the Earl of Strafford Ordered That those Members of the House that are appointed to manage the Evidence at the Trial of the Earl of Strafford shall have Power if any Witnesses be produced for the Earl to ask if they have been sworn and if it shall appear that they have been sworn or if any shall be sworn at the Bar to forbear to proceed any further in the managing of their Evidence until they have resorted unto the House and have received further Order All the Orders that concern the Proceedings against the Earl of Strafford are required to be Copied out for the Service of the Committee The Names of the Members of the House of Commons appointed to manage the Evidence against Thomas Earl of Strafford at his Trial before the House of Peers upon an Impeachment of High Treason George Lord Digby Iohn Hampden Esquires Iohn Pym Oliver St. Iohn Esq shortly after Solicitor-General to King Charles the First Sir Walter Earle Knight Ieoffery Palmer afterwards Knighted and made Attorney-General to King Charles the Second Iohn Maynard Esq afterwards Serjeant at Law to King Charles the Second Iohn Glyn Esq Recorder of London afterwards Sworn one of the Council to King Charles the Second The Place for the appearance of the Lord Lieutenant was the great Hall in Westminster where there was a Throne erected for the King on each side whereof a Cabinet inclosed about with Boards and before with Arras before that were the Seats for the Lords of the Upper-House and sacks of Wooll for the Judges before them ten Stages of Seats extending farther than the midst of the Hall for the Gentlemen of the House of Commons at the end of all was a Desk closed about and set apart for the Lord Lieutenant and his Counsel On Monday Morning March 22. about Seven of the Clock he came from the Tower accompanied with six Barges wherein were one hundred Souldiers of the Tower all with Partizans for his Guard and fifty pair of Oars At his landing at Westminster there he was attended with two hundred of the Trained Band and went in guarded by them into the Hall The entries at Whitehall Kingstreet and Westminster were guarded by the Constables and Watch-men from four of the Clock in the Morning to keep away all base and idle persons The King Queen and Prince came to the House about Nine of the Clock but kept themselves private within their Closets only the Prince came out once or twice to the Cloth of State So that the King saw and heard all that passed but was seen of none Some give the reason of this from the received practise of England in such Cases Others say That the Lords did intreat the King either to be absent or to be there privately lest pretentions might be made hereafter that His being there was either to threaten or some other ways to interrupt the Course of Justice A third sort That the King was not willing to be accessary to the Process till it came to His Part but rather chose to be present that he might observe and understand if any Violence Rigour or Injustice happened When the Lieutenant entred the Hall the Porter of the Hall whose Office it is asked Master Maxwell Whether the Ax should be carried before him or no Who did Answer That the King had expresly forbidden it nor was it the Custom of England to use that Ceremony but only when the Party Accused was to be put upon his Jury Those of the House of Lords did sit with their Heads covered those of the House of Commons uncovered The Bishops upon the Saturday before did voluntarily decline the giving of their Suffrages in matters Criminal and of that nature according to the provision of the Cannon Law and practice of the Kingdom to this day and therefore would not be present yet withall they gave in a Protestation that their absence should not prejudice them of that or any other Priviledge competent to them as the Lords Spiritual in Parliament which was accepted The Earl of Arundel as Lord High Steward of England sate apart by himself and at the Lieutenant's Entry Commanded the House to proceed Master Pym being Speaker of the Committee for his Accusation gave in the same Articles which were presented at his last being before the Upper House which being read his Replies were subjoyned and read
Lordships satisfaction will in good time be given That though this particular is not Treason yet all the parts of it amount to the Subversion of the Laws of the Kingdom That is prest as Treason and this as an Evidence That for the second Commission it follows as the other if he procured the one he is guilty as if he procured both it being the same Power still THE Second Article The Charge THat shortly after the obtaining of the said Commission dated the 21st of March in the Eighth year of His Maiesties Reign to wit the last day of August then next following he the said Earl to bring His Maiesties Liege People into a dislike of His Maiesty and of His Government and to terrifie the Iustices of the Peace from executing of the Laws He the said Earl being then President as aforesaid and a Iustice of Peace did publickly at the Assizes held for the County of York in the City of York in and upon the said last day of August declare and publish before the People there attending for the Administration of Iustice according to Law and in the presence of the Iustices sitting That some of the Iustices were all for Law and nothing would please them but Law but they should find That the Kings little Finger should be heavier than the Loyns of the Law WE are come now to the second Article touching words spoken of the King That the Kings little Finger should be heavier than the Loyns of the Law For that we desire to produce Witnesses and they will shew how my Lord of Strafford is mistaken in his Answer Or if he says true As he slanders the King in one sense so he slanders the Law in another Witnesses produced William Long Sworn and interrogated What words he heard my Lord of Strafford speak concerning the comparison between the Kings little Finger and the Loyns of the Law On what occasion Where and at what time Answered When Sir Thomas Leyton was Sheriff of York-shire 1632. as he takes it My Lord of Strafford being there he heard his Lordship say these words That some nothing would content but Law but they should know The Kings little Finger should be heavier than the Loyns of the Law And this was spoken in the place where the Judges sate in York-Castle at the Assizes that year The occasion he knew not but it was publickly spoken and as he thought my Lord did not then sit on the Bench but stood at the Barr. Sir Thomas Leyton was Sworn and being thick of hearing the Manager was directed by my Lord Steward to interrogate him to the effect aforesaid Who Answered My Lord said Some would not be satisfied but by Law but they should have Law enough for they should find the Kings little Finger to be heavier than the Loyns of the Law His Lordship being on the Bench then with the Judges at that time and abundance of the Country being there then at Lammas Assizes at the Castle-Bench And he thinks it was 1632. or 1633. but he knew not the occasion Marmaduke Potter having been examined as a preparatory Witness and since being deceased it was desired his Deposition might be read The Lord Steward declared That the Examinations of those preparatory Witnesses should be read in case any should be dead To prove Marmaduke Potter's death Thomas Harrison was Sworn Being interrogated what he knew concerning the death of Marmaduke Potter Answered That since his coming out of York-shire he heard a report from his Neighbours that M. P. is dead and buried That he the Deponent lived a Mile from the said Marmaduke Potter which is Ninescore and Ten Miles from this place but he heard no particular of the day of his burial The Examination of Marmaduke Potter Gent. taken Ianuary 1640. to the 10th and 11th Inter. He saith That about eight years since when Sir Thomas Leyton was Sheriff of York-shire he heard the Earl of Strafford make a Speech publickly at the Bench at Summer-Assizes and he said then That the Kings little Finger should be heavier than the Loyns of the Law I know not whether it were material for me to Answer this or no but as the Charge is laid it is impossible I should be guilty of the words For it is laid to be the last of August next following the 21st of March in the Eighth year of His Majesties Reign which falls out to be when I was in Ireland But I desire not to stand on such Niceties but that Truth may appear The words confessed in my Answer are quite contrary being That the little Finger of the Law was heavier than the Kings Loyns And that I set forth in my Answer and the occasion of them which these Witnesses do not or else will not remember The occasion was this There came divers Levies in the year when Sir Thomas Leyton was Sheriff for divers great sums of money for issues in the Knighting-business on some that had compounded and paid their money to me the Receiver of that money then and by me answered in the Exchequer yet these Issues came down through some Errour above and were levied with very great rigour by Sir Thomas Leyton When I came down I spake with Sir Thomas Leyton and shewed him how the men were injured and did desire him to return the money to them again and I would see him discharged in the Exchequer which he was contented to do And then to give satisfaction to the Country I told them That that Commission was a Commission of Grace and Favour and that their Compounding with the King was an ease to them and much greater ease than by a proceeding at Law would have fallen on them the very first Issues being three or four times more than they had compounded the whole for And thereupon I applyed that Speech That the little Finger of the Law was heavier than the Loyns of the King For if I should then have fallen to threaten them I had spoken contrary to the end I had proposed which was to incline them And further that not one of the Witnesses spoke any thing to the occasion of the Speech That it is long since and was never yet complained of and that man must have a stronger memory than I that will undertake to swear positively the very words spoken seven or eight years ago And under favour he ought to have better Ears than Sir Thomas Leyton who appears to have such an infirmity in hearing that he must now be whoopt to at the Barr before he can hear and sure his sense of hearing is much decayed else he could not have heard me speaking at that distance to the place where the Sheriff sits in an open place as far distant as from the Barr where I now stand to my Lord Steward or very near Dr. Duncombe being asked Whether he came accidentally to York that day and what he heard the words repeated to be He Answered He came from
the Subject and yet they go on hand in hand and long may they do so long may they go in that Agreement and Harmony which they should have done hitherto and I trust shall be to the last not rising one above another in any kind but kept in their own wonted Channels For if they rise above these heights the one or the other they tear the Banks and overflow the fair Meads equally on one side and other And therefore I do and did allow and ever shall for my part desire they may be kept at that Agreement and perfect Harmony one with another that they may each watch for and not any way watch over the other And therefore this being a Care of the Prerogative as long as it goes not against the Common Law of the Land it is the Law of the Land and binds as long as it transgresses not the Fundamental Law of the Land being made provisionally for preventing of a Temporary Mischief before an Act of Parliament can give a Remedy And this Condition must be implyed That it must be binding provided it be according to the Law of the Land I instance in that Exception that King Iames would take when a man saies he will do a thing as far as he may with Conscience and Honour because in Persons of Conscience and Honour those words are always implied That the Wisdom of our Ancestors hath prevented this Mischief That for a mis-word a Peer of England should lose his Priviledge being as great as any Subjects that live under a King that is not a free Prince of the Empire And the Preamble of a Statute in Queen Elizabeths time the very bent whereof is to take away the dawning of words without any further Act which Preamble was read to their Lordships And so I conclude the words were unwisely spoken because they may be brought to a hard sense but not Criminal for none of them swear any thing done in breach of the Law I except against my Lord Kilmallock's swearing Sir George Ratcliffe to be my Eccho as if he knew my thoughts and against Mr. Hoy as a party concerned in Interest though not in name in a Suit that is or will be brought against me before your Lordships come to the end of the Charge I confess Mr. Waldron's Testimony makes me stagger being the only person could make me believe I said the words I except against Sir Pierce Crosbies Testimony having been formerly Sentenced in Star-Chamber and I know what Sir Pierce Crosby swore there and that I never Communed with him so far as to have such a Discourse as is mentioned in all my life To the Suit in the Castle-Chamber against the Earl of Corke on pretence of breaking an Order of Council-Table I conceive it had relation to an Order made in King Iames his time 20. March 11 Iac. which I desire may be read being now produced as also the Information there exhibited that so I may justifie my Answer in that point of it That the Suit was not upon that Act alone but for other matters also but that was admitted by the Committee And so the reading of them was waved To that Point of Mr. Waldron's Testimony touching the offering of a Lease to the Person concerned rendring the half value I conceive this Circumstance qualifies the words it being according to Law To demonstrate which the Statue was read That no Lease shall be granted upon which less is reserved to the Lessor during 21 years then the moiety of the Lands value And so his Lordship concluded his Defence and the Manager made Reply in substance as followeth That this Article proves my Lord of Strafford's Intention to subvert the Laws That the long time spent in maintaining the Jurisdiction of the Council-Board is the least part of the Article That though these words singly be admitted not to be Treason yet several words and actions must prove the general Charge of his endeavouring to subvert the Laws To the several Provisoes in that Act of Parliament mentioned by my Lord of Strafford concerning words we observe That the words Charged are only matter of Evidence to his general Intention of subverting the Laws And whereas he says they are not charged in time the Commons bring this as done long ago and continuing to this day if he were not prevented so they take him Flagrante Crimine To the Practise of the Council-Table before his time his Witnesses have proved their proceedings in Cases of the Church and Plantations But in other Cases we deny it for it is contrary to Law That admitting the extent given by the Instructions to Church-Causes though the Proclamation hath no such exception Yet it comes not to the Case of my Lord of Cork who claimed the thing in question as a Lay-Impropriation derived to the Crown by the Statute of Dissolution That my Lord of Strafford makes this Government Arbitrary in threatening the Earl of Cork to lay him by the heels if he went to Law whereas the Order gave him liberty That the Original Order in my Lord of Corke's Cause was drawn with these words put out concerning Gwyn's giving Security and that justifies my Lord of Cork's Testimony That notwithstanding my Lord of Strafford's justification of his words That neither Law nor Lawyers should question his Orders This is to assume an Arbitrary Power for if his Orders be legal the Law must justifie them if not question them That the words Of making an Act of State equal to an Act of Parliament are proved by my Lord of Corke and those spoken are a confirmation of those before and expresly within the Article The latter point thereof recites that he spake the words at other times This altogether justifie my Lord of Corke's Testimony though a single Witness and prove that my Lord of Strafford hath made it a habit to speak such words That they have one Witness more and that is my Lord of Strafford himself who says He never spake any thing but truth and said That he would make an Act of State equal to an Act of Parliament We desire that for the taking off the Aspersion cast on Sir Pierce Crosby my Lord of Castlehaven may be examined touching the words alledged to be spoken in his presence The Earl of Castlehaven being sworn and examined touching the said words Answered That it is a business past long ago and but a Table-discourse and he took not much notice of the Circumstances But as he remembers there fell a difference between my Lord of Strafford and Sir Pierce Crosby within three or four months after my Lords coming over and that as well as he can remember my Lord of Strafford did say That an Act of State was equal to an Act of Parliament but he remembers not the occasion That the Justice of the Order in my Lord of Corke's Cause is not material or whether within the Jurisdiction of the Council-Table the Charge being That upon such
Letters Patents under the Great Seal to exercise a Power against Law was complained of in Parliament and had Judgment for it among other things of High Treason They proceeded to Proof And first The Earl of Corke being asked whether before my Lord of Straffords time he hath known the Deputy or Justices alone determine any matter of Land in Equity or otherwise He Answered He remembers not any except in cases of the Church and Plantation The Lord Ranulagh being asked to that point Answered Never any to his knowledge having been of the Table two and twenty years Sir Adam Loftus being asked to the same point Answered He remembers not any having been a Privy-Counsellor 20 years The Lord Mountnorris being asked to that point Answered He never knew any having been a Privy-Counsellor since 14 Iac. and lived in Ireland 38 years That he was there all the time of my Lord Chichester or very near and was so acquainted with his proceedings that he dare engage himself for all he is worth that the Lord Chichester never put any such Order under his hand The Earl of Bath Sworn and asked to that point Answered That he hath often heard the Deputy in cases of Debt for relief of poor men hath proceeded alone but in cases of Land he never heard of any To take off Henry Dillon's Testimony the Manager alledged That he had been Sentenced at the Council-Board for speaking untruths My Lord of Strafford desired the Exception might not be made some Exceptions by him made to Witnesses against him being not admitted and that there might be unum pondus una mensura The Manager Answered In eodem genere Mali. This Exception is not for Extortion or collateral matters but for Perjury Thereupon his Acknowledgment was read wherein he confesses he had highly transgressed against the Honour of His Majesty and the Board in presuming to declare apparent untruths And that such an Acknowledgment was made was testified by Sir Adam Loftus and likewise by the Lord Dillon who shewed their Lordships the occasion thereof To the matter of my Lord Mountnorris his Imprisonment it was offered under my Lord of Straffords own hand to shew that it was partly upon the Sentence December 24. 1636. My Lord of Strafford not denying it to be his hand it was read being a Reference upon my Lord Mountnorris his Petition and in substance as followeth That for the Petitioners restraint more than twelve months he hath no body to blame but himself that hath all that space lain under a deserved censure of the Council of War and stood in Contempts and trifled with the Court of Castle-Chamber That His Majesties removal of the Sentence hath been often signified but never sued forth That the Petitioner did to the same effect Petition the Lord Deputy in May last and therefore all the Answer that for the present can be given is that his most gracious Pardon seeks no man nor can His Majesty remit all of that Sentence to be applied to the Petitioners benefit till by his humble suit he procured His Majesties Pardon under the Great Seal c. which taking the usual way and humbly acknowledging the justness of that Sentence he may have c. A Petition was then read directed to the Earl of Strafford from my Lord Mountnorris Praying a Warrant for a Pardon under the Great Seal according to the Law and the purport of His Majesties directions if his Lordship shall conceive His Majesties Letters on which the Lord Mountnorris relied as sufficient did not amount to a Legal Pardon Then was read my Lord of Straffords Answer Dublin Ianuary 30. 1636. When the Petitioner shall prefer his Petition for the said Pardon acknowledging the justness of the Sentence pronounced against him by the Council of War we shall take his Request into our further consideration Wentworth Whence one of the Managers observed That the King directs a Pardon to be drawn and till the Sentence be acknowledged to be just no consideration shall be taken and that the Preamble of the Pardon recites as much and he would not suffer it to be Sealed till this Acknowledgment passed Then was produced the Lady Mountnorris her Petition to His Majesty referred to the Lord Strafford Mr. Anslowe Sworn attested the truth of the Copy and it was read Setting forth her Sorrow on behalf of her Husband suffering in Honour Health and Imprisonment for a word mis-interpreted and still pursued in the Castle-Chamber and humbly praying a Command for his coming into England c. His Majesties Reference to my Lord of Strafford Iuly 18. 1636. His Majesty is pleased That on such a Submission as the Lord Deputy shall approve of he shall have his Liberty to come into England wherein the Lord Deputy is to take notice and to give Order therein accordingly Mr. Anslowe being asked whether this was brought to the Deputy by the Lady Mountnorris and whether he did not reject it He Answered That he was by when my Lady Mountnorris presented the Petition she was humbly on her Knees to desire my Lord of Strafford to receive it And he refused absolutely to receive it from her They then produced the Order in a Cross Suit in t Robert Parkhurst Plaintiff and the Lord Baltinglasse al. Defendants Et e contra The Order was read whereby certain Lands for 3000 l. paid at several times to the Viscount and 300 l. more to be paid afterwards were setled with Sir Robert Parkhurst William Brettergh Sworn was Interrogated touching my Lord Baltinglasse his Possession of the said Lands and his dispossessing thereof He Answered That he was Sollicitor for prosecuting of this Cause and made Defence of it in behalf of my Lord of Baltinglasse being then in England But at the time of the Decree his Lordship was come over That his Lordship never made Answer to it but when the Cause came to hearing my Lord of Strafford ordered the Possession of the Land against my Lord Baltinglasse and the Possession before was in one Grimble who was Tenant And that he could speak many other things concerning the carriage of it Mr. Glyn desired the Witness might be examined touching my Lord of Straffords purchase of those Lands and offered the Articles whereby my Lord of Strafford leased the Land for 28 years and at 666 l. per annum My Lord of Strafford confest thereupon that he had it but it was in Trust for a Noble Person The Manager observed That whether it was for a Friend or himself it is equal for a man will do a courtesie for his Friend as soon as for himself And so he concluded his Reply hoping that their Lordships were satisfied that he hath introduced an Innovation and being so that he hath exercised a Tyrannical Power over the Estates of His Majesties Subjects To such parts thereof as was new matter my Lord of Strafford replied in substance as followeth
only excepted as be imployed here c. do hereafter make their personal Residence and not depart for England or other place without privity of Our Deputy any former Letters to the contrary notwithstanding And because We resolve to have this course constantly observed if you shall have notice of any Contemner of this Command Our Will and Pleasure is That you proceed against them in an exemplary way to deterr others And for so doing this shall be your Warrant My Lord of Strafford observed That he might well have hoped that this being required by the Laws of the Land that no man should depart without Licence but it should be penal to him having their own Articles which desire the same thing That by this Proclamation the Power of my Lord of Faulkland was established upon him and the Kings Command for the issuing this Proclamation being justified by the Kings own Letter so that this should not have been laid to him for so great and high a crime as it hath been represented to your Lordships and he trusted that by that time their Lordships thought it not so great a crime as it might at first seem to be That he was not very hasty in issuing the Proclamation he having no interest in it nor nothing to drive him forwards for tho His Majesties Command was bearing date 20 Iune 1634. yet the Proclamation issued not till Sept. 17. 1635. And because all he had said had been turned on him as a crime his Lordship gave this further Answer That there could be no Proclamation made by the Deputy alone he being absolutely restrained by his Commission not to make a Proclamation without the Council therefore he could not be singular in the fault but had the consent of all the Kings Council and for instance in matter of Law the Chief Justices are sitting at the Board to whom all matters of Law are referred and they are answerable for it and are so learned that they could not do things so frequently without good authority and this he offered in excuse of this and all other Proclamations not doubting but it was according to the Laws and Customs of the Land And for further satisfaction that part of his Commission that concerned the Proclamation was read and in this particular he desired leave to offer something more with all Humility that tho none of these were for his justification yet for Reasons of State this Restraint was most necessary for whosoever goes over Deputy while these two great men to term them no worse O Neal and Tir-Connel have Regiments of the most antient Irish Septs serving the King of Spain under their Command it is necessary for him to have an eye upon them for if every one might withdraw himself at pleasure without giving an account it would open all the power and means that possibly can be to distemper that State and certainly if that liberty might be granted he feared it would produce sad events in that Kingdom Moreover if all the Primogeniture and Nobility of that Religion should be suffered to go over to Doway St. Omer and the Jesuites Colledges it was to be feared they should not be so well brought up for the service of the King and Common-wealth as may be desired and therefore it was necessary according to the constitutions of that Kingdom that they shall give an account to the Chief Governor And it was no other than what is practised here in England no man being at liberty to goe hence into France without Licence And certainly said he it is an Account we owe to the King and stands with the Law of nature Pater Familiae may take accompt of his own Houshold and the King being the great Father of the Common-wealth we owe this Accompt to him Therefore he conceived it can be no great offence in him to do this on these grounds and as he recommended the prosperity of that Kingdom and His Majesties affairs there and here to God by his Prayers and good desires so he wishes it might be taken into good consideration that this may be continued as a principal and necessary expedient to give His Majesty that account without which the Governor shall not be able to take just measures of things there His Lordship then observed that something had been observed that was no part of his Charge and therefore presumed their Lordships would not expect an answer to it or conclude him any way in their Judgement guilty of it since the means of giving that satisfaction which otherwise he should have done are now taken away But when they came to be complained of in their proper place he is ready to give such an account as becomes a Just and Innocent man But that which seems to be the foulest of them was that concerning my Lord of Esmond of which he remembred very little but something darkly and if it appeared not as he should say he was extreamly mistaken for what he did not know or remember he would not speak of it confidently and in short the point is this Two men swear that he the Lord of Strafford denied liberty to my Lord of Esmond to come for England Aug. 1638. and that he was kept in Ireland and could not have Licence to come away till April 1639. His Lordship confessed it to be very true and that he remembred my Lord of Esmond desiring to go over was stopped by him a while he being Sergeant Mayor-General of the Army the Army having occasion of motion and that he was sure it was much about the time if his Memory failed him not extreamly but when it came to this time and he had means to produce witnesses he hoped to make this appear besides he was mistaken if he did not very shortly after give him a Licence and that he found not occasion to make use of it and if that was was so all they said was taken away for he afterwards finding it to draw towards winter laid aside the Licence till the Spring at Spring he asked it and had it but in these things not judicially brought against him and to which he could not make certain Answers he hoped he might stand clear and unprejudiced till he may answer positively for himself and then as their Lordships should find him they might judge of him and he should ever most willingly submit to their Judgements and abide it whatever it was And whereas the Witnesse said my Lord of Esmond was hindred because he had no Commission to examine Witnesses my Lord of Strafford said he was able to prove that a Bond was granted him to examine Witnesses And the Witness being accidentally there his Lordship took notice of Gods providence from that and said God Almighty was willing to help and assist him wonderfully in his Trial and that his Goodness to him in this Cause had been a great deal more than he would trouble their Lordships withal at that time but he said he was confident God had
impeachment of the Earl of Strafford by the House of Commons whereby he stands charged with High Treason and your Lordships have heard his Defence with patience and with as much Favour as Justice would allow We have passed through our Evidence and the result of all this is that it remains clearly proved That the Earl of Strafford hath endeavoured by his Words Actions and Counsels to subvert the Fundamental Laws of England and Ireland and to introduce an Arbitrary and Tyrannical Government This is the envenomed Arrow for which he inquired in the beginning of his replication this day which hath infected all his Blood This is that intoxicating Cup to use his own Metaphor which hath tainted his Judgement and poisoned his Heart from hence was infused that specifical difference which turned his Speeches his Actions his Counsels into Treason not cumulativè as he exprest it as if many misdemeanors could make one Treason but formally and essentially It is the end that doth inform Actions and doth specificate the nature of them making not only criminal but even indifferent Words and Actions to be Treason being done and spoken with a Treasonable intention That which is given to me in charge is to shew the quality of the offence how hainous it is in the nature how mischievous in the effect of it which will best appear if it be examined by that Law to which he himself appealed that Universal that Supream Law Salus populi This is the Element of all Laws out of which they are derived the end of all Laws to which they are designed and in which they are perfected How far it stands in opposition to this Law I shall endavour to shew in some considerations which I shall present to your Lordships all arising out of the evidence which hath been opened The First is this It is an offence comprehending all other offences here you shall find several Treasons Murthers Rapines Oppressions Perjuries The Earth hath a Seminary Virtue whereby it doth produce all Herbs and Plants and other vegitables There is in this Crime a Seminary of all evils hurtful to a State and if you consider the reasons of it it must needs be so the Law is that which puts a difference betwixt good and evil betwixt just and unjust if you take away the Law all things will fall into a confusion every man will become a Law to himself which in the depraved condition of humane nature must needs produce many great enormities Lust will become a Law and Envy will become a Law Covetousness and Ambition will become Laws and what dictates what decisions such Laws will produce may easily be discerned in the late Government of Ireland The Law hath a power to prevent to restrain to repair evils without this all kind of mischief and distempers will break in upon a State It is the Law that doth entitle the King to the Allegiance and Service of his People it entitles the People to the Protection and Justice of the King It is God alone who subsists by himself all other things subsist in a mutual dependence and relation He was a wise man that said that the King subsisted by the field that is tilled it is the labour of the people that supports the Crown If you take away the protection of the King the vigor and cheerfulness of Allegiance will be taken away though the obligation remain The Law is the boundary the measure betwixt the Kings Prerogative and the Peoples Liberty whilst these move in their own Orbs they are a support and a security to one another the Prerogative a cover and defence to the Liberty of the People and the people by their Liberty are enabled to be a foundation to the Prerogative but if these bounds be so removed that they enter into contestation and conflict one of these mischiefs must ensue If the Prerogative of the King overwhelme the Liberty of the People it will be turned into Tyranny if Liberty undermine the Prerogative it will grow into Anarchy The Law is the safeguard the custody of all private Interest your Honors your Lives your Liberties and Estates are all in the keeping of the Law without this every man hath a like right to any thing and this is the condition into which the Irish were brought by the Earl of Strafford And the reason which he gave for it hath more mischief in it than the thing it self they were a conquered Nation There cannot be a word more pregnant and fruitful in Treason than that word is There are few Nations in the world that have not been conquered and no doubt but the Conqueror may give what Laws he pleases to those that are conquered but if the succeeding pacts and agreements do not limit and restrain that Right What People can be secure England hath been conconquered and Wales hath been conquered and by this reason will be in little better case than Ireland if the King by the right of a Conqueror gives Laws to his People shall not the People by the same reason be restored to the right of th e Conquered to recover their Liberty if they can What can be more hurtful more pernicious to both than such propositions as these And in these particulars is determined the first Consideration The Second Consideration is this This Arbitrary Power is dangerous to the Kings Person and dangerous to his Crown it is apt to cherish Ambition Usurpation and Oppression in great Men and to beget Sedition and Discontent in the People and both these have been and in reason must ever be causes of great trouble and alteration to Princes and States If the Histories of those Eastern Countreys be perused where Princes order their affairs according to the mischievous Principles of the Earl of Strafford loose and observed from all rules of Government they will be found to be frequent in Combustions full of Massacres and of the tragical ends of Princes If any man shall look into our own stories in the times when the Laws were most neglected he shall find them full of commotions of civil distempers whereby the Kings that then Reigned were always kept in want and distress the People consumed with Civil Wars and by such wicked Counsels as these some of our Princes have been brought to such miserable ends as no honest heart can remember without horror and earnest Prayer that it may never be so again The Third Consideration is this The Subversion of the Laws and this Arbitrary Power as it is dangerous to the Kings Person and to his Crown so is it in other respects very prejudicial to His Majesty in His Honor Profit and Greatness and yet these are the Gildings and Paintings that are put upon such Counsels These are for your Honor for your Service whereas in truth they are contrary to both But if I shall take off this varnish I hope they shall then appear in their own Native deformity and therefore I desire to consider them by these Rules
Quality and Trust are in Ireland material Witnesses to be examined as the Master of the Rolls the Lord Chancellor and others these can hardly be spared to come hither to give their Testimony The Committee desires the Advice of the House in this particular which without their Judgments cannot be determined to think of some way how these Parties might have their Testimony taken and the Truth might be known and Justice done This whole matter thus Reported from the Committee for Irish Affairs is recommitted to the same Committee again to consider of it and to draw those things that are to be inquired of under apt Heads and so present them to the judgment of this House to proceed accordingly Mr. Maynard Mr. St. Iohns Mr. Hide Mr. Whistler Mr. Ieofrey Palmer Mr. Glyn Mr. Sollicitor This Committee is to Collect and Offer to this House Reasons for this House to make use of and insist upon in maintainance of that Point of the Message of this House to the Lords which desires the presence of some of the Members of this House at the Examination of such Witnesses as shall be Proposed by this House in the Accusation of the Earl of Strafford To the Right Honourable the Lord-Deputy The Humble and just Remonstrance of the Knights Citizens and Burgesses of the Parliament assembled SHEWING THat in all Ages since the happy Subjection of this Kingdom to the Imperial Crown of England it was and is a Principal Study and Princely Care of His Majesty and His Noble Progenitors Kings and Queens of England and Ireland to the vast Expence of Treasure and Blood that their Loyal and Dutiful people of this Land of Ireland being now for the most part derived from British Ancestors should be Governed according to the Municipal and Fundamental Laws of England that the Statute of Magna Charta or the Great Charter of the Liberties of England and other Laudable Laws and Statutes were in several Parliaments here Enacted and Declared That by the means thereof and of the most Prudent and Benign Government of His Majesty and His Royal Progenitors this Kingdom was until of late in its growth a Flourishing Estate whereby the said people were heretofore enabled to answer their humble and natural desires to comply with His Majesties Princely and Royal Occasions by their free Gift of 150 Thousand Pounds Sterling and likewise by another free Gift of 120 Thousand Pounds more during the Government of the Lord Viscount Faulkland and after by the Gift of 40 Thousand Pounds and their free and chearful Gift of Six intire Subsidies in the 10th Year of His Majesties Reign which to comply with His Majesties then Occasions signified to the then House of Commons They did allow should amount in the Collections unto 250 Thousand Pounds although as they confidently believe if the Subsidies had been levied in a moderate Parliamentary way they would not have amounted to much more than half the Sum aforesaid besides the four intire Susidies granted in this present Parliament So it is May it please Your Lordship by the occasion of the insuing and other Grievances and Innovations though to His Majesty no considerable Profit this Kingdom is reduced to that extream and universal Poverty that the same is less able to pay Subsidies than it was heretofore to satisfie all the before recited great Payments And His Majesties most Faithful people of the Land do conceive great fears that the said Grievances and Consequences thereof may be hereafter drawn into Presidents to be perpetuated upon their Posterity which in their great Hopes and strong Beliefs they are perswaded is contrary to His Royal and Princely intention towards His said people some of which said Grievances are as followeth 1. The general apparent decay of Trades occasioned by the new and illegal raising of the Book of Rates and Impositions upon Native and other Commodities Exported and Imported by reason whereof and of extream Usage and Censures Merchants are beggered and both disinabled and discouraged to Trade and some of the honourable Persons who gain thereby are often Judges and Parties and that in the conclusion His Majesties Profit thereby is not considerably advanced 2. The Arbitrary decision of all civil Causes and Controversies by paper Petitions before the Lord Lieutenant and Lord Deputy and infinite other Judicatories upon reference from them derived in the nature of all Actions determinable at the Common Law not limitted into certain time cause season or thing whatsoever And the consequences of such proceedings by receiving immoderate and unlawful Fees by Secretaries Clerks Pursevants Serjeants at Arms and otherwise by which kind of proceedings His Majesty loseth a considerable part of his Revenue upon Original Writs and otherwise and the Subject loseth the benefit of his Writ of Error Bill of Reversal Vouchers and other legal and just Advantages and the ordinary Course and Courts of Justice declined 3. The proceedings in civil Causes at Council-Board contrary to the Law and great Charter not limited to any certain time or season 4. That the Subject is in all the material parts thereof denied the benefit of the Princely Graces and more especially of the Statute of Limitations of 21 of Iac. granted by His Majesty in the Fourth Year of His Reign upon great Advice of the Councils of England and Ireland and for great Consideration and then published in all the Courts of Dublin and in all the Counties of this Kingdom in open Assizes whereby all Persons do take notice That contrary to His Majesties Pious Intentions His Subjects of this Land have not enjoyed the benefit of His Majesties Princely Promise thereby made 5. The extrajudicial avoiding of Letters Patents of Estates of a very great part of His Majesties Subjects under the Great Seal the Publick Faith of the Kingdom by private Opinions delivered at the Council-Board without Legal Evictions of their Estates contrary to Law and without President or Example of any former Age. 6. The Proclamation for the sole emption and uttering of Tobacco which is bought at very low Rates and uttered at high and excessive Rates by means whereof thousands of Families within this Kingdom and of His Majesties Subjects in several Islands and other parts of the West-Indies as your Petitioners are informed are destroyed and the most part of the Coin of this Kingdom is ingrossed into particular Hands insomuch that your Petitioners do conceive that the Profit arising and ingrossed thereby doth surmount His Majesties Revenue certain or casual within this Kingdom and yet his Majesty receiveth but very little profit by the same 7. The universal and unlawful encreasing of Monopolies to the advantage of a few the disprofit of His Majesty and impoverishment of His people 8. And the extream cruel Usage of certain late Commissioners and other Stewards of the British Farmers and Inhabitants of the City and County of London-Derry by means whereof the worthy Plantation of that Country is almost destroyed and the Inhabitants are reduced to
concerning the Earl of Strafford shall be Heads of that Conference and that Committee is to manage the Conference Sir Philip Stapleton brings Answer from the Lords That their Lordships do expect His Majesty at their House this Morning and that so soon as His Majesty shall be gone they will send Answer by Messengers of their own Thursday February 18th 1640. The Lords desired a Conference by a Committee of both Houses concerning the Sequestring of Thomas Earl of Strafford from his Offices presently in the Painted Chamber if it may stand with the conveniency of this House To which Answer was returned That they will give a meeting presently for a free Conference Mr. Pym Reports the free Conference Upon Mr. Pyms Report It was Ordered That this Committee viz. Sir Walter Earle Sir Io. Culpepper Mr. Hollis Mr. Solicitor Mr. Vaughan Mr. Hyde Mr. Pym Mr. Maynard Mr. Selden Mr. Palmer Mr. Whitlock Sir Simon D'Ewes Mr. Whistler Mr. Glyn and Mr. Hampden Do take into Consideration the whole matter of the Report of the free Conference now made by Mr. Pym and also what concerns the Right of the Commons in the Proceedings in the Lords House against the Earl of Strafford and what Concerns the Kingdom in general and the Legality of these Proceedings and they are likewise to Consider What is fit for the Commons to claim in Causes of Impeachment and they are to meet this Afternoon at Two of the Clock in the Treasury Chamber Friday February 19th 1640. That the Committee for the Earl of Strafford shall have Liberty to open all Letters directed to Sir George Ratcliff and if they find it worthy the knowledge of the House they are to acquaint the House therewith Ordered That the Committee appointed to consider of the Proceedings in the Lords House against Thomas Earl of Strafford do meet this Afternoon at Two of the Clock in the Treasury Chamber Tuesday February 23. 1640. A Message from the Lords desiring a present Conference by a Committee of both Houses in the Painted-Chamber if it may stand with the convenience of this House concerning the Conference that was Yesterday touching the Proceedings against Thomas Earl of Strafford Answer returned by the same Messenger That this House hath taken into Consideration their Lordships Message and will give a meeting for a free Conference as is desired Mr. Glyn Reports from the Conference That the Lord Keeper delivered the Lords Answer in these words viz. First That We shall admit him no further use of Council than the necessity of the Case for his just Defence requireth and wherein Council may with the Justice and Honour of this House be afforded him Secondly That there shall be no delay in Proceedings but all Expedition used according to their own desires Wednesday February 24th 1640. A Message from the Lords desiring a Conference by a Committee of both Houses touching the Answer of Thomas Earl of Strafford presently if it may stand with the Conveniency of this House Answer returned by the same Messengers That this House will give a meeting presently as is desired Mr. Solicitor Mr. Maynard Mr. Pym Mr. Reynolds Mr. Palmer and Mr. Hampden Are appointed Reporters of the Conference Mr. Solicitor Reports from the Conference That Yesterday was the day the Lords had prefixed for my Lord of Strafford to give in his Answer that accordingly he was there and had given it in and that this Answer which now they had delivered to the Commons was the Answer which the Earl of Strafford was to stand or fall by The engrossed Answer and a Copy of it were both delivered in by the Reporters and was desired that when the Copy was perfectly examined the Original might be delivered to the Clerk of their House Ordered That Mr. Speaker be here this Afternoon at One of the Clock and that the Earl of Strafford's Answer may then be read and considered of The same day in the Afternoon the several Articles of the further Impeachment of Thomas Earl of Strafford by the Commons were all read and to every of the said Articles the particular and several Answers of the said Earl were likewise read The Answer held three hours reading being above 200 sheets of Paper too long to be here inserted yet take an exact Abstract of the said Answer to the Articles exhibited against him which are as followeth Answers to 28 special Articles To the First Article he saith He conceives that the Commission and Instruction differ not from those formerly granted but refers to them and that such Alterations and Additions as were made were for ought he knoweth rather for the explanation than for the enlarging of the Jurisdiction the Care whereof was left to the Secretary of that Council and to the King 's Learned Council to be passed for the good of the King's Service and the Publick Welfare of that Province for Legality of the Proceedings divers eminent Lawyers were joyned with the President who for the Legal parts was by them to be directed He did not advise or procure the enlargement of the Commission and Instructions and he believeth nothing hath been practiced since that was not in former Times contained in former Commissions under general words He believeth Sir Conyers Darcy was lawfully Fined for Misdemeanors as a Justice of Peace and hath heard he being in Ireland that Sir Iohn Boucher was Fined for some great Abuse at the Kings being at York going into Scotland to be Crowned to the Proceedings he refers himself He denies that he hath done any thing by that Commission or Instruction other than he conceived he might by virtue thereof lawfully do To the Second Article He denieth the speaking of those words but saith That 30 40 l. or more being returned as Issues out of the Exchequer against some that had compounded for Knighthood for 10 l. or 20 l. so as the Issues far exceeded the Composition and yet would next time have been increased The said Earl upon this occasion said That now they might see that the little Finger of the Law was heavier than the King's Loins which he spake to nourish good Affections in them towards His Majesty and not to threaten or terrifie any as the Article is supposed To the Third Article he saith Ireland is not Governed by the same Laws that this Kingdom is unless it be meant by the Common Laws their Customs Statutes Execution of Martial Laws Proceedings at Council-Board very much differ they spake not the words in the Article to any such intent He saith It might be fit enough for him to remember them of the great Obligation they had to the King and His Progenitors that suffered them being a Conquer'd Nation to enjoy Freedom and Laws as their own people of this Kingdom and it might be that upon some such occasion he said to those of Dublin That some of their Charters were void and nothing worth and did not bind His Majesty farther than He pleased which he
Demands Causes Things and Matters whatsoever therein contained and within certain Precincts in the said Northern Parts therein specified and in such manner as by the said Schedule is limitted and appointed That amongst other things in the said Instructions it is directed That the said President and others therein appointed shall hear and determine according to the course of Procéedings in the Court of Star-Chamber divers Offences Deceits and Falsities therein mentioned whether the same be provided for by Acts of Parliament or not so that the Fines imposed be not less than by the Act or Acts of Parliament provided against those Offences is appointed That also amongst other things in the said Instructions it is directed That the said President and others therein appointed have Power to examine hear and determine according to the course of Proceedings in the Court of Chancery all manner of Complaints for any matter within the said Precincts as well concerning Lands Tenements and Hereditaments either Free-hold Customary or Copy-hold as Leases and other things therein mentioned and to stay Proceedings in the Court of Common Law by Injunction or otherwise by all ways and means as is used in the Court of Chancery And although the former Presidents of the said Council had never put in practise such Instructions nor had they any such Instructions yet the said Earl in the month of May in the said Eighth Year and divers years following did put in practice exercise and use and caused to be used and put in practice the said Commission and Instructions and did direct and exercise an exorbitant and unlawful Power and Iurisdiction over the Persons and Estates of His Majesties Subjects in those parts and did disinherit divers of His Majesties Subjects in those parts of their Inheritances Sequestred their Possessions and did Fine Ransome Punish and Imprison them and caused them to be Fined Ransomed Punished and Imprisoned to their Ruine and Destruction and namely Sir Coniers Darcy Sir John Bourcher and divers others against the Laws and in subversion of the same And the said Commission and Instructions were procured and issued by advice of the said Earl And he the said Earl to the intent that such Illegal and Unjust Power might be exercised with the greater Licence and Will did advise counsel and procure further Directions in and by the said Instructions to be given that no Prohibition be granted at all but in cases where the said Council shall exceed the limits of the said Instructions And that if any Writ of Habeas Corpus be granted the party be not discharged till the party perform the Decrée and Order of the said Council And the said Earl in the 13th Year of His Majesties Reign did procure a new Commission to himself and others therein appointed with the said Instructions and other unlawful Additions That the said Commission and Instructions were procured by the sollicitation and advice of the said Earl of Strafford II. That shortly after the obtaining of the said Commission dated the 21th of March in the Eighth Year of His Majesties Reign to wit the last day of August then next following he the said Earl to bring His Majesties Liege-people into a dislike of His Majesty and of His Government and to terrifie the Iustices of the Peace from executing of the Laws He the said Earl being then President as aforesaid and a Iustice of Peace did publiquely at the Assizes held for the County of York in the City of York in and upon the said last day of August declare and publish before the people there attending for the administration of Iustice according to Law and in the presence of the Iustices sitting that some of the Iustices were all for Law and nothing would please them but Law but they should find that the King 's little Finger should be heavier than the Loines of the Law III. That the Realm of Ireland having been time out of mind annexed to the Imperial Crown of this His Majesties Realm of England and Governed by the same Laws The said Earl being Lord Deputy of that Realm to bring His Majesties Liege-Subjects of that Kingdom likewise into dislike of His Majesties Government and intending the subversion of the Fundamental Laws and setled Government of that Realm and the destruction of His Majesties Liege-people there did upon the 30th day of September in the Ninth Year of His now Majesties Reign in the City of Dublin the chief City of that Realm where His Majesties Privy-Council and Courts of Iustice do ordinarily reside and whither the Nobility and Gentry of that Realm do usually resort for Iustice in a publick Speech before divers of the Nobility and Gentry of that Kingdom and before the Mayor Aldermen and Recorder and many Citizens of Dublin and other His Majesties Liege-people declare and publish That Ireland was a Conquered Nation and that the King might do with them what he pleased and speaking of the Charters of former Kings of England made to that City he further then said That their Charters were nothing worth and did bind the King no further than He pleased IV. That Richard Earl of Cork having sued out Process-in course of Law for recovery of his Possessions from which he was put by colour of an Order made by the said Earl of Strafford and the Council-Table of the said Realm of Ireland upon a Paper-Petition without Legal procéeding did the 20th day of February in the Eleventh Year of His now Majesties Reign threaten the said Earl being then a Péer of the said Realm to imprison him unless he would surcease his Suit and said That he would have neither Law nor Lawyers dispute or question his Orders And the 20th day of March in the said Eleventh Year the said Earl of Strafford speaking of an Order of the said Council-Table of that Realm made in the time of King James which concerned a Lease which the said Earl of Cork claimed in certain Rectories or Tythes which the said Earl of Cork alledged to be of no force said That he would make the said Earl and all Ireland know that so long as he had the Government there any Act of State there made or to be made should be as binding to the Subjects of that Kingdom as an Act of Parliament And did question the said Earl of Cork in the Castle-Chamber there upon pretence of breach of the said Order of Council-Table and did sundry other times and upon sundry other occasions by his words and spéeches arrogate to himself a Power above the Fundamental Laws and Established Government of that Kingdom and scorned the said Laws and Established Government V. That according to such his Declarations and Spéeches the said Earl of Strafford did use and exercise a Power above and against and to the subversion of the said Fundamental Laws and Established Government of the said Realm of Ireland extending such his Power to the Goods Fréeholds Inheritances Liberties and Lives of His Majesties Subjects of the said Realm and
every man that hears me That I should have time to clear a Truth no man can deny it And therefore I humbly pray I may not be suddenly taken protesting seriously I have said nothing but what I knew or verily believed to be true We pray Your Lordships Resolution in this point before we proceed any further Their Lordships thereupon Adjourned to the Upper-House and about half an hour after returned I am commanded to impart their Lordships Resolution That since the Commons do not press these things as matters of Crime but rather upon the matter of Truth they conceive my Lord of Strafford need not further time for these particulars And that if his Lordship will make any Answer to these particulars he is to do it now I shall never do other than readily obey whatsoever Your Lordships should please to command me my heart paying you Obedience and so in truth shall every thing that proceeds from me The question I observe is matter of Truth or not Truth in the Preamble as they call it of this my Answer and to that with all the Humility and Modesty in the World I will apply my self as not conceiving it any way becoming me to speak any thing of Sharpness in any kind but with all Humility and Reverence to bear all these Afflictions with acknowledgment unto Almighty God and to lay them so to my heart that they may provide for me in another World where we are to expect the Consummation of all Blessedness and Happiness And therefore to lay aside all these Aggravations by words wherewith I have been set forth to Your Lordships only with this that I trust I shall make my self appear a person otherwise in my Dispositions and Actions than I have been rendred and shortly and briefly I shall fall upon the very points as near as I can that were mentioned by that Noble Gentleman and if I should forget any I desire to be remembred of them that I may give the best Answer I can on a suddain with this Protestation That if I had had time I should have given a far clearer Answer than on the sudden I shall be able to do I will take them as they lye in Order And the first thing in this Answer is That in Ireland by my means many good Laws were made for increase of the Kings Revenue and for good of the Church and Common-wealth and this I humbly conceive was not denied directly only it was inferr'd That Laws were of no use where Will was put above Law That these Laws were made the Acts of Parliament that are extant and visible things do make appear For though I might express it darkly by reason I understood not matters of Law the truth of it is before such time as I came there the Statutes of Wills and Uses and Fraudulent Conveyances were not of force in Ireland by which there was a very great mischief that fell many ways both on the King and specially on the English Planters For by want of these Statutes no man knew when he had a good title and old Entayles would be set on foot and by that means the later Purchaser avoided by which means there was a great loss and prejudice to the King in his Wards which by these Laws are setled and the Laws of Ireland brought much nearer the Laws of England than before And in this point I conceive I am not absolutely gainsayed but only conditionally that is that notwithstanding this I have set up another Government Arbitrary and Tyrannical To which I shall not now trouble Your Lordships with an Answer that being in the particulars of my Charge And thus I think the first to be fairly and clearly Answered Then that there were more Parliaments in the time of my Government than in 50 years before There were two in my time and if I might call Witnesses it would appear that there were not so many within that time before but being not material to my Defence or Condemnation I will not trouble Your Lordships with proof unless you will require it I having them here that I think can make it good And whereas in my Answer I deny that I ever had hand in any Project or Monopoly and that I did prevent divers that otherwise would have passed I said that under favour with all duty and confidence I must still affirm it That I never had hand or share in any manner of Monopoly or Project whatsoever unless the Tobacco-business were a Monopoly which under favour I shall clear not to be but that being part of my Charge I think it impertinent now to give Answer unto it but will satisfie Your Lordships in that behalf in proper time and place But more than that of Tobacco I say absolutely and directly I never had my hand or share in any Monopoly or Project nay I did as murh as I could Oppose all of them particularly the Monopoly of Iron-Pots for which I reserve my self to Answer as part of my Charge And a new Book of Rates whereby it was proposed That the Rates of the Kings Customs might be increased And this I did Oppose and Disavow albeit I was a sharer in the Farm and consequently should have had the Benefit and Advantage of it for my proportion and by the Kings gracious Goodness when His Majesty came to be more fully and clearly informed of it it was stopped and never went on And this I will make appear in that point of the Articles that concern the Customs The Fourth is That I have not had any greater Power or larger Commission than my Predecessors in that Government have had which I conceive under favour is not controverted but granted and therefore stands good to me or if it were controverted I am able to make it appear that I have brought in nothing more than was formerly accustomed in the point of the Deputies-Commission The next thing in my Answer is That the Revenue of Ireland was never able to Support it self before my coming thither and that I say still with all Humility and Duty is most true And I trust to make it apparently true presently if Your Lordships will give me leave to call for and examine my Witnesses It being the Proofs Your Lordships will look to and not to what was only alledged by that Worthy Gentleman And further than Your Lordships shall find proved I desire not to be believed The proof offered against me is by Sir Edward Warder and Sir Robert Pye who testified That from the year 1621. nothing went out of the Kings Exchequer to supply the Irish Affairs saving only for the Maritime occasions And this I believe to be true for they be Gentlemen of Credit that speak it and I will believe them on their Words much more on their Oathes But under favour there was for eight years together before my coming a Contribution of 20000 l. a year paid by the Country which was no part of the Kings
have opened That Law might no where stand against his Will and to settle it that he might continue so My Lord hath declared this in incroaching Jurisdiction where it was not in exercising an Arbitrary Power under that Jurisdiction In taking on him a Power to make Laws In Domineering and Tyrannizing over the Lives the Liberties the Goods the Estates and whatsoever is the Subjects And My Lords this hath he done not only on those of the meaner sort that could not resist him but on the Peers on the greatest and most ancient Nobility of Ireland And what might Your Lordships expect but the same measure at his hands had his Will had its passage here which it had in Ireland I shall now come to the particular Articles 1. And first Whereas it pleased His Majesty to place him with Power and Honour in his hand in the North as President he had not been long there but that Commission which bounded and pleased his Predecessors he must needs surmount and overgo There was a Commission in 16 Iac. which the then Lord Deputy had in which was that Legal phrase Secundum antiquum cursum his own Commission 4 Car. pursued that without any alteration but being in but four years this would not please his boundless Ambition he must needs have the Power that the Lords in the Star-Chamber have put in in express terms a Power to proceed according to the course of the Chancery that his Conscience might limit other mens Estatâ— That his Injunctions might stay other Proceedings at Law And which is highest of all if any thing be done in that Court within these Instructions than no Prohibition should be Awarded He would make himself safe from any supervising of other Courts If he Committed any man to Prison though a Habeas Corpus were granted then which the Subject hath no other remedy to vindicate his Liberty the Officer for the encouragement of those which be under his Power must not obey it And if any Fine be put upon the Officer then comes a command in this Commission That the Fine shall be discharged so he not only takes a Power to himself but also takes the Scepter of Justice out of the Kings Hands for by this means there is an impossibility the Subject should have the Justice that my Lord knows is due to him and he knows it right well for when he was a Member of the House of Parliament it was his own motion who now stands at the Barr That all the Officers and Ministers of State should serve the King according to that Law and he is the first Officer and Minister of State that breaks it and in the most transcendent degree that ever it was broken My Lords He doth in this as much as in him lies say to the Laws Do your worst You can but Fine and that you can do shall come to nothing The Fine shall not be paid The Officer shall not obey you If this had been a single Act we should never have accused him of this Treason though it comes very High and very Transcendent But the Oppressions and Injustice the Councels and Speeches that we present to Your Lordships we present them not singly but as together designing and noting what a Treasonable purpose and disposition is in him 2. My Lords The next thing he doth when he is in the North among the Justices of the Peace and the People attending for Justice you shall see what Encouragement he gives them to look for it and how foul a thing he dares to fling on the Sacred Majesty that did advance him He tells the Justices that were to do Justice and the People that were to receive Justice That some of the Justices were all for Law but they should find The Kings little Finger is heavier than the Loyns of the Law Your Lordships may consider what a transcendent Speech this was out of whose Mouth it came what sad Accidents happened upon it nothing could move this Lord to utter it but his Will and his Violence must out though he burst a Kingdom in pieces for it 3. The next thing is this When he goes into Ireland you will find his Temper and Spirit not a whit Allayed but now being further from His Majesties Person he is higher in his Power and in his Will It is true that Kingdom was annexed to this many years ago but they that now possess the greatest part of it are Subjects of this Kingdom descended from them that went from hence thither Yet he tells them in a solemn Speech not suddenly but solemnly That Ireland is a Conquered Nation and the King might do with them what he would and that their Charters were nothing worth and bind the King no longer than he pleases Surely My Lords We might see what he would do if he had Power But God be blessed we find not that disposition any where resented by His Majesty and we hope that such Councels shall never have Access to so good and gracious an Ear. 4. The next thing he stays not in words but will be as good as his word if he can and he begins high For that we present next is a Peer of the Kingdom thrust out of his Possession by my Lord of Straffords Order and when he Sues at Law for recovery of his Right my Lord Threatens him Truly Threatnings are not good in such a case where a man Sues for Justice And from him that ought to Administer Justice and further him in it yet he Threatens him Imprisonment to which Peers are not ordinarily liable First my Lord tells him He will not have Law nor Lawyers question his Orders he might debar the Lawyers in some Cases but why a man should have a Spleen at the Law that his Orders should not be examined by that I know not And he goes higher for when there was an occasion to speak of an Act of State he tells him That he will make him and all Ireland know that as long as he had the Government there any Act of State made or to be made should be as binding as an Act of Parliament My Lords He cannot go higher in Speeches than this That an Act of State of his own making and his own Power should be as binding as an Act of Parliament Nay he tells them in Parliament That they were a Conquered Nation and must expect Laws as from a Conquerour 5. Next we shall shew divers Instances wherein he exercises Power over the Lives Lands and all that is the Subjects deduced into several Articles viz. the 5th the 6th the 7th and the 8th In particular one I shall be bold to open That is the Case of my Lord Mountnorris another Peer of that Kingdom and a great Officer there Some words fell from that Lord speaking of one that had trodden on my Lord of Straffords Toe That he hoped the Party did it not in Revenge for he had a Brother that would not have sought such a Revenge For these
he stood within little distance of my Lord when he spake the words and hath not been deaf above two months and two other Witnesses concur fully with him For Doctor Duncombe whether he be the man that laid Aspersions in the North on some Noble Lords I know not but his Testimony only is that he heard so from one that spake it at the Table not upon Oath and not knowing what use would be made of it And another Witness shall be produced that will speak to the occasion and that it was not the matter of Knighting-money Sir Thomas Leyton being asked how long he hath had this Infirmity in his hearing Answered That he got a great Cold since he came to Town and had this Imperfection since Christmas and had his hearing well before Being asked how far he sate from my Lord of Strafford He Answered Four yards off My Lord of Strafford desired it might be asked the Witness Whether he sate on the Seat where the Sheriff uses to fit he answered Affirmatively His Lordship excepted against his Testimony himself sitting where the President uses to sit betwixt my Lord Chief Baron and Mr. Justice Vernon And he Appealed to my Lord Chief Baron Whether the Presidents Seat and the Sheriffs Seat be not as far distant very near as far as from his Lordships then station to the Lord Steward But the Committee observed it not to be material that there should be any Geometrical measure but be three four five six or seven yards off Here the Committee offered other Witnesses but my Lord of Strafford desired their Lordships Judgment Whether they should not bring all together which the Lord Steward declared they might as to this Point Sir David Fowles being produced was excepted against My Lords He is no competent Witnesse he lying in the Fleet on a Sentence in the Star-Chamber at my Suit being fined for divers things he had said which concerned my self which depended on this in question and conducing to it He comes not at his own Request or Suit but in a Suit that concerns His Majesty and the Commonwealth and might offer the Presidents own Rule in the Case but that the Law speaks for him that a Witness ought to be heard in this Cause though there have been particular ill affections between them and your Lordships well know how to compare him with other Witnesses and to value him accordingly This hath been Resolved in the Case of Sir Pierce Crosby that he should be sworn and then value his Testimony as the Lords shall see Cause and this may be put into the same way Sir David Fowles being sworn the Lord Steward put them in mind of the former Caution that their Lordships would judge the value of his Testimony the Committee not admitting what was excepted against him he being not to obtain any thing for himself nor his own Interest concerned but produced for the King and Commonwealth and therefore an indifferent Witness in the Case And then being Interrogated touching the words of Comparison between the King 's little Finger and the Loins of the Law whether he heard them and the occasion Sir David Fowles answered He heard him say the very same words That there were some for Law and nothing but Law but the King 's little Finger should be heavier on them than the Loins of the Law The occasion he cannot well remember but there was some discontent taken by my Lord against him he being desired by a Messenger to levy Mony to mend a Bridge he told the Messenger He could not well do it of himself for there was a Statute as he took it 24 H. 8. that appoints four Commissioners to be at the doing of such Service and he being but One durst not undertake to do it Besides he said He must see an Order or Warrant from the Sessions else he could not do it and none was shewed Some other Exceptions he took to the unlawfulness of the business and the Messenger reported this to my Lord and that he conceived was the cause my Lord broke out so violently against him But being Interrogated on what occasion the words in question were spoken He answered Before my Lord went to Ireland he made a Speech to the whole County and desired them to go on in their Service and so brake out Some are all for Law but they shall find the Kings little Finger heavier on them than the Loins of the Law And this is all he can remember Sir William Ingram sworn and examined touching his knowledge of these words Answered That he was on the Bench at that time Sir Thomas Leyton was Sheriff and he heard my Lord speak these words Some of you are all for Law but you shall find that the King 's little Finger is heavier than the Loins of the Law but he doth not remember the occasion The main point I must insist on is That the very words if they had been spoken by me as they are laid concerning which I call God to witness I have spoken the truth and the occasion It is no Treason within the Statute And that being a point of Law I crave leave to reserve my self according to your Lordships Order that my Counsel in time fitting and proper may speak as concerning that in point of Law We shall close this Article the last thing mentioned by his Lordship was spoken to before as to the words we had five Witnesses express in the Point and therefore shall expect your Lordships Judgment in that And so the Court was adjourned The Fourth day Thursday March 25. 1641. THE Third Article The Charge THat the Realm of Ireland having béen time out of mind annexed to the Imperial Crown of this His Majesties Realm of England and governed by the same Laws The said Earl being Lord-Deputy of that Realm to bring His Majesties Liege-Subjects of that Kingdom likewise into dislike of His Majesties Government and intending the Subversion of the Fundamental Laws and setled Government of that Realm and the destruction of His Majesties Liege-people there did upon the 30th day of September in the Ninth Year of His now Majesties Reign in the City of Dublin the chief City of that Realm where His Majesties Privy-Council and Courts of Iustice do ordinarily reside and whither the Nobility and Gentry of that Realm do usually resort for Iustice in a publick Speech before divers of the Nobility and Gentry of that Kingdom and before the Mayor Aldermen and Recorder and many Citizens of Dublin and other His Majesties Liege-people declare and publish That Ireland was a Conquered Nation and that the King might do with them what he pleased And speaking of the Charters of former Kings of England made to that City He further then said That their Charters were nothing worth and did bind the King no further than he pleased I Humbly move your Lordship That since diverse things were spoken by the Witnesses Yesterday which
and acknowledged by my Lord of Corke to be Sir Paul Davis's hand Upon reading whereof my Lord of Strafford observed That it appears to be a Church-Cause That the Order was just and that the Clause for the Plaintiffs giving of Security to answer the mean Profits which my Lord of Corke said was struck out of the Order and for my Lord of Corke's liberty to bring his Action at Law only he was limited to prosecute it within a year Mr. Leake was produced by my Lord of Strafford and being asked what Authority he hath known the Council-Board in Ireland to exercise both before my Lord of Strafford's coming thither and since in Causes of the Church and Plantation and concerning Contempts to Proclamations and Acts of State and what Countryman he is He Answered That his name is Leake of Leake in the County of Nottingham where he said his Family hath continued 400 years That it is 14 years since he went into Ireland and before this Lords-Deputies time and before that time he did not observe any restraint from Injunctions on the Council-Board till the Instructions published and they did stay them That they proceeded by Injunction Process Bill Answer Examination and other Courses as in the Chancery of England And since the same course hath been held And my Lord of Strafford hath had in the Castle-Chamber divers Causes of Law argued before him concerning the Church wherein one Chadwick and divers others were convented thirty times when he the Examinant was there and heard them twenty he is sure but he thinks thirty But my Lord of Strafford did forbear to give Sentence till he heard these Causes argued That 14 years he hath been very well versed in that Kingdom that he hath known Injunctions have gone out from thence to stay Proceedings in Causes where they have Power of Jurisdiction that he hath known my Lord Chancellor Loftus that was to grant an Injunction without Bill and before any Complaint depended before him and that he himself had the Injunction granted Being asked about the time of his going into Ireland He said he went betwixt 1627. and 1628. Whence observe that the Witness hath made an Observation of the Instructions five years before he came into Ireland Being asked some other questions touching the occasion of his going into Ireland and how he came to take notice of the Proceedings there He Answered He hath been there at several times to pursue some Tenants of his that fled into Ireland and by reason of the Suits and Petitions he prosecuted in his own Right he had occasion to enquire after Proceedings there having been there for the most part of 14 years To the Statute of 28 H. 6. which the Commons have pressed as a Rule for the reâ—ing of Causes to their proper Courts and to annihilate all these Proceedings before the Deputy and Council and before the Deputy alone in his particular Jurisdiction in the nature of a Court of Requests in England I reserve my self to have my Council give satisfaction therein Only desire your Lordships to observe the last Clause saving the King's Prerogative These Proceedings are not against Magna Charta they being according to the Laws and Customs of the Land though it be not the Custom of England And if he hath been an Innovator it hath been to conform Ireland by all ways he could in Religion and Laws to the better and more excellent Pattern of England To the Objection made against Mr. Gwyn he is altogether unknown to me only was recommended to me and here is a Certificate that Gwyn is Master of Arts but that was not read nor insisted on To the matter of words Charged upon him He Answered That words without Fact can be no matter of Treason though of a higher nature then these That words are to be charged within a limited time 1 E. 6. Ca. 12. whereby it is provided That none shall be Impeached concerning Treason for words only if the party being within the Realm be not accused within thirty days If out of the Realm within six months c. Which Proviso his Lordship read and reserved to his Council farther to apply it For the words spoken to my Lord of Corke That neither Law nor Lawyers should dispute my Orders I conceive I might justifie the speaking of them if the Orders and Acts of State be justly warrantable and honourably made Yet it is improbable I should speak the words when the Order refers it self to Law If they were spoken they are at the highest indiscreet and foolish and it is a heavy thing to punish me for not being wiser than God Almighty hath made me For the last words That I would make the said Earl and all Ireland know That so long as I had Government there An Act of State made or to be made should be as binding as an Act of Parliament I observe my Lord of Corke's quick memory that could swear them roundly without missing a letter or sillable as they are laid in the Charge That these words are only in the Charge and so only to be answered to And for Answer I say That in case of an Act done they may be brought collaterally as an inducement to prove the intention But the Act must be proved before they can touch me as of Treason My Lord of Corke is a single Witness and by a Proviso 1 E. 6 Ca. 12. no person after the first of February then following is to be Arraigned c. of Treason c. for any words to be spoken after the said first of February unless the Offendor be accused by two sufficient Witnesses or should without violence confess them To the words spoken of by the other Witnesses being the same in effect I am not to answer being extrajudicially proved and spoken in other places and times than I am Charged withall Yet I think they might be fairly interpreted For if an Act of State be not made against an Act of Parliament or a Fundamental Law of the Land but consistent with it and made by way of provision for remedying some present Mischief in the Common-wealth till the Parliament may provide Redress for it They are as binding during the time they are in force as an Act of Parliament though I confess the Comparison is not good because they be made according to Law and Justice according to the Fundamental Laws of the Land wherein the Prerogative of the Crown hath a part as well as the Property of the Subject For if the Propriety of the Subject as it is and God forbid but it should continue be the second undoubtedly the Prerogative of the Crown is the first Table of that Fundamental Law and hath something more imprinted upon it For if it hath a divinity imprinted upon it it is God's Annointed It is he that gives the Powers And Kings are as Gods on Earth higher Prerogatives than can be said or found to be spoken of the Propriety or Liberty of
Communicate it to any man till I brought the Letter because I was resolved to speak of it to no man living and in conclusion left it wholly to the Council For the words That I would not lose my share in the Honour of that Sentence if I spake the words I meant the Justice and satisfaction done me by that Sentence being by the prime Officers of the Kingdom And whereas it was said yesterday that though I thought it hard to lay words to my Charge yet I thought it not hard to lay words to the Lord Mountnorris his Charge there is a difference between laying words to a man's Charge to Accuse and Condemn him of High-Treason to loss of Estate Life Honour and Posterity and pressing words to only two days Imprisonment being only intended to discipline my Lord Mountnorris and teach him to govern his Speech with more modesty His Defence to the business of Denwitt's Execution He confesses his Vote concurred and thinks he had Authority and may justifie it He produced the Sentence Dated 13. February 1638. where his Crimes are set forth to be the fellonious stealing of a quarrer of Beef and running away from his Colours in breach of the 9th and 6th Articles for which he was sentenced to Death according to the use of martial-Martial-Law His Lordship opened the Nature of the Offence being committed at a time when the 500 men were attending to go to Carlisle and the Example might be dangerous and desired Sir George Mountnorris might be asked Whether Denwitt was not convicted to be guilty adding that he had been burnt in the hand and running from his Colours is death by the Laws of Ireland He produced a Statute of Ireland 20 H. 6. C. 19. whereby it is Enacted That every man that receives the King's Wages and departs from his Captain c. shall be proceeded against as a Felon As also the Statute 7 H. 7. C. 1. The departing of a Souldier from his Colours is Felony and the Offendor to undergo punishment of Law And 10 H. 7. all Laws formerly made in England are to be in force in Ireland and so that of 7 H. 7. For further clearing whereof he refers himself to the Council One of the Managers did make Reply in substance as followeth That if this Fact be not Treason yet it seems to prove his Intention to subvert the Law which is Treason Whereas he hopes for the King's Mercy so the Commons do as really trust for the King's Justice The Commission he insists on is limitted with Si opus fuerit and the King intends Execution according to Law Magna Charta and the rest of the Laws of England being of force in Ireland There hath been an Army in pay in Ireland since Henry the Eighths time and so there are some in pay here in Portsmouth and Plymouth and yet it follows not England must be Governed by Martial-Law The Lord Wilmott was produced by him to justifie the publishing of Orders and exercise of Martial Law in Ireland But we Appeal to your Lordships Whether he gave Testimony of executing any by martial-Martial-Law Sir Adam Loftus says There are Provost-Marshalls and they do use to put men to death but they are Rebels whom they execute which squares not with this Case only that of Sir Thomas Wayneman is a full President For the King's Letter it is written on his Information and if the King's Ministers misinform him He is just before God and men and the Letter directs Reparation as it was fit there should be My Lord pretends he was no Judge in the Cause your Lordships may remember who procured the Letter to proceed and who sate there to manage the business though he sate with his Hat off if he would have been indifferent he should have left the Counsellors to themselves And when some moved they might proceed on one Article he cryed both and so he was the Procurer of the Sentence with which he is charged not with the Voting of it He pretends he sate by and said nothing yet no man talked more at the Sentence than himself He proves not the Course of Martial-Law and there is a Judge-Marshal to whom in any proceedings in a Martial way address should be made and it was desired he might be called to testifie how they went about it Another of the Managers did add by way of Reply That whereas my Lord of Strafford insists much as if Martial-Law were part of the same Law of Ireland but the 25 E. 3. is in force there and that is recited in the Petition of Right in force here as the ground why Martial-Law ought not to be in England and therefore there is the same ground why it should not be in Ireland For that Commission he speaks of Opus est is Martial-Law when there is bellum flagrans but what need was there of Martial-Law in my Lord Mountnorris his Case when he would rather lose his Hand than the Sentence be executed For the Orders made by my Lord Wilmott and others there is difference between making an Order in way of terror for fear of Execution and putting that thing in execution Many Witnesses are produced to prove the practise but not one speaks in point of Execution unless upon Rebels and Traytors and such as would not come into Law whereas my Lord Mountnorris was had into the Law Whereas he takes the Example of those before him the Commons cannot see the Restrictions put upon his Commission for Martial-Law but in the preceding Deputies time there was a limitation that the Provost should leave the Souldiers to trial at Law except in time of War and Rebellion The Statute of 20 H. 6. is against him for it makes the Souldiers running from his Colours Felony and certainly meant it should be tried by that Law that makes it Felony which would have given him the benefit of Clergy not by Martial-Law And though he thinks he may justifie it he falls at last to a Pardon He says He acquainted no body before hand with the business but if he may give the Interpretation he will be sure to put a good end to it if he would not prepare the Council for Justice why should not the Delinquent be prepared The words are pretended to be spoken in April my Lord of Strafford procures the King's Letter in Iuly and questions it not till December here is no opus est The very words of the Order the Witnesses were examined by our Command which make it his own One of the Managers desired that two of the Instructions of former Deputies might be read To this my Lord of Strafford excepted as supplemental and dangerous and not warranted by any other Judicature After some debate touching the admitting of my Lord of Ely to be examined to the Course of Martial-Laws in Ireland being new matter arising out of his Answer It was Resolved that he should be examined only to that new matter The Earl of
according to the Power of former Deputies yet not to meddle with Titles of Free-hold except in Cases of Equity but to refer Title of Free-hold to its proper Judicature and not to hear Causes where there is Priority in other Courts unless in case of Appeal for lack of Justice after due Obedience Power likewise the said Rules observed to call before him any person complained of and therein to make such Order and Decree as shall stand with Justice and to cause the same to be put in Execution Dated October 5. 9 Car. He then offered the first Decree in the Cause to be read that had formerly been read having relation to this bearing date May 23. 1636. And the same was read being Signed Wentworth Gerard Lowther c. Whence his Lordship observed That the Order was made for Relief of a poor man where my Lord of Mountnorris had by Violence and extream hard pressure possest himself of Lands worth 200 l. a year never paying out of his Purse above 30 l. the rest arising on a Letter procured for Sawing Mills and by interest at above 20 in the hundred wherein his Lordship had the Assistance of two Reverend and Learned Judges the Chancellor that now is and Sir Gerard Lowther That the Decree is in every part just and equitable and if he had not given relief he had been justly censured That the party is now in Town and means to complain and Sue for 600 l. more than he is yet allowed The Committee declared they insist not on the merit of the Cause as not being material And so my Lord of Strafford observed That he stands justified by the Kings Letter which makes things differ from what they did formerly and shew that the Power was there before and is now restored His Lordship further added that his Practice in exercising Jurisdiction was conformable to that Letter viz. That he medled not with Title of Land triable at Law nor with Causes which had priority of Suit in other Courts That he referred the business of the Provincial Courts to these Courts and many businesses to the Judges of Assize and none determined by him but upon full Hearing and Assistance of the Judges And whereas it is said my Lord Mountnorris was kept in Prison by reason of not Suing out the Pardon on his Sentence pronounced by the Council of War I will make it appear it was for Contempts in refusing to answer a Bill Exhibited against him on the Kings behalf in the Castle-Chamber Mr. Slingsby being asked touching that point Answered That he did constantly wait on my Lord to the Castle-Chamber and there heard the Information of the Kings Attorney against my Lord Mountnorris read and my Lord Mountnorris was called to Answer it several times and was committed to Prison for not Answering it but he cannot precisely speak to the time but he thinks he was left in Prison upon that till my Lords going into England Sir Adam Loftus asked touching the same point did first make his humble Suit that he might not be Examined in any Cause concerning my Lord Mountnorris for some reasons inducing him thereunto Which my Lord of Strafford said was because Sir Adam succeeded my Lord Mountnorris in the place of Vice-Treasurer and being required if that were all to speak notwithstanding He Answered That he conceives he was Committed for not answering the Information but the precise day of his Commitment and the time how long he cannot well remember Being asked whether he was not brought before the Deputy a day or two before he came away and refused to Answer and was thereupon Committed He Answered That it was true Being asked on the Managers motion whether he was not Committed on the old Sentence and remained in Prison on that He Answered That he doth not know If I had time to produce the Orders of the Castle-Chamber I could make it appear when my Lord Mountnorris was Committed and how long he continued so but he was Committed for that Contempt and remained Committed six Months I think before he would Answer which I would not speak if it were not true The Lord Dillon called and asked to the same purpose He Answered That the Judges of the Castle-Chamber are by Commission and that he is not of that Commission That the Deputy or Chief Governour calls by way of Assistance such as he pleases That he heard at Council-Board my Lord Mountnorris was Committed for a Contempt in not answering in the Star-Chamber but when it began or how long he knows not In Execution of this Jurisdiction I had no private advantage to my self nothing but trouble was gained by it no new thing was done but such as was formerly by all the Chief Governours there and such as I had special Warrant for from His Majesty I have observed the Rules that guide others in Chancery and other Courts of Equity and the Judges in their Circuits Therefore it can be no Subversion of the Laws for the same thing done by others hath been Legally done it differs only in respect of place being before my self and so cannot be Treason And though it might be Illegal here yet it is according to the Laws and Customs of Ireland by which I am to be judged for all things there done And the same is done by the Presidents of the North and of Wales who did familiarly receive Petitions from Poor people that cannot seek remedy by a Legal course and yet it is not Treason in England And it cannot sink into my understanding how the enlargement of a Jurisdiction should be strained to High Treason specially being warranted by ancient Practice and modern Authority being only according to the nature of a Court of Requests and not entrenching on the Jurisdiction of Law Courts And so I hope this will never rise up in Judgment against me as Treason either in it self or by way of Application The Manager began his Reply in substance as followeth Whereas my Lord of Strafford says This is not Treason this is the burden of his Song But this is one of the particulars that prove his design to subvert the fundamental Laws of both Kingdoms He will not acknowledge a cumulative Treason he must have a Treason over Shooes and Boots yet if he will look on it all together he shall see the horridness of it and it will prove as great a Treason as ever was presented to a House of Parliament The Manager opened the Article and said they dispute not whether if it had been done in Chancery or other Courts it had been well done but it is done by him without Rule of Law and hereupon he hath drawn to himself an Arbitrary Power Whereas my Lord of Strafford to take from himself the Act of Parliament 28 H. 6. enjoyning That Causes should be referred to the proper Courts urged the last words Saving the Kings Prerogative We do observe That when he is Charged with an Exorbitant proceeding
to the destruction of the Law he flies to the Kings Prerogative for shelter That to mention the Kings Prerogative in the face of the Peers of the Realm and in presence of all the Commons when he is charged with an Exorbitant proceeding to the Subversion of the Laws is but to cast a Scandal upon the Kings Prerogative and to make it have a worse relish whereas the Law supports the Kings Prerogative and the Subject supports it When his Answer is charged not to be according to Truth he casts a Gloss upon it from the easiness of his being mistaken whereas when he is able to justifie it he glories in it as that whereto he must stand or fall That the Letters Patents which my Lord of Strafford produces rise in Judgment against him for the King hath trusted him ad custodiendas leges Regni and therefore if he hath broken through them he hath broken his Trust. He says It is strange the exceeding of Jurisdiction should be laid to his charge as Treason He is charged with the Subverting of the Law and that 's more than the Exceeding of a Power He read the Instructions to warrant his Act and by these the Commons desire to be judged whether they do not in the Negative say there shall be no such Proceeding before the Deputy and yet he will imply there have been proceedings to the contrary which we cannot see He justifies his Proceedings by former Deputies and hath produced Henry Dillon who hath seen several Proceedings in Sir Henry Bagnalls time and others where Orders have been made by the Deputy alone but the Orders themselves are not brought whereas if they were looked on and consideration had what results out of them their Lordships would not have suffered them to be read without Attestation that they were true Copies But now whether they be entred or no or what other Proceedings there were the Witness doth not know and therefore they are no Evidence nor in truth ought to be offered And the Witness being asked what the Orders were he says one was a Reference and whether Witnesses were examined he says he doth not know He produces my Lord Dillon and we offer to be adjudged by him for he says He knew not any Deputy before my Lord of Strafford that hath intermeddled with matters of Land except in Plantation and Church Causes and this Order is charged to be made by him alone He pretends this is a Court and a Prerogative of the Sword We know not whether my Lord of Strafford intends to keep it by force but whereas he produceth a Commission for giving Oath to the Clerk of the Council this Commission needed not if it were a Court for the Court it self would give an Oath and whereas he mentions it to be in the nature of the Court of Requests we would gladly know whether there be not Authority in the Judge to give an Oath He produces several Orders in my Lord of Faulkland's time The first is expresly for Plantation Lands and there was no determination in Equity or otherwise The second Order he produced in my Lord Faulkland's time was a meer Green-cloth Case and nothing to this purpose The third Order produced was in a business recommended from England to my Lord of Faulkland and such Causes as are out of the Instructions excepted The Order in the Lord of Corke's time was but an Order of Reference to the Archbishop and a Reference is no Determination a private person may do as much So that we observe nothing hath been offered to prove that a Deputy alone hath determined matter of Possession and in this we rest with confidence That none ever did before himself and shall therefore desire the Examination of some Privy-Counsellors He produced a Letter from His Majesty to proceed in such Causes But if by Law it ought not to be then a Letter and Authority derived thereby is void and warrants not Proceeding in the Subject the Letter was as just as might be being obtained on his Information to whose Government and Trust His Majesty had committed the Kingdom and if he mis-inform he must Answer it And the Letter is written with caution giving Authority to proceed in matter of Equity as former Deputies had done and if it be not proved that his Predecessors had used such Proceedings where is his Authority He says he hath proceeded according to the direction of the Kings Letter that is he never determined Title of Land but in Equity and when such Causes have come to him he hath referred them to Law which we are forced to disprove that by offering it under his own hand that whereas a Nobleman of the Realm my Lord of Baltinglas had mortgaged to Sir Robert Parkhurst for 3000 l. Land of a 1000 l. year when Sir Robert had Title at Law and might as Mortgagor have entred after the day past Sir Robert prefers a Petition to my Lord of Strafford himself and he without the Council determines the Possession and takes it from the Mortgagee and afterwards he purchases the Lands himself and letts them for 680 and odd pounds a year For my Lord Mountnorris his Imprisonment the Manager said That when his distressed Lady the Mother of Twelve Children Petitioned His Majesty declaring the great Distress her Husband suffered by the Tyrannical Power exercised over them His Majesty like a Gracious Prince referred it to the consideration of the Deputy That on submission he should deliver him out of Prison But when the poor Lady presented it with Tears in her Eyes and cast her self at his Feet though there was a Reference from His Majesty yet he that would at another time shelter himself under the Kings Prerogative refuses to give so much Respect as to entertain it and when the eldest Son came refused to accept it Another of the Managers added That whereas there is a restriction in the Kings Letter That the Earl of Strafford should not meddle with any thing in other Courts they would shew that after two Decrees in a Court my Lord hath on a Petition Decreed quite contrary and it was no Beggars Cause but a Knights and 5000 l. value That to the Kings Letter they will give all Reverence But if my Lord of Strafford had found such a constant practice to be proved he needed no Letter to set up the Jurisdiction that was in him before That this Letter under the Signet can give no Countenance against an Act of Parliament which Orders That the Deputy shall not meddle with Causes but remit them to their proper Courts and no other Exposition can be given of the saving of the Kings Prerogative but only a reservation of His Liberty to Sue in any Courts And for him to seek by mis-information to procure a Letter from His Majesty for a Power not warrantable by Law he conceives it an Abuse of His Majesty and that makes his fault the greater and he instanced in the Marquess of Dublin who for procuring
Tobacco and he hath known in his little poor experience many Monopolies overthrown by sentence of the Commons House but under favour never heard it to be judged Treason before this time For the Port of Kinsale it is the Port wherein in a manner all the Tobacco of the Kingdom comes to be Landed and thence transported again and that the value of the Tobacco is worth 100000 l. is but an estimate and no Consideration herein had of the price the Customes the Losses and Charges and the Remonstrance of the Commons is only that they conceive it to be so And this is all the Testimony to the value And so his Lordship concluded his Defence And Mr. Maynard made Reply in substance as followeth And First he observed That whereas it was said the Orders of the Commons House were Rigid indeed Tyrannical when they be heard there 's no such thing in them they appoint two of my Lord of Strafford's Agents at least one of them is his Agent and the other Patentee to account the Money That they shall only bring in a List without taking away the Books or any thing conducing to his defence That he knows not for what purpose my Lord of Strafford objected the Lease 10 Iac. for that concerned imposition on Tobacco but the question here is That none must sell Tobacco without Licence of the Patentee Here my Lord of Strafford interposed That any man that will pay Imposition and Custome may bring in what Tobacco he pleases But Mr. Maynard answers That that 's more than the Tobacco is worth and if the Patentees may sell without Imposition and Custome at their own Prizes they are 2 s. a pound before any man Mr. Maynard proceeded to answer That of the Commons petitioning for regulating the King's Debts and observed That it was only that the Incumbrances on the Kings Revenue might be taken off and this is no ground that the Subject must not have his Goods because the Kings debts must be regulated nor a good service done His Majesty that when the Commons shall desire something may be done therefore this is an Argument and Justification that any thing may be done this being to stop the issues of the affections of the Kings people when what they propound shall be so far beyond their Intention besides some have been whipp'd Pillory'd and Was that the Intention of the Commons House to put such Severity pardon him if he say Cruelty upon the Subject That the Letter from His Majesty was on a Misinformation for it sayes His Majesty is given to understand the Preemption of Tobacco may be rightfully assumed Yet the known Law in England or Ireland being that any preemption may be put upon a Commodity to take it from the Subject so they have the more to answer for it that did inform it and if the Question be Who Surely out of my Lord of Straffords own Defence he himself appears to be the Man for he makes the Proposition of the Commons-House the ground of his Proceeding So it was an Arrow out of his Quiver Besides though it was to be assumed to His Majesty yet the Question is Who had the Profit the King had little in proportion to what hath been raised For the Proclamation March 13 Car. Whereas my Lord makes that in England the Example of that Issued in Ireland if that which follows may be an Example to that which goes before it may be true But the Proclamation in Ireland was in Ianuary and the Proclamation here is in March the same year Therefore that 's a great Mistake Besides if there be a Monopoly set up in England Shall that Justifie another A Crime being aggravated when it becomes an Example for when they go to the other one strengthens another and there is more Mischief to the Common-wealth And in Parliament they must be bold to say when Ill Ministers shall take on them to Vouch the Sacred Names of His Majesty to Justifie a Monopoly His Majesty is Innocent but they liable to great Punishment and the more Punishable because they Justifie it under such a Colour As to the Advertisement of it hither by the Deputy and Counsel Shall their Advertisement of what was done Unjustly make it Just Besides my Lord of Strafford takes on him the Encouragement of the Contracts for there is one Proposition that in case we remove they may have liberty to surrender their Patents which is a strong relish of my Lord of Strafford For else Why should they desire no longer to continue the Grant then they may have his Protection to Whip and Pillory Men And the truth is he is the sole Man that hath the Benefit of it and the rest are his Servants And they will desire M r Little may be examined to that point by and by He added That his Lordship had a Weak Defence else he would not have fled to such a Buckler as an Act of Parliament certified from Sir Christopher Wainsford the Deputy of Ireland that he thinks it fit to pass who was one of them that Acted at the Councel-Table so far as his part came but it was never propounded to either of the Houses And where my Lord sayes A Proclamation may be made till an Act of Parliament make it more lasting Mr. Maynard said Yet he hoped by no Law in England a Proclamation may take away the Goods of the Subject That there is a Right in Proclamation he will never speak against but it is no Temporary Law to raise a Monopoly And whereas he sayes Tobacco yields no where so good a Value as in Ireland that 's nothing to the Point of Buying that when the Subject may have 2 Shillings my Lord of Straffords Agents shall have it for 6 d and sell it again for 2 or 3 Shillings My Lord sayes The Contractors are out of Purse 6000 l. and 't is but said And that will not abate the Testimony For Kinsale the Witness being an understanding Man says That in that one Port there comes in 200 Tun and whereas it is said There comes none in a Manner in any other Port Why then hath my Lord Five Magazines of Tobacco at several places Nothing is offered by way of Defence And he that shall Justifie such things by the Commands he hath produced doth exceedingly Justifie our Complaint in that Point for were it not that by Misinformation the Subject is left Remediless at Law he might be holpen there but when my Lord of Strafford and other Great Officers there shall use the King's Name That 's our Trouble therefore their Profit And therefore though my Lord makes light of it it will come heavy at the last and is a great breach on the Property of the Subject Soleemption may be made of all things else Mr. Glyn desiring to add a Word observed That Two things my Lord of Strafford mainly insists on to Justifie his Actions First That the House of Commons desired the Revenue might be unfettered by taking
nor Horse to lye on Horseback or Foot to lye on the Kings people but on their own cost without consent And if any so do he shall be adjudged as a Traitor Mr. Palmer concluded that this hath been done and how their Lordships have heard that this hath been done by Soldiers that profess hostility brought from Garrisons the places of War in great numbers and indeed the number left indefinitely to the discretion of the Sergeant at Arms in Warlike furniture which is literally true in the case And so he concluded the Article expecting my Lord of Strafford's Defence My Lord of Strafford desired their Lordships would be pleased to give him liberty to look over his Notes and he doubted not but to give their Lordships a very clear satisfaction by the help of Almighty God After a little respite his Lordship began his Defence in substance as followeth And First He desired their Lordships would please to remember that if he proved not all things so clearly and fully the reason was obvious and plain the shortness of his time the Witnesses being to be fetched out of Ireland and he having none but such as come accidentally That the other day he read to their Lordships out of Sir Edward Cook 's Book that the Customs of Ireland are in many things different from the Customs of England That for the things done in Ireland he conceived he was to be judged by the Laws and Customs of Ireland and not by the Laws and Customs of this Kingdom and that his Commission was to execue the place of Deputy according to the Laws and Customs of that Kingdom That what hath been opened to their Lordships to be so extraordinary he must justifie as very ordinary frequent and usually exercised by the Customs of that Kingdom That in all times the Army of Ireland and the Officers and Soldiers of it have been the chief hands in executing all the Justice of the Kingdom and of bringing that due obedience to the Kings authority that 's necessary and fit and due That if they had not been so used he thinks those who know the State of Ireland will acknowledge the King's Writs had never run in Ireland they being all executed by their Power and Assistance First his Lordship undertook to make it appear that in case of bringing in Rebels and Offendors of that nature and forcing them to come in it had been the ordinary practice of the Deputy and Council before his time to Assess Soldiers not only on the party but the kindred of the partys till the party be brought in and yet it is no levying of War for all that And because his Lordship heard much speaking of Rebels and Traitors he desired to represent to their Lordships what they be viz. a company of petit loose fellows that would be here apprehended by a Constable Lord Robert Dillon was called for and my Lord of Strafford desired he might be asked whether it had not been the practice of the Deputy and Council to Assess Soldiers not only on the persons but the Septs and whole kindred of Rebels Here Mr. Palmer interposed that for saving of time if my Lord makes this the Case that Soldiers have been laid upon the Septs of Traitors or Rebels that lye out in Woods and esloigne themselves from the Kings protection whom they call Kernes Outlaws and Rebels they the Committee will admit the usage though it will not justifie the Case being expresly against Law for by a Stat. 22 Eliz. If any lye out as Traitors or Rebels five of the Sept that bears the Surname shall be Fined at the Council-Chamber but not have Soldiers laid on them and against a Statute there can be no Usuage To which my Lord of Strafford answered And these are but ordinary fellows And he desired their Lordships would clearly understand what is meant by Rebels for every petty fellow stealing Sheep and the like if the party be out in action they commonly term such Rebels Robert Lord Dillon being asked whether ordinary fellows in Ireland passed not under the name of Rebels His Lordship Answered That touching this point he hath observed that when a party hath committed some Felony or unjustifiable Act and withdraws himself into the Woods a Proclamation is made for his coming in by such a time to render himselfamenable to the Law and if he then comes not in but keeps out in commmon reputation he is accounted a Traitor or Rebel Sir Arthur Tyrringham being asked whether of his knowledge the Deputies and Council have not frequently Sessed Soldiers on Offenders and Rebels when they could not be brought forth to Justice and what is understood by a Rebel in Ireland He Answered That it hath been the ordinary practice ever since he knew that Kingdom since my Lord of Faulklands being Deputy there and hath been ever practised there both by him and the Justices that came after him That ordinary fellows be commonly reputed Rebels with this observation It is true That every man is not a Rebel at his first going out though he be called so but the course is first to proclaim them and if they be not ameneable to Law they be Rebels and so they may be for Felonies of a very small value To prove that most of the Kings Rents as well Exchequer Rents as Composition Rents have been levied by Soldiers in all the times of my Lord of Cork My Lord of Strafford desired Iohn Conley might be called for who being examined how long since he hath been in Ireland and whether in his time the Rents were not col lected by the Soldiers and Officers of the Army He Answered to the First 15 years To the Second That he remembers it very well that in my Lord Faulklands time it was an ordinary course where the Kings Rents were due to send some Horse and Horsemen and takeup these Rents and lye on them till they were collected and taken up So in my Lord Grandisons time and in all Chichesters time and this is all he cansay Henry Dillon was called And First my Lord of Strafford desired liberty to defend the credit of his Witness as to some exceptions taken to him the other day and offered the occasion of the Order of Council-Board made against him to be only this That he said he heard some such thing said and thereupon was commanded to make an acknowledgement and to this he was invited and perswaded by my Lord Dillon for quietness sake rather than he should be troubled about so small a matter and that being granted he supposed the Gentleman stood upright and was a competent Witness in this or any other cause To which some of the Committee for the Commons answered That they except not against the hearing of him but offer to their Lordships memory his acknowledgement that he spake falsly as a weakening of his memory And then Henry Dillon being asked Whether he knew
should not extend to a Subject This is to take a power above Law and make himself equal to Sovereignty to say that he should not be comprehended more than the King himself He says he did not lead the Soldiers but only gave a Warrant and therefore this should not be Treason but though he leads them not the Commander is an Actor and to give Warrant for Treason is Treason He says this is a statute-Statute-Law in Ireland and not examinable before their Lordships here Mr. Palmer alledged that he would do my Lord right that he submitted to their Lordships Judgements and craved leave to give answer to that point and said The Laws of Ireland are devised from the Crown of England the King being seized of it in the right of his Crown of England and as a parcel of this Crown The power they have to make Laws there is derivative from the Crown of England and they did thankfully accept them from the first Conqueror Since that they had power to make Acts of Parliament but that is subordinate the Laws there are the Laws of England applyed to that place As any particular custom of a place not the general Law of the Land is the Law of that place by a general custom and yet may be judged out of the precincts of that custom so the Laws of Ireland are the Laws of that Kingdom yet may be judged by this Supream Court out of the limits of Ireland Though in an inferior Court when a thing questioned in Ireland is brought by Writ of Error they judge according to the Laws of Ireland not of England And my Lord hath prayed and werequire that he may be judged according to the Laws of Ireland So this Law of 18 H. 6. may be judged by their Lordships though it be a Law in Ireland But my Lord urges that this Law is repealed and for that he gave reasons on many Acts of Parliament First a Statute made 8 Edw. 4. That is made to a particular purpose reciting one particular Statute and repealing that and then by a general clause ratifying and introducing all the Statutes of England into Ireland This being but on a particular occasion with such a general Clause will not be applyable however it will be the Answer to that that follows It is a general Clause to introduce the Laws of England and shall not have that reflexion to repeal any Law of force in Ireland This introducing of our Laws thither shall not work to repeal their Laws but make a consistance of both Laws so far as they may stand together On that Mr. Palmer said he would not enlarge himself it being not matter of Fact and it was not expected that matter of Law would have been insisted on and therefore he leaves it to those that shall hereafter give their Lordships satisfaction in point of Law That which my Lord called a Judgement in Parliament 11 Eliz. recites that it was in time of desolation of Justice That the Captains had brought oppressions on the people It was in a time when though the Irish had been victi long before yet they were not brought perfectly under subjection of the Laws of England there then remained Rebellions and Tumults It was in time of Hostility and War And that Statute gives but an Implication neither that Captains should not Assess without the Deputies Warrant And it follows not that therefore he hath authority to do it But howsoever the thing be this was for defence of the people to make resistance against Rebels But the thing in charge was in time of peace and full government of the Law and so that Statute will give no justification at all My Lord of Strafford concluded that there was no Treasonable Intent in this and therefore it should be no Treason on the Statute of the 25 Edw. 3. My Lord recited the words of the Statute Not to be only the levying of the War but adhering to the Kings enemies but these glosses are not to be confounded but severed The adhering to the Kings enemies is one offence within that Statute Levying of War another so that if there be no Adherence yet if there be Levying of War it will be Treason And this levying of War it was on the Kings People perhaps there was no intent upon the Kings Sacred Person yet if it be against the Kings People such a levying of War is Treason ordinary Cases of Felony are to be against the Kings Crown and Dignity though it be the Homicide of a mean Subject it is against the Kings Crown and Dignity because it is against the protection and safety of that man that is the Kings Subject and so the levying of War on the Kings People by laying Soldiers in this hostile manner being against the protection by which they are governed against the safety by which the King is to defend them It is a War against the King his Crown and Dignity This is the Answer to the Defence And Mr. Palmer concluded That he conceived the Charge of the House of Commons in matter of Fact was fully maintained and for matter of Law if there remained any scruple a farther Argument and stronger Reasons should be offered hereafter And so a Recess being granted for a day upon the Humble Request of my Lord of Strafford the House was Adjourned and Saturday following was appointed for the next meeting THE Sixteenth Article The Charge 16. THat the Earl of Strafford the Two and twentieth of February in the 7 th year of His Majesties Reign intending to oppress the said Subjects of Ireland did make a proposition and obtained from His Majesty an allowance thereof that no complaint of injustice or oppreision done in Ireland should be received in England against any unless it appeared that the party made first his address to him the said Earl and the said Earl having by such usurped Tyrannical and exorbitant power expressed in the former Articles destroyed and oppressed the Peers and other Subjects of that Kingdom of Ireland in their Lives Consciences Land Liberties and Estates the said Earl to the intent the better to maintain and strengthen his said power and to bring the people into a disaffection of His Majesty as aforesaid did use His Majesties Name in the execution of the said power And to prevent the Subjects of that Realm of all means of complaints to His Majesty and of redress against him and his Agents did issue a Proclamation bearing date the 17 th day of September in the Eleventh year of His Majesties Reign thereby commanding all the Nobility Undertakers and others who held Estates and Offices in the said Kingdom except such as were employed in His Majesties service or attending in England by His special command to make their personal Residence in the said Kingdom of Ireland and not to depart thence without Licence of himself And the said Earl hath since issued other Proclamations to the same purpose by means whereof the Subjects of
had been Judges and Mr. Wainsford the Master of the Rolls took occasion to speak to my Lord Deputy in his the said Sir Philips hearing and commended him for carrying himself with that caution that he had no way reflected on the Nation but the Faction in that Kingdom and had shunned the words which might reflect on the Nation And so his Lordship concluded his Defence and said he hoped that there was nothing proved that should touch him so deeply as Treason for if the obeying of the Commands of this Case be so great a crime he must confess if it were to do again being not better informed by wiser men tho hereafter he may be better informed and prevent it he should be that Trairor over again and do the self-same thing again and therefore if he had done it out of ignorance he hopes their Lordships will not look on him as having any evil intention or wicked purpose but to serve His Majesty with faithfulness which he hopes will procure an easier judgement from their Lordships than to think of a High Treason in this Article And then Mr. Whitlock made Reply thereunto in substance as followeth That in his Answer to my Lord of Strafford's Defence he shall begin with that which his Lordship was pleased to mention last and also at the beginning That this should not be accounted Treason he knows not the Illegality of it and if it were to be done again he would do it on that Command Whence Mr. Whitlock observed that his slighting or rather justifying of this offence when he is told in this great Presence that it is against Law and will be made good and appear to be against Law is a great aggravation of the offence It is well known that a new Oath cannot be Imposed without Assent in Parliament It is legistativa potestas The Oath of Allegiance is as antient as our allegiance and nothing needed to have been added to that and had it been tendered to them as it might have been by Law this would have performed the Kings Command which under favour went no farther and would have been sufficient security of what was doubted and feared But my Lord of Strafford will go farther the Oath that the Law enjoyns doth not please him he must have a new one framed by himself and published by his Authority thereby to make his Authority equal to an Act of Parliament 'T is indeed believed there were some apprehensions of dangers in Ireland by the great number of the Scots there and a Covenant in Scotland then Sworn but that Covenant is not to be medled withal now The Charge enforced against my Lord of Strafford is not his Care of preventing danger to the Kingdom but that he caused a new and unusual Oath to be Imposed and particularly that they should submit to all the Kings Royal Commands The Committee confess and think no man had ever yet a heart to doubt That the King would command any thing that should be against Law But it hath been sufficiently proved that my Lord of Strafford a Subordinate Minister under the King hath published his own Commands in the Kings Name which are not Justificable nor according to Law And that under favour might be a good cause for the Scots to be tender of taking his Oath knowing that these Commands here were not His Majesties Immediate Commands but the Commands of my Lord of Strafford which they saw many times so unlawful and exorbitant My Lord of Strafford hath produced diverse Witnesses to prove It was Debated on at Council-Board And that the Scots did chearfully take the Oath but in this he hath laboured to disprove his own Answer which is That the Scots came up and desired to have an Oath whereas it appears the Council-Table thought fit to send for them by Letters under his Lordships hand and it was propounded to them to take such an Oath He sayes himself put these words into the Petition In equal manner and measure with other His Majesties Subjects Which showes That my Lord of Strafford himself had the Perusal and Correction of this Petition which is a good Proof that he contrived the Oath The Petition doth only beseech my Lord Deputy That an Oath might be framed to vindicate themselves from the Faction of their Countrymen and the Covenant which they might have done by the Legal Oath the Oath of Allegiance But he put something in above what they desired and that was for submission to all the Kings Royal Commands which may extend to Liberty to Property of Goods and so is a great deal further than His Majesty was pleased to Command by His Letter wherein there was nothing but what was very fit to be commanded by my Lord of Strafford and very fit for him to obey And What if my Lord of Strafford should procure a Letter from His Majesty to do that which is not warrantable by Law the Kings considerations are far above the particular Points of the Municipal Law of this Kingdom He cannot know them but is to be enformed of them by His Ministers Now if my Lord of Strafford shall misinforme Him and desire to have that by His Authority which is not warrantable by Law the fault is my Lord of Straffords and it much aggravates the Crime but the Kings Letter doth not warrant my Lord of Strafford for he hath proceeded further He sayes concerning the Censure of Mr. Stuart That he delivered his Opinion among the rest but their Lordships may remember he went as high as to charge him with Treason It is true the Bishop of Derry conceived it might be Treason And the Primate said The Denial of the former part might be Treason but not the latter but my Lord of Strafford conceived the latter part to be Treason too And therefore surely his Opinion had more harshness and severity then the rest and being his Opinion it was of sufficient weight to carry along with him all the rest and that which was his own Act at the beginning which he Contrived and Treated with the Scotch Lords and Gentlemen That he persues in his Sentence and if others joyn with him in a hard Sentence against Law his fault is not the less but rather the greater to draw others into the same fault His Lordship says little of the Fine that is paid It is true it cannot be proved how much was paid but those that were Fined continued in Prison till very lately for that Fine And whereas he sayes Any taking the Oath might have been Released the next day It is the more Cruelly done to keep them in Prison till they take an Oath who cannot satisfie their Consciences that they may take it My Lord sayes If one refuse the Oath of Allegiance in this Kingdom he shall incur a Premunire and this Sentence was more moderate Indeed if that had been tendered they had incurred the like sentence and that might serve the turn but my Lord must stretch his
their coming up to give Reasons of their Demands That the Scotch Subjects had made in Parliament This being the State of the Question and the Kings Majesty gratiously condescending that some of their own Members should come up to represent their own Demands It was put to the Question What should be done And this was the Conclusion to his Memory there being no Clerk nor Register there wherein my Lord of Strafford was no more involved then the rest that if these Commissioners should not at their coming up give good satisfaction touching their Demands the Council would be assistant to His Majesty to put Him into a Posture of Warr to reduce them to their Obedience He will not say these very words were reported again to my Lords at York but the Sence and way of them was My Lord Digby did here desire leave of their Lordships to represent something on Consideration of that which was last in Question touching the Witnesses helping themselves by their former Examinations He did forbear it before in regard he saw this Honorable Lord for his own particular did not insist on it But for the future he thought it very necessary to represent it to their Lordships as a thing not only much concerning the validity of the Proofs but likewise very much conducing to the honour of many of their Lordships here and concerning the validity of their Proofs he shall humbly offer this to their Lordships That this noble Lord was often pleased to say That he hoped he should not be tied to Words Now their Lordships may be pleased to consider the Charges of the present Articles are consisting principally of Words to say he shall not be tied to Words is as much as to say he shall not be tied to the Question And this he offered only concerning the validity of the Proofs But concerning the honor of some Noble Lords that sit here he confesses he is very zealous in that when he thinks of it that diverse of them have been Examined formerly upon Oath and upon Oath set down without great Leasure and Recollection of the truth of things and now whether so many Months after being called again suddenly on Oath to give account of these Words the best memory may not be subject to variance and discrepancie and may not forget some prejudice and disadvantage to those noble Lords honor he humbly submits to their Lordships And Mr. Glyn added That this Noble Lord hath prevented him My Lord of Traquair hath not vary'd from his Examinations in substance but if he had under favour they must stand upon his Examinations and it is Legal and Just and Ordinary and never a Judge in England will deny it that if a Witness be examined and varies his Examinations shall be read to his face and it is no prejudice for the party is ready to explain himself And he said he was about the offering it and now must offer it according to the trust reposed in him by the House of Commons that if it stand with their Occasions the Examinations may be read and under favour they may To this my Lord of Strafford Answered That here is a Question now stirred that hath been hitherto denied for he could leave out any Examinations taken and certainly as he conceives it was never intended that these Examinations should be made use of They were preparatory and no other And by this learned Gentlemans leave whereas he speaks of the manner of proceedings on Tryals of ordinary Felonies he the Defendant hath seen some of them and in all particulars where the Witness hath been viva voce he never heard Examinations Read But Mr. Glyn averred what he said before That if there be Examinations taken of a Felon at Common Law and the Witness comes viva voce and the Kings Council takes advantage they do Read the Examinations taken And here the Lord Steward declared That it is not denyed to any to recollect himself My Lord Traquair thereupon further alledged That this was the first time he was ever Examined upon Oath and if he hath been occasion of any Scruple he desired Pardon but it was long since he was Examined and he could not see his Depositions and lest he should have erred in his Words he desired this favour Mr. Whitlock further added That they must affirm this to be the ordinary and constant practice and if their Lordships doubt it it shall be made good and he hopes the Commons of England shall not be in worse Case then an ordinary Prosecutor And then offered the Deposition of my Lord Morton he being taken ill at that time to this Point By which means my Lord of Strafford observed himself to be debarred of Cross-Examining him And Mr. Whitlock Answered And so is every Prisoner in the like Case Yet my Lord of Strafford desired He might reserve to himself the benefit of Cross-examining him if he should see Cause But Mr. Whitlock said That under favour in this Case no Prisoner hath benefit of Cross-Examination where Examinations are read at Tryal And Mr. Glyn added That he perceived by my Lord of Strafford that he expected notice what Witnesses they were ready to produce and his Lordship knew what Witnesses will be necessary for his Defence and should be careful of them But Mr. Glyn said further That he thought never any Prisoner expected to know from the Prosecutor what Witnesses would be produced against him My Lord of Strafford confest he might easily mistake for never did so ignorant a Man in their Proceedings stand at the Bar But he conceived that if the other party do examine it stands with Reason they should give him notice of it else he cannot possibly Cross-Examine Mr. Whitlock thereunto replyed That their Examinations are taken preparatorily and it is according to Course of Law That if any Witnesses die or be necessarily absent their Examinations be used at the Tryal Yet my Lord of Strafford said He takes it That if these be those they call preparatory Examinations they ought not to be read but by an Order of the House So my Lord Steward put an end to this matter saying That if it can be the Witnesses by the Order of the House shall be Examined viva voce if not upon Faith made the Examinations are to be heard And then they proceeded to Read the Examinations of the Earl of Morton taken 23 Ianuary 1640. by vertue of and according to a Commission under the Great Seal of England issued in Parliament and dated 11 Ian. 1640. To the 103. Interrogatory This Examinant saith That he was present at York the Night before the meeting of the Great Council of the Peers of England then at a Debate before His Majesty touching the ground of that War against the Scots 104. He saith That at or in the said Debate he heard the Earl of Strafford in His Majesties presence say
which my Lord Mayor sayes that he the Earl of Strafford should say to His Majesty Sir there will be no good done with the Citizens of London till you have hanged some of them up which at first he said was to his best remembrance and upon recollection he says directly and absolutely for my Lord said he must not make it weaker against himself than it is and he wishes that rule might be kept on both sides which is to repeat the Evidence to their Lordships clearly and plainly as it is which duty he said he had Religiously observed since the beginning of the Cause and will perform to the last not misrecyting any thing for his advantage or disadvantage This being howsoever his comfort and joy that their Lordships are so wise as not to hearken to what is repeated of the Evidence but to the Evidence it self as it is plainly and clearly represented and that will not deceive them and therefore my Lord said to the best of his remembrance and the Witnesses said no more at the first he spake them not but he thinks they were spoken in so good company before their Lordships of the Council-Board that it cannot but be remembred by some of their Lordships if the words had been spoken and by His Majesty to whom it is said they were directed But being an equal Testimony however in this condition and misfortune and affliction it may be between this Gentleman and himself he thinks that before these troubles befell him he was as equally to be believed as the other and therefore all the difference is one sayes it the other denies it My Lord added That he denyed it in his Answer and he denies it at the Bar and in truth to his best remembrance he never spake the words and it is a thing of no great moment being a hasty word and at the most very excusable especially to a free spoken man as he is and he smarts for it which hath further engaged him perhaps than wiser man would have been that hath much worse thoughts than ever he had but he hoped it will be pardoned and not amount to make good the Charge against him but that their Lordships Honor and Justice will excuse it rather than punish it and so his Lordship said he would say no more to it Mr. Maynard made Reply thereunto in substance as followeth The Committee shall need to to say little to this Answer of my Lord of Strafford for whereas he sayes nothing of High Treason is proved their Lordships will be pleased to remember how oft this hath been answered for if their Lordships will look back to what they have proved from the beginning They charge not this as a particular Treason but having charged him with a design to subvert the fundamental Laws it appears he threatened it That the Kings little finger should be heavier than the loins of the Law They have shewed what he did in Ireland how he did not only threaten but gave sentence of death on one for words how there he hanged another it appears what a Jurisdiction he erected against Law and wayes were taken to maintain them how Soldiers were forced on mens Houses against their Wills and what Insolency they committed and that must not be questioned when it is propounded When he comes into England their Lordships hear what Counsels he gives which compared with the Plots he laid there is reason to think that these words proceeding from my Lord of Strafford that men should be Fined and Ransomed Hanged up and laid by the Heels comes not out of suddain passion but rise from those Principles and Resolutions that were in him to do all things according to his Will and Pleasure against Law They beseech their Lordships these may not pass as hasty words when they appear to be suitable and conformable to Actions and Counsels preceding for many years and not yet laid down by him for ought can be discerned The singleness of the Testimony hath been often Objected and as often Answered but this is no single Testimony My Lord Treasure speaks of his Advice to go on vigorously with Ship-Money Others prove Fine and Ransome and Hanging up Threatened which have all concurred to the general Charge being several circumstances proved by several Witnesses But whereas my Lord thinks to excuse himself because there was a Judgement in the Exchequer-Chamber God be thanked it appears to be a Judgement against Law and my Lord of Strafford spake these words after the King offered to lay down the Ship-Money for it was after the Parliament But there was never any Judgement that a man might be hanged in such a case nor be Fined and Ransomed for not certifying in matter of Loan my Lord of Strafford knows as well as any man that it is against Law himself having had a great hand in the Petition of Right Mr. Glyn desired he might observe one thing that fell from my Lord of Strafford not at this time only but at several times That it is hard he should for words be questioned as High Treason being a word spoken and no ill effect of it their Lordships may be pleased to call to mind that for words spoken concerning Treading on his Toe he prosecuted so far as to life and yet they were spoken as accidentally as these and not of less consequence and nothing came of them and yet he procured a sentence of death against the Speaker but here he extenuates it and must not be charged with words And so the 25th Article was concluded THE Six and Twentieth Article The Charge 26. THat the said Earl by his wicked Counsels having brought His Majesty into excessive charge without any just cause he did in the month of July last for the support of the said great charges Counsel and approve two dangerous and wicked Projects viz. To seize upon the Bullion and the Money in the Mint And to imbase His Majesties Coyn with the mixtures of Brass And accordingly he procured One hundred and 30000 l. which was then in the Mint and belonging to divers Merchants Strangers and others to be seized on and stayed to His Majesties use And when divers Merchants of London owners of the said Bullion and Money came to his House to let him under stand the great mischief that course would produce here and in other parts and what prejudice it would be to the Kingdom by discrediting the Mint and hindring the importation of Bullion he the said Earl told them that the City of London dealt undutifully and unthankfully with His Majesty and that they were more ready to help the Rebels than to help His Majesty And that if any hurt came to them they may thank themselves and that it was the course of other Princes to make use of such Moneys to serve their occasions And when in the same month of July the Officers of His Majesties Mint came to him and gave him divers reasons against the imbasing the said
Lords I must tell you the First Articles exhibited are Grounds and Foundations whereupon the rest are gathered and to which they resort and apply themselves severally I do conceive my self in a manner by themselves clear of seven of these for they have in a manner relinquished Five of them So that the First Article is the main Article whereupon I must be touched and that is laid in the Charge thus That I have Trayterously endeavoured to subvert the Fundamental Lawes and Government of the Realmes of England and Ireland and have by Trayterous Words Councils and Actions declared the same and have advised His Majesty to Compel His Subjects to submit thereunto by force My Lords I must confess I have many times with my self considered with wonder at the Wisdom of our Ancestors that set the Pillars of this Monarchy with that singular Judgment and Providence that I have ever observed that so oft as either the Prerogative of the Crown or Liberty of the Subject Ecclesiastical or Temporal powers exceed those modest bounds set and appointed for them by the sobriety and moderation of former times the exercise of it over-turn'd to the Prejudice and to the Detriment of the Publick Weale all the Strings of this Government and Monarchy have been so perfectly tuned through the skill and attention of our Fore-Fathers that if you wind any of them any thing higher or let them lower you shall infallible interrupt the sweet accord that ought to be entertained of King and People With this Opinion I had the honour to sit many years in the Commons House and this Opinion I have carry'd along with me exactly and intirely for Fourteen years in the Kings Service ever Resolving in my heart Stare super vias antiquas to prove with equal care the Prerogative of the Crown and the Liberty of the Subject to Introduce the Laws of England into Ireland ever setting before my self a Joynt and Individual well-being of King and People for either they must be both or neither which made my Misfortune the greater to be now in my Gray Haires charged as an under-worker against that Government a Subverter of that Law I most affected and a Contriver against that Religion to the truth whereof I would Witness by the Sealing of it with my Blood My Lords As to the latter part concerning my Religion they have quitted me and I have nothing to answer to that because it is waved and I trust my Lords I shall clear my self in the first part concerning my being a Subverter of the Fundamental Laws that I shall stand clear to your Lordships Judgments in that Case My Lords This Subversion must be by words by Councils and by Actions in Ireland and in England My Lords I shall first give you an Accompt of the words wherewithall I am Charged forth of Ireland and the first words are in the third Article where I am Charged to have said That Ireland is a Conquered Nation and that the King may do with them as he pleaseth And to the City of Dublin That their Charters are nothing worth and bind the King no farther than he pleaseth These are the words Charged My Lords methinks it is very strange under favour that this can be made an Inducement to prove this Charge because I said That Ireland is a Conquer'd Nation therefore I endeavour to subvert the Fundamental Laws when I speak the Truth for certainly it is very true it was so My Lords under favour I remember very well there was as much said here at this Bar since we began and yet I dare well Swear and acquit him that spake it from intending to Subvert the Lawes For my Lords you were told and told truely That Ireland was a Conquered Nation and that it was Subordinate to England and God forbid that it should be otherwise and that they have received Lawes from the Conqueror My Lords the words testified by my Lord Gormonstone and Kilmalock to be spoken are not the words wherewith I am charged and so under favour I conceive cannot be brought to my prejudice as to this Tryal and they are words that are denied by me For my words concerning their Charters your Lordships remember very well I doubt not wherefore I said they were void For their misuse of them and that I told them so not with the intent to overthrow their Patents or Charters but to make them more conformable to those things that the State thought fit for encrease of Religion and Trade and encouraging and bringing English into that Town And that it was meant so and no otherwise Whatsoever was said it appeares by this their Charters were never touched nor infringed nor medled withal by me during the time I was in that Kingdom so that words so spoken and to such a purpose that they should go to prove such a Conclusion I conceive there is great difference betwixt those Premises and that Conclusion The next Charge for words in Ireland is in the Fourth Article where I am Charged to have said That I would neither have Law nor Lawyers Dispute or Question my Orders and that I would make the Earl of Cork and all Ireland know that as long as I had the Government there any Act of State should be as binding to the Subjects of that Kingdom as an Act of Parliament My Lords I humbly beseech your Lordships to give me leave to say for my self that these words of the Charge are onely Sworn by my Lord of Corke and no man else and his Lordship appeared a little mistaken the other day in one point on the Reading of an Order of the Council-Board for so it appears as I conceive so that for one single Witness and he the Party Aggrieved by these words to be the Man that must convince me I conceive your Lordships will not think that to stand with the ordinary Rules of proceeding For the rest to say Acts of State in Ireland should be Binding so long as they are not contrary to Law I confess I then conceived it had been no Offence for I thought them to be as binding being not contrary to Law but the Elder we grow the wiser we may grow if God give us the Grace and Attentions and so I trust I shall by these Gentlemen that have taught me to forbear those kind of Speeches hereafter My Lords These are all the Words charged against me for Ireland saving onely some things that I shall come to anon that is Charged upon me in one of the latter Articles concerning Scotland I say my Lords these are all the Words that have slipped from me in Seven years time having been well watched and observed as your Lordships may perswade your selves I have been But in Seven years time I say these are all the words brought to my Charge and in truth I conceive a wiser Man than my self might be forgiven for one Error or slip of his Tongue of that Nature in a years time seeing it is in
be heard to be a just and fair Decree I do not any way question that though I remember little of the business But at the worst this is but an over-exercising of a Jurisdiction and that it should be High-Treason in a Judge to exceed his Jurisdiction I must confess I never heard it I told your Lordships the other day Bono Iudici est Amplior Iurisdictio But that it should be High-Treason to enlarge Jurisdiction is a perilous Point and if it be so it befits your Lordships and all Judges to be well certained what you may do least by going too far you fall into great Inconveniences But my Lords I say under favour that all these if they had been done without any manner of Authority had not been a Subversion but rather a diversion of the Law it could not be properly said to be the subverting of the Fundamental Lawes though it might be a diverting and so long as I keep the Rule of the Law and do the same things that another man does in a more legal way I mean in a more warrantable place I say my doing of the same thing in an improper place is not a Subversion but a diversion of the Law If you will bring in the Thames about Lambeth to come in again below the Bridge the River is the same though the Course be diverted to another place So the Fundamental Law is the same though the Course be diverted to another place I say the Fundamental Law is the same onely it is carry'd in another Pipe And Shall this be said to be a Subverting Under favour as the River is the same so the Law is the same it is not a subversion but a diversion Nor doth it skill where Justice be done I mean so far as it concerns the Subjects Interest for so long as he hath Justice speedily and with least Charge his end is complyed with and it concernes not himself whether he hath it in the Kings Bench or Common-Pleas so he hath it speedily and with the least Charge And therefore as long as the Lawes are the same though Executed by several Persons and in several places I cannot conceive it to be a subversion And I shall humbly beseech your Lordships to take care that while these straynes are put upon me to make this Personal Charge against me ye do not through my Sides Wound the Crown of England by taking that Power from the Deputy which must of necessity be lodged in him if you will have that Kingdom depend upon the Crown of England which I hold in all Wisdom and Judgment ought to be cared for Therefore I beseech you prejudice not the Deputy to the Disabling him from serving the Crown hereafter by Beating down me who am this day to Answer before you For if you take away the Power of the Deputy you shall not have that Kingdom long depend upon this Crown for it rests under God and His Majesty and must principally rest upon the care of him that is intrusted with that Charge And therefore give me leave on the behalfe of the Crown of England to beseech you to be wary of lessening the Deputies Power too much for if you do I fear you will find it a great Disservice to the Crown My Lords the next thing I am Charged with is the 9th Article That is a Warrant of Assistance to the Bishop of Down and Connor and for that your Lordships see there was but one of them and have heard it proved that before my time such Warrants were frequent indeed no man was denyed them But my Lords it must likewise be remembred that of my own accord I did recall it before I was ever questioned for it and it is very hard if he that mends his Faults should be afterward punished for it for it is a Degree of Repentance and it is hard that a man should be finally Condemned after Repentance and therefore my Lords I trust seeing there was but one of them seeing I did my self recall it so willingly as soon as I found the Inconvenience I hope that will be easier remitted to me The next is the 10th Article that concernes the Customes and that is rather to be looked on as a Fraud then as a Treason as I conceive it there is no Treason in the business sure But I have proved the Bargain was honestly made That there was more offered for it by me then any other That I had it upon no other Termes then it was formerly let to others That I was constrain'd to it whether I would or no And then my Lords if the Bargain by the Increase of that Kingdom proove a good and profitable Bargain it is a very hard Case that if it be increased through the Kings Wisdom and Goodness and the Kingdoms Growth Trade and Traffick that this should be turned upon me as an Argument to make me Guilty of Treason I never found a good Bargain should be so charged so long as it was honest and fair But whereas they press That I have gained Three Hundred Thousand Pounds Estate by it it is a very strange mistake For the King has out of it His Rent of 15 or 16 Thousand Pounds a year and Five entire parts of Eight clear to Himself and therefore it was a strange Calculation and much mistaken by them that gave the Information of it to the Gentlemen For the Book of Rates it was none of mine but was agreed on before my time I had nothing to do with it and therefore have nothing to Answer for it And when it shall come to be proved it will appear that the Rates were set fairly and justly and equal betwixt King and People according to the Law whatsoever hath been said to the contrary The next is the 11th Article concerning Pipe-Staves and that is by them waved and well they may for the plain truth is if it had been proceeded in it would have appeared that there is come Fifteen hundred pounds gain to the King and Four hundred pounds loss to my self and preserving of Woods and that is all that would be made from that Article The next is the business of the Tobacco which is not applyable to Treason in any kind but because I would be clear in every Mans Judgment that hears me I beseech your Lordships to call to mind it was the Petition of the Commons-House of Ireland that the Grant of Impost on the Tobacco should be taken in and converted to the Kings use so that whatsoever was done was persuing their intention and desire That there was no way but this to make benefit and profit of it is most manifestly shewed that there was a Proclamation in England of the like nature and a Command of the King to proceed in it accordingly and an Act of Parliament Transmitted here for Passing it to the Crown according to the intention of the Commons-House and for the greatness of the Bargain no Proofe hath been offered to your Lordships
never so many years could not Merit nor Deserve from Him the Hundred part of what I had from His Favour My Lords Mr. Treasurer Vane sayes I was in the Argument for an Offensive and he for a Defensive War for a War both of us And I beseech your Lordships How should it be more Treasonable for me to be for an Offensive then for him to be for a Defensive War for a War there must be and the difference was not great and for a Counsellor to deliver his Opinion and have that turned upon him as Capital to sweep from the World himself and his Posterity is a very hard Case to say no more of it The next Article is the 21 th wherein I am Charged to be an Enemy to Parliaments a Breaker of Parliaments and did by that means sow ill Affections betwixt the King and His People My Lords This is more fully Charged in a Subsequent Article then this for this is but onely for breaking of the last Parliament that I should advise it to be called with an intent to break it which is very unlikely for that nothing in the World could be of so happy effect to me as the success of that Meeting and yet I must destroy and disadvantage my self in that then which nothing could be of more advantage then the success of that Parliament The 22 th Article is Answered already and the 23 th likewise In the 24 th Article comes in that of the Parliament more fully and there I am Charged Falsly and Treacherously and Malitiously to have declared before His Majesties Privy-Council That the Parliament of England had forsaken the King and given Him the Advantage to Supply Himself otherwayes and having so Malitiously Slandered the said House of Commons that I did with the Advice of the Archbishop of Canterbury and the Lord Finch Publish a False and Trayterous Book called His Majesties Declaration of the Causes of Dissolving the last Parliament c. This goes very heavy upon me in the World that I should be a breaker of Parliaments a Counsellor against Parliaments My Lords there is nothing proved of it and I hope I shall be cleared by your Lordships and these noble Gentlemen and all the World that I had no such thing in my heart For the Point of the Declaration I was at that time Sick in my Bed and could do nothing in it and therefore I trust I shall be acquitted as to that As to the Breaking of the Parliament or any ill-will to Parliaments I have ever honour'd them and far be it from me to wish that they may not be frequent for the good of the King and Kingdom but as oft as you shall have it urged and prest against me that I should be an endeavourer to Subvert the Fundamental Laws of the Land in this kind I beseech your Lordships call to mind what hath been proved that at all Publick Debates at Council and Privately apart I have humbly represented to His Majesty from time to time that Parliaments are the Onely Way to Settle Himself in Quietness in the Kingdom and to acquire Prosperity and Happiness to Himself and His People And when you shall hear them press upon me that I have endeavoured to Subvert the Fundamental Lawes of the Land I beseech your Lordships to call to mind how frequently and servently I have advised the King to call for Parliaments which under God is the great Protection and Defence of the Fundamental Lawes of the Kingdom To the 25th I have Answered already and to the 26th likewise The next is the 27th and for that I can say no more then that your Lordships have heard the Proofes for the Levying of Money it hath been cleared to your Lordships that nothing was done by me but by Consent of the Country with their Unanimous good liking and for their benefit and advantage Being done so and for so good ends as I trust that shall not be enforced against me and it is very strange to me why it should be expected that if two Armies be in the Field one against the other as there was at York that they should be Govern'd with as much quietness as an Atturney walking with his Writs at his Girdle betwixt the Kings Bench and the Common-Pleas For Armies cannot be Govern'd without some Latitude in this kind Inter arma Silent Leges rightly applyed there is truth in that But I did nothing in the Business I did nothing by Compulsion but by the voluntary liking of the Parties themselves and therefore I conceive that shall not be Charged upon me as Treason There remains now the 28th Article and that is the onely Bloody Article if it had been or could be made good that is in the whole Charge for there I am Charged out of ill and wicked purposes and indeed What can be worse than Treason to have Betrayed Newcastle into the power of the Scotch Army and likewise to have betrayed the Kings Army at Newburn to a dishonourable Retreat My Lords if either of these had been true I should have saved your Lordships the labour I would have given Judgment against my self that had been certain But my Lords never was any Man more Innocent therefore they may very well wave it Have I been all this while Charged as an Incendiary and Am I now come in the Conclusion to be charged as a Confederate it is wonderful strange certainly your Articles fight one against another in this for How can I be an Incendiary in one part and a Conspirator with them that Charged me to be an Incendiary in the other part In good Faith I have not been very kindly dealt withal by my Confederates if they be Confederates to Charge me as an Incendiary that did them that Service and Help as to deliver into their hands a Town of such Consequence as that is No my Lords I wish all happiness to the Nation but I can never wish so to it as that they should take one of the Kings Towns in England if I could have helped it My Lords it was lost before I had the Charge of the Army I had nothing to do in the business nor am I to give any Accompt of it nor is any thing proved And as to the Defeate at Newburn you yet fight one Article with another methinks in that too for I am charged to be the Man that delivered up Newcastle and yet all the World knows that nothing could save it from being lost but the taking away from the Scots the Passages at that time So that I should use all means to prevent Men from doing that which I meant to do for them is very strange to me Here is no Probability and certainly little truth in the whole business as concerning my Confederating with the Scots either for the one or the other And so my Lords I am come to the end of these 28 Articles that were for my further Impeachment I have gone over them all and out of
King His Queen and Children Intention is Treasonable yet in all other things there mentioned there must be Action besides Intention for it is not said If a Man do intend to Kill a Chancellor it shall be Treason but if he doth Kill him and if he doth actually Counterfeit the Broad Seal And although a Man should prepare a Furnace make ready his Stamp melt his Bullion yet if he gives not the Kings Impression upon the Coyn all his Intentions yea his Preparations will not serve to make up a Treason Ye see therefore my Lords that the Body of the Statute cannot stick against the Lord Strafford neither in Letter nor Consequence this is not that must not be All that can be said is That the Fact may be Treason by the Common Law For my part I profess my Ignorance who ever thought the Common Law might declare but never make a Treason it might be presupposed that there is a Statute whereupon to build a Declaration and therefore to say there is no Statute for it it is to say It is no Treason at all the Statute ever makes the Treason and to be declared Treason either by Common Law or by Parliament are but two different wayes of proceedings and must both resolve into one Principle nay and which comes home to the Point in the 21 of Edward the Third To kill a Man employed in the Kings War was Treason and the 23 d to kill the King's Messenger was Treason by Declaration of the Common Law but alwayes by reason of the Statute yet none of these are Treasons but Felonies onely because of the intervening Statute of the 25 th of Edward the Third such hath ever been thought the force of its Letter and Declaration and so I will leave it and a word or two of the Salvo which is this That because all particulars could not be enumerated therefore what the Parliament should declare to be Treasonable in time to come should be punished as a Treason And according to this Reservative in the 8 th year of King Richard the Second one charged before the Kings Bench was afterwards referred to the Parliament and there though the Fact was not contained in the Body of the Statute yet because of the Proviso afore-mentioned it was Adjudged Treason In the 11th year of the same King the Duke of Ireland and Nevill Archbishop of York were Impeached of High-Treason by Gloucester Arundel and Warwick and notwithstanding the Statute were convicted thereof by the Salvo but in the 21 of the same Richard the 2 d the Tide turned and the King had such a Hand with the Parliament that the Sentence was Recalled and those Three Noblemen themselves were Adjudged Traytors again in the 1 of Hen. the Fourth His Successor that Revocation of the 21 Richard the Second was Repealed and the Sentence of the 11th of His Reign Established Such were the tossings too and fro of Treason and all because of that uncertain Proviso Therefore it was that in the same Parliament the 1 Hen. the Fourth a Petition was preferred by the Nobility to have Treason limited within some Statute Because they knew not what to speak or what to do for fear thereof And in Chap. 10. an Act was made upon this Petition That the Salvo should be holden Repealed in all times to come and nothing esteemed Treason but what was Literally contained in the 25th of Edward the Third And therefore it is said in the Records That there was Great Joy at the making of this Act in that the Drawn Sword hanging over every Mans head by this Slender Thread of a Consequence or Illation was removed by that Act. Add to this that in the First of Queen Mary Cap. 1. the same is Repeated That no Man shall be punished in Life or Estate as a Traytor but for the Crime contained in the Statute of 25 Edward the Third without the least mention of the pretended Salvo The Earl of Northumberlands Case comes nigh to the Point he was charged with Treason the 5th of Henry the Fourth and if the Statute of the 1 Henry 4th Chap. 10. whereby this Proviso is Repealed had not intervened no doubt he had been Condemned of Treason but he was onely Convict of Felony and that because he could not be drawn within the Letter of the Statute of the 25th of Edward the Third And I dare confidently say it that since that Act was made the 1 Henry the Fourth Chap. 10. whereby the Proviso is Repealed no Man hath ever been declared a Traytor either by King or Parliament except it were upon that or some other Statute Literally and Declaratively taken These two things I do offer to your Lordships Considerations That the Lord Strafford cannot be Impeached of Treason by the Statute of 25th Edward the Third and that the Salvo contained in the same stands Repealed almost Two hundred years agoe And this is all I conceive to be necessary for that Statute which was Alledged by the Lord Strafford in his Defence for matter of Law The Recorder said He could add nothing to what the former Councel had spoken for matter of Law but if their Lordships would state unto him any further Questions he was ready to give his Resolution according to his best ability Mr. St. JOHN'S ARGUMENT OF LAW CONCERNING The Bill of Attainder April 29th 1641. MY Lords The Knights Citizens and Burgesses of the Commons House of Parliament have passed a Bill for the Attainting of Thomas Earl of Strafford of High-Treason The Bill hath been transmitted from them to your Lordships it concerns not him alone but your Lordships and the Commons too though in different respects It concerns his Lordship the highest that can be in the Penal Part so it doth on the other side as highly concern your Lordships and the Commons in that which ought to be the tendrest the Judicatory within that that Judge not them who Judge him and in that which is most Sacred amonst Men the Publick Justice of the Kingdom The King is to be accounted unto for the loss of the meanest Member much more of one so near the Head The Commons are concerned in their Account for what is done your Lordships in that which is to be done The business therefore of the present Conference is to acquaint your Lordships with those things that satisfy'd the Commons in Passing of this Bill such of them as have come within my capacity and that I can remember I am Commanded from the Commons at this time to present unto your Lordships My Lords in Judgment of greatest Moment there are but two wayes for satisfying those that are to give them either the Lex lata the Law already established or else the use of the same Power for making new Laws whereby the old at first received life In the first consideration of the setled Laws in the degrees of Punishment the Positive Law received by General Consent and for the Common Good is sufficient to satisfie
England If but any one of these Six Considerations hold the Commons conceive that upon the whole matter they had good cause to pass the Bill My Lords For the first of Levying War I shall make bold to read the case to your Lordships before I speak to it It 's thus The Earl did by Warrant under his Hand and Seal give Authority to Robert Savil a Sergeant at Arms and his Deputies to Sesse such numbers of Soldiers Horse and Foot of the Army in Ireland together with an Officer as the Sergeant should think fit upon His Majesties Subjects of Ireland against their Will this Warrant was granted by the Earl to the end to compell the Subjects of Ireland to submit to the unlawful Summons and Orders made by the Earl upon Paper Petitions exhibited to him in case of private interest between party and party this Warrant was executed by Savil and his Deputies by sessing of Soldiers both Horse and Foot upon divers of the Subjects of Ireland against their Wills in warlike manner and at divers times the Soldiers continued upon the parties upon whom they were sessed and wasted their Goods until such time as they had submitted themselves unto those Summons and Orders My Lords This is a Levying War within the Statute of 25th Edw. 3. The words of the Statute are If any man do Levy War against our Lord the King in His Realm this is declared Treason I shall endeavour in this to make clear to your Lordships 1. What shall be a Levying of War in respect of the motive or cause of it 2. What shall be said a Levying of War in respect of the action or thing done 3. And in the third place I shall apply them to the present case It will be granted in this levying of War that Forces may be raised and likewise used in Warlike manner and yet no levying of War within the Statute that is when the Forces are raised and employed upon private ends either of revenge or interest Before this Statute in Edw. the 1. time the Title of a Castle was in difference between the Earls of Hereford and Gloucester for the maintaining of the possession on the one side and gaining of it on the other Forces were raised on either side of many hundred men they marched with Banners displayed one against another In the Parliament in the 20th year of Edward 1. this was adjudged only Trespass and either of the Earls Fined 1000 Marks apiece After the Statute in Hillary Term in the 15th year of Edw. the 3. in the Kings-Bench Rot. 3. Nicholas Huntercome in Warlike manner with 40 men armed amongst other weapons with Guns so antient as appears by that Record they were did much spoil in the Mannor of the Abby of Dorchester in the County of Oxford this was accounted no Treason and so it hath been held by the Judges That if one or more Town-ship upon pretence of saving their Commons do in a forcible and warlike manner throw in inclosures this is only a Riot no Treason The words of the Statute 25 Edw. 3. clear this point that if any man ride Armed openly or secretly with men at Arms against any other to kill and rob or to detain him until he hath made Fine and Ransome for his deliverance this is declared not to be Treason but Felony or Trespass as the Case shall require all the printed Statutes which have it covertly or secret are misprinted for the words in the Parliament Roll as appears in the 17th are Discovertment on Secretement Open or Secretly So that my Lords in this of Levying War the Act is not so much to be considered but as in all other Treasons and Felonies quo animo with what intent and purpose My Lords If the end be considerable in Levying War it may be said that it cannot be a War unless against the King for the words of the Statute are If any man Levy War against the King That these words extend further than to the person of the King appears by the words of the Statute which in the beginning declares it to be Treason to compass and imagine the death of the King and after other Treasons this is to be declared to be Treason to Levy War against the King If Levying of War extend no further than to the Person of the King these words of the Statute are to no purpose for then the first Treason of compassing the Kings death had fully included it before because that he which Levies War against the Person of the King doth necessarily compass his death It 's a War against the King when intended for alteration of the Laws or Government in any part of them or to destroy any of the Great Officers of the Kingdom This is a Levying War against the King 1. Because the King doth protect and maintain the Laws in every part of them and the great Officers to whose care he hath in his own stead delegated the execution of them 2. Because they are the Kings Laws he is the Fountain from whence in their several Channels they are derived to the Subject all our Indictments run thus Trespasses laid to be done Contra pacem Domini Regis the Kings Peace for exorbitant offences though not intended against the King's Person against the King his Crown and Dignity My Lords this construction is made good by divers Authorities of great weight ever since the Statute of 25th of Edw. 3. downwards In R. the 2. time Sir Tho. Talbot conspired the death of the Dukes of Glocester and Lancaster and some other of the Peers for the effecting of it he had caused several People in the County of Chester to be Armed in Warlike manner in Assemblies in the Parliament held in the 17th year of R. 2. N o 20. Sir Thomas Talbot being accused of High Treason for this It 's there declared insomuch as one of them was Lord High Steward of England and the other High Constable that this was done in destruction of the Estates of the Realm and of the Laws of the Kingdom and therefore adjudged Treason and the Judgement sent down into the Kings Bench as appears Easter Term in the 17th year of R. 2. in the Kings Bench Rot. 16th These two Lords had appeared in the 11th of R. 2 in maintainance of the Act of Parliament made in the year before one of them was of the Commissioners appointed by Parliament and one of the Appealors of those who would have overthrown it The Duke of Lancaster likewise was one of the Lords that was to have been Indicted of Treason for endeavouring the maintenance of it and therefore conspiring of their deaths is said to be in destruction of their Laws This there is declared to be Treason that concerned the Person of the King and Common-wealth In that great insurrection of the Villains and meaner People in Richard the II. time they took an Oath Quod Regi Communibus fidelitatem servarent to be true
to the King and Commons and that they would take nothing but what they paid for punished all theft with death here 's no intendment against the Person of the King The intent was to establish the Laws of Villanage and Servitude to burn all the Records to kill the Judges This in the Parliament of the 5th year of R. 2. No. 31 32. the First Part is declared to be Treason against the King and against the Law In the 11th year of R. 2. in Parliament the raising of Forces against the Commissioners appointed by Act of Parliament the year before adjudged Treason by all the Judges The Statute I mo Mary Cap. 12. Enacts That if 12 or more shall endeavour by force to alter any of the Laws or Statutes of the Kingdom he shall from such a time there limited be adjudged only as a Felon This Act was to continue but to the next Parliament it is expired it shews by the words only that the offence was higher before the making it My Lords In Queen Elizabeths time Grant and divers Apprentices of London to the number of 200. rose and assembled at Tower-hill carried a Cloak upon a Pole instead of a Banner their intent was to deliver divers Apprentices out of Prison that had been committed upon a Sentence in the Star-Chamber for Riots to kill the Lord Mayor of London and for setting prizes on Victuals In Trinity Term 37 Eliz. divers of the Judges were consulted withal and resolved That this was a Levying of War against the Queen being intended against the Government and Officers of the Queen and therefore Grant and others were executed as Traitors Afterwards in that Queens time divers of the County of Oxford consulted to go together from House to House in that County and thence to London and other parts to excite them to take up Arms for the throwing in of all inclosures throughout England Nothing was done nor no assembly Yet the Statute of 13 Eliz. Cap. 1. during the Queens Life made it Treason to intend or advise to Levy War against the Queen In Easter Term 39 of Eliz. all the Judges of England met about the Case it was resolved by them that this was a War intended against the Queen they agreed That if it had been of one Township or more upon private interest and claim of right of Common it had not been Treason but this was to throw in all Inclosures through the Kingdom whereunto these parties should pretend no claim That it was against the Law in regard that the Statute of Merton gave power of Inclosures in many Cases upon this resolution Bradsaw and Burton were executed at Aynestow-hill in Oxfordshire the place where they intended the first Rendezvous So that my Lords if the end of it be to overthrow any of the Statutes any part of the Law and setled Government or any of the great Officers intrusted with the execution of them This is a War against the King My Lords It will be further considerable what shall be accounted a Levying of War in respect of the actions and things done there 's a design to alter some part of the Laws and present Government for the effecting thereof People be provided of Arms gathered together into Troops but afterwards march not with Banners displayed nor do bellum percutere whether the Army themselves and gathering together upon this design be a War or such prosecution of the Design with force as makes it Treason within the Statute First If this be not a War in respect that it necessarily occasions hostile preparations on the other side Secondly From the words of the Statute shall Levy War and be thereof probably Attainted of open Deed by People of their condition altho the bare conspiring be not an open Deed yet whether the Arming and Drawing of men together be not an open Declaration of War In Sir Thomas Talbots Case before cited in the Seventeenth year of R. II. the Acts of Force are expressed in the Parliament Roll That he caused divers of the People of the County of Chester to be armed in a Warlike manner in Assemblies here is no Marching no Banners displayed In the Eighth year of Hen. VIII William Bell and Thomas Lacy in Com. Kanc. conspired with Thomas Cheyney called the Hermite of the Queen of Faries to overthrow the Law and Customs of the Realm and for the effecting of it they with Two hundred more met together and concluded upon a course of raising greater Forces in the County of Kent and the adjacent Shires This adjudged Treason these were open Acts. My Lords For the application of both these to the case in question First In respect of the end of it here was a War against the King it was to subvert the Laws this being the design for the effecting of it he assumed to his own Person an Arbitrary Power over the Lives Liberties and Estates of His Majesties Subjects and determined Causes upon Paper-Petitions at his own Will and Pleasure Obedience must be forced by the Army this is declared by the Warrant My Lords If it be said that the Warrant expresseth not any intent of subverting the Laws It expresseth fully one of the principal means whereby this was to be done that is obedience to his arbitrary Orders upon Paper-Petitions This was done in reference to the main design In the cases of the Town of Cambridge and Sir William Cogan they have formerly been cited to your Lordships upon other occasions the things in themselves were not Treason they were not a Levying of War In that of Cambridge the Town met together and in a forcible manner broke up the University-Treasury and took out of it the Records and Evidences of the Liberties of the University over the Town In the other they of Bridgewater marched to the Hospital and compelled the Master of the Hospital to deliver unto them certain Evidences that concerned the Town and forced him to enter into a Bond of 200 l. These if done upon these private ends alone had not been a Treason as appears by the very words of the Statute of 25 Edw. 3. before-mentioned of marching openly or secretly But my Lords these of Cambridge and Bridgewater they were of the conspiracy with the Villains as appears in the Parliament-Roll of the First year of Rich. the 2. Numb 311. and 32. where the Towns of Cambridge and Bridgewater are expresly excepted out of the general Pardon made to the Villains this being done in reference to that design of the Villains of altering the Laws this was that which made it Treason If the design went no further than the enforcing Obedience to these Paper Orders made by himself it was sufficient it was to subvert one fundamental part of the Law nay in effect the whole Law what use of Law if he might order and determine of mens Estates at his own pleasure This was against the Law notoriously declared in Ireland In the close Roll in the Tower in the 25th
him in mortem destructionem of the King My Lords in this Judgment and others which I shall cite to your Lordships it appears that it is a compassing the Kings death by Words to endeavour to draw the Peoples hearts from the King to set discord between the King and them whereby the People should leave the King should rise up against Him to the death and destruction of the King The Cases that I shall cite prove not onely that it is Treason but what is sufficient Evidence to make this good Upon a Commission held the 18th year of Ed. 4. in Kent before the Marquess of Dorset and others an Indictment was preferred against Iohn Awater of High Treason in the Forme before-mentioned for Words which are entred in the Indictment Sub hac forma That he had been servant to the Earl of Warwick that though he were dead the Earl of Oxford was alive and should have the Government of part of that Country That Edward whom you call King of England was a false Man and had by Art and Subtilty slain the Earl of Warwick and the Duke of Clare his Brother without any cause who before had been both of them attainted of High Treason My Lords This Indictment was Returned into the Kings Bench in Trinity-Terme in the Eighteenth year of Edward the Fourth and in Easter-Terme the Two and twentieth of Edward the Fourth he was outlawed by the stay of the outlawry so long as it seemes the Judges had well advised before whether it were Treason or not At the same Session Thomas Heber was Indicted of Treason for these words That the last Parliament was the most simple and insufficient Parliament that ever had been in England That the King was gone to live in Kent because that for the present he had not the Love of the Citizens of London nor should he have it for the future That if the Bishop of Bath and Wells were dead the Archbishop of Canterbury being Cardinal of England would immediately lose his head This Indictment was returned into the Kings Bench in Trinity-Terme in the 18th year of Edward the 4th afterwards there came a Privy-Seal to the Judge to respit the Proceedings which as it should seem was to the intent the Judges might advise of the Case for afterwards he is outlawed of High-Treason upon this Indictment These words are thought sufficient evidence to prove these several Indictments that they were spoken to withdraw the Peoples Affections from the King to excite them against Him to cause Risings against Him by the People in mortem destructionem of the King Your Lordships are pleased to consider That in all these Cases the Treason was for words onely words by private persons and in a more private manner but once spoken and no more onely amongst the People to excite them against the King My Lords here are Words Counsels more then Words and Actions too not onely to disaffect the people to the King but the King likewise towards the People not once but often not in Private but in places most Publick not by a Private Person but by a Counsellor ofState a Lord Lieutenant a Lord-President a Lord-Deputy of Ireland 1. To His Majesty that the Parliament had denyed to supply Him a Slander upon all the Commons of England in their Affections to the King and Kingdom in refusing to yield timely supply for the Necessities of the King and Kingdom 2. From thence that the King was loose and absolved from Rules of Government and was to do every thing that Power would admit My Lords more cannot be said they cannot be aggravated whatever I should say would be in Diminution 3. Thence you have an Army in Ireland you may employ to reduce this Kingdom To Counsel a King not to Love His People is very Unnatural it goes higher to hate them to Malice them in his heart the highest expressions of Malice to destroy them by War These Coales they were cast upon His Majesty they were blown they could not kindle in that Breast Thence my Lords having done the utmost to the King he goes to the people At York the Country being met together for Justice at the Open Assises upon the Bench he tells them speaking of the Justices of the Peace that they were all for Law nothing but Law but they should find that the Kings Little Finger should be heavier then the Loynes of the Law as they shall find My Lords Who speaks this to the people a Privy-Counsellor this must be either to traduce His Majesty to the people as spoken from Him or from himself who was Lord-Lieutenant of the County and President intrusted with the Forces and Justice of those parts that he would Employ both this way Add my Lords to His Words there the Exercising of an Arbitrary and Vast Jurisdiction before he had so much as Instructions or Colour of Warrant Thence we carry him into Ireland there he Represented by his place the Sacred Person of His Majesty First There at Dublin the Principal City of that Kingdom whither the Subjects of that Country came for Justice in an Assembly of Peers and others of greatest Rank upon occasion of a Speech of the Recorder of that City touching their Franchises and Regal Rights he tells them That Ireland was a Conquered Nation and that the King might do with them what he pleased Secondly Not long after in the Parliament 10 Car. in the Chair of State in full Parliament again That they were a Conquer'd Nation and that they were to expect Laws as from a Conqueror before the King might do with them what He would now they were to expect it that he would put this Power of a Conqueror in Execution The Circumstances are very Considerable in full Parliament from himself in Cathedra to the Representative Body of the whole Kingdom The Occasion adds much when they desir'd the Benefit of the Laws and that their Causes and Suites might be determined according to Law and not by himself at his Will and Pleasure upon Paper Petitions Thirdly Upon like occasion of Pressing the Laws and Statutes that he would make an Act of Council-Board in that Kingdom as Binding as an Act of Parliament Fourthly He made his Words good by his Actions Assumed and Exercised a Boundless and Lawless Jurisdiction over the Lives Persons and Estates of His Majesties Subjects procured Judgment of Death against a Peer of that Realm Commanded another to be Hanged this was accordingly Executed both in times of High Peace without any Process or Colour of Law Fifthly By Force of a long time he Seized the Yarn and Flax of the Subjects to the Starving and undoing of many thousands besides the Tobacco business and many Monopolies and Unlawful Taxes forced a New Oath not to dispute His Majesties Royal Commands determined Mens Estates at his own Will and Pleasure upon Paper-Petitions to himself forced Obedience to these not only by Fines and Imprisonment but likewise by the Army sessed
what the effect of the Warrant is sworn to be that howsoever the Sergeant at Arms and his Ministers that executed it brought but four or six or ten yet the Sergeant might have brought all the Army of Ireland for there was authority so to do And admitting the matter of Fact proved he mentions an Act of Parliament made 11 Eliz. whereby a penalty is laid upon men that shall lay Soldiers on the Kings Subjects and yet as my Lord observes it must now be Treason in the Deputy My Lords The very casting of an eye upon that Act shews it to be as vainly objected as if he had said nothing for in truth it is no other than as if he should say The King hath given me the Command of an Army in Ireland and therefore I may turn them upon the bowels of the Kings Subjects It is no more in effect Your Lordships heard him the other day mentioning two Acts of Repeal and I expected he would have insisted upon them but it seems he hath been better advised and thinks them not worthy repetition nor indeed are they And if the matter of Fact be proved upon the Fifteenth Article I am confident he will find the Statute of 18 H. 6. to be of ful force My Lords I am very sorry to hear that when levying of War upon the Kings Subjects is in agitation and he charged with High Treason he should make mention of the Yorkshire men and the Army now on foot whereby he would insinuate that if he be charged with High Treason then they must be likewise though they lye quartered and have meat and drink with the assent of the people which may breed ill blood for ought I know From the Fifteenth Article he descends to the three and twentieth and that is the Article whereby he stands charged with speaking of Words and giving of Counsel to His Majesty to incense him against His Parliament pretending a necessity and telling him he is loose and absolved from all rules of Government that he had an Army in Ireland which he might make use of to reduce this kingdom In this he is pleased to begin with the Testimony of my Lord Ranelagh conceiving an apprehension and fear in him that the Army should go over to England which my Lord says is no more but his saying and Mr. Treasurer Vane ' s. I pray God my Lord Ranelagh had not much cause to fear but by the same rule he may lay a charge of unwarrantable fear upon all the Commons for sure the Commons of England did fear it else they would not make an Article of it but my Lord Ranelagh's fear did not arise from a slight cause and he shewed himself a good Common-wealths man in expressing it and he is to be commended for it howsoever it be apprehended by my Lord of Strafford For his observation of the single Testimony of Mr. Treasurer Vane give me leave to take the same latitude as his Lordship did for he shews to three or four Articles what he could have proved as to the Article concerning the Army he could have proved the design of it by Sir John Burlacy and some others if they had been here But by this rule and liberty he hath taken to alledge what he could have shown give me leave to tell you what we might have shown and are ready to show we could have made it express and proved it by Notes taken by Secretary Vane the 5th of May when the words were spoken which Notes should have been proved if we had proceeded on the Three and twentieth Article to corroborate the Testimony of Mr. Secretary Vane and that by two Witnesses We could likewise have shown how we came to the knowledge of it it being by means unknown to Mr. Secretary Vane and have made him an upright Counsellor and Witness but we shall prove his intentions to bring in the Irish Army another way when I come to open my own course and method My Lords he pretends these words were spoken the 5th of May but when they were testified by Mr. Treasurer he did not speak of the 5th of May and yet now my Lord remembers the day and I wonder how he came to the knowledge of the day unless he likewise remembred the words But that my Lord observes is That being spoken then how should he perswade the King that he had an Army in Ireland when in truth he had none there for the Army was not on foot till a month after This my Lords is plainly answered and if he had thought of his own answer he had answered himself for he tels you That in April before he had taken a course for the levying of the Army he had nominated the Officers giving direction for raising it and the day of the Rendezvous of the Army was appointed the 18th of May. And so in his own answer he makes an answer to the objection and the objection is taken away out of his own confession From that Article he falls to the seven and twentieth Article whereby he stands charged with Levying Money by force upon the Kings people in Yorkshire he is pleased to observe that all the proofe for the maintenance of that Article is only the levying of Money by four Soldiers by Sergeant-Major Yaworth where he is pleased to disdain the War because it was so weak yet it was too strong for them God help them that were forced upon pain of life to pay it And whereas he pretends the Warrant was not from him I shall reserve that till I come to the Article and when I come to the proofs I believe it will remain fixed upon him And there he left his Statute-Treason and now he falls to the second kind of Treason and that was the introductive or constructive Treason He begins with the third Article that is concerning some words that he should be charged to have spoken in Ireland and I shall desire that your Lordships would be pleased to look upon your Notes how he answers that Article My Lords says he I am charged to say that Ireland was a conquered Nation and that their Charters were nothing worth and bind the King no further than he pleaseth therefore I am a Traitor because I speak the Truth There was his Answer in his Collection And for their Charters he sayes he might very well say so for he intended it no otherwise but according to the validity of them for they were several ways questionable and ought not to bind unless they were good in Law But if you look upon his Arguments he hath like a cunning Orator omitted the principal part of the Article and that is That Ireland is a conquered Nation and they were to be governed as the King pleaseth the King might do with them what he list this he omits although they be proved by three witnesses and are appliable to his intentions fully yet he could make use of so much as makes for him and leaves out the
In the four and twentieth Article he mentions That he is charged with being an occasion to break the Parliament and lays hold of that as in the other Articles That it was not proved but declined My Lords when he shall hear the repetition of the Evidence though part of the Article was not particularly insisted upon yet I believe it will appear to your Lordships and the world that he was the occasion of breaking the last Parliament and it is expresly proved by witnesses enough and though he says How should any body think him an occasion of it that did so often advise Parliaments yet I shall shew anon that when he did advise them it was to compass his own Design and Plot without which his ends could not be brought to pass He came from the Four and twentieth Article to the Seven and twentieth and he answers against that Article That when Armies are in the field men cannot walk so peaceably as an Attorney with his Box and Papers in Westminster-Hall I know not what he means but when two Armies are in the field they may raise War against the Kings people as well as the King for his just defence it is the way to make his people terrified with Armies and to avoid them as a Serpent and therefore it is a dangerous aspersion as I conceive With these he concluded except some things that he took by way of artificial insinuation to perswade your Lordships That it was dangerous to raise a Treason that had lain asleep I know not how many hundred years and create a Treason A strange thing indeed it is That a man shall be charged with a Treason for subverting the Law A strange thing that one should be charged with Treason for killing a Justice sitting in the Seat of Justice and yet it should be no Treason to destroy King and Kingdom and people and all all which are destroyed if the Law be subverted And now having touched upon what he hath spoken with your Lordships good favour I shall crave leave to run the course I have propounded with my self and that very briefly that is upon the whole matter to shew how far the Evidence produced on the Commons part doth prove the Charge My Lords That laid to his charge is a design and purpose to subvert the fundamental Laws of two kingdoms and to introduce an Arbitrary and Tyrannical Government not that he did effect it but that he did intend it for if he had done it it had been too late to question it he had left no rule whereby to call him to Tryal but his intention and his endeavour are his charge My Lords How far this is proved if your Lordships be pleased to call to mind the Articles and the Evidences produced on the Commons part your Lordships will find I believe that his Words his Counsels and his Actions do sufficiently prove his endeavouring to destroy In the first Article where my Lord of Strafford hath the first opportunity offered him to put this endeavour in execution that is the first place of eminency amongst his other Places and Commands which I take it was his being made President of the North he is no sooner there but there be instructions procured to enable him to proceed in that Court almost in all Causes for a man can scarce think of a Cause which is not comprehended within the Instructions obtained after his coming thither but I shall put your Lordship in mind of two clauses of the Instructions procured in the Eighth year of this King and after he was President that is the clause of Habeas Corpus and Prohibitions that no man should obtain a Prohibition to stay any Suit that should be commenced before him in the Council of York That if any man should be imprisoned by any Process out of that Court he must have no Habeas Corpus A Prohibition is the only means to vindicate the estate of the Subject if it be questioned without Authority A Habeas Corpus is the only means to vindicate his Liberty if he be detained without Law but these doors must be shut against the Kings Subjects that if either they be questioned or restrained before him there must be no relief How far he could go further I am to seek there being no means for the Subject to relieve himself if he be questioned for his Estate without authority no means to redeem himself if his person be imprisoned without Law And he had so incircled himself about that if the Judges should find the party that returns not the Habeas Corpus according to Law there was a Power and a Warrant by the Instructions to the Barons to discharge the Officers of that Fine And now I refer it to your Lordships judgements Whether this be not to draw an Arbitrary Power to himself For the execution of this Power it is true it is proved to be before the instructions in the eighth year of the King but then it riseth the more in judgement against him for your Lordships have heard how he went into a grave Judges Chamber blaming him for giving way to a Prohibition granting Attachments against one that moved for a Prohibition and though this was done before the Instructions were granted yet the Instructions coming at the heels of it sheweth his disposition and resolution more clearly for he acts it first and then procures this colour to protect it and though he pretends there was no proof yet I must put your Lordships in mind that when these things were in question concerning the apprehension of a Knight by a Sergeant at Arms he kneels to His Majesty That this defect might be supplyed and this jurisdiction maintained else he might goe to his own Cottage And here being the just commencement of his greatness if you look to the second it follows That at the publick Assizes he declared That some were all for Law but they should find the Kings little finger heavier than the loins of the Law He did not say it was so but he infused it as much as he could into the hearts of the Kings people that they should find it so and so he reflects upon the King and upon his people the words are proved And to speak them in such a presence and at such a time before the Judges and Countrey assembled they were so dangerous and so high expressions of an intention to counsel the King or act it himself to exercise an Arbitrary Government above the weight of the Law as possibly could be exprest by words And this is proved by five witnesses and not disproved nor is any colour of disproof offered but only by Sir William Penniman who says he heard other words but not that he heard not these words If he doth he must give me leave not to believe him for five affirmations will weigh down the proof of a thousand negatives He stays not long in England with this power though while he stays you hear how he vexes
Rates was procured within a month of the Patent but God knows whether it were not within the compass of his intentions to take the Patent and therefore whether he were not the Instrument of raising Rates it rests in your Lordships judgement and all that hear me I am sure the benefit redounded to himself and so here is an Arbitrary Government in imposing and forcing to pay for that I desire your Lordships to take with you and he might as well have raised nineteen shillings on a pound as nine pence or three pence by the same rule of Law The next Article in number was the Eleventh and I would be glad my Lord had not mentioned it it concerns the Pipe-staves wherein he pretends he did the King great service and that he sayes was the reason of our passing over it but that was not the reason it had been a foul business if we had opened it but having enough besides we made not use of it for the substance of the proofs by multiplicity of Witnesses had been that the parties themselves that bought the Pipe-staves for four pound odd money were fain to sell them to his Instruments for six pounds and after to buy them again for ten pounds else there must be no Licence to export them but that I would not have mentioned if he had let it slip over I come to the Twelfth Article and that is concerning the Tobacco wherein he pretends the Kings service and if my memory fail me not the desire of the Parliament that he should take this into his hands for the King My Lords Therein under his favour he hath mis-recited the Evidence and spoken that he cannot justify for he can shew no such desire of the Parliament It is true there was a desire of the Parliament that the King would be pleased to take his Customs into his hands for the advancement of his Revenue that it might go to maintain himself and he might not be abused and others live by it but to take the Tobacco into his hands he never did nor can produce a witness to prove such their desire and therefore under favour he fixes a wrong upon the Parliament and injures your Lordships by his reciting that he neither did nor can make good for there was no such thing But if you observe the course he takes he makes Proclamation to hinder the importing of Tobacco into Ireland that if it be imported it must be sold to him at his own rate and by this means he first hinders the liberty of the Subject from doing what the Law allows him and so takes on him an Arbitrary Power And Secondly he ingrosses this commodity to himself deceiving His Majesty to whom he professeth so much fidelity for whereas there is 5000 l. Rent to the King he by the computation of Merchants receives near 14000 l. a year And because their computations are not always true I do not care if I allow him 40000 l. mistaken and then he will gain near 100000 l. so that if he intends the Kings benefit it is wonder he told not His Majesty of the great profit that might thereby have risen and let him partake of it as in Justice he should have done according to the Trust reposed in him but you have heard of no such matter And surely my Lord of Strafford would not have omitted it if it had been for his advantage especially in this presence where he omits nothing to clear himself or to insinuate with His Majesty Now I come to the Thirteenth Article the Article concerning Flax which I know is fresh in your Lordships memories and I believe will be so in the memories of the Subjects of Ireland for many years how he ingrossed it into his hands and interrupted the Trade of the poor People whereby such miseries and calamities befell many of that Nation that as you have heard it proved thousands dye in ditches for want of Bread to put in their mouths And whereas he pretends that this was proved but by one witness and that man to be imprisoned and of no credit though he was his own instrument your Lordships remember Sir Iohn Clotworthy his testimony and anothers and his own Warrant produced and acknowledged here to justify the execution of it and such a thing was thereby taken into his own hands that I profess I never heard the like that the poor people should be constrained to use their own as he pleased and that pleasing of himself laid an impossibility on the people to execute his pleasure which was a bondage exceeding that of the Israelites under the Egyptians for there was not laid so much upon the Children of Israel but there was a possibility to perform they might with much labour perchance get stubble to burn their Brick but the Natives here must have a charge laid upon them without possibility to perform and the disobedience must cost them no less than the loss of their Goods which drew with it even the loss of their lives for want of bread This was not proved by only one witness but by many And your Lordships remember the remonstrance of that Parliament of Ireland which declares it to a greater height than I have opened it The Fifteenth Article is that of Levying War upon the Kings Subjects expresly within the Statute of 25 Edw. 3. and 18 H. 6. Your Lordships have heard the Warrant proved by the party himself to whom it was directed whereby Power was given to lay Soldiers upon any party that did not obey my Lord of Straffords Orders at the Council Table but not to circumscribe him to a certain number but the Sergeant at Arms and his Ministers might lay as many as they would It is true this Warrant was not it self produced but a copy was offered which was not read and therefore I will not offer it to be proved but the party that executed the Warrant it self proves it to be under the Hand and Seal of my Lord of Strafford he proves the express authority of it which was to the effect I opened three or four more who saw and read it proved the same and that it was under the Hand and Seal of my Lord of Strafford that accordingly it was executed upon divers of the King's Subjects it was proved by three witnesses expresly in the point how by colour of this Warrant the Sergeant at Arms and his Officers sent Soldiers to lye in the Houses and Lands of the Kings Subjects how the Owners were thereby forced out from their own Habitation how their Goods were wasted and devoured their Corn and Victuals eaten up and the Soldiers never left them as long as any part of their Estates remained to maintain them My Lord of Straffords defence is That it hath been used before his time in Ireland wherein he hath again mis-recited for he did not offer a proof nor a particle of a proof that ever any man did know Soldiers laid upon any party for refusing to
appear to a Warrant or for other contempt at Council-Table before himself did it but he offered to prove That formerly Soldiers were sent against Rebels and that after they were declared to be Rebels and that justly too and he proved an use and custom to force men to pay Contribution-money due to the King but that was by consent of the people who granted a Contribution of 20000 l. a year for increase of the Kings Revenue and that it might not be upon Record in the Exchequer and so claimed as due in time to come they consented that Soldiers should be laid upon them that refused it and the word Consent is within the Statute of 18 H. 6. Again did he prove all manner of Rents were levied by Soldiers no such thing but such Rents as were designed for the payment of the Army he proved by Sir Arthur Terringham the laying of Soldiers once for the payment of a fum of Money but Sir Arthur being demanded whether it were the King's Rents or comprehended within the same general Rule he could make no answer thereunto Your Lordships remember he says He did not know it and therefore probably it was the Kings Rents and doubtless it was so But if he had produced Precedents it could not be an authority for Treason that if people did not appear to his Orders he must levy War against the Kings Subjects and for his extenuation of the War that the same was of no great danger there being not above five or six Soldiers laid at a time I would to God the people oppressed by it had cause to undervalue it I am sure four or six Musquetiers are as strong to oppress a man as four thousand so the matter of Fact is strongly and expresly proved Besides though there came not above four or five to a house yet the authority given to the Sergeant was general he might have brought more if he had listed and in truth he brought as many as the Estate of the party would maintain And as to the not producing of the Warrant I have already answered it If it were in the case of a Deed wherein men call for witnesses it were something but God forbid that the Treason should be gone and the Traitor not questionable if his Warrant can be once put out of the way The next Article which is laid to his charge is For issuing out a Proclamation and Warrant of restraint to inhibit the Kings Subjects to come to the Fountain their Sovereign to deliver their complaints of their wrongs and oppressions Your Lordships have heard how he hath exercised his jurisdiction and now he raises a battery to secure and make it safe If he do wrong perhaps the complaint may come to the Gracious Ears of a King who is ready to give relief and therefore he must stop these cries and prevent these means that he may go on without interruption and to that end he makes Propositions here That the Kings Subjects in Ireland should not come over to make complaint against Ministers of State before an address first made to himself It is true he makes a fair pretence and shew for it and had just cause of approbation if he intended what he pretended But as soon as he came into Ireland what use made he of it he ingrosses the proceedings of almost all the Courts of Justice into his own hands and so pre-possesses the King by a colourable proposition and prevents their coming over before they had made their address to himself and then he becomes the wrong doer and issues Proclamations for the hindring of the King's Subjects to seek redress without his leave which is as great a proof of his design and as great an injury to the people governed under a Gracious Prince as a heart can conceive And what his intention was in exhibiting this Proposition it will appear in the sentence of a poor man one David who was censured and most heavily Fined for coming over into England to prosecute complaint against my Lord of Strafford It is true that this was not the cause expressed but this was the truth of the matter Your Lordships remember a clause in the Order at Council-Board whereby is set forth the cause wherefore the party is not sentenced which I never saw in an order before nor should now but that my Lord foresaw there was danger in it that he might be charged in this place for the fact and therefore puts in negatively why the party was not censured Clausula inconsulta inducit suspitionem And how defends he this Article he sayes his predecessors issued Proclamations to hinder the Kings Subjects from going over lest they should joyn with O-Neal and Tirconnell beyond Sea and so it might be dangerous to the State but because they may joyn with Foreigners shall they therefore not come to the King to make just complaint What this argument is I refer to your Lordships judgments Then he pretends a former precedent affirming that the like instructions were given to my Lord of Faulkland but was there any that none should come to their Sovereign to make their just appeal if injured Surely there was never any such Instruction before and I hope never will be again The next Article is the Nineteenth and now when he had so plentifully exercised his Tyranny over the Lives the Liberty and the Estates of the King's Subjects A man would think he could go no further But see a Tyranny exercised beyond that and that is over the Consciences of men hitherto he dealt with the outward man and now he offers violence to the inward man and imposes an Oath upon the Kings Subjects and so exerciseth a Tyranny over the Consciences of men And setting aside the matter of the Oath if he hath authority and power to impose such an Oath as he shall frame he may by the same power impose any Oath to compell Consciences He pretends a Warrant from His Majesty to do it but the Kings Ministers are to serve the King according to Law and I dare be bold to say and we have good reason to thank God for it if any of the Kings Ministers tell him that any Command he gives is against Law there is no doubt but in his Goodness and Piety he will withdraw his Command and not enforce execution and therefore if there were an error the King is free and the Ministers to be justly charged with it But there was no Command from the King to compel and enforce them to take the Oath by the power of the Star-Chamber to commit them to prison to impose heavy Fines and tyrannize over them all which he did in the Case of Steward And now one would have thought he had acted his part when he had acted as much as lay in his own power and yet he goes beyond this he was not content to corrupt all the streams which was not a diverting of the course as he spoke in his answer for he not only
to Sir William Pennyman in pursuance of which he made his Warrant That it was the assent of the Lords of the great Council that this Money should be levied and taking all together whether it fixes it not upon him to be the Author and Instrument it rests in your judgements in point of fact and so I suppose the Seven and twentieth Article rests on him and so I shall conclude the Evidence produced on the behalf of the Commons And now give me leave to put your Lordships in mind of some Evidences offered by my Lord Strafford himself in his Answer and in the passages of his Defence for his clearing and justification but tending directly to his condemnation I will enter upon some passages he mentioned to day and often before When he is charged with invading the Estates of the Peers of the kingdom of Ireland and determining them upon Paper Petitions in an Arbitrary way your Lordships have heard him speak it before and repeat it this day That he did it out of compassion for the more expeditious proceeding on behalfe of the poor against these mighty But then my Lords I beseech you compare some other part of his proceedings Your Lordships remember the business of the Flax which concerns the poor wholly and universally and if compassion had been the rule and direction of his actions towards the poor surely this would have been a just cause to have commiserated them in this case but he exercised his power over them and over them wholly and over them universally and therefore it shews it is not his compassion to the poor nor respect to the rich or mighty that will any way restrain or obstruct his ways to his own Will And thefore you may see what truth there is in his answer by comparing one part of the charge with another when the business of the Flax brought that calamity upon the Kings Subjects that thousands of them perished for lack of Bread and dyed in Ditches Secondly Your Lordships have often heard him use a Rhetorical insinuatian wondring that he should be charged with words and they strained so high as to be made Treason to question his Life and Posterity though the words might be spoken unadvisedly or in discourse or by chance Your Lordships remember the Fifth Article touching his proceedings against my Lord Mountnorris where words were spoken in an ordinary discourse at dinner and slight ones God knows of no consequence at all such as another man would scarce have harkened after and yet my Lord extends them to the taking away of my Lord Mountnorris his life gets a sentence of death against him and that against Law with a high hand in such a manner as I think your Lordships have not heard the like and therefore I beseech you compare one part of his Answer with another and see how ready he is to make use of any thing that may excuse himself and yet when he comes to act his power you see his exercise of it You have heard how he magnifies his Zeal for advancing the Kings Benefit and Revenue and his care of his Service and would shelter and protect himself under it to justify an exorbitant action but if your Lordships call to mind the business of the Customs for Tobacco which in truth were the Kings right and due and a great profit was thereby advanced and he trusted to advance it The King must loose of his former Rents in the case of Custom and received a small Rent in the case of Tobacco my Lord himself in the mean time imbursing such vast sums of Money where is then the discharge of his Trust where is his care to advance the Kings Rents to increase his Revenue Compare that part of his Answer with this and see what credit is to be given to his affirmation My Lords throughout the passages of his discourse he insinuates and never more than this day with the Peers of the Realm magnifying them almost to Idolatry and yet my Lords when he was in his Kingdom in Ireland and had power over them what respect shewed he then to the Peers of the Kingdom when he judged some to death trampled upon others in misery committed them to prison and seized on their Estates where then was the Peerage he now magnifies And to shew it was an insinuation for his own advantage you may remember when there was an unlawful Act to be committed that is the levying of Money in the North What regard had he then to the Peers of the Kingdom when he comes to justify and boulster up High Treason it self under the name and authority of the Great Council where most of the Peers of the Realm then were and so by this time I know what credit your Lordships give to his words spoken when he lies under your Mercy and Power but what do I speak of the Peers of the Kingdom and his using of them My Lords he spared not his Sovereign His Majesty in His whole Defence for being charged with offences of a high nature he justifies those offences under the pretence and under the authority of His Majesty our Gracious King and Sovereign even Murther it self in the Case of Denwit and my Lord Mountnorris Treason it self in the Fifteenth Article by a Command in Ireland and in the Seven and twentieth by a pretended authority from His Majesty in the face of His People he justifies my Lord Mountnorris his sentence by a Letter from His Majesty Denwits Sentence by a Commission from His Majesty and he read three or four clauses to that purpose My Lords my Lord of Strafford doth very well know and if he doth not know it I have a Witness to produce against him which I will not examine but refer it to his own Conscience that is The Petition of Right that the Kings Servants are to serve him according to Law and no otherwise he very well knew if an unlawful act be committed especially to a degree of Treason and Murder the Kings Authority and Warrant produced is no justification at all So then my Lords to mention the Kings name to justify an unlawful act in that way can do him no good and his own understanding knows it may do the King harm if we had not so Gracious a King that no such thing can do harm unto But my Lords to produce the Kings Warrant to justify his actions under his Patent and Command what is it else but so far as in him lies in the face of his people to raise a cloud and exhale a vapour To interpose betwixt the King and his Subjects whereby the splendor of his Glory and Justice cannot be discovered to his people My Lords what is it else when the people make complaint against the Ministers that should execute justice of their oppression and slavery and bondage For the Minister when he is questioned to justify this under the Kings Authority what is it I say but as much as in that Minister lies
were placed for all the Iustices or Iudges to be their Assistants There were also Seats provided for all the Commons in Parliament though they came not with their Speaker and his Mace as a House of Parliament but as a Committee of the whole House Seats were likewise prepared for the Commissioners of the Kingdom of Scotland and Ireland which made it an Assembly of Three-Kingdoms At the lower end of the Scaffolds a place was provided for Thirteen Members of the House of Commons who were appointed for the Earls Prosecutors to manage the Evidence against him near to them stood the Prisoner with a Table before him and a Desk to write upon and a Chair was set for him to rest himself when he found it needful The Author of the ensuing Papers was purposely placed near the Earl to take in Characters whatsoever should be said either against or for him and to the best of his skill he did impartially put in Writing what was said in the Case Pro and Con he hath not wittingly or willingly omitted the least Particle said in the Prisoners Defence either by himself or any body in his behalfe he hath not varied the form or manner of his Expressions being full of Eloquence and pleasing Rhetorick and excellently adapted to move compassion both in his Iudges and the numerous Assembly of Auditors The Greatness of this Minister of State 's Tryal every way answered the High Station and Employments unto which he had been advanced and the lofty Designs he had managed And the Books of his Life from the time of his admission in the Cabinet of his Princes Council were exposed to the Worlds View and the most profound Learning of the Laws of our Countrey the sharpest Wit and the deepest wisdom of our Kingdom were employed to examine and measure what he had done Not only by those Rules of Iustice whereby all our ordinary Courts of Iustice are wisely bound by our Ancestors to proceed in the Trial of Criminals but by those Fundamental Rules and Maxims of our English Government which that Parliament asserted to be the safeguard both of the King and People and to be so reserved in the custody of the Supream Legislative Power that no Criminals by the violation of those First Principles which they said gave the Being to our Government can be judged otherwise than in Parliament the ordinary Iudges being obliged by that famous Statute of the 25th of Edw. 3. concerning Treasons to Respit Iudgment in all such Cases until the matter be declared in Parliament and Iudgment there given whether the offence whereof any shall be accused be Treason or other Felony This Tryal being upon an Impeachment for Treasons not specially named and declared in the Statute of the 25th Edw. 3. occasioned more industrious and exquisite searches to be made into the most antient Records of the Kingdom than had been for some hundreds of years and also caused the most Learned of the Long Robe to tumble over their Law-Books and to apply their minds to look into the bowels of our antient Laws and the reason of them from whence they had their Being and doubtless the Counsel on either side brought out of their most secret Treasuries the quintescence of all their Learning and Studies besides the weight of the Cause every mans Reputation pushed him to shew his utmost skill before so great and so grave an Assembly of such Critical and excellent Iudges and Auditors The Reader may find in these Papers all the sweetness of Learning Wisdom and Policy which was the issue of the long Labours and Travels of many industrious Bees in the whole spring of their youth and vigor The long continuance of this Trial is another Evidence of its greatness it begun the 22 of March 1640. and continued with the interposition of divers Intervals for deliberation and providing Evidence until the 12th of April 1641. And an ACT for Iudgment in a Bill of Attainder passed against the Earl in the House of Commons the 21 of the same month and in the House of Peers on the 10th of May following I ought not to anticipate the Reader with any thing that happened during this solemn Tryal nor to point at matter of Law or Fact every Reader ought to suppose himself present at the Tryal and to make his own Comments upon the Law and Fact as it appeared every Professor or Student of the Law may transcribe into his Common place Book what he shall judge of most use and every States-man may do the like in his Studies and every Man great and small may if he please make excellent Moral Reflections upon the Rise Greatness and fall of this seeming Fortunate and yet at last Unfortunate Gentleman This Great Mans principal Crime objected against him by the Parliament was his attempts to subvert that excellent Law called The Petition of Right which he himself especially in a Speech made by him in Parliament on the 22 of March in the year 162â— had promoted and pressed with the most ardent Zeal as the best Inheritance he could leave his Posterity and all the Laws confirmed and renewed in that Petition of Right were said to be the most invenomed Arrows that gave him his mortal wound but how justly these were urged against him is not my part to determine I wish my Labours in Collecting truly the Matter of Fact may be an occasion to many to make True and Righteous Iudgment in this particular Case so much Controverted and that from these Matters of Law and Fact such right measure may be taken that all our future Ministers of State may escape the conjoyned Complaints of the Three Kingdoms against them and that the Government may be so Administred as shall best conduce to the happiness of the King and Kingdom ADVERTISEMENT THere is lately published Historical Collections The Second Part. Containing the principal Matters which happened from the Dissolution of the Parliament on the 10th of March 4 Car. I. 162â— until the summoning of another Parliament which met at Westminster April 13. 1640. With an Account of the Proceedings of that Parliamet and the Transactions and Affairs from that time until the meeting of another Parliament Nov. 3 following with some remarkable passages therein during the Firstsix months Impartially related and disposed in Annals Setting forth only Matter of Fact in order of Time without Observation or Reflection By Iohn Rushworth of Lincolns-Inn Esq An Introductive Account of several Passages previous to the GRAND TRYAL of Thomas Earl of Strafford who was Impeached by the House of Commons on the 11th of November 1640. As also of Passages and Proceedings in Parliament from that time unto the 22. of March the same Year when his Trial first began in Westminster-Hall Likewise an Account of Proceedings and remarkable Passages in both Houses of Parliament and some material Matters elsewhere Concomitant to the said Trial during the time it lasted which was until the 30th of April 1641. Friday
sent away Post Merid. The Articles offered by a Member of this House against the Earl of Strafford are referred to the Committee that are to draw up the Charge against the said Earl which being Reported were as followeth Articles of the Commons assembled in Parliament against Thomas Earl of Strafford in maintenance of his Accusation whereby he stands Charged of High Treason 1. That he the said Thomas Earl of Strafford hath traiterously endeavoured to subvert the Fundamental Laws and Government of the Realms of England and Ireland and in stead thereof to introduce an Arbitrary and Tyrannical Government against Law which he hath declared by traiterous words Counsels and Actions and by giving His Majesty Advice by force of Arms to compel his Loyal Subjects to submit thereunto 2. That he hath traiterously assumed to himself Regal Power over the Lives Liberties Persons Lands and Goods of His Majesties Subjects in England and Ireland and hath exercised the same Tyrannically to the subversion and undoing of many both of Peers and others of His Majesties Liege People 3. That the better to inrich and inable himself to go through with his traiterous Designs he hath detained a great part of His Majesties Revenue without giving Legal account and hath taken great Sums out of the Exchequer converting them to his own Use when His Majesty wanted Money for His own urgent Occasions and His Army had been a long time unpaid 4. That he hath traiterously abused the Power and Authority of his Government to the encreasing countenancing and encouraging of Papists that so he might settle a mutual Dependance and Confidence betwixt himself and that Party and by their help prosecute and accomplish his malicious and tyrannical Designs 5. That he hath maliciously endeavoured to stir up Enmity and Hostility between His Majesties Subjects of England and those of Scotland 6. That he hath traiterously broke the great Trust reposed in him by His Majesty of Lieutenant-General of His Army by wilful betraying divers of His Majesties Subjects to death his Army to a dishonourable Defeat by the Scots at Newborne and the Town of New-Castle into their hands to the end that by the effusion of blood by dishonour and so great a loss as that of New-Castle His Majesties Realm of England might be engaged in a National and irreconcilable Quarrel with the Scots 7. That to preserve himself from being questioned for those and other his traiterous Courses he laboured to subvert the Right of Parliaments and the ancient course of Parliamentary Proceedings and by false and malicious Slanders to incense His Majesty against Parliaments By which Words Counsels and Actions he hath traiterously and contrary to his Allegiance laboured to alienate the Hearts of the King's Liege People from His Majesty to set a Division between them and to ruine and destroy His Majesties Kingdoms for which they Impeach him of High Treason against our Soveraign Lord the King His Crown and Dignity 8. And he the said Earl of Strafford was Lord-Deputy of Ireland and Lieutenant-General of the Army there viz. His most Excellent Majesty for His Kingdoms both of England and Ireland and the Lord President of the North during the time that all and every the Crimes and Offences before set forth were done and committed and he the said Earl was Lieutenant-General of all His Majesties Army in the North parts of England during the time that the Crimes and Offences in the fifth and sixth Articles set forth were done and committed 9. That the said Commons by Protestations saving to themselves the liberty of Exhibiting at any time hereafter any other Accusation or Impeachment against the said Earl and also of replying to the Answers that he the said Earl shall make unto the said Articles or to any of them and of offering Proofs also of the Premisses or any of them or any other Impeachment or Accusation that shall be exhibited by them as the Cause shall according to the course of Parliaments require do pray that the said Earl may be put to Answer for all and every of the Premisses that such Proceedings Examinations Trials and Judgments may be upon every of them had and used as is agreeable to Law and Justice Tuesday November 24th 1640. These Articles thus Resolved upon by Question were by another Question Ordered to be engrossed against to morrow Morning and no Copies to be delivered of them in the Interim and the same Committee that prepared the Charge is to draw up the Interrogatories and Mr. Pym is to go up to the Lords with the Charge Wednesday November 25th 1640. Lord Digby went up with this Message to the Lords That this House desires a Conference with their Lordships by a Committee of both Houses concerning the Articles to be Exhibited against the Earl of Strafford Lord Digby brings Answer That their Lordships have Considered the Message and desire to meet a Committee of that House with a Committee of theirs presently in the Painted-Chamber The ingrossed Articles were again openly read in the House and agreed to be sent up to the Lords by Mr. Pym by a Vote upon the Question Mr. Pym before he went made a short Declaration of the substance of that he intended to deliver unto the Lords both before and after the delivery of the Articles Mr. Pym's Report of the Conference with the Lords in delivering up the Articles against the Earl of Strafford that he attended the great Committee of this House and in their presence delivered to the Committee of the Lords House the Charge against the Earl of Strafford and if any thing passed him through weakness or disability he desires the excuse of this House It was moved that Mr. Pym might have Thanks for his well delivery of the Charge against the Earl of Strafford Friday November 27th 1640. A Message from the Lords by Justice Littleton and Justice Bartley The Lords desire a Conference by a Committee of thirty of their House with a proportionable number of this House concerning the Message that was brought unto them by Mr. Pym touching the Examination of their Members in the Accusation of the Earl of Strafford and desire a free Conference touching the last Point of that Message that some of the Members of this House should be present at the Examination and they desire it this morning in the Painted-Chamber if it may stand with the conveniency of this House Answer returned by the same Messenger That this House has taken into Consideration their Lordships Message and will in Convenient time return Answer by Messengers of their own Saturday November 28th 1640. Mr. Whistler Reports from the Grand Committee for Irish Affairs that there are many Petitions and full of matter of Complaints of the proceedings in Ireland and Suitors here for Justice There are many Petitioners here whose Estates are so exhausted that they are scarce able to bring Witnesses from Ireland hither many great Persons of
Committee for the Earl of Strafford The House does declare That they are well satisfied that the Evidence to be produced against Thomas Earl of Strafford at his Trial be managed by those Members Friday March 5th 1640. Upon Mr. Whitlock's Report from the Earl of Strafford's Committee It was Resolved upon the Question That there shall be no Replication put 〈◊〉 the 〈◊〉 of 〈◊〉 〈◊〉 in 〈◊〉 but that the further Proceedings shall be 〈◊〉 〈◊〉 〈◊〉 as is now 〈◊〉 by the Committee Mr. Whitlock is to go up to the Lords with this Message viz. That the House of Commons have considered of the Earl of Strafford's Answer and do aver their Charge of High Treason against him and that he is Guilty in such manner and form as he stands Accused and Impeached and that this House will be ready to prove their Charge against him at such convenient time as their Lordships shall prefix and intend to manage the Evidence by Members of their own and desire a free Conference with their Lordships by Select Committees of both Houses to consider of some Propositions and Circumstances concerning the Trial. Mr. Whitlock brings Answer from the Lords That their Lordships have taken the Message from this House into Consideration and will give a meeting for a free Conference by a Committee of 24 on Monday Morning at Nine of the Clock The Committee of the Commons Mr. Pym Mr. Strode Mr. Solicitor Mr. Grimston Lord Digby Sir Iohn Clotworthy Sir Walter Earle Mr. Hampden Mr. Whitlocke Mr. Palmer Mr. Selden Mr. Maynard Mr. Treasurer Sir Io. Culpepper Mr. Reynolds Mr. Hyde Mr. Prideaux Mr. Whitlock Mr. Martin Mr. Proxholm Mr. Gray Lord Faulkland Mr. Vaughan Lord Russell Sir Iohn Strangwaies Mr. Bellasis Sir Guy Palmes Mr. Sutton Mr. Whistler Sir Symon D'Ewes Sir An. Irby Sir Martin Lomly Mr. Waller Mr. Coventry Mr. Upton Sir Iohn Eveling Lord Fairfax Sir William Massam Mr. Pierepoint Sir Benjamin Rudyard Sir Thomas Barrington Sir Philip Stapleton Mr. Capell Mr. Cary Sir Ralph Hopton Sir Robert Hatton Sir Gilbert Gerrard Mr. Nathaniel Fines A Committee of these 48 are to meet a Committee of 24 of the Lords at a free Conference concerning the Trial of Thomas Earl of Strafford on Monday Morning next at Nine of the Clock in the Painted-Chamber The Committee for the Earl of Strafford are to manage this free Conference with the Lords Monday March 8th 1640. Upon Mr. Whitlock's Report from the Committee for the Earl of Strafford the Heads of a Conference appointed to be had this day concerning the Trial of the said Earl It was Resolved upon the Question 1. To Propose to the Lords That they will be pleased to take some Order that there may be a convenient Place appointed for the Trial of Thomas Earl of Strafford and to give such Directions as shall be fit for preparing conveniency of room for both Houses and for such Members of the House as are appointed to manage the Evidence and for Witnesses and for the Prisoner and for excluding of all such as ought not to be present at the Trial. 2. That whereas in the last Message to the Lords this House did Intimate unto them That they did intend to manage the Evidence by Members of their own They are now Commanded to explain their Reason That their Lordships may take notice That We do not expect any Council shall be admitted the Earl of Strafford at the giving of Evidence at the Trial. Thursday March 11th 1640. Mr. Whitlock Reports from the free Conference concerning the Trial of Thomas Earl of Strafford That the Lord Privy-Seal began with this Introduction That this Parliament both Houses have had often Conferences and to good Purpose which had preserved a true Understanding between both Houses That at the last free Conference their Lordships did receive from this House certain Propositions concerning the Trial of Thomas Earl of Strafford which We our Selves call Circumstances 1. Concerning Place 2. Persons 3. Managing the Evidence 4. Use of Counsel he was pleased to remember the words of the Proposition as they were delivered unto them and told Us those were Circumstances yet Circumstances were Servants to Execution and might be altered and if they should Change from the House they now sit in into the Painted-Chamber or the Court of Requests upon Survey of it by skilful men they were informed the Floor of it is so weak that it might be very dangerous for so great a Resort to be in together at the Trial therefore left that to Our further Consideration The Lords thought of this That the Bar in their House might be removed higher and the Room there made longer and that being made a Scaffold might be a Capacity sufficient to receive the Members of this House this he did only Propose and said The Bishops did desire to be absent at this Trial so there would be more room for the Earls would sit in their places Next that their Lordships did desire to understand Whether We meant to be there as a House which they thought We did or as single Members of the House 3. His Lordship was pleased to tell Us They desired an Exposition of the words managing of Evidence Whether We intended a marshalling and applying of the Proof 4. That the Lords did desire concerning the Place and Persons to know how they have been admitted in former times that they might be fortified by Presidents for Place and Persons and for Counsel Their Lordships are careful not to admit of more than is according to the Law of this Kingdom And thereupon their Lordships have made this Resolution That the Earl of Strafford in matters of meer Fact shall not make use of Counsel but in matter of Law he shall and if any doubt arise what is matter of Law and what is matter of Fact the Lords do reserve the Judgment hereof to themselves this came by intimation of Ours that We did intend to manage the Evidence and at a Conference We explained Our Selves That We did not expect they would allow Him any Council at the giving of Evidence After this he was pleased to tell us That he had not forgot another thing though he omitted it that he that delivered the Proposition at the Message used words to this purpose That this House did hold it necessary and fit that all the Members of the House might be present at the Trial to the end every one might satisfie his own Conscience in the giving of their Vote to demand Judgment Upon this We thought it not fit to make an Explanation till We had acquainted the House with it Ordered That the whole matter of the Report now made of the free Conference with the Lords concerning the Trial of Tho. Earl of Strafford be referred to the Committee for the Earl of Strafford to search and consider of Presidents and to prepare Reasons and to present them to the House to morrow morning and they are to meet this Afternoon at Two
free Conference concerning the Trial of Thomas Earl of Strafford and they are to present to the House what they think fit to be done thereupon Monday March 15th 1640. A Message from the Lords That the House of Peers desire a Conference concerning the time of the Earl of Strafford's Trial and some other Circumstances that concern that Trial they desire it presently in the Painted-Chamber if it may stand with the conveniency of this House by the same former Committee Answer returned by the same Messengers That this House has taken their Lordships Message into Consideration and will give a meeting presently as is desired by the same Committee Mr. Whitlock Reports the Conference had with the Lords concerning the Trial of the Earl of Strafford in haec verba That the Lord of Bath did tell Us That he had something to acquaint Us from the Lords That their Lordships had Ordered That the Place for the Trial of the Earl of Strafford shall be in Westminster-Hall That the King hath been acquainted therewith and hath been pleased to assent thereunto That the time for the said Trial shall begin on Monday next at Nine of the Clock in the Forenoon and that against that time Care is taken that all things shall be prepared and made ready and that the Lords will be pleased to give notice of the time appointed for this Trial to the Earl of Strafford to attend accordingly and a Warrant is to be directed to the Lieutenant of the Tower to bring the said Earl of Strafford at the time and to the place aforesaid After this the Earl of Essex told Us The Lords did take into Consideration something alledged in the Earl of Strafford's Answer to the 27 Article wherein the Peers that were of the Great Council had some Aspersion cast upon them that they had entred this Protestation Whereas the Lords of the Great Council at York to clear their Honours only have made their Protestation That they did neither Command nor Approve the raising of Monies in York-shire as is alledged by the Earl of Strafford in his Answer to the 27th Article Now the said Protestation is by this House unanimously admitted And it is likewise Ordered That so much may be intimated to the Committee of the House of Commons at the next Conference Moved That the Committee for the Earl of Strafford do consider of the last part of the Report now made concerning the Protestation made by the Lords of the Great Council at York how far they may make use of it in the Evidence at the Trial of the Earl of Strafford Ordered That the Committee for the Earl of Strafford consider of the last part of the Report of the Commitee concerning the Protestation made by the Lords of the Great Council at York how far they may think fit to make use of it as Evidence at the Trial. Tuesday March 16th 1640. Mr. Whitlock Reports from the Committee for the Earl of Strafford That whereas the House of Commons have formerly declared to their Lordships that the Earl of Strafford being Impeached by them they do conceive it doth belong to them to Resolve in what manner they will be present at his Trial and that of Right they may come as a House if they please but for some special Reasons upon this occasion they are Resolved to send their own Members as a Committee of the whole House Authorized by the House to be present at the Trial to hear and some particular Persons of themselves to manage the Evidence The House of Commons doth still continue their Resolution in every part thereof and therein and in the matter of allowing Counsel And their Lordships Reservation to their Judgment what is matter of Fact and what not the House of Commons do save to themselves as they have formerly done all Rights that do appertain to them according to Law and the course of Parliament and do declare That the Proceedings in this Case shall not be drawn into President to the Prejudice of the Commons Ordered That this Protestation be by way of Conference transferred to the Lords Wednesday March 17th 1640. Ordered That Mr. Pym shall make Report of three especial Cases that concern the Earl of Strafford's business on Friday morning next Thursday March 18th 1640. Ordered That the Earl of Strafford's Committee of Twelve do attend that Service and lay aside all other Excuses and Occasions unless they be otherwise Commanded by this House and Mr. Glyn is added to this Committee Friday March 19th 1640. Ordered That a Warrant under Mr. Speaker's Hand be directed to the Master of the Marshalsey of the Kings Bench requiring him to send Robert Coyne a Prisoner there upon Execution in safe Custody to attend the Committee for the Earl of Strafford De die in Diem so long as the Committee shall so require Ordered That Patrick Allen an Irish Merchant who has a Petition depending here shall have the Liberty to go abroad with a Keeper to Prosecute his business here and to be examined as a Witness at the Committee for the Earl of Strafford Sir Thomas Barrington Sir Iohn Culpepper Sir Io. Strangwayes Mr. Ashburnham Sir Io. Hotham Sir William Litton Sir Io. Holland Sir Robert Pye Mr. Wheeler Mr. Lawrence and Mr. Whittaker are appointed as a Committee to View the place for the Earl of Strafford's Trial and to think of some convenient manner for the Committee of the House to go in and be present at the said Trial and for Mr. Speaker to be there in a private manner and they are to meet this Afternoon at Two of the Clock in the inner Court of Wards Saturday March 20th 1640. Ordered That the Earl of Strafford's Committee of 13 shall have Power to manage the Evidence in such manner as they shall think fit to manage the same at the Trial of the Earl of Strafford Ordered That Mr. White and Mr. Prideaux be appointed to take Notes of the Passages of the Trial of Thomas Earl of Strafford and to Report them to the House if occasion be and that the Committee shall have Power if occasion be to make use of two more such as they shall think fit though not of the House Moved from the Earl of Strafford's Committee That it would please the House to give a fair and candid Interpretation of the Committees Labours and Endeavours in this business Upon Sir Iohn Culpepper's Report from the Committee appointed to view the Place and to Regulate the Order and the Manner of the Committee of the Houses coming and being there It was Ordered 1. That the Members of the Commons shall sit together without any Intermixture of others in that place which is prepared for them 2. That in respect of the inconveniency of it the Members shall not come to meet at the House on Monday morning but come directly to the place of the Trial. 3. That for the well-ordering of the business the said Committee with the addition
things are not proved when any thing we urged is contained under an Article for then he refers the proof when he comes to the Article as many things concerning the Lands of the Clergy will be made good in the proofs of the proper Article That he hath preferred many Divines that is no part of his Merit nor takes away his fault though it be true That for the Value of his living we never heard of it till on this occasion but be it small or great it is nothing to justifie my Lord of Strafford being offered to this purpose That though his Lordship were careful of the Lands of the Ministers He was not careful of the Ministers themselves in suffering a Groom to execute that high Function Ministers being not to be chosen according to the Quality of the Living but according to the Quality of the Function That for the matter of Monopolies if his Lordship do stop any he may stop them for sinister Reasons and Respects and however there is no Compensation doing his Duty in one thing not satisfying for Neglect in another And then concluded That what we have not now replied unto shall be made good in the Charge and ought not in their Lordships Opinion make my Lord of Strafford more plausible for the Charge shall be made good against him in the truth of the Fact and the Aggravation of it Hereupon the Court was Adjourned and the Committee directed to proceed to the Proofs conducing to the particular Charge the next Morning The Third day Wednesday March 24. 1640. Gentlemen YOU who are of the Committee to manage the Evidence against the Earl of Strafford I am to acquaint you Their Lordships have considered of that point of Sir Pierce Crosby his being examined as a Witness and my Lord of Straffords Exceptions and have resolved that he shall be Examined and that the Validity of his Testimony shall be left unto their Lordships Judgments Your Lordships have with great Patience attended the Charge that hath been read and the Answer and the Exceptions taken to the Preamble which my Lord of Strafford to ingratiate himself did make to the main of his Defence My Lords I shall repeat little of that that hath been said only pardon me if I say this to Your Lordships That wherein my Lord of Strafford answered to very many particulars yet to that one main he answered not which was principally objected against him which I therefore speak to put him in mind of it that if he can he may Answer And that is Your Lordships were pleased to hear the Complaint and Protestation of the whole Kingdom of Ireland read before you The principal of their Aim seems to be to take off the Extolling of my Lord of Strafford that himself or his Agents had put upon him in a Bill of Subsidies wherein indeed the Praise and Honour due to His Majesty was much Attributed to my Lord of Strafford which grieved the Parliament who would take it off and my Lord of Strafford is now willing to lay it down and he doth well to do so when he can keep it no longer when those from whom he took it by fraud or force would wrest it again from him I desire Your Lordships to remember and I am sure you will That the main of our Complaint is His alteration of the fundamental Laws against Will His introducing of new Laws at his Will and Pleasure This is not only the Cry but the Testimony of a whole Kingdom before Your Lordships of all the Lords and Commons of Ireland I shall not touch that which concerns breach of Priviledge of Parliament he would fain put that off on Sir George Ratcliffe his bosom Friend and put it off himself My Lord of Strafford Sequestred Sir Pierce Crosby from the Council his Vote went with it others joined with him but I am sure he moved it he concurred with it But now My Lords I humbly Address my self to that we are ready to maintain The Body of the Charge And because some time hath been spent between the reading of the Charge and the main of the Defence I desire leave to open what is the Nature what the Height and Quality of the Offence of which this great Lord stands Accused before you My Lords It is a Charge of the highest Nature that can be against a man A Charge of High Treason It is a Treason not ending and expiring in one single Act of a discontented Heart but a Habit a Trade a Mystery of Treason exercised by this Great Lord ever since the Kings Favour bestowed on him My Lords It hath two Evils to deprive us of that which is good that is to subvert and take away the fundamental the ancient Laws whereby we are secure of whatsoever we do enjoy it hath My Lords a positive Evil in it to introduce instead of that an Arbitrary Government bounded by no Laws but by the Evil Councels of such Ministers as he hath been My Lords It is the Law that gives that Soveraign tye which wâ— all Obedience and Chearfulness the Subject renders to the Soveraign It is the Law My Lords that gives Honours to the Lords and Nobles Interest Property and Liberty to the Subject My Lords The Law as it is the Foundation and Ground of all these hath its distribution in a course of Justice Justice is derived as by so many Channels by the several Courts of Justice whereby the Kings Justice for it is His is brought and conveyed to the Subject My Lords Of all this hath my Lord of Strafford endeavoured not only to put the Subject out of present Possession but to make him uncapable of the future Benefit of it Other Treasons yea a Treason against the Person of a Prince which is the most Transcendent and High Treason that can be fall short of this Treason For a good Prince may be gathered to His Fathers yet another may succeed Him that supports the Glory and Justice of His Throne We have had Experience of it When blessed King Iames was taken from us to Heaven Sol occubuit nox nulla secuta est But if any one such a design as this should take effect That the Law and Justice should be taken from the Throne and Will placed there we are without hope of ever seeing Remedy Power in so great a measure taken is not easily laid down unless it be by the exceeding great goodness of so merciful and just a Prince as we have My Lords The Particulars of this Treason are Conveyed to Your Lordships in 28 several Articles I shall shortly and briefly touch but the Heads of those on which I shall insist and give some distribution of them And I think the best way will be this To consider first what he did and what he said before he went into Ireland then what he did and said there and what he hath done since And in all of them you will find this his main design which I
words spoke at a private Table half a year yea seven months before my Lord of Strafford calls a Councel of War and judges his Lordship to death My Lords It is no wonder that he would make the Kings little Finger so heavy that could make his own Toe heavy enough to tread the Life of a Peer under his Feet And he did not only give Sentence in that Case but caused Execution to be done in another Case upon one D. who was condemned by Martial Law and hanged at Dublin where there was no War at all Other particulars will follow when I fall upon proof 9. Then he comes to make Laws and that is in the 9th Article By the Laws of England and Ireland too the Ecclesiastical Power is distinct from the other it not extending to the Imprisonment of the Person but is to attend the Kings Courts and to receive directions from thence yet he makes a Warrant to the Bishop of Downe and he made it to others too That if any of the poorer sort did not appear upon the Bishops Citation or not obey when they did appear they should be Attached and Imprisoned Here he makes a Law of himself and subjects the Liberties of the Subjects to his own Pleasure but this was for the poorer sort of People though Justice sees no difference in matters of Estate betwixt Poor or Rich But when he hath brought it on the Poor he will afterwards bring it on the Rich. 10. The next is a Power of laying Impositions on the Subjects First he is a Farmer of the Customs he puts excessive Rates upon the Commodities that which is worth but 5 s. as the Hydes he will have valued at 20 s. and the Wool which is worth 5 s. he will have it valued at 13 s. 4 d. and by this he takes away in effect whatsoever the Commodity is worth for the Customs come very near the Value Another particular in this I shall be bold to open and I hope his Lordship will provide to give an Answer He hath advanced by this the Kings Customs and a Rent of 1350 l. is increased to the Crown But it will appear to Your Lordships that the Crown hath lost and he only hath gained And whereas my Lord of Strafford says there was no other Defalcations in his Patent than in the former that will fall out to be otherwise for this is the State of the bargain There was a former Rent of 9700 l. which the Duke of Buckingham paid out of this Farm On the Earl of Straffords Patent that Rent is reserved and as much as came to 1350 l. more but in lieu of 1350 l. advanced to the King my Lord of Strafford hath in his Grant the Surplusage of Wines which were not in the Dukes Patent worth 3400 l. a year besides a Rent paid for the Term of the Wine of 1400 l. And whereas there was no defalcation of the Customs of London Derry and Colerane in the Dukes Lease which amounted to 1500 l. a year my Lord of Strafford must have a defalcation for them And then the Seizures which were 500 l. a year and for Knockvergus and Straniford 2500 l. a year so here is above 5000 l. a year less to the Crown in lieu of the advance of 1350 l. a year besides the increased Customs amounting to 12000 l. a year And yet he again hath far exceeded this proportion We say further he doth not only impose on the Subjects but takes away that which is the Subjects utterly and entirely as in the case of the Flax. It is true the Employment of it belongs to Women but it is the greatest Commodity one of them of that Kingdom and of greatest profit the Revenue of the Custom of it being 800 l. a year and this he hath gotten into his own hands and possession This he got from the Natives and took it to himself He doth for that purpose issue a Proclamation That they shall use it in such a way wherein the Natives were unskill'd and if it were not so done it should be seized and it was seized accordingly yea their Houses broke open and their Goods taken away and brought to my Lord of Straffords house where they were employed in his works The like we shall instance in Tobacco 15. Next we shall shew to Your Lordships how he hath levied War upon the Kings Subjects We opened in the beginning what an Arbitrary Jurisdiction he set up here we shall shew how he used it by a meer course of Enmity and Hostility For My Lords this was the course If a Decree or Order were made by him and not obeyed he issues a Warrant to the Sergeant at Arms to go to the next Garrison and take Soldiers with an Officer and carry them to the House of the party in question it is no matter where it was but to the House of them that were pretended to be disobedient they were to go If the Decree had been to raise so much money or to put parties in possession In plain terms the Soldiers were to lye like Free-booters and Enemies on the King's People to eat them up They have killed their Sheep their Oxen and they have lain not on the parties only but on their Tenants till the party comes in and renders himself They have burnt their Houses taken their Wives and Friends and carried them away till Obedience was rendered and this is a levying of War upon the King For the King and the People are both so united in Affection and Right of Law that there cannot be Violence offered to the King but it redounds to the People nor can any Oppress the People in this sort but it redounds to His Majesty Besides it is contrary to a Law of that Kingdom whereby it is Enacted That if any person shall assess Horse or Foot on any of the Kings People without their consent it is High Treason The next thing we shall go to is the Favour he shewed to the Papists in their Compositions and Exemptions from all penalties of Law for they were expresly not to be proceeded against nor to be Convicted and so that which hath influence into Religion and Reformation is quite taken away and nothing but matter of Profit is left The next Article is that that concerns the Kingdom of Scotland First he begins with them in Ireland contrives an Oath which is set forth in the Articles That they shall obey the Kings Royal Commands without exception This he enforceth by Fining and Imprisoning them that disobeyed him And so in all the other particulars when his Proclamations were broken his course was by Fine and Imprisonment to enforce an Obedience My Lords He doth not only press them in their Estates but strives to infuse into His Majesty an ill Opinion of them he provokes and incites Him by all his Arguments to lay down his Mercy and Goodness and Justice and to fall into an offensive War against that Kingdom He gives out that
of a Gentlemans Sir Thomas Gore being Fined in the Court of Star-Chamber there and his being Arrested by a Warrant from my Lord Wentworth here in London We do not go about to prove that he solicited for this Commission but that he expressed his desire of it and upon that it was granted We shall prove that it was executed in this high manner that when Prohibitions have been taken out he hath punished the parties some he hath threatned Nay Money hath been given to those that were Defendants in the Prohibition And we shall offer this too The Judge is dead before whom it was but upon occasion of a Prohibition he went to a Judge a Reverend and Just man Mr. Justice Hutton what was said privately between them we cannot tell but we shall prove that Mr. Justice Hutton complained with Tears in his Eyes how that Lord used him about a Prohibition And so we shall leave this Article with this We shall not go about to prove Decrees for which he might have Colour but for these Clauses he could have no Colour they never being in any Commission before THE First Article The Charge THat the said Earl of Strafford the 21st day of March in the Eighth year of His Majesties Raign was President of the Kings Council in the Northern parts of England That the said Earl being President of the said Council on the 21st of March a Commission under the Great Seal of England with certain Schedules of Instructions thereunto annexed was directed to the said Earl or others the Commissioners therein named whereby among other things Power and Authority is limited to the said Earl and others the Commissioners therein named to hear and determine all Offences and Misdemeanours Suits Debates Controversies and Demands Causes Things and Matters whatsoever therein contained and within certain Precincts in the said Northern parts therein specified and in such manner as by the said Schedule is limited and appointed That amongst other things in the said Instructions it is directed That the said President and others therein appointed shall hear and determine according to the Course of Procéedings in the Court of Star-Chamber divers Offences Deceits and Falâ—ties therein mentioned whether the same be provided for by Acts of Parliament or not so that the Fines imposed be not less than by the Act or Acts of Parliament provided against those Offences is appointed That also amongst other things in the said Instructions it is directed That the said President and others therein appointed have Power to Examine Hear and Determine according to the course of Procéedings in the Court of Chancery all manner of Complaints for any matter within the said Precincts as well concerning Lands Tenements and Hereditaments either Frée-hold Customary or Copy-hold as Leases and other things therein mentioned and to stay Procéedings in the Court of Common Law by Injunction or otherwise by all ways and means as is used in the Court of Chancery And although the former Presidents of the said Council had never put in Practice such Instructions nor had they any such Instructions yet the said Earl in the Month of May in the said Eighth year and divers years following did put in Practice Exercise and Use and caused to be used and put in practice the said Commission and Instructions and did direct and exercise an exorbitant and unlawful Power and Iurisdiction over the Persons and Estates of His Majesties Subjects in these parts and did Dis-inherit divers of His Majesties Subjects in those parts of their Inheritances Sequestred their Possessions and did Fine Ransom Punish and Imprison them and caused them to be Fined Ransomed Punished and Imprisoned to their Ruine and Destruction and namely Sir Coniers Darcy Sir John Bourcher and divers others against the Laws and in Subversion of the same And the said Commission and Instructions were procured and issued by Advice of the said Earl And he the said Earl to the intent that such illegal and unjust Power might be exercised with the greater Licence and Will did Advise Counsel and Procure further directions in and by the said Instructions to be given that no Prohibition be granted at all but in cases where the said Council shall excéed the limits of the said Instructions And that if any Writ of Habeas Corpus be granted the party be not discharged till the party perform the Decrée and Order of the said Council And the said Earl in the 13th year of His Majesties Reign did procure a new Commission to himself and others therein appointed with the said Instructions and other unlawful Additions That the said Commission and Instructions were procured by the Solicitation and Advice of the said Earl of Strafford Proofs touching the Commission for Government in the North enlarged To the point of Star-Chamber Power THe Commission granted 21 Mar. 8 Car. was read 19 Article whereby my Lord as President or in his absence the Vice-President assisted prout in the Commission are authorized to hear end and determine according to the Course of proceedings in the Star-Chamber all and all manner of Forgeries Extortions c. And to Fine c. So as the Fines imposed be not less than by the Acts of Parliament is provided c. Whence observe That he would have power in Fining to go beyond but not less than the Fines in the Act of Parliament To the point of Chancery Iurisdiction Article 23. was read whereby Power is given by Injunction to stay Proceedings in any Court of Common Law Article 28. was read whereby Power is given to send the Sergeant at Armes and Attach in any part of the Realm of England and to bring before the Lord President c. any person departing the Jurisdiction of that Court after Commission of Rebellion sued forth Article 29. whereby is granted That no Prohibition be granted in the Court of Westminster to stay Proceedings in that Court But in cases where the Court of the President shall exceed the Kings Instructions and if any Habeas Corpus shall be sued forth for not performing the Order of that Court the party Committed not to be discharged so long as such Orders shall stand in force and if any Fine be thereupon estreated The Treasurer and Barons of the Exchequer to discharge it Whence observe That the not granting of Prohibitions or Habeas Corpus's and the discharging of the Fines estreated are new To the sending of Proces actually before these Clauses granted and to the Earl of Straffords procuring the Clause to be supplyed when he found the Defect Iohn Gore Sworn and being interrogated how his Father was Arrested and how long before this Commission Answered That Sir Thomas Gore his Father was Arrested in London by a Sergeant at Armes That his Father conceiving it to be out of the Instructions at Yorke did Appeal to the Council-Table That Mr. Mason argued for his Father and made it appear That the President and Council had no Instructions to take a
man without the precincts of the Court. That my Lord of Strafford fell on his Knees and besought the King That if his Instructions might not be so good as to bring in a Delinquent that had affronted the Court if by stepping over the water he should go beyond the precincts of it he might leave that Service and lay his Bones in his own Cottage That his Father was Arrested in November 1632. as he takes it and was kept 18 Weeks before he was discharged Evers Gower Sworn and Interrogated about the time of his Fathers Arrest Answered That it was in November 1632. and his Father kept in Prison 14 or 18 Weeks but referred to his Brothers Deposition for a more particular Answer To the matter of Prohibitions Iohn Musgrave Sworn was examined Whether he knew of any Prohibition sued forth in Vaux his Cause And whether a Warrant were granted to Attach What Threats my Lord of Strafford used to the party that sued it out being after Octavo Caroli After some Exceptions taken to it by the Earl of Strafford as not being within the Charge The Witness Answered That he knew of an English Suit between Musgrave and Vaux That upon notice given by Musgrave a Prohibition was procured Direction was given that an Affidavit should be made of serving the Prohibition That Affidavit being made a Warrant was directed to the Pursevant or his Deputy to Arrest Vaux On which he was Arrested and Rescued That after Affidavit made of the Rescue a further Warrant was sued forth for bringing in of the Rescuers from London which Warrant was now produced That the Rescuers being thereupon brought to Yorke and having lain several days in Prison an Information was Exhibited by Sir George Ratcliffe then the Kings Attorney at Yorke by relation of Francis Musgrave To which they did Answer And after upon full hearing That before the Censure he the Deponent in Michaelmas Term before 1632. did come to London on behalf of Francis Musgrave to move the Court of Common-Pleas to have the Prohibition dissolved And likewise Vaux did procure a Rule for a Prohibition in the Information Cause which the Witness offered to shew under the Court Hand That it was moved by Sir Robert Heath that the difference might be referred to Mr. Justice Hutton and Sir Robert Heath That he the Deponent undertook for Musgrave and Vaux did submit That afterwards by Sir George Ratcliffes direction thinking it not fit to refer the Cause it concerning the Jurisdiction of the Court of York My Lord President being acquainted with it the Reference went not on that Term but stayed till the Presidents pleasure was known with which Mr. Justice Hutton was made acquainted That in December upon his this Deponents return to York and upon hearing the Information Cause December 1632. Sir George Ratcliffe did offer to the Court the Lord President being there whether he might go on in the Information Cause for that there was a Reference between Musgrave and Vaux to Justice Hutton and Sir Robert Heath or whether the Reference might go on or no That the Lord President thereupon answered That a Rule for a Prohibition was no Prohibition but if there were one he would not obey it And whosoever brought a Prohibition there he would lay him by the heels And as he the Deponent remembred he directed his Speech to the Register of the Court and told him there was a Letter from the King to that purpose but that he said he could not very well remember And as touching the Reference my Lord said It was a Cause that concerned the Jurisdiction of the Court of York and no private man should end it He would try the Jurisdiction of the Court upon it and the next Term would go to London and acquaint the Judges with it and if they remanded the Cause back again so if not he would Appeal to the King in it That after Christmas in Candlemas Term 1632. He the Deponent went to London with my Lord and moved again for dissolving the Prohibition and for Liberty to proceed That again it was agreed between the Judges of that Court and my Lord to have a Treaty And several Treaties they had but could not agree The effect of the Treaty was That if a Trial could be directed at Law upon a fained Action I should go to Law reserving the Equity to the Court if not that the Judges would remand the Cause back again But after they had several days met and no Trial could be directed nor any Action devised at Law to try it my Lord thereupon said He would give no further meeting but would Appeal to the King and the party should Petition On which a Petition was drawn which the Deponent offered And the Judge speaking something of Vaux my Lord said he should not be in England but he would have his Body or words to that purpose F. Thorpe Sworn being interrogated touching some words he heard Mr. Justice Hutton speak touching these Prohibitions and some other things in that point He Answered He would give the best account he could of what passed being divers years since That he was with Justice Hutton in his Study and they had Conference together as they had many times touching that height that my Lord of Strafford was pleased to carry the business of York-shire with And that amongst other things my Lord was pleased to say my Lord had been with him and shewed himself very angry with him because he had granted a Prohibition And this is all he could remember He took it to be seven years ago and in the Cause that concerned Vaux as he took it and this was at London And added That the Judge spake with a great deal of Passion to think things should be carried in that manner as they were that the Judges should not have Liberty to grant Prohibitions For the Judge said that he had thus debated the business with my Lord Why should you be angry for granting of Prohibitions They in the Kings-Bench can grant Writs of Error to examine our Proceedings and we think it no offence and hold our selves as able to Judge as they And it is the Justice of the Law that requires it to be so and therefore you must submit to us as we must submit to them F. Thorpe being asked what he knew of my Lord of Straffords distast against them that sued out or solicited or councelled Prohibitions or Habeas Corpus's He first desired to be excused from saying any thing that concerned himself but being commanded to speak He Answered That he would speak nothing but the Truth if he must do it though he perish for it And he professed that he had not spoken in any place to any person what he was now to say That in the beginning of my Lord of Strafford's time it fell to him in his ordinary course of Practice to move for a Prohibition and on his motion some were obtained That he was informed
Durham being sent for on other occasions That he was at York in his Journey from Durham the first day of the Assizes and being at Dinner at Dr. Stanhopps there came a Gent. Sir Edward Stanhopp who called Dr. Stanhopp Uncle from the Assizes That the Doctor asked what news specially concerning my Lord Presidents Speech he told them that he prest hard to hear and could tell some passages of it Then they asked what they were says he My Lord President was speaking of this That the way of the Prerogative was in some particulars easier than the Common Law And in his expression he said these words The little Finger of the Common Law is heavier than the Loyns of the King This the said Sir Edward Stanhopp told him in the presence of divers others who he thinks do remember the words were so related and that he had related them often since and never took it otherwise till he saw it in the Charge and there it was clear otherwise And upon further question at my Lord of Straffords motion He Answered That he never acquainted my Lord of Strafford that he could say any thing in this till Sunday night and then talking with Sir William Pennyman he told Sir William the story My Lord of Strafford desired Sir William Pennyman might be heard and humbly acknowledged the Favour that had been done him by the House of Commons in giving liberty unto it upon his suit Sir William Pennyman being asked whether he was present at the time when my Lord of Strafford spoke the words of comparison between the Kings little Finger and the Loyns of the Law what was spoke and what was the occasion He Answered That he was present at the Assizes at York at that time and heard my Lord speak these words in another order and position than is testified by these three Witnesses And in truth he said he could wish he spake now on his Oath for he knew he spake on much disadvantage The occcasion was this A Rumour was cast up and down in the Country That my Lord of Strafford had received great sums of money concerning Knighthood which he had detained in his own hands and not paid into the Exchequer Hearing of this his Lordship thought himself much wronged in it and took occasion to vindicate himself and there spoke of it and told them to the best of his remembrance there was some omission on the Secretaries part or some of the Officers of the Exchequer Hereupon my Lord took occasion to discourse of the Legality of Knighthood-money and told them Gentlemen you may see this is a Commission of Grace and Favour for whereas you may compound with the King for a matter of 20 or 30 l. you have in two or three Terms run into great sums He added That he did not remember the proportion but the Inference was So that you may see that the little Finger of the Law is heavier than the Loyns of the King One of the Managers desired he might be asked by what means this was brought into his memory and how long since He Answered He had the retention of it in his memory before but it was revived on occasion of these Articles when they were exhibited It is enough and he did his Duty well that being a Member of the House of Commons he never informed the House of it My Lords I desire my Answer may be read wherein the occasion and the words are directly set forth quite contrary to those in the Charge and I protest that I will take my Oath on it That it was so And my humble request is That no Witness I produce may be prejudiced for any Testimony he shall give here being with the Liberty and Allowance of both Houses For if they should be discountenanced nay punished for it I should think my self a very unhappy man indeed and rather than I should prejudice any man in that kind I profess I would put my self on Gods mercy and goodness and not make use of any Member of either House and my principal Witnesses must be of both Houses rather than acquit my self by their prejudice for I accompt it an unjust thing to overthrow another to save my self The Testimony of a Member of the House hath great credit in the House and they take not the least exception against Sir William Pennyman for any thing he said before their Lordships but wish he may speak with clearness and truth but had he informed this particular himself to the House he had done my Lord of Strafford more right than by not informing to let it come in Charge and bring in his Testimony contrary to his Vote When a Witness hears a thing in question though it be not required of him certainly he should vindicate the Reputation of his Friend in contradicting it in season but it is not so done and certainly his silence to the House was not well My Lords This concerns me nearly This Gentleman Sir William Pennyman is my Noble Friend and a Worthy Gentleman and I would give him my Life on any occasion but I know him to be a Person so full of Virtue and Nobleness that he would not speak an untruth for all the world perhaps he might not think fit to speak it in the House men are left at their liberty The Charge came out in Print very lately and whether Sir William Pennyman might know any thing of it I leave it to those that better understand it But with this humble Request to the noble and worthy Gentlemen of the Commons House That they would please to regard it so that no man may suffer by me I protest I had rather suffer ten thousand times my self The business concerns the House of Commons the Committee knows not how they will apprehend it But it is only offered That the Judgment of the House of Commons may not be prejudiced The Lord Steward concluded this matter That his Lorship is put upon the Trial of his Peers who will give him all fair Respect That his Lordship shall be denied no just way for his clearing that he could say nothing in the Name of the Lords to this particular that 's come out on the present nor these Gentlemen in the name of the Commons only he may be sure to find all that is fit which my Lord of Strafford said he doubted not and hoped their Lordship would pardon him for moving it it concerning him very much As to the mistake in point of time the Commons laying it to be after the Commission 21. March 8 Reg. and prove it to be before the time is not at all material The offence is not that he spake it on that day but that he spake the words The Exception to Sir Thomas Leyton's Testimony that he had need to have better Ears he is a Gentleman of worth his Deposition is an Oath and he knew best what he heard the truth is
he heard my Lord of Strafford speak touching Ireland being a Conquered Nation and that the Charters of it were of no value further then it pleased the King to make them His Lordship answered And first desired leave to speak a word hoping he should do no wrong to any man That when he had obtained my Lords Licence under the Great Seal to come over hither he came with as great a Resolution never to complain of any sufferings he had or to Petition against him as any man did and left all his Papers and Writings behind him that he might have nothing to move him against my Lord of Strafford but to do him all the service he could To the question his Lordship said That all he can say is this that he was present that day the Mayor of Dublin was presented to my Lord Deputy that then was and the Recorder set forth the Great Charters they had from the several Kings of England and fell on that matter of placing Soldiers in Dublin without their consent That my Lords Answer was You must understand Mr. Recorder Ireland is a conquered Nation and the King may give them what Laws he pleases And then going forward with the Charters he said They be old Antiquated Charters and no further good than the King is pleased to make them To that sense he said he is sure We desire to observe to Your Lordships That this time was not the only time he spoke the very words in effect to the whole Kingdom afterwards in Parliament The Lord Gorminstone produced and Sworn Being asked whether he heard my Lord of Strafford speak words to the effect as aforesaid That Ireland was a conquered Nation c. His Lordship Answered That he remembers that in the 10th year of the Kings Reign 1634 on occasion of a Petition presented to my Lord Lieutenant in behalf of the Country as far as his remembrance leads him from the House of Commons desiring the benefit of some Graces His Majesty had been pleased to confer on them and he in the open Parliament sitting under the Cloth of State in presence of both Houses told them Ireland was a conquered Nation and they must expect Laws as from a Conquerour And the Instructions granted from His Majesty for setling the Government of that Kingdom were procured from a company of narrow-hearted Commissioners Being asked on my Lord of Strafford's motion when these words were spoken whether the first day of the Parliament or at any other time His Lordship answered That to his best remembrance it was not the first day of the Parliament My Lord of Strafford saying it was at the opening of the Parliament and the second day my Lord Gorminstone being further asked about the time His Lordship answered He knew not whether it were the second day or another day but the particular words he took notice of and it was in presence of both Houses of Parliament the Speaker standing at the Barr. The Lord Killmallock produced and Sworn and interrogated touching the same words His Lordship answered That he was a Member of the Commons House the 10th and 11th of the King and the House of Commons Petitioned the then Lord Deputy the Earl of Strafford for the gaining of the Act of Limitations for the confirming of their Estates amongst other Graces granted to the Agents for that Kingdom in the fourth year of the King These Graces he answered to in writing and on the second or third day after came into the House of Lords and there sent for the Commons and in his Speech amongst other things I well remember and to my grief and to the grief of that Kingdom he uttered these words That that Kingdom was a conquered Nation the words as he remembred and therefore they must expect Laws as from a Conquerour adding further that the Book of Instructions established in King Iames his Reign for the orderly Government of the Courts of Justice in that Kingdom were Instructions contrived and procured by a Company of narrow-hearted Commissioners who knew not what belonged to Government Sir Pierce Crosby being asked touching the same words Answered That he very well remembred the words as they had been spoken by the Noblemen that had been examined before him My Lord of Strafford then Lord Deputy of Ireland in the hearing of both Houses said That Ireland was a conquered Nation and that the Conquerour should give the Law He added further that the Book of Instructions for the Government of that Kingdom was drawn up or procured by the means of some narrow-hearted Commissioners meaning those Commissioners that were employed by Commission from the King out of the House of Commons being a select Committee whereof there was one that is now a Noble Member of this House that sits on the Earls Bench And that he hath heard many of both Houses repeat the same words as spoken by him And so the Commons concluded the Article expecting my Lord of Straffords Answer After a quarter of an hours respit my Lord of Strafford began his Defence as followeth First I desire to open two points set forth in my Answer which under favour I must stand to as that by which I must stand or fall First That the Kingdom of Ireland as I conceive is governed by Customs and Statutes and Execution of Martial Law and Proceedings at Council-Board in a different manner from the Laws of England Secondly That touching the Charters I said these Charters were void and nothing worth and did not bind the King further than he pleased both which I hope to make good The other business that comes in De novo is no part of my Charge and therefore I hope will not be laid to my Charge I observe in the beginning of this part of the Charge that concerns Ireland That the Governours for the Crown of England that have been it Ireland in all Ages almost have had these misfortunes That the Native Subjects of that Country have not been propitious towards them I instance in the case of Sir Io. Perott who on Testimonies here was Attainted of Treason in a Legal ordinary way of proceeding whereupon he lost his Estate though not his Life and afterwards it was confest there was little truth in all that Accusation Next my Lord of Faulkland against whom many of the Witnesses that I think will come against me informed as Sir Pierce Crosby for one my Lord Mountnorris for another and divers others who had so prejudicated me when I went into Ireland in their Opinion by the generality of their Charge that I was a little distrustful whether it was not so And thus much I have spoken once before His Majesty at the Council-Board on another occasion and now speak it to Your Lordships to the Honour of that Person that is now with God my Lord of Faulkland notwithstanding all the heavy cries that were against him and the wrongs and injuries laid to his Charge I
had the fortune to have all the Examinations whereupon they proceeded and looked over them all and now I protest and call God to witness not any way as making to me I found the said Lord to have proceeded as Honourably Justly and Nobly to his understanding as any man could do and yet was decryed as much as any man could be And so I beseech Your Lordships to consider me the Kings Servant and that in the Administration of the Commands and Justice intrusted with me I had occasion to give offence to many and that it hath been the ill fortune of those that have been Governours there when they have left the Government not to be so well reported as otherwise they might be Besides There is nothing in this Charge can possibly amount to Treason admit all to be as it is laid though perhaps to a Misdemeanour That if it be no Treason it will fall to be but Misdemeanour and then I conceive it stands with the Justice and Practice of this Court to allow Councel and Witnesses which I am debarred from by the involving me under the general Charge of Treason and having no further time to prepare then since Friday last That though before I durst not say Your Lordships were bound by Rules of any Judicature but stood to Your own Honour and Nobleness and were a Rule to Your selves and herein I take Your Lordships to witness yet since the Gentlemen at the Barr have prest the rules of other Courts I desire leave to offer That in all ordinary Courts of Judicature that ever I heard of where the Criminal party doth Answer and that Answer is not replyed to nor he admitted to make his proof the Answer of the party is taken and confest from which universal Rule of Justice no man can shew him a transgression And therefore since I cannot be admitted my proofs it being impossible to fetch Witnesses out of Ireland since Friday last my Answer I conceive ought to be admitted and the Charge taken as I confest it not as it is on proof Saving to my self that I said I would go on to give the best Answer I could on a suddain professing That if I had had time I am confident through the mercy and goodness of God and the Innocency of my own heart I should be able to clear my self of Treason the greatest Crime between man and man towards His Majesty and towards his People my heart being innocent of it and never having suggestion or thought but for the Greatness and Honour of His Majesty and the Prosperity and blessed Estate of His People all the days of my life and ever desiring the best things and never satisfied I had done enough but did always desire to do better but also of all other foul Crimes of Injustice or Oppression Errours I may have many perhaps my Tongue hath been too free my Heart perhaps hath lain too near my Tongue but God forbid every word should rise up in Judgment against me If every word that 's spoken amiss should be observ'd who is able to endure it for words spoken ten twelve eight or nine years ago to be brought in Judgment of me is a very heavy Case and I beseech your Lordships to turn the Case inward and to tell me if it be not a hard Case to be put upon such an Examination I shall observe further that words ought to be charged within a certain time by the Proviso in the Stat. in E. 6. time they must be brought in question within 30 days as I take it which Proviso stands good in Law but I go now into a Learning that God knows I have little skill of to this I desire my Councel may in due time be heard to open and Plead In the mean time I desire to say that if popular actions must be concluded within a year or two at the most sure words should be questioned within a less time I shall proceed to maintain the truth of my Answer That Ireland is not governed by the same Laws that England is and for that I shall read a few words in my Lord Cooks Learning which God knows I understand not it is in Calvins Case where the words are So as now the Laws of England became the proper Laws of Ireland And therefore because they have Parliaments holden there whereat they have made divers particular Laws as it appears in the 20 H. 6. 8. and 20. and in Ed. Dyer 360. And for that they retain to this day divers of the ancient Customs the Book of 20 H. 6. holds That Ireland is governed by Laws and Customs separate and divers from the Laws of England Therefore in all things belonging to my Charge that came out of Ireland I hope Your Lordships will take along with you the consideration of the Customs and Practices of that Kingdom and not judge me according to that which hath been the Custom and Practice of the Kingdom of England In the second place I come to the words of Ireland being a conquered Nation The words laid in the Charge being that I should say That Ireland was a conquered Nation and the King might do with them what he pleased And first I should do extreamly ill to the Honour of the English Nation and to the memory of divers of Your Lordships Noble Ancestors if I should not both say and think that Ireland is a conquered Nation when here 's mention made in the Laws and in the Acts of State of English Rebels and Irish Enemies certainly there is something in that for till the Kings of England gave them the advantage and benefit of the Laws of England it is well known they were held Irish Enemies and so termed and stiled in all the Records one shall meet withall in these times And that it was a conquered Nation I have very good Authority in the Statute made 11 Eliz. at the Attainder of that famous Rebel Shan Oneale In one part of which it is said That all the Clergy of the Realm assembled in Armagh at the time of the Conquest c. See the Statute Is it then so much for me to say what 's in the Act and is it not for the Honour of the English Nation to say it and it must be said to the Worlds end for 't is a truth And therefore there is no cause it should be taken so hainously or heard with so much displeasure and if I displease for telling the truth I cannot help it He reads another part of it viz. And therefore it is to be understood that King Hen. 2. the first Conqueror of this Realm c. And so it hath been acknowledged in all stories and times and many an English man hath spent his blood in it whose Posterity will be ashamed to view it other than as a conquered Kingdom Nay I believe many Noble Persons are yet living that have bled for it and will take it ill if it be termed less than a Conquest in them
who lived in those famous times and spent their blood in Obedience to their Soveraigns Command So that by these words candidly and rightly taken no manner of ill could come being spoken not with any sharpness or upbraiding but meerly to let them see That being in that Condition they were infinitely bound to the Kings of England who were pleased to communicate to them the Laws of their own Kingdom And so far were they from being taken ill that no man at that time took offence at them For the words The King might do with them what he pleased let them relate to the Conquest and there is no offence in them for the Conqueror might give them what Laws he pleased and yet nevertheless hath been so gracious and good as to give them the Laws of his own People Give me that understanding of the words and then where is the Crime how can it be brought in Judgment against me in it self or be aggravated to High Treason I acknowledge I did speak to the Recorder of Dublin yet some things I am put in mind of which I am forced to deny with a great asseveration That I do not remember the words nay I am sure I never spake them let all the world and a cloud of Witnesses say the contrary when I know in my own heart I did not speak them though I offer not this to Your Lordships to convince your Judgments And on the other side there is nothing that is true but I will acknowledge it with all Ingenuity in the world on the Testimony of any one single Witness I desire that Mr. Slingsby his Servant might be asked whether he was not present when I spake these words and whether then any offence was taken at me in respect of the high manner of my speaking or whether they were not rather extreamly well satisfied Now if Your Lordships take words in pieces and not altogether any man living may be convinced but taking my words altogether though something might be thought harsh yet something gave abundant satisfaction I am upon a mighty prejudice in being denied to have my Witnesses examined upon Oath in these things that are not Treason But they be persons of good credit and I trust your Lordships will believe them as much as if they spake on Oath since I think none of them would say a word to your Lordships which they would not swear Mr. Slingsby being asked Whether he was present when my Lord of Strafford spake to the Recorder of Dublin what he said and what acceptance it received He Answered He was then present being on the occasion of presenting Sir Robert Dixton the Mayor of Dublin that he cannot remember the particular words nor deliver them to their Lordships as they were spoken by the Lord-Lieutenant But he remembers particularly the scope of the Discourse was to ingratiate His Majesties present Government to them That the words were well accepted by several persons whom he spake with and took that Effect that his Lordship was thereupon invited to the Mayors House where divers of the City Congratulated his coming to them I shall now proceed to the second part of the words That their Charters were nothing worth and they bind the King no farther than he pleases and I conceive I may say so still If their Charters be nothing worth they do not bind the King but he may do with them what he pleases In that I desire your Lordships to call to mind what my Lord of Corke said That Ireland was a Conquer'd Nation and the King might give them what Laws he pleased and that the Charters were Antiquated and no farther good than it pleased His Majesty to make them It is likely I confess I might say so and yet not say amiss for it is most evident and clear their Charters are void in point of Law and therefore it is in the King 's good will and pleasure Whether he will make them good or no. And that they were void the King's Council informed me so that they were questioned at Council-Board upon it for divers unlawful Exactions they took under colour of Charters for divers by-Laws that they had made against Law by those Charters for divers neglects of Duties that they ought to do by those Charters and generally for not performing the trust reposed in them by those Charters with that Integrity and Care they ought to do And for the truth of it that many Complaints were made against the Mayor and Aldermen at that Board for neglecting their Duty I dare Appeal to my Lord of Corke I adding this That the greatest part of the Aldermen were Recusants and would never be brought to obey the Order of the Board but stood on their Charters and would be Masters and by that means great Disorders continued And to prove that upon Examination they appeared to be void in Law I desire Sir George Ratcliffe may be admitted to speak on what Grounds those Charters were called in and are now as I think deposited with the Clerk of the Council Sir George Ratcliffe standing charged with High Treason by the Commons of England before your Lordships and of a Conspiracy with my Lord of Strafford and whether it be fit to hear one charged with High-Treason to clear another so charged we Appeal to your Lordships That Sir George Ratcliffe is charged to be a Conspirator with me indeed and in truth I must confess Sir George Ratcliffe and my self under favour are equally guilty of Treason and I hope we shall both justifie our selves but I know so much of him that I am not ashamed to say That I think that Sir George Ratcliffe is my Friend and I wish him well and so I think will all other men I trust in God when they hear him But I conceive Sir George Ratcliffe might be heard in these Points if he be examined as a Witness against me I desire he may be examined as a Witness for me Sir George Ratcliffe is not examined nor at all sworn in the Cause on our Motion and admitted that if they produced him as a Witness they would not deny my Lord of Strafford to cross examine him The Lord Steward declared the sense of their Lordships That Sir George Ratcliffe could not be examined I shall readily obey but yet observe That if it were only matter of Misdemeanor he might be examined though charged But this is my unhappiness to be debarred of my Witnesses because I am charged with Treason in general though there be nothing in particular that 's near the complexion of Treason We desire to observe that this justifies a part of our Charge for the Charter of the Subjects Liberties are as his Lordship confesseth brought to the Council Table and judged there and not to the proper Courts where they ought to be judged the Council-Table having no Power to declare the Validity or Invalidity of Charters from the King to the Subject
I crave Liberty to explain my self That I said not they were brought to the Council-Table to be judged but that consideration might be had Whether there was ill usage and extortion practised under colour of them or no whether any thing were done that hindred the growth of that Town and the good of the People and the Protestant Religion that it might appear how the business stood in point of State but to give a judgment upon them in Law it was never in my thoughts Robert Lord Dillon being then asked Whether the Charters of Dublin have not been brought before the Council of Ireland there to be considered concerning the Validity of them and whether it did not appear that for divers Occasions Exactions and Tolls and by-by-Laws and other abuses in the exercise of these Charters they did not appear to the King 's Learned Council and others learned in the Law to be void He Answered That it was a question he did not expect and yet being called he should faithfully and freely tell his knowledge of it to his best remembrance That he doth remember very well that the Charters of Dublin have been brought to the Council-Board and argued strongly against by the Kings Learned Council That there was one particular of 3 d. Custom challenged by the City which endured a very long debate That it was argued against them That they exercised by-Laws contrary to the Common Law of the Land and that divers other things were urged against them but he remembers not the particular determination of the Board upon the question Being asked severally what time those Charters were so brought and how long after my Lord of Strafford's coming into Ireland He Answered That he precisely remembreth not the time but he takes it to be five or six years ago something more or less and he thinks about a year or two after my Lord of Strafford's coming but he remembers not the time not expecting to be Interrogated in it We desire your Lordships to observe That the words were spoken before the Charters were brought to the Council-Board It follows not That because they were questioned at Council-Board afterwards I did not therefore know them to be void when I spoke of them for they were complained of in Parliament as great Grievances in the exercising of them and to that purpose I desire my Lord Dillom may be heard And being asked what he knew concerning the Charters of Dublin being questioned in the Commons House for divers Oppressions unlawful By-Laws and other ill usage of their Liberties He Answered That he was a Member of the first Parliament after my Lords coming into Ireland 1634. After this Visitation of the Mayor some half an year but he knows not the time precisely That divers Members of that House did object divers Misdemeanors in misâ—sing the Priviledges of those Charters That the particulars were several By-Laws which they did execute contrary to the Common Law Another was that by the Priviledge of those Charters they excluded divers of the Tradesmen that came out of England to set up Manufactures there which was conceived a great Grievance to that Kingdom Another was that having the Government of that Town being a Navigable Port they permitted the Soil to be emptied into the River without care or regard That at the time of the Presentment of the Mayor my Lord took occasion to advise and advertise the Mayor of several Defects in that Town and divers of the Commons House of that Parliament are here that were present Hence observe the Reason and Grounds of my Exception to these Charters and the Effects of questioning them which were two First By this means I am perswaded and thereof I beseech the Honourable House of Commons to take notice as that which is reputed my greatest Crime in Ireland there be three Protestants in Dublin at this hour for one that was there when I came over for the Townsmen did keep all the Trade and ingross all the Manufactures into their own hands and being Natives and Romish Catholicks did depress the English that strangers out of England had little advantage of Trade And whatsoever any man may say or think on Information from persons that do not love me who are Members of neither House for so I desire to be understood when I speak of persons unfriendly to me I complain of nothing that is or shall be done me here but will leave it all with thankfulness to God Almighty and with that Duty and Reverence to this House that becomes me It will be known hereafter when I perhaps am in my Grave that my greatest fault in Ireland hath been my extream Zeal to bring them to conform with the Church of England which by that means hath provoked a great deal of Displeasure And secondly I observe That this argues no great malice in my heart nor desire to oppress the King's People when I shall tell your Lordships That to this day those Charters were never legally questioned but are enjoyed So far was I from pressing rigorously any thing against them I desiring nothing but Reformation and to have them what they ought to be and to leave them not less but more happy than I found them And if I should serve there again as I hope I shall serve only God Almighty and my Master with my prayers they should be freed from all exactions and misusings of them tending to the prejudice of the Town the King's Service and the Service of Almighty God And so I hope I have made a clear Answer to so much as was charged to free my self from guilt of Treason reserving to my self the advantage of having my Counsel heard in proper time to the matter of Treason in point of Law according to the liberty your Lordships have afforded me Next I shall proceed to that which is proved and no way charged which I forbore to speak to the day before as holding it an impertinent expence of time to your Lordships and a spending of my own spirits which God knows are weak and infirm indeed If I were permitted to speak this morning to all the things extrajudicially formerly offered I should give a free and clear Answer But suffering by my Ignorance and silence then I now desire leave to Answer those things that came de Novo and that by three Witnesses touching words spoken at another time to both Houses of Parliament I confess it to be true that the second day of the last Parliament but this that is now sitting I had the Honour to sit as His Majesties Deputy and it was the greatest Honour that ever I received and I should be loath to say any thing sitting in that Place that should not fully comply with the Goodness Clemency and Justice of His Majesty or should mis-represent Him in any kind to his People in another sense or to other purpose than his own Great and Princely Vertues do Merit and Deserve And that all
I said at that time tended to that purpose to shew and set forth to them the excellent Goodness of His Majesty and the Graciousness of His Government Therefore if I should say any thing to the purpose as it is offered I should go much against the purpose for which I intended my Discourse For me to have said openly there in the King's Chair that they were a Conquer'd Nation and must expect Laws from Him as from a Conqueror when I knew it most false and expected from His Majesty that He would Govern them by the same righteous Rules of Justice and Honour as his Predecessors had before him I had been much too blame and it had been against the drift of my Discourse And I must say and will say to the death I never spake such words That they must expect Laws from Him as from a Conqueror I know very well how it is proved and what my own affirmation doth in foro Iudicii but how it may work in foro Conscientiae I trust I have so much credit left in the World as to be known to be a man of truth and not usually to speak untruths And I take the heavenly God to Witness that I never spake them I remember the words and the occasion by a good token without which I should not have remembred them my Friends desiring a Copy of my Speech which Copy is in Ireland and were it here would satisfie every man It was to incline them to take into consideration the great Debt that lay on the Crown being near 100000 l. the shortness of the Revenue which was then short of the yearly Charge 24000 l. though the first day it was stood upon and would have been coloured over as if there had been no such thing I was to move thereunto a supply to pay the Debt and to improve the Revenue to such a height as might answer the Charge of the Kingdom that to induce this I told them the Kingdom of England had expended great and vast Sums of Money and had issued a great deal of Noble blood for the reducing of them to Obedience and in that happy State wherein they then lived That they must not think the Kingdom of England must always bear the Charge of the Crown but they must so fit the business that the Kingdom may bear its own Charge For said I and these are the words I take God Almighty to Witness and no other If the Kingdom of England should still be put to their Charges and the whole Expence should still rest on the Conqueror you might very well think you are so dealt withall as never any other Conquer'd Nation had been That on these words my Lord of Ormond came to me and told me That the words he had spoken were not well taken For that I had said The Irish are a Conquer'd Nation and that is not well I answered his Lordship Truly my Lord you are a Conquer'd Nation but you see how I speak it and no otherwise But this I am not charged with and offer it only to keep and preserve me in a good Opinion as much as I can of both Houses of Parliament which I desire of all things under Heaven next the Favour of Almighty God and his Gracious Majesty He then proceeded to examine Witnesses And first Robert Lord Dillom being asked Whether he was present when he spake these words to both Houses of Parliament and what they were We desire to put your Lordships in mind that there were two times when my Lord spake such words one when he spake to hoth Houses of Parliament at the Publick Speeeh now mentioned the other upon delivering a Petition by the House of Commons That the words which the Commons Charge were the last mentioned by me not the first and that was desired to be observed The Question being repeated The Lord Dillom Answered That he served as a Member of the Commons House that Parliament and in respect of the Honour he had to be of the King's Council and the Son of a Peer of the Realm he stood under the Cloath of State and was present when my Lord made his Speech to both Houses for that passage of the Conquest some touch there was of it and he hath heard my Lord of Ormond speak in particular of it For the other words That they should expect Laws as from a Conqueror he took God to witness he did not remember them Being asked whether he remembers them to be spoken at any other time He answered That on his Soul he doth not Sir Adam Loftus being asked to the same purpose He Answered That he was the first and the last day at the Parliament that he doth not well remember the middle day and he cannot burden his memory with any such words spoken that he heard either then or at any other time Sir Robert King was called and asked to the same purpose He Answered That he thinks he was present that day but not within hearing and he never heard the words at any other time Lord Renula being asked Whether then or at any time he heard my Lord of Strafford say They must expect Laws from the King as from a Conqueror He Answered That he was then in the House and remembers the words in the first place That Ireland was a Conquer'd Nation that for the words in the second place something was spoken but how far he cannot witness Sir George Wentworth questioned on the same Point Answered That he sate under the Chair of State at that time and remembers not that my Lord ever spake these words That the King might do with them as he pleased That it pleased my Lord-Lieutenant to send him into England at that time to attend His Majesty with the Success of that Parliament and that he brought the Speech with him and can confidently affirm There was no such thing in the Speech and the Speech he did deliver to some Privy-Counsellor and added That he never heard my Lord publickly or privately say those words They must expect Laws from the King as from a Conqueror We desire to know Whether the Witness was returned out of England when this Remonstrance was delivered For the Commons Charge it thus That the House of Commons delivered a Petition to have the Laws executed according to the Instructions upon which the words were spoken and we believe Sir George Wentworth was not come back and then it was impossible he should hear him for it was after the Parliament had sate and some proceedings had I observe How it is in some of the Witnesses for my Lord Gorminstone fixed it on the first beginning of the Parliament He spake it to the occasion of the Petition but the distinct time he doth not remember Sir George Wentworth being asked touching the time of his going into England He desired to know what time the Petition was delivered but he went over some few days after the Subsidies were granted
Lord Robert Digby being asked Whether at the Parliament at Dablin or any other time he ever heard my Lord of Strafford speak those words He Answered That he never did that he doth not know whether he was present at that time or no that he did diligently wait but doth not remember the words nor occasion but he thinks he was not present Your Lordships have heard my Lord of Strafford's Defence with much patience That he hath said nothing that takes off the Charge but some things that aggravate it That he would answer the Particulars as his Lordship had propounded them And first he observed That his Lordship denies not the words Charged which makes greater way for proof of them He informs of the ill Fortune of other Governors that one was Attainted and the Informations afterwards retracted that my Lord of Faulkland was complained of yet a Noble and good Governor against whom or any Deputy we can say nothing But what is this for my Lord Strafford to say Others were questioned therefore he is Innocent These were complaints of particular men This against my Lord of Strafford is the complaint of all the Commons of England It is said here is no Treason in this Article no Argument of Treason but the Commons never pressed these words singly and dividedly to be Treason but take all together they discover that Disposition that Counsel that Resolution that my Lord of Strafford had taken on him the ruine and subversion of the Common Law in both Kingdoms It is said an Answer is put in and no Replication It is true in other Courts if you go on Bill and Answer the Answer is taken pro Confesso but the Commons desire not to bind up my Lord of Strafford with Formalities but by the substance of their Charge they have averred their Charge which is as much as a denial of his Answer To there being another Government in Ireland than in England my Lord himself spoke of it by himself but he thinks it will not be material to this purpose for whatsoever it is some Government there is but the Speech of my Lord tends to take away all Laws for they must expect Laws as from a Conqueror in that Limitation For his referring it to the time taking it in the sense that the then Conqueror might do what he pleased that 's true and justifiable But that is to suppose the words otherwise than they are being spoken not of the Kings that were before but of His Majesty that now is My Lord would make an Argument his words were well accepted because Mr. Slingsby heard nothing to the contrary the words had much Acrimony and Sharpness and we dare not believe the Mayor of Dublin durst tell my Lord of Strafford so or forbear any Complement to him though he had been displeased with him But if that be material the Witnesses that have proved the words will tell Your Lordships it was resented with a great deal of Grief and Sorrow in all the hearers His Lordship justifies what was spoken of the Charters on these grounds First That the Witness said they were Antiquated Charters and therefore did not bind whereas it was a scornful Epithite their Antiquated and Worm-eaten Charters did not bind It is said they were void through negligences questioned at Council-Table complained of in Parliament But they must take the words to pieces not altogether Had he spoken of the Charters alone that they were void Charters it were no crime no indiscretion But take it with the occasion and connexion it admits of no such mitigation or interpretation He tells them they are a conquered Nation and they must expect Laws as from a Conqueror And they are a conquered Nation and their Charters are no further good than the King pleases It is said It is strict to answer presently what may be objected and the Examinations are extrajudicial we doubt not but Your Lordships will justifie-our Proceedings nor is there any strictness in them for if a man be questioned of a Crime and several Evidences be brought to make up this Crime some concurrent some precedent they will be allowed of in other Courts It being never used to set forth in a Charge all circumstances of Proof The main is produced and this is an Evidence to prove that and it is within the Charge for there is a Charge that he corrupts the Laws and Government Then my Lord produces divers Witnesses who speak in a different sense Sir Robert King heard nothing another that he remembers nothing and if he remembers nothing it may as well be said of the rest That there might be something they did not hear or remember for they speak no more but they did not remember There may be something they forgot as well as another forget all My Lord Ranulagh says He remembers the first words and something as spoken of the second but he cannot tell how far So that there is rather a doubt that something was spoken to that purpose than otherwise The Lord Digby was not present Sir George Wentworth remembers not the words he hath a Copy of the Speech and is confident the words were not spoken But they were not spoken in the first Speech whereof there was a Copy when the Petition for the Laws was delivered And this is an Aggravation against my Lord of Strafford that by his own shewing there was an Exception taken when he spoke in a milder sense and to advance His Majesties Government it had an ill impression and was taken notice of and the Exception delivered to himself Now if after Exception taken to a Speech delivered in Parliament cloathed with so much mildness he in the same Parliament as soon as Subsidies are granted shall tell them they are a conquered Nation and shall not have Graces but such Laws as the King will give them This puts the Offence in higher terms than before so far are they from mitigation of the Offence We desire Witnesses may be heard concerning the circumstance of time Mr. Fitzgarret produced and Sworn Was asked whether he knew of a Petition delivered to the Earl of Strafford by the Commons concerning the Laws and how in time it followed the publick Speech at the beginning of the Parliament and what Answer was given to it He Answered That he was then a Member of the Commons House and present when the Petition was delivered But after the House of Commons had given the King six Subsidies the House of Commons entred into consideration of Petitioning for such things as were necessary and expedient for the Common-wealth as they thought this Petition was preferred to the Lord Deputy a good space of time after the Subsidies were granted and Advertisement sent to England of the good service done in obtaining those Subsidies from the House of Commons That he remembers not any part of the Answer given There was an Answer given in Writing either at Council-Table or in full Parliament from the House of
Lords but that he spake only to the point of time My Lord of Strafford did here affirm it to be most certainly true That the Petition concerning the things Mr. Fitzgarret mentions was delivered at Council-Board and not in Parliament and desiring Mr. Fitzgarrets further explanation of himself He Answered That he conceives there were two Petitions one as he thinks concerning the performance of the Instructions of 1628. whereunto an Answer might be given at Council-Board and he believes it was subscribed by many of the Council There was another Petition of Grievances seeking redress of them and to whether of these his Lordship gave an Answer in Parliament he remembers not but believes there was an Answer made to both or one of them in full Parliament The Lord Gorminstone being demanded at what time and on what occasion my Lord of Strafford spake the words he was examined on before in the Parliament at Dublin He Answered A Petition was delivered to my Lord of Strafford and he spake to the House wherein he spake the words that he had formerly related That they must expect Laws as from a Conqueror and that the Instructions published for the setling of that Government were procured by a company of narrow hearted Commissioners That he did not then remember the certain time but he is sure it was in Parliament and so resented that almost all took notice of it when most part were English and British Extractions and very few Irish. The Lord Killmallock being demanded to the same purpose Answered That he conceived the occasion was a delivery of a Petition to his Lordship It is true it was not delivered in Parliament nor were the words spoken at the Council-Table where the Petition was delivered But he conceives it was on occasion of delivering that Petition that his Lordship speaks For after the Petition was delivered three or four days after his Lordship came to the Parliament House he called both Houses before him and there delivered these words That Ireland was a Conquered Nation and therefore must expect Laws as from a Conqueror Adding further That the Book of Instructions meaning the Book Printed in King Iames His Reign for the orderly Government of the Courts of Justice was contrived and procured by a company of narrow-hearted Commissioners who knew not what belonged to Government The words he said he remembers very perfectly as having great misery on his heart in the speaking And whereas it is said none did take notice of them They did but they durst not it wrought inwardly and had they spoken of it they expected no redress but a greater addition of calamity to them We shall now proceed and observe That this Article touching the Laws of Ireland gives the ground-work of what follows in the subsequent Articles concerning Ireland And first We desire Your Lordships to take into remembrance That though Ireland differ in some particular Statutes from England yet they enjoy the same Common Law without any difference That by the Statute 28 H. 6. in Ireland It is Enacted That every Cause shall be remitted to its proper Court It is true the King hath this Prerogative not to be tied to sue in the Kings-Bench but may sue in any Courts of Justice for matters Triable in the Common-Pleas or Chancery or Exchequer all Courts are open to him wherever he will have his Cause judged but with the Subject the proper Cause must go to the proper Court and according to this the exercise and use is continued in that Kingdom Some Incroachments being made King Iames of blessed memory took consideration of it he appointed Commissioners and Instructions were Printed in pursuance of this A Noble Earl now present Justice Iones Sergeant Crew and divers others were imployed in that Service These Instructions as they remit the Causes to the proper Courts so they declare that it had crept in at the Council-Table in latter times to take Oaths but direct that it shall be forborn for matters of Interest and Complaint between party and party and matters of Title And it stays not here but a Proclamation is issued to the same effect This Statute these Instructions and this Proclamation we desire may be read Accordingly the Statute was read whereby it was ordained to the Governour of the Land or other Officer for the time being He that accuses shall find sufficient sureties for the damage of him that is accused and if it shall be adjudged that the Suggestion or Accusation is not true c. And also that he that is Arrested may go by Surety or Bail till the matter be determined And if it be matter of Treason or Felony to be remitted to the Kings-Bench if Conscience to the Chancery if Franchise to the Seneschal of the Liberty if for Debt to the Common-Pleas c. saving the Kings Prerogative Then part of the Instructions were read published 1622. wherein it is Ordered That the Council-Table shall keep it self within its proper bounds Amongst which the Patents of Plantations and the Offices on which the Grants are founded are to be handled as matters of State and to be determined by the Lord Deputy and Council publickly but Titles between party and party are to be left to the ordinary course of Law and neither Lord-Deputy Governour nor Council-Table hereafter to intermeddle or trouble themselves with ordinary businesses within Cognizance of ordinary Courts nor meddle with possession of Land nor make or use private Orders Hearings or References concerning such matters nor grant Injunctions nor Orders for stay of Suits at Common Law Causes recommended from the Council of England and spiritual Causes concerning the Church excepted Then the Proclamation was read dated November 7. 1625. whereby it is commanded That the Deputy and Council-Chamber in Ireland then and from time to come shall not entertain or take consideration of any private Cause or Causes or Controversies between party and party concerning their private and particular Estates nor any Cause or Controversie of that Board which are not of that nature that do properly concern matter of State But that all Causes and Controversies of that nature moved or depending between party and party concerning private and particular Interests be proceeded in in the ordinary Courts of that Kingdom respectively to whom the Cognizance of these Causes and Controversies doth belong c. For that Objection from the Opinion of my Lord Cooke in Calvins Case if it were an Opinion to the contrary in an Argument it is no binding Authority But that Opinion is nothing at all against what hath been said for it is express That Ireland did retain the same Common Law with England It is true Ireland hath Statutes and Customs particularly retained and so there be divers particular Customs in England that differ from the Common Law yet are approved and allowed in it as in Wales and the Custom of Gavel-kind and the Common Law which is the general Government is the
same If there be any Statute that gives my Lord of Strafford as Governour alone power to take Cognizance of meerly private Causes it is something to the purpose to say there is a particular Statute but till that be shewed he hath in this erected an Arbitrary Power And so he concluded the Reply and the Third Article THE Fourth Article The Charge THat Richard Earl of Corke having sued out Process in course of Law for recovery of his Possessions from which he was put by colour of an Order made by the said Earl of Strafford and the Council-Table of the said Realm of Ireland upon a Paper Petition without Legal procéeding did the 20th day of February in the 11th year of His now Majesties Reign threaten the said Earl being then a Péer of the said Realm to Imprison him unless he would surcease his Suit and said That he would have neither Law nor Lawyers dispute or question his Orders And the 20th day of March in the said 11th year the said Earl of Strafford speaking of an Order of the said Council-Table of that Realm made in the time of King James which concerned a Lease which the said Earl of Corke claimed in certain Rectories or Tythes which the said Earl of Corke alledged to be of no force said that he would make the said Earl and all Ireland know that so long as he had the Government there any Act of State there made or to be made should be as binding to the Subjects of that Kingdom as an Act of Parliament and did question the said Earl of Corke in the Eastle Chamber there upon pretence of breach of the said Order of Council-Table and did sundry other times and upon sundry other occasions by his Words and Spéeches Arrogate to himself a Power above the Fundamental Laws and Established Government of that Kingdom and scorned the said Laws and Established Government ONE of the Managers opened the 4th Article and said The former Articles shew my Lord of Straffords Words this his Actions This Article concerns my Lord of Corke's being disseized of an Impropriate Rectory upon a Paper Petition to my Lord of Strafford and referred to the Council-Table the Earl of Strafford saying upon the questioning of the Proceedings thereupon That neither Law nor Lawyers should question or dispute his Orders an Order of Council-Board in King Iames his time enjoyning That no Parson Patron or Ordinary should make a Lease for longer time than the life of the Incumbent was made use of as a ground to dispossess the Earl of Corke In the first place We desire to open the Proceedings at Council-Table before my Lord of Straffords time viz. That in no case concerning Land no Decree hath been there made to bind up the party for remedy at Law The Lord Ranulagh being interrogated whether by the course of Proceedings at Council-Table the Deputy and Council have determined Title of Land and Possession and interrupted the parties to proceed at Law He Answered That he hath observed the course of the Board for 22 years and the course was That if Title of Land between party and party were in debate It was commonly dismissed from the Board with a leading order to be tried by course of Common Law Being asked whether a Deputy alone hath determined private Interest He Answered That he cannot positively say whether it were done privately but to the best of his remembrance he knows not that ever any Deputy determined any matter of private Interest but brought it to the Board though by reference or private proceeding it might have proceeded before it came to the Board My Lord of Strafford desired he might be asked whether he ever knew that any matter of Inheritance was ever by himself and the Council determined whilst he was Governour there that was barely Title of Land and nothing else He Answered And desired to explain himself concerning the former That Causes of the Church and matters of Plantations were resolved in former Deputies times to be dispatched at the Board And for the latter question he never knew matter of Title determined at the Board but in Causes of the Church and Plantations My Lord of Strafford desired he might be asked whether as President of Connaught he did not familiarly on Paper Petitions rule all things in the same nature as the Deputy on Petitions to him The Fifth day Friday March 26. 1641. AFter consideration of this matter by their Lordships it was resolved in the Upper-house That my Lord Ranulagh ought not to be examined on that point it tending to an Accusation of himself The Earl of Corke being Sworn and questioned touching my Lord of Straffords words to him upon his excepting against the Orders made upon the Petition touching the said Rectory His Lordship Answered That he had been in Possession as Tenant of the Crown thirty five years of a Rectory and certain Tythes in the County of Tiperany for which he paid a yearly Rent and having enjoyed it so long my Lord presented to it Arthur Gwyn that had been his Coach-mans Groom That when he heard of it he went to my Lord privately and told his Lordship that he was His Majesties Farmer of those Tythes and paid a Rent and desired he might not be sued for them in the Council-Chamber but if a Suit must be ommenced that it might be in the proper Court the Exchequer That my Lord told him he should Answer it there That he did so and my Lord ordered it against him That a Commission went down and Examinations were taken And after my Lord had ordered it against him an Order of course was set down that Gwyn should have them till I recovered them by course of Law That thereupon I brought an Action against him and his Tenants who were Arrested and came to Dublin and then went to my Lord and Dr. Bramhill Bishop of Derry That thereupon I was sent for before my Lord Lieutenant that then was and my Lord Lieutenant told me Sir You have taken out Writs against Gwyn to whom I Ordered the Tythes of the Rectory I confest I had and desired to know why he aked me so adding that I am sure your Lordship will not take away my Possession by a Paper Bill without Trial. That my Lord of Strafford answered call in your Writs or if you will not I will clap you in the Castle For I tell you I will not have my Orders disputed by Law nor Lawyers Gwyn was a poor man and if he should get the Rents of the Impropriation into his hands I could not get them again And therefore I desired security That if by course of Law I should recover it I might have it again That my Lord of Strafford thereupon said It was very fit and just but the Order being brought unto me I said there was no such thing in the Order Being desired by the Earl of Strafford to repeat the last over again I say that
an Order made my Lord of Strafford threatned the Earl of Corke for Suing at Law That the Justification brought by my Lord of Strafford is an Aggravation restraining Liberty to Sue at Law to a year else to be concluded for ever Whereas my Lord of Strafford says he hath spoken unwisely but done nothing sure he that Threatens doth something and his Actions will appear in the next Articles For the Priviledge of Peerage It were to be wished he had known or remembred it sooner in my Lord Mountnorris his Case That though he says Acts of State are to be allowed for temporary provision till an Act of Parliament yet when things are propounded and rejected in Parliament shall he supply it by an Act of State We desire to examine one Witness more The Earl of Strafford excepting against it as not regular the Lords Adjourned to their House to take consideration of it And a little after returning the Lord Steward declared their Lordships Resolution That the Witness might be examined The matter in question arising from what was offered from the Earl of Straffords Defence Roger Lotts Sworn and examined what words my Lord of Strafford gave out when an Act for Powder would not pass in the Commons House and what Act of State was thereupon made He Answered That he had the Honour to be one of the Members of that Parliament that began 1634. and ended April 1635. That at the Close of that Parliament my Lord of Strafford then Lord Deputy told the House of Commons then sent for up That they had Voted against some Bills in the lower House amongst the rest that of Gun-powder where it was made Felony for any man to buy or have any unless he got a License first for it That my Lord afterwards told them That notwithstanding they had Voted against it yet he would make that and some other Bills they had Voted against Acts of State that should be as good and said he heard it was done afterwards but he doth not know that This Witness is something of Justification of my Lord of Corke's Testimony against which my Lord of Strafford hath made some Exception And the Lord Digby added something for the Justification of my Lord of Killmallocks Testimony against which my Lord of Strafford had likewise excepted And so the Reply was concluded To the Deposition of Roger Lotts my Lord of Strafford Answered I had received direction concerning Powder it being not conceived fit for Reasons of State to buy and have Powder at pleasure or that that Commodity should be so frequently brought into the Kingdom and committed to unsafe hands so in that point I did but what I was commanded out of many Reasons which I desire I may forbear to express it not conducing to my Acquittal or Condemnation And so the Lords Adjourned The Sixth day Saturday March 27. 1641. THE Fifth Article The Charge That according to such his Declarations and Spéeches the said Earl of Strafford did use and exercise a Power above and against and to the Subversion of the said Fundamental Laws and Established Government of the said Realm of Ireland extending such his Power to the Goods Freé-holds Inheritances Liberties and Lives of his Majesties Subjects of the said Realm and namely the said Earl of Strafford the Twelfth day of December Anno Domini 1635. in the time of full Peace did in the said Realm of Ireland give and procure to be given against the Lord Mountnorris then and yet a Peér of the said Realm of Ireland and then Uice-Treasurer and Receiver-general of the Realm of Ireland and Treasurer at War and one of the Principal Secretaries of State and Kéeper of the Privy Signet of the said Kingdom a Sentence of death by a Council of War called together by the said Earl of Strafford without any Warrant or Authority of Law or Offence deserving any such punishment And he the said Earl did also at Dublin within the said Realm of Ireland in the month of March in the Fourtéenth year of his Majesties Reign without any Legal or due Procéedings or Trial give and cause to be given a Sentence of Death against one other of his Majesties Subjects whose name is yet unknown and caused him to be put to Death in Execution of the same Sentence THe Manager began to open this Article shewing That though my Lord of Strafford insisted on it That whatever his words were his Actions were not against Law This Article comes properly to reply to that Answer It charging him with exercising of a Tyrannical Power over the Person of a Peer of that Realm And first It was desired that the Sentence of Death against my Lord Mountnorris might be read which was attested on Oath to be that which was delivered by Mr. Secretary Windebanck upon the Commons humble Suit to His Majesty for His leave to have a Copy thereof That the Papers concerning my Lord Mountnorris might be delivered into the House occasioned upon my Lord Mountnorris his Petition to the House in that behalf The Sentence was read Reciting first His Majesties Letter Iuly 21. then last wherein notice is taken of the Respect due to the Deputy and General of His Majesties Army and of the Carriage of my Lord Mountnorris holding a Captains place in the Army in uttering Speeches inciting a Revenge on the Earl of Strafford Lord Deputy and Lord General and Command thereby given on receipt thereof to call a Councel of War and that the Lord Mountnorris should undergo such censure as the said Councel of War should impose for the Lord Deputies full reparation Secondly That a Councel of War was accordingly called the words are also set forth and the occasion as followeth That within three or or four days after the Lord Deputy had Dissolved the Parliament his Lordship sitting in the Presence Chamber one of his Servants in moving a Stool happened to hurt the Lord Deputies Foot then indisposed through an accession of the Gout which being spoken of at the Lord Chancellors Table one said to the Lord Mountnorris being there present it was Your Lordships Kinsman who is one of the Lord Deputies Gentlemen Ushers that did it Whereupon the Lord Mountnorris publickly and in a scornful and contemptuous manner answered Perhaps it was done in Revenge of that publick Affront that my Lord Deputy did me formerly But I have a Brother that would not have taken such a Revenge Thirdly The Sentence likewise sets forth That the Lord Mountnorris would not Answer the said Charge negatively or affirmatively though required by the Councel of War Fourthly That thereupon the Witnesses for proof thereof were called viz. Viscount Moore and Sir Robert Loftus who upon Oath deposed the same words to be so then and there spoken and the Lord Mountnorris at last submitted himself to the Councel protesting that whatsoever interpretation might be put upon his words he intended no hurt to the person of his said Lordship
hanged and they were born in the same Town He said he knew not what Martial Law is but he was hanged on one of the bows of a growing Tree and he takes it my Lord of Strafford was present he added that all the Souldiers were there and the Company but knows not whether he was condemned by a Jury or no. And he heard that he was hanged for a quarter of Beef that he and some of the Company took away Lord Viscount Dillon being asked If he knew of the Execution of the said Person whether he was condemned by Martial Law and whether he was a Suitor to my Lady Strafford and could not prevail He Answered He did not know that man by name that was hanged but it was by Martial Law And he and another noble Lord that sits here were Suitors for him to my Lady and she told them she did endeavour but could not prevail for a Pardon That it was a little before the 500 men went to Carlisle out of Ireland That he was not present at the Trial but saw him hanged on the Green at Dublin on a Tree and knows not his name and he conceives the Provost-Marshal or the Provost-Marshal's Son did Execution for they were there both of them That the Cause was double as he heard for which he was condemned for flying from his Colours and for stealing some Beef Patrick Gough sworn and asked to the same purpose as before He Answered That he remembers about the time of the 500 Souldiers sending to Carlisle and the Army in Dublin this man was executed by the Provost-Marshal's Son and on a Tree and that time two other Souldiers were whipt The voice of the Report was He was hanged for a quarter of Beef and running away from his Colours Lord Renula asked what Answer was given when a motion was made that this man should be tried at Law He Answered That he was warned to come to a Marshalls Court and the Messenger came so late that he came not timely enough to give his Vote in the Court That he came when the matter was fully heard and having done his duty to the Lord-Deputy sate down behind the Chair That there were some controverted Opinions concerning the condemnation of the man The Lord-Deputy was pleased to desire his Opinion and stated the Evidence to him as it appeared before the Court which to his remembrance stood thus The party was accused to have stollen some Beef and charged to have run from his Colours which was the reason of the parties being called thither as he conceived And it was thus coming to his Lieutenant to demand his Pay if he be not mistaken and if he be he should be glad to be certified by any the Officer said He had it not then he desired to be Discharged Then go and be hanged said the Officer and thereupon left his Colours yet left his Musket with his Corporal That for the Beef it seems the Fact was clear that this was when a Regiment of Foot was to be transmitted to Carlisle and were at Dublin attending their Transportation hence That he the said Lord Renula was desired to inform himself of the particular charged upon his going from his Colours The thing in his excuse was The Officer's bidding him go and be hanged and leaving his Musket That therefore he the Lord Renula did the rather advise he should be tried by the Law than in that Court That he doth not conceive the Sentence was made certain before he came in and if he be not mistaken there is a Noble Peer of this House sate in that Council and he is sure that he the said Peer offered Reasons why he should not die for that Fact for he heard him argue it so and that is my Lord Conway Lord Conway was sworn and asked his knowledge of this He Answered That he hath been asked of this heretofore and therefore is something more in his memory than otherwise it would have been for he had almost forgot it and it is very imperfectly in memory He remembers that he was at a Council of War in Dublin that there was a man condemned to be hanged and that it was for such a matter as their Lordships had heard spoken more of it he doth not remember And being further asked Whether any Proposition was made to my Lord of Strafford to have the man referred to a legal Trial or the Execution deferred He Answered He remembers it not And so they closed the Article observing it to be fully proved in both parts of it and that it makes good the general Article of exercising a Tyrannical Government over His Majesties Subjects The Earl of Strafford began his Defence I humbly conceive my Answer must be allowed me if I prove clear of Treason having been debarred of Witnesses My Answer saith That the Deputies have always exercised Martial Law in time of the Armies march and divers Articles for regulating the Army printed according to which divers have been put to death in Peace as well as War That the Lord Mountnorris for breach of two of those Articles was proceeded against by 20 in number and Sentence of Death pronounced wherein I was no Judge and I obtained from His Majesty that no personal hurt befel him but a few days Imprisonment If I had been questioned on my Life for Murder or Felony I might in extremity have feared perhaps but certainly this can by no Law be made Treason for which only I must answer being a Crime of another nature I trust this will appear no Crime or such a one as I hope His Majesty will grant me a Pardon for as He hath done to others I desire to excuse a Mistake in my Answer about the whole Armies being at Dublin and I desire in my Answer to have liberty to rectifie a mistake I humbly desire the Commission may be read under the Broad-Seal whereby I am made General of the Army and Power derived to exercise marshal-Marshal-Law which was read and this limitation is in it as to the exercise of marshal-Marshal-Law Si opus fuerit And this I observe is according to the practise of all the World in Cases of this Nature That the Army in Ireland is a standing Army in the King's pay and and hath and always had Marshalls Serjeants Majors Generals Provost-Marshalls and other Officers We admit that there is an Army in Ireland that is in pay and distributed in the Country and hath Officers belonging to it The Generals there have from time to time set forth Orders in Print for the Government of the Army and the Officers of it particularly my Lord Wilmott whose Orders are here to be read My Lord Wilmott being examined confest there were Orders made for regulating the Army that he had the Honour to be General four years and that the Articles offered by my Lord of Strafford and by him viewed are attested under his Hand for which he took
Pattern from my Lord Faulkland my Lord Grandison and my Lord Chichester and he did it by the Power he had the Honour to hold under His Majesty as General That yet he used them so sparingly that neither in that time nor in the Government of Munster in which he had as large Authority as ever any man had he never did condemn a man to death in peaceable times and that the Authority hath been good That Martial-Law is so frequent and ordinary in Ireland that it is not to be denied and so little offensive there that the Common Law takes no exception at it That he hath lived to see three or four Parliaments there and they never complained of it And to Govern an Army without Martial-Law is impossible for occasions in an Army rise on a suddain and something must be done on a suddain for example-sake to others That Martial-Law was certainly in Ireland ever since he remembers and long before but it hath been used so sparingly that in the time of Peace for his part he did never know any executed in his time Being asked on the Lord Strafford's Motion Whether he hath known Sir Charles Coote as Provost-Martial of Conaught and Sir Iohn Bower Provost-Marshall of Leimster in time of Peace execute divers Persons Rebels and others by Martial-Law He Answered For Sir Charles Coote he can very well answer though he had Authority yet it is out of his memory that he ever executed any And for Sir Iohn Bower he dwelleth remote from him that the said Sir Iohn Bower hath Authority and so have many other Presidents Marshalls of the Army Provost-Marshalls of every Province and upon great Reasons for it for though they be Inferior men yet the intent of their Commission is but to prosecute those men that cannot be had into the Law that is Rebels and Fugitives and those men he hath heard have been hanged Whence my Lord of Strafford inferred That he had done nothing de Novo That Provost-Marshalls have been always appointed and executed those Places under the General for the time being The Committee admitted that there be four Provost-Marshalls but deny that they exercise Marshall-Law That those Provost-Marshalls have executed divers men to death by Marshall-Law Rebels and Traytors I desire to produce an Order of my Lord of Faulkland's taken from his Book of Entries but being not proved nor written with my Lord Faulkland's own hand the reading of it was not admitted but left to their Lordships Consideration To prove the Practise of the Provost-Marshalls Sir Adam Loftus being asked concerning the Provost-Marshalls executing of Marshall-Law before my Lord of Strafford's time and on what men He Answered That it is most apparent in all times since he can remember Martial-Law hath been executed that 's undoubted But it was on Rebels and Out-Laws and he hath known no other but such executed by martial-Martial-Law Lord Robert Dillon being asked to the same purpose Answered He hath heard the Provost-Marshals have taken and hanged men by martial-Martial-Law in time of Peace since the beginning of King Iames his Reign that of Rebels and Out-Laws there is no question My Lord of Strafford desired to compare his Orders with those of my Lord of Wilmotts And they were compared accordingly in divers Articles His Lordship produced a Copy of His Majesties Letter attested to be a true Copy by Charles Gibson Which was read being the Letter recited in the Sentence of my Lord Mountnorris I observe That the Sentence of my Lord Mountnorris takes notice that the Army was part of it in motion and divers Companies daily exercised and that my self was for the most part there present which shews the truth of my Answer to that Point in part To free my self from the said Sentence I desire a Letter from my self and Council of War to Secretary Cook 13. December immediately after the Sentence may be read to shew that I was a Suitor to the King in my Lord Mountnorris's behalf But being after the Sentence and written by himself and the Council of War for extenuating of the Fact the reading of it was over-ruled I conceive my Lord Renula and Lord Dillon made it appear that I declined giving Judgment in the Sentence But for further proof Sir Robert Farrer was asked Whether my Lord of Strafford did not declare he would be no Judge nor give Opinion in that Cause and whether he sate bare He Answered That he was present at the Sentence and heard my Lord of Strafford say that he would give no Judgment nor have to do with the business concerning my Lord Mountnorris and he sate a good time with his hat off Being asked on one of the Committees motion touching his pressing of both the Articles He said He acknowledged my Lord did require Judgment on both Articles and yet sate silent at the time they were upon the Sentence Being asked Whether my Lord of Strafford did not desire them to regard him no more than an ordinary Officer and do no otherwise than in reason and judgment they should think fit He Answered My Lord of Strafford said these very words That they should not look upon him but go to the Cause according to their Opinion directly And being asked Whether my Lord Mountnorris was a Captain of the Army He Answered Yes and the Council did admit it Sir George Wentworth being asked to the same purpose as Sir Robert Farrer He Answered He was present at the Sentence and heard my Lord of Stafford say publickly He did not sit there as a Judge and that he would give no Vote in it Being asked Whether my Lord of Stafford did not tell Sir George Wentworth that he should give no Vote in it because he was his Lordships Brother He Answered Yes and he gave no Judgment upon that reason that my Lord of Strafford did publickly bid them all look on him as a private man and sate by as a Suitor not as a Judge and put off his hat at the beginning to speak and sate uncovered all the while till Sentence was pronounced To shew that my Lord Mountnorris was enlarged by me presently after I here produce the Warrant Dated 18. December though indeed he was released 15. December The denial of my Lord Mountnorris to examine Witnesses was by my Lord Cromwell Sir Charles Coote Sir Iohn Burlacy not by me I sitting by as a private party For this I refer to my Lord Mountnorris's own Deposition and my Lord Renula's To prove it further Sir Robert Farrer was asked touching the denying of further time and Council He Answered He cannot tell who denied him he remembers my Lord Cromwell spake something but knows not whether to that effect Sir Robert Farrer being asked on one of the Managers Motion Whether before their coming together they did know the occasion of their meeting He Answered He did not he was warned to attend and did not know the business till he came thither I did never
will come clearly to your Lordships judgments upon the Petition of the party when she shall sue for her Right And when it comes to be Charged upon me as a Misdemeanor I shall give such an Answer as befits me There is nothing in this Charge that can be interpreted Treason for it is but the exercising of a Jurisdiction in the Deputy which he hath Commission for from His Majesty and the inlarging of a Jurisdiction in a Judg I conceive is not Treason The Proofs formerly offered to prove the use and practise of the Deputies which I need not repeat your Lordships being Persons of great Wisdom and once said always said come to my help and assistance in my Charge the question being upon the same Jurisdiction only and that in one particular Circumstance I conceive my self stronger in this Cause than in that of my Lord Mountnorris This Case being of a Petition preferred to me but referred by me to be heard before the Council-Board and the Witnesses say That though they did not know nor remember that the Deputy himself heard Causes alone yet it was frequent for the Deputy to receive Petitions and refer them to the Board So that I conceive I have exercised or done nothing but according to the Practise and Customs of that Kingdom and consequently cannot be made use of as an Argument that I subvert the Fundamental Laws or bring in Arbitrary or Tyrannical Government when I step in the paths of my Predecessors and the practise of other men in the like Cases And that I say as to this Point of Jurisdiction The next Point I am Charged with is That the most part of the Council-Board Voted against it whereas I say in my Answer the most part Voted for it and on that I most humbly insist still and shall make it clearly appear to be so For Proof on the other Side they have only my Lord Mountnorris his Testimony who saies They had 12 against the Order and nine for it And Mr. Hoy saith That an Honourable Person that night told him 12 were for him and nine against him so it must all be one man and one Testimony To prove the Major part was for the Decree there was the Order signed under the Clerk of the Council a sworn Minister who could not draw it up without the plurality of Voices being against the constant practise of the Board to do otherwise That this was the practise I desire my Lord Primate's Examination may be read to the second third fourth fifth and sixth Interrogatories Those his Examinations which were taken in the presence of the Peers and Commons taken this morning being admitted to be read and the former taken in the absence of the Members of the Commons House being declared to be suppressed The said Examinations were read accordingly 2. To the Second he knows the use was to prefer Petitions to all the Chief Governors that have been within these fifty years last but what hath been thereupon he cannot say This my Lord of Strafford observed is to the Jurisdiction 3. It is the received practise of that Board that the Clerk of the Council being a sworn Minister should draw up the Opinions according to the Major part of the Board 4. That he hath not known the Earl of Strafford to have at any time urged or pressed any Member of the Board contrary to his own Opinion 5. That he hath heard him divers times profess he had but a single Voice and that Matters were to pass according to the major part of the Voices of the Board Whence my Lord of Strafford observed That the Clerk of the Council being a sworn Officer is perjured else the greater part of the Board was against the Lady Hibbots Robert Lord Dillon being asked concerning the use of the Board in the Clerk of the Councils drawing up Orders according to the major part of the Votes and what he had observed in this particular Case He Answered That the Clerk of the Council is a sworn Minister of His Majesty and by duty of his Place is to take notice of the Votes and accordingly to draw up the rough draughts of Orders and to present them to the Board to see whether they be to the sense of the major part of the Votes That he was present at the Council-Board when this Cause was Voted but cannot say upon his knowledge it was drawn up according to the major part of the Voices at the Board for he counted not the Votes but that was an inducement to him to believe so because the Clerk of the Council drew it up so and it is the Order of the Board when the major part Votes those that dissent in regard their Votes are involved do commonly Sign and that he had seen some Sign to the Order which had given Vote against the Decree Being asked severally how his Vote passed in this Order and whether the major part did not Vote it whether my Lord of Strafford did not always submit his Opinion to the major part and whether in a Case that concerned my Lord Renula there were eight at the Board and four went one way and four another that my Lord of Strafford would not over-rule it but called in another and desired the whole business might be referred to him whether before my Lord of Strafford's restraint this Order was questioned on this Point for want of the major part of Voices and whether at the signing of it or any time after he heard any Councellor except against the Order His Lorship Answered That he gave his Vote for the Decree that he reckoned not the Votes but conceives the major part were for it that he remembers not my Lord urging any man to Vote contrary to his Opinion or over-ruled it but was content to let it go That he remembers not the contrary but my Lord submitted to the major part of the Votes That in the business betwixt my Lord Renula Plaintiff and one Ormesby he remembers there were but eight men at the Board whereof my Lord-Deputy made one and four fell on one side and four on the other and my Lord Renula was then present as he takes it though withdrawn at the instant and for ought he knows my Lord Renula can say something to it That when my Lord gave his Vote he said He would not take the priviledge of casting the Cause but left it to an absent Counsellor and which way soever he inclined the Cause should go and afterwards that Councellor did Vote against the Opinion of my Lord-Deputy and the Order was drawn up so That he never heard of any Complaint of the Order nor heard of the business till he came to the Board That he doth not remember any Exception taken at the time of the signing the Order nor at any time after Sir Philip Manwareing being asked concerning the matter of the major part Answered That he was present at the Council-Table and his Vote went for the
by them to be appointed to Arrest and Attach the Bodies of all such of the meaner and poorer sort that after Citation shall refuse to appear before them or appearing shall omit or deny to perform and undergo all Lawful Decrees Sentences and Orders issued imposed and given out against them and them so Arrested to Commit and keep in the next Goal till they shall perform such Sentences or put in sufficient Bond to shew some reasons before the Council-Table of such their Contempts c. willing all Justices of the Peace c. in that Diocess to be Aiding c. as they c. Given c. Febr. 16. 1636. Tho. Little Mr. Glyn opened the several parts of the Warrant and offered that it was expresly against Law putting their Lordships in mind of the former words That he would make an Act of State equal to an Act of Parliament But now he is better than his word for he will make an Act of State higher than an Act of Parliament For whereas by the Law no Subject of the Kings in any Ecclesiastical Court may be taken till he be cited and then on disobedience he is Excommunicated and on Excommunication there is a Writ called Capias Excommunicatum by virtue of which he is apprehended Now my Lord of Strafford issues a Warrant to take him if he appear not on Citation breaking through the Law and making no matter of that but he will make a Law that extends to the Liberty of the Subject And if this had never been put in Execution it had been all one to the purpose of the Commons for this shews how being intrusted with the Kings Law in Ireland he discharges that Trust. But for Execution they desired Witnesses might be heard Sir Iames Mountgomery being asked how this Warrant was Executed and the Kings Subjects used under colour of his Authority He Answered That he hath seen several Warrants that have issued under the Hand of the Bishop of Downe's Chancellor sometimes to the Constables sometimes to his own Apparitors with their Assistance for to apprehend the persons under-named That there have sometimes twenty sometimes thirty sometimes more sometimes less names been put in the Warrant That he hath known them executed with great cruelty sometimes wounding beating imprisoning them Being asked on my Lord of Straffords motion how long since he knew any thing done upon that Warrant He Answered Since the time of the Warrant granted and he thinks the Warrant bears date February 1636. till of late much about this time Twelve-month which was the last time he was charged himself to be assistant to the Execution of it That he heard the Bishop of Derry had taken up the Warrants in Sommer last on many and frequent Complaints that had come and had withdrawn it from the Bishop of Downe about Iuly last The Manager closed this Article observing that my Lord of Strafford not only takes this Power but gives it over to others and see how they do execute it over the Kings Subjects Knights and men of Eminency must be called to assist and therefore it was high time to accuse my Lord of Strafford of subverting the Laws of Ireland And so expected his Lordships Answer My Lord of Strafford began his Defence in effect as followeth Such Warrants have been usually granted to the Bishops of Ireland in times of all former Deputies But not satisfied with the convenience thereof I refused to give such Warrants generally as was formerly used Being informed that divers in the Bishoprick of Downe gave not fitting Obedience I gave this Warrant being the only Warrant of this kind that I granted and hearing complaints of the Execution of it I called it in again They have produced only a Copy of the Original Warrant and what words may be omitted that 's in the Original God knows and I think under favour it would not be an Evidence at the Kings-Bench Bar. And this stands with the practice of former Deputies to grant such Warrants of Assistance to the Bishops The Lord Primate of Ireland his Examination read To the 7th Interrogatory That he remembers his immediate Predecessor in the Bishoprick of Meath told him he had a Warrant of Assistance from the then Lord Deputy who was either the Lord Chichester or the Lord Grandison That the Recusants in his Diocess desired it might be so for the saving of those Charges which would come on them by the Writs de Excommunicat ' Capiendo Robert Lord Dillon being asked whether he had known formerly such Warrants to be granted and by whom He Answered He hath heard Writs of Assistance have been granted by former Deputies but he remembers not that ever he saw any Mr. Tho. Little being asked whether this Warrant was granted according to former Presidents He Answered That he hath seen one of the Original Warrants before my Lords coming there and that it was brought to him to draw another by And going to instance in some Copies seen in my Lord of Faulklands Book of Entries The Manager excepted against him for medling with a Book formerly over-ruled Mr. Little proceeds That he hath seen an Original Warrant by which this was drawn and it was under my Lord of Faulkland's hand and this was made according to that pattern Being asked whether my Lord of Strafford did not restrain and give direction to him not to issue any other Warrant of that nature He Answered There was no more made but this though divers required them my Lord forbidding him at all times afterwards My Lord of Strafford offered his humble request to their Lordships that in all things that concern the Irish Charge they will please to remember it was not possible for him to procure any Witnesses in this short time of his Trial having not liberty till Friday was seven night These things being notorious and might have been cleared if he had had time He added That whether this be a true Copy of the Warrant or no I cannot tell but likely enough it is That it was moved for by the Bishop of Downe and Connor to whom for some reasons I was willing to grant it but being afterwards told by Sir George Ratcliffe that he doubted whether it was Legal or no I called it in again and never granted any but this That as appears in the proof I sent to the Bishop of Derry and desired him to call in the Warrant and so he did long before this complaint And thence I infer that it could not argue my intention to break the same Whereas the Gentleman at the Bar said that I had been better than my word for I had said an Act of State should be as good as an Act of Parliament but here I made an Act of State better than an Act of Parliament I observe that he is willing to make me better than my word when it may be for my disadvantage but is willing to make me worse than my word when by
my Lord Deputies own Guard which could not be but originally from him Mr. Robert Little my Lord of Straffords Secretary being sworn was interrogated several questions viz. Whether he had made out any Warrant by the Lord of Strafford's Direction and under his Hand and Seal to Pigott or any else for raising Soldiers after this manner He Answered That he doth not know that Pigott hath any such Warrant nor doth he remember any such Warrant passed the Office if it did it was by Precedents of former times but in good faith he doth not remember it Whether he made any such Warrant to Pigott to his knowledge Answered That he never made any or heard of any nor knew of any Was one made to Savill Answer He never made that to Savill and he cannot tell whether there was one to Savill or not Was there an Entrie of any Warrant in his Book to that purpose Answer That he did not enter them at any time nor did he ever see any such Entrie or Warrant Mr. Palmer inferred from hence That he said the same for Savill that he said for Pigott and yet how publique a thing this of Savill's was their Lordships have heard and it could not but come to his knowledge at least his ear And Mr. Maynard observed he swears that he never made any such Warrant but if any were made it was according to former Precedents But my Lord of Strafford Answered That if any says he cannot tell 't is as much as he can say for another mans act Lord Ranalaugh being Interrogated what he knew of this Warrant of laying of Soldiers upon whom and how long His Lordship Answered That he had heard something of it heretofore but more particularly in November last when being at the Council-Board a Petition was preferred to the then Lord Deputy and Council by one Davis who dwelt in the County of Clare and by his Petition he set forth That notwithstanding on a Reference from my Lord Deputy to the Judges of Assizes he had obtained a Report from him yet by combination betwixt his Adversary and the Sergeant he had Soldiers laid on him which made him leave his Dwelling That he the said Lord Ranalaugh asked the party how the Sergeants came to lay Soldiers Yes saith he My Lord Deputy Wansford hath made a Warrant dormant and taken a course for it from my Lord Lieutenant and from himself as he the Lord Ranalaugh takes it tho positively he could say that the Warrant Dormant was the general Cause Being asked whether it had been used before or if it be an Innovation He Answered That he knew a custome hath been in Ireland for laying Soldiers on the relievers of Rebels and for laying of Contribution-money in case of Delinquency or not payment Or where a return was made by the Sheriff that the Kings Rents did not come in these Rents being applyed to the payment of the Army The course before my Lord of Strafford's coming was That Soldiers were laid to constrain such but in a civil cause between party and party he never heard of it before in his life Being asked on my Lord of Strafford's motion whether he the Lord Ranalaugh was not a Captain of the Army before the Lord of Strafford came and whether he had not Commission by Soldiers to levy part of the money due to him from the Deputy and Vice-Treasurer He Answered That before my Lord-Deputy came into Ireland the course was as he formerly touched that where there was arrear of Rents to the King and these Rents did not come in to the Exchequer then was assigned for the payment of the King's Soldiers and the Acquittances delivered to the Captains on part of their entertainment and this Acquittance out of the Exchequer was given by a special Warrant from the Deputy and according to that course his the Deputies method was with other Captains and thus he levied the Rent by his own Soldiers by virtue of that Warrant Being asked when the Money was Assessed thus on Countreys was it not by consent of the Countrey He Answered That if he hath not forgotten when the Gentlemen of Ireland were here 1628. they were suitors to the King for several Graces and they obtained several of them from His Majesty among the rest if he hath not forgotten that in case of non-payment of Rents or Contribution Soldiers might go and lye upon the Defaulters Mr. Palmer observed that when he speaks of Contribution or Rent he speaks not of this course to compell to obedience on Paper-Petitions And so he said they would conclude with their Witnesses reciting that their Lordships have heard the course taken to secure that Power my Lord of Strafford assumed to himself in hearing of Causes That this Usurpation on ordinary Courts of Justice to whom it belongs could not be secured without Arms in a Warlike manner to compel obedience Their Lordships have heard how it was executed that if the proceeding had been legal the proofs of Law had been according to the calme and quiet Rules of Justice but being an incroached Power it must be executed by force and Arms and War indeed for so it is in substance on the Subjects of Ireland That this was in time of Peace the troubles of Ireland being long since appeased and the People reduced to the condition of Subjects governed by ordinary Laws and Magistrates and now to put an extraordinary Power in execution to compell the Subjects by Act of Hostility they conceive is within the Statute of 25 Ed. 3. A levying of War against our Sovereign Lord the King within His Realm which is nominally Treason in that Statute and shortly for this reason The King being invested with His Sovereign Power whereby they are protected but this Power being instead of Protection used by his Ministers to the subversion and destruction of His Subjects doth on the matter make an Invocation on the King himself this being a bereaving the subjects of the Law by which they should live dispossessing them by force of Arms in warlike manner must be a war against himself That Law is of force in Ireland by 10 H. 7. whereby all the Laws made before that time were made of force there And by a particular Statute made the 18. H. 6. this very offence of Sessing Soldiers by Lords or any others or any the Kings people without their consent is adjudged Treason and the Offender is to be judged a Traitor The Statute was read Statutes and Ordinances made in a Parliament holden at Dublin 18 H. 6. ch 3. AN Act that no Lord or others shall charge the Kings Subjects with Horse Horsemen or Footmen without their good Will and by so doing the Offender is a Traitor IT is agreed and established that no Lord or any other of what condition soever he be shall bring or lead from henceforth Hoblers Kern or Hooded men neither English Rebels nor Irish Enemies nor any other people
thus levyed His Lordship added That the next Point he should have endeavoured to prove was That the Gentry that granted the Six score thousand pounds for Supply of the Army in my Lord Faulklands time agreed That the same should not be brought into the Kings Exchequer but be levyed by Soldiers nor be mentioned in any Accompt of the Kings least it should be mentioned to their prejudice but let the Gentlemen that manages the Evidence labour to prove this And Mr. Palmer declared again That they agreed to it Whence my Lord of Strafford observed That it concerned him both to make good the truth of his Answer and to tell their Lordships how narrowly he is moved to look to himself for though they now agree it to be done by the Agents and practised by them yet the first part of this Killing Charge is That he should Traiterously and Wickedly devise to subdue the Subjects of that Realm by levying Money on them But Mr. Palmer explained himself That they did admit the Contribution to be levied by the Agreement of the Agents and by consent but they intend not to admit that it did extend to a practice by his Predecessors for that it was formerly done they did in no sort admit And Mr. Pym added That they do not Charge him with levying the Contribution Money but with levying Money after the Contribution was paid which was more than the Contribution but that is not in issue So my Lord of Strafford concluded that Point That the Contribution for eight years before his coming was levied by Soldiers is admitted So that for all the things concerning that Contribution he did no more than was agreeable to the Agents themselves His Lordship then desired That the Second Article of my Lord of Faulklands Instructions might be Read by which he was expresly appointed to lay Soldiers on such as paid not their Rent to the King And it was Read ARTICLE II. FOr the Collection of our Rents in Cases of Default That First a Summoning Process shall Issue Secondly The Pursivant sent And Lastly if this be not sufficient in case the same be not levyed then our Vice-Treasurer by Warrant of our Deputy and Council shall appoint a competent number of Soldiers of the next Ayding and Garrison to collect the Rents of the charge of the Parties complained of having care that no man be burdened with a greater number of Soldiers than the Service shall necessarily require Mr. Palmer desiring That the first Article of these Instructions might be Read it was read accordingly AT the humble Request of our Subjects We are graciously pleas'd to direct for the better preservation and ease of our Subjects the Soldiers shall be called in c. My Lord of Strafford from his Proofes inferred That he had made it clearly appear That notwithstanding the Statute cited it had been the frequent use and custome of Ireland to assess Soldiers on Septs of Offenders for the levying of Exchequer-rents levying Debts as appears in one particular Case which is left in Dublin for the levying of the Composition Rents by Troops of Horse and Horsemen and for the Contribution that State gives no difference betwixt sessing for the Kings Rents and for contempts and disobedience to Justice and certainly it would be High-Treason for if the Deputy had power to assess the Soldiers without being guilty in the former Case certainly his assessing of Soldiers on Contemners to bring them to be ameneable to the Kings Justice cannot be by any construction made Treason in him So that though it comes not to the particular individuum yet it comes thus far that sessing of the Soldiers is a power that was in the Deputies of Ireland and so he trusts was by the Law of that Land without making them Traytors His Lordship did further alleadg That when he came into Ireland he found that none of the Kings Rents were levyed in other manner Paper-Attachments being given unto the Captains and they on these assignements levying the Money for their Entertainments that he was willing to remedy this being not much in love with the course and since his time it was never practised the Rents being brought in before it comes to that though if they had not been paid sooner it must have come to that And therefore he desired he might show them a Proclamation Issued within three months after he came into Ireland to show that he brought not the Custom with him but found it there Which Proclamation was Read being Dated 27 th December 1633. And Imported THat whereas the Surplusage of his Majesties Revenue is appointed to be applyed towards the Payment of the Army thereby to give the Countrey more ease c. To which Proclamation divers of the Counsellors Names were added and were now Read So that if Sessing of Soldiers in any case be Treason certainly it is in this Posito That if the Law be good it equally goes to both And so he conceives he hath shewed the use that hath been and must be of the Officers of the Army being the most ready way to procure obedience to the Kings Courts His Lordship observed That the Gentlemen at the Barr waved part of his Charge though there was a Book in Print wherein he appears to be charged in a Trayterous manner to subdue c. He waves the Article And though they decline it he besought their Lordships he might give an Account of this particular least it should stick with their Lordships when they read the Article and find no Answer to it But the Committee opposed it as conceiving it not fit he should Answer to an Article to which he was not pressed specially since they have not wholly laid it aside and that he had notice yesterday that they intended not for the present to proceed upon it which my Lord of Strafford confessed and gave thanks to the House of Commons for it His Lordship then proceeded in his Defence setting forth to their Lordships That the first Instruction to my Lord of Faulkland is no limitation to him it being not good as to him unless it were given him which he mentions onely by the way For the Warrants charged to be by him Issued and the Execution of them His Lordship desires to free himself from the Testimony given by Mr. Berne and Mr. Kennedy concerning a very foul misdemeanour committed by some Soldiers under pretence of coming to see the Kings Writ executed and his Justice complyed withal before he comes to that that concerns Mr. Savill 1. It appears these Soldiers were laid when he was not in Ireland so that he is not answerable to any thing Deposed by these Gentlemen further than that he gave a Warrant for it to Mr. Pigott II. He denies that ever Pigott had any such Warrant from him nor is any Proofe to that purpose offered Therefore it is not to be laid to his Accompt III. Only Patrick Clear sayes Pigott threatned to lay
the Kings debt it might be one of the Rents or some duty leviable by consent of the people neither did he say it was on a suit before the Deputy and therefore that will not come to the Case For that my Lord Dillon was called again touching Contribution Composition and Rents Composition-Rents fall under the same Consideration That Sir Thomas Wayneman laid soldiers is but an affirmation and expects no answer but if the Information be true he used very violent courses for it hath appeared he hanged a man without any occasion My Lord produced the Instructions of 1628. and out of them inforced that it might be lawful for him to levy Soldiers with authority but it appears by the first Article it was consented to at the writing and for the Benefit of the Subject as was before answered and that very much money was assigned for the Soldiers and it may be proved if there be occasion That there issued Acquittances to the Captains of the Company to deliver to the persons from whom the Money was due in case of payment and if they did not pay by consent Soldiers were laid and not otherwise For the Proclamation of December 1633. whereby the payment of His Majesties Rents and Revenues was ordered it recites divers Rents were behind that the surplusage would not pay the Soldiers that by want of Money the Soldiers might make irruptions on the County That according to direction to prevent inconveniencies Moneys should be levied which had Rise from the Instructions 1628. For the time of it was 1633. A Proclamation might well second that which was setled before by the Instructions If it did not pursue them surely the Proclamation was an offence in it self and then there is no justification of a Treason by a Treason but it might have been as well objected against as this in hand But it is true it hath the countenance of these Instructions But on all these there is no pretence of forcing submission to my Lord of Strafford's Orders After Usuage his Lordship observes the Testimonies produced and takes exceptions to that of Berne that the ground of his complaint was when my Lord of Strafford was in England That it was done by Pygott's Warrants who was not proved to have any Warrant from him It is true there is no full and precise proof that Pygott had his Warrant from my Lord of Strafford But though it was done after his coming for England yet if his Warrant were made before though it were executed in his absence it will lay it on my Lord of Strafford But we say the Warrant was made before and to Pygott as well as Savill One Witness says Pygott himself did vouch my Lord of Strafford to have given him his Warrant it was my Lord Lieutenants Warrant he was my Lord Lieutenants Sergeant the Soldiers were my Lord Lieutenants Troopers the Soldiers laid by Savill are by my Lord Deputies Warrant proved to be under his Hand and Seal and many Witnesses are in Savills Case produced And whereas my Lord says no Warrant was shewed if himself had not excepted against it a true Copy had been produced and if none be shewed it is his own fault but my Lord of Strafford should have shewed it if any thing was in it to qualifie the matter for it is proved he gave authority and by his authority the Soldiers were laid Whereas my Lord says this cause was not complained of Berne gives the reason he durst not complain there but came over hither to complain and hath prosecuted the complaint My Lord of Strafford was pleased to aske Ardah what he heard concerning laying of Soldiers It is true he and Savill mention the laying on Soldiers on Fitzgerard but it was for the Kings Money and they spake it not on their own knowledge but by hear-say and it was done but once and whether since the Instructions it doth not appear and if it was since then it was by consent and this Fitzgerard lay out as a Rebel and if it was done it was done under that capacity To that point a Witness was produced Mr. Kennedy being Interrogated Whether he the said Fitzgerard did did not lye in the nature of a Rebel when Soldiers were laid on him He Answered That this Fitzgerard was Sheriff in the County of Corke and failing in his Accompt at the time Process was issued on his Recognizance and he held out three or four years That he the Deponent being then the Kings Remembrancer thought it his duty to acquaint the Barons of the Exchequer that he could not be found but kept abroad in the Woods being a man of good Estate and then on acquainting my Lord of Faulkland with it a Warrant was procured to the Sergeant at Arms. Henry Dillon says nothing of the Usage but pretends one Thimbleby said he had a Warrant but whether he had a Warrant or did execute it appears not And if it be so it appears not for what time when it was nor out of what Court the Process came upon which the last Assessment was made This is all offered in matter of Fact my Lord proceeds to other justifications First That His Majesties Deputy is so qualified that he hath power to resist Rebels and secure Peace and it is true he hath power but he hath no power at all to make a War especially in time of Peace now all things are appeased there and no occasion is given of a War only that Soldiers be maintained for a Nursery of Martial Discipline but there is no occasion of Soldiers to be laid on the Kings people He alledged a Stat. 10 H. 7. that no War or Peace should be made but by the Deputies Licence and therefore he infers that by the Deputy War might be made It is true where there is hostility or Rebellion then to oppose and repress that Rebellion the Deputy may make a defensive War but to do it in time of Peace on the Kings people that are under the Government of His Majesties Laws is to make War on the Kings Subjects under His Peace and Protection and consequently on the Sovereign Power that doth protect them He would compare it with forcible Entry but the circumstances do very much diversity it from Riots or forcible Entries It is done by Soldiers that come furnished with all warlike Ammunition brought from Garrisons the places of War brought with an Officer brought in numbers and though the Lord of Strafford extenuates the numbers yet the Sergeant at Arms was unlimited So the power given to him was a vast power to take such a number of Soldiers as he should think fit His Lordship observes that the Stat. of 18. H. 6. cannot conclude him because Statutes here in England do not include the King unless he be nominated in them the Committee expected not to hear this reason That because the Kings Sacred Person is not mentioned in a Statute who cannot be within the blemish of such an offence therefore it
but a Charge to call him to Accompt rather than to Condemn him or Judge him by For it is the Remonstrance of the Commons House that have not power to give an Oath and so may be easily misinformed when they want a Meanes to try out the Truth But for the Great Fees exacted for these Licences Here are two of his Secretaries imployed in this business whom his Lordship desired might be Examined What Fees they demanded and had in this particular He added That he durst say Thousands that went over without Licence were never question'd for it nor any but where there was Cause as in Case a Man was ill-affected and then he was looked after Mr. Slingsby being Asked about the Fees for Licences He Answered They did give the Clerks directions never to demand any Fees for Licences and that the Clerk never accompted to him for above Five shillings for any Licence which he said was voluntarily given not demanded Mr. Little being Asked to the matter of Fees He Answered That he Charged his servant still to demand no Fees for Licences except of Privy-Counsellors or Officers of the Army and when they had Licences they paid for them and the Fee of the Licence from the Captains was 20 Shillings the ordinary Fee for others Five shillings and many times none at all was paid And then my Lord of Strafford added That he had now gone over all the particular Proofes as near as he could remember them And the last he shall insist on is this That there is nothing in this Charge as he conceives of Treason and he must needs Conclude every Article so in regard Treason is the only thing he is Charged withal And he conceives he hath given such Answers to this that nothing shall convince him before their Lordships of Treason And for matter of Misdemeanors he knowes their Lordships will give him time to examine Witnesses and leave for his Counsel to be heard and then he shall Acquit himself as becomes him and so with all humility submit it to their Lordships And thus his Lordship concluded his Defence ARTICLE XVI REPLICATION Mr. Palmer Replyed thereunto in substance as followeth THat my Lord of Strafford in the Preamble of his Defence hath made a great Profession to their Lordships of his endeavour to preserve the Laws in Ireland and that no Deputy did ever less interrupt the Legal Proceedings Which though it be not the matter of the Cause he desired leave to put their Lordships in mind how much he hath interrupted the legal proceedings because it hath been another part of his Army That it hath been fully proved How he Assumed to himself out of the ordinary Jurisdiction Causes to be heard before himself on Paper Petitions which how grosly he hath determined their Lordships have heard And whether this be not an Interruption to legal proceedings he submitted to their Lordships and also left them to Judge how contrary it was to this Profession of my Lord of Strafford To the Matter of the Defence viz. That these Particulars were not complained of Mr. Palmer Answered It is true There is no particular Complaint in the Article but my Lord of Strafford in his Answer said He never deny'd Licenses to any man to go into England and that puts it in Is sue and gives occasion to prove his Denyal To the Reasons of his Propositions Mr. Palmer observed they were viz. Because he was responsible for the Justice of the place and therefore good reason his Integrity should be tried before any Complaints came The Officers and Ministers of Justice should not be drawn from thence on every Complaint where they might have redress at their own doors These are fair shows and something must be said to induce His Majesties Allowance and as much as Art and Skill could invent to prevent the Subjects access to their Sovereign with Complaints of Injustice and Oppression It must have a great deal of Wit and Art to colour it and so he uses it Their Lordships cannot expect it from him nor will their Lordships expect it in the Proofs that he should tell His Majesty he doth all this that they may not complain of Injustice and Oppression for this is a hard thing to be done But the thing it self showes for what end he obtained it his many Acts of Injustice prove Quo obtentu this Proposition was gotten If this had been gotten on the fair grounds pretended then upon Complaints here His Majesty in consideration of them had had it in his own power to have referred them back to Ireland if they were misinformed but meanes were used that they should not come to the King the Barr was laid with the Secretaries and Masters of Requests that His Majesty should by no means know as to consider of the fitness or unfitness of them For the Matter of the Judges and Ministers being withdrawn it is true they were most likely to be complained of but when they cannot be complained of but to my Lord of Strafford this draws a great Dependence on him and makes them amenable to his Will As in the Sentences wherein they concurred and whereby he would justifie himself Again the discouraging of Complaints in this Proposition and the Arguments used to His Majesty provided a Punishment for Clamorous Complaints so that they which had Cause of Complaint being terrified with a Punishment though they were not Clamorous might now be made appear to be so For the Authorities whereby he justifies this Proclamation First He insists on the Lawes of that Kingdom that by the Law they could not depart the Realm and that by an Implication 25 H. 6. But Mr. Palmer observed that that is no Prohibition of coming out of Ireland but if any Liege man c. shall by the Kings Command depart the Realm his Lands should not be seized and the only inference can be That if others went without License their Lands might be seized but not that their persons might be restrained from coming without Licence There were such Provisions and Ordinances in Ireland to which the Instructions following and His Majesties Letter had Reference That those persons that had great Possessions in Ireland in time of Discord were to be resident upon their Land Personally so that their Land might be maintained against Incursions And this is plain by a Statute 28 H. 8. Ca. 3 Reciting the Inconvenience from those they call Absentees That is that having large Possessions by Descent or Graunt did Demurre in England and left those possessions unsafeguarded and by this means the Lands which His Majesty had been at great Cost in Conquering were regained by the Irish and therefore there was a Penalty on those Lands and it is provided that the King shall be Entituled to the Duke of Norfolkes Land for that cause But here is only a Provision that the Lands should be safeguarded but not that the Subject should not resort to the Kings Majesty for
redress of Grievances and Oppressions and that is in the Charge against my Lord of Strafford For the Instructions of May 1628 on a Petition by the Inhabitants the Petition was That they might make personal Residence at least half a year but that related to Undertakers and others that have Lands and Offices there and so was for the same purpose that the Lands should be safeguarded But certainly there is great difference between Residence and Restraining a Resort hither to make Complaint to His Majesty It is true there should be a Residence they were not to depart without Licence but if they had Temporary occasions or Reasons of Complaint it is not against the Instructions that Licences should be deny'd My Lord insists on this that it is the Law of the Land and agreeable to the Laws of this Land and he would willingly bring the Laws of this Land into Ireland But under favour the Laws of this Land are not so It is no offence or Contempt for any Subject to depart this Land without Licence Our Books are so The Statute 5 R. 2. did provide that none should depart without License a general Prohibition except they were Lords and good Merchants Therefore by the Law before that Statute was any Man might depart without License and that Statute is since Repealed by a Statute made 4 Iac. So that by the Common Law of England the passage is open again and it is no offence at all to depart without Licence It is true His Majesty may restrain by a Ne exeat Regno c. or by a Proclamation on special Causes but till then the passage is open and they may depart by the Law of the Land and the Penalty is only in the Case of the Absentees My Lord alledges the Kings Letter There is as much skill as can be for a Defence The Proclamation reciting these Letters and the Instructions But the grounds are false for that which is appliable to a Residence for Defence my Lord makes a ground to restrain all kind of Resort My Lord takes notice of his Moderation in Executing the Kings Letter in respect of the distance of time between the Letter Ianuary 1634 and the Proclamation Sept. 1635. If it had been a Service to His Majesty it should have been speeded sooner It was a disservice in being so long delayed if the matter required it but there was something else It was not fit for my Lords opportunity till then and when it was fit he publish'd it and not before My Lord deserting his Justification by the Proclamation as a Temporary Law as he may for Proclamations be not Temporary Laws in case they be against Law but Publication of Lawes Now he insists on this That by his Commission he himself hath not power to publish Proclamations but by advice of others So the power is not in himself alone for he had the Concurrence of other Counsellors joyned with him Mr. Palmer desired their Lordships to observe his own Answer and the Reason why that Unreasonable allowance was got which is That he is Responsible for the Justice of that place and if he be so he takes but their Concurring with him in a thing so much against Law it may make it an Offence in them it cannot extenuate his Offence He insists on a necessity of this that it is fit for that Kingdom and wishes it might be so continued and that in several respects in respect of O Neale and Tirconnel and the Rebels that adhere to them and that it might be dangerous if those in Ireland should go out at their pleasure Indeed if their Resort were thither it were true But the Commons having offered nothing but their Request to come into England where there is no O Neale nor Tirconnel to Complain to the King of Oppressions and however my Lord of Strafford doth conceive it fit in Ireland their Lordships hear by the Remonstrance what Just Fears they apprehended It is an Innovation brought on them which was never on their Ancestors from the time of Henry the Second The next thing was his Demeanor in the Execution of this Proclamation Then he made that General Protestation That these particulars were not Complained of To which Mr. Palmer said He must Answer as before My Lord hath put it in Issue That he never did deny Licence which casts the Commons on Proof That that in particular hath been deny'd The Case of my Lord of Esmond is observed to be in time 1638. And whereas it is said A License was deny'd because there was some Charge against him of practising against Sir Walsingham Cook This needs no other Answer but what Sir Adam Loftus has given That the business was continued in Examination no longer than three weeks or thereabouts and was then dismist whereas the Denyal continued longer But if it be truely informed This demand of Licence to come over was in August the Information came not till September after so that the Information cannot be applyed to avoid the Denyal of the License Torky being Asked the time of year the Summer Assizes used to be in Ireland He Answered That he hath observed them since his knowledge of that Kingdom to be in September for the County of Wexford Whence Mr. Palmer Inferred That if the Petition were in August the Assizes in September this could be no Reason why in August an Information in September should be the Cause of denying the License My Lord sayes afterwards He did give him a License but your Lordships may remember it was not till the opportunity was past of examining Witnesses And whereas it hath been said in Answer That my Lord of Esmond did joyn and Riley was produced yet Riley sayes There were two Defendants Sir Pierce Crosby and my Lord Esmond and for whom the Commission was he cannot tell And if there were a Commission it is very ordinary to have more then one and if it be desired a second is just as the first Mr. Ralton sayes he is confident there was a Commission if there was so Why is not that Record produced The next particular was my Lord Roche and the Answer to that is That there was an Information against him in the Starchamber It is true but that had ceased half a year before he desired a License and therefore could not be a cause to hinder a Licence For Dermond Mac-Carty it is said his Petition was for liberty to go over for breeding and therefore he might go to Doway or St. Omer c. But their Lordships might observe this Petition was to come into England and the occasion was his Relation to that Suit and that is conceived the cause of denying that Licence for my Lord could not but know that Mac-Carty had relation to the suit before him which was decreed after a double dismission and it is no Exception that the Witness is his Sollicitor in the Cause It is ordinary that the Sollicitor be admitted a Witness and the best
whether it were or no hath denyed Licence without Fees and that certain Fees were demanded shall be made appear Whereupon Richard Wade being Interrogated whether Fees were not demanded by the Secretaries for Licences of mens passage into England and what Fees He Answered That for Fees for my Lord of Esmond's Licence he was demanded 24 or 25 s. Patrick Gough being asked to that point He Answered That he remembers he hath taken Licences twice or thrice for my Lord Viscount Mountgomery and for every one of them paid 25 s. and for three of his servants 25 s. and that those were demanded for he the Deponent would have given less if they would have taken less and that these were demanded by Secretary Littles Servants Mr. Glyn desired one word more and the rather said he because it seems my Lord of Strafford slights this Article which is the most proved and the least answer'd of any yet heard their Lordships may observe what is laid to his charge the subverting of Laws and the introducing of a Tyrannical Government And before he goes about his work he puts off all means of redress beforehand that if he give any occasion of offence he that is offended shall not possibly have remedy His justification is because of that great danger that may ensue for they may joyn with Rebels but that 's a pretence Indeed he used that Argument when he moved it to His Majesty but it was that they might not come over to make complaints That his Propositions were made and entred at the Council-Table here he aggravates his offence and Mr Glyn did thus illustrate it That if a man come to him and desire leave to lye in his House if he gives the party leave and he by that means takes occasion to betray him or to commit Felony or steal his Goods That leave was well given but it aggravates the others offence when he doth mischief to him that lodged him So my Lord of Strafford's Proposition was fair but if their Lordships observe the subsequence of it that he might exercise his Power and leave the Subject without means of redress but they must come to himself for it Mr Glyn further said he thinks had he suffered under his hands after the example of my Lord Mountnorris he should be loth to say to his face he would complain An Act of Parliament he produces for his Justification which is plainly against him for it shews there were some that held Lands there by tenure and if they were not resident they forfeited Then comes the Act and says That those whom the King commands to be absent they shall not forfeit which shows they had a personal Power without Licence so that the very Law produced is expresly against him and there Lordships may see by his own Proposition the occasion of his introducing this Letter And Mr. Glyn concluded That he supposes that my Lord of Strafford hath made no answer to that And so the 16 th Article was finished and the 17 th and 18 th being for the present set aside the Committee that managed the Evidence proceeded to the 19 th Article THE Nineteenth Article The Charge 19. That the said Earl having Taxed and Levied the said Impositions and raised the said Monopolies and committed the said other Oppressions in His Majesties Name and as by His Majesties Royal Command He the said Earl in May the 15th year of His Majesties Reign did of his own authority contrive and frame a new and unusual Oath by the purport whereof among many other things the party taking the said Oath was to swear that he should not protest against any of His Majesties Royal Commands but submit himself in all Obedience thereunto which Oath he so contriv'd to enforce the same on the Subjects of the Scotish Nation inhabiting in Ireland and out of a hatred to the said Nation and to put them to a discontent with His Majesty and His Government there and compelled divers of His Majesties said Subjects there to take the said Oath a gainst their Wills and of such as refused to take the said Oath some he grievously Fined and Imprisoned and others he destroyed and exiled and namely the 10th of October Ann. Dom. 1639. He Fined Henry Steward and his Wife who refused to take the said Oath 5000 pounds apiece and their two Daughters and James Gray 3000 pounds apiece and imprisoned them for not paying the said Fines The said Henry Steward his Wife and Daughters and James Gray being the Kings Liege people of the Scotish Nation and divers others he used in like manner and the said Earl upon that occasion did declare that the said Oath did not only oblige them in point of Allegiance to His Majesty and acknowledgement of his Supremacy only but to the Ceremonies and Government of the Church established and to be established by His Majesties Royal Authority and said That the refusers to obey he would prosecute to the Blood Mr. Whitlock proceeded to open the 19th Article setting forth in substance as followeth THAT the next Article in which they shall proceed to make good the Impeachment of all the Commons of England against my Lord of Strafford is the 19th Article That their Lordships have heard his demeanor to the Subjects of the Irish Nation what power he exercised over their Liberties their Properties their Lives That he used His Majesties Subjects of Scotland in the same manner exercising an unlawful power over their consciences by imposing a new and unlawful Oath on such of them as lived in Ireland That the Kings Subjects of the Scotish Nation have the same benefit of protection from His Majesty and His Laws as his other Subjects have since they are bound to the same Allegiance to the same Obedience and therefore what ought not to be done to any other of the King's Subjects ought not to be done to them That a new Oath cannot be imposed without Assent of a Parliament yet my Lord of Strafford is pleased to enjoyn this Oath to contrive it to threaten them that desired to consider of it he sends forth Commissions to the Gentry in the Countrey to tender it and such as refused were brought up by Pursivants and Officers to Dublin and committed to Prison and divers of them rather than they would take this Oath were fain to forsake their Families their Estates and Lands and fly away and were exiled the Kingdom That the Charge particularly mentioning the sentencing of Henry Stuart his Wife and two Daughters and one Iames Gray above the age of 16. who for refusing this Oath were Fined Stuart himself 5000 l. his Wife 3000 l. his Daughters 3000 l. apiece and Iames Gray as much and in their Sentence my Lord was pleased to declare himself so bitter against that Nation and so much resolved that this Oath should be taken by all of them though against Law That he publiquely said That those who refused to take the Oath
he would prosecute to the Blood That the Scotch Nation were Rebels and Traitors and that if His Majesty should please to send him back to the Government of Ireland he being then to come into England he would root out the Scotish Nation root and Branch And further did declare That this Oath thus enjoyned did bind to the Ceremonies of the Church not only those that were establish'd but such as were to be established so that the Oath had some affinity with the Oath in this Kingdom not long since Sir Iames Mountgomery being Interrogated what he knew concerning the contriving and imposing of the said Oath He Answered That he was very unwilling to give any Testimony in this particular because he knows there is a Petition for this Oath to which Petition his hand is among others and therefore some perchance who doe not know the passage of the business may think there was a discordance and a disagreement between the Instrument under his hand and the Testimony he must give being put to it upon Oath but he hopes there shall none appear when he hath spoken That in April as he remembers 1639. My Lord-Lieutenant then Lord-Deputy did write down Letters to the most part of all the Noblemen and Gentlemen of the Scotish Nation dwelling in Ireland in the Province of Ulster especially amongst whom the Deponent received one Letter himself and he was required by that Letter as the rest whose Letters were to one effect to repair to Dublin 27 April as he remembers that his Lordship might confer with them about some affairs that did concern His Majesties special service and therefore they were required not to fail to be there that day That thither they came and being come my Lord Viscount Mountgomery being not well in his health having got a cold in his journey the said Lord Viscount sent to excuse himself to my Lord Deputy that he was not able to come abroad for a day or two and my Lord Deputy sent him word he would come to his Lodging and gave warning to the rest of the Gent. to meet his Lordship there the next day at two of the clock that there they did all come and there were the Bishops of Down and Raffo and some others of the Clergy And being met my Lord Deputy came thither and told them he was there as their friend to acquaint them with some things that did much concern them and to give them his advice He did then tell them of great disorders in Scotland of great jealousies raised against them and that they who were present might possibly be favourers or furtherers of those distempers but he added that he hoped better of them however that it behoved them to do something to vindicate themselves from this aspersion and that they should offer it freely of themselves and not stay till it were imposed by Authority That he did insist further in his Speech and insinuated to them what was expected they should do and that they should be suitors for it That an Oath was expected according to the example of Scotland as they had there joyned in a Covenant To this purpose he did deliver himself That when his Lordship had ended the Bishops of Raffo and Down one seconding the other gave his Lordship thanks for his Lordships favour to them and told his Lordship that as those in Scotland had joyned together and conspired by an unlawful Oath so they here would joyn in a lawful oath in opposition to that and would petition for it to his Lordship It was seconded by the Bishop of Down and some others of the Clergy there little being spoken by others That the Bishop of Down desired he might draw it but the Lord-Deputy put it on the Bishop of Raffo That some of them thought it a little too hasty and when my Lord was risen up he the Deponent took on him to speak to his Lordship and told him the things spoken of there were not charged against the Nation but against the Covenanters in Scotland and did not concern themselves and therefore thought under favour that it should not be amiss to think what they should doe before they appointed a man to draw a Petition or to this effect That his Lordship was pleased to turn towards him something in choler and to tell him Sir Iames Mountgomery you may go home and petition or not petition if you will but if you do not or who doth not or to this effect shall do worse That they seeing his Lordship had resolved it should be so there was no more said The Bishop of Raffo went with the Petition in his hand to some of them being desirous to see it to contribute their advice to them and somewhat suspecting this Train of the Gentry that night again the said Bishop met with my Lord Mountgomery Sir William Stuart Sir Iames Craig and himself the Deputy and brought two draughts of Petitions the one indeed was down right railing the other not very mild he thinks howsoever they did desire to have qualified it something in words but the Bishop told them it was already so cold he was ashamed of it and could not engross it till he had shewed it my Lord Deputy to know whether he would accept of it The next morning some of them saw it with him and took exception at some bitter words that were in it and the Bishop said it was not to be disputed for my Lord Deputy had seen it and it was done with his good liking After that it was engrossed they met to have Signed it and some took exceptions that there was too great a latitude in it and desired it might be entred That they should be in the case with other His Majesties Subjects but the Bishop said he could alter nothing without my Lord-Lieutenants knowledge and he would go to my Lord with it and to my Lord Mountgomery They intreated to go along with him and my Lord was willing these words should be added That it should be in equal manner and measure with other His Majesties Subjects so the Petition was ingrossed and signed and was afterwards delivered to his Lordship That then my Lord Deputy desired them to appoint five or six of their number to wait on his Lordship and some of the Council the next morning to confer concerning the Oath and they made choice of six the Lord Mountgomery Stuart and these two Bishops Sir William Stuart and himself the Deponent when they came his Lordship caused the Clerk of the Council to read the Oath that was to be Administred and some other debates they had some offered some motions to his Lordship for some words by way of explanation as that they should not protest against any of His Majesties Royal Commands and it was desired it might be explained By just Commands or Commands according to Law My Lord did then tell them they were not to expect any other Commands from His Majesty the Oath was for no
in due obedience they are bound and obliged to be So it was not Caeca obedientia Sir Iames sayes That he the Earl of Strafford did administer the Oath This one single Testimony but to tell their Lordships plainly the truth he confesses he did give that Oath being not only obliged by the Council but they directing him and that the Petition was not got forcibly from them it appears evidently for there is nothing against it Sir Iohn Clotworthy sayes That on this Oath administred great multitudes went away but he names not one of that multitude and if they did go who could help it If they would go away rather than give such a pledge of their Allegiance he should have been loth to have restrained them to make them stay against their Wills For the Instructions that went with the Commissions Sir Iohn Clotworthy very truly says they were under the hands of himself and all the Council but what these Instructions were he cannot expresly say and that under favour he conceives is no witness and so is no Charge on him But to express his rancor against the Scotish Nation next come the words proved by Richard Salmon the Schoolmaster and he swears positively and directly that he my Lord of Strafford spake these words the 10 th of October 1639. The plain truth is that he the Earl of Strafford was come into England in September before and if that man shall notwithstanding undertake positively to swear that individual day he is less to be credited The said time of his coming into England was confirmed by two Witnesses Mr. Thomas Little being upon my Lord of Straffords motion asked about the time of my Lord of Straffords coming from Ireland He Answered That my Lord Lieutenant came from Ireland Thursday 12 Sept. 1639. and landed the next day and came to London 21 Sept 1639. Mr. Ralton being examined to the same point Answered He very well remembred my Lord came to London 21 Sept. 1639. For the words themselves That the Scotch Nation are Rebels and Traitors and that he will root them out Root and Branch the Witness is a single Testimony their Lordships see how true he is in the first part of it and he is equally true in the second The other Testimony is one Iohn Loftus and he sayes my Lord of Strafford wanted terms to express the heinousness of that offence and he hoped to have such of the Scotch Nation as would not submit to the Ecclesiastical Government rooted out Stock and Branch from that Kingdom And this said my Lord is quite another thing and no way agreeing with the former but nearer the truth and far from rooting out the Scotch Nation for there are but few that submit not to the English Church-Government So there is left only one single Testimony of the Schoolmaster that hath not learned his Lesson perfectly but is taken tardy as if he were a Scholar and the other makes it quite another business And as they have offered these things and have not proved them by more than one single testimony and he a very infirm one He my Lord of Strafford besought their Lordships that he might call for a Witness or two that were there and heard all that passed Sir Philip Manwaring my Lord said was a Judge of the Court and nearer him than the Witness and likely to hear more distinctly Sir Philip being asked what the words were and of what nature they were whether they were not restrained to the Faction of the Covenanters and them that would not take the Oath in Ireland and not the Nation it self He Answered That he was present that day and sate within the Court and within hearing so that he heard every word that fell from my Lord Deputy it is true his Speech there was very long but he shall repeat no more of it than that he conceives pertinent to the present occasion that is Whether he should say these words Against the whole Nation or speak only to the Faction and properly and pertinently shun the word Nation It was on the occasion of Mr. Stuart who stood at the Bar with his Wife and Daughters and Gray My Lord telling him he was sorry that bearing the name he did he should be the only man that carried himself with that disobedience and my Lord expatiated very much and in conclusion said That Scotish Nation with respect I speak of it for I know there be among them gallant and worthy persons and I have great experience of them and of the Loyalty and Faith they bear to their Sovereign but there is a Faction amongst them which I shall endeavour as near as I can to bring to that obedience at least to keep them that are within this Kingdom to that Obedience Loyalty and Duty that Subjects ought to bear Being asked Whether my Lord did not express himself at that time that he would not take on him to judge any thing of the Action in Scotland not knowing the Law of that Kingdom but such of that Nation as are here in Ireland if they will not submit to the Government of Ireland he will do the best he can they shall not stay here He Answered That it is very true my Lord Deputy did at that time speak to that purpose as near as he can remember in truth viz. That he did not know the Laws nor Customs of that Kingdom therefore would say nothing to them but for so much as concern'd the Kingdom of Ireland and the keeping of the King's Subjects in Loyalty and Obedience there he would do his best to preserve that Being asked on Mr. Glyn's motion whether he heard these words Root and Branch or Stock and Branch He Answered In truth he did not Robert Lord Dillon being asked to the words spoken by my Lord of Strafford in the Castle-Chamber at the Sentence and how he expressed him-himself concerning the Nation of Scotland He Answered That he confesses it hath been his custom and it may be it is an ill one never to mind words spoken in the place unless he supposes he shall be called to account for them he remembers my Lord spake of the refusing of the Oath and of some rigor to them that should refuse it but for particular words he members not Sir Adam Loftus being asked what he heard of these words He Answered That he was at the Censure but truly he cannot burden his memory with any the words that tend to this question It was a great while agoe and he little thought they should come to any recapitulation of them and in truth he doth not remember them Being asked whether Stuarts Sentence was not given by the unanimous Vote of the whole Council He Answered Indeed he believes it was Sir Philip Manwaring being asked what he heard the Master of the Rolls say that day He Answered That coming from the Castle-Chamber waiting on my Lord Deputy to the Castle where many Dined and all that
for my Lord of Canterbury if they have examined him it was before his Charge and they shall make no use of his examination neither is he a person capable of being a Witness being now charged and in some particulars for conspiring with the Lords at the Bar and therefore they submit it whether it be convenient he should be examined though if they shall urge his Testimony it will be something and likewise their Lordships over-ruled it in Sir George Ratcliff's Case But my Lord of Strafford submitting all to their ordships good pleasure it being his part only to move as his Lordship said and do what their Lordships should in their wisdoms think fit The Lord Steward declared their Lordships pleasure that Sergeant Glanvill and the other Witnesses might be reserved to be heard to morrow viva voce and that the examinations of my Lord of Northumberland and my Lord Keeper might be likewise reserved for my Lord of Canterbury it was observed that he was examined before the Charge and that the Gent. of the Commons-House intend not to make use of his Testimony And so the Committee proceeded to the next Article Mr. Whitlock proceeded putting their Lordships in mind that they had been pleased to take a view of my Lord of Strafford's Courses in Ireland which have manifested his designe to subvert and change the Law and bring in an Arbitrary Government That his execution of that Arbitrary Power upon the persons Estates and Lives of the Kings Subjects there hath been a clear proof of this his designe They shall now proceed to show their Lordships what his designe was in England and Scotland as the same was set forth in the 20th21 22 23 and 24th Articles together with the matters contained in them they being interwoven and depending one upon the other and so are but one business My Lord of Strafford did thereupon offer that he conceived it was agreed they shoul go Article by Article that his Memory is short and his Abilities weak and if three or four be brought together his Memory will not serve him to give them that account that otherwise he should be able to do And since the order of proceeding Article by Article was by consent he besought that course might be persued not giving consent to the alteration of it But Mr. Maynard desired leave to remember their Lordships that they offered to go Article by Article till they came to some that were woven together which might change the course They find much time is lost between Article and Article and there will need no great Consideration of of these being only about words and when my Lord of Strafford stands by way of Defence he may not inform them which way to proceed and they will proceed no way differently from what was formerly proposed My Lord of Strafford humbly appealed to their Lordships Whether the Favour offered him for recollecting his Notes had spent much time and added perhaps if another man had been in his case he would have thought as long a time as he had taken necessary tho a far abler man than himself but this inverts the whole Order agreed on and brings him to a great inconvenience and therefore he desired he might Answer them single in the mannor as was agreed upon To which Mr. Whitlock Answered That if the Articles be not proceeded in together and as having relation to one another they will loose much of the Application Evidence and Proof and he conceives will be more easie to my Lord of Strafford And for the Order mentioned there was under favour no order in it but when my Lord of Strafford made the motion Mr. Whitlock said he took the boldness to inform their Lordships that he should proceed on some of them altogether which my Lord of Strafford did not deny and their Lordships approved of and according to that they desire to proceed Mr. Glyn adding That he never knew before this time a Prisoner at the Barr prescribe a Method to the Evidence especially if he be charged with High Treason and my Lord may afford them the same favour they do him for if he will answer Article by Article he may but as they leave him to his course so they desire to take their course But in that case my Lord of Strafford desired he might have time to Answer till to morrow morning and professed that he should be extream unwilling to offer any thing that became him not in Humility and Modesty or to prescribe a course to any he being in his condition but he trusts he may with Humility and Duty offer to their Lordships consideration these things that may be for his Assistance and Defence without offence to any So the Committee that managed the Evidence for the Commons-House had direction to proceed as they had propounded Mr. Whitlock then proceeded to open the Charge of these Articles which will refer to prove a designe of my Lord of Strafford against Scotland to subvert their Parliament and our Government here and to bring in an Army on us to force us to submit to an Arbitrary Power First they shall apply themselves to prove his designe against Scotland which lies first in the Charge That he advised the King two or three times that the demands made by the Scots in their Parliament were a sufficient ground for a Warr against them notwithstanding that Parliament was indicted by the Kings Royal Authority and they have their liberty to Propound and Treat Your Lordships may remember what my Lord of Strafford said at the sentencing of Stewart in Ireland whereby he expressed his hatred and rancor towards them and his opinion of them at that time being after the pacification made and he continues in the same ill opinion of them and to give the same ill Council That at another time he told His Majesty the demands of the Scots in their Parliament were not matter of Religion but struck at the root of Government and that it was fit to punish them by force That he caused the Ships of the Scots in Ireland to be seized That he procured the Parliament in Ireland to declare their assistance and give supply for a Warr against Scotland and that several times he endeavoured to perswade His Majesty to an offensive Warr against the Scots under which particulars will fall in proof his design against Scotland His design against England was of the same nature which will appear by his words and by his Councils and by some Speeches given out by those that have very near Relation to him and are his creatures who agreed with his own words likewise They shall prove to their Lordships That on a discourse between Sir George Ratcliffe and Sir Robert King concerning the War with the Scots and my Lord of Straffords being engaged in it Sir George Ratcliffe told him We are ingaged in a War with the Scots and we must go on with it
therefore he desired to touch on them a little The first proof hereof Is the Testimony of Mr. Comptroller that he the Earl of Strafford should say something of deserting the King but he remembers not the particulars In which words he conceives there is nothing that can make him Criminal before their Lordships The next is of what my Lord of Bristol sayes whose Discourse came in upon some Difference between the Tenants of his Lordship the Earl of Bristol and his the said Earl of Strafford The discourse he remembers very well my Lord of Bristol honouring him with a visit when he was sick and he remembers something was spoken to that effect and purpose as it is in the Testimony But What is this as to the Charge laid against him In the Charge there are only such words that may prejudice him but nothing that may forfeit his Life Estate and Honor. As in the case of Extream and unavoidable necessitie viz. The Invasion of a Foreign Enemy when there is not time to call a Parliament And the King may in that case use as the Common Parent of the Country what power God Almighty hath given Him for preserving Himself and His People for whom He is accomptable to Almighty God is a thing quite different from what is in an ordinary Case He confesses his opinion is the King hath a power absolutely to use all possible means for the safety of the Publick In these Cases He hath a Power given Him by God Almighty that cannot be taken from Him by others neither under favour is He able to take it from Himself If this be a fond and foolish Opinion he craves their Lordships pardon but he thinks a man should not forfeit his Life and Honor and Posterity for a foolish Opinion God forbid that Common-Law or statute-Statute-Law should make that Treason in any Man So that he acknowledges There was some such discourse But all things taken together carries the State of the Question quite another way then when taken to pieces My Lord of Bristols Testimony sayes further But my Lord of Strafford then said The King was not to be Mastered by the frowardness or wilfulness of His People or rather by the disaffection of some particular men To which words he sayes If he did remember them he would acknowledge them But being then in that condition delivered from a great and long sickness infirm and weak both in the powers of his mind and faculties of his Body if he be not able to recollect every thing it is no marvel But he relies so much on the honor and nobleness of my Lord of Bristol that seeing he sayes that he said it he will not deny it though he cannot remember it But he must say withal That his Testimony cannot work any thing towards him further then a single Testimony can do in this case and therefore without offence he shall desire in this particular to reserve that benefit to himself that the Law in this case gives him in such sort as hereafter he shall be bold to put their Lordships in mind of that is how far a single testimony may work to the prejudice of a Man charged with High Treason The next Testimony is my Lord of Newburgh That he heard me the Defendant say or words to this effect That seeing the Parliament had not supplied the King His Majesty might take other Courses for the Defence of the Kingdom These words I do said the Defendant acknowledge And he trusts there is no offence in this saying for I conceive that the King is not secluded nor any one else in a fair and just and an honourable way from doing the best for himself and his own preservation but those other Courses that were intended were just and lawful Courses He must put that grain of salt into all the rest of his Discourse that it was meant of no other wayes or Means but such as were allowed by the Laws of the Land and were fit for a gracious and pious King to use and so understood he knows no reason but the King should be left to supply Himself in all the fair and just ways he can if the Parliament should not supply Him The next Testimony is my Lord of Holland's and his Lordship sayes That at Council-Table my Lord of Strafford should say That the Parliament having deny'd the King gave Him an advantage to supply Himself otherwayes But he sayes still other lawful wayes It gave Him advantage to use His Prerogative in lawful wayes further then otherwise perhaps out of his goodness He would have done Therefore giving those words that Interpretation he conceives they cannot be layd to him as a Charge of High-Treason The next is the Testimony of my Lord of Northumberland who sayes My Lord of Strafford said That in case of necessity and for Defence and safety of the Kingdom if the People refuse the King might do every thing for the Preservation of His People This brings it much to the other business before spoken of it being in case of necessity for Defence and Safety of the Kingdom and to be used for preservation of the People for he must needs say That is his Opinion grounded upon that Maxim Salus Populisuprema Lex In these things when ordinary formes cannot be had for when they may be had to go to extraordinary is not right but when the ordinary wayes fail and the occasion gives no time God forbid but the King should employ the uttermost of His Power Wisdom and Courage for preservation of Himself and His People And to say it with limitation under favour doth state the Question quite otherwayes then if the words were taken alone and not put together But that with these Limitations he spake both these things and diverse others will more fully and clearly appear in the next succeeding Article for here he is charged with speaking things at large but there at the Council-Board and there it will come in properly At which time he shall desire to examine some of their Lordships and it shall appear words of this Nature went alwayes in this sort from him in case of a Foraign Invasion in case of an Enemy actually entred or to be entred and not otherwise which makes it another Question then as by the Antecedents and Consequents it is laid in the Charge Besides this offence is but words spoken by way of Argument in Common Discourse betwixt Man and Man without any further or other proceeding or Execution upon these words and Shall these be brought against a Man and charged on him as High-Treason God forbid that ever we should live to see such an Example in this Kingdom A matter of infinite prejudice and danger to every Man for when that is done no Man can be safe Is there any thing more ordinary then for Men in Discourse to seem to be of a Contrary Opinion to what they are to invite another Man to give Reasons perhaps to confirm him in his own
the secret reservations men ought to speak things withal for we ought to think just things and that men will do nothing but fairly and these are conditions implyed when we speak of the Sacred Majesty of Kings let that be implyed it could not be High Treason to tell the King That having tryed the affections of his people he was loose and absolved from all rules of Government that is all ordinary rules and was to do every thing that Power would admit that is that Power would lawfully admit and that His Majesty had tryed all just and Honourable ways and was refused and should be acquitted both of God and men The last words That the King had an Army in Ireland which he might imploy to reduce this Kingdom he denies and if the other words be fairly interpreted with the reservations granted a man in that case being spoken of so great a person as the King nothing in them can turn so much to the prejudice of the Speaker But he desires leave to offer the Antecedents and Consequents of all that he said in Council whereupon this is gathered and then they find the Case otherwise stated than as it is strained in the Charges God forbid any man should be judged for words taken by pieces here a word and there a word where the Antecedent and Consequents are left out for then Treason may be fetcht out of every word a man speaks as for example If one asks him whether he will go to such a place he tells him by way of Answer He will kill the King as soon the other swears he said he would kill the King it is very true indeed but if the other words be added it will then imply That he will be sure not to kill the King and therefore he will be sure not to goe to the place And if the words be taken together he puts the Case thus In case of absolute necessity and upon a foreign Invasion of an enemy when the enemy is either actually entred or ready to enter and when all other ordinary means fail in this case there is a Trust left by Almighty God in the King to employ the best and uttermost of his means for the preserving of himself and his people which under favour he cannot take away from himself And as this did precede these words so there were divers restrictions added to them for he says this must be done only and upon no other pretence whatsoever but for the preservation of the Common-wealth that it must be done Candidè Castè That if it were done on any other pretence whatsoever than clearly and fairly for preserving the Common-wealth that would prove it to be oppressive and injurious which otherwise rightly employed would become a Pious and Christian King and that when the present danger of the Common-wealth was by the Wisdom and Courage and Power of the King prevented and the publique Weal secured In a time proper and fit the King was obliged to vindicate the Property and Liberty of the Subject from any ill prejudice that might fall from such a Precedent and until the Prerogative of the Crown and Liberty of the Subject are so bounded that they may be rightly understood by King and People which cannot be without a Parliament His Majesty and they can never look to be happy Now if he shall make this appear to be true as he hopes he shall then he conceives he states their Lordships a quite different question from that brought against him in the Charge and brings an opinion so concluded and shut up with restrictions and with necessity and with unavoidable danger that were otherwise to fall on the Common-wealth as he trusts cannot bring any manner of ill consequence whatsoever publiquely or privately to any Creature For this purpose he desired the favour to examine some of the Noble Lords present and that First the examinations of my Lord of Northumberland might be read and they were read accordingly To the Third Interrogatory he saith That the Earl of Strafford declared his opinion That His Majesty might use his power when the Kingdom was in danger or unavoidable necessity or words to that effect To the Fourth That the said Earl did often say That that power was to be used Candidè Castè and an account thereof should be given to the Parliament that they might see it was only imployed to that use To the Sixth That the said Earl of Strafford said That this Kingdom could not be happy but by good agreement in Parliament between the King and His People My Lord of Strafford observed That this was at the very same time and let all the world judge whether he had any intention to subvert the fundamental Laws of the Land or no Next he desired my Lord Marquis of Hamilton might be examined to the Interrogatory my Lord of Northumberland was examined to Marquis Hamilton examined to the said Interrogatory viz. Whether the said Earl of Strafford delivering his opinion how far the King might use a Power after the breach of the late Parliament did not put the Case when there was an unavoidable necessity upon actual Invasion or an Enemies Army ready to enter the Land His Lordship Answered That he hears the Question and remembers the same Question was asked him formerly on his oath when he was Deponed and he then said as now he could not call to mind what my Lord said in that point Whether my Lord of Strafford did not say That that Power was to be used Candidè Castè and if it were used for any other purpose it would be unjust and oppressive His Lordship Answered That he hath heard him use those words often to His Majesty and on them or immediately after he declared his opinion That it would never be happy in this Kingdom till there be a right understanding between the King and his People and that could not be but by a Parliament Whether he did not say at that time That the present danger provided for and all which setled the King was bound to preserve the Liberty and Propriety of the Subject from the prejudice of such a precedent His Lordship Answered He remembers something of that but cannot positively say because he cannot tell what the precedent was Being asked on Mr. Whitlock's motion what time he heard these words from my Lord of Strafford in the said Second Question He Answered professing that his memory is not good and if it fails not him in this he may boldly affirm he heard my Lord of Strafford speak the words both before and since the Dissolution of the last Parliament Being asked on my Lord of Straffords motion Whether His Majesty was pleased to declare to the Lords of the Council That he had perfect and full intelligence that the Scotch Army intended to march into England He Answered he remembers very well His Majesty had frequent Advertisements of the Scots intentions to come into England he knows
spoken in full Council where he was by the duty of his Oath obliged to speak according to his Heart and Conscience in all things concerning the Kings service so that if he had forborn to speak what he conceived for the benefit and advantage of the King and People as he conceived this to be he had been perjured towards God Almighty and now it seems by the speaking of them he is in danger to be a Traitor If that necessity be put upon him he thanks God by his Blessing he hath learned not to stand in fear of him that can kill the Body but he must stand in fear of him that can cast Body and Soul into Eternal pain And if that be the question That he must be a Traitor to Man or perjured to God he will be faithful to his Creator and whatsoever shall befall him from a popular rage or his own weakness he must leave it to God Almighty and to their Lordships Honor and Justice Nothing is more common than for a Counsellor to be of one opinion when he comes out of his Chamber and to have that opinion he delivers presently after confuted and cleared by the Wisdom and Prudence of his fellow-Counsellors of better understanding than himself And in this case when opinions are thus delivered and when there are alterations of these opinions upon the very debate that an opinion thus propounded should rise in judgment to convince a man of High Treason it is very hard nay it is to be thought that this was the very case in this particular The opinion was according to his Heart and Conscience given and for any thing appears to their Lordships something was said at that Board by others wiser than himself that altered him in that opinion for there was never any thing moved by him to reinforce that proposition he rested quiet with it he offered it not again there was never any thing done in pursuance of that advice either by himself or any body else which shews he did not press it but was rather perswaded by better reason that it was fit to be let alone An opinion may make an Heretick but he never heard before that Opinion should make a Traitor And though opinions may make an Heretick yet they must be held pertinaciously and against the light of a mans own conscience here no pertinacy appears no contestation nothing done against the light of his Heart and Conscience nothing of Obstinacy Frowardness and Perverseness but simply simply indeed in all respects he did in the duty of his place deliver his opinion modestly and fairly and when he had done there he left it and persued it no further so that such an Opinion as this would not have made an Heretique much less a Traitor In the last place he humbly beseeches their Lordships not to make themselves so unhappy as to disable themselves and their Children from undergoing the great Charge and Trust of the Common-wealth Their Lordships have it from their Fathers they are born to great thoughts and are nursed up for the great and weighty imployments of the Kingdom and God forbid that any but themselves Caeteris paribus should have this great Trust that their Birth and Breeding and Ranks procure for them under the Kings Goodness But let this be admitted That a Counsellor delivering his opinion under an oath of Secresie and Faithfulness at Council-Table Candidè Caste with others shall upon his mistaking or not knowing of the Law be brought into question and every word that passeth from him out of a sincere and noble intention shall be drawn against him for the attainting and convicting himself his Children and Posterity under favour after this shall be so he doth not know any wise and noble person of fortune that will upon such perilous and unsafe terms adventure to be a Counsellor to the King and therefore if their Lordships put these hard strains and tortures upon those that are the Counsellors of State to His Majesty when they speak nothing but according to their Hearts and Consciences for we that are not of the profession of the Law are not bound to speak the Law we can tell what in our Hearts and Consciences we conceive Honourable and Just but what 's legal is another mans business This shall disable their Lordships from those great Imployments to which their Birth and Thoughts do breed them and make them more uncapable than any other inferior Subjects And therefore he beseeches their Lordships to look on him so that his misfortune may not bring an inconvenience upon themselves And so he besought their Lordships to pardon what he had said with a great deal of disorder and if their Lordships take him into consideration they will find that nothing hath appeared in him but what is Honest Just and Faithful to King and People though they were not so advised and discreet and well weighed as they ought to be yet he hoped their Lordships are so Honourable and Good as not to lay their charge to him as High Treason To the 24th Article he said he made no Answer there being nothing spoken to it And so he concluded his Defence to these Articles Mr. Whitlock did thereunto Reply in substance as followeth That their Lordships have heard with a great deal of patience this long Defence made by my Lord of Strafford and desired the like patience from their Lordships in hearing the Reply which he doubts not but they shall obtain and give a clear Answer to all my Lord of Strafford hath spoken in his own Defence and how that it comes not at all to excuse him in this case My Lord is pleased to make it his suit that their Lordships will not be guided by enforcement of words against him but by the words themselves and that Mr. Whitlock desired likewise presuming that their Lordships will not be guided by my Lord of Straffords interpretation of these words to another sence than the words bear but judge according to the clear understanding and common signification of them further than which he will not strain them Whereas my Lord excuses his words that the Demands by the Scotch in their Parliament were a sufficient ground of War because he gave no other opinion than the rest of the Council then did their Lordships may be pleased to observe That my Lord Traquair testifies that some of the Council wereof another opinion at that time and that these words were spoken before the reason of those Demands were given and that there was a clear difference betwixt my Lord of Straffords advice and the advice of the rest It is evident by the opinion delivered by him long before that time in sentencing of Mr. Stuart in Ireland where after the pacification he was pleased to call the Scots Rebels and Traitors and that he would root them out Stock and Branch that took not the Oath And he said in his Answer That when he came out of Ireland into England he
them Compel us to submit to an Arbitrary Power And so Mr. Whitlock concluded that he should trouble their Lordships no further at this time having answered most of the things my Lord of Strafford hath insisted on and if he hath forgotten them he hopes he shall be holpen by some of his Colleagues But he supposes it appeares clearly that my Lord of Straffords intentions were to subvert the Laws to set a Division betwixt the King and His People and though His Lordship is pleased to make something slight of it as not to be matter of Treason yet this compared with his other Actions declaring his Intention and Designs it proves it not onely to be Crimen laesae Majestatis but also Reipublicae Mr. Maynard seconded Mr. Whitlock and said That something he should presume to add My Lord of Strafford excuses himself because he was not alone in the Council against Scotland Thus far he was alone the rest concluded upon a Hipothetical proposition if the Demands were unreasonable then a War was fit But in two Propositions he was a lone First That before the Reasons were heard the unreasonable Demands of Subjects in Parliament were a sufficient ground for the King to put Himself into a Posture of War And Secondly That these Demands were not matter of Religion but struck at the Root of Government And when he Answers that Point he takes it for granted That if he sayes they struck at the Root of Government the Resolution was just In his Defence he insists upon two things matter of Excuse and matter of weakning of the Testimonies produced For the matter of Excuse of what he said to the King in private it was testified onely by one who was then present and at other times in Council viz. That there would be no happiness till there was a good Agreement betwixt King and People Whence Mr. Maynard observed That they think not that all he spake is nought but they produce Proofes that he did speak nought they think him not so unwise upon all occasions to speak words of so high a Consequence He hath taken another course to weaken their Testimonies and nothing is so strong but if that course be allowed that he uses it will take off the strength of it Mr. Maynard said He hath heard of breaking a thing to pieces by taking to pieces and if my Lord of Strafford shall take every parcel of the proof and say this is a single Testimony This is matter of discourse This I speak at my Table This in my Chamber taking them asunder he may answer them asunder But if he hath in his Chamber and at Counsel and in Bed and on all occasions presumed to run so high on the Liberty of the Subject and then think that because he speaks sometimes good words all must be paistered up he must give us leave to differ from him in that The Witnesses say he spake the words Candidè Castè some speak to the occasion most say they were spoken at several times both before and after the Parliament and if they must be applyed only to what is lawful what need these Adverbs to make it good Truly he may say it was done Cautè it was not done Castè in this Cause For that my Lord hath said divers Witnesses were by and heard not the words deposed by Mr. Treasurer What Argument is this That when divers are by that which divers do not remember is not true My Lord confesses himself sometimes that Witnesses do not remember all things therefore it may be true that something may be spoken which Witnesses remember not else he confesses against himself which is not true There be other things wherein the Witnesses do concurr and that my Lord speaks not to though he speaks to that which my Lord of Northumberland and the rest do not remember and therefore it is no argument to say some were by and heard not what was spoken The sum of the Case will come to this There was a Parliament sitting he a little before casts out words about raising Money where he must have Adverbs to make it good he must raise Money in an extraordinary way the Parliament is broken and a necessity is made and Soldiers must be brought in to make good these ways now take these asunder and my Lord of Strafford will make it a good Action But as Mr. Maynard shewed they conceive all my Lord of Strafford hath done ended in that design he began it before he came over and though they believe His Majesty designed it for Scotland they speak not what His Majesty meant but what my Lord of Strafford counselled that is the thing he is charged with And whereas his friends and those nearest him spoke of this Fire that hath burst out he sayes this concerns him not Indeed he is very unhappy if his Brother or bosome friend must be the man that must accuse him But Noscitur ex Comite qui non cognoscitur ex se. It comes out of his own mouth and his friends expressions When Sir George Ratcliffe is asked how Money will be had He Answered We will make peace with the Scots and that is the worst of evils Surely he that thought a Peace betwixt the two Nations the worst of evils deserves not the applause that hath been given him in this place And if that comes to pass this must have relation to that of which he spake which is the levying of Money by force the King hath 30000 Men and 400000 l in his Purse and a Sword by his side and if he wants Money who would pity him Lastly My Lord of Strafford came to speak of their Lordships priviledge that if words spoken in Council should be pressed it would bring a disability on their Noble Lordships to enter into those imployments but that can be no excuse to say that he must take notice of things honourable and for every thing that a Man speaks at Council he must not be brought into Question It is not every thing nor every thing that is illegal that is brought into Question But if he advise to bring an Army on us to Master all we have and he must not be questioned Where then are their Lordships Priviledges and Who knows how soon there may be no difference betwixt a Peer and another In all this Defence my Lord of Strafford hath not offered any Defence for the Scandal which he put upon the last Parliament which to the last breath to the last minute of their Continuance did advise and consult of the Supply of His Majesty yet he calls this a denying of the King a forsaking of the King an undutiful stubborness and what else his high Speech and Eloquence pleases to misconstrue their Actions with To that Stat. 1 E. 6. Mr. Maynard said He shall not need to give any further Answer for if it be looked to it will appear nothing to concern this Case there being great difference between words spoken
with relation to action For these be Counsels and if a Man shall Counsel the death of the King Will any Man doubt whether this be Treason surely no man will doubt it that knowes the Laws of England The Treason is not in his words but in his wicked Counsels For under favor if it be true that he spake them they may be called wicked and that it is true they have offered proof and so he left it to their Lordships Mr. Glyn desired to add a word it concerning the Kingdom and Peers Their Lordships observe how my Lord of Strafford stands questioned for subverting of the Laws and for designing to introduce an Arbitrary Government the other day his design appeared in the exercising of a Tyrannical Power over the Persons Estates and Liberties of the Kings Subjects and though a design was in practice and something put in execution yet there was something left whereby that Treason might be raised to a higher strain For that proofs were produced the other day the exercise of this Tyrannical power in his person which was the stopping of the Streams of Justice but the Fountain of Justice was still uncorrupted and hope left and God be thanked we have hope still But this dayes work is to prove That he ascended the Throne and by his ill Counsels the Venome he had hatcht in his own heart he endeavored to infuse into the Kings Person to make Him of the same opinion with himself and that is to endeavor to corrupt the Fountain But God be thanked he hath met with a Gracious King upon whom he cannot prevaile The words laid to his Charge are very many That he should tell the King he was Absolved from all Rules of Government and that he had an Army in Ireland which he might employ to reduce this Kingdom The latter part of the words he hath endeavoured to answer and the former part proved by positive Witnesses which he hath not given answer to For the latter that concerns the Irish Army Mr. Glynn said He shall not need to put their Lordships in mind of any thing said but whereas my Lord sayes They are proved by one Witness only if your Lordships revise their Notes they shall find them prov'd by many Witnesses When he was not accused by the Commons he tells Sir William Pennyman at York he did intend to bring the Army into England but there was Vox populi and that 's a horrid Witness My Lord Cottington one of the Honourable persons present when the words were spoken testifies to their Lordships That he remembers my Lord of Strafford told the King That after things were setled he was bound to repair the property of the Subject and this under favour proves something for if some Counsel and advice were not given that there should be an invasion on the property what should engage him to tell the King he should restore it Here my Lord Cottington explained himself saying That his meaning was he hath often heard my Lord say The King and People would never be happy till there was a good agreement Mr. Glynn proeceded that if their Lordships please to look on my Lord of Straffords Interrogatory they shall find it asked his Lordship Whether he did not tell the King that he should make restitution of the Subjects propertie when the danger was over and why should his Conscience aske such a question unless there were Counsel given to invade the propriety of the Subject Your Lordships remember the words of Sir George Wentworth which Mr. Glynn said he will not repeat and when my Lord was fixed by the words of his Brother he said That tho he be my Brother I do not use to communicate my Counsels to him and that I am on my oath to conceal yet this great Counsel he did impart to Mr. Slingsby for his own purpose and to Sir William Pennyman And so having spoken to the latter part of the words the reducing of the Subjects of England by the Irish Army to shew that it stands not only on a single proof but if the whole be recollected together there be many things concurring to the positive proof thereof Mr. Glynn put their Lordships in mind of the other words to which two great Witnesses concurr and no Answer at all is given viz. That the Parliament denyed Supply and the King is loose and absolved from all rules of Government put the other words out of doors as they are not if the King be loose from all rules of Government is he not loose to doe what he will And Mr. Glynn added That he must needs give Answer to something that fell from my Lord concerning other words that they were words of Discourse and what he speaks at his Bed or his Table or in private Discourse he thinks they should not be brought against him But Mr. Glynn besought their Lordships to remember that if my Lord speaks the words as a Privy Counsellor speaking to the King concerning the Subjects property compare these words with the other Extermination and then see what the Case is The last thing in his Defence is as high as the Charge it self He is charged That being a Privy Counsellor and entrusted by the King and a man of such Eminence he should indeavour to infuse into the Kings Sacred Person such dangerous Counsels tending to the destruction of the Law and Government and consequently of King and Subject And in the close my Lord of Strafford put their Lordships in mind what a dangerous thing it is for one of the Kings Counsel to be charged for Words spoken at Council-Table to speak this in such a Presence before the Peers and Commons of the Realm that a Privy Counsellor who ought to be clear and candid is not to be questioned though he infuse dangerous Counsels That it is justification of his own Act and so great that he knows not how my Lord could say greater and so he said he hath no more to say their Lordships had heard the Proofs and Defence and comparing them together he doubts not but their Lordships are satisfied that the Commons had just cause to do what they have done My L of Strafford desired to answer one thing the Gentleman that spake last said touching his revealing the Kings Counsels to Mr. Slingsby and others he would be loth to be charged with breaking his Duty to God and the King but where he hath Power and Liberty for as concerning the imployment of that Army the King left it wholly to him to acquaint whom he thought fit for the bettering of the service But the thing that makes him rise is to represent to their Lordships that he hath been there constantly in a great deal of weakness and infirmity since 7 or 8 of the clock and now it is 5. That his Speech and Voice are spent and it is not possible for him to come here to morrow and therefore he most humbly besought their Lordships to
His Majesty and their Lordships had not been there he conceives he might have Justified the doing of as much as he hath done in this Parliament his Commission under the Seal of my Lord Admiral being in effect FOr the better Execution of this our Commission we do further give and grant to you full Power and Authority from time to time and at all times at your discretion to command and require of and from all our Lieutenants and Deputy-Lieutenants in our several Counties of this our Realm and Dominion of Wales and of and from every or any of them to send to you or such place as you shall appoint such number of able Men for the War as well Horsemen as Footmen in the said Counties respectively or otherwise sufficiently Armed and Furnished as you in your discretion shall appoint and require And he did not send them to pay any Money but to relieve by turnes Regiment after Regiment and if they found it for their ease they might be at the Charge else do the Duty required which by the Common Allegiance every man is bound to do Say then he had committed an Error he had rather confess than justifie it as long as it is not brought to him as a Crime But there is another clause according to the Statute of 11 H. 7. viz. ANd further our pleasure is and we do give and grant for us our heirs and successors that whatsoever you or any other person or persons of what degree soever by your Commission Warrant or Command shall do by vertue of this our Commission or Letters Patents or according to the Instructions aforesaid or the purport of this our Commission touching the Execution of the premises both you and the said persons in shewing forth these our Letters-patents or the Constat or Inrollment thereof shall be discharged and acquitted against us our heires and successors and freed from all Impeachment and other molestation for the same He did this without sinister ends or by-respects and therefore if he did any way err by His Majesties own gracious clause he is to be excused And it is pursuing to the Statute of 11 H. 7. c. 1. where the Preamble is very observable THe King our Soveraign Lord recalling to his Remembrance the Duty and Allegiance of His Subjects and that they by reason of the same are bound to serve the King for the time to come in His Wars against every Rebellion and Power and Might c. and whatsoever falls against the mind of the Prince and that it is against all Law Reason and Conscience that attending His Person or being in other places of His Command any should lose or forfeit for doing their true Service and Obedience Be it therefore Enacted c. That from henceforth no manner of Person or persons whatsoever that attends the King in His Person and do Him true Allegiance in His Person or be in other places in His Wars for the said Deed or true Duty he and they shall be any way convicted and Attainted of Treason nor of any other Offence by any Process of Law whereby he shall forfeit Lands Goods Tenements c. and shall be for that Deed and Service utterly discharged of any Vexation c. So that he conceives he hath done nothing but what may receive a fair and equal interpretation what he hath done he hath done very candidly and clearly for the good of His Masters Service and preservation of the Country and he hath done nothing violently or deliberately to force Men to do things that may any way trench on the Propriety or Liberty of the Subject and whatsoever evil he may have committed in this he hopes by the Act of Parliament and by the words of the Commission read he shall stand before their Lordships in point of Justice and Noble Compassion to a Man that may erre Acquitted from any part of that Charge that may accuse him of High Treason Onely one thing he hath omitted and that is the Testimony of Sir William Ingram where he Charges me with saying The refusers to pay the Money are in little better condition than guilty of High Treason But he is a single Testimony and he sayes That clearly underfavour it is no mean offence for any Man to deny the Common Allegiance due to the King for Defence of His VVars But the words are testified to be spoken only to one Man and he is not Accomptable to him nor to their Lordships for that he being but a single Testimony Mr. Maynard began to Reply to the said Defence in substance as followeth That whereas my Lord sayes They have urged much that which was not Charged his Lordship hath Answered that which was not Objected as a Charge for the greatest part of the time he hath spent in examining so many VVitnesses is to shew on what grounds the first Petition was deserted and a Message put on his Lordship to deliver to the King The Petition was not offered to him as a matter of Charge but it is charged upon him that he procured to levy and impole Money upon the Country by force without a legal VVarrant and by way of excuse in his Answer he sets forth that the Country did yield to it by their Unanimous consent To that purpose it was objected to him Not that the delivery of the Message was a Crime and therefore he might have spared this labour to Answer it as to that purpose But as himself states the Case he hath much encreased rather then diminished his Fault for he said There was a Consent yet it appears there were but 109 principal Gentlemen parties in the first Petition and he encounters these to 200 met together the greater part of whom consenting and 100 of them that had subscribed and about 5 dissenting they resolve of a Message to be delivered touching consent But they have proved not only a Leavy for the first moneth but much more though when the Gentry met together and consented to a Petition it is no desertion of that Petition because 10 of 109 deserted especially when they had a Message from my Lord to meet about it and relying upon it went into the Country besides 200 Gentlemen Freeholders and others could not lay a Charge on the rest of the Country nor bind them that had dissented before and whose consent was not involved and it is no legal way to raise Money by Warrant much less by Force For the Money levyed after the Moneth expired my Lord hath offered no Colour to their Lordships for first the ground whereupon he raised it was contrary to that which was the truth viz. the Consent of the Lords of the Great Council whereas it appear'd and shall appear further there was no such Consent My Lord of Strafford would next justifie it by a Commission but that doth only require people according to their Allegiance to give attendance and this is turned into a matter of laying of Money for the first point of
the Warrant is to pay the Money Assessed and if they will not they shall attend so that what is matter of service is turned out of its Course and this is a high abuse of his power which makes that matter of Money which should be matter of Service and by this meanes awes men to pay money The Country on demand of His Majesty did consent to a Moneths pay but my Lord without their consent extends it beyond and pretends an Order to say no more of it when there was no such thing to draw some Deputy-Lieutenants together and when they are drawn to make an Order this must be his Justification of that which is unduely done And this is far from the mitigation of an Offence To do an unjust Act is one thing but it is a great aggravation when it is drawn by pretence of an authority which never was On 27 October the self same day Sir Iohn Burroughs spake of notice taken by their Lordships disclayming the Order for a Warrant And then my Lord acknowledged it to be an Error and it is doubtful whether he would have acknowleged it to be so if it had not been proved so My Lords Commission speaks not of Money and the Statute makes not to this Case it being only That when men are on their Allegiance doing the King faithful service they should not be attainted of High-Treason for doing their duty And the Interpretation his Lordship puts on it is that the duty of the Subject cannot be done to the King without levying money in an unlawful way if the levying of Money or the Imposing of Charges be matter of duty then he gives a Justification of the Charge And whereas he sayes though he had not had command from His Majesty nor Order from the Council of Peers he had power enough to do that which he did it is to be observed that my Lord did not require men first to serve but first to pay money and if they paid not then he Menaces them that they should serve as appears by Sir William Pennymans Warrant and therefore the Warrant might be observed which Sir William Pennyman justifies so unwillingly though in other things he be very forward and for a man to be required to pay Money and if he will not pay it then to perform service is hard for now he comes not on the Kings service but on the displeasure of them that require Money from him and that 's a bad discouragement to them that serve And whereas my Lord sayes nothing is proved or but by single proof their Lordships may be pleased to remember what is proved by Sir Henry Griffin That my Lord said That Money should be levied and he would take a course for it and the same Gentlemen deposes that the Warrant or Order was under my Lord Straffords hand which was the Warrant for them to pay Money It is likewise proved by Sir William Ingram that he said the private men must maintain after 1 d. per day and gave out his Command to the Constables and he would have all men know that those that refused it were in a little better condition than High Treason so that to the first part there is more than a single Testimony The latter part shall be proved by an other Mr. Henry Cholmley being Interrogated What he heard my Lord of Strafford speak concerning Treason in case men pay not that Money or to that effect He Answered That he heard not any thing at all of Treason Cconcerning the not payment Answered That at York at the Mannor-House my Lord of Strafford speaking of the raising of the Trained-Bands said we are all by Law tyed to serve the King in our own persons and if any refuse they are in little better case than Treason he cannot tell whether he said High Treason and they might be severely punished in the Star-Chamhamber And their Lordships may remember Mr. Cholmeleys former Testimony that the Vice-President might or shall send forth Warrants to levy Money And therefore these Gentlemens Testimonies stand without impeachment of that point My Lord sayes Moneys were not levyed by force yet it was proved that for these two Regiments Money was levyed by force for Four Soldiers came to the Town and went with the Constables But he sayes it concerns not him for no Warrant of his was shown Their Lordships will not expect that my Lord of Strafford should give particular Warrants to every Officer his Direction is proved in general his Commands are conveyed and distributed by particular Ministers The Captains look for Commands from them that are above them and they from the Lieutenant-General And Sir William Pennyman conceives the Warrant made out by the Vice-President was by a Warrant from my Lord of Strafford or he had my Lord of Straffords Command So that take that which is under Hand and Seal take what Sir William Pennyman take what Mr. Cholmeley hath spoken it cannot be otherwise but it was done by my Lord of Straffords Command and that is sure without legal Authority and so Mr. Maynard conceived they had made a full proof of this Article For that which concernes the Great Council he desired my Lords Answer might be read where he sayes expresly It was done by order of the Lords of the Great Council And Mr. Maynard humbly prayed that some of the Lords of the Great Council might declare the Truth in that Case But my Lord of Strafford Answered That he confessed it here at the Barr that it is so and must humbly put their Lordships in mind that in his Answer he prayes if any thing be mistaken he may have time to amend it and he doth amend it he confesses it was put in too strongly Mr. Glyn added That they put their Lordships in mind of it that it may not be forgotten After his Lordship was put in mind of it by the Lords of the Great Council he retracts it yet when he comes to Answer he affirms it therefore they think it necessary to put their Lordships in mind of it least he affirm it again Mr. Whitlock observed That my Lord of Strafford had made Justification of his Act here and truely the opinions which he hath here published and declared in the face of the Parliament are sufficient grounds of Condemnation of him He said the other day That in case of necessity the King was loose and absolved from all Rules of Government and that then Money might be levied by Force and that their Lordships very well remembers what that necessity was indeed no necessity at all But whatsoever the necessity is they know no such Tenent as my Lord of Strafford publishes But it is expresly against the Fundamental Lawes of the Kingdom and a meer Course for his bringing in an Arbitrary Power His Lordship said That as he stood qualified he might justifie as much as he hath done Which words are little less than the offence wherewith he is charged
there is nothing at all of it that I am to Answer it being wholly done by the Order of Chancery and I having no more to do with it then any man that hears it the Matter that stayes with me in this Article is the alleadged Warrant to Mr. Savill Sergeant at Armes and the Execution of it for that I shall humbly beseech your Lordships I may mind you with all humility that that Warrant is not shewed and I do think that my Lords the Judges do in the Tryals before them observe that Deeds are to prove themselves in ordinary Tryals betwixt Men and Men Now how much more in a Tryal for life and which is more than that though my Misfortune will have me to own it in the Tryal of a Peer The Witnesses my Lords say They have seen such a Warrant But no Witnesse sayes he knowes it and will Swear it to be my Hand and Seal or that I set my Hand or Seal to it for it may be Counterfeited for any thing they know For Mr. Savill upon Oath I thought under Favour he ought not to be admitted against me for he Swears directly to justifie himself for if there be no such Warrant he is answerable for the Fact not I. But my Lords admit there were such a Warrant I humbly conceive I gave your Lordships a very clear and full Answer to it I shewed you and proved it as I conceive that the Sessing of Soldiers hath been a Coercive means used in Ireland alwayes to enforce obedience to the Kings Authority I proved it to have been used to fetch in the Kings Rents of all kinds Contributions Compositions and Exchequer Rents I proved it to have been used to bring in Offenders and Rebels and as my Lord Ranalagh deposes for any Unjustifiable Act. Sir Arthur Terringham for a small Debt which appears not to be the Kings Debt My Lords nothing at all is proved against it but Negatively the Witnesses say they did not know such a thing they had not heard the like and I think none of your Lordships had before this Cause and yet that thing might be too And my Lords I beseech your Lordships How should it be not Treason to Assess Soldiers for the Kings Debts and yet the Assessing of Soldiers on the Contempt of the Kings Authority should be Treason for certainly the Kings Authority is of far more Dignity and more respect is to be had to it then the getting of a few poor Debts and why it should be Treason in one Case and not in another methinks it is very strange My Lords in the next place I conceive that not in any Construction this can be said to be a Levying of War against the King and His People being but the Imployment of two or three Soldiers to procure obedience to His Majesties Government because as I conceive likewise I had Commission to make War as I saw Cause for punishing the Rebels and securing the Publick Peace and therefore How can I be charged with that I have power to do The worst that can be made of it is an absurd execution of a Power but to make it Treason when I had Commission and Liberty so to do methinks that is very hard And it was no absurd execution of a Power under favour neither when I had the Precedent of all the former Deputies and Lieutenants in the Case My Lords it was never Complained of all the while I was there for ought appears to your Lordships so that it seems there was no great Innovation nor Inconvenience for if there were I should have heard of it But the Statute 11 E. 1. ca. 7. sets a penalty upon any Subject that shall Assess without the Deputies Authority Now I do most humbly beseech your Lordships that you would be pleased to remember that and let me know how it should be but Penal in a Common person to do it and yet Treason in a Deputy My Lords I shall likewise humbly mind your Lordships for the Statute or rather two Statutes as I take it whereby I conceive this Statute that made a Treason in Ireland was repealed But howsoever the practice in all time hath gone quite contrary to that Statute and the best Interpretation of Law is the Practice of Law and therefore the Practice having been otherwise it is an Argument very strong and prevalent that the Deputy as Chief Governor was never intended to be Concluded within that Act nor never to be brought in by General Words onely And that this should be a Levying of War against the King within the Statute of 25 E. 3. in England surely I conceive it cannot be for the Burning of Towns the Taking of Forts Killing and Slaying that I conceive to be a Levying of War but this is a strange Levying of War with two or three Soldiers to rest in Peace and Quietness eating on Contemners onely and not Killing and Slaying and all to procure Obedience to the King not in Disobedience to His Command If to lie upon them and eate be High-Treason in this Case What shall become of a great Company of good Fellowes that at this time eate at the Charge of the Country No my Lords This in the Case of a private Man had been but a Forcible Entry or a Ryot at the most if a man had done the same thing Mr. Savil did of his own Authority without the Deputy it had been but a Force and Ryot and How shall this be in my Case High Treason The next Charge in that Case is concerning a Warrant to one Piggot another Sergeant at Armes and the great and crying Miscarriages and Misimployments of such a War if there had been any it was when I as your Lordships may please to remember was out of Ireland and that was the Case of Bern a very Foule Misdemeanor as it proved But my Lords I being out of the Kingdom and no such Warrant shown I conceive I am absolutely dismissed as unto that and have nothing to Answer for it there was nothing done while I was in the Kingdom there is no Warrant of mine shown therefore I conceive I stand clear of that likewise But admit there were such a Warrant the Answer goes to that as to the test and certainly I hope will fully acquit me of this Fifteenth Article as Treason And so I must in humility submit to your Lordships wiser and better Judgments The next Statute Treason is an Intendment or Design or what you will have it for bringing over the Irish Army into this Kingdom to reduce it or to do I know not what nor I think no body else for there is no such thing But my Lords for proofe in this Case you have two offered there and no more under favour at all the first proof is the Fears and Doubts of my Lord Ranalaugh that tells you he Fears such a thing and Doubts such a thing My Lords if Fears and Doubts may be sufficient to Condemn me for Treason
no greater measure God be praised than these are My Lords these being the words that passed from me in Ireland there are other words that are charged upon me to have been spoken in England but if your Lordships will give me leave though perhaps in no very good method I shall not fail to touch first or last the words in every Article The next Article then that I am charged withal for words is the second Article and these are the words that I should say concerning the Finger and the Loins My Lords I may alledge much new matter but I will observe your Lordships Order punctually by the Grace of God for what I may say in that case if it might be admitted I keep it to my self but the truth is they that do prove the words to be thus That I would make the little finger of the Law heavier than the Kings Loins they do not tell you the occasion of the Speech or what went before or what after for my Lords if they had told the occasion which methinks they should as well have remembred as the words it would plainly and clearly have appeared to your Lordships that Sir William Pennymans Testimony was most true for the occasion was such that to have said those words had been to have spoken against that to which I intended the discourse but speaking them as I said it makes very strong for that purpose to which I directed them which was to appease the Countrey and quiet the Discontents for having been double charged with the Knight-money and therefore it was not properly threatening them further to have provoked them My Lords you have Sir Will. Pennymans testimony that it was so and my profession who under favour will not speak an untruth to save my life I protest before God that I say I verily believe or else I will never speak it indeed and there it is they have proved it to have been said one way we another way we give the occasion of our Speech and disavow theirs and so we must leave it and howsoever these words so spoken can never be drawn as I humbly conceive as premises to prove their conclusions that therefore I am guilty of High Treason they have made me guilty of a foolish Word and that I confess and if they please I will confess it all the day long for I have been foolish all the days of my life and I hope hereafter I shall look unto my ways that I offend not with my Tongue for if I cannot rule it abroad I will rule it within doors else I will never stirr abroad but bound it so to my own business and affairs that I trust I shall give no offence The next Article that chargeth me with words is the 22 Article and these be words spoke in England The first part of them which concerns the bringing in of the Irish Army I have spoken to already but in the conclusion there are other words and shortly the said Earl of Strafford returned to England and to sundry persons declared his opinion to be That His Majesty should first try the Parliament here and if that did not supply him according to his occasions he might then use his Prerogative as he pleased to levy what he needed and that he should be acquitted both of God and Man if he took some other courses to supply himself though it were against the will of his Subjects My Lords as unto this I conceive the Charge is not proved by any Witness that hath been here produced against me and in truth my Lords I must needs say this under favour if it be an error in my Judgement I must humbly crave your Lordships pardon through the whole Cause I have not seen a weaker proof and if I had had time to have gotten my Witnesses out of Ireland I hope that should be proved and so clearly as nothing could be proved more but I must stand or fall to what I have proved and so I do my Lords the proof they offer for this as I conceive is the Testimony of my Lord Primate and his Testimony is That in some discourse betwixt us two touching Levying upon the Subject in case of imminent necessity he found me of opinion that the King might use his Prerogative as he pleased My Lords this is under favour a single Testimony it is of a discourse between him and me and there is not any other that witnesses any thing concerning it so that under favour My Lords I conceive this will not be sufficient to bring me any ways in danger of Treason being but a single Testimony and my Lords it is to be thought and to be believed and it were a great offence for any man to think otherwise that in this case any thing can please the King he is so Gracious and Good but what shall be Just and Lawful and then there is no doubt but so far as with Justice and Lawfulness he may use his Prerogative in case of imminent danger when ordinary means will not be admitted At most he saith it was but an opinion and opinions may make an Heretick but they shall not I trust make a Traitor The next is the Testimony of my Lord Conway and the words that his Lordship testifies are these That in case the King would not be otherwise supplyed by Subsidies he might seek means to help himself though it were against the will of his Subjects Truly my Lords if I should acknowledge these words I do not see how they can be any way Capital in my case but this again is but a single Testimony and there is no other that says it but himself and if there be a good sense given to them certainly the words may very well bear it for I think it is a very natural motion for any man to preserve himself though it be to the disliking of another and why a King should not do it as well as a Subject it is such a prerogative of Kings as I never yet heard of for I thought though they had been Gods on earth yet they are men and have affections as men and should preserve themselves being not only accountable for themselves to God Almighty but also for their Subjects whose Good and Benefit is wrapt up and involved in theirs and therefore the King ought more to regard his own preservation than the Common-wealth The Third is That Mr. Treasurer says that to his best remembrance I did say That if the Parliament should not succeed I would be ready to assist His Majesty any other way God forbid this should be any offence for to say so either in him or me for I will swear if it please you that he said so as well as I therefore God forbid it should endanger either of us both for my Lords to say I will serve the King any other way it is no other than what became a good and faithful servant to do always provided the way be good and lawful
doth cease nay he says that in War Inter Arma silent Leges Now my Lords these are as highly said as any thing you have heard by me and yet certainly is no subverting of the Fundamental Laws for all that and therefore if a man must be judged he must not be judged by pieces but by all together My Lords Whatsoever I said at Council-Board was led in by this Case what a King should do in case of a Foreign Invasion of an Enemy when the ordinary wayes and means of levying Money would not come in seasonably to prevent mischief for what a King may do in case of absolute necessity certainly in these cases the ordinary Rules do not take place as this was the Case that let in the Discourse so I most humbly beseech your Lordships for it is fully proved to remember what was the conclusion of that Discourse which was That after the present occasion provided for the King was obliged in Honor and Justice to vindicate and free the Liberty of the Subject from all prejudice and harm it might sustain in that extraordinary occasion and that this was to be done by a Parliament and no other way but a Parliament and the King and his People could never be happy till the Prerogative of the Crown and the Liberty of the Subject were so bounded and known that they might goe hand in hand together mutually to the assistance of one another My Lords give me that which precedes and that which follows both being proved to be the Case in these words in the Charge I think considering these two I should be far from having committed any great crime or offence in saying these words But I say as I said before I shall be more wary for the time hereafter if it please God to give me that Grace and Life which I submit to him and shall readily and willingly resign to his good Will and Pleasure I conceive therefore that as these words are accompanied they be not words that do amount to Treason and are so qualifyed and so weakly proved that I trust they shall not stick with your Lordships The next words that I am charged withal in England be on the 25th Article and that is that I should say that the Aldermen that would not give in the names of the able men of the City deserved to be put to Fine and Ransome and that no good would be done with them till an example were made of them and they were laid by the heels and some of the Aldermen hanged up In the first part of the Article there is something concerning my advice for raising the Money but it is not proved that I did any thing therein but as others did and as in former years had been done before my coming into the Kingdom For the words that they deserved Fine and Ransome I confess them in my Answer just in the same manner as my Lord of Berkshire was pleased to testify them the other day that is That if they should not do the thing desired they might in my opinion be liable to Fine and Ransome And my Lords admit I were mistaken in my opinion shall it be a Treason to be mistaken I say in my opinion they might be lyable to Fine and Ransome but what is this to Treason Under favour nothing at all as I conceive For the other part that it would never be well till some of the Aldermen be hanged it proves to be testified by Mr. Alderman Garroway and he owns it only for himself for it was not that some of the Aldermen should be hanged but he said at the Bar till he himself were hanged My Lords This is a single Testimony and these words as he says were by me spoken to the King at the Council-Board That it would never be well till some of them were hanged meaning himself truly my Lords I thank God I never spake such unmannerly Language all the dayes of my life I have had more regard to my words than to say such things to my Master and your Lordships must needs be many of you by and I am very confident there is not one among you that can remember any such words were spoke for in good faith I did not speak them And my Lords before this misfortune did befall me I should with modesty have thought my self a person on equal terms to have been believed as well as Mr. Garraway and I speak it with as great confidence as he that I never spake the words My Lords The next is the 26th Article and that is that I should say the City of London dealt undutifully with the King and they were more ready to help the Rebels than to help His Majesty and if any hurt came to them they might thank themselves My Lords I am in the first part of this Article charged to have counselled and approved two dangerous and wicked Projects the one concerning the stay of the Bullion in the Tower the other concernin Copper-coyn and no proof hath been offered that I either compelled or approved either of those two Projects And my Lords it is proved to your Lordships that when the Merchants came I told them I knew nothing of the business as to the Bullion neither indeed did I ever know there was any Bullion nor any thing of that nature in the Tower But for the words I conceive it had been no Treason for me to think at that time that the Londoners had dealt unthankfully with His Majesty I thought I might have said it freely without danger of such a thought as might conduce to the convicting me of Treason But whatsoever I then thought or on what grounds soever it may be remembred that then I alledged and now I speak it when news was brought to York that the City had sent the King Two hundred thousand pounds I took notice that notwithstanding all I had thought formerly they nad now made such recompence and so cleared their Faith and Duty to the King that I should be their servant and lay my hand under their feet as those that heard me are able to speak for though at first I said they had dealt unthanfully with the King yet afterwards I was ready and willing upon all occasions to testify the contrary of them and to profess that I was ready to serve them upon all occasions just and honest and honourable As for my saying that they were readier to help the Rebels than the King In truth I am a man that cannot justify a thing I do not approve I must needs say it was an unadvised Speech and I wish I had not spoke it it seems I did speak it for I have reason to believe honest men when they Swear though in truth I remember it not but I have no reason or cause to think they would take an Oath otherwise then truth I have no exception to the Men and therefore upon their words I must Credit them before my own memory but it
but only the Estimate of a Merchant and how far your Lordships will be guided by the Estimate of a Merchant I known not but I have had Trial of some of them and their Estimates never hold for they have alwayes told me I shall gain much and when I came to the point I gained nothing and if Sir George Ratcliffe should be Sworn to the Point he should say confidently that we are Fourscore and six thousand out of Purse and when he came out of Ireland but Fourscore thousand pounds received and this is the Profit Estimated by the great Merchants at a Hundred and Forty thousand pounds a year But at the worst it is but a Monopoly and a Monopoly of the best condition because it was begun by a Parliament I have seen many Monopolies question'd in Parliament and many overthrown in Parliament but I never heard a Monopoly charged for a Treason My Lords The next is the 13th Article and that is concerning the Flax business For that my Lords if I had thought it any way concerning me I could have cleared it in a very great measure But I had no private Interest in the business much less of private profit but onely an endeavour and desire to bring in the Trade of Linnen-Cloth to that Kingdom which would be much advantage to both Kingdoms and no prejudice to this Kingdom which a Woollen Trade would have been if set up these And the Prolcamation when it was found not so well liking to the People was called in of our own accord before it was question'd and so laid aside and given over For any matter of private Benefit you have no Witness but Crokay a Fellow brought out of Prison Here is but a single Witness and a sorry one a Fellow who by misbehaving and misusing the trust committed to him was turned out and upon the turning of him out the Proclamation was absolutely called in and now he comes to be a Witness being himself the onely offended in the Cause But I beseech your Lordships to think I have not lived with so mean a heart in the World that I should look to gain Four Nobles more or less upon a Cart Load of Flax It is very well known my thoughts have carryed me free enough from gaining so poor and petty a matter as that is I know nothing in the World of it no more than the man in the Moon but when it comes to be heard your Lordships will find me extreame pure in that for I thank God I have clear hands I assure you The 14th is waved by them concerning an Unlawful Oath given to Masters and Officers of Ships and it might very well be waved for I conceive it to be Warranted by the Law Sure I am it is both the Practice of England and Ireland and hath alwayes and at all times been practised and used and is onely for the preventing of Fraud and Deceipt in Merchants by not paying the Kings Duties and Customes The 15th is Answered already I hope The 16th doth Charge upon me certain Propositions I made before I went into Ireland And in good Faith my Lords you may see how short-sighted men may be to their own Actions for I did very well believe I should never have reaped any thing from those Propositions but Thanks I am sure they were well received then when they were offered to His Majesty and the Council and I must truely Confess I never thought they should be objected against me as a Fault My Lords The Proposition was That no Man should be allowed to Complain of Injustice or Oppression in Ireland unless he first addressed himself to the Deputy My Lords there was no Original Intent but onely to prevent Clamours and Unjust Vexations of the Kings Ministers there that after men had received Judgment of the Kings Courts they might not presently come and by Clamours call over a Chief Justice or a Chancellor or President to Answer here and be at charge of five or six hundred pounds unless they acquaint the Deputy with it that they might be righted in the place and this is Charged against me as a great Crime Truely my Lords I shall Confess and Amend any thing and trust other Judgments rather than mine own but I see not how this can Charge me as intending to subvert the Laws of the Land but rather to preserve them The other concernes a Proclamation That none shall depart the Kingdom without License My Lords for that I have shewed that no man out of that Kingdom can come without License but upon very great Penalties I have shewed likewise it was the desire of their own Agents some 15 or 16 years since That there might be such a Restraint and none might come over without License I have shewed you likewise the Instructions to my Lord of Faulkland by which he was Commanded in persuance of that Desire that none should come over without his License I have shewed the express Command of His Majesty to me to have it so I have shewed you likewise the Reasons of State why it should be so to prevent that practice and Intelligence which might otherwise arise betwixt them of that Nation serving under Tir-Connell and O Neale and likewise to prevent the going over and transplanting the Prime Nobility and Gentry to Seminaries and other such places there to be brought up and therefore in reason of State it is a Restraint and ought so to be But having these grounds of Law Warrant Practice Former Instruction and all Why this should be brought to me in particular Charge to Convince me of endeavouring the Subversion of the Laws I must submit to your Lordships My Lords There is in the latter part of this another Charge concerning the Sentenceing of one Parry who was Sentenced as I conceive very Justly and I have no more to answer for in that Sentence then any of the rest having but a single Voice and that I should answer for all I confess is something hard But there is no manner of Testimony in the World in this save the Testimony of Parry himself Now if Parry the Man offended his Testimony shall be taken against the Judge I know no Man can be safe and other Testimony is not offered and therefore I trust that that will easily fall off of it self The 17th is likewise waved and is in Truth of no great Consequence one way or other and therefore I shall give no other Answer to it It was well waved and had been as well left out having no great matter in it The 18th is likewise waved but it is that which sticks very heavy upon me and wherein I find my self as much afflicted as in any one part of the Charge For my Lords here I am Charged up and down to endeavour to draw upon my self a Dependance of the Papists in both Kingdomes of Ireland and England and that I have during the time of my Government restored diverse Mass-Houses in Dublin and elsewhere
dregs of valour sullenness and stubborness which may make them prone to mutinies and discontents But those noble and gallant affections which put men to brave designs and attempts for the preservation or enlargement of a Kingdom they are hardly capable of Shall it be Treason to embase the Kings Coin though but a piece of Twelve-pence or Six-pence and must it not needs be the effect of a greater Treason to embase the Spirits of his Subjects and to set a stamp and character of servitude upon them whereby they shall be disabled to do any thing for the service of the King and Commonwealth The fifth Consideration is this that the exercise of this Arbitrary Government in times of suddain danger by the invasion of an enemy will disable His Majesty to preserve himselfe and His Subjects from that danger This is the only pretence by which the Earl of Strafford and such other mischievous Counsellors would induce His Majesty to make use of it and if it be unfit for such an occasion I know nothing that can be alledged in maintainance of it When War threatens a Kingdom by the coming of a Forreign Enemy it is no time then to discontent the people to make them weary of the present Government and more inclinable to a change The supplies which are to come in this way will be unready uncertain there can be no assurance of them no dependance upon them either for time or proportion And if some Money be gotten in such a way the distractions divisions distempers which this course is apt to produce will be more prejudicial to the publique safety than the Supply can be advantagious to it and of this we have had sufficient experience the last Summer The Sixth That this crime of subverting the Laws and introducing an Arbitrary and Tyrannical Government is contrary to the Pact and Covenant betwixt the King and his People that which was spoken of before was the legal union of Allegiance and Protection this is a personal union by mutual agreement and stipulation confirmed by Oath on both sides The King and his People are obliged to one another in the nearest relations he is a Father and a Child is called in Law pars patris He is the Husband of the Common-wealth they have the same interests they ara inseparable in their condition be it good or evil he is the Head they are the Body there is such an incorporation as cannot be dissolved without the destruction of both When Justice Thorp in Edward the III. time was by the Parliament condemned to death for Bribery the reason of that Judgement is given because he had broke the Kings Oath not that he had broke his own Oath but he had broken the Kings Oath that solemn and great Obligation which is the security of the whole Kingdom If for a Judge to take a small sum in a private Cause was adjudged capital how much greater was this offence whereby the Earl of Strafford hath broken the Kings Oath in the whole course of his Government in Ireland to the prejudice of so many of His Majesties Subjects in their Lives Liberties and Estates and to the danger of all the rest The Doctrine of the Papists Fides non est servanda cum Haereticis is an abominable Doctrine yet that other Tenet more peculiar to the Jesuits is more pernicious whereby Subjects are discharged from their Oath of Allegiance to their Prince whensoever the Pope pleaseth This may be added to make the third no less mischievous and destructive to humane Society than either of the rest That the King is not bound by that Oath which he hath taken to observe the Laws of the Kingdom but may when he sees cause lay Taxes and Burthens upon them without their consent contrary to the Laws and Liberties of the Kingdom This hath been Preached and published by divers And this is that which hath been practised in Ireland by the Earl of Strafford in his Government there and endeavoured to be brought into England by his Counsel here The Seventh is this It is an offence that is contrary to the end of Government The end of Government was to prevent oppressions to limit and restrain the excessive power and violence of great men to open the passages of Justice with indifferency towards all This Arbitrary Power is apt to induce and encourage all kind of insolencies Another end of the Government is to preserve men in their Estates to secure them in their Lives and Liberties but if this design had taken effect and could have been setled in England as it was practised in Ireland no man would have had more certainty in his own then Power would have allowed him but these two have been spoken of before there are two behind more important which have not yet been touched It is the end of Government that Virtue should be cherish'd Vice supprest but where this Arbitrary and unlimited Power is set up a way is open not only for the security but for the advancement and encouragement of evil such men as are apt for the execution and maintenance of this Power are only capable of preferment and others who will not be instruments of any unjust commmands who make a conscience to do nothing against the Laws of the Kingdom and Liberties of the Subject are not only not passable for employment but subject to much jealousie and danger It is the end of Government that all Accidents and Events all Counsels and Designs should be improved to the publique good But this Arbitrary Power is apt to dispose all to the maintainance of it self The wisdome of the Council Table The authority of the Courts of Justice The industry of all the Officers of the Crown have been most carefully exercised in this the Learning of our Divines the Jurisdiction of our Bishops have been moulded and disposed to the same effect which though it were begun before the Earl of Straffords imployment yet it hath been exeedingly furthered and advanced by him Under this colour and pretence of maintaining the King's Power and Prerogative many dangerous practises against the peace and safety of the Kingdom have been undertaken and promoted The increase of Popery and the favours and encouragement of Papists have been and still are a great grievance and danger to the Kingdom The innovation in matters of Religion the Usurpations of the Clergy the manifold burthens and taxations upon the people have been a great cause of our present distempers and disorders and yet those who have been chief furtherers and actors of such mischiefs have had their Credit and Authority from this that they were forward to maintain this power The Earl of Strafford had the first rise of his Greatness from this and in his Apology and Defence as your Lordships have heard this hath had a main part The Royal Power and Majesty of Kings is most Glorious in the Prosperity and happiness of the People the perfection of all things consists in the end
the Conscience of the Judge in giving Judgment according to them In several Countries there is not the same measure of Punishment for one and the same Offence Willful Murder in Ireland it is Treason and so is the wilfull Burning of a House or a Stack of Corne In the Isle of Man it is Felony to Steal a Hen but not to steale a Horse and yet the Judge in Ireland hath as just a Ground to give Judgement of High-Treason in those Cases there as here to give Judgment onely of Felony and in the Isle of Man of Felony for the Hen as here of Pety-Larceny My Lords in the other Consideration of using the Supreame Power the same Law gives power to the Parliament to make new Lawes that enables the inferiour Court to Judge according to the old The Rules that guides the Conscience of the inferiour Court is from without the Prescripts of the Parliament and of the common-Common-Law in the other the Rule is from within that Salus populi be concerned that there be no wilful oppression of any of the Fellow-Members that no more Blood be taken then what is necessary for the Cure the Lawes and Customes of the Realm as well enable the Exercise of this as of the Ordinary and Judicial Power My Lords What hath been said is because that this proceeding of the Commons by way of Bill implies the use of the meer Legislative Power in respect new Lawes are for the most part past by Bill This my Lords though just and legal and therefore not wholly excluded yet it was not the onely ground that put the Commons upon the Bill they did not intend to make a new Treason and to Condemn my Lord of Strafford for it they had in it other considerations likewise which were to this effect First The Commons knew that in all former Ages if doubts of Law arose of great and general concernments the Parliament was usually consulted withal for resolution which is the reason that many Acts of Parliament are onely Declarative of the Old Law not Introductive of a New as the Great Charter of our Liberties The Statute of Five and Twentieth year of Edward the Third of Treasons The Statute of the Prerogative and of late the Petition of Right if the Law were doubtful in this Case they perceived the Parliament where the old way is altered and new Lawes made the fittest Judge to clear this Doubt Secondly My Lords they proceeded this way to obviate those Scruples and Delayes which through disuse of proceedings of this nature might have risen in the manner and way of proceedings since the Statute of the First of Hen. 4. Cap. 17. and more fully in the Roll number 144. The proceedings of Parliament have usually been upon an Indictment first found though in Cases of Treason particularly mentioned in the Statute of 25 Edw. 3. which had not been done in this case doubts likewise might rise for Treasons not particularly mentioned in the Statute of 25 Edw. 3. whether the Declaratory Power of Parliament be taken away in what manner they were to be made and by whom they find not any Attainders of Treason in Parliament for near this 200 years but by this way of Bill and again they know that whatsoever could be done any other way it might be done by this Thirdly In respect of the Proofs and Depositions that have been made against him for First although they knew not but that the whole Evidence which hath been given at the Barr in every part of it is sufficiently comprehended within the charge yet if therein they should be mistaken if it should prove otherwise use may justly be made of such Evidence in this way of Bill wherein so as Evidence be given in it 's no way requisite that there should have been any Articles or Charge at all and so in the case of double Testimony upon the Statute of the 1 of Edw. 6. whether one direct Witness with others to circumstances had been single or double Testimony And although single Testimony might be sufficient to satisfy private Consciences yet how far it would have been satisfactory in a judicial way where forms of Law are more to be stood upon was not so clear whereas in their way of Bill private satisfaction to each mans Conscience is sufficient although no Evidence had been given in at all My Lords The proceeding by way of Bill it was not to decline your Lordships Justice in the judicial way in these exigends of the State and Kingdom it was to Husband time by silencing those doubts they conceived it the speediest and surest way My Lords these are in effect the things the Commons took into their Consideration in respect of the manner and way of Proceeding against the Earl In the next place I am to declare unto your Lordships the things they took into their Considerations in respect of the Matter and Merits of the Cause and they are comprehended within these six heads 1. That there is a Treason within the Statute of 25 of Edw. III. by Levying of War upon the Matter of the 15th Article 2. If not by actual levying of War yet by advising and declaring his intention of War and that by Savil's Warrant and advice of bringing over the Irish Army upon the Matter in the 23 Article then intending of a War if not within the clause of levying of a War in the Statute of 25th Edw 3. yet within the first Treason of compassing the death of the King 3. If either of these two single Acts is within the Statute of 25th Edw. 3. yet upon putting all together which hath been proved against him that there 's a Treason within the first Clause of Compassing the death of the King Et si non Prosunt singula juncta juvant 4. That he hath Sessed and laid Soldiers upon the Subjects of Ireland against their Will and at their Charge within the Irish Statute of the 18th year of Hen. 6th that both Person and thing are within the Statute That the Statute remains in force to this day that the Parliament here hath cognizance of it and that even in the ordinary way of Judicature that if there be a Treason and a Traitor that the want of Jurisdiction in the judicial way may justly be supplied by Bill 5. That his endeavouring to subvert the Fundamental Laws and Government of the Realms of England and Ireland and instead thereof to introduce a Tyrannical Government against Law is Treason by the Common-Law That Treasons at the Common-Law are not taken away by the Statute of 25th Edw. 3. 1 Hen. 4th c. nor any of them 6. That as this case stands it 's just and necessary to resort to the Supream Power in Parliament in case all the rest should fail Of these six five of them are Treason within the compass of the Laws already established Three within the Statute of 25th Edw. 3. and one within the Irish Statute the other by the Common-Law of
year of Edward the 1. a Writ went to the Justices in Ireland that Kingdom at that time was governed by Justices declaring That upon Petitions they were not to determine any Titles between party and party upon any pretence of profit whatsoever to the King In the Eight and twentieth year of Hen. the 6th Chap. 2. Suits in Equity not before the Deputy but in Chancery Suits at common-Common-Law not before him but in cases of Life in the Kings-Bench for Title of Lands or Goods in the proper Courts of the Kings-Bench or Common-Pleas This declared in the Instructions for Ireland in the latter end of King Iames His time and by the Proclamation in His Majesties time my Lord took notice of them called the Commissioners narrow-hearted Commissioners The Law said He should not thus proceed in the subversion of it he saith he will and will enforce Obedience by the Army this is as much in respect of the end as to endeavour the overthrow of the Statutes of Labourers of Victuals or of Merton for Inclosures here is a Warrant against the King in respect of the end 2. In respect of the Actions whether there be either a Levying of War or an open Deed or both My Lords There was an Army in Ireland at that time of Two thousand Horse and Foot by this Warrant there is a full designation of this whole Army and an Assignment of it over to Savill for this purpose The Warrant gives him power from time to time to take as many Soldiers Horse and Foot with an Officer throughout the whole Army as himself shall please here is the terror and awe of the whole Army to enforce Obedience My Lords If the Earl had Armed two thousand men Horse and Foot and formed them into Companies to this end your Lordships would have conceived that this had been a War It 's as much as in the Case of Sir Thomas Talbot who armed them in Assemblies This is the same with a breach of Trust added to it That Army which was first raised and afterwards committed to his Trust for the defence of the People is now destined by him to their destruction This assignation of the Army by his Warrant under his Hand and Seal is an open Act. My Lords Here 's not only an open Act done but a Levying of War Soldiers both Horse and Foot with an Officer in Warlike manner assessed upon the Subject which killed their Cattel consumed and wasted their Goods Your Lordships observe a great difference where six men go upon a design alone and when sent from an Army of six hundred all engaged in the same service so many were sent as were sufficient to execute the Command if upon a poor man fewer more upon a rich if the six had not been able the whole Army must make it good The reason that the Sheriff directed alone or but with one Bayliff to do execution is because he hath the Command of the Law the Kings Writ and the Posse Comitatus in case of resistance Here 's the Warrant of a General of an Army Here 's the Posse Exercitus the Power of the Army under the awe of the whole Army six may force more than sixty without it and although never above six in one place yet in several parts of the Kingdom at the same time might be above sixty for sessing of Soldiers was frequent it was the ordinary course for execution of his Orders The Lord-Lieutenant of a County in England hath a design to alter the Laws and Government nay admit the design goes not so high he only declares thus much he will order the Freeholders and Estates of the Inhabitants of the County at his own will and pleasure and doth accordingly proceed upon Paper-Petitions foreseeing there will be disobedience he grants out Warrants under his Hand and Seal to the Deputy-Lieutenants and Captains of the Trained-bands that upon refusal they will take such number of the Trained-Bands through the County with Officers as they shall think good and lay them upon the Lands and Houses of the refusers Soldiers in a Warlike manner are frequently sessed upon them accordingly your Lordships do conceive that this is a Levying of War within the Statute The Case in question goes further in these two Respects That it is more against the declared Law in Ireland not only against the Common-Law but likewise against the Statute of 28 Hen. 6th against the Acts of the Commissioners against Proclamations in persuance of the Law against that himself took notice of narrow-hearted Commissioners In this that here was an Army the Soldiers by profession acts of Hostility from them of greater terror than from Freeholders of the same County My Lords I have now done with the First of Levying of War The Second is the Machination the advising of a War The Case in this rests upon a Warrant to Savile and the advice in the 23 Article The Warrant shews a resolution of imploying the old Army of Ireland to the oppression of His Majesties Subjects and the Laws In the 23 Article having told His Majesty that he was loosed and absolved from Rules of Government and might doe every thing which Power might admit he proceeded further in speech to His Majesty in these words You have an Army in Ireland you may employ to reduce this Kingdom My Lords Both being put together there 's a Machination a practice an advice to Levy War and by force to oppress and destroy His Majesties Subjects It hath been said the Statute of the 25 Edw. 3. is a penal Law and cannot be taken by equity and construction there must be an actual War the Statute makes it Treason to counterfeit the Kings Coin the conspiring the raising of Furnaces is no Treason unless he doth Nummum percutere actually Coin My Lords This is only said not proved the Law is otherwise the 19th Hen 6. fol. 49. there adjudged That the conspiring and aiding to counterfeit Coin was Treason and Justice Stamford fol. 331. 44. is of opinion that this or the conspiring to counterfeit the Great Seal is Treason The Statute is If any shall counterfeit the Great Seal conspiring to do it by the Book is Treason if a man take the Broad Seal from one Patent and put it to another here is no counterfeiting it 's tantamount and therefore Treason as is adjudged in 2 Hen. 4. fol. 25. and by the opinion of Stamford If Machination or Plotting a War be not within that clause of the Statute of Levying of War yet it is within the first of compassing the death of the King as that which necessarily tends to the destruction both of King and People upon whose safety and protection he is to engage himself That this is Treason hath been adjudged both after the Statutes of 1 Hen. 4. cap. 10. and 1 Queen Mary so much insisted upon on the other side In the Third year of King Hen. 4th one Balshal coming from London found one Bernard
at Plough in the Parish of Ofley in the County of Hertford Bernard asked Balshal what news he told him that the news was That King Richard the Second was alive in Scotland which was false for he was dead and that by Midsummer next he would come into England Bernard asked him What were best to be done Balshal answered Get Men and go to King Richard In Michaelmas Term in the Third year of Hen. 4th in the Kings Bench Rot. 4. This advice of War adjudged Treason In Queen Mary's time Sir Nicholas Throckmorton conspired with Sir Thomas Wyat to Levy War within this Realm for alteration in Religion he joyned not with him in the execution This conspiracy alone declared to be Treason by all the Judges this was after the Statute of Queen Mary so much insisted upon That Parliament ended in October this opinion was delivered the Easter Term following and is reported by Justice Dyer fol. 98. It 's true Sir Thomas Wyat afterwards did Levy War Sir Nicholas Throckmorton he only conspired This adjudged Treason One Story in Queen Elizabeths time practised with Foreigners to levy War within this Kingdom nothing done in persuance of the practice The intent without any adhering to enemies of the Queen or other cause adjudged Treason and he executed thereupon It 's true my Lords that year 13 Eliz. by Act of Parliament it 's made Treason to intend the levying of War this Case was adjudged before the Parliament The Case was adjudged in Hillary Term the Parliament begun not till the April following This my Lords is a Case judged in point that the practising to levy War though nothing be done in execution of it is Treason Object It may be Objected That in these Cases the Conspiring being against the whole Kingdom included the Queen and was a compassing Her destruction as well as of the Kingdoms here the Advice was to the King Answ. The Answer is first That the Warrant was unknown to His Majesty that was a Machination of War against the People and Lawes wherein His Majesties Person was engaged for Protection Secondly That the Advice was to His Majesty aggravates the Offence it was an Attempt which was the Offence it was an Attempt not only upon the Kingdom but upon the Sacred Person and His Office too himself was hostis patriae he would have made the Father of it so to Nothing more unnatural nor more dangerous than to offer the King Poyson to drink telling Him that it is a Cordial is a passing of His death the Poyson was repelled there was an Antidote within the Malice of the giver beyond expression The perswading of Foreigners to invade the Kingdom hold no proportion with this Machination of War against the Law or Kingdom is against the King they cannot be severed My Lords If no actual War within the Statute if the Counselling of War if neither of these single Acts be Treason within the Statute The Commons in the next place have taken it into consideration what the addition of his other Words Counsels and Actions do operate in the Case and have conceived that with this Addition all being put together that he is brought within the Statute of 25 E. 3. The words of the Statute are If any Man shall Compass or Imagine the death of the King the words are not If any Man shall plot or Counsel the Death of the King No my Lords they go further than to such things as are intended immediately directly and determinatively against the Life and Person of the King they are of a larger extent to compass is to do by Circuit to Consult or Practice another thing directly which being done may necessarily produce this effect However it be in the other Treasons within this Statute yet in this by the very words there is room left for constructions for necessary inferences and consequences What hath been the Judgment and Practice of former times concerning these words of compassing the Kings Death will appear to your Lordships by some Cases of Attainders upon these words One Owen in K. Iames His time in the 13 th year of His Reign at Sandwich in Kent spake these words That K. Iames being Excommunicated by the Pope may be killed by any Man which killing is no Murther Being asked by those he spake to how he durst maintain so Bloody an Assertion Answered That the matter was not so heinous as was supposed for the King who is the Lesser is concluded by the Pope who is the Greater and as a Malefactor being Condemned before a Temporal Judge may be delivered over to be Executed So the King standing Convicted by the Popes Sentence of Excommunication may justly be slaughtered without fault for the Killing of the King is the Execution of the Popes Supreame Sentence as the other is the Execution of the Law For this Judgment of High Treason was given against him and Execution done My Lords there is no clear intent appearing that Owen desired the thing should be done onely Arguments that it might be done this is a Compassing there is a clear Endeavour to corrupt the Judgment to take off the Bonds of Conscience the greatest security of the Kings Life God forbid saith one of better Judgement then he that I should stretch out my hand against the Lords Annointed No saith he the Lord doth not forbid it you may for these Reasons lawfully kill the King He that denies the Title to the Crown and plots the means of setting it upon anothers head may do this without any direct or immediate desiring the death of Him that wears it yet this is Treason as was adjudged in the 10th of Hen. 7. in these of Burton and in the Duke of Norfolkes Case 13 Eliz. This is a compassing of His Death for there can no more be two Kings in one Kingdom then two Suns in the Firmament he that conceives a Title counts it worth venturing for though it cost him his life he that is in possession thinks it as well worth the keeping Iohn Sparhauk in King Henry the Fourth's time meeting too men upon the way amongst other talk said That the King was not rightful King but the Earl of March and that the Pope would grant Indulgencies to all that could assist the Earles Title and that within half a year there would be no Liveries nor Cognizances of the King that the King had not kept promise with the People but had laid Taxes upon them In Easter-Terme in the third year of Henry the Fourth in the Kings Bench Rot. 12. this adjudged Treason this denying the Title with Motives though not implyedly of Action against it adjudged Treason this is a compassing the Kings death How this was a compassing of the Kings Death is declared in the Reasons of the Judgment that the words were spoken with an intent to withdraw the affections of the People from the King and to excite them against him that in the end they might rise up against
in the ordinary way of Judicature without Bill for so is the present question For the clearing of this I shall propound two things to your Lordships consideration Whether the Rule for expounding the Irish Statute and Customs be one and the same in England as in Ireland That being admitted whether the Parliament in England have cognizance or jurisdiction of things there done in respect of the place because the Kings Writ runs not there For the First in respect of the place the Parliament here hath cognizance there And Secondly If the Rules for expounding the Irish Statutes and Customs be the same here as there this exception as I humbly conceive must fall away In England there is the Common-Law the Statutes the Acts of Parliament and Customs peculiar to certain places differing from the Common-Law If any question arise concerning either a Custom or an Act of Parliament the Common-Law of England the First the Primitive and the General Law that 's the Rule and Expositor of them and of their several extents it is so here it is so in Ireland the common-Common-Law of England is the common-Common-Law of Ireland likewise the same here and there in all the parts of it It was introduced into Ireland by King Iohn and afterwards by King Henry 3. by Act of Parliament held in England as appears by the Patent-Rolls of the 30th year of King Henry 3. the first Membrana the words are Quia pro Communi Utilitate terrae Hiberniae unitate terrarum Regis Rex vult de Communi Concilio Regis Provisum est quod omnes Leges Consuetudines quae in Regno Angliae tenentur in Hibernia teneantur eadem terra eisdem legibus subjaceat per easdem Regatur sicut Dominus Iohannes Rex cum ultimò esset in Hibernia statuit fieri mandavit quia c. Rex vult quòd omnia brevia de Communi Iure quae currunt in Anglia similiter currant in Hibernia sub novo sigillo Regis mandatum est Archiepiscopis c. quod pro pace tranquilitate ejusdem terrae per easdem leges eos regi deduci permittant eas in omnibus sequantur in cujus c. Teste Rege apud Woodstock Decimo nono die Septembris Here is an union of both Kingdoms and that by Act of Parliament and the same Laws to be used here as there in omnibus My Lords That nothing might be left here for an exception that is That in Treasons Felonies and other capital offences concerning Life the Irish Laws are not the same as here therefore it is enacted by a Parliament held in England in the 14th year of Edw 2. it is not in print neither but in the Parliament Book that the Laws concerning Life and Member shall be the same in Ireland as in England And that no exception might yet remain in a Parliament held in England The 5th year of Edw. 3. it is Enacted Quod una eadem Lex fiat tam Hibernicis quam Anglicis This Act is enrolled in the Patent Rolls of the 5th year of Edw. 3. Parl. membr 25. The Irish therefore receiving their Laws from hence they send their Students at Law to the Inns of Court in England where they receive their Degree and of them and of the Common-Lawyers of this Kingdom are the Judges made The Petitions have been many from Ireland to send from hence some Judges more learned in the Laws than those they had there It hath been frequent in cases of difficulty there to send sometimes to the Parliament sometimes to the King by advice from the Judges here to send them resolutions of their doubts Amongst many I 'll cite your Lordships only one because it is in a case of Treason upon an Irish Statute and therefore full to this point By a Statute there made the fifth year of Edw. 4. there is a provision made for such as upon suggestions are committed to prison for Treason that the party committed if he can procure 24 Compurgators shall be bailed and let out of prison Two Citizens of Dublin were by a Grand Jury presented to have committed Treason they desired benefit of this Statute that they might be let out of prison upon tender of their Compurgators The words of the Statute of the 5th year of Edw. 4th in Ireland being obscure the Judges there being not satisfied what to do sent the case over to the Queen desired the opinion of the Judges here which was done accordingly The Judges here sent over their opinion which I have out of the Book of Justice Anderson one of the Judges consulted withal The Judges delivered their opinion upon an Irish Statute in case of Treason If it be objected That in this Case the Judges here did not judge upon the party their opinions were only ad informandam Conscientiam of the Judges in Ireland that the Judgement belonged to the Judges there My Lords with submission this and the other Authorities prove that for which they were cited that is that no absurdity no failure of Justice would ensue if this great Judicatory should judge of Treason so made by an Irish Statute The Common-Law rules of judging upon an Irish Statute the Pleas of the Crown for things of life and death are the same here and there this is all that yet hath been offered For the Second point That England hath no power of Judicature for things done in Ireland My Lords the constant practice of all ages proves the contrary Writs of Error in Pleas of the Crown as well as in Civil Causes have in all Kings Reigns been brought here even in the inferior Courts of Westminster-Hall upon Judgment given in the Courts of Ireland the practice is so frequent and so well known as that I shall cite none of them to your Lordships no president will I believe be produced to your Lordships that ever the Case was remanded back again into Ireland because the question arose upon an Irish Statute or Custom Object But it will be said that Writs of Error are only upon failure of justice in Ireland and that suits cannot originally be commenced here for things done in Ireland because the Kings Writ runs not in Ireland Answ. This might be a good Plea in the Kings-Bench and inferior Courts at Westminster-Hall the question is Whether it be so in Parliament The Kings Writ runs not within the County-Palatine of Chester and Durham nor within the Five Ports neither did it in Wales before the Union of Henry the 8th's time after the Laws of England were brought into Wales in King Edw. the 1. time Suits were not originally commenced at Westminster-Hall for things done in them yet this never excluded the Parliament-suits for Life Lands and Goods within these jurisdictions are determinable in Parliament as well as in any other parts of the Realm Ireland as appears by the Statute of the Thirtieth year of Henry 3. before-mentioned is united to the Crown of England By
the Statute of the Eight and twentieth year of Hen. 6th in Ireland it is declared in these words That Ireland is the proper Dominion of England and united to the Crown of England which Crown of England is of it self and by it self wholly and entirely endowed with all Power and Authority sufficient to yield to the Subjects of the same full and plenary remedy in all Debates and Suits whatsoever By the Statute of the Three and twentieth year of Henry the 8th the first Chapter when the Kings of England first assumed the Title of King of Ireland it is there Enacted that Ireland still is to be held as a Crown annexed and united to the Crown of England So that by the same reason from this that the Kings Writs run not in Ireland it might as well be held that the Parliament cannot originally hold Plea of things done within the County-Palatine of Chester and Durham nor within the Five Ports and Wales Ireland is a part of the Realm of England as appears by those Statutes as well as any of them This is made good by constant practice in all the Parliament Rolls from the first to the last there are Receivers and Tryers of Petitions appointed for Ireland for the Irish to come so far with their Petitions for Justice and the Parliament not to have cognizance when from time to time they had in the beginning of the Parliament appointed Receivers and Tryers of them is a thing not to be presumed An Appeal in Ireland brought by William Lord Vesey against Iohn Fitz-Thomas for Treasonable words there spoken before any Judgment given in Case there was removed into the Parliament in England and there the Defendant acquitted as appears in the Parliament Pleas of the Two and twentieth year of Edw. 1. The Suits for Lands Offices and Goods originally begun here are many and if question grew upon matter in fact a Jury usually ordered to try it and the Verdict returned into the Parliament as in the Case of one Ballyben in the Parliament of the Five and thirtieth year of Edward the 1. If a doubt arose upon a matter tryable by Record a Writ went to the Officers in whose custody the Record remained to certifie the Record as was in the Case of Robert Bagott the same Parliament of the Five and thirtieth year of Edward the 1. where the Writ went to the Treasurer and Barons of the Exchequer Sometimes they gave Judgement here in Parliament and commanded the Judges there in Ireland to do execution as in the great Case of Partition between the Copartners of the Earl Marshal in the Parliament of the Three and thirtieth of Edward the 1. where the Writ was awarded to the Treasurer of Ireland My Lords The Laws of Ireland were introduced by the Parliament of England as appears by Three Acts of the Parliament before cited It is of higher Jurisdiction Dare Leges then to judge by them The Parliaments of England do bind in Ireland if Ireland be particularly mentioned as is resolved in the Book-Case of the First year of Henry the Seventh Cook 's Seventh Report Calvin's Case and by the Judges in Trinity-Term in the Three and thirtieth year of Queen Elizabeth The Statute of the Eighth year of Edward the 4th the first Chapter in Ireland recites That it was doubted amongst the Judges whether all the English Statutes though not naming Ireland were in force there if named no doubt From King Henry the 3. his time downwards to the Eighth year of Queen Elizabeth by which Statute it is made Felony to carry Sheep from Ireland beyond Seas in almost all these Kings Reigns there be Statutes made concerning Ireland The exercising of the Legislative Power there over their Lives and Estates is higher than of the Judicial in question Until the 29th year of Edward the 3. erroneous Judgements given in Ireland were determinable no where but in England no not in the Parliament of Ireland as it appears in the close Rolls in the Tower in the 29th year of Edw. the 3. Memb. 12. Power to examine and reverse erroneous Judgments in the Parliaments of Ireland is granted from hence Writs of Error lye in the Parliament here upon erroneous Judgements after that time given in the Parliaments of Ireland as appears in the Parliament Rolls of the Eighth year of Henry the 6th No. 70. in the Case of the Prior of Lenthan It is true the Case is not determined there for it 's the last thing that came into the Parliament and could not be determined for want of time but no exception at all is taken to the Jurisdiction The Acts of Parliament made in Ireland have been confirmed in the Parliaments of England as appears by the close Rolls in the Tower in the Two and fortieth year of Edw. the 3. Memb. 20. Dorso where the Parliament in Ireland for the preservation of the Countrey from Irish who had almost destroyed it made an Act That all the Land-Owners that were English should reside upon their Lands or else they were to be forfeited this was here confirmed In the Parliament of the Fourth year of Henry the 5th Chap. 6. Acts of Parliament in Ireland are confirmed and some priviledges of the Peers in the Parliaments there are regulated Power to repeal Irish Statutes Power to confirm them cannot be by the Parliament here if it hath not cognizance of their Parliaments unless it be said that the Parliament may do it knows not what Garnsey and Iersey are under the Kings subjection but are not parcels of the Crown of England but of the Duchy of Normandy they are not governed by the Laws of England as Ireland is and yet Parliaments in England have usually held Plea of and determined all Causes concerning Lands or Goods In the Parliament in the 33 Edw. 1. there be Placita de Insula Iersey And so in the Parliament 14 Edw. 2. and so for Normandy and Gascoigne and always as long as any part of France was in subjection to the Crown of England there were at the beginning of the Parliaments Receivers and Tryers of Petitions for those parts appointed I believe your Lordships will have no Case shewed of any Plea to the jurisdiction of the Parliaments of England in any things done in any parts wheresoever in subjection to the Crown of England The last thing I shall offer to your Lordships is the Case of 19 Eliz. in my Lord Dyer 306. and Judge Crompton's Book of the jurisdiction of Courts fol. 23. The opinion of both these Books is That an Irish Peer is not Tryable here it 's true a Scotch or French Nobleman is tryable here as a common person the Law takes no notice of their Nobility because those Countreys are not governed by the Laws of England but Ireland being governed by the same Laws the Peers there are Tryable according to the Law of England only per pares By the same reason the Earl of Strafford not being a Peer of Ireland is
not tryable by the Peers of Ireland so that if he be not tryable here he is tryable no where My Lords In case there be a Treason and a Traitor within the Statute and that he be not tryable here for it in the ordinary way of Judicature if that jurisdiction fail this by way of Bill doth not Attainders of Treason in Parliament are as legal as usual by Act of Parliament as by Judgement I have now done with the Statutes 25 Edw. 3. and 18 Hen. 6. My Lord of Strafford hath offended against both the Kingdoms and is guilty of High Treason by the Laws of both My Lords In the fifth place I am come to the Treasons at the Common-Law the endeavouring to subvert the fundamental Laws and Government of the Kingdom and to introduce an Arbitrary and Tyrannical Government In this I shall not at all labour to prove That the endeavouring by Words Counsels and Actions to subvert the Laws is Treason at the Common-Law if there be any Common-Law Treasons at all left nothing is Treason if this be not to make a Kingdom no Kingdom take the Polity and Government away Englands but a piece of Earth wherein so many men have their Commorancy and abode without ranks or distinction of men without property in any thing further than possession no Law to punish the Murthering or robbing one another That of 33 Hen. 8. of introducing the Imperial Law sticks not with your Lordships it was in case of an Appeal to Rome these Appeals in Cases of Marriages and other causes counted Ecclesiastical had been frequent had in most Kings Reigns been tolerated some in times of Popery put a conscience upon them the Statutes had limited the penalty to a Praemunire only neither was that a total subversion only an Appeal from the Ecclesiastical Court here in a single Cause to the Court of Rome and if Treason or not that Case proves not a Treason may be punished as a Felony a Felony as a Trespass if His Majesty so please The greater includes the less in the Case of Praemunire in the Irish Reports that which is there declared to be Treason was proceeded upon only as a Praemunire The things most considerable in this is Whether the Treasons at Common-Law are taken away by the Statute of 25 Edw. 3. which is to speak against both the direct words and scope of that Statute In it there 's this clause That because many other like Cases of Treason might fall out which are not there declared therefore it is enacted That if any such Case come before the Iudges they shall not proceed to Iudgment till the Case be declared in Parliament whether it ought to be adjudged Treason or not These words and the whole scope of that Statute shews that it was not the meaning to take away any Treasons that were so before but only to regulate the jurisdiction and manner of Tryal Those that were single and certain Acts as conspiring the Kings death Levying War Counterfeiting the Money or Great Seal Killing a Judge these are left to the ordinary Courts of Justice The others not depending upon single Acts but upon constructions and necessary inferences they thought it not fit to give the inferior Courts so great a latitude here as too dangerous to the Subject those they restrained to the Parliament This Statute was the great security of the Subjects made with such wisdom as all the succeeding Ages have approved it it hath often passed through the Furnace but like Gold hath left little or nothing The Statute of the First H. 4. cap. 10. is in these words Whereas in the Parliament held the 21 year of Richard the 2. divers pains of Treason were ordained insomuch that no man did know how to behave himself to do say or speak It is accorded that in no time to come any Treason be adjudged otherwise than it was ordained by the Statute of 25th of Edw. 3. It hath been said To what end is this Statute made if it takes not away the Common-Law Treasons remaining after the Statute of the 25th of Edw. 3 Therebe two main things which this Statute doth First it takes away for the future all the Treasons made by any Statute since 25 Edw. 3. to the 1 H. 4. even to that time for in respect that by another Act in that Parliament the Statute of 21 Rich. 2. was repealed it will not be denyed but that this Statute repeals more Treasons than these of the 21 R. 2. It repeals all Statute-Treasons but those in 25 Edw. 3. Secondly It not only takes away the Statute-Treasons but likewise the declared Treasons in Parliament after the 25th of Edw. 3. as to the future after Declaration in Parliament the inferior Courts might judge these Treasons for the Declaration of a Treason in Parliament after it was made was sent to the inferior Courts that toties quotîes the like Case fell out they might proceed therein the Subject for the future was secured against these so that this Statute was of great use But by the very words of it I shall refer all Treasons to the provision of 25 Edw. 3. it leaves that entire and upon the old bottom The Statute of 1 Queen M. cap. 1. saith That no offences made Treason by any Act of Parliament shall thenceforth be taken or adjudged to be Treason but only such as be declared and expressed to be Treason by the Statute of 25 Edw. 3. Concerning Treason or the Declaration of Treason and no others And further provides That no pains of death penalties or forfeiture in any wise shall ensue for committing any Treason other than such as be in the Statute of 25 Edw. 3. ordained and provided any Act of Parliament or any Declaration or matter to the contrary in any wise notwithstanding By the first of this Statute only offences made Treason by Act of Parliament are taken away the Common-Law-Treasons are no ways touched the words And no others refer still to offences made Treason by Act of Parliament they restrain not to the Treasons only particularly mentioned in the Statute in the 25th Edw. 3. but leave that Statute entire to the Common-Law-Treason as appears by the words immediately foregoing By the Second Part for the peins and forfeitures of Treasons if it intend only the punishment of Treason or if it intend both Treason and Punishment yet all is referred to the Provision and Ordinance of 25 Edw. 3. any Act of Parliament or other Declaration or thing notwithstanding It saith not other then such Penalties or Treasons as are expressed and declared in the Statute of 25 Edw. 3. that might perhaps have restrained it to those that are particularly mentioned no it refers all Treasons to the general Ordination and Provision of that Statute wherein the Common Law Treasons are expresly kept on foot If it be Asked What good this Statute doth if it take not away the Common Law Treasons 1. It takes away all the Treasons made
by Act of Parliament not only since the first of Hen. 4. which were many but all before 1 Hen. 4. even until the 25 E. 3. by express words 2. By express words it takes away all declared Treasons if any such had been in Parliament Those for the future are likewise taken away so that whereas it might have been doubted whether the Statute of the 1 H. 4. took away any Treasons but those of the 22 d and 23 d years of R. 2. This clears it both for Treasons made by Parliament or declared in Parliament even to the time of making the Statute This is of great use of great security to the Subject so that as to what shall be Treason and what not the Statute of 25 E. 3. remains entire and so by consequence the Treasons at the Common Law Only my Lords it may be doubted whether the manner of the Parliamentary proceedings be not altered by the Statute of 1 H. 4. Chap. 17. and more fully in the Parliament Roll Number 144 that is whether since that Statute the Parliamentary power of Declaration of Treasons whereby the inferiour Courts Receive Jurisdiction be not taken away and restrained only to Bill that so it might operate no further then to that particular contained in the Bill that so the Parliamentary Declarations for after-times should be kept within the Parliament it self and be extended no further Since 1 H. 4. we have not found any such Declarations made but all Attainders of Treason have been by Bill If this be so yet the Common-Law Treasons still remaining there is one and the same ground of reason and equity since the 1 H. 4. for passing a Bill of Treason as was before for declaring of it without Bill Herein the Legislative power is not used against my Lord of Strafford in the Bill it s only the jurisdiction of the Parliament But my Lords because that either through my mistaking of the true grounds and reasons of the Commons or my not pressing them with apt agreements and presidents of former times or that perchance your Lordships from some other Reasons and Authorities more swaying with your Lorpships Judgments then these from them may possibly be of a contrary or dubious opinion concerning these Treasons either upon the Statutes of 25 E. 3. 18 H. 6. or at the Common-Law My Lords If all these five should faile they have therefore given me further in Command to declare to your Lordships some of their Reasons why they conceive that in this case the meer Legislative Power may be exercised Their reasons are taken from these three grounds 1. From the nature and quality of the Offence 2. From the Frame and Constitution of the Parliament wherein this Law is made 3. From Practices and Usages of former times The horridness of the Offence in endeavouring the overthrowing the Lawes and present Government hath been fully opened to your Lordships heretofore The Parliament is the Representation of the whole Kingdom wherein the King as Head your Lordships as the most Noble and the Commons the other Members are knit together into one Body Politick This dissolves the Arteries and Ligaments that hold the Body together the Lawes He that takes away the Lawes takes not away the Allegiance of one Subject alone but of the whole Kingdom It was made Treason by the Statute of 13. Eliz. for Her time to affirm that the Lawes of the Realm do not bind the Descent of the Crown no Law no Descent at all No Lawes no Peerage no Rankes or Degrees of men the same Condition to all It 's Treason to kill a Judge upon the Bench this kills not Iudicem sed Iudicium He that borrowed Apelles and gave Bond to return again Apelles the Painter sent him home after he had cut off his Right Hand his Bond was broken Apelles was sent but not the Painter There are Twelve Men but no Law there 's never a Judge amongst them It 's Felony to Imbezle any one of the Judicial Records of the Kingdom this at once Sweeps them all away and from all It 's Treason to Counterfeit a Twenty shillings piece here 's a Counterfeiting of the Law we can call neither the Counterfeit nor True Coyn our own It 's Treason to Counterfeit the Great-Seal for an Acre of Land no property hereby is left to any Land at all nothing Treason now either against King or Kingdom no Law to punish it My Lords If the Question were Asked at Westminster-Hall Whether this were a Crime punishable in Star-Chamber or in the Kings-Bench by Fine or Imprisonment they would say it went higher If whether Felony they would say that 's for an Offence only against the Life or Goods of some one or few persons It would I believe be answered by the Judges as it was by the Chief Justice Thurning in 21 R. 2. that though he could not Judge the Case Treason there before him yet if he were a Peer in Parliament he would so Adjudge it My Lords if it be too big for those Courts we hope it 's in the right way here 2. The second Consideration is from the Frame and Constitution of the Parliament the Parliament is the great Body Politick it comprehends all from the King to the Beggar if so My Lords as the Natural so this Body it hath power over it self and every one of the Members for the preservation of the whole It 's both the Physitian and the Patient If the Body be distempered it hath power to open a Vein to let out the corrupt blood for curing it self if one Member be Poysoned or Gangred it hath power to cut it off for the preservation of the rest But my Lords it hath often been inculcated that Law-makers should imitate the Supreme Law-giver who commonly warnes before he strikes The Law was promulged before the Judgment of death for gathering the Sticks No Law no Transgression My Lords To this rule of Law is Frustra legis auxilium invocat qui in legem committit from the Lex talionis he that would not have had others to have a Law Why should he have any himself Why should not that be done to him that himself would have done to others It 's true we give Law to Hares and Deers because they be Beasts of Chase It was never accounted either cruelty or foul play to knock Foxes and Wolves on the head as they can be found because these be Beasts of Prey The Warrener sets Traps for Polcats and other Vermine for preservation of the Warren Further my Lords most dangerous Diseases if not taken in time they kill Errors in great things as War and Marriage they allow no time for repentance it would have been too late to make a Law when there had been no Law My Lords for further Answer to this Objection he hath offended against a Law a Law within the endeavouring to subvert the Lawes and Polity of the State wherein he lived which had so long and with such
but what our hearts and consciences tell us is true and howsoever he is pleased to cast it upon us I am confident I shall invert it upon himself and make it appear that he hath been this day guilty in the highest degree of what he most unjustly layeth to our charge And now my Lords to enter upon the particulars he hath been pleased to make it his general Theme to day though he hath not spoke much to day but what he hath spoken formerly that these particulars considered by themselves make not a Treason and therefore put together he wonders how they should make a Treason Several misdemeanors can never make a murther and several Murthers can never make a Treason and he wonders it should be otherwise in this Case My Lords He did instance it if my memory fails not in a Case of Felony That if a bloudy knife should be produced in the hand of the party suspected to have slain the man if the party had been there seen before the death it were a strange Evidence but there must be death in the case the fact must be committed else there can be no murther but he himself might answer himself for there is a great difference There cannot be murther but there must be death but he knows very well there may be Treason and yet no death it is too late to forbear questioning Treason for killing the King till the King be killed God forbid we should stay in that Case for the very intention is the Treason and it is the intention of the death of the Law that is in question and it had been too late to call him to question to answer with his life for the death of the Law if the Law had been killed for there had been no Law then and how should the Law then have adjudged it Treason when the same were subverted and destroyed and therefore he is much mistaken The greatest Traitor in the memory of any that sits here to hear me this day had a better a fairer excuse in thisparticular than my Lord of Strafford and that is Guido Faux for he might have objected that the taking of the Cellar the laying of the Powder under the Parliament-House the kindling of the Match and putting it near are not so much as a misdemeanor if you look no further for it was no offence in him to lay Barrels under the Parliament-House and to kindle the Match and to lay it near but collect all together that it was eâ intentione to blow up the King and the State there is the Treason but God be blessed it was not effected so that the rule is the same Nay my Lord of Strafford hath not so much to say when he is charged with a purpose and intention to subvert the Law for to that purpose gave he traiterous Counsels and executed actions thereby discovering his intentions to destroy the Kingdom and to destroy the Kings claim by Law and discent It is true they were not put in execution but they declared his intentions therefore this gives an answer to his first flourish which is not so great an Argument as the greatest Traytor might use for himself and yet it proved Treason in him My Lords he hath been plased to divide his Treasons into two parts and his division I allow of that is Treason by Statute-Law as he terms it though it be Treason by the Common-Law and constructive Treason And upon that method he hath recited the evidence produced on either part Give me leave to follow and trace him a little and afterwards to discharge my own duty in taking my own course and representing the evidence as it appears truly and I will avoid as much as I can to fall into my Lord of Straffords error in mis-reciting a Particle if I do it shall be against my will He begins with the Fifteenth Article and pretends that that is not proved The ground and foundation of that Article was a Warrant issued out by himself to a Sergeant at Arms one Savill which gave directions and power to that Sergeant to lay Soldiers on any person that should contemn the Process of the Council-board in Ireland that was the effect Now says he this Warrant is not produced and adds That the Iudges will tell your Lordships that if a man be charged with anything under Hand and Seal the Deed must be produced and proved or else no credit is to be given to it Truly my Lords it is true if it had been a Bond or a Deed where those that Seal it use to call their neighbors to testify and be Witnesses to it perhaps it might be a colourable answer that because we do not produce the Deed and prove it by Witnesses you can therefore give no credit to it But my Lords in case of authority to commit High Treason I suppose my Lord of Strafford nor any other did call witnesses to prove the Signing Sealing and Delivering of the Warrant for execution of High Treason and therefore it is a new way and invention found out by his Lordship for ought I see to commit High Treason and to give authority for it and it is but taking away the original Warrant and he shall never be touched for any Treason But I beseech your Lordships patience till I come to open that Article and your Lordships will find the Warrant though it be not produced proved by three or four Witnesses and his Hand and Seal proved too And whereas he pretends the Sergeant at Arms is no competent Witness because he excuses himself my Lord mistakes himself for I take it to be no excuse to prove a Warrant from any person whatsoever if it be to commit High Treason and therefore Savil's testimony is the more strong being so far from excusing that he doth accuse himself And though he is charged with laying of Soldiers upon the Kings people contrary to an express Act of Parliament made in 18 H. 6. yet my Lord is pleased I know not how to term it whether it be merrily or otherwise to use his Retorick Here is a great levying of War when there is not above four Musquetiers or six at most laid upon any one man My Lords it is a plain levying of War and without all question and in all sense it is as much mischievous to me to be surprized by four or six Musquetiers to enforce me to any thing they would have as if there were an Army of Forty thousand brought upon me for if that strength will but over-master me it is all one to me whether I be mastered by four or by four thousand And therefore let not this be a rule that to send four or six or ten Musquetiers up and down is not considerable because of the smalness of the number the danger is the same yet this is no levying of War because they goe not in Troops of greater number as it pleases my Lord of Strafford to affirm My Lords Your Lordships remember
rest like your Lordships know whom Then he descends to the fourth Article and this concerns some words he should speak upon an occasion betwixt him and my Lord of Cork that he should tell my Lord of Cork He would have neither Law nor Lawyers dispute or question his Orders And upon another occasion That he would make my Lord of Cork and all Ireland know that all Acts of State which are Acts of Council there made or to be made should be as binding as any Act of Parliament This he said was proved but by one witness and I extreamly marvel to hear him say so for the latter words we proved by four or five or six witnesses that is That he would have Acts of State as binding as Acts of Parliament Whereas he sayes these are all the words produced against him in the time of seven years Government there your Lordships have heard of many words and if we would trouble your Lordships further in this kind we could prove such words spoken as often almost as he remained dayes in Ireland that is for the mis-recital The other part two witnesses proved but the residue That they must expect Law from the King as a Conqueror That Acts of State should be equal to Acts of Parliament and when an Act of Parliament would not pass he would make it good by an Act of State these speeches at other times were proved by five witnesses Then he falls back to the second Article touching the words That the Kings little finger should be heavier than the loins of the Law My Lords These words were proved expresly by five witnesses to be by him spoken and if he had produced five hundred that had said he did not speak them they had not been equivalent to disprove five but he produces none Sir William Penniman repeats other words and inverts them and none but he Another party a Minister reports a report that he heard concerning these words but my Lord he saith the occasion of the speaking of them was not mentioned Truly perhaps it might be the forgetfulness of my Lords memory but let me put him in mind and your Lordships remember that the occasion was exprest by one and that is Sir David Fowles that he laying a command upon Sir David to repair a Bridge and calling him to an account why it was not repaired Sir David Fowles told him he could not do it by Law And therefore omitting it my Lord said to him Sir some are all for Law and Lawyers but you shall know that the Kings little finger will be heavier than the loins of the Law Here is the occasion though he would have another business the knighting Money to be the occasion From the second he falls to the three and twentieth Article that is concerning words that he should counsel His Majesty that he might use His Prerogative as he pleased but in saying there was no proof offered he here begins to fall upon the other fallacy that is to pull things asunder whereas we produce them together and would make that which is a Fagot to be but a single Stick but under favour when I come with your Lordships patience to open the force of the proofs and put them together he shall find contrary to his expectation that they are fully proved by the testimony of many witnesses upon consideration of the precedent concurrent and subsequent Acts and Intentions of my Lord of Strafford I shall not now run over my Lord Primates testimony or my Lord Conwayes or master Treasurers or my Lord of Bristols but make use of them in their proper places when I shall put all together to shew his design and to prove his speaking of the words Then he comes to the five and twentieth Article which I shall not insist on though he pretends it not proved I shall refer that to my recollection that I may not answer to his pieces but bring all together and then the horror of his Fact shall more speciously appear Only this under favour I cannot pass over when he comes to justify an Advice and Counsel of the Kings being loose and absolved from all rules of Government and that he might use his Prerogative as he pleases he is pleased to mention the Argument of the Judges in the Ship-money and what they should deliver he makes the Warrant of his Counsel Now your Lordships may observe he would justify his actions by Law in some cases where it is to his advantage but in other cases he must be ignorant of the Law But my Lords for him to mention any thing in the Argument of the Judges concerning the Ship-money which is now cendemned and to make that a ground of his Counsel and advice to the King and not the judgement in truth but the Argument of the Counsel at Bar that therefore he is loose and absolved from all rule of Government for him to make the Parliaments deferring to give supply to be that necessity which was insisted upon in the Counsels Argument and to be such an unavoidable necessity as to beget an Invasion upon Propriety and Liberty it rests in your Judgements and the judgements of all that hear me what argument this is and what he declares his opinion to be this day In the latter part let me close hands and agree with him he sayes Proofs must be taken by themselves they must not be judged by pieces but together and now in good time I shall joyn with him and shall desire the same judgement that things may not be taken asunder but judged together according to his own words For the twentieth Article he is thereby charged with being an Incendiary between both Nations and an occasion of drawing two Armies into this Kingdom and to incense the War My Lords I remember if I did not mis-conceive and my memory misprompt me my Lord said He could have no occasion to incense a War being a man of an Estate and should have no benefit by it having sufficient to live without it but in due time I shall make it appear to my apprehension and I believe to your Lordships when you have heard it that the incensing of this War and provoking of it was the principal instrument of bringing to pass his design of subverting the Laws through the whole work of it My Lords in the passage of this he takes occasion to speak of the testimony of Mr. Secretary Vane who testifies That my Lord was for an offensive and himself for a defensive War Whence my Lord argues here is no great difference for both were for a War But my Lord Is there no difference between an offensive and defensive War in case of Subjects that live under one King is there no difference to bring an Army to offend them and for the King to raise a force to defend himself truly I think there is a great difference and a very material one too but your Lordships see he makes no difference between them My Lords
the Subject but then he goes into Ireland and as his authority increases so he ampliates his design and no sooner is he there but the third Article is laid to his charge That when the City and Recorder of Dublin the principal City of Ireland presented the Mayor upon a solemn Speech and Discourse concerning the Laws and Liberties as your Lordships know that is the subject matter of a Speech at such presentments as when the Lord Mayor of London is presented to the King I beseech your Lordship observe the words he then used They were a conquered Nation and that we lay not to his charge but they were to be governed as the King pleases their Charters were nothing worth and bind but during the Kings pleasure I am to seek if I were to express an Arbitrary Power and Tyrannical Government how to express it in finer words and more significant terms than these That the people shall be governed at the Kings Will that their Charters the sinews and ligatures of their Liberties Lands and Estates should be nothing worth and bind no longer than the Kings pleasure especially being spoken upon such an occasion and the words proved by two or three Witnesses of credit and quality From thence we descend to Articles that shew the execution of his purpose There are three things a man enjoys by the protection of the Law that is his Life his Liberty and his Estate And now my Lords observe how he invades and exercises a Tyrannical Jurisdiction and Arbitrary Government over them all three I shall begin with the fifth Article that is concerning my Lord Mountnorris and Denwit My Lord Mountnorris a Peer of that Realm was sentenced to death by procurement of my Lord of Strafford who howsoeve he pretends himself not to be a Judge in the cause yet how far he was an Abettor and Procurer and Countenancer and drawer on of that Sentence your Lordships very well remember he was sentenced to death without Law for speaking words at a private Table God knows of no manner of consequence in the world concerning the treading upon my Lord of Strafford ' s Toe the Sentence procured seven months after the words spoken and contrary to Law and himself being put in mind of it my Lord Mountnorris desiring to have the benefit of the Law and yet he refusing it And then it was in time of Peace when all the Courts of Justice were open and to sentence a man to death of that quality my Lord of Strafford himself being present an author a drawer on of it makes it very hainous Your Lordships remember this Article was fully proved and though he pretends His Authority by a Letter from His Majesty I shall in due time give a full answer to that so that it shall rise up in judgement against him to aggravate his offence and that in a great measure Here he exercises a Power over Life his excuse was That he procured a Pardon from my Lord Mountnorris but the Power was exercised and the Tyranny appeared to be the more He would first sentence him to death and then rejoyce in his Power that he might say There remains no more but my command to the Provost Marshal to do execution To exercise a power over his life and to abuse him afterwards is very high but no thanks to him that the sentence of death was not executed it was the Grace and Goodness of His Majesty that would not suffer my Lord Mountnorris a person of that Eminence to be put to death against Law But the other was hanged and as appears against Law and though my Lord pretends the party was burnt in the hand yet that was not proved nor material and for him to do this in time of Peace when the Courts of Justice were open it argues a desire in his Breast to arrogate a Power above Law And in truth I may not omit some observations that my Lord made this day He hopes His Majesty would be pleased to grant him a Pardon I perceive he harboured in this thoughts that he might hang the Kings Subjects when he would and then get a Pardon of course for it The Lord bless me from his jurisdiction My Lords give me leave to goe back again here is Power over the Lives and Liberties of the Subject but he exercised likewise a Tyrannical Power over his Estate Your Lordships may be pleased to remember the fourth Article where he judges my Lord of Cork's Estate in neither Church-land nor Plantation-land and therefore had no pretence of a Jurisdiction for it is a Lay Fee divolved by Act of Parliament to the Crown yet he deprives him of his possession which he had continued for Twenty nine years upon a Paper-Petition without rules of Law And whereas my Lord of Cork went about to redeem himself the Law being every man's inheritance and that which he ought to enjoy he tels him He will lay him by the heels if he withdraw not his Process and so when he hath judged him against an express Act of Parliament and Instructions and bound up a great Peer of the Realm he will not suffer him to redeem that wrong without a threat of laying him by the heels and he will not have Law nor Lawyers question his Orders and would have them all know an Act of State should be equal to an Act of Parliament which are words of that nature that higher cannot be spoken to declare an intention to proceed in an Arbitrary way The next was in my Lord Mountnorris his Case and Rolstone And here I must touch my Lord with misrepetition Rolstone preferred a Petition to my Lord Deputy my Lord Deputy himself judges his Estate and deprived him of his possession though he cannot produce so much as one example or precedent though if he had it would not have warranted an illegal action but he cannot produce a precedent that ever any Deputy did determine concerning a mans private Estate and if he hath affirmed it he proved it not some Petitions have been preferred to him but what they be non constat But though never any knew the Deputy alone to determine matters of Land yet he did it To the Seventh Article we produce no Evidence but my Lord of Strafford cannot be content with that but he must take upon him to make defence for that which is not insisted upon as a charge but since he will do so I refer it to the Book in print where he determines the Inheritance of a Nobleman in that Kingdom that is my Lord Dillon by a Case falsly drawn and contrary to his consent and though he deprives him not of his possession yet he causes the Land to be measured out and it is a danger that hangs over his head to this day And had we not known that we had matter enough against my Lord of Strafford this should have risen in judgement against him but I had not mentioned it now if he had not mentioned it
himself The Eighth Article contains several charges as that of my Lord Chancellor How he imprisoned him upon a Iudgement before himself and the Council how he inforced the Seal from him when he had no authority nay though it were excepted by his Patent that he should no way dispose of it but he looked not to Authority further than might make way to his Will Another concerns the prime Earl of that Kingdom my Lord of Kildare whom he imprisoned and kept close prisoner contrary to the Kings express command for his deliverance and in his answer my Lord acknowledges it but sayes That that command was obtained from the King upon a mis-information These things I would not have mentioned if he had passed them over but since he gives them in give me leave to mention and say we had a ground to put them into Charge and could have proved them if there had been need punctually and expresly and I believe little to my Lords advantage But your Lordships I think do remember my Lady Hibbots Case where the Lady Hibbots contracts with Thomas Hibbots for his Inheritance for 2500 l. executes the Contract by a Deed and Fine levied deposits part of the Money and when a Petition was exhibited to the Lord Deputy and Council for the very Estate your Lordships remember how this came in judgment before my Lord Deputy there was but a Petition delivered there was an answer made and all the suggestions of the Petition denied yet my Lord spake to Hibbots himself that was willing to accept the Money not to decline the way that he was in by Petition Five hundred pound more will do him no hurt to carry into England with him and yet without examination of a Witness a Decree was made to deprive this Lady of her Estate and the purchasing of this Land by my Lord of Strafford was proved by two Witnesses though not absolutely yet by confession of Sir Robert Meredith and others whose names were used in Trust for my Lord of Strafford and that it proved according to my Lord of Straffords Prophecy for the man had five hundred pounds gain above the Contract with my Lady Hibbots But after the Lands were sold for Seven thousand pounds so that the Lady Hibbots offence was her making of a bargain whereby to gain Five hundred pounds but there was no offence in my Lord to make a bargain for Three thousand pounds and to gain Four thousand pounds presently this you see proved by Hibbots the party and by Mr. Hoy the Son of the Lady Hibbots So that here is a determination of a Cause before the Council-Table touching Land which was neither Plantation nor Church-Land without colour of the Instructions contrary to Law to Statute to Practice and if this be not an exercising of an unlawful jurisdiction over the Land and Estates of the Subject I know not what is In his answer to this case he did open it yet whether he mistook or no I know not that he had a Letter from the King but he produces none in evidence and that is another mis-recital I am sorry he should mis-recite and fix it upon the Person of His Sovereign in a case of this nature Now he falls more immediately upon the liberty of the Subject and that is by the Warrant mentioned in the Ninth Article to be issued to the Bishop of Down and Conner whereby he gives power to him and his Officers to apprehend any of the Kings Subjects that appeared not upon Process out of his Ecclesiastical Courts expresly contrary to Law and your Lordships have heard how miserably the Kings Subjects were used by this Warrant as hath been proved by a Gentleman of Quality Sir Iames Mountgomery And howsoever he pretends it was called in it was three whole years in execution before it was called in and though he pretends his Predecessors did ordinarily grant Warrants of that nature yet he proves no such thing My Lord Primate was examined and he says that Bishop Mountgomery did tell him there was such a Warrant and one Witness more speaks of one Warrant and that is all the Witnesses produced and that but to be a Copy too Your Lordships have heard how he exercises his jurisdiction and power over particulars and that in a numerous manner now your Lordships shall find it universal and spread over the face of that Kingdom that was under his jurisdiction and that is in the tenth Article which concerns the Customs where he doth impose upon the Kings Subjects a Rate and Tax against Law and enforces them to pay it or else punishes them for it which is expresly an arrogating to himself of a jurisdiction above the Law My Lords in his answer he pretends that this is rather a matter of fraud than otherwise in truth and so it is and that a great one too But as it is a fraud a dis-service and deceit to His Majesty so it is likewise an exercise of a Tyrannical Jurisdiction over his Subjects That it is a fraud to His Majesty it plainly appears for the King lost exceedingly by it whereas before the Rent afforded the King was 11050. l. there was improved by the new Lease that my Lord of Strafford took but 1350 l. and I beseech your Lordships observe how much the King lost by it for my Lord had comprehended in his new Lease the Impost of Wine for which the King before that time received 1400 l. a year and likewise the Custom of London-derry Colerane and Knockfergus for which the King had reserved 1700 l. a year besides the moity of the seizures so here is 5000 l. that the King lost of the old Rent expresly and if your Lordships please observe the gain and benefit my Lord of Strafford made by it in one year he and his sharers received 39000 l. and in the last year 51000 l. and that expresly proved upon two accounts and if this be his dealing where is his service to the King in his pretence to advance the Customs It is true he says The King hath five eighth parts but it was but within these two years the King had it not before And I would very gladly have heard whether the King received his part of an account of 55000 l. if he had received it I believe we should have heard of it My Lords There is something more here is a new imposition on the Kings people without Law and yet I will do my Lord of Strafford no injury but I tell you how the proof stands It was a Book of Rates framed before he came to the farm for the Book of Rates was in March and the Date of his Assignment was in April following and therefore my Lord saith It could not be for his benefit But my Lords all this while my Lord of Strafford was in England and in agitation for the procuring of it and they come one upon the heels of another and I beseech you observe cui bono the Book of
by two witnesses concerning the Kings being loose and absolved from rules of Government and if they did not hear those words no marvel they did not hear the other and therefore that which he himself pretends to be a convincing testimony is nothing at all so that his objections are clearly taken away and the single testimony fortified with testimonies that make above one witness and so the words are fully proved But to fortify the whole I shall handle all these Articles together This design to subvert the Law and to exercise an Arbitrary power above the Law in this Kingdom will upon the proofs putting them altogether and not taking them in pieces as my Lord of Strafford hath done appear to have been harboured in his thoughts and setled in his heart long before it was executed You see what his Counsels were That the King having tryed the affections of his people was loose and absolved from all rules of Government and might do every thing that power would admit and His Majesty had tryed all ways and was refused and should be acquitted of God and Man and had an Army in Ireland wherewith if he pleased he might reduce this Kingdom so there must be a trial of his people for Supply that is denyed which must be interpreted a Defection by refusal and this refusal must give advantage of necessity and this necessity must be an advantage to use his Prerogative against the rule of the Law and consent of the People this is his advice which shews that this very thing that happened did harbour in his thoughts long before the breach of the Parliament and the occasion of the Army Your Lordships have heard it confessed by himself That before this last advice he had advised the calling of a Parliament To the Parliament a proposition of Twelve Subsidies was made for supply and which may be spoken with great assurance before they had consulted or given any resolution to that proposition the Parliament was dissolved upon a supposal that the Supply was denied Now that this was pre-designed by my Lord of Strafford himself I beseech you observe these things following that is The words in the Two and twentieth Article That His Majesty was first to try the Parliament and if that did not supply him then he would serve the King any other way His words are proved by Mr. Treasurer That if the Parliament supplyed him not he would serve him any other way and this is before the Parliament set now if your Lordships hear the proofs of my Lord Primate which my Lord of Strafford slights taking it singly My Lord Primate before the Parliament was called when my Lord of Strafford was in Ireland and not yet come into this Kingdom testifies my Lords saying That if the Parliament will not supply His Majesty the King was acquitted before God and Man if he took some other course to supply himself though against the will of the Subjects I beseech your Lordships observe how he prophesies these things must come to pass and advised them accordingly My Lord Conway testifies that before the Parliament sate my Lord of Strafford said that if the Parliament would not supply His Majesty the King was acquitted before God and Man if he took another course to supply himself though it were against the will of the Subject and he doubts not but the Parliament would give What Twelve Subsidies and your Lordships very well remember Twelve were propounded but I beseech you observe the coherence of all the Parliament must be called they must be tryed if they deny there is necessity and this necessity is a Warrant for the King to proceed so that my Lord of Strafford must be judged to be either a Prophet or to have this design beforehand in his thoughts Now the Parliament being broken before answer to the Demand given he vents his Counsel in the Three and twentieth Article and how far it is proved your Lordships have heard Now comes the Bullion to be seized the Copper-money to be advised and now comes he to tell the King that the Aldermen of London must be put to Fine and Ransome and laid by the heels and no good would be done till some of them be hanged so you hear his advice I beseech your Lordships observe what success this advice took Four Aldermen were instantly committed and then the Counsel of the Three and twentieth Article is fomented First He foments the War then there is a necessity the defection of the Parliament must set the King loose from rules of Government and now see whether the occasion of the War the calling of the Parliament the dissolving of it be not adequate to what he propounded to himself namely to set up an Arbitrary Government Your Lordships remember how fresh my Lord of Bristols memory is touching my Lord of Straffords opinion upon the dissolution of the Parliament how he declared unto my Lord of Bristol instantly within three or four days after That the King was not to be mastered by the frowardness of his people or rather of some particular persons and your Lordships remember Sir George Wentworths words spoken the very day of dissolving the Parliament which may be very well applyed as a concurrent proof to his intentions of bringing the Army into England He was my Lords own Brother that knew much of his Counsel and his words are That the English Nation would never be well till they were conquered over again So my Lords put all together if he declared his own intentions if actions in executing this Tyrannical and Arbitrary Power if Counsels of as dangerous consequence in as high a strain as can be be not a sufficient Evidence to prove an intention and desire to subvert the Law I know not what can prove such an interpretation and now I refer it to your Lordships judgements whether here be not a good proof of the Article laid to his chage My Lords in the Seven and twentieth Article he is charged with levying of War upon the Kings people by forcing them in Yorkshire to pay Money to prove they were so forced you have heard by two witnesses that Sergeant Major Yaworth by Musquetiers four together in the Town and one by one out of the Town did compel them to pay the fortnights contribution else they were to serve in person That he did this by Warrant is likewise confessed by Sir William Pennyman and whether this were an authority derived from or commanded by my Lord of Strafford that is the question and my Lords it is plainly proved that it was commanded by my Lord of Strafford for Sir William Pennyman himself being examined alledged that the Warrant was made in pursuance of the relation and direction made by my Lord of Strafford Your Lordships heard what my Lord of Strafford did say before-hand as is proved by two witnesses Sir William Ingram and Mr. Cholmley that this Money should be paid or levied on the Subjects Goods Then his Declaration
to fix this offence to fasten this oppression upon the King himself to make it to be believed that the occasion of these their groans proceeded from His Sacred Majesty yet God be thanked the strength of that Sun is powerful enough to dispel these vapours and to disperse the cloud that he would have raised but in the mean time my Lord is nothing to be excused My Lords he may pretend zeal to the Kings Service and affection to His Honor but give me leave not to believe it since when he is questioned by all the Kings people and in the face of his people and offences laid to his charge which himself now confesses to be against Law he should justify it under the Kings authority that savours not of a good servant I will say no more My Lords he is charged with exercising a tyrannical power over the Kings people and in his Defence your Lordships have often heard and I may not omit it that he shelters himself under the protection of the Kings Prerogative though he be charged with Tyranny of the highest nature that may be see then how foul and malignant an aspect this hath My Lords what is it else but to endeavour as much as in him lies to infuse into the Kings heart an apprehension that His Prerogative is so bottomless a Gulf so unlimited a Power as is not to be comprehended within the rules of Law or within the bounds of Government for else why should he mention the Prerogative when he is charged to exceed the Law What is it else but as far as in him lies to make the people believe for I may not forget the words he hath used by his magnifying of the Prerogative that it hath a special stamp of Divinity on it and that the other part of the Government that God pleases to put into the Kings hands had not that stamp upon it as if any thing done by one was to be justified by authority derived from Heaven but the other not These expressions your Lordships remember and I may not omit to put your Lordships in mind of them and I can expound them no otherwise than as much as in him lies to make the subject believe and apprehend that which is the buckler and defence of his protection to be the two-edged sword of his destruction according to the Doctrine he Preached and that that which is the Sanctuary of their Liberty is the snare and engine of their slavery And thus he hath cast a bone of contention as much as in him lay betwixt King and People to make the Subjects loath that glorious Flower of his Crown by fixing a jealousie in them that it may be a means of their bondage and slavery But there is so much Piety and Goodness in the Kings heart that I hope upon fair understanding there will be no such occasion but no thanks to the party that so much advanced the Prerogative in the case and condition he stands in to justify that which is laid to his Charge of High Treason My Lords I beseech you give me leave there is no greater safety to Kings and People than to have the Throne incircled with good Counsellors and no greater danger to both than to have it encompassed with wicked and dangerous ones and yet I beseech you call to mind how he hath attempted to deprive the Subject of all means to discover this danger by insinuating to your Lordships what a dangerous thing it were if Counsellors should be called in question for giving of Counsel for who then saith he would be a Counsellor where is your safeguard where is the Kings service Is not this as much as in him lies to deprive the people of the means whereby they must make themselves happy and whereby the King must be happy that is by his having good Counsellors about him and yet he infuses that venom that the questioning of Counsellors is dangerous both to King and Peers if it should be brought into example My Lords for many years by-past your Lordships know an evil spirit hath moved amongst us which in truth hath been made the Author and ground of all our distractions and that is necessity and danger this was the bulwarke and the battery that serves to defend all exorbitant actions the ground and foundation of that great invasion of our Liberties and Estates the judgement in the Ship-money and the ground of the Counsel given of late to do any thing and to perswade the King that he was absolved from all rules of Government and yet your Lordships have observed in the course of his defence how often he hath raised this spirit that God be thanked hath been laid to the great comfort of King and Kingdom by your Lordships and all the Commons in Parliament And when he stands under this question and goes about to justify his exorbitant actions how often hath he created this Idol again and therefore I am afraid he discovers too much his own heart in it My Lords I may not omit some other passages in his Defence How he hath cast scandals upon three Nations in this place that is in his first day of Defence when the Irish Remonstrance made by all the Commons of Ireland was produced by the Commons of England he expressed in a passion that things were carried against him by faction and correspondence and if he had time he would make it appear with a strong conspiracy Here is a scandal cast upon the Parliament of Ireland with a reflection on the Commons of England howsoever it is true your Lordships may remember the recantation he made that day which I will not omit desiring not to lay any thing to his charge but what is true but it is the reflection of a scandal that I cannot omit to put your Lordships in mind of and the rather because this Remonstrance presented from the Parliament of Ireland did bear date before my Lord of Strafford was charged here which is very remarkable viz. the 7th of November and therefore though he pretends a correspondence certainly there could be none then for he is not charged here till the Tenth And the same day justifying a Sentence in the Castle-Chamber your Lordships remember he affirmed that unless a strict hand were kept upon the Nation there they would find it hard to prevent perjury one of the most crying sins in Ireland Now to lay an aspersion upon the Subjects of Ireland being under the Government of the same King with us how fit this is to be done by a man in that condition that my Lord of Strafford is I referr to your consideration Another passage I remember whereby in his Defence he fell upon that Nation in answer of which I may not omit to do the service I owe to the Commons for whom I am trusted and that is that talking of an Arbitrary and Tyrannical Government in reference to some Orders of the Commons-House in Ireland he used words to this purpose You
talk of an Arbitrary Government look upon these Orders here is an Arbitrary Government and yet when he produced the Orders they appeared to have so much justice and discretion in them that he can lay nothing to the charge of them though in a passion he is not backward to asperse them My Lords If this Lyon to use his own language now that he is chained and muzled under the restraint and question of High Treason will here take the boldness to vent this Language and express this Malignity How would he doe if he were unchained How would he devour How would he destroy c. My Lords Something concerns your Lordships your Lordships remember that he was not backward in his own answer to fix a Charge of High Treason upon the Lords of the Great Council and howsoever he hath affirmed this day I must open it again That the Charge of the Seven and twentieth Article he fixes in his Answer to be by consent of the Lords of the Great Council though he hath since recanted it and yet you have heard him alledge that he will stand and fall by the truth of his answer My Lords I am now at an end You have my Lord of Strafford here questioned for High Treason for going about to subvert the Fundamental Laws of both Kingdoms in defence whereof your noble Ancestors spent their Lives and Bloods My Lords you are the Sons of those Fathers and the same Blood runs in your veins that did in theirs and I am confident you will not think him fit to live that goes about to destroy that which protects your Lives and preserves your Estates and Liberties My Lords You have the complaints of Three Kingdoms presented before you against this great person whereby your Lordships perceive that a great storm of distemper and distraction hath been raised that threatens the ruine and distraction of them all The Commons with much pain and diligence and to their great expence have discovered the Ionas that is the occasion of this Tempest They have still and will discharge their Consciences as much as in them lies to cast him out of the Ship and allay this Tempest They expect and are confident your Lordships will perfect the work and that with expedition lest with the continuance of the storm both Ship and Tackling and Mariners both Church and Common-wealth be ruined and destroyed Saturday May 1. 1640. The King came to the House of Lords and sent for the Commons thither and made this Speech to both Houses I Had not any intention to speak of this business which causes me to come here to day which is the great Impeachment of the Earl of Strafford But now it comes to pass that of necessity I must have part in that Judgment I am sure you all know that I have been present at the Hearing of this great business from the one end to the other that which I have to declare unto you is shortly this THAT in my Conscience I cannot condemn him of High Treason It is not fit for me to argue the business I am sure you will not expect it A Positive Doctrine best comes out of the mouth of a Prince Yet I must tell you Three great Truths which I am sure no body can know so well as my self 1. That I never had any intention of bringing over the Irish Army into England nor ever was advised by any body so to do 2. There never was any Debate before me neither in publique Council nor at private Committee of the Disloyalty and Disaffection of my English Subjects nor ever had I any suspition of them 3. I was never Counsell'd by any to alter the least of any of the Laws of England much less to alter all the Laws Nay I must tell you this I think no body durst be ever so impudent to move me in it for if they had I should have put a Mark upon them and made them such an example that all Posterity should know my intention by it for my intention was ever to Govern according to the Law and no otherwise I desire to be rightly understood I told you in my Conscience I cannot Condemn him of High Treason yet I cannot say I can clear him of misdemeanor Therefore I hope that you may find a way for to satisfy justice and your own fears and not to press upon my Conscience My Lords I hope you know what a tender thing Conscience is Yet I must declare unto you that to satisfy my People I would do great matters But in this of Conscience no fear no respect whatsoever shall ever make me go against it Certainly I have not so ill deserved of the Parliament at this time that they should press me in this tender point and therefore I cannot expect that you will go about it Nay I must confess for matter of misdemeanor I am so clear in that that though I will not chaulk out the way yet let me tell you that I do think my Lord of Strafford is not fit hereafter to serve me or the Common-wealth in any place of Trust no not so much as to be a High-Constable Therefore I leave it to you my Lords to find some such way as to bring me out of this great streight and keep your Selves and the Kingdom from such Inconveniences Certainly he that thinks him guilty of High Treason in his Conscience may Condemn him of Misdemeanor The House of Commons as soon a they returned seemed to be much discontented with what the King had spoken and immediately Adjourned till Monday following on which day being the Third of May Mr. Pim makes known to the House that there are divers Informations given of desperate Designs both at home and abroad against the Parliament and the Peace of the Nation and that the persons engaged in it are under an oath of Secresie that there is an endeavour to disaffect the Army not only against the proceedings of the Parliament but to bring them up against the Parliament That there is a design upon the Tower that there is an endeavour for the Earl of Strafford to escape That those Combinations at home have a Correspondency with practises abroad and that the French are drawing down their Forces in all hast to the Sea-side and that there is cause to fear their intent is upon Portsmouth That divers persons of Eminency about the King as by good Information appears are deeply ingaged in the Plot That it is necessary the Ports be stopt and that His Majesty be desired to Command that no person attending upon the King Queen or Prince do depart without leave of His Majesty with the humble Advice of His Parliament The Commons hereupon fell into serious debate of this matter and the same day came to a Resolution of taking a Protestation which was accordingly taken by the Speaker and about 300 Members then present Man by Man WE the Knights Citizens and Burgesses of the Commons-House in
formerly And it was resolved by us all if the King should require our assistance in those things that as far as we could we might contribute thereunto without breaking the Laws of the Kingdom And in case the King should be denyed those things being put to them we would not fly from him all these persons did Act and Concur in this as well as I. This being all imparted to the King by me from them I perceived he had been Treated with by others concerning some things of our Army which agreed not with what was proposed by me but tended to a way more sharp and high not having limits either of Honor or Law I told the King he might be pleased to consider with himself which of the ways it was fit for him to hearken unto for us we were resolved not to depart from our grounds we should not be displeased whosoever they were but the particular of the Designs or the Persons we desired not to know though it was no hard matter to guess at them In the end I believe the danger of the one and the justice of the other made the King tell me he would cast off all thoughts of other Propositions but ours as things not practicable but desired notwithstanding that Goring and Iermin who were acquainted with the other proceedings should be admitted amongst us I told him I thought the other Gentry would never consent to it but I would propose it which I did and we were all much against it but the King did press it so much as at the last it was consented unto and Goring and Iermin came to my Chamber there I was appointed to tell them after they had sworn to Secrecy what we had proposed which I did But before I go into the Debate of the way I must tell you Iermin and Goring were very earnest Suckling should be admitted which we did all decline and was desired by all our men to be resolute in it which I was and gave many Reasons whereupon Mr. Goring made answer he was ingaged with Suckling his being imployed in the Army but for his meeting with us they were content to pass it by Then we took up again the ways that were proposed which took great debate and theirs differed from ours in Violence and Heigth which we all protested against and parted disagreeing totally yet remitted it to be spoken of by me and Iermin to the King which we both did and the King constant to his former Resolutions told them these wayes were all vain and foolish and would think of them no more I omit one thing of Mr. Goring he desired to know how the Chief Commands were to be disposed of for if he had not a Condition worthy of himself he would not go along with us We made answer That no body thought of that we intended if we were sent down to go all in the same capacity we were in he did not like that by any means and by that did work so with Mr. Chidley that there was a Letter sent by some of the Commanders to make him Lieutenant-General and when he had ordered this matter at London and Mr. Chidley had his Instructions then did he go to Portsmouth pretending to be absent when this was a working we all desired my Lords of Essex or Holland to be General but Goring and Iermin were for Newcastle They were pleased to give Report that I should be General of the Horse but I protest neither to the King nor any else did I so much as think of it My Lord of Holland was made General and so all things were laid aside and this is the Truth and all the Truth I knew of these proceedings and this I will and do protest unto you upon my Faith and Wilmot Ashburnham and O-Neal have at several times confessed and sworn I never said any thing in the business they did not every one agree unto and justify This Relation I sent you rather to inform you of the truth of the matter that you may the better know how to do me good but I should think my self very unhappy to be made a betrayer of any body what concerned the Tower or any thing else I never medled withal nor ever spake with Goring but that night before them all and I said nothing but what was consented unto by any party I never spake one word with Suckling Carnarvan Davenant or any other creature Methinks if my Friends and kindred knew the Truth and Justice of the matter it were no hard matter to serve me in some measure Afterwards was read Father Philips's Letter to Mr. Mountague as followeth THe good King and Queen are left very naked the Puritans if they durst would pull the good Queen in pieces Can the good King of France suffer a Daughter of France his Sister and her Children to be thus affronted Can the wise Cardinal endure England and Scotland to unite and not be able to discern in the end it is like they will joyn together and turn head against France A stirring active Ambassador might do good here I have sent you a Copy of the Kings Speech on Saturday last at which time he discharged his Conscience concerning the Earl of Strafford and was advised to make that Speech by the Earl of Bristol and the Lord Savile This Speech did much operate to the disadvantage of the Earl of Strafford for the Commons were thereby much incensed and inflamed against him and this brought forth the next day being Monday a Protestation which was taken in both Houses of Parliament of the same nature but rather worse than the Scotch Covenant The Londoners who are very boysterous came upon Monday 5 or 600 and were so rude that they would not suffer the Lords to come and go quietly and peaceably to their House but threatened them that if they had not Justice and if they had not his Life it should go hard for all those that stood for him following them up and down and callâ—g for Iustice Iustice Iustice. There was in the House of Commons Fifty six that denyed to pass the Earl of Straffords Bill their Names were taken and they were fixed upon Posts in divers parts in London and there was written over head These are Straffordians the Betrayers of their Countrey By this means it came to pass that the Lords and Judges were much affrighted and the most of his friends in the Lords House forsook him all the Popish Lords did absent themselves the Lords of Holland and Hartford were absent so was Bristol and others Savil and the Duke only stuck close and faithfully to him and some few other Lords God knows the King is much dejected the Lords much affrighted which made the Citizens and the House of Commons shew their heads some have braved little less than to Unthrown His Majesty Who if He had but an ordinary Spirit might easily quash and suppress these people Our good Queen is much afflicted and in my
correspondency with and bringing in of Signior Georgio Parsons the Oratorian Priest by whose direction this Priest being at Paris left wearing of Priests Cloaths and went in the Habit of a Gentleman and because he had a shaven Crown therefore he wore a Periwig and Father Philips directed all those that sent to write to him as to an Italian Gentleman desirous to see these Kingdoms and by Father Philips's direction he afterwards came hither who did here contrive for the space of two years practising great and dangerous Innovations from place to place and then having dispatched his business returns to Rome with great Presents from the Catholicks of the greater sort XII Whereas it hath pleased God to bless us with a hopeful Prince to the comfort of our King and Kingdom yet the said Father Philips hath attempted to traduce his tender years to Popery but God hath prevented him of his purpose and let us pray to God to preserve that Royal Race from Popery and the whole Land from all Innovations that Our Gracious King may rule Gloriously and the whole Land live in peace to the Honor of God and Comfort of us all Amen Resolved That Mr. Henry Peircy in the Months of March and April last in the Parish of St. Martins in the County of Middlesex did compass Plot and Conspire with others to draw the Army together and imploy the same against the Parliament and by force and dread thereof to compel the Parliament to agree to certain Propositions by them contrived and to hinder and interrupt the Proceedings of the Parliament The like Resolution in the same words concerning Mr. Iermin Sir Iohn Suckling c. Resolved That in pursuance of the said Design the said Henry Peircy by the Plot and Combination aforesaid did endeavour to perswade divers Members of the House of Commons of the said Parliament and others being Officers of the said Army that is to say Wilmot Ashburnham Berkley Pollard and Daniel O-Neal that they were disobliged by the Parliament thereby to incense them and to affect them against the Parliament and did hold divers consultations with the said parties to effect the said wicked and dangerous Design and to that purpose did set down in Writing certain Propositions to the effect as followeth viz. The preserving of Bishops in their Functions and Votes The not Disbanding of the Irish Army until the Scots were Disbanded And the endeavouring to settle the Kings Revenue to the proportion it was formerly Resolved That the said Henry Peircy did in pursuance of the Plot and Combination aforesaid and for the more secret carriage thereof administer to the said parties a wicked and unlawful Oath whereby they did swear upon the Holy Evangelists not to reveal any thing that was spoken concernig the business that was in Consultation directly or indirectly nor to think themselves absolved by any other Oath that should be after taken by them from the Secresie enjoyned by the said Oath Resolved That the said Henry Peircy at the time of the said Oath was taken and at divers other times did propound and endeavour to perswade the persons before-named and other Officers of the said Army to put the said Army into a Warlike posture and to bring them up to London and likewise to make themselves sure of the Tower and so by force to compel the Parliament to conform to their Will and he with Suckling c. did endeavour to work a belief in the said Army that the King and Parliament would disagree and so to persuade them to adhere to His Majesty against the Parliament and said that all the French about the City of London would assist them and to the great scandal of the King That the Prince and the Earl of Newcastle were to meet the Army at Nottingham with a Thousand Horse and that Suckling to encompass the Design of gaining the Tower did contrive that 100 Men under Capt. Billing sley should be designed for that purpose when the opportunity was offered To the end the City of London should not be able to make any resistance when the said Army should come up according to the forementioned Design and Suckling by the means and Plot aforesaid did thereby endeavour that the Earl of Strafford then Prisoner in the Tower might the better incompass his escape That Berkley and O-Neal being questioned did flye for the same Resolved That upon the whole matter Mr. Pierce shall be charged with High Treason the like for Iermin and Suckling That 3000 l. of the Pole-money be paid to Col. Goring for the use of the Garrison of Portsmouth Resolved That Col. Goring in his Depositions concerning this Discovery hath done nothing contrary to Justice and Honour but hath therein deserved very well of the Commons of this House Friday the 7th of May the Lords passed the Bill of Attainder as also the Bill for the Continuance of this present Parliament Saturday the 8th of May Mr. Hotham was sent with a Message to the House of Lords to desire their Lordships to joyn with them to move His Majesty for his Consent to the Bill of Attainder in regard the peace of the Ringdom doth so much depend upon the execution of that Bill which had passed both Houses and accordingly a certain number of the House of Peers were sent unto His Majesty to acquaint him therewith and also with the Bill for the Continuance of this present Parliament The House being informed That Ships were ready to be put to Sea but that Mariners could not be got It was the same day Resolved That a Bill should be drawn to enable the Pressing of Mariners for a certain time the House being very tender of bringing the way of Pressing into example by a Law Sunday the 9th of May the King called His Privy Council together at Whitehall and propounded several scruples unto them concerning that Bill some of the Judges and Bishops were present also to whom His Majesty imparted his doubts and had their opinions therein In Fine His Majesty gave Order for a Commission to impower the Earl of Arundel the Lord Privy Seal and two other Lords to give his Assent to the Bill for the Execution of the Earl of Strafford upon Wednesday following as also to the other Bill for the continuance of this present Parliament Monday the 10th of May the Commission passed the Great Seal accordingly and the Commons were sent for to the House of Lords to be present at the giving the Royal Assent to both those Bills The same day His Majesty sent a Message to both Houses that the Irish Army should be instantly disbanded and that he would that night dispatch an Express for the expediting thereof It was hereupon moved That Mr. Treasurer be desired by the House of Commons to return their Humble thanks to His Majesty and to assure him that they would make him as Glorious a Potentate and as rich a Prince as any of His Predecessors His
yet by his Speeches full of Oaths and Asseverations that we were Traitors and Rebels casting off all Monarchical Government c. He extorted from them four new Subsidies indicta causa before we were heard procured that a War was undertaken and Forces should be levied against us as a rebellious Nation which was also intended to be an example and precedent to the Parliament of England for granting Subsidies and sending a joynt Army for our utter ruine According to his appointment in Parliament the Army was gathered and brought down to the Coast threatning a daily invasion of our Countrey intending to make us a conquered Province and to destroy our Religion Liberties and Laws and thereby laying upon us a necessity of vast charges to keep Forces on foot on the West Coast to wait upon his coming And as the War was denounced and Forces levied before we were heard So before the denouncing of the War our Ships and Goods on the Irish coast were taken and the owners cast in prison and some of them in Irons Frigats were sent forth to scour our Coasts by which they did take some and burn others of our Barques Having thus incited the Kingdom of Ireland and put his Forces in order there against us with all hast he cometh to England In his parting at the giving up of the Sword he openly avowed our utter ruine and desolation in these or the like words If I return to that Honourable Sword I shall leave of the Scots neither root nor branch How soon he cometh to Court as before he had done very evil Office against our Commissioners clearing our proceedings before the point So now he useth all means to stir up the King and Parliament against us and to move them to a present War according to the precedent and example of his own making in the Parliament of Ireland And finding that his hopes failed him and his designs succeeded not that way in his nimbleness he taketh another course that the Parliament of England may be broken up and despising their Wisdom and Authority not only with great gladness accepteth but useth all means that the conduct of the Army in the expedition against Scotland may be put upon him which accordingly he obtaineth as General Captain with power to invade kill slay and save at his discretion and to make any one or more Deputies in his stead to do and execute all the Power and Authorities committed to him According to the largeness of his Commission and Letters Patents of his devising so were his deportments afterwards for when the Scots according to their Declarations sent before them were coming in a peaceable way far from any intention to invade any of His Majesties Subjects and still to supplicate His Majesty for a setled Peace he gave order to his Officers to fight with them on the way that the two Nations once entred in Blood whatsoever should be the success he might escape Trial and censure and his bloody designs might be put in execution against his Majesties Subjects of both Kingdoms When the Kings Majesty was again enclined to hearken to our Petitions and to compose our differences in a peaceable way and the Peers of England convened at York had as before in their great wisdom and faithfulness given unto His Majesty Counsels of Peace yet this Firebrand still smoaketh and in that Honourable Assembly taketh upon him to breath out threatenings against us as Traitors and enemies to Monarchical Government and threatened that we be sent home home again in our blood and he will whip us out of England And as these were his Speeches in the time of the Treaty appointed by His Majesty at Rippon that if it had been possible it might have been broken up So when a cessation of Arms was happily agreed upon there yet he ceaseth not but still his practises were for War his under-Officers can tell who it was that gave them Commission to draw near in Arms beyond the Teese in the time of the Treaty at Rippon The Governor of Berwick and Carlisle can shew from whom they had their Warrants for their Acts of hostility after the cessation was concluded It may be tryed how it cometh to pass that the Ports of Ireland are yet closed our Countreymen for the Oath still kept in Prison Traffique interrupted and no other face of affairs then if no cessation had been agreed upon We therefore desire that your Lordships will represent to the Parliament that this great Incendiary upon these and the like offences not against particular persons but against Kingdoms and Nations may be put to a Tryal and from their known and renowned Justice may have his deserved punishment THis Noble Earl was in person of a tall stature something inclining to stooping in his Shoulders his Hair black and thick which he wore short his countenance of a grave well composed Symetry and good Features only in his Forehead he exprest more Severity than Affability yet a very courteous Person And as he went from the Tower to the Scaffold his Countenance was in a Mild posture between dejection in contrition for Sin and a high Courage without perceiving the least affection of disguise in him He saluted the People as he walked on foot from the Tower to the Scaffold often putting off his Hat unto them sometimes to the right and sometimes to the left hand being apparelled in a Black cloth Suit having White Gloves on his Hands And tho at this time there were gathered together on the great open place on Tower-Hill where the Scaffold stood a numerous croud of people standing as thick as they could by one another over all that great Hill insomuch as by the modest computation they could not be esteemed to be less than 100000 people yet as he went to the Scaffold they uttered no reproachful or reflecting Language upon him He had Three Wives the First the Lady Margaret Clifford Sister to the Earl of Cumberland who left no issue The Second the Lady Arabella Hollis Sister to the Earl of Clare who left him his only Son William now Earl of Strafford and Two Daughters The Third Wife was Daughter to Sir Francis Rhodes of Yorkshire by whom he had one Daughter an Infant at the time of his death On the First of December in the 17th year of the Kings Reign by His Majesties Letters Patents his Son William was restored to all his Fathers Dignities and Titles and was made Knight of the most Noble Order of the Garter having doubled his Paternal Glorys and his own by marrying the worthy Daughter of two incomparable Parents Henrietta Maria the Daughter of Iames Earl of Darby and Charlotte Daughter of Claude Duke de Temoille and Charlotte of Nassaw Daughter to William Prince of Orange A brief Account of his Secretary Slingsby MR. Slingsby his Secretary after the death of this Noble Lord presently left the Kingdom and was received beyond the Seas into the Queens favour and by Her
great Piety he did publiquely express it when His own Sacred Life was taken away by the most detestable Traytors that ever were For all which Causes be it Declared and Enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords Spiritual and Temporal and Commons in this present Parliament Assembled That the Act Entituled An Act for the Attainder of Thomas Earl of Strafford of High Treason and all and every Clause and Article and thing therein contained being obtained as aforesaid is now hereby Repealed Revoked and Reversed And to the end that Right be done to the memory of the deceased Earl of Strafford aforesaid Be it further Enacted That all Records and Proceedings of Parliament relating to the said Attainder be wholly Cancell'd and taken off the File or otherwise Defaced and Obliterated to the intent the same may not be visible in after ages or brought into example to the prejudice of any person whatsoever Provided That this Act shall not extend to the future questioning of any person or persons however concerned in this business or who had any hand in the tumults or disorderly procuring the Act aforesaid Any thing herein contained to the contrary thereof notwithstanding THE TABLE A. ABstract of the Earls Answer to the 28 Articles Pa. 22. to 30 Account Introductive of several Passages previous to the Tryal of Thomas Earl of Strafford p. 1. Accusation of High Treason of Thomas Earl of Strafford p. 3. Accusation of Sir George Ratcliffe p. 4. Act of Attainder at large 756. Mr. St. Johns Argument of Law concerning the same 675. to 705. It is read a Second time 47. Lord Digby's Speech to that Bill 50. Exceptions taken thereat by some Members 55 Act of Attainder as also the Act for continuance of this present Parliament past the Lords 755 A Message to the Lords to send to His Majesty for His consent to the Bill of Attainder and the continuance of this present Parliament 755. Act of Reversal of this Bill of Attainder 778 Adjournment of the Commons upon the Kings Speech May 1. 735. Answer of the Earl read containing 200 sheets of Paper 22. Army in Ireland new levied to be disbanded 18 and 42 Eight Articles against the Earl in maintainance of his Accusation 8 9. Articles of High Treason voted against Sir George Ratcliffe 17. Twenty eight Articles against the Earl sent up to the Lords 20. They are at large inserted 61. Article II. read charging the Earl with words saying The Kings little finger should be heavier than the loins of the Law c. 149. Names of Witnesses their Evidence Exception taken Interlocutory Passages Defence and Reply as to that Article 149 to 155. Artice III. read charging him with words saying That Ireland was a conquered Nation that the King might do with it as he pleased 155 Names of Witnesses their Evidence Exception taken Interlocutory passages Defence and Reply as to that Article 156 to 172 Artic. IV. read charging him with words that he would make all Ireland know That any Act of State there made should be as binding as an Act of Parliament 173. Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Article 174 to 185. Article V. read charging him that he did procure to be given against the Lord Mountnorris sentence of death in a Council of War 186 and the sentence read 187. Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Article 188 to 204. Article VI. read charging him with putting the Lord Mountnorris out of possession of his Freehold upon a Paper-Petition 205. Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Aticle 205 to 213. Article VIII read Charging him with causing the Lord Loftus Lord Chancellor of Ireland to be close prisoner 221. Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Article 222 to 235. Article IX read Charging him with assuming a Power above Law to give a general Warrant to the Bishops Officers to Arrest the Body of such as do not obey Ecclesiastical Decrees Sentences c. and to commit them and a Copy produced 236 237. Passages Interlocutory Defence and Reply 238 to 240. Article X. read Wherein he is charged with procuring the Customs to be Farmed to his own use and did procure the Native Commodities of Ireland to be rated in the Book of Rates for the Customs 241 The Case stated by Mr. Maynard 242 Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Article 243 to 250 Article XI Agreed for the present to be laid aside 252 Article XII read Charging him with making a Monopoly of Tobacco getting the whole Trade into his hands 401 Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Article 402 to 412 Article XIII read Charging him with getting great quantities of Flax into his hands enjoyning the working thereof into Yarn and Thread c. 416 Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Article 416 to 428 Article XIV Laid aside for the present 425 Article XV. read Charging the Earl with imposing great sums of Money upon people without Warrant or colour of Law and causing the same to be levied by Troops of Soldiers 426 The Charge opened by Mr. Geoffrey Palmer 427 Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Article 427 to 454 c. Article XVI read charging him with putting forth a Proclamation commanding the Nobility c. not to depart that Kingdom without his Licence 460 The Article opened by Mr. Palmer who proceeded to manage the Evidence 461 Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Article 462 to 481 Interlocutory passages after the Reply 484 to 487 Article XIX read Charging him that he did with his own Authority contrive and frame a new and universal Oath against the Scots in Ireland 489 The Article opened by Mr. Whitlock 490 The Oath tendred to the Scots read 494 Names of Witnesses their Evidence Exceptions taken Interlocutory passages and Defence 494 to 498 More Interlocutory passages 499 to 502 The Oath tendred to some of the Scotch Nation refident in England 503 The Reply to the Earls Defence 508 Article XX. read Charging him with endeavouring to perswade and provoke His Majesty to an Offensive War against His Subjects of Scotland c. 515 Article XXI read Charging him with compelling His Majesty to call a Parliament in England with design to break the same and by Force and Power to raise Money 516 Article XXII read Charging him to have procured the Parliament in Ireland to declare their assistance in a War against the Scots and to raise an Army of 8000 Foot and 1000 Horse
Westminster-Hall during the Trial 41 King 's little finger heavier than the loins of the Law see Art 2. 149 King's Letter on behalf of the Earl 757 Sir Robert King a Member of Parliament in Ireland sent for as a Witness against the Earl 4. L. LEtter to Sir Jacob Ashley and Sir John Conyers to prevent a Design to engage the Army against the Parliament 745 Letter from the King to moderate the severity of the Law against the Earl 755 Letter from the Earl to his Secretary Slingsby before his death 774 Loftus Lord Chancellor made a close prisoner see Art 8. 221 Twelve Lords send to His Majesty to shew favour to his innocent Children 758 M. MAriners a Bill to be drawn to enable the pressing of them 755 Members of Parliament in Ireland sent for by the Commons 4 5 6. A Committee touching the Examination of Members of both Houses named 14 15 16 Members make a protestation of Secresie 16 Four Members viz. Mr. Selden Palmer Maynard and Whitlock added to the Committee for the Earl who made their Protestation of Secresie 32 Members appointed to view the place of Trials 39 Members desired by the Earls Petition to be heard as Witnesses 40 Some Members of the Lords House desired by the Commons to be made use of as Witnesses 44 Members names of the House of Commons whom the House desires to be present at the Trial as Witnesses 44 Message from the Lords for a Conference by a Committee of Thirty of their House with a proportionable number of this House touching the examination of Members c. 10 Message to the Lords about disbanding the new levied Irish Army 42 Message to the Lords to appoint a day for the Earl to conclude his Trial 44 Both Houses agree that if the Earl come not to morrow the House of Commons may sum up their Evidence and conclude 45 Message to acquaint the Lords that the Proceedings by Bill stand in no way of opposition to what hath been already done 48 Moneys without Parliament to be raised by force see Art 21. 516 Monopoly made of Tobacco see Art 12. 402 Sir Walter Montague Sir Toby Mathews c. to be removed from Court 42 Lord Montnorris his Case of Ireland to be reported by the Committee Montnorris sentence of death pronounced against him see Art 5. 186 Sentence read 187 Concerning his being put out of possession of his Freehold see Art 6. 205 Multitudes of people assembled in Westminster 742 Petition from them desiring Iustice against the Earl communicated to the Commons ibid. They depart upon the Lords taking the Protestation 742 N. LYsimachus Nicanor his scandalous Pamphlet Printed 770 Earl of Northumberland made General of the Royal Army in England upon whose sickness the Earl of Strafford was made Lieutenant-General Anno 1640. 769 Earl of Northumberland communicates Mr. Percies Letter to the Peers 748 Earl of Northumberland Lord High Admiral of England 769 O. OAth contrived against the Scots in Ireland see Art 19. 489 The like to the Scots in England 503 Offensive War against the Scots urged by the Earl see Art 20. 515 A Troop of Reformed Officers to be disbanded 15 Officers c. Warrant to them see Art 9. 236 P. PAper posted up at Sir William Brunkards House in the Old Palace-yard declaring the names of many persons to be enemies of Iustice 59 Parliament in Ireland declare against the Scots see Art 22. 517 People assemble in multitudes at Westminster 742 Petitions Orders and Books of Entries of Impositions c. sent for out of Ireland 8 Petitions and Complaints of proceedings in Ireland reported 10 Petition of the Parliament of Ireland to the King read 15 Petition of the Earl to examine some Members of this House read 40 Two Petitions of the Citizens of London read 55 One of them concerning Grievances inserted 56 Petition from a multitude of people at Westminster desiring Iustice against the Earl communicated to the Commons 742 A discovery in the Petition of Soldiers to be brought into the Tower ibid. Father Philips's Letter to Mr. Walter Montague read 751 He is called to the Bar and is impeached 752 Mr. Piercy's Letter concerning the Plot 748 to 750 Mr Piercy and Sir John Suckling voted to be guilty of High Treason 754 Plot discovered in England 735 Upon which the House resolves on a Protestation ibid. Preamble thereunto ibid. The Protestation read 736 Names of the Protestors 736 to 740 The Plot still suspected to be carried on 740 Ports in Ireland to be open 46 1500 Barrels of Powder gone to Portsmouth to be stayed 740 Lord Primate of Ireland his Examination debated 44 Proceedings by way of Bill no way in opposition to what hath been already done 48 Proclamation to issue out against Sir George Ratcliffe if he appear not at the day limited 16 Proclamation by the Earl commanding the Nobility to reside in Ireland see Art 16. 460. Protestation of Secresie taken by the Members 16 The same taken by the four Members added to the Committee for the Earl 32 Protestation of the Lords denying that they did approve of the Earls raising Money in Yorkshire 37 38 Protestation resolved on by the House upon the discovery of the Plot in England 735 Carried up to the Lords to take the same 741 Mr. Hollis's Speech to the Lords to promote the taking thereof 742 The Protestation taken by the Lords and the multitude depart ibid. Q. THe Queen came to her private Closet in Westminster-Hall during the Trial 41 Queen-Mother apprehending her self in danger of the Multitude Mr. Martyn moved the House that she may depart the Kingdom 758 R. LOrd Ranelaghs debate about his Examination 174 Not to be examined 175 Sir George Ratcliffe not to speak with or write to the Earl of Strafford 15 A Proclamation to issue out against him if he appear not at the day limited 16 Articles of High-Treason voted against him 17 Records of Attainder a Committee appointed to search those Cases in the Kings-Bench 7 Reformado-Officers to be disbanded 15 Remonstrance of Ireland reported by Mr. Whistler 7 Remonstrance of the House of Commons in Ireland read 11 12 13 114. No Replication to be put in to the Earls Answer 32 Strafford A Committee of Irish Affairs of the whole House designed in order to his Accusation 1 He is in a great Dilemma in the North 2 His intended Impeachment of some Members disappointed ibid. He is accused of High-Treason 3 Sequestred from the Parliament and Committed to the Black Rod ibid. Examination of Witnesses to be taken previous to his Tryal in the presence of some of the Commons 6 Records of Attainder in the Kings Bench to be search'd in order to a Bill of Attainder 7 Irish Remonstrance reported which reflected on his proceedings in Ireland 7 and 10 Petitions Orders and Books of Proceedings upon Paper-Petitions and of Entries relating to the Custom-House in Ireland sent for 7 8 Articles in maintainance of the Accusation of the said Earl 8
very vain and defective if they had not a power to secure and preserve themselves The Forfeitures inflicted for Treason by our Law are of Life Honor and Estate even all that can be forfeited and this Prisoner having committed so many Treasons although he should pay all these Forfeitures will be still a Debtor to the Common-wealth nothing can be more equal then that he should perish by the Justice of that Law which he would have Subverted neither will this be a new way of Blood There are Marks enough to trace this Law to the very Original of this Kingdom and if it hath not been put in Execution as he alleadgeth this 240 years it was not for want of Law but that all that time hath not bred a man bold enough to commit such Crimes as these which is a circumstance much aggravating his Offence and making him no whit less liable to punishment because he is the onely Man that in so long a time hath ventured upon such a Treason as this It belongs to the Charge of another to make it appear to your Lordships that the Crimes and Offences proved against the Earl of Strafford are High-Treason by the Lawes and Statutes of this Realme whose Learning and other Abilities are much better for that Service But for the time and manner of performing this we are to resort to the Direction of the House of Commons having in this which is already done dispatched all those Instructions which we have received and concerning further Proceedings for clearing all Questions and Objections in Law your Lordships will hear from the House of Commons in Convenient time THE ARGUMENT Of Mr. LANE The PRINCE'S ATTORNY-GENERAL On the Behalf of the Earl of STRAFFORD In Point of Law MY Lords I shall not at all touch the Matter of Law further than to clear your Judgments of one Statute only viz. 25 E. 3. because when the same was Alleadged by the Lord Strafford in his own Defence that not being Convict of the Letter thereof he could not be Convict of Treason Remember the Salvo of the Statute was much insisted upon by those from the House of Commons as much Conducing to their Ends. My Lords I will first speak of the Statute it self and then of it's Salvo or Provision The Statute is That if any Man shall Intend the Death of the King His Queen their Children kill the Chancellor or Judge upon the Bench Imbase the Kings Coyn or Counterfeit the Broad-Seal c. he shall be Convict and Punisht as a Traytor That the Lord Strafford comes not within the Letter of this Statute is not so much as once alleadged nor indeed it cannot be with any Reason All that can be said is That by Relation or by Argument a Minore ad Majus he may be drawn into it yet that this cannot be I humbly offer these Considerations First This is a Declarative Law and such are not to be taken by way of Consequence Equity or Construction but by the Letter only otherwise they should imply a Contradiction to themselves and be no more Declarative Laws but Lawes of Construction or Constitutive Secondly This is a Penal Law and such if our Grounds hitherto unquestion'd hold good can admit of no Constructions or Inferences for Penalties are to perswade the Keeping of Known Lawes not of Lawes Conjectural Ambiguous and by Consequence which perhaps the most Learned may not in their Disputes question much less the Subject who is not obliged to Interpret the Statute doubt of in the point of Obedience yea rather without any doubt he is rather to obey the Letter of the Statute and conceive and that truly that he is not liable to the Penalty Thirdly We have a Notable Law 13 Eliz. cap. 2. whereby it is declared That the Bringing in of Bulls from Rome to stir up the Subject to Mutiny and Rebellion shall be punished as Treason Now if by Interpretation or by Consequence this Sence might have been thrust upon the Preceding Statutes the making of this had been superfluous yea the Persons then charged with that Crime might have been impeached of Treason even before the making of this Act. Anno 21 Edw. 3. We have a Statute declaring That for a Servant to Kill his Master is an Act of Treason and in the 23 th year of the same King a Process of Treason was framed against a Man for Killing his Father grounded upon the same Argument a Minore ad Majus But it was found and the Sentence is yet in Records that although in the 21 th year of Edward the Third that Argument might have been admitted yet in the 27 th it could not by Reason of the Declarative Law Intervening in the 25 th year and this Case comes very home to the Point in Law My Lords I will not demand What kind of Offence it may be for a Man to Subvert the Fundamental Laws of the Kingdom the Crime doubtless is Unnatural and Monstrous and the Punishment must keep the same Proportion only I Presume to Offer these few things to your Lordships Consideration 1. That one or more Acts of Injustice whether Malitiously or Ignorantly done can in no sence of Law be called The Subversion of the Fundamental Laws if so as many Judges perhaps so many Traytors 't is very Incident to Mans Nature to erre nor doth the Lord Strafford plead his Innocency in Oversights but in Treason 2. I do Remember the Case of Iohn de la Pole Duke of Suffolk this Man in the 28 th of Henry the Sixth was Charged by the House of Commons with Articles of Treason and those too very like to these against my Lord Strafford I. That he had given the King bad Advices II. That he had Embased His Coyn. III. That he had Sessed Men of War IV. That he had given out Summary Decrees V. That he had Imposed Taxes VI. That he had Corrupted the Fountain of Justice VII That he had perswaded the King to Unnecessary War and the giving over of Anjou in France And for all these though he was charged with High Treason for wronging the Right of the Subject and Subverting the Fundamental Lawes of the Kingdom yet after a long agitation the Matter was found by the Lords of the Parliament not to Imply Treason but only Felony Add to this another who in the 23 d of Henry the Eighth was Charged for subverting the English Laws and yet no Treason charg'd upon him Add to both the Charge of Richard Larkes Pleaded at the Common-Pleas who was Charged with Treason for Subverting the Law but Convicted onely of Felony By which you may see my Lords what to this time hath been Subverting the Lawes 3. It is very considerable That the Lord Strafford is not charged to have Subverted but onely to have Intended to Subvert the Fundamental Lawes and this I conceive if there were no more might keep him free from that Statute the 25 th of Edward the Third For although as touching the