Power in granting Pardons for poenalties of the same was heavier then the Kings Loyns That this was his expression he verified First by the occasion for he spake the words a long time since to some Men who had lain imprisoned at York and were then by the Kings favour set at Liberty whom he incited to thankfulness by this expression towards his Majesty Secondly by witnesses produced by him In the examination of their witnesses he convinced one of them of untruth by interrogating him where he was when the speech was heard and how far distant from him when the Man had replied that he was twelve Yards from him he answered that it was impossibly for him to hear a Man three Yards off by reason of a deafness that had held him 14 years which being found true the witness was rejected Another witness Sir David Fouls was brought against him against whom he excepted as his known and professed Enemy 't was told him that he himself did not use to admit of exceptions against Witnesses and therefore was to expect the same measure He replyed that Master Pim might one day perhaps be atached for perswading the House of Commons to commit the same Crime that was laid upon him as a Charge of Treason But for all this the Witness was received because in matter of Treason a Mans Enemy may witness against him pro Domino nostro Rege Though I suppose the Kings advice was never asked for the present This was all that was done for that time On Thursday he was charged with the second Expression That he said Ireland was a Conquered Kingdom and that the King might prescribe them what Law he pleased This they aggravated as a prime note of his Tyrannical will and affection that would permit no Law to bound the Subject but what himself and such as he might draw up by sinistrous informations from a gracious and well meaning Prince and if this were admitted the whole Power and Liberty of the Republique would be utterly lost To this he replied that neither was the Expression in those words nor in that sence spoken or meant by him The first part of it said he cannot be denied To the second that he had said only that the King was the Law-giver which he hoped none could deny without incurring the Crime of Treason And that the Kings Sentence was a Law in matter not determined by Acts of Parliament which all but disloyal Subjects would grant and that it had ever been his endeavour to have the Liberty of the Subject and the Royal Prerogative follow both in one Channel If either of them crossed other we could expect nothing but a Subversion of the Common-Wealth either by Tyranny or Rebellion That the Prerogative was like the first the Liberty of the Subject like the second Table either both or neither can be preserved that in his duty he stood obliged first to the King as Gods Anointed then in the second place to his Countrey if it did not crosse the Regal Power And therefore hoped that what he had spoken was so far from being Treason that he thought a thousand such Expressions would not make up one Fellony On Friday the two other Expressions were followed That he said He would not suffer his Ordinances to be disputed by Lawyers before inferiour Judicataries and that he would make an Act of State equivalent to an Act of Parliament To the first he said that he had often said more then once that he would not suffer his Ordinance to be contemned because in him his Masters Honour was wounded To the second He thought a proportionable obedience was due to Acts of State as well as to Acts of Parliament otherwise they were made in vain if that both did not bind in one kind The Lord Cork though his mortal Enemy was now examined and admitted as a Witness whom in his Deposition he convinced of two shameful oversights For Corke had declared upon his Oath that the Lieutenant had caused to be interlined an Ordinance against himself and had caused some words to be scraped out which words were notwithstanding still found to be in the Sentence by an authentique Copy under the hand of Sir Paul Davison Clerk to the Councel-board of Ireland Then Cork alleaged that he had advanced a Groom of his to be a Preacher who by a Testimony from the University of Dublin he verified to have been a Master of Arts ten or twelve years before his advancement adding withal that my Lord of Cork was an excellent Scholler who was able to breed such Grooms Upon Satturday having done with his Expressions they canvased the first Article about his Actions Against the Lives of the Kings Subjects both in the Case of the Lord Mount-Norris and also of another of the Kings Subjects both of whom he had Sentenced to Death by Martial-Law contrary to all Law and to the manifest Subversion of the Priviledges of Subjects Magna Charta and the Petition of Right To the Lord Mount-Norris his Case he Replied 1. That though that Sentence had been unjustly given and rigorously prosecuted against him yet the greatest Crime that he could be charged withal would but amount to Man-Slaughter or Fellony at the most 2. That he hoped though this were true to obtain a Pardon from his gracious Master the Kings Majesty as well as Conway and Sir Jacob Ashley had lately done for eâ—ercising Martial Law in the Northern Army Then he Replied to all the parts of the Charge which were four 1. That he had exercised Martial Law in time of Peace To this he Answered 1. That all Armies have been and must be governed ever by Martial Law 2. That there is a standing Army in Ireland and therefore the Case is all one is time of Peace or War And that the Army might be undone if they should not use Martial Law but were to expect Remedy for the setling of a Mutiny or assurance of obedience from the Common Law 3. That it had ever been the practise of the Deputies particularly of Wilmot Faulkland Chichester yea Cork himself and therefore was no new thing brought in by him This he proved both by the production of the Military Ordinances and by divers Witnesses who knew Sentences given in that kind by them 4. That he had a particular Warrant in his Commission for this Power 5. That in the Lord Mount-Norris his Case he was commanded to exercise the same by the Kings particular Letter both which he caused to be read The second Charge was That he was both Party and Judge in the Lord Mount-Norris 's Cause To this he Replied That he had sitten in Judgment because he was one sine quo non the Judgment could not proceed without him but that he was not Judge but Party appeared 1. Because he sate discovered all the time 2. Because he refused to give his own Opinion 3. Because he did not give his Suffrage
about the two first particulars but did hear of none and that it was no small disadvantage to him to be charged with a great many odious Crimes by a Book Printed and flying from hand to hand through the whole Kingdom yet when they came to prove there should be no such thing laid against him Secondly About the Speeches He ingeniously confessed that some such thing might perhaps have escaped the dore of his lips when he saw their backwardness to his Majesties Service and as the times were then conditioned he did not think it much amiss to call that faction by the name of Rebels but yet he thought he had abundantly satisfied for that oversight if it was any at York For having understood there that the City of London were willing to make a Loan of Money he there before the great councel of the Peers expressed himself to this sence that the Londoners had sufficiently made up all their delays hitherto by their Act that the King was oblieged to their forwardness and that he himself should be as ready to serve them as any poor Gentleman in England About the other words he said that being in conference with some of the Londoners there came at that time to his hands a Letter from the Earl of Leicester then at Paris wherein were the Gazets inclosed reporting that the Cardinal had given some such order as to leavy Money by forces this he said he only told the Lord Cottington standing by without the last application or intention concerning the English Affairs Cottington being examined upon this declared the same in the same manner Thirdly to Sir Ralph Freeman he said that his Testimony did not concern the Charge at all nor did he think any thing amiss in it though he had said it if the Servants of the Mint refused 〈◊〉 work according to directions they did deserve the House of Correction nor was it Treasonable to say the King might use that House for the Correction of his Servants as well as any Man in the Citty for theirs Fourthly He said that there was no great likelyhood that he had committed real Acts of Treason when his adverse party was content to trifle away so much time about words neither was there any Treason in them though they had been fully verified and therefore in that as in all other Articles he reserved a power for his Councel to dispute in matter of Law They went to the Twenty seventh Article and Charged thus That immediately after his Appointment to be Lord Lieutenant to the Army here in England he shewed what Principles of Arbitrary Government lurked within his bosom for by his own immediate Authority without and against Law he had laid Impost of Money upon the Kings Subjects where they mention three Particulars First That he had imposed 8 d. per diem upon the County of York for entertaining the Trayned Bands there one whole Month. Secondly That they had sent out Warrants for collecting the same and threatned to imprison such as should refuse to pay Thirdly That he said that it was a Crime nigh to the Crime of high Treason not to pay the saâ— Fourthly They added that in his general Replies he had brought two things for his defence first that this mony was freely and voluntarily offered by those in York-shire secondly that the great Councel of the Peers had notice of the same To the first they answered that a Petition was indeed preferred by the York shire men and a Month pay offered but that the Lord Srafford had refused to present the same upon this exception only because in the same they had petitioned for a Parliament whereby he evidently declared what little â—nclination he had to that way To the Second They appeal'd to all the Lords present whether any such Order did pass before the Council of the Peers at York The Proofs were First A Warrant issued by Colonel Pennyman for this Money and another by Sir Edward Osborne Secondly Mr John Burrowes who declared that he was Clerk to the great Council but did remember of no Order and withal added that it might have passed at that time when he attended at Rippon Thirdly Mr. Dunston who declared that he had known that Money levied by some Musqueteers Fourthly By Sir William Ingram who declared that he had heard the Lieutenant say that to refuse the same came nigh to the Crime of High Treason The concluded the Charge That by these Particulars it was more than evident what unhappyâ— Purposes and Trayterous Designes he had to subdue this Kingdom and subvert the Fundamental Laws and Priviledges First To the Petition That it was a true Petition drawn up by the York-shire Gentlemen and as true that he had refused to present the same because of that clause about the Parliament but the matter was thus At his Majesties coming to York it was thought necessary for the defence of that County to keep the Trayned Band on foot because the Enemy was upon the Borders and therefore the King directed him to write to all the Free-holders in York-shire to see what they would do for their own defence The Time and Place were designed by the King but the night before the Meeting a small Number convented and in a private and factious way did draw up that Petition upon the morrow at their appointed Diet in presence of the whole Number the Petition was presented to him where he did advise them to leave out that Clause and that because he knew the King out of his own Gracious Disposition had intended to call a Parliament which he desired should rather be freely done than upon the constraint and importunity of Petitions moreover it would seem a Mercenary thing in them at one and the same time to offer a Benevolence and withal to Petition for his Favour upon this Remonstrance they were all willing to recall the Petition and directed him by word of Mouth to offer unto the King the Months pay in their Names which he did accordingly in the presence of Forty of them to their no small advantage This he proved by Sir William Pennyman Sir Paul Neale Sir George Wentworth Sir William Savil Sir Thomas Danby who all of them declared as much in ample terms and withal added That nothing was done upon better grounds of Necessity and Obedience than the Offer of â—hat Money and that they never had heard any man grudge against it to this time For the Second about the Council of Peers he alledged that he never made mention of any Order of theirs but he remembred very well it was twice propounded before them that the King had approved it at that time a just and necessary Act and none of the Council had contradicted it which he conceived as a tacit approbation and an Order in Equivalence But though that had not been yet there was nothing done in the Business but at the special desires of the Gentlemen themselves and for their necessary
one way or other 4. Because he removed his Brother Sir George from having hand in the Proces in regard of interest of Blood The third Charge was That he proceeded summarily in the matter of the Lord Mount-Norris He Replied First that he was not Judge in it and that the Councel of War was to be answerable in the Justification of their own Proceedings That after a long reasoning he had heard them say that no delay could safely be granted in Martial Courts The fourth Charge was That he had not heard the Exceptions made by Mount-Norris against his Witnesses To this he answered as before That he was not Judge in the Case and that he remembers no Exceptions made against any Witnesses To which he added that as he had been regulated in his Proceedings so he had been moderate in the Execution of that Sentence For though the Lord Mount Norris justly deserved to dy yet he had obtained him the Kings Pardon for the saving of his life and protested that he intended nothing by that Sentence but in some measure to repair his own Honour and to give Mount-Norris fair reproof who was known to be of an exorbitant and licentious Tongue and Spirit Adding that if the House of Commons would go on the same way with him and assure him that the Issue of his Charge should be nothing else but to admonish him for the time to come he would thank them heartily for it and study amendmant in all pretended oversights And whereas Mount-Norris complained that he had jeeringly told him when the Sentence was passed and pronounced against him That ere he lost his head himself would lose his Hand He answered that he had been thought to be very insolent and haughty yet he was never so impertinent to use this expression If any fault were it was for undervaluing himself in saying that ere a hair of Mount-Norris should perish he would lose his hand And truly said he if Mount-Norris would say so to me now even in the worst sence that can be conceived that ere I died he would lose his hand I would take it very kindly from him For the other man he avouched that he himself had voiced to hang him both because he was an arrant Thief and also had fled from his Colours which by the Common-Law and to this effect he cited a Statute 20. Hen. 6. and 7. Hen. 7. That to fly from their Colours is Fellony He concluded that seeing he was not accessary to the Sentence against Mount-Norris had not sate there as Judge had a power to keep Martial-Courts by his Commission had not exercised the same till a new Command came from his Majesty had done no more than ever was practised in Ireland before his time and had at least obtained Mount-Norris his Pardon he hoped there was nothing accusable in him but his too remiss and too moderate Proceedings Master Glin bitterly Replied That he knew the time when the Earl of Strafford was no less active and stirring to enlarge the liberty of the Subject and advance the Petition of Right than now he is for extending his own Arbitrary and Tyrannical Government To this he Replied without the least semblance of Passion that if at any time he had done the least service to the House of Commons he thought his whole life well spent nor could they ever so graciously reward him as to give Commission to that Gentleman to express so much before that Honourable Assembly But withall if ever any such thing was done by him he intreated it might now be remembred and might now serve to over ballance some sleight and mean oversights committed by him which he hoped should never make him guilty of Treason unless it were Treason for a Man to have no more wit and Prudence than God and Nature had bestowed upon him And so much for Saturday Upon Monday he was charged with the sixth Article That he had used a Tyrannical Government not only over the Lives as appeared by the last but also over the Lands and Goods of the Kings Subjects as appeared by this Article wherein he was Charged to have dispossessed the Lord Mount-Norris of a Tenure of Lands by a Summary Process before himself contrary to all Law and therefore had failed 1. Against the Act 7 Hen. 6. which provides all matters to be determined by the ordinary Judges 2. Against the Cautions sent to Ireland by King James expresly forbidding such power hereafter to be exercised 3. Against the Kings late Proclamation 4. Against the practice of all Deputies before that time Withal they added That it was a Tyranny that could not be expressed to exercise this power over the Persons of the Peers of the Land and their Goods To this he replied That for his part in matter of Justice under favour he spake it he thought there was no distinction to be made betwixt a Peer of the Land and one of the Commons except they did think that either Fear or Faction should do somtehing which had no place in him To the Particulars 1. That the Act of Hen. 6. answered it self sufficiently both because it excepted the Court of Requests and that his proceedings were nothing else in Ireland and also makes an express Reservation of the Kings Prerogative which he said was his strength because he derived his Commission from the King and that the Act was the most express warrant in the world for him 2. That he had not failed against the Cautions given by King James 1. Because they were not Charged upon him 2. Because they were never observed nor could be by the Deputies to whom they were given which he proved both by Witnesses and Writings 3. Because the Caution made rather for him than against him in that it contained the Word Hereafter which manifestly implyed that the Power had been somtimes before exercised in Ireland and not only by himself and therefore thanked them for that Testimony and hint 4. That though the Cautions had been given to him yet he had received an express Command from the King his Master to put that Power in use causing the Kings Letter for that purpose to be read and professing withal that he was tender to exercise that Power till the King induced by the humble Remonstrance of the meaner sort of people had most peremptorily and upon most just Reasons commanded him 3. That he could not obey the Kings Proclamation five years before it came out and that he wished from his heart that they would but respect the Kings Commands and Commissions with that tenderness of Affection and Obedience as he did his Proclamations 4. He proved it to be the constant practise of all Deputies that went before him It was Objected That other Deputies had indeed upon Suits of Equity determined themselves and matters of Debt but never of Land He Replied First That the same Authority reacheth as well to the one as to
upon him and by withdrawing so great Sums of Money from the Crown had weakned the King prejudiced the Subject of the Protection they were to expect from him and had been the cause that the extraordinary way of Impost and Monopolies had been undertaken for supplying of the Royal Necessity And that this Act therefore ought to be enough to make the Charge and Impeachment of High Treason laid against him The Lieutenants Reply was That he conceived he had given full satisfaction to all hitherto brought against him about that pretended Arbitrary Government nor would he spend time in vain Repetitions for the present Article though in all its parts it were granted to be true yet he could not perceive by what Interpretation of Law it could imply the least Act of Treason and when it should be directly Charged upon him as a point of Misdemeanor Oppression or Felony he made no doubt but he should be very able to clear himself abundantly in that point also yet lest any prejudice might stick to his Honour by these bold Assertions he was content to step so far out of the way as to give Answer First That it concerned him nothing what particulars in the Lease had past betwixt the King and the Dutchess of Buckingham or whether she had obtained a more eaâ—ie condition than the Duke her Husbands especially seeing that same was granted some years before his coming to that Government yet thus much he could say that the Dutchess had paid thirty thousand pound fine and therefore no marvail her yearly Rent was the less Secondly For the Book of Rates wherein the chief matter of Oppression and Grievance seemed to rest the same was there established by the Deputy Faulkland An. 1628 three years before his going into Ireland and therefore it was exceeding strange in his apprehension now that could rise up in judgment against him Thirdly That he had his interest in the Customs by Assignation of a Lease from the Dutchess which was given her before his Government nor did he ever hear it alledged as a Crime of Treason for a man to make a good Bargain for himself Fourthly That not of his own accord but at the Kings special Command he had undergone that Charge on hopes that upon the enquiry into the worth thereof the Customs might be improved for the Benefit of the Crown and the true value thereof discovered This he proved by the Lord Cottington and Sir Arthur Ingram Fifthly That when a new Book of Rates was recommended to man by the Council Board of England in the time of his Lease he so far preferred a fear he had That the Trade of Ireland might thereby be discouraged before his own Commodity as he presumed in all humility to refuse the said Book of Rates and tendred his Reasons thereof to the Kingdom and Council-Board of England Sixthly That he never understood that the Customes could aâ—â—e to those great Sums alledged but though they should yet his advantage was but â—mall for first dividing the fourteen thousand pounds he paid to the King then five parts of eight which was yearly given in upon Oath and that procured first by himself at the Exchequer-Board the other three parts 〈◊〉 ideâ— amongst four of them which were equal sharers in the Lease would not amount to any great Sum of Money And therefore except it were Treason for him to have â—mproved the Kings Revenue encouraged the Trade and refused the new Book of Rates he could in his own weak â—udgment discern none there nor could he think it a Crime for him to take an Assignation of a Lease granted before his time and to insist in the Book of Rates used before his coming over and therefore was confident the Lords would rather take his Accusation as an exercise of Rhetorick in the Gentlemen his Adversaries than as a thing spoken in good earnest by them The same day the Eleventh Article concerning Tobacco was Charged on by the same man Mr. Glyn after this manner That for the farther advancement of his Tyrannical and Avaritious Designs he had of himself established a Monopoly for the restraint of Tobacco in that Kingdom where they offered Five Particulars to the Proof First That he had restrained the Importation of Tobacco Secondly That in the mean time he had brought in a great quantity himself and sold the same at exorbitant Prices Thirdly That of Tobacco already imported he had forbidden any to be sold but was first sealed by his Officers Fourthly That upon a pretended Disobedience he had punished a great Number of People by Seizures Imprisonments Fining Whipping Pillory and such like cruel and inhumane Vsages Fifthly That by these means he had gained one hundred thousand Pounds yearly For Proof hereof First The Proclamation for restraining Tobacco was read Secondly The Proclamation about the Sealing of the same Thirdly Some Witnesses who declared that Ships had been restrained from Landing Tobacco Fourthly Others who had known some Tobacco seized on as forfeited Fifthly The Remonstrance of the House of Commons in Ireland declaring that the Earl had sold 500 Tun of Tobacco which sold at 2 s. 6 d. per pound amounts to 100000 l. They concluded the Charge That he had sucked up the Blood and eaten up the Kings Liege-People and had by this one point of Oppression raised greater Sums to himself than all the Kings Revenue in that Kingdom extended unto And therefore was liable to the Crime of Treason for troubling the Peace and bereaving the People of their Goods who were entrusted into his Care and Government The Lieutenant's Reply was That his most secret Thoughts were conscious of nothing but of a sincere intention and endeavour to promote and advance the wellfare of that Kingdom and withal he conceived by their leaves that nothing in that Charge could have the least reference to Treason yet as he said before for removing of all prejudice he was content to answer First That long before his coming to Ireland the same restraint had been of Tobacco and the same Impost of eighteen pence per pound enjoyned by King James Secondly That at that time the Tradesmen for this Commodity paid but twenty pounds a year to the Crown for the Impost but now 400 l. Thirdly That the Parliament in Ireland 1628 had Petitioned to have this Impost setled by an Act of State for ever afterwards as a part of the Revenue of the Crown Fourthly That he had express Command from the King for issuing those Proclamations and therefore could not imagine more danger in them than in others for Monopolies in England in the worst sence Fifthly That the Proclamations were not put forth by himself alone but by the whole Councel-Board of Ireland Sixthly That for the Contract of Tobacco he was so tender of it that it was sent over hither and seen and approved of by the Councel-Board of England before it was condiscended to in Ireland For the Proclamations he told them it
Defence and Protection yeâ— though he had done it by himself alone yet he conceived he had so much power by his Commission causing the Commission to that effect to be read That albeit he should mistake his Commission and do some inferiour Act beyond it because Military proceedings are not alwayes warranted by the Common Law yet it should not be imputed as an Act of Treason to him And to this effect read a Statute of the Seventh of Henry the Second To the Proofs First Colonel Pennyman's Warrant or Sir Edward Osburnes it nothing concerned him and he doubted not but these worthy Gentlemen could justifie their own Act and that he had enough to do to answer his own Misdemeanors Secondly For Sir John Burrowes he was at Rippon when that Proposition was made Thirdly That as the Warrant so neither the Execution troubled him at all Fourthly For Sir William Ingram he was but a single Testimony and that such an one too as he could produce an Evidence to testifie he had mistaken himself in his Testimony upon Oath if it were not to disadvantage the Gentleman He concluded That he had done nothing in that Business but upon the Petition of that County the King 's special Command the Connivance at least of the Great Council and upon a present necessity for the Defence and Safety of the County And so much for Wednesday Upon Thursday the Committee for the Charge declared that they had done with all the Articles and were content to wave the last for Reasons best known to themselves only Sir Walter Earles added that he had some Observations to bring forth upon the two and twentieth Article which he conceived might do much to prove the Earl of Strafford's Designs for Landing the Irish Forces in England And they were First That in his Commission he had Power to Land them in Wales or in any part of England or in Scotland which were altogether superfluous unless there had been some purpose for the same Secondly That within two days before the Date of the Commission Letters were sent to the Lord Bridgewater and Pembroke from Sir Francis Windebank to assist the Earl of Worcester in Levying Forces for the Kings Service and these might be supposed to have intended a joyning with the Irish Thirdly That the Lord Ranelaugh at the raising of the Irish Army did fear such a Design as this Fourthly That the Town of Ayre in Scotland where the Lord Strafford pretended he would Land those Forces was fortified with a Bulwark a Garrison and Block house which would prohibit Landing there that the Earl of Argile's Bounds were divided thence by the Sea and that the Barr or Entry into the Town was very dangerous and shallow The Proofs were only the Reading of the Commission granted to the Lord Strafford The Lieutenants Reply First That his Commission was the same Verbatim with Northumberland's for England and and that it was drawn up by the Council-Board here and sent over unto him so no more Design in him than in the Gentlemen of the English Army nor no larger than that was put upon him Secondly That this was the first time he heard of any such Letters nor did they concern him more than any of the House Thirdly That he was not bound to purge the Lord Ranelaugh from all his Fears and that he had his own Fears too which God forbid should be Evidence of Treason against any man whatsoever Fourthly That it seemed the Gentleman had better Information from that Kingdom than himseâ—f yet he would be confident to say at Ayre there was never such a thing as a Block-House or Garrison But to remove all Scruples for indeed the Road or Landing-place is not there safe he declared that it was his intention to have Landed some Miles above Ayre and made only his Magazine of that Town To the Earl of Argiles Bounds he hoped the Gentleman knew they came not on foot out of Ireland but had Ships to wast and transport themselves and that one of his prime Houses Rosneth was within some few Miles of the same Frith The Lord Digby finding Sir Walter Earles on ground did handsomly bring him off and told the Lords that all their proofs for that Article were not yet ready and that this was a Superfoetation only of the Charge and that in such a Business ac the Plotting of Treason they must be content sometimes with dark Probabilities Then Mr. Glyn desired the Lieutenant to resume his Defence that they might give a Repetition of their Charge and so close the Process so far as concerned the matter of Fact He replied that in his Case all slackness is speed enough the matter touched him narrowly even in his Life and Estate yea in that which he esteemed above thâ—m both his Honour and Posterity and therefore he confessed he had no desire to ride post in such a Business That he knew the Gentlemen at the Bar if they were in his Case would think the time little enough except their more able Judgments could sooner dispatch the matter in hand and therefore he humbly intreated that that day might be granted to him for strengthening himself and recollecting his Thought and Spirits and to morrow he would be ready with his last Replies for himself which after a little Ceremony and Contestation was condescended unto by the House of Commons Upon Friday Morning about Eight of the Clock the Lieutenant of the Tower and my Lord's Chamber-Groom came to the Hall and gave information to the House upon Oath That the Lord Strafford was taken with an exceeding great pain and fit of the Stone and could not upon any conditions stir out of his Bed Mr. Glyn replied That it was a Token of his wilfulness not his weakness that he had not sent a Doctor to testifie the same The Lord Steward made answer that a Doctor could not be had perhaps so soon in a Morning nor was it possible for any Physician to give a certain judgment concerning a man's disability by the Stone because there is no outward Symptomâ— that appear Mr. Glyn excepted That if he did not appear upon Saturday Morning he should lose the privilege to speak in his own defence afterwards and they permitted to proceed The Lord Steward replied That the Lords had appointed four of their Number to go to the Tower and learn the just cause of his Stay and if by any means he were able he should be obliged to come then if not Humanity and common Equity would excuse him In the Afternoon it was reported that he was dead of which there can be no better reason given than the Humour and Genius of the Times that dally with nothing oftner than untruths and calumnies and certainly there are many men of shallow understanding and weak affections who either will not or cannot understand the Gentlemans worth but out of fearful and needless apprehensions are so desirous to hear of his Ruin
London Mr. Loe and Mr. Lightfoot Mr. Lane spake and much to this sence and purpose My Lords there is an heavy Charge lieth on me and my Fellows nothing less than to defend the Life the Estate the Reputation yea the Posterity of this Honourable Person at the Bar if therefore we shall be more pressing we hope your Lordships will interpret this our forwardness to be for Honour and Conscience sake in a matter that concerneth both so nearly But it shall be our endeavour to carry our selves with our best respects to your Lordships and with all content and satisfaction to the honourable House of Commons and because your Lordships mentioned the matter of Fact one thing I dare be bold to say that all the time of this Noble Lord's defences he did not so much as crave any one of our Opinions yea or acquainted us with any thing that tended that way And for the matter of Law those Statutes cited by himself were none of our stock but taken up at his own adventure nor do I speak this to derogate from the pertinency of those Statutes for they shall be the subject of my discourse but that the Noble-man be not disappointed of your right Conceptions and his own due Praise My Lords It is your pleasure we meddle not with matter of Fact and indeed we need not meddle at all with it because we hope it is already done and that sufficiently to our hands yet the matter of Law doth so naturally arise out of the matter of Fact that of necessity under your Lordships savours we must somewhat grate on this if we speak of that nor do I conceive it possible for us to speak advantagiously enough for the Lord Strafford's just defence unless the whole matter of Fact be determined either as proved or not proved or at least some states of Questions agreed upon where we may fix and settle our Arguments and therefore it is my Lords that I have chosen not at all to touch the matter of Law until your Lordships shall be pleased to chalk me out â—way unless it be to clear your judgments in one Statute only viz. 25 Ed. 3. Because when the same was alleaged by the Lord Strafford in his own Defence that not being convicted of the Letter thereof he could not be convicted of Treason I remember the Salvo of that Statute was much insisted upon by those from the House of Commons as much conducing to their own ends My Lords I will first speak of the Statute it self and then of its 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 King's Coyn or counterfeit the Broad-Seal c. he shall be convicted and punished as a Traytor that the Lord Strafford comes within the Letter of this Statute is not so much as once alleaged nor indeed it cannot be with any reason all that can be said is That by Relation or by Argument à minore ad majus he may be drawn thither 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 Laws of Construction or Constitutive Secondly This is a Penal Law and such if our Grounds hitherto unquestioned hold good can admit of no Constructions or Inferences for Penalties are to persuade the keeping of known Laws not of Laws 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 to obey the Letter of the Statute and conceive and that truly that he is not lyable 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 of Ed. 3. We have a Statute declaring That for a Servant to kill his Master is an Act of Treason and in the three and twentieth year of the same King a Process of Treason was framed against a man for killing his Father grounded upon the same Argument à minori ad majus But it was found and the Sentence is yet in the Records that although in the one and twentieth year of Edward the third that Argument might have been admitted yet in the 27 it could not by reason of the Declarative Law intervening in the 25 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 a 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 considerations First That one or more Acts of Injustice whether maliciously 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 It is very incident to man's Nature to err nor doth the Lord Strafford plead his innocency in over-sights but in Treason Secondly I do remember the Case of John de la Poole Duke of Suffolk this man in the twenty eighth 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 1. That he had given the King bad advices 2. That he had embased his Coyn. 3. That he had sessed men of War 4. That he had given out summary Decrees 5. That he had Imposed Taxes 6. That he had corrupted the Fountain of Justice 7. That he had persuaded the King to unnecessary War and to the giving over of Anjou in France Ovum Ovo And for all these though he was Charged with High Treason for wronging the right of the Subject and subverting the Fundamental Laws of the Kingdom yet after a long Agitation the matter was found by the Lords of Parliament not to imply Treason but only Felony Add to this another who in the twenty third of Henry the eighth was charged for subverting the English Laws and yet no Treason charged upon him Add to both the Charge of Richard Larks pleaded at the Common-Pleas who was charged with Treason for subverting the Law but convicted only of Felony by which you may see my Lords what to this time hath been subverting
the Oath and Law-giver is the party only some have observed two remarkable things upon this First Some think it strange that seeing the House of Commons have lately fined the Convocation House upon this ground especially that they enjoyned an oath which is a Legislative power say they and only due to Parliaments how they at this time as if all the Legislative power were in them without the advice of the Lords I say not of the Church though in matters Ecclesiastical or approbation of the King which is conceived to be a mighty encroachment upon his Prerogative should offer either to prescribe or subscribe such an Oath as if it were essential to our Reformation ever to be done by the people without Authority of the Superiour Powers and yet before it pass into a Statute it must come in by a Bill â—steron proteron but perhaps it is hoped that by this Anti-dated subscription they shall find out the more easy passage for the Bill when it comes to be propounded Secondly That the House of Commons were four hours pleading upon that one expression in the Protestation The true reformed Religion expressed in the Doctrine of the Church of England Some who were more tender toward the Church and desiring that the word Discipline might be adjoyned to the word Doctrine but others mainly opposed that reasoning that no Discipline could be admitted but all to be esteemed as Popish that was not conteined in the Doctrine that is in the word of God which party at the last did prevail though the other affirmed that there was more express warrant in the word of God for Bishops than for ruling Elders but if some Hint be not there intended against the Deans and Chapters the Lyturgies and Ceremonies yea the very Bishops of the Church of England let any man judge and of what dangerous consequence that may be if those who pretend to have authority in all Church Affaires may be permitted to give Sentence is not difficult to determin This day the people met again but in smaller numbers they have threatned to come to morrow with all their main forces and not to desâ—â—t till the Lieutenant be executed and their other petitions obteined The Oath was likewise presented to the Lords and some say all of them except the eight Recusant Lords and four of the Bishops have signed the same but others say they have only admitted the Bill which is more likely I think it is Lucaâ— tells us the tale That when the 100 handed Gyant Briareus whom the Mithologizers of Poems use as a Type of the multitude was first brought into the world his Father Jupiter desired Mercury to set his Scheme and calculate the Stars of his Nativity no Father said Mercury that is needless a little time will shew his disposition for so many hands cannot belong Idle A very lively Idea of this business now in Agitation Your self may make the application by the events Upon Saturday May the eighth the Bill against the Lord Strafford past the Lords there were forty five present of which nineteen voiced for him and twenty six against him the greatest part of his friends absented themselves upon pretence whether true or suppositious that they feared the multitude otherwise his Suffrages had more than counterpoised the Voters for his death In the Bill he is condemned of Treason and all his English Lands the other part of the Coat is left for those in Ireland forfeited with an especial Proviso that this Act shall in no wayes he forceable against others than if it never had been made which to his friends of Judgment smells strongly of a particular hatred against him as if the same common way of Justice should not equally strike against all which it should do in true Justice but that Crimes did differ in their Subjects Two ways there were to have proceeded against him by a Legislative or by a Judiciary power both did strike home alike at his life and his Estate both alike ready both sure by reason of the proofs the Difference only this this might have been done without the King that only by him because this is a Sentence that a Statute A man would think the Judiciary way had been the more sure and that the King would rather have connived and not exercised his Prerogative by a Reprival than to have Intressed himself in the Legislative proceedings by consenting to the Act against him in whom the world conceived for by past and future services he had so great an Interrest But they it seems notwithstanding his Majesties late Attestation of the Gentlemans Innocency in point of Treason were more confident of his gracious Inclination to Justifie their own Act and more desirous too that he should demonstrate his willingness in punishing such transgressors and therefore the Bill went on by the Statute The same day another Bill passed both the Houses that because of the important business of the Kingdom the Parliament should not be broken up by the King without the special advise and consent of both the Houses till all their grievances were redressed and their safety provided for which space of time for any thing I know may last till dooms day some would have had the prefinition of 5 some 7 some 9 years put to it others replyed that this would be both odious and dangerous odious in that it should seem so long a Parliament dangerous in that the time may happen out possible to be longer some think it an honour I rather â— fatality or to sweeten the word a Providence that both their Bills should pass at once as if Generatio â—nius were Corruptio alterius And this new Government should take life from the death of the Earl of Strafford In the afternoon the House of Commons desired access to the King in the Banqueting House and having stayed there an hour for his coming in three words they propounded these two great Bills desiring that he would give his Royal Assent to them both Quod si non prosint singula Juncta Jubant Withall humbly shewing that the present danger of the Kingdom could admit of no delayes The King told them they should expect an answer on Monday Morning The Court at this time was surcharged with a confluence of People quasi Civitas tota sedibus suis mota as if the whole City was come to petition for Justice a Government indeed worse than a Democracy where the people do not rule but play the Tyrants If there were no Monarchy there needs no conscience to obey it But where it is and cannot protect it self the good subject must either forget himself or his loyalty A two edged sword killing either the body or the soul nor in this are men in better case than the winged Fishes that our Southern Mariners tell us of which if they swim beneath the water are catch'd by Dolphins if they fly above for refuge snatch'd away by the hungry Ravenous souls Lord help then the
impossible to escape the many and great accusation laid to his Charge Others and that the greater number too are of oppinion that he will be in no hazard of his Life and that it will not be possible to bring him into the compass of Treason quod tam misere cupio ut non credam his adverse party is so great and so far interested both in point of safety and Honour against him that Flectere si nequeunt superos c. Nothing will be left unassayed that may accelerate his Ruin He hath all this time carried himself couragiously to the admiration and with all so moderately that it is to the great satisfaction of his very Enemies so that he seems neither dejected with fear nor to affect boldness with confidence but to carry himself with that constancy and resolution which his Innocency and brave parts do promise The Irish Commissioners here have hitherto abstained from giving in any Remonstrance against the Lieutenant and do still plead to have an immediate dependance from the King and not from the Parliament of England There was a Report that the Parliament of Ireland had sent a Protestation against the Act made the last year for the Kings Supply in his Expedition against the Scots as a thing which was violently in part and in part surreptitiously obtained from them but I have learned this to be an untruth I had almost forgotten one passage of Mr. Pym who in the aggravation of the Lieutenants faults had this Expression That he was like the Whore in the Proverbs He wiped his mouth and with a brazen face said he had done no evil To this the Noble Lord replied That he wished his Innocence might not be taken for Impudence That he hoped shortly to clear himself of all those foul Aspersions which his malicious Enemies had cast upon him and he was very confident that he should give the Honourable Houses full satisfaction concerning his Life hitherto and thought of nothing more hereafter than to retire himself from all publick Employments Mr. Pym gave at this a great shout and desired the House to take notice what an injury he had done to the Honourable House of Commons in calling them his Malicious Enemies Whereupon the Lieutenant falling down upon his Knees humbly besought them that they would not mistake him and withal gave a large Panegyrick of their most just and moderate proceedings protesting that if he himself had been one of the House of Commons as he had the Honour once to be he would not have advised them to have done otherwise against his dearest Friend but withal told them that he might justly say he had his own un-friends which he hoped in time to make known nor did he all this time speak one bitter word against Mr. Pim though justly incensed which hath infinitely advanced his Reputation I have been a daily hearer of these Proceedings against this great Personage now upon the Stage therefore do presume I can give a reasonable account thereof The Book of his Charge is extant in Print so it shall be needful for me only to name the Articles as they were canvassed and those designed by the House of Commons to be his Accusers which were these that follow The Names of his Accusers Pym Glin Maynard Whitlock Lord Digby St. Johns Palmers Sr. Walter Earles Stroud Seilden Hamden c One of these began the Speech the rest after their Colleague hath done follow in their turn so that he hath all of them to wrestle against and yet sufficiently able for them all though by his agitation his Spirits are much exhausted Mr. Glyn after a large Flourish on Wednesday told the Lords That the Lord Strafford was impeached not with simple but accumulative Treason For though in each particular Article such a monstrous Crime could not be deprehended yet when all was conceived in the Mass and under one view he should be undoubtedly found the most wicked and exorbitant Traytor that ever was Arraigned at that Barr. He added That his Charge was for intending to subvert and change the Fundamental Laws Liberties and Priviledges of both the Kingdoms and to introduce an Arbitrary and Tyrannical Form of Government This he said could not appear but by the Fruits which were either in Expression or Action The Expressions were four First That before several Witnesses he had said at York That the King 's little Finger should beheavier to them than the Loyns of the Law To this the Lieutenant replied That having spoken sufficiently before to his Justification in general he would moreover add these few Words by their Favours That it strike him to the heart to be attached of such a wicked Crime by such Honourable Persons yea that it wounded him deeper in regard that such Persons who were the companions of his youth and with whom he had spent the best of his dayes should now rise up in judgment against him yet he thanked God for it it was not Guilt but Grief that so much troubled him He added That it was a wonder how he had gotten strength sufficient in such Infirmity of Body and such Anguish of Mind to collect his Thoughts and say any thing at all for himself But the Almighty God who knows him to be innocent had furnished him with some abilities to give Testimony to the Truth and to a good Conscience He therefore intreated that iâ— either in Judgment or in Memory he should at any time fail it might be imputed to his great Weakness And although the Gentlemen his Accusers should seem more ready in their Accusations than himself in his defence yet that might not prejudice his Cause who in very unequal terms had to do with learned and eloquent Lawyers bred up a long time and inured to such judiciary pleadings and whose Rhetorick he doubted not might present many things to their view in a Mutiplying Glass He told them farther that for these many years he had been weary of publick service and that now it was his resolution after he had vindicated his Honour to retire himself and enjoy his much longed for privacy And yet he could not but tell them so much that it had been his hearty wish and desire rather voluntarily to have resigned his places of Honour like a ripe Fruit fallen from the Tree than to be violently pulled from thence as a fruitless and unprofitable withered Branch To the Charge of Treason he said that under favour he conceived that although all the Articles contained in his impeachment were verified against him yet they would not all amount to Treason neither simple not accumulative For said he I do not understand by what Interpretation of Law the diversion of Justice can be called a Subversion of the same or the exceeding of a Commission the usurpation of a new Power To the particular he replyed that his words were cleerly inverted for that his expression was That the little finger of the Law if not supported by the Regal
was his own opinion and if he failed in it he humbly craved pardon and hoped that it should not be treason to have no more Judgement than God had bestowed on him that the King was indued by God with a power to make temporary Laws and cause the same to be promulgated for the good of his People upon suddain emergent occasions to which Laws obedience is due till they be abrogated by ensuing Parliaments that he restrained no man from importing Tobacco who was willing to pay the appointed Impost that for his part he had never traffict in all his time in that kind nor had any part with the Contractors And if any Tobacco was seized on it was upon contempt of the Proclamations And if any Person were censured to the Pillory or Whipping it was for known perjury the ordinary and usual punishment in such a Case concerning the Tobacco imported he said no consideration was taken of the prices given for the Tobacco beyond Seas of the Kings Revenue of four thousand pound of the Merchants pains and danger bringing the same home For his part if any advantage were made surely it was not his nor could he annul every Contract or Lease made by the King And therefore seeing his interest was none he had done nothing but at the Kings directions and at the advice of the Councel-Board seeing the same Impost was in King James his time and Petitioned for by themselves in Ireland He hoped the carriage in the business should be so far from a Crime of Treason that it should rather be thought no Crime at all So much for Wednesday Upon Thursday he was Charged with the twelfth Article concerning Flax by Master Maynard on this manner That the Flax being the native and principal Commodity of that Kingdom was by him the Lieutenant restrained and the Subjects put to that which was unknown yea impossible for the Irish to make the same into Yarn here they complained of three things First That by Proclamation he had restrained selling of Flax. Secondly That he had ordered the making of Yarn of such and such lengths and numbers of Threds Thirdly That the Native Irish being unacquainted with such Customes upon a pretended disobedience had all their Flax and Yarn seized on to his use whereby a great many Families were reduced to such penury that they died by great numbers in the Fields for want of Food For proof hereof they brought First The Proclamation about the Restraint Secondly The Warrant for seizing the forfeited goods Thirdly The Execution of this Warrant proved by Sir John Clotworthy Lord Ranelaugh Fourthly The Remonstrance from the House of Commons in Ireland that upon the rigorous course and execution of this Warrant many persons died for want of Food They concluded the Charge therefore Though the Article did not individually imply Treason yet it did make very much for the Accumulation of Treason The Lieutenants Reply was That as before he would and must ever repeat it that nothing was in the Charge that contained Treason to the matter it self he answered First That the Proclamations issued forth were grounded not only upon convenience but upon necessity because that except some way had been taken for ordering of Yarn the Merchants had absolutely given over the Linnen-trade in that Kingdom Secondly That the Councel-Board was as lyable to the Charge as himself amongst whom were at that time the Primate of Ireland the Arch-Bishop of Dublin Chancellor Loftis and the Lord Mount-Norris all Subscribers to the Proclamation men to them of known integrity and Judgment Thirdly That nothing was more common then for the Councel-Board of Ireland to give one Orders for reducing the Natives to the English Customes and to fine them for drawing their Horses by the tails during their Corn and such like and he conceived that to be a thing of the same nature Fourthly That the special thing inducing him to it was because he perceived the trade of Wool to increase much in that Kingdom He disswaded by all means the making of Wooles-Cloath because of the infinite detriment that might happen thereby to the Kingdom of England and therefore thought this the best way to encourage the way of Linnen Cloth For the Warrant to seize upon the goods he affirmed the same to be necessary because there should be no contempt to Proclamations But that any part thereof did accrue to him he flatly denied If any rigour was used in the execution he said not he but his Officers were to answer for it for this might happen in the most just and necessary commands nor was there eyer any complaint presented to him of any such matter For his part he had lost thirty thousands pounds in the Manufacture established by himself for the encouragement of others To that that Persons died by this means he Replied that it was more then ever he heard or could think possible yea that he was cleared by the allegation it self which saith that the same happened since his coming from Ireland To the Remonstrance of Ireland he conceived that a charge was but a slender proof of a Charge and that especially upon Interrogatories not upon Oath seeing that priviledge was not due to the House of Commons neither here nor there that he might say it in truth and modesty he deserved much better of that People and might take up that in the Gospel For which of all my good Deeds c. Yet he hoped to be better understood shortly both here and there and for his part though his pursuit had been very hot yet God was his Witness he never intended to take the least Impression of Revenge for those discontents and affronts which had been eagerly put upon him or to carry any thing hence with him from that Bar where so many foule Aspersions had been unjustly thrown upon him but only Gratuitas Cicatricis The same day a fresh man Master Palmer entred the Lists against him who having past by for want of proof the thirteenth fourteenth and part of the fifteenth Articles insisted only upon the second part for giving Warrant to Serjeant Savil for seizing and laying Souldiers upon the Subjects he Charged thus That the Lord Strafford having by a Tyrannical Power inverted the ordinary course of Justice and given immediate Sentence upon the Lands and Goods of the Kings Subjects under pretence of disobedience had used a Military way for redressing of the Contempt and laid Souldiers upon the Lands and Goods of the Kings Subjects to their utter ruine This Article he said of it self did contain an individual Treason so that if there were no more than this it were more than sufficient to convince him of his Impeachment Here he offered two things First The proof of the point Secondly By what Statute this Act of Tyranny directly and by it self implyed Treason For the first Serjeant Savil was called who produced the Copy of the Warrant upon which he had setled the Souldiers
Bridgeman who made it manifest that the Salvo of 25 Edward 3. was repealed and that no man could now be convicted of Treason but by the Letter of that Statute But being put to Voice it was carried for the Bill and a Committee appointed for to draw it up This gave occasion of much talk abroad and they who were otherwise the Lord Strafford's Enemies could not find Equity enough in the Bill of Attainder Some could not conceive what difference imaginable was betwixt the Bill and the Charge presented before for in the Charge he was accused of Treason and the Bill though they had no Legislative power seemed nothing but an Affirmation of the same Others who would have the Bill understood of a Definitive sentence because it was consecutive to the Proofs were not satisfied but that it was against all practice that the Commons should give sentence upon the death of a Peer and that it was against common Equity too that the Party accusant should give the Judgment if the complainers were admitted to be Judges A third sort gave it out that this was no Sentence against the Lord Strafford but only a passing of a new Act of Parliament about a matter not hitherto declared Treasonable but yet these doubted that by declaring the matter of Fact to be approved and applying the censure to it in reference to the Lord Strafford it would ever be thought a Sentence against him to blemish his own Fame and the Blood of his Posterity Moreover that if they were about to make a new Act it were strange to punish a man for the breach of such a Statute as was not yet extant in Rerum Naturâ which should in reason refer only to fuâ—ure obedience And what is more strange though there were a new Statute yet by what Authority the Parliament hath or could declare any Individual or Accumulative Act which is already to be Treasonable which must be Treason by virtue of a Statute or else no Treason at all now there is none can be brought except the twenty fifth of Edward the third whereof the Letter of that Statute cannot by their own Confession nor was not so much as once alleaged against the Lord Strafford and for the Salvo or Proviso which they mainly insisted on the same stands repealed by two posterior Acts of Parliament You have the Mutterings of all sorts of People The Lords fearing the Proceedings as a beaten Path trodden out to the ruin of their own Lives and Estates told the House of Commons in their Conference upon Thursday That they would go on the same way they did already and according to the Order of the House give full Audience to the Lord Strafford's Councel in matter of Law and that they themselves as competent Judges would by themselves only give Sentence in the Cause nor was there any other course sutable to the practice and Statutes of the Kingdom the Safety of the Nobility or to Equity or common Justice It was replied by them of the Lower House That they were resolved to go on with their Bill and if the same should be rejected by the Lords they feared a Rupture and Division might follow to the utter Ruine and Desolation of the whole Kingdom that no content would be given to the Subject and this was a strong Argument indeed yet better beseeming Partiality and Violence than the pretended Justice and Piety of the times unless the man who had so much intruded upon their Right and discontented the People might be punished as a Traytor and for the practice of the Kingdom that no man had ever found such a favourable hearing and that the Process against Essex Norfolk Somerset were all of them closed up in one day Upon Friday the Lords gave Answer That they could expect nothing from the House of Commons but what should tend to the Peace and Preservation of the Kingdom nor was there a more forceable way than to preserve the Laws and Customs thereof lest Innovation so much complained of by them might unhappily be found among themselves That the Subjects should have all that Justice could afford but that an Act of Injustice would never give satisfaction to the World nor safety to themselves the Eyes of all Foreign States being fixed upon the business now in agitation and the wisdom of our Nation either to be much advanced or depressed by their Judgments in this Case That the Process against Norfolk and Essex for Somerset was convict only of Felony and had not so much Animadversion to save himself by his Book were for direct and formal Treasons comprised in one or two Individual Acts but this against the Lord Strafford only Arbitrary and Accumulative to be pick'd out of Twenty eight Articles And therefore that it was impossible to have a full Examination of them all to give Sentence against him and those Noble men were charged with some Actual breach of Statutes formerly made but here a new Statute was to be made or else he to be found guiltless They concluded that they had given Order for his appearance on Saturday and that in the Great Hall at Westminster where the House of Commons might if they pleased be present After some deliberation with the House the Conferrers answered That since the Lords had so resolved they would not deny to be there present and to hear what his Councel could say for him but to reply any more in public they neither could nor would because of the Bill already past only if the Lords should take any scruple in the matter of Law they would be ready to give them satisfaction by a private Conference so they willingly declined to do what indeed they could not possibly do that is to give public satisfaction in the matter of Law Upon Saturday they convened in the Great Hall but they that were of the Committee for the great Charge did not stand at the Bar as before but sat promiscuously with the rest of their Fellows so that a mouth was not opened in the behalf of the House of Commons all that day After they were set the Lord Steward told the Lieutenant That the Lords had resolved to give him a fair hearing in the matter of Law and therefore desired that the Councel might keep that distance moderation and respect to the Judicatory that was fitting and not at all to meddle with the matter of Fact The Lieutenant replied That in all humility he did acknowledge that favour from the Lords and that it was such an one too as he could not but expect from such honourable Peers and just Persons in whose integrity and goodness under that which he had placed above he had reposed his chiefest confidence for his Councel they knew much better than himself what concerned the point of Discretion and Reverence and that he doubted not but that they would give all satisfaction and obedience Then his Councel were called to the Bar Mr. Lane the Prince's Attorney Mr. Gardiner Recorder of
the Laws Thirdly It is very considerable that the Lord Strafford is not charged to have subverted but only to have intended to subvert the fundamental Laws and this I conceive if there were no more might keep him free from that Statute of the twenty fifth of Edward the third For although as touching the King his Queen and Children intention is Treasonable yet in all other things there mentioned there must be action beside intention for it is not said if a man do intend to kill a Chancellor it shall be Treason but only if he do 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 King's impression upon the Coyn all his intentions yea his preparations will not serve to make up a Treason And this under favour may serve to answer the Case of Guido Faux lately objected unless it be alleaged that the Lord Strafford had as reall an intention against the King's Life as Faux had For though the intention in that Case be Treason by the Statute yet in all other things there is no Treason without the Action so immense and vast a difference both is and ought to be betwixt a project against the Royal Blood and all things else of a lower and under Nature You see therefore my Lords that the body of the Statute cannot stick against the Lord Strafford neither in Letter nor in consequence this is not that must not be all that can be said is that his 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 that is it might be presupposed that there is a Statute whereupon to build a Declaration and therefore to say there is no Statute for it is to say it is no Treason at all The Statute ever makes the Treason and to be declared to be Treason either by Common Law or by Parliament are but two different ways of Proceedings and must both resolve into one Principle yea which comes home to the point in the one and twentieth of Edward the third To kill a man imployed in the King's War was Treason and the twenty third To kill the King's Messenger was Treason by Declaration of the Common Law but always by reason of the Statute yet none of these are now Treasons but Felonies only by reason of the intervening Statute the twenty fifth of Edward the third such hath ever been thought the force of its Letter and Declaration And so I will leave it and speak a word or two of the Salvo which is this That because all particulars could not be then defined therefore what the Parliament should declare to be Treasonable in time to come should be punished as a Treason And according to this Reservation in the eighth year of Richard the second one who was charged before the King's 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 eleventh year of the same King the Duke of Ireland and Nevil Arch-Bishop of York were impeached of High-Treason by Gloâ—cester Arundel and Warwick and notwithstanding the Statute were convicted thereof by the Salvo But in the one and twentieth of the same Richard the second the Tidâ—-turned and the King had such a hand with the Parliament that the Sentence was recalled and those three Noble-men themselves adjudged Traytors Again in the first of Henry the fourth his Successor that Revocation of the one and twentieth of Richard the second was repealed and the Sentence of the eleventh 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 first of Henry the fourth a Petition was preferred by the Nobility to have Treason limitted with some Statute Because they knew not what to speak or what to do for fear thereof and in the tenth Chapter 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 litterally contained in the Statute of the twenty fifth 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 man's head by this slender Thred of a consequence or illation was moved by that Act. Add to this that in the first of Queen Mary the first Chapter 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 25 Ed. 3. without the least mention of a pretended Salvo The Earl of Northumberland's Case comes nigh to the Point he was charged with Treason the fifth of Henry the fourth and if the Statute of the first of Henry the fourth the first Chapter whereby this Proviso is Repealed had not intervened no doubt he had been condemned of Treason but he was only convict of Felony and that because he could not be drawn within the Letter of the Statute of the twenty fifth of Edward the third and I dare confidently say it that since that Act was made the first of Henry the fourth the first Chapter 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 litterally 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 the twenty fifth of Edward the third and that the Salvo contained in the same stands Repealed almost two hundred years ago and this is all I conceive to be necessary for that Statute which was alleaged by the Lord Strafford in his Defence for matter of Fact Then the Recorder spake some few Words to this purpose That what was spoken upon the Statute was because it seemed inseparable from the matter of Fact that they could proceed no farther 'till a State were afforded them that to do otherwise they conceived might be very prejudicial unto my Lord Strafford First In that they should suppose that to be done which is not proved to be Secondly That the matter of Law ariseth so naturally from the matter of Fact that it will be impossible to separate one from the other Thirdly That it is the course of all Judicatories first to settle the Verdict and upon that to fix the Arguments otherwise he could conceive no possible way of proceeding and therefore in the Lord Strafford's Name he most humbly entreated that the Lords would either wholly determine the matter of Fact or whether Treason or not for then all other proceedings in the Law were unnecessary but whether done or not done