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
I told the Lieutenant that I did hold the Council-Chamber could not hold Plea of this and thereupon cited 28 H. 6. the Book of Orders the Proclamation Then I moved his Lordship that in regard Gwyn was a poor man and not answerable and might get the Rents being near 100 marks a year he might give security for the Rents if I should recover them by course of Law That my Lord of Strafford thought it just it should be so entred in the Order And being asked how that came to be left out He Answered That Sir Paul Davis the Clerk of the Council told him my Lord of Strafford found fault with it and struck it out with his own hand Being asked what words he heard from my Lord of Strafford concerning the said Order at Council-Board in King Iames his time He Answered That there was a Parsonage in the County of Kerry in his Presentment and it fell void the Dean and some others commended one Atkinson to be his Vicar That on their Commendation not knowing him himself he presented him without any consideration That Atkinson afterwards fell into decay and was Imprisoned and the Prison being very loathsome the Bishop wrote unto him this Deponent and sent him a Lease under the Hand and Seal of him the said Bishop and the Incumbent with a Label for his the Deponents hand and desired him to seal it for 40 s. a year to another that Atkinson might pay his Debts and stock himself with Cattle That he the Deponent refused it though brought 50 miles from his House fearing it might be prejudicial to the next Clerk That the Bishop sent Atkinson's Wife back over the Mountains with his Letter and the Lease and he the Earl of Corke did sign it then For seeing the misery of the poor Woman and her Children he thought it a work of Charity and it continued so till my Lord of Strafford came to the Government That then he had a Bill preferred against him in the Star-Chamber for breaking an Act of State That none should make a Lease for longer than the Incumbents life and desired that the Bill should be read in all the Proceedings of it That thereupon he told the Earl of Strafford it was a work of Charity and he never heard of such an Act of State being not published and made in King Iames his time and in the Lord Grandisons Government who are both dead And therefore he conceived there was no cause to charge or prosecute him for it being but an Act of State That my Lord of Strafford Answered I tell you my Lord as Great as you are I will make you and all the Subjects of Ireland know That any Act of State made or to be made shall be as binding to you and the Subjects of Ireland during my Government as an Act of Parliament Being asked on my Lord of Straffords motion whether the Order made in the Case of Gwyn was not made by the major part of the Votes of the Board He Answered That he did say that it was Voted at the Council-Table but he knows not whether it were done by the major part and afterwards with a lower voice His Lordship added that he thinks it was never Voted Iohn Waldron Sworn was examined touching the words my Lord of Strafford was charged to say touching an Act of State being equal to an Act of Parliament and the occasion He Answered It was his chance to be at Council-Table when a Cause depending between the Merchants of Galloway and some others that prosecuted the business in behalf of the Church about a Lease made by the Dean of Derry which was debated at the Council-Board And there was one Mr. Martin of Council for the Merchants and he pressing hard for his Clients It pleased my Lord to think he had over-shot himself or was too forward and asked what he had to say that he prest that Cause so hard That Mr. Martin Answered him He had an Act of Parliament or Statute or to that purpose That my Lord of Strafford Replied again Sir I will make you know That an Act of this Board shall be as good as any Act or Statute or words to that effect Iohn Kay after some Exceptions taken by the Earl of Strafford against him as no fit Witness in respect of his prosecuting a Suit against his Lordship for the Lady Hibbotts which was Over-ruled by their Lordships was sworn and being asked touching the said words to be spoken by the Earl of Strafford and the occasion and the time He Answered That he was present at Council-Table by chance when there was a Cause wherein Mr. Martin pleading for his Clients My Lord-Deputy then asked him What made him so earnest for it He said He had an Act of Parliament or Statute to justifie his Cause Hereupon my Lord-Deputy Answered He should know that as long as Himself sate in that Place An Act of State should be as strong as an Act of Parliament or words to that effect Being asked of the time He Answered He doth not remember the time but it was three years and upwards It was before Iuly 1637. but the Day and Year he remembers not but it was in the Case where Mr. Martin was Council My Lord Corke being asked about the time he said It was in 1635. about February Mr. Waldron being asked Whether it was in a Church-Cause Answered My Lord-Deputy made an Offer That if they would take a Lease for 21 years at full value they should have it But if they would stand on the Trial of the Lease they must take the adventure And Mr. Hoy being asked Whether it was a Church-Cause He Answered He conceived the Church was Interested in it Lord Kill mallock asked Whether he heard my Lord Strafford say An Act of Council should be as Valid as an Act of Parliament when on what occasion and to what scope He Answered That he was at Council-Table some four or five years ago and there did hear my Lord of Strafford say to one of the Council he cannot say it was Mr. Martin He would have him know as long as himself was Governor An Act of State should be as binding as an Act of Parliament on what occasion he cannot say He further said That in the 10th Year of the King in the Parliament held in Ireland he heard Sir George Ratcliffe my Lord of Strafford's Eccho in that House say On occasion of a Bill that was cast out in that House making it Felony for any to have Powder without Licence It is all one he would have an Act of State for it which should be as binding as an Act of Parliament Sir Pierce Crosby was asked Whether he heard my Lord of Strafford at another time say An Act of Council should be as valid as an Act of Parliament when on what occasion to what intent He Answered That he doth very well remember the words the time not precisely but he was sure it was soon
pre-emption of Tobacco may be rightly assumed had resolved to lay hold of the present opportunity requiring my Lord of Strafford to advise with such of the Council there as he should think fit or by what Limitations and Conditions the pre-emption may be setled and afterwards to direct a course for licencing the sale thereof to the best improvement Yet so as a care may be had as near as may be to prevent the bringing in of unfound Tobacco leaving to his judgement all necessary provisions to be determined about this business Dat. 18 Iuly 12 Car. My Lord of Strafford observed that this Letter was sent upon the like course taken here in England it being thought fit to be alike in both Kingdoms but the business of England preceeded it and was the occasion of the Letter The next thing observed was the Proclamation in England to probibit the planting of Tobacco in England and Wales and the landing of Tobacco in any part of England or Ireland but only at London other than such and so much Spanish Tobacco and Plantation Tobacco as should be allowed and determined to be competent upon pain of Confiscation A Moyety to the King a Moyety to the Discoverer Which was read being dated 14 Mar. 13 Car. Which my Lord of Strafford observed to be the same with that wherewith himself is charged and that the Letter directing him to take this business into Consideration bears date Iuly 12. Car. and the first Proclamation issued out ult Ian. 13 Car. So that he made no haste The next thing his Lordship offered was the Contract it self Dat. 7 Nov. 13. Car. which being affirmed by Mr. Gibson to be a true Copy was read being Signed by the Deputy and Council and Imports That Carpenter Bartholomew Peatly and others had made an humble Proposition thereby setting forth That no Order hath been taken for the due bringing in of good and sufficient Tobacco or quantities proportionable to the Consumption thereof whereby the price is too much inhaunced or the Market glutted and desiring that they may have the Renting of the Tobacco business for 11 years paying yearly 5000 l. For the first five years 10000 l. for the six last years freed from Custom and only paying 3 d. Impost and the Custom not to be advanced that they and such as they shall contract with may be free to return and enter in London or Ireland That in case of War they may account only for the Profits in lieu of the Rent That upon my Lord of Strafford's leaving the Government they may be free to surrender their Grant and not stand charged That Tobacco may be solely imported and the sale licensed by them That no Tobacco be planted in Ireland during the Term. Whereupon a Warrant was issued for the paying of a Grant to them of the sole Importation and Lycensing the sale of Tobacco for 11 years paying 5000 l. yearly for the first five years 10000 l. for the last six years above the custom of 3 d. per pound with all the Customes received for His Majesty since Michaelmas last and all Impositions to be laid down during that term c. Dat 7 Nov. 1637. And such security to be given for the Rents as to the Court of Exchequer should be thought meet Where my Lord of Strafford observed that he did nothing herein without the assistance of the Principal of the Council there And further That before this was resolved advertisement was sent His Majesty that His direction might be given and the Letter from the Council of Ireland to Secretary Cook being affirmed by Mr. Gibson to be a true Copy was read importing the substance of the said Treaty and the conditions thereof recited Dat. ult May 1638. The next thing offered is the Grant it self Dat. 22. Iune 14 Car. And an Act of Parliament for the confirmation of it according to the Petition and the King's Letter The Clerk of the Crown did now inform their Lordships That there is a Bill concerning Importation of Tobacco transmitted out of Ireland in Iuly last and it was sent back at Michaelmas last with a Commission to the Lieutenant to give Royal Assent but whether it was given or no he cannot tell But my Lord of Strafford said it was only transmitted from the Deputy and Council and sent back under the Great Seal but did not pass the Parliament there and he desired it might be read only as to the Title But that was laid aside And then his Lordship added That as for the Proclamation he with the rest of the Council did set his Hand thereunto and that he conceived then and trusts it will appear now to be upon very good Warrant and justifiable he having the Kings Command in the point and it being only Temporary till an Act of Parliament might make final in it that it might remain in the Crown for after-times and a Proclamation thus issued till an Act of Parliament comes he conceives very Justifiable if it be an Error it is an Error he hath been always misguided by That the King may make a Proclamation till a Parliament comes to make it more lasting And whereas some Transgressors against these Proclamations are Sentenced yet he is charged with none of them and so on the matter is not charged with their Sentence though he conceives the same very justifiable there appearing to be Perjury in some of them and if they be poor and men of no great fortunes he knows not what is more proper or deserved than to see men taken in so foul a Crime on the Pillory as being a fair and moderate punishment and the Fines were in Terrorem there being little or nothing of them paid And this point of Jurisdiction for punishing Transgressors of Act of State and Proclamations he conceives fully proved before in the former Articles And whereas 't is said the Tobacco was not sold at reasonable Rates as formerly he desired their Lordships to observe that the Contract was made 22 Iune 14 Car. and in September was Twelve moneths he was not privy to it And on this the Contractors stand on their Justification and hope to make it appear if they may have time that the Planters have in no part of Christendom so good a value as here and that they sell at as moderate rates as ever was sold heretofore and better conditioned Commoâ—ty His Lordship further observed That the proof which makes the great Cry in point of value is weak enough That there should be near 100000 l. profit a year is a wonderful estimate and admirable to him That during his being there which was one year it shall appear they were loosers by it which he speaks confidently thinking those intrusted with it would not abuse him they having protested the Countrey was so abused that they could get very little by their Office That how it is sincehe knows not for the Contractors one of them is laid up in prison and the Tobacco seized on under
For I. He hath heard it said That the King cannot be concluded in any Statute unless he be particularly named and consequently not his Chief Governor For these words No Lord or any other of what condition soever c. Must imply a condition of a Lord or one under a Lord not a condition above a Lord as the Chief Governor is II. He shall not lead or bring He hath neither brought nor lead them into Action for the Sergeant at Armes hath done it though under his Warrant III. It speaks of bringing English Rebels or Irish Enemies or Hooded Men Hoblers Kernes c. But that sending of the Kings Soldiers to apprehend and attach such Refractory Persons should be within the Statute is a Stretching of the words of it very far IV. Notwithstanding this Law the Chief Governor hath alwayes used to assess Soldiers and Practice is the best Interpreter of Lawes and yet his acts have not by this Statute been concluded Treason since they have Compounded for it and they pay a great Rent The Composition Rents paid for their discharge from the assessing of the Army being one of the greatest Revenues before his coming there And if their Lordships will have it proved there be few of the Irish but know it And in Conaught the King may take or leave as he pleases Though he shall not insist on it as desiring never to depart from their Lordships Judgment nor thinking himself more safe in any other therefore freely and voluntarily he puts himself under their Lordships Censure for his Life as for his Death But if he should insist on it admitting all this That it was a Treason by the Statute-Law of Ireland yet he is not Tryable for it here But he makes no use of it to that purpose but had he a Thousand lives he would humbly lay them every one at their Lordships feet He added That it is a very heavy Case that such old Laws as these should be started in this manner when the Practice hath been quite contrary and Kindled to destroy him and his Posterity at a Blow But he trusts God Almighty hath provided better for him by their Lordships Favour and Justice For though the Gentlemen at the Bar are much more Learned than himself yet it may be they are not so well Read in the Irish-Statutes as they be in the English Besides he is most confident he shall make it appear that Statute is Repealed And if it falls in his Judgment their Lordships he hopes will find he had Reason to think what he shall offer might be available and that their Lordships will not be offended if he mistakes the Law and this as in other things he desires the Advantage of by Counsel concerning these Points of Law before he be finally concluded First By the Statute of 8 Ed. 4. ca. 1. and had these Gentlemen seen these Statutes he believes they would never put it in Charge against him Whereby it is Enacted Confirmed and Ratified by Authority of the said Parliament that the said Statute be Adjudged and Approved in force and strength and the said Statute may be of force in this Land from the 6 th day of March next and that from henceforth the said Act and all Statutes and Acts made by Authority of Parliament within the Kingdom of England be Adjudged and Ratified from the said 6 th day of March. This comes in time after the Statute of Treason of H. 6. and Ratifying all the former Statutes of England Ratifies the 25 th of E. 3. in England which is the Statute of Treason and 1 H. 4. which sayes nothing shall be Treason but what is said to be Treason within the said Statute of 25 E. 3. So that nothing can be Treason in Ireland but what is Treason by 25 E. 3. or 1 H. 4. or something subsequent for these being confirmed later do take away the Statute of 18 H. 6. Secondly By the Statute of 10 H. 7. c. 22. and this is a Repeal in Judgements far better then his own The former was for another purpose By this all the Statutes made in England before that time are brought to be Laws within Ireland and all Laws contrary to these Laws are hereby repealed But the Law urged by those Gentlemen is against the Laws of 25 Ed. 3. and 1 H. 4. and consequently is repealed very clearly and the words are these in effect It tells of the Benefit and Advantage that might come to them after the English Laws should be brought in And if any Statute have been made contrary to them the same to be annulled void and of none effect And that it hath been so taken and conceived that that Law is Repealed he hath as he conceives a Judgment in Parliament clearly on his side to clear him as to this Treason That the Deputy hath power to Assess Soldiers in Cases where he shall think convenient It is a Power which God forbid any Many should exercise but with all fair Intention and Mildness that possibly can be and he speaks it not to draw any inconvenience on that Kingdom he being willing to spend his Life for them rather than do them any hurt nor will he carry from this Bar the Remembrance of any thing of their Unkindness in Prosecution he means not them that are Members of this House praeter gratuitas Cicatrices and will never look the worse on them he Vowes to God The Statute is 11 Eliz. ca. 7. Being an Act for taking away Captainship and all Exactions belonging thereunto from the Lords and Great Men. WHereas Most Gracious Soveraign Lady The Lords and Chieftaines of this Realm in the time of desolation of Iustice have arrogated to themselves Absolute and Regal Authority c. For Remedy whereof your Faithful Subjects most humbly beseech it may be Enacted c. That no Earl Viscount Baron Lord c. dwelling within this Realm shall assume c. the Name of Captain of any Countrey except such as hath or shall have the same by Letters-Patents from Your Majesty c. or by the name of Captain or therwise exact for the finding of him or them their Horse Foot of or upon any of your Majesties Subjects Tax Sess Subsidie c. nor shall call togethe people of the same Countrey to Treat Conclude and Agree for making War or Peace c. Sess nor lead the people c. without the Great Seal or Warrant from the Lord Deputy c. upon pain to every Earl Viscount Baron or Lord c. for every time 100 l. of lawful Money of Ireland Whence he inferred that here is a Commission that the Deputy and chief Governors have power to Assess and yet are no Traitors a penalty which they would have spared had they thought that Law to have been in force So that as he hath been free in his heart from any Treasonable designe towards His Majesty or His People and as he hath been innocent to God Almighty within doors so
back to his Regiment and he would take a Course and my Lord did grant forth his Warrant and on that was pleased to send a Messenger as he thinks to the Constable to whom it was directed and the Messengers went from Constable to Constable and all was paid Being asked on my Lord of Straffords motion whether it were paid voluntarily He Answered They were for ought he knows Sir Hugh Cholmley being Interrogated on Mr. Maynards motion of what Quality those persons were that staid with my Lord of Strafford and joyned in the latter Petition and Whether many of them were not Recusants He Answered That there were some of them Gentlemen of very good Quality a few that had retracted their hands from the Petition some 7 or 8 and he doth not know whether there were not many Papists but they took a Note of four or six and twenty to his best remembrance that the Country had a Character on them to be Papists and Men affected that way but he knows not whether they were Convicted or no. And so Mr. Maynard said they should leave this Article a while in expectation of my Lord of Straffords Answer and then they should recollect their proofs in the mean time they supposed every particular was proved My Lord of Strafford after some time granted him to recollect his Notes made his Defence in substance as follows And First he desired leave to read the Charge and their Lordships should find how little of the matter opened before them this day was therein contained and so he is not accountable for it He read the 27th Article That in or about the moneth of August last c. His Lordship craved liberty to dissent from that worthy Gentleman that spoke last who in his opinion is very much mistaken who was pleased to say That all was fully proved for he conceives little or nothing is proved as to him That he might give their Lordships the clear satisfaction he desired to go on in their own Order and as the Proofs were offered he shall offer his Answers The First thing spoken of is a Petition drawn up by certain Gentlemen whereby they did offer a months pay to the Trained-Bands which Petition was shewed the Defendant and was refused by him to be delivered and the Reason assigned is because in the latter part there is contained a Petition for calling of a Parliament and that is laid to him as a Crime but where it is he doth not find and when he doth he shall answer and acknowledge it He acknowledged there was such a Petition and that it was shewed to him and having not been acquainted with it formerly he remembers very well he desired to be excused from medling with it for having the Honor at that time to be the Kings Lieutenant of the County besides that he was Lieutenant-General of the Army and having some poor share there though not so great as other men he thought it very strange that when the King had appointed them on Tuesday to meet together and advise how his service might be complyed with they should at a private meeting after Supper resolve of this Petition and never make him so much as acquainted with it And where he was made so great a stranger in the beginning of the business he appeals to their Lordships whether he had reason to be over officious to serve them in the conclusion He acknowledges the Petition was delivered him and on the reading of it when he heard that clause of moving the King for a Parliament he disadvised it and desired to be excused concerning it not so fitting at that time nor for them on such an occasion and therefore it might be left out or a course taken to deliver it by some other hand than his and he trusts it is no offence for which he is any way punishable to reserve that Christian Liberty in his own opinion that he sees cause for when it may be done without breach of any Law penal or good manners his Liberty being as free then to himself as to them But it was not out of any unwillingness the Parliament should be called upon which they should pinch him and make their Lordships and the Gentlemen think him averse from Parliaments for he did tell them at that time he was confident there would be a Parliament and that on the coming together of the Great Council of the Peers he did conceive His Majesty would be pleased to call a Parliament and that their Petition would neither further nor hinder it and therefore it might be forborn and the King left in his Acts of Grace to his People that he might have all the Honor of it to himself and that it should rise out of his Own Goodness and Royal Breast not as advised to it on the desire of any body else and therefore he thought not fit that that should be put into the Petition not out of a desire to avoid Parliaments for it is well enough known and if need were he could justify himself in it that no poor servant the King had was more forward nor ready nor willing to advise the calling of this Parliament than he was but he shall ever conceive it fit in this case to reserve the Honor of the Kings Grace and Favour as much as may be to himself and not direct it to any other hand whatsoever and did then as always as much as he could apply the thanks of the People to the King his Master and assume nothing to himself But this he conceives no crime and therefore he shall not need to trouble their Lordships with proof of it there being 20 Gentlemen in the room he dares say that will justifie him in this particular They come then and speak of a second message to have been delivered by him to His Majesty at York hereby he is charged to have imposed a Tax without lawful Warrant he humbly affirms and trusts he shall manifestly prove it that the thing was yielded to by their own universal Assent and that it was levied by their own voluntary Will and that there was nothing of force from the beginning to the ending of the business for if he had dealt in that manner he had been much to blame tho as he stood then qualified he thinks himself not punishable for it On Debate of the business not above three or four dissented tho there were Two hundred present they were perswaded and convinced it was just and necessary to contribute and most of them that did dissent have been examined before their Lordships but they did absolutely and totally lay aside their Petition and gave him Commission only in words to signify to His Majesty that they were most willing and ready to contribute the pay of a Month for maintainance of the Trained-Bands and that he did faithfully deliver And whereas it is said they are Papists he shall name persons as free from that Tax as any men in the
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
Soldiers upon the Refusers in an Hostile manner Sixthly Was an Incendiary of the War between the two Kingdomes of England and Scotland My Lords We shall leave it to your Lordships Judgments whether these Words Counsels and Actions would not have been a sufficient Evidence to have Proved an Indictment drawn up against him as those before mentioned and many others are That they were spoken and done to the Intent to draw the Kings heart from the People and the Affections of the People from the King that they might leave the King and afterwards rise up against him to the destruction of the King If so here is a Compassing of the Kings Death within the Words of the Statute of 25th year of Edward the Third and that Warranted by many former Judgments My Lords I have now done with the Three Treasons within the Statute of the Twenty fifth of Edw. 3d. I proceed unto the Fourth upon the Statute of the Eighteenth year of Henry the Sixth Chapter the third in Ireland and I shall make bold to read the words to your Lordships That no Lord nor any other of what condition soever he be shall bring or lead Hoblers Kernes or Hooded Men nor any other People nor Ho rses to lie on Horseback or on Foot upon the Kings Subjects without their good wills and consent but upon their own costs and without hurt doing to the Commons and if any so do he shall be adjudged as a Traytor 1. The Argument that hath been made concerning the person that it extends not to the King and therefore not to him weighs nothing with your Lordships Rex non habet in Regno parem from the greatness of his Office to argue himself into the same impossibility with His Sacred Majesty of being incapable of High-Treason it 's an Offence no Treason The words in the Statute No Lord nor any other of what condition soever he be include every Subject In Trinity Terme in the Three and thirtieth year of Henry the Eighth in the Kings-Bench Leonard Lord Gray having immediately before been Lord Deputy of Ireland is Attainted of High-Treason and Judgment given against him for letting diverse Rebels out of the Castle of Dublin and discharging Irish Hostages and Pledges that had been given for securing the Peace for not punishing one that said That the King was an Heretique I have read the whole Record there 's not one thing laid to his Charge but was done by him as Lord Lieutenant He had the same Plea with my Lord of Strafford That these things were no adhering to the Kings Enemies but were done for Reasons of State that he was not within those words of the Statute of the 25 of Edw. 3. himself being Lord Lieutenant there Object It hath been said That the Soldiers sessed upon the Subjects by him were not such persons as are intended by that Statute Hoblers Kernes and Hooded Men those Rascally people Answ. My Lords they were the names given to the Soldiery of those times Hoblers Horsemen the other the Foot But the words of the Statute go further Nor any other People neither Horse nor Foot His Lordship sessed upon them both Horse and Foot Object The Statute extends onely to those that lead or bring Savil led them my Lord onely gave the Warrant Answ. To this I shall onely say thus Plus peccat author quam Actor by the rule of the Law Agentes consentientes pari plectuntur poena if consent much more a Command to do it makes the Commander a Traytor If there be any Treason within this Statute my Lord of Strafford is Guilty It hath been therefore said That this Statute like Goliah's Sword hath been wrapt up in a Cloath and laid behind the door that it hath never been put in execution My Lords if the Clarke of the Crown in Ireland had certified your Lordships upon search of the Judgments of Attainders in Ireland he could not find that any man had been attainted upon this Statute your Lordships had had some ground to believe it Yet it s onely my Lord of Straffords Affirmation besides your Lordships know that an Act of Parliament binds until it be repealed It hath been therefore said That this Statute is repealed by the Statute of the 8 Ed. 4. Cap. 1. and of the 10th of Hen. 7. Cap. 22. because by these two Statutes the English Statutes are brought into Ireland The Argument if I mistook it not stood thus That the Statute of the First of Henry the 4th the 10th Chap. saith That in no time to come Treason shall be adjudged otherwise then it was ordained by the Statute of the 25 E. 3. that the reason mentioned in the Eighteenth year of Henry the Sixth in the Irish Statute is not contained in the 25 Edw. 3. and therefore contrary to the Statute of the 1 Hen. 4. it must needs be void If this were Law then all the Statutes that made any new Treason after the First of Henry 4th were void in the very Fabrick and at the time when they were made hence likewise it would follow that the Parliament now upon what occasion soever hath no Power to make any thing Treason not declared to be so in the Statute 25 Edw. 3. This your Lordships easily see would make much for the Lord of Straffords advantage but why the Law should be so your Lordships have onely as yet heard an Affirmation of it no reason But some touch was given that the Statute of the tenth year of Henry the Seventh in words makes all the Irish Statutes void which are contrary to the English The Answer to this is a denial that there are any such words in the Statute The Statute declares that the English Statutes shall be effectual and confirmed in Ireland and that all the Statutes made before time to the contrary shall be revoked This repeals only the Irish Statutes of the tenth year of Henry the Fourth and the Nine and twentieth year of Henry the Sixth which say that the English Statutes shall not be in force in Ireland unless particularly received in Parliament it makes all the Irish Statutes void which say that the English Statutes shall not be in force there It is usual when a Statute sayes that such a thing shall be done or not done to add further that all Statutes to the contrary shall be void No likelihood that this Statute intended to take away any Statute of Treason but when in the Chapter next before this Murder there is made Treason as if done upon the Kings Person That this Statute of the Eighteenth year of Henry the Sixth remains on foot and not repealed either by the Statute of the Eighth year of Edward the Fourth or this of the Tenth year of Henry the Seventh appears expresly by two several Acts of Parliament made at the same Parliament of the tenth year of Henry the Seventh By an Act of Parliament of Henry the Sixth's time in Ireland it was made Treason for any Man
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-Law of England is the 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
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
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
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
believes to be true having been formerly so informed by His Majesties Learned Council upon sundry occasions To the Fourth he saith That the legal and ordinary Proceedings at Council-Table are and time out of mind have been by Petition Answers examination of Witnesses as in other Courts of Justice concerning British Plantations the Church and Cases hence recommended by the King for the time being and in Appeals from other Courts there and the Council-Board have always punished Contempts to Orders there made to Proclamations and Acts of State by Fine and Imprisonment He saith That it might be he told the Earl of Cork that he would imprison him if he disobeyed the Orders of the Council-Table and that he would not have Lawyers dispute or question those Orders and that they should bind but remembreth not the Comparison of Acts of Parliament and he hath been so far from scorning the Laws that he hath endeavoured to maintain them the Suit against the Earl in the Castle-Chamber was concerning the Possessions of the Colledge of Youghall worth 6 or 700 l. which he had endeavoured to get by causing of unlawful Oaths to be taken and very undue means the matter proceeded to Examination and Publication of Witnesses and after upon the Earl of Cork's humble Suit and payment of 15000 l. to His Majesty and his acknowledgement of his Misdemeanors obtained a Pardon and the Bill and Proceedings were taken of the Files and he remembers not any Suit for breach of any Order made at Council-Table To the Fifth he saith The Deputies and Generals of the Army have always executed Martial Law which is necessary there and the Army and the Members thereof have been long time Governed by printed Orders according to which divers by Sentence of the Council of War have formerly been put to death as well in the time of Peace as War The Lord Mountnorris being a Captain of a Company in the Army for mutinous words against the said Earl General of that Army and upon two of those ancient Orders was proceeded against by a Council of War being the Principal Officers of the Army about twenty in number and by them upon clear Evidence sentenced to Death wherein the said Earl was no Judge but laboured so effectually with His Majesty that he obtained the Lord Mountnorris's Pardon who by that Sentence suffered no personal hurt or damage save about two days Imprisonment And as to the other Persons he can make no Answer thereunto no particulars being described To the Sixth he saith The Suit had depended many years in Chancery and the Plaintiff Complaining of that delay the said Earl upon a Petition as in such Cases hath been usual calling to him the then Master of the Rolls the now Lord Chancellor and the Chief Justice of the Common Pleas upon the Proofs in the Chancery decreed for the Plantiff to which he refers himself and it may be the Lord Mountnorris was thereupon put out of his Possession To the Seventh he saith His Majesty being Intituled to divers Lands upon an Inquisition found Proclamation was made That such as Claimed by Patent should come in by a day and have their Patents allowed as if they had been found in the Inquisition and accordingly divers were allowed The Lord Dillon produced His Patent which being questionable he consented and desired that a Case might be drawn which was drawn by Counsel and argued and the Judges delivered their Opinions but the Lord Dillon nor any other were bound thereby or put out of Possession but might have traversed the Office or otherwise legally have proceeded that Case or Opinion notwithstanding To the Eighth he saith That upon Sir Iohn Gifford's Petition to the King His Majesty referred it to the Deputy and Council of Ireland where the matter proceeding legally to a Decree against the Lord Loftus and upon his Appeal that Decree by His Majesty and His Council of England was confirmed to which Decree and Order he refers himself believing the Lord Loftus was committed for disobeying that Decree and for continuance in contempt committed close Prisoner He saith That the Lord Loftus having committed divers Contempts the Council by Warrant required him to appear at the Board and to bring the Great Seal with him which Order he disobeyed and was shortly after Committed and the Great Seal was delivered up by His Majesties express Command and not otherwise And an Information was exhibited in the Star-Chamber for grievous Oppressions done by the Lord Loftus as Chancellor whereof he was so far from justifying as that he submitted desiring to be an Object of His Majesties Mercy and not of His Justice The Earl of Kildare for not performing of an Award made by King Iames and of an Award made in pursuance thereof by the said Earl of Strafford upon a Reference from His Majesty was by the Deputy and Council Committed and a Letter being unduly obtained he did not thereupon enlarge him but upon another Letter and submission to the Orders as by the King was directed he was enlarged The Lady Hibbots and one Hoy her Son having upon a Petition Answer Examination of Witnesses and other Proceedings at Council-Board been found to have committed foul abuses by Fraud and Circumvention to have made a Bargain with the Petitioner Hibbots for Lands of a great value for a small sum of Money was Ordered to deliver up the Writing no Assurances being perfected or Money paid and it 's like he threatned her with Commitment if she obeyed not that Order but denieth that the Lands were after sold to Sir Robert Meredith to his use or that by any Order by himself made any one hath been Imprisoned concerning Freeholds but for debts and personal things as some have been used by all his Predecessors in like Causes To the Ninth he saith Warrants to such Effects have been usually granted to the Bishops in Ireland in the times of all former Deputies but the Earl not satisfied with the conveniency thereof refused to give any such Warrants in general to the Bishops as had been formerly done but being informed that divers in the Diocess of Down gave not fitting Obedience he granted a Warrant to that Bishop whereto he referreth which was the only Warrant he granted of that Nature and hearing of some Complaints of the Execution thereof he recalled it To the Tenth he saith The Lord Treasurer Portland offered the Farm of the Customs for 13000 l. per annum in some particular Species but the Earl of Strafford advanced the same Customs to 15500 l. per annum and 8000 l. Fine and by His Majesties Command became a Farmer at those Rates proposed without addition to those Rates as by the printed Books 7 Car. Regis may appear he disswaded the advance of Rates lately proposed by Sir Abraham Dawes so as it was declined the Rates of Hydes and Wooll are moderate consideration being had of their true value and of the Places whereto they are
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
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
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
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
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
Bargain is to be set at the highest he that is to be their Governor and Judge to whom all Appeals must be made shall enter and put in his Authority to make a Bargain that none else would take The Subject is like to have good Justice when the Judge must lose by the Judgment he gives in the Cause when the Deputy of Ireland must be both Judge and Party It is said Williams first entertained it and left it but though my Lord be not the first that Projected it he is the man that first put it in Execution the first that took it under the Great Seal and first brought it to be a Grievance to the Subject and that he is Charged withall It might be fit for Goldsmiths and such to prosecute it but not for them that are imployed in Administration of Justice and in great designs to follow such a Design But when Profit comes roundly in Sir Arthur Ingram must be put out and for 11 years have half a years value Mr. Maynard added That my Lord of Strafford in his Answer gives it as a Justification of himself that he did not hold it fit to take such a Bargain from the King wherein there was not 1000 l. to be got But though he thought it not fit to take when he could get but 1000 l. yet he held it fit to take such a Bargain from the King where in holding it eight years he gets 30000 l. He thrusts out Sir Arthur and why not himself And there is no wonder that he that gained so much would seem to Interest His Majesty in part that his share might remain more intire surely it was the more injustice in him to retain the Bargain when he had stept into it For the Letter of Iuly 1637. there was a Proposition shewing His Majesties Care for His Subjects in Ireland what to inhance no to inhance if there were Cause My Lord pretends he was loath to make an Inhancement but that was the Opinion of the Board It is to be wondred that he took them not down rather And so he concluded That they had proved the Charge that he hath procured the Customs to be advanced they were not advanced till he entred And their Lordships were desired not to let one thing pass without Observation That from 7 Car. to this time such gain hath been made that there is come to his purse and his Parteners 300000 l. if the Depositions be to be credited and it must be four more if the succeeding years hold proportion That here is not only an Inhancement of Rates on the Subject by way of Extortion but this is soaked out of the Kings Purse That is the 1400 l. a year Rent for the Wines the Surplusage of the Wines the Defaulcation of Colerane London-Derry Knock fergus and Strangford And besides their Lordships may observe the Clause in the Patent the Grant must be good though there be an Act of Parliament against it and the King must pay for His own prize Goods which is left unto their Lordships Judgments The Committe did now declare That for the present they would lay aside the Eleventh Article and proceed to the Twelfth THE Twelfth Article The Charge 12. THat the said Earl being Lord Deputy of Ireland on the Ninth day of January in the Thirteenth year of His now Majesties Reign did then under colour to Regulace the Importation of Tobacco into the said Realm of Ireland Issue a Proclamation in His Majesties Name Prohibiting the Importation of Tobacco without Licence of him and the Council there from and after the First day of May Anno Dom. 1638. after which Restraint the said Earl notwithstanding the said Restraint caused divers great quantities of Tobacco to be Imported to his own use and fraughted diverse Ships with Tobacco which he Imported to his own use and that if any Ship brought Tobacco into any Port there the said Earl and his Agents used to buy the same to his own use at their own Price and if that the owners refused to let him have the same at under-values then they were not permitted to Uent the same there By which undue means the said Earl having gotten the whole Crade of Tobacco into his own hands he sold it at great and excessive prizes such as he list to impose for his own Profit And the more to assure the said Monopoly of Tobacco he the said Earl on the Three and twentieth day of February in the Thirteenth year aforesaid did Issue another Proclamation Commanding That none should put to Sale any Tobacco by Whole-sale from and after the last day of May then next following but what should be made up into Rolls and the same Sealed with two Seales by himself appointed one at each end of the Roll. And such as was not Sealed to be seized appointing Sir pence the Pound for a Reward to such persons as should seize the same and the Persons in whose custody the Unsealed Tobacco should be found to be committed to Goale which last Proclamation was Coloured by a Pretence for the restraining of the Sale of unwholsome Tobacco but it was truely to advance the said Monopoly Which Proclamation the said Earl did rigorously put in Execution by Seizing the Goods Fining Imprisoning Whipping and putting the Offenders against the same Proclamation on the Pillory as Namely Barnaby Hubbard Edward Cavena John Tumen and diverse others and made the Officers of State and Iustices of Peace and other Officers to serve him in the Compassing and executing these unjust and undue Courses by which Cruelties and Unjust Monopolies the said Earl raised 100000 l. per Annum Gain to himself And yet the said Earl though he Enhaunced the Customes where it concerned the Merchants in general yet drew down the Impost formerly taken on Tobacco from Sir pence the Pound to Three pence the Pound it being for his own Profit so to do And the said Earl by the same and other Rigorous and Undue Means raised several other Monopolies and Unlawful Exauions for his own Gain viz. on Search Iron-pots Glasses Tobacco-pipes and several other Commodities Mr. Maynard did begin to open the 12th Article which was Read THat he did Impost Tobacco himself and restrained others forced the Subjects to sell their Commodity at Low and Under-values because they could not Import it without his Licence and when himself had Bought it at Low Rates he Sould it at Excessive great Rates so that he hath made near 100000 l. Profit by his Monopoly That when his Proclamation is made and Oppression put upon the People he doth the 23 d of Feb. 13 Car. Ordain That none should Sell Tobacco within the Kingdom but such as was Sealed by his Appointment and they that Sold otherwise their Goods should be Sold. That by occasion hereof the Kings Subjects have been grievously punish'd by Fining Imprisoning Pilloring Whipping and the like To prove the Restraint the Proclamation on the 9 th of Ianuary the 13 th
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-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
other intent and needed no alteration The Bishop of Raffo would have had more added saying The Oath was so mean he would not come from his house to take it and so my Lord Deputy told him the Oath had been well consider'd of and needs no alteration That he the Bishop then desired a Copy of it to carry to the Gentlemen that were not present and were waiting for them at my Lord Mountgomeries lodging His Lordship was pleased to deny that but would send the Clerk of the Council who should bring the Oath and Read it and bring it back again and he did so After this the next day or that afternoon they were appointed to come to the Council-Board and have the Oath Administred That here they came and my Lord himself was pleased to Administer the Oath to every one of us two by two or three by three And this was the manner of Administring it Being Interrogated Whether they knew the occasion of their being sent for He Answered They knew not for what cause nor heard any thing of it Being Asked If he knew what Scotchmen were those that left the Kingdom because they would not take this Oath He Answered That soon after they were dismissed in May Commissions came into the Countrey to certain Commissioners for Administring the Oath to all of that Nation above the Age of Sixteen and he believes whether by the main Commission or private Instructions he cannot tell That it was ordered it should be Administred both to Men and Women above that Age And they were all called at certain dayes by the Commissioners some were scrupulous and thought in their Consciences they could not take it others that were satisfied in their Consciences did take it and those that did not take it the Commissioners were required to certifie their Names and Places of Residence to my Lord Deputy and Council that they might be proceeded against as Contemners of His Majesties Royal Authority according to the Proclamation and Commission After the Proclamation had called them some did appear and they that did not their names were certified and afterward Pursivants issued to apprehend them that did not appear or them who on appearing did refuse He knows of many that fled away into Scotland and very many that fled up and down in the Country and many were apprehended by the Pursivants and carried up and some he thinks were Censured Being Asked Whether they left their Corn on the Ground and Goods in their Houses He Answered That they did Being Asked Whether any Papists of the Scotish Nation were sent for by Letter or had the Oath tendered He Answered None of them that he could hear and the Oath was not Administred to any of them neither were they called Being Asked If there were not diverse Scotish Papists there He Answered Yes diverse Gentlemen of good Quality and he named some of them viz. Sir William Hamilton c. Being Asked on the Earl of Clares motion Whether the Refusers fled into any part of Scotland He Answered In Truth not to his knowledge but they fled out of the Kingdom of Ireland The Oath was next Read viz. IN. do faithfully Swear Profess and Promise that I will Honor and Obey my Sovereign Lord King CHARLES and will bear Faith and true Allegiance to Him and will defend and maintain His Regal Power and Authority and that I will not bear Arms nor do any Rebellious or Hostile Act against Him or Protest against any His Royal Commands but submit my self in all due obedience hereunto and that I will not enter into any Covenant Oath or Bond of Mutual Defence or Assistance against all sorts of persons whatsoever or into any Oath Covenant or Mutual Defence or Assistance against any person whatsoever by Force without His Majesties Soveraign and Regal Authority And I do renounce all Covenants contrary to what I have Sworn and Promised So help me God in Christ Jesus Whence Mr. Maynard observed from these words That they shall not Protest against any of His Majesties Royal Commands That he believed all men were satisfied that His Majesty never did nor will Command any thing unlawful but what a subordinate Minister may command in His Majesties Name and publish as His Command in Ireland their Lordships have heard enough of and that may make them tender to take the Oath besides the Oath being new it is conceived to be against Law Mr. Maxwell being Sworn and Interrogated In what manner were Gentlemen sent for to Dublin about this matter And what he knew in particular about it He Answered That he was one that received a Letter from my Lord Lieutenant upon that account and that he as well as the rest were required to be all at Dublin at a certain day and being there and my Lord Mountgomery being a little sick and not able to go abroad desired their excuse for a day or two My Lord Deputy was pleased to give Command that all that were writen for might be at my Lord Mountgomeries lodging And at the time appointed my Lord Lieutenant came and at his coming he called them together and showed the Dissenters in Scotland and desired that they would show themselves Faithful and Loyal Subjects to their Master and that it behoved them as their own desire to Petition for it whereupon my Lord Bishop of Down Râ—o and some others of the Clergy being there did second my Lords Speech and told them That as they Rebelliously proceeded in Scotland in that the Scots had taken in hand against the King so they would do well by Petition and by Oath to his Lordship and the Council to shew their willingness towards their Masters Service So my Lord Lieutenant was pleased to take hold of my Lord Downs Speech and my Lord Down desired he might be the drawer of the Petition But my Lord perceiving him a little too vehement told him Smilingly That he would recommend that to the Bishop of Raffo So the Bishop of Raffo was appointed for the drawing up of that Petition The next day they desired to peruse the Petition before it went to my Lord and after they had perus'd it they went in to my Lord Lieutenant with it after he had seen the Petition he mended something in it and among the rest he remembers the Bishop of Raffo told him That my Lord had put in That these that were here should be of no worse condition then the rest of His Majesties Subjects The next day the Petition was Ingrossed and Signed by them and presented to my Lord Lieutenant afterwards there were two Noblemen two Bishops two Gentlemen appointed to go to my Lord concerning the Oath and they desired a Copy of the Oath My Lord Lieutenant sent Sir Paul Davies out to my Lord Mountgomery and it was Read to them all and they were commanded to attend at the Council-Table and my Lord gave them the Oath Sir Hen. Spottewood was offered a further Witness but their Lordships
Asked on M r Whitlocks Motion who were those that took it so chearfully And whether the Bishops were not more chearful then others He Answered That indeed he observed no Reluctancy My Lord of Strafford here added That he speaks it truly to the honor of that Nation be it spoken the Oath was taken with much chearfulness and not any man made scruple in the whole business to his understanding save only Sir Iames Mountgomery but took it with all the readiness in the World This is as true as he lives and he thinks he speaks it for their honor and were he one of the Temporal men in that kind he should be very unwilling to be asked whether the Bishops had been more ready to give Allegiance to His Majesty than himself and he thinks he that asked the question doth them a great deal of prejudice in it Finding them thus prepared he was glad of it and they being willing to prefer such a Petition he went to them and served them with all willingness as he had reason The Petition was cheerfully brought to him to be looked over and to have his opinion how he liked it It was brought him by my Lord Mountgomery Sir Iames Mountgomery's Brother and some others whom he remembers not But these words he remembers particularly in it An offering of their Lives and Fortunes for vindicating the Authority of Regal Power which he said was too general and though they intended it well might be turned too strictly on them and therefore he desired it might be qualified with these words In equal manner and measure with other His Majesties Subjects and the words were put in by him as he is sure my Lord Mountgomery would justifie The Petition was read and the Act of State wherein it is recited being in substance as followeth By the Lord-Deputy and Council WENTWORTH Where we have lately made an Act of Council in these words WHereas divers Lords Spiritual and Temporal Knights and others inhabiting in this Kingdom have lately exhibited a Petition to us in these words following To the Right Honourable the Lord Deputy and Council c. The Humble Petition of c. The Petition recites The horror apprehended by the Petitioners His Majesties Subjects of the Scotish Nation inhabiting in Ireland for the Covenant sworn by some of their Countreymen in Scotland without His Majesties Authority and Consent Their dislike therof and their consideration that the causes of that action may be understood to reflect on the Petitioners though innocent They crave leave to vindicate themselves from so great a Contagion and desire his Lordship to prescribe a way by Oath or otherwise to free themselves from these proceedings to declare their acknowledgement of the Kings Regal Power and their dislike of that Covenant and of all other Covenants entred into c. without His Majesties Regal Authority which they are desirous to manifest by offering their lives and fortunes to vindicate the honor c. of their Sovereign which they are ready to do in equal manner and measure with other His Majesties Subjects c. and divers names were to the said Petition subscribed In consideration of which Petition we cannot but commend the wisdom of the Petitioners which we will not fail humbly to represent to His Majesty and for that we know many of this Kingdom have expressed good affection to His Majesty and His Service and dislike those disorders We hold it fit c. to free them the better from the Crimes and Scandals which their Countrey-men have gone into as also to free them from all prejudice and to approve to the King and to the whole world their Allegiance to him and his Regal Power and the dislike of that unlawful Oath and Covenant We do therefore ordain That all and every person of the Scotch Nation that inhabit or have Estates or any Houses Lands Tenements or Hereditaments within Ireland shall take the Oath herein expressed on the Holy Evangelists on pain of His Majesties High-displeasure The tenor of which Oath follows c. To several seect persons c. Authorizing them to call before them and administer the Oath to every person of the Scotch Nation c. At such time and place c. And such Instructions as shall be in that behalf given by the Deputy and Council c. And to certifie the names of all that take the Oath and if any refuse to certifie their Names Quality and Residences to the Lord Deputy c. And there is a Command that all of the Scotch Nation do appear before the said Commissioners at times by them to be appointed and to take the said Oath before them and that all persons may have due notice we think fit this be published Dated May 1639. To prove a design of seizing the Castle of Knock-Fergus my Lord of Strafford desired Mr. Slingsby might be examined and being Interrogated He Answered That about the time when it was supposed the King was in the Field of Berwick there was an Advertisement from Knock-Fergus that one Trueman had writ a Letter for betraying of the Castle there the party that sent the discovery was to be employed in the Letter and he enformed there were the hands of Twenty that should have subscribed it the Letter was conceived to be voluntarily from Trueman and not sollicited out of Scotland Trueman was sent to Dublin and examined and sent back to be tryed in the Countrey and there he received his Tryal and was Hanged Drawn and Quartered Being asked of what Nation he was He says he doth not know of what Nation but he supposes he was an Englishman For his further justification he saith at the same time there was the like Oath and Proceeding here in England The Copy of which Oath now read being affirmed by Mr. Ralton to be a true Copy 5 Iune 1639. A Copy of an Oath tendered to some of the Scotish Nation resident here in England as it is entred in the Scotish Book being in substance IN Doe faithfully swear profess and promise that I will faithfully obey my Sovereign Lord King CHARLES c. and defend and maintain His Royal Authority and that I will not bear Arms nor do any rebellious Act against him nor profess against any His Royal Commands c. And that I will not enter into any Covenant or Bond c. Of mutual Defence or Assistance against any person c. or into any Covenant Bond of mutual defence or assistance whatsoever without His Majesties Sovereign and Regal Authority And I do renounce and abjure all Covenants contrary to what is here sworn professed and promised And he submits it to their Lordships Wisdom and Justice what offence this had been for a Deputy of Ireland in a time thus conditioned for securing the publique peace of that Kingdom where he serves the Crown upon such apprehensions as these fairly without any constraint or violence offered to endeavour by such a manner of
and prove the Charge For him to say That as he was then qualified because he was Lieutenant General of the Army he might send his Warrants to Tax the Kings Subjects without Parliament is to take on him the Power of a Parliament for under favour no such Tax can be made without assent in Parliament So that what my Lord of Strafford hath declared as a ground of his Defence is a good ground of his Condemnation My Lord of Strafford did here desire liberty to speak to the Testimony of Mr. Cholmley which is new matter and he besought their Lordships to observe That he did not say as Sir William Ingram That the Money should be paid and he that paid not the Money should be in little better condition then High Treason But he that denies his Allegiance to the King to go with Him in His Wars in Defence of the Realm is little better than guilty of Treason or is Fineable in the Star-Chamber But because these are tender Points and he little understands them and they take hold of all that falls from him he shall say no more but that the Testimony of the one and the other are two several things And his Lordship proceeded to speak something touching Sir William Ingrams Testimony which Mr. Glyn interposed and said That 's no new matter but it only arises out of his Answer and therefore he desired no more might be said to that He proceeded to other matters contained in the Reply and offered to their Lordships That it had been said he did publiquely justify at the Bar that he had power to lay Taxes and to force payment but he said under favour no such thing but that he having the Kings Commission and Power to call in such as he should think fit to serve the King for defence of the Realm and this being pursuant to the Act of Parliament of 11 H. 7. he said he might justify as he conceives the calling of the Regiments to relieve by turns one another as there should be occasion but to say he had power to Tax what he pleased God forbid he should say or think such a thing He is not the wisest man in the world yet not so ignorant but to know that the one were a great breach on the fundamental propriety and liberty of the Subject but to call men to perform their Duty for preservation of the King and Kingdom he conceives to be a quite different thing His Lordship proceeded to speak to some part of the Reply concerning his sending forth of Warrants to levy by force Which being excepted against as new mattermy Lord of Strafford answer'd That if he speaks new matter it is sufficient punishment to him My Lord of Strafford proceeded That he is charged to be the procurer of Sir William Pennymans sending a Warrant to levy by force whereas he said the Warrant was issued by him and the Deputy-Lieutenants But that being denyed and apprehended to be new matter Mr. Whitlock desired to Reply to my Lord of Strafford's Answer to what he had formerly opened wherein he conceived he was not mistaken but if he were he submitted but he opened it thus That as my Lord of Strafford with the Power and Commission he had he said he might justify what he had done and it proved that he sent Warrants to levy Money and these Moneys were levyed by force Mr. Maynard added That they are here for the King and Common-wealth and desired that Right might be spared them and that there might not be continual Replyes That no colour of Answer is given that because a man must serve in person therefore Money must be required of him else he must be brought by Head and Shoulders to serve in person They offered a Warrant made upon peril of Life under the Hand and Seal of Sir Edward Osborne Whence Mr. Maynard observed That there is Imprisonment Levying of Money charging upon pain of Life levying of Goods nothing can be put upon the Subject but it hath been offered in this Case Mr. Glyn Summ'd up their Proofs saying Since my Lord of Strafford will have another Reply they have produced their Proofs That he hath levied War against the Kings Subjects and did before declare an Intention to levy Money which was afterwards done by his direction Sir William Pennyman proves that Warrants were issued and in such sort as mentions a coertion They have in pursuance proved it to be levied by four Musquetiers if he gave direction another gave execution and the parties Body must be carried away if he pays not which is a levying of War against the Kings Subjects and Gogan 5 R. 2. was accused of Treason for forceing a man to enter into Bond which is not so much as to force those payments on the Kings Subjects They produced Sir Edward Osborns Warrant attested by Mr. Cholmley to be the Original Warrant that he had from Mr. Vice-President to send for the levying of the Money To the c. WHereas His Majesty is informed that the Regiment under Command of Col. Cholmley is set forth with little Money which expresses great disaffection to His Majesties service and wilful neglect of your own and the whole Kingdoms safety the Scotch Army having taken Newcastle and being on their march towards these parts These are therefore to Will and require you in His Majesties Name and by His special Command to raise and cause to be raised by the Port Constable or otherwise as you shall think best the sum of 20s 8d at least for each common Soldiers belonging to such Towns or Parishes and to send the same immediately to York to be delivered to the Colonel for Pay and Supply of the said Soldiers and likewise to charge and command all and every person and persons who find private Arms or contribute thereunto forthwith to send the like sum at least to York to be disposed as aforesaid And in case any of them refuse to contribute you are required by like Command to certify me the Names of such refusers that a Messenger may be sent to bring them hither to serve in person and be severely punished according to the Quality of so high an offence seeing the safety of His Majesties Person and the safety of the Kingdom depends on this Fail not in the speedy execution thereof as you will answer to the contrary on peril of your life Dated the last of August 1640. Mr. Maynard desired their Lordships to observe the former Deposition that my Lord of Strafford should say The Vice-President shall or may send forth Warrants and it is originally my Lord of Straffords fault And so they concluded the 27th Article Mr. Glyn did offer to their Lordships that there is the 28th Article remaining wherein whether shall proceed or no they have not yet resolved But they desired another day to be heard they having something more to say And so the Court was Adjourned and the next day was
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
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-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
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
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
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
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
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
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
by the Lieutenants and Deputy-Lieutenants have been as they could have perswaded Christian Princes yea Worlds that the right of Empires had been to take away by strong Hands and they have endeavour'd as far as possible for them to do it This hath not been done by the King under the pleasing shade of whose Crown I hope we shall ever gather the Fruits of Justice but by Projectors who have extended the Prerogative of the King beyond the just Symetry which maketh a sweet harmony of the whole They have brought the Crown into greater want than ever by anticipating the Revenues and can the Shepherd be thus smitten and the Sheep not scattered They have introduced a Privy Council ravishing at once the Spheres of all antient Government imprisoning us without Bail or Bond They have taken from us what shall I say indeed what have they left us all means of supplying the King and ingratiating our selves with him taking up the root of all Propriety which if it be not seasonably set again into the ground by His Majesties own Hands we shall have instead of Beauty Baldness To the making of those whole I shall apply my self and propound a remedy to all these Diseases by one and the same thing have King and People been hurt and by the same must they be cured To vindicate which shall we propound new things No our antient vital Liberties by enforcing the antient Laws made by our Ancestors by setting forth such a Character of them as no Licentions Spirit shall dare to enter upon them will do the business and shall we think this is a Way to break a Parliament No our desires are Modest and Just I speak truly both for the interest of King and People if we enjoy not these it will be impossible for to releive him Therefore let us never fear they shall not be accepted by his goodness wherefore I shall shortly descend to my Motions consisting of four Parts two of which have relation to our Persons two to the propriety of Goods for our Persons First the Freedom of them from imployment abroad contrary to the antient Customs For our Goods that no Levies be made but by Parliaments Secondly No Billeting of Soldiers It is most necessary that these be resolved that the Subject may be secured in both Monday March 24. SEcretary Cook renewed the Motion of Supply for His Majesty yet so that Grievances be taken into Consideration We all think said he that both these goe hand in hand together but let me put you in mind of that which concerns the King let him have the Precedency of Honor if not of Time Let Heads of the Kings Supply be first propounded No King is more ready to hear the complaints of His Subjects and withal you know no King is more sensible of all reproaches which touch his Honor Would it not be fit to grant him this Honor to have the Precedency this will have good Aspect abroad it will prevent Divisions at home c. The first sower of Seeds of Distractions amonst us was an Agent from Spain Gundemore that did his Master great service here and at home since that we have other Ministers that have blown the fire the Ambassador of France who told his Master at home that he had wrought divisions here between King and People and he was rewarded Whilst we sate here in Parliament there was another intended Parliament within a mile of this place this was discovered by Letters sent to Rome and the place of their meeting is now changed I desire the meanest judgement will consider what may follow in giving precedency to His Majesty in so doing we shall put from our selves many Imputations This matter coming to no resolution this day Secretary Cook the next day tendred to the House certain Propositions from the King touching Supply viz. Wednesday March 26. 1628. THe Propositions tendred the day before by Secretary Cook from His Majesty were now Received and Read but the Debate thereof was referred to another day the Propositions were these viz. 1. To furnish with Men and Victuals Thirty Ships to guard the narrow Seas and along the Coasts 2. To set out 10 other Ships for the relief of the Town of Rochelle 3. To set out 10 other Ships for the preservation of the Elbe the Sound and Baltick Sea c. Wednesday April 2. 4. Car. 1. The business of Confinement came into Debate in the House of Commons whereupon Sir Francis Seymour spake to this effect That it is said the greatest Grievance is want of Supply but I hold it a greater Grievance that His Majesty is brought into these necessitys especially considering the Supplys that of late have been given to the King of two Subsidies in Parliament besides Privy Seals and that the late Loan whereby Five Subsidies were forcedly and unadvisedly taken that it is not then what the Subjects do give unless His Majesty do employ men of integrity and experience otherwise all that we give will be as cast into a bottomless Bag. Upon this occasion Sir Thomas Wentworth stood up and spake as followeth I Cannot forget that Duty I owe to my Countrey unless we be secured as to our Libertys we cannot give I speak not this to make diversions but to the end that giving I may give chearfully As for the Propositions made to induce us to give and to be considered of I incline to decline them and to look upon the State of our Countrey whether it be fit to give or no. Are we come to an end for our Countreys Libertys have we entrenched on the right of the Deputy-Lieutenants are we secured for time future Whereupon Mr. Selden speaking also upon this occasion of the Confinement of Sir Tho. Wentworth c. said THat though Confinement is different from Imprisonment yet it is against the Law that any should be Confined to his House or elsewhere I know not what you can call a punishment but here is some grounds of it or mention thereof in Acts of Parliament Books of Records but for this Confinement I find none Indeed Iews have been Confined in former times to certain places as here in London to the Iewry now called the Old Iewry c. Hereupon Sir Tho. Wentworth spake briefly as to Sir Peter Heymans enforced Imployment beyond Seas That if any man ows a man a displeasure and shall procure him to be put into Forreign employment it will be a matter of high Concern in the Effect We know the Honor and Justice of the King but we know not what his Ministers or the mediation of Ambassadors may do to hold their own wrath upon any man April 11. 4 Car. 1. MR. Secretary Cook moved for expediting of Subsidys and turning of the Votes into an Act saying We have Finally and Chearfully given the King Five Subsidies but no time is appointed and Subsidy without time is no Subsidy let us appoint a time To which Sir Dudly Diggs spake thus We