might be determined according to Law and not by himself at his Will and Pleasure upon Paper-Petitions Thirdly Upon like occasion of Pressing the Laws and Statutes that he would make an Act of Council-Board in that Kingdom as Binding as an Act of Parliament Fourthly He made his Words good by his Actions Assumed and Exercised a Boundless and Lawless Jurisdiction over the Lives Persons and Estates of His Majesties Subjects procured Judgment of Death against a Peer of that Realm Commanded another to be Hanged this was accordingly Executed both in times of High Peace without any Process or Colour of Law Fifthly By Force of a long time he Seized the Yarn and Flax of the Subjects to the Starving and undoing of many thousands besides the Tobacco business and many Monopolies and Unlawful Taxes forced a New Oath not to dispute His Majesties Royal Commands determined Mens Estates at his own Will and Pleasure upon Paper-Petitions to himself forced Obedience to these not only by Fines and Imprisonment but likewise by the Army sessed Soldiers upon the Refusers in an Hostile manner Sixthly Was an Incendiary of the War between the two Kingdoms 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 King's 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 King's 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 Edward the 3d. I proceed unto the 4th upon the Statute of the Eighteenth year of Henry the 6th 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 Horses to lye 〈◊〉 Horseback or on Foot upon the King's 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 inpossibility 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 Term in the Three and thirtieth year of Henry the Eighth in the King's-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 Heretick 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 King's 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 only to those that lead or bring Savil led them my Lord only gave the Warrant Answ To this I shall only 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 Clerk of the Crown in Ireland hath 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 only my Lord of Strafford's 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 the 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 have 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 Strafford's advantage but why the Law should be so your Lordships have only 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
Irish Statute or Custom Object But it will be said that Writs of Error are only upon failure of justice in Ireland and that suits cannot originally be commenced here for things done in Ireland because the Kings Writ runs not in Ireland Answ This might be a good Plea in the Kings-Bench and inferior Courts at Westminster-Hall the question is Whether it be so in Parliament The Kings Writ runs not within the County-Palatine of Chester and Durham nor within the Five Ports neither did it in Wales before the Union of Henry the 8th's time after the Laws of England were brought into Wales in King Edw. the 1. time Suits were not originally commenced at Westminster-Hall for things done in them yet this never excluded the Parliament-suits for Life Lands and Goods within these jurisdictions are determinable in Parliament as well as in any other parts of the Realm Ireland as appears by the Statute of the Thirtieth year of Henry 3. before-mentioned is united to the Crown of England By the Statute of the Eight and twentieth year of Hen. 6th in Ireland it is declared in these words That Ireland is the proper Dominion of England and united to the Crown of England which Crown of England is of it self and by it self wholly and intirely endowed with all Power and Authority sufficient to yield to the Subjects of the same full and plenary remedy in all Debates and Suits whatsoever By the Statute of the Three and twentieth year of Henry the 8th the first Chapter when the Kings of England first assumed the Title of King of Ireland it is there Enacted that Ireland still is to be held as a Crown annexed and united to the Crown of England So that by the same reason from this that the Kings Writs run not in Ireland it might as well be held that the Parliament cannot originally hold Plea of things done within the County-Palatine of Chester and Durham nor within the Five Ports and Wales Ireland is a part of the Realm of England as appears by those Statutes as well as any of them This is made good by constant practice in all the Parliament Rolls from the first to the last there are Receivers and Tryers of Petitions appointed for Ireland for the Irish to come so far with their Petitions for Justice and the Parliament not to have cognizance when from time to time they had in the beginning of the Parliament appointed Receivers and Tryers of them is a thing not to be presumed An Appeal in Ireland brought by William Lord Vesey against John Fitz-Thomas for Treasonable words there spoken before any Judgment given in Case there was removed into the Parliament in England and there the Defendant acquitted as appears in the Parliament Pleas of the Two and twentieth year of Edw. 1. The Suits for Lands Offices and Goods originally begun here are many and if question grew upon matter in Fact a Jury usually ordered to try it and the Verdict returned into the Parliament as in the Case of one Ballyben in the Parliament of the Five and thirtieth year of Edw. the 1. If a doubt arose upon a matter tryable by Record a Writ went to the Officers in whose custody the Record remained to certifie the Record as was in the Case of Robert Bagott the same Parliament of the Five and thirtieth year of Edw. the 1. where the Writ went to the Treasurer and Barons of the Exchequer Sometimes they gave Judgment here in Parliament and commanded the Judges there in Ireland to do execution as in the great Case of Partition between the Copartners of the Earl-Marshal in the Parliament of the Three and thirtieth of Edward the 1. Where the Writ was awarded to the Treasurer of Ireland My Lords The Laws of Ireland were introduced by the Parliament of England as appears by Three Acts of the Parliament before cited It is of higher Jurisdiction Dare Leges then to judge by them The Parliaments of England do bind in Ireland if Ireland be particularly mentioned as is resolved in the Book-Case of the First year of Henry the Seventh Cook 's Seventh Report Calvin's Case and by the Judges in Trinity-Term in the Three and thirtieth year of Queen Elizabeth The Statute of the Eighth year of Edward the 4th the first Chapter in Ireland recites That it was doubted amongst the Judges whether all the English Statutes though not naming Ireland were in force there if named no doubt From King Henry the 3d his time downwards to the Eighth year of Queen Elizabeth by which Statute it is made Felony to carry Sheep from Ireland beyond Seas in almost all these Kings Reigns there be Statutes made concerning Ireland The exercising of the Legislative Power there over their Lives and Estates is higher than of the Judicial in question until the 29th year of Edward the 3d erroneous Judgments given in Ireland were determinable no where but in England no not in the Parliament of Ireland as it appears in the close Rolls in the Tower in the 29th year of Edward the 3d. Memb. 12. Power to examine and reverse erroneous Judgments in the Parliaments of Ireland is granted from hence Writs of Error lye in the Parliament here upon erroneous Judgments after that time given in the Parliaments of Ireland as appears in the Parliament Rolls of the Eighth year of Henry the 6th N o 70. in the Case of the Prior of Lenthan It is true the Case is not determined there for it 's the last thing that came into the Parliament and could not be determined for want of time but no exception at all is taken to the Jurisdiction The Acts of Parliament made in Ireland have been confirmed in the Parliaments of England as appears by the close Rolls in the Tower in the Two and fortieth year of Edward the 3d. Memb. 20. Dorso where the Parliament in Ireland for the preservation of the Countrey from Irish who had almost destroyed it made an Act That all the Land-Owners that were English should reside upon their Lands or else they were to be forfeited this was here confirmed In the Parliament of the Fourth year of Henry the 5th Chap. 6. Acts of Parliament in Ireland are confirmed and some priviledges of the Peers in the Parliaments there are regulated Power to repeal Irish Statutes Power to confirm them cannot be by the Parliament here if it hath not cognizance of their Parliaments unless it be said that the Parliament may do it knows not what Garnsey and Jersey are under the Kings subjection but are not parcels of the Crown of England but of the Duchy of Normandy they are not governed by the Laws of England as Ireland is and yet Parliaments in England have usually held Plea of and determined all Causes concerning Lands or Goods In the Parliament in the 33 Edward 1. there be Placita de Insula Jersey And so in the Parliament 14 Edw. 2. and so for Normandy and Gascoigne and always as long as any part of
France was in subjection to the Crown of England there were at the beginning of the Parliaments Receivers and Tryers of Petitions for those parts appointed I believe your Lordships will have no Case shewed of any Plea to the Jurisdiction of the Parliaments of England in any things done in any parts wheresoever in subjection to the Crown of England The last thing I shall offer to your Lordships is the Case of 19 Eliz. in my Lord Dyer 306. and Judge Crompton's Book of the Jurisdiction of Courts fol. 23. The opinion of both these Books is That an Irish Peer is not Tryable here it 's true a Scotch or French Nobleman is Tryable here as a common person the Law takes no notice of their Nobility because those Countreys are not governed by the Laws of England but Ireland being governed by the same Laws the Peers there are Tryable according to the Law of England only per pares By the same reason the Earl of Strafford not being a Peer of Ireland is not tryable by the Peers of Ireland so that if he be not tryable here he is tryable no where My Lords In case there be a Treason and a Traytor 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 Judgment 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 England is 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 Judges they shall not proceed to Judgment 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-Common-Law Treasons remaining after the Statute of the 25th of Edw. 3 There be 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 quoties 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 Mary 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 Declarat on 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
he goes into Ireland you will find his Temper and Spirit not a whit Allayed but now being further from His Majestie 's Person he is higher in his Power and in his Will It is true that Kingdom was annexed to this many years ago but they that now possess the greatest part of it are Subjects of this Kingdom descended from them that went from hence thither Yet he tells them in a solemn Speech not suddenly but solemnly That Ireland is a Conquered Nation and the King might do with them what he would and that their Charters were nothing worth and bind the King no longer than he pleases Surely My Lords We might see what he would do if he had Power But God be blessed we find not the disposition any where resented by His Majesty and we hope that such Councels shall never have Access to so good and gracious an Ear. 4. The next thing he stays not in words but will be as good as his word if he can and he begins high For that we presents next is a Peer of the Kingdom thrust out of his Possession by my Lord of Strafford 's Order and when he Sues at Law for recovery of his Right my Lord Threatens him Truly Threatnings are not good in such a case where a man Sues for Justice And from him that ought to Administer Justice and further him in it yet he Threatens him Imprisonment to which Peers are not ordinarily liable First my Lord tells him He will not have Law nor Lawyers question his Orders he might debar the Lawyers in some Cases but why a man should have a Spleen at the Law that his Orders should not be examined by that I know not And he goes higher for when there was an occasion to speak of an Act of State he tells him That he will make him and all Ireland know that as long as he had the Government there any Act of State made or to be made should be as binding as an Act of Parliament My Lords He cannot go higher in Speeches than this That an Act of State of his own making and his own Power should be as binding as an Act of Parliament Nay he tells them in Parliament That they were a Conquered Nation and must expect Laws as from a Conquerour 5. Next we shall shew divers Instances wherein he exercises Power over the Lives Lands and all that is the Subjects deduced into several Articles viz. the 5th the 6th the 7th and the 8th In particular one I shall be bold to open That is the Case of my Lord Mountnorris another Peer of that Kingdom and a great Officer there Some words fell from that Lord speaking of one that had trodden on my Lord of Strafford 's Toe That he hoped the Party did it not in Revenge for he had a Brother that would not have sought such a Revenge For these words spoke at a private Table half a year yea seven months before my Lord of Strafford calls a Council of War and judges his Lordship to death My Lords It is no wonder that he would make the King 's little Finger so heavy that could make his own Toe heavy enough to tread the Life of a Peer under his Feet And he did not only give Sentence in that Case but caused Execution to be done in another Case upon one D. who was condemned by Martial Law and hanged at Dublin where there was no War at all Other particulars will follow when I fall upon proof 9. Then he comes to make Laws and that is in the 9th Article By the Laws of England and Ireland too the Ecclesiastical Power is distinct from the other it not extending to the Imprisonment of the Person but is to attend the King's Courts and to receive directions from thence yet he makes a Warrant to the Bishop of Downe and he made it to others too That if any of the poorer sort did not appear upon the Bishop's Citation or not obey when they did appear they should be Attached and Imprisoned Here he makes a Law of himself and subjects the Liberties of the Subjects to his own Pleasure but this was for the poorer sort of People though Justice sees no difference in matters of Estate betwixt Poor or Rich But when he hath brought it on the Poor he will afterwards bring it on the Rich. 10. The next is a Power of laying Impositions on the Subjects First he is a Farmer of the Customs he puts excessive Rates upon the Commodities that which is worth but 5 s. as the Hydes he will have valued at 20 s. and the Wool which is worth 5 s. he will have it valued at 13 s. 4 d. and by this he takes away in effect whatsoever the Commodity is worth for the Customs come very near the Value Another particular in this I shall be bold to open and I hope his Lordship will provide to give an Answer He hath advanced by this the King's Customs and a Rent of 1350 l. is encreased to the Crown But it will appear to your Lordships that the Crown hath lost and he only hath gained And whereas my Lord of Strafford says there was no other Defalcations in his Patent than in the former that will fall out to be otherwise for this is the State of the bargain There was a former Rent of 9700 l. which the Duke of Buckingham paid out of this Farm On the Earl of Strafford 's Patent that Rent is reserved and as much as came to 1350 l. more but in lieu of 1350 l. advanced to the King my Lord of Strafford hath in his Grant the Surplusage of Wines which were not in the Duke's Patent worth 3400 l. a year besides a Rent paid for the Term of the Wine of 1400 l. And whereas there was no defalcation of the Customs of London-Derry and Colerane in the Duke's Lease which amounted to 1500 l. a year my Lord of Strafford must have a defalcation for them And then the Seizures which were 500 l. a year and for Knockvergus and Straniford 2500 l. a year so here is above 5000 l. a year less to the Crown in lieu of the advance of 1350 l. a year besides the increased Customs amounting to 12000 l. a year And yet he again hath far exceeded this proportion We say further he doth not only impose on the Subjects but takes away that which is the Subjects utterly and entirely as in the case of the Flax. It is true the Employment of it belongs to Women but it is the greatest Commodity one of them of that Kingdom and of greatest profit the Revenue of the Custom of it being 800 l. a year and this he hath gotten into his own hands and possession This he got from the Natives and took it to himself He doth for that purpose issue out a Proclamation That they shall use it in such a way wherein the Natives were unskill'd and if it were not so done it should be seized and it was seized
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 knowledg 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 tells 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 King's People in Yorkshire he is pleased to observe that all the proof 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 Traytor because I speak the Truth There was his Answer in his Collection And for their Charters he says 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 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 King 's 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 Pennyman 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 Lord's 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 King 's 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
afterwards is very high but no thanks to him that the Sentence of Death was not executed it was the Grace and Goodness of His Majesty that would not suffer my Lord Mountnorris a Person of that Eminence to be put to death against Law But the other was hanged and as appears against Law and though my Lord pretends the party was burnt in the hand yet that was not proved nor material and for him to do this in time of Peace when the Courts of Justice were open it argues a desire in his Breast to arrogate a Power above Law And in truth I may not omit some observations that my Lord made this day He hopes His Majesty would be pleased to grant him a Pardon I perceive he harboured in his thoughts that he might hang the King's Subjects when he would and then get a Pardon of course for it The Lord bless me from his Jurisdiction My Lords give me leave to go back again here is Power over the Lives and Liberties of the Subject but he exercised likewise a Tyrannical Power over his Estate Your Lordships may be pleased to remember the fourth Article where he judges my Lord of Cork's Estate in neither Church-land nor Plantation-land and therefore had no pretence of a Jurisdiction for it is a Lay Fee devolved by Act of Parliament to the Crown yet he deprives him of his possession which he had continued for Twenty nine years upon a Paper-Petition without Rules of Law And whereas my Lord of Cork went about to redeem himself the Law being every man's Inheritance and that which he ought to enjoy he tells him He will lay him by the heels if he withdraw not his Process and so when he hath judged him against an express Act of Parliament and Instructions and bound up a great Peer of the Realm he will not suffer him to redeem that wrong without a threat of laying him by the heels and he will not have Law nor Lawyers question his Orders and would have them all know an Act of State should be equal to an Act of Parliament which are words of that nature that higher cannot be spoken to declare an intention to proceed in an Arbitrary way The next was my Lord Mountnorris his Case and Rolstone And here I must touch my Lord with misrepetition Rolstone preferred a Petition to my Lord-Deputy my Lord-Deputy himself Judges his Estate and deprived him of his possession though he cannot produce so much as one example or precedent though if he had it would not have warranted an illegal action but he cannot produce a precedent that ever any Deputy did determine concerning a man's private Estate and if he hath affirmed it he proved it not some Petitions have been preferred to him but what they be non constat But though never any knew the Deputy alone to determine matters of Land yet he did it To the Seventh Article was produce no Evidence but my Lord of Strafford cannot be content with that but he must take upon him to make defence for that which is not insisted upon as a charge but since he will do so I refer it to the Book in Print where he determines the Inheritance of a Nobleman in that Kingdom that is my Lord Dillon by a Case falsly drawn and contrary to his consent and though he deprives him not of his possession yet he causes the Land to be measured out and it is a danger that hangs over his head to this day And had we not known that we had matter enough against my Lord of Strafford this should have risen in judgment against him but I had not mentioned it now if he had not mentioned it himself The Eighth Article contains several charges as that of my Lord Chancellor How he imprisoned him upon a Judgment before himself and the Council how he inforced the Seal from him when he had no Authority nay though it were excepted by his Patent that he should no way dispose of it but he looked not to Authority further than might make way to his Will Another concerns the prime Earl of that Kingdom my Lord of Kildare whom he imprisoned and kept close prisoner contrary to the King 's express command for his deliverance and in his answer my Lord acknowledges it but sayes That that Command was obtained from the King upon a mis-information These things I would not have mentioned if he had passed them over but since he gives them in give me leave to mention and say we had a ground to put them into Charge and could have proved them if there had been need punctually and expresly and I believe little to my Lord's advantage But your Lordships I think do remember my Lady Hibbots Case where the Lady Hibbots contracts with Thomas Hibbots for his Inheritance for 2500 l. executes the Contract by a Deed and Fine levied deposits part of the Money and when a Petition was exhibited to the Lord-Deputy and Council for the very Estate your Lordships remember how this came in Judgment before my Lord-Deputy there was but a Petition delivered there was an answer made and all the suggestions of the Petition denyed yet my Lord spake to Hibbots himself that was willing to accept the Money not to decline the way that he was in by Petition Five hundred pound more will do him no hurt to carry into England with him and yet without examination of a Witness a Decree was made to deprive this Lady of her Estate and the purchasing of this Land by my Lord of Strafford was proved by two Witnesses though not absolutely yet by confession of Sir Robert Meredith and others whose names were used in Trust for my Lord of Strafford and that it proved according to my Lord of Strafford's Prophecy for the man had five hundred pounds gain above the Contract with my Lady Hibbots But after the Lands were sold for Seven Thousand Pounds so that the Lady Hibbots offence was her making of a bargain whereby to gain Five hundred pounds but there was no offence in my Lord to make a bargain for Three thousand pounds and to gain Four thousand pounds presently this you see proved by Hibbots the party and by Mr. Hoy the Son of the Lady Hibbots So that here is a determination of a Cause before the Council-Table touching Land which was neither Plantation nor Church-Land without colour of the Instructions contrary to Law to Statute to Practice and if this be not an exercising of an unlawful jurisdiction over the Land and Estates of the Subject I know not what is In his answer to this Case he did open it yet whether he mistook or no I know not that he had a Letter from the King but he produces none in evidence and that is another misrecital I am sorry he should mis-recite and fix it upon the Person of His Soveraign in a case of this nature Now he falls more immediately upon the Liberty of the Subject and that is by the Warrant
upon the Coyn all his intentions yea his preparations will not serve to make up a Charge of Treason And this under favour may serve to answer the Case of Guido Faux lately objected unless it be alledged that the Lord Strafford had as real an intention against the King's Life as Faux had for though the Intention in that Case be Treason by the Statute yet in all other things there is no Treason without the Action so immense and vast a Difference both is and ought to be betwixt a Project against the Royal Blood and all things else of a lower and inferiour Nature You see then My Lords that the body of the Statute cannot strike against the Lord Strafford neither in letter nor consequence this is not that must not be All that can be said is That yet his Fact may be Treason by the Common Law For my part I profess my Ignorance who ever thought the Common Law might declare but never make a Treason that is it must be presupposed that there is a Statute whereupon to build the Declaration and therefore to say that there is no Statute for it is to say it is no Treason at all The Statute ever makes the Treason and to be declared to be Treason either by Common Law or by Parliament are but two different ways of proceeding and must both resolve into one Principle nay and which comes home to the point in the 21 Ed. 3. to kill a man imployed in the King's War was Treason and 23. to kill the King's Messenger was Treason by Declaration of the Common Law but alwayes by reason of the Statute yet none of these are now Treason but Felony only by reason of the intervening Statute of 25 Ed. 3. Such hath ever been thought the force of its Letter and Declaration And so I leave it and will speak a word or two of the Salvo which is That because all Particulars could not be then determined therefore what the King and his Parliament should declare to be Treasonable in time to come should be punished as Treason And according to this Reservation in the 8 Ric. 2. one M was charged before the Kings-Bench and afterwards referred to the Parliament and there though the Fact was not contained in the Body of the Statute yet because of the Proviso it was adjudged Treason In the 11th Year of the same King the Duke of Ireland and Nevil Archbishop of York were impeached of High Treason by Glocester Arrundel and Warwick and notwithstanding the Statute were convicted thereof by the Salvo But in the 21 of the same Rich. 2. the Tide turned and the King had such a hand with the Parliament that the Sentence was recalled and those three Noblemen themselves were adjudged Traytors Again in the First Year of H. 4. his Successor that Revocation of the 21 Rich. 2. was repealed and the Sentence of the 11th of his Reign Re-established such were the Tossings to and fro of Treason and all because of that uncertain Proviso Therefore it was that in the same Parliament 1 H. 4. a Petition was preferred by the Nobility to have Treason limited within some Statute because they knew not either what to speak or what to do for fear thereof And in Chap. 10. an Act was made upon this Petition That that Salvo should be holden Repealed in all time to come and nothing Esteemed Treason but what was literally contained in the Statute 25 Ed. 3. And then it is said in the Record that there was great Joy at the making of this Act in that the drawn Sword hanging over every man's head by this slender thread of a Consequence or Illation was removed by that Act. Add to this that 1 Mariae c. 1. the same is repeated that No man shall be punished in Life or Estate as a Traitor but for the Crimes contained in the Statute 25 Ed. 3. without the least mention of the pretended Salvo The Earl of Northumberland 's Case comes nigh to the point he was charged with Treason 5 H. 4. and if the Statute of 1 H. 4. c. 10. whereby the Proviso is repealed had not intervened no doubt he had been condemned of Treason but he was convict of Felony and that because he could not be drawn within the Letter of that Statute 25 Ed. 3. and I dare confidently say it That since that Act made 1 H. 4. c. 10. whereby the Proviso is repealed no man hath ever been declared a Traitor either by the King or Parliament except it were upon that or some other Statute litterally and declaratively taken These two things I do offer to your Lordships Consideration that the Lord Strafford cannot be Impeached of Treason by the Statute of 25 Ed. 3. and that the Salvo contained in the same stands repealed almost 200 Years ago And this is all I conceive to be necessary for that Statute which was alledged by the Lord Strafford in his Defence for matter of Law Then the Recorder Mr. Gardener spoke something to this purpose That what was spoken upon that Statute was because it seemed inseparable from the matter of Fact That they could proceed no further till a state were afforded to them That to do otherwise they conceived might be Exceeding prejudicial to the Earl of Strafford 1. In regard that they should suppose that to be done which is not proved to be so 2. That the matter of Law ariseth so naturally from the matter of Fact that it will be impossible to separate them one from the other 3. That it is the Course of all Judicatures first to settle the Verdict and upon that to fix the Arguments otherwise he could conceive no possible Way of Proceeding and therefore in the Lord Strafford 's name he most humbly intreated their Lordships either wholly to determine the matter of Fact not whether Treason or not for then all after-Proceedings in Law were unnecessary but whether done or not done or else to give them some states of the Question whereunto they might conform themselves Whereupon the Court adjourned But the Commons were resolved to pursue another Method and nothing now would do but the Bill of Attainder Munday April 19. and accordingly upon Monday April 19 it was Resolved upon the Question That the Endeavour of Thomas Earl of Strafford to Subvert the Antient and Fundamental Laws of the Realm of England and Ireland and to introduce an Arbitrary and Tyrannical Government against Law in Both these Kingdoms is High Treason By which Vote they not only precluded all further Argument as to matter of Law but made themselves Accusers Parties and Judges both as to Matter of Fact and Law also Upon Wednesday Wednesday April 21. Bill of Attainder of the E. of Strafford read thrice in one day and passed the Commons April 21. the Bill of Attainder was twice read in the Morning with the Amendments and ordered to be ingrossed and so eager were they in the Prosecution that it was read again in the
him and in that which is most Sacred amongst Men the Publick Justice of the Kingdom The King is to be accounted unto for the loss of the meanest Member much more of one so near the Head The Commons are concerned in their Account for what is done your Lordships in that which is to be done The business therefore of the present Conference is to acquaint your Lordships with those things that satisfy'd the Commons in Passing of this Bill such of them as have come within my capacity and that I can remember I am Commanded from the Commons at this time to present unto your Lordships My Lords in Judgment of greatest Moment there are but two wayes for satisfying those that are to give them either the Lex lata the Law already established or else the use of the same Power for making new Laws whereby the old at first received life In the first consideration of the setled Laws in the degrees of Punishment the Positive Law received by General Consent and for the Common Good is sufficient to satisfie 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 Wilful Murder in Ireland it is Treason and so is the wilful Burning of a House or a Stack of Corn In the Isle of Man it is Felony to Steal a Hen but not to Steal a Horse and yet the Judge in Ireland hath as just a Ground to give Judgment of High-Treason in those Cases there as here to give Judgment only of Felony and in the Isle of Man of Felony for the Hen as here for Petty-Larceny My Lords in the other Consideration of using the Supream Power the same Law gives Power to the Parliament to make new Laws 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 than what is necessary for the Cure the Laws 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 Laws 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 only 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 only 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 Laws 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 Bar 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 Edw. 6. whether one direct Witness with others to circumstances had been single or double Testimony And although single Testimony might be sufficient to satisfie 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 man's 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 23d 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 is 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
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 Judgment sent down into the King's Bench as appears Easter Term in the 17th year of R. 2. in the King's-Bench Rot. 16th These two Lords had appeared in the 11th of R. 2. in maintainance of the Act of Parliament made in the year before one of them was of the Commissioners appointed by Parliament and one of the Appealors of those who would have overthrown it The Duke of Lancaster likewise was one of the Lords that was to have been Indicted of Treason for endeavouring the maintenance of it and therefore conspiring of their deaths is said to be in destruction of their Laws This there is declared to be Treason that concerned the Person of the King and Common-wealth In that great insurrection of the Villains and meaner People in Richard the II. time they took an Oath Quod Regi Communibus fidelitatem servarent to be true to the King and Commons and that they would take nothing but what they paid for punished all theft with death here 's no Intendment against the Person of the King The intent was to establish the Laws of Villanage and Servitude to burn all the Records to kill the Judges This in the Parliament of the 5th year of R. 2. No 31 32. the First Part is declared to be Treason against the King and against the Law In the 11th year of R. 2. in Parliament the raising of Forces against the Commissioners appointed by Act of Parliament the year before adjudged Treason by the Judges The Statute Jmo 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 Major 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 Traytors 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 Aynestowhill 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 although 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 Talbot's 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 Hermet 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 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
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 whatsoever to procure a Privy-Seal or any other Command whatsoever for apprehending any Person in Ireland for Treason done without that Kingdom and to put any such Command in Execution divers had been attainted of Treason for executing such Commands There is a Treason so made by Act of Parliament in Henry the Sixth's time In the third Chapter of this Parliament of the tenth of Henry the Seventh an Act is passed for no other end then to repeal this Statute of Henry the Sixth of Treason If this Statute of Henry the Sixth of Treason had been formerly repealed by the Statute of 8 E 4. or then by the two and twentieth Chapter of this Parliament of the 10th of Henry the Seventh by bringing in the English Statutes the Law-makers were much mistaken now to make a particular Act of Parliament to repeal it it being likewise so unreasonable an Act as it was In the Eighth Chapter of this Parliament of the 10th of Henry the Seventh it is Enacted that the Statutes of Kilkenny and all other Statutes made in Ireland two only excepted whereof this of the Eighteenth of Henry the Sixth is none for the Common-Weal shall be enquired of and executed My Lord of Strafford saith that the bringing in of the English Statute hath repealed this Statute the Act of Parliament made the same time saith no it saith that all the Irish Statutes excepting two whereof this is none shall still be in force Object Oh but however it was in the 10 H. 7. yet it appears by Judgment in Parliament afterwards that this Statute of 18 H. 6. is repealed and that is by the Parliament of the 11th year of Queen Elizabeth the 7th Chapter that by this Parliament it is Enacted That if any Man without Licence from the Lord-Deputy lay any Soldiers upon the Kings Subjects if he be a Peer of the Realm he shall forfeit one hundred pounds if under the degree of a Peer One hundred Marks This Statute as is alleadged declares the Penalty of laying Soldiers on the Subjects to be only one hundred pounds and therefore it s not Treason Answ My Lords if the Offence for which this Penalty of one hundred pounds is laid upon the Offenders be for laying Soldiers or leading them to do any Act Offensive or Invasive upon the Kings People the Argument hath some force but that the Offence is not for laying Soldiers upon the true Subjects that this is not the Offence intended in the Statute will appear to your Lordships Ex absurdo from the words of it The Words are That if any Man shall assemble the People of the County together to conclude of Peace or War or shall carry those People to do any Acts Offensive or Invasive then he shall forfeit One hundred pounds If concluding of War and carrying the people to Acts Invasive be against the Kings Subjects this is High-Treason which are the words of the Statute of 25 E. 3. for if any Subject shall assemble the people and conclude a War and accordingly shall lead them to invade the Subject this is a levying of War within the words of the Statute and then the Statutes of the 25 E. 3. 1 H. 4. 1 of Queen Mary which the Earl of Strafford in his Answers desires to be tryed by are as well repealed in this point as the Statute of the 18th of Henry the Sixth he might then without fear of Treason have done what he pleased with the Irish Army for all the Statutes of levying of War by this Statute of 11 Eliz. were taken out of his way In Ireland a Subject gathers Forces concludes a War against the Kings People actually invades them bloodshed burning of houses depredations ensue two of those that is Murder and burning of Houses are Treason and there the other Felony by the construction the punishment of Treason and Felony is turned only into a fine of One hundred pounds from loss of Life Lands and all his Goods only to loss of part of his Goods The Third Absurdity a War is concluded three several Inrodes are made upon the Subjects in the first a hundred pounds damage in the second five thousand pounds damage in the third ten thousand pounds damage is done to the Subjects the penalty for the last inroade is no more then for the first only one hundred pounds This Statute by this Construction tells any man how to get his living without long labour Two parts of the hundred pounds is given to the King a third part unto the Informer Here 's no damage to the Subject that is robbed and destroyed My Lords The Statute will free it self and the makers from those Absurdities The meaning of the Statute is That if any Captain shall of his own head conclude of Peace or War against the Kings Enemies or Rebels or shall upon his own head invade them without Warrant from the King or Lord Deputy of Ireland that then he shall forfeit a Hundred pounds The offence is not for laying of Soldiers upon the Kings people but making War against the Irish Rebells without Warrant the Offence is not in the Matter but in the Manner for doing a thing lawful but without Mission I. This will appear by the general Scope of the Statute all the parts being put together II. By particular Clauses in the Statute III. By the Condition of that Kingdom at the time of the making of that Statute For the First The Preamble recites that in time of Declination of Justice under pretext of defending the Country and themselves diverse great Men arrogated to themselves Regal Authority under the names of Captains that they acquired to themselves that Government which belonged to the Crown for preventing of this It 's Enacted That no man dwelling within the Shire-Grounds shall thenceforth assume or take to himself the Authority or name of a Captain within these Shire-Grounds without Letters-Patents from the Crown nor shall under colour of his
Treasons are commited in Ireland therefore not tryable here Answ My Lords Sir John Parrot his Predecessor 24 Ed. was tryed in the Kings-Bench for Treason done in Ireland when he was Deputy and Oruche in the 33 year of Queen Elizabeth adjudged here for Treason done in Ireland Object But it will be said these Tryals were after the Statute of the 34th year of Henry the 8th which Enacts that Treasons beyond Sea may be tryed in England Answ My Lords his Predecessor my Lord Gray was tryed and adjudged here in the Kings-Bench that was in Trinity-Term in the 33 year of Henry the 8th this was before the making of that Statute Object To this again will we say That it was for Treason by the Laws and Statutes of England that this is not for any thing that 's Treason by the Law of England but an Irish Statute So that the question is only Whether your Lordships here in Parliament have cognizance of an offence made Treason by an Irish Statute 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-Common-Law If any question arise concerning either a Custom or an Act of Parliament the common-Common-Law of England the First the Primitive and the General Law that 's the Rule and Expositor of them and of their several extents it is so here it is so in Ireland the common-Common-Law of England is the common-Common-Law of Ireland likewise the same here and there in all the parts of it It was introduced into Ireland by King John and afterwards by King Henry 3. by Act of Parliament held in England as appears by the Patent Rolls of the 30 year of King Henry 3. the first Membrana the Words are Quia pro Communi Vtilitate 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 Johannes Rex cum ultimò esset in Hibernia statuit fieri mandavit quia c. Rex vult quòd omnia brevia de Communi Jure quae currunt in Anglia similiter currant in Hibernia sub novo sigillo Regis mundatum 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 Courts 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 us 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 Edward 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 Judgment 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
himself unready he said I thank God I am no more afraid of Death nor daunted with any discouragements arising from any fears but do as chearfully put off my Doublet at this time as ever I did when I went to Bed Then he put off his Doublet and wound up his Hair with his Hands and put on a white Cap. Then he called Where is the man that should do this last Office meaning the Executioner call him to me When he came and ask'd him forgiveness he told him he forgave him and all the World Then kneeling down by the Block he went to Prayer again himself the Bishop of Armagh kneeling on the one side and the Minister on the other to the which Minister after Prayer he turned himself and spoke some few words softly having his Hands lifted up the Minister closed his Hands with his then bowing himself to the Earth to lay down his Head on the Block he told the Executioner That he would first lay down his Head to try the fitness of the Block and take it up again before he laid it down for good and all and so he did and before he laid it down again he told the Executioner That he would give him warning when to strike by stretching forth his Hands and then laid down his Neck on the Block stretching out his Hands the Executioner struck off his Head at one blow then took the Head up in his Hand and shewed it to all the People and said God Save the King A Copy of the Paper containing the Heads of the Lord Strafford's last Speech written by his own Hand as it was left upon the Scaffold 1. I Come to pay the last Debt we owe to Sin 2. Rise to Righteousness 3. Dye willingly 4. Forgive all 5. Submit to what is Voted Justice but my intentions Innocent from Subverting c. 6. Wishing nothing more than great Prosperity to King and People 7. Acquit the King constrained 8. Beseech to Repent 9. Strange way to write the beginning of Reformation and Settlement of a Kingdom in Blood on themselves 10. Beseech that Demand may rest there 11. Call not Blood on themselves 12. Dye in the Faith of the Church 13. Pray for it and desire their Prayers with me His Body was afterwards Embalmed and Carried down into Yorkshire to be buried among his Ancestors Thus fell the Wonder of that Age and of all succeeding of whom I think a Greater Character cannot be given than those in short of the Archbishop of Canterbury who knew him best and the Primate of Ireland who saw him Dye The Archbishop discoursing with Dr. Whimberley concerning that Passage at their parting said That perhaps it was a softness unbecoming him but he hoped by Gods Assistance and his own Innocence that when he should come to his own Execution which he Expected the World should perceive that he had been more sensible of the Earl of Strafford's Loss than of his own and with good reason he said for that Gentleman was more Serviceable to the Church not to mention the State then either himself or all the Church-men of England had been And the Lord Primate of Ireland giving an account to the King of the manner of his Death told him That he had seen many Die but never saw so White a Soul return to its Maker At which Expression that Good and Compassionate Prince was so tenderly touched that turning himself aside he could not forbear paying the sad Tribute of some Tears to the Innocent Manes of the Illustrious Sufferer He left these Three Instructions to his Son in Writing First That he should continue still to be brought up under these Governors to whose Charge he had committed him as being the best he could chuse of all those within his Knowledg and that he should not change them unless they were weary of him that he should rather want himself than they should want any thing they could desire Secondly If his Prince should call him to Publique Service that he should carefully undertake it to testifie his Obedience and withal to be Faithful and Sincere to his Master though he should come to the same End that himself did Thirdly That he foresaw that Ruin was like to come upon the Revenues of the Church and that perhaps they might be shared among the Nobility and Gentry but charged him never to meddle with any of it for the Curse of God would follow all them that meddle with such a thing that tends to the destruction of the most Apostolical Church upon Earth Thus lay his Innocence asleep with his injured Ashes till together with Monarchy and Episcopacy it received a Resurrection at the Happy Restauration of his Most Serene Majestie King Charles the Second when by publique Act of Parliament publique Justice was done to his Memory and the Injustice of his Sufferings The Act was as follows WHereas Thomas late Earl of Strafford The Act for Reversing the Attainder of Thomas Earl of Strafford was impeached of High-Treason upon pretence of endeavouring to subvert the Fundamental Laws and called to a publick and solemn Arraignment and Tryal before the Peers in Parliament where he made a particular Defence to every Article objected against him insomuch that the turbulent party then seéing no hopes to effect their unjust Designs by any ordinary way and method of Proceedings did at last resolve to attempt the Destruction and Attainder of the said Earl by an Act of Parliament to be therefore purposely made to condemn him upon accumulative Treason none of the pretended crimes being Treason apart and so could not be in the whole if they had been proved as they were not and also adjudged him guilty of Constructive â—reason that is of Levying War against the King though it was only the Order of the Council-Board in Ireland to be executed by a Sergeant at Arms and three or four Soldiers which was the conuant practise of the Deputies there for a long time To the which end they having first presented a Bill for this intent to the House of Commons and finding there more opposition than they expected they caused a multitude of tumultuous persons to come down to Westminster armed with Swords and Staves and to fill both the Palace-yards and all the approaches to both Houses of Parliament with Fury and Clamor and to require Justice speedy Justice against the Earl of Strafford and having by those and other undue practises obtained that Bill to pass the House of Commons they caused the Names of those resolute Gentlemen who in a Caâ—e of innocent Blood had freely discharged their Consciences being Fifty nine to be posted up in several places about the Cities of London and Westminster and shied them Straffordians and Enemies to their Countrey hoping thereby to deliver them up to the fury of the People whom they had endeavoured to incense against them and then procured the said Bill to be sent up to the House of Peers where it having some
Lordships Yesterday morning finding a Multitude in the Palace-Yard did make an Order and declared it to Ten of the principal Persons of them in the open House of Parliament That the House of Commons being the Representative Body of the Commons of this Kingdom who had brought in the Bill against the Earl of Strafford their Lordships thought fit to let them know that their Lordships are going on to the final Conclusion of the great business concerning the Earl but are so compassed with Multitudes that their Lordships may be conceived not to be free unless these Companies of People be sent home whose flocking hither doth only hinder their Lordships from going on to conclude that great business And therefore their Lordships desire them to consider with their Lordships how this business of such Importance may be first expedited and not interrupted by the concourse of such numbers of People the business having no other hindrance but their Concourse about both Houses in this manner But the Commons had occasion for the Tumults and they were not to be discouraged and therefore instead of an Answer they at another Conference present them with the Protestation of which before Tuesday May the 4th Amidst all these concerns of greater Moment the Faction was still at leizure not only to affright their Enemies but to encourage their Friends For on the one side on Tuesday the 4th of May these Votes Passed in favour of John Lilburn the great and avowed Enemy of Episcopacy for which he had been Sentenced in the Star-Chamber and upon Mr. Rouse's reporting of his Case to the House Resolved c. Votes in favour of John Lilburn That the Sentence in the Star-Chamber given against John Lilburn is illegal and against the Liberty of the Subject and also bloody wicked cruel barbarous and tyrannical Resolved c. That Reparation ought to be given to Mr. John Lilburn for his Imprisonment suffering and loss susteined by that illegal Sentence And on the other side that they might bring the Bishops under the Popular Odium Mr. William Thomas in a long and studied Speech which was afterwards Printed and Published endeavoured to blacken the whole Order to that Degree that they might not appear fit to continue Members of Parliament or indeed fit to live for having got a tast of the Blood of Strafford they were now meditating how to make the Ax tast of the Blood of the Archbishop of Canterbury whom the Presbyterians and other Sectaries esteemed one of their greatest Enemies The Speech as I find it Printed is as follows I Have formerly spoken of the present Church Government Mr. William Thomas his Speech against Bishops May the 4th 1641. by Archbishops Bishops c. Declaring the corruption and unsoundness thereof and how far degenerate if not contrary to the pure Primitive Apostolical Institution also I have touched a little of the other parts as how unlawful it was for them to intermeddle in Temporal Affairs to use Civil Power or to Sit as Judges in any Court much less in the Court of Parliament where they pass Censure and Judgment not only of our Lives and Liberties but on the Estates and Inheritance and Blood as of us so of our posterity And as this is unlawful by the Divine Law so by the Canons of the Church yea of this Church and Acts of Parliament of this Realm whereof I shall further enlarge my self in my ensuing discourse so hath their Sitting there been prejudicial and obnoxious to Kings and Subjects Now I desire briefly to declare when and how the Bishops came to be Members in the Parliaments in the House of the Lords and by what means they continued their Sitting there because prescription is much insisted upon Although long usage as King James truly delivereth confirmeth no Right if unlawful originally or at convenient times interrupted And whereas it hath been demanded why the first of our Reasons viz. That it hindereth Ecclesiastical Vocation was not urged 600 years ago I answer there was then no cause for the first beginning of Parliaments was not 74 years after But if this had been delivered of the lawfulness and conveniency of their intermedling in Temporal Affairs I should have replyed that it hath been declared not only 600 but 1600 years ago and in each Century since But supposing and granting that it was meant of such Parliaments as were before the Conquest you shall find that above Six Hundred years ago the Prelates are charged by their intermedling in secular Affairs to neglect the Office of Episcopal Function For this we read Hollingshead the Clergy were altogether unlearned wanton and vitious for the Prelates altogether neglected the Office of Episcopal Function which was to tender the Affairs of the Church and to feed the Flock of Christ lived themselves Idle and Covetous addicted wholly to the Pomp of the World and voluptuous Life little caring for the Churches and Souls committed to their charge And if any saith Higden told them that their lives ought to be holy Rand. Higden Policron lib. 6. cap. 74. and their conversation without covetousness according to the sacred Prescript and virtuous example of their Elders they would scoffingly put them off with a Nunc aliud tempus alii pro tempore mores Thus saith he they plained the roughness of their doings with the smoothness of their Answers Briefly they were so loose and riotous saith Gervasius of Canterbury they fell so fast to commit wickedness Gervasius Dorobernensis as to be ignorant of sinful Crimes was then held to be a great Crime it self And the Clergy saith Malmesbury contenting themselves with trivial Literature William Malmsbury could scarcely hack and hew out the words of the Sacrament Robert was then Archbishop of Canterbury who instigated King Edward the Confessor against his Mother Queen Emma charging her with incontinency with Alwyn Bishop of Winchester observe how one Locust stings another William Malmsbury which she washt away and cleared her self of by a sharp Tryal of Fire Candentis Ferri being put according to the Law Ordalium to clear her self by passing Nine Plough-shares glowing red hot bare-footed and blind-folded which she did without hurt And as this Bishop had charged the Queen his Mother with incontinence so did he likewise the Queen his Wife Edith or Egith with Adultery but no less untruly and unjustly then malitiously and enviously as saith Malmesbury she being a Lady incomparable as for Beauty so for Virtue in whose Breast there was a School of all Liberal Sciences And the like testifies Ingulphus that had often Conference with her that as she was Beautiful and excellent well Learned so in her demeanor and whole course of Life a Virgin most Chast humble and unfeignedly holy mild modest faithful and innocent not ever hurtful to any And do we not read that about the Year 1040 that Bishop Alfred had his Hand deep in the Murder of Prince Alfred who having his Eyes
existit at quod in Recordo illo in nullo est errat ' Ide◠Consideratum est quod judicium predictum in omnibus affirmetur in omnibus suo robore effectu stet remanet dicta Causa pro Errore superius assignat ' aut allegat ' in aliquo non obstante super quo Record processum predict ' necnon process ' predict ' Curia Parliamenti ibidem in premissis habit ' è predict ' Curia Parliamenti coram Domino Rege ubicunque c. per predict ' Cur ' Parliamenti Remittentur ac predictus Carolus in Curia Domini Regis coram ipso Rege habeat Executionem judicii predicti versus prefatum Thomam juxta formam effectum judicii illius predict ' Breve de Errore super ' inde non obstante Subscribed by the Clerk of the Parliament and delivered to the Defendant in the Writ of Error 29 May 1641. to be remitted into the King's-Bench that Execution may be had upon the Judgment Mr. Monday May 31. Bills for taking away the Court of Sear-Chamber and regulating the Council Board ingrosted Tuesday June 1. Votes about the Petty Farmers of the Customs Prideaux reports the Bill for taking away the Jurisdiction of the Court of Star-Chamber as being contrary to Law and tending to the bringing in of Arbitrary Government as also a Bill for regulating the proceedings of the Council-Board upon which they were ordered to be ingrossed The House fell this day upon the business of the petty Farmers of the Customs Sir Nicholas Crisp Sir John Nulls Sir John Harrison c. and upon the Debate it was Resolved c. That the Petty Farmers of the Customs taking above three pence in the pound of Merchants Strangers and others of the King's Subjects more then by Law allowed is Illegal Resolved month June 1641. c. That the said Petty Farmers for taking above the said three pence in the pound are Delinquents Resolved c. That the said Petty Farmers are for the said offence liable and ought to make restitution Notwithstanding which in favour of Sir John Harrison Resolved That Sir John Harrison a Member of the House in regard of his great service in advancing fourty thousand pounds shall not be prejudiced as to his sitting in the House Sir John Strangeways moved in the behalf of himself and the 59 that Voted against the Bill of Attainder of Thomas Earl of Strafford that there might be some order taken for their security for that they went in fear of their Lives daily affronts and great abuses being put upon them by licentious people who resorted about the Parliament House But these mighty asserters of the Priviledges of Parliament one of the greatest whereof is freedom of Speech and liberty to Vote according to a Man's Conscience thought not fit in this Case to assert their Priviledge but to leave these worthy Gentlemen at the mercy of the Rabble who were by no means to be disobliged there being further occasion to make use of their Tumultuary Insolence in order to their thorough Reformation This day Mr. Tayler presented his Petition Wednesday June 2. desiring to be restored upon his submission but it was rejected A Debate arising about ways for raising of Mony a Motion was made Motion to bring in Plate to be Coined That in regard Mony could not be procured so suddenly as the present necessity of Affairs required there might be some Expedient thought on to bring in the Plate of the Kingdom to the Mint and it was referred to a Committee to consider of it and what way it might be done The Bill for Regulating the Clerks of the Market being Reported Bill for the Clerk of the Market ingrossed Thursday June 3. Report of the Conference with the Lords about the Bishops Bill was Ordered to be Ingrossed Mr. Pierrepoint Reports the Conference with the Lords concerning the Bill for disabling Bishops to Vote in the House of Peers That their Lordships conceive that the Commons understand not unlawfulness to have any Votes there to mean to be contrary to any Law but of convenience or inconvenience because if they had thought it absolutely unlawful they would not have made Exception of the Vniversities and of such of the Nobility as should happen to be in Holy Orders And for the Bishops Right to Sit and Vote in Parliament their Lordships conceive that both by the Common Law Statutes and constant practice there is no question of it As for inconveniencies their Lordships did not yet Vnderstand any such that might induce them to deprive the Bishops and their Successors of the Right of voting in Parliament but if there be such which they yet know not they will be willing to hear them and take it into Consideration For their Votes in the Star-Chamber Council Table or any Office in Secular Affairs they have fully consented to the desires of the Commons Their Lordships have Excepted the Dean of Westminster as being a Corporation confirmed by Act of Parliament Sexto Eliz. As also that of Durham Ely and Hexam and the several Jurisdictions of those Bishops to keep Courts-Baron there by their Stewards c. And all other Courts Executed by Temporal Officers which their Lordships conceive not to be contrary to this Bill After which the Bill for disarming Recusants being reported Bill for Disarming Recusants ingrossed Bill against New Canons Read first time was ordered to be ingrossed Then a Bill for the making void of certain Canons and Constitutions Ecclesiastical lately made and for the punishment of such Prelates and others as were the framers and makers of them was read the first time The House then Entred upon the consideration of the Scottish Articles some of which were assented to Sir Thomas Widdrington reports the Case of Sir John Corbet Friday June 4th Report of Sir John Corbet's Case upon which these Votes passed Resolved c. That the Imposition of 30 l. per annum laid upon the Subjects of the County of Salop for the Muster Masters Fee by the Earl of Bridgwater Lord Lieutenant of that County is an Illegal Charge and against the Petition of Right and that it is high presumption for a Subject to impose any Tax upon the Subject and that the taking it is at Extortion against the Right of the Subject Resolved c. That the Attachment from the Council Board by which Sir John Corbet was committed was an Illegal Warrant Resolved c. That Sir John Corbet ought to have Reparation for his unjust vexation and imprisonment Resolved c. That the Earl of Bridgwater ought to make Sir John Corbet reparation Resolved c. That the House thinks sit that the Attorney General take the Information in the Star-Chamber against Sir John Corbet off the File and that he take some Course that the Bond which he entred into to attend the Suit at the Hearing be delivered unto him Resolved c. That the Lords
wonder and your Policy to be admired amongst the Nations After which his Majesty commanded the Clerk of the Parliament to pronounce the Royal Assent which he did in these words viz. Le Roy Remerciant ses bons Subjects accepte leur Benevolence ainsi le veult For the other two Bills his Majesty said Inregard he had not considered of them being Bills of great Consequence he would inform himself concerning the particulars and return an answer within few days After which the Commons with their Speaker returned to their House highly discontented that his Majesty had not passed the other two Bills for they presently after in some disorder adjourned themselves till Monday This day also Commissary Willmot Petitioned the House Commissary Wilmot's Petition rejected that he might have liberty upon Bail to go into the Country for the Recovery of his Health which was very much impaired by reason of his Imprisonment but the House being already in a great Ferment it was in an ill minute for him for whatever they might have done in a better humor his Petition was now utterly rejected The House of Commons met this Morning Monday July 5. but being highly discontented at the King 's delaying to pass the two Bills for abolishing the Court of Star-Chamber and the High-Commission Court they did not fall upon any business but within an hour the Gentleman-Usher of the Black-Rod came to the House to acquaint them that the King was come to the House of Lords and expected their attendance Upon their coming up his Majesty spake as followeth My Lords and Gentlemen I Come to do the Office which I did on Saturday last The King's Speech at Passing the Bills against the Star-Chamber and High-Commission Court July 5. 1641. to give determination to these Two Bills but before I do it I must tell you that I cannot but be very sensible of those reports of discontent that I hear some have taken for not giving my consent on Saturday Methinks it seems strange that any one should think I could pass two Bills of that Importance as these were without taking some fit time to consider of them for it is no less than to alter in a great measure those Fundamental Laws Ecclesiastical and Civil which many of my Predecessors have established c. If you consider what I have done this Parliament discontent will not sit in your hearts for I hope you remember that I have granted That the Judges hereafter shall hold their places quam diu benè se gesserint I have bounded the Forrest not according to My right but according to late Customes I have established the Property of the Subjects as witness the free-giving not taking away the Ship-mony I have established by Act in Parliament the Property of the Subject in Tonnage and Poundage which never was done in any My Predecessors time I have granted a Law for a Triennial Parliament and given way to an Act for the securing of moneys advanced for the disbanding of the Armies I have given free course of Justice against Delinquents I have put the Law in execution against Papists Nay I have given way to every thing that you have asked of me and therefore methinks you should not wonder if in some things I begin to refuse But I hope it shall not hinder your progress in your great Affairs and I will not stick upon trivial matters to give you content I hope you are sensible of these beneficial favours bestowed on you at this time To conclude You know by your consent there is a prefixed time set for my going into Scotland and there is an absolute necessity for it I do not know but that things may so fall out that it may be shortened therefore I hope you will hasten the dispatching of those great businesses that now are necessary to be done and leave trivial and superficial matters to another meeting For my part I shall omit nothing that may give you just contentment and study nothing more then your happiness and therefore I hope you shall see a very good Testimony of it by passing these two Bills Le Roy le veult This being done His Majesty said as followeth I have one word more to speak unto you and take now an occasion to present unto both Houses that thereby I hope all the World shall see that there is a good understanding between me and my people It is concerning my Nephew the Prince Elector Palatine who having desired Me and the King of Denmark to give way to a writing concerning the Dyet at Ratisbone with the Emperor I could not but send my Ambassador to Assist him though I am afraid I shall not have so good an answer as I expect which my Nephew fore-seeing hath desired me for the better countenancing of the same to make a Manifesto in my Name which is a thing of great Consequence And if I should do it alone without the advice of my Parliament it would rather be a scorn then otherwise Therefore I do propose it unto you that if you will advise me to it I do think it were very fit to be published in my name Mr. Rossetti the Popes Nuncio leaves England Treasurer after the House was returned acquaints them that Rossetti the Pope's Nuncio had left England WHereas William Shepherd now a Prisoner in the Fleet by the Sentence of this House Shepherd one of the Rioters at St. Saviours Southwark released for pressing in with others into the Church of St. Saviour's Southwark and violently breaking and pulling down of the Rails about the Communion Table which Sentence he the said William Shepherd acknowledging to be just and honourable It is Ordered That the said William Shepherd shall be released from his said Imprisonment for this Offence and set at Liberty In compliance with his Majesties Speech the House of Commons took the Prince Elector's condition into consideration the Manifesto was read and a Debate had upon it at which Sir Benjamin Rudyard made this Speech Mr. Speaker THis great Affair of the Palatinate concerneth this Kingdom in Nature Sir Benjamin Rudiard's Speech concerning the Palatinate in Honour in Reason of State in Religion We all know how near in Blood the Prince Elector is to his Majesty Many of us here know what solemn Protestations have been made in this place for the Recovery of the Palatinate by which we are bound in Honour to pursue it with our best Assistance God hath so framed the powers of Man and so ordered the course of things in this World as that in all Actions Right Reason and true Religion may well hold and go together If we consider Religion according to Reason of State we shall find that Christendom divides it self into two sides with the Pope against the Pope His Majesty is the greatest King of the Religion and therefore fittest to be the Head of that Party which will add a greater greatness to him then can be gotten any
more cause to do well and for doing well are more renowned for the most oppressive designs which we have suffered under the pretences of his Majesty have ever bin the good of his Subjects His is the sin that is to judge by the Laws and knows the Laws are to the contrary yet puts and confirms such thoughts in his Prince He that incites another to Arbitrary Government when his self-ends are thereby compassed hates him for taking that Power he perswaded him unto The Writs those Monsters of Necessity to provide Ships to prevent Imminent Danger that could not stay 40 dayes for the Calling of a Parliament were therefore to go out in September to have Ships ready in March This hath bin adjudged by your Lordships to be destructive to the Fundamental Laws of this Realm and to the Subjects right of Property and Liberty c. that I shall say but this concerning them That this Judge published them to be inseparable Flowers of the Crown And that we have lived to see for five years together imminent Danger and thus to be prevented This Judge did advise to such a Government as future Kings here might exercise the highest Tyranny and the Subjects want the benefit of restraints known to the most Slavish Eastern Nations where if their Prince do unjustly he hath hatred for it and the Dangers that follow that This Judge will have that hatred to go to our good Laws No such Bondage as when Laws of Freedom are mis-interpreted by Judges to make men Slaves What can be considered of in a Judge of Law to give his Opinion and Advice to his Prince how the Laws the mutual Covenants of Kings and Subjects are to be broken but that his intentions are to have his Prince do ill by making his evil Servants to study and to be pleaâ—â—d with their wicked designs because they see means to put them in execution by making them to perswade their Prince because in imminent Danger his Subjects Goods are at his Will that there is such danger when there is not and they only have some by-end of their own A Judge to deliver his Opinion That if the King should intend to give up his People to be destroyed by Forraign Forces for the Safety of the people in that imminent Danger once by the Law might take away the King there could be no greater Offence This Judge will have our Law to be what to him seems reason the reason limited to him to judge of is what the Common Law saith is so what a Statute hath so Enacted For him to judge this or that is Law else a mischief shall follow is at best for him but this because the Law in such a thing is imperfect therefore he will make a Law to supply it or because that the Law written in such particulars is against his reason therefore his reasons to be Laws then must follow as often as a Judge's Reason changes or Judges change our Laws change also Our Liberties are in our Laws where a Subject may read or hear read this is his this he may do and be safe and that thus the Judge ought to give Judgment he is free The Excessive growth of Courts of Reason Conscience came from great and cunning persons and though not the most sudden yet the most dangerous and sure ways to eat out our Laws our Liberties Unlimited power must be in some to make and repeal Laws to fit the dispositions of Times and Persons Nature placeth this in common consent onely and where all cannot conveniently meet instructeth them to give their consents to some they know or believe so well of as to be bound to what they agree on His Majesty your Lordships and the Commons are thus met in Parliament and so long as we are often reduced to this main Foundation our King and we shall prosper This Judge will not allow us our Knowledg or any Reason he will have our Minds our Souls Slaves A Grand-Jury-man gave his Fellows true Information they present an Innovation in the Church are threatned and reviled for it he that told this Truth is charged I shall use this Judge's own words to sin in that and that he made others forswear themselves This Judge sent him to the Common Goal where he is laid in Irons and all this because he and they durst meddle with Church-Matters He is forced to tear the Presentment in pieces in open Court Our Laws provide for the peace of our Consciences many Acts of Parliament are for it and the Trust by those Acts set to Juries this Judge well knew all this Your Lordships have heard what he did to the Jury at Hartford He would have us know no more Divinity then to obey what the Great of the Clergy directed no more Law than what he said was so Judges in former times but only such as were Examples of punishment as of injustice in cases of great and publick concernment forbare proceedings till the next Parliament This necessitated the Calling of Parliaments This Judge had as many such Causes before him as ever any had yet he never desired the Resolution of Parliament in any one for the ways he went the necessity was never to have a Parliament he would pull up that Root of our Safeties and Liberties which whilst we enjoy the Malice or Injustice of all other Courts and Persons can never ruine and when near to Ruin as most near of late this only sure Remedy will help us nothing can ruine a Parliament but it Self The Evils which we have suffered under they were committed by the Judges month June 1641. or by them ought to have been and might have been prevented This Judge assisted in causing the Miseries we suffered in the Star-Chamber and at the Councel-Table he denyed the known Rights which he ought to have granted us to stop our Grievances in the Ecclesiastical Courts he was the causer of our Sufferings in other Courts The best Lovers of their Laws and Liberties the most Honest suffer most by an unjust Judge they most oppose his Vices dishonest persons find such a Judge to fit their purposes the Judge finds them for his the bond of iniquity confederates them He that will do no wrong will suffer none which he can help the man that knows himself born free will do his utmost to live so and to leave Freedom to his Posterity were he in Slavery when by outward gesture thought to be most delighted were his mind then known there would be found vexation and his busie thoughts employed to redeem himself and his Posterity from Thraldom But to say Could this Judge intend to make himself and his own Posterity Slaves What he did was through errour of Judgment only No my Lords what his Ayms and Endeavours were is apparent To consider Man in the general we shall find in every Age he will be a Slave to some few that many may be Slaves to him he looks to himself only this he would do or
a Conference by the Earl of Bath to the Commons THese are to signifie to this House That whereas He sent an Answer this day to both Houses concerning the Third Head lest there should be any mistake upon the word Slander His Majesty declares he did not mean all of either House of Parliament or any Members thereof Upon the Reading of the Petition of the Arch-Bishop of Canterbury concerning his payment of Poll-mony It was Ordered Order of the Lords about the Arch-Bishops paying Poll-Money To be left to be paid according to the Act of Parliament The House for freer Debate was put into a Committee to consider of the Court of York and to give judgment herein and after much Debate the House was reassumed and it was Resolved upon the Question by the Major Part Resolves of the Lords concerning the Court at York That the Commission and Instructions whereby the President and Council of the North exercise a Jurisdiction is Illegal both in the Creation and Execution Resolved c. That this Commission and Instructions is unprofitable to His Majesty Resolved upon the Question Nemine Contradicente That this Commission and Instructions is inconvenient and grievous to His Majesties Subjects of those Parts Resolved upon the Question Nemine Contradicente That this House doth joyn with the House of Commons in beseeching His Majesty that the Present Commission and Instructions may be revoked and no such granted for the Future MEmorandum A Salvo for the Judges of the Court of York This House doth declare seeing the Commission and Instructions of the Court of York is Illegal in the Creation and Execution that the former Judges in the Court of York who have given Judgement and proceeded as they thought in their Consciences upon True and Legal Grounds shall not be liable to be Questioned but in case of Injustice and that none in that Case shall be barred of their Appeal And if it appear that there is a Necessity for the Ease of that Country to have a Court this House will advise with the House of Commons how one may be Established by Law for the Ease of those Parts And the Earl of Essex Earl of Bristol Viscount Say and Seal Bishop of Lincoln Lord Wharton Lord Kimbolton were appointed to prepare Heads for a Conference with the Commons concerning the aforesaid Particulars that so the Persons that were Judges and the Acts of that Court may have a Saving for them If humane Bodies and Minds are subject to the secret Influences of the Heavenly Bodies certainly England and the rest of the Brittish Dominions were at this time under the Aspects of some Violent and Malignant Configurations and there seemed to be an Universal Inclination in the People every where to Tumults Mutinies Violence and Injustice the Lords House was full of Complaints of the Disorders of this Nature throwing up Inclosures and disturbing the Possessions of others and that not singly but by Multitudes and with such Arms as Rusticks are wont to make Use of upon such Occasions of their Madness And of this the Lords were so sensible that they made this following Order WHereas daily Complaints are made unto this House of violent breaking into Possessions Order of the Lords concerning Violent and Tumultuous breaking into Possessions July 13. 1641. and Inclosures in Riotous and Tumultuous manner in several parts of this Kingdom without any due proceedings by Course of Law to warrant the same which hath been observed to have been more frequently done since this Parliament began then formerly it is thought fit and so Ordered by the Lords in Parliament That no Inclosure or Possession shall be Violently and in a Tumultuous manner disturbed or taken away from any man which was in Possession the first Day of this Parliament or before but by due Course and Form of Law and that such Possessions of all men shall continue and remain unto them as they were on the first Day of this Meeting of Parliament unless it have been or shall be by some Legal way of proceeding in some of His Majesties Courts of Law or Equity or by some Act or Order of the Parliament determined or ordered to the Contrary And in all such Cases where any such unlawful disturbance of the quiet Possession of any man hath happened or shall happen the High Sheriff of the County shall have Power by virtue of this Order together with two of the Justices of the Peace of the said County next or near to the place and such other or others as he or they shall think fit to take with him or them to repair unto the place where such Tumults happen to be and appease and quiet the Possession of the said Lands and Inclosures so disturbed as aforesaid and shall see to and cause that the Possession be continued unto the present Owners as aforesaid until by a Legal Course in some Court of Law or Equity or by order of Parliament it be determined or Ordered to the contrary The Lord Bishop of Lincoln Reported Report about the Officers of the Star-Chamber That the Lords Committees appointed to Consider of the Petition of the Officers of the Star-Chamber have fully heard their Cause and they are of Opinion and do not conceive of any fitter way of Relief for these Poor Officers the King's Servants then to remit them to the King's Mercy that His Majesty would be Graciously pleased to allow a Proportionable Relief for these Poor men out of such Fines as may accrue unto His Majesty in the High Court of Parliament to be apportioned by the Lords of the Committees or otherwise as their Lordships shall be pleased to approve thereof and Order it Upon Report this Day made unto the House by the Right Honourable the Lord Seymour that the difference between the Parishioners of St. Report about the Rioters at St. Thomas the Apostle's in pulling down the Rails Thomas the Apostle complained of to the Lords in Parliament was composed by his Lordship to whom the business was referred It is Ordered by the Lords Spiritual and Temporal in the High Court of Parliament Assembled that the said difference together with the Cause depending before their Lordships shall by virtue of this Order be fully ended and determined and Lastly that John Blackwell shall for himself others Petitioned against forthwith pay unto the Overseers of the Poor of that Parish upon sight hereof to the use of the said Poor the full Summ of ten Pounds of Lawful Money of England and hereof they are not to fail as they will answer to the contrary There being a Report spread abroad that His Majesty intended to send the Lord Digby abroad under some honourable Character Tuesday July 13. and as was said Ambassadour into France his Enemies in the House of Commons being extreamly nettled at it were resolved if possible to set a brand of Infamy upon his Lordship and therefore not content to have disgracefully Expelled him
the honour and safety of the Kingdom This day the Bill Entituled An Act for the securing the True Religion The Bill for securing the true Religion c. rejected the Safety and Honour of His Majesties Person the just Rights of the Subject and the better discovery and punishment of Popish Recusants was read a Second time and after a long Debate of the House it was Resolved by the major part That this Bill be Rejected The Reader is to understand that under the glorious Title with which this Bill was guilded the main matter of it was the taking away the Peerage of the Bishops in Parliament which since they could not effect by the former Bill they thought to slide in under these specious pretences of preserving Religion c. but the House of Lords had too many Wise and Noble Just and Honourable Persons in it yet for the Faction to effect their Design After this the Lord Mayor of London and the Aldermen c. were called in to give an Answer to the Proposition for lending 40000 l. and the Lord Mayor signified That he hath already prepared 34500 l. part of the 40000 l. and the full Sum will be made up this night and further he acquainted the House that he hath received 18000 l. of the Poll-mony For which service and readiness in this business the Speaker gave the Lord Mayor and Aldermen and the rest thanks from this House The Earl of Bath reported the effect of the Conference about disbanding that the Commons delivered these four Resolutions Earl of Bath reports the Conference about disbanding 1. That the Ninth day of August next shall be the day appointed for the marching away of the Scots Army 2. That the mony due for relief of the Northern Counties is ready and that if they shall desire any reasonable assistance for the conveying of it they will be ready to assist them in the best manner they can 3. The House of Commons desires that the English Lords Commissioners may move the Scots Commissioners to put off the time for the payment of the 80000 l. part of the Brotherly Assistance till the first day of September next and that notwithstanding they will pay it sooner if they can 4. That after the Scots have declared their Assent of disbanding that then our Army shall be disbanded with all possible speed and the Horse to be first disbanded Upon which it was Ordered That this House doth agree with the House of Commons in all the aforesaid Resolutions and do further Order That the Lords Commissioners do resume the Treaty with the Scots Commissioners and prepare it for a Conclusion After the Conference with the Lords about the Disbanding the Commons fell into Debate concerning the Kings Journey into Scotland and it was Thursday July 29. Votes to desire a Vice-Roy during the King's absence in Scotland Resolved c. That the Lords be desired by this House in a Conference to joyn with this House in a Petition to His Majesty to appoint a Custos Regni or Locum tenens during his Absence out of this Kingdom and amongst other things in special to give him Power to give the Royal Assent in Parliament and to do such things as the King might do if he were present Resolved c. That His Majesty be likewise Petitioned That an Act of Parliament may pass to this Effect That such Commission shall not be repealed until His Majesties return from Scotland to the City of London or Westminster or be present in full Parliament Which two Resolves were communicated to the Lords at a Conference Upon Information this Day unto this House That Sir George Radcliff being now a Prisoner in the Gate-House Sir George Ratcliff has liberty to take the Air. was indisposed in his Health by reason of the closeness of the Place where he remaineth and that he was an humble Suitor to their Lordships that he might receive the Favor to go into the Fields with such Keepers as their Lordships should think fit It was Ordered That the said Sir George Radcliff shall have the Liberty by Virtue of this Order to go into Chelsey Fields or any other Fields near thereabout to take the Air for his Health at such times as he shall desire it The Earl of Bristol Reports the Scots Answer about the disbanding their Army which was read in haec verba Scots Commissioners Answer about disbanding the Army Whereas the Removal of the Scottish Army is desired against the 9th of August upon the Receipt of a Paper from your Lordships of the 22 of July we did immediately represent the same to the Lord General and Committees from whom we expect very satisfactory Answers by the Earl of Dumserling and Lord Lowdon and for hastning the disbanding we did in our Answer of the 21st of July desire that the Arrears might be then delivered and sent to New-Castle that we might finish our Accounts and pay our Debts in those Countries and be better prepared for our Disbanding but we conceive that the not timous delivery of the Arrears shall prove the greatest Impediment in our removal therefore We do remit to the Parliaments consideration to take some speedy course for sending of the whole Arrears As for the delay of the Payment of the 80000 l. we have also represented the same unto the General and Committees according to the days mentioned in our Paper of the 22 of July whereof we do expect an Answer by the Earl of Dumserling and the Lord Lowdon The Bill against Ship-Money being read a third Time this Day Act against Ship-Money passed the Lords Lord Majors Cause heard and referred and put to the Question it was resolved to pass for a Law After which the Lord Major and Aldermen and Commons of London were called in and asked Whether they had composed the Differences between themselves concerning the Election of the Sheriff But it being Answered That they had a meeting about it yet could not agree This House took the Cause into Consideration having heard the Objections on both Sides and at last appointed these Lords Committees viz. Lord Privy Seal Lord Chamberlain Earl of Bath Earl of Bedford Earl of Bristol to try if they could accommodate the difference between them and settle Peace amongst them if not to report the same to this House And their Lordships or any five or more to meet at 5 of the Clock this Afternoon in the Painted Chamber and the Lord Major and Aldermen and some of the Commons to be present Mr. Bagshaw Reports the Articles against the Bishop of Bath and Wells which were all read but are not entred in the Journal Friday July 30. But that the Reader may see they were of the same Leven with those against the Bishop of Ely and that indeed the Crime was being a Bishop I will subjoyn some Articles which an Informer one Mr. James a Minister in his Diocess exhibited against him whereby it will appear
He brings several undeniable Presidents and Instances In the 21 of R. 2. a Repeal of a former Sentence against the Spencers being Petitioned for in Parliament Rot. 55.56.21 R. 2. these Errors were assigned Because the Prelats Who are Peers of the Realm did not Assent to the Judgment and because it was made only by the Earls and Barons Peers of the Realm c. And because it was made against the Great Charter of England in which it is contained that no man shall be exiled or destroyed but by the Lawful Judgment of his Peers or by the Law of the Land By which it appears that the Judgment of that Parliament was That it was a Breach of the Magna Charta for the Temporal Lords to condemn a Peer without the Assent of the Bishops who are expresly declared to be Peers of the Realm Rot. 55. To be Peers in Parliament Rot. 56. and to be Peers of the Realm in Parliament Rot. 61. And all this too in the Case of Treason which is as a full Declaration of their Peerage as it is possible to make To the Second Position That they have a Right to Sit and Vote in Parliament in all Causes whatsoever even in Causa Sanguinis in Capital Cases which he proves by Reason and Presidents That by the Magna Charta a Law of the Highest value Confirmed by Thirty Acts of Parliament and with the most Solemn and dreadful Imprecations upon whosever of them or their Posterity should go about to violate it in any particular the Bishops have an equal Right with the Temporal Lords That they Sit in Parliament by the virtue of the same Writs of Summons that the other Barons do they are Summoned to Advise and Debate about the great and difficult Affairs of the Kingdom cum Praelatis Magnatibus Proceribus dicti Regni nostri Angliae colloquium habere tractatum Of all things indefinitely that shall be brought before them in that High and Honourable Court the Supream Judicature of the Nation and that there cannot be any Instance produced of a Writ of Summons with a Limitation or Restriction upon the Bishops excluding them from any matter of Debate Consultation Vote or Judicature belonging to the House of Lords The Temporal Barons also are Summoned indefinitely to Debate Handle and Consult with the Prelats in all things there to be done which would be impossible if in some of the most Important matters in point of Judicature the Lords the Bishops must be Totally Excluded That though the Constitution of Clarenden be urged as designed for a Limitation of the Bishops exercising Jurisdiction in the Case of Life or Mutilation of Members yet it is evident both from the Words and the occasion of that Law that they ought to be present for that this Constitution of Clarendon was made perfectly to oblige the Bishops to serve the King in the Capacity of their Temporal Baronies sicut caeteri Barones the Tenure being the same Et sicut Barones caeteri debent interesse Judiciis Curiae Regis cum Baronibus usque perveniatur in Judicio ad diminutionem Membrorum vel ad mortem the plain Sense of which words is that they ought to be present not only till such Causes of Life or Limb came before the rest of the Lords but at all preliminary Debates usque perveniatur not ad Judicium but in Judicio which supposes a Trial preceding till the Sentence came to be pronounced Now the occasion of this was the Papacy was then erecting their fifth Monarchy and indeavouring to set up an Independent Jurisdiction of the Church in all Kingdoms which the Kings very well perceiving were resolved to oppose and therefore to oblige them to this Service by vertue of the Tenures of their Temporal Baronies And this giving them a Concession to withdraw when the Sentence â—â—as pronounced was a particular favour of the King Thomas Becket a great Saint and Martyr in the Roman Calendar stoutly opposed this as an inchroachment upon the Liberties of the Church and indeed the Bishops who had all along the Saxon Government sate in the great Councils by virtue of their Spiritual Capacity there being then no Temporal Baronies they thought the Conquerors imposing this Tenure upon their Estates a very hard Servitude and Badge of Slavery to the Secular Power but that notwithstanding their Reluctancy this Salvo seemed a little to qualify the matter so that they did Vote in such Cases till the Sentence came to be pronounced appears from Petrus Blesensis who taxes them of Collusion for submitting to this Constitution of Clarendon Principes sacerdotum saith he Seniores Populi Pet. Blesen de Inst Epic. p. 454. licet non dictent Judicia Sanguinis eadem tamen tractant disputando disceptando de illis seque ideo imnunes à Culpa reputant quod Mortis aut truncation is membrorum judicium decernentes á pronuntiatione duntaxat Executione Penalis Sententiae se abstinent Although saith he they do not give Judgment in Cases of Blood yet do they handle treat and debate about them and think themselves innocent because in the determinations of Cases of Life and Limb they absent themselves at the pronouncing or execution of the Penal Sentence This Statute of Clarendon was made in February and in the October following the King Summons a Parliament to Northampton Fitz. Steph. vit Tho. Becket de Concil apud Clarendon Mss in Bibliotheca Cottoniana in which Becket in which Becket was for opposing this Constitution wasting the Kings Treasure and other Crimes accused of Treason in the Debate whereof the Bishops Sate with the other Barons and because the matter did not come to a Sentence of Death after great Debate between the other Lords the Bishops about pronouncing the Sentence the Bishop of Winchester did it But Becket making an Appeal to the Pope the Bishops being afraid of him they endeavoured to persuade the King to desist his further prosecution till that matter was determined But the King being resolute pressed them to their Duty notwithstanding Beckets Prohibition to them to the contrary from the obligation of the Statute of Clarendon to which they had Sworn Asserens quod non teneat haec ejus simplex Prohibitio contra hoc quod Clarendoniae factum initum fuerat affirming that this single Prohibition of Beckets could not bind them against what was done and agreed to at Clarendon From all which it is plain that in fact the Bishops did Debate and Vote in a Capital Case and were obliged by this Statute so to do and it was a Favour indulged them to be absent at the giving of the final Judgment or Sentence of Death or loss of Limbs In the 5. H. 4. The Earl of Northumberland was in Parliament Impeached of Treason Rot. Par. n. 17.5 H. 4. and after Examination of the whole matter he clearly acquitted himself of the charge upon which it is said in the Record Et
Quod erat probandum Object 1. It remains now to answer some Objections which are made against these Positions And First a Canon which they urge was made at Westminster by Richard Arch-Bishop of Canterbury that Persons in Holy-Orders should not agitare Judicium sanguinis To which it is Answered That this is part of one of the Canons of Toledo which never were any part of the Common or Statute Law of this Land even in times of Popery much less obliging now since the Reformation but however the very Canon it self is perverted for the Prohibition explains it self unde prohibemus ne aut per se Membrorum truncationes faciant aut inferendas Judicent they were prohibited personally to be the Executioners in dismembring or to pronounce the Judgment or Sentence in Cases of that Nature Two Offices of which neither the Lords the Bishops nor the most inferior of the Clergy will at this time contend for or be ambitious of Object 2. It is Objected Secondly that in the 11. of Richard the Second the Bishops in Cases of Blood entred a Solemn Protestation in Parliament which was Assented to by the King the Lords Temporal and Commons with these words Non licet nobis aut alicui eorum juxta Sacrorum Canonum instituta quomodolibet interesse That according to the Canon Law it was not lawful for them or any of them in any manner to be present To this it is answered That the Protestation saith as Peers they had Right as per Baroniam de Domino Rege tenentes in Parliamentis Regis quibuscunque personaliter interesse cum caeteris Paribus aliis de Regni negotiis consulere Tractare Ordinare Statuere definire ac caetera facere quae Parliamenti tempore ibidem imminent facienda holding of our Lord the King by Baronage to be personally present in all Parliaments of the King together with the rest of the Barons and others to Consult Treat Order Appoint and Determin of the Affairs of the Kingdom and to do all other things which in the time of Parliament were there to be done And it is plain the King Temporal Barons and Commons allowed they had this Right But it being a troublesome time the Kings Ministers being to be Impeached in that Parliament which was called Parliamentum sine Misericordia because the King gave up all his Court Ministers to be Sacrificed to the Animosities of the Potent Faction of the Lords binding himself not to pardon any without their consent the Bishops were willing to get out of harms way and therefore pleaded the Canons in excuse And possibly both sides might have their several ends in consenting to this protestation the King that so he might call in Question the Acts done without them as it happened 21. R. 2. when all done in this Parliament was Repealed and made void for this Reason the Lords might consent to the Bishops withdrawing that so their Affairs might proceed without opposition against the Kings Ministers But however as before these Canons being not the Law of the Land neither then nor now could be no real Barr to their Right Nor did they upon other occasions think them so as appears by several Instances beforementioned upon the second Position It is Objected in the third place Object 3 That there was a Parliament held 25 E. 1. at St. Edmonds-Bury Excluso clero And notwithstanding many good Laws were there made and that upon this Case in Kelway's Reports it is said to be the Opinion of the Judges that the King may hold his Parliament without the Bishops To this it is answered First That it is but one single Instance and an Extraordinary Case and that it is not only ill but dangerous arguing and concluding universally from one single president for if a Parliament may be good without one Estate why not without another and according to their Position who make the King Lords and Commons the three Estates any one of the three may be Excluded upon the same reason Secondly The Bishops in this Parliament were not Excluded by the King and the other two Estates but by their own voluntary action And the occasion of it was a Bull of Pope Boniface the 8. prohibiting the Clergy to give any more Subsidies which whatever Influence it had then can have none upon the Bishops since the Reformation And whereas it is said many good Laws were made in that Parliament never since questioned it is evident by the Rolls that all that was done in that Parliament was the granting of a 12th by the Laity to the King As for Kelway's reason in his Reports that they might be excluded because they have no places in Parliament by reason of their Spiritualty but only by reason of their Temporal Baronies it will hold as well against the other Barons And that this is but one President of a Parliament without Bishops agaâ—nst a Multiutde of others wherein they were present Et consuetudo Parlamenti est Lex Parlamenti and that Law is the Law of the Land It is Objected Object 4 That if they were a distinct Estate they would have a distinct-Negative I think the best answer to this is the former that Consuetudo Parlamenti est lex Parlamenti and though former Parliaments have ever owned them a distinct Estate yet as the Author observes they sit there now not in their Spiritual Capacity as formerly in the Saxon times before Baronies but in their Temporal Capacities as Barons by Tenures and they have ever Voted in Common with the other Lords according to Custom of Parliament which is the Law of Parliament In the last place it is Objected Object 5 if they were Peers of the Realm they would according to Magna Charta be tried by their Peers but they are in Capital Cases tried by Juries of the Commons To this it is answered First That they have challenged and had this Priviledg in Parliament So John Stratford Arch-Bishop of Canterbury Antiq. Brit. p. 223. Rot. Par. 15. E. 3. n. 7. tanquam major par Regni post Regem vocem primam in Parliamento habere debens put himself upon Trial by his Peers and after great debate it was at length resolved that the Peers should be tried only by Peers in Parliament and he had appointed to examin the Articles against him 4 Bishops viz. London Hereford Bath and Exceter 4 Earls Arundel Salisbury Huntington and Suffolk 4 Barons Percy Wake Basset and Nevil After which he was admitted to answer for himself in Parliament devant les Piers before his Peers 21. R. 2. Tho. 21. R. 2. Arundel Arch-Bishop of Canterbury was Impeached of High-Treason before the King and Lords in Parliament The Kings answer was that forasmuch as this Impeachment did concern so High a Person Pier de Son Roialm a Peer of the Realm he would be advised But soon after he was condemned for Treason by the House the Proxy of the Bishops Sir Thomas Percy giving his
Majesty's said Letters or the said Act of State and not otherwise The Commons not being satisfied with these Sober and Calm Resolutions of the Judges fell to Voting their own Sense and to make Declarations of the Law upon their former Queries as followeth Questions propounded in Parliament And Declarations of the Law thereupon in Parliament Quest 1. The Declaration of the Commons in Ireland upon the Queries propounded to the Judges WHether the Subjects of this Kingdom be a Free People and to be Governed only by the Common Laws of England and Statutes of Force in this Kingdom Declarat The Subjects of this his Majesties Kingdom of Ireland are a free People and to be Governed only according the Common Law of England and Statutes made and established by Parliament in this Kingdom of Ireland and according to the Lawful Customs used in the same 2. Quest Whether the Judges of this Land do take the Oath of Judges And if so Whether under pretext of any Act of State Proclamation Writ Letter or Direction under the Seal or Privy Seal Signet or Letter or other Commandment from the Lord Lieutenant Lord Deputy Justice Justices or other Chief Governor or Governors of this Kingdom they may hinder stay or delay the Suit of any Subject or his Judgment or Execution thereupon If so in what Cases And whether if they do hinder stay or delay such Suit or Judgment or Execution thereupon what Punishment do they incur for their deviation and transgression therein Declarat That Judges in Ireland ought to take the Oath of the Justices or Judges declared and established in several Parliaments of Force in this Kingdom and the said Judges or any of them by Color or under Pretext of any Act of State or Proclamation or under Color or Protext of any Writ Letter or Direction under the Great Seal Privy Seal or Privy Signet from the King 's Most Excellent Majesty or by Color or Pretext of any Letter or Commandment from the Chief Governor or Governors of this Kingdom ought not to hinder or delay the Suit of any Subject or his Judgment or Execution thereupon and if any Letters Writs or Commands come from his Majesty or from any other or for any other Cause to the Justices or to the other deputed to do the Law and right according to the Usage of the Realm in disturbance of the Law or of the Execution of the same or of Right to the Party the Justices and others aforesaid ought to proceed and hold their Courts and Processes where the Pleas and Matters be depending before them as if no such Letters Writs or Commandments were come to them And in case any Judge or Judges Justice or Justices be found in default therein he or they so found in default ought to incur and undergo due Punishment according to the Law and former Declarations and Provisions in Parliament in that Case made and of Force in this Kingdom or as shall be Ordered Adjudged or Declared in Parliament And the Barons of the Exchequer Justices of the Assize and Goal-delivery if they be found in default as aforesaid It is hereby declared That they ought to undergo the Punishment aforesaid 3. Quest Whether the Kings Majesties Privy Council either with the Chief Governor or Governors of this Kingdom or without him or them be a Place of Judicature by the Commons Laws and wherein Causes between Party and Party for Debts Trespasses Accompts Possessions or Title of Lands or any of them or which of them may be heard and determined and of what Civil Causes they have Jurisdiction and by what Law And of what Force is their Order or Decree in such Cases or any of them Declarat The Council Table of this Realm either with the Chief Governor or Governors or without the Chief Governor or Governors is no Judicatory wherein any Action Real Personal Popular or Mixt or any Suit in the Nature of the said Actions or any of them can or ought to be Commenced Heard or Determined and all Proceedings at the Council Table in any Suit in the nature of any of the said Actions are void especially Causes particularly provided for by express Acts of Parliament of Force in this Kingdom only excepted 4. Quest The Like of the Chief Governor alone Declarat The Proceedings before the Chief Governor or Governors alone in any Action Real Personal Popular or Mixt or in any Suit in the Nature of any of the said Actions are Coram non Judice and void 5. Quest Whether Grants of Monopolies be warranted by the Law and of what and in what Cases and how and where and by whom are the pretended Transgressors against such Grants punishable and whether by Fine Mutilation of Members Imprisonment Loss and Forfeiture of Goods or otherwise and which of them Declarat All Grants of Monopolies are contrary to the Laws of this Realm and therefore void and no Subject of the said Realm ought to be Fined Imprisoned or otherwise Punished for exercising or using the Lawful Liberty of a Subject contrary to such Grants 6. Quest In what Cases the Lord Lieutenant Lord Deputy or other Chief Governor or Governors of this Kingdom and Council may punish by Fine Imprisonment Mutilation of Members Pillory or otherwise And whether they may Sentence any to such the same or the like punishment for infringing the Commands of or concerning any Proclamation of and concerning Monopolies and what punishment do they incur that Vote for the same Declarat The Lord Lieutenant Lord Deputy or other Chief Governor or Governors and Council of this Realm or any of them ought not to imprison any of his Majesties Subjects but only in Cases where the Common Laws or Statutes of the Realm do inable and warrant them so to do and they ought not to Fine or to Consure any Subject in mutilation of Member standing on the Pillory or other shameful Punishment in any Case at the Council Table and no Subject ought to be Imprisoned Fined or otherwise Punished for Infringing any Commands or Proclamation for the support or Countenance of Monopolies and if in any Case any Person or Persons shall be committed by the Command or Warrant of the Chief Governor or Governors and Privy Council of this Realm or any of them That in every such Case every Person or Persons so Committed restrained of his or their Liberty or suffering Imprisonment upon Demand or Motion made by his or their Counsel or other imployed by him or them for that purpose unto the Judges of the Court of Kings-Bench or Common-Pleas in open Court shall without delay upon any Pretence whatsoever for the ordinary Fees usually paid for the same have forthwith granted unto him or them a Writ or Writs of Habeas Corpus to be directed generally unto all and every Sheriff Goaler Minister Officer or other Person in whose Custody the Party or Parties so Committed or Restrained shall be shall at the Return of the said Writ or Writs and
Army in the North he desired before he was Examined of his supposed Crime that he might have the Judgment of the House of Lords and the Resolution of the House of Commons Whether the Act of Pacification and Oblivion do not interpose and exempt him from being Questioned for the supposed Crime whether it be Civil or Criminal This he doth not plead as a Pardon which would imply a Crime which he is not guilty of but as his own Sense upon that Act. Hereupon the Act of Oblivion was read An Explanation of the Extent of the Act of Pacification and afterwards the Lords Commissioners that were present did averr That in their Treaty with the Scots Commissioners they never did intend the said Act should Extend further than to things past between the Two Kingdoms of England and Scotland in matters of Hostility and things thereunto belonging and not to things to come For further Debate hereof the House was adjourned into a Committee during pleasure and the House being Resumed it was Resolved upon the Question Nemine Contradicente That it belongs to the House of Peers by the Ancient Laws and Constitutions of this Kingdom to interpret Acts of Parliament The House of Lords the Interpreters of Acts of Parliament in time of Parliament in time of Parliament in any Cause that shall be brought before them And it is likewise Ordered That Mr. O Neal shall be Examined by the Deputed Lords appointed for that purpose notwithstanding his Allegation Upon Information given this day to the House Riot in the Forrest of Windsor That certain persons of Egham were apprehended by Order of this House for killing the King's Deer and committing Riots in the Forrest of Windsor and Egham Walk and being in the custody of the Messenger were Reskued out of his hands by violence by some of their Companions Hereupon it is Ordered That a Warrant be sent to the Sheriff of Surrey to assist the Messenger of this House for the apprehending the former Delinquents and of such persons that rescued them out of the Messengers hands and that they be brought before this House that they may receive punishment according to their deserts These passages may seem too trifling to be inserted into these Collections but I thought it absolutely necessary that by these Insolencies Posterity might see how cheap and contemptible the Actions of this Parliament had made the King in the esteem of the Common People and how unfit it is for Loyal Subjects to ask and for Princes sometimes to part with things which seem little or indifferent for such it may be might be the Regulation of the Forrests which yet it is evident was the Occasion of this Contemptuous Carriage of People of the lowest Rank towards him who ought to have been esteemed their Dread Sovereign by the highest But it was no wonder to see them follow the Example of their Superiors who committed daily Riots upon the King's Prerogative and Reputation But to proceed Lord Keeper Reports Conference about the Letters from Ireland The Lord Keeper reported the Conference with the Commons That he had acquainted them that their Lordships had agreed to six of the Instructions for the Committees in Scotland but the other being of great Consideration by reason of the pressing Affairs of Ireland they were forced to lay aside till a more convenient time 1 Then his Lordship reported That the House of Commons desires the Letter read this Day sent from the Lords of the Council in Ireland may be communicated to the City of London to let them see the truth of the Affairs of Ireland that so they may be the better stirred up and induced to lend Mony for the present supply of the business of Ireland and to this purpose the House of Commons will imploy some Members of their own Which Proposition this House agreed to 2 That in regard of the present urgent Occasions of Ireland the House of Commons thinks it fit the Six Thousand Men which both Houses resolved should be sent into Ireland out of England shall be increased to the Number of Ten Thousand Men and Two Thousand Horse Which the Lords also agreed to 3 That the House of Commons had voted to desire the Assistance of our Brethren of Scotland against Ireland for 10000 Men not presently to be sent but at such times and in such Manner as shall be agreed upon by Articles and Conditions of both Parliaments according to future Occasions Whereupon it was Resolved upon the Question c. That this House shall desire the Aid of our Brethren of Scotland for 1000 Scots for the present to be sent over into Ireland with an Intimation of a desire of 9000 more to make up 10000 Men if Occasion be according to such Articles as shall be agreed upon with the Parliament of England The same things were Voted in the Commons House only concerning the Scots some little difference viz. Resolved c. That this House doth incline to accept of the Offer of the Scots for sending of Ten Thousand Men into Ireland under such Conditions and upon such Cautions as shall be Honorable and Safe for this Kingdom Resolved c. That unless the Scots shall condescend to be commanded by the Government of English settled in Ireland that there is no intention that any should go at all The Dean of Ely Dr. Fuller Dean of Ely Bailed Dr. Fuller was upon his Petition this day Ordered to be Bailed and Colonel Fitz Williams who for Transporting several Men into France was in Custody was discharged of the Serjeant and Ordered to attend the House It will possibly by this time be expected that we should take a Trip over the Sea to see the Posture and Condition of that deplorable Nation of Ireland and the Progress of the Rebellion of which every day produced some of Job's amazed Messengers bringing ill Tidings one upon the neck of another And indeed not only every day but almost every hour produced fresh intelligence of the greatness of the Conspiracy and the inhumane Cruelty of the Rebels who Robbed Stripped and Barbarously Murdered the Protestants wherever they got them into their Power The Lord Blaney himself brought the account of the surprisal of his House Wife and Children by the Rebels in the County of Monaghan An advertisement came from Sir Arthur Tyringham of the taking of the Newry and the poor English who escaped the fury of the Rebels brought continual fresh Relations of the miserable Condition of the Province of Vlster where the Rebellion first took its rise It may well be imagined that the consternation at Dublin was extraordinary occasioned both by the true Accounts which daily arrived and the false Rumors which upon such occasions a general Fear and Amazement is wont to produce the City was weak and defenceless The sad Condition of Ireland at the time of the Rebellion and the Popish Party within it great and formidable and the Rebellion now
the Leather must needs exceed both and Salt could be no less then that besides the inferior Monopolies which if they could be exactly computed would make up a great Sum. That which is more beneficial then all this is that the root of these evils is taken away which was the Arbitrary Power pretended to be in his Majesty of Taxing the Subject or charging their Estates without consent in Parliament which is now declared to be against Law by the judgment of both Houses and likewise by an Act of Parliament Another step of great advantage is this the living Grievances the evil Counsellors and Actors of these Mischiefs have been so quelled by the Justice done upon the Earl of Strafford the flight of the Lord Finch and Secretary Windibank The Accusation and Imprisonment of the Archbishop of Canterbury of Judge Bartlet and the Impeachment of divers other Bishops and Judges that it is like not only to be an ease to the present times but a preservation to the future The discontinuance of Parliaments is prevented by the Bill for a Triennial Parliament and the abrupt dissolution of this Parliament by another Bill by which it is provided it shall not be dissolved or adjourned without the consent of both Houses Which two Laws well considered may be thought more advantageous then all the former because they secure a full Operation of the present Remedy and afford a perpetual Spring of Remedies for the future The Star-Chamber the High Commission the Courts of the President and Council in the North where so many Forges of misery oppression and violence and are all taken away whereby men are more secured in their Persons Liberties and Estates then they could be by any Law or Example for the regulation of those Courts or terrour of the Judges the immoderate Power of the Council-Table and the excessive abuse of that Power is so ordered and restrained that we may well hope that no such things as were frequently done by them to the prejudice of the publick Liberty will appear in future times but only in stories to give us and our Posterity more occasion to praise God for his Majesties goodness and the faithful endeavours of this Parliament The Canons and the power of Canon making are blasted by the Vote of both Houses The exorbitant power of Bishops and their Courts are much abated by some Provisions in the Bill against the High Commission Court The Authors of the many Innovations in Doctrine and Ceremonies the Ministers that have been scandalous in their lives have been so terrified in just Complaints and Accusations that we may well hope they will be more modest for the time to come either inwardly convicted by the sight of their own folly or outwardly restrained by the fear of punishment The Forrests are by a good Law reduced to their right bounds the encroachments and oppressions of the Stannery Courts the extorsions of the Clerk of the Market and the compulsion of the Subject to receive the Order of Knighthood against his will paying of Fines for not receiving it and the vexatious proceedings thereupon for Levying of those Fines are by other beneficial Laws reformed and prevented Many excellent Laws and Provisions are in preparation for removing the inordinate power vexation and usurpation of Bishops for reforming the Pride and Idleness of many of the Clergy for easing the People of unnecessary Ceremonies in Religion for censuring and removing unworthy and unprofitable Ministers and for maintaining Godly and diligent Preachers through the Kingdom Other things of main importance for the good of this Kingdom are in proposition though little could hitherto be done in regard of the many other more pressing businesses which yet before the end of this Session we hope may receive some progress and perfection The Establishing and ordering the Kings Revenue that so the abuse of Officers and superfluity of expences may be cut off and the necessary disbursments for his Majesties Honour the Defence and Government of the Kingdom may be more certainly provided for The regulating of Courts of Justice and abridging both the delays and charges of Law Suits the setling of some good courses for preventing the exportation of Gold and Silver and the inequality of exchanges betwixt us and other Nations for the advancing of Native Commodities increase of our Manufactures and well ballancing of Trade whereby the Stock of the Kingdom may be increased or at least kept from impairing as through neglect hereof it hath done for many years last past For improving the Herring fishing upon our own Coasts which will be of mighty use in the imployment of the Poor and a plentiful Nursery of Marriners for enabling the Kingdom in any great Action The oppositions obstructions and other Difficulties wherewith we have been encountred and which still lye in our way with some strength and much obstinacy are these the malignant Party whom we have formerly described to be the Actors and Promoters of all our Misery they have taken heart again they have been able to prefer some of their own Factors and Agents to degrees of Honour to places of Trust and Employment even during the Parliament They have endeavoured to work in his Majesty ill Impressions and Opinions of our Proceedings as if we had altogether done our own work and not his and had obtained from him many things very prejudicial to the Crown both in respect of Prerogative and Profit To wipe out this slander we think good only to say thus much That all that we have done is for his Majesty his Greatness Honour and Support when we yielded to give twenty five thousand pounds a Month for the relief of the Northern Countries this was given to the King for he was bound to protect his Subjects they were his Majesties evil Counsellors and their ill instruments that were Actors in those Grievances which brought in the Scots and if his Majesty please to force those who were the Authors of this War to make satisfaction as he might justly and easily do it seems very reasonable that the people might well be excused from taking upon them this burthen being altogether innocent and free from being any causes of it When we undertook the Charge of the Army which cost above 50000 l. a Month was not this given to the King was it not his Majesty's Army were not all the Commanders under Contract with his Majesty at higher rates and greater wages then ordinary and have we not taken upon us to discharge all the Brotherly assistance of three hundred thousand pounds which we gave the Scots was it not toward repair of those damages and losses which they received from the Kings Ships and from his Ministers These three particulars amount to above 1100 thousand pounds besides his Majesty hath received by impositions upon Merchandise at least 400 thousand pounds so that his Majesty hath had out of the Subjects Purse since the Parliament began one Million and an half and yet these Men can be
And they might have added that Justice Long for his diligence in this matter was committed Prisoner to the Tower Hereupon the Judges were ordered to withdraw The Lords endeavor to suppress the Tumults and take into consideration what is fit to be done to disperse and prevent Multitudes of People Assembling hither which they did and returned their Opinions That the best way to suppress Tumults is to put in Execution the Statute of 13 H. 4. Cap. 7. But this not being thought sufficient the Judges were again appointed to consider what is the Vsual Practice in other Courts for preventing of Tumults and Routs To which they returned Answer That it is Vsual at Assizes for the Sheriff of the County to attend all the while with a Competent Number of Men. Hereupon it was Ordered That the Vnder-Sheriff of Middlesex and two of the Justices of the Peace for Westminster shall hereafter attend this House de die in diem and receive the Directions of the House for the preventing and suppressing of Riots and Tumults hereafter But their Lordships did but all this while work against Wind and Tide the Factions Commons had occasion for Tumults and Tumults were resolved to have for their occasions in despight of the Lords or the Laws either The Lords and Commons who were appointed to present the Petition about the Earl of Newport did it this day to whom the King returned this Answer for the present That he will put his Answer in Writing and send it to the House Then the Lord Chamberlain delivered this Message to the House by Command from the King A Message from the King again concerning Volunteers for Ireland That his Majesty being very sensible of the great Miseries and Distresses of his Subjects in His Kingdom of Ireland which daily increase so fast and the Blood which hath already been spilt by the Cruelty and Barbarousness of those Rebels crying out so loud and perceiving how slow the Succours designed thither go on His Majesty thought fit to let their Lordships know and desires You to acquaint the House of Commons therewith That His Majesty will take Care that by Commission which he shall grant 10000 English Volunteers shall be speedily raised for that Service if the House of Commons shall declare that they will pay them Which was ordered to be communicated to the Commons at a Conference Nor was it the Rabble only that was unruly Knowles and Grey 2 Seditious Ministers ordered by the Lords to be prosecuted the Pulpit now under the Protection of the Faction began to break loose and those amphibious Church Hypocrites who had no manner of Love for the Church Except the Revenue nor any Honor for the King but what was owing to Fear began to animate the People to Sedition under the Cloak of Reformation as will appear by this Order of the Lords following Ordered That Mr. Knowles and Mr. Grey who have lately Preached Seditious Sermons in the City of London shall be proceeded against by his Majesties Attorney General according to Law Then a Message was brought from the House of Commons by Mr. Message from the Commons concerning a Declaration to suppress Tumults and a Guard Hollis to let their Lordships know That the House of Commons have taken into their Consideration Two Propositions lately sent to them from their Lordships And the House of Commons say Concerning the Proposition in general for preventing of Tumults and Routs they will agree to all good and lawful Wayes as their Lordships shall think fit for the Safety of the Parliament but for Printing of a particular Declaration the House of Commons say They have entred into Debate thereof and they find it to be a thing of that great Consideration as will require time to consider of it Concerning the Proposition That the Parliament may have a Guard the House of Commons agree thereunto so it be such as the Parliament approve of and that it be Commanded by the Earl of Essex Further the House of Commons desired their Lordships would speedily pass the two Bills for Pressing Marriners and Soldiers for Ireland without which they conceive Ireland cannot be saved I have often hinted before the great Ground that there was to believe that these Tumults were encouraged and promoted by the Faction and that I may not seem to write this as a conjecture I have had the good Fortune to meet among some of the Old Papers of those Times in the Clerk of the Parliaments Office by the Assistance of my Worthy Friend William Goldesborough Clerk of the Parliament that which will remain as a sufficient Testimony to Posterity of the truth of this Matter for Sir John Strangeways upon the 24th of November delivered in this Information Mr. Speaker AN Information was given unto me of a design and attempt to have been made upon this House Informations that the Members of Parliament occasioned the Tumults which if I mistake not comes near to High Treason but that I must submit to your Judgment It doth asperse in general some Members of this House but indefinitely without naming of any for consenting unto it if not for contriving of it The Information was as follows A brief of the discourse that passed between one Cole an Apprentice to one Mr. Mansfield a Haberdasher in Distaff-Lane and John Michaelson upon Wednesday the 24th of November 1641. between 9 and 10 of the Clock at Night in the hearing of Stephen Terret Vncle to the said Cole and John Derivall both Inhabitants in Chelmsford The said Cole a lusty Young man came into the Chamber of the said John Michaelson at the Spread Eagle in Gracious Street and without any demand or provocation did freely confess in a boasting manner That he was but then newly come from the Pallace-Yard in Westminster where he with a Thousand more had been that Evening all armed with Swords the said J. Michaelson asked him the Reason why they would or how they durst adventure in that unlawful way to gather themselves together to put Fears and Jealousies in the Parliament and told him it was not allowable by the Laws of God or of the Land and asked him what Warrant they had for this disorderly act He answered That they were sent for by some Parliament-men I asked him What ground he had for what he said He told me his Master was a Constable who gave him a Sword and had him go and he believed that the Masters of the other Apprentices that were with him gave them the like Directions and that they would not have done so unless some Warrant or Direction had come from some Parliament-men I asked him to what End they went He answered That they heard there was a division in the Lower House and that the best affected Party was like to be over-powered by the other and their direction and intentions was to assist them when they should be call'd for but finding that they agreed well and came peaceably away
the Lords Committees to joyn with them to consider of a Way for Securing of both Houses by Guards as aforesaid that they may come and return and remain in safety Hereupon the Lords Committees have Voted That it is fit and necessary that there should be strong and sufficient Guards from the City of London and adjacent Parts for the securing of both Houses that they may sit in safety Secondly Their Lordships have Voted That it is a legal way for the Houses to require the Sheriffs of Middlesex and London to attend for that purpose with the Posse Comitatus and that they will Report these Votes to the House of Commons accordingly And the Lords Committees meeting with the Committee of the House of Commons the 10th of this instant January were of Opinion That Guards are necessary to be placed before the Committee for Irish Affairs do sit at Westminster and for the manner of ordering of the Guards they referred it to the Common-Council of the City of London And their Lordships will Report to the House of Lords That the placing of those Guards for the safety of the Irish Committee is in their Opinion an acceptable service to the Common-wealth Which Report being made it was confirmed by the House and the several Votes approved and Ordered accordingly Then the Lord Steward Reported the Kings Answer touching the desire of both Houses concerning Guards which Answer was read in these words WE having considered the Petition of both Houses of Parliament concerning a Guard do give this Answer That We will to secure their Fears Command the Lord Mayor of London The Kings answer concerning Guards to appoint 200. Men out of the Train'd Bands of the City such as he will be answerable for to Vs to wait on the House of Parliament that is to say one hundred on Each House and to be Commanded by the Earl of Lindsey it being most proper to him as being Lord Great Chamberlain who by his Place hath a particular Charge of the Houses of Parliament and of whose Integrity Courage and Sufficiency none can doubt But the Faction of the Commons were resolved to have no Guard of the Kings but one of their own appointment Order for a Guard of the Train'd Bands to be Commanded by Major Skippon for upon a Vote of the Commons to this purpose it was Ordered That the Sheriffs of London and Middlesex be hereby required to send two Companies of the Train'd Bands of the City of London and County of Middlesex under the Conduct of Serjeant Major Skippon to attend both Houses of Parliament every day for security of the Parliament until both Houses do give order to the Contrary Directed to the Sheriff of the City of London and Middlesex A Message was brought up by Sir Philip Stapelton who brought up a Bill which had passed the House of Commons Intituled An Act declaring That the Lords and Commons may Adjourn themselves respectively to any Place 2. To let their Lordships know that the House of Commons are informed that there is at Hull a Magazin of Arms of the Kings for 16000. Men and proportionable Ammunition But in regard no great strength is in the Town and that the Countrey about is full of Papists ill affected The House of Commons desires their Lordships to joyn with them that some Companies of the Train'd Bands next adjoyning to Hull be forthwith put into that Town for the Safeguard of that Town and the Magazin there and the said Train'd Bands to be under the Command of Sir John Hotham Knight who hath the Command of that Town already by Patent from the King Whereupon it was Ordered Order for Sir John Hotham to keep the Town of Hull That some of the Train'd Bands of Yorkshire nearest to Hull in the said County under the Command of Sir John Hotham Knight shall with all speed be put into the Town of Hull for the securing of the Kings Magazin there and the said Town and hereof the said Sir John Hotham is by Virtue of this Order Commanded to perform accordingly And the said Sir John Hotham is to Command the Town and Forces therein and all Parties whom it concerns shall give their Obedience unto the said Sir John Hotham and his Ministers And lastly That Sir John Hotham or whoever he shall appoint under him shall not deliver up the Town of Hull or Magazin there or any part thereof without the Kings Authority Signified unto him by the Lords and Commons Assembled in Parliament Directed to Sir John Hotham the Elder The Vizor now began to drop off apace for the plain English of this and the former Order for a Guard was that the King was only to have the Name but the two Houses were to have the Substance of the Royal Authority And certainly no men ever moved by more Regular Steps towards Rebellion they had pretty well Exhausted his Majesties Stores for the Service of Ireland and now they were resolved to Secure the Rest The Tower of London hung still mightily in their Light and though the King had Displaced Lunsford yet Sir John Byron the present Lieutenant who was a Person of great Loyalty Courage and Gallantry was by no means agreeable to their Liking or Designs and therefore the next attempt was to get quit of him and a Confiding man a Creature of the Faction placed in that Important Command as we shall presently see Then the Act An Act for the Lords and Commons to adjourn themselves to any place passed the Lords declaring that the Lords and Commons may Adjourn themselves respectively to any Place was read twice and after a short debate a third time and upon the Question it was consented to to pass as a Law From whence it is observable that even this Parliament who had gotten an Act that they should not be Prorogued or Dissolved without their own Consent yet did not think they had Power without the Royall Assent to an Act of Parliament to Adjourn themselves to any other Place from Westminster whither they were by Writ Summoned to Assemble and Sit and which likewise is a Concession that it was so solely in his Majesties Power though not to Dissolve them yet to have Adjourned them to some other Place less Factious and Troublesom then at that time London was A Petition was presented this day to the Lords from the Inhabitants of Bucks as follows To the Right Honourable the House of Peers now Assembled in PARLIAMENT The humble Petition of the Inhabitants of the County of Bucks Bucks Petition to the Lords Jan. 11. 1641. SHEWETH THat whereas we hoped upon the happy Assembling of this present Parliament we should have had a speedy Redress of those Pressures we have for many Years been under but have been hitherto in great Measure Frustrated of your hopes by the strong Counter-working of a Malignant Faction whereby the perfecting of Reformation is hindred the endeavours of the House of Commons in great
advance their Trade and Manufactures could not be very valuable since they made any alteration of their ancient Customs how foolish and unreasonable soever a great Grievance and Occasion of Complaint and there is Extant in the Paper-Office a Petition to reverse an Order of the Council-Board forbidding them to plough with their Horses tyed only to one anothers Tails and to use the English way of Traces for their more commodious performing the service of their Tillage But his last expressions put the Managers into a great heat and Mr. Glyn cryed out My Lords these words are not to be suffered charging the House of Commons with Faction Correspondency and Conspiracy we desire your Lordships Justice in this so watchful were they to catch at any seeming advantage even of an incautelous Expression But the Noble Prisoner with his wonted Temper replyed God forbid I should think there was or could be any thing in that House or any Member of it but that which agrees with Truth Justice and Equity and turning to the Lords protested he had no intention to reflect either upon the Lords House in Ireland or the Commons here but upon certain Persons that were not Members of the Commons House here that held Correspondency with some in Ireland that are no Members of the House there Then the Remonstrance of the Commons House in Ireland was read being in Effect the same with that from the Lords The next thing which was insisted on was the point of the Revenue Sir Edward Warder Sir Robert Pye Lord Mountnorris Witnesses which they endeavoured to prove he had not advanced by the Testimony of Sir Edward Warder Sir Robert Pye and the Lord Mountnorris to which my Lord made appear that he found the Crown indebted 100000 l. at his Entrance but had since improved the Revenue so that Ireland was able to subsist without being as it had been in the time of his Predecessors a burthen to England and that at his coming over he left 100000 l. in the King's Exchequer and in Fine the Managers did as good as give him the point for they confessed that it was not to be denied but the Revenue was encreased by such means as my Lord Strafford hath increased it but that it was not the Natural Revenue but the Bounty of the Country that supported the Charge before my Lord came to the Government so that to say Ireland did not support it self before in the general sence is untrue but to say in a special sence that the King 's proper Revenue did not support it his Lordship says true From whence the Earl inferred that therefore it was not material to insist upon it They then Charged him with receiving 24000 l. of the King's Revenue and making use of it which in Effect he did not deny it being a particular Favour of the King to permit him so to do and that he gave good security for the money and had also repaid it The Managers here took exceptions at the Earl's interlocutory discourses to which he answered applying himself to the Lords That he should willingly submit to the Order of their Lordships only there were some things put upon him which were not in the Charge to which he craved Liberty to recollect himself to make his Defence making protestation as in the Presence of Almighty God and by the hopes he had to be delivered out of his Afflictions that he never had other Intentions then to be true and faithful to his Majesty and the Common-wealth and that he hoped to regain the same good opinion of the House of Commons which he once had when he was once a Member of it being he was still the same person both in Opinion and Intention This the Managers opposed and urged to have him answer immediately desiring if he did not answer then he might be precluded from any future Answer Upon which he renewed his Request but withal desired their Lordships if it could not be granted to bear with many infirmities both of his Body and Mind which were very great and which did plead for a little Favour and Compassion He said the House of Commons proceeded with Justice according to their Information but that he knew it was in the Hearts of all that heard him that he should have time to clear a truth that no person could he thought deny it and therefore humbly prayed he might not be surprized Hereupon the Lords adjourned to their House for half an hour and at their return Ordered him to make his Answer presently which to the Admiration of the hearers he did as followeth My Lords I Shall never do other than readily obey whatsoever your Lordships should please to command me The Earl of Strafford's Speech April 23. 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 King's Revenue and for the good of the Church and Commonwealth 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
the Defence I desire leave to open what is the Nature what the Height and Quality of the Offence of which this great Lord stands Accused before you My Lords It is a Charge of the highest Nature that can be against a man A Charge of High Treason It is a Treason not ending and expiring in one single Act of a discontented Heart but a Habit a Trade a Mistery of Treason exercised by this Great Lord ever since the King's Favour bestowed on him My Lords It hath two Evils to deprive us of that which is good That is to subvert and take away the fundamental the ancient Laws whereby we are secure of whatsoever we do enjoy it hath My Lords a positive Evil in it to introduce instead of that an Arbitrary Government bounded by no Laws but by the Evil Councels of such Ministers as he hath been My Lords It is the Law that gives that Soveraign Tye which with all Obedience and Chearfulness the Subject renders to the Soveraign It is the Law My Lords that gives Honours to the Lords and Nobles Interest Property and Liberty to the Subject My Lords The Law as it is the Foundation and Ground of all these hath its distribution in a course of Justice Justice is derived as by so many Channels by the several Courts of Justice whereby the King's Justice for it is His is brought and conveyed to the Subject My Lords Of all this hath my Lord of Strafford endeavoured not only to put the Subject out of present Possession but to make him uncapable of the future Benefit of it Other Treasons yea a Treason against the Person of a Prince which is the most Transcendent and High Treason that can be fall short of this Treason For a good Prince may be gathered to His Fathers yet another may succeed him that supports the Glory and Justice of his Throne We have had Experience of it When blessed King James was taken from us to Heaven Sol occubuit nox nulla secuta est But if any one such a design as this should take effect That the Law and Justice should be taken from the Throne and Will placed there we are without hope of ever seeing Remedy Power in so great a measure taken is not easily laid down unless it be by the exceeding great goodness of so merciful and just a Prince as we have My Lords The Particulars of this Treason are Conveyed to your Lordships in 28 several Articles I shall shortly and briefly touch but the Heads of those on which I shall insist and give some distribution of them And I think the best way will be this To consider first what he did and what he said before he went into Ireland then what he did and said there and what he hath done since And in all of them you will find this his main design which I have opened That Law might no were stand against his Will and to settle it that he might continue so My Lord hath declared this in incroaching Jurisdiction where it was not in exercising an Arbitrary Power under that Jurisdiction in taking on him a Power to make Laws In Domincering and Tyrannyzing over the Lives the Liberties the Goods the Estates and whatsoever is the Subjects And My Lords this hath he done not only on those of the meaner sort that could not resist him but on the Peers on the greatest and most ancient Nobility of Ireland And what might your Lordships expect but the same measure at his hands had his Will had its passage here which it had in Ireland I shall come now to the particular Articles 1. And first Whereas it pleased His Majesty to place him with Power and Honour in his hand in the North as President he had not been long there but that Commission which bounded and pleased his Predecessors he must needs surmount and overgo There was a Commission in 16 Jac. which the then Lord-Deputy had in which was that Legal phrase Secundùm antiquum cursum his own Commission 4 Car. pursued that without any alteration but being in but four years this would not please his boundless Ambition he must needs have the Power that the Lords in the Star-Chamber have put in express terms a Power to proceed according to the course of the Chancery that his Conscience might limit other mens Estates That his Injunctions might stay other Proceedings at Law And which is highest of all if any thing be done in that Court within these Instructions then no Prohibition should be Awarded He would make himself safe from any supervising of other Courts If he Committed any man to Prison though a Habeas Corpus were granted then which the Subject hath no other remedy to vindicate his Liberty the Officer for the encouragement of those which be under his Power must not obey it And if any Fine be put upon the Officer then comes a command in this Commission That the Fine shall be discharged so he not only takes a Power to himself but also takes the Scepter of Justice out of the King's Hands for by this means there is an impossibility the Subject should have the Justice that my Lord knows is due to him and he knows it right well for when he was a Member of the House of Parliament it was his own motion who now stands at the Barr That all the Officers and Ministers of State shall serve the King according to that Law and he is the first Officer and Minister of State that breaks it and in the most transcendent degree that ever it was broken My Lords He doth in this as much as in him lies say to the Laws Do your worst You can but Fine and that you can do shall come to nothing the Fine shall not be paid The Officer shall not obey you If this had been a single Act we should never have accused him of this Treason though it comes very High and very Transcendent But the Oppressions and Injustice the Counsels and Speeches that we present to Your Lordships we present them not singly but as together designing and noting what a Treasonable purpose and disposition is in him 2. My Lords The next thing he doth when he is in the North among the Justices of the Peace and the People attending for Justice you shall see what Encouragement he gives them to look for it and how foul a thing he dares to fling on the Sacred Majesty that did advance him He tells the Justices that were to do Justice and the People that were to receive Justice That some of the Justices were all for Law but they should find The King 's little Finger is heavier than the Loyns of the Law Your Lordships may consider what a transcendent Speech this was out of whose Mouth it came what sad Accidents happened upon it nothing could move this Lord to utter it but his Will and his Violence must out though he burst a Kingdom in pieces for it 3. The next thing is this When
accordingly yea their Houses broke open and their Goods taken away and brought to my Lord of Strafford 's House where they were employed in his works The like we shall instance in Tobacco 15. Next we shall shew to Your Lordships how he hath levied War upon the King's Subjects We opened in the beginning what an Arbitrary Jurisdiction he set up here we shall shew how he used it by a meer course of Enmity and Hostility For My Lords this was the course If a Decree or Order were made by him and not obeyed he issues a Warrant to the Serjeant at Arms to go to the next Garrison and take Soldiers with an Officer and carry them to the House of the party in question it is no matter where it was but to the House of them that were pretended to be disobedient they were to go If the Decree had been to raise so much money or to put parties in possession In plain terms the Soldiers were to lye like Free-booters and Enemies on the King's People to eat them up They have killed their Sheep their Oxen and they have lain not on the parties only but on their Tenants till the party comes in and renders himself They have burnt their Houses taken their Wives and Friends and carried them away till Obedience was rendered and this is a levying of War upon the King For the King and the People are both so united in Affection and Right of Law that there cannot be Violence offered to the King but it redounds to the People nor can any Oppress the People in this sort but it redounds to His Majesty Besides it is contrary to a Law of that Kingdom whereby it is Enacted That if any person shall assess Horse or Foot on any of the King's People without their consent it is High Treason The next thing we shall go to is the Favour he shewed to the Papists in their Compositions and Exemptions from all penalties of Law for they were expresly not to be proceeded against nor to be Convicted and so that which hath influence into Religion and Reformation is quite taken away and nothing but matter of Profit is left The next Article is that that concerns the Kingdom of Scotland First he begins with them in Ireland contrives an Oath which is set forth in the Articles That they shall obey the King's Royal Commands without exception This he enforceth by Fining and Imprisoning them that disobeyed him And so in all the other particulars when his Proclamations were broken his course was by Fine and Imprisonment to enforce an Obedience My Lords He doth not only press them in their Estates but strives to infuse into His Majesty an ill Opinion of them he provokes and incites Him by all his Arguments to lay down his Mercy and Goodness and Justice and to fall into an offensive War against that Kingdom He gives out that the Nation of them not this or that man are Rebels and Traytors And if it please the King to bring him back to the Sword indeed he is fit for that it is a violent weapon he will root out the Scottish Nation Branch and Root some few excepted of those that had taken the Oath When he comes into England he finds that His Majesty with great Wisdom had pacified those Storms and Troubles that threatned us there Yet he doth incense the King still to follow this to an Offensive War and prevails He plots to call a Parliament but with an intention if it furnished not his design it should be broken and he would set up other ways of force to raise Moneys of the Kingdom and this fell out unhappily For thus far his project took the Parliament was broken and broken at the very time when the Subject was in debate and consideration how to have yielded Supply to His Majesty But that he might break it he falsly informs the King That the Parliament had denied to Supply him there is his Counsel that the Parliament had forsaken the King and now the King having tryed his People might use all other ways for the procuring and raising of moneys and the same day wherein that Parliament was unhappily Dissolved he gives his further Counsel to His Majesty which because no man can put such a Spirit of Malice into the words besides himself I shall take the boldness to read That having tryed the Affections of his People he was loose and absolved from all Rules of Government and he was to do every thing that Power would admit And that His Majesty had tryed all ways and was refused and should be acquitted both of God and Man And that His Majesty had an Army in Ireland which he might employ to reduce this Kingdom It is added in the printed Book to reduce them to Obedience I know not who Printed it but the Charge is only to reduce this Kingdom And My Lords you may please to consider what a sad time this man took to reflect upon these bad Councels when our Hearts were swoln with Sorrow for that unhappy breach of the last Parliament And what doth he advise the King what positions offers he That he was absolved from all Rules of Government If there be no Rule of Government My Lords where is the Rule of Obedience for how shall the People know to obey when there is no Rule to direct them what to obey He tells the King he was refused which was untrue for he was not refused to the last breath we had in Parliament but we spake in that point how to supply the King and to prefer it at that time before the Complaints of our just Grievances But what doth he fall into that which in another Article we charge him with a Plot and Conspiracy betwixt him and Sir George Ratcliffe to bring in the Irish Army for our Confusion to root out our Laws and Government a pernicious Counsel He says not you shall do it but he that perswades it doth as much as if in express terms he had counselled the acting of it Doth he mean that we should be to his Irish Pattern for speaking of the Irish Army consisting of Papists and his Adherents he said that he would make it a Pattern for all the Kingdoms did he mean to reduce us to the Pattern that he hath placed in Ireland Surely he meant to reduce us to a Chaos and Confusion He would have us without all Rules of Government and these be the means wicked and cruel Councels and the Cruelty of an Army inspired with his Spirit and consisting of Papists Enemies of our Religion And what Mercy could we of this Religion expect from Popish Enemies with Swords in their hands That cannot but strike all English Hearts with Horrour and Dread that an Irish Army should be brought into England to reduce the Subjects of England I hope we never were so far gone in any thing as that we should need an Army to reduce us I cannot but say here is the Counsel of
Rectory of which he had been possessed as Tenant to the Crown 35 Years that taking out Writs to arrest Gwyn the Earl bad him recal them or he would clap him in the Castle and that he would not have his Orders disputed by Law nor Lawyers that he desired Gwyn being Poor he might give security which the Earl said was just and that it should be so entred in his Order but that Sir Paul Davis told him that my Lord Strafford found fault with it and struck it out with his own hand that making a Lease to an Incumbent contrary to an Act of State that no Lease should be longer then the Incumbent's Life and being prosecuted for it the Earl told him an Act of State should be as binding as an Act of Parliament John Waldron deposed the same in the Case of a Lease between the Merchants of Galloway and some others John Waldron John Kay Lord Killmallock Sir Pierce Crosby John Kay deposed the same the Lord Killmallock deposed the same and that Sir George Radcliff my Lord Strafford's Eccho an occasion of throwing out a Bill making its Felony to have Powder without licence said the same Sir Pierce Crosby deposed the same To this the Earl answered The Earl's Defence That the Council Board of Ireland was a Court of Record that it was so in favour of the English Protestants and Clergy This he proved by the Lord Dillon in the Lord Chichester's and Lord Grandison's time Lord Dillon that the Acts of State were by the Judges reputed as Laws of the Land for the present and proceeded by Arrest Imprisonment and Fines upon contempt Sir Adam Loftus which Sir Adam Loftus confirmed Then the Order which my Lord of Cork mentioned was read attested and acknowledged to be Sir Paul Davis his hand where it appeared the Clause my Lord Cork said was struck out was standing still only my Lord Cork was limited to prosecute within a Year So what was objected about Gwyn he said he was unknown to him but produced a Certificate from the University of Dublin That he was a Master of Arts of 12 or 14 Years standing adding That my Lord of Cork must be an Excellent Schollar under whom his Groom had so much profited For the Words spoken to the Earl of Cork though he had so quick a memory as to swear them roundly as laid in the charge to a syllable yet they carry their own Contradiction the Order produced referring him to the Law at the highest if the words were spoken they are but indiscreet and it was severe to be punished for being no wiser than God Almighty had made him that my Lord is but a single Witness and he is not prosecuted according to 1 E. 6. cap. 12. That the other Witnesses are Extrajudicial proving words spoken in other places and times then he is charged withal and yet that the words may bear a fair interpretation for that the King being the Law-giver which he hoped none would deny without the Crime of Treason the King's sentence is a Law in matters not determined by Act of Parliament that Prerogative is a part of the Fundamental Law as well as the Property of the Subject That he had alwayes wished for an harmony between them and that they might keep in their wonted Channel if either of them rise above their due heights nothing could be expected but subversion of the Common-wealth either by Tyranny or Rebellion That prerogative was like the First liberty of the subject like the 2d Table either both or neither can be preserved That Prerogative as long as it goes not against the Law of the Land is the Law of the Land and binding being made to prevent a temporary mischief before an Act of Parliament can give Remedy He excepted against the Lord Killmallock 's swearing Sir George Ratcliff to be his Eccho it being impossible to swear his thoughts Against Mr. Hoy and Sir Pierce Crosby as persons concerned against him in point of Interest and to Mr. Waldron 's That the circumstance qualifies the Words it being according to a Statute directing that Leases should not be made without reserving the Moiety of the yearly value After which the Manager replyed That this Article proved the Earl of Strafford's intention to subvert the Government that whereas he saies they are not prosecuted in time the Effects continue to this day and they prosecute him Flagrante Crimine that threatning the Earl of Cork was Arbitrary Government that he hath made it a habit to speake such words as appears by the several times that he himself had confessed the words that when things are rejected in Parliament they are not to be supplied by an Act of State Then they desired to Examin another witness Roger Lotts Witness which the Earl excepting against as not regular the Lords adjourned to their House to consider of it and returning he was admitted and deposed concerning the Bill for Powder without Licence to Felony the Earl told them He would make it an Act of State and that should be as Good To which the Earl replied It was done by Command and for reasons of State not fit to be made publick to keep Powder out of unsafe hands but did not conduce to his acquittal or Condemnation Upon Saturday March 27. Saturday March 27. The 6th day Artic. 5. they proceeded to the Sentencing the Lord Mountnorris at a Council of War thereby Exercising a Tyrannical Power over a Peer of the Realm of Ireland c. First the Sentence was read reciting the King's Letter which commanded a Council of War to sit upon the Lord Mountnorris being a Captain for inciting Revenge against the Lord Deputy-General of his Majesties Army The Lord Mountnorris deposed That he was called to a Council of War Lord Mountnorris Witness charged to have spoken words to this purpose That being told a Kinsman of his had hurt the Lord-Deputies Foot having the Gout he should say Perhaps it was done in Revenge of that publick affront that my Lord Deputy did me formerly but I have a Brother that would not have taken such a Revenge that he was required instantly to confess or deny the Charge that he desired time to answer but was denied as also to produce witnesses to disprove the Lord Moor and Sir Robert Loftus who upon Oath had affirmed it that thereupon in half an Hour Sentence was Pronounced against him by Sir Charles Coot Provost Marshal That the Lord-Deputy in scorn told him That he might proceed to Execution but he would Supplicate his Majestie for his Life and rather lose his Hand then he should lose his Head that he was committed to Prison December the 12th and bailed out the 18th the Physitians making Oath he was in danger of his life the High oppression and Injustice having thrown him into a desperate sickness committed again Apr. the 11th let out May the 2d by reason of Sickness recommitted the 30th of January following
Article to prove the General Charge of Subverting the Laws They next proceeded to the Ninth Article Artic. 9. concerning his giving Commission to the Bishop of Down and Connor for attaching all such persons as contemned the Ecclesiastical Ordinances and present them to the Council-Board Mr. Glyn urged it as a thing would fully prove the Charge The Warrant was read as followeth By the Lord Deputy FOrasmuch as We have been informed by the Right Reverend Father in God the Lord Bishop of Downe and Conner The Warrant to the Bishop of Down and Connor that the most frequent Offences against God and the greatest Contempts against the Ecclesiastical Jurisdiction are Committed by the meaner and poorer sort of People in that Diocess whose faults for the most part escape unpunished by reason the Writ de Excommunicato Capiendo is so long before it can be sued forth and executed on them that they remove to other parts and cannot be found or if they be taken their Poverty is such that they cannot satisfie the Sheriff and other Officers Fees due for taking them on that Writ whereby the Officers become negligent and backward of doing their Duties We therefore desiring the suppression of Sin and Reformation of Manners have thought fit to strengthen the Ecclesiastical Authority of the said Right Reverend Father in God the Lord Bishop of Downe and Conner with our Secular Power and do therefore hereby give Power and Authority to the said Lord Bishop his Chancellor or Chancellors by their several Officers by them to be appointed to Arrest and Attach the Bodies of all such of the meaner and poorer sort that after Citation shall refuse to appear before them or appearing shall omit or deny to perform and undergo all Lawful Decrees Sentences and Orders issued imposed and given out against them and them so Arrested to Commmit and keep in the next Goal till they shall perform such Sentences or put in sufficient Bond to shew some reasons before the Council-Table of such their Contempts c. willing all Justices of the Peace c. in that Diocess to be Aiding c. as they c. Given c. Febr. 16. 1636. Tho. Little This Mr. Glyn said was a great Invasion upon the Liberty of the Subject Sir James Montgomery Sir James Mountgomery deposed That the Warrant was Executed with great Cruelty 20 30 Names in a Warrant the Officers beating wounding and imprisoning them The Earl answered The Earl's Defence First this was the Vsual Practice but not satisfied with it he had refused it and this was the only Warrant and that hearing it complained of he recalled it To this the Examination of the Lord Primate 7. Interrog agreed the B. of Meath having such a Warrant for either the Lord Grandison or Chichester Mr. Little also attested That this Warrant was drawn after an Original Warrant of the Lord Falkland 's that it was the onely Warrant my Lord granted The Lord Dillon also confirmed the Practice He further requested their Lordships to consider the impossibility of having Witnesses in the Irish Affairs upon so short warning as Friday was Seven-night That following Presidents if they mislead him he hopes it is no Treason to mistake the Law otherwise there would be more Actions of Treason than Trespass in Westminster-Hall Mr. Glyn rejoyned That my Lord Confesses what he did to be above Law that though this be but a single Act yet compared with other Exorbitant proceedings it is a strong Evidence to prove his Subverting of the Laws Upon Wednesday the Commons proceeded to the Tenth Article of the Charge Wednesday March 31. Artic. 10. That he had not only Exercised a Tyrannical and Arbitrary Government over the Lives Liberties and Estates of the Subjects but had abused the Crown by applying to his private Vse the Publique Revenue to the great disadvantage of His Majesty Mr. Maynard stated the Case King James Leased the Customs at 6000 l. per annum and half the clear Profits above the Rent and 1400 l. to the L. Carlisle for Customs of Wines the half clear Profits amounted to 3700 l. per annum in the 7th of Car. a second Lease was made to the Dutchess of Bucks for 11050 l. so at view there is 1350 l. advance but then the E. of Carlisle 's Lease of 1400 l. was taken in and the surplusage of the Wine-Customs being communibus annis 3000 l. per annum so that out of the 11050 l. per annum there is an abatement of 4500 l. per annum instead of an advance of 1350 l. per annum besides that in the Earl's Lease the Customs of London-Derry Colerane Knockfergus and Strangford reserved in the Duke's Lease are defalked valued at 1500 l. per annum and all Forfeitures as also an allowance of Custom for Prize Goods and in the Grant a Clause That this Grant shall hold whether it be Repealed by Act of Parliament or not That the Book of Rates was increased so that whereas the Customs were valued at 12000 l. per annum they were advanced to 40 or 60000 l. per annum All the Leases being read the Witnesses were deposed Lord Ranulagh The Lord Ranulagh said That being a Partner in the Lord Faulkland 's time the surplusage above the 6000 l. was 3700 l. Sir James Hay deposed the surplusage above the 1400 l. Sir James Hay of the Earl of Carlisle's Rent was 2387 l. 15 s. 9 d. Robert Goodwin deposed That the Customs of London-Derry c. Robert Goodwin amounted from the Year 1634 to 1639 to 1079 l. 6 s. 1 d. and of London-Derry in the same time viz. 5 Years to 5348 l. 11 s. 10 d. Henry Brand. Henry Brand deposed the same To the increase of Customs John Welsh deposed John Welsh That out of the Exchequer Book he took these Accounts In the Year 1636 they came to 39936 l. In the Year 1637 they came to 38889 l. In the Year 1638 they came to 57380 l. In the Year 1639 they came to 55582 l. The Lord Ranulagh deposed much to the same effect Welsh further deposed the price of Hides 50 l. per Last being 3 s. 4 s. some 5 s. few above Wooll 3 s. 4. s. 5 s. 9 s. that the highest From whence Mr. Maynard observed a Hide of 5 s. rated at 2 s Wooll at 9 s. rated at 13 s. 4 d. in the Book of Rates and to pay Custom accordingly Patrick Allen. Patrick Allen deposed rates of Hides 4 s. 4 s. 6 d. 5 s. and 6 s. Wooll 4 s. 6 s. 7 s. 8 s. the highest 11 s. The Earl desired the Article might be read The Earl's Defence and then it would appear how pertinently the time was spent in proving it which he read and added with submission There was nothing in it that by any Law could be brought to Treason and that he was to answer to and nothing else That what the King lost by the Duke
till they were paid Henry Dillon affirmed That in my Lord of Cork's Tyrringham and Lord of Ely's time he had Warrants from them and the Council to gather money by laying Soldiers till it was paid Sir Arthur Tyrringham averred That by Warrant from the Lord Faulkland he had laid Soldiers upon a Debtor Lord Ranulagh till the Debt was paid but does not know whether it was the King's Debt Lord Ranulagh attested that it was the practice of the Lord of Cork and Ely to give Acquittances out of the Exchequer to Captains who if the money was not paid assessed Soldiers on the defaulters Then the Earl offered to prove That it was the desire of the Gentry themselves it might be so in the Lord Faulkland 's time but it was by Mr. Palmer agreed him from whence my Lord inferred That it disabled the first part of the Killing Charge That he should Traiterously and wickedly devise to subdue the Subjects of that Realm by levying Money on them The Earl then desired the 2d Article of the Lord Faulkland's Instructions might be read which was in haec verba For the Collecting of our Rents in cases of default that 1. a summoning Process shall Issue 2. The Pursivant sent 3. If this be not sufficient in case the same be not levyed then our Vice-Treasurer by Warrant of our Deputy and Council shall appoint a competent number of Soldiers of the next Garrison to be aiding to collect the Rents at the Charge of the Parties complained of having care that no man be burdened with a greater number of Soldiers than the Service shall necessarily require At Mr. Palmer's desire the first Article was read viz At the humble Request of Our Subjects We are graciously pleased to direct for the better preservation and ease of Our Subjects the Soldiers shall be called in c. and from what had been proved the Earl inferred That it could not be High-Treason for the King's Service to follow the King's direction and the constant practise of his Predecessors that he brought not the Custom in but found it there and that by Proclamation under the hands of the whole Council it was done for the Ease of the Countrey To the Testimony of Berne and Kenedy of the abuse of the Soldiers 1. he was not then in Ireland 2. he denies he ever gave Pigot such a Warrant and there is no proof of it That Pigot 's threatning Clear with a Warrant is no argument men often threaten most when they have least to shew Kennedy sayes he never saw the Warrant Savil 's Warrant is not produced that this great and mighty War on the King and his Subjects is one of the poorest Wars in Christendome for last Summer one sayes he knew Soldiers laid on one man that it was never complained of all the time he was in Ireland that the Warrant was to procure obedience to all the King's Courts Savil. and to secure the King 's Right He desired Savil might be demanded whether the Warrant granted him was not agreeable to former Precedents who affirmed his Predecessor told him he had received such a Warrant from the Lord Faulkland to sess Soldiers on the Land of Sir Thomas Fitzgerrard Henry Dillon attested Dillon that the Serjeant at Arms was an Officer as well to the Exchequer as Chancery and the last process is Attachment by the Serjeant as well between man and man as for the King Here Mr. Palmer speaking something which my Lord looked upon as an Interruption he desired no hasty words might be misinterpreted he speaking for his Life and Family and that the Gentlemen would do well not to put him out of his way but let him speak those few poor things he can for himself He then added that some wayes he is more qualified then an ordinary Person having the Honour to be his Majestie 's Deputy that by his Commission he was to govern according to the Customs of the Realm and this was Customary by all the former Governours that had it been Levying War there is a Statute 10 H. 6. c 17. Enacting That there shall be no War or Peace in the Land without the Deputie's Licence but all War or Peace to be made by the Lieutenant for the time being And as to the Stat. 18 H. 6. c. 3. That no Lord or other shall charge the King's Subjects c. 1. He hath heard it said that the King cannot be concluded in any Statute unless he be particularly named and consequently not his Chief Governour 2. He shall not lead or bring He hath done neither the Serjeant did it though under his Warrant 3. It speaks of bringing English Rebels or Irish Enemies c. But such are not the King's Soldiers sent to apprehend refractory Persons and for the King's Honour and Service 4. Practice is the best interpreter of Laws and notwithstanding this Statute the Governours have alwayes assessed Soldiers That it would be a hard Case that such an Old Law should be started contrary to Practice to destroy him and his Posterity but he believes he shall prove that Statute Repealed First By the 8 Ed. 4. c. 1. which Enacts That from the Sixth of March then next all Acts made within the Kingdom of England shall be in force in Ireland from the said time This therefore ratifies the Statute of 25 Ed. 3. which is the Statute of Treason and the Statute of 1 H. 4. which sayes nothing shall be Treason but what is within the Statute of 25 of Ed. 3. which repeals the 18 of H. 6. Secondly By the 10 H. 7. c. 29. whereby all the Statutes made in England before that time are made Laws in Ireland and all Laws contrary to these Laws are repealed but the Law urged is against 25 Ed. 3. 1 H. 4. and consequently repealed Next he produced a Statute of 11 Eliz. c. 7. for taking away Captains Ships and that none of the Great Men shall make War or Peace c. Sess nor lead the People without the Great Seal or Warrant from the Lord Deputy so that here is a power in the Deputy to assess c. without being a Traytor That to the Clause of 25 Ed. 3. if any man levy War against the King in his Realm or adhere to his Enemies c. he appeals to their Lordships as in their own Case whether 2 or 3 poor Soldiers sent to bring an Offender liable to the King's Justice can by any construction be levying War against the King and his People or rather for the Honour and Authority and Justice of the King and not adhering to his Enemies but this point of Law he desired to refer to his Council to urge for him with more advantage than he could himself being out of his profession To this Mr. Palmer replyed That there can be no Custom or legal usage Managers reply contrary to an Act of Parliament that those usages were by consent but this of my Lord 's against
People being but the Imployment of two or three Soldiers to procure obedience to His Majestie 's Government because as I conceive likewise I had Commission to make War as I saw Cause for punishing the Rebels and securing the Publick Peace and therefore How can I be charged with that I have power to do The worst that can be made of it is an absurd execution of a Power but to make it Treason when I had Commission and Liberty so to do methinks that is very hard And it was no absurd execution of a Power under favour neither when I had the Precedent of all the former Deputies and Lieutenants in the Case My Lords it was never Complained of all the while I was there for ought appears to your Lordships so that it seems there was no great Innovation nor Inconvenience for if there were I should have heard of it But the Statute 11. E. 1. ca. 7. sets a penalty upon any Subject that shall Assess without the Deputies Authority Now I do most humbly beseech your Lordships that you would be pleased to remember that and let me know how it should be but Penal in a Common person to do it and yet Treason in a Deputy My Lords I shall likewise humbly mind your Lordships of the Statute or rather two Statutes as I take it whereby I conceive this Statute that made a Treason in Ireland was repealed But howsoever the practice in all time hath gone quite contrary to that Statute and the best Interpretation of Law is the Practice of Law and therefore the Practice having been otherwise it is an Argument very strong and prevalent that the Deputy as Chief Governour was never intended to be Concluded within that Act nor never to be brought in by General Words onely And that this should be a Levying of War against the King within the Statute of 25 E. 3. in England surely I conceive it cannot be for the Burning of Towns the Taking of Forts Killing and Slaying that I conceive to be Levying of War but this is a strange Levying of War with two or three Soldiers to rest in Peace and Quietness eating on Contemners only and not Killing and Slaying and all to procure Obedience to the King not in Disobedience to his Command If to lie upon them and eat be High-Treason in this Case What shall become of a great Company of good Fellows that at this time eat at the Charge of the Country No My Lords This in the Case of a private Man had been but a Forcible Entry or a Ryot at the most if a man had done the same thing Mr. Savil did of his own Authority without the Deputy it had been but a Force and Ryot and How shall this be in my Case High-Treason The next Charge in that Case is concerning a Warrant to one Piggot another Serjeant at Arms and the great and crying Miscarriages and Misimployments of such a Warrant if there had been any it was when I as your Lordships may please to remember was out of Ireland and that was the Case of Bern a very Foule Misdemeanor as it proved But My Lords I being out of the Kingdom and no such Warrant shown I conceive I am absolutely dismissed as unto that and have nothing to answer for it there was nothing done while I was in the Kingdom there is no Warrant of mine shown therefore I conceive I stand clear of that likewise But admit there was such a Warrant the Answer goes to that as to the test and certainly I hope will fully acquit me of this Fifteenth Article as Treason And so I must in humility submit to your Lordships wiser and better Judgments The next Statute-Treason is an Intendment or Design or what you will have it for bringing over the Irish Army into this Kingdom to reduce it or to do I know not what nor I think no body else for there is no such thing But My Lords for proof in this Case you have two offered there and no more under favour at all the first proof is the Fears and Doubts of my Lord Ranulagh that tells you he Fears such a thing and Doubts such a thing My Lords if Fears and doubts may be sufficient to Condemn me for Treason By my Faith I fear and Doubt very much these Fears and Doubts might Accuse me and Condemn me of Treason more then once a Year But my Lords his Fears and Doubts he may keep to himself I hope they shall not be brought any way to the prejudice of me I am I thank God both confident and knowing there is no such thing The next is the Testimony of Mr. Treasurer Vane and the Words Mr. Treasurer doth Witness against me in that particular are as I conceive these that I should say to His Majesty in an Argument concerning an Offensive or Defensive War with Scotland Your Majesty hath tryed all wayes and are refused and in this extream necessity for the safety of the Kingdom and Your People You may imploy the Irish Army to reduce this Kingdom My Lords To this I say that under favour Mr. Treasurer was in this methoughts a little Dubious he was something doubtful for at the first he told your Lordships he would deal plainly and clearly with you that he knew before whom he spoke and then my Lords it was but to the best of his Remembrance that these and these words were spoken At the last my Lords being put to it more he was pleased to say that these were positively the words or something to that effect So my Lords here is but a dubious and uncertain Witness under favour and these professions of his speaking clearly and plainly and of his Consideration before whom he was which are something unusual Clauses to Men that come to Swear upon Oath make me conceive him something Dubious in this point Secondly My Lords he is a single Witness and not only so but under favour disavowed by all the rest that were present at the Council My Lord of Northumberland remembred no such thing My Lord Marquess of Hamilton remembred no such thing My Lord Treasurer remembred no such thing my Lord Cottington is very well assured he said no such thing for if he had he should have taken offence at it himself which he never did My Lords in the Third place He is pleased to mention That it was in a Debate Whether an offensive or Defensive War and that then I should say The King had an Army in Ireland c. My Lords it falls out in time to be as I conceive about the 5th of May last not many dayes sooner or later the Army of Ireland was not raised till June following So it seems I should tell the King a great untruth that he had an Army in Ireland which he might imploy for His Service before that Army was raised for it is a notorious thing and any of that Country knows that the Army was not raised till the Fifteenth of June as
I shall first give you an Accompt of the words wherewithal I am Charged forth of Ireland and the first words are in the Third Article where I am Charged to have said That Ireland is a Conquered Nation and that the King may do with them as he pleaseth And to the City of Dublin That their Charters are nothing worth and bind the King no farther than he pleaseth These are the words Charged My Lords methinks it is very strange under favour that this can be made an Inducement to prove this Charge because I said That Ireland is a Conquer'd Nation therefore I endeavour to subvert the Fundamental Laws when I speak the Truth for certainly it is very true it was so My Lords under favour I remember very well there was as much said here at this Bar since we began and yet I dare well Swear and acquit him that spake it from intending to Subvert the Laws For my Lords you were told and told truly That Ireland was a Conquered Nation and that it was Subordinate to England and God forbid that it should be otherwise and that they have received Laws from the Conqueror My Lords the words testified by my Lord Gormonstone and Kilmalock to be spoken are not the words wherewith I am charged and so under favour I conceive cannot be brought to my prejudice as to this Tryal and they are words that are denied by me For my words concerning their Charters your Lordships remember very well I doubt not wherefore I said they were void For their misuse of them and that I told them so not with the intent to overthrow their Patents or Charters but to make them more conformable to those things that the State thought fit for encrease of Religion and Trade and encouraging and bringing English into that Town And that it was meant so and no otherwise Whatsoever was said it appears by this their Charters were never touched nor infringed nor medled withal by me during the time I was in that Kingdom so that words so spoken and to such a purpose that they should go to prove such a Conclusion I conceive there is great difference betwixt those Premises and that Conclusion The next Charge for words in Ireland is in the Fourth Article where I am Charged to have said That I would neither have Law nor Lawyers Dispute or Question my Orders and that I would make the Earl of Cork and all Ireland know That as long as I had the Government there any Act of State should be as binding to the Subjects of that Kingdom as an Act of Parliament My Lords I humbly beseech your Lordships to give me leave to say for my self that these words of the Charge are only sworn by my Lord of Corke and no man else and his Lordship appeared a little mistaken the other day in one point on the Reading of an Order of the Council-Board for so it appears as I conceive so that for one single Witness and he the Party Aggrieved by these words to be the Man that must convince me I conceive your Lordships will not think that to stand with the ordinary Rules of Proceeding For the rest to say Acts of State in Ireland should be binding so long as they are not contrary to Law I confess I then conceived it had been no Offence for I thought them to be as binding being not contrary to Law but the Elder we grow the wiser we may grow If God give us the Grace and Attentions and so I trust I shall by these Gentlemen that have taught me to forbear those kind of Speeches hereafter My Lords These are all the Words charged against me for Ireland saving only some things that I shall come to anon that is Charged upon me in one of the latter Articles concerning Scotland I say my Lords these are all the Words that have slipped from me in Seven years time having been well watched and observed as your Lordships may perswade your selves I have been But in seven years time I say these are all the words brought to my Charge and in truth I conceive a wiser Man then my self might be forgiven for one Error or slip of his Tongue of that Nature in a years time seeing it is no greater measure God be praised than these are My Lords these being the words that passed from me in Ireland there are other words that are charged upon me to have been spoken in England but if your Lordships will give me leave though perhaps in no very good method I shall not fail to touch first or last the words in every Article The next Article then that I am charged withal for words is the second Article and these are the words that I should say concerning the Finger and the Loins My Lords I may alledge much new matter but I will observe your Lordships Order punctually by the Grace of God for what I may say in that case if it might be admitted I keep it to my self but the truth is they that do prove the words to be thus That I would make the little finger of the Law heavier then the King's Loins they do not tell you the occasion of the Speech or what went before or what after for my Lords if they had told the occasion which methinks they should as well have remembred as the words it would plainly and clearly have appeared to your Lordships that Sir William Pennyman's Testimony was most true for the occasion was such that to have said those words had been to have spoken against that to which I intended the discourse but speaking them as I said it makes very strong for that purpose to which I directed them which was to appease the Countrey and quiet the Discontents for having been double charged with the Knight-money and therefore it was not proper by threatning them further to have provoked them My Lords you have Sir William Pennyman's Testimony that it was so and my profession who under favour will not speak an untruth to save my life I protest before God that I say I verily believe or else I will never speak it indeed and there it is they have proved it to have been said one way we another way we give the occasion of our Speech and disavow theirs and so we must leave it and howsoever these words so spoken can never be drawn as I humbly conceive as Premises to prove their Conclusions that therefore I am guilty of High Treason they have made me guilty of a foolish word and that I confess and if they please I will confess it all the day long for I have been foolish all the days of my life and I hope hereafter I shall look unto my ways that I offend not with my Tongue for if I cannot rule it abroad I will rule it within doors else I will never stirr abroad but bound it so to my own business and affairs that I trust I shall give no offence The next Article that chargeth me with words
be an endeavourer to Subvert the Fundamental Lawes of the Land in this kind I beseech your Lordships call to mind what hath been proved that at all Publick Debates at Council and Privately apart I have humbly represented to His Majesty from time to time That Parliaments are the Only Way to Settle Himself in Quietness in the Kingdom and to acquire Prosperity and Happiness to Himself and His People And when you shall hear them press upon me that I have endeavoured to Subvert the Fundamental Laws of the Land I beseech your Lordships to call to mind how frequently and fervently I have advised the King to call for Parliaments which under God is the great Protection and Defence of the Fundamental Laws of the Kingdom To the 25th I have Answered already and to the 26th likewise The next is the 27th and for that I can say no more then that your Lordships have heard the Proofs for the Levying of Money it hath been cleared to your Lordships that nothing was done by me but by Consent of the Country with their Unanimous good liking and for their benefit and advantage Being done so and for so good ends as I trust that shall not be enforced against me and it is very strange to me why it should be expected that if two Armies be in the Field one against the other as there was at York that they should be Govern'd with as much quietness as an Atturney walking with his Writs at his Girdle betwixt the King's Bench and the Common-pleas For Armies cannot be Govern'd without some Latitude in this kind Inter arma Silent Leges rightly applyed there is truth in that But I did nothing in the Business I did nothing by Compulsion but by the voluntary liking of the Parties themselves and therefore I conceive that shall not be Charged upon me as Treason There remains now the 28th Article and that is the onely Bloody Article if it had been or could be made good that is in the whole Charge for there I am Charged out of ill and wicked purposes and indeed What can be worse than Treason to have Betrayed Newcastle into the power of the Scotch Army and likewise to have betrayed the King's Army at Newburn to a dishonourable Retreat My Lords if either of these had been true I should have saved your Lordships the labour I would have given Judgment against my self that had been certain But my Lords never was any Man more Innocent therefore they may very well wave it Have I been all this while Charged as an Incendiary and Am I now come in the Conclusion to be charged as a Confederate it is wonderful strange certainly your Articles fight one against another in this for How can I be an Incendiary in one part and a Conspirator with them that Charged me to be an Incendiary in the other part In good Faith I have not been very kindly dealt withal by my Confederates if they be Confederates to Charge me as an Incendiary that did them that Service and Help as to deliver into their hands a Town of such Consequence as that is No my Lords I wish all happiness to the Nation but I can never wish so to it as that they should take one of the King's Towns in England if I could have helped it My Lords it was lost before I had the Charge of the Army I had nothing to do in the business nor am I to give any Accompt of it nor is any thing proved And as to the Defeat at Newburn you yet fight one Article with another methinks in that too for I am charged to be the Man that delivered up Newcastle and yet all the World knows that nothing could save it from being lost but taking away from the Scots the Passages at that time So that I should use all means to prevent Men from doing that which I meant to do for them is verye all strange to me Here is no Probability and certainly little truth in the whole business as concerning my Confederating with the Scots either for the one or the other And so my Lords I am come to the end of these 28 Articles that were for my further Impeachment I have gone over them all and out of these now there remains that other Second Treason that I should be guilty of endeavouring to Subvert the Fundamental Laws of the Land in the first of those Seven Articles My Lords That those should now be Treason together that are not Treason in any one part and Accumulatively to come upon me in that kind and where one will not do it of it self yet woven up with others it shall do it Under favour my Lords I do not conceive that there is either Statute-Law or Common-Law that hath declared this endeavouring to Subvert the Fundamental Laws to be High Treason I say neither Statute-Law nor Common-Law Written that I could hear of and I have been as diligent to enquire of it as I could be And your Lordships will believe I had reason so to do And sure it is a very hard thing I should here be question'd for my Life and Honor upon a Law that is not Extant that Cannot be Shewed There is a Rule that I have read out of my Lord Cook Non apparentibus non existentibus eadem est Ratio Jesu My Lords Where hath this Fire lay'n all this while so many hundred years together that no Smoak should appear till it burst out now to consume me and my Children Hard it is and extream hard in my Opinion that a Punishment should Precede the Promulgation of a Law that I should be Punished by a Law Subsequent to the Act done I most humbly beseech your Lordships take that into Consideration for certainly it were better a great deal to live under no Law but the Will of Man and Conform our selves in Humane Wisdom as well as we could and to Comply with that Will then to live under the Protection of a Law as we think and then a Law should be made to punish us for a Crime precedent to the Law then I conceive no Man living could be safe if that should be admitted My Lords it is hard in another respect that there should be no Token set upon this Offence by which we may know it no manner of Token given no Admonition by which we might be aware of it If I pass down the Thames in a Boat and run and Split my self upon an Anchor if there be not a Buoy to give me warning the Party shall give me Damages but if it be Marked out then it is at my own peril Now my Lords Where is the Mark set upon this Crime Where is the Token by which I should discover if it be not Marked if it lie under-Water and not above there is no Humane Providence can prevent the Destruction of a Man Presently and Instantly Let us then lay aside all that is Humane Wisdom let us rely onely upon Divine Revelation for
were the King 's 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 summs of Money where is then the discharge of his Trust where is his care to advance the King's 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 justifie 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 Soveraign 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 Soveraign even Murther it self in the Case of Denwitt 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 Denwit's 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 produceagainst him which I will not examine but refer it to his own Conscience that is The Petition of Right that the King's 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 King's Authority and Warrant produced is no justification at all So then my Lords to mention the King's name to justifie 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 King's Warrant to justifie 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 justifie this under the King's Authority what is it I say but as much as in that Minister lies to six this offence to fasten this oppression upon the King himself to make it to be believed that the occasion of these their groans proceeded from his Sacred Majesty yet God be thanked the strength of that Sun is powerful enough to dispel these vapours and to disperse the cloud that he would have raised but in the mean time my Lord is nothing to be excused My Lords he may pretend zeal to the King's Service and affection to His Honour but give me leave not to believe it since when he is questioned by all the King's people and in the face of his people and offences laid to his charge which himself now confesses to be against Law he should justifie it under the King's authority that savours not of a good servant I will say no more My Lords he is charged with exercising a tyrannical power over the King's people and in his Defence your Lordships have often heard and I may not omit it that he shelters himself under the protection of the King's Prerogative though he be charged with Tyranny of the highest nature that may be see then how foul and malignant an aspect this hath My Lords what is it else but to endeavour as much as in him lies to infuse into the King's heart an apprehension that his Prerogative is so bottomless a Gulf so unlimited a Power as is not to be comprehended within the Rules of Law or within the bounds of Government for else why should he mention the Prerogative when he is charged to exceed the Law What is it else but as far as in him lies to make the people believe for I may not forget the words he hath used by his magnifying of the Prerogative that it hath a special stamp of Divinity on it and that the other part of the Government that God pleases to put into the King's hands had not that stamp upon it as if any thing done by one was to be justified by authority derived from Heaven but the other not These expressions your Lordships remember and I may not omit to put your Lordships in mind of them and I can expound them no otherwise than as much as in him lies to make the Subject believe and apprehend that which is the buckler and defence of his protection to be the two-edged sword of his destruction according to the Doctrine he Preached and that that which is the Sanctuary of their Liberty is the Snare and Engine of their Slavery And thus he hath cast a bone of contention as much as in him lay betwixt King and People to make the Subjects loath that glorious Flower of his Crown by fixing a jealousie in them that it may be a means of their Bondage and Slavery But there is so much Piety and Goodness in the King's Heart that I hope upon fair understanding there will be no such occasion but no thanks to the party that so much advanced the Prerogative in the case and condition he stands in to justify that which is laid to his Charge of High Treason My Lords I beseech you give me leave there is no greater safety to King and People than to have the Throne incircled with good Counsellors and no greater danger to both than to have it encompassed with wicked and dangerous ones and yet I
time of this Noble Lord's Defences he did not so much as crave any of our Opinions or acquaint us with any thing that tended that way and for the matter of Law Those Statutes cited by himself and offered to your Lordships Consideration were none of our stock but taken up at his own adventure I do not speak this to derogate from the pertinency of those Statutes for they shall be the subject of my Discourse but that the Noble Lord may not be disappointed of your Lordships right Conception and his own due praise My Lords It is your Pleasure we meddle not with matter of Fact and indeed we need not meddle at all with it because we hope it is already done and that sufficiently to our hands yet the matter of Law doth so naturally arise out of the matter of Fact that of necessity by your Lordships Favour we must sometimes touch on this if we speak to that Nor do we conceive it possible for us to speak advantagiously enough for the Lord Strafford 's just Defence unless the whole matter of Fact be determined as either proved or not proved or at least some states of Questions agreed upon where we may fix and settle our Arguments And so it is my Lords that I have chosen not at all to touch the Matter of law untill your Lordships shall be pleased to chalk me out a Way unless it be to clear your Judgments in one Statute only viz. 25 Ed. 3. because when the same was alledged by the Lord Strafford for his own Defence that not being convict by the letter thereof he could not be convict of Treason I remember the Salvo of that Statute was much insisted upon by those from the House of Commons as much conducing to their Ends. My Lords I will first speak of the Statute it self and then of its Salvo or Provision the Statute is That if any man shall intend the Death of the King the Queen or their Children kill the Chancellor or a Judge upon the Bench imbase the Kings Coyn or counterfeit the Broad Seal c. he shall be convicted and punished as a Traytor That the Lord Strafford comes within the letter of this Statute is not so much as once alledged nor indeed can it be with any Reason All that can be said is that by relation or argument à minore ad majus he may be drawn thither And that this cannot be I humbly offer these Considerations 1. This is a Declarative Law and such are not to be taken by any way of Consequence Equity or Construction but by the letter only otherwise they should imply a contradiction to themselves and be no more Declarative Laws but Laws of Construction Secondly This is a Penal Law and such if our Ground hitherto unquestion'd holds good can admit of no Inductions or Inferences for Penalties are to perswade the keeping of known Laws not of Laws conjectural ambiguous and by Consequence which perhaps the most Learned may not in their disputes question much less the Subject who is not to interpret the Statute doubt of in the point of Obedience nay rather without doubt he is to obey the letter of the Statute and conceive and that truly that he is not liable to the Penalty Thirdly We have a notable Statute 13 Eliz. c. 2. whereby it is declared That the bringing of Bulls from Rome to stir up the Subjects to Mutiny and Rebellion shall be punished as Treason Now if by interpretation or by consequence this sense might have been thrust upon preceding Statutes the making this had been superfluous and the persons then charged with that Crime might have been impeached of Treason even before the making of this Act. Fourthly Anno 21 Ed. 3. we have a Statute declaring That for a Servant to kill his Master is an Act of Treason and in the 27th Year of the same King a Process was framed against a man of Treason for Killing his Father grounded upon the same Argument à Majori ad Minus but it was found and the Sentence is yet in the Records that although in the 21 of Ed. 3. that Argument might have been admitted yet in the 27 it could not by reason of the Declarative Law intervening in the 25th Year And this Case comes very home to the point in hand My Lords I will not demand what kind of Offence it may be for a man to Subvert the Fundamental Laws of a Kingdom the Crime doubtless is unnatural and monstrous and the punishment must keep the same proportion only I must presume to offer these few things to your consideration 1. That one or more Acts of Injustice whether malitiously or ignorantly done can in no sense of Law be called the Subversion of the Fundamental Laws otherwise as many Judges perhaps so many Traytors It is very incident to Man's Nature to Err nor doth the Lord Strafford plead his Innocence in Oversights but in Treason 2. I do remember the Case of John de la Pool Duke of Suffolk this man in the 26 H. 6. was charged by the House of Commons with Eight Articles of Treason and those too very like to these against the Lord Strafford 1. That he had given the King bad Advices 2. That he had embased his Coyn. 3. That he had Sessed Men of War 4. That he had given out Summary Decrees 5. That he had imposed Taxes 6. That he had Corrupted the Fountain of Justice 7. That he had perswaded the King to unnecessary War 8. To the giving up Anjou in France Ovum Ovo And for all these though he was charged with High Treason for wronging the Right of the Subject and Subverting the Fundamental Lawes of the Kingdom yet after long agitation the matter was found by the Lords in Parliament not to imply Treason but only Felony Add to this another Case in the 23 H. 8. where one was charged for Subverting the English Laws and yet no Treason charged upon him Add to both these the Case of Richard Larkes pleaded at the Common-Pleas who was charged with Treason for subverting the Law but convicted only of Felony By which you may see my Lords what to this time hath been the Judgment of subverting the Lawes Thirdly It is very considerable That the Lord Strafford is not charged to have Subverted the Laws but only to have Intended to subvert the Fundamental Laws and this I conceive if there were no more might keep him free from that Statute of 25 Ed. 3. for although as touching the Life of the King the Queen and Children Intention is a Treasonable Act yet in all other things there mentioned there must be Action besides Intention For it is not said That if a Man doth intend to kill a Chancellor it shall be Treason but only if he doth kill him and if he doth Actually counterfeit the Broad Seal And although a man should prepare a Furnace make ready his Stamp and melt his Bullion yet if he gives not the King's Impress
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 Richard the 2d Number 311. and 32. where the Towns of Cambridge and Bridgwater 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 year of Edward the 1. a Writ went to the Justices in Ireland that Kingdom at that time was governed by Justices declaring That upon Petitions they were not to determine any Titles between party and party upon any pretence of profit whatsoever to the King In the Eight and twentieth year of Hen. the 6th Chap. 2. Suits in Equity not before the Deputy but in Chancery Suits at Common-Law not before him but in cases of Life in the Kings-Bench for Title of Lands or Goods in the proper Courts of the Kings-Bench or Common-Pleas This declared in the Instructions for Ireland in the latter end of King James His time and by the Proclamation in His Majesties time my Lord took notice of them called the Commissioners narrow-hearted Commissioners The Law said He should not thus proceed in the subversion of it he saith he will and will enforce Obedience by the Army this is as much in respect of the end as to endeavour the overthrow of the Statutes of Labourers of Victuals or of Merton for Inclosures here is a Warrant against the King in respect of the end Secondly In respect of the Actions whether there be either a Levying of War or an open Deed or both My Lords There was an Army in Ireland at that time of Two thousand Horse and Foot by this Warrant there is a full designation of this whole Army and an Assignment of it over to Savil for this purpose The Warrant gives him power from time to time to take as many Soldiers Horse and Foot with an Officer throughout the whole Army as himself shall please here is the terror and awe of the whole Army to enforce Obedience My Lords If the Earl had Armed two thousand men Horse and Foot and formed them into Companies to this end your Lordships would have conceived that this had been a War It 's as much as in the Case of Sir Thomas Talbot who armed them in Assemblies This is the same with a breach of Trust added to it That Army which was first raised and afterwards committed to his Trust for the Defence of the People is now destined by him to their destruction This assignation of the Army by his Warrant under his Hand and Seal is an open Act. My Lords Here 's not only an open Act done but a Levying of War Soldiers both Horse and Foot with an Officer in Warlike manner assessed upon the Subject which killed their Cattel consumed and wasted their Goods Your Lordships observe a great difference where six men go upon a design alone and when sent from an Army of six hundred all engaged in the same service so many were sent as were sufficient to execute the Command if upon a poor man fewer more upon a rich if the six had not been able the whole Army must make it good The reason that the Sheriff directed alone or but with one Bayliff to do execution is because he hath the Command of the Law the King 's Writ and the Posse Comitatus in case of resistance Here 's the Warrant of a General of an Army Here 's the Posse Exercitus the Power of the Army under the awe of the whole Army six may force more then sixty without it and although never above six in one place yet in several parts of the Kingdom at the same time might be above sixty for sessing of Soldiers was frequent it was the ordinary course for execution of his Orders The Lord-Lieutenant of a County in England hath a design to alter the Laws and Government nay admit the design goes not so high he only declares thus much he will order the Freeholders and Estates of the Inhabitants of the County at his own will and Pleasure and doth accordingly proceed upon Paper-Petitions foreseeing there will be disobedience he grants out Warrants under his Hand and Seal to the Deputy-Lieutenants and Captains of the Trained-bands that upon refusal they will take such number of the Trained-bands through the County with Officers as they shall think good and lay them upon the Lands and Houses of the refusers Soldiers in a Warlike manner are frequently sessed upon them accordingly your Lordships do conceive that this is a Levying of War within the Statute The Case in question goes further in these two Respects That it is more against the declared Law in Ireland not only against the common-Common-Law but likewise against the Statute of 28 Hen. 6th against the Acts of the Commissioners against Proclamations in persuance of the Law against that himself took notice of narrow-hearted Commissioners In this that here was an Army the Soldiers by profession Acts of Hostility from them of greater terror than from Freeholders of the same County My Lords I have now done with the First of Levying of War The Second is the Machination the advising of a War The Case in this rests upon a Warrant to Savile and the advice in the 23 Article The Warrant shews a resolution of imploying the old Army of Ireland to the oppression of his Majesties Subjects and the Laws In the 23d Article having told his Majesty that he was loosed and absolved from Rules of Government and might do every thing which Power might admit he proceeded further in Speech to his Majesty in these words You have an Army in Ireland you may employ to reduce this Kingdom My Lords Both being put together there 's a Machination a practise and advice to Levy War and by force to oppress and destroy his Majesties Subjects It hath been said the Statute of the 25 Edw. 3. is a penal Law and cannot be taken by equity and construction there must be an actual War the Statute makes it Treason to counterfeit the King's Coin the conspiring the raising of Furnaces is no Treason unless he doth Nummum percutere actually Coin My Lords This is only said not proved the Law is otherwise the 19th Hen. 6. fol. 49. there adjudged That the conspiring and aiding to
counterfeit Coin was Treason and Justice Stamford fol. 331. 44. is of opinion that this or the conspiring to counterfeit the Great Seal is Treason The Statute is If any shall counterfeit the Great Seal conspiring to do it by the Book is Treason if a man take the Broad Seal from one Patent and put it to another here is no counterfeiting it 's tantamount and therefore Treason as is adjudged in 2 Hen. 4. fol. 25. and by the opinion of Stamford If Machination or Plotting a War be not within that clause of the Statute of Levying of War yet is within the first of compassing the death of the King as that which necessarily tends to the destruction both of King and People upon whose safety and protection he is to engage himself That this is Treason hath been adjudged both after the Statutes of 1 Hen. 4. Cap. 10. and 1 Queen Mary so much insisted upon on the other side In the Third year of King Henry 4th one Balshal coming from London found one Bernard at Plough in the Parish of Osley in the County of Hertford Bernard asked Balshal what news he told him that the news was That 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 pursuance 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 Object 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 Answ that was a Machination of War against the People and Laws 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 Practise 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 Owen's Case of Sandwich in Kent in King James His time in the 13th year of His Reign at Sandwich in Kent spake these words That King James 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 Supream 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 only 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 Judgment then he that I should stretch out my hand against the Lords Anointed 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 10 of Hen. 7 in these of Burton and in the Duke of Norfolk's 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
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 pains 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 of 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 Comon-Law-Treasons are expresly kept on Foot If it be Asked What good this Statute doth if it take not away the common-Common-Law Treasons 1. It takes away all the Treasons made by Act of Parliament not only since the first of Hen. 4. which were many but all before 1 Hen. 4. even until the 25 E. 3. by express words 2. By express words it takes away all declared Treasons if any such had been in Parliament Those for the future are likewise taken away so that whereas it might have been doubted whether the Statute of the 1 H. 4. took away any Treasons but those of the 22d and 23d years of R. 2. This clears it both for Treasons made by Parliament or declared in Parliament even to the time of making the Statute This is of great use of great security to the Subject so that as to what shall be Treason and what not the Statute of 25 E. 3. remains entire and so by consequence the Treasons at the Common-Law Only my lords it may be doubted whether the manner of the Parliamentary proceedings be not altered by the Statute of 1 H. 4. Chap. 17. and more fully in the Parliament Roll Number 144 that is whether since that Statute the Parliamentary Power of Declaration of Treasons whereby the inferior Courts Receive Jurisdiction be not taken away and restrained only to Bill that so it might operate no further then to that particular contained in the Bill that so the Parliamentary Declarations for after-times should be kept within the Parliament it self and be extended no further Since 1 H. 4. we have not found any such Declarations made but all Attainders of Treason have been by Bill If this be so yet the Common-Law Treasons still remaining there is one and the same ground of reason and equity since the 1 H. 4. for passing a Bill of Treason as was before for declaring of it without Bill Herein the Legislative power is not used against my Lord of Strafford in the Bill it s only the Jurisdiction of the Parliament But my Lords because that either through my mistaking of the true grounds and reasons of the Commons or my not pressing them with apt agreements and presidents of former times or that perchance your Lordships from some other Reasons and Authorities more swaying with your Lordships Judgments then these from them may possibly be of a contrary or dubious opinion concerning these Treasons either upon the Statutes of 25 E. 3. 18 H. 6. or at the Common-Law My Lords If all these five should fail they have therefore given me further in Command to declare to your Lordships some of their Reasons why they conceive that in this Case the meer Legislative Power may be exercised Their Reasons are taken from these three grounds 1. From the nature and quality of the Offence 2. From the Frame and Constitution of the Parliament wherein this Law is made 3. From Practices and Usages of former times The horridness of the Offence in endeavouring the overthrowing the Laws and present Government hath been fully opened to your Lordships heretofore The Parliament is the Representation of the whole Kingdom wherein the King as Head your Lordships as the most Noble and the Commons the other Members are knit together into one Body Politick This dissolves the Arteries and Ligaments that hold the Body together the Laws He that takes away the Laws takes not away the Allegiance of one Subject alone but of the whole Kingdom It was made Treason by the Statute of 13 Eliz. for Her time to affirm that the Laws of the Realm do not bind the Descent of the Crown no Law no Descent at all No Laws no Peerage no Ranks or Degrees of men the same condition to all It 's Treason to kill a Judge upon the Bench this kills not Judicem sed Judicium He that borrowed Apelles and gave Bond to return again Apelles the Painter sent him home after he had cut off his Right Hand his Bond was broken Apelles was sent but not the Painter There are Twelve Men but no Law there 's never a Judge amongst them It 's Felony to Imbezle any one of the Judicial Records of the Kingdom this at once Sweeps them all away and from all It 's Treason to Counterfeit a Twenty shillings piece here 's a Counterfeiting of the Law we can call neither the Counterfeit nor true Coin our own It 's Treason to Counterfeit the Great-Seal for an Acre of Land no property hereby is left to any Land at all nothing Treason now either against King or Kingdom no Law to punish it My Lords If the Question were Asked at Westminster-Hall Whether this were a Crime punishable in Star-Chamber or in the Kings-Bench by Fine or Imprisonment they would say it went higher If whether Felony they would say that 's for an Offence only against the Life or Goods of some one or few persons It would I believe be answered by the Judges as it was by the Chief Justice Thurning in 21 R. 2. that though he could not Judge the Case Treason there before him yet if he were a Peer in Parliament he would so Adjudge it My Lords if it be too big for those Courts we hope it 's in the right way here 2. The second Consideration is from the Frame and Constitution of the Parliament the Parliament is the great Body Politick it comprehends all from the King to the Beggar if so My Lords as the Natural so this Body it hath power over it self and every one of the Members for the preservation of the whole It 's both the Physitian and the Patient If the Body be distempered it hath power to open a Vein to let out the corrupt blood for curing it self if one Member be Poysoned or Gangred it hath power to cut it off for the preservation of the rest But my Lords it hath often been inculcated that Law-makers should imitate the Supreme Law-giver who commonly warnes before he strikes The Law was promulged before the Judgment of death for gathering the Sticks No Law no Transgression My Lords To this rule of Law is Frustra legis auxilium invocat qui in legem
rather what was safe than what seemed just preferring the outward peace of my Kingdoms with men before that inward exactness of Conscience before God And indeed I am so far from excusing or denying that complyance on my part for plenary consent it was not to his destruction whom in my judgment I thought not by any clear Law guilty of death that I never did bear any touch of Conscience with greater regret which as a sign of my repentance I have often with sorrow confessed both to God and Men as an Act of so sinful frailty that it discovered more a fear of man than of God whose Name and Place on Earth no man is worthy to bear who will avoid inconveniencies of State by Acts of so high injustice as no publick convenience can expiate or compensate I see it a bad exchange to wound a mans own Conscience thereby to salve State sores to calm the storms of popular discontents by stirring up a Tempest in a mans own bosom Nor hath Gods Justice failed in the event and sad consequences to shew the World the fallacy of that Maxim Better one man perish though unjustly than the people be displeased or destroyed For in all likelihood I could never have suffered with my people greater calamities yet with greater comfort had I vindicated Strafford's innocency at least by denying to Sign that destructive Bill according to that Justice which my Conscience suggested to me then I have done since I gratified some mens unthankful importunities with so cruel a favour and I have observed that those who counsell'd me to Sign that Bill have been so far from receiving the rewards of such ingratiatings with the People that no men have been harassed and crushed more than they he only hath been least vexed by them who counselled me not to consent against the Vote of my own Conscience I hope God hath forgiven me and them the sinful rashness of that business To which being in my Soul so fully Conscious those Judgments God hath pleased to send upon me are so much the more welcome as a means I hope which his mercy hath sanctified so to me as to make me repent of that unjust Act for so it was to me and for the future to teach me that the best rule of policy is to prefer the doing of Justice before all enjoyments and the peace of my Conscience before the preservation of my Kingdoms Nor hath any thing more fortified my resolutions against all those violent importunities which since have sought to gain a like consent from me to Acts wherein my Conscience is unsatisfied than the sharp touches I have had for what passed me in my Lord of Straffords business Not that I resolved to have employed him in my affairs against the advice of my Parliament but I would not have had any hand in his death of whose guiltiness I was better assured than any man living could be Nor were the crimes objected against him so clear as after a long and fair hearing to give convincing satisfaction to the major part of both Houses especially that of the Lords of whom scarce a third part were present when the Bill passed that House And for the House of Commons many Gentlemen disposed enough to diminish my Lord of Strafford 's Greatness and Power yet unsatisfied of his Guilt in Law durst not condemn him to dye who for their integrity in their Votes were by posting their Names exposed to the popular Calumny Hatred and Fury which grew then so exorbitant in their clamors for Justice That is to have both my self and the Two Houses Vote and do as they would have us that many 't is thought were rather terrified to concur with the condemning party than satisfied that of right they ought so to do And that after Act vacating the Authority of the precedent for future imitation sufficiently tells the world that some remorse touched even his most implacable Enemies as knowing he had very hard measure and such as they would be very loath should be repeated to themselves This tenderness and regret I find in my Soul for having had any hand and that very unwillingly God knows in the shedding one mans Blood unjustly though under the colour of the Formalities of Justice and pretences of avoiding publick Mischiefs which may I hope be some Evidence before God and Man to all Posterity that I am far from bearing justly the vast load and guilt of all that blood which hath been shed in this unhappy War which some men will needs charge upon me to ease their own Souls who am and ever shall be more afraid to take away any mans life unjustly than to lose my own Nor was this all for besides what he said at his own Death he acquainted Doctor Shelden afterwards Archbishop of Canterbury with his Resolution if ever he was in a Condition to perform his Vows of which this was one To do publick Pennance for the injustice he had suffered to be done to the Earl of Strafford as may be large be seen in his Life written by Dr. Perinchief fol. 119. Nothing was sounded in the Kings Ears but Fears Terrors and Threatnings of Worse and Worse Tumults and Rebellions from every quarter of the City and every corner of the Kingdom and indeed the King who had seen the effects of them both in Scotland and England could not but have very terrible apprehensions of them At last having wrastled him breathless he was vanquished by Importunity and necessity and yielded to the Passing of these two Fatal Bills by Commission the one for the Earl's and the other as it proved in the Event for his own Execution Upon Monday May the 10th Monday May 10. Bill of Attainder passed by Commission Mr. Maxwell Gentleman-Usher to the Lords came to acquaint the Commons with the good news that His Majesties Assent to the two Bills was to be given by Commission and that their Lordships did expect Mr. Speaker and the House of Commons to come up It seems the Gentleman was something transported as sure all the world was out of their wits for he came without the Black Rod and entred without being called in at which there was Exceptions taken but the News he brought was so agreeable that the transport of it did him the favour to take off the Resentments of the House who at another time would not have pocketted up such an affront with silence The Commission was granted under the Great-Seal of England directed unto the Lord Privy-Seal Lord Great Chamberlain Lord Steward The manner of passing Bills by Commission or any two of them for passing the Royal Assent to two Bills the one intituled An Act of Attainder of Thomas Earl of Strafford of High-Treason the other An Act to prevent the Inconveniencies which may happen by the untimely Adjourning Proroguing or Dissolving of this present Parliament The Lords being all in their Robes and the Commissioners sate upon a Form standing across the House
time rested under great deliberation at last in a time when a great part of the Peers were absent by reason of the tumults and many of those who were present protested against it the said Bill passed the House of Peers and at length His Majesty the late King CHARLES the I. of Glorious Memory granted a Commission for giving His Royal Assent thereunto which nevertheless was done by His said Majesty with exceeding great sorrow then and ever remembred by him with unexpressible grief of Heart and out of His Majesties great Piety he did publickly 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 May his and all the Innocent Blood that was shed after it for ever sleep and not like the Souls under the Altar call out Quousque Domine crying for Vengeance upon this Nation The Poets of the Age were not wanting to Embalm the Memory of so great a Mecaenas with Elegies and Epitaphs though such was the little Envy of his Enemies that they did not only suppress but punish the Printers and Publishers of them one Holmer being clapt up in the Gate-House by a Vote of the Commons for Printing Scandalous Verses upon the Earl of Strafford Among the rest Cleveland then great in Reputation bestowed these 2 Epitaphs upon this Noble Earl Epitaph upon the Earl of Strafford HEre lies Wise and Valiant Dust Huddled up 'twixt fit and just Strafford who was hurried hence 'Twixt Treason and Convenience He spent his time here in a Mist A Papist yet a Calvinist His Princes nearest Joy and Grief He had yet wanted all Relief The Prop and Ruin of the State The Peoples violent Love and Hate One in extremes lov'd and abhorr'd Riddles lye here And in a word Here lies Blood and let it lye Speechless still and never cry Epitaphium Thomae Comitis Straffordii c. EXurge Cinis tuumque solus qui potis es scribe Epitaphium Nequit Wentworthi non esse facundus vel Cinis Effare marmor quem cepisti comprehendere Macte exprimere Candidius meretur Vrna quam quod rubris Notatum est literis Eloquium Atlas Regiminis Monarchici hic jacet lassus Secunda Orbis Britannici Intelligentia Rex Politiae Prorex Hiberniae Straffordii Virtutum Comes Mens Jovis Mercurii ingenium lingua Apollinis Cui Anglia Hiberniam debuit seipsam Hibernia Sydus Aquilonicum quo sub rubicunda vespera occidente Nox simul dies visa est dextroque oculo flevit laevoque laetata est Anglia Theatrum Honoris itemque scena calamitosa Virtutis Actoribus morbo morte invidia Quae ternis animosa Regnis non vicit tamen Sed oppressit Sic inclinavit Heros non minus caput Belluae vel sic multorum Capitum Merces furoris Scotici praeter pecunias Erubuit ut tetegit securis Similem quippe nunquam degustavit vanguinem Monstrum narro fuit tam infensus legibus Vt prius legem quam nata foret violavit Hunc tamen non sustulit lex Verùm necessitas non habens legem Abi Viator Caetera memorabunt posteri Which for their sakes who understand not the Language I have thus Translated into English though not without loss to many of those Beauties and Graces which are so peculiar to the Latin as not to be expressed in our Language An Epitaph upon Thomas Earl of Strafford c. Rise Noble Dust Thou only canst unto thy self be just Write thine own Epitaph speak thy wonted sence Great Wentworth's Ashes can't want Eloquence Although his Innocence deserves an Elegy Whiter then Redstreak Marble can supply Yet weeping Marble tell Who does beneath thee dwell The Atlas of Monarchique State lies here The second Mover of Great Britains Sphere The King of Politiques Irelands Deputy And in a word Of Strafford and of Virtue the Illustrious Lord Does underneath this Marble breathless lye The mighty Jove did his great mind bestow and nimble Mercury his Wit Apollo on his Tongue did sit Ireland her self Englandto him did Irelandowe Bright Northern Star When in a Bloody Cloud he set Night and Day together met England did seem of her right Eye bereft To weep and laugh untowardly with what was left The Scene of Honour and the fatal Stage Of Virtuous and Distressed Innocence The Actors Envy and Three Kingdoms rage against them what Defence Opprest but yet not overcome he stood Vnconquered still and met the Rolling Flood Thus the Illustrious Hero bow'd For such he was at least He bow'd his Noble Head unto the Beast Of many Heads the Croud Into the Bargain thrown Of ready Money then paid down To Scottish Traytors to Invade the Crown The blushing Ax amazed stood It nere before had drunk such Blood A wonderous thing I tell Illustrious Strafford fell Obnoxious to the Law strange Crime Before the Law was made to punish him How Strafford dy'd then would you know Lawless Necessity gave the Fatal blow Pass on O Traveller wee 'd best Here leave him and Posterity to weep the Rest It will possibly be some satisfaction to the Curiosity of the Reader to see those Papers of Sir Henry Vane's which seem to have been of such considerable import as to have cast the Beam in the Fate of this great Person and indeed I had done it in its proper place had those Papers then come to my hands but however better late then not at all and if they contribute to the satisfaction of the Inquisitive they are to ow the Obligation as upon all occasions I shall do to the kindness of the Right Honourable Sir Francis North Late Lord Chief Justice of the Common-Pleas and now Lord-Keeper of the Great Seal of England who was pleased to furnish me with a Transcript of some Memoirs of the late Earl of Manchester's the Originals being written with the said Earls own
But Obedience due to Kings is only for certain Respects of Order and Policy 11. 11. Ibidem That those very Church-men that are Born and Inhabit in Soveraign Princes Countries are notwithstanding not their Subjects and cannot be Judged by them although they may Judge them 12. 12. Ibidem And that the Obedience that Church-men give to Princes even in the meanest and meer Temporal Things is not by way of any necessary Subjection but only out of Discretion and for Observation of good Order and Custom Here we find what base Estimation Prelates had of Princes may we not then justly except against their delivery as it is by them urged No Bishop No King Whoever will have the Patience to read over this long and tedious Speech and compare it with the Histories of those Authors which he has gleaned it from may possibly find the matters of Fact either mistaken or falsly represented nor indeed can we give intire credit to all that was written by the Monks of those Times who being great Enemies to the Bishops may be supposed very partial in relating some Passages of their Lives however it is not my Province to vindicate the Ill Actions of any sort of men whatever and is confessedly known that several of those Bishops as particularly Becket the famous Romish Saint were notorious Traytors and ill men But that which I think ought not to be passed by without animadversion is the Weakness of this Gentleman's Argumentation for it is evident that the main stress of his Argument is from the Actions of former ill Bishops to prove the necessity not only of taking from them all Temporal Power and Estate but also to Abolish and Extirpate the very Office for when ever he or any of his Party talk of Reformation as he does when he tells you They were degenerated from the Primitive Institution and that he only wishes there were Reformation not Demolishing but Amendment and Restitution the Reader is to Understand that by those soft Words of Reformation Amendment Restitution and Primitive Institution is meant the Utter Extirpation of Episcopacy as then it stood and the Reducing it to the Geneva standard which with them was a Restitution of it to its Primitive Institution Now how weak and inconsequential the Argument is from the Abuse of any Office Power Dignity Trust or Order to argue the Abolition or Taking it away there needs little more to be said then that Admitting the truth of this for a Practicable and Necessary Maxim all Laws Government and Order must cease in the World for it will as necessarily follow That because there have been ill Kings and Parliaments Magistrates and Laws Therefore they ought wholly to be taken away as because there have been ill Bishops that therefore the whole Order ought to be Abolished And indeed a few Years succeeding brought the same Consequences and Effects upon the King and House of Lords as it had done upon the Bishops who for Mal-administration and pretended Miscarriages by the Usurpation of these soft Reformers and Reducers of Men to their Primitive Institution were both Exauctorated and discharged of any share in the Government and many of them with the King himself of his Royal Crown and Innocent Lives verifying literally to a tittle what he takes such pains to confute in the Close of his Speech as a false and foolish Maxim No Bishop No King And certainly this Gentleman ought to have considered that Ecclesiastical Persons have in all Ages in all Places of the World under all Governments among all Religions Pagan Jew Christian Mahometan universally had a share in the Administration of Civil Affairs and particularly in Legislation so far as the preparing of Laws for the Royal Impress amounts to and with very good reason by a Rule which upon some Occasions these Gentlemen have a Great Veneration for Quod tangit Omnes ab Omnibus debet tractari and Ecclesiasticks as well as others being to be bound by Laws ought to have their part in preparing and consenting to them And further he ought to have considered that Under the Jewish Oeconomy instituted by the Only Wise God himself the chief Administration of all Civil as well as Religious Affairs was Vested in the Ecclesiasticks And for our English Constitution the Laws had incorporated the Episcopal Order into the Very Fundamentals of the Government making them one of the Three Estates of the Land as they are by several Acts declared and to their Sitting not only in Parliament but in all Great Councels during the Saxon Government all Records so long as we have any unanimously inform us so that they had an immemorial Prescription for their Right and it was an ill presage what the future Reformation would prove when it was begun with the over-turning of one of the three Fundamental Pillars upon which the Weighty Frame of the Government was built After all the long Harangue of the ill Actions of former Bishops in the times of Popery when he comes in the period of his Speech as one would reasonably have Expected to speak something to purpose of the Protestant Bishops instead of that as if he had designed to Gratifie the Papists he falls to calumniate the first Reformers Cranmer Ridley c. as factious turbulent Traytors and Incendiaries and when he comes to those of his own time the Pope of Lambeth and his Cardinals Wren and others as he is pleased to stile the Archbishop and Bishops he makes a most hideous Out-cry of Popery Arminianism Idolatry and what not of irreligion to the Deity mischief and danger to the King and prejudice to the People and Kingdome without offering so much as one single testimony or proof by any Action Word or Writing of theirs to support so gross and black a Charge But this was a Method these Worthy Patriots had learnt from the Jesuits Fortiter calumniare aliquid haerebit to throw all the dirt imaginable upon the Albs and Lawn Sleeves of the Bishops not doubting but some of it would stick to them in the opinion of the People and they were such great Masters in the Art of Blackening that I think even the Great Master of the Black Art who has his name from calumniating and falsly accusing the Innocent might have been their Schollar as doubtless he was their Tutor in this hellish Trade But to leave Mr. Thomas with his long Speech let us return to the other Affairs the Faction was now under great Fears of both the Northern Armies who were not only Discontented for want of Pay both Scots and English but several of the latter seeing Evidently whither this procedure of the Anti-Episcopal Faction tended had some warm thoughts about them to endeavour to prevent it while they had the power in their hands knowing that as soon as possible the King would be stript of this Power and those Forces be Disbanded but the matter it seems was either not so well contrived or so secretly managed but that
the Report The Limitations were That all those who had suffered damage by the Customers either in Goods or otherwise might notwithstanding this Composition take their remedy at Law for Reparation And that the petty Customers should also come in upon Composition and then have the benefit of the Act of Oblivion An Order was also sent to the Master and Wardens of the Company of Vintners to command that notice be given to the whole Company that the Patent of Abel and Kilvert being Voted Illegal they should sell their Wines as formerly viz. French Wines at Six-pence per Quart and Spanish Wines at Twelve-pence the Quart This day a Commission was presented to the House of Lords Several private Bills passed by Commission directed to the Lord Privy Seal Lord Great Chamberlain and to Earl Marshal or any two of them to give the Royal Assent to three private Bills viz. One Entituled An Act to enable the Marquess of Winton to grant Estates for three Lives or 21 years c. of Lands in the County of Southampton c. reserving the old Rents Another Entituled An Act for Naturalization of Dorothy Spencer Daughter of Henry Lord Spencer Baron of Wormleighton And the third Entituled An Act for the enabling a Sale and Leasing of Lands for payment of the Debts of Thomas late Earl of Winchelsea The Lords Commissioners in their Robes sitting upon a Form set across the House between the State and the Keeper's Woolsack the House of Commons being sent for came with their Speaker then the Clerk of the Parliament presented upon his knee the Commission unto the Lords Commissioners and the Lord Privy Seal after he had acquainted the Peers and the House of Commons with his Majesties pleasure herein he delivered the Commission to the Clerk of the Parliament who carried it to his Table and read it which being done the Clerk of the Crown read the Titles of each Bill severally after which the Clerk of the Parliament pronounced the Royal Assent severally and then the Commons returned to their own House The Commons being returned Mr. Taylor a Barrister Thursday May 27. Mr. Taylor Burgess for Windsor expelled the House and Burgess for the Burrough of Old Windsor was expelled the House and Voted uncapable of ever being a Member of Parliament to be committed Prisoner to the Tower during the pleasure of the House to be carried down to Windsor there to make publick Recantation of what he had spoken and from thence to be returned back to the House of Commons to receive further Sentence And it was Ordered That a Writ should be presently issued out for a new Election in his Room The words for which he was Expelled and thus severely treated were attested by John Hall Mayor of Windsor Mr. Broughton and Mr. Waller That Mr. Taylor should in discourse about the death of the Earl of Strafford say That the House of Commons had not his Vote to the Bill of Attainder against Thomas Earl of Strafford for that to do it before the Lords had finished the Trial upon the Articles of Impeachment Exhibited by the Commons against him was to commit murther with the Sword of Justice An Act for the utter abolishing and taking away of Arch-Bishops Bill for Root and Branch read twice Bishops their Chancellours and Commissaries Deans Deans and Chapters Arch-Deacons Prebendaries Chanters and Canons and other Under-Officers out of the Church of England was read the first time and upon the debate of the House for a second reading the House was divided Yeas 139 Noes 108 so the Bill was read the second time and committed to a Committee of the whole House A Bill was also read the first time for granting to his Majesty the Duty of Tonnage and Poundage Bill for Tonnage Poundage read twice Holmer the Printer bailed and a second time in the Afternoon This day Holmer the Printer who was committed to the Gate-house for printing an Elegy upon the Earl of Strafford which then were called scandalous Verses was admitted to Bail An Estimate of the Debt of the Kingdom was this day brought into the House by the state of which Account it appeared Friday May 28. The state of the publick Debts Bill for raising mony and disbanding the Armies read a second time Bills against H. Commission Court and Pluralities engrossed Saturday May 29. That there was a Debt of seven hundred seventy three thousand nine hundred pounds due to the two Armies the City and several private persons who had lent mony upon Parliamentary Credit which brought on the Consideration of the Bill for Raising Mony and Disbanding the Armies which was read a second time Mr. Rigby Reports the Bills for taking away the High Commission Court and against Pluralities with the Amendments which were both Ordered to be engrossed Little of moment passed this day in the Commons House most of it being spent in debates about Raising Mony to defray the great Debt into which the Kingdom was plunged by the coming in of the Scottish Army to be assistant in the Glorious Reformation of Religion and Establishment of the Subjects Liberty for which guilded Words the Nation was to part with their real Treasure And it was but an untoward Omen how expensive these great Patriots were like to prove for the future who began so early to shew the People that little less than a Million of Mony must be laid down as the Earnest for this imaginary purchase It was this day Ordered Several Lords examined about the Conspiracy of the Army That the Earls of Newcastle and Carnarvan and the Lord Bishop of Chichester shall be attended with this Order and that their Lordships be desired to repair unto the Lords Committees appointed by this House to take the Examinations concerning certain late practises concerning the Army in the North at Two of the Clock this Afternoon at the Lord Keeper's Lodgings near the Parliament House to be examined by them A Case having been depending between Thomas Nash Nash and Kynnaston's Case determined in a Writ of Error and Charles Kynnaston about Errors in a Writ of Error and Council having been fully heard at the Bar of the Lords House on both sides their Lordships Voted the said Errors alledged by the Plaintiff Nash to be frivolous and thereupon awarded the following Order upon it In Suprema Curia Domini Regis Parliament ' Inter Thomam Nash Quer ' Carolum Kynnaston Defendentem in placito transgr ' ejectionis Firmae Super quo visis premissis per Cur ' Parliament ' Domini Regis nunc hic diligent ' Examinat ' plenius intellectis tum Record ' Process ' predict ac Judic ' predict ' super eisdem Reddit ' quam predict ' Causa pro Errore prodict ' predict ' Thom ' in Forma predict ' assignat ' allegat ' videtur predicta suprema Curia Parliament ' hic quoad Record predict in nullo vitiosum aut defectivum
released from their Imprisonment in the Tower but nothing was done upon it The Earl of Northumberland sent a Message to the Commons to let them know he had received a Letter from his Brother Mr. Henry Percy and that if they would send some of their House they should have an account of it Whereupon Mr. Hollis and some others were sent to his Lordship The Letter was in these words WHat with my own innocency Mr. Henry Percy 's Letter to the Earl of Northumberlan concernin the business of the Army and the violence I hear is against me I find my self much distracted I will not ask your Counsel because it may bring prejudice upon you but I will with all faithfulness and truth tell you what my part hath been that at least it may be cleared by you whatsoever becomes of me When there was 50000 l. designed by the Parliament for the English Army there was as I take it a sudden demand by the Scots at the same time of 25000 Pounds of which there was 15000 l. ready this they pressed with much necessity as the Parliament after an order made did think it fit for them to reduct 10000 l. out of the 50000 l. formerly granted upon which the Souldiers in our House were much Scandalized amongst which I was one and sitting by Wilmot and Ashburnham Wilmot stood up and told them if that the Scots would procure Money he doubted not but the Officers of the English Army might easily do the like but the first order was reversed notwithstanding and 10000 l. given to the Scots this was the cause of many discourses of dislike amongst us and came to this purpose that they were disobliged by the Parliament and not by the King this being said often to one another we did resolve that Wilmot Ashburnham Pollard Oneale and my self to make some expressions of serving the King in all things he would command us that were Honourable for him and us being likewise agreeing to the Fundamental Laws of the Kingdom that so far we would Live and Die with him this was agreed upon with us not having any Communication with others that I am coupled now withal and further by their joynt consent I was to tell his Majesty thus much from them but withal I was to order the matter so as the King might apprehend this as a great Service done unto him at this time when his Affairs were in so ill a condition they were most confident That they would engage the whole Army thus far but farther they would undertake nothing because they would neither infringe the Liberties of the Subjects nor destroy the Laws to which I and every one consented and having their Sense I drew the Heads up in a Paper to the which they all approved when I read it and then we did by an Oath promise one another to be constant and secret in all this and did all of us take that Oath together then I said Well Sirs I must now be informed what your particular desires are that so I may be the better able to serve you which they were pleased to do and so I did very faithfully serve them therein as far as I could this is the truth and all the truth upon my Soul In particular discourses after that we did fall upon the Petitioning to the King and Parliament for Moneys there being so great Arrears due to us and so much delays made in the procuring of them but that was never done 1. Concerning the Bishops Functions and Votes 2. The not Disbanding of the Irish Army until the Scots were Disbanded too 3. The endeavouring to settle his Majesties Revenue to that proportion as 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 purposed by me but inclined a way more sharp and high not having limits either of Honour or Law I told the King he might be pleased to consider with himself which way 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 the justice of the other made the King tell me he would leave all thoughts of other propositions but ours as things not practiceable but desired notwithstanding that Goring and Jermin 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 Jermin 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 Jermin and Goring were very earnest Suckling should be admitted which we did all decline and were desired by all our men to be resolute in it which I was and gave many reasons Whereupon Master Goring made answer he was engaged with Suckling his being employed in the Army but for his meeting with us they were contented to pass it by Then we took up again the ways which were proposed which took great debate and theirs differed from ours in violence and height which we all protested against and parted disagreeing totally yet remitted it to be spoken of by me and Jermin to the King which we both did And the King constant to his former resolutions told him these ways 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 Commanders were to be disposed of for if he had not a condition worthy of him 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 Master 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 Master Chidley had his instructions then did he go to Portsmouth pretending to be absent when this was aworking we all desired my Lords of Essex and Holland that if
forbear doing to be Great to be Rich had he Children or Kindred or had none This highly unjust Judge by continuing sins maintained his Actions to preserve himself he knows to be found guilty in one of his offences the penalty of the Law for it therefore covers the offences committed with inventing and acting other For a Judge to be Unjust more hurts the Publique than any other he is not suspected What a Judge doth is looked on as a thing that ought to be done The most pernicious Great Man that by cunning hath got to himself the Heart and Tongue of his Prince his ill acts have dyed with him if not taken up by others and then they walk in darkness No man will justifie what he doth by saying Such a Favorite did it but the Unjust Judgments of this Judge were given in the Noon-day were done in the face of the whole Kingdom in the hearing of such as might carry the News to all Parts of the Realm and was therefore done His Unjust Judgments were our Records We have seen Wicked Great Men most Craftily Politique they hated our Laws yet not meeting with Active Judges moulded to their purposes they and their acts have dyed the Realm flourished but of late others less Politick meeting with most Unjust Judges every way as ill as they could wish them to be then did the Kingdom faint under the Load of its Misery did long struggle now it 's rising I assure my self your Lordships will assist to take off the Burden If the Designs of some would not have such a man to be at liberty a Warrant from some Lords of the Council would soon have laid him in Prison and given no cause had he moved this Judge to be Discharged or Bailed he could have obtained neither if their wayes would not have endured that man to live a Judge reviling the Prisoner and his Councel that moved for his Discharge or Bail joyned with the hate of some Great Man might soon have moved a Gaoler for unwholsome Rooms and Lodging and ill Dyet for his Prisoner and they may soon take Life away month July 1641. Offenders in Prisons are looked after to be safe only such are brought in by Power against Law are abused Had a great Man desired the Estates of others the breach of a Proclamation might readily have been charged against them in the Star-Chamber but they it may be could have answered and cleared themselves and proved their Answers by Testimonies had they been referred to this Judge he would have expunged the one suppressed the other Then followed Fines to the value of their Estates or more then Imprisonments of course till they paid such Fines your Lordships have heard what this Judge did to the Sope-boylers The Country-man followed the Plough and his thinking he was assured of his Right of Property and Liberty gave him ability to do it He believed his Neighbour his Landlord his King could not take his Goods from him without his consent He knew the usual payments by Law and in Extraordinary Causes thought to have that Care to choose such for his Knights of his Shire or for his Burgesses as might be mindful of the cause of payment and of his Estate This man hath heard the Opinions and Judgment of this Judge hath seen his Goods taken from him without his or his Knights of the Shire or Burgesses consent or advise These have made him his Wife and Children to joyn in tears to wish they had never been born they have made them think on many wayes to keep safe that Estate which was yet left them have made them desire to sell all their Goods and hide the Money but then he remembers this Judge how that he shall be carried to Prison and remain there if he pay not what please others to assess him Then they think idle persons the drones and moths of the Common-wealth to be a wise people who to be unworthy to live they formerly conceited They expect and can think of nothing but to be Beggars Where publick and enormous Offences have been committed eminent and notorious punishments must be such will make your Lordships Proceedings highly esteemed else there will be so many offenders as none without danger can be punished This Judge Subverting our Laws took away the Hearts of many he subscribed for the Kings Power but so as he put him on taking his Subjects Goods and of all other such ways be most dangerous For we know his Majesty is not the last that suffers and is not the King worth many Thousands The place of this Judge was to have given and preserved to the King the Hearts of his Subjects the due execution of the Laws had done this and when such notice is taken of a Prince none will conspire against him who cannot fain to themselves Safety before or after any fact committed Forraign Enemies will not Invade his Kingdoms Thus hath his Majesty now got our Hearts and will for ever have them This Judge is to answer for what his Majesty and for what we have suffered I am Commanded by the House of Commons to desire of your Lordships That the Proceedings against Sir Robert Berkley Knight one of the Justices of his Majesties Court of Kings-Bench may be in as speedy a way of Trial as the Course of Parliament will allow The Articles were as follow The Atticles of Impeachment of Sir Robert Berkley Knight one of the Justices of the Court of the Kings-Bench by the Commons in this present Parliament Assembled in their Own Name and in the Name of all the Commons of England in Maintenance of their Accusation whereby he standeth Charged with High Treason and other great Misdemeanors INprimis That the said Sir Robert Berkley Articles of Impeachment against Sir Robert Berkley c. July 6. 1641. then being One of the Justices of the said Court of Kings-Bench hath Trayterously and Wickedly endeavoured to Subvert the Fundamental Laws and Established Government of the Realm of England and instead thereof to introduce an Arbitrary and Tyrannical Government against Law which he hath declared by Trayterous and Wicked Words Opinions Judgments Practices and Actions appearing in the several Articles Ensuing 2. Whereas by the Statute made in the 25th Year of the Reign of King Henry the 8th Prices of Victuals are appointed to be rated in such manner as in the said Statute is declared But it is manifest by the said Statute Corn is none of the Victuals thereby intended Nevertheless some ill-affected persons endeavouring to bring a Charge upon the Subjects contrary to Law did surmise that the Prices of Corn might be rated and set according to the Direction of that Statute and thereupon great Gain might be raised to his Majesty by Licences and Dispensations for selling Corn at other Prices And a Command from his Majesty being procured to the Judges and sent to them by William Noy Esquire his Majesties then Attorney-General to deliver their Opinions touching
for a Prohibition to stay Proceedings in the Court Christian at Norwich and delivered into the said Court of Kings-Bench his Suggestions that the said Cause in the said Court Christian was for Tythes for Rents of Houses in Norwich which was determinable by the Common Law only yet he the said Sir John Brampston being Chief Justice of the said Court of Kings-Bench and sitting the said Court deferred to grant a Prohibition to the said Court Christian in the said Cause although the Councel did move in the said Court several Times and several Terms for a Prohibition And he the said Sir John Brampston deferred to grant His Majesties Writs of Prohibition to several Courts on the Motions of divers others of His Majesties Subjects where the same by Laws of this Realm ought to have been granted contrary to the Laws of this Realm and his own knowledg And the said Commons by Protestation saving to themselves only the Liberties of Exhibiting at any time hereafter any other Accusation or Impeachment against the said Sir John Brampston and also of replying to the Answer that he the said Sir John Brampston shall make unto the said Articles or any of them or of offering Proofs of the Premisses or any of their Impeachments or Accusations that shall be exhibited by them as the Case shall according to the Course of Parliament require do pray that the said Sir John Brampston Lord Chief Justice of the Court of Kings-Bench may be put to answer to all and every the Premisses and that such Proceedings Examinations Tryals and Judgments may be upon every of them had and used as is agreeable to Law and Justice Mr. Hollis also according to the Order of the House of Commons at this Conference made application to their Lordships in the behalf of Sir Randal Crew in this manner My Lords THese Gentlemen have represented unto your Lordships the sad object of Justice perverted Liberty oppressed Mr. Denzil Hollis his Speech about Sir Randal Crew July 6. 1641. of Judgment turned into Worm-wood the Laws which should be the Bars of our Gates to protect us keep us and all that is ours in safety made weak and impotent to betray us unto the hands of violence instead of Props to support us become broken Reeds to deceive us and run into our sides when we lean upon them even so many snares to entrap and entangle us And all this by the perfidiousness of those who are entrusted with our Laws who call themselves the Guardians and the Interpreters of the Law but by their accursed Glosses have confounded the Text and made it speak another Language and another Sense than ever our Ancestors the Law-makers intended Our Ancestors made Laws to keep themselves their posterity after them in the possession of their Estates these Judges could make the Law it self rob us and despoil us of our Estates Were we invaded and persecuted at any time for pretended Crimes or rather because they were free from Crime And did we put our selves upon a legal defence and shelter our selves under the Buckler of the Law use those Lawful Weapons which Justice and Truth and the Common Right of the Subject did put into our hands would this avail us No these Judges would make the Law wrest our Weapons from us disarm us take away all our defence expunge our Answers even bind us hand and foot and so expose us naked and bound to the mercilesness of our Oppressors were our Persons forced and imprisoned by an Act of Power would the Law relieve us when we appealed unto it No it would joyn hands with violence and add bitterness to our sorrow these Judges would not hear us when we did cry no importunity could get a Habeas Corpus Nay our cryes would displease them and they would beat us for crying and over-do the unjust Judge in the Gospel with whom yet importunity could prevail My Lords The Commons of England finding themselves in this lamentable condition by the wickedness of these Judges It is no wonder that we complain of them it is no wonder if the Knights Citizens and Burgesses Assembled in Parliament have sent up some of their Members to stand upon Mount Ebal to Curse these Judges to denounce a Curse upon them who have removed our Land-marks have taken away the Bound-stones of the Propriety of the Subject have left no Meum Tuum but he that had most might had most right and the Law was sure to be on his side It hath been the part of these Gentlemen who have spoken before me to pray for justice upon those men who would not do justice to others My Lords I come upon another Errand and yet for justice too for there is justice upon Mount Gerezim as well as upon Mount Ebal It is as great a point of justice to give a blessing a reward where it is due as punishment where punishment is due For reward and punishment Praemium poena be the two legs that Justice walks on and reward is her right leg the more noble and the more glorius Supporter of that Sacred and Divine Body that which God himself the Foundation of Justice doth more delight in Tradior ad poenas Deus est ad praemia velox Punishment is good as Physick in the Consequence Reward as wholesome and nourishing Food in the Essence the one we do because we must do it as necessary the other because we love to do it as being pleasing and delightful Your Lordships then I doubt not will as willingly joyn with the Commons in doing good to a good Judge as in punishing of the bad My Lords We honour them and reckon them Martyrs for the Common-wealth who suffer any thing by defending the Common Right of the Subject when they will not part with their own Goods contrary to Law when indeed their private interest goes along with it or rather before it and the publick Concernment seems to come but in a second place such were those many whom these Judges have oppressed yet these Men we magnifie and judge worthy of Praise and Reward But what honour then is he worthy of who meerly for the publick hath suffered himself to be divested and deprived of his particular such a Judge as would lose his place rather than do that which his Conscience told him was prejudicial to the Common-wealth Is not he worthy of double honour And this did that Worthy Reverend Judge the chief Judge of England at that time Sir Randol Crew because he would not by subscribing countenance the Loan in the first year of the King contrary to his Oath and Conscience he drew upon himself the displeasure of some great Persons about his Majesty who put on that project which was afterwards condemned by the Petition of Right in the Parliament of Tertio as unjust and unlawful and by that means he lost his place of Chief Justice of the King's-Bench and hath these fourteen years by keeping his innocency lost the
That there should be some publick Notice given of the Day appointed for publick Thanksgiving for the Pacification being the seventh of September and a Declaration for this purpose being framed and read was carried up to the Lords for their Concurrence which they readily gave the Order was as follows An Ordinance of Parliament for a Day of Publick Thansgiving for the Peace Concluded between England and Scotland WHereas it hath pleased Almighty God to give a happy close to the Treaty of Peace The Ordinance of Parliament for the Thanksgiving for the Pacification Aug. 27 1641. between the two Nations of England and Scotland by his wise Providence defeating the evil hopes of the subtil Adversaries of both Kingdoms For which great Mercy it was by the Kings Most Excellent Majesty the Lords and Commons in this present Parliament Enacted That there should be a publick Thanksgiving in all the Parish Churches of his Majesties Dominions It is now ordained and declared by the Lords and Commons in Parliament that the time for the Celebration of that Publick Thanks to Almighty God for so great and publick a Blessing shall be on Tuesday the seventh of September next by Prayers Reading and Preaching of the Word in all Churches and Chappels of this Realm whereof We require a Careful and due Observance That we may joyn in giving Thanks as we partake of the Blessing with Our Brethren in Scotland who have designed the same Day for that Duty Die Veneris 27. die Augusti 1641. Ordered by the Lords in Parliament that the abovesaid Ordinance be Printed God save the KING There was also a Conference with the Lords about the adjournment or Recess of the Parliament for some time Conference about the Recess of the Parliament the Lords liked the time of the Adjournment which was to be the ninth of September but desired the Adjournment might be till the first of November but the Commons who had before voted in their House that it should continue only till the 20th of October were resolute as indeed generally they were to yield little to the Lords not to depart from their former Vote and therefore returning from the Conference upon the Debate it was Resolved upon the Question That this House shall insist upon the former Day of Return to be the 20 of October And the Reasons which were presented to the Lords were 1 The Nature of the Causes which are depending in both Houses some whereof being for High Treasons and the Impeachment of the Judges the Inception of which Businesses they desire may be before the next Term. 2 The time of Payments of Monies promised to the City of York falls out to be before the first of November therefore they desire their Lordships would joyn with them to have the Recess only till the 20th of October next To which the Lords condescended provided there fall out no emergent Occasion between this and Wednesday come seven Night Ordered That the Lords be kept together until the Recess A Petition having been presented to the Lords by Sir George Radcliff A Petition of Sir George Radcliff and a Letter to the Lords Chief Justices in Ireland upon it Aug. 27. 1641. complaining that he being seized in Fee of some Lands in Ireland is dispossessed of the same in respect of the Impeachment of Treason against him here by means whereof he hath not received any thing out of his Estate in Ireland for about six Months last and so had wanted Bread if he had not been supplied by the Charity of some Friends He therefore humbly prays that he may be restored to his said Estate and be Enabled by Order of this House to demand his Rents there due unto him whereby he may be able to sustain himself and his Family from want Hereupon the Lord Privy Seal the Lord Bishop of Lincoln and the Lord Wharton were Ordered to draw up a Letter to be sent to the two Chief Justices in Ireland to desire them to prevent by what Legal way they can the Estate of the said Sir George Radcliff from Ruine whereby he may have Maintenance to sustain him The Tenor of which was this AFter my very heartiest Commendations c. unto your Lordships I am to give your Lordships to understand from the Right Honorable the Peers Assembled in Parliament That their Lordships having taken the Petition of Sir George Radcliff into their Mature Consideration a Copy whereof your Lordships shall receive herewith inclosed they do not as yet apprehend any Reason why the Petitioners Estate upon an Impeachment only should be so sequestred and the Lands and Leases so entred upon and invaded as that he should have no Means left him for his Maintenance and other Necessaries during the time of his Imprisonment But because your Lordships to whom his Most Excellent Majesty hath committed the Justice and Government of the Kingdom may know more of these Particulars by reason of your being upon the Place where these Debts Goods and Estates have had their Existence My good Lords the Peers of this House do recommend the Care of this Business unto your Lordships to aid the Petitioners Agents in this kind by all the Ways of Justice and Equity to recover such Debts Rents and other Profits as by Law and Justice remain due to Sir George Radcliff for his Maintenance and Necessary Vses until some further Act or Acts of Law and Justice shall otherwise direct and dispose of the said Premises And so I bid your Lordships heartily Farewell Your loving Friend E. Littleton C. S. To the Right Honorable my very good Lords Sir W. Parsous and Sir J. Borlase his Majesties High Justices for the Kingdom of Ireland The Request of the Spanish and French Ambassadors to have Liberty to entertain such of the disbanded Troops both in England and Ireland as they can agree with was this day Debated in the House of Commons upon which Occasion Sir Benjamin Rudyard made this following Speech Mr. Speaker THis is a business of great Consequence Sir Benjamin Rudyard's Speech against suffering the Spaniards or French to have the disbanded Soldiers Aug. 28. 1641. and therefore requires a well advised Resolution I will put France and Spain together take them both before me because the Reasons will serve the one and the other as they stand in Relation to us We are Mr Speaker so bounded by the nature of our Situation as we are not so proper to extend our selves upon the firm Land of our Neighbours Our Aptitude is rather to Ballance which being rightly used may make the King the great Arbiter of all the Affairs of Christendom by assisting withholding or opposing Henry the Eighth is an example of this King Henry gave upon this account this Motto Cui adhaereo praeest He was sometimes of the side of the Emperor other times of the French Party according as he saw either sides of the Scales to weigh heavier or higher some might think this to be
Councel for his necessary Defence in Point of Law which may happen upon the Matter of High Treason of which he is impeached and in Point of Law and Fact upon the Matters of Misdemeanors of which he is Impeached That for the few Daies until the time of his Tryal he may remain in the Custody of the Sheriff of London where he hath remained a true Prisoner for almost three Quarters of a Year in whose House all his Collections and Papers are for his Defence And that he may have your Lordships License to go with a Keeper to Serjeants Inn to look out some Papers which he hath there and shall have Occasion to produce at his Tryal as also there to Confer and Advise with such Councel as your Lordships shall please to admit or Assign unto him And your Petitioner according to his bounden Duty shall allways pray for the continuance of your Lordships Honor and Happiness c. The Names of such Councel as your Petitioner most humbly desires are The Princes Attorney Mr. Recorder of London Mr. Herne Mr. Thorp Mr. Fountain Mr. Bierley Mr. Lightfoot Mr. Brome Subscribed Robert Berkley Before the House resolved of any Answer herein The Bishops withdraw being a mixt Charge the House was Adjourned into a Committee to consider whether the Bishops should not withdraw during the Agitation of this Business it being a mixt Charge of Treason as well as Misdemeanor after a long Debate the House was resumed and it was agreed That the Matter of Treason should be first Ordered at which the Bishops are to withdraw and when the Matter of Misdemanor come into Agitation they are to come into this House again to their Places Hereupon the Bishops withdrew themselves and after a long Debate it was Ordered That Mr. Justice Berkley shall have a Warrant for to bring such Witnesses as he shall have Occasion for to testifie for him at his Trial in Matters of Misdemeanors but not in Matters of Treason Then the Lords the Bishops were called in and the Lord Keeper declaring unto them the Sense of this Order they gave their Consents thereunto And further it was Ordered That the Princes Attorney Mr. Recorder of London Mr. Herne Mr. Bierly Mr. Thorp shall be assigned of Council for Mr. Justice Berkley in Point of Law which may happen upon the Matter of Treason and in Point of Law and Fact upon the Matters of Misdemeanor at his Trial the second of November next And that the said Justice Berkley shall still remain in the Custody of George Clerk Esquire one of the Sheriffs of the City of London where he is now and that he have Liberty to go to Serjeants Inn in Fleet Street one Day when he shall think good with his Keeper to look out some Papers which he hath there and shall have Occasion to use at his Tryal Then Mr. Justice Berkley was called in and the Lord Keeper pronounced the aforesaid Order to him for which he gave their Lordships most humble Thanks Mr. Warwick Reports Five Conge de Estires for new Bishops to be petitioned to be stayed That there were Directions given from his Majesty for the drawing up of Five Conge d' Eslires for the making of Five New Bishops viz. Dr. Prideaux Dr. Brownrick Dr. Holdsworth Dr. Winniff and Doctor King Upon which Mr. Strode moves the House to send up a Message to the Lords to desire them to joyn in Petitioning his Majesty for the staying the making of these new Bishops till the Charge against the other Bishops was dispatched This day Information was given into the House of Lords that since the Act for bounding the Forrest many Riots were committed upon the occasion of killing of Deer pretending they were not within the Bounds of the Forrest and that in Oxfordshire in one of those Fraies a Keeper was killed It was also moved that the Bill for disabling Persons in Holy Orders from exercising Temporal Jurisdiction might not be read at present it having been voted against as to the Substance in a former Bill this Sessions but it was Ordered to be read a second time to morrow Morning peremptorily Mr. Pym Reports the Reasons for Excluding the Thirteen Bishops Wednesday October 27 in Order to the delivering them at a Conference with the Lords and desires that Mr Solicitor may have the mannaging of the Business On the other Side Mr. Solicitor excused himself and desired that Mr. Pym might manage it whereupon it was to end the Contest Ordered That Mr. Pym and Mr. Solicitor should have the mannaging of the whole Business concerning the Bishops and accordingly they did so at a Conference with the Lords upon this Subject The Lord Privy Seal Reported the Conference yesterday with the House of Commons concerning Bishops viz. Mr. Mr. Pym's Speech at the Conference about Excluding the Bishops from Voting in the Case of the 13 Bishops impeached Oct. 27. 1641. Pym declared from the House of Commons That there is nothing of greater importance to the safety and good of the Kingdom then that this High Court of Parliament which is the Fountain of Justice and Government should be kept pure and uncorrupted from Corruption free from Partiality and by-respects this will not only add Lustre and Reputation but Strength and Authority to all our Actions Herein he said your Lordships are specially interessed as you are a Third Estate by Inheritance and Birth-right so the Commons are publickly interessed by Representation of the whole Body of the Commons of this Kingdom whose Lives Fortunes and Liberties are deposited under the Custody and Trust of the Parliament He said The Commons have commanded him and his Colleague Mr. Solicitor General to present to your Lordships two Propositions which they thought very necessary to be observed and put in Execution at this time 1. That the 13 Bishops which stand accused before your Lordships for making the late pretended Canons and Constitutions may be Excluded from their Votes in Parliament 2. That all the Bishops may be suspended from their Votes upon that Bill intituled An Act to disable all Persons in Holy Orders to exercise any Jurisdiction or Authority Temporal The first of these is committed to his Charge and he said he was commanded to support it with three Reasons First That the 13 Bishops have broken that Trust to which every Member of Parliament is obliged which Trust is to maintain 1. The Prerogative of the King 2. The Priviledge of Parliaments 3. The Propriety of the Subject 4. The Peace of the Kingdom And this Trust they have broken not by one Transient Act but by setting up Canons in Nature of Laws to bind the Kingdom for ever That the Canons are of this Nature appears by the Votes of both Houses and that they were all Parties to the making thereof appears by the Acts of that Synod The Book it self the Commons cannot tender to your Lordships because they sent for it but he that hath the Book in Custody
was out of Town but a Member of their own House upon View of it is ready to Depose that their Names were Entred among those that did subscribe to it Wherefore the House of Commons desire your Lordships in the first place to consider whether they that take to themselves a Legislative Power destructive to Parliaments be fit to exercise that Power of making Laws which only belongs to the Parliament Secondly Whether it be safe for the Common-Wealth that they should be trusted with making Laws who as much as in them lay have endeavoured to deprive the Subject of these good Laws which are already made A third Reason is this That they stand Accused of Crimes very hainous That is of Sedition Secondly of Subversion of the Laws of the Kingdom this will easily appear in the Nature of the Canons themselves as also by the Votes to which your Lordships and the Commons have already agreed Here the Votes of both Houses were read by Mr. Goodwin For the second Proposition he said That should be handled by one that will do it with more advantage of Reason and Learning then he could do therefore he would leave it to him Then Mr. Solicitor General informed their Lordships Mr. Sollicitor St. John's Speech at a Conference about Excluding the Bishops Votes That the Excluding of the Bishops from Votes in Parliament was not of so general Consequence as that by it the whole Clergy of England was Excluded 1. His first Reason offered was this That the Bishops did not Vote for the whole Clergy for that if it should be so then the Clergy of England should be twice represented and twice Voted for in Parliament This appears by all the Ancient Writs of Summons which till of late were to this effect A Writ of Summons went to the Bishop commanding him Summonire all the Clergy of his Diocess to appear by Proxies of their own chusing What to do Ad consentiendum iis quae de Communi Concilio Regni ordinari Contigerit So that if the Bishops do represent the Clergy then the Clergy are twice represented both by the Proctors and again by the Bishops Now although the Form of the Writs be altered yet the Reason holds and still Remains 2. If they Vote for the Clergy then they are to be Elected by the Clergy as the Members of the Commons House now are but your Lordships voting only for your selves need no Election 3. If they Voted for the Clergy as a third Estate then would follow that no Act of Parliament could be good where they did Dissent but many Acts of Parliament are passed where all the Clergy Dissented And the last he said that came to his memory is the Statute of 1 Eliz. Establishing the Book of Common-Prayer to which all the Bishops did Disassent * There is nothing plainer from this Entry then that the Bishops did Vote for else how could they be entred to disassent and yet he brings it for a president to prove they ought not The Entry in the Roll is Dissentientibus Episcopis and yet the Statute holden for a good Law to this Day This was offered to shew That it might not be conceived that the denying the Bishops to have Votes in this Bill now before your Lordships was of such general Influence as to take from the Clergy any Interest or Priviledges that formerly belonged to them 2. In the second place he said He was to present the sence of the whole House of Commons to your Lordships That the Prelates have not so absolute a Right of Peerage for voting in Parliament as the Temporal Lords have out of Parliament This appears by that of highest Consequence that they are not tryable by their Peers for their Lives but by an ordinary Jury In Parliament they have no Vote in Judgment of Blood Life or Member but if their Peerage were so inherent in them as it is in the Temporal Peers no Ecclesiastical Canons could take it from them Besides in point of Right it hath been Resolved by all the Judges of England 7 H. 8. in Kellaway's Reports That the King may hold his Parliament by the Lords Temporal and Commons without calling of the Bishops and that upon several Occasions especially concerning the Pope or themselves the Bishops have been excluded and their Votes not admitted herein He said He was commanded to offer some Presidents to your Lordships upon the sudden In the Parliament 25 of E. 1. The Bishops refusing to joyn with the Lords and Commons in granting of Subsidies for the good of the Kingdom this was holden at Bury Excluso Clero many Acts were then made never since questioned 35 E. 1. The Statute of Carlisle divers Petitions there exhibited by the Commons concerning the Prelates and Lords Abbots for oppressing the poor Clergy several Acts were made for their Relief but by whom By the King Earls Barons and other Nobles and the Commons only Now in respect the several Ranks of the Nobility are named * Ergo they did Vote and were not Excluded from that Right of their Peerage even in their own Case they did not consent because that in all other Acts where they do consent they are particularly named and if it be objected that they might be there and might give a Negative and therefore were not named among them that did consent it appears that Habito tractatu cum Comitibus Baronibus caeteris Communitatibus the King did Enact those things * This is gratis dictum not proved at all by the Roll. and never called the Bishops to the Debate this appears in the Parliament Book 20 E. 3. Parliament Roll N. 33. The Commons Petition that no allowance be made to the Cardinals that had been in France for Treating of Peace In the Roll it is thus Entred * Ergo the other did dissent Assented unto as reasonable by the Dukes Earls Barons and other the Lay Gents without ever naming the Bishops now the word others Lay Gents shews the Bishops were none of the number that Voted in that Law Secondly it was to be noted That in Acts where the particular Ranks are set down none of the Temporal Ranks have ever been omitted and if the Spiritualty had voted they should have been named though in Vote they had dissented Eodem Anno Num. 35 ad Num. 38. There being two other several Acts made upon Petitions of the Commons the one made against Provisions for some Cardinals and the other to restrain the carrying of Mony to Rome the Answer is made as before by the Dukes Earls Barons and Commonalty never mentioning the Lords Spiritual 3 R. 2. Cap. 3. 7 R. 2. Cap. 3. There are in Print Acts made by the King and Lords Temporal only without the Lords Spiritual The Statute of 7 R. 2. reciting the former Statute of 3 R. 2. which said our Lord the King by the Advice and common Assent of all the Lords Temporal and Commons being in
Allegiance of this Kingdom what is this but to extol other then Regal Authority and to Crucify the Majesty of our Most Gracious Soveraign betwixt the two Thieves of Government Tyranny and Treason My Lords having such a full and lasting Gale to drive me into the Depth of these Accusations I cannot hereby Steer and Confine my Course within the Compass of Patience since I read in the first Volums of their Brows the least of these to be the certain Ruine of the Subject and if prov'd a most favourable Prologue to usher in the Tragedy of the Actors Counsellors and Abetters herein What was then the first and main Question it was the Subversion of the Fundamental Laws of this Kingdom Let then Magna Charta that lies Prostrated Besmeared and Grovelling in her own Gore discount her Wounds as so many Pregnant and Undeniable Proofs mark the Epethite Magna 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 confirmed by thirty Parliaments in the Succession of eight Kings the Violation of which hath several times ingaged the Kingdom of England in a Voluntary Sacrifice a Charter which imposeth that Pleasant and Wel-becoming Oath upon all Soveraignty to vindicate and preserve the Immunity thereof before the Crown incircle their Royal Temples in this Oath of so high consequence and general Interest his Majesty doth in a manner levie a fine to his Subjects use for avoiding all frandulent conveyances in the Administration of Justice And this Oath is transplanted unto the Judges as the Feoffees in trust appointed between his Majesty and the Subject and sealed by his Majesties provident care with that emphatical penalty that their Estates and Lives shall be in the Kings mercy upon the Violation of the same either in whole or in part neither hath the deserved punishment for the breach of this Oath enacted as fulgura ex vitrio or as bugbears to inforce the obedience of Children no my Lords the just execution of it upon their Predecessors though in breaches not so capital might have warned them to have strangled their ill born resolutions in the Cradle before they now proclaim their infancie and petition for their punishment Witness Sir Thomas Weyland his banishment confiscation of his Goods and Lands only for his mercenary Justice contrary to his Oath who was Chief Justice of the Common Pleas in the time of Edward the first Witness Sir William Thorp Chief Justice of the Kings Bench in the time of Edward the Third who was adjudged to be hanged because he had broken the Kings Oath made unto the People wherewith he was intrusted in the Roll. Now my Lords though Magna Charta be sacred for antiquity though its confirmation be strengthned by Oath though it be the proper Dictionary that expounds meum tuum and assignes a Subject his Birth-right yet it only survives in the Rolls but now miserable rent and torn in the practice These words Salvo contenemento live in the Rolls but they are dead in the Castle Chamber These words Nullus liber homo ejicitur è libero suo tenemento in praejudicium parium live in the Rolls but they are dead where property and free-hold are determined by paper-Petitions These words Nulli vendemus nulli differemus Justitiam live in the Rolls but they are dead when the Suites Judgments and Execution of the Subjects are wittingly and illegally suspended retarded and avoided Shall we desire to search the mortal wounds inflicted upon the Statute Laws who sees them not lying upon their death Bed stab'd with Proclamations their primitive and genuine tenures escheated by Acts of State and strangled by Monopolies Will you survey the Liberties of the Subjects every Prison spues out illegal Attachments and Commitments every Pillory is dyed with the forced Blood of the Subjects and hath ears though not to hear yet to Witness this complaint Do you doubt of the defacement of the amiable Offices of his Majesties most transplendent and renowned Justice and Grace let then that Microcosme of Letters Patents confirmed under his Majesties and his Predecessors broad Seal of the Kingdom being the publick faith thereof and yet unchristened by frivolous and private opinions rise up in Judgment let the abortive Judgment of the tenure in Capite where no tenure was exprest nay let the Heretical and Traiterous opinions where the Tenure was exprest yet to draw in all by Markets and Faires granted in the same Patents rise up in Judgments What glass hath this unhappy divided Kingdom from his Majesties presence and audience to contemplate the fair and ravishing form of his Royal intentions in but in the clear and diaphanous administration of his Justice and what do these Trayterous and Illegal practises aim at but in affront to his Majesty which we most tenderly resent and discontent to his Subjects to multiply as by a Magick Glass the Royal dispensation of his Favors into the ugly and deformed Visage of their Suppression of the Liberties Devastation of the Estates and the Deprivation of the Lives of his Loyal Subjects so that it may be said Regali Capiti cervicem consul equinam Jungere sic vellet variasque inducere plumas My Lords these ought to be considered with as serious an Ear as they were practised by mischievous Experiments Inquire of the Netherlands why their Fields are grown Fertile by the Inundation of Blood why the pensive Matrons solemnize too too frequent Funerals of their Husbands and Issue and they will Answer you it was for the Preservation of their Hereditary Laws which Tyranny would have innovated This Kingdom personated in the sable Habit of a Widdow with dishelved Hairs seems to Petition your Lordships That since she is a Mother to most of us yet certainly a Nurse unto us all that you would make some other for Redress of her Tyrannical Oppression These Persons Impeached resemble the opacous Body of the Earth interposed to Ecclipse that Light and Vigor which the solar Aspect of Majesty would communicate unto his Subjects They Imitate the Fish Sepia that vomits a Dark Liquor out of her Mouth to cloud the Waters for her securer Escape They are those whom to the Keys have been committed yet they have barred the Do or to them that Knoc't They are those Unnatural Parents that give their Children Stones instead of Bread and Scorpions for Fish Was it for this purpose that the Royal Authority situated them in these Eminent Places that like Beacons upon high Hills they should Discover and Proclaim each Innovation and Stratagem against the Publick Weal whilest they in the mean time imploy therein Fire to Publick Incendiary or like Ignes fatui seduce the easie and believing Traveller into Pits and unexpected Myres Were they sworn to Seal their Damnation and not their Confirmation of our Liberty Estates and Lives Shall a man be censured for Perjury in that Breach of his private Faith and those be justifiable in Treason aggravated by Perjury against the Dignity of the Crowns and Publick Faith of the Kingdoms No
this Kingdom and in Pursuance thereof they and every of them have Traiterously Contrived Introduced and Exercised an Arbitrary and Tyrannical Government against Law thorowout this Kingdom by the Countenance and Assistance of Thomas Earl of Strafford then Chief Governor of this Kingdom II. That they and every of them the said Sir Richard Bolton Knight Lord Chancellor of Ireland John Lord Bishop of Derry Sir Gerard Lowther Knight Lord Chief Justice of the Common-Pleas and Sir George Radcliffe Knight have Traiterously assumed to themselves and every one of them regal Power over the Goods Persons Lands and Liberties of his Majesties Subjects in this Realm and likewise have Maliciously Perfidiously and Traiterously Given Declared Pronounced and Published many False Unjust and Erroneous Opinions Judgments Sentences and Decrees in Extrajudicial manner against Law and have Perpetrated Practised and Done many other Traiterous and unlawful Acts and Things whereby as well divers Mutinies Seditions and Rebellions have been raised as also many Thousands of his Majesties Liege People of this Kingdom have been Ruined in their Goods Lands Liberties and Lives and many of them being of good Quality and Reputation have been utterly defamed by Pillory Mutilation of Members and other infamous Punishments By means whereof his Majesty and the Kingdom have been deprived of their Service in Juries and other Publick Imployments and the general Trade and Traffick of this Island for the most part destroyed and his Majesty highly Damnified in his Customs and other Revenues III. That they the said Sir Richard Bolton John Lord Bishop of Derry Sir Gerard Lowther Knight and Sir George Radcliffe and every of them the better to preserve themselves and the said Earl of Strafford in these and other Traiterous Courses have laboured to Subvert the Rights of Parliament and the ancient Course of Parliamentary Proceedings all which Offences were contrived Committed Perpetrated and done at such time as the said Sir Richard Bolton Sir Gerard Lowther and Sir George Radcliffe Knights were privy Counsellors of State within this Kingdom and against their and every of their Oaths of the same at such times as the said Sir R. Bolton Knight was Lord Chancellor of Ireland Chief Baron of his Majesties Court of Exchequer within this Kingdom and Sir Gerard Lowther Knight was Lord Chief Justice of the said Court of Common-Pleas and against their Oaths of the same and at such time as the said John Lord Bishop of Derry was actual Bishop of Derry within this Kingdom and were done and speciated contrary to their and every of their Allegiance several and respective Oaths taken in that behalf IV. For which the said Knights Citizens and Burgesses do Impeach the said Sir Richard Bolton Lord Chancellor of Ireland John Lord Bishop of Derry Sir Gerard Lowther Knight Lord Chief Justice of his Majesties said Court of Common-Pleas and Sir George Radcliffe Knight aforesaid and every of them of High-Treason against our Soveraign Lord the King his Crown and Dignity The said Knights Citizens and Burgesses by Protestation saving to themselves the Liberty of exhibiting at any time hereafter any Accusation or Impeachment against the said Sir Richard Bolton John Lord Bishop of Derry Sir Gerard Lowther and Sir George Radcliffe aforesaid and every of them and also of replying to them and every of their Answers which they and every of them shall make to the said Articles or any of them and of offering Proof also of the Premisses or of any other Impeachment or Accusation as shall be by them Exhibited as the Case shall according to the Course of Parliament require And the said Knights Citizens and Burgesses do pray that the said Sir Richard Bolton Knight Lord Chancellor of Ireland John Lord Bishop of Derry Sir Gerard Lowther Knight Lord Chief Justice of his Majesties said Court of Common-Pleas and Sir George Radcliffe Knight and every of them be put to Answer to all and every of the Premisses and that all such Proceedings Examinations Tryal and Judgment may be upon them and every of them had and used as is agreeable to Law and Justice Copia vera Signed PHILIP PHERNESLY Cler. Parliamenti Thus did these Popular Reforming Protestants help to unhinge the Government and not only helped forward the Designs of the Irish if Sir John Temple's observation before mentioned be true of their endeavours to push out the present Ministers and to get into their places but they gave great Countenance especially to the Vulgar and colourable pretences to the Ensuing Rebellion when even the Protestants of the Parliament of Ireland as well as the Parliament of England by their severe Procedure against the Earl of Strafford for misgovernment and Oppressions done in Ireland by impeaching of these Persons and by their repeated loud Complaints of Grievances Wrongs and Injustice publickly defamed his Majesties Government and proclaimed to the whole World That those Miseries which the Irish suffered under those their Governors and for the Redress of which they pretended to take up Arms were so great real and intolerable that both the Parliaments of England and Ireland were so deeply sensible of them as to acknowledg and thus bitterly inveigh against them Nor were the active men of the Commons House there less busie but the Lawyers Darcy Martin Plunket Cusack Brown Linch Bodkin Evers and others took upon them with much confidence to declare the Law and to frame several Queries which being proposed to the Judges and their Modest Answers not being satisfactory they gave out Resolutions of their own upon them such as might serve their Interest and Designs rather then comport with the Honor Duty and Allegiance which they owed to their Soveraign The Queries together with the Judges Answers to them as also their own Resolutions which were transmitted hither I find in the Paper-Office as followeth Questions wherein the House of Commons humbly desires that the House of the Lords would be pleased to require the Judges to deliver their Resolutions IN as much as the Subjects of this Kingdom are Free Queries propounded by the Parliament of Ireland to the Judges of that Kingdom Loyal and Dutiful Subjects to his most Excellent Majesty their Natural Liege-Lord and King and to be governed only by the Common Lawes of England and Statutes of Force in this Kingdom in the same manner and form as his Majesties Subjects of the Kingdom of England are and ought to be Governed by the said Common-Laws and Statutes of Force in that Kingdom which of Right the Subjects of this Kingdom do Challenge and make their Protestation to be their Birth-right and best Inheritance Yet in as much as the unlawful Actions and Proceedings of some of his Majesties Officers and Ministers of Justice of late years introduced and practised in this Kingdom did tend to the infringing and violation of the Laws Liberties and Freedom of the said Subjects of this Kingdom contrary to his Majesties Royal and Pious Intentions Therefore the Knights Citizens and Burgesses in
Parliament Assembled not for any Doubt or Ambiguity which may be conceived or thought of for or concerning the Premisses nor of the ensuing Questions But for the manifestation and declaration of the Clear Truth and of the said Laws and Statutes already planted and for many Ages past settled in this Kingdom the said Knights Citizens and Burgesses do therefore pray That the House of the Lords may be pleased to Command the Judges of this Kingdom forthwith to declare in Writing their Resolutions of and unto the ensuing Questions and subscribe to the same Quest 1. WHether the Subjects of this Kingdom be a Free People and to be Governed only by the Common Laws of England and Statutes of Force in this Kingdom 2. Whether the Judges of this Land do take the Oath of Judges And if so Whether under pretext of any Act of State Proclamation Writ Letter or Direction under the Great or Privy Seal or Privy Signet or Letter or other Commandment from the Lord Lieutenant Lord Deputy Justice Justices or other Governor or Governors of this Kingdom they may hinder stay or delay the Suit of any Subject or his Judgment or Execution thereupon If so in what Cases And whether if they do hinder stay or delay such Suit Judgment or Execution thereupon what Punishment did they incur for their deviation or transgression therein 3. Whether the Kings Majesties Privy Council either with the Chief Governor or Governors of this Kingdom or without him or them be a Place of Judicature by the Common Laws and wherein Causes between Party and Party for Debts Trespasses Accompts Possessions or Title of Lands or any of them And which of them may be heard and determined and of what Civil Causes they have Jurisdiction and by what Law And of what Force is their Order or Decree in such Cases or any of them 4. The Like of the Chief Governor alone 5. Whether Grants of Monopolies be warranted by the Law and of what and in what Cases and how and where and by whom are the pretended Transgressors against such Grants punishable and whether by Fine Mutilation of Members Imprisonment Loss and Forfeiture of Goods or otherwise and which of them 6. In what Cases the Lord Lieutenant Lord Deputy or other Chief Governor or Governors of this Kingdom and Council may punish by Fine Imprisonment Mutilation of Members Pillory or otherwise And whether they may Sentence any to such the same or the like punishment for infringing the Commands of or concerning any Proclamation of and concerning Monopolies and what punishment do they incur that Vote for them 7. Of what Force is an Act of State or Proclamation in this Kingdom to bind the Liberties Goods Possessions or Inheritance of the Natives thereof whether or any of them can alter the Common Law or the Infringers of them loose their Goods Chattels or Leases or forfeit the same by Infringing any such Act of State or Proclamation or both And what punishment do the sworn Judges of the Law that are Privy Councellors incur that Vote for such Act and Execution thereof 8. Are the Subjects of this Kingdom subject to the Martial Law And whether any man in time of Peace no Enemy being in the Field with Banners displayed can be Sentenced to death If so by whom and in what Cases If not What Punishments do they incur that in time of Peace execute Martial Law 9. Whether Voluntary Oaths taken freely before Arbitrators for Affirmance or Disaffirmance of any thing or for the true performance of any thing be punishable in the Castle-Chamber or any other Court and why and wherefore 10. Why and by what Law or by what Rule of Policy is it that none is admitted to Reducement of Fines or other Penalties in the Castle-Chamber or Council Table untill he confess the Offence for which he is Censured when as Revera he might be innocent thereof tho suborned Proofs or Circumstances might induce the Censure 11. Whether the Judges of the Kings-Bench or any other Judge of Gaol-Delivery or of any other Court and by what Law do or can deny Copies of Indictment of Felony or Treason to the Parties accused contrary to Law 12. What Power have the Barons of the Court of Exchequer to raise the Respite of Homage arbitrarily to what Rate they please to what Value they may raise it by what Law they may distinguish between the Respit of Homage upon the diversity of the true value of the Fees when as Escuage is the same for great and small Fees and are apportionable by Parliament 13. Whether it be Censurable in the Subjects of this Kingdom to repair into England to appeal to his Majesty for Redress of Injuries or other Lawful Occasions If so why and in what Condition of Persons and by what Law 14. Whether Deans or other Dignitaries of Cathedral Churches be properly and de Mero jure Donative by the King and not Elective or Collative If so Why and by what Law And whether the Confirmation of a Dean de Facto of the Bishops Grant be good or valid in Law or no If not by what Law 15. Whether the issuing of Quo Warranto's out of the Kings-Bench or Exchequer against Boroughs that antiently and recently sent Burgesses to the Parliament to shew Cause why they sent Burgesses to the Parliament be Legal If not what punishment ought to be inflicted upon those that are or have been the Occasioners Procurers and Judges of and in such Quo Warranto's 16. By what Law are Jurors that give Verdict according to their Conscience and are the sole Judges of the Fact Censured in the Castle-Chamber in great Fines and sometime Pillored with loss of Ears and bored through the Tongue and marked sometimes in the Forehead with an Hot Iron and other like Infamous Punishments 17. By what Law are men Censurable in the Castle-Chamber with the Mutilation of Members or any other Brand of Infamy and in what Cases and what punishment in each Case there is due without Respect to the quality of the Person or Persons 18. Whether in the Censure in the Castle-Chamber Regard be to be had to the words of the Great Charter viz. Salvo Contenemento c. 19. Whether if one that steals a Sheep or commits any other Felony and after flyeth the Course of Justice or lyeth in Woods or Mountains upon his keeping be a Traytor If not whether a Proclamation can make him so 20. Whether the Testimony or Evidence of Rebels Traytors Protected Thieves or other infamous Persons be good Evidence in Law to be pressed upon the Tryals of Men for their Lives or whether the Judge or Jurors ought to be Judge of the matter in Fact 21. By what Law are Fairs and Markets to be held in Capite when no other express Tenure is mentioned in his Majesties Letters Patents or Grants of the same Fairs and Markets Altho the Rent or Yearly Sum be reserved thereout 22. Whether it stands with the Integrity of the
come in further Agitation and discussion in this Honourable House 9. Lastly The Judges Opinions are not usually call'd upon in Parliament but when upon Debate great and difficult Points in Law do arise where this most Honourable doth think fit to Command their Opinions but no Resolutions do belong unto the said Judges in Parliament but unto your Lordships yet in the Front and Preamble of the said Questions the Resolution of the said Questions by the Judges is forthwith desired to be required by your Lordships in Writing Although the first Question Viz. Whether the Subjects of this Kingdom c. be positively resolved by the Preamble to the said Questions in which it is likewise declared That the said Judges Answers thereunto are not desired For any Doubt or Ambiguity which may be conceived or thought of for or concerning the Premisses nor of the said Questions but for Manifestation and Declaration of a clear Truth and of the Laws and Statutes already planted and setled in this Kingdom And they conceive it is impossible to make any Manifestation or Declaration of Law or Statutes which may hold or be useful upon such general Questions as most of these are namely by what Laws in what Cases of what Power of what Force How Where and Why by Whom Wherefore what punishment by what Rule of Policy in what Condition of Persons In regard that the next succeeding Judges may be of another Opinion and that a Circumstance may alter the Reason of the Law in many particular Cases which the Wit of Man is not able to foresee or give a general Rule in And they say That to give any satisfaction to your Lordships or the Honourable House of Commons would make up a great Volume and require far more time then your Lordships have afforded unto the said Judges considering their great Toyl in the Circuits the last long Vacation their other Employments in the Common-wealth at their daily Attendance on your Lordships in Parliaments and in ordering Courts of Justice and yet lest they may seem to come any way short in performance of that Duty which they confess to be due unto your Lordships or be wanting in promoting and advancing the Good of the Common-wealth which they believe to be aimed at by the said Questions though it may seem to draw Damage or Prejudice upon their Particulars They do in all humbleness present unto your Lordships the ensuing Answers unto the said Questions which is as much as by their Oaths or in their Duty they owe unto His Sacred Majesty before his Princely pleasure be therein signified they can answer thereunto TO the First they Answer That the Subjects of this Kingdom are a Free People and are for the general to be Govern'd only by the Common Laws of England and Statutes of Force in this Kingdom yet they say That as in England many Statutes are grown obsolete and out of use and some particular Ancient Laws as well in Criminal as Civil Causes have been changed by Interpretation of the Judges there as they found it most agreeable for the general Good of the Common-wealth and as the Times did require it so our Predecessors the Judges of this Kingdom as the Necessity of the Times did move them did declare the Law in some particular Cases otherwise then the same is practised in England which the now Judges cannot alter without apparent diminution of a great part of His Majesties standing Revenue and opening a Gap for the shaking and questioning the Estates of many of His Majesties Subjects and the overthrowing of several Judgments Orders and Decrees which depend thereupon For Example If it be found by Office of Record sufficient for Form That a Man was killed in actual Rebellion and at the time of his Death he was seised of Lands Hereditaments Goods or Chattels by the constant Declaration of Law and Practise in former times here the Crown was Intitled to such Lands Goods and Chattels and many Mens Estates depend thereupon and yet the Law is not so taken in England So If one or more commit Felony and then stand out upon his or their keeping and he or they will not submit themselves to be tryed by the Law but being in that Case do rob or spoil and terrifie His Majesties People whereby the Country is disquieted This by the constant Opinion of our Predecessors in this Kingdom hath been adjudged a Levying of War within the Statute of 25 E. 3. and so consequently Treason Also by the common received Opinion and Practice of this Kingdom the Wife is to have a Third of all the Goods and Chattels and Credits of her Husband the Debts being paid although he dispose of all by his Will from her And yet the constant Practise is otherwise in England And other Instances of that kind might be made so that that word Only must receive a benign Exposition before the first Question can receive a general Answer in the Affirmative Secondly Many Causes of great Weight and Consequence in this Kingdom are to be Decreed and Ordered by Equity in the proper Courts of Equity and in Course of State at the Council Board and by particular Customes not contrary to Law for which the Common Law and Statutes of Force in this Kingdom gave no Remedy Thirdly There are several other Laws of Force in England and Ireland so far as they have been received which though some would have to be part of the Common Law of England yet we find them particularly distinguished from it in our Printed Books and Parliament Rolls in England As Lex Consuetudo Parliamenti jura Belli Ecclesiastical or Canon Law in certain Cases Civil Law in some Cases not only in Ecclesiastical Courts but in the Courts of Constable and Marshal and of the Admiralty and upon particular occasions in other Courts Lex Mercatoria c. 2. To the Second they say That the Judges of this Kingdom do take the Oath of Judges which Oath is specified amongst the Statutes in 18 E. 3. And is afterwards explained by the Stat. of 20 E. 3. And that they may not stay hinder or delay the Suit of any Subject or his Judgment or Execution thereupon otherwise than according to the Law and Course of the Court when they Sit under pretence of any Act of State Proclamation Writ Letter or Direction under the Great or Privy Seal or Privy Signet or Letter or other Commandment Lord Lieutenant Lord Deputy Justice Justices or other Chief Governors of this Kingdom most of which doth appear by their Oath expressed in the Statutes and the Statute of 20 E. 3. c. 8. And the Statute of 20 E. 3. c. 2. as to the Barons of the Exchequer And that as they know no Punishments due to Judges for their Deviations and Transgressions without other Aggravation so they know no punishment laid down by any Law against them for their Deviations and Transgressions in hindering staying or delaying of Justice contrary to their said Oath
and the Statute of 20 E. 3. 3. To the Third they say That it is part of their said Oath as Judges that they shall not Counsel or assent to any thing that may turn to the damage or disherison of our Soveraign Lord the Kings most Excellent Majesty by any manner of way or colour And that they give no Advice or Counsel to any man great or small in no Case wherein the King is a Party And that they shall do and procure the Profit of the King and his Crown in all Things where they may reasonably do the same And that in the Explanation of their said Oaths by the Statute of 20 E. 3. c. 1. It is declared That they shall give no Counsel to great Men nor small in case where the King is Party or which doth or may touch the King in any point And as your Lordships have been honourably pleased by an Order of this Honourable House bearing date the first of March Anno Domini 1640. Annoque Regni Regis Caroli 16. to give way That they should not be Compelled to Answer any part of the said Questions which did concern his Majesties Prerogative or were against their Oaths so they humbly represent unto your Lordships That they conceive that the Answering of the Particulars of this Question doth concern both for that the King 's Privy Council as the Questions terms it or Council Board is a Court of his Majesties high Prerogative where all Proceedings are before him and his Council or before his Governor who immediately to many Purposes represent his Majesties Person and the Council And where the great Affairs of State concerning his Majesties Honor Government Profit and of great Persons and Causes concerning the Common-Wealth which may not be conveniently remedied by the ordinary Rules of the Common-Law and many other Cases have been Treated of and managed And as his Majesty is the Fountain of all Justice within this Kingdom and may grant Cognizances of Pleas unto his Subjects and Corporations and may by his Commissions Authorize whom he shall think fit to Execute many Branches of his Authority so We humbly conceive That it doth not stand with our Oathes or Duties of our Places who are but Judges of the ordinary Courts of Justice before his Majesties Pleasure signified in that behalf to seek into the Commissions or Instructions of the Chief Governor and Council or to give any Opinion concerning the Limits Jurisdictions Orders Decrees Proceedings or Members of that High Court And that the King hath a Prerogative for hearing some of the Matters in this Question specified before his Chief Governor We beseech your Lordships to cast your Eyes on the Statute of 28 H. 6. c. 2. in this Kingdom where after Matters are directed to be sent to the Ordinary Courts yet the King's Prerogative is expresly saved notwithstanding all which his Gracious Majesty for whom it is most proper hath of late been pleased to Limit the Proceedings of that Board by his Instructions in Print 4. To the fourth they Answer as to the Third 5. To the fifth they say That generally all Grants of Monopolies whereby Trading Manufacture or Commerce is restrained and the Profit which should go to many is hindred and brought into a few Hands are against Law and the Liberty of the Subject and the Good of the Commonwealth tho they carry never so fair a pretence of Reforming Abuses And that the pretended Transgressors against such Grants are not at all punishable by any Rule of Law that they know of And yet they say That they conceive That his Majesty that is the Head and Father of the Commonwealth may restrain the Use and Importation and Exportation of certain Commodities or restrain the same into a few Hands for a time where there may be a likelyhood of his Majesties Profit which is the profit of the Commonwealth and no apparent prejudice to the Commonwealth doth appear And that when time shall discover such Prejudice then such Restraint ought to Cease So if a man by his own Invention at home or Travel Observation or Charge abroad doth introduce a new profitable or useful Trade or Profession into the Commonwealth in such Cases his Majesty may lawfully Grant and License the only making of such Commodity or teaching or using of such Trade for a certain time and the Transgressors against such Warrantable Grants may be punished by paying of Damages unto the Patentee in an ordinary Course of Justice or otherwise as the nature of the Offence and Matter doth deserve and as the Consequence and Importance of the matter may be to the King State or Commonwealth And they say That the Matter Manner Restrictions Limitations Reservations and other Clauses contained in such Grants or Licenses and the Commissions or Proclamations thereupon and undue Execution thereof and several Circumstances may make the same Lawful or Unlawful whereof they are not able to give any Certain Resolution before some Particular comes in Judgment before them neither are they otherwise able to answer the Generals in the Particulars of the said Question Of what in what Cases how where and by whom or which of them wherein whosoever desires further satisfaction he may please to have Recourse to the known Cases of Monopolies in printed Authorities and written Records and unto the Statute of 21 Jac. in Engl. concerning Monopolies and their several Exceptions and Limitations therein 6. To the Sixth they say They can no otherwise answer then they have already in their Answer to the Third Question for the Reasons therein set forth 7. To the Seventh they say That a Proclamation or Act of State cannot alter the Common Law and that Proclamations are Acts of his Majesties Prerogative and are and always have been of great use and that the Contemners of such of them as are not against the Law are and by the constant Practise of the Star-Chamber in England have been punished according to the Nature of the Contempt and Course of the said Court And although Acts of State are not of Force to bind the Goods Possessions and Inheritance of the Subject yet they have been of great use for setling of the Estates of very many Subjects in this Kingdom as may appear in the Report of the Case of Irish Gavil-Kind in Print And further to that Question they cannot Answer for the Reasons in their Answer unto the third Question set forth 8. To the Eighth they say That they know no ordinary Rule of Law by the which the Subjects of this Kingdom are made Subject to Martial Law in time of Peace and that they find the use thereof in the time of Peace in England complained of in the Petition of Right exhibited unto his Majesty in the third year of his Reign and that they conceive That the Granting of Authority and Commission for execution thereof is derived out of his Majesties Regal and Prerogative Power for suppressing of sudden and great Insolencies Insurrections among
Estates which may come Judicially before them 15. To the Fifteenth they say That they conceive that where Priviledges are claimed by any Body Politic or other the King's Council may exhibit a Quo Warranto to cause the Parties claiming such Priviledges to set forth and shew by what Warrant they claim the same and that the Court cannot hinder the issuing of Process at the Instance of the King's Attorney to exhibit such Information But when the Case shall upon the Proceedings be brought to Judgment then and not before the Court is to take notice and give Judgment upon the Merit and Circumstances of the Cause as upon due consideration shall be conceived to be according to Law in which Case the Judges nor the King's Attorney as they conceive ought to be punished by any ordinary Rule of Law or Statute that they know But for this particular Question of Quo Warranto for that it hath been a great Question in this present Parliament and concerns the highest Court of Justice in this Kingdom and also concerns two other of His Majesties Courts of Justice and therein His Majesties Prerogative in those Courts they cannot safely deliver any Opinion therein before it comes Judicially before them and that they hear it argued and debated by Learned Councel on both sides 16. To the Sixteenth they say That although the Jurors be the sole Judges of the matter of Fact yet the Judges of the Court are Judges of the Validity of the Evidence and of the matters of Law arising out of the same wherein the Jury ought to be guided by them And if the Jury in any Criminal Cause between the King and Party give their Verdict contrary to clear and apparent Evidence delivered in Court they have been constantly and still ought to be Censured in the Star-Chamber in England and Castle-Chamber here for this misdemeanour in perverting the right Course of Justice in such Fines and other punishment as the Merits and Circumstances of the Cause doth deserve according to the Course of the said Courts For that their Consciences ought to be directed by the Evidence and not be misguided by their Wills and Affections and if the Jury know any matter of Fact which may either better or blemish their Evidence they may take advantage thereof but they ought to discover the same to the Judges And they say That this proceeding in the Court of Castle-Chamber is out of the same ground that Writs of Attaint are against a Jury that gives a false Verdict in a Court of Record at the Common Law betwixt Party and Party which false Verdict being found by a Jury of 24 notwithstanding that the first Jurors were Judges of the Fact yet that infamous Judgment was pronounced against the first Jury which is next or rather worse then Judgment of Death and lay a perpetual brand of Perjury upon them for which reason it was Antiently called the Villainous Judgment And they say That the Law to direct the punishment for such Offence is the course of the said Court which is a Law as to that purpose and the Statute of 3 H. 7. cap. 1 2. and other Statutes of Force in this Kingdom 17. To the Seventeenth they say They can answer no otherwise then they have in their Answer to the next precedent Question 18. To the Eighteenth they say That in a Legal Construction the Statute of Magna Charta in which the words of Salvo Contenemento are mentioned is only to be understood of Amerciaments and not of Fines Yet where great Fines are imposed in Terrorem upon the reducement of them regard is to be had to the Ability of the Persons 19. To the Nineteenth they say That if one doth steal a Sheep or commit other Felony and after flyeth the Course of Justice or lyeth in Woods or Mountains upon his Keeping Yet he doth not thereby become a Traytor neither doth a Proclamation make him so the Chief use whereof in such a case is to invite the Party so standing out to submit himself to Justice or to forewarn others of the danger they may run into by Keeping him Company or giving him Maintenance or Relief whereby he may the Rather submit to Justice 20. To the Twentieth they say That the Testimony or Evidence of Rebels or Traytors under Protection or Thieves or other Infamous persons is not to be used or pressed as Convincing Evidence upon the Tryal of any man for his Life And so is his Majesties printed Instructions as to persons Condemned or under Protection yet the Testimony of such persons not condemned may be given in Evidence at the Tryal and being fortified with other Concurring Proof or Apparent Circumstances may be pressed upon any Tryal and for discovering their Fellows or Abettors or Relievers as the Circumstances may offer themselves in their Examination especially if before they Confess themselves guilty of the Offence in Imitation of the Approver at the Common Law whereof no Certain Rule may be given And it needs not be made a Question here Whether the Jurors or Judges ought to be Judges of the matter of Fact It being positively laid down in the 16th Question that they are and tho their false Verdict doth convince or not convince the Prisoner yet they may be questioned and punish'd for a false Verdict as in their Answer to the 16th is already declared 21. To the Twenty first they say That that Question is now judicially depending and hath been already solemnly argued in his Majesties Court of Wards in which Court their Assistance for declaration of the Law therein is already required And therefore they humbly desire they may not be compelled to give any Opinion touching that Point until it be resolved there 22. To the Two and twentieth they say That they do conceive there is no matter of Law contained in the said Question yet for further satisfaction of your Lordships they say That upon View of an Act of State bearing date at his Majesties Castle of Dublin the 24th of December 1636. grounded upon his Majesties Letters of the 5th of July last past it appears unto them that Four shillings in the pound as of his Majesties free Gift and Reward out of the first payment of the Increase of Rent reserved to his Majesty was allow'd unto the Judges that were Commissioners and attended that Service And they humbly conceive That the receiving of that Four shillings in the pound of his Majesties Bounty stands well with the Integrity of a Judge And those Judges did inform them That they did not avoid any Letters Patents upon those Commissions of Defective Titles but receive such to Compound as submitted for the strengthening of their defective Patents and Titles And such as would stand upon the Validity of their Grants were left to the Tryal of Law And that the Compositions made after the said Grants of 4 s. in the pound were made according to Rules and Rates agreed upon by all the Commissioners before his
according to the Command thereof upon due and convenient notice thereof given to him at the Charge of the Party or Parties who requireth or procureth such Writ or Writs and upon Security by his or their own Bond or Bonds given to pay the Charge of carrying back the Prisoner or Prisoners if he or they shall be commanded by the Court to which he or they shall be brought as in like Cases has been used such Charges of bringing up and carrying back the Prisoner or Prisoners to be always ordered by the Court if any Difference shall arise there about bringing or cause to be brought the Body or Bodies of the said Party or Parties so committed or restrained unto and before the Judges and Justices of the said Court from whence the same Writ or Writs shall issue in open Court and shall then likewise certify the true Cause of such his or their Deteinors or Imprisonment and thereupon the Court after such Return made and delivered in open Court shall proceed to examine and determine whether the Cause of such Commitment appearing upon the said Return be just and legal or not and shall thereupon do what to Justice shall appertain either by Delivering Bailing or remanding the Prisoner or Prisoners 7. Quest Of what Force is an Act of State or Proclamation in this Kingdom to bind the Liberty Goods Possessions or Inheritance of the Natives thereof whether they or any of them can alter the Common Law or the Infringers of them loose their Goods Chattels or Leases or forfeit the same by Infringing any such Act of State Proclamation or both And what punishment do the sworn Judges of the Law that are Privy Councellors incur that Vote for such Acts and Execution thereof Declarat An Act of State or Proclamation in this Kingdom cannot bind the Liberty Inheritance Possession or Goods of the Subjects of the said Kingdom nor alter the Common Law and the Infringers of any such Act of State or Proclamation ought not to forfeit Lands Leases Goods or Chattels for the infringing of any such Act of State or Proclamation and the Judges of the Law who do vote for such Acts of State or Proclamation are punishable as Breakers and Violators of their Oaths of Judges 8. Quest Are the Subjects of this Kingdom subject to the Martial Law And whether any man in the time of Peace no Enemy being in the Field with Banners displayed can be Sentenced to death If so by whom and in what Cases If not What Punishments do they incur that in time of Peace execute Martial Law Declarat No Subject of this Kingdom ought to be Sentenced to Death or Executed by Marshal Law in time of Peace and if any Subject be so Sentenced or Executed by Marshal Law in time of Peace the Authors and Actors of any such Sentence or Execution are punishable by the Law of the Land for their so doing as Doers of their own Wrong and contrary to the said Law of the Land 9. Quest Whether Volantary Oaths taken freely before Arbitrators for Affirmance or Disaffirmance of any thing or for the true performance of any thing be punishable in the Castle-Chamber or any other Court and why and wherefore Declarat No Man ought to be punished in the Castle-Chamber or any other Court for taking a Voluntary Oath before Arbitrators for affirmance or disaffirmance of any Thing or the true Performance of any thing in Civil Causes nor are the Arbitrators before such Voluntary Oath shall be taken Punishble 10. Quest Why and by what Law or by what Rule of Policy is it that none is admitted to Reducement of Fines and other Penalty in the Castle-Chamber or Council Table untill he confess the Offence for which he is Censured when as Revera he might be innocent thereof tho suborned Proofs or Circumstance might induce a Censure Declarat By the Laws and Statutes of the Realm no Man is bound or ought to be compelled to acknowledg the Offence laid to his Charge or the justness of any Censure past against him in the Castle-Chamber or at the Council Table nor ought to be deteined in Prison or abridged of his Liberty or the Reducement of his Fine stayed or delayed until he doth acknowledg such Offence or the justness of such Censure And it is further declared That no such inforced or wrested Confession or Acknowledgment can or ought to debar or hinder any Subject from his Bill of Reversal or Review of any Sentence or Decree past or conceived against him in the Castle-Chamber or in any other Court 11. Quest Whether the Judges of the Kings-Bench or any other Judges of Goal-Delivery or of any other Court and by what Law do or can deny the Copies of Indictments of Felony or Treason to the Parties accused contrary to the Law Declarat The Judges of the Kings-Bench or Justices of Goal-Delivery or the Judges of any other Court ought not to deny Copies of Indictments of Felony or Treason to the Parties indicted 12. Quest What Power have the Barons of the Court of Exchequer to raise the Respite of Homage arbitrarily to what Rate they please to what Value they may raise it by what Law they distinguish between the Respit of Homage upon the diversity of the true value of the Fees when as Escuage is the same for great and small Fees and are apportionable by Parliament Declarat The Barons of the Exchequer ought to raise the Respite of Homage above the usual Rates appearing in and by the Course and Precedents of the Court continued until the year of our Lord God 1637 and the raising thereof since that time was Arbitrary and against the Law And the Barons of the Exchequer ought not to distinguish between the Respite of Homage upon any diversity of the true values of the Knight's Fees 13. Quest Whether it be Censurable in the Subjects of this Kingdom to repair into England to appeal to his Majesty for Redress of Injuries or for other Lawful Occasions If so for why and in what Condition of Persons and by what Law Declarat The Subjects of this Kingdom may lawfully repair into England to appeal to his Majesty for Redress of Injuries and for other their Lawful Occasions and for their so doing ought not to be punished or questioned upon the Statute of 5 R. 2. nor by any other Law or Statute of Force in this Kingdom eminent Officers and Ministers of State Commanders and Soldiers of his Majesties Army the Judges and Ministers of his Majesties Courts of Justice and of his Highness Revenue and Customs whose Attendance is necessarily requisite by the Laws and Statutes of the Realm only excepted 14. Quest Whether Deans or other Dignitaries of Cathedral Churches be properly and de Mero jure Donative by the King and not Elective or Collative If so Why and by what Law And whether the Confirmation of a Dean de Facto of the Bishops Grant be good or valid in Law and no If not by what Law
before been said concerning the beginning of this Execrable and Unparallel'd Rebellion take the Words of an * Excellent and Noble Author upon that Subject THe Irish Nation A M. S. S. in the custody of his Grace the Duke of Ormond written by the Right Honourable the Earl of Clarendon saith he was possessed of the most blessed and happy Condition before their own to say no worse unskilful Rage and Fury brought this War upon them and they have since had leisure enough thoroughly to consider and value the wonderful Plenty Peace and security which they enjoyed till the year 1641 when they wantonly and disdainfully flung those Blessings from them They were arrived to a mighty increase of Traffick Improvement of Land Erection of Buildings and whatever else might be profitable or pleasant to any People and these desirable Advantages and Ornaments the Policy and Industry of that Nation was utterly unacquainted with till they were brought to them by the skill and labour of the English planting and living Charitably Friendly and Hospitably among them Taxes and Tillages and other Contributions were things hardly known to them so much as by their Names whatever their Lands Labour or Industry produced was their own and they were not only free from the fear of having it taken from them by the King upon any pretence whatsoever without their own consents but also so secured against Thieves and Robbers by the Execution of good Laws that Men might and did Travel over all Parts of the Kingdom with considerable Sums of Money unguarded and unconcealed If this happy posture of Affairs It were well if our English Non-conformists would look in this Glass they would see their own pourtaict exactly and may by timely consideration avoid the same destiny was undervalued under the Notion of being but Temporal Blessings and the want of Freedom be alledged as to the Exercise of the Romish Religion to which that Nation was generally addicted it cannot be denied but that though by the Laws and Constitutions of that Kingdom the Power and Authority of the Bishop of Rome is not in any degree allowed or submitted to by the Government yet by connivance the whole Catholique Body of that Nation enjoyed an undisturbed Exercise of that Religion and even at Dublin where the Seat of the King 's chief Governour was such was the indulgence of Authority then towards them that they went as uninterruptedly to their Devotions as the Governor did to his Bishops Priests and all Degrees and Orders of the Secular and Regular Clergy lived and exercised their Functions among them And though there were some Laws against them still in force which the Necessity and Wisdom of former Ages had caused to be Enacted to suppress those acts of Treason and Rebellion which that People frequently fell into and the Policy of the present Times kept unrepealed to prevent the like Distempers and Designs yet the Edge of those Laws was so totally rebated by the Clemency and Compassion of the King that no Man could say he had suffered prejudice or disturbance in or for his Religion which is another kind of indulgence then the Subjects professing a faith contrary to that which is Established by the Laws of the Land can boast of in any other Kingdom in the World When in the Year 1640 they discerned some Distempers arising in England upon the Scots Invasion and perceived the Support and Countenance that People then found in both Houses of Parliament in England they would likewise bear a part and bring in their Contribution to the work in hand then they began to Transplant those dangerous humors of Jealousies and Discontents which they found springing up Seditiously in the Parliament at Westminster into Ireland and with the same Passion and Distemper cherished them in the Parliament at Dublin They fell to Accusing upon general and unreasonable Imputations the principal Councellors and Ministers of State who were intrusted by the Crown in that Kingdom impeaching them of High Treason and thereby according to the Rule unjustly then prescribed at Westminster they removed those Persons from any Power in Publick Affairs there whose wisdom might probably otherwise have prevented the mischiefs which have since ensued Then did they most weakly and childishly concur with the greatest Enemies their Nation or Religion had in the Conspiracy against the life of the Earl of Strafford Lord Lieutenant of that Kingdom by whose Wisdom and most prudent Government that Nation had reaped great advantages and was daily receiving greater and sent a Committee from Dublin to Westminster to join in the Prosecution of him and having in the end procured the miserable and never enough lamented Ruin of that great Person they powerfully opposed and hindred the conferring of that charge upon any of those His Majesty had designed to undertake it and at the last by their repeated importunities they got it devolved into such hands as were most unlike to grapple with the difficulties which they were sure to meet with and having thus to their uttermost power fomented the divisions in England and discountenanced and weakened the Regal Power in Ireland by raising the same Factions against it there on the sudden upon the 23d day of October 1641 without the least pretence of Quarrel or Hostility so much as apprehended by the Protestants great multitudes of Irish Roman Catholicks in the Province of Vlster and shortly after in other Provinces and parts of the Kingdom Tumultuously assembled together put themselves in Arms seised upon the Forts Castles Towns and Houses belonging to the Protestants which by their force they could possess themselves of and with most Barbarous Circumstances of Cruelty within the space of a few days murthered an incredible number of Protestants Men Women and Children promiscuously and without distinction of Age or Sex and of all those who were within the reach of their Power they who escaped best were robbed of all that they had to their very skins and so turned naked to indure the sharpness of that Season and by that means and for want of Relief many thousands of them perished by hunger and cold the Design which was at the same time laid for the surprise of the Castle of Dublin the Residence of the King 's chief Governors and His Majesties principal Magazine of Arms and Ammunition wherewith it was then plentifully stored being discovered by a person trusted and thereby disappointed that place was left singly to consult of the best means to oppose the Torrent which was like to overwhelm the whole Kingdom and for a Refuge to the poor Protestants who from all parts of the Kingdom flocked thither Despoiled Robbed and Stripped with the sad Relations of the most inhumane Cruelties and Murthers exercised upon their Friends Kindred and Neighbours which have been ever heard of amongst Christians It is not All the Irish not Guilty of the Rebellion adds he the purpose of this Discourse to lay any imputations of this Rebellion and
and with all giving him in Charge that in his Name he should return his Thanks to the whole City One would be apt to think by this Days Solemnity that there was not a more Loyal City or a more happy Prince in the whole Universe and to say the Truth it may be the better part of the City was never more sincere in their Affections to this most Excellent Prince and could they have kept the Governing Power in their Hands they would have given other Testimonies of their Loyalty then this Entertainment tho possibly one of the most Splendid Magnificent and well Managed that ever was given to a King of England But the prevailing Faction at Westminster who knew it would be impossible to carry on their Designs against the Monarchy without the Assistance of London the Magazine of Men and Money never ceased to actuate the Rabble and inferior Ranks of People and to Incense them against the Loyal and Governing Part till by Tumults Outrages and Violences they had wrested the Power wholly out of the Loyal Hands and vested it in such Persons as they were assured would be serviceable to their Interest and Designs as hereafter in the subsequent Relation we shall see And now possibly it will be expected that I should gratify the Reader with an Account of the Transactions of that Parliament in Scotland during his Majestie 's Presence among them and if I cannot herein Answer the Expectation of the Inquisitive I have this to plead in my own justification that the defect is not occasioned by my want of Industry For during the late aboad of his Royal Highness the Illustrious Prince James Duke of York in that Country to whose prudent Conduct not only Scotland owes so much for its present Peace Establishment and Tranquility but even England is as sensible of the good Effects of his Presence there as formerly it has been of the ill Influence the Counsels and Actions of that Nation have had upon the Affairs of this I writ to my very Worthy Friend Francis Turner Doctor in Divinity one of his Royal Highnesses Chaplains to procure me an Authentick Account of those Transactions from the Original Records of the Parliament of Scotland Who in Answer to my Request informed me how willing he was to oblige the Publick in that particular but that all those Records were irrecoverably lost for it seems in the time when that Scourge of God's Anger the late Usurper and Execrable Regicide Cromwel made his inroad into Scotland that he might set all the Marks of Slavery upon a Nation that had the Misfortune to fall under the Power of his Sword he brought along with him all the Publick Records of Scotland and deposited them in the Tower of London and when upon his most Gracious Majesties happy Restauration the King was pleased to command the restoring of them to that his Ancient Kingdom as a mark of his Favor and their regained Liberty the Ship which was imployed for their Transportation was unfortunately lost and Perished in her Voyage thither and though I did not the least doubt of the Truth of this Account from a Person of my Authors Integrity and Honor yet so Industrious was I to present the World with something that might look like an Indeavor to satisfie in this particular that hoping at least that the Titles of the Acts and Graces which then passed were not also Shipwrack't I had recourse to the Collection of the Scottish Laws and Statutes made by Sir Thomas Murray of Glendook and now lately Printed by his Majesties special Warrant but to my great disappointment from the Parliament holden in the Year 1633 in the Reign of the Royal Martyr till the year 1661 in the first Parliament holden in Scotland after his Majesties happy Restauration I find a Breach and Interruption and not so much as the Titles of any of those Acts which passed during the time of those dismal Revolutions Providence it self seeming concerned to Erase and obliterate the Records and Remembrance of the Disloyalty of that Generation of Men that so their Actions might not remain upon Record as ill Presidents to Posterity and indeed the Loyalty of the present Nobility and Gentry of that Kingdom has in a great measure expiated the Crimes and Errors of their Predecessors as will evidently appear both by their late firme adherence to the Interests of the Crown during the Commotions raised by the Presbyterian Faction in that Kingdom in the Year 1678. and by their annulling all the Proceedings of the Conventions Assemblies and Parliaments from the Year 1640 till the Year 1661. I have met with one Particular however in a little Book written as was supposed by Mr. James Howel concerning the Transactions of those Times where he mentions a Law which then passed which was very remarkable which he saith was the reviving of an old Statute to the same Effect Part of an Act of the Scottish Parliament 1641. making it Treason to levy Forces without the King's Commission which they caused to be Published throughout the whole Realm of Scotland by which it was Statute and Ordained That it should be detestable and damnable Treason in the highest Degree for any of the Scots Nation conjunctly or singly to levy Arms or any Military Forces upon any Pretext whatsoever without the King 's Royal Commission which I also find mentioned in the Continuation of Baker pag. 514. But it seems Presbyterians and Papists agree in this particular That no Faith is to be kept with Hereticks for they shortly after proved their own Popes and absolved themselves and the Nation from the Obligation of this Law by raising of Men and joyning with the English Rebels as in due time we shall see It is most certain that at this time the King complied to the utmost with the Desires of the Scottish Parliament insomuch that they could scarce Request so fast as he Granted his Majesty being resolved to put one of his Kingdoms if possible into a Posture of Peace and Quietness Several Honors were likewise then Conferred among the rest the Marquiss of Hamilton was created a Duke and General Leshly Earl of Leven of whom I meet with these two remarkable Particulars Leshly was so transported at this extraordinary Bounty and unexpected as well as unmerited Honor that he often protested and once particularly at Perth upon his Knees in the House of the Earl of Kenoul that he would never again bear Arms against the King but he not long after made the Poet a Prophet verifying the Verse Nulla Fides Pietasve viris qui Castra sequuntur And for Duke Hamilton there having been a pretended Conspiracy against him and Argyle which though the Proof amounted to nothing at all yet the Information had some oblique Reflections upon his Majesty the King who could not conceal his resentment of this Carriage in Hamilton which he had so little merited from him when he delivered him his Patent of Duke in Parliament according
Declaration against the House of Commons was published in His Majesties Name which yet wrought little Effect with the People but only to manifest the Impudence of those who were Authors of it A forced Loan of Money was attempted in the City of London The Lord Mayor and Aldermen in their several Wards injoyned to bring in a List of the Names of such Persons as they judged fit to lend and of the Sum they should lend And such Aldermen as refused so to do were committed to Prison The Archbishop and the other Bishops and Clergy continued the Convocation and by a new Commission turned it to a Provincial Synod in which by an unheard-of presumption they made Canons that contain in them many Matters contrary to the King's Prerogative to the Fundamental Laws and Statutes of the Realm to the Right of Parliaments to the Property and Liberty of the Subject and Matters tending to Sedition and of dangerous Consequence thereby establishing their own Usurpations justifying their Alter-Worship and those other Superstitious Innovations which they formerly introduced without Warrant of Law They Imposed a new Oath upon divers of his Majesties Subjects both Ecclesiastical and Lay for maintenance of their own Tyranny and laid a great Tax upon the Clergy for Supply of his Majesty and generally they shewed themselves very Affectionate to the War with Scotland which was by some of them styled Bellum Episcopale and a Prayer Composed and Injoyned to be read in all Churches calling the Scots Rebels to put the two Nations into Blood and make them irreconcileable All those pretended Canons and Constitutions were armed with the several Censures of Suspension Excommunication Deprivation by which they would have thrust out all the good Ministers and most of the Well-Affected People of the Kingdom and left an easie Passage to their own Design of Reconciliation with Rome The Popish Party injoyned such Exemptions from the Penal Laws as amounted to a Toleration besides many other Encouragements and Court Favours They had a Secretary of State Sir Francis Windibank a powerful Agent for the speeding of all their desires a Popes Nuntio residing here to Act and Govern them according to such Influences as he received from Rome and to intercede for them with the most powerful Concurrence of the Forreign Princes of that Religion By his Authority the Papists of all sorts Nobility Gentry and Clergy were convocated after the manner of a Parliament new Jurisdictions were erected of Romish Archbishops Taxes levied another State moulded within this State independant in Government contrary in Interest and Affection secretly corrupting the ignorant or negligent Professors of our Religion and closely uniting and combining themselves against such as were Sound in this Posture waiting for an Opportunity by force to destroy those whom they could not hope to seduce For the effecting whereof they were strengthened with Arms and Munition encouraged by superstitious Prayers enjoyned by the Nuncio to be weekly made for the prosperity of some great Design And such Power had they at Court that secretly a Commission was issued out intended to be issued to some great Men of that Profession for the levying of Soldiers and to Command and Imploy them according to private Instructions which we doubt were framed for the advantage of those who were the Contrivers of them His Majesties Treasure was consumed his Revenue anticipated His Servants and Officers compelled to lend great Sums of Money Multitudes were called to the Councel Table who were retired with long attendances there for refusing illegal Payments The Prisons were filled with their Commitments many of the Sheriffs summoned into the Star-Chamber and some imprisoned for not being quick enough in levying the Ship-Money the People languished under Grief and Fear no visible hope being left but in desperation The Nobility began to be weary of their Silence and Patience and sensible of the duty and trust which belongs to them and thereupon some of the most eminent of them did Petition his Majesty at such a time when evil Councels were so strong that they had reason to expect more hazard to themselves then redress of those publick Evils for which they interceded whilest the Kingdom was in this agitation and distemper the Scots restrained in their Trades Impoverished by the loss of many of their Ships bereaved of all possibility of satisfying his Majesty by any naked Supplication entred with a powerful Army into the Kingdom and without any Hostile Act or Spoil in the Country as they passed more than forcing a Passage over the Tyne at Newborne near New-Castle possessed themselves of New-Castle and had a fair opportunity to press on further upon the King's Army but Duty and Reverence to his Majesty and brotherly love to the English Nation made them stay there whereby the King had leisure to entertain better Counsels wherein God so blessed and directed him that he summoned the great Council of Peers to meet at York upon the twenty fourth of September and there declared a Parliament to begin the Third of November then following The Scots the first day of the great Council presented an humble Petition to His Majesty whereupon the Treaty was appointed at Rippon A present Cessation of Arms agreed upon and the full Conclusion of all Differences referred to the Wisdom and Care of the Parliament At our first Meeting all Oppositions seemed to vanish the Mischiefs were so evident which those Evil Counsellors produced that no Man durst stand up to defend them Yet the Work it self afforded difficulty enough The multiplied Evils and Corruption of sixteen years strengthened by Custom and Authority and the concurrent Interest of many powerful Delinquents were now to be brought to Judgment and Reformation The King's Houshold was to be provided for they had brought him to that Want that he could not supply his ordinary and necessary Expences without the Assistance of his People Two Armies were to be payed which amounted very near to eighty thousand Pounds a Month the People were to be tenderly charged having bin formerly exhausted with many burthensome Projects The difficulties seemed to be insuperable which by the Divine Providence we have overcome The Contrarieties incompatible which yet in a great measure we have reconciled Six Subsidies have been granted and a Bill of Poll-Money which if it be duly levyed may equal six Subsidies more in all six hundred thousand pounds Besides we have contracted a Debt to the Scots of 220 thousand pounds and yet God hath so blessed the endeavours of this Parliament that the Kingdom is a great gainer by all these charges The Ship-Money is abolished which cost the Kingdom above two hundred thousand pounds a year The Coat and Conduct Money and other Military charges are taken away which in many Countries amounted to little less then the Ship-Money The Monopolies are all supprest whereof some few did prejudice the Subject above a Million yearly The Soap an hundred thousand pounds the Wine three hundred thousand pounds
have a Copy of the Declaration against him and shall put in his Answer thereunto on Tuesday come seven Night The Commons were also in an extraordinary heat about the Halberdeers who were set to prevent Tumults and Riots Routs and unlawful Assemblies which now frequently resorted to Westminster to cry out against the Bishops and their Votes in Parliament some of the Halberdeers were called to the Bar and Examined and they giving the same Account as was before given to the Lords the Bailiff of Westminster the Constable of St. Clement Danes and the Under-Sheriff of Middlesex were ordered to be sent for to give an Account of the Reason of placing those Guards about the Parliament House And thereupon it was Voted Resolved c. That the setting of any Guards about this House Vote of the Commons concerning the Guard of Halberdeers set about the Parliament House without the Consent of the House is a breach of the Privilege of this House and that therefore such Guards ought to be dismissed And thereupon the Serjeant at Armes attending the House was appointed to Command them to depart which was done accordingly The House then sell into Debate concerning the treating with the Scottish Commissioners concerning raising Men for the relief of Ireland and upon the Question it was Resolved c. That this House doth Approve and Consent that his Majesties Commissioners named by the House and appointed to treat with the Scotch Commissioners shall treat with them for the raising of 10000 Scots for the Occasions of Ireland Sir Walter Earl then gave Information to the House of some dangerous Words spoken by several Persons but did not Name them whereupon it was Ordered That Mr. Speaker should issue out a Warrant to apprehend such Persons as Sir Walter Earl shall nominate to him for speaking Words of a dangerous Consequence This was one of the common Arts which they used to restrain those who were able from informing the People of the dangerous Consequences of their own Proceedings and Liberty of Speech seemed now to be wholly confined within the Walls of St. Stephen's Chappel or if any of that common Privilege of Mankind was indulged it was only to the Favourites of the Faction the Sectaries and Schismaticks who they were assured would be very serviceable to them in imploying that Liberty to traduce and Calumniate the King the Bishops the Government of the Church and whatever was either Orthodox or Loyal but for others if they once dared to Intrench upon the Privilege of the Pretended Sects or to correct those Liberties they took to defame the King and his Ministers the Church and her Governors or to arraign any of the violent Proceedings of the Faction these Religious Spies and Setters immediately gave Informations against them to some of the Members of the Commons and these Men had a certain devise to punish Men who had transgressed no known Law for Crimes which would not bear an Indictment or the Test of a Jury of their Peers by bringing them under the Rod of the Commons House for Words of dangerous Consequence for which constructive Offences their Persons were imprisoned and their Purses fleeced by the Serjeant and his Officers as if they had been the most notorious Malefactors Such precious beginnings had this Dawning of the glorious Day which they promised the People should be nothing but one continued Sun-shine of Liberty and Property without the least Cloud of Arbitrary or Exorbitant Government But as a great Man said upon another Occasion in this present Parliament Misera est servitus ubi jus est vagum et incertum Where known Law ends there Slavery begins And where our Law knows not how to lay an Indictment it must certainly be something Arbitrary that inflicts a Punishment But this was the Case of Loyalty Men were not only made Offenders for a Word but for such Words as were justifiable by the Laws of God and Man His Majesty whose Zeal for the Church was as Eminent as his Piety and Devotion were singular and most extraordinary observing what an Inundation of Schisme and Errors were flowing in upon the Church the Pretence of Reformation letting loose all the Schismaticks who pretended to be the great Reformers issued out a most Excellent Proclamation to prevent that Disorder Division and Separation which he too Prophetically foresaw would indanger the Subversion of the very Essence and Substance of Religion The Proclamation was as follows A Proclamation for Obedience to the Laws Ordained for Establishing of the True Religion in this Kingdom of England HIs Majesty considering that it is a Duty most beseeming A Proclamation for Obedience to the Laws for Establishing the true Religion in England Dec. 11. 1641. and that most obligeth Soveraign Authority in a Christian King to be careful above all other Things of preserving and advancing the Honor and Service of Almighty God and the peace and tranquility of the Church to which end His Majesty with his Parliament hath it under Consideration how all just Scruples might be removed And being in the mean time sensible that the present Division Separation and Disorder about the Worship and Service of God as it is Established by the Laws and Statutes of this Kingdom in the Church of England tendeth to great Distraction and Confusion and may endanger the Subversion of the very Essence and Substance of true Religion hath resolved for the preservation of Vnity and Peace which is most necessary at this time for the Church of England to require Obedience to the Laws and Statutes Ordained for establishing of the True Religion in this Kingdom whereby the Honor of God may be advanced to the great Comfort and Happiness both of His Majesty and his good Subjects His Majesty doth therefore Charge and Command That Divine Service be performed in this His Kingdom of England and Dominion of Wales as is appointed by the Laws and Statutes Estadlished in this Realm and that Obedience be given by all His Subjects Ecclesiastical and Temporal to the said Laws and Statutes concerning the same And that all Iudges Officers and Ministers Ecclesiastical and Temporal according to Iustice and their respective Duties do put the said Acts of Parliament in due Execution against all willfull Contemners and Disturbers of Divine Service contrary to the said Laws and Statutes His Majesty doth further Command That no Parsons Vicars or Curates in their several Parishes shall presume to introduce any Rite or Ceremonies other then those which are Established by the Laws and Statutes of the Land Given at His Majesties Palace of White-Hall the tenth Day of December in the Seventeenth Year of His Majesties Reign God save the KING But the Root of the Schism lay too deep to be Cured by a Proclamation and the Separatists knew where to take Sanctuary not only for their Disobedience to the Laws made in favor of the Church but of the Crown too or otherwise they would not in such riotous and Tumultuous Manner
attempt in their Petition and Protestation against the King and Parliament These Gentlemen with my self and others having the prosecution of that business and other Charges of great Crimes against them committed to our Trust did unanimously with one consent follow the same bringing to a period our Debates and Disputes concerning their Crimes what we conceived they were guilty of upon their several Charges and what guilty of for framing and preferring their Petition and Protestation to His Majesty that they were guilty of Misprison of Treason upon their former Accusations and guilty of High Treason upon this their last design And these our Votes and Conclusions grounded and warranted not only by the Common Laws of this Land but by divers Acts of Parliament and Presidents we presented to the whole House for Consideration and Confirmation of the same by general Vote with whom we again agreed by our publique Votes and thereupon they were Impeached and Committed This I conceive provoked their malice against us and was the principal cause of this their Plot in drawing an Accusation against us for the same Crime of Treason thereby to make us seem as vile as themselves and to take away our Votes at their Tryal And thus I have joyn'd together both the Cause and the Authors of this Accusation The Effects I conceive will be dangerous and cause great Trouble in these respects 1. In turning the Current of the Parliaments Proceedings against them upon us by which device they shall have further time to put in practice their Plots and bring to perfection their purposes against the Parliament 2. That being busily imployed concerning this business in their disputes about breach of Priviledg of Parliament in illegal accusing the Members thereof in drawing a Declaration to his Majesty concerning the same in appeasing him by shewing the sincerity and integrity of the Parliament toward his Majesty and other things pertinent thereunto this High Court may lay aside their Proceeding and avert their Purposes touching the Irish Affairs whereby the Rebellion there may increase and forraign Aid brought to them to the utter losing of that Kingdom 3. Many Fears and Troubles will arise in the Citizens concerning this Accusation of desperate and devillish Stratagems in agitation as well against them as the Parliament by disconsolate and disaffected persons to the Safety and Security thereof causing their continual Watching and Guarding by their Trained Bands which will be to them a great Charge and Molestation 4. It will incourage ill-affected and pernitious Cavaliers and Commanders about Court to attempt any mischief against both Houses of Parliament or particular Members thereof upon the least opportunity that shall be offered them thinking thereby they shall do the King good service which otherwise they dare not adventure to put in practise 5. And lastly It will provoke and stir up a dislike of these designs in the Hearts of all his Majesty's Subjects and disaffection to his Sacred Person cause great Uproars and Tumults of the Citizens yea and I fear a general Insurrection in the Kingdom if not suddainly prevented which God forbid And thus Master Speaker having nothing more to say concerning these Articles I humbly crave of this Honourable House That I may have Expedition in my Tryal upon the same and that all things done by this Wise Councel may tend to the Honour and Glory of Almighty God the Peace and Safety of His Sacred Majesty and all his Kingdoms A Message was this day brought up from the House of Commons by Sir John Hotham to desire a present free Conference Tuesday Jan. 4th if it may stand with their Lordships conveniency by a Committee of both Houses touching the safety of the King and Kingdom and the Privileges of both Houses of Parliament The Lord Keeper Reported the effect of the Conference which was To move the Lords again to joyn with them humbly to move his Majesty that the Guards at White-Hall may be discharged and to vindicate the Priviledges of Parliament and they do reiterate their desires of Yesterday upon these Reasons 1. The House of Commons have received fresh Informations that divers Gentlemen have made their Addresses to the Gentlemen of the Inns of Court and have dealt with them to come Armed to White-Hall when they shall be required yet they have not condescended thereto 2. The House of Commons have met with a scandalous Paper as was published abroad which contained Articles of High Treason against the Lord Kymbolton c. The House of Commons desires their Lordships would joyn with them to find out the Authors and to bring them to condign punishment for so high a breach of the Priviledges of Parliament But nothing at this time was Resolved of In the Commons House the Lord Faulkland reported the King's Answer to the Message of this House delivered to his Majesty last night That his Majesty asked them whether the House did expect an Answer They replied they had no more in Commission to say but only to deliver the Message The King asked them as private Persons what they thought of it They said they conceived the House did expect an Answer but his Majesty was informed the House was up so he said he would send an Answer this Morning as soon as this House was set but in the mean time he Commanded them to acquaint the House that the Serjeant at Arms did nothing but what he had directions from himself to do Mr. Whittaker Reported from a Committee at Guild Hall Mr. Toby Wood committed to Newgate That an Information was Exhibited upon Oath by one John Bricker against Mr. Toby Wood for Seditious and Treasonable Words whereupon he was committed to Newgate by Order of the Committee at Guild-Hall Also a Vote passed Sir Will. Killegrew a Delinquent That Sir William Killegrew be forthwith sent for as a Delinquent by the Sergeant at Arms attending on the House Then Mr. Smith Mr. Ellis Mr. Hill Mr. Brown and Sir Richard Vivian were appointed to go to the several Inns of Court Message to the Gentlemen of the Inns of Court and to acquaint them That this House hath taken notice of the Practice of some Gentlemen that have endeavoured to engage the Gentlemen of the Inns of Court to be in readiness upon all Occasions to come down to the Court if they should be required That this House hath sent for the Gentlemen that were with them as Delinquents and do believe that their Crime will prove to be of an high Nature And further to inform them That the Parliament is and will be upon all occasions as ready to defend his Majesties Person as any others and they are to inform them that the Cause of sending to them is not any diffidence they have in them but to advise them from any Practices that they shall be moved unto And that upon this occasion put the whole City into an uproar Message to the Common-Council It was Ordered That Alderman
the two Houses did as confidently aver for positive and undoubted Truths as if they had had a Discovery under the King or the Queens own Hand and Seal and to make the People believe it they so vigorously pressed that the Queen might make an Open and Publick Declaration to be sent to Ireland disavowing all manner of Countenance or Assistance to the Rebels or the Rebellion which was designed purposely to blemish Hers and the King's Honor by spreading the Suspition which the Faction had that they were concerned secretly in this detestable Rebellion There were indeed some great Persons I doubt not who gave the Rebels all the Countenance Encouragement and Assistance they could Possibly but I am for setting the Saddle upon the Right Horse Cardinal Richelieu I make no doubt who was in his time the great Incendiary of Europe and who had had a great share in the management of the Scottish Rebellion as before hath been observed had also a very great Influence both upon this Rebellion in Ireland and that which followed it in England as in due time I shall indeavour to make it appear And to fortifie this Opinion I will present the Reader with the Information of Mr. James Wishert a Scot who in a Letter to Mr. Pym gives this account of himself and the Intelligence he got among the Rebels during the space of 12 Weeks that he was a Prisoner among them and since I have not found that Mr. Pym made this Information publique which confirms me in the Opinion that this was a tender point and Richelieu too much a Friend to their own wicked designs to be discovered or Exposed I think my self bound to give Posterity all the light I have been able to discover to enable them to look into the dark and horrid Contrivances of the Conspirators of that Age and the rather in regard it may be a Caution to succeeding Times and may give them some Reason to suspect that there may be dangerous Confederacies even between the Pretenders to Reformation and the greatest Papists though for different Ends the Reformers to secure themselves from Justice by embroyling the Nation and the Popish Ministers of Forreign Nations to keep us busie at home that so we might not be at leizure to keep the ballance even as the Kings of England have ever had the Honour to do but that our hands being tied behind us by domestique Divisions they might be at Liberty by the Power of their Arms to Extend their Empire and Ambition beyond the Bounds and Limits within which the Wisdom of former Ages had restrained them The Information was as followeth OCcurrences that I learned for truth the time of my Bondage Mr. Wishert's Information that Cardinal Richlieu somented the Irish Rebellion First by Mr. Thomas Flemyng Father-in-Law to the Lord Inchekilling and divers others in the Camp That General O Neil with the Rebels had sent one Christopher Ultache a Frier to the Cardinal Richelieu whom he detained five Weeks till he should see further of their Success then they sent another Frier called Newgent with whom they sent the true Relation of all their proceedings whereupon the Cardinal hath assured to send them 16000 Sute of Arms for Foot and 6000 for Horse to Dunkirk and from thence to be sent to Wexford there to be received by the O Tooles Bearns and the Mac Farralds and if they could not land there to land at Carlingford to be received by the Mac Gennis'es and Mac Carties As also that Con Oghe O Neil the Lawful Heir of the House of Tyrone with Colonel Preston Vncle to the Viscount Gormanstown are in West Flanders and have written to all the Irish in the Spanish Service the Emperor's Service or elsewhere and they are to meet them at Dunkirk and so to come from thence with all the Provisions they can make That Tredagh is of such Consequence that the Rebels Esteemed it of Inestimable Value in regard of the Strength thereof the Ammunition of Ponder Ball Cannon and other things therein and of the near Situation thereof to Dublin the Rebels assured themselves of the Kingdom if they had it and Dublin were not able to resist them John Wishert To his Trusty and Well beloved Mr. John Pym. Upon the 16th of November the Parliament met at Dublin where little was done more than the making this ensuing Protestation The Protestation and Declaration of the Lords Spiritual and Temporal and Commons in Parliament Assembled WHereas the Happy and Peaceable Estate of this Realm hath been of late and is still interrupted by sundry Persons The Protestation and Declaration of the Irish Parliament against the Rebellion ill-affected to the Peace and Tâ—anquillity thereof who contrary to their Duty and Loyalty to his Majesty and against the Laws of God and the Fundamental Laws of this Realm have Trayterously and Rebelliously raised Arms seised upon his Majesties Forts and Castles and dispossessed many of his Faithful Subjects of their Houses Lands and Goods and have slain many of them and committed other Cruel and Inhumane Outrages and Acts of Hostility within this Realm The said Lords and Commons in Parliament assembled being justly moved with a right Sense of the said Disloyal and Rebellious Proceedings and Actions of the Persons aforesaid do hereby Protest and Declare That the said Lords and Commons from their Hearts do detest and abhor the said Abominable Actions and that they shall and will to their uttermost Power maintain the Rights of his Majesties Crown and Government of this Realm and the Peace and Safety thereof as well against the persons aforesaid their Abettors Adherents as also against all Forreign Princes Potentates and other persons and attempts whatsoever And in case the persons aforesaid do not repent of their aforesaid Actions and lay down Arms and become humble Suitors to his Majesty for Grace and Mercy in such convenient time and in such Manner and Form as by his Majesty or the Chief Governor or Governors and the Council of this Realm shall be set down the said Lords and Commons do further protest and declare That they will take up Arms and will with their Lives and Fortunes suppress them and their Attempts in such a way as by the Authority of the Parliament of this Kingdom with the approbation of his Excellent Majesty or of his Majesties chief Governor or Governors of this Kingdom shall be thought most effectual Some overtures of an Accommodation however were made by some of the Rebels as appears by this Letter Addressed to the Lord Dillon Viscount of Costeloe one of the Lords of the Council of Ireland which he presented to the Board upon the 10th of Novemb. 1641. Our very Good Lord. OUR Alliance unto your Lordships Ancestors The Longford Letter to the Lord Viscount Costeloe Nov. 10. 1641. and your self and the Tryaal of your and their performance of Trust unto their Friends in their greatest Adversity encourageth us and engageth your Honour to our
for though it cost him his life he that is in possession thinks it as well worth the keeping John Sparhank in King Henry the Fourth's time meeting two men upon the way amongst other talk said That the King was no rightful King but the Earl of March and that the Pope would grant Indulgencies to all that could assist the Earl's 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-Term 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 him in mortem destructionem of the King My Lords in this Judgment and others which I shall cite to your Lordships it appears that it is a compassing the Kings death by Words to endeavour to draw the Peoples hearts from the King to set discord between the King and them whereby the People should leave the King should rise up against him to the death and destruction of the King The Cases that I shall cite prove not only that it is Treason but what is sufficient Evidence to make this good Upon a Commission held the 18th year of Ed. 4. in Kent before the Marquess of Dorset and others an Indictment was preferred against John Awater of High-Treason in the Form before-mentioned for Words which are entred in the Indictment Sub hac forma That he had been servant to the Earl of Warwick that though he were dead the Earl of Oxford was alive and should have the Government of part of that Country That Edward whom you call King of England was a false Man and had by Art and Subtilty slain the Earl of Warwick and the Duke of Clare his Brother without any cause who before had been both of them attainted of High-Treason My Lords This Indictment was Returned into the Kings-Bench in Trinity Term in the Eighteenth year of Edward the Fourth and in Easter-Term the Two and twentieth of Edward the Fourth he was outlawed by the stay of the outlawry so long as it seems the Judges had well advised before whether it were Treason or not At the same Session Thomas Heber was Indicted of Treason for these words That the last Parliament was the most simple and insufficient Parliament that ever had been in England That the King was gone to live in Kent because that for the present he had not the love of the Citizens of London nor should he have it for the future That if the Bishop of Bath and Wells were dead the Archbishop of Canterbury being Cardinal of England would immediately lose his head This Indictment was returned into the Kings-Bench in Trinity-Term in the 18th year of Edward the 4th afterwards there came a Privy-Seal to the Judge to respit the Proceedings which as it should seem was to the intent the Judges might advise of the Case for afterwards he is outlawed of High-Treason upon this Indictment These words are thought sufficient evidence to prove these several Indictments that they were spoken to withdraw the Peoples Affections from the King to excite them against him to cause Risings against him by the People in mortem destructionem of the King Your Lordships are pleased to consider That in all these Cases the Treason was for words only words by private Persons and in a more private manner but once spoken and no more only amongst the People to excite them against the King My Lords here are Words Counsels more then Words and Actions too not only to disaffect the people to the King but the King likewise towards the People not once but often not in private but in places most Publick not by a private person but by a Counsellor of State a Lord-Lieutenant a Lord-President a Lord-Deputy of Ireland 1. To His Majesty that the Parliament had denyed to supply Him a Slander upon all the Commons of England in their Affections to the King and Kingdom in refusing to yield timely supply for the necessities of the King and Kingdom 2. From thence that the King was loose and absolved from Rules of Government and was to do every thing that Power would admit My Lords more cannot be said they cannot be aggravated whatever I should say would be in Diminution 3. Thence you have an Army in Ireland you may employ to reduce this Kingdom To Counsel a King not to Love His People is very Unnatural it goes higher to hate them to Malice them in his heart the highest expressions of Malice to destroy them by War These Coals they were cast upon his Majesty they were blown they could not kindle in that Breast Thence my Lords having done the utmost to the King he goes to the people At York the Country being met together for Justice at the Open Assises upon the Bench he tells them speaking of the Justices of the Peace that they were all for Law nothing but Law but they should find that the Kings Little Finger should be heavier then the Loyns of the Law as they shall find My Lords Who speaks this to the People a Privy-Counsellor this must be either to traduce His Majesty to the People as spoken from him or from himself who was Lord-Lieutenant of the County and President intrusted with the Forces and Justice of those parts that he would Employ both this way Add my Lords to his Words there the Exercising of an Arbitrary and Vast Jurisdiction before he had so much as Instructions or Colour of Warrant Thence we carry him into Ireland there he Represented by his place the Sacred Person of his Majesty First There at Dublin the Principal City of that Kingdom whither the Subjects of that Country came for Justice in an Assembly of Peers and others of greatest Rank upon occasion of a Speech of the Recorder of that City touching their Franchises and Regal Rights he tells them That Ireland was a Conquered Nation and that the King might do with them what he pleased Secondly Not long after in the Parliament 10 Car. in the Chair of State in full Parliament again That they were a Conquer'd Nation and that they were to expect Laws as from a Conqueror before the King might do with them what he would now they were to expect it that he would put this Power of a Conqueror in Execution The Circumstances are very Considerable in full Parliament from himself in Cathedra to the Representative Body of the whole Kingdom The Occasion adds much when they desir'd the Benefit of the Laws and that their Causes and Suits