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A56321 The declaration of John Pym Esquire upon the whole matter of the charge of high treason against Thomas Earle of Strafford, April 12, 1641 with An argument of law concerning the bill of attainder of high treason of the said Earle of Strafford, before a committee of both Houses of Parliament, in Westminster Hall by Mr. St. Iohn His Majesties solicitor Generall, on Thursday, April 29, 1641 / both published by order of the Commons House. Pym, John, 1584-1643.; St. John, Oliver, 1598?-1673. Argument of law concerning the bill of attainder of high-treason of Thomas Earle of Strafford. 1641 (1641) Wing P4262; ESTC R182279 46,678 116

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THE DECLARATION OF JOHN PYM Esquire VPON THE VVHOLE MATTER of the Charge of High Treason against THOMAS EARLE OF STRAFFORD APRIL 12. 1641. WITH An ARGUMENT of Law concerning the Bill of Attainder of High Treason of the said EARLE of STRAFFORD Before a Committee of both Houses of Parliament in WESTMINSTER Hall BY Mr St-Iohn his Majesties Solicitor Generall on Thursday April 29. 1641. Both Published by Order of the Commons House Printed at London for Iohn Bartlet and are to be sold at the gilt Cup near S. Austins Gate in Pauls Church-yard 1641. THE SPEECH OR DECLARATION OF JOHN PYM Esquire After the Recapitulation or summing up of the Charge of High-Treason AGAINST THOMAS EARLE OF STRAFFORD 12. APRIL 1641. Published by Order of the COMMONS HOUSE LONDON Printed for JOHN BARTLET 1641. THE SPEECH OR DECLARATION OF JOHN PYM Esq c. MY LORDS MAny dayes have been spent in maintenance of the Impeachment of the Earle of Strafford by the House of Commons whereby he stands charged with High Treason And your Lordships have heard his Defence with Patience and with as much favour as Iustice would allow We have passed through our Evidence and the Result of all this is that it remaines clearly proved That the Earle of Strafford hath indeavoured by his words actions and counsels to subvert the Fundamentall Lawes of England and Ireland and to introduce an Arbitrary and Tyrannicall Government This is the envenomed Arrow for which he inquired in the beginning of his Replication this day which hath infected all his Bloud This is that Intoxicating Cup to use his owne Metaphor which hath tainted his Iudgement and poisoned his Heart From hence was infused that Specificall Difference which turned his Speeches his Actions his Counsels into Treason Not Cumulative as he exprest it as if many Misdemeanours could make one Treason but Formally and Essentially It is the End that doth informe Actions and doth specificate the nature of them making not onely criminall but even indifferent words and actions to be Treason being done and spoken with a Treasonable intention That which is given me in charge is to shew the quality of the offence how hainous it is in the nature how mischievous in the effect of it which will best appeare if it be examined by that Law to which he himselfe appealed that universall that supreme Law Salus populi This is the Element of all Laws out of which they are derived the End of all Laws to which they are designed and in which they are perfected How far it stands in opposition to this Law I shall endeavour to shew in some Considerations which I shal present to your Lordships all arising out of the Evidence which hath been opened The first is this It is an offence comprehending all other offences here you shall finde severall Treasons Murders Rapines Oppressions Perjuries The Earth hath a Seminarie vertue whereby it doth produce all Hearbs and Plants and other Vegetables There is in this Crime a Seminarie of all evils hurtfull to a State and if you consider the reasons of it it must needs be so The Law is that which puts a difference betwixt good and evill betwixt just and unjust If you take away the Law all things will fall into a confusion every man will become a Law to himselfe which in the depraved condition of humane nature must needs produce many great enormities Lust will become a Law and Envie will become a Law Covetousnesse and Ambition will become Lawes and what dictates what decisions such Laws will produce may easily be discerned in the late Government of Ireland The Law hath a power to prevent to restraine to repaire evils without this all kind of mischiefs and distempers will break in upon a State It is the Law that doth intitle the King to the Allegeance and service of his people it intitles the people to the protection and justice of the King It is God alone who subsists by himselfe all other things subsist in a mutuall dependence and relation He was a wise man that said that the King subsisted by the field that is tilled It is the labour of the people that supports the Crowne If you take away the protection of the King the vigour and cheerfulness of Allegeance will be taken away though the Obligation remaine The Law is the Boundarie the Measure betwixt the Kings Prerogative and the Peoples Liberty Whiles these move in their owne Orbe they are a support and security to one another The Prerogative a cover and defence to the Liberty of the people and the people by their liberty are enabled to be a foundation to the Prerogative but if these bounds be so removed that they enter into contestation and conflict one of these mischiefes must needs ensue If the Prerogative of the King overwhelm the liberty of the people it will be turned into Tyrannie if liberty undermine the Prerogative it will grow into Anarchie The Law is the safeguard the custody of all private interest Your Honours your Lives your Liberties and Estates are all in the keeping of the Law without this every man hath a like right to any thing and this is the condition into which the Irish were brought by the E. of Strafford And the reason which he gave for it hath more mischiefe in it then the thing it selfe They were a Conquered Nation There cannot be a word more pregnant and fruitfull in Treason then that word is There are few Nations in the world that have not been conquered and no doubt but the Conquerour may give what Lawes he please to those that are conquered But if the succeeding Pacts and Agreements doe not limit and restraine that Right what people can be secure England hath been conquered and Wales hath been conquered and by this reason will be in little better case then Ireland If the King by the Right of a Conquerour gives Lawes to his People shall not the people by the same reason be restored to the Right of the conquered to recover their liberty if they can What can be more hurtfull more pernicious to both then such Propositions as these And in these particulars is determined the first Consideration The second Consideration is this This Arbitrary power is dangerous to the Kings Person and dangerous to his Crown It is apt to cherish Ambition usurpation and oppression in great men and to beget sedition and discontent in the People and both these have beene and in reason must ever be causes of great trouble and alteration to Princes and States If the Histories of those Easterne Countries be perused where Princes order their affaires according to the mischievous principles of the E. of Strafford loose and absolved from all Rules of Government they will be found to be frequent in combustions full of Massacres and of the tragicall ends of Princes If any man shall look into our owne Stories in the times when the Laws were most neglected he shall find them full of
and Prerogative many dangerous practises against the peace and safety of this Kingdome have been undertaken and promoted The increase of Popery and the favours and incouragement of Papists have been and still are a great grievance and danger to the Kingdome The Innovations in matters of Religion the usurpations of the Clergie the manifold burdens and taxations upon the people have been a great cause of our present distempers and disorders and yet those who have been chiefe Furtherers and Actors of such Mischiefes have had their Credit and Authority from this That they were forward to maintain this Power The E. of Strafford had the first rise of his greatnesse from this and in his Apologie and Defence as your Lordships have heard this hath had a maine part The Royall Power and Majesty of Kings is most glorious in the prosperity and happinesse of the people The perfection of all things consists in the end for which they were ordained God onely is his own end all other things have a further end beyond themselves in attaining whereof their own happinesse consists If the means and the end be set in opposition to one another it must needs cause an impotency and defect of both The eight Consideration is The vanity and absurdity of those excuses and justifications which he made for himself whereof divers particulars have been mentioned in the course of his Defence 1. That he is a Counsellor and might not be questioned for any thing which he advised according to his conscience The ground is true there is a liberty belongs to Counsellors and nothing corrupts Counsels more then fear He that will have the priviledge of a Counsellor must keep within the just bounds of a Counsellor those matters are the proper subjects of Counsell which in their times and occasions may be good or beneficiall to the King or Common-wealth But such Treasons as these the subversion of the Laws violation of Liberties they can never be good or justifiable by any circumstance or occasion and therefore his being a Counsellor makes his fault much more hainous as being committed against a greater Trust and in a way of much mischiefe and danger lest his Majesties conscience and judgement upon which the whole course and frame of his Government do much depend should be poysoned and infected with such wicked principles and designes And this he hath endeavoured to doe which by all Lawes and in all times hath in this Kingdome beene reckoned a Crime of an high Nature 2. He labours to interest your Lordships in his cause by alledging It may be dangerous to your selves and your Posterity who by your birth are fittest to be near his Majesty in places of Trust and Authority if you should be subject to be questioned for matters delivered in Counsell To this was answered that it was hoped their Lordships would rather labour to secure themselves and their posterity in the exercise of their vertues then of their vices that so they might together with their own honour and greatnesse preserve the honour and greatnesse both of the King and Kingdome 3. Another excuse was this that whatsoever he hath spoken was out of a good intention Sometimes good and evill truth and falshood lie so near together that they are hardly to be distinguished Matters hurtfull and dangerous may be accompanied with such circumstances as may make it appeare usefull and convenient and in all such cases good intentions will justifie evill Counsell But where the matters propounded are evill in their own nature such as the matters are wherewith the E. of Strafford is charged to break a publique faith to subvert Laws and Government they can never be justified by any intentions how specious or good soever they be pretended 4. He alledgeth it was a time of great necessity and danger when such counsels were necessary for preservation of the State Necessity hath been spoken of before as it relates to the Cause now it is considered as it relates to the Person if there were any necessity it was of his own making he by his evil counsell had brought the King into a necessity and by no Rules of Iustice can be allowed to gain this advantage by his own fault as to make that a ground of his justification which is a great part of his offence 5. He hath often insinuated this That it was for his Majesties service in maintenance of that Soveraign Power with which he is intrusted by God for the good of his people The Answer is this No doubt but that Soveraign Power wherewith his Majesty is intrusted for the publique good hath many glorious effects the better to inable him thereunto But without doubt this is none of them That by his own will he may lay any Taxe or Imposition upon his people without their consent in Parliament This hath now been five times adjudged by both Houses In the Case of the Loanes In condemning the Commission of Excise In the Resolution upon the Saving offered to be added to the Petition of Right In the sentence against Manwaring and now lately In condemning the Ship-money And if the Soveraigne Power of the King can produce no such effect as this the Allegation of it is an Aggravation and no Diminution of his offence because thereby he doth labour to interest the King against the just grievance and complaint of the People 6. This Counsell was propounded with divers limitations and Provisions for securing and repairing the liberty of the people This implies a contradiction to maintain an Arbitrary absolute Power and yet to restrain it with limitations and provisions for even those limitations and provisions will be subject to the same absolute Power and to be dispensed in such manner and at such time as it self shall determine let the grievances and oppressions be never so heavy the Subject is left without all remedy but at his Majesties own pleasure 7. He alledgeth they were but words and no effect followed This needs no answer but that the miserable distempers into which he hath brought all the three Kingdomes will be evidence sufficient that his wicked Counsels have had such mischievous effects within these two or three last years that many years peace will hardly repaire those losses and other great mischiefes which the Common-wealth hath sustained These excuses have been collected out of the severall parts of his Defence perchance some others are omitted which I doubt not have been answered by some of my Collegues and are of no importance either to perplex or to hinder your Lordships judgement touching the hainousnesse of this Crime The ninth Consideration is this That if this be Treason in the nature of it it doth exceed all other Treasons in this That in the Design and endeavour of the Author it was to be a constant and a permanent Treason other Treasons are transient as being confinde within those particular actions and proportions wherein they did consist and those being past the Treason ceaseth The Powder-Treason
pains for that which when he hath gotten is not his own Or who fight for that wherein he hath no other interest but such as is subject to the will of another The Ancient encouragement to men that were to defend their Countries was this That they were to hazard their Persons pro Aris Focis for their Religion and for their Houses But by this Arbitrary way which was practised in Ireland and counselled here no man had any certainty either of Religion or of his House or any thing else to be his own But besides this such Arbitrary courses have an ill operation upon the courage of a Nation by embasing the hearts of the people A servile condition doth for the most part beget in men a slavish temper and disposition Those that live so much under the Whip and the Pillory and such servile Engines as were frequently used by the E. of Strafford they may have the dregges of valour sullennesse stubbornnesse which may make them prone to Mutinies and discontents but those Noble and gallant affections which put men on brave Designes and Attempts for the preservation or inlargement of a Kingdome they are hardly capable of Shall it be Treason to embase the Kings Coyne though but a piece of twelve-pence or sixe-pence and must it not needs be the effect of a greater Treason to embase the spirits of his Subjects and to set a stamp and Character of servitude upon them whereby they shall be disabled to doe any thing for the service of the King or Common-wealth The fift Consideration is this That the exercise of this Arbitrary Government in times of sudden danger by the invasion of an enemy will disable his Majesty to preserve himselfe and his Subjects from that danger This is the onely pretence by which the E. of Strafford and such other mischievous Counsellors would induce his Majesty to make use of it and if it be unfit for such an occasion I know nothing that can be alledged in maintenance of it When warre threatens a Kingdome by the comming of a forrain Enemy it is no time then to discontent the people to make them weary of the present Government and more inclinable to a Change The supplies which are to come in this way will be unready uncertain there can be no assurance of them no dependence upon them either for time or proportion And if some money be gotten in such a way the Distractions Divisions Distempers which this course is apt to produce will be more prejudiciall to the publique safety then the supply can be advantagious to it and of this we have had sufficient experience the last Summer The sixt That this crime of subverting the Laws and introducing an Arbitrary and Tyrannicall Government is contrary to the Pact and Covenant betwixt the King and his people That which was spoken of before was the legall union of Allegeance and Protection this is a personall union by mutuall agreement and stipulation confirmed by oath on both sides The King and his people are obliged to one another in the nearest relations He is a Father and a childe is called in Law Pars Patris Hee is the Husband of the Common-wealth they have the same interests they are inseparable in their condition be it good or evill He is the Head they are the Body there is such an incorporation as cannot be dissolved without the destruction of both When Iustice Thorpe in Edw. the thirds time was by the Parliament condemned to death for Bribery the reason of that Judgement is given because he had broken the Kings Oath not that he had broken his own oath but that he had broken the Kings oath that solemne and great obligation which is the security of the whole Kingdome If for a Judge to take a small summe in a private cause was adjudged Capitall how much greater was this offence whereby the E. of Strafford hath broken the Kings Oath in the whole course of his Government in Ireland to the prejudice of so many of his Majesties Subjects in their Lives Liberties and Estates and to the danger of all the rest The Doctrine of the Papists Fides non est servanda cum Haereticis is an abominable Doctrine yet that other Tenet more peculiar to the Iesuites is more pernicious whereby Subjects are discharged from their Oath of Allegeance to their Prince whensoever the Pope pleaseth This may be added to make the third no lesse mischievous and destructive to humane society then either of the rest That the King is not bound by that Oath which he hath taken to observe the Laws of the Kingdome but may when he sees cause lay Taxes and burdens upon them without their consent contrary to the Laws and Liberties of the Kingdome This hath been preached and published by divers And this is that which hath been practised in Ireland by the E. of Strafford in his Government there and indeavoured to be brought into England by his Counsell here The seventh is this It is an offence that is contrary to the end of Government The end of Government was to prevent oppressions to limit and restrain the excessive power and violence of great men to open the passages of Iustice with indifferency towards all This Arbitrary power is apt to induce and incourage all kind of insolencies Another end of Government is to preserve men in their estates to secure them in their Lives and Liberties but if this Designe had taken effect and could have been setled in England as it was practised in Ireland no man would have had more certainty in his own then power would have allowed him But these two have been spoken of before there are two behind more important which have not yet been touched It is the end of Government that vertue should be cherisht vice supprest but where this Arbitrary and unlimited power is set up a way is open not onely for the security but for the advancement and incouragement of evill Such men as are aptest for the execution and maintenance of this Power are onely capable of preferment and others who will not be instruments of any unjust commands who make a conscience to doe nothing against the Laws of the Kingdome and Liberties of the Subject are not onely not passable for imployment but subject to much jealousie and danger It is the end of Government that all accidents and events all Counsels and Designes should be improved to the publique good But this Arbitrary Power is apt to dispose all to the maintenance of it self The wisdome of the Councell-Table the Authority of the Courts of Justice the industry of all the Officers of the Crown have been most carefully exercised in this the Learning of our Divines the Iurisdiction of our Bishops have been moulded and disposed to the same effect which though it were begun before the E. of Straffords Imployment yet it hath beene exceedingly furthered and advanced by him Under this colour and pretence of maintaining the Kings Power
the fourth he was outlawed by the stay of the outlawry so long it seemes the Judges had well advised before whether it were Treason or not At the same Session Thomas Heber was indited of Treason for these words That the last Parliament was the most simple and insufficient Parliament that ever had beene in England That the King was gone to live in Kent because that for the present hee had not the love of the Citizens of London nor should hee have it for the future That if the Bishop of Bath and Wells were dead the Arch-Bishop of Canterbury being Cardinall of England would immediately loose his head This Inditement was returned into the Kings Bench in Trinity Tearme in the eighteenth yeare of Edward the fourth Afterwards there came a Privy Scale to the Iudges to respit the proceedings which as it should seeme was to the intent the Iudges might advise of the Case for afterwards he is outlawed of high-Treason upon this inditement These words were thought sufficient evidence to prove these severall Inditements That they were spoken to with draw the peoples affection from the King to excite them against him to cause risings against him by the people in morē destructions 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 amore private manner but once spoken and no more only amongst the people to excite them against the King My Lords here are words Counsells 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 publique not by a private person but by a Counsellor of State a Lord Leivetenant a Lord President a Lord Deputie of Ireland 1. To his Majesty That the Parliament had denied to supply him a slander upon all the Commons of England in their affections to the King and Kingdome in refusing to yeeld timely supply for the necessities of the King and Kingdome 2. From thence that the King was loose and absolved from rules of governement and was to doe every thing that power would admit My Lords more cannot be said they cannot be aggravated whatever I should say would be in diminution Thence You have an Army in Ireland you may imploy to reduce this Kingdome To counsell a King not to love his people is very unnaturall it goes higher to hate them to malice them in his heart the highest expressions of malice to destroy them by war These coales they were cast upon his Majesty they were blowne they could not kindle in that brest 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 Assizes 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 loines of the Law They shall find my Lords who speaks this to the people a Privie Counsellor this must be either to traduce his Majesty to the people as spoken from him or from himselfe who was Lord Leivetenant of the County and President intrusted with the forces and Justice of those parts that he would imploy 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 1. There at Dublyn the principall Citty of that Kingdome whether the Subjects of that Country came for Justice in an Assembly of Peeres and others of greatest ranke upon occasion of a Speech of the Recorder of that Citty touching their Franchises and Legall Rights he tells them that Ireland was a Conquered Nation and that the King might do with them what he pleased 2. Not long after in the Parliament 10. Car. in the Chaire of State in full Parliament againe That they were a conquered Nation and that they were to expect Lawes 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 himselfe in Cathedrâ to the representative body of the whole Kingdome The occasion adds much when they desire the benefit of the Lawes and that their Causes and Suites might be determined according to Law and not by himselfe at his will and pleasure upon paper Petitions 3. Upon like occasion of pressing the Lawes and Statutes That he would make an Act of counsell board in that Kingdome as binding as an Act of Parliament 4. He made his words good by his actions assumed and exercised a boundlesse and lawlesse Jurisdiction over the lives persons and estates of his Majesties Subjects procured judgement of death against a Peere of that Realme commanded another to be hanged this was accordingly executed both in times of high Peace without any processe or colour of Law 5. By force for a long time he seised the yarne and flax of the Subjects to the starving and undoing of many thousands besides the Tobacco businesse and many Monopolies and unlawfull Taxes forced a new Oath not to dispute his Majesties royall commands determined mens estates at his owne will and pleasure upon paper Petititions to himselfe forced Obedience to these not only by Fines and Imprisonment but likewise by the Army sessed Souldiers upon the refusers in a hostile manner 6. Was an Incendiary of the warre between the two Kingdomes of England and Scotland My Lords we shall leave it to your Lordships Judgements whether these words Counsells and Actions would not have been a sufficient Evidence to have proved an Inditement drawne up against him as those before mentioned and many others are That they were spoken and done to the intent to withdraw the Kings heart from the people and the affections of the people from the King that they might leave the King and afterwards rise up against him to the destruction of the King if so here is a compassing of the Kings death within the words of the Statute of the five and twentieth yeare of Edward the third and that warranted by many former judgements My Lords I have now done with the three The 4. Generall Head Treasons within the Statute of the five and twentieth of Edward the third I proceed to the fourth upon the Statute of the eighteenth yeare of Henry the sixt Chapter the third in Ireland 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 kerves or hooded men nor any other people nor horses to lie on horseback or on foot upon the Kings Subjects without their good