Letters Patents under the Great Seal to exercise a Power against Law was complained of in Parliament and had Judgment for it among other things of High Treason They proceeded to Proof And first The Earl of Corke being asked whether before my Lord of Straffords time he hath known the Deputy or Justices alone determine any matter of Land in Equity or otherwise He Answered He remembers not any except in cases of the Church and Plantation The Lord Ranulagh being asked to that point Answered Never any to his knowledge having been of the Table two and twenty years Sir Adam Loftus being asked to the same point Answered He remembers not any having been a Privy-Counsellor 20 years The Lord Mountnorris being asked to that point Answered He never knew any having been a Privy-Counsellor since 14 Iac. and lived in Ireland 38 years That he was there all the time of my Lord Chichester or very near and was so acquainted with his proceedings that he dare engage himself for all he is worth that the Lord Chichester never put any such Order under his hand The Earl of Bath Sworn and asked to that point Answered That he hath often heard the Deputy in cases of Debt for relief of poor men hath proceeded alone but in cases of Land he never heard of any To take off Henry Dillon's Testimony the Manager alledged That he had been Sentenced at the Council-Board for speaking untruths My Lord of Strafford desired the Exception might not be made some Exceptions by him made to Witnesses against him being not admitted and that there might be unum pondus una mensura The Manager Answered In eodem genere Mali. This Exception is not for Extortion or collateral matters but for Perjury Thereupon his Acknowledgment was read wherein he confesses he had highly transgressed against the Honour of His Majesty and the Board in presuming to declare apparent untruths And that such an Acknowledgment was made was testified by Sir Adam Loftus and likewise by the Lord Dillon who shewed their Lordships the occasion thereof To the matter of my Lord Mountnorris his Imprisonment it was offered under my Lord of Straffords own hand to shew that it was partly upon the Sentence December 24. 1636. My Lord of Strafford not denying it to be his hand it was read being a Reference upon my Lord Mountnorris his Petition and in substance as followeth That for the Petitioners restraint more than twelve months he hath no body to blame but himself that hath all that space lain under a deserved censure of the Council of War and stood in Contempts and trifled with the Court of Castle-Chamber That His Majesties removal of the Sentence hath been often signified but never sued forth That the Petitioner did to the same effect Petition the Lord Deputy in May last and therefore all the Answer that for the present can be given is that his most gracious Pardon seeks no man nor can His Majesty remit all of that Sentence to be applied to the Petitioners benefit till by his humble suit he procured His Majesties Pardon under the Great Seal c. which taking the usual way and humbly acknowledging the justness of that Sentence he may have c. A Petition was then read directed to the Earl of Strafford from my Lord Mountnorris Praying a Warrant for a Pardon under the Great Seal according to the Law and the purport of His Majesties directions if his Lordship shall conceive His Majesties Letters on which the Lord Mountnorris relied as sufficient did not amount to a Legal Pardon Then was read my Lord of Straffords Answer Dublin Ianuary 30. 1636. When the Petitioner shall prefer his Petition for the said Pardon acknowledging the justness of the Sentence pronounced against him by the Council of War we shall take his Request into our further consideration Wentworth Whence one of the Managers observed That the King directs a Pardon to be drawn and till the Sentence be acknowledged to be just no consideration shall be taken and that the Preamble of the Pardon recites as much and he would not suffer it to be Sealed till this Acknowledgment passed Then was produced the Lady Mountnorris her Petition to His Majesty referred to the Lord Strafford Mr. Anslowe Sworn attested the truth of the Copy and it was read Setting forth her Sorrow on behalf of her Husband suffering in Honour Health and Imprisonment for a word mis-interpreted and still pursued in the Castle-Chamber and humbly praying a Command for his coming into England c. His Majesties Reference to my Lord of Strafford Iuly 18. 1636. His Majesty is pleased That on such a Submission as the Lord Deputy shall approve of he shall have his Liberty to come into England wherein the Lord Deputy is to take notice and to give Order therein accordingly Mr. Anslowe being asked whether this was brought to the Deputy by the Lady Mountnorris and whether he did not reject it He Answered That he was by when my Lady Mountnorris presented the Petition she was humbly on her Knees to desire my Lord of Strafford to receive it And he refused absolutely to receive it from her They then produced the Order in a Cross Suit in t Robert Parkhurst Plaintiff and the Lord Baltinglasse al. Defendants Et e contra The Order was read whereby certain Lands for 3000 l. paid at several times to the Viscount and 300 l. more to be paid afterwards were setled with Sir Robert Parkhurst William Brettergh Sworn was Interrogated touching my Lord Baltinglasse his Possession of the said Lands and his dispossessing thereof He Answered That he was Sollicitor for prosecuting of this Cause and made Defence of it in behalf of my Lord of Baltinglasse being then in England But at the time of the Decree his Lordship was come over That his Lordship never made Answer to it but when the Cause came to hearing my Lord of Strafford ordered the Possession of the Land against my Lord Baltinglasse and the Possession before was in one Grimble who was Tenant And that he could speak many other things concerning the carriage of it Mr. Glyn desired the Witness might be examined touching my Lord of Straffords purchase of those Lands and offered the Articles whereby my Lord of Strafford leased the Land for 28 years and at 666 l. per annum My Lord of Strafford confest thereupon that he had it but it was in Trust for a Noble Person The Manager observed That whether it was for a Friend or himself it is equal for a man will do a courtesie for his Friend as soon as for himself And so he concluded his Reply hoping that their Lordships were satisfied that he hath introduced an Innovation and being so that he hath exercised a Tyrannical Power over the Estates of His Majesties Subjects To such parts thereof as was new matter my Lord of Strafford replied in substance as followeth
thus levyed His Lordship added That the next Point he should have endeavoured to prove was That the Gentry that granted the Six score thousand pounds for Supply of the Army in my Lord Faulklands time agreed That the same should not be brought into the Kings Exchequer but be levyed by Soldiers nor be mentioned in any Accompt of the Kings least it should be mentioned to their prejudice but let the Gentlemen that manages the Evidence labour to prove this And Mr. Palmer declared again That they agreed to it Whence my Lord of Strafford observed That it concerned him both to make good the truth of his Answer and to tell their Lordships how narrowly he is moved to look to himself for though they now agree it to be done by the Agents and practised by them yet the first part of this Killing Charge is That he should Traiterously and Wickedly devise to subdue the Subjects of that Realm by levying Money on them But Mr. Palmer explained himself That they did admit the Contribution to be levied by the Agreement of the Agents and by consent but they intend not to admit that it did extend to a practice by his Predecessors for that it was formerly done they did in no sort admit And Mr. Pym added That they do not Charge him with levying the Contribution Money but with levying Money after the Contribution was paid which was more than the Contribution but that is not in issue So my Lord of Strafford concluded that Point That the Contribution for eight years before his coming was levied by Soldiers is admitted So that for all the things concerning that Contribution he did no more than was agreeable to the Agents themselves His Lordship then desired That the Second Article of my Lord of Faulklands Instructions might be Read by which he was expresly appointed to lay Soldiers on such as paid not their Rent to the King And it was Read ARTICLE II. FOr the Collection of our Rents in Cases of Default That First a Summoning Process shall Issue Secondly The Pursivant sent And Lastly if this be not sufficient in case the same be not levyed then our Vice-Treasurer by Warrant of our Deputy and Council shall appoint a competent number of Soldiers of the next Ayding and Garrison to collect the Rents of the charge of the Parties complained of having care that no man be burdened with a greater number of Soldiers than the Service shall necessarily require Mr. Palmer desiring That the first Article of these Instructions might be Read it was read accordingly AT the humble Request of our Subjects We are graciously pleas'd to direct for the better preservation and ease of our Subjects the Soldiers shall be called in c. My Lord of Strafford from his Proofes inferred That he had made it clearly appear That notwithstanding the Statute cited it had been the frequent use and custome of Ireland to assess Soldiers on Septs of Offenders for the levying of Exchequer-rents levying Debts as appears in one particular Case which is left in Dublin for the levying of the Composition Rents by Troops of Horse and Horsemen and for the Contribution that State gives no difference betwixt sessing for the Kings Rents and for contempts and disobedience to Justice and certainly it would be High-Treason for if the Deputy had power to assess the Soldiers without being guilty in the former Case certainly his assessing of Soldiers on Contemners to bring them to be ameneable to the Kings Justice cannot be by any construction made Treason in him So that though it comes not to the particular individuum yet it comes thus far that sessing of the Soldiers is a power that was in the Deputies of Ireland and so he trusts was by the Law of that Land without making them Traytors His Lordship did further alleadg That when he came into Ireland he found that none of the Kings Rents were levyed in other manner Paper-Attachments being given unto the Captains and they on these assignements levying the Money for their Entertainments that he was willing to remedy this being not much in love with the course and since his time it was never practised the Rents being brought in before it comes to that though if they had not been paid sooner it must have come to that And therefore he desired he might show them a Proclamation Issued within three months after he came into Ireland to show that he brought not the Custom with him but found it there Which Proclamation was Read being Dated 27 th December 1633. And Imported THat whereas the Surplusage of his Majesties Revenue is appointed to be applyed towards the Payment of the Army thereby to give the Countrey more ease c. To which Proclamation divers of the Counsellors Names were added and were now Read So that if Sessing of Soldiers in any case be Treason certainly it is in this Posito That if the Law be good it equally goes to both And so he conceives he hath shewed the use that hath been and must be of the Officers of the Army being the most ready way to procure obedience to the Kings Courts His Lordship observed That the Gentlemen at the Barr waved part of his Charge though there was a Book in Print wherein he appears to be charged in a Trayterous manner to subdue c. He waves the Article And though they decline it he besought their Lordships he might give an Account of this particular least it should stick with their Lordships when they read the Article and find no Answer to it But the Committee opposed it as conceiving it not fit he should Answer to an Article to which he was not pressed specially since they have not wholly laid it aside and that he had notice yesterday that they intended not for the present to proceed upon it which my Lord of Strafford confessed and gave thanks to the House of Commons for it His Lordship then proceeded in his Defence setting forth to their Lordships That the first Instruction to my Lord of Faulkland is no limitation to him it being not good as to him unless it were given him which he mentions onely by the way For the Warrants charged to be by him Issued and the Execution of them His Lordship desires to free himself from the Testimony given by Mr. Berne and Mr. Kennedy concerning a very foul misdemeanour committed by some Soldiers under pretence of coming to see the Kings Writ executed and his Justice complyed withal before he comes to that that concerns Mr. Savill 1. It appears these Soldiers were laid when he was not in Ireland so that he is not answerable to any thing Deposed by these Gentlemen further than that he gave a Warrant for it to Mr. Pigott II. He denies that ever Pigott had any such Warrant from him nor is any Proofe to that purpose offered Therefore it is not to be laid to his Accompt III. Only Patrick Clear sayes Pigott threatned to lay
Lex And further not to bind himself to words but to the sense at the same time the Earl of Strafford used these words or words to this effect That the King was not to suffer himself to be mastered by the frowardness and undutifulness of his People or rather as he conceives by the disaffection and stubborness of some particular men And this he said from his former Notes which he thought fit rather to use than to trust his Memory Being Asked Whether by particular Men he meant not particular members of the Parliament His Lordship Answered By his Troth he conceives so for he was speaking of the Parliament Edward Lord Newburgh being Sworn and Interrogated Whether he did not hear my Lord of Strafford speak these words to His Majesty That the Parliament in denying the King had given him advantage to supply himself by other wayes His Lordship Answered That those very words he never heard nor words to that effect But he hath Answered in his Deposition what he hath heard and he shall desire to speak a little before he Repeats it And this it is When he was Examined he did then speak that which occurred to his memory but since the agitation of this business something else hath come into his thoughts And if he shall speak that which his Conscience now tells him he shall desire my Lords that then Examined him and the Gentlemen not to misinterpret him if he shall add something to what he formerly delivered He cannot say whether when he heard these words the King was by or no for he doth not remember it But he very well remembers that after the breach of the last Parliament he heard at the Gallery or Council-Table but he rather believes now at Council-Table some words to this effect That seeing the Parliament had not supplied the King His Majesty might take other Courses for Defence of the Kingdom But though he cannot possibly Swear my Lord Lieutenant spake these words yet he verily believes he heard him speak something to this purpose And this is all he can testifie Henry Earl of Holland Sworn and Interrogated Whether he did not hear my Lord of Strafford say to His Majesty That the Parliament in denying the King had given Him advantage to supply Himself by other wayes or words to that effect His Lordship Answered That he needs not trouble their Lordships with Circumstances or long Discourses but these words to the best of his remembrance according to his Oath he conceives were said to the King upon the Dissolving of the Parliament at the Council-Table That the Parliament in denying to supply the King had given Him advantage to supply Himself by other wayes But he will not tye himself so particularly to the words but as at the time when he was Examined before the Gentlemen of the Committee he added or words to this effect Being Asked By whom they were spoken His Lordship Answered By my Lord of Strafford Mr. Whitlock then proceeded to the latter words of the 23 d Article which shew in full and plain termes what my Lord of Straffords design was and what he would have laboured and endeavoured His Majesty to entertain The words of the Charge were Read And to prove them the Examination of Algernon Earl of Northumberland was first Read taken the 5 th Decemb. 1640. To the 7 th Interrogatory he saith That the Earl of Strafford said That in case of necessity and for the Defence and Safety of the Kingdom if the People do refuse to supply the King the King is Absolved from Rules of Government and that every thing is to be done for the preservation of the King and His People and that His Majesty was acquitted before God and Man And he saith that the said words were spoken at the Committee for Scotch Affairs in the presence of His Majesty and for the time of speaking these words he doth not perfectly remember He saith That these were the Discourses mentioned in his Answer to the third Interrogatory which made him believe what he hath answered to the said third Interrogatory Their Lordships calling to have the third Interrogatory Read It was Read To the Third and Fourth he saith That the Forces which were to come out of Ireland were to Land in the West part of Scotland but he doth not know nor hath heard to his Remembrance that these Forces or any other were to be imployed in this Kingdom to Compel or Awe the Subjects of this Realm to yield to such Taxes and Charges as should be Imposed on them by His Majesty He saith That he hath heard my Lord Lieutenant make some Discourses to the King whereby he believes that in case the King were not supplied by Parliament that some Course was intended to raise Moneys by Extraordinary wayes He saith That the said Lord Lieutenant did declare in His Majesties presence That the Design was to Land the Irish Army in the West parts of Scotland Sir Henry Vane being Interrogated What words he heard my Lord of Strafford speak to the King before the Parliament or after the Dissolution of it tending to this That the King had tried the Affections of His People and was Loose and Absolved from all Rules of Government and on what occasion He Answered That to the General Question of what was spoken before or after the sitting of the Parliament he doth not remember and there are no particular words asked him But to these words which have been read he shall as near as he can ingenuously deliver what he did formerly depose ever reserving to himself words to the same effect That he considers very well where he is and the presence before whom he speaks That he hath never in the whole course of his life loved to tell an untruth much less in this Honourable Assembly That he shall as near as he can in this Case tell their Lordships plainly and truely the matter It is true as my Lord Admiral hath declared to their Lordships that these words he is to testifie were spoken at the Committee of Eight for the Scotch Affairs For the time he shall crave pardon if he cannot particularly speak to it But thus far he shall say It was clearly after the Dissolution of the last Parliament It is true and if he do not very much mistake it was when the debate whether a Defensive or an Offensive War was Controverted And to the best that he can remember and clearly as he conceives there were words spoken either these he shall now relate or to the same effect by my Lord of Strafford who is now at the Bar. The occasion being Whether an Offensive or Defensive War and Arguments were Controverted in it My Lord of Strafford did say in a Discourse for he must be ingenuous he must say all he hath deposed or is required Your Majesty having tryed all wayes and being Refused and in Case of this extream necessity and for the safety of the Kingdom
the secret reservations men ought to speak things withal for we ought to think just things and that men will do nothing but fairly and these are conditions implyed when we speak of the Sacred Majesty of Kings let that be implyed it could not be High Treason to tell the King That having tryed the affections of his people he was loose and absolved from all rules of Government that is all ordinary rules and was to do every thing that Power would admit that is that Power would lawfully admit and that His Majesty had tryed all just and Honourable ways and was refused and should be acquitted both of God and men The last words That the King had an Army in Ireland which he might imploy to reduce this Kingdom he denies and if the other words be fairly interpreted with the reservations granted a man in that case being spoken of so great a person as the King nothing in them can turn so much to the prejudice of the Speaker But he desires leave to offer the Antecedents and Consequents of all that he said in Council whereupon this is gathered and then they find the Case otherwise stated than as it is strained in the Charges God forbid any man should be judged for words taken by pieces here a word and there a word where the Antecedent and Consequents are left out for then Treason may be fetcht out of every word a man speaks as for example If one asks him whether he will go to such a place he tells him by way of Answer He will kill the King as soon the other swears he said he would kill the King it is very true indeed but if the other words be added it will then imply That he will be sure not to kill the King and therefore he will be sure not to goe to the place And if the words be taken together he puts the Case thus In case of absolute necessity and upon a foreign Invasion of an enemy when the enemy is either actually entred or ready to enter and when all other ordinary means fail in this case there is a Trust left by Almighty God in the King to employ the best and uttermost of his means for the preserving of himself and his people which under favour he cannot take away from himself And as this did precede these words so there were divers restrictions added to them for he says this must be done only and upon no other pretence whatsoever but for the preservation of the Common-wealth that it must be done Candidè Castè That if it were done on any other pretence whatsoever than clearly and fairly for preserving the Common-wealth that would prove it to be oppressive and injurious which otherwise rightly employed would become a Pious and Christian King and that when the present danger of the Common-wealth was by the Wisdom and Courage and Power of the King prevented and the publique Weal secured In a time proper and fit the King was obliged to vindicate the Property and Liberty of the Subject from any ill prejudice that might fall from such a Precedent and until the Prerogative of the Crown and Liberty of the Subject are so bounded that they may be rightly understood by King and People which cannot be without a Parliament His Majesty and they can never look to be happy Now if he shall make this appear to be true as he hopes he shall then he conceives he states their Lordships a quite different question from that brought against him in the Charge and brings an opinion so concluded and shut up with restrictions and with necessity and with unavoidable danger that were otherwise to fall on the Common-wealth as he trusts cannot bring any manner of ill consequence whatsoever publiquely or privately to any Creature For this purpose he desired the favour to examine some of the Noble Lords present and that First the examinations of my Lord of Northumberland might be read and they were read accordingly To the Third Interrogatory he saith That the Earl of Strafford declared his opinion That His Majesty might use his power when the Kingdom was in danger or unavoidable necessity or words to that effect To the Fourth That the said Earl did often say That that power was to be used Candidè Castè and an account thereof should be given to the Parliament that they might see it was only imployed to that use To the Sixth That the said Earl of Strafford said That this Kingdom could not be happy but by good agreement in Parliament between the King and His People My Lord of Strafford observed That this was at the very same time and let all the world judge whether he had any intention to subvert the fundamental Laws of the Land or no Next he desired my Lord Marquis of Hamilton might be examined to the Interrogatory my Lord of Northumberland was examined to Marquis Hamilton examined to the said Interrogatory viz. Whether the said Earl of Strafford delivering his opinion how far the King might use a Power after the breach of the late Parliament did not put the Case when there was an unavoidable necessity upon actual Invasion or an Enemies Army ready to enter the Land His Lordship Answered That he hears the Question and remembers the same Question was asked him formerly on his oath when he was Deponed and he then said as now he could not call to mind what my Lord said in that point Whether my Lord of Strafford did not say That that Power was to be used Candidè Castè and if it were used for any other purpose it would be unjust and oppressive His Lordship Answered That he hath heard him use those words often to His Majesty and on them or immediately after he declared his opinion That it would never be happy in this Kingdom till there be a right understanding between the King and his People and that could not be but by a Parliament Whether he did not say at that time That the present danger provided for and all which setled the King was bound to preserve the Liberty and Propriety of the Subject from the prejudice of such a precedent His Lordship Answered He remembers something of that but cannot positively say because he cannot tell what the precedent was Being asked on Mr. Whitlock's motion what time he heard these words from my Lord of Strafford in the said Second Question He Answered professing that his memory is not good and if it fails not him in this he may boldly affirm he heard my Lord of Strafford speak the words both before and since the Dissolution of the last Parliament Being asked on my Lord of Straffords motion Whether His Majesty was pleased to declare to the Lords of the Council That he had perfect and full intelligence that the Scotch Army intended to march into England He Answered he remembers very well His Majesty had frequent Advertisements of the Scots intentions to come into England he knows
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 Iames His time and by the Proclamation in His Majesties time my Lord took notice of them called the Commissioners narrow-hearted Commissioners The Law said He should not thus proceed in the subversion of it he saith he will and will enforce Obedience by the Army this is as much in respect of the end as to endeavour the overthrow of the Statutes of Labourers of Victuals or of Merton for Inclosures here is a Warrant against the King in respect of the end 2. In respect of the Actions whether there be either a Levying of War or an open Deed or both My Lords There was an Army in Ireland at that time of Two thousand Horse and Foot by this Warrant there is a full designation of this whole Army and an Assignment of it over to Savill for this purpose The Warrant gives him power from time to time to take as many Soldiers Horse and Foot with an Officer throughout the whole Army as himself shall please here is the terror and awe of the whole Army to enforce Obedience My Lords If the Earl had Armed two thousand men Horse and Foot and formed them into Companies to this end your Lordships would have conceived that this had been a War It 's as much as in the Case of Sir Thomas Talbot who armed them in Assemblies This is the same with a breach of Trust added to it That Army which was first raised and afterwards committed to his Trust for the defence of the People is now destined by him to their destruction This assignation of the Army by his Warrant under his Hand and Seal is an open Act. My Lords Here 's not only an open Act done but a Levying of War Soldiers both Horse and Foot with an Officer in Warlike manner assessed upon the Subject which killed their Cattel consumed and wasted their Goods Your Lordships observe a great difference where six men go upon a design alone and when sent from an Army of six hundred all engaged in the same service so many were sent as were sufficient to execute the Command if upon a poor man fewer more upon a rich if the six had not been able the whole Army must make it good The reason that the Sheriff directed alone or but with one Bayliff to do execution is because he hath the Command of the Law the Kings Writ and the Posse Comitatus in case of resistance Here 's the Warrant of a General of an Army Here 's the Posse Exercitus the Power of the Army under the awe of the whole Army six may force more than sixty without it and although never above six in one place yet in several parts of the Kingdom at the same time might be above sixty for sessing of Soldiers was frequent it was the ordinary course for execution of his Orders The Lord-Lieutenant of a County in England hath a design to alter the Laws and Government nay admit the design goes not so high he only declares thus much he will order the Freeholders and Estates of the Inhabitants of the County at his own will and pleasure and doth accordingly proceed upon Paper-Petitions foreseeing there will be disobedience he grants out Warrants under his Hand and Seal to the Deputy-Lieutenants and Captains of the Trained-bands that upon refusal they will take such number of the Trained-Bands through the County with Officers as they shall think good and lay them upon the Lands and Houses of the refusers Soldiers in a Warlike manner are frequently sessed upon them accordingly your Lordships do conceive that this is a Levying of War within the Statute The Case in question goes further in these two Respects That it is more against the declared Law in Ireland not only against the Common-Law but likewise against the Statute of 28 Hen. 6th against the Acts of the Commissioners against Proclamations in persuance of the Law against that himself took notice of narrow-hearted Commissioners In this that here was an Army the Soldiers by profession acts of Hostility from them of greater terror than from Freeholders of the same County My Lords I have now done with the First of Levying of War The Second is the Machination the advising of a War The Case in this rests upon a Warrant to Savile and the advice in the 23 Article The Warrant shews a resolution of imploying the old Army of Ireland to the oppression of His Majesties Subjects and the Laws In the 23 Article having told His Majesty that he was loosed and absolved from Rules of Government and might doe every thing which Power might admit he proceeded further in speech to His Majesty in these words You have an Army in Ireland you may employ to reduce this Kingdom My Lords Both being put together there 's a Machination a practice an advice to Levy War and by force to oppress and destroy His Majesties Subjects It hath been said the Statute of the 25 Edw. 3. is a penal Law and cannot be taken by equity and construction there must be an actual War the Statute makes it Treason to counterfeit the Kings Coin the conspiring the raising of Furnaces is no Treason unless he doth Nummum percutere actually Coin My Lords This is only said not proved the Law is otherwise the 19th Hen 6. fol. 49. there adjudged That the conspiring and aiding to counterfeit Coin was Treason and Justice Stamford fol. 331. 44. is of opinion that this or the conspiring to counterfeit the Great Seal is Treason The Statute is If any shall counterfeit the Great Seal conspiring to do it by the Book is Treason if a man take the Broad Seal from one Patent and put it to another here is no counterfeiting it 's tantamount and therefore Treason as is adjudged in 2 Hen. 4. fol. 25. and by the opinion of Stamford If Machination or Plotting a War be not within that clause of the Statute of Levying of War yet it is within the first of compassing the death of the King as that which necessarily tends to the destruction both of King and People upon whose safety and protection he is to engage himself That this is Treason hath been adjudged both after the Statutes of 1 Hen. 4. cap. 10. and 1 Queen Mary so much insisted upon on the other side In the Third year of King Hen. 4th one Balshal coming from London found one Bernard
faithfulness protected his Ancestry Himself and his whole Family It was not Malum quia prohibitum it was Malum in se against the Dictates of the dullest Conscience against the Light of Nature they not having a Law were a Law to themselves Besides this he knew a Law without that the Parliament in Cases of this Nature had Potestatem vitae necis Nay he well knew that he offended the Promulged and Ordinary Rules of Law Crimes against Law have been Proved have been Confessed so that the Question is not De culpa sed de poena What degree of Punishment those Faults deserve We must differ from him in Opinion That twenty Felonies cannot make a Treason if it be meant of equallity in the use of the Legislative Power for he that deserves death for one of these Felonies alone deserves a Death more Painful and more Ignominious for all together Every Felony is punished with loss of Life Lands and Goods a Felony may be aggravated with those Circumstances as that the Parliament with good reason may add to the Circumstances of Punishment as was done in the Case of Iohn Hall in the Parliament of the 1 H. 4. who for a Barbarous Murder committed upon the Duke of Glocester Stifling him between two Feather-Beds at Calice was Adjudged to be Hanged Drawn and Quartered Batteries by Law are only punishable by Fine and single Damages to the Party Wounded In the Parliament held in 1 H. 4. Cap. 6. one Savage committed a Battery upon one Chedder Servant to Sir Iohn Brooke a Knight of the Parliament for Somersetshire It 's there Enacted that he shall pay double Damages and stand Convicted if he render not himself by such a time The manner of proceedings quickned and the penalty doubled the Circumstances were considered it concerned the Common-Wealth it was a Battery with Breach of Priviledge of Parliament This made a perpetual Act no warning to the first Offender and in the Kings Bench as appears by the book-Book-Case of 9 H. 4. the first leaf Double Damages were recovered My Lords in this of the Bill the Offence is High and General against the King and the Common-wealth against all and the best of all If every Felony be loss of Life Lands and Goods What is Misuser of the Legislative Power by Addition of Ignominy in the Death and Disposal of the Lands to the Crown the Publick Patrimony of the Kingdom But it was hoped that your Lordships had no more skill in the Art of killing Men then your worthy Ancestors My Lords this Appeal from your selves to your Ancestors we do admit of although we do not admit of that from your Lordships to the Peers of Ireland He hath appealed to them your Lordships will be pleased to hear what Judgment they have already given in the case that is the several Attainders of Treason in Parliament after the Statute of 25 E. 3. for Treasons not mentioned nor within that Statute and those upon the first Offenders without warning given By the Statute of 25 E. 3. it 's Treason to levy War against the King Gomines and Weston afterwards in Parliament in the 1 R. 2. n. 38 39 adjudged Traytors for surrendring two several Castles in France only out of fear without any Compliance with the Enemy this not within the Statute of 25th E. 3. My Lords In the 3 d of Rich. 2d. Iohn Imperiall that came into England upon Letters of Safe Conduct as an Agent for the State of Genoa sitting in the evening before his door in Breadstreet as the words of the Records are Paulo ante ignitegium Iohn Kirkby and another Citizen coming that way Casually Kirkby troad upon his Toe it being twilight this grew to a Quarrel and the Ambassador was slain Kirkby was Indicted of High-Treason the Indictment finds all this and that it was only done se defendendo and without malice The Judges it being out of the Statute 25 E. 3. could not proceed the Parliament declared it Treason and Judgment afterwards of High-Treason there 's nothing can bring this within the Statute of 25 E. 3. but it concerns the Honor of the Nation that the Publick Faith should be strictly kept It might endanger the Traffique of the Kingdom they made not a Law first they made the first man an Example this is in the Parliament-Roll 3 R. 2. Number 18. and Hillary Terme 3 R. 2. Rot. 31. in the Kings-Bench where Judgment is given against him In 11 R. 2. Tresilian and some others attainted of Treason for delivering Opinions in the Subversion of the Law and some others for plotting the like My Lords the Case hath upon another occasion been opened to your Lordships only this is observable that in the Parliament of the first year of Henry the Third where all Treasons are again reduced to the Statute of 25 E. 3. These Attainders were by a particular Act confirmed and made good that the memory thereof might be transmitted to succeeding Ages they stand good unto this day the offences there as here were the endeavouring the Subversion of the Laws My Lords after the 1 H. 4. Sir Iohn Mortimer being committed to the Tower upon suspition of Treason brake Prison and made his escape This no way within any Statute or any former Judgment at Common-Law for this that is for breaking the Prison only and no other cause in the Parliament held the second year of Henry the Sixth he was attainted of High-Treason by Bill My Lords Poysoning is only Murder yet one Richard Cooke having put Poyson into a Pot of Pottage in the Kitchin of the Bishop of Rochester whereof two persons dyed he 's Attainted of Treason and it was Enacted that he should be Boyled to Death by the Statute of 22 H. 8. c. 9. By the Statute of the 25 H. 8. Elizabeth Barton the Holy Maid of Kent for pretending Revelations from God That God was highly displeased with the King for being Divorced from the Lady Katherine and that in case he persisted in the Separation and should Marry another that he would not continue King not above one Moneth after because this tended to the depriving of the lawful Succession to the Crown she is Attainted of Treason My Lords all these Attainders for ought I know are in force at this day The Statutes of the First year of Henry the 4 th and the First of Queen Mary although they were willing to make the Statute of 25 E. 3. the Rule to the Inferiour Courts yet they left the Attainders in Parliament precedent to themselves untoucht wherein the Legislative power had been exercised There 's nothing in them whence it can be gathered but that they intended to leave it as free for the future My Lords In all these Attainders there were Crimes and Offences against the Law they thought it not unjust Circumstances considered to heighten and add to the degrees of punishment and that upon the first Offender My Lords we receive as just the other Lawes
namely the said Earl of Strafford the 12th day of December Anno Domini 1635. in the time of full Peace did in the said Realm of Ireland give and procure to be given against the Lord Mountnorris then and yet a Péer of the said Realm of Ireland and then Uice-Treasurer and Receiver-General of the Realm of Ireland and Treasurer at War and one of the Principal Secretaries of State and kéeper of the Privy-Signet of the said Kingdom a Sentence of Death by a Council of War called together by the said Earl of Strafford without any Warrant or Authority of Law or Offence deserving any such punishment And he the said Earl did also at Dublin within the said Realm of Ireland in the Month of March in the Fourtéenth Year of His Majesties Reign without any Legal or due Procéedings or Trial give and cause to be given a Sentence of Death against one other of His Majesties Subjects whose name is yet unknown and caused him to be put to Death in execution of the same Sentence VI. That the said Earl of Strafford without any Legal Procéedings and upon a Paper-Petition of Richard Rolston did cause the said Lord Mountnorris to be disseised and put out of Possession of his Freehold and Inheritance of his Mannor of Tymore in the County of Armagh in the Kingdom of Ireland the said Lord Mountnorris having been 18 years before in quiet possession thereof VII That the said Earl of Strafford in the Term of holy Trinity in the Thirteenth Year of His now Majesties Reign did cause a Case commonly called The Case of Tenures upon defective Titles to be made and drawn up without any Iury or Tryal or other Legal Process and without the consent of Parties and did then procure the Iudges of the said Realm of Ireland to deliver their Opinions and Resolutions to that case and by colour of such Opinion did without any Legal procéeding cause Thomas Lord Dillon a Péer of the said Realm of Ireland to be put out of the possession of divers Lands and Tenements being his Fréehold in the Country of Mayo and Roscomen in the said Kingdom and divers other of His Majesties Subjects to be put out of Possession and disseised of their Fréehold by colour of the same Resolution without Legal proceedings whereby many hundreds of His Majesties Subjects were undone and their Families utterly ruinated VIII That the said Earl of Strafford upon a Petition of Sir John Gifford Knight the first day of February in the said Thirteenth Year of His Majesties Reign without any Legal Process made a Decrée or Order against Adam Uiscount Loftus of Ely a Peer of the said Realm of Ireland and Lord Chancellor of Ireland and did cause the said Uiscount to be imprisoned and kept close Prisoner on pretence of Disobedience to the said Decree or Order And the said Earl without any Authority and contrary to his Commission required and commanded the said Lord Uiscount to yield up unto him the Great Seal of the Realm of Ireland which was then in his Custody by His Majesties Command and imprisoned the said Chancellor for not obeying such his Command And without any Legal Proceeding did in the same Thirtéenth Year imprison George Earl of Kildare a Péer of Ireland against Law thereby to enforce him to submit his Title to the Mannor and Lordship of Castleleigh in the Quéens Country being of great yearly value to the said Earl of Strafford's Will and Pleasure and kept him a year Prisoner for the said cause two months whereof he kept him close Prisoner and refused to enlarge him notwithstanding His Majesties Letters for his Enlargement to the said Earl of Strafford directed And upon a Petition exhibited in October Anno Domini 1635. by Thomas Hibbots against Dame Mary Hibbots Widow to him the said Earl of Strafford the said Earl of Strafford recommended the said Petition to the Council-Table of Ireland where the most part of the Council gave their Uote and Opinion for the said Lady but the said Earl finding fault herewith caused an Order to be entred against the said Lady and threatned her that if she refused to submit thereunto he would imprison her and fine her Five hundred pounds that if she continued obstinate he would continue her Imprisonment and double her Fine every month by means whereof she was enforced to relinquish her Estate in the Lands questioned in the said Petition which shortly after were conveyed to Sir Robert Meredith to the use of the said Earl of Strafford And the said Earl in like manner did imprison divers others of His Majesties Subjects upon pretence of Disobedience to his Orders Decrées and other illegal Command by him made for pretended Debts Titles of Lands and other Causes in an Arbitrary and extrajudicial course upon Paper-Petitions to him preferred and no Cause legally depending IX That the said Earl of Strafford the Sixteenth day of February in the Twelfth Year of His Majesties Reign assuming to himself a Power above and against Law took upon him by a general Warrant under his hand to give Power to the Lord Bishop of Down and Connor his Chancellor or Chancellors and their several Officers thereto to be appointed to attach and arrest the Bodies of all such of the meaner and poorer sort who after Citation should either refuse to appear before them or appearing should omit or deny to perform or undergo all lawful Decrees Sentences and Orders issued imposed or given out against them and them to commit and keep in the next Gaol until they should either perform such Sentences or put in sufficient Bail to shew some reason before the Council-Table of such their contempt and neglect and the said Earl the day and year last mentioned signed and issued a Warrant to that effect and made the like Warrants to several other Bishops and their Chancellors in the said Realm of Ireland to the same effect X. That the said Earl of Strafford being Lord Lieutenant or Deputy of Ireland procured the Customs of the Merchandize Exported out and Imported into that Realm to be farmed to his own Use. And in the Ninth Year of His now Majesties Reign he having then Interest in the said Customs to advance his own Gain and Lucre did cause and procure the native Commodities of Ireland to be rated in the Book of Rates for the Customs according to which the Customs were usually gathered at far greater Ualues and Prices than in truth they were worth that is to say every Hyde at Twenty shillings which in truth was worth but Five shillings every Stone of Wooll at Thirteen shillings four pence though the same were really worth but Five shillings at the utmost Niue shillings by which means the Custom which before was but a twentieth part of the true value of the Commodity was enhanced sometimes a Fifth part and sometimes to a fourth and sometimes to a third part of the true value to the great Oppression of the Subjects and decay of
same If there be any Statute that gives my Lord of Strafford as Governour alone power to take Cognizance of meerly private Causes it is something to the purpose to say there is a particular Statute but till that be shewed he hath in this erected an Arbitrary Power And so he concluded the Reply and the Third Article THE Fourth Article The Charge THat Richard Earl of Corke having sued out Process in course of Law for recovery of his Possessions from which he was put by colour of an Order made by the said Earl of Strafford and the Council-Table of the said Realm of Ireland upon a Paper Petition without Legal procéeding did the 20th day of February in the 11th year of His now Majesties Reign threaten the said Earl being then a Péer of the said Realm to Imprison him unless he would surcease his Suit and said That he would have neither Law nor Lawyers dispute or question his Orders And the 20th day of March in the said 11th year the said Earl of Strafford speaking of an Order of the said Council-Table of that Realm made in the time of King James which concerned a Lease which the said Earl of Corke claimed in certain Rectories or Tythes which the said Earl of Corke alledged to be of no force said that he would make the said Earl and all Ireland know that so long as he had the Government there any Act of State there made or to be made should be as binding to the Subjects of that Kingdom as an Act of Parliament and did question the said Earl of Corke in the Eastle Chamber there upon pretence of breach of the said Order of Council-Table and did sundry other times and upon sundry other occasions by his Words and Spéeches Arrogate to himself a Power above the Fundamental Laws and Established Government of that Kingdom and scorned the said Laws and Established Government ONE of the Managers opened the 4th Article and said The former Articles shew my Lord of Straffords Words this his Actions This Article concerns my Lord of Corke's being disseized of an Impropriate Rectory upon a Paper Petition to my Lord of Strafford and referred to the Council-Table the Earl of Strafford saying upon the questioning of the Proceedings thereupon That neither Law nor Lawyers should question or dispute his Orders an Order of Council-Board in King Iames his time enjoyning That no Parson Patron or Ordinary should make a Lease for longer time than the life of the Incumbent was made use of as a ground to dispossess the Earl of Corke In the first place We desire to open the Proceedings at Council-Table before my Lord of Straffords time viz. That in no case concerning Land no Decree hath been there made to bind up the party for remedy at Law The Lord Ranulagh being interrogated whether by the course of Proceedings at Council-Table the Deputy and Council have determined Title of Land and Possession and interrupted the parties to proceed at Law He Answered That he hath observed the course of the Board for 22 years and the course was That if Title of Land between party and party were in debate It was commonly dismissed from the Board with a leading order to be tried by course of Common Law Being asked whether a Deputy alone hath determined private Interest He Answered That he cannot positively say whether it were done privately but to the best of his remembrance he knows not that ever any Deputy determined any matter of private Interest but brought it to the Board though by reference or private proceeding it might have proceeded before it came to the Board My Lord of Strafford desired he might be asked whether he ever knew that any matter of Inheritance was ever by himself and the Council determined whilst he was Governour there that was barely Title of Land and nothing else He Answered And desired to explain himself concerning the former That Causes of the Church and matters of Plantations were resolved in former Deputies times to be dispatched at the Board And for the latter question he never knew matter of Title determined at the Board but in Causes of the Church and Plantations My Lord of Strafford desired he might be asked whether as President of Connaught he did not familiarly on Paper Petitions rule all things in the same nature as the Deputy on Petitions to him The Fifth day Friday March 26. 1641. AFter consideration of this matter by their Lordships it was resolved in the Upper-house That my Lord Ranulagh ought not to be examined on that point it tending to an Accusation of himself The Earl of Corke being Sworn and questioned touching my Lord of Straffords words to him upon his excepting against the Orders made upon the Petition touching the said Rectory His Lordship Answered That he had been in Possession as Tenant of the Crown thirty five years of a Rectory and certain Tythes in the County of Tiperany for which he paid a yearly Rent and having enjoyed it so long my Lord presented to it Arthur Gwyn that had been his Coach-mans Groom That when he heard of it he went to my Lord privately and told his Lordship that he was His Majesties Farmer of those Tythes and paid a Rent and desired he might not be sued for them in the Council-Chamber but if a Suit must be ommenced that it might be in the proper Court the Exchequer That my Lord told him he should Answer it there That he did so and my Lord ordered it against him That a Commission went down and Examinations were taken And after my Lord had ordered it against him an Order of course was set down that Gwyn should have them till I recovered them by course of Law That thereupon I brought an Action against him and his Tenants who were Arrested and came to Dublin and then went to my Lord and Dr. Bramhill Bishop of Derry That thereupon I was sent for before my Lord Lieutenant that then was and my Lord Lieutenant told me Sir You have taken out Writs against Gwyn to whom I Ordered the Tythes of the Rectory I confest I had and desired to know why he aked me so adding that I am sure your Lordship will not take away my Possession by a Paper Bill without Trial. That my Lord of Strafford answered call in your Writs or if you will not I will clap you in the Castle For I tell you I will not have my Orders disputed by Law nor Lawyers Gwyn was a poor man and if he should get the Rents of the Impropriation into his hands I could not get them again And therefore I desired security That if by course of Law I should recover it I might have it again That my Lord of Strafford thereupon said It was very fit and just but the Order being brought unto me I said there was no such thing in the Order Being desired by the Earl of Strafford to repeat the last over again I say that
of an Arbitrary Power of Jurisdiction in a case of Land without any former President wherein if he be justifiable he may as well riding on the High-way determine any mans Estate and added That if my Lord of Strafford insist on this they shall prove it not only in this but in twenty more of this condition on the Reply My Lord of Strafford desiring they might bring their Proofs at once The Manager Answered That they should prove an Act of the same Nature but of a higher strain concerning a Peer of the Realm for he chased such Lions But my Lord of Strafford desiring they might be kept to that within the Charge His Lordship began his Defence in substance as followeth I confess I am Charged with Treason by the Honourable House of Commons and that is my greatest grief for if it were not an Arrow sent out of that Quiver it would not be so heavy as it is but as it comes from them it pierces my heart through not with Guilt yet with Grief that in my Grey hairs I should be mis-understood by the Companions of my Youth with whom I have formerly spent so much time If the Decree be just as it is most just I hope it will go very far in the Case That whereas it is said it was against a Peer Justice excepts not persons and I know no Priviledge Peers have in point of possession of Land above common persons The Act of Parliament read the other day against which it is supposed to be made I conceive it to be the Statute in H. 6. time and desire your Lordships to remember that by the last words the King's Prerogative is saved I have done nothing contrary to the Instructions in King Iames his time nor the Proclamation nor any thing but according to the Power of former Deputies I acknowledge my Answer is mistaken in saying the Cause depended formerly in the Chancery which was not out of cunning but a meer failing of memory I desire my Commission may be read whereby it will appear I had Power to do that for which I am now questioned The Commission was read whereby he had Authority to proceed Secundum consuetudines terrae c. From whence he observed That having so great a Power the receiving of a Petition and giving Relief to a poor body should not be so great a fault being at the most but the exceeding of a Jurisdiction but by no Construction can be made Treason That yet this is no exceeding of a Jurisdiction but was a Power always in the Deputies before his time and warranted To prove it he produced the printed Instructions whereby the Deputy and Council-Table are forbid to meddle with common businesses within Cognizance of ordinary Courts nor alter possession of Land nor make private Orders or Hearings nor make Injunctions for staying Suits in any Civil Cause Which shews that that course was in practise before the Instructions took it away viz. to alter Possessions to grant Injunctions c. To prove by Witnesses that this Power was always exercised by the Deputy in the nature of a Court of Requests in England He offered my Lord Primate of Armagh his Deposition being taken by reason of his sickness by vertue of an Order of their Lordships but for that the Commons had liberty by that Order to cross-examine and yet had no notice thereof or of the Depositions so taken the using of these Depositions was waved after much debate till the next day in the mean time the Commons may cross-examine Henry Dillon asked Whether Petitions have been usually preferred to the Deputies and in how many Governors time he hath known it to be so That these Paper-Petitions have been preferred He Answered His Father had a Lease during his own life and his Wives and the longer liver of them and fifteen years after to his Executors and Administrators which he the said Henry Dillon being come to full age enquired into and looking upon his Fathers Evidences he found a business there depending between Sir Patrick Plaintiff and his Father Defendant before my Lord Chichester in the time of his Government and he found several Orders under my Lord Chichesters Hand in that Cause that he being Executor to Maurice Fitzgerard and having occasion to peruse his Writings to see what Debts were due to him he found among them several Orders of my Lord Grandison's time one Petition of Fitzgerard as well for Debts as for Land That in the time of my Lord Faulkland he observed and hath seen several Orders made by his Lordship and one made on behalf of his Sister Mary Dillon for a Portion paid by his Father and he recovered the portion and received the Money That in the time of my Lord of Corke and Lord of Elyes being Governors there was a Petition preferred against him by my Lord of Longford for a Horse taken by him the said Henry Dillon as Sheriff of the County of Longford pretending it to be a stray and belonging to His Majesty and triable as he conceived in the Exchequer and that he did appear but my Lord of Longford died before Examination Being asked Whether the Causes were before the Deputy alone or the Deputy and Council He Answered That in the time of my Lord Chichester he knows not whether they were before the Deputy alone but he found only my Lord Chichester's Hand to the Orders In my Lord Grandison's time he saw his Hand only but where the Causes depended he knows not But that in my Lord Faulkland's time was only by my Lord-Deputy That of my Lord Corkes and Lord of Elyes he remembers not whether it was before their Lordships and the Council but the way he was called to Answer was by Pursevant before he had notice of the Suit Being asked Whether Examinations were taken He Answered That in the Case of his Sister he conceives there were Examinations taken upon Oath And that in the Cause before my Lord of Corke and Lord of Ely the Attachment was under the Hands of the two Lords Justices alone Being asked on the Managers motion Whether he hath any of those Orders to shew He Answered He knows not whether those in my Lord Chichester's time were delivered to my Lord Dun on composing the Difference or in his Custody Robert Lord Dillon was asked What he heard my Lord Grandison say in maintenance of this Judicature by my Lord-Deputy alone He Answered That he heard my Lord Grandison himself say nothing of it but he heard by others that he pretended to it as a Judicature belōnging to the Sword Being asked what he hath known of the practice of this Court before the Lord Deputy alone before how many Deputies and upon what occasions He Answered That he hath seen divers Orders of Deputies or Petitions singly signed by themselves and no other hand but the Deputies Being asked in how many Deputies times He Answered That he hath seen of my Lord Faulklands
and Lord Grandisons and to his best remembrance but he will not peremptorily say it of my Lord Chichesters Being asked of the Earl of Bathes motion whether he hath known them to proceed upon Petition for matters of Land He Answered He never knew any Being asked on Mr. Maynards motion whether they were Orders of Reference or by consent He Answered He remembers one more particularly and it was an Order of my Lord of Faulklands of reference to my Lord Angier that was Master of the Rolls and was for a Debt Being asked on my Lord of Straffords motion whether Sir Paul Davis Clerk of the Council do not ordinarily examine on Oath and thereupon Causes come to publication He Answered The Clerk of the Council hath a Commission for taking Oath and wheresoever the Deputy requires he is to take Oath but whether de facto he took Oath on those former Orders he remembers not And whether he takes Oath in things determined by the Deputy alone he knows nothing of it But it is the common course of proceedings when there is an Order for an Attachment an Oath is taken of course that the party is in contempt Being asked on Mr. Whitlocks motion how anciently Commission hath been granted to the Clerk of the Council to take an Oath He Answered He doth not know but knoweth that since he had the Honour to sit at the Board they have had them and that is 12 or 13 years Being asked whether he hath known in matters of Equity or Title of Land any determination by any other Deputy alone And whether my Lord of Strafford hath not done it in many Cases He answered to the first That he doth not remember any particular Case of it To the second That he never knew my Lord of Strafford with his Remembrance meddle with matters of Law but for matters of Equity to his Remembrance he hath And this my Lord of Strafford confessed this being in the Court of Requests is to the Chancery To prove that the Clerks of the Council have power to examine on Oath an Order was read to the Lord Chancellor from the Lord Faulkland for drawing up a Commission to enable Sir William Usher for taking Affidavits and ministring Oaths in all Causes wherein the Lord Deputy or the Board c. His Lordship came to shew that the Instructions were so much mistaken that they were never observed by the Deputy Judges of Assize Presidents of Provincial c. nor could the poor Irish be debarred from remedy on Petitions without occasioning an universal out-cry being not acquainted with Legal forms and beggarly and the man that came against my Lord Mountnorris was in forma Pauperis To prove this my Lord of Straffords Book of Entries was mentioned and an Order of my Lord Faulklands made in Iune 1629. which is after the Instructions being in 1622. and being affirmed by my Lord Wilmott to be under my Lord Faulklands hand it was read Containing a Petition which set forth the Petitioners disturbance in his Possession of certain Lands by Sir Iames Fitzgerard contrary to a former Order and assaulting and beating the Petitioner and his Tenants c. And my Lord of Faulklands Warrant thereupon for Sir Iames his appearance to Answer the Contempt and for the Sheriffs keeping the Petitioner in possession He produced another Order of my Lord of Faulklands August 20. 1626. being for Attaching divers persons that had not paid Provisions for the Deputies Houshold He produced another Order made on Walter Dennotts Petition October 1624. for direction to certain Debtors to pay some moneys due Being a Warrant to examine the truth of the Plaintiffs demands and a Command to the Debtors to pay what 's due or give better Security else to appear to shew cause to the contrary the same being grounded upon Letters out of England in the Petitioners behalf He produced an Order of my Lord of Corke and Lord of Ely affirmed by the Lord Corke to be under his hand on Petition of Henry Iawant The Order being a Reference to the Lord Primate and to take Order for the Petitioners Relief as by a former Order of Reference was directed And whereas it may be objected that these were in Church Causes or Plantation Causes His Lordship observed That these Orders were made by the Deputy and Justices alone without the Council though by the Instructions the Deputy ought not to meddle with such Causes without the Council He then offered to shew that this Practice of hearing business on Paper Petitions is used by the Presidents in their Provincial Courts and by the Judges in their Circuits by Commissions from the Deputy whence his Lordship observed That if the Deputies have Power to Authorize they have likewise Power to Execute and he offered to this purpose my Lord Ranulagh's Answer at Council-Board under Mr. Mewtis his hand Here the Manager observed That my Lord of Strafford is charged with Exorbitant using of the Law and cannot be justified with others breaking of the Law besides it is neither in the Charge nor in his Answer My Lord of Strafford answered That he offered this only to shew that he is no Innovator of the Law further than others before him and to shew that the Instructions were mistaken in that point and could not be observed nor can they without much detriment to the Commonwealth yea that they have broken them and that he only hath observed them And so this matter was laid aside as not fully pertinent to the Charge His Lordship in the next place observed That as the Case stands with the Government and People of Ireland there is a necessity that this Power that hath been thus at all times in the Deputies should still remain there for relief of the poorer sort of People who are not able to undergo the long Circuit of Legal Proceedings nor are acquainted with them and must be drawn to it by Degrees and that the Plaintiff in this Cause was a Suitor in forma pauperis That it is a great assistance to the Merchants where they may recover their Debts suddenly and not lose their occasions and their benefit by increase of Trade That some Reports being raised as if he had neglected the poorer sort of People and not given Redress as former Deputies have done he advertised it over to His Majesty and fully informed Him of the Proceedings and Instructions and desired His Majesties Pleasure which was declared by a Letter under His Majesties Signet received October 6. the Ninth year of the King and to himself directed which was read Wherein recital is made of the Instructions 1622. and particularly in the point of Judicature by the Deputies That it is necessary to uphold such Power especially for relief of the poorer sort there as formerly had been used And Power is thereby to him given notwithstanding any former Directions Proclamation or Restraint to hear and determine such Causes as shall be brought before him
way-layed the People and took away their Yarne and Cloth and seized on what the Merchants had bought III. When any came to the Markets they went to the Houses of poor people and took up the Hutches where their Cloth lay and seized on all leaving not so much as to cover their Nakedness IV. They took away all the poor peoples Iron Pots on pretence of another Proclamation so that on this great Cruelty which exceeded Pharoes the poor Children were forced to go into the Fields to eat Grass with the Beasts of the Field where they lay down and died by Thousands If it be deny'd it will be proved by Twenty Thousand and the Iudges of Assize c. procured my Lord Lieutenant to Recall all the foresaid Proclamations Mr. Fitzgarret being Interrogated as to the Value of this Commodity to the Kingdom of Ireland He Answered That he hath known the Province of Ulster and had occasion to converse with the best of it for 24 years last past That he was for 8 years imployed in the Circuit for these parts and observed the Natives made a very great Commodity of Yarne and Linnen-Cloth That he may safely call it the Staple-Commodity of that part of the Kingdom That the Merchants buying their Yarne and transporting it to Lancaster it was a very great Commodity and many lived on it That the Proclamation and Execution of it as he was informed by a man of very good rank Impoverished the whole Province especially the Irish Natives of whom few have Lands or Estates but live as Tenants and the Lands there not yielding Wheat or Barley in abundance as other Countries they convert the best Lands to the sowing of Flax and make a very great Commodity of it That he had continual conference especially in Term-time with the best in those parts and especially Mr. Robert Braithwait Agent for my Lord of Essex and Dr. Cook of whose two Towns one is supported by this Commodity and Dr. Cook said there hath been a hundred pounds worth of Yarn in a day sold and bought in that place and by this means the Markets are wasted the People impoverished and that he the said Dr. Cook thinks in his Conscience many thousands are famished by the scarcity of Money that ensued on the seizing of this and the extremity was such that one of the Deputies of those mens authorising went into the house of a Scotchman in the parts of Ulster himself being in England or Scotland would open the Chests and used such cruelty that they thrust a stick into the Womans throat and she died of it and the man was tried for it as he was informed And so Mr. Maynard concluded the Charge supposing it to be sufficiently proved After a little respite my Lord of Strafford made his defence in substance as followeth That in this Charge he hears something tending to Oppression but nothing at all towards Treason for which he is only to answer That the intention of these Proclamations touching Yarn was certainly very good and he thinks the power very lawfully executed being but temporary to take away an abuse and make it better for the Common-wealth That he conceives not how these Proclamations should be particularly laid on him for he hath very good company goes along with him being set out by the Deputies and Council and affixed to them the Hands of my Lord Loftus the Lord Primate the Archbishop of Dublin Earl of Ormond Lord Dillon Sir Adam Loftus the two Chief Justices and others That he had rather answer all than impute any thing to any body else but he believes their Lordships will conceive he is not particularly answerable for things done by the advice of the Council as for the best That he conceives they had power to issue these Proclamations as in other things was frequent as in Drawing by the Horse tail burning the Straw and so taking the Corn from it to bring them from these Irish Customs to the English Manners So in this that their winding of Thread might be brought off with more conveniency as being of so much more value for the unwinding was as much trouble as the thing was worth so that the authority was lawful and well executed in the granting of it He craved leave to tell their Lordships wherefore it was being desirous to regulate this business more than any other thing whatsoever And it was out of that Duty and Service he did and ever should owe to the English Nation however for the present he may not be thought one he had those affections and shall have to his death to wish the Kingdom all prosperity and happiness in all the parts of it That at his coming over he did observe the Wooll of that Kingdom did increase very much that if it should there be wrought into Cloth it would be a very great prejudice in time to the Clothing trade of England and therefore he was willing as much as he might lawfully and fairly to discourage that Trade That on the other side he was desirous to set up the trade of Linnen cloth which would be beneficial there and not prejudice the trade of England But it was extreamly to his loss for he says he lost 3000 l. and the Stewards Chamber being searched and it appearing so the Accounts were delivered back again so that he conceives they had lawful power so to do till a Law might make it more certain and setled and then he is answerable for nothing in all the rest because the execution was nothing to him and the abuses of the Officers he is not to answer for of whom Croky was the principal Executor and if there was an Offender he is the greatest Offender himself and my Lord Rainalaugh tells their Lordships plainly and truly that upon complaint of the ill execution of it it was absolutely recalled and that within two years so if it were a fault he was not incorrigible but willing to amend it on the first notice For the Warrant there is nothing proved of any thing amiss in him but it goes only to second the Proclamation and that there should be assistance in the due and just execution of it only it says the Yarn shall be brought to Dublin there to be disposed of as he should direct but there is no proof of any brought to him only my Lord Rainalaugh mentions a Cart-load brought to Dublin as the fellow told him and Croky says some was brought to Dublin but he knows not how much and it was converted partly to his use partly to Carpenters but he is a single witness whereas my Lord Rainalaugh says there was taken at Athlone as he was told a Cart-load of Yarn and Sir Iohn Clotworthy says they starved by multitudes in Ulster my Lord of Strafford said he could not conceive how so little a quantity taken in Conaught should be an occasion of starving multitudes in Ulster nor the small quantities taken by Croky but if there were so
Savill being on the motion of the Earl Bath Examined Whether this was the occasion of his coming over and Whether he had not said He had brought all his Warrants with him He Answered That by the Oath he hath taken that he knew nothing of it till the night he came to the City That he had not said He had brought all his Warrants for he had none and should have spoken an Untruth if he had said it and he came on his own occasions not sent for Being Asked Whether he thought in his Conscience That it was a True Copy He Answered Yes I am confident for the Substance of it To Determine the Question their Lordships resolved to Adjourn to the House above Mr. Palmer desiring it might be Remembred That the Copy was Signed by Savill's Hand That Savill was the Person to whom the Warrant was directed and The Man that hath the Principal Warrant in his Custody That gave direction for the Copying of it and added That himself was ready to prove the substance and effect of it Their Lordships Adjourning and shortly after returning The Lord Steward Reported their Lordships Resolution viz. That their Lordships had taken into consideration this Copy and thought of it seriously and that in this individual Case they held it not fit to be read because it was not Attested And that their Lordships in no other Case since the Tryal began had admitted the like Copy but where it was Attested That they conceived this could be no Impediment or failer in the proceeding because the truth and verity of it would depend on the first general power given to execute it which they that manage the Evidence for the Commons say they can prove Mr. Palmer thereupon Alleadged That they would apply themselves to their Lordships Directions That the thing offered in Evidence had been executed That Soldiers according to what was deposed to be the effect of this Warrant have been Quartered on the houses and Lands of such Persons as have been Complained of on Paper Petitions either in case they have not appeared or after appearance did not render obedience Mr. Savill being Asked What he did in that kind and What Warrant he had for it He Answered That the Warrant by Vertue of which he laid Soldiers on several Delinquents Lands was delivered to him by my Lords Deputies Secretary Mr. Edmonds as he remembred by Virtue of which Warrant after five or six several times going for the Delinquents when they could not by any means be brought in he did according to my Lord Deputies Command make use of his Warrant and layed Soldiers on them till they had submitted themselves And that the Warrant was given under my Lord Deputies Hand Being Asked What he meant by Delinquents He Answered thus He ever observed on Complaints made to his Lordship my Lord Issued his Command This Command was served on the Party Complained of And on Return of that Oath being made of it that the Party gave not satisfaction A Warrant was Issued to the Pursivant On the Pursivants return he not meeting with the Party the Party possibly absenting himself or Rescued out of the Pursivants hands there is an Oath taken by the Pursivant a Warrant given to the Sergeant at Armes who goes in Person or sends his Deputy three or four or five times and when the Party cannot be got then he lays Soldiers Being Asked What he meanes by laying of Soldiers He Answered That he was to go to the Captain or Chief Officer of the next Company or Garrison to Complain of the Party he calls Delinquent and show my Lord Deputies Warrant and then he Commands them to rise with such a number as he shall think convenient and March to the Party Complained of in whose House they lie till they receive further direction Being Asked of the Questions severally He Answered That it was by a General Warrant he laid Soldiers on Delinquents and that he had a particular Warrant first but when that was disobeyed he used this General one that the Soldiers might not March but with an Officer That he did never see those Soldiers go on Service like Naked Men but they had such Armes as were fit for Soldiers That he hath seen them Armed with Muskets Swords and such furniture That they have meat and drink from the Party they lie on though for his own part he had never Meales Meat from him Being asked Whether they lie on the Parties Lands He Answered For that purpose they go Being Asked On how many several Persons he had done it and Whether it was ordinarily done He Answered That he had done it on several occasions and that he was afraid that sometimes he should be Complained of to my Lord Deputy in not putting it in Execution when the Parties have thought he the Deponent hath been favourable without cause That he had on several occasions executed his Command as namely he caused Soldiers to be laid on one Francis Ditton likewise on one Conolly and on Luke Borne as he takes it and some others whereof he doth not remember the particulars But those Men could not be brought in by any other meanes that he knew Being Asked Whether it hath been done ordinarily on all occasions and on Persons of Quality as well as others He Answered That when he had my Lord Deputies Warrant in a general way he never made any difference of Persons Being Asked Whether by Horse or Foot He Answered Never Horse that he knew of unless in case of Necessity when no Foot was to be had near them And that was but once Being Asked Whether the Number was left to his discretion or a certain number assigned He Answered The Warrant sayes he shall raise so many as shall be thought fit in the discretion of the Sergeant Being Asked Hath this been Executed on several parts of the Kingdom He Answered Yes as well in one part of the Kingdom as another when the occasion served Being asked Whether it was done by himself only or another He Answered There was none but himself till the Lord Deputy for the better Service of His Majesty was pleased to direct another Being Asked Whether my Lord Deputy ever spake to him about the Complaints made of him He Answered Never In Good Faith and he thinks my Lord will clear him of that Being Asked Was there not Complaints made of his showing Favour He Answered He must Confess there was Being Asked What he said on that occasion He Answered sometimes my Lords Secretary would demand Why he would not put the Warrant in Execution and he this Deponent would say They were poor Men but it never came to my Lords hands so far as he could remember Being Asked on my Lord of Straffords Motion What number of Soldiers he commonly laid and what was the greatest number usually He Answered That the greatest number was Five and an Officer but for the most part 2 or 3 or 4 but of
late he hath heard of more Being Asked Whether another had not a Warrant to the same purpose and How many he had laid He Answered He never saw the VVarrant but he hath heard he hath by Vertue of such a VVarrant laid Soldiers but he knows not how many he not looking to the actions of others but his own and he wished it had all layen in his power still and he had done well enough Patrick Gough being Asked Whether he had seen such a Warrant under the Hand and Seal of my Lord of Strafford whereby the Soldiers were Assessed and under whose Hand He Answered He had seen a VVarrant Signed by my Lord VVentworth on the top and a Seal to it directed to the Sergeant Savill to the same purpose that an Affidavit made to him of the absence of the Contemptor of the first VVarrant he might lay Soldiers on the Land And that he made search for it and saw it in Secretary Littles Book but it was long agoe Being Asked What he knew of the Execution of this VVarrant Upon whom How many and Upon what Occasion He Answered It was a constant course on a Command and Affidavit made of serving a VVarrant to the Pursivant on the Parties failing an Attachment was granted to the Sergeant and a Dormant VVarrant that on his not finding him he might lay Soldiers on the Land This was constantly practised during my Lords Government as he obsered And particularly upon one Richard Butler in the County of Typerary last Summer And no other cause could he learn or know but not giving obedience to my Lord of Straffords Orders The Original Contempt Being Interrogated What Insolencies he had known committed by Soldiers in this Case He Answered That he had heard Soldiers were left on one Bernes Land and they took other Mens Cattel that Grazed on the Lands and killed them and burnt part of the House as he was told and broke up the Hutches where he had his Corn and sent it to the next Market-Town to buy Beer for them Being Asked on my Lord of Straffords Motion Whether in his VVarrant any Command was given to take other Mens Goods He Answered He believed no such word was exprest in the VVarrant Being Asked Whether there was not Authority to lay Soldiers and What was meant by laying of Soldiers He Answered The VVarrant Imports That on their Default or Absence the Sergeant at Armes may lay Soldiers on the Land there to lye to feed on the Contemptors Goods and live there till he surrender his Body to the Sergeant at Armes Then the Sergeant gives notice to the Soldiers that the Party is come in and they go to their Garrison Richard Welsh Sworn Being Interrogated Whether he had seen a Warrant under my Lord of Straffords Hand for laying of Soldiers He Answered That he had seen my Lord Deputies Hand Signed if it was his Hand Wentworth as he had seen it to many Orders being very well acquainted with his Hand That he had seen his Hand to such a Warrant that the Man that showed him the VVarrant was one of my Lord Deputies Troopers by name Patrick Brady who told him he was going to fetch Soldiers by direction of Sergeant Savill to lay on one Francis Dillon who was in Contempt at this Bradyes own Suite That the occasion he showed him it was That Brady was Indebted to him the Deponent and he the Deponent intending to Petition my Lord against him Brady desired him to forbear it for he had a good way to get Money and shewed him the Warrant he the Deponent saw it under my Lord Deputies Hand and Seal Being Asked What was the Suit He said The Suit was on a Paper-Petition for as he remembers 100 l. and so Dillon falling into Contempt a Warrant was issued to the Pursivant and so according to the practice the Soldiers were laid on him Being Asked What was the effect of the Warrant under my Lord Deputies Hand He Answered That the effect of the Warrant was That the Sergeant at Armes should bring upon the Delinquents such as was incontempt out of the next Garrison Soldiers with an Officer and lay them on the Delinquents Lands till he had rendered his Body Patrick Cleare Sworn was Interrogated What Execution he knew of my Lord of Straffords Warrant to lay Soldiers He Answered That he had seen no Execution done but he had a Letter sent out of the Countrey by a Gentlewomans Son and she desired him the Deponent to Petition To have Soldiers that were laid on her Land discharged it being onely for a Contempt in not Appearing That he got a Copy of the Petition her Name being Agnes White and therein she Petition'd my Lord of Strafford to have them discharged and said she was very old and would die if she submitted her self to any Sergeant at Armes The Order was That upon an Affidavit he would give other Direction The Son made Affidavit that she was 80 years old On that an Order was made requiring Sergeant Savill to take off the Soldiers and trouble her no more she paying him his Fees And he knew further That Sergeant Pigott having an Attachment against Iohn Barrow who was gone away by reason of certain Cruelties sent after him by Secretary Little who threatned to put Soldiers on him if he came not to compound with him for his Fees Being Asked How far the old woman lived from Dublin He Answered In the County of Kilkenny 40 or 50 Miles from Dublin and this was four years ago Being Interrogated What the Contempt was He Answered That the Petitioner said He was dammaged 500 l. by not performing Covenants so she was commanded to pay 500 l. or else to shew cause to the contrary She was an old woman alwayes on her Bed and did not appear not knowing what belonged to Law Affidavit being made That she appeared not nor gave satisfaction an Attachment issued to the Pursivant The Pursivant could not find her on Affidavit The Sergeant at Armes goes for her and not finding her the first or second time he layes Soldiers on her And there they remained eating and drinking three or four weeks till he got them discharged And he heard by the Sergeant at Armes that this was very usually and ordinarily done Being Asked If Pigott had such a Warrant He Answered He did not see the Warrant but Pigott himself said He would lay Soldiers on Barrow if he did not submit and pay Fees Nicholas Ardah Sworn Being required to deliver what he knew concerning laying of Soldiers in case of Paper-Petitions He Answered That he had heard of many but never saw any but one which was in the City of Dublin One Tho. Cusacke of Dublin was seized by Sergeant Savill with Corporal Hamond and some others of my Lord Lieutenants Troops for not obeying an Order within these two years and a half That he saw the Horse and the Pistols at their Sadles there were two or
three as he takes it Being Asked in what Case it was He Answered A Merchant of Manchester trusted with Money or Commodities and being not able to pay him he sued him and so far that he got a Warrant and this was before my Lord Deputy on a Paper-Petition Being Asked How long the Soldiers remained there He Answered some three or four dayes till the Man surrendred himself to the Sergeant at Armes Edmond Berne being Sworn and Interrogated How many Soldiers were laid upon himself by vertue of this Warrant and For what cause and What Contempt and What was the loss and Whether the Soldiers were Armed He in his several Answers Deposed That there came to his House Ten of my Lord Deputies own Foot-guard and an Officer in the County of Wicklowe in Ireland in the Bernes Countrey 12 Miles from Dublin That it was on the 17 th or 18 th of October 1639 and they came on his Land under colour of a Contempt and there lay 15 dayes In which time they consumed and devoured all his Goods and Chattels they found at that time They Thrasht out three Ricks of Corn one of Wheat one of Rye the other of Oates which were very well worth 50 l. at the least After they had Thrashed this Corn and devoured the Victuals they found in the house and about the house they sent some of this Corn to a Market-Town within three Miles called Bray and that they sold for Tobacco Aquavitae some Beer and Victuals for themselves And they would not be content with this to satisfie themselves on his Goods but they must bring in the Women of the Town and made the Women drink and offered to Ravish them but that some of the Town came in to Rescue them That after they had consumed all his Goods they broke up his Tenants doors killed their Geese their Hens and destroyed their Victuals and when they had destroyed all his Tenants Goods they came on the Town-people which were not his Tenants and broke open their doors and struck them and eat their Victuals and killed their Geese and Hens and after they came to his Tenant one Timothy Wells they came on his Land and understanding he was his Tenant they took away 40 English Sheep and brought them to his house and there that night they killed two of them That his Tenant understanding them to be there referred himself to the Lord Chief Justice of Ireland then and Petitioned to this purpose that is my Lord Dillon and Sir Christopher Wainsford that Mr. Wells which was his Tenant had an Order to take away his Sheep from the Soldiers and then the Soldiers Reply'd That since he had got an Order to take away his Sheep they were sorry they did not kill more of them That they were not content to have Wood which was for his the Deponents own fuell and to destroy that but they burnt his Partitions his very House-door sold his Trunck his Bedsteads his Dining-Table and all they could light on in his house that after this time he was not able to keep house but left his Wife and Children to the courtesie of his friends and was fain to flie his Countrey and to serve in the Low Countreys as a Soldier that he may very well take it on his oath that this loss was at least 500 l. out of his way for he was not able to sow the Fallowes and was fain to break up House and Home and was never able to keep House since That this was upon colour of a contempt upon a Petition preferred against him to my Lord Deputy by Mr. Thomas Archibald for a pretended debt of a matter of Ten pounds and these Soldiers were armed with Swords Musquets and Halbeards some of them Being Interrogated on my Lord of Strafford's motion whether he the Lord Strafford was then in Ireland He Answered That before the Soldiers came on his Land my Lord Deputy came to England But Mr. Palmer observed that the Warrant was from my Lord Deputy and Mr. Palmer added that all will refer to the time of the Warrant dormant Being asked what Warrant was shewed for laying on these numbers of Foot He Answered That he durst not come in their sight But Mr. Maynard observed that this was one of the men Savill did lay Soldiers on and therefore it behoved to be by that Warrant Being asked whether the Debt might not have been compounded for 5 l. and why he would not rather pay 5 l. than suffer prejudice to 500 l He Answered to the First Yes To the Second That he conceived the Debt not lawfully due Mr. Robert Kennedy being Sworn and Interrogated what he knew of the laying of Soldiers on the said Berne and the occasion and what they did He Answered That one Archibald preferred a Petition against Berne for a pretended Debt to my Lord Lieutenant and as his usual course was his Lordship would referr the matter to the two next Justices of Peace uninteressed and they to determine the matter by consent if they could else to certify that the party bringing the Petition to him the Deponent desired him to draw the Warrant according to my Lord-Lieutenants Order They sent a Warrant for Berne who appearing they examined the business and it was so trivial that he the Deponent desired them to compound it Berne stood on it that the Plaintiff ought to have none and would pay him none They certified my Lord Lieutenant After this Certificate he the Deponent heard not of it till he heard that Soldiers came to this Gentlemans Land and hearing of it and that some Tenants of his the Deponents were wronged by it he came thither and some of them he knew and asking by what authority they were there We come say they by Warrant of the Sergeant at Arms Mr. Pigott That the Deponent thereupon said Mr. Pigott hath no Warrant Yes say they my Lord Lieutenants and he directed us not to leave till Berne delivered his Body for a contempt That he the Deponent Answered Though you have a Warrant for lying on his Land you have no Warrant to destroy his Goods for they were selling his Corn and loaded the Horses that went through the Town That there was to the number of 8 or 12 of my Lords Guard armed with Pikes and Guns and Swords But my Lord of Strafford he thinks was not then in Ireland he was newly gone Being asked on my Lord of Strafford's motion whether he saw the Warrant under Pigotts hand He Answered He did not but the Soldiers told him Pigott laid them on the Land by virtue of my Lord Deputies Warrant Being asked how long Pigott had been a Sergeant He Answered About Ten years And whether there was any more than two He Answered No more that attended the State and Mr. Kenneday added that he wondred at the course for he never heard of any such course before my Lord of Straffords time Mr. Palmer here observed that they were
not that the Exchequer and Composition Rents upon failing of payment have been levied by the Army on the appointment of the Deputy or chief Governor He Answered That he had known several Acquittances put into the hands of Sir Thomas Dutton for Rents due on certain parcels of Land in the County of Longford that were not paid into the Exchequer by a certain time for which a-fore-time Pursivants issued out against the Tenants that himself was one of the Tenants and being out of Town Sir Thomas Dillon seized three of his Horses at his the said Dillons House and there they remained till he came to Town for 13 s. 4 d. This being in the time of my Lord of Corke and my Lord of Ely being Justices Being asked as to the Contribution and Composition-Rents He Answered That some years before that in my Lord Faulklands time when he lived in the County of Longford that were not paid he remembers 30000 l. was granted on the coming of Sir Iohn B. into the Kingdom of Ireland and afterwards Sixscore thousand pound toward maintaining of the Kings Army and there was a Troop of Horse of Sir Robert sent into the County of But he knows not whether this be the Money called Contribution-Money That he was then Sheriff of that County and had direction sent to Sesse the Soldiers on them that refused to pay the Money That at that time he conceived that was not so fully understood by the Countrey that they should have paid it and himself and others did except against it conceiving the Money was not granted farther than as they would willingly pay And Valerian on the Statute urged of assessing Soldiers refused to Assess Soldiers on the Warrant of my Lord of Faulkland and thereon was sent for to the Castle the Soldiers sent to his house and remained there as long as he had Provision and after that from his house they were assessed on several Delinquents as the Soldiers pleased to Billet themselves and the Foot-Company of Sir Arthur Tyrringham was then in that County And one night he remembers 25 were Assessed on his own house because he did not pay the Money but he remembers not any thing of the Composition-Rents Being asked whether he had not seen a Warrant to this purpose subscribed by the Chief Governor He Answered That being Sheriff of the County of Longford in 1634. or 1633. there were Warrants directed from my Lord of Cork and my Lord Chancellor and he thinks under the hands of the rest of the Lords of the Board for levying Moneys allotted to the Soldiers and he had three Warrants himself and by virtue thereof levied Money and paid the Money to the Troops there under the hands of my Lord of Cork and Lord of Ely and the Council Sir Arthur Tyrringham being asked whether he had not received Order with a Warrant for attaching a person in case of Debt and for laying Soldiers on him in case he paid it not and who was the person He Answered That he had And the Sheriff of the County brought the Warrant from my Lord of Faulkland to lay some of his Men on a Debtor there till he paid the debt That these Soldiers were laid being under his command and stayed till the Debt was paid at the charge of the party and he tells this particular in it that makes him remember the whole circumstance The debt was very small not above 16 or 20 s. The Sheriff bringing him this Warrant he did not a little wonder at the matter to require Soldiers for levying such a sum But it was then so ordinary and frequent that it was seldom denied on any reasonable occasion the Men stayed there some 8 or 10 days when the party had enough he sends to him the said Arthur to recall the men that he told him he would if he the said party had satisfied the Money the party answered he had not yet but he would that he the said Sir Arthur told him what a strange man are you that will keep a charge on your self where if you had paid it the first hour I would have withdrawn the Men. Why sayes he I do not care for giving half a score Men a Meales Meat Being Asked on Mr. Palmers motion Whether it was a Debt between party and party or the Kings Debt He Answered He could not tell But the Sheriffs name was Fleming Being Asked Under whose hand was the Warrant He Answered Under my Lord of Faulklands Hand otherwise he would have levied no Money Lord Rainalaugh being Asked Whether before my Lord of Straffords coming into Ireland the Kings Debts and Rents as well Exchequer as Composition-Money were not raised by Assessing of Soldiers He Answered That he remembers in the Lord Justices time my Lord of Corke and Lord of Ely the Kings Rents being slowly paid in they did usually give Acquittances out of the Exchequer to the Captains and Officers of the several Companies and if they were not paid by some time limitted and if the Sheriff or the Collector did not bring in the Money the last resort was to fall on the Defaulters by assessing Soldiers on them and there to lie till the Money was paid Here my Lord of Strafford conceiving he had spoken of Contribution and Composition-Rents desired my Lord Rainalaugh might Repeat what he said Thereupon his Lordship Answered That he thought what he said he was sure of and might justly say That for the Exchequer-Rents and Contribution Payments for the Compositions he would say nothing the course was this That for the Exchequer-Rents the Vice-Treasurer gave out his Acquittances These were assigned to some Captains whose turn it was for Payment and they accompanied with a Warrant from the Deputies to constrain the payment by some few Soldiers Hereupon my Lord of Strafford Observed That this Cause would seem strange in England And whereas my Lord Rainalaugh spake of Contribution-Money Mr. Palmer humbly desired he might be Asked Whether the raising of it by Soldiers was not so agreed to in the Countrey For my Lord of Straffords own Answer sayes The Countrey choose rather that on Delinquency it should be so levied than otherwise And if it be by consent the force of the Statute is taken away My Lord Rainalaugh being Asked accordingly His Lordship Answered That he had already spoken to that purpose and he believed some of the Committee that were there had the particular Instance to produce Being required to name them in whose hands it was His Lordship said In Mr. Plunkets or Mr. Brown Being Asked When this course began He Answered He did not remember the time but he thought in 1628. on certain of the Agents out of England My Lord of Strafford did here offer That if he might have Read the Antient Book in my Lord Faulklands time he could have showed Sir Tho. Wayneman sent up and down to this and that County to fetch in the Composition-Rents and that they have been
which in this case is always to be admitted among persons of Honor and persons of Trust and therefore admitting it not any other way it was just and lawful and commendable in Mr. Treasurer and me for I vow to your Lordships we both said it and he as fully as I. But my Lords all these come very far short to prove the words of the Charge and this under favour is all the proof as I have taken that I should say these words before the Parliament The next words I am charged withal are in the 23 Article and those my Lords are that having tryed the affections of his people His Majesty was loose and absolved from all Rules of Goverment and was to do every thing that Power would admit and that His Majesty had tryed all wayes and was refused and should be acquitted both of God and man For the latter part that concerns the reducing of this Kingdom by the Irish Army I have answered already and therefore shall not need to repeat it My Lords mine Answer under favour to those words with your Lordships Noble permission must be thus That they are no way proved in the most material part of them by any Testimony that hath been offered I shall as near as I can repeat the proofs that were offered on this point for these Articles were brought in four or five together but I shall apply the proofs severally and distinctly The Testimony first given was the Testimony of the Lord of Bristol wherein his Lordship says That in a discourse there was difference betwixt his Lordship and me in some Tenents of ours To which I answered the other day that in discourse we speak not always the things we think but many times to gain from other mens arguments to strengthen me in my opinion I will seem to be of the contrary This is ordinary and familiar in all conversation and very honest and just so that albeit we seem to differ as we held it severally yet if the pulse of our hearts had been touched close both his and mine perhaps we should have found it one and the same Besides his Lordship said I disliked not the discourse we speaking of another Parliament only I said it was not convenient at that time and that the present dangers would not admit a remedy of so long consideration and that the King must provide for the Common-wealth Et salus populi suprema lex And truly my Lords I think that it is very hard any man should upon such a discourse have his words turned upon him and made use of to condemn him for High Treason My Lords I know you are so just that you would judge me as you would be judged your selves and whether any man that hears me would be content to have every word that falls in discourse betwixt man and man to be so severely interpreted I leave to every mans Breast what he finds in the closet of his own Heart and desire to be judged according to that My Lord went further and says I should say that the King was not to be mastered by the frowardness or disaffection of some particular men and conceives it be meant of the Parliament My Lords I say under favour these words are not within the Charge and therefore I am not to be accountable for them besides it is a single Testimony and by the proviso of that Statute cannot be made use of to the end and purpose for which they bring them My Lords the next Testimony offered for proving this Charge is the Testimony of my Lord of Newburgh and he sayes That at the Council-Board or in the Gallery I did say that seeing the Parliament had not supplied the King His Majesty might take other courses for the defence of the Kingdom Truly my Lords under favour who doubts but he might for my part I see not where the offence is for another man to have said thus for if another man will not help me may not I therefore help my self under favour I conceive there is no great weight nor crime in these words but in these likewise he stands a single Testimony there is no man that joyns with him in it and there is this in the whole Cause concerning the words that I think there is not any one thing wherein two concurr The next Testimony is that of the Earl of Holland and he sayes That at the Council-Board I said The Parliament having denyed the King he had advantage to supply himself other ways Truly my Lords I say still other wayes being lawful wayes and just wayes and such wayes as the goodness of the King can only walk in and in no other can he walk And therefore I conceive they be far from bringing it to so high a guilt as Treason and this likewise his Lordship expresses as the rest do singly on his own word as he conceives them and not on the particular word of any other person which is I say the case of every one that speaks in the business and therefore there being so great a difference in the Report and Conceiving of things it is very hard my words should be taken to my destruction when no Man agrees what they were My Lord of Northumberland is the next and he sayes I should say at a Committee for the Scotish affairs That in case of necessity and for defence and safety of the Kingdom every thing must be done for the preservation of the King and his People And this is the Testimony of my Lord in that point if I take any thing short it is against my Will I give you my Notes as far as I have them and further I cannot remember them But my Lords I say this brings it to that which is indeed the great part of my Defence in this case There is another agreed in this too and it is Mr Treasurer who sayes that in Argument for Offensive or Defensive War I should say That having tried all ways and being refused the King might in extream necessity provide for the safety of himself and his People I say this brings it to that which is principally for my Defence that must qualify if not absolutely free me from any blame and that is that which did proceed and follow after My Lords under favour I have heard some discourse of great weight and of great Authority and that is certain the Arguments that were used in the case of Ship-Money by those that Argued against the King in that Case say as much and will undertake if any man read those Arguments he shall find as much said there as I said at Council-Board for there you shall hear that there be certain Times and Seasons when Propriety ceases as in the case of Burning where a Man pulls down the next House to preserve the whole street from being set on fire In the case of building Forts on any mans Land where it is for the publique defence of the Kingdom in both these Cases Propriety
the Statute of the Eight and twentieth year of Hen. 6th in Ireland it is declared in these words That Ireland is the proper Dominion of England and united to the Crown of England which Crown of England is of it self and by it self wholly and entirely endowed with all Power and Authority sufficient to yield to the Subjects of the same full and plenary remedy in all Debates and Suits whatsoever By the Statute of the Three and twentieth year of Henry the 8th the first Chapter when the Kings of England first assumed the Title of King of Ireland it is there Enacted that Ireland still is to be held as a Crown annexed and united to the Crown of England So that by the same reason from this that the Kings Writs run not in Ireland it might as well be held that the Parliament cannot originally hold Plea of things done within the County-Palatine of Chester and Durham nor within the Five Ports and Wales Ireland is a part of the Realm of England as appears by those Statutes as well as any of them This is made good by constant practice in all the Parliament Rolls from the first to the last there are Receivers and Tryers of Petitions appointed for Ireland for the Irish to come so far with their Petitions for Justice and the Parliament not to have cognizance when from time to time they had in the beginning of the Parliament appointed Receivers and Tryers of them is a thing not to be presumed An Appeal in Ireland brought by William Lord Vesey against Iohn Fitz-Thomas for Treasonable words there spoken before any Judgment given in Case there was removed into the Parliament in England and there the Defendant acquitted as appears in the Parliament Pleas of the Two and twentieth year of Edw. 1. The Suits for Lands Offices and Goods originally begun here are many and if question grew upon matter in fact a Jury usually ordered to try it and the Verdict returned into the Parliament as in the Case of one Ballyben in the Parliament of the Five and thirtieth year of Edward the 1. If a doubt arose upon a matter tryable by Record a Writ went to the Officers in whose custody the Record remained to certifie the Record as was in the Case of Robert Bagott the same Parliament of the Five and thirtieth year of Edward the 1. where the Writ went to the Treasurer and Barons of the Exchequer Sometimes they gave Judgement here in Parliament and commanded the Judges there in Ireland to do execution as in the great Case of Partition between the Copartners of the Earl Marshal in the Parliament of the Three and thirtieth of Edward the 1. where the Writ was awarded to the Treasurer of Ireland My Lords The Laws of Ireland were introduced by the Parliament of England as appears by Three Acts of the Parliament before cited It is of higher Jurisdiction Dare Leges then to judge by them The Parliaments of England do bind in Ireland if Ireland be particularly mentioned as is resolved in the Book-Case of the First year of Henry the Seventh Cook 's Seventh Report Calvin's Case and by the Judges in Trinity-Term in the Three and thirtieth year of Queen Elizabeth The Statute of the Eighth year of Edward the 4th the first Chapter in Ireland recites That it was doubted amongst the Judges whether all the English Statutes though not naming Ireland were in force there if named no doubt From King Henry the 3. his time downwards to the Eighth year of Queen Elizabeth by which Statute it is made Felony to carry Sheep from Ireland beyond Seas in almost all these Kings Reigns there be Statutes made concerning Ireland The exercising of the Legislative Power there over their Lives and Estates is higher than of the Judicial in question Until the 29th year of Edward the 3. erroneous Judgements given in Ireland were determinable no where but in England no not in the Parliament of Ireland as it appears in the close Rolls in the Tower in the 29th year of Edw. the 3. Memb. 12. Power to examine and reverse erroneous Judgments in the Parliaments of Ireland is granted from hence Writs of Error lye in the Parliament here upon erroneous Judgements after that time given in the Parliaments of Ireland as appears in the Parliament Rolls of the Eighth year of Henry the 6th No. 70. in the Case of the Prior of Lenthan It is true the Case is not determined there for it 's the last thing that came into the Parliament and could not be determined for want of time but no exception at all is taken to the Jurisdiction The Acts of Parliament made in Ireland have been confirmed in the Parliaments of England as appears by the close Rolls in the Tower in the Two and fortieth year of Edw. the 3. Memb. 20. Dorso where the Parliament in Ireland for the preservation of the Countrey from Irish who had almost destroyed it made an Act That all the Land-Owners that were English should reside upon their Lands or else they were to be forfeited this was here confirmed In the Parliament of the Fourth year of Henry the 5th Chap. 6. Acts of Parliament in Ireland are confirmed and some priviledges of the Peers in the Parliaments there are regulated Power to repeal Irish Statutes Power to confirm them cannot be by the Parliament here if it hath not cognizance of their Parliaments unless it be said that the Parliament may do it knows not what Garnsey and Iersey are under the Kings subjection but are not parcels of the Crown of England but of the Duchy of Normandy they are not governed by the Laws of England as Ireland is and yet Parliaments in England have usually held Plea of and determined all Causes concerning Lands or Goods In the Parliament in the 33 Edw. 1. there be Placita de Insula Iersey And so in the Parliament 14 Edw. 2. and so for Normandy and Gascoigne and always as long as any part of France was in subjection to the Crown of England there were at the beginning of the Parliaments Receivers and Tryers of Petitions for those parts appointed I believe your Lordships will have no Case shewed of any Plea to the jurisdiction of the Parliaments of England in any things done in any parts wheresoever in subjection to the Crown of England The last thing I shall offer to your Lordships is the Case of 19 Eliz. in my Lord Dyer 306. and Judge Crompton's Book of the jurisdiction of Courts fol. 23. The opinion of both these Books is That an Irish Peer is not Tryable here it 's true a Scotch or French Nobleman is tryable here as a common person the Law takes no notice of their Nobility because those Countreys are not governed by the Laws of England but Ireland being governed by the same Laws the Peers there are Tryable according to the Law of England only per pares By the same reason the Earl of Strafford not being a Peer of Ireland is
the Subject but then he goes into Ireland and as his authority increases so he ampliates his design and no sooner is he there but the third Article is laid to his charge That when the City and Recorder of Dublin the principal City of Ireland presented the Mayor upon a solemn Speech and Discourse concerning the Laws and Liberties as your Lordships know that is the subject matter of a Speech at such presentments as when the Lord Mayor of London is presented to the King I beseech your Lordship observe the words he then used They were a conquered Nation and that we lay not to his charge but they were to be governed as the King pleases their Charters were nothing worth and bind but during the Kings pleasure I am to seek if I were to express an Arbitrary Power and Tyrannical Government how to express it in finer words and more significant terms than these That the people shall be governed at the Kings Will that their Charters the sinews and ligatures of their Liberties Lands and Estates should be nothing worth and bind no longer than the Kings pleasure especially being spoken upon such an occasion and the words proved by two or three Witnesses of credit and quality From thence we descend to Articles that shew the execution of his purpose There are three things a man enjoys by the protection of the Law that is his Life his Liberty and his Estate And now my Lords observe how he invades and exercises a Tyrannical Jurisdiction and Arbitrary Government over them all three I shall begin with the fifth Article that is concerning my Lord Mountnorris and Denwit My Lord Mountnorris a Peer of that Realm was sentenced to death by procurement of my Lord of Strafford who howsoeve he pretends himself not to be a Judge in the cause yet how far he was an Abettor and Procurer and Countenancer and drawer on of that Sentence your Lordships very well remember he was sentenced to death without Law for speaking words at a private Table God knows of no manner of consequence in the world concerning the treading upon my Lord of Strafford ' s Toe the Sentence procured seven months after the words spoken and contrary to Law and himself being put in mind of it my Lord Mountnorris desiring to have the benefit of the Law and yet he refusing it And then it was in time of Peace when all the Courts of Justice were open and to sentence a man to death of that quality my Lord of Strafford himself being present an author a drawer on of it makes it very hainous Your Lordships remember this Article was fully proved and though he pretends His Authority by a Letter from His Majesty I shall in due time give a full answer to that so that it shall rise up in judgement against him to aggravate his offence and that in a great measure Here he exercises a Power over Life his excuse was That he procured a Pardon from my Lord Mountnorris but the Power was exercised and the Tyranny appeared to be the more He would first sentence him to death and then rejoyce in his Power that he might say There remains no more but my command to the Provost Marshal to do execution To exercise a power over his life and to abuse him afterwards is very high but no thanks to him that the sentence of death was not executed it was the Grace and Goodness of His Majesty that would not suffer my Lord Mountnorris a person of that Eminence to be put to death against Law But the other was hanged and as appears against Law and though my Lord pretends the party was burnt in the hand yet that was not proved nor material and for him to do this in time of Peace when the Courts of Justice were open it argues a desire in his Breast to arrogate a Power above Law And in truth I may not omit some observations that my Lord made this day He hopes His Majesty would be pleased to grant him a Pardon I perceive he harboured in this thoughts that he might hang the Kings Subjects when he would and then get a Pardon of course for it The Lord bless me from his jurisdiction My Lords give me leave to goe back again here is Power over the Lives and Liberties of the Subject but he exercised likewise a Tyrannical Power over his Estate Your Lordships may be pleased to remember the fourth Article where he judges my Lord of Cork's Estate in neither Church-land nor Plantation-land and therefore had no pretence of a Jurisdiction for it is a Lay Fee divolved by Act of Parliament to the Crown yet he deprives him of his possession which he had continued for Twenty nine years upon a Paper-Petition without rules of Law And whereas my Lord of Cork went about to redeem himself the Law being every man's inheritance and that which he ought to enjoy he tels him He will lay him by the heels if he withdraw not his Process and so when he hath judged him against an express Act of Parliament and Instructions and bound up a great Peer of the Realm he will not suffer him to redeem that wrong without a threat of laying him by the heels and he will not have Law nor Lawyers question his Orders and would have them all know an Act of State should be equal to an Act of Parliament which are words of that nature that higher cannot be spoken to declare an intention to proceed in an Arbitrary way The next was in my Lord Mountnorris his Case and Rolstone And here I must touch my Lord with misrepetition Rolstone preferred a Petition to my Lord Deputy my Lord Deputy himself judges his Estate and deprived him of his possession though he cannot produce so much as one example or precedent though if he had it would not have warranted an illegal action but he cannot produce a precedent that ever any Deputy did determine concerning a mans private Estate and if he hath affirmed it he proved it not some Petitions have been preferred to him but what they be non constat But though never any knew the Deputy alone to determine matters of Land yet he did it To the Seventh Article we produce no Evidence but my Lord of Strafford cannot be content with that but he must take upon him to make defence for that which is not insisted upon as a charge but since he will do so I refer it to the Book in print where he determines the Inheritance of a Nobleman in that Kingdom that is my Lord Dillon by a Case falsly drawn and contrary to his consent and though he deprives him not of his possession yet he causes the Land to be measured out and it is a danger that hangs over his head to this day And had we not known that we had matter enough against my Lord of Strafford this should have risen in judgement against him but I had not mentioned it now if he had not mentioned it