should not extend to a Subject This is to take a power above Law and make himself equal to Sovereignty to say that he should not be comprehended more than the King himself He says he did not lead the Soldiers but only gave a Warrant and therefore this should not be Treason but though he leads them not the Commander is an Actor and to give Warrant for Treason is Treason He says this is a statute-Statute-Law in Ireland and not examinable before their Lordships here Mr. Palmer alledged that he would do my Lord right that he submitted to their Lordships Judgements and craved leave to give answer to that point and said The Laws of Ireland are devised from the Crown of England the King being seized of it in the right of his Crown of England and as a parcel of this Crown The power they have to make Laws there is derivative from the Crown of England and they did thankfully accept them from the first Conqueror Since that they had power to make Acts of Parliament but that is subordinate the Laws there are the Laws of England applyed to that place As any particular custom of a place not the general Law of the Land is the Law of that place by a general custom and yet may be judged out of the precincts of that custom so the Laws of Ireland are the Laws of that Kingdom yet may be judged by this Supream Court out of the limits of Ireland Though in an inferior Court when a thing questioned in Ireland is brought by Writ of Error they judge according to the Laws of Ireland not of England And my Lord hath prayed and werequire that he may be judged according to the Laws of Ireland So this Law of 18 H. 6. may be judged by their Lordships though it be a Law in Ireland But my Lord urges that this Law is repealed and for that he gave reasons on many Acts of Parliament First a Statute made 8 Edw. 4. That is made to a particular purpose reciting one particular Statute and repealing that and then by a general clause ratifying and introducing all the Statutes of England into Ireland This being but on a particular occasion with such a general Clause will not be applyable however it will be the Answer to that that follows It is a general Clause to introduce the Laws of England and shall not have that reflexion to repeal any Law of force in Ireland This introducing of our Laws thither shall not work to repeal their Laws but make a consistance of both Laws so far as they may stand together On that Mr. Palmer said he would not enlarge himself it being not matter of Fact and it was not expected that matter of Law would have been insisted on and therefore he leaves it to those that shall hereafter give their Lordships satisfaction in point of Law That which my Lord called a Judgement in Parliament 11 Eliz. recites that it was in time of desolation of Justice That the Captains had brought oppressions on the people It was in a time when though the Irish had been victi long before yet they were not brought perfectly under subjection of the Laws of England there then remained Rebellions and Tumults It was in time of Hostility and War And that Statute gives but an Implication neither that Captains should not Assess without the Deputies Warrant And it follows not that therefore he hath authority to do it But howsoever the thing be this was for defence of the people to make resistance against Rebels But the thing in charge was in time of peace and full government of the Law and so that Statute will give no justification at all My Lord of Strafford concluded that there was no Treasonable Intent in this and therefore it should be no Treason on the Statute of the 25 Edw. 3. My Lord recited the words of the Statute Not to be only the levying of the War but adhering to the Kings enemies but these glosses are not to be confounded but severed The adhering to the Kings enemies is one offence within that Statute Levying of War another so that if there be no Adherence yet if there be Levying of War it will be Treason And this levying of War it was on the Kings People perhaps there was no intent upon the Kings Sacred Person yet if it be against the Kings People such a levying of War is Treason ordinary Cases of Felony are to be against the Kings Crown and Dignity though it be the Homicide of a mean Subject it is against the Kings Crown and Dignity because it is against the protection and safety of that man that is the Kings Subject and so the levying of War on the Kings People by laying Soldiers in this hostile manner being against the protection by which they are governed against the safety by which the King is to defend them It is a War against the King his Crown and Dignity This is the Answer to the Defence And Mr. Palmer concluded That he conceived the Charge of the House of Commons in matter of Fact was fully maintained and for matter of Law if there remained any scruple a farther Argument and stronger Reasons should be offered hereafter And so a Recess being granted for a day upon the Humble Request of my Lord of Strafford the House was Adjourned and Saturday following was appointed for the next meeting THE Sixteenth Article The Charge 16. THat the Earl of Strafford the Two and twentieth of February in the 7 th year of His Majesties Reign intending to oppress the said Subjects of Ireland did make a proposition and obtained from His Majesty an allowance thereof that no complaint of injustice or oppreision done in Ireland should be received in England against any unless it appeared that the party made first his address to him the said Earl and the said Earl having by such usurped Tyrannical and exorbitant power expressed in the former Articles destroyed and oppressed the Peers and other Subjects of that Kingdom of Ireland in their Lives Consciences Land Liberties and Estates the said Earl to the intent the better to maintain and strengthen his said power and to bring the people into a disaffection of His Majesty as aforesaid did use His Majesties Name in the execution of the said power And to prevent the Subjects of that Realm of all means of complaints to His Majesty and of redress against him and his Agents did issue a Proclamation bearing date the 17 th day of September in the Eleventh year of His Majesties Reign thereby commanding all the Nobility Undertakers and others who held Estates and Offices in the said Kingdom except such as were employed in His Majesties service or attending in England by His special command to make their personal Residence in the said Kingdom of Ireland and not to depart thence without Licence of himself And the said Earl hath since issued other Proclamations to the same purpose by means whereof the Subjects of
have said he freely concluded our Libertys we have offered Five Subsidys His Majesty hath given us Gracious Answers and nothing is done that the King can take notice of c. Hereupon Sir Tho. Wentworth proposed a middle way viz. That when we set down the time be sure the Subjects Libertys go hand in hand together with the Kings Supply then to resolve of the time but not to report it to the House till we have a ground and a Bill for our Liberties This is the way to come off fairly and prevent jealousies Hereupon the Committee of the whole House Resolved That Grievances and Supply goe hand in hand May 1. 4 Car. MR. Secretary Cook delivered a Message from His Majesty viz. To know whether the House would relye on His Royal Word or no Declared to them by the Lord Keeper which if they do the King assured them it should be Royally performed Sir Robert Phillips of Somersetshire spake upon this occasion and said That if the words of Kings strike impressions in the Hearts of Subjects to speak in a plain Language said he We are now come to the end of our journey and the well disposing of an Answer to this Message will give Happiness or Misery to this Kingdom Let us set the Common-wealth of England before the Eyes of His Majesty that we may justify to the world that we have demeaned our selves as dutiful Subjects to His Majesty Hereupon Sir Thomas Wentworth stood up and concluded the Debate saying That never House of Parliament trusted more in the goodness of their King for their own private than the present but we are ambitious that His Majestys goodness may remain to Posterity and we are accountable to publique Trust and therefore seeing there hath been a publique violation of the Laws by His Ministers nothing will satisfy him but a publique Mends and to our desire vindicate the Subjects Rights by Bill is no more than is laid down in former Laws with some modest provision for Restriction Performance and Execution and this so well agreed with the sense of the House that they made it the subject of a Message to be delivered by the Speaker to His Majesty Whilst the Lords afterwards were in Debate of the Petition of Right they were pleased at a Conference to propose to the Commons this following addition to the Petition of Right viz. 1. We present this our Humble Petition to Your Majesty with the care not only of preserving our own Liberties but with due regard to leave intire the Sovereign Power wherewith Your Majesty is trusted for the Protection Safety and Happiness of the People Upon this Sir Edward Cook spake saving This is Magnum in Parvo This is propounded to be a conclusion of our Petition it is a matter of great weight and to speak plainly it will overthrow all our Petition it trenches on all parts of it Look into the Petition of former times they never Petitioned wherein there was a saving of the Kings Sovereignty I know the Prerogative is part of the Law but Sovereign Power is no Parliamentary word c. Sir Thomas Wentworth spake next and said IF we do admit of this Addition we shall leave the Subjects worse than we found them and we shall have little thanks for our labour when we come home let us leave all Power to His Majesty to punish Malefactors but these Laws are not acquainted with Sovereign Power we desire no new thing nor do we offer to trench upon His Majestys Prerogative we may not recede from this Petition neither in part or in whole To add a saving is not safe doubtful words may beget an ill construction and the words are not only doubtful words but words unknown to us and never asked in one Act or Petition before 2. Now he began to be more generally taken notice of by all men and his Fame to spread abroad where publique Affairs and the Criticismes of the times were discoursed by the most refined Judgments those who were infected with popularity flattering themselves that he was inclined to support their inclination and would prove a Champion upon that account but such discourse as it endeared him to his Countrey so it begot to him an interest in the bosom of his Prince who having a discerning Judgment of Men quickly made his observation of Wentworth that he was a person framed for great affairs and fit to be near His Royal Person and Councils About this time in the heat of so general a report of him Sir Richard Weston then Lord High Treasurer after Earl of Portland a person also eminent for his acute and clear parts coveted acquaintance with this Gentleman and there not being wanting discreet Agents to accomplish what my Lord Treasurer desired it was soon effected After the first view a familiarity was begotten and next a deep friendship It happened that in some Conferences they touched upon the popular Humor as they termed it then appearing in the House of Commons and the present ways they were in as tending to no good he proposed the most rational and plausible mediations that could be for the present juncture of affairs in somuch that his judgment in things was much valued and followed In some time after he was made Baron Wentworth and had so gained His Majesties opinion that he was also created Viscount Wentworth of Wentworth-Woodhouse made one of His Majestys Privy Council Lord-Lieutenant of the County of York and Lord-President of the North In this Trust he Governed himself with such skill especially in those high contested points then in consultation that he pleased his Prince and improved His Majesties Revenue His frequent appearance at the Council-Board quickly gave occasion to that Great Prelate Archbishop Laud then Bishop of London and himself to discern one anothers parts begetting a right understanding betwixt them which grew into so inviolable a friendship that nothing but the inevitable stroke of death could separate them who whilst they lived constantly united their great Hearts and Understandings for the advancing the Church and the service of their Prince The Cedar was still growing though perhaps to the dislike of some Emulators yet to the general satisfaction of all such as had ability enough to judge of his Parts His next advance was to be Lord-Deputy and Chief Governor of Ireland The affairs of that Realm being in much disorder by the temper of the Popish party there who did not with moderation make use of the Kings Clemency to them in relaxation of the rigor of some penal Statutes He began with the Church in the Reformation of his Kingdom and first procured of the King by the joynt mediation of the Archbishop That all the Impropriations then in the Crown would be restored to the Church in that Nation though to some diminution of the Royal Revenue and advanced Learned men whose Judgments were for Episcopacy He raised in Ireland Eight Regiments for the Kings service each consisting of 1000 men in Ten
to the destruction of the Law he flies to the Kings Prerogative for shelter That to mention the Kings Prerogative in the face of the Peers of the Realm and in presence of all the Commons when he is charged with an Exorbitant proceeding to the Subversion of the Laws is but to cast a Scandal upon the Kings Prerogative and to make it have a worse relish whereas the Law supports the Kings Prerogative and the Subject supports it When his Answer is charged not to be according to Truth he casts a Gloss upon it from the easiness of his being mistaken whereas when he is able to justifie it he glories in it as that whereto he must stand or fall That the Letters Patents which my Lord of Strafford produces rise in Judgment against him for the King hath trusted him ad custodiendas leges Regni and therefore if he hath broken through them he hath broken his Trust. He says It is strange the exceeding of Jurisdiction should be laid to his charge as Treason He is charged with the Subverting of the Law and that 's more than the Exceeding of a Power He read the Instructions to warrant his Act and by these the Commons desire to be judged whether they do not in the Negative say there shall be no such Proceeding before the Deputy and yet he will imply there have been proceedings to the contrary which we cannot see He justifies his Proceedings by former Deputies and hath produced Henry Dillon who hath seen several Proceedings in Sir Henry Bagnalls time and others where Orders have been made by the Deputy alone but the Orders themselves are not brought whereas if they were looked on and consideration had what results out of them their Lordships would not have suffered them to be read without Attestation that they were true Copies But now whether they be entred or no or what other Proceedings there were the Witness doth not know and therefore they are no Evidence nor in truth ought to be offered And the Witness being asked what the Orders were he says one was a Reference and whether Witnesses were examined he says he doth not know He produces my Lord Dillon and we offer to be adjudged by him for he says He knew not any Deputy before my Lord of Strafford that hath intermeddled with matters of Land except in Plantation and Church Causes and this Order is charged to be made by him alone He pretends this is a Court and a Prerogative of the Sword We know not whether my Lord of Strafford intends to keep it by force but whereas he produceth a Commission for giving Oath to the Clerk of the Council this Commission needed not if it were a Court for the Court it self would give an Oath and whereas he mentions it to be in the nature of the Court of Requests we would gladly know whether there be not Authority in the Judge to give an Oath He produces several Orders in my Lord of Faulkland's time The first is expresly for Plantation Lands and there was no determination in Equity or otherwise The second Order he produced in my Lord Faulkland's time was a meer Green-cloth Case and nothing to this purpose The third Order produced was in a business recommended from England to my Lord of Faulkland and such Causes as are out of the Instructions excepted The Order in the Lord of Corke's time was but an Order of Reference to the Archbishop and a Reference is no Determination a private person may do as much So that we observe nothing hath been offered to prove that a Deputy alone hath determined matter of Possession and in this we rest with confidence That none ever did before himself and shall therefore desire the Examination of some Privy-Counsellors He produced a Letter from His Majesty to proceed in such Causes But if by Law it ought not to be then a Letter and Authority derived thereby is void and warrants not Proceeding in the Subject the Letter was as just as might be being obtained on his Information to whose Government and Trust His Majesty had committed the Kingdom and if he mis-inform he must Answer it And the Letter is written with caution giving Authority to proceed in matter of Equity as former Deputies had done and if it be not proved that his Predecessors had used such Proceedings where is his Authority He says he hath proceeded according to the direction of the Kings Letter that is he never determined Title of Land but in Equity and when such Causes have come to him he hath referred them to Law which we are forced to disprove that by offering it under his own hand that whereas a Nobleman of the Realm my Lord of Baltinglas had mortgaged to Sir Robert Parkhurst for 3000 l. Land of a 1000 l. year when Sir Robert had Title at Law and might as Mortgagor have entred after the day past Sir Robert prefers a Petition to my Lord of Strafford himself and he without the Council determines the Possession and takes it from the Mortgagee and afterwards he purchases the Lands himself and letts them for 680 and odd pounds a year For my Lord Mountnorris his Imprisonment the Manager said That when his distressed Lady the Mother of Twelve Children Petitioned His Majesty declaring the great Distress her Husband suffered by the Tyrannical Power exercised over them His Majesty like a Gracious Prince referred it to the consideration of the Deputy That on submission he should deliver him out of Prison But when the poor Lady presented it with Tears in her Eyes and cast her self at his Feet though there was a Reference from His Majesty yet he that would at another time shelter himself under the Kings Prerogative refuses to give so much Respect as to entertain it and when the eldest Son came refused to accept it Another of the Managers added That whereas there is a restriction in the Kings Letter That the Earl of Strafford should not meddle with any thing in other Courts they would shew that after two Decrees in a Court my Lord hath on a Petition Decreed quite contrary and it was no Beggars Cause but a Knights and 5000 l. value That to the Kings Letter they will give all Reverence But if my Lord of Strafford had found such a constant practice to be proved he needed no Letter to set up the Jurisdiction that was in him before That this Letter under the Signet can give no Countenance against an Act of Parliament which Orders That the Deputy shall not meddle with Causes but remit them to their proper Courts and no other Exposition can be given of the saving of the Kings Prerogative but only a reservation of His Liberty to Sue in any Courts And for him to seek by mis-information to procure a Letter from His Majesty for a Power not warrantable by Law he conceives it an Abuse of His Majesty and that makes his fault the greater and he instanced in the Marquess of Dublin who for procuring
should think fit according to the demerit of the Delinquents and to be kept there until they made submission and then to return and not before And the like Warrants were issued to others and to the Subjects of that Realm who were forced to submit to his illegal Commands and this is charged to be a levying of War against the King and his People Your Lordships may please to remember what a Power my Lord of Strafford had assumed to himself from the Courts of Justice established by Law in taking to himself an Arbitrary Power to determine Causes on Petitions and that without any legal Process And he intended to himself an execution of these Orders in this manner If a Petition was presented First a signification went to the Party that he should satisfie the complaint else shew cause if he did not appear then there went a Messenger or Pursivant on his Affidavit that the Party was not found as well he might not be found then an Attachment after that the Sergeant at Arms. This Sergeant at Arms had always with him a Warrant dormant not a particular Warrant in the Case complained of that whensoever he should have an Order to fetch any man in if once he had made Affidavit he could not be found he was by virtue of that Warrant to repair to the next Garrison and there to take such numbers of Soldiers as he thought fit and quarter them on the House of the Party and this was as ordinarily executed as any powers of Law in legal Cases In the execution of this the Party suffered as much insolencie as is incident to War their Catel taken their Corn thrash'd out their growing Corn cut their Houses burnt and some exiled and forced to leave their Countrey and flie to remote places by reason of their Soldiers insolencies The method propounded is First to prove the Fact then to observe the nature of the offence both from the Stat. of 25. Edw. 3. and also from a particular Stat. in Ireland 18 H. 6. whereby the Offendor in this very case is adjudged to be a Traytor Mr. Savil the Sergeant at Arms produced and sworn and a Copy of his Warrant offered My Lord of Strafford excepted against the reading of the Copy in a Charge of High Treason adding that it concerned him very much he being to be tryed for his Life and Honor since upon this the whole Charge was to be grounded On other things he did not insist so much but submitted to their Lordships pleasure because they said they would consider them in their Judgement but this being the ground and foundation whereupon they intend to charge him with High Treason he besought their Lordships to consider it with that Honor and Goodness and Justice they did in all things Mr. Glyn in Answer alledged that their Lordships had over-ruled it in the Case of the Bishop of Down That suppose a Warrant is offered by force whereby High Treason is committed if a Copy may not be given in evidence then let him that is guilty in such a Case get away the Originals it cleares him of the Treason besides it is no matter of Record and Mr. Maynard observed That if one writes a Letter and therein commands one to commit Treason if the Letter be burnt this man shall not prove the Command if only the Original must make it good Mr. Savill being asked what was become of the Original Warrant He answered it was in Ireland he not expecting any question about this business but this was the Copy of it and under his own hand My Lord of Strafford offered to their Lordships that he that is to swear it to be a true Copy is the man that if a fault be committed is in fault himself as much as any for he is the man that executed this Treason and now he shall swear to the justifying of his own act Mr. Savill being on my Lord of Clares Motion Asked How they came by the Copy He Answered He knew not how it came into their hands But Mr. Palmer added Now he sees it in our hands and he knows it And that this Copy cannot be questioned unless he question what is done already for in this very Case a Copy is allowed to be an Evidence for the Relation it hath to the greatness of the Charge as to my Lord of Strafford and it cannot alter the Justice of the Evidence for if it be an Evidence it is an Evidence in whatsoever the Cause is Mr. Savill being Asked How he came to set his hand to the VVarrant He Answered That in Ianuary last there came to him one VVilliam Somer Secretary to my Lord Rainalaugh and told him Mr. Sergeant Savill you had a Warrant to Quarter Soldiers on one within the Town of Athlone but the parties were Friends and you removed them one of those Soldiers committing Extortion in taking away two Pewter Dishes and is to be Tried at our next sitting and unless the Soldier have a Copy of your Warrant he is like to suffer in it That he thereupon Answered He could not deny it and brought the Original Warrant and being a good Clerk he bad him Copy it out He sayes he desired you to let some of your own Men do it and I will give him for his pains That he the said Mr. Savill did thereupon deliver the Original Warrant to his Servant Edmond Brumingham as he remembers who Copied it out That Mr. Somer came and told him Here is a Copy That he asked Mr. Somer Whether he had examined it Yes indeed saith he it is a true Copy That upon that he the said Mr. Savill delivered this to Mr. Somer under his Hand but did not compare it himself yet is confident it is a True Copy Mr. Maynard observed That they Charged a Treason in an Act That my Lord of Strafford gave Authority to do such a thing not that he gave this Particular Warrant and though they proved no Copy at all yet proving the Command it maintained sufficiently the Charge for a Treason may be a Treason though not put in Execution That they produced not this Copy as necessary to give a precise Copy but to prove that there was such a Command and Authority given and as a farther evidence they shew a Copy taken on such an occasion And Witnesses are here who will clearly Depose That this is the very substance and effect of the Warrant given under my Lord of Straffords hand Here my Lord of Strafford interposed That it was Charged on him in particular That on the 9 th of May in the 12 th year of the King he gave Traiterously Authority to Robert Savill c. But Mr. Palmer insisted That they did not find much on Reading this Warrant but if the Authority was proved it was sufficient And Mr. Pym added That they could not wave any part of the Evidence and therefore prayed it might be read Mr.
the Kings debt it might be one of the Rents or some duty leviable by consent of the people neither did he say it was on a suit before the Deputy and therefore that will not come to the Case For that my Lord Dillon was called again touching Contribution Composition and Rents Composition-Rents fall under the same Consideration That Sir Thomas Wayneman laid soldiers is but an affirmation and expects no answer but if the Information be true he used very violent courses for it hath appeared he hanged a man without any occasion My Lord produced the Instructions of 1628. and out of them inforced that it might be lawful for him to levy Soldiers with authority but it appears by the first Article it was consented to at the writing and for the Benefit of the Subject as was before answered and that very much money was assigned for the Soldiers and it may be proved if there be occasion That there issued Acquittances to the Captains of the Company to deliver to the persons from whom the Money was due in case of payment and if they did not pay by consent Soldiers were laid and not otherwise For the Proclamation of December 1633. whereby the payment of His Majesties Rents and Revenues was ordered it recites divers Rents were behind that the surplusage would not pay the Soldiers that by want of Money the Soldiers might make irruptions on the County That according to direction to prevent inconveniencies Moneys should be levied which had Rise from the Instructions 1628. For the time of it was 1633. A Proclamation might well second that which was setled before by the Instructions If it did not pursue them surely the Proclamation was an offence in it self and then there is no justification of a Treason by a Treason but it might have been as well objected against as this in hand But it is true it hath the countenance of these Instructions But on all these there is no pretence of forcing submission to my Lord of Strafford's Orders After Usuage his Lordship observes the Testimonies produced and takes exceptions to that of Berne that the ground of his complaint was when my Lord of Strafford was in England That it was done by Pygott's Warrants who was not proved to have any Warrant from him It is true there is no full and precise proof that Pygott had his Warrant from my Lord of Strafford But though it was done after his coming for England yet if his Warrant were made before though it were executed in his absence it will lay it on my Lord of Strafford But we say the Warrant was made before and to Pygott as well as Savill One Witness says Pygott himself did vouch my Lord of Strafford to have given him his Warrant it was my Lord Lieutenants Warrant he was my Lord Lieutenants Sergeant the Soldiers were my Lord Lieutenants Troopers the Soldiers laid by Savill are by my Lord Deputies Warrant proved to be under his Hand and Seal and many Witnesses are in Savills Case produced And whereas my Lord says no Warrant was shewed if himself had not excepted against it a true Copy had been produced and if none be shewed it is his own fault but my Lord of Strafford should have shewed it if any thing was in it to qualifie the matter for it is proved he gave authority and by his authority the Soldiers were laid Whereas my Lord says this cause was not complained of Berne gives the reason he durst not complain there but came over hither to complain and hath prosecuted the complaint My Lord of Strafford was pleased to aske Ardah what he heard concerning laying of Soldiers It is true he and Savill mention the laying on Soldiers on Fitzgerard but it was for the Kings Money and they spake it not on their own knowledge but by hear-say and it was done but once and whether since the Instructions it doth not appear and if it was since then it was by consent and this Fitzgerard lay out as a Rebel and if it was done it was done under that capacity To that point a Witness was produced Mr. Kennedy being Interrogated Whether he the said Fitzgerard did did not lye in the nature of a Rebel when Soldiers were laid on him He Answered That this Fitzgerard was Sheriff in the County of Corke and failing in his Accompt at the time Process was issued on his Recognizance and he held out three or four years That he the Deponent being then the Kings Remembrancer thought it his duty to acquaint the Barons of the Exchequer that he could not be found but kept abroad in the Woods being a man of good Estate and then on acquainting my Lord of Faulkland with it a Warrant was procured to the Sergeant at Arms. Henry Dillon says nothing of the Usage but pretends one Thimbleby said he had a Warrant but whether he had a Warrant or did execute it appears not And if it be so it appears not for what time when it was nor out of what Court the Process came upon which the last Assessment was made This is all offered in matter of Fact my Lord proceeds to other justifications First That His Majesties Deputy is so qualified that he hath power to resist Rebels and secure Peace and it is true he hath power but he hath no power at all to make a War especially in time of Peace now all things are appeased there and no occasion is given of a War only that Soldiers be maintained for a Nursery of Martial Discipline but there is no occasion of Soldiers to be laid on the Kings people He alledged a Stat. 10 H. 7. that no War or Peace should be made but by the Deputies Licence and therefore he infers that by the Deputy War might be made It is true where there is hostility or Rebellion then to oppose and repress that Rebellion the Deputy may make a defensive War but to do it in time of Peace on the Kings people that are under the Government of His Majesties Laws is to make War on the Kings Subjects under His Peace and Protection and consequently on the Sovereign Power that doth protect them He would compare it with forcible Entry but the circumstances do very much diversity it from Riots or forcible Entries It is done by Soldiers that come furnished with all warlike Ammunition brought from Garrisons the places of War brought with an Officer brought in numbers and though the Lord of Strafford extenuates the numbers yet the Sergeant at Arms was unlimited So the power given to him was a vast power to take such a number of Soldiers as he should think fit His Lordship observes that the Stat. of 18. H. 6. cannot conclude him because Statutes here in England do not include the King unless he be nominated in them the Committee expected not to hear this reason That because the Kings Sacred Person is not mentioned in a Statute who cannot be within the blemish of such an offence therefore it
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
the Laws and Government of the Kingdom and the use made of the words is not that they are in themselves Treason but as they prove that intention But this is the work of another time being matter of Law and therefore Mr. Whitlock said he would say no more to it now neither doth it require his Answer nor is it at all to this business My Lord did much insist on it that there was no mention by any of the Lords that were of the Committee for the Scotch Affairs concerning the words of bringing the Army out of Ireland to reduce this Kingdom diverse of their Lordships being to that point examined But Mr. Treasurer Swears in the Affirmative he heard the words spoken and when they come to sum up the rest of these words and applying them to this shew the dependance they have one upon another their Lordships will see plainly that must be his intention and that there could be no other interpretation of his words It is possible for some that were at the Council not to hear the words and yet that disproves not a Witness that sayes in the Affirmative he did hear the words And though some of my Lords do not remember some other passages as That His Majesty was loose and absolved from all Rules of Government yet that is proved by two Witnesses and though the rest remember them not yet that stands clearly proved Other things which some of their Lordships did not remember were proved by three Witnesses Whence it may be deduced that what Mr. Treasurer deposes is to be believed though some of my Lords that were present did not remember it By making a sum and Collection of the words and comparing one with another it will appear very clear that my Lord of Straffords intention was to bring in that Army to reduce this Kingdom And first their Lordships will remember the words that passed betwixt Sir George Rateliffe and Sir Robert King and the Relation between my Lord of Strafford and Sir George Ratcliffe And before my Lord of Strafford came out of Ireland he gave direction to Sir George Ratcliffe and afterwards on a Discourse Sir Robert saying how my Lord of Strafford and how the said Sir George Ratcliffe had least cause to desire a War Sir George replyed We are ingaged not himself onely but We speaking of my Lord of Strafford are ingaged in a War and Sir George sayes further that the King hath 30000 Men and 400000 l. in his Purse and a Sword by His Side and if he wanted Money who would pity Him which cannot be intended but by raising of Money on the Subjects of England But besides their Lordships may remember the expression of my Lord Ranalaugh and Sir Robert King that these Forces were intended to be used for raising Moneys here and that my Lord of Strafford offers to sell his Land in Ireland Besides his Brother said the Commonwealth is sick of Peace and would not be well till it was Conquer'd again which must imply Force and an Army to do it It is a Proof of my Lord of Straffords intention that a Parliament should be summon'd to give Supply and if not that then it should be Dissolved and other Courses should be taken My Lord Primates Deposition is that in case of necessity His Majesty might use His Prerogative might levy what he needed only first it was fit to try the Parliament and if that succeeded not then to use his Prerogative as he pleases My Lord Conway proves the same Intention my Lord of Strafford saying to him That if the Parliament supplied not the King His Majesty would be acquitted before God and Men if he took some other course to supply himself though against the will of His Subjects And it cannot be intended to be against their will but it must be by force for if it be with their will it is voluntary And Mr. Treasurer proves that my Lord would be ready to serve the King any other way that is by Force by Armes or any way whatsoever Their Lordships may remember his words to His Majesty That the Parliament had denyed to supply Him that they had forsaken Him which was onely to incense His Majesty against Parliaments He told my Lord of Bristol in that Discourse with him that His Majesty was not to suffer Himself to be Mastered with the frowardness and undutifulness of His People and if His Majesty was not to suffer Himself to be Mastered by them but to Master them it cannot be but by strength of others My Lord of Holland proves more fully and my Lord of Newbrough concurs with him that His Majesty had an Advantage to supply Himself other wayes because the Parliament had denyed to supply Him And there be no other wayes save Parliament-wayes but extraordinary and illegal wayes My Lord of Strafford hath much laboured to answer and qualifie the last words but he comes short of it And those words are as fearful and of as high a nature as can be expressed by a Subject and by a Counsellor to his Soveraign The first part of the said last words are clearly proved by the Testimony of my Lord of Northumberland and Mr. Treasurer That the King had tryed His People and was Absolved from all Rules of Government That He was to do all that Power would admit that he had tryed all wayes and was refused and should be acquitted before God and men The latter part Mr. Treasurer onely reaches to that His Majesty had an Army in Ireland which He might imploy to reduce this Kingdom and comparing these words with the former if the King be absolved from all Rules of Government Which way can that Power be used but by bringing in an Army the latter words being dependant and consequent to the former and if they be compared together and sum'd up their Lordships will be satisfied that this was the intention of my Lord of Strafford to bring an Army out of Ireland into this Kingdom to reduce it and that his purpose was by a strong hand to compel the Subjects of the Kingdom to submit to an Arbitrary Power and whatsoever should be imposed on them And whereas my Lord makes it a great part of his excuse that nothing was executed upon this Counsel we must give humble thanks to His Majesty for if his Counsel might have taken place no doubt but that had been done which was laboured and advised to be done But a Gracious Sovereign would not take hold on those Counsels but rejected them as to that though so much was done on other Counsels and Misinformations of my Lord of Strafford as my Lord of Strafford will never be able to justifie That nothing is done is no excuse to him It is an Obligation to the Kings Subjects the more to Love and Honor him But it shews clearly my Lord of Straffords intention if it might have taken place to have changed the Lawes to have brought an Army upon us and by
to the King and Commons and that they would take nothing but what they paid for punished all theft with death here 's no intendment against the Person of the King The intent was to establish the Laws of Villanage and Servitude to burn all the Records to kill the Judges This in the Parliament of the 5th year of R. 2. No. 31 32. the First Part is declared to be Treason against the King and against the Law In the 11th year of R. 2. in Parliament the raising of Forces against the Commissioners appointed by Act of Parliament the year before adjudged Treason by all the Judges The Statute I mo Mary Cap. 12. Enacts That if 12 or more shall endeavour by force to alter any of the Laws or Statutes of the Kingdom he shall from such a time there limited be adjudged only as a Felon This Act was to continue but to the next Parliament it is expired it shews by the words only that the offence was higher before the making it My Lords In Queen Elizabeths time Grant and divers Apprentices of London to the number of 200. rose and assembled at Tower-hill carried a Cloak upon a Pole instead of a Banner their intent was to deliver divers Apprentices out of Prison that had been committed upon a Sentence in the Star-Chamber for Riots to kill the Lord Mayor of London and for setting prizes on Victuals In Trinity Term 37 Eliz. divers of the Judges were consulted withal and resolved That this was a Levying of War against the Queen being intended against the Government and Officers of the Queen and therefore Grant and others were executed as Traitors Afterwards in that Queens time divers of the County of Oxford consulted to go together from House to House in that County and thence to London and other parts to excite them to take up Arms for the throwing in of all inclosures throughout England Nothing was done nor no assembly Yet the Statute of 13 Eliz. Cap. 1. during the Queens Life made it Treason to intend or advise to Levy War against the Queen In Easter Term 39 of Eliz. all the Judges of England met about the Case it was resolved by them that this was a War intended against the Queen they agreed That if it had been of one Township or more upon private interest and claim of right of Common it had not been Treason but this was to throw in all Inclosures through the Kingdom whereunto these parties should pretend no claim That it was against the Law in regard that the Statute of Merton gave power of Inclosures in many Cases upon this resolution Bradsaw and Burton were executed at Aynestow-hill in Oxfordshire the place where they intended the first Rendezvous So that my Lords if the end of it be to overthrow any of the Statutes any part of the Law and setled Government or any of the great Officers intrusted with the execution of them This is a War against the King My Lords It will be further considerable what shall be accounted a Levying of War in respect of the actions and things done there 's a design to alter some part of the Laws and present Government for the effecting thereof People be provided of Arms gathered together into Troops but afterwards march not with Banners displayed nor do bellum percutere whether the Army themselves and gathering together upon this design be a War or such prosecution of the Design with force as makes it Treason within the Statute First If this be not a War in respect that it necessarily occasions hostile preparations on the other side Secondly From the words of the Statute shall Levy War and be thereof probably Attainted of open Deed by People of their condition altho the bare conspiring be not an open Deed yet whether the Arming and Drawing of men together be not an open Declaration of War In Sir Thomas Talbots Case before cited in the Seventeenth year of R. II. the Acts of Force are expressed in the Parliament Roll That he caused divers of the People of the County of Chester to be armed in a Warlike manner in Assemblies here is no Marching no Banners displayed In the Eighth year of Hen. VIII William Bell and Thomas Lacy in Com. Kanc. conspired with Thomas Cheyney called the Hermite of the Queen of Faries to overthrow the Law and Customs of the Realm and for the effecting of it they with Two hundred more met together and concluded upon a course of raising greater Forces in the County of Kent and the adjacent Shires This adjudged Treason these were open Acts. My Lords For the application of both these to the case in question First In respect of the end of it here was a War against the King it was to subvert the Laws this being the design for the effecting of it he assumed to his own Person an Arbitrary Power over the Lives Liberties and Estates of His Majesties Subjects and determined Causes upon Paper-Petitions at his own Will and Pleasure Obedience must be forced by the Army this is declared by the Warrant My Lords If it be said that the Warrant expresseth not any intent of subverting the Laws It expresseth fully one of the principal means whereby this was to be done that is obedience to his arbitrary Orders upon Paper-Petitions This was done in reference to the main design In the cases of the Town of Cambridge and Sir William Cogan they have formerly been cited to your Lordships upon other occasions the things in themselves were not Treason they were not a Levying of War In that of Cambridge the Town met together and in a forcible manner broke up the University-Treasury and took out of it the Records and Evidences of the Liberties of the University over the Town In the other they of Bridgewater marched to the Hospital and compelled the Master of the Hospital to deliver unto them certain Evidences that concerned the Town and forced him to enter into a Bond of 200 l. These if done upon these private ends alone had not been a Treason as appears by the very words of the Statute of 25 Edw. 3. before-mentioned of marching openly or secretly But my Lords these of Cambridge and Bridgewater they were of the conspiracy with the Villains as appears in the Parliament-Roll of the First year of Rich. the 2. Numb 311. and 32. where the Towns of Cambridge and Bridgewater are expresly excepted out of the general Pardon made to the Villains this being done in reference to that design of the Villains of altering the Laws this was that which made it Treason If the design went no further than the enforcing Obedience to these Paper Orders made by himself it was sufficient it was to subvert one fundamental part of the Law nay in effect the whole Law what use of Law if he might order and determine of mens Estates at his own pleasure This was against the Law notoriously declared in Ireland In the close Roll in the Tower in the 25th
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
him in mortem destructionem of the King My Lords in this Judgment and others which I shall cite to your Lordships it appears that it is a compassing the Kings death by Words to endeavour to draw the Peoples hearts from the King to set discord between the King and them whereby the People should leave the King should rise up against Him to the death and destruction of the King The Cases that I shall cite prove not onely that it is Treason but what is sufficient Evidence to make this good Upon a Commission held the 18th year of Ed. 4. in Kent before the Marquess of Dorset and others an Indictment was preferred against Iohn Awater of High Treason in the Forme before-mentioned for Words which are entred in the Indictment Sub hac forma That he had been servant to the Earl of Warwick that though he were dead the Earl of Oxford was alive and should have the Government of part of that Country That Edward whom you call King of England was a false Man and had by Art and Subtilty slain the Earl of Warwick and the Duke of Clare his Brother without any cause who before had been both of them attainted of High Treason My Lords This Indictment was Returned into the Kings Bench in Trinity-Terme in the Eighteenth year of Edward the Fourth and in Easter-Terme the Two and twentieth of Edward the Fourth he was outlawed by the stay of the outlawry so long as it seemes the Judges had well advised before whether it were Treason or not At the same Session Thomas Heber was Indicted of Treason for these words That the last Parliament was the most simple and insufficient Parliament that ever had been in England That the King was gone to live in Kent because that for the present he had not the Love of the Citizens of London nor should he have it for the future That if the Bishop of Bath and Wells were dead the Archbishop of Canterbury being Cardinal of England would immediately lose his head This Indictment was returned into the Kings Bench in Trinity-Terme in the 18th year of Edward the 4th afterwards there came a Privy-Seal to the Judge to respit the Proceedings which as it should seem was to the intent the Judges might advise of the Case for afterwards he is outlawed of High-Treason upon this Indictment These words are thought sufficient evidence to prove these several Indictments that they were spoken to withdraw the Peoples Affections from the King to excite them against Him to cause Risings against Him by the People in mortem destructionem of the King Your Lordships are pleased to consider That in all these Cases the Treason was for words onely words by private persons and in a more private manner but once spoken and no more onely amongst the People to excite them against the King My Lords here are Words Counsels more then Words and Actions too not onely to disaffect the people to the King but the King likewise towards the People not once but often not in Private but in places most Publick not by a Private Person but by a Counsellor ofState a Lord Lieutenant a Lord-President a Lord-Deputy of Ireland 1. To His Majesty that the Parliament had denyed to supply Him a Slander upon all the Commons of England in their Affections to the King and Kingdom in refusing to yield timely supply for the Necessities of the King and Kingdom 2. From thence that the King was loose and absolved from Rules of Government and was to do every thing that Power would admit My Lords more cannot be said they cannot be aggravated whatever I should say would be in Diminution 3. Thence you have an Army in Ireland you may employ to reduce this Kingdom To Counsel a King not to Love His People is very Unnatural it goes higher to hate them to Malice them in his heart the highest expressions of Malice to destroy them by War These Coales they were cast upon His Majesty they were blown they could not kindle in that Breast Thence my Lords having done the utmost to the King he goes to the people At York the Country being met together for Justice at the Open Assises upon the Bench he tells them speaking of the Justices of the Peace that they were all for Law nothing but Law but they should find that the Kings Little Finger should be heavier then the Loynes of the Law as they shall find My Lords Who speaks this to the people a Privy-Counsellor this must be either to traduce His Majesty to the people as spoken from Him or from himself who was Lord-Lieutenant of the County and President intrusted with the Forces and Justice of those parts that he would Employ both this way Add my Lords to His Words there the Exercising of an Arbitrary and Vast Jurisdiction before he had so much as Instructions or Colour of Warrant Thence we carry him into Ireland there he Represented by his place the Sacred Person of His Majesty First There at Dublin the Principal City of that Kingdom whither the Subjects of that Country came for Justice in an Assembly of Peers and others of greatest Rank upon occasion of a Speech of the Recorder of that City touching their Franchises and Regal Rights he tells them That Ireland was a Conquered Nation and that the King might do with them what he pleased Secondly Not long after in the Parliament 10 Car. in the Chair of State in full Parliament again That they were a Conquer'd Nation and that they were to expect Laws as from a Conqueror before the King might do with them what He would now they were to expect it that he would put this Power of a Conqueror in Execution The Circumstances are very Considerable in full Parliament from himself in Cathedra to the Representative Body of the whole Kingdom The Occasion adds much when they desir'd the Benefit of the Laws and that their Causes and Suites might be determined according to Law and not by himself at his Will and Pleasure upon Paper Petitions Thirdly Upon like occasion of Pressing the Laws and Statutes that he would make an Act of Council-Board in that Kingdom as Binding as an Act of Parliament Fourthly He made his Words good by his Actions Assumed and Exercised a Boundless and Lawless Jurisdiction over the Lives Persons and Estates of His Majesties Subjects procured Judgment of Death against a Peer of that Realm Commanded another to be Hanged this was accordingly Executed both in times of High Peace without any Process or Colour of Law Fifthly By Force of a long time he Seized the Yarn and Flax of the Subjects to the Starving and undoing of many thousands besides the Tobacco business and many Monopolies and Unlawful Taxes forced a New Oath not to dispute His Majesties Royal Commands determined Mens Estates at his own Will and Pleasure upon Paper-Petitions to himself forced Obedience to these not only by Fines and Imprisonment but likewise by the Army sessed
by two witnesses concerning the Kings being loose and absolved from rules of Government and if they did not hear those words no marvel they did not hear the other and therefore that which he himself pretends to be a convincing testimony is nothing at all so that his objections are clearly taken away and the single testimony fortified with testimonies that make above one witness and so the words are fully proved But to fortify the whole I shall handle all these Articles together This design to subvert the Law and to exercise an Arbitrary power above the Law in this Kingdom will upon the proofs putting them altogether and not taking them in pieces as my Lord of Strafford hath done appear to have been harboured in his thoughts and setled in his heart long before it was executed You see what his Counsels were That the King having tryed the affections of his people was loose and absolved from all rules of Government and might do every thing that power would admit and His Majesty had tryed all ways and was refused and should be acquitted of God and Man and had an Army in Ireland wherewith if he pleased he might reduce this Kingdom so there must be a trial of his people for Supply that is denyed which must be interpreted a Defection by refusal and this refusal must give advantage of necessity and this necessity must be an advantage to use his Prerogative against the rule of the Law and consent of the People this is his advice which shews that this very thing that happened did harbour in his thoughts long before the breach of the Parliament and the occasion of the Army Your Lordships have heard it confessed by himself That before this last advice he had advised the calling of a Parliament To the Parliament a proposition of Twelve Subsidies was made for supply and which may be spoken with great assurance before they had consulted or given any resolution to that proposition the Parliament was dissolved upon a supposal that the Supply was denied Now that this was pre-designed by my Lord of Strafford himself I beseech you observe these things following that is The words in the Two and twentieth Article That His Majesty was first to try the Parliament and if that did not supply him then he would serve the King any other way His words are proved by Mr. Treasurer That if the Parliament supplyed him not he would serve him any other way and this is before the Parliament set now if your Lordships hear the proofs of my Lord Primate which my Lord of Strafford slights taking it singly My Lord Primate before the Parliament was called when my Lord of Strafford was in Ireland and not yet come into this Kingdom testifies my Lords saying That if the Parliament will not supply His Majesty the King was acquitted before God and Man if he took some other course to supply himself though against the will of the Subjects I beseech your Lordships observe how he prophesies these things must come to pass and advised them accordingly My Lord Conway testifies that before the Parliament sate my Lord of Strafford said that if the Parliament would not supply His Majesty the King was acquitted before God and Man if he took another course to supply himself though it were against the will of the Subject and he doubts not but the Parliament would give What Twelve Subsidies and your Lordships very well remember Twelve were propounded but I beseech you observe the coherence of all the Parliament must be called they must be tryed if they deny there is necessity and this necessity is a Warrant for the King to proceed so that my Lord of Strafford must be judged to be either a Prophet or to have this design beforehand in his thoughts Now the Parliament being broken before answer to the Demand given he vents his Counsel in the Three and twentieth Article and how far it is proved your Lordships have heard Now comes the Bullion to be seized the Copper-money to be advised and now comes he to tell the King that the Aldermen of London must be put to Fine and Ransome and laid by the heels and no good would be done till some of them be hanged so you hear his advice I beseech your Lordships observe what success this advice took Four Aldermen were instantly committed and then the Counsel of the Three and twentieth Article is fomented First He foments the War then there is a necessity the defection of the Parliament must set the King loose from rules of Government and now see whether the occasion of the War the calling of the Parliament the dissolving of it be not adequate to what he propounded to himself namely to set up an Arbitrary Government Your Lordships remember how fresh my Lord of Bristols memory is touching my Lord of Straffords opinion upon the dissolution of the Parliament how he declared unto my Lord of Bristol instantly within three or four days after That the King was not to be mastered by the frowardness of his people or rather of some particular persons and your Lordships remember Sir George Wentworths words spoken the very day of dissolving the Parliament which may be very well applyed as a concurrent proof to his intentions of bringing the Army into England He was my Lords own Brother that knew much of his Counsel and his words are That the English Nation would never be well till they were conquered over again So my Lords put all together if he declared his own intentions if actions in executing this Tyrannical and Arbitrary Power if Counsels of as dangerous consequence in as high a strain as can be be not a sufficient Evidence to prove an intention and desire to subvert the Law I know not what can prove such an interpretation and now I refer it to your Lordships judgements whether here be not a good proof of the Article laid to his chage My Lords in the Seven and twentieth Article he is charged with levying of War upon the Kings people by forcing them in Yorkshire to pay Money to prove they were so forced you have heard by two witnesses that Sergeant Major Yaworth by Musquetiers four together in the Town and one by one out of the Town did compel them to pay the fortnights contribution else they were to serve in person That he did this by Warrant is likewise confessed by Sir William Pennyman and whether this were an authority derived from or commanded by my Lord of Strafford that is the question and my Lords it is plainly proved that it was commanded by my Lord of Strafford for Sir William Pennyman himself being examined alledged that the Warrant was made in pursuance of the relation and direction made by my Lord of Strafford Your Lordships heard what my Lord of Strafford did say before-hand as is proved by two witnesses Sir William Ingram and Mr. Cholmley that this Money should be paid or levied on the Subjects Goods Then his Declaration
to fix this offence to fasten this oppression upon the King himself to make it to be believed that the occasion of these their groans proceeded from His Sacred Majesty yet God be thanked the strength of that Sun is powerful enough to dispel these vapours and to disperse the cloud that he would have raised but in the mean time my Lord is nothing to be excused My Lords he may pretend zeal to the Kings Service and affection to His Honor but give me leave not to believe it since when he is questioned by all the Kings people and in the face of his people and offences laid to his charge which himself now confesses to be against Law he should justify it under the Kings authority that savours not of a good servant I will say no more My Lords he is charged with exercising a tyrannical power over the Kings people and in his Defence your Lordships have often heard and I may not omit it that he shelters himself under the protection of the Kings Prerogative though he be charged with Tyranny of the highest nature that may be see then how foul and malignant an aspect this hath My Lords what is it else but to endeavour as much as in him lies to infuse into the Kings heart an apprehension that His Prerogative is so bottomless a Gulf so unlimited a Power as is not to be comprehended within the rules of Law or within the bounds of Government for else why should he mention the Prerogative when he is charged to exceed the Law What is it else but as far as in him lies to make the people believe for I may not forget the words he hath used by his magnifying of the Prerogative that it hath a special stamp of Divinity on it and that the other part of the Government that God pleases to put into the Kings hands had not that stamp upon it as if any thing done by one was to be justified by authority derived from Heaven but the other not These expressions your Lordships remember and I may not omit to put your Lordships in mind of them and I can expound them no otherwise than as much as in him lies to make the subject believe and apprehend that which is the buckler and defence of his protection to be the two-edged sword of his destruction according to the Doctrine he Preached and that that which is the Sanctuary of their Liberty is the snare and engine of their slavery And thus he hath cast a bone of contention as much as in him lay betwixt King and People to make the Subjects loath that glorious Flower of his Crown by fixing a jealousie in them that it may be a means of their bondage and slavery But there is so much Piety and Goodness in the Kings heart that I hope upon fair understanding there will be no such occasion but no thanks to the party that so much advanced the Prerogative in the case and condition he stands in to justify that which is laid to his Charge of High Treason My Lords I beseech you give me leave there is no greater safety to Kings and People than to have the Throne incircled with good Counsellors and no greater danger to both than to have it encompassed with wicked and dangerous ones and yet I beseech you call to mind how he hath attempted to deprive the Subject of all means to discover this danger by insinuating to your Lordships what a dangerous thing it were if Counsellors should be called in question for giving of Counsel for who then saith he would be a Counsellor where is your safeguard where is the Kings service Is not this as much as in him lies to deprive the people of the means whereby they must make themselves happy and whereby the King must be happy that is by his having good Counsellors about him and yet he infuses that venom that the questioning of Counsellors is dangerous both to King and Peers if it should be brought into example My Lords for many years by-past your Lordships know an evil spirit hath moved amongst us which in truth hath been made the Author and ground of all our distractions and that is necessity and danger this was the bulwarke and the battery that serves to defend all exorbitant actions the ground and foundation of that great invasion of our Liberties and Estates the judgement in the Ship-money and the ground of the Counsel given of late to do any thing and to perswade the King that he was absolved from all rules of Government and yet your Lordships have observed in the course of his defence how often he hath raised this spirit that God be thanked hath been laid to the great comfort of King and Kingdom by your Lordships and all the Commons in Parliament And when he stands under this question and goes about to justify his exorbitant actions how often hath he created this Idol again and therefore I am afraid he discovers too much his own heart in it My Lords I may not omit some other passages in his Defence How he hath cast scandals upon three Nations in this place that is in his first day of Defence when the Irish Remonstrance made by all the Commons of Ireland was produced by the Commons of England he expressed in a passion that things were carried against him by faction and correspondence and if he had time he would make it appear with a strong conspiracy Here is a scandal cast upon the Parliament of Ireland with a reflection on the Commons of England howsoever it is true your Lordships may remember the recantation he made that day which I will not omit desiring not to lay any thing to his charge but what is true but it is the reflection of a scandal that I cannot omit to put your Lordships in mind of and the rather because this Remonstrance presented from the Parliament of Ireland did bear date before my Lord of Strafford was charged here which is very remarkable viz. the 7th of November and therefore though he pretends a correspondence certainly there could be none then for he is not charged here till the Tenth And the same day justifying a Sentence in the Castle-Chamber your Lordships remember he affirmed that unless a strict hand were kept upon the Nation there they would find it hard to prevent perjury one of the most crying sins in Ireland Now to lay an aspersion upon the Subjects of Ireland being under the Government of the same King with us how fit this is to be done by a man in that condition that my Lord of Strafford is I referr to your consideration Another passage I remember whereby in his Defence he fell upon that Nation in answer of which I may not omit to do the service I owe to the Commons for whom I am trusted and that is that talking of an Arbitrary and Tyrannical Government in reference to some Orders of the Commons-House in Ireland he used words to this purpose You
were placed for all the Iustices or Iudges to be their Assistants There were also Seats provided for all the Commons in Parliament though they came not with their Speaker and his Mace as a House of Parliament but as a Committee of the whole House Seats were likewise prepared for the Commissioners of the Kingdom of Scotland and Ireland which made it an Assembly of Three-Kingdoms At the lower end of the Scaffolds a place was provided for Thirteen Members of the House of Commons who were appointed for the Earls Prosecutors to manage the Evidence against him near to them stood the Prisoner with a Table before him and a Desk to write upon and a Chair was set for him to rest himself when he found it needful The Author of the ensuing Papers was purposely placed near the Earl to take in Characters whatsoever should be said either against or for him and to the best of his skill he did impartially put in Writing what was said in the Case Pro and Con he hath not wittingly or willingly omitted the least Particle said in the Prisoners Defence either by himself or any body in his behalfe he hath not varied the form or manner of his Expressions being full of Eloquence and pleasing Rhetorick and excellently adapted to move compassion both in his Iudges and the numerous Assembly of Auditors The Greatness of this Minister of State 's Tryal every way answered the High Station and Employments unto which he had been advanced and the lofty Designs he had managed And the Books of his Life from the time of his admission in the Cabinet of his Princes Council were exposed to the Worlds View and the most profound Learning of the Laws of our Countrey the sharpest Wit and the deepest wisdom of our Kingdom were employed to examine and measure what he had done Not only by those Rules of Iustice whereby all our ordinary Courts of Iustice are wisely bound by our Ancestors to proceed in the Trial of Criminals but by those Fundamental Rules and Maxims of our English Government which that Parliament asserted to be the safeguard both of the King and People and to be so reserved in the custody of the Supream Legislative Power that no Criminals by the violation of those First Principles which they said gave the Being to our Government can be judged otherwise than in Parliament the ordinary Iudges being obliged by that famous Statute of the 25th of Edw. 3. concerning Treasons to Respit Iudgment in all such Cases until the matter be declared in Parliament and Iudgment there given whether the offence whereof any shall be accused be Treason or other Felony This Tryal being upon an Impeachment for Treasons not specially named and declared in the Statute of the 25th Edw. 3. occasioned more industrious and exquisite searches to be made into the most antient Records of the Kingdom than had been for some hundreds of years and also caused the most Learned of the Long Robe to tumble over their Law-Books and to apply their minds to look into the bowels of our antient Laws and the reason of them from whence they had their Being and doubtless the Counsel on either side brought out of their most secret Treasuries the quintescence of all their Learning and Studies besides the weight of the Cause every mans Reputation pushed him to shew his utmost skill before so great and so grave an Assembly of such Critical and excellent Iudges and Auditors The Reader may find in these Papers all the sweetness of Learning Wisdom and Policy which was the issue of the long Labours and Travels of many industrious Bees in the whole spring of their youth and vigor The long continuance of this Trial is another Evidence of its greatness it begun the 22 of March 1640. and continued with the interposition of divers Intervals for deliberation and providing Evidence until the 12th of April 1641. And an ACT for Iudgment in a Bill of Attainder passed against the Earl in the House of Commons the 21 of the same month and in the House of Peers on the 10th of May following I ought not to anticipate the Reader with any thing that happened during this solemn Tryal nor to point at matter of Law or Fact every Reader ought to suppose himself present at the Tryal and to make his own Comments upon the Law and Fact as it appeared every Professor or Student of the Law may transcribe into his Common place Book what he shall judge of most use and every States-man may do the like in his Studies and every Man great and small may if he please make excellent Moral Reflections upon the Rise Greatness and fall of this seeming Fortunate and yet at last Unfortunate Gentleman This Great Mans principal Crime objected against him by the Parliament was his attempts to subvert that excellent Law called The Petition of Right which he himself especially in a Speech made by him in Parliament on the 22 of March in the year 162â— had promoted and pressed with the most ardent Zeal as the best Inheritance he could leave his Posterity and all the Laws confirmed and renewed in that Petition of Right were said to be the most invenomed Arrows that gave him his mortal wound but how justly these were urged against him is not my part to determine I wish my Labours in Collecting truly the Matter of Fact may be an occasion to many to make True and Righteous Iudgment in this particular Case so much Controverted and that from these Matters of Law and Fact such right measure may be taken that all our future Ministers of State may escape the conjoyned Complaints of the Three Kingdoms against them and that the Government may be so Administred as shall best conduce to the happiness of the King and Kingdom ADVERTISEMENT THere is lately published Historical Collections The Second Part. Containing the principal Matters which happened from the Dissolution of the Parliament on the 10th of March 4 Car. I. 162â— until the summoning of another Parliament which met at Westminster April 13. 1640. With an Account of the Proceedings of that Parliamet and the Transactions and Affairs from that time until the meeting of another Parliament Nov. 3 following with some remarkable passages therein during the Firstsix months Impartially related and disposed in Annals Setting forth only Matter of Fact in order of Time without Observation or Reflection By Iohn Rushworth of Lincolns-Inn Esq An Introductive Account of several Passages previous to the GRAND TRYAL of Thomas Earl of Strafford who was Impeached by the House of Commons on the 11th of November 1640. As also of Passages and Proceedings in Parliament from that time unto the 22. of March the same Year when his Trial first began in Westminster-Hall Likewise an Account of Proceedings and remarkable Passages in both Houses of Parliament and some material Matters elsewhere Concomitant to the said Trial during the time it lasted which was until the 30th of April 1641. Friday
to this High Court and to testifie in a Case of the highest Nature in case of Treason informed of against Sir George Ratcliff We did conceive it to be no breach of Priviledge of Parliament that he should be sent for and if the House require of us our Opinions concerning the manner of sending for him we shall tell you what we conceive of it Which Report being made It was Resolved upon the Question That Sir George Ratcliff shall be forthwith sent for to answer the Information that is Charged against him here of High Treason Resolved upon the Question That Sir Robert King shall forthwith be sent for hither as a Witness to testifie in case of High Treason Mr. Solicitor likewise offered from the Committee to the Consideration of the House two Orders which were read in haec verba and by Vote Ordered accordingly viz. It is Ordered by this House upon the Question That Sir George Ratcliff being as is informed a Member of the Parliament in Ireland because there is an Information in this House of High Treason against him shall be forthwith sent for and brought hither in safe Custody no Priviledge of Parliament extending to this Case Ordered two Messengers to be sent with these Orders and each Messenger to have Copies of both the Orders It was likewise Offered from the Committee That the Honourable Persons near the Chair would beseech His Majesty that He would be pleased to give such Directions as in His Wisdom He shall think fit for the more Expeditious sending for these Parties Mr. Treasurer delivered this Message to His Majesty Saturday November 14th 1640. Mr. Treasurer after he had read out of a Paper the Message which Yesterday the House desired him to deliver to His Majesty Declared that he had acquainted the King therewith who this morning hath given Order to Mr. Secretary Windebank who deals for the Affairs into Ireland to make instant Dispatch to the Deputy there that all Expedition be done according to the Message Secondly Concerning the three Letters desired by my Lord Mountnorris they were procured by Mr. Secretary Cook who was imployed about the Affairs for Ireland at that time that he is now in the Country in Darbyshire His Majesty will take some time to be informed in this and no time shall be lost and there shall be an Account given Wednesday November 18th 1640. Ordered that no Member of this House shall visit the Earl of Strafford during the time of his Restraint without Licence first obtained from the House Ordered a Message be sent to the Lords to desire them that they would please to appoint a Committee of a very few that in the presence of some of this House might take such Depositions and examine such Witnesses as they should name upon Interrogatories and Questions as shall be presented to them by Order of this House concerning the Earl of Strafford and the Interrogatories Testimonies and Witnesses to be kept private until the Charge be made full and perfect Ordered that Mr. Pym go up with this Message accompanied with so many as shall be pleased to go Then the House fell into Debate concerning those Lords who petitioned the King for a Parliament to be called Whereupon it was Resolved upon the Question That those Lords which were Petitioners to His Majesty at York in their Petition a Copy whereof was here now read have done nothing but what was Legal Just and Expedient for the good of the King and Kingdom and is now approved by the whole body of the Commons Resolved upon the Question That the Copy of the Petition now read and formerly preferred by the Lords to His Majesty at York shall be here Entred Thursday November 19th 1640. It is Ordered That if occasion shall be for the examination of any Members of this House in the business concerning the Earl of Strafford they shall be ready upon Notice to be examined upon Oath It is likewise Ordered That upon the Message to be sent from this House the Lords be desired to make the like Order for the Members and Assistants of their House and to desire their Lordships that if occasion be that any Privy-Counsellors be produced as Witnesses they will take such course as in their Judgments they shall think fit that they may be examined This Message to be sent to morrow morning by the Messengers formerly sent Mr. St. Iohns Mr. Palmer Mr. Glimer Mr. Selden Mr. Grimstone Mr. Maynard Sir Simond D'ewes Mr. Whstiler Mr. Thomas Widerington Mr. Sollicitor This Select Committee or any two of them are appointed to search the Record of Attainder in the Kings Bench in such manner and at such time as they shall think fit for the furtherance of the Charge in hand against the Earl of Strafford Friday November 20th 1640. Mr. Whistler Reported from the Committee for Irish Affairs That he is required by the Committee to Report to the House the Affairs of that Kingdom as they were set forth in a Remonstrance made by the House of Commons in this present Parliament in Ireland wherein it appeared that Trading was destroyed Industry disheartned new and unlawful Impositions were Imposed the Arbitrary Determinations of all Causes for Goods Land and Possessions by Petitions and Act at Council-Table where no Writ of Error can lie and the King loseth a Fine upon the Original Writ thereby That His Majesties Gracious Inclination for the good of that Kingdom is kept from them That there is a Monopoly of the sole Trade of Tobacco of more gain to the Parties interessed therein than the King 's whole Revenue in Ireland The destroying of the Plantation of London-Derry The Exorbitant Power of the High Commission which cryeth loud in all the three Kingdoms The Proclamation forbidding any to depart thence for England without Licence and pay dear for it The many Subsidies given and Monies raised for the King and still he is in Debt and therefore demands an account of His Treasure and desires present Redress or Access to His Majesty A Copy of the Remonstrance was delivered in under the Hand of the Clerk of the Parliament there and was read and shall be entred if so Ordered That the Secretaries there Mr. Slingsby and Mr. Little be required to send hither the Book of Entries of the several Petitions presented to the late Lord Deputy now Lord Lieutenant of Ireland and the several Orders and Proceedings thereupon made That Mr. Little the younger and Mr. Carpenter who have the Monopoly for Tobacco be required to send hither those Warrants by which they demand and have laid those Taxes upon Tobacco That the several Affairs of the Custom-House and Ports viz. Dublin Kingsale Yowhall Waterford Corke Galloway Carrick-Fergus and Bangor be required to send hither their Books of Entries whereby the Impositions laid upon several Commodities may appear there were several Warrants issued forth according to this Order and
every man that hears me That I should have time to clear a Truth no man can deny it And therefore I humbly pray I may not be suddenly taken protesting seriously I have said nothing but what I knew or verily believed to be true We pray Your Lordships Resolution in this point before we proceed any further Their Lordships thereupon Adjourned to the Upper-House and about half an hour after returned I am commanded to impart their Lordships Resolution That since the Commons do not press these things as matters of Crime but rather upon the matter of Truth they conceive my Lord of Strafford need not further time for these particulars And that if his Lordship will make any Answer to these particulars he is to do it now I shall never do other than readily obey whatsoever Your Lordships should please to command me my heart paying you Obedience and so in truth shall every thing that proceeds from me The question I observe is matter of Truth or not Truth in the Preamble as they call it of this my Answer and to that with all the Humility and Modesty in the World I will apply my self as not conceiving it any way becoming me to speak any thing of Sharpness in any kind but with all Humility and Reverence to bear all these Afflictions with acknowledgment unto Almighty God and to lay them so to my heart that they may provide for me in another World where we are to expect the Consummation of all Blessedness and Happiness And therefore to lay aside all these Aggravations by words wherewith I have been set forth to Your Lordships only with this that I trust I shall make my self appear a person otherwise in my Dispositions and Actions than I have been rendred and shortly and briefly I shall fall upon the very points as near as I can that were mentioned by that Noble Gentleman and if I should forget any I desire to be remembred of them that I may give the best Answer I can on a suddain with this Protestation That if I had had time I should have given a far clearer Answer than on the sudden I shall be able to do I will take them as they lye in Order And the first thing in this Answer is That in Ireland by my means many good Laws were made for increase of the Kings Revenue and for good of the Church and Common-wealth and this I humbly conceive was not denied directly only it was inferr'd That Laws were of no use where Will was put above Law That these Laws were made the Acts of Parliament that are extant and visible things do make appear For though I might express it darkly by reason I understood not matters of Law the truth of it is before such time as I came there the Statutes of Wills and Uses and Fraudulent Conveyances were not of force in Ireland by which there was a very great mischief that fell many ways both on the King and specially on the English Planters For by want of these Statutes no man knew when he had a good title and old Entayles would be set on foot and by that means the later Purchaser avoided by which means there was a great loss and prejudice to the King in his Wards which by these Laws are setled and the Laws of Ireland brought much nearer the Laws of England than before And in this point I conceive I am not absolutely gainsayed but only conditionally that is that notwithstanding this I have set up another Government Arbitrary and Tyrannical To which I shall not now trouble Your Lordships with an Answer that being in the particulars of my Charge And thus I think the first to be fairly and clearly Answered Then that there were more Parliaments in the time of my Government than in 50 years before There were two in my time and if I might call Witnesses it would appear that there were not so many within that time before but being not material to my Defence or Condemnation I will not trouble Your Lordships with proof unless you will require it I having them here that I think can make it good And whereas in my Answer I deny that I ever had hand in any Project or Monopoly and that I did prevent divers that otherwise would have passed I said that under favour with all duty and confidence I must still affirm it That I never had hand or share in any manner of Monopoly or Project whatsoever unless the Tobacco-business were a Monopoly which under favour I shall clear not to be but that being part of my Charge I think it impertinent now to give Answer unto it but will satisfie Your Lordships in that behalf in proper time and place But more than that of Tobacco I say absolutely and directly I never had my hand or share in any Monopoly or Project nay I did as murh as I could Oppose all of them particularly the Monopoly of Iron-Pots for which I reserve my self to Answer as part of my Charge And a new Book of Rates whereby it was proposed That the Rates of the Kings Customs might be increased And this I did Oppose and Disavow albeit I was a sharer in the Farm and consequently should have had the Benefit and Advantage of it for my proportion and by the Kings gracious Goodness when His Majesty came to be more fully and clearly informed of it it was stopped and never went on And this I will make appear in that point of the Articles that concern the Customs The Fourth is That I have not had any greater Power or larger Commission than my Predecessors in that Government have had which I conceive under favour is not controverted but granted and therefore stands good to me or if it were controverted I am able to make it appear that I have brought in nothing more than was formerly accustomed in the point of the Deputies-Commission The next thing in my Answer is That the Revenue of Ireland was never able to Support it self before my coming thither and that I say still with all Humility and Duty is most true And I trust to make it apparently true presently if Your Lordships will give me leave to call for and examine my Witnesses It being the Proofs Your Lordships will look to and not to what was only alledged by that Worthy Gentleman And further than Your Lordships shall find proved I desire not to be believed The proof offered against me is by Sir Edward Warder and Sir Robert Pye who testified That from the year 1621. nothing went out of the Kings Exchequer to supply the Irish Affairs saving only for the Maritime occasions And this I believe to be true for they be Gentlemen of Credit that speak it and I will believe them on their Words much more on their Oathes But under favour there was for eight years together before my coming a Contribution of 20000 l. a year paid by the Country which was no part of the Kings
have opened That Law might no where stand against his Will and to settle it that he might continue so My Lord hath declared this in incroaching Jurisdiction where it was not in exercising an Arbitrary Power under that Jurisdiction In taking on him a Power to make Laws In Domineering and Tyrannizing over the Lives the Liberties the Goods the Estates and whatsoever is the Subjects And My Lords this hath he done not only on those of the meaner sort that could not resist him but on the Peers on the greatest and most ancient Nobility of Ireland And what might Your Lordships expect but the same measure at his hands had his Will had its passage here which it had in Ireland I shall now come to the particular Articles 1. And first Whereas it pleased His Majesty to place him with Power and Honour in his hand in the North as President he had not been long there but that Commission which bounded and pleased his Predecessors he must needs surmount and overgo There was a Commission in 16 Iac. which the then Lord Deputy had in which was that Legal phrase Secundum antiquum cursum his own Commission 4 Car. pursued that without any alteration but being in but four years this would not please his boundless Ambition he must needs have the Power that the Lords in the Star-Chamber have put in in express terms a Power to proceed according to the course of the Chancery that his Conscience might limit other mens Estatâ— That his Injunctions might stay other Proceedings at Law And which is highest of all if any thing be done in that Court within these Instructions than no Prohibition should be Awarded He would make himself safe from any supervising of other Courts If he Committed any man to Prison though a Habeas Corpus were granted then which the Subject hath no other remedy to vindicate his Liberty the Officer for the encouragement of those which be under his Power must not obey it And if any Fine be put upon the Officer then comes a command in this Commission That the Fine shall be discharged so he not only takes a Power to himself but also takes the Scepter of Justice out of the Kings Hands for by this means there is an impossibility the Subject should have the Justice that my Lord knows is due to him and he knows it right well for when he was a Member of the House of Parliament it was his own motion who now stands at the Barr That all the Officers and Ministers of State should serve the King according to that Law and he is the first Officer and Minister of State that breaks it and in the most transcendent degree that ever it was broken My Lords He doth in this as much as in him lies say to the Laws Do your worst You can but Fine and that you can do shall come to nothing The Fine shall not be paid The Officer shall not obey you If this had been a single Act we should never have accused him of this Treason though it comes very High and very Transcendent But the Oppressions and Injustice the Councels and Speeches that we present to Your Lordships we present them not singly but as together designing and noting what a Treasonable purpose and disposition is in him 2. My Lords The next thing he doth when he is in the North among the Justices of the Peace and the People attending for Justice you shall see what Encouragement he gives them to look for it and how foul a thing he dares to fling on the Sacred Majesty that did advance him He tells the Justices that were to do Justice and the People that were to receive Justice That some of the Justices were all for Law but they should find The Kings little Finger is heavier than the Loyns of the Law Your Lordships may consider what a transcendent Speech this was out of whose Mouth it came what sad Accidents happened upon it nothing could move this Lord to utter it but his Will and his Violence must out though he burst a Kingdom in pieces for it 3. The next thing is this When he goes into Ireland you will find his Temper and Spirit not a whit Allayed but now being further from His Majesties Person he is higher in his Power and in his Will It is true that Kingdom was annexed to this many years ago but they that now possess the greatest part of it are Subjects of this Kingdom descended from them that went from hence thither Yet he tells them in a solemn Speech not suddenly but solemnly That Ireland is a Conquered Nation and the King might do with them what he would and that their Charters were nothing worth and bind the King no longer than he pleases Surely My Lords We might see what he would do if he had Power But God be blessed we find not that disposition any where resented by His Majesty and we hope that such Councels shall never have Access to so good and gracious an Ear. 4. The next thing he stays not in words but will be as good as his word if he can and he begins high For that we present next is a Peer of the Kingdom thrust out of his Possession by my Lord of Straffords Order and when he Sues at Law for recovery of his Right my Lord Threatens him Truly Threatnings are not good in such a case where a man Sues for Justice And from him that ought to Administer Justice and further him in it yet he Threatens him Imprisonment to which Peers are not ordinarily liable First my Lord tells him He will not have Law nor Lawyers question his Orders he might debar the Lawyers in some Cases but why a man should have a Spleen at the Law that his Orders should not be examined by that I know not And he goes higher for when there was an occasion to speak of an Act of State he tells him That he will make him and all Ireland know that as long as he had the Government there any Act of State made or to be made should be as binding as an Act of Parliament My Lords He cannot go higher in Speeches than this That an Act of State of his own making and his own Power should be as binding as an Act of Parliament Nay he tells them in Parliament That they were a Conquered Nation and must expect Laws as from a Conquerour 5. Next we shall shew divers Instances wherein he exercises Power over the Lives Lands and all that is the Subjects deduced into several Articles viz. the 5th the 6th the 7th and the 8th In particular one I shall be bold to open That is the Case of my Lord Mountnorris another Peer of that Kingdom and a great Officer there Some words fell from that Lord speaking of one that had trodden on my Lord of Straffords Toe That he hoped the Party did it not in Revenge for he had a Brother that would not have sought such a Revenge For these
the Nation of them not this or that man are Rebels and Traytors And if it please the King to bring him back to the Sword indeed he is fit for that it is a violent weapon he will root out the Scottish Nation Branch and Root some few excepted of those that had taken the Oath When he comes into England he find that His Majesty with great Wisdom had pacified those Storms and Troubles that threatned us there Yet he doth incense the King still to follow this to an Offensive War and prevails He plots to call a Parliament but with an intention if it furnished not his design it should be broken and he would set up other ways of force to raise Moneys of the Kingdom and this fell out unhappily For thus far his project took the Parliament was broken and broken at the very time when the subject was in debate and consideration how to have yielded Supply to His Majesty But that he might break it he falsly informs the King That the Parliament had denied to Supply him there is his Counsel that the Parliament had forsaken the King and now the King having tryed his People might use all other ways for the procuring and raising of moneys and the same day wherein that Parliament was unhappily Dissolved he gives his further Counsel to His Majesty which because no man can put such a Spirit of Malice into the words besides himself I shall take the boldness to read That having tryed the Affections of his People he was loose and absolved from all Rules of Government and he was to do every thing that Power would admit And that His Majesty had tryed all ways and was refused and should be acquitted both of God and man And that His Majesty had an Army in Ireland which he might employ to reduce this Kingdom It is added in the printed Book to reduce them to Obedience I know not who Printed it but the Charge is only to reduce this Kingdom And My Lords you may please to consider what a sad time this man took to reflect upon these bad Councels when our Hearts were swoln with Sorrow for that unhappy breach of the last Parliament And what doth he advise the King what positions offers he That he was absolved from all Rules of Government If there be no Rule of Government My Lords where is the Rule of Obedience for how shall the People know to obey when there is no Rule to direct them what to obey He tells the King he was refused which was untrue for he was not refused to the last breath we had in Parliament but we spake in that point how to supply the King and to prefer it at that time before the Complaints of our just Grievances But what doth he fall into that which in another Article we charge him with a Plot and Conspiracy betwixt him and Sir George Ratcliffe to bring in the Irish Army for our Confusion to root out our Laws and Government a pernicious Counsel He says not you shall do it but he that perswades it doth as much as if in express terms he had councelled the acting of it Doth he mean that we should be to his Irish Pattern for speaking of the Irish Army consisting of Papists and his Adherents he said that he would make it a Pattern for all the Kingdoms did he mean to reduce us to the Pattern that he had placed in Ireland Surely he meant to reduce us to a Chaos and Confusion He would have us without all Rules of Government and these be the means wicked and cruel Councels and the Cruelty of an Army inspired with his Spirit and consisting of Papists Enemies of our Religion And what Mercy could we of this Religion expect from Popish Enemies with Swords in their hands That cannot but strike all English Hearts with Horrour and Dread that an Irish Army should be brought into England to reduce the Subjects of England I hope we never were so far gone in any thing as that we should need an Army to reduce us I cannot but say here is the Counsel of Haman when he would in one day cut off all the Iewish Nation and have the King intend a Favour to him The King propounds a question What shall be done to the man whom the King will Honour Haman thought in his heart Whom will the King Honour but my self And so my Lord of Strafford having raised this Army it was set up by him and if such a Counsel as this was entertained into whose hands should it be put here were Hamans thoughts who should have the Power of it but he that hath inspired it and since maintained it Truly My Lords it was a desperate Counsel and methinks the Counsel of Achitophel might have been compared to it for when he had stirred up the Rebellion of Absalom against his Father he perswades Absalom to that which might breed an irreconcilable hatred between them Yet a Father and a Son might be reconciled But he that adheres to the Son in this case might not so easily forgive Therefore this Lord falls upon a Counsel which he thought would never be forgiven A Counsel of irreconcilable difference to subdue us by Force and Power and takes away all possibility of Addressing our Complaints to the King as he had done from those of Ireland when he not only forestalls their Complaints but by a Proclamation takes order that none should come over too without his Licence which was in effect that none should complain of his Oppression without his good liking Some violent Speeches he uses suitable to these Counsels That no good would be done upon the Aldermen till they were hanged That the French King employed Commissaries to look into mens Estates which will be insisted upon in their proper place Next he levied eight pence a day for maintenance of the Trained Soldiers against the Will of the Country which he said was done by the consent of the Lords of the great Councel which we know is untrue And we shall prove it untrue in the other part where he says it was done freely by consent of the Gentlemen of the Country Most of them that did consent were his own Friends and Papists But the Petition of the Country as to that part of it that concerns a Parliament he rejected because he would have no Parliament And he prefers another in the name of the Country and that he calls The Petition of the Country And now I shall apply my self to the proofs and shall take care to offer nothing but what will fall out to be proved And shall first apply my self to the first Article concerning the Commission for the North parts where an Arbitrary Power was thereby granted as is used in the Star-Chamber and Chancery In the opening of it first we shall produce the Commission of 8 Car. and that of 13 differs but little from it We shall shew that these Clauses were procured by him to be inserted upon occasion
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
according to the Power of former Deputies yet not to meddle with Titles of Free-hold except in Cases of Equity but to refer Title of Free-hold to its proper Judicature and not to hear Causes where there is Priority in other Courts unless in case of Appeal for lack of Justice after due Obedience Power likewise the said Rules observed to call before him any person complained of and therein to make such Order and Decree as shall stand with Justice and to cause the same to be put in Execution Dated October 5. 9 Car. He then offered the first Decree in the Cause to be read that had formerly been read having relation to this bearing date May 23. 1636. And the same was read being Signed Wentworth Gerard Lowther c. Whence his Lordship observed That the Order was made for Relief of a poor man where my Lord of Mountnorris had by Violence and extream hard pressure possest himself of Lands worth 200 l. a year never paying out of his Purse above 30 l. the rest arising on a Letter procured for Sawing Mills and by interest at above 20 in the hundred wherein his Lordship had the Assistance of two Reverend and Learned Judges the Chancellor that now is and Sir Gerard Lowther That the Decree is in every part just and equitable and if he had not given relief he had been justly censured That the party is now in Town and means to complain and Sue for 600 l. more than he is yet allowed The Committee declared they insist not on the merit of the Cause as not being material And so my Lord of Strafford observed That he stands justified by the Kings Letter which makes things differ from what they did formerly and shew that the Power was there before and is now restored His Lordship further added that his Practice in exercising Jurisdiction was conformable to that Letter viz. That he medled not with Title of Land triable at Law nor with Causes which had priority of Suit in other Courts That he referred the business of the Provincial Courts to these Courts and many businesses to the Judges of Assize and none determined by him but upon full Hearing and Assistance of the Judges And whereas it is said my Lord Mountnorris was kept in Prison by reason of not Suing out the Pardon on his Sentence pronounced by the Council of War I will make it appear it was for Contempts in refusing to answer a Bill Exhibited against him on the Kings behalf in the Castle-Chamber Mr. Slingsby being asked touching that point Answered That he did constantly wait on my Lord to the Castle-Chamber and there heard the Information of the Kings Attorney against my Lord Mountnorris read and my Lord Mountnorris was called to Answer it several times and was committed to Prison for not Answering it but he cannot precisely speak to the time but he thinks he was left in Prison upon that till my Lords going into England Sir Adam Loftus asked touching the same point did first make his humble Suit that he might not be Examined in any Cause concerning my Lord Mountnorris for some reasons inducing him thereunto Which my Lord of Strafford said was because Sir Adam succeeded my Lord Mountnorris in the place of Vice-Treasurer and being required if that were all to speak notwithstanding He Answered That he conceives he was Committed for not answering the Information but the precise day of his Commitment and the time how long he cannot well remember Being asked whether he was not brought before the Deputy a day or two before he came away and refused to Answer and was thereupon Committed He Answered That it was true Being asked on the Managers motion whether he was not Committed on the old Sentence and remained in Prison on that He Answered That he doth not know If I had time to produce the Orders of the Castle-Chamber I could make it appear when my Lord Mountnorris was Committed and how long he continued so but he was Committed for that Contempt and remained Committed six Months I think before he would Answer which I would not speak if it were not true The Lord Dillon called and asked to the same purpose He Answered That the Judges of the Castle-Chamber are by Commission and that he is not of that Commission That the Deputy or Chief Governour calls by way of Assistance such as he pleases That he heard at Council-Board my Lord Mountnorris was Committed for a Contempt in not answering in the Star-Chamber but when it began or how long he knows not In Execution of this Jurisdiction I had no private advantage to my self nothing but trouble was gained by it no new thing was done but such as was formerly by all the Chief Governours there and such as I had special Warrant for from His Majesty I have observed the Rules that guide others in Chancery and other Courts of Equity and the Judges in their Circuits Therefore it can be no Subversion of the Laws for the same thing done by others hath been Legally done it differs only in respect of place being before my self and so cannot be Treason And though it might be Illegal here yet it is according to the Laws and Customs of Ireland by which I am to be judged for all things there done And the same is done by the Presidents of the North and of Wales who did familiarly receive Petitions from Poor people that cannot seek remedy by a Legal course and yet it is not Treason in England And it cannot sink into my understanding how the enlargement of a Jurisdiction should be strained to High Treason specially being warranted by ancient Practice and modern Authority being only according to the nature of a Court of Requests and not entrenching on the Jurisdiction of Law Courts And so I hope this will never rise up in Judgment against me as Treason either in it self or by way of Application The Manager began his Reply in substance as followeth Whereas my Lord of Strafford says This is not Treason this is the burden of his Song But this is one of the particulars that prove his design to subvert the fundamental Laws of both Kingdoms He will not acknowledge a cumulative Treason he must have a Treason over Shooes and Boots yet if he will look on it all together he shall see the horridness of it and it will prove as great a Treason as ever was presented to a House of Parliament The Manager opened the Article and said they dispute not whether if it had been done in Chancery or other Courts it had been well done but it is done by him without Rule of Law and hereupon he hath drawn to himself an Arbitrary Power Whereas my Lord of Strafford to take from himself the Act of Parliament 28 H. 6. enjoyning That Causes should be referred to the proper Courts urged the last words Saving the Kings Prerogative We do observe That when he is Charged with an Exorbitant proceeding
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
my Lord Deputies own Guard which could not be but originally from him Mr. Robert Little my Lord of Straffords Secretary being sworn was interrogated several questions viz. Whether he had made out any Warrant by the Lord of Strafford's Direction and under his Hand and Seal to Pigott or any else for raising Soldiers after this manner He Answered That he doth not know that Pigott hath any such Warrant nor doth he remember any such Warrant passed the Office if it did it was by Precedents of former times but in good faith he doth not remember it Whether he made any such Warrant to Pigott to his knowledge Answered That he never made any or heard of any nor knew of any Was one made to Savill Answer He never made that to Savill and he cannot tell whether there was one to Savill or not Was there an Entrie of any Warrant in his Book to that purpose Answer That he did not enter them at any time nor did he ever see any such Entrie or Warrant Mr. Palmer inferred from hence That he said the same for Savill that he said for Pigott and yet how publique a thing this of Savill's was their Lordships have heard and it could not but come to his knowledge at least his ear And Mr. Maynard observed he swears that he never made any such Warrant but if any were made it was according to former Precedents But my Lord of Strafford Answered That if any says he cannot tell 't is as much as he can say for another mans act Lord Ranalaugh being Interrogated what he knew of this Warrant of laying of Soldiers upon whom and how long His Lordship Answered That he had heard something of it heretofore but more particularly in November last when being at the Council-Board a Petition was preferred to the then Lord Deputy and Council by one Davis who dwelt in the County of Clare and by his Petition he set forth That notwithstanding on a Reference from my Lord Deputy to the Judges of Assizes he had obtained a Report from him yet by combination betwixt his Adversary and the Sergeant he had Soldiers laid on him which made him leave his Dwelling That he the said Lord Ranalaugh asked the party how the Sergeants came to lay Soldiers Yes saith he My Lord Deputy Wansford hath made a Warrant dormant and taken a course for it from my Lord Lieutenant and from himself as he the Lord Ranalaugh takes it tho positively he could say that the Warrant Dormant was the general Cause Being asked whether it had been used before or if it be an Innovation He Answered That he knew a custome hath been in Ireland for laying Soldiers on the relievers of Rebels and for laying of Contribution-money in case of Delinquency or not payment Or where a return was made by the Sheriff that the Kings Rents did not come in these Rents being applyed to the payment of the Army The course before my Lord of Strafford's coming was That Soldiers were laid to constrain such but in a civil cause between party and party he never heard of it before in his life Being asked on my Lord of Strafford's motion whether he the Lord Ranalaugh was not a Captain of the Army before the Lord of Strafford came and whether he had not Commission by Soldiers to levy part of the money due to him from the Deputy and Vice-Treasurer He Answered That before my Lord-Deputy came into Ireland the course was as he formerly touched that where there was arrear of Rents to the King and these Rents did not come in to the Exchequer then was assigned for the payment of the King's Soldiers and the Acquittances delivered to the Captains on part of their entertainment and this Acquittance out of the Exchequer was given by a special Warrant from the Deputy and according to that course his the Deputies method was with other Captains and thus he levied the Rent by his own Soldiers by virtue of that Warrant Being asked when the Money was Assessed thus on Countreys was it not by consent of the Countrey He Answered That if he hath not forgotten when the Gentlemen of Ireland were here 1628. they were suitors to the King for several Graces and they obtained several of them from His Majesty among the rest if he hath not forgotten that in case of non-payment of Rents or Contribution Soldiers might go and lye upon the Defaulters Mr. Palmer observed that when he speaks of Contribution or Rent he speaks not of this course to compell to obedience on Paper-Petitions And so he said they would conclude with their Witnesses reciting that their Lordships have heard the course taken to secure that Power my Lord of Strafford assumed to himself in hearing of Causes That this Usurpation on ordinary Courts of Justice to whom it belongs could not be secured without Arms in a Warlike manner to compel obedience Their Lordships have heard how it was executed that if the proceeding had been legal the proofs of Law had been according to the calme and quiet Rules of Justice but being an incroached Power it must be executed by force and Arms and War indeed for so it is in substance on the Subjects of Ireland That this was in time of Peace the troubles of Ireland being long since appeased and the People reduced to the condition of Subjects governed by ordinary Laws and Magistrates and now to put an extraordinary Power in execution to compell the Subjects by Act of Hostility they conceive is within the Statute of 25 Ed. 3. A levying of War against our Sovereign Lord the King within His Realm which is nominally Treason in that Statute and shortly for this reason The King being invested with His Sovereign Power whereby they are protected but this Power being instead of Protection used by his Ministers to the subversion and destruction of His Subjects doth on the matter make an Invocation on the King himself this being a bereaving the subjects of the Law by which they should live dispossessing them by force of Arms in warlike manner must be a war against himself That Law is of force in Ireland by 10 H. 7. whereby all the Laws made before that time were made of force there And by a particular Statute made the 18. H. 6. this very offence of Sessing Soldiers by Lords or any others or any the Kings people without their consent is adjudged Treason and the Offender is to be judged a Traitor The Statute was read Statutes and Ordinances made in a Parliament holden at Dublin 18 H. 6. ch 3. AN Act that no Lord or others shall charge the Kings Subjects with Horse Horsemen or Footmen without their good Will and by so doing the Offender is a Traitor IT is agreed and established that no Lord or any other of what condition soever he be shall bring or lead from henceforth Hoblers Kern or Hooded men neither English Rebels nor Irish Enemies nor any other people
nor Horse to lye on Horseback or Foot to lye on the Kings people but on their own cost without consent And if any so do he shall be adjudged as a Traitor Mr. Palmer concluded that this hath been done and how their Lordships have heard that this hath been done by Soldiers that profess hostility brought from Garrisons the places of War in great numbers and indeed the number left indefinitely to the discretion of the Sergeant at Arms in Warlike furniture which is literally true in the case And so he concluded the Article expecting my Lord of Strafford's Defence My Lord of Strafford desired their Lordships would be pleased to give him liberty to look over his Notes and he doubted not but to give their Lordships a very clear satisfaction by the help of Almighty God After a little respite his Lordship began his Defence in substance as followeth And First He desired their Lordships would please to remember that if he proved not all things so clearly and fully the reason was obvious and plain the shortness of his time the Witnesses being to be fetched out of Ireland and he having none but such as come accidentally That the other day he read to their Lordships out of Sir Edward Cook 's Book that the Customs of Ireland are in many things different from the Customs of England That for the things done in Ireland he conceived he was to be judged by the Laws and Customs of Ireland and not by the Laws and Customs of this Kingdom and that his Commission was to execue the place of Deputy according to the Laws and Customs of that Kingdom That what hath been opened to their Lordships to be so extraordinary he must justifie as very ordinary frequent and usually exercised by the Customs of that Kingdom That in all times the Army of Ireland and the Officers and Soldiers of it have been the chief hands in executing all the Justice of the Kingdom and of bringing that due obedience to the Kings authority that 's necessary and fit and due That if they had not been so used he thinks those who know the State of Ireland will acknowledge the King's Writs had never run in Ireland they being all executed by their Power and Assistance First his Lordship undertook to make it appear that in case of bringing in Rebels and Offendors of that nature and forcing them to come in it had been the ordinary practice of the Deputy and Council before his time to Assess Soldiers not only on the party but the kindred of the partys till the party be brought in and yet it is no levying of War for all that And because his Lordship heard much speaking of Rebels and Traitors he desired to represent to their Lordships what they be viz. a company of petit loose fellows that would be here apprehended by a Constable Lord Robert Dillon was called for and my Lord of Strafford desired he might be asked whether it had not been the practice of the Deputy and Council to Assess Soldiers not only on the persons but the Septs and whole kindred of Rebels Here Mr. Palmer interposed that for saving of time if my Lord makes this the Case that Soldiers have been laid upon the Septs of Traitors or Rebels that lye out in Woods and esloigne themselves from the Kings protection whom they call Kernes Outlaws and Rebels they the Committee will admit the usage though it will not justifie the Case being expresly against Law for by a Stat. 22 Eliz. If any lye out as Traitors or Rebels five of the Sept that bears the Surname shall be Fined at the Council-Chamber but not have Soldiers laid on them and against a Statute there can be no Usuage To which my Lord of Strafford answered And these are but ordinary fellows And he desired their Lordships would clearly understand what is meant by Rebels for every petty fellow stealing Sheep and the like if the party be out in action they commonly term such Rebels Robert Lord Dillon being asked whether ordinary fellows in Ireland passed not under the name of Rebels His Lordship Answered That touching this point he hath observed that when a party hath committed some Felony or unjustifiable Act and withdraws himself into the Woods a Proclamation is made for his coming in by such a time to render himselfamenable to the Law and if he then comes not in but keeps out in commmon reputation he is accounted a Traitor or Rebel Sir Arthur Tyrringham being asked whether of his knowledge the Deputies and Council have not frequently Sessed Soldiers on Offenders and Rebels when they could not be brought forth to Justice and what is understood by a Rebel in Ireland He Answered That it hath been the ordinary practice ever since he knew that Kingdom since my Lord of Faulklands being Deputy there and hath been ever practised there both by him and the Justices that came after him That ordinary fellows be commonly reputed Rebels with this observation It is true That every man is not a Rebel at his first going out though he be called so but the course is first to proclaim them and if they be not ameneable to Law they be Rebels and so they may be for Felonies of a very small value To prove that most of the Kings Rents as well Exchequer Rents as Composition Rents have been levied by Soldiers in all the times of my Lord of Cork My Lord of Strafford desired Iohn Conley might be called for who being examined how long since he hath been in Ireland and whether in his time the Rents were not col lected by the Soldiers and Officers of the Army He Answered to the First 15 years To the Second That he remembers it very well that in my Lord Faulklands time it was an ordinary course where the Kings Rents were due to send some Horse and Horsemen and takeup these Rents and lye on them till they were collected and taken up So in my Lord Grandisons time and in all Chichesters time and this is all he cansay Henry Dillon was called And First my Lord of Strafford desired liberty to defend the credit of his Witness as to some exceptions taken to him the other day and offered the occasion of the Order of Council-Board made against him to be only this That he said he heard some such thing said and thereupon was commanded to make an acknowledgement and to this he was invited and perswaded by my Lord Dillon for quietness sake rather than he should be troubled about so small a matter and that being granted he supposed the Gentleman stood upright and was a competent Witness in this or any other cause To which some of the Committee for the Commons answered That they except not against the hearing of him but offer to their Lordships memory his acknowledgement that he spake falsly as a weakening of his memory And then Henry Dillon being asked Whether he knew
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
only excepted as be imployed here c. do hereafter make their personal Residence and not depart for England or other place without privity of Our Deputy any former Letters to the contrary notwithstanding And because We resolve to have this course constantly observed if you shall have notice of any Contemner of this Command Our Will and Pleasure is That you proceed against them in an exemplary way to deterr others And for so doing this shall be your Warrant My Lord of Strafford observed That he might well have hoped that this being required by the Laws of the Land that no man should depart without Licence but it should be penal to him having their own Articles which desire the same thing That by this Proclamation the Power of my Lord of Faulkland was established upon him and the Kings Command for the issuing this Proclamation being justified by the Kings own Letter so that this should not have been laid to him for so great and high a crime as it hath been represented to your Lordships and he trusted that by that time their Lordships thought it not so great a crime as it might at first seem to be That he was not very hasty in issuing the Proclamation he having no interest in it nor nothing to drive him forwards for tho His Majesties Command was bearing date 20 Iune 1634. yet the Proclamation issued not till Sept. 17. 1635. And because all he had said had been turned on him as a crime his Lordship gave this further Answer That there could be no Proclamation made by the Deputy alone he being absolutely restrained by his Commission not to make a Proclamation without the Council therefore he could not be singular in the fault but had the consent of all the Kings Council and for instance in matter of Law the Chief Justices are sitting at the Board to whom all matters of Law are referred and they are answerable for it and are so learned that they could not do things so frequently without good authority and this he offered in excuse of this and all other Proclamations not doubting but it was according to the Laws and Customs of the Land And for further satisfaction that part of his Commission that concerned the Proclamation was read and in this particular he desired leave to offer something more with all Humility that tho none of these were for his justification yet for Reasons of State this Restraint was most necessary for whosoever goes over Deputy while these two great men to term them no worse O Neal and Tir-Connel have Regiments of the most antient Irish Septs serving the King of Spain under their Command it is necessary for him to have an eye upon them for if every one might withdraw himself at pleasure without giving an account it would open all the power and means that possibly can be to distemper that State and certainly if that liberty might be granted he feared it would produce sad events in that Kingdom Moreover if all the Primogeniture and Nobility of that Religion should be suffered to go over to Doway St. Omer and the Jesuites Colledges it was to be feared they should not be so well brought up for the service of the King and Common-wealth as may be desired and therefore it was necessary according to the constitutions of that Kingdom that they shall give an account to the Chief Governor And it was no other than what is practised here in England no man being at liberty to goe hence into France without Licence And certainly said he it is an Account we owe to the King and stands with the Law of nature Pater Familiae may take accompt of his own Houshold and the King being the great Father of the Common-wealth we owe this Accompt to him Therefore he conceived it can be no great offence in him to do this on these grounds and as he recommended the prosperity of that Kingdom and His Majesties affairs there and here to God by his Prayers and good desires so he wishes it might be taken into good consideration that this may be continued as a principal and necessary expedient to give His Majesty that account without which the Governor shall not be able to take just measures of things there His Lordship then observed that something had been observed that was no part of his Charge and therefore presumed their Lordships would not expect an answer to it or conclude him any way in their Judgement guilty of it since the means of giving that satisfaction which otherwise he should have done are now taken away But when they came to be complained of in their proper place he is ready to give such an account as becomes a Just and Innocent man But that which seems to be the foulest of them was that concerning my Lord of Esmond of which he remembred very little but something darkly and if it appeared not as he should say he was extreamly mistaken for what he did not know or remember he would not speak of it confidently and in short the point is this Two men swear that he the Lord of Strafford denied liberty to my Lord of Esmond to come for England Aug. 1638. and that he was kept in Ireland and could not have Licence to come away till April 1639. His Lordship confessed it to be very true and that he remembred my Lord of Esmond desiring to go over was stopped by him a while he being Sergeant Mayor-General of the Army the Army having occasion of motion and that he was sure it was much about the time if his Memory failed him not extreamly but when it came to this time and he had means to produce witnesses he hoped to make this appear besides he was mistaken if he did not very shortly after give him a Licence and that he found not occasion to make use of it and if that was was so all they said was taken away for he afterwards finding it to draw towards winter laid aside the Licence till the Spring at Spring he asked it and had it but in these things not judicially brought against him and to which he could not make certain Answers he hoped he might stand clear and unprejudiced till he may answer positively for himself and then as their Lordships should find him they might judge of him and he should ever most willingly submit to their Judgements and abide it whatever it was And whereas the Witnesse said my Lord of Esmond was hindred because he had no Commission to examine Witnesses my Lord of Strafford said he was able to prove that a Bond was granted him to examine Witnesses And the Witness being accidentally there his Lordship took notice of Gods providence from that and said God Almighty was willing to help and assist him wonderfully in his Trial and that his Goodness to him in this Cause had been a great deal more than he would trouble their Lordships withal at that time but he said he was confident God had
whether it were or no hath denyed Licence without Fees and that certain Fees were demanded shall be made appear Whereupon Richard Wade being Interrogated whether Fees were not demanded by the Secretaries for Licences of mens passage into England and what Fees He Answered That for Fees for my Lord of Esmond's Licence he was demanded 24 or 25 s. Patrick Gough being asked to that point He Answered That he remembers he hath taken Licences twice or thrice for my Lord Viscount Mountgomery and for every one of them paid 25 s. and for three of his servants 25 s. and that those were demanded for he the Deponent would have given less if they would have taken less and that these were demanded by Secretary Littles Servants Mr. Glyn desired one word more and the rather said he because it seems my Lord of Strafford slights this Article which is the most proved and the least answer'd of any yet heard their Lordships may observe what is laid to his charge the subverting of Laws and the introducing of a Tyrannical Government And before he goes about his work he puts off all means of redress beforehand that if he give any occasion of offence he that is offended shall not possibly have remedy His justification is because of that great danger that may ensue for they may joyn with Rebels but that 's a pretence Indeed he used that Argument when he moved it to His Majesty but it was that they might not come over to make complaints That his Propositions were made and entred at the Council-Table here he aggravates his offence and Mr Glyn did thus illustrate it That if a man come to him and desire leave to lye in his House if he gives the party leave and he by that means takes occasion to betray him or to commit Felony or steal his Goods That leave was well given but it aggravates the others offence when he doth mischief to him that lodged him So my Lord of Strafford's Proposition was fair but if their Lordships observe the subsequence of it that he might exercise his Power and leave the Subject without means of redress but they must come to himself for it Mr Glyn further said he thinks had he suffered under his hands after the example of my Lord Mountnorris he should be loth to say to his face he would complain An Act of Parliament he produces for his Justification which is plainly against him for it shews there were some that held Lands there by tenure and if they were not resident they forfeited Then comes the Act and says That those whom the King commands to be absent they shall not forfeit which shows they had a personal Power without Licence so that the very Law produced is expresly against him and there Lordships may see by his own Proposition the occasion of his introducing this Letter And Mr. Glyn concluded That he supposes that my Lord of Strafford hath made no answer to that And so the 16 th Article was finished and the 17 th and 18 th being for the present set aside the Committee that managed the Evidence proceeded to the 19 th Article THE Nineteenth Article The Charge 19. That the said Earl having Taxed and Levied the said Impositions and raised the said Monopolies and committed the said other Oppressions in His Majesties Name and as by His Majesties Royal Command He the said Earl in May the 15th year of His Majesties Reign did of his own authority contrive and frame a new and unusual Oath by the purport whereof among many other things the party taking the said Oath was to swear that he should not protest against any of His Majesties Royal Commands but submit himself in all Obedience thereunto which Oath he so contriv'd to enforce the same on the Subjects of the Scotish Nation inhabiting in Ireland and out of a hatred to the said Nation and to put them to a discontent with His Majesty and His Government there and compelled divers of His Majesties said Subjects there to take the said Oath a gainst their Wills and of such as refused to take the said Oath some he grievously Fined and Imprisoned and others he destroyed and exiled and namely the 10th of October Ann. Dom. 1639. He Fined Henry Steward and his Wife who refused to take the said Oath 5000 pounds apiece and their two Daughters and James Gray 3000 pounds apiece and imprisoned them for not paying the said Fines The said Henry Steward his Wife and Daughters and James Gray being the Kings Liege people of the Scotish Nation and divers others he used in like manner and the said Earl upon that occasion did declare that the said Oath did not only oblige them in point of Allegiance to His Majesty and acknowledgement of his Supremacy only but to the Ceremonies and Government of the Church established and to be established by His Majesties Royal Authority and said That the refusers to obey he would prosecute to the Blood Mr. Whitlock proceeded to open the 19th Article setting forth in substance as followeth THAT the next Article in which they shall proceed to make good the Impeachment of all the Commons of England against my Lord of Strafford is the 19th Article That their Lordships have heard his demeanor to the Subjects of the Irish Nation what power he exercised over their Liberties their Properties their Lives That he used His Majesties Subjects of Scotland in the same manner exercising an unlawful power over their consciences by imposing a new and unlawful Oath on such of them as lived in Ireland That the Kings Subjects of the Scotish Nation have the same benefit of protection from His Majesty and His Laws as his other Subjects have since they are bound to the same Allegiance to the same Obedience and therefore what ought not to be done to any other of the King's Subjects ought not to be done to them That a new Oath cannot be imposed without Assent of a Parliament yet my Lord of Strafford is pleased to enjoyn this Oath to contrive it to threaten them that desired to consider of it he sends forth Commissions to the Gentry in the Countrey to tender it and such as refused were brought up by Pursivants and Officers to Dublin and committed to Prison and divers of them rather than they would take this Oath were fain to forsake their Families their Estates and Lands and fly away and were exiled the Kingdom That the Charge particularly mentioning the sentencing of Henry Stuart his Wife and two Daughters and one Iames Gray above the age of 16. who for refusing this Oath were Fined Stuart himself 5000 l. his Wife 3000 l. his Daughters 3000 l. apiece and Iames Gray as much and in their Sentence my Lord was pleased to declare himself so bitter against that Nation and so much resolved that this Oath should be taken by all of them though against Law That he publiquely said That those who refused to take the Oath
other intent and needed no alteration The Bishop of Raffo would have had more added saying The Oath was so mean he would not come from his house to take it and so my Lord Deputy told him the Oath had been well consider'd of and needs no alteration That he the Bishop then desired a Copy of it to carry to the Gentlemen that were not present and were waiting for them at my Lord Mountgomeries lodging His Lordship was pleased to deny that but would send the Clerk of the Council who should bring the Oath and Read it and bring it back again and he did so After this the next day or that afternoon they were appointed to come to the Council-Board and have the Oath Administred That here they came and my Lord himself was pleased to Administer the Oath to every one of us two by two or three by three And this was the manner of Administring it Being Interrogated Whether they knew the occasion of their being sent for He Answered They knew not for what cause nor heard any thing of it Being Asked If he knew what Scotchmen were those that left the Kingdom because they would not take this Oath He Answered That soon after they were dismissed in May Commissions came into the Countrey to certain Commissioners for Administring the Oath to all of that Nation above the Age of Sixteen and he believes whether by the main Commission or private Instructions he cannot tell That it was ordered it should be Administred both to Men and Women above that Age And they were all called at certain dayes by the Commissioners some were scrupulous and thought in their Consciences they could not take it others that were satisfied in their Consciences did take it and those that did not take it the Commissioners were required to certifie their Names and Places of Residence to my Lord Deputy and Council that they might be proceeded against as Contemners of His Majesties Royal Authority according to the Proclamation and Commission After the Proclamation had called them some did appear and they that did not their names were certified and afterward Pursivants issued to apprehend them that did not appear or them who on appearing did refuse He knows of many that fled away into Scotland and very many that fled up and down in the Country and many were apprehended by the Pursivants and carried up and some he thinks were Censured Being Asked Whether they left their Corn on the Ground and Goods in their Houses He Answered That they did Being Asked Whether any Papists of the Scotish Nation were sent for by Letter or had the Oath tendered He Answered None of them that he could hear and the Oath was not Administred to any of them neither were they called Being Asked If there were not diverse Scotish Papists there He Answered Yes diverse Gentlemen of good Quality and he named some of them viz. Sir William Hamilton c. Being Asked on the Earl of Clares motion Whether the Refusers fled into any part of Scotland He Answered In Truth not to his knowledge but they fled out of the Kingdom of Ireland The Oath was next Read viz. IN. do faithfully Swear Profess and Promise that I will Honor and Obey my Sovereign Lord King CHARLES and will bear Faith and true Allegiance to Him and will defend and maintain His Regal Power and Authority and that I will not bear Arms nor do any Rebellious or Hostile Act against Him or Protest against any His Royal Commands but submit my self in all due obedience hereunto and that I will not enter into any Covenant Oath or Bond of Mutual Defence or Assistance against all sorts of persons whatsoever or into any Oath Covenant or Mutual Defence or Assistance against any person whatsoever by Force without His Majesties Soveraign and Regal Authority And I do renounce all Covenants contrary to what I have Sworn and Promised So help me God in Christ Jesus Whence Mr. Maynard observed from these words That they shall not Protest against any of His Majesties Royal Commands That he believed all men were satisfied that His Majesty never did nor will Command any thing unlawful but what a subordinate Minister may command in His Majesties Name and publish as His Command in Ireland their Lordships have heard enough of and that may make them tender to take the Oath besides the Oath being new it is conceived to be against Law Mr. Maxwell being Sworn and Interrogated In what manner were Gentlemen sent for to Dublin about this matter And what he knew in particular about it He Answered That he was one that received a Letter from my Lord Lieutenant upon that account and that he as well as the rest were required to be all at Dublin at a certain day and being there and my Lord Mountgomery being a little sick and not able to go abroad desired their excuse for a day or two My Lord Deputy was pleased to give Command that all that were writen for might be at my Lord Mountgomeries lodging And at the time appointed my Lord Lieutenant came and at his coming he called them together and showed the Dissenters in Scotland and desired that they would show themselves Faithful and Loyal Subjects to their Master and that it behoved them as their own desire to Petition for it whereupon my Lord Bishop of Down Râ—o and some others of the Clergy being there did second my Lords Speech and told them That as they Rebelliously proceeded in Scotland in that the Scots had taken in hand against the King so they would do well by Petition and by Oath to his Lordship and the Council to shew their willingness towards their Masters Service So my Lord Lieutenant was pleased to take hold of my Lord Downs Speech and my Lord Down desired he might be the drawer of the Petition But my Lord perceiving him a little too vehement told him Smilingly That he would recommend that to the Bishop of Raffo So the Bishop of Raffo was appointed for the drawing up of that Petition The next day they desired to peruse the Petition before it went to my Lord and after they had perus'd it they went in to my Lord Lieutenant with it after he had seen the Petition he mended something in it and among the rest he remembers the Bishop of Raffo told him That my Lord had put in That these that were here should be of no worse condition then the rest of His Majesties Subjects The next day the Petition was Ingrossed and Signed by them and presented to my Lord Lieutenant afterwards there were two Noblemen two Bishops two Gentlemen appointed to go to my Lord concerning the Oath and they desired a Copy of the Oath My Lord Lieutenant sent Sir Paul Davies out to my Lord Mountgomery and it was Read to them all and they were commanded to attend at the Council-Table and my Lord gave them the Oath Sir Hen. Spottewood was offered a further Witness but their Lordships
Asked on M r Whitlocks Motion who were those that took it so chearfully And whether the Bishops were not more chearful then others He Answered That indeed he observed no Reluctancy My Lord of Strafford here added That he speaks it truly to the honor of that Nation be it spoken the Oath was taken with much chearfulness and not any man made scruple in the whole business to his understanding save only Sir Iames Mountgomery but took it with all the readiness in the World This is as true as he lives and he thinks he speaks it for their honor and were he one of the Temporal men in that kind he should be very unwilling to be asked whether the Bishops had been more ready to give Allegiance to His Majesty than himself and he thinks he that asked the question doth them a great deal of prejudice in it Finding them thus prepared he was glad of it and they being willing to prefer such a Petition he went to them and served them with all willingness as he had reason The Petition was cheerfully brought to him to be looked over and to have his opinion how he liked it It was brought him by my Lord Mountgomery Sir Iames Mountgomery's Brother and some others whom he remembers not But these words he remembers particularly in it An offering of their Lives and Fortunes for vindicating the Authority of Regal Power which he said was too general and though they intended it well might be turned too strictly on them and therefore he desired it might be qualified with these words In equal manner and measure with other His Majesties Subjects and the words were put in by him as he is sure my Lord Mountgomery would justifie The Petition was read and the Act of State wherein it is recited being in substance as followeth By the Lord-Deputy and Council WENTWORTH Where we have lately made an Act of Council in these words WHereas divers Lords Spiritual and Temporal Knights and others inhabiting in this Kingdom have lately exhibited a Petition to us in these words following To the Right Honourable the Lord Deputy and Council c. The Humble Petition of c. The Petition recites The horror apprehended by the Petitioners His Majesties Subjects of the Scotish Nation inhabiting in Ireland for the Covenant sworn by some of their Countreymen in Scotland without His Majesties Authority and Consent Their dislike therof and their consideration that the causes of that action may be understood to reflect on the Petitioners though innocent They crave leave to vindicate themselves from so great a Contagion and desire his Lordship to prescribe a way by Oath or otherwise to free themselves from these proceedings to declare their acknowledgement of the Kings Regal Power and their dislike of that Covenant and of all other Covenants entred into c. without His Majesties Regal Authority which they are desirous to manifest by offering their lives and fortunes to vindicate the honor c. of their Sovereign which they are ready to do in equal manner and measure with other His Majesties Subjects c. and divers names were to the said Petition subscribed In consideration of which Petition we cannot but commend the wisdom of the Petitioners which we will not fail humbly to represent to His Majesty and for that we know many of this Kingdom have expressed good affection to His Majesty and His Service and dislike those disorders We hold it fit c. to free them the better from the Crimes and Scandals which their Countrey-men have gone into as also to free them from all prejudice and to approve to the King and to the whole world their Allegiance to him and his Regal Power and the dislike of that unlawful Oath and Covenant We do therefore ordain That all and every person of the Scotch Nation that inhabit or have Estates or any Houses Lands Tenements or Hereditaments within Ireland shall take the Oath herein expressed on the Holy Evangelists on pain of His Majesties High-displeasure The tenor of which Oath follows c. To several seect persons c. Authorizing them to call before them and administer the Oath to every person of the Scotch Nation c. At such time and place c. And such Instructions as shall be in that behalf given by the Deputy and Council c. And to certifie the names of all that take the Oath and if any refuse to certifie their Names Quality and Residences to the Lord Deputy c. And there is a Command that all of the Scotch Nation do appear before the said Commissioners at times by them to be appointed and to take the said Oath before them and that all persons may have due notice we think fit this be published Dated May 1639. To prove a design of seizing the Castle of Knock-Fergus my Lord of Strafford desired Mr. Slingsby might be examined and being Interrogated He Answered That about the time when it was supposed the King was in the Field of Berwick there was an Advertisement from Knock-Fergus that one Trueman had writ a Letter for betraying of the Castle there the party that sent the discovery was to be employed in the Letter and he enformed there were the hands of Twenty that should have subscribed it the Letter was conceived to be voluntarily from Trueman and not sollicited out of Scotland Trueman was sent to Dublin and examined and sent back to be tryed in the Countrey and there he received his Tryal and was Hanged Drawn and Quartered Being asked of what Nation he was He says he doth not know of what Nation but he supposes he was an Englishman For his further justification he saith at the same time there was the like Oath and Proceeding here in England The Copy of which Oath now read being affirmed by Mr. Ralton to be a true Copy 5 Iune 1639. A Copy of an Oath tendered to some of the Scotish Nation resident here in England as it is entred in the Scotish Book being in substance IN Doe faithfully swear profess and promise that I will faithfully obey my Sovereign Lord King CHARLES c. and defend and maintain His Royal Authority and that I will not bear Arms nor do any rebellious Act against him nor profess against any His Royal Commands c. And that I will not enter into any Covenant or Bond c. Of mutual Defence or Assistance against any person c. or into any Covenant Bond of mutual defence or assistance whatsoever without His Majesties Sovereign and Regal Authority And I do renounce and abjure all Covenants contrary to what is here sworn professed and promised And he submits it to their Lordships Wisdom and Justice what offence this had been for a Deputy of Ireland in a time thus conditioned for securing the publique peace of that Kingdom where he serves the Crown upon such apprehensions as these fairly without any constraint or violence offered to endeavour by such a manner of
best account he can and offer some proofs Sir Robert Loftus was the Vice-Admiral of the Province of Lemster himself was Vice-Admiral of the Province of Munster and about that time the Lord Admiral sent Direction and Command to the Vice-Admiral of Lemster and Munster to seize all the Scotch Ships then in those Ports so that what was done was done by the authority of my Lord Admiral and if their Lordships asked Mr. Slingsby he will say that about that time there came these Commands and by virtue thereof these Ships were stayed Mr. Slingsby being Interrogated whether about that time my Lord Admiral sent Warrants to the Vice-Admirals to seize the Scotch Ships in their several Ports He Answered That he received the Letters just as my Lord was going into England and dispersed them to the Vice-Admirals he executing that for Munster as Deputy to my Lord and the Ships were stayed after my Lords going into England and not before Whence my Lord of Strafford concluded That it appeared that he hath not been an extraordinary stirrer of difference between the King and the Subject he never desiring any thing but peace and quietness and that all things might be ended as he trusts they shall with good understanding and perpetuity of affection amongst our selves and with them And there his Lordship left the 20th Article hoping he had fully and clearly satisfied their Lordships as to any crime in it but whether his Judgement did mislead him in an opinion he will not dispute but will confess willingly That no man is more ready to mistake than himself His Lordship proceeds to the 21 Article which his Lordship read This he said he perceives is a particular they have much insisted on but have not as he conceives offered any substantial proof for what they alledge The first proof of the 21 Article was my Lord Primates Examination wherein he sayes That in a discourse betwixt them concerning the levying of money on the Subjects in case of imminent necessity his opinion was the King might use his Prerogative as he pleases but first it was best to try his Parliament This is the only Testimony in this particular being Singularis Testis he knows it will weigh with their Lordships accordingly and then it is no otherwise but by way of Discourse and Argument and how far that shall be layed to a mans Charge he must submit in regard of the reasons subsequent in the next Article so that he will reserve himself to this point till he comes thither But the words fairly and cleerly understood abide a sence no way of danger to him that speaks them For they are That the King may use his Prerogative as he pleases and the Kings pleasure is always just and will not use his Prerogative but justly and fairly and for a man to think otherwise were a higher offence Besides many things are lawful which if they were done to the uttermost of the Power that his Prerogative and the Law of the Land gives him might be prejudicial to His Subjects which notwithstanding he in his goodness and discharge of the Trust God Almighty hath put into him never hath nor will exercise but suffer them to be imployed for the Subjects advantage according to the present occasion And therefore to say he may use His Prerogative as he pleases might be without prejudice to the Subject and very lawful But it is a greater offence by much to think that the King will use his Prerogative otherwise then as befits a Christian and pious King And therefore he hopes these words shall not be laid to his charge as a signal crime and of so high deadly and capital a nature as Treason The next proof offered is my Lord Conway and he sayes on some discourse which being private between friend and friend neither of them thought they should come here to give an account of My Lord Conway asked him where the means should be for the Supply of the Kings Army He told him in Parliament and doubted not but the Parliament would supply His Majesty so far he was from thinking there should be that misfortune as the breach of that Parliament but quite contrary And for the words That if the King should be denyed in just and lawful things he might justifie before God and men the seeking means to help himselfe though it were against their will He must needs say That to help a mans self is a very natural motion for commonly a mans self is the last creature that leaves him and that which is natural to every man is natural to the King who is accountable not only for himself but also for all his people The next is Mr. Treasurer And he says That the 5th of December was Twelvemonths to the best of his Remembrance upon a Proposition of a Parliament to the King he the Earl of Strafford should say That if the Parliament should not succeed he would be ready to assist His Majesty any other way He sees not where the heynousness of the words lies nor where the venom is that should endanger him as to his Life and Honor And if he said he would assist His Majesty any other way if it were needful or any way conducing to his purpose he is verily perswaded Mr. Treasurer himself said as much but that is not material for he conceives it not blameble in either of them to have said so much therefore he laies it not on him as a Recrimination For the Question was a Parliament or no Parliament a Parliament was the desire of every man to settle the Common-wealth by that they might stare super vias antiquas And when they were moving His Majesty for a Parliament for him to say he would help any other way doth always presuppose what must be presupposed that it must be in all lawful ways The King cannot command unlawful ways and he hath that opinion of His Majesty and of His Truth and Faithfulness that He will not Command him any wayes but lawful wayes he having not carried himself in his Masters service so as that he can have an opinion of him that he will do any thing but what is honourable and just and therefore he hopes it is spoken without offence being fairly and rightly understood That is of lawful ways the ways the King could command and the wayes himself could serve him in being no other And this is all they bring to prove that part of the 21 Article that concerns his procuring of His Majesty to break the Parliament and by Force and Power to raise Money on the Subjects And this is all he sayes and all they charge out of that Article This he must add That when he sayes he will serve the King in any other ways in all Debates whensoever he expressed himself to that purpose he did ever in the conclusion end with this That there was no safe nor sure expedient to settle a right understanding between the King and
therefore he desired to touch on them a little The first proof hereof Is the Testimony of Mr. Comptroller that he the Earl of Strafford should say something of deserting the King but he remembers not the particulars In which words he conceives there is nothing that can make him Criminal before their Lordships The next is of what my Lord of Bristol sayes whose Discourse came in upon some Difference between the Tenants of his Lordship the Earl of Bristol and his the said Earl of Strafford The discourse he remembers very well my Lord of Bristol honouring him with a visit when he was sick and he remembers something was spoken to that effect and purpose as it is in the Testimony But What is this as to the Charge laid against him In the Charge there are only such words that may prejudice him but nothing that may forfeit his Life Estate and Honor. As in the case of Extream and unavoidable necessitie viz. The Invasion of a Foreign Enemy when there is not time to call a Parliament And the King may in that case use as the Common Parent of the Country what power God Almighty hath given Him for preserving Himself and His People for whom He is accomptable to Almighty God is a thing quite different from what is in an ordinary Case He confesses his opinion is the King hath a power absolutely to use all possible means for the safety of the Publick In these Cases He hath a Power given Him by God Almighty that cannot be taken from Him by others neither under favour is He able to take it from Himself If this be a fond and foolish Opinion he craves their Lordships pardon but he thinks a man should not forfeit his Life and Honor and Posterity for a foolish Opinion God forbid that Common-Law or Statute-Law should make that Treason in any Man So that he acknowledges There was some such discourse But all things taken together carries the State of the Question quite another way then when taken to pieces My Lord of Bristols Testimony sayes further But my Lord of Strafford then said The King was not to be Mastered by the frowardness or wilfulness of His People or rather by the disaffection of some particular men To which words he sayes If he did remember them he would acknowledge them But being then in that condition delivered from a great and long sickness infirm and weak both in the powers of his mind and faculties of his Body if he be not able to recollect every thing it is no marvel But he relies so much on the honor and nobleness of my Lord of Bristol that seeing he sayes that he said it he will not deny it though he cannot remember it But he must say withal That his Testimony cannot work any thing towards him further then a single Testimony can do in this case and therefore without offence he shall desire in this particular to reserve that benefit to himself that the Law in this case gives him in such sort as hereafter he shall be bold to put their Lordships in mind of that is how far a single testimony may work to the prejudice of a Man charged with High Treason The next Testimony is my Lord of Newburgh That he heard me the Defendant say or words to this effect That seeing the Parliament had not supplied the King His Majesty might take other Courses for the Defence of the Kingdom These words I do said the Defendant acknowledge And he trusts there is no offence in this saying for I conceive that the King is not secluded nor any one else in a fair and just and an honourable way from doing the best for himself and his own preservation but those other Courses that were intended were just and lawful Courses He must put that grain of salt into all the rest of his Discourse that it was meant of no other wayes or Means but such as were allowed by the Laws of the Land and were fit for a gracious and pious King to use and so understood he knows no reason but the King should be left to supply Himself in all the fair and just ways he can if the Parliament should not supply Him The next Testimony is my Lord of Holland's and his Lordship sayes That at Council-Table my Lord of Strafford should say That the Parliament having deny'd the King gave Him an advantage to supply Himself otherwayes But he sayes still other lawful wayes It gave Him advantage to use His Prerogative in lawful wayes further then otherwise perhaps out of his goodness He would have done Therefore giving those words that Interpretation he conceives they cannot be layd to him as a Charge of High-Treason The next is the Testimony of my Lord of Northumberland who sayes My Lord of Strafford said That in case of necessity and for Defence and safety of the Kingdom if the People refuse the King might do every thing for the Preservation of His People This brings it much to the other business before spoken of it being in case of necessity for Defence and Safety of the Kingdom and to be used for preservation of the People for he must needs say That is his Opinion grounded upon that Maxim Salus Populisuprema Lex In these things when ordinary formes cannot be had for when they may be had to go to extraordinary is not right but when the ordinary wayes fail and the occasion gives no time God forbid but the King should employ the uttermost of His Power Wisdom and Courage for preservation of Himself and His People And to say it with limitation under favour doth state the Question quite otherwayes then if the words were taken alone and not put together But that with these Limitations he spake both these things and diverse others will more fully and clearly appear in the next succeeding Article for here he is charged with speaking things at large but there at the Council-Board and there it will come in properly At which time he shall desire to examine some of their Lordships and it shall appear words of this Nature went alwayes in this sort from him in case of a Foraign Invasion in case of an Enemy actually entred or to be entred and not otherwise which makes it another Question then as by the Antecedents and Consequents it is laid in the Charge Besides this offence is but words spoken by way of Argument in Common Discourse betwixt Man and Man without any further or other proceeding or Execution upon these words and Shall these be brought against a Man and charged on him as High-Treason God forbid that ever we should live to see such an Example in this Kingdom A matter of infinite prejudice and danger to every Man for when that is done no Man can be safe Is there any thing more ordinary then for Men in Discourse to seem to be of a Contrary Opinion to what they are to invite another Man to give Reasons perhaps to confirm him in his own
heard my Lord of Strafford mention the reducing of England by an Irish Army It is true my Lord of Northumberland goes thus far That he hath heard him say something whereby he might conceive there was intended some Course of raising Moneys by extraordinary wayes And that my Lord of Strafford confesses is very true for if it were by borrowing 3 or 400000 l. it is an extraordinary way the Kings Revenue could not serve these occasions there must be other wayes and Loan was one and that fair and honourable and just So then as to this Testimony the Defendant offers to their Lordships that he hath examined my Lord of Northumberland and he knows no such thing He hath examined my Lord Marquiss of Hamilton and his Lordship is pleased to say He remembers no such thing at the Committee of 8. He desired my Lord Treasurer might be Examined to the same Words The L. Treasurer being Asked Whether ever he heard my Lord of Strafford in any private Council or Debate with the King tell him the said words He Answered That he never heard my Lord speak those words of the Irish Army nor any thing like it and he repeated That he never heard his Lordship speak it in the manner proposed nor any thing like it Being Asked on Mr. Maynards motion Whether he ever heard my Lord of Strafford say The King was loose and Absolved from all Government He Answered That he desired time to consider of that He remembers not any such thing but he reserves himself for that Being Asked on the like motion Whether he heard my Lord of Strafford say any thing to that purpose That the Parliament had deserted or forsaken the King He Answered That he remembers not that he heard any such thing Lord Cottington being Asked on my Lord of Straffords motion Whether he heard my Lord of Strafford say such words That the King had an Army in Ireland and he might employ them to reduce this Kingdom He Answered That he hath heard the Question heretofore and is very confident he did never hear him say it in his hearing and that he hath a great deal of Reason to be confident of it Being Asked on Mr. Maynards Motion Whether he heard my Lord of Strafford say That the King was Absolved or Loose from all Rules of Government or words to that effect He Answered That as he takes it he hath been Asked to that Question too and he thinks he never heard the words for it was as he thinks a very absurd Proposition and he should not have heard it with patience Being Asked on the like motion Whether he heard him say The Parliament had forsaken or denyed or deserted the King or words to that effect He Answered That for saying The Parliament had not provided for the King The Parliament was ended and had not provided for the King and That the Parliament had not provided or left the King without Money It is very probable he did say it and he thinks he did so for it was the truth Being Asked Whether he said The Parliament had denyed the King He Answered That what his words were It is a hard matter for him to say That he said The Parliament had denyed or left the King he will not Swear Being Asked on like motion Whether he perswaded the King that he was to be supplyed in extraordinary wayes He Answered That he cannot Swear that neither Where Mr. Maynard observed That my Lord of Strafford himself granted and yet that 's forgotten To which my Lord Cottington Answered That if the Gentlemen would have heard him out he should have given good satisfaction He hath been Examined Whether my Lord of Strafford used these words Extraordinary wayes and he cannot say he did but he hath heard him say The King ought to seek out all due and legal wayes and to employ His Power and Authority and Prerogative Castè Candidè he remembers these words very well For close of his Defence to these words That His Majesty had an Army in Ireland to reduce this Kingdom witnessed by Mr. Treasurer My Lord of Strafford said Mens memories are weak and the best may be mistaken or misremember and may think one man says that which another man says or that a man says that which in truth he did not say as it is in this Case Their Lordships have had all the light that is possible for him the Defendant to give them My Lord of Northumberland being examined on oath sayes he remembers not the words My Lord Marquis Hamilton remembers them not My Lord Treasurer of England remembers neither that nor any thing like it My Lord Cottington remembers no such thing and is well assured he never heard him say any such thing Here are all that are left of the Committee save my Lord of Canterbury and him the Defendant cannot examine otherwise he would Secretary Windebank is a little too far off to be heard at this time and if their Lordships could ask him whether the Defendant ever spake the words on the faith of a Christian and a Gentleman he will take his oath he doth not think nor believe he ever spake them but believes as constantly as possible can be that he never spake them He would be loath to swear he did not it being so long since But when his words shall more particularly and specially be remembred by another man than by himself he must commend that memory that observed what he said so perfectly as to be able to give a better account of them than himself the party that spake the words or any man in the company besides My Lord further insisted That this concerns him very nearly for it would be a grievous charge that is on him by this means though not in the intendment of the Gentleman that urges it who he hopes wishes him well if he should be thought to be an overthrower of the Liberties of the Subject by a foreign Army However it is a single Testimony and no more and that single Testimony without any prejudice to the Testimony cannot rise in Judgement against him Nay he cannot be Indicted nor Arraigned of High Treason for it by the Statutes of 1 E. 6. Ca. 12. the last Proviso of it in these words BE it Enacted by the Authority aforesaid That no Person or Persons after the First day of February next coming shall be Indicted Arraigned Condemned or Convicted of any offence of Treason Petty-Treason or Misprision of Treason or any words before specified after the First day of February for which the said Offender or Speaker shall suffer any pain of Death Imprisonment Loss Forfeiture of Goods Lands or Tenements unless the said Offender or Speaker be accused by two sufficient and lawful Witnesses orshall willingly without violence confess the same And if their Lordships will give leave to consider the first part of the words being fairly and indifferently interpreted and with
it very well and he had not done his duty if he had concealed it for he was one of them that told him of it Lord Goring being examined to the First and Second Question proposed to my Lord Marquis His Lordship Answered That he remembers something to this purpose and Candidè Castè makes him call it to mind but the particulars he cannot remember Candidè Castè for using the Kings Power he hath heard often Tho. German being examined to the same Question Answered That he would be very loath to say anything that doth not perfectly occurr to his remembrance he remembers that divers times at Council-Board my Lord spake these words Candidè Castè and he remembers them very perfectly but what day and time he remembers not but he remembers very perfectly he heard my Lord of Strafford say it must be on an urgent and unavoidable occasion that any by-course should be taken or put in practice but what day and time he cannot tell To the exact words of the Interrogation he cannot say but something to the sence as he the Examinant delivers them Being asked whether my Lord of Strafford hath not concluded That things will not be right till there be a right understanding between the King and his People or words to that effect He Answered That he thinks no man hath the Honor to sit at that Board but will give him that Testimony that he hath often spoken That the greatest happiness that can occurr to the King and People is the happy agreement and understanding between them Being asked on Mr. Glyn's motion Whether those words were used before the Dissolution of the Parliament or since He Answered To his best remembrance before yet he doth not deny but they may be said since that he must leave to the Lords whose memories serve better to distinguish times The Lord Treasurer being examined to the First Question proposed to my Lord Marquis He Answered That he doth not remember the discourse about his business Being asked to the Question Nov. 2. proposed to the Lord Marquis He Answered That phraze of Candidè Castè he remembers very well were used more than once but whether they were applyed to this particular he cannot speak He remembers my Lord used the words in such a sence and the interpretation of them was chastly and honestly but the other part he cannot remember Being asked to the Question Nov. 2. proposed to the Lord Marquis He Answered That he remembers not any of it Lord Cottington being examined to the Question Nov. 1. proposed to the Lord Marquis He Answered That if his Deposition be looked upon it will be found he did say my Lord put the Case so and he now says it again he the Examinant did declare and understand that my Lord Being asked to the Question Nov. 2. proposed to my Lord Marquis He Answered That he thinks he hath answer'd this already he remembers the words Candidè Castè and that the Power the King had for the preservation of Himself His Crown Posterity and People ought to be used Candidè Castè in all fair and just ways Being asked whether my Lord of Strafford did not say That the King was bound after the present danger provided for to free the Subject in Propriety and Liberty from the prejudice of such a precedent He Answered That he said the necessity being past and the work done the King ought to repair it and not to leave any precedent to the prejudice of His People Being asked Whether my Lord did not say that in conclusion all must be setled by Parliament and till all the dispute betwixt the Prerogative of the Crown and Liberty of the Subject be determined neither King nor People should be happy He Answered That he verily believes many of their Lordships have often heard him say it He hath heard my Lord say it to the King at the Council-Table It hath been always his position and to himself the Examinant he hath said often both before the last Parliament and after it was broken and it was an ordinary discourse to His Majesty That His Majesty could not be happy till there were an happy Union betwixt Himself and the Parliament and the Prerogative and Liberty of the Subjects were determined And my Lord of Strafford desired to have so much benefit of their Lordships Justice as to have the Examinations of my Lord Keeper which are not yet come in to these points reserved And now he said he had stated to their Lordships truly and justly the Question concerning these words that are by pieces and paches charged and which taking the whole contexture of the Discourse from the beginning to the ending represent them quite otherwise as he conceives than might seem to be enforced against him He offered this further to their Lordships That they see plainly and clearly proved that at all times and frequently he hath presumed by His Majesties favour and good leave to express himself how necessary it is for the happiness of the King and People that all these matters of difference should be setled and bounded and that by Parliament and that till they were so bounded neither His Majesty nor they could be happy so that it was far from going against the antient grounds of Government that have been here setled in that singular Providence and Wisdom of our Ancestors and never shall he contribute any thing but to the maintainance and preservation of them in all honest and honourable ways and means whatsoever and if these words were spoken with that moderation and qualification that the Power to be used must be a lawful Power and the ways to be taken lawful ways they were no way subject to exception Besides there is one Argument that cleers the Intendment and meaning of the words as he conceives a great deal more prevalently than if those words of lawful Power and just and honourable ways had been put in And that is that nothing hath been done by the King or the Council against the Laws and Customs of the Realm in pursuance of them where it hath been any breach on any Liberty or Propriety of the Subject What extraordinary Course hath been taken not warrantable by Law None that he knows of so that there being nothing but justly and fairly administred the very Deed done shews them to be spoken with that meaning and so to be interpreted so much the rather by how much doing well is better than saying well And the worst that can be made of them they are but words and no more and for the excuse of them their Lordships well remember what he said concerning the Statute they can never amount to Treason and before they shall be brought to him in a Criminal Charge he besought their Lordships to observe something he shall offer to them These words charged on him were not wantonly or unnecessarily spoken or whispered in a corner but they were
with relation to action For these be Counsels and if a Man shall Counsel the death of the King Will any Man doubt whether this be Treason surely no man will doubt it that knowes the Laws of England The Treason is not in his words but in his wicked Counsels For under favor if it be true that he spake them they may be called wicked and that it is true they have offered proof and so he left it to their Lordships Mr. Glyn desired to add a word it concerning the Kingdom and Peers Their Lordships observe how my Lord of Strafford stands questioned for subverting of the Laws and for designing to introduce an Arbitrary Government the other day his design appeared in the exercising of a Tyrannical Power over the Persons Estates and Liberties of the Kings Subjects and though a design was in practice and something put in execution yet there was something left whereby that Treason might be raised to a higher strain For that proofs were produced the other day the exercise of this Tyrannical power in his person which was the stopping of the Streams of Justice but the Fountain of Justice was still uncorrupted and hope left and God be thanked we have hope still But this dayes work is to prove That he ascended the Throne and by his ill Counsels the Venome he had hatcht in his own heart he endeavored to infuse into the Kings Person to make Him of the same opinion with himself and that is to endeavor to corrupt the Fountain But God be thanked he hath met with a Gracious King upon whom he cannot prevaile The words laid to his Charge are very many That he should tell the King he was Absolved from all Rules of Government and that he had an Army in Ireland which he might employ to reduce this Kingdom The latter part of the words he hath endeavoured to answer and the former part proved by positive Witnesses which he hath not given answer to For the latter that concerns the Irish Army Mr. Glynn said He shall not need to put their Lordships in mind of any thing said but whereas my Lord sayes They are proved by one Witness only if your Lordships revise their Notes they shall find them prov'd by many Witnesses When he was not accused by the Commons he tells Sir William Pennyman at York he did intend to bring the Army into England but there was Vox populi and that 's a horrid Witness My Lord Cottington one of the Honourable persons present when the words were spoken testifies to their Lordships That he remembers my Lord of Strafford told the King That after things were setled he was bound to repair the property of the Subject and this under favour proves something for if some Counsel and advice were not given that there should be an invasion on the property what should engage him to tell the King he should restore it Here my Lord Cottington explained himself saying That his meaning was he hath often heard my Lord say The King and People would never be happy till there was a good agreement Mr. Glynn proeceded that if their Lordships please to look on my Lord of Straffords Interrogatory they shall find it asked his Lordship Whether he did not tell the King that he should make restitution of the Subjects propertie when the danger was over and why should his Conscience aske such a question unless there were Counsel given to invade the propriety of the Subject Your Lordships remember the words of Sir George Wentworth which Mr. Glynn said he will not repeat and when my Lord was fixed by the words of his Brother he said That tho he be my Brother I do not use to communicate my Counsels to him and that I am on my oath to conceal yet this great Counsel he did impart to Mr. Slingsby for his own purpose and to Sir William Pennyman And so having spoken to the latter part of the words the reducing of the Subjects of England by the Irish Army to shew that it stands not only on a single proof but if the whole be recollected together there be many things concurring to the positive proof thereof Mr. Glynn put their Lordships in mind of the other words to which two great Witnesses concurr and no Answer at all is given viz. That the Parliament denyed Supply and the King is loose and absolved from all rules of Government put the other words out of doors as they are not if the King be loose from all rules of Government is he not loose to doe what he will And Mr. Glynn added That he must needs give Answer to something that fell from my Lord concerning other words that they were words of Discourse and what he speaks at his Bed or his Table or in private Discourse he thinks they should not be brought against him But Mr. Glynn besought their Lordships to remember that if my Lord speaks the words as a Privy Counsellor speaking to the King concerning the Subjects property compare these words with the other Extermination and then see what the Case is The last thing in his Defence is as high as the Charge it self He is charged That being a Privy Counsellor and entrusted by the King and a man of such Eminence he should indeavour to infuse into the Kings Sacred Person such dangerous Counsels tending to the destruction of the Law and Government and consequently of King and Subject And in the close my Lord of Strafford put their Lordships in mind what a dangerous thing it is for one of the Kings Counsel to be charged for Words spoken at Council-Table to speak this in such a Presence before the Peers and Commons of the Realm that a Privy Counsellor who ought to be clear and candid is not to be questioned though he infuse dangerous Counsels That it is justification of his own Act and so great that he knows not how my Lord could say greater and so he said he hath no more to say their Lordships had heard the Proofs and Defence and comparing them together he doubts not but their Lordships are satisfied that the Commons had just cause to do what they have done My L of Strafford desired to answer one thing the Gentleman that spake last said touching his revealing the Kings Counsels to Mr. Slingsby and others he would be loth to be charged with breaking his Duty to God and the King but where he hath Power and Liberty for as concerning the imployment of that Army the King left it wholly to him to acquaint whom he thought fit for the bettering of the service But the thing that makes him rise is to represent to their Lordships that he hath been there constantly in a great deal of weakness and infirmity since 7 or 8 of the clock and now it is 5. That his Speech and Voice are spent and it is not possible for him to come here to morrow and therefore he most humbly besought their Lordships to
Regiments that the burden of all might lie equal on all This was his intention and he hopes it was fair and if not as it ought to be yet it was done with a very good heart and justly intended This he moving at that time His Majesty was pleased to assent to it and lik'd it very well and gave direction he should proceed whereupon he said Then if my Lords approve of it he shall see it done accordingly There were diverse of the Lords then said yes and thereupon he took it for granted that it was their Consent If in this he did mistake of their Lordships he humbly craves their pardon it being far from him to prejudice any man living in that relation and that it was so he thinks a Noble Peer then present viz. my Lord of St. Albanes will remember that diverse on the Motion did say yes and thereupon he took it to be a thing granted And that as my Lord of St. Albanes who being gone home indisposed in his health my Lord of Strafford desired he might reserve himself the benefit of his Examination if he shall see cause though he hopes there will be no need of it After this he understanding that some of their Lordships at Rippon were not satisfied because the Great Council was named for the Author of the Warrant the very last day the Great Council sate at Yorke their Lordships being then come back from Rippon he moved it to the King and gave the same Relation there that he makes here before their Lordships desiring to know their pleasure whether the Warrant should be recalled or no for he could then easily do it Nothing being done upon it Under favour some of their Lordships said The Great Council had no power to levy Money To which he Answered That the Warrant was not to levy Money but that the parties concerned should do their duties themselves or otherwise pay the Money At that time it pleased His Majesty to Command him to go on and after the King had spoken no man spake to the contrary and so the Warrant was not recalled but the Moneys were paid voluntarily no force or constraint being put upon any but they took it as a great benefit that they had that favour as for his part he conceived it was And all himself got by it was That by this means himself and all his Tenants and those that had relation to him came to pay their proportionable shares which otherwise should not have paid a Farthing for they were at a great distance in the West-riding and they paid it voluntarily and willingly and when he spake with the Deputy-Lieutenants they all conceived it a benefit and advantage to the Country and it was done with their Consent and a great Ease and a Burden to no man So he acknowledges such a Warrant was granted but nothing of force or constraint Mr. Ro. Strickland Interrogated Whether he conceived not this a great ease to the Country thus to lay the last Fortnights Pay for the two Regiments And stood with his Advise and the Advise of his Lieutenants He Answered That it was very well paid for any thing he knows but the most part of it if it was paid was paid after he came to London But he conceives that if those Regiments must stand or the other March up to their Reliefe it was for the ease of the Country and so he conceived then otherwise he should not have subscribed the Warrant and it had laid heavy on those Divisions where the two Regiments of Sir William Pennyman and Sir Thomas Danby lay who had been undone by it It was done meerly for their Relief without any ill intent whatsoever Sir Edward Osborne Interrogated What he thinks of the Course and Whether he consented not to it as a very great Advantage He Answered The Question being propounded by my Lord Lieutenant to the Deputy Lieutenants Whether two Regiments that lived on the place the Frontier of the North-Riding should be paid by the Countries Contributing or their Charge or the Country to send their Regiments for relief of these two they conceived it was a mighty ease and benefit to the Country to pay the two Regiments and the rest of the Trained-Bands continue For some of them must March 70 miles in way and 70 miles backwards and some of them that lay there never stirred out of their own Towns and therefore they were of opinion It was a marvellous ease Being Asked Whether this Fortnights Pay was voluntarily paid in the Parts where he lived and Whether Force was used He Answered He lived at York altogether and cannot tell But some Officers asking What they should do for the Moneys that are behind for relief of the two Regiments my Lord Answered That which will be willingly and freely paid you must take it that which will not you must let it alone and this was four or five dayes before my Lord of Strafford came from York Sir William Pennyman being Interrogated touching the Convenience and Ease of this Course He Answered That he conceives it very easie and advantagious for else some of the Regiments must have marched 70 miles and it would have taken up a great part of the Charge in the very March My Lord of Strafford added That he would prove it by all the Deputy Lieutenants that were there that no Force or Constraint was put upon any man by him nor is there any proofes to prove Force There be onely two things insisted on One is the Warrant of Sir Edward Osborne that they should pay Money on peril of their Lives He denies that he signed any such Warrant and he is sure there is none under his hand If they have it to show he desires they would shew it if they do not then their Lordships Judgments will acquit him of it The other is Sergeant Major Yowards Warrant and a fellow that tells a Tale of Muskiteers and sayes there was a Warrant of his But he sayes he made no such Warrant he gave no direction for it neither is there any such Warrant shown and he trusts that will acquit him of that too And if there be any thing of Crime in the business it must be that they have been constrained by force to pay the Moneys for if it be voluntarily offered to take or leave this can be no Crime and that there was any force or any Warrant issued by him he denies And by this time he thinks he hath cleared himself against all the matters charged in this Article But he conceives he hath done nothing but that he had Commission and power to do though he never had acquainted the Great Council with it under favour It is true he was alwayes desirous to have the assistance of Men wiser than himself and when there was means or opportunity to gain it he took it But if he had been in Yorkshire all alone having the Power and Commission he then had though
His Majesty and their Lordships had not been there he conceives he might have Justified the doing of as much as he hath done in this Parliament his Commission under the Seal of my Lord Admiral being in effect FOr the better Execution of this our Commission we do further give and grant to you full Power and Authority from time to time and at all times at your discretion to command and require of and from all our Lieutenants and Deputy-Lieutenants in our several Counties of this our Realm and Dominion of Wales and of and from every or any of them to send to you or such place as you shall appoint such number of able Men for the War as well Horsemen as Footmen in the said Counties respectively or otherwise sufficiently Armed and Furnished as you in your discretion shall appoint and require And he did not send them to pay any Money but to relieve by turnes Regiment after Regiment and if they found it for their ease they might be at the Charge else do the Duty required which by the Common Allegiance every man is bound to do Say then he had committed an Error he had rather confess than justifie it as long as it is not brought to him as a Crime But there is another clause according to the Statute of 11 H. 7. viz. ANd further our pleasure is and we do give and grant for us our heirs and successors that whatsoever you or any other person or persons of what degree soever by your Commission Warrant or Command shall do by vertue of this our Commission or Letters Patents or according to the Instructions aforesaid or the purport of this our Commission touching the Execution of the premises both you and the said persons in shewing forth these our Letters-patents or the Constat or Inrollment thereof shall be discharged and acquitted against us our heires and successors and freed from all Impeachment and other molestation for the same He did this without sinister ends or by-respects and therefore if he did any way err by His Majesties own gracious clause he is to be excused And it is pursuing to the Statute of 11 H. 7. c. 1. where the Preamble is very observable THe King our Soveraign Lord recalling to his Remembrance the Duty and Allegiance of His Subjects and that they by reason of the same are bound to serve the King for the time to come in His Wars against every Rebellion and Power and Might c. and whatsoever falls against the mind of the Prince and that it is against all Law Reason and Conscience that attending His Person or being in other places of His Command any should lose or forfeit for doing their true Service and Obedience Be it therefore Enacted c. That from henceforth no manner of Person or persons whatsoever that attends the King in His Person and do Him true Allegiance in His Person or be in other places in His Wars for the said Deed or true Duty he and they shall be any way convicted and Attainted of Treason nor of any other Offence by any Process of Law whereby he shall forfeit Lands Goods Tenements c. and shall be for that Deed and Service utterly discharged of any Vexation c. So that he conceives he hath done nothing but what may receive a fair and equal interpretation what he hath done he hath done very candidly and clearly for the good of His Masters Service and preservation of the Country and he hath done nothing violently or deliberately to force Men to do things that may any way trench on the Propriety or Liberty of the Subject and whatsoever evil he may have committed in this he hopes by the Act of Parliament and by the words of the Commission read he shall stand before their Lordships in point of Justice and Noble Compassion to a Man that may erre Acquitted from any part of that Charge that may accuse him of High Treason Onely one thing he hath omitted and that is the Testimony of Sir William Ingram where he Charges me with saying The refusers to pay the Money are in little better condition than guilty of High Treason But he is a single Testimony and he sayes That clearly underfavour it is no mean offence for any Man to deny the Common Allegiance due to the King for Defence of His VVars But the words are testified to be spoken only to one Man and he is not Accomptable to him nor to their Lordships for that he being but a single Testimony Mr. Maynard began to Reply to the said Defence in substance as followeth That whereas my Lord sayes They have urged much that which was not Charged his Lordship hath Answered that which was not Objected as a Charge for the greatest part of the time he hath spent in examining so many VVitnesses is to shew on what grounds the first Petition was deserted and a Message put on his Lordship to deliver to the King The Petition was not offered to him as a matter of Charge but it is charged upon him that he procured to levy and impole Money upon the Country by force without a legal VVarrant and by way of excuse in his Answer he sets forth that the Country did yield to it by their Unanimous consent To that purpose it was objected to him Not that the delivery of the Message was a Crime and therefore he might have spared this labour to Answer it as to that purpose But as himself states the Case he hath much encreased rather then diminished his Fault for he said There was a Consent yet it appears there were but 109 principal Gentlemen parties in the first Petition and he encounters these to 200 met together the greater part of whom consenting and 100 of them that had subscribed and about 5 dissenting they resolve of a Message to be delivered touching consent But they have proved not only a Leavy for the first moneth but much more though when the Gentry met together and consented to a Petition it is no desertion of that Petition because 10 of 109 deserted especially when they had a Message from my Lord to meet about it and relying upon it went into the Country besides 200 Gentlemen Freeholders and others could not lay a Charge on the rest of the Country nor bind them that had dissented before and whose consent was not involved and it is no legal way to raise Money by Warrant much less by Force For the Money levyed after the Moneth expired my Lord hath offered no Colour to their Lordships for first the ground whereupon he raised it was contrary to that which was the truth viz. the Consent of the Lords of the Great Council whereas it appear'd and shall appear further there was no such Consent My Lord of Strafford would next justifie it by a Commission but that doth only require people according to their Allegiance to give attendance and this is turned into a matter of laying of Money for the first point of
the Warrant is to pay the Money Assessed and if they will not they shall attend so that what is matter of service is turned out of its Course and this is a high abuse of his power which makes that matter of Money which should be matter of Service and by this meanes awes men to pay money The Country on demand of His Majesty did consent to a Moneths pay but my Lord without their consent extends it beyond and pretends an Order to say no more of it when there was no such thing to draw some Deputy-Lieutenants together and when they are drawn to make an Order this must be his Justification of that which is unduely done And this is far from the mitigation of an Offence To do an unjust Act is one thing but it is a great aggravation when it is drawn by pretence of an authority which never was On 27 October the self same day Sir Iohn Burroughs spake of notice taken by their Lordships disclayming the Order for a Warrant And then my Lord acknowledged it to be an Error and it is doubtful whether he would have acknowleged it to be so if it had not been proved so My Lords Commission speaks not of Money and the Statute makes not to this Case it being only That when men are on their Allegiance doing the King faithful service they should not be attainted of High-Treason for doing their duty And the Interpretation his Lordship puts on it is that the duty of the Subject cannot be done to the King without levying money in an unlawful way if the levying of Money or the Imposing of Charges be matter of duty then he gives a Justification of the Charge And whereas he sayes though he had not had command from His Majesty nor Order from the Council of Peers he had power enough to do that which he did it is to be observed that my Lord did not require men first to serve but first to pay money and if they paid not then he Menaces them that they should serve as appears by Sir William Pennymans Warrant and therefore the Warrant might be observed which Sir William Pennyman justifies so unwillingly though in other things he be very forward and for a man to be required to pay Money and if he will not pay it then to perform service is hard for now he comes not on the Kings service but on the displeasure of them that require Money from him and that 's a bad discouragement to them that serve And whereas my Lord sayes nothing is proved or but by single proof their Lordships may be pleased to remember what is proved by Sir Henry Griffin That my Lord said That Money should be levied and he would take a course for it and the same Gentlemen deposes that the Warrant or Order was under my Lord Straffords hand which was the Warrant for them to pay Money It is likewise proved by Sir William Ingram that he said the private men must maintain after 1 d. per day and gave out his Command to the Constables and he would have all men know that those that refused it were in a little better condition than High Treason so that to the first part there is more than a single Testimony The latter part shall be proved by an other Mr. Henry Cholmley being Interrogated What he heard my Lord of Strafford speak concerning Treason in case men pay not that Money or to that effect He Answered That he heard not any thing at all of Treason Cconcerning the not payment Answered That at York at the Mannor-House my Lord of Strafford speaking of the raising of the Trained-Bands said we are all by Law tyed to serve the King in our own persons and if any refuse they are in little better case than Treason he cannot tell whether he said High Treason and they might be severely punished in the Star-Chamhamber And their Lordships may remember Mr. Cholmeleys former Testimony that the Vice-President might or shall send forth Warrants to levy Money And therefore these Gentlemens Testimonies stand without impeachment of that point My Lord sayes Moneys were not levyed by force yet it was proved that for these two Regiments Money was levyed by force for Four Soldiers came to the Town and went with the Constables But he sayes it concerns not him for no Warrant of his was shown Their Lordships will not expect that my Lord of Strafford should give particular Warrants to every Officer his Direction is proved in general his Commands are conveyed and distributed by particular Ministers The Captains look for Commands from them that are above them and they from the Lieutenant-General And Sir William Pennyman conceives the Warrant made out by the Vice-President was by a Warrant from my Lord of Strafford or he had my Lord of Straffords Command So that take that which is under Hand and Seal take what Sir William Pennyman take what Mr. Cholmeley hath spoken it cannot be otherwise but it was done by my Lord of Straffords Command and that is sure without legal Authority and so Mr. Maynard conceived they had made a full proof of this Article For that which concernes the Great Council he desired my Lords Answer might be read where he sayes expresly It was done by order of the Lords of the Great Council And Mr. Maynard humbly prayed that some of the Lords of the Great Council might declare the Truth in that Case But my Lord of Strafford Answered That he confessed it here at the Barr that it is so and must humbly put their Lordships in mind that in his Answer he prayes if any thing be mistaken he may have time to amend it and he doth amend it he confesses it was put in too strongly Mr. Glyn added That they put their Lordships in mind of it that it may not be forgotten After his Lordship was put in mind of it by the Lords of the Great Council he retracts it yet when he comes to Answer he affirms it therefore they think it necessary to put their Lordships in mind of it least he affirm it again Mr. Whitlock observed That my Lord of Strafford had made Justification of his Act here and truely the opinions which he hath here published and declared in the face of the Parliament are sufficient grounds of Condemnation of him He said the other day That in case of necessity the King was loose and absolved from all Rules of Government and that then Money might be levied by Force and that their Lordships very well remembers what that necessity was indeed no necessity at all But whatsoever the necessity is they know no such Tenent as my Lord of Strafford publishes But it is expresly against the Fundamental Lawes of the Kingdom and a meer Course for his bringing in an Arbitrary Power His Lordship said That as he stood qualified he might justifie as much as he hath done Which words are little less than the offence wherewith he is charged
and prove the Charge For him to say That as he was then qualified because he was Lieutenant General of the Army he might send his Warrants to Tax the Kings Subjects without Parliament is to take on him the Power of a Parliament for under favour no such Tax can be made without assent in Parliament So that what my Lord of Strafford hath declared as a ground of his Defence is a good ground of his Condemnation My Lord of Strafford did here desire liberty to speak to the Testimony of Mr. Cholmley which is new matter and he besought their Lordships to observe That he did not say as Sir William Ingram That the Money should be paid and he that paid not the Money should be in little better condition then High Treason But he that denies his Allegiance to the King to go with Him in His Wars in Defence of the Realm is little better than guilty of Treason or is Fineable in the Star-Chamber But because these are tender Points and he little understands them and they take hold of all that falls from him he shall say no more but that the Testimony of the one and the other are two several things And his Lordship proceeded to speak something touching Sir William Ingrams Testimony which Mr. Glyn interposed and said That 's no new matter but it only arises out of his Answer and therefore he desired no more might be said to that He proceeded to other matters contained in the Reply and offered to their Lordships That it had been said he did publiquely justify at the Bar that he had power to lay Taxes and to force payment but he said under favour no such thing but that he having the Kings Commission and Power to call in such as he should think fit to serve the King for defence of the Realm and this being pursuant to the Act of Parliament of 11 H. 7. he said he might justify as he conceives the calling of the Regiments to relieve by turns one another as there should be occasion but to say he had power to Tax what he pleased God forbid he should say or think such a thing He is not the wisest man in the world yet not so ignorant but to know that the one were a great breach on the fundamental propriety and liberty of the Subject but to call men to perform their Duty for preservation of the King and Kingdom he conceives to be a quite different thing His Lordship proceeded to speak to some part of the Reply concerning his sending forth of Warrants to levy by force Which being excepted against as new mattermy Lord of Strafford answer'd That if he speaks new matter it is sufficient punishment to him My Lord of Strafford proceeded That he is charged to be the procurer of Sir William Pennymans sending a Warrant to levy by force whereas he said the Warrant was issued by him and the Deputy-Lieutenants But that being denyed and apprehended to be new matter Mr. Whitlock desired to Reply to my Lord of Strafford's Answer to what he had formerly opened wherein he conceived he was not mistaken but if he were he submitted but he opened it thus That as my Lord of Strafford with the Power and Commission he had he said he might justify what he had done and it proved that he sent Warrants to levy Money and these Moneys were levyed by force Mr. Maynard added That they are here for the King and Common-wealth and desired that Right might be spared them and that there might not be continual Replyes That no colour of Answer is given that because a man must serve in person therefore Money must be required of him else he must be brought by Head and Shoulders to serve in person They offered a Warrant made upon peril of Life under the Hand and Seal of Sir Edward Osborne Whence Mr. Maynard observed That there is Imprisonment Levying of Money charging upon pain of Life levying of Goods nothing can be put upon the Subject but it hath been offered in this Case Mr. Glyn Summ'd up their Proofs saying Since my Lord of Strafford will have another Reply they have produced their Proofs That he hath levied War against the Kings Subjects and did before declare an Intention to levy Money which was afterwards done by his direction Sir William Pennyman proves that Warrants were issued and in such sort as mentions a coertion They have in pursuance proved it to be levied by four Musquetiers if he gave direction another gave execution and the parties Body must be carried away if he pays not which is a levying of War against the Kings Subjects and Gogan 5 R. 2. was accused of Treason for forceing a man to enter into Bond which is not so much as to force those payments on the Kings Subjects They produced Sir Edward Osborns Warrant attested by Mr. Cholmley to be the Original Warrant that he had from Mr. Vice-President to send for the levying of the Money To the c. WHereas His Majesty is informed that the Regiment under Command of Col. Cholmley is set forth with little Money which expresses great disaffection to His Majesties service and wilful neglect of your own and the whole Kingdoms safety the Scotch Army having taken Newcastle and being on their march towards these parts These are therefore to Will and require you in His Majesties Name and by His special Command to raise and cause to be raised by the Port Constable or otherwise as you shall think best the sum of 20s 8d at least for each common Soldiers belonging to such Towns or Parishes and to send the same immediately to York to be delivered to the Colonel for Pay and Supply of the said Soldiers and likewise to charge and command all and every person and persons who find private Arms or contribute thereunto forthwith to send the like sum at least to York to be disposed as aforesaid And in case any of them refuse to contribute you are required by like Command to certify me the Names of such refusers that a Messenger may be sent to bring them hither to serve in person and be severely punished according to the Quality of so high an offence seeing the safety of His Majesties Person and the safety of the Kingdom depends on this Fail not in the speedy execution thereof as you will answer to the contrary on peril of your life Dated the last of August 1640. Mr. Maynard desired their Lordships to observe the former Deposition that my Lord of Strafford should say The Vice-President shall or may send forth Warrants and it is originally my Lord of Straffords fault And so they concluded the 27th Article Mr. Glyn did offer to their Lordships that there is the 28th Article remaining wherein whether shall proceed or no they have not yet resolved But they desired another day to be heard they having something more to say And so the Court was Adjourned and the next day was
was an Unadvised Speech and he is a wise man and much wiser then my self that some time offends not with his Tongue And in truth my Lords though there be no Treason in it they are the most unwarranted words that appeare in the whole Proofe made against me In the 26th there are some words that I should speak to my Lord Cottington concerning a Foolish Pamphlet or Gazette which I then had in my hand and it is such a Toy in it self and all the Circumstances of it that I hold it not worth the mentioning but only that I would not forget any thing in the Proofes as near as I could and the Proofe is uncertain for onely one Man sayes it and the very words he cannot express Now he that shall Swear when he cannot express the Words his Testimony is but of small value and he is but a Single Proofe at best to disprove what is deposed by Sir William Parkhurst who sayes he was by yet heard not the Words And Cogam sayes he remembers not the words and so upon the matter there are two against one and the whole being so uncertain I conceive it is of very little moment in your Lordships Judgments My Lords These are as near as I can gather all that are charged as unto words spoken either in England or Ireland Councils other then these I am not charged withall and so there remains nothing but my Actions and if I can free them as well as I have freed the Words I conceive then under favour I have fully Answered all that hath been objected against me My Lords The first of these is the Fifth Article in the Case of Sentence of the Council of War against my Lord Mountnorris and the Sentence of the Council of War against Denwit For that of my Lord Mountnorris I have shewed plainly and clearly to your Lordships that I was no Judge in the Cause but a Party and therefore not Responsible for any Judgment given against his Lordship I gave no Vote and so consequently am not to Answer for any Guilt if there were any which under favour I conceive since all Martial Law is Adjudged to be against the Law I may be of another Opinion but formerly conceiving that that might have stood with the Law I might say something more for the Justification of it then now I do but hower I was no Party They say he was a Peer and it is very true but as he was a Peer so he was a Captain of the Army and in this Case we consider Men as Members of the Army not as Peers And if a Peer will not submit himself to an Officer of the Army he must submit himself to the Order of the Army Besides I say it was intended only as a Discipline to him the better to remember him to govern his Tongue afterwards towards other Men and that there was no more Prejudice fell upon him by it but two or three days Imprisonment so there was no great Animosity in the business besides it appeared to your Lordships that two or three dayes after we writ to the King and obtained his Pardon so that I conceive the Inconvenience was not very great to him nor the Proceedings such as should make it unpardonable or Criminal in them that gave Sentence upon him whereof I was none For that other concerning Denwitt your Lordships may remember he was found Guilty of Stealing a Quarter of Beef and for Running from his Collours and was formerly Burnt in the Hand for that he should be Proceeded against another way But falling out at that time when Five hundred Men were going over to Carlisle and they being unwilling to be put to Sea we were inforced to those proceedings for the preventing of further Mischief And there is another thing that the Martial-Law hath been alway in Force and executed in all times in Ireland and never so sparingly as in my time for this is the only Man that suffered all the time I had the Honour of the Government And I dare Appeal to them that know the Country Whether in former times many Men have not been committed and Executed by Martial-Law by the Deputies Warrant that were not Thieves and Rebels but such as went up and down the Country if they could not give Account of themselves the Provost-Martial by direction of the Deputies using in such Case to Hang them up I dare say there are Hundreds of Examples in this kind so that as to that I do not Justifie it But I say it is a Pardonable Fault and that others are of Course Pardoned for it And I trust that what falls of Course shall not be laid upon me as High-Treason or conducing to it The next is the Sixth Article and that is in the Case of Richard Rollston and therein I am said to have Subverted the Fundamental Laws by executing a Power and a Jurisdiction which was not Warranted by Law upon a Paper Petition putting out of Possession of his Freehold and Inheritance my Lord Mountnorris My Lords That Sentence will appear to your Lordships to be no more then the relieving a Poor Man in case of Equity and it is proved to you to be a Power that hath been formerly practised by the Deputies and I humbly conceive the Decree is just So that my Lords I must Confess it is something strange to me That having the Kings Letter to Warrant me in the Course of Proceedings and having the Power of former Deputies in like Case and doing no more therein then the Lord Chancellor by the very self-same Law should do in other places And that which should be done by the Chancellor should be Innocent and Just yet become High-Treason when done by me is a thing I understand not The next is the Case of Tonnres and that is waved by them and well may it be for it was in a Case of Plantation there was no Possession altered and it is fully within the Book of the Kings Instructions The next is in the Case of Sir Iohn Gifford against the Lord Viscount Loftus which they have Waved and well they may for it was grounded on a Letter from the King Commanding it to be heard by the Deputy and Council which is clearly within the Instructions and hath been since heard by the King and Council-Board and by them Confirmed for a Just Decree The next is the Case of my Lord of Kildare and that they may well Wave too the Proceedings being grounded upon a Letter from His Majesty and nothing done but in persuance of an Award between the Lord Digbyes House and that House of Kildare made by King Iames. The next is the Lady Hibbots Case and that was Relief given to Poor Men circumvented by Practice to the Prejudice of himself My Lords I had Power to hear that Cause and all Causes of that Nature by the King's Letter and according to the Practice of former Deputies And I conceive it will appear when it comes to
It cannot be for the Honor of the King that His Sacred Authority should be used in the practise of Injustice and Opprssion That His Name should be applyed to patronize such horrid crimes as have been represented in Evidence against the Earl of Strafford and yet how frequently how presumptuously his Commands his Letters have been vouched throughout the course of this Defence Your Lordships have heard when the Judges do Justice it is the Kings Justice and this is for His Honor because He is the fountain of Justice But when they do Injustice the offence is their own but those Officers and Ministers of the King who are most officious in the exercise of this Arbitrary Power they do it commonly for their advantages and when they are questioned for it then they fly to the Kings Interest to His Direction And truly my Lords this is a very unequal distribution for the King that the dishonor of evil courses should be cast upon him and they to have the advantage The prejudice which it brings to him in regard of his profit is no less apparent it deprives him of the most beneficial and most certain Revenue of his Crown that is The voluntary Aids and Supplies of His People His other Revenues consisting of goodly Demeans and great Mannors have by Grants been alienated from the Crown and are now exceedingly diminished and impaired But this Revenue it cannot be sold it cannot be burdened with any Pensions or Annuities but comes intirely to the Crown It is now almost Fifteen years since His Majesty had any Assistance from His People and these illegal wayes of supplying the King were never prest with more Violence and Art then they have been in this time and yet I may upon very good grounds affirm That in the last Fifteen years of Queen Elizabeth She received more by the Bounty and Affection of Her Subjects then hath come to His Majesties Coffers by all the inordinate and rigorous courses which have been taken And as those Supplies were more beneficial in the Receipt of them so were they like in the use and imployment of them Another way of prejudice to His Majesties profit is this Such Arbitrary Courses Exhaust the people and disable them when there shall be occasion to give such plentiful Supplies as otherwise they would do I shall need no other proofe of this then the Irish Government under my Lord of Strafford where the Wealth of the Kingdom is so consumed by those horrible Exactions and Burdens that it is thought the Subsidies lately granted will amount to little more than half the proportion of the last Subsidies The two former wayes are hurtful to the Kings profit in that respect which they call Lucrum Cessans by diminishing his Receipts But there is a third fuller of mischiet and it is in that respect which they call Damnum emergens by increasing his Disbursements such irregular and exorbitant attempts upon the Liberties of the People are apt to produce such miserable Distractions and Distempers as will put the King and Kingdomes to such vast Expences and Losses in a short time as will not be recovered in many years We need not go far to seek a proof of this these two last years will be a sufficient Evidence within which time I assure my self it may be proved that more Treasure hath been wasted more loss sustained by His Majesty and His Subjects then was spent by Queen Elizabeth in all the War of Tyron and in those many brave Attempts against the King of Spain and the Royal Assistance which she gave to France and the Low Countries during all Her Reign As for greatness this Arbitrary Power is apt to hinder and impair it not onely at home but abroad A Kingdom is a Society of men conjoyned under one Government for the Common good The World is a Society of Kingdomes and States The Kings Greatness consists not onely in His Dominion over His Subjects at home but in the Influence which he hath upon States abroad That He should be great even among Kings and by His Wisdom and Authority so to incline and dispose the Affairs of other States and Nations and those great events which fall out in the World as shall be for the good of Mankind and for the Peculiar advantage of His own People This is the most glorious and magnificent greatness to be able to relieve distressed Princes to support his own Friends and Allies to prevent the Ambitious Designs of other Kings and how much this Kingdom hath been impaired in this kind by the late mischievous Counsels your Lordships best know who at a near distance and with a more clear sight do apprehend these publick and great affairs then I can do Yet thus much I dare boldly say that if His Majesty had not with great Wisdom and Goodness forsaken that way wherein the Earl of Strafford had put Him we should within a short time have been brought into that miserable condition as to have been useless to our Friends contemptible to our Enemies and uncapable of undertaking any great Design either at home or abroad A fourth consideration is That this Arbitrary and Tyrannical Power which the Earl of Strafford did exercise in his own Person and to which he did advise His Majesty is inconsistent with the Peace the Wealth the Prosperity of a Nation It is destructive to Justice the Mother of Peace to Industry the spring of Wealth to Valour which is the active Virtue whereby the prosperity of a Nation can only be procured confirmed and enlarged It s not only apt to take away Peace and so intangle the Nation with Wars but doth corrupt Peace and puts such a malignity into it as produceth the effects of War We need seek no other proof of this but the Earl of Straffords Government where the Irish both Nobility and others had as little security of their Persons or Estates in this peaceable time as if the Kingdom had been under the rage and fury of War And as for Industry and Valour who will take pains for that which when he hath gotten is not his own or who fight for that wherein he hath no other interest but such as is subject to the Will of another The antient encouragement to men that were to defend their Countreys was this That they were to hazard their Person pro Aris focis for their Religion and for their Houses But by this Arbitrary way which was practised in Ireland and counselled here no man had any certainty either of Religion or of his House or any thing else to be his own But besides this such Arbitrary courses have an ill operation upon the courage of a Nation by embasing the hearts of the People A servile condition does for the most part beget in men a slavish temper and disposition Those that live so much under the Whip and the Pillory and such servile Engines as were frequently used by the Earl of Strafford they may have the
dregs of valour sullenness and stubborness which may make them prone to mutinies and discontents But those noble and gallant affections which put men to brave designs and attempts for the preservation or enlargement of a Kingdom they are hardly capable of Shall it be Treason to embase the Kings Coin though but a piece of Twelve-pence or Six-pence and must it not needs be the effect of a greater Treason to embase the Spirits of his Subjects and to set a stamp and character of servitude upon them whereby they shall be disabled to do any thing for the service of the King and Commonwealth The fifth Consideration is this that the exercise of this Arbitrary Government in times of suddain danger by the invasion of an enemy will disable His Majesty to preserve himselfe and His Subjects from that danger This is the only pretence by which the Earl of Strafford and such other mischievous Counsellors would induce His Majesty to make use of it and if it be unfit for such an occasion I know nothing that can be alledged in maintainance of it When War threatens a Kingdom by the coming of a Forreign Enemy it is no time then to discontent the people to make them weary of the present Government and more inclinable to a change The supplies which are to come in this way will be unready uncertain there can be no assurance of them no dependance upon them either for time or proportion And if some Money be gotten in such a way the distractions divisions distempers which this course is apt to produce will be more prejudicial to the publique safety than the Supply can be advantagious to it and of this we have had sufficient experience the last Summer The Sixth That this crime of subverting the Laws and introducing an Arbitrary and Tyrannical Government is contrary to the Pact and Covenant betwixt the King and his People that which was spoken of before was the legal union of Allegiance and Protection this is a personal union by mutual agreement and stipulation confirmed by Oath on both sides The King and his People are obliged to one another in the nearest relations he is a Father and a Child is called in Law pars patris He is the Husband of the Common-wealth they have the same interests they ara inseparable in their condition be it good or evil he is the Head they are the Body there is such an incorporation as cannot be dissolved without the destruction of both When Justice Thorp in Edward the III. time was by the Parliament condemned to death for Bribery the reason of that Judgement is given because he had broke the Kings Oath not that he had broke his own Oath but he had broken the Kings Oath that solemn and great Obligation which is the security of the whole Kingdom If for a Judge to take a small sum in a private Cause was adjudged capital how much greater was this offence whereby the Earl of Strafford hath broken the Kings Oath in the whole course of his Government in Ireland to the prejudice of so many of His Majesties Subjects in their Lives Liberties and Estates and to the danger of all the rest The Doctrine of the Papists Fides non est servanda cum Haereticis is an abominable Doctrine yet that other Tenet more peculiar to the Jesuits is more pernicious whereby Subjects are discharged from their Oath of Allegiance to their Prince whensoever the Pope pleaseth This may be added to make the third no less mischievous and destructive to humane Society than either of the rest That the King is not bound by that Oath which he hath taken to observe the Laws of the Kingdom but may when he sees cause lay Taxes and Burthens upon them without their consent contrary to the Laws and Liberties of the Kingdom This hath been Preached and published by divers And this is that which hath been practised in Ireland by the Earl of Strafford in his Government there and endeavoured to be brought into England by his Counsel here The Seventh is this It is an offence that is contrary to the end of Government The end of Government was to prevent oppressions to limit and restrain the excessive power and violence of great men to open the passages of Justice with indifferency towards all This Arbitrary Power is apt to induce and encourage all kind of insolencies Another end of the Government is to preserve men in their Estates to secure them in their Lives and Liberties but if this design had taken effect and could have been setled in England as it was practised in Ireland no man would have had more certainty in his own then Power would have allowed him but these two have been spoken of before there are two behind more important which have not yet been touched It is the end of Government that Virtue should be cherish'd Vice supprest but where this Arbitrary and unlimited Power is set up a way is open not only for the security but for the advancement and encouragement of evil such men as are apt for the execution and maintenance of this Power are only capable of preferment and others who will not be instruments of any unjust commmands who make a conscience to do nothing against the Laws of the Kingdom and Liberties of the Subject are not only not passable for employment but subject to much jealousie and danger It is the end of Government that all Accidents and Events all Counsels and Designs should be improved to the publique good But this Arbitrary Power is apt to dispose all to the maintainance of it self The wisdome of the Council Table The authority of the Courts of Justice The industry of all the Officers of the Crown have been most carefully exercised in this the Learning of our Divines the Jurisdiction of our Bishops have been moulded and disposed to the same effect which though it were begun before the Earl of Straffords imployment yet it hath been exeedingly furthered and advanced by him Under this colour and pretence of maintaining the King's Power and Prerogative many dangerous practises against the peace and safety of the Kingdom have been undertaken and promoted The increase of Popery and the favours and encouragement of Papists have been and still are a great grievance and danger to the Kingdom The innovation in matters of Religion the Usurpations of the Clergy the manifold burthens and taxations upon the people have been a great cause of our present distempers and disorders and yet those who have been chief furtherers and actors of such mischiefs have had their Credit and Authority from this that they were forward to maintain this power The Earl of Strafford had the first rise of his Greatness from this and in his Apology and Defence as your Lordships have heard this hath had a main part The Royal Power and Majesty of Kings is most Glorious in the Prosperity and happiness of the People the perfection of all things consists in the end
for which they were ordained God only in his own end all other things have a further end beyond themselves in attaining whereof their own happiness consists if the means and the end be set in opposition to one another it must needs cause an impotency and defect of both The Eighth Consideration is the vanity and absurdity of those excuses and justifications which he made for himself whereof divers particulars have been mentioned in the course of this Defence 1. That he is a Counsellor and might not be questioned for any thing which he advised according to his Conscience The ground is true there is a liberty belongs to Counsellors and nothing corrupts Counsels more than Fear He that will have the priviledge of a Counsellor must keep within the just bounds of a Counsellor those matters are the proper subjects of Counsel which in their times and occasions may be good or beneficial to the King or Common-wealth But such Treasons as these the subversion of the Laws violation of Liberties they can never be good or justifiable by any circumstance or occasion and therefore his being a Counsellor makes his fault much more hainous as being committed against a greater Trust and in a way of much mischief and danger least His Majesties Conscience and Judgement upon which the whole course and frame of His Government do much depend should be poysoned and infected with such wicked Principles and Designes And this he hath endeavoured to do which by all Laws and in all Times hath in this Kingdom been reckoned a crime of an high Nature 2. He labours to interest your Lordships in his Cause by alleadging it may be dangerous to your selves and your posterity who by your Birth are fittest to be near His Majesty in places of Trust and Authority if you should be subject to be questioned for matters delivered in Council To this was answered That it was hoped their Lordships would rather labour to secure themselves and their posterity in the exercise of their Virtues than of their Vices that so they might together with their own Honor and Greatness preserve the Honor and Greatness both of the King and Kingdom 3. Another excuse was this That whatsoever he hath spoken was out of good intention Sometimes good and evil truth and falshood lye so near together that they are hardly to be distinguished Matters hurtful and dangerous may be accompanied with such circumstances as may make it appear useful and convenient and in all such cases good intention will justify evil Counsel But where the matters propounded are evil in their own nature such as the matters are wherewith the Earl of Strafford is charged to break a publique Faith to subvert Laws and Government they can never be justied by any intentions how good soever they be pretended 4. He alleadgeth it was a time of great necessity and danger when such Counsels were necessary for preservation of the State Necessity hath been spoken of before as it relates to the Cause now it is considered as it relates to the Person if there were any necessity it was of his own making he by his evil Counsel had brought the King into a necessity and by no rules of Justice can be allowed to gain this advantage by his own fault as to make that a ground of his justification which is a great part of his offence 5. He hath often insinuated this That it was for His Majesties service in maintainance of that Sovereign Power with which he is intrusted by God for the good of his People The Answer is this No doubt but that Sovereign Power wherewith His Majesty is intrusted for the publique good hath many glorious effects the better to inable him thereunto But without doubt this is none of them That by his own Will he may lay any Tax or Imposition upon His people without their consent in Parliament This hath now been five times adjudged by both Houses in the case of the Loans in condemning Commissions of Excise in the resolution upon the saving offered to be saved to the Petition of Right in the sentence against Manwaring and now Lutell in condemning the Shipmoney And if the Sovereign Power of the King can produce no such effect as this the Allegation of it is an aggravation and no diminution of his offence because thereby he doth labour to interest the King against the just grievance and complaint of the People 6. This Counsel was propounded with diverse Limitations and Provisions for securing and repairing the Liberty of the People This implies a contradiction to maintain an Arbitrary and Absolute Power and yet to restrain it with Limitations and Provisions for even those limitations and provisions will be subject to the same absolute power and to be dispensed in such manner and at such time as it self shall determine let the Grievances and Oppressions be never so heavy the Subject is left without all remedy but at His Majesties own pleasure 7. He alleadgeth They were but Words and no effect followed this needs no Answer but that the Miserable Distempers into which he hath brought all the three Kingdomes will be Evidence sufficient that his Wicked Counsels have had such Mischievous Effects within these two or three last years that many years peace will hardly repair those losses and other great Mischiefs which the Common-Wealth hath sustained 8. These Excuses have been collected out of the several Parts of his defence perchance some others are omitted which I doubt not have been Answered by some of my Collegues and are of no Importance either to perplex or to hinder your Lordships Judgment touching the hainousness of this Crime The 9 th consideration is this That if this be Treason in the Nature of it it doth exceed all other Treasons in this That in the Design and Endeavour of the Author it was to be a constant and permanent Treason other Treasons are Transient as being confined within those particular Actions and Proportions wherein they did consist and those being past the Treason ceaseth The Powder Treason was full of horror and maglignity yet it is past many years since The Murder of that Magnanimous and Glorious King Henry the Fourth of France was a great and horrid Treason and so were those manifold Attempts against Queen Elizabeth of blessed Memory but they are long since past the Detestation of them onely remains in Histories and in the minds of men and will ever remain But this Treason if it had taken effect was to be a standing perpetual Treason which would have been in continual Act not determined within one time or Age but transmitted to Posterity even from one generation to another The 10 th Consideration is this That as it is a Crime odious in the Nature of it so it is odious in the Judgment and Estimation of the Law To alter the setled Frame and Constitution of Government is Treason in any state The Laws whereby all other parts of a Kingdom are preserved should be
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
by Act of Parliament not only since the first of Hen. 4. which were many but all before 1 Hen. 4. even until the 25 E. 3. by express words 2. By express words it takes away all declared Treasons if any such had been in Parliament Those for the future are likewise taken away so that whereas it might have been doubted whether the Statute of the 1 H. 4. took away any Treasons but those of the 22 d and 23 d years of R. 2. This clears it both for Treasons made by Parliament or declared in Parliament even to the time of making the Statute This is of great use of great security to the Subject so that as to what shall be Treason and what not the Statute of 25 E. 3. remains entire and so by consequence the Treasons at the Common Law Only my Lords it may be doubted whether the manner of the Parliamentary proceedings be not altered by the Statute of 1 H. 4. Chap. 17. and more fully in the Parliament Roll Number 144 that is whether since that Statute the Parliamentary power of Declaration of Treasons whereby the inferiour Courts Receive Jurisdiction be not taken away and restrained only to Bill that so it might operate no further then to that particular contained in the Bill that so the Parliamentary Declarations for after-times should be kept within the Parliament it self and be extended no further Since 1 H. 4. we have not found any such Declarations made but all Attainders of Treason have been by Bill If this be so yet the Common-Law Treasons still remaining there is one and the same ground of reason and equity since the 1 H. 4. for passing a Bill of Treason as was before for declaring of it without Bill Herein the Legislative power is not used against my Lord of Strafford in the Bill it s only the jurisdiction of the Parliament But my Lords because that either through my mistaking of the true grounds and reasons of the Commons or my not pressing them with apt agreements and presidents of former times or that perchance your Lordships from some other Reasons and Authorities more swaying with your Lorpships Judgments then these from them may possibly be of a contrary or dubious opinion concerning these Treasons either upon the Statutes of 25 E. 3. 18 H. 6. or at the Common-Law My Lords If all these five should faile they have therefore given me further in Command to declare to your Lordships some of their Reasons why they conceive that in this case the meer Legislative Power may be exercised Their reasons are taken from these three grounds 1. From the nature and quality of the Offence 2. From the Frame and Constitution of the Parliament wherein this Law is made 3. From Practices and Usages of former times The horridness of the Offence in endeavouring the overthrowing the Lawes and present Government hath been fully opened to your Lordships heretofore The Parliament is the Representation of the whole Kingdom wherein the King as Head your Lordships as the most Noble and the Commons the other Members are knit together into one Body Politick This dissolves the Arteries and Ligaments that hold the Body together the Lawes He that takes away the Lawes takes not away the Allegiance of one Subject alone but of the whole Kingdom It was made Treason by the Statute of 13. Eliz. for Her time to affirm that the Lawes of the Realm do not bind the Descent of the Crown no Law no Descent at all No Lawes no Peerage no Rankes or Degrees of men the same Condition to all It 's Treason to kill a Judge upon the Bench this kills not Iudicem sed Iudicium He that borrowed Apelles and gave Bond to return again Apelles the Painter sent him home after he had cut off his Right Hand his Bond was broken Apelles was sent but not the Painter There are Twelve Men but no Law there 's never a Judge amongst them It 's Felony to Imbezle any one of the Judicial Records of the Kingdom this at once Sweeps them all away and from all It 's Treason to Counterfeit a Twenty shillings piece here 's a Counterfeiting of the Law we can call neither the Counterfeit nor True Coyn our own It 's Treason to Counterfeit the Great-Seal for an Acre of Land no property hereby is left to any Land at all nothing Treason now either against King or Kingdom no Law to punish it My Lords If the Question were Asked at Westminster-Hall Whether this were a Crime punishable in Star-Chamber or in the Kings-Bench by Fine or Imprisonment they would say it went higher If whether Felony they would say that 's for an Offence only against the Life or Goods of some one or few persons It would I believe be answered by the Judges as it was by the Chief Justice Thurning in 21 R. 2. that though he could not Judge the Case Treason there before him yet if he were a Peer in Parliament he would so Adjudge it My Lords if it be too big for those Courts we hope it 's in the right way here 2. The second Consideration is from the Frame and Constitution of the Parliament the Parliament is the great Body Politick it comprehends all from the King to the Beggar if so My Lords as the Natural so this Body it hath power over it self and every one of the Members for the preservation of the whole It 's both the Physitian and the Patient If the Body be distempered it hath power to open a Vein to let out the corrupt blood for curing it self if one Member be Poysoned or Gangred it hath power to cut it off for the preservation of the rest But my Lords it hath often been inculcated that Law-makers should imitate the Supreme Law-giver who commonly warnes before he strikes The Law was promulged before the Judgment of death for gathering the Sticks No Law no Transgression My Lords To this rule of Law is Frustra legis auxilium invocat qui in legem committit from the Lex talionis he that would not have had others to have a Law Why should he have any himself Why should not that be done to him that himself would have done to others It 's true we give Law to Hares and Deers because they be Beasts of Chase It was never accounted either cruelty or foul play to knock Foxes and Wolves on the head as they can be found because these be Beasts of Prey The Warrener sets Traps for Polcats and other Vermine for preservation of the Warren Further my Lords most dangerous Diseases if not taken in time they kill Errors in great things as War and Marriage they allow no time for repentance it would have been too late to make a Law when there had been no Law My Lords for further Answer to this Objection he hath offended against a Law a Law within the endeavouring to subvert the Lawes and Polity of the State wherein he lived which had so long and with such
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-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
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
Rates was procured within a month of the Patent but God knows whether it were not within the compass of his intentions to take the Patent and therefore whether he were not the Instrument of raising Rates it rests in your Lordships judgement and all that hear me I am sure the benefit redounded to himself and so here is an Arbitrary Government in imposing and forcing to pay for that I desire your Lordships to take with you and he might as well have raised nineteen shillings on a pound as nine pence or three pence by the same rule of Law The next Article in number was the Eleventh and I would be glad my Lord had not mentioned it it concerns the Pipe-staves wherein he pretends he did the King great service and that he sayes was the reason of our passing over it but that was not the reason it had been a foul business if we had opened it but having enough besides we made not use of it for the substance of the proofs by multiplicity of Witnesses had been that the parties themselves that bought the Pipe-staves for four pound odd money were fain to sell them to his Instruments for six pounds and after to buy them again for ten pounds else there must be no Licence to export them but that I would not have mentioned if he had let it slip over I come to the Twelfth Article and that is concerning the Tobacco wherein he pretends the Kings service and if my memory fail me not the desire of the Parliament that he should take this into his hands for the King My Lords Therein under his favour he hath mis-recited the Evidence and spoken that he cannot justify for he can shew no such desire of the Parliament It is true there was a desire of the Parliament that the King would be pleased to take his Customs into his hands for the advancement of his Revenue that it might go to maintain himself and he might not be abused and others live by it but to take the Tobacco into his hands he never did nor can produce a witness to prove such their desire and therefore under favour he fixes a wrong upon the Parliament and injures your Lordships by his reciting that he neither did nor can make good for there was no such thing But if you observe the course he takes he makes Proclamation to hinder the importing of Tobacco into Ireland that if it be imported it must be sold to him at his own rate and by this means he first hinders the liberty of the Subject from doing what the Law allows him and so takes on him an Arbitrary Power And Secondly he ingrosses this commodity to himself deceiving His Majesty to whom he professeth so much fidelity for whereas there is 5000 l. Rent to the King he by the computation of Merchants receives near 14000 l. a year And because their computations are not always true I do not care if I allow him 40000 l. mistaken and then he will gain near 100000 l. so that if he intends the Kings benefit it is wonder he told not His Majesty of the great profit that might thereby have risen and let him partake of it as in Justice he should have done according to the Trust reposed in him but you have heard of no such matter And surely my Lord of Strafford would not have omitted it if it had been for his advantage especially in this presence where he omits nothing to clear himself or to insinuate with His Majesty Now I come to the Thirteenth Article the Article concerning Flax which I know is fresh in your Lordships memories and I believe will be so in the memories of the Subjects of Ireland for many years how he ingrossed it into his hands and interrupted the Trade of the poor People whereby such miseries and calamities befell many of that Nation that as you have heard it proved thousands dye in ditches for want of Bread to put in their mouths And whereas he pretends that this was proved but by one witness and that man to be imprisoned and of no credit though he was his own instrument your Lordships remember Sir Iohn Clotworthy his testimony and anothers and his own Warrant produced and acknowledged here to justify the execution of it and such a thing was thereby taken into his own hands that I profess I never heard the like that the poor people should be constrained to use their own as he pleased and that pleasing of himself laid an impossibility on the people to execute his pleasure which was a bondage exceeding that of the Israelites under the Egyptians for there was not laid so much upon the Children of Israel but there was a possibility to perform they might with much labour perchance get stubble to burn their Brick but the Natives here must have a charge laid upon them without possibility to perform and the disobedience must cost them no less than the loss of their Goods which drew with it even the loss of their lives for want of bread This was not proved by only one witness but by many And your Lordships remember the remonstrance of that Parliament of Ireland which declares it to a greater height than I have opened it The Fifteenth Article is that of Levying War upon the Kings Subjects expresly within the Statute of 25 Edw. 3. and 18 H. 6. Your Lordships have heard the Warrant proved by the party himself to whom it was directed whereby Power was given to lay Soldiers upon any party that did not obey my Lord of Straffords Orders at the Council Table but not to circumscribe him to a certain number but the Sergeant at Arms and his Ministers might lay as many as they would It is true this Warrant was not it self produced but a copy was offered which was not read and therefore I will not offer it to be proved but the party that executed the Warrant it self proves it to be under the Hand and Seal of my Lord of Strafford he proves the express authority of it which was to the effect I opened three or four more who saw and read it proved the same and that it was under the Hand and Seal of my Lord of Strafford that accordingly it was executed upon divers of the King's Subjects it was proved by three witnesses expresly in the point how by colour of this Warrant the Sergeant at Arms and his Officers sent Soldiers to lye in the Houses and Lands of the Kings Subjects how the Owners were thereby forced out from their own Habitation how their Goods were wasted and devoured their Corn and Victuals eaten up and the Soldiers never left them as long as any part of their Estates remained to maintain them My Lord of Straffords defence is That it hath been used before his time in Ireland wherein he hath again mis-recited for he did not offer a proof nor a particle of a proof that ever any man did know Soldiers laid upon any party for refusing to
appear to a Warrant or for other contempt at Council-Table before himself did it but he offered to prove That formerly Soldiers were sent against Rebels and that after they were declared to be Rebels and that justly too and he proved an use and custom to force men to pay Contribution-money due to the King but that was by consent of the people who granted a Contribution of 20000 l. a year for increase of the Kings Revenue and that it might not be upon Record in the Exchequer and so claimed as due in time to come they consented that Soldiers should be laid upon them that refused it and the word Consent is within the Statute of 18 H. 6. Again did he prove all manner of Rents were levied by Soldiers no such thing but such Rents as were designed for the payment of the Army he proved by Sir Arthur Terringham the laying of Soldiers once for the payment of a fum of Money but Sir Arthur being demanded whether it were the King's Rents or comprehended within the same general Rule he could make no answer thereunto Your Lordships remember he says He did not know it and therefore probably it was the Kings Rents and doubtless it was so But if he had produced Precedents it could not be an authority for Treason that if people did not appear to his Orders he must levy War against the Kings Subjects and for his extenuation of the War that the same was of no great danger there being not above five or six Soldiers laid at a time I would to God the people oppressed by it had cause to undervalue it I am sure four or six Musquetiers are as strong to oppress a man as four thousand so the matter of Fact is strongly and expresly proved Besides though there came not above four or five to a house yet the authority given to the Sergeant was general he might have brought more if he had listed and in truth he brought as many as the Estate of the party would maintain And as to the not producing of the Warrant I have already answered it If it were in the case of a Deed wherein men call for witnesses it were something but God forbid that the Treason should be gone and the Traitor not questionable if his Warrant can be once put out of the way The next Article which is laid to his charge is For issuing out a Proclamation and Warrant of restraint to inhibit the Kings Subjects to come to the Fountain their Sovereign to deliver their complaints of their wrongs and oppressions Your Lordships have heard how he hath exercised his jurisdiction and now he raises a battery to secure and make it safe If he do wrong perhaps the complaint may come to the Gracious Ears of a King who is ready to give relief and therefore he must stop these cries and prevent these means that he may go on without interruption and to that end he makes Propositions here That the Kings Subjects in Ireland should not come over to make complaint against Ministers of State before an address first made to himself It is true he makes a fair pretence and shew for it and had just cause of approbation if he intended what he pretended But as soon as he came into Ireland what use made he of it he ingrosses the proceedings of almost all the Courts of Justice into his own hands and so pre-possesses the King by a colourable proposition and prevents their coming over before they had made their address to himself and then he becomes the wrong doer and issues Proclamations for the hindring of the King's Subjects to seek redress without his leave which is as great a proof of his design and as great an injury to the people governed under a Gracious Prince as a heart can conceive And what his intention was in exhibiting this Proposition it will appear in the sentence of a poor man one David who was censured and most heavily Fined for coming over into England to prosecute complaint against my Lord of Strafford It is true that this was not the cause expressed but this was the truth of the matter Your Lordships remember a clause in the Order at Council-Board whereby is set forth the cause wherefore the party is not sentenced which I never saw in an order before nor should now but that my Lord foresaw there was danger in it that he might be charged in this place for the fact and therefore puts in negatively why the party was not censured Clausula inconsulta inducit suspitionem And how defends he this Article he sayes his predecessors issued Proclamations to hinder the Kings Subjects from going over lest they should joyn with O-Neal and Tirconnell beyond Sea and so it might be dangerous to the State but because they may joyn with Foreigners shall they therefore not come to the King to make just complaint What this argument is I refer to your Lordships judgments Then he pretends a former precedent affirming that the like instructions were given to my Lord of Faulkland but was there any that none should come to their Sovereign to make their just appeal if injured Surely there was never any such Instruction before and I hope never will be again The next Article is the Nineteenth and now when he had so plentifully exercised his Tyranny over the Lives the Liberty and the Estates of the King's Subjects A man would think he could go no further But see a Tyranny exercised beyond that and that is over the Consciences of men hitherto he dealt with the outward man and now he offers violence to the inward man and imposes an Oath upon the Kings Subjects and so exerciseth a Tyranny over the Consciences of men And setting aside the matter of the Oath if he hath authority and power to impose such an Oath as he shall frame he may by the same power impose any Oath to compell Consciences He pretends a Warrant from His Majesty to do it but the Kings Ministers are to serve the King according to Law and I dare be bold to say and we have good reason to thank God for it if any of the Kings Ministers tell him that any Command he gives is against Law there is no doubt but in his Goodness and Piety he will withdraw his Command and not enforce execution and therefore if there were an error the King is free and the Ministers to be justly charged with it But there was no Command from the King to compel and enforce them to take the Oath by the power of the Star-Chamber to commit them to prison to impose heavy Fines and tyrannize over them all which he did in the Case of Steward And now one would have thought he had acted his part when he had acted as much as lay in his own power and yet he goes beyond this he was not content to corrupt all the streams which was not a diverting of the course as he spoke in his answer for he not only
them Compel us to submit to an Arbitrary Power And so Mr. Whitlock concluded that he should trouble their Lordships no further at this time having answered most of the things my Lord of Strafford hath insisted on and if he hath forgotten them he hopes he shall be holpen by some of his Colleagues But he supposes it appeares clearly that my Lord of Straffords intentions were to subvert the Laws to set a Division betwixt the King and His People and though His Lordship is pleased to make something slight of it as not to be matter of Treason yet this compared with his other Actions declaring his Intention and Designs it proves it not onely to be Crimen laesae Majestatis but also Reipublicae Mr. Maynard seconded Mr. Whitlock and said That something he should presume to add My Lord of Strafford excuses himself because he was not alone in the Council against Scotland Thus far he was alone the rest concluded upon a Hipothetical proposition if the Demands were unreasonable then a War was fit But in two Propositions he was a lone First That before the Reasons were heard the unreasonable Demands of Subjects in Parliament were a sufficient ground for the King to put Himself into a Posture of War And Secondly That these Demands were not matter of Religion but struck at the Root of Government And when he Answers that Point he takes it for granted That if he sayes they struck at the Root of Government the Resolution was just In his Defence he insists upon two things matter of Excuse and matter of weakning of the Testimonies produced For the matter of Excuse of what he said to the King in private it was testified onely by one who was then present and at other times in Council viz. That there would be no happiness till there was a good Agreement betwixt King and People Whence Mr. Maynard observed That they think not that all he spake is nought but they produce Proofes that he did speak nought they think him not so unwise upon all occasions to speak words of so high a Consequence He hath taken another course to weaken their Testimonies and nothing is so strong but if that course be allowed that he uses it will take off the strength of it Mr. Maynard said He hath heard of breaking a thing to pieces by taking to pieces and if my Lord of Strafford shall take every parcel of the proof and say this is a single Testimony This is matter of discourse This I speak at my Table This in my Chamber taking them asunder he may answer them asunder But if he hath in his Chamber and at Counsel and in Bed and on all occasions presumed to run so high on the Liberty of the Subject and then think that because he speaks sometimes good words all must be paistered up he must give us leave to differ from him in that The Witnesses say he spake the words Candidè Castè some speak to the occasion most say they were spoken at several times both before and after the Parliament and if they must be applyed only to what is lawful what need these Adverbs to make it good Truly he may say it was done Cautè it was not done Castè in this Cause For that my Lord hath said divers Witnesses were by and heard not the words deposed by Mr. Treasurer What Argument is this That when divers are by that which divers do not remember is not true My Lord confesses himself sometimes that Witnesses do not remember all things therefore it may be true that something may be spoken which Witnesses remember not else he confesses against himself which is not true There be other things wherein the Witnesses do concurr and that my Lord speaks not to though he speaks to that which my Lord of Northumberland and the rest do not remember and therefore it is no argument to say some were by and heard not what was spoken The sum of the Case will come to this There was a Parliament sitting he a little before casts out words about raising Money where he must have Adverbs to make it good he must raise Money in an extraordinary way the Parliament is broken and a necessity is made and Soldiers must be brought in to make good these ways now take these asunder and my Lord of Strafford will make it a good Action But as Mr. Maynard shewed they conceive all my Lord of Strafford hath done ended in that design he began it before he came over and though they believe His Majesty designed it for Scotland they speak not what His Majesty meant but what my Lord of Strafford counselled that is the thing he is charged with And whereas his friends and those nearest him spoke of this Fire that hath burst out he sayes this concerns him not Indeed he is very unhappy if his Brother or bosome friend must be the man that must accuse him But Noscitur ex Comite qui non cognoscitur ex se. It comes out of his own mouth and his friends expressions When Sir George Ratcliffe is asked how Money will be had He Answered We will make peace with the Scots and that is the worst of evils Surely he that thought a Peace betwixt the two Nations the worst of evils deserves not the applause that hath been given him in this place And if that comes to pass this must have relation to that of which he spake which is the levying of Money by force the King hath 30000 Men and 400000 l in his Purse and a Sword by his side and if he wants Money who would pity him Lastly My Lord of Strafford came to speak of their Lordships priviledge that if words spoken in Council should be pressed it would bring a disability on their Noble Lordships to enter into those imployments but that can be no excuse to say that he must take notice of things honourable and for every thing that a Man speaks at Council he must not be brought into Question It is not every thing nor every thing that is illegal that is brought into Question But if he advise to bring an Army on us to Master all we have and he must not be questioned Where then are their Lordships Priviledges and Who knows how soon there may be no difference betwixt a Peer and another In all this Defence my Lord of Strafford hath not offered any Defence for the Scandal which he put upon the last Parliament which to the last breath to the last minute of their Continuance did advise and consult of the Supply of His Majesty yet he calls this a denying of the King a forsaking of the King an undutiful stubborness and what else his high Speech and Eloquence pleases to misconstrue their Actions with To that Stat. 1 E. 6. Mr. Maynard said He shall not need to give any further Answer for if it be looked to it will appear nothing to concern this Case there being great difference between words spoken