The Fourth day.
Thursday, March 25. 1641.
The Third Article.
That the Realm of Ireland having been, time out of mind, annexed to the Imperial Crown of this His Majesties Realm of England, and governed by the same Laws: The said Earl being Lord Deputy of that Real, to bring His Majesties Liege Subjects of that Kingdom likewise into divide of His Majesties Government, and intending the Subversion of the fundamental Laws, and settled Government of that Realm, and the destruction of His Majesties Liege people there; did upon the 30th day of September, in the Ninth Year of his now Majesties Reign, in the City of Dublin (the chief City of that Realm, where His Majesties City Council; and Courts of Justice do ordinarily reside, and whither the Dobility and Gentry of that Realm do usually resort for Justice,) in a public Speech, before divers of the Dobility and Gentry of that Kingdom; and before the Mayor, Aldermen, and Recorder, and many Citizens of Dublin, and other his Majesties Liege people; declare and publish, that Ireland was a Conquered Nation, and that the King-might do with them what he pleased: And speaking of the
Charters of former kings of England made to that city: De further then said, that their charters' were nothing worth, and did find the king no farther than be pleased.
E. of Strafford.
I Humbly move your Lordship, That since diverse were spoken by the Witnesses Yesterday, which I conceiving not material as to the Charge, forbore to answer to them, whereby I understand I have received some prejudice; therefore I desire I may now give satisfaction therein, being well able to do it.
We hope your Lordships remember your own Order. We desire he may not have that allowed him to day, which was not granted him yesterday.
The Evidence having been given for His Majesty, my Lord of Strafford having answered, and the Commons Replied: Touching which the Lord Steward declared, that the due Course had been followed; The Evidence being given for the King, my Lord having Answered, and a Reply made.
E. of Strafford.
My Lord, this is a Court of Honour, which is a Rule to itself, and no other Court is a Rule to it; and therefore if any thing were omitted one day, through want of memory, your Lordships may in your Nobleness allow another. Your Lordships being your own Judges and Rule, and most sit it should be so. I do therefore beseech your Lordships, that I may have liberty to offer new matter formerly omitted, else I shall be on great disadvantage, being to answer on a suddain, and had no time till Friday last to being in Witnesses, and many perhaps may come up before my Trial ends.
We desire in the Name of the Commons of England, we may proceed according to the Rule propounded, that his Lordship may not invert the course on pretence of new matter, for then it will be impossible for us to make good the Charge:, (Which was accordingly Resolved) adding farther, that there hath been ostentation of more of more Evidence, We desire it may make no Impression with your Lordships.
We shall open the Third Article, containing very seditious words, spoken by my Lord of Strafford, in a publick Assembly, to the Kings Subjects, That Ireland is a Conquer'd Nation, That the King may do with them what he pleaseth: And speaking of the Charters of Dublin, He said, The Charters are nothing worth, and binding the King no farther than he pleases.
E. of Strafford.
I humbly desire, My Lords, that the Witnesses may stand in another Room from the Committee, it being not usual in other Courts, though I dare not offer any Court to be a Rule to this, and that your Lordship will direct the question.
We have been sensible his Lordship hath been large in his Imputations. We shall behave ourselves as becomes us in duty; we speak nothing to the Witnesses, but what any man may hear, and we must tell them what they must peak to, and less we cannot do.
E of Strafford.
I am the loathest man in the World to speak any thing that may give offence in general or particular; neither did I charge any, only desired that they might stand clear, and that the question might come immediately to them from your Lordship.
Robert Kennyday produced and sworn.
E of Strafford.
I humbly offer to your Lordships, That this Witness hath been questioned for many Misdemeanors, and Extortion in execution of his Place, as Remembrancer of the Exchequer, and for this was sentenced; and that he knew he wished his Lordship no great good; and left it to their Lordships, Whether he be a fit Witness, adding it to be his Misfortune, That all that have suffered under the Kings Justice in his Ministry, are ready to be Witnesses against him.
My Lords, if he be guilty of Extortion, it follows not that he is therefore guilty of Perjury, neither doth any thing strand proved; But if he hath taken a sum of Money, that makes him not to be believed when he gives Testimony.
Robert Kennyday a Witness.
Robert Kennyday being examined what words my Lord of Strafford spake in Dublin, of Ireland, Whether it was Conquer'd Nation, and what he said of the Charters of Dublin, and when.
He answered, That 30 of September, 1633. he was the Kings Remembrancer in Ireland, and that day the new Mayor of Dublin was presented to my Lord. The Recorder of the City making a Speech, touching the Presentment of the Mayor, cited many of the Favours and Graces of the Kings and Queens of England, and, among the rest, one Charter, wherein he alledged was contained; That no Lieutenant, Deputy, or Governor for the time being, or any Justice or Justices could assess, or lay any Soldiers on the City of Dublin, without their consent. That after the Recorder had made an end of Speaking, my Lord Lieutenant was pleased to Answer him in many particulars: Among the rest, he told them, You are a Conquer'd Nation, and the King may do to you what he pleases, and for your antiquated Charters, they bind nothing farther than pleases Him.
The Witness added some things, to take off the Aspersions cart on him by his Lordship, saying, He was never brought to Censure.
Being asked on my Lord of Strafford's Motion, whether he said they were not void by misusage, or the like.
He answered, No truly, Not a word that he heard.
Richard Earl of Cork produced and sworn.
E. of Strafford.
I must profess, My Lords, my sorrow and unwillingness to speak my Exceptions to the Earl of Cork, as conceiving him no competent Witness, in respect of an Information exhibited against him in the Castle-Chamber, by the Kings Attorney there, which I desire may be read, and is, I will not say in all the points of it, but so far acknowledged, that confesses himself, under his Hand and Seal, to be in the mercy of the King, and desires he may be made the Object of his Majesties Compassion, not of His Justice. And when your Lordships shall fee the nature of it, I Appeal to your Lordships, Whether my Lord of Cork shall be admitted as a Witness against me, especially he being a little displeased, and I am for it;
for something done in the Cause, he giving 15000l. for a Composition which the King had.
There are two grounds of my Lord of Straffords Exception to the Earl of Cork's Testimony, as I conceive. First, His Censure, or questioning upon the Information against him in the Castle-Chamber, which we have heard to be much of the nature of the Star-Chamber here: And that part we suppose, was cleared by Your Lordships wisdom yesterday; That not a Censure, much less an Information in the Star-Chamber, should be fit Exception against a Witness. The other part is, the ill will which my Lord of Cork, may bear my Lord of Strafford on that occasion. Truly, (My Lords) if ill will, and offence against my Lord of Strafford should be an exception and prejudice to a Witness, I am afraid there will be few in the three Kingdoms, whose Testimonials will not be prejudiced. But this I humbly offer to Your Lordships likewise, My Lord of Cork is a Privy Councellor to His Majesty, and made a Privy Councellor since by his Majesty; and certainly it is not seemly, to have that Reproach cast on such a Person, that for a Prosecution in the Star-Chamber, he should be made an uncompetent Witness.
The reading of the Information being hereupon denied, My Lord of Cork was asked, What words he heard my Lord of Strafford speak touching Ireland being a Conquered Nation, and that the Charters of it were of no value, farther than it pleased the King to make them.
Lord Cork a Witness.
His Lordship answered, and first desired leave to speak a word, hoping he should do no wrong to any man: That when he had obtained my Lords License, under the Great Seal, to come over hither, he came with as great a Resolution never to complain of any sufferings he had, or Petition against him, as any man did, and left all his Papers and Writings behind him, that he might have nothing to move him against my Lord of Strafford, but to do him all the service he could.
To the question, his Lordship said, That all he can say, is this, that he was present that day the Mayor of Dublin was presented to my Lord Deputy that then was, and the Recorder set forth the Great Charters they had from the several kings of England; and fell on that matter of placing Soldiers in Dublin, without their consent; That my Lords Answer was, You must understand, Mr. Recorder, Ireland is a conquered Nation, and the King may give them what Laws he pleases. And then going forward with the Charters, he said, They be old Antiquated Charters, and no farther good than the King is pleased to make them: To that sence (he said)he is sure.
We desire to observe to Your Lordships, That this was not the only time; he spoke the very words in effect, to the whole Kingdom afterwards, in Parliament.
Lord Gorminstone a Witness.
The Lord Gorminstone produced and sworn: Being asked whether he heard my Lord of Strafford speak words to the effect as aforesaid, That Ireland was a conquered Nation, &c.
His Lordship Answered, That he remembers, that in the 10th Year of the Kings Reign. 1634. on occasion of a Petition presented to my Lord Lieutenant, in behalf of the country (as far as his remembrance leads him) from the House of Commons, desiring the benefit of some Graces
His Majesty had been pleased to confer on them, and he in the open Parliament, sitting under the Cloth of State, in presence of both houses, told them Ireland was a conquered Nation, and they must expect Laws as from a Conqueror: And the Instructions granted from His Majesty for settling the Government of that Kingdom, were procured from a company of narrow-hearted Commissioners.
Being asked on my Lord of Strafford's motion, when these words were spoken, whether the first day of the Parliament, or at any other time:
His Lordship answered, That to his best remembrance, it was not the first day of the Parliament.
My Lord of Strafford saying it was at the opening of the Parliament, and the second day; my Lord Gorminstone being further asked about the time:
His Lordship answered, He knew not whether it were the second day, or another day; but the particular words he took notice of; and it was in presence of both Houses of Parliament, the Speaker standing at the Barr.
The Lord Killmallock produced, and Sworn; and interrogated touching the same words.
Lord Killmallock a Witness.
His Lordship answered, That he was a Member of the Commons House, the 10th and 11th of the King, and the House of Commons Petitioned the then Lord Deputy, the Earl of Strafford, for the gaining of the Act of Limitations, for the confirming of their Estates, amongst other Graces granted to the Agents for that Kingdom, in the fourth year of the King. These Graces he answered to in writing; and on the second or third day after, came into the House of Lords, and there sent for the Commons; and in his Speech (amongst other things, I well remember, and to my grief, and to the grief of that kingdom) he uttered these words, That that Kingdom was a conquered Nation, (the words as he remembered) and therefore they must expect Laws as from a Conqueror; adding further, that the Book of Instructions, established in King James his Reign, for the orderly Government of the Courts of Justice in that Kingdom, were Instructions contrived and procured by a Company of narrow-hearted Commissioners, who knew not what belonged to Government.
Sir Pierce Crosby being asked touching the same words,
Sir Pierce Crosby a Witness.
Answered, That he very well remembred the words, as they had been spoken by the Nobleman that had been examined before him; My Lord of Strafford, then Lord Deputy of Ireland, in the hearing of both Houses said, That Ireland was a conquered Nation, and that the Conquerour should give the Law. He added further, that the Book of Instructions for the Government of that Kingdom, was drawn up, or procured, by the means of some narrow-hearted Commissioners, meaning those Commissioners that were employed by Commission from the King out of the House of Commons; being a select Committee, whereof there was one that is now a Noble Member of this House, that sits on the Earls Bench: And that he hath heard many of both Houses repeat the same words as spoken by him.
And so the Commons concluded the Article, expecting my Lord of Straffords Answer.
After a quarter of an hours respit, my Lord of Strafford began his Defence as followeth:
E. of Strafford.
First, I desire to open two points set forth in my Answer, which under favour, I must stand to, as that by which I must stand or fall. First, That the Kingdom of Ireland, (as I conceive) is governed by Customs and Statutes, and Execution of Martial Law, and Proceedings at Council-Board, in a different manner from the Laws of England. Secondly, That touching the Charters, I said these Charters were void, and nothing worth, and did not bind the King further than he pleased; both which I hope to make good.
The other Business, that comes in De novo, is no part of my Charge, and therefore I hope will not be laid to my Charge.
I observe in the beginning of this part of the Charge that concerns Ireland, That the Governours for the Crown of England, that have been in Ireland, in all Ages almost, have had these misfortunes, That the Native Subjects of that Country have not been propitious towards them. I instance in the case of Sir Jo. Perott, who on Testimonies here, was Attainted of Treason in a Legal ordinary way of proceeding, whereupon he lost his Estate, though not his Life; and afterwards it was confest, there was little truth in all that Accusation.
Next, my Lord of Faulkland, against whom, many of the witnesses that I think will come against me, informed; as Sir Pierce Crosby for one, my Lord Mountnorris for another, and divers others; who had so prejudicated me when I went into Ireland, in their Opinion, by the generality of their Charge, that I was a little distrustful whether it was not so: And thus much I have spoken once before His Majesty at the Council-Board, on another occasion, and now speak it to Your Lordships, to the Honour of that Person, that is now with God, my Lord of Faulkland, notwithstanding all the heavy cries that were against him, and the wrongs and injuries laid to his Charge, I had the fortune to have all the Examinations whereupon they proceeded, and looked over them all; and now I protest, and call God to witness, not any way as making to me, I found the said Lord to have proceeded as Honourably, Justly, and Nobly, to his understanding, as any man could do; and yet was decryed as much as any man could be. And so I beseech Your Lordships to consider me the Kings Servant; and that in the Administration of the Commands and Justice intrusted with me, I had occasion to give offence to many; and that it hath been the ill fortune of those that have been Governours there, when they have left the Government, not to be so well reported as otherwise they might be.
Besides, There is nothing in this Charge can possibly amount to Treason, admit all to be as it is laid, though perhaps to a Misdemeanour.
That if it be no Treason, it will fall to be but Misdemeanour; and then I conceive, it stands with the Justice and Practice of this Court, to allow Councel and Witnesses, which I am debarred from, by the involving me under the general Charge of Treason; and having no further time to prepare, than since Friday last.
That though before, I durst not say Your Lordships were bound by Rules of any Judicature, but stood to Your own Honour and Nobleness, and were a rule to Your selves, (and herein I take your Lordships to witness) yet since the Gentlemen at the Barr, have prest the rules of other Courts, I desire leave to offer, That in all ordinary Courts of Judicature that ever I heard of, where the Criminal party doth Answer,
and that Answer is not replyed to, nor he admitted to make his proof, the Answer of the party is taken and confest; from which universal Rule of Justice, no man can shew him a transgression: And therefore, since I cannot be admitted my proofs, it being impossible to fetch Witnesses out of Ireland since Friday last, my Answer, I conceive, ought to be admitted, and the Charge taken as I confest it, not as it is on proof.
Saving to my self, that I said I would go on to give the best Answer I could, on a sudden, professing, That if I had had time, I am confident, through the mercy and goodness of God, and the Innocency of my own heart, I should be able to clear my self of Treason (the greatest Crime between man and man) towards His Majesty, and towards his People,(my heart being innocent of it; and never having suggestion or thought, but for the Greatness and Honour of His Majesty, and the Prosperity and blessed Estate of His People, all the days of my life; and ever desiring the best things, and never satisfied I had done enough, but did always desire to do better) but also of all other foul Crimes of Injustice or Oppression: Errours I may have many; perhaps my Tongue hath been too free, my Heart perhaps hath lain too near my Tongue; but God forbid every word should rise up in Judgment against me. If every word that's spoken amiss should be observ'd, who is able to endure it; for words spoken, ten, twelve, eight or nine years ago, to be brought in Judgment of me, is a very heavy Case; and I beseech your Lordships to turn the Case inward, and to tell me if it be not a hard Case to be put upon such an Examination.
I shall observe farther, that words ought to be charged within a certain time by the Proviso in the Stat. in E. 6. time, they must be brought in question within 30 days as I take it, which Proviso stands good in Law; but I go now into a Learning that God knows I have little skill of; to this I desire my Counsel may in due time be heard, to open and Plead. In the mean time I desire to say, that if popular actions must be concluded within a year or two at the most, sure words should be questioned within a less time.
I shall proceed to maintain the truth of my Answer, That Ireland is not governed by the same Laws that England is; and for that I shall read a few words in my Lord Cooks Learning (which God knows I understand not) it is in Calvins Cafe; where the words are, So as now the Laws of England, became the proper Laws of Ireland. And therefore because they have Parliaments holden there, whereat they have made divers particular Laws, as it appears in the 20 H. 6. 8. and 20. and in Ed. Dyer 360. And for that they retain to this day divers of the ancient Customs, the Book of 20 H. 6. holds, That Ireland is governed by Laws and Customs separate and diverse from the Laws of England.
Therefore in all things belonging to my Charge that came out of Ireland, I hope Your Lordships will take along with you the consideration of the Customs and Practices of that Kingdom, and not judge me according to that which hath been the Custom and Practice of the Kingdom of England.
In the second place, I come to the words of Ireland being a conquered Nation; The words laid in the Charge being, that I should say, That Ireland was a conquered Nation, and the King might do with them what he pleased.
And first, I should do extreamly ill to the Honour of the English Nation, and to the memory of divers of Your Lordships Noble Ancestors, if
I should not both say and think, that Ireland is a conquered Nation; when here's mention made in the Laws, and in the Acts of state, of English Rebels, and Irish Enemies, certainly there is something in that; for till the Kings of England gave them the advantage and benefit of the Laws of England, it is well known, they were held Irish Enemies, and so termed and stilled in all the Records one shall meet withal in those times. And that it was a conquered Nation, I have very good Authority in the Statute made 11 Eliz. at the Attainder of that famous Rebel Shan Oneale.
In one part of which it is said,
That all the Clergy of the Realm assembled in Armagh, at the time of the Conquest, &c. See the Statute.
Is it then so much for me to say what's in the Act? and is it not for the Honour of the English Nation to say it? and it must be said to the World end, for this a truth. And therefore there is no cause it should be taken so heinously, or heard with so much displeasure; and if I displease for telling the truth, I cannot help it: He reads another part of it, viz.
And therefore it is to be understood, that King Hen. 2. the first Conqueror of this Realm, &c.
And so it hath been acknowledged in all stories and times, and many an English man hath spent his blood in it, whole Posterity will be ashamed to view it other than as a conquered kingdom.
Nay, I believe many Noble Persons are yet living, that have bled for it, and will take it till, if it be termed less than a Conquest, in them who lived in those famous times, and spent their blood in Obedience to their Sovereigns Command.
So that by these words candidly and rightly taken, no manner of ill could come, being spoken, not with any sharpness or upbraiding, but merely to let them see, That being in that Condition, they were infinitely bound to the Kings of England, who were pleased to communicate to them the Laws of their own Kingdom, who were pleased to communicate to them the Laws of their own Kingdom: And so far were they from being taken ill, that no man at that time took offence at them.
For the words, The King might do with them what he pleased, let them relate to the conquest, and there is no offence in them; for the Conqueror might give them what Laws he pleased, and yet nevertheless, hath been so gracious and good, as to give them the Laws of his own People: Give me that understanding of the words, and then where is the Crime? how can it be brought in Judgment against me in itself, or be aggravated to High Treason.
I acknowledge I did speak to the Recorder of Dublin, yet some things I am put in mind of, which I am forced to deny with a great asseveration, That I do not remember the words, nay, I am sure I never spoke them, let all the world, and a cloud of Witnesses, say the contrary, when I know in my own heart I did not speak them; though I offer not this to Your Lordships, to convenience your Judgments: And on the other side, there is nothing that is true, but I will acknowledge it with all Ingenuity in the world, on the Testimony of any one single Witness.
I desire that Mr. Slingsby, his servant, might be asked, whether he was not present when I spoke these words; and whether then any offence was taken at me, in respect of the high manner of my speaking; or whether they were not rather extremely well satisfied.
Now if your Lordships take words in pieces, and not altogether, any man living may be conceived; but taking my words altogether, though something might be thought harsh, yet something gave abundant satisfaction.
I am upon a mighty prejudice, in being denied to have my Witnesses examined upon oath in these things that are not Treason. But they be persons of good credit, and I trust your Lordships will believe them, as much as if they spake on Oath, since I think none of them would say a word to your Lordships, which they would not swear.
Mr. Slingsby a Witness.
Mr. Slingsby being asked, Whether he was present when my Lord of Strafford spake to the Recorder of Dublin, what he said, and what acceptance it received?
He Answered, He was then present, being on the occasion of presenting Sir Robert Dixton, the Mayor of Dublin; that he cannot remember the particular words, nor deliver them to their Lordships, as they were spoken by the Lord-Lieutenant: But he remembers particularly the scope of the Discourse was to ingratiate His Majesties present Government to them; That the words were well accepted by several persons whom he spake with, and took that Effect, that his Lordship was thereupon invited to the Mayors House, where divers of the City Congratulated his coming to them.
E. of Strafford.
I shall now proceed to the second part of the words, That their Charters were nothing worth, and they bind the King no farther than he pleases; and I conceive I may say so still. If their Charters be nothing worth, they do not bind the King, but he may do with them what he pleases. In that, I desire your Lordships to call to mind what my Lord of Cork said, That Ireland was a conquer'd Nation, and the King might give them what Laws he pleased, and that ht Charters were Antiquated, and no farther good than it pleased His Majesty to make them. It is likely (I confess) I might say so, and yet not say amiss; for it is most evident and clear, their Charters are void in point of Law, and therefore it is in the King's good will and pleasure, Whether he will make them good or no. And that they were void, the King's Council informed me so; that they were questioned at Council-Board upon it, for divers unlawful Exactions they took, under colour of Charters, for divers by Laws that they had made, against Law, by those Charters, for divers neglects of Duties that they ought to do by those Charters; and generally, for not performing the trust reposed in them, by those Charters, with that Integrity and Care they ought to do. And for the truth of it, that many Complaints were made against the Mayor and Aldermen at that Board, for neglecting their Duty: I dare Appeal to my Lord of Cork. I adding this, That the greatest part of the Aldermen were Recusants, and would never be brought to obey the order of the Board; but stood on their Charters, and would be Masters; and by that means great Disorders continued.
And to prove that upon Examination, they appeared to be void in Law. I desire Sir George Ratcliffe may be admitted to Speak on what Grounds those Charters were called in, and are now (as I think) deposited with the Clerk of the Council.
Sir George Ratcliffe standing charged with High Treason, by the Commons of England, before your Lordships, and of a Conspiracy with my Lord of Strafford; and whether it be fit to hear one charged with High Treason, to clear another so charged, we Appeal to your Lordships.
E. of Strafford.
That Sir George Ratcliffe is charged to be a Conspirator with me indeed, and in truth, I must confess Sir George Ratcliffe and myself (under favour) and equally guilty of Treason, and I hope we shall both justifie ourselves; but I know so much of him, that I am not ashamed to say, That I think that Sir George Ratcliffe is my Friend, and I wish him well, and so I think will all other men (I trust in God) when they hear him. But I conceive Sir George Ratcliffe might be heard in these Points, if he be examined as a Witness against me, I desire he may be examined as a Witness for me.
Sir George Ratcliffe is not examined, nor at all sworn in the Cause on our Motion, and admitted, that if they produced him as a Witness, they would not deny my Lord of Strafford to cross examine him. The Lord Steward declared the sense of their Lordships, That Sir George Ratcliffe could not be examined.
E. of Strafford.
I shall readily obey; but yet observe, That if it were only matter of Misdemeanor, he might be examined, though charged. But this is my unhappiness, to be debarred of my Witnesses, because I am charged with Treason in general, though there be nothing in particular that's near the complexion of Treason.
We desire to observe, that this justifies a part our Charge, for the Charter of the Subjects Liberties are, as his Lordship confesseth, brought to the Council Table, and judged there, and not to the proper Courts where they ought to be judged; the Council-Table having no Power to declare the Validity or Invalidity of Charters from the King to the Subject.
E. of Strafford.
I crave Liberty to explain my self, That I said not they were brought to the Council-Table to be judged, but that consideration might be had, Whether there was ill usage and extortion practiced under colour of them or no; whether any thing were done that hindred the growth of that Town, and the good of the People, and the Protestant Religion, that it might appear how the business stood in point of State; but to give a judgment upon them in Law, it was never in my thoughts.
Robert Lord Dillon being then asked . Whether the Charters of Dublin have not been brought before the Council of Ireland, there to be considered concerning the Validity of them, and whether it did not appear that for divers Occasions, Exactions and Tolls, and by-Laws, and other abuses in the exercise of these Charters; they did not appear to the King's Learned Council, and others learned in the Law, to be void.
He Answered, That it was a question he did not expect; and yet being called, he should faithfully and freely tell his knowledge of it, to his best remembrance: That he doth remember very well, that the Charters of Dublin have been brought to the Council-Board, and argued strongly against by the Kings Learned Council. That there was one particular of 3d. Custom challenged by the City, which endured a very long debate: That it was argued against them, That they exercised by-Laws, contrary to the Common Law of the Land, and that divers other things were urged against them; but he remembers not the particular determination of the Board upon the question.
Being asked severally, what time those Charters were so brought, and how long after my Lord of Strafford's coming into Ireland.
He Answered, That he precisely remembreth not the time, but he takes it to be five or six years ago, something more or less, and he thinks about a year or two after my Lord of Strafford's coming, but he remembers not the time, not expecting to be Interrogated in it.
We desire your Lordships to observe, That the words were spoken before the Charters were brought to the Council Board.
E. of Strafford.
It follows not, That because they were questioned at Council-Board afterwards, I did not therefore know them to be void, when I spoke of them, for they were complained of in Parliament, as great Grievances, in the exercising of them, and to that purpose I desire my Lord Dillon may be heard.
And being asked what he knew concerning the Charters of Dublin, being questioned in the Commons House for divers Oppressions, unlawful By-Laws, and other ill usage of their Liberties.
He Answered, That he was a Member of the first Parliament after my Lords coming into Ireland, 1634. After this Visitation of the Mayor some half a year, but he knows not the time precisely. That divers Members of that House did object divers Misdemeanors, in misusing the Priviledges of those Charters, That the particulars were several By-Laws which they did execute, contrary to the Common Law: Another was, that by the Priviledge of those Charters, they excluded divers of the Tradesmen that came out of England to set up Manufactures there, which was conceived a great Grievance to that Kingdom. Another was, that having the Government of that Town, being a Navigable Port, they permitted the Soil to be emptied into the River, without care or regard.
That at the time of the Presentment of the Mayor, my Lord took occasion to advise and advertise the Mayor of several Defects in that Town, and divers of the Commons House of that Parliament are here that were present.
E. of Strafford.
Hence observe the Reason and Grounds of my Exceptions to these Charters, and the Effects of questioning them, which were two: First, By this means I am perswaded (and thereof I beseech the Honourable House of Commons to take notice, as that which is reputed my greatest Crime in Ireland) there be three Protestants in Dublin, at this hour, for one that was there when I came over; for the Townsmen did keep all the Trade, and ingross all the Manufactures into their own hands; and being Natives, and Romish-Catholicks, did depress the English, that strangers out of England had little advantage of Trade. And whatsoever any man may say or think on Information from persons that do not love me, who are Members of neither House (for so I desire to be understood, when I speak of persons unfriendly to me; I complain of nothing that is or shall be done me here, but will leave it all, with thankfulness to God Almighty, and with that Duty and Reverence to this House, that becomes me.) It will be known hereafter, when I perhaps am in my Grave, that my greatest fault in Ireland, hath been my extream Zeal to bring them to conform with the Church of England, which by that means hath provoked a great deal of Displeasure.
And secondly, I observe, That this argues no great malice in my heart, nor desire to oppress the King's People, when I shall tell your Lordships; That to this day those Charters were never legally questioned, but are enjoyed. So far was I from pressing rigorously any thing against them, I desiring nothing but Reformation, and to have them what they ought to be; and to leave them not less, but more happy than I found them.
And if I should serve there again, as I hope I shall serve only God Almighty, and my Master with my Prayers, they should be freed from all exactions and misusings of them, tending to the prejudice of the Town, the King's Service, and the Service of Almighty God.
And so I hope I have made a clear Answer to so much as was charged, I to free my self from guilt of Treason, reserving to my self the advantage of having my Council heard, in proper time, to the matter of Treason in point of Law, according to the liberty your Lordships have afforded me.
Next, I shall proceed to that which is proved, and no way charged, which I forbore to speak to the day before, as holding it an impertinent expence of time to your Lordships, and a spending of my own spirits, which, God knows, are weak and infirm indeed. If I were permitted to speak this morning to all the things extrajudicially formerly offered; I should give a free and clear Answer. But suffering by my Ignorance and silence then, I now desire leave to Answer those things that came de Novo, and that by three Witnesses, touching words spoken at another time to both Houses of Parliament,
I confess it to be true, that the second day of the last Parliament, but this that is now sitting, I had the Honour to sit as His Majesties Deputy, and it was the greatest Honour that ever I received; and I should be loath to say any thing, sitting in that place, that should not fully comply with the Goodness, Clemency, and Justice of His Majesty, or should mis-represent Him in any kind to his People in another sence, or to other purpose than his own Great and Princely Vertues do Merit and Deserve.
And that all I said at that time tended to that purpose, to shew and set forth to them the excellent Goodness of His Majesty, and the Graciousness of His Government. Therefore if I should say any thing to the purpose; as it is offered, I should go much against the purpose for which I intended my Discourse. For me to have said openly there, in the King's Chair, that they were a Conquer'd Nation, and must expect Laws from Him, as from a Conqueror, when I knew it most false; and expected from His Majesty, that He would Govern them by the same righteous Rules of Justice and Honour (as his Predecessors had before him) I had been much too blame, and it had been against the drift of my Discourse. And I must say, and will say, to the Death, I never spake such words, That they must expect Laws from Him as from a Conqueror. I know very well how it is proved, and what my own affirmation doth in foro Judicii; but how it may work in foro Conscientiæ, I trust I have so much credit left in the World, as to be known to be a man of truth, and not usually to speak untruths. And I take the heavenly God to Witness, that I never spake them. I remember the words, and the occasion by a good token, without which I should not have remembered them; my Friends desiring a Copy of my Speech; which Copy is in Ireland; and were it here, would satisfie every man. It was to incline them to take into consideration the great Debt that lay on the Crown, being near 100000l. the shortness of the Revenue, which was then short of the yearly Charge 24000l. though the first day it was stood
upon, and would have been coloured over, as if there had been no such thing. I was to move thereunto a supply to pay the Debt, and to improve the Revenue to such a height as might answer the Charge of the Kingdom; that to induce this, I told them the Kingdom of England had expended great and vast sums of Money, and had issued a great deal of Noble Blood for the reducing of them to Obedience, and in that happy state wherein they then lived. That they must not think the Kingdom of England must always bear the Charge of the Crown, but they must so fit the business, that the Kingdom may bear its own Charge; For, said I, and these are the words, (I take. God Almighty to Witness) and no other. If the Kingdom of England should still be put to the Charges, and the whole Expence should still rest on the Conqueror, you might very well think you are so dealt withall, as never any other Conquer'd Nation had been. That on these words my Lord of Ormond came to me, and told me, that the words I had spoken were not well taken; For that I had said, The Irish are a Conquer'd Nation, and that is not well. I answered his Lordship, Truly, my Lord, you are a Conquered Nation; but you see how I speak it, and no otherwise.
But this I am not charged with, and offer it only to keep and preserve me in a good Opinion, as much as I can, of both Houses of Parliament, which I desire of all things under Heaven, next the Favour of Almighty God, and his Gracious Majesty.
He then proceeded to examine Witnesses: And first Robert Lord Dillon being asked, Whether he was present when he spake these words to both Houses of Parliament? and what they were?
We desire to put your Lordships in mind, That there were two times when my Lord spake such words; one, when he spake to both Houses of Parliament at the Publick Speech now mentioned; the other, upon delivering a Petition by the House of Commons: That the words which the Commons Charge, were the last mentioned by me, not the first, and that was desired to be observed.
The Question being repeated.
The Lord Dillon Answered, That he served as a Member of the Commons House that Parliament, and in respect of the Honour he had to be of the King's Council, and the Son of a Peer of the Realm, he stood under the Cloth of State, and was present when my Lord made his Speech to both Houses; for that passage of the Conquest, some touch there was of it; and he hath heard my Lord of Ormond speak in particular of it: For the other words, That they should expect Laws as from a Conqueror, he took God to witness, he did not remember them.
Being asked whether he remembers them to be spoken at any other time? He answered, That on his Soul he doth not.
Sir Adam Loftus being asked to the same purpose.
He Answered, That he was the first and the last day at the Parliament, that he doth not well remember the middle day, and he cannot burden his Memory with any such words spoken that he heard either then, or at any other time.
Sir Robert King was called, and asked to the same purpose.
He Answered, That he thinks he was present that day, but not within hearing, and he never heard the words at any other time.
Lord Ranelagh being asked, Whether then, or at any time he heard my Lord of Strafford say, They must expect Laws from the King, as from a Conqueror.
He Answered, That he was then in the House, and remembers the words in the first place, That Ireland was a Conquer'd Nation; that for the words in the second place, something was spoken, but how far he cannot witness.
Sir George Wentworth questioned on the same Point.
Answered, That he sate under the Chair of State at that time, and remembers not that my Lord ever spake these words, That the King might do with them as he pleased. That it pleased my Lord-Lieutenant to send him into England at that time, to attend His Majesty, with the Success of that Parliament, and that he brought the Speech with him, and can confidently affirm, There was no such thing in the Speech; and the Speech he did deliver to some Privy-Counsellor, and added, That be never heard my Lord publickly or privately say those words, They must expect Laws from the King as from a Conqueror.
We desire to know, Whether the Witness was returned out of England when this Remonstrance was delivered. For the Commons Charge it thus, That the House of Commons delivered a Petition, to have the Laws executed according to the Instructions, upon which the words were spoken, and we believe Sir George Wentworth was not come back, and then it was impossible he should hear him, for it was after the Parliament had sate, and some proceedings had.
E. of Strafford.
I observe, How it is in some of the Witnesses, for my Lord Gorminstone fixed it on the first beginning of the Parliament.
He spake it to the occasion of the Petition, but the distinct time he doth not remember.
Sir George Wentworth being asked touching the time of his going into England.
He desired to know what time the Petition was delivered; but he went over some few days after the Subsidies were granted.
Lord Robert Digby being asked, Whether at the Parliament at Dublin, or any other time, he ever heard my Lord of Strafford speak those words.
He Answered, That he never did; that he doth not know whether he was present at that time or no; that he did diligently wait, but doth not remember the words, nor occasion, but he thinks he was not present.
Your Lordships have heard my Lord of Strafford's Defence with much patience, That he hath said nothing that takes off the Charge, but some things that aggravate it.
That he would answer the Particulars, as his Lordship had propounded them. And first he observed, That his Lordship denies not the words Charged, which makes greater way for proof of them.
He informs of the ill Fortune of other Governors, that one was Attainted, and the Informations afterwards retracted, that my Lord of Faulkland was complained of, yet a Noble and good Governor, against whom, or any Deputy, we can say nothing: But what is this for my Lord Strafford to say, Others were questioned, therefore he is Innocent.
These were complaints of particular men, This against my Lord of Strafford, is the complaint of all the Commons of England.
It is said, here is no Treason in this Article, no Argument of Treason; but the Commons never pressed these words singly and dividedly, to be Treason; but take all together, they discover that Disposition, that Counsel, that Resolution that my Lord of Strafford had taken on him, the ruine and subversion of the Common Law, in both Kingdoms.
It is said, an Answer is put in, and no Replication. It is true, in other Courts, if you go on Bill and Answer, the Answer is taken pro Confesso; but the Commons desire not to bind up my Lord of Strafford with Formalities; but by the substance of their Charge they have averred their Charge, which is as much as a denial of his Answer.
To there being another Government in Ireland than in England, my Lord himself spoke of it by himself spoke of it by himself; but he thinks it will not be material to this purpose; for whatsoever it is, some Government there is: but the Speech of my Lord tends to take away all Law; for they must expect Laws as from a Conqueror, in that Limitation.
For his referring it to the time, taking it in the sense, that the then Conqueror might do what he pleased, that's true and justifiable: But that is to suppose the words otherwise than they are; being spoken, not of the Kings that were before, but of His Majesty that now is.
My Lord would make an Argument, his words were well accepted, because Mr. Slingsby heard nothing to the contrary; the words had much acrimony and sharpness, and we dare not believe the Mayor of Dublin durst tell my Lord of Strafford so, or forbear any Complement to him, though he had been displeased with him. But if that be material, the Witnesses that have proved the Words, will tell your Lordships, it was resented with a great deal of Grief and Sorrow in all the hearers.
His Lordship justifies what was spoken of the Charters, on these grounds, First, That the Witness said they were Antiquated Charters, and therefore did not bind; whereas it was a scornful Epithite, their Antiquated and Worm-eaten charters did not bind.
It is said, they were void through negligences, questioned at Council Table, complained of in Parliament. But they must take the words to pieces, not altogether. had he spoken of the charters alone, that they were void charters, it were not crime, no indiscretion. But take it with the occasion and connexion, it admits of no such mitigation, or interpretation. He tells them, they are a conquered nation, and they must expect Laws as from a conqueror: And they are a conquered nation, and their Charters are no farther good than the King pleases.
It is said, It is strict to answer presently what, may be objected; and the Examinations are extra judicial; we doubt not but Your Lordships will justifie our Proceedings, nor is there any strictness in them; for if a Man be questioned of a Crime, and several Evidence be brought to make up this Crime, some concurrent, some precedent, they will be allowed of in other courts; it being never used to set forth in a charge all-circumstances of Proof, The main is produced, and this is an Evidence to prove that, and it is within the Charge; for there is a charge, that he corrupts the Laws and Government.
Then my Lord produces divers Witnesses, who speak in a different sense, Sir Robert King heard nothing, another, that he remembers nothing; and if he remembers nothing, it may as well be said of the rest, That there might be something they did not hear, or remember; for they
speak no more, but they did not remember; There may be something they forgot, as well as another forget all.
My Lord Ranelagh says, He remembers the first words, and something as spoken of the second; but he cannot tell how far: So that there is rather a doubt, that something was spoken to that purpose, than otherwise. The Lord Digby was not present, Sir George Wentworth remembers not the words; he hath a Copy of the Speech, and is confident the words were not spoken. But they were not spoken in the first Speech, whereof there was a copy, when the Petition for the Laws was delivered.
And this is an Aggravation against my Lord of Strafford, that by his own shewing, there was an Exception taken, when he spoke in a milder sense, and to advance His Majesties Government, it had an ill impression; and was taken notice of, and the Exception deliver'd to himself.
Now if after Exception taken to a Speech delivered in Parliament, cloathed with so much mildness, he in the same Parliament, as soon as Subsidies are granted, shall tell them, they are a conquered Nation, and shall not have Graces, but such Laws as the King will give them: This puts the Offence in higher terms than before; so far are they from mitigation of the Offense.
We desire Witnesses may be heard concerning the circumstance of time.
Mr. Fitzgarret a Witness.
Mr. Fitzgarret produced, and Sworn.
Was asked whether he knew of a Petition delivered to the Earl of Strafford by the Commons, concerning the Laws; and how in time it followed the publick Speech at the beginning of the Parliament, and what Answer was given to it?
He Answered, That he was then a Member of the Commons House, and present when the Petition was delivered: But after the House of Commons had given the King six Subsidies, the House of Commons ensured in to consideration, of Petitioning of such things as were necessary and expedient for the Common-wealth, as they thought; this Petition was preferred to the Lord Deputy a good space of time after the Subsidies were granted, and Advertisement sent to England, of the good service done in obtaining those Subsidies from the House of Commons, That he remembers not any part of the Answer given; There was an Answer given in Writing, either at Council-Table, or in full Parliament, from the House of Lords; but he spake only to the point of time.
E. of Strafford.
My Lord of Strafford did here affirm it to be most certainly true, That the Petition concerning the things Mr. Fitzgarret mentions, was delivered at council- Board, and not in Parliament; and desiring Mr. Fitzgarret farther explanation of himself.
He Answered, that he conceives there were two Petitions; one, as he thinks, concerning the performance of the Instructions of 1628. where unto an Answer might be given at Council-Board; and he believes it was subscribed by many of the Council. There was another Petition of Grievances, seeking redress of them; and to whether of these his Lordship gave an Answer in Parliament, he remembers not; but believes there was an Answer made to both, or one of them, in full Parliament.
Lord Gorminstone a Witness.
The Lord Gorminstone being demanded at what time, and on what occasion my Lord of Strafford spake the words, he was examined on before, in the Parliament at Dublin:
He Answered, A Petition was delivered to my Lord of Strafford, and he spake to the House, wherein he spake the words that he had formerly related, That they must expect Laws as from a conqueror; and that the Instructions published for the settling of that Government, were procured by a company of narrow-hearted commissioners; That he did not then remember the certain time; but he is sure it was in Parliament; and so resented, that almost all took notice of it; when most part were English and Brittish Extractions, and very few Irish.
Lord Killmallock a Witness.
The Lord Killmallock being demanded to the same purpose,
Answered, That he conceived the occasion was, a delivery of a Petition to his Lordship. It is true, it was not delivered in Parliament, nor were the words spoken at the Council-Table where the Petition was delivered: But he conceives, it was on occasion of delivering that Petition, that his Lordship speaks: For after the Petition was delivered, three or four days after, his Lordship came to the Parliament House, he called both Houses before him, and there delivered these words, That Ireland was a Conquered Nation, and therefore must expect Laws as from a Conqueror. Adding further, That the Book of Instructions, meaning the Book Printed in King James His Reign, for the orderly Government of the Courts of Justice, was contrived and procured by a company of narrow hearted Commissioner, who knew not what belonged to Government. The words, he said, he remembers very perfectly, as having great misery on his heart in the speaking: And whereas it is said, none did take notice of them; They did, but they durst not, it wrought inwardly; and had they spoken of it, they expected no redress, but a greater addition of calamity to them.
We shall now proceed, and observe, That this Article touching the Laws of Ireland, gives the ground-work of what follows in the subsequent Articles concerning Ireland.
And first, We desire Your Lordships to take into remembrance, that though Ireland differ in some particular Statues from England, yet they enjoy the same Common Law, without any difference.
That by the Statute 28 H. 6. in Ireland, It is Enacted, That every Cause shall be remitted to its proper Court; it is true, the King hath this Prerogative, not to be tied to sue in the Kings-Bench; but may sue in any Courts of Justice, for matters Triable in the Common-Pleas, or chancery or Exchequer; all Courts are open to him, wherever he will have his Cause judged; but with the Subject, the proper Cause must go to the proper Court, and according to this, the exercise and use is continued in that Kingdom.
Some Incroachments being made, King James, of blessed memory, took consideration of it, he appointed Commissioners, and Instructions were Printed in pursuance of this: A Noble Earl now present, Justice Jones, Sergeant Crew, and divers others, were imployed in that Service. These Instructions, as they remit the Causes to the proper Courts, so they declare, that it had crept in at the Council-Table in latter times, to take
Oaths; but direct, that it shall be forborn for matters of Interest and Complaint between party and party, and matters of Title.
And it stays not here; but a Proclamation is issued to the same effect.
This Statute, these Instructions, and this Proclamation, we desire may be read.
Accordingly the Statute was read, whereby it was ordained to the Governour of the Land, or other Officer for the time being, He that accuses, shall find sufficient sureties for the damage of him that is accused; and if it shall be adjudged that the Suggestion or Accusation, is not true, &c. And also, that he that is Arrested, may go by Surety or Bail, till the matter be determined.
And if it be matter of Treason or Felony, to be remitted to the Kings-Bench; if Conscience, to the Chancery; if Franchise, to the Seneschal of the Liberty; if for Debt, to the Common-Pleas, &c. saving the Kings Prerogative.
Then part of the Instructions were read, published 1622. wherein it is ordered, That the Council-Table shall keep itself within its proper bounds.
Amongst which, the Patents of Plantations, and the Offices on which the Grants are founded, are-to be handled as matters of State, and to be determined by the Lord Deputy and Council publickly, but Titles between party and party, are to be left to the ordinary course of Law, and neither Lord-Deputy, Governor, nor Council-Table, hereafter to intermeddle, or trouble themselves with ordinary businesses, within Cognizance of ordinary Courts, nor meddle with possession of Land, nor make or use, private Orders, Hearings, or References concerning such matters, nor grant Injunctions, nor Orders for stay of Suits at Common Law, Causes recommended from the Council of England, and spiritual Causes concerning the Church, excepted.
Then the Proclamation was read, dated November 7. 1625. whereby it is commanded, That the Deputy and Council-Chamber in Ireland then, and from time to come, shall not entertain, or take consideration of any private Cause of Causes, or Controversies between party and party, concerning their private and particular Estates, nor any Cause or Controversies of that nature, moved or depending between party and party, concerning private and particular Interests, be proceeded in the ordinary Courts of that Kingdom respectively, to whom the Cognizance of these Causes and Controversies doth belong, &c.
For that Objection from the Opinion of my Lord Cook in Calvins Cafe, if it were an Opinion to the contrary in an Argument, it is no binding Authority; But that Opinion is nothing at all against what hath been said; for it is express, That Ireland did retain the same Common Law with England. It is true, Ireland hath Statues and Customs particularly retained; and so there be divers particular Customs in England, that differ
from the Common Law, yet are approved and allowed in it; as in Wales, and the Custom of Gavel-kind, and the Common Law, which is the general Government, is the same. If there be any Stature that gives my Lord of Strafford, as Governour alone, power to take Cognizance of meerly private Causes, it is something to the purpose to say, there is a particular Statute; but till that be shewed, he hath in this, erected an Arbitrary Power.
And so he concluded the Reply, and the Third Article.