The Eighth Day. Thursday, March 26. 1641.
The Eighth Article.
That the said Earl of Strafford, upon a Petition of Sir John Gifford Knight, the first day of February, in the said Thriteenth Year of His Majesties Reign, without any Legal Process, made a Decree or Order against Adam Viscount Loftus of Ely, a Peer of the said Realm of Ireland, and Lord Chancellor of Ireland, and did cause the said Viscount to be imprisoned, and kept close Prisoner, on pretence of Disobedience to the said Decree or Order.
And the said Earl, without any Authority, and contrary to his Commission, required and commanded the said Lord Viscount to yield up unto him the Great Seal of the Realm of Ireland, which was then in his Custody, by His Majesties Command, and imprisoned the said Chancellor for not obeying such his Command.
And without any Legal Proceeding, did in the same Chirteenth Year imprison George Earl of Kildare, a Peer of Ireland, against Law, thereby to enforce him to submit his Title to the Manor and Lordship of Casteleigh in the Queens Country,(being of great yearly value) to the said Earl of Stafford's Will and Pleasure, and kept him a year Prisoner for the said Cause; two Months whereof he kept him close Prisoner, and refused to enlarge him, not withstanding His Majesties Letters for his Enlargement to the Said Earl of Strafford directed.
And upon a Petition exhibited in October, Anno Domini 1635. by Thomas Hibbots, against Dame Mary Hibbots Widow, to him the said Earl of Strafford; the laid Earl of Stafford recommended the said Petition to the Council-Table of Ireland, where the most Part of the Council give their Vote and Opinion for the said Lady; but the said Earl finding fault herewith, caused an Order to be entred against the said Lady, and threatended her, that if the refused to submit thereunto, he would imprison her, and fine her five hundred pounds; that if she continued obstinate, he would continue her Imprisonment, and double her fine every month; by means whereof she was enforced to relinquish her
Estate in the Lands questioned in the said Petition, which shortly after were conveyed to Sir Robert Meredith, to the Use of the Earl of Strafford.
And the said Earl in like manner did Imprison divers others of His Majesties Subjctes, upon pretence of Disobedience to his Orders, Decrees, and other illegal Command by him made for pretended Debts, Cities of Lands, and other Causes in an Arbitrary and extrajudicial Course, upon Paper-Petitions, to him preferred, and no Cause legally depending.
The Article was opened by the Manager.
Thomas Hibbot's Petition to my Lord of Strafford was read, setting forth;
That Sir Thomas Hibbot's being seized of certain Lands, conveyed the same to the Use of himself for Life, after Death to the Petitioner in Tail, and divers Remainders over: That Sir Thomas of the said Lands became seized for Life, and died, the Petitioner being in England, and not knowing of the Conveyance. That Dame Mary Hibbots, John Hoy her Son, and others, taking advantage, of his Absence, combined to get the Deeds, touching the Lands, into their Hands. That they caused one Booky to come into England to perswade the Petitioner to go into Ireland, and he went accordingly, and was brought to the Place of the said Ladies Abode, who pretended that she had an Estate in the Lands during Life. That by this Means, before he could be advised, he was drawn to contract for the Lands at half Value, and he entred into Bond to perform Agreements. That the Petitioner was more willing thereunto, in respect of a Desire to buy other Lands of John Martin's, and agreed for it, and was to receive 1800l. of the said Lady, which Martin was to receive, and the greatest Part paid out at the Time and Place appointed. That a Deed Poll was drawn from him to Seal to, and acknowledge a Fine and deliver Security for great Part of the Purchase-money. That notwithstanding a Fine acknowledged, and Security given up, the Lady Hibbots refused to let Martin have the said Money, and so the Petitioner disappointed of the Bargain; and therefore prays, that the Evidences, Deed Poll, Fine and Bond might be delivered up, and the Agreement discharged, being surreptitiously obtained.
The Lord-Deputies Warrant was subscribed and read, bearing Date 15. October 1635. viz.
That the, Lady Hibbot, &c. should on sight thereof, forthwith deliver, the said Deed, &c. to Sir Paul Davis, and to appear at Council-Table the 20th. of this instant October.
The Manager observed, That the Petition was preferred in the Name of Thomas Hibbots, though, in Truth, he had never Knowledge of the exhibiting of it, and that the first Bargain with the Lady Hibbots was made 22. September, 1635. the Petition exhibited 15. October, 1635.
The Decree was read, John Hoy attesting it to be a true Copy, wherein the Petition is, recited, and the Time; and it is set forth, that the Courts of Justice were not then open, that the Petitioner being a Stranger, it was not fit he, should long attend. That the Defendants denied the Fraud charged: To which the Paintiff Replied, the Defendants Rejoin, time given to examine Witnesses, and, a Day for hearing set down. That at
the hearing, it appears the said Lady brake into her deceased Husbands Study, possest herself of the Deeds and Writings. That Booky was sent over (as might be conceived) to circumvent the Paintiff. That getting him to her House, she contracted with him for 1600l. before he knew of the Value; that understanding it to be worth 2250l. he refused to proceed, and then the Lady raised the Price to 2500l. That by not Payment of a Part of it, the Bargain with Mr. Martin (the cause of his Treaty with the Lady) was disappointed. That the Lady pretended an Estate for Life in the Lands, when we had only an Estate in part for 99 years, if she Lived so long, and no Estate in other parts thereof, which the Paintiff knowing not of, could not suffer a Pracipe quod reddat without her joyning, whereas being but Lessee for 99 years he might.
That it appears by the Deeds of the Plaintiff intended not to sell the Lands, for that he knew them not, as appeared by Circumstances, which the Order doth more particularly set down. That the criminal Part should be reserved, to be made use of by the King's Council; that for the civil Part, the said Bargain was Ordered to be void. That the Fine not yet recorded, but remaining unreturned, shall be cancelled, if the Plaintiff shall require it. And the Lady to have only such Estate as she had before, and no other. And both Parties are hereunto to yield Obedience, 24. November, 1635. Adam Loftus Chancellor, Ormond, Valentia, Moore, Dillon, Sherley, Lowther, Wainsford, Manwareing, Tiringham, George Ratcliffe.
The Manager opened the Nature of the Cause, observed the particular Parts of the Order, shewing, that there was a Conveyance executed, a Fine levied, though not returned by his Order, no Witnesses examined, though she denies the Fraud, and Arguments are made to convince her by observation of Circumstances, and so concluded to overthrow a Bargain in October before. That it is pretended to be when the Courts of Justice were shut, though it was heard in full Term, 24. November 1635. the Term there beginning as in England, but adjourned to the 2. of November, and the said Order was contrary to the Vote of the Council-Board. That when that Bargain was overthrown, the Lands were purchased by Sir Robert Meredith and others for 3000l. to the use of the Earl of Strafford, and he sold them back to the Lady Hibbots for 7000l. That when this Petition was preferred, Thomas Hibbots desired to be gone, and have his Money; applies himsef to Sir William Parsons for Advice, Whether he might not withdraw his Petition; he sends him to Sir George Ratcliffe, Sir George opposes it; the Petitioner goes to my Lord of Strafford, and he tells him, Do not withdraw your Suit, 500l. more in your Purse will do you no hurt.
John Hoy was first produced as a Witness, and sworn.
E. of Strafford.
My Lord of Strafford offered to their Lordships Consideration, that the Witness is to have the Inheritance of the Lands, and so swears directly for himself.
But the Manager Answered, That if he shall have the Inheritance, his Lordship knows the Terms, he hath paid 7000l. for it. And Mr. Maynard added, that if the Decree were of force against him, it were something, but the Land is since paid for; and whether the Decree be good
or bad, he can neither lose nor win by it, for he comes in as a Purchasor. Yet my Lord of Strafford prest it, that the Witness complained, and seeks Relief against the Decree. But the Manager Answered, It was for his Mother not for himself; though upon my Lord Stwards demand, he confest ha was the Lady Hibbots Son, by a former Husband, and that the inheritance is now in him. But my Lord of Strafford observed, if he can recover 3 or 4000l. upon his Oath for his Mother, it is well. And their Lordships admitted him to be examined.
He was asked, What he knew concerning the Agreement between Thomas Hibbots and the Lady Hibbots, for the Purchase of the Reversion of the said Lands, the Tearms and Times.
He Answered with desire to use his Notes, That Thomas Hibbots about 7 September continued two or three Days in Dublin, and then came to Castlington, continued there a full Day, and not a Word spoken of the Bargain. That the Writings, whereby the Estate was settled, were shewed him, the said Thomas, and he read them. That being asked, Whether he would have more satisfaction; He said., He was satisfied; being demanded whether he would live in Ireland, and, keep his Estate; he said, No, and that he would fell most of it. That the Lady Hibbots desired the might be preferred in the Sale, having interest by Joynture, and she conceived it for Life; and demanded what he would ask, that he answered, What she pleased above 2000l. That being asked, Whether he knew the Land, he answered, he knew it, for some years before he was in Ireland in Sir Thomas his life time, and a Servant of his had shewed him the Land. That she offered 1500l. and he said, for 1600l. she should have it, and so it was agreed. That she sent the Deponent up for 100l. but the said Thomas said, He would not use so much, and took only 20 s. to bind the Bargain. That on Monday following they went to Dublin to draw up Articles to perfect the Bargain, and two or three Days were spent about it. That he the Deponent tendered the Articles, and he the said Thomas excepted against the general Warranty, which he desired might be amended, and then he would perfect them, and it was amended accordingly. That in the interim, the Day before Sir Robert Meredith went to him, and treated with him, offering, if he would break off, he the said Sir Robert would save him harmeless, as Thomas Hibbots told him the Deponent. That thereupon Thomas Hibbots flies off, and told him the Deponent Sir Robert Meredith offered him 2250l. That thereupon he the Deponent left the Town, and went to his Mother, and informed her of it.
That before the breach of the Bargain, he the Deponent procured a Subpana, to sue the said Thomas thereupon, and that the said Lady coming to Town with the Deponent, the said Thomas came to her, and being asked the Reason, why he would break the Bargain, he answered, Sir Robert Meredith had offered so much, and she answering, That she would riot give an under-value, because she would not have another get the Reversion. He replied, That for 2500l. she might have it, which she was content to give; and the Agreement was made. That the said Thomas went immediately to Sir Robert Meredith to give him an Answer, and satisfied him; That he the Deponent met Sir Robert Meredith Coming out of his Lodging, and challenged him of this unneighborly courtefie, who said, it is true, he was about it, but the Lady Hibbots had bid more than he, and wished her much Joy of it.
That the next Day the Articles for the 1600l. were perfected, and a Bond given for 900l. to make it up the Sum of 2500l. and this to be paid in England, (for there was no motion about Land in England from the said Thomas.) That two Days after he the said Thomas went to John Martin, who had a little Estate, and treated for the Estate, for which he was to give him 1900l. That the said Thomas came back to Dublin, and tells the Deponent of it, who had taken a course to exchange 2000l. for him, and was to have near 80l. for Exchange of it. That notwithstanding, on Mr. Hibbots Return, he the Deponent was content he should have it paid there.
That soon after Thomas Hibbots acknowledged a Fine, perfected a Feoffment, and so passed all the Estate that could be in himself. But the Lady thought it could not be secure without a Recovery; for the said Thomas had but one Son, who had no Son, and the life of the man is uncertain; yet before that was desired, Thomas Hibbots saying Mr. Martin was willing to receive the Money; he the Deponent appointed a Day for receiving of it, and paid Mr. Martin 1800l. giving Bond for Payment of 100l. 16. November, this being 9th. of October. That he delivered Mr. Hibbots 60l. and procured a Bill of Exchange to be paid at Nesson on sight 40l. That he took up the 900l. Bond, entred into by his Mother, and gave a Bond for Payment of 500l. at Chester a Day following. That the Money being sealed up by Mr. Martin, it was left there that Night, and the next Day they were to go to the Lady to enquire if they had sufficient Security, and went accordingly, and carried the Deeds along with them. That the Ladies Counsel told her, a Recovery was necessary, which might be done the first Day of the Term. That he the Deponent desired Mr. Hibbots to stay till the Term, and offered to bear his Charges, but he would not, Winter growing on, and said plainly, He would not stay. That thereupon he the Deponent served him with a Writ he had prepared on the first Bargain. That immediatly the said Thomas goes away to Mr. Sambridge, and informed him, that he had been often with him the Deponent to break the Bargain, and now is served with a Writ, and therefore prayed him to draw a Petition to my Lord-Deputy, which was drawn accordingly. To which the Lady and Deponent had time to Answer till Thursday: That the time was short, and there was a Mistake in the Answer; for it was set forth that the Lady had an Estate for Life, wheras she had an Estate but for 99 years, if she lived so long. That on this Mistake discovered, my Lord-Deputy called for the Constable of the Castle, and commanded the Clerk of the Council to draw a Warrant to commit their Counsel, till the Gentlman fell on his Knees, and openly asked forgiveness. That then they could hardly get Counsel to plead: That there was a Reply and Rejoynder. And in the interim Mr. Hibbots came to him the Deponent, went to the Master of the Wards and desired to be dismissed. That Sir George Ratcliffe appointed them to attend him, which they did. That Sir George took Mr. Hibbots with him, and on Sunday following the Lord-Deputy being informed of Hibbots Consent, on Monday he sent for Hibbots, and wishes him to go on with the Suit, and asked him, What hurt it would do him to carry 500l. more to England. The next Day being Tuesday, there was no Witnesses examined, though a time was appointed to examine them; for the Clerk of the Council was busie, and could not attend it. That they desired Hibbots might be examined, and they would be bound by his Oath, and his Lordship granted a Warrant for it; and Mr. Hibbots was almost examined
for on a Council-day the Order was given to the Deponent. But that very Afternoon my Lord-Deputy came to the Council-Board, and as soon as he was sate, spake to this Effect; Here is a Business concerning my Lady Hibbots, prosecuted with a great deal of Violence that ever I knew, and an Order procured for the Examination of the Plaintiff; but is any such Order be, or Examination taken, I will have it damned; and this is as much as he can speak.
Being asked, Whether my Lord of Strafford did not threaten my Lady Hibbots with Imprisonment, till she performed the Order.
He Answered, That on the first of January, after the Decree, my Lord-Deputy sent to the Lady Hibbots House, to require her and him the Deponent to attend him, which they did accordingly, and were called into his Chamber, where was Mr. Sambridge of Counsel with Mr. Hibbots, a Sister of the Deponents, he the Deponent, and some others. That my Lord-Deputy asked them, Why they would not perfect the Re-assurance according to the Order, to which the Deponent offered some Exceptions, drawn up by the Counsel, alledging, that they could not possibly perform the Words of the Order, and that they might perform them as near as might be; they shewed a Course that might be observed, but my Lord-Deputy said, He would not be cavil'd withal, he would have the Order of the Board obeyed; and since they juggle thus, his Lordship said, He would have the Orders drawn up, and tendered, and that if they will not perform them, he will commit them to the Castle, where they shall lie a Month, at that Months end he will send for them to the Council-Board, and tender them again, and if they would not perform them, he will Fine them 500l. and another months Imprisonment, and then tender them again, and if they will not perform then, he will Fine them 1000l. and another months Imprisonment, and so from time to time, till they had performed the Orders of the Board.
Being asked, Whether these Lands were not purchased in the Name of Sir Robert Meredith, and others, and to whose use?
He Answered, That he hath the Deeds of the Land himself, and what the Dates are he doth not remember. But he knows the Lands were purchased in the Name of Sir Robert Meredith and others, but he cannot speak to whose Use, but from Sir Robert Meredith's own mouth, for when he the Deponent paid 7000l. to him, he the Deponent was telling him the great Advantage he made by this Bargain. In truth, said Sir Robert the Advantage is nothing to me, I receive it with one Hand, and carry to the Castle with the other. That the beginning of December last Sir Robert sent for this Deponent, and told him, He heard he was coming over to complain of such a Matter, but desired him the Deponent not to trouble him, for he protested seriously, he had nothing to do with the Business, his Name was only used as Sir Philip Persivals and Sir Robert Loftus, it was meerly to my Lord Lieutenants Use.
The Manager observed, That when their Lordships have heard this, they will not wonder at the next Witness they shall produce, that a Supream Judge should perswade to continue a Suit, which he would have withdrawn; and that notwithstanding the major part of the Board was against the Petitioner, yet the Order was drawn for the Petitioner.
Mr. Hoy a Witness.
Mr. Hoy being asked to the Matter of the Vote.
He said, He was withdrawn when they gave their Vote, but a noble Member of the Board came to his Mother to Supper, and named to him the Deponent every Man that Voted for and against her, that he writ down their Names at that time, and there were twelve Votes for her, and nine against her; that he the Deponent was afterwards informed by another then at Board, that the major Part of the Board went for his Mother.
Thomas Hibbots a Witness.
Thomas Hibbots was sworn, and being asked, Whether there was not a Petition preferred to the Lord-Lieutenant there for breaking off the Bargain between himself and the Lady Hibbots, and answered before he knew of it.
He Answered, having the Questions dictated by the Clerk, being an old deaf Man: That he caused a Petition to be drawn, but; not this; that this Petition he knew nothing at all of; that he wished a Petition to be drawn by Mr. Sambridge, but it was only that he might have his Money, and go into his Country.
Being asked, Whether, after the Petition drawn and answered, he did go to Sir William Parsons, and desired to be quit of the Suit, and that he went thereupon to Sir George Ratcliffe, and what passed?
He Answered, He sent to Sir William Parsons, and he sent him to Sir George Ratcliffe, and Sir George Ratcliffe said, He should not be dismissed from the Board.
Being asked, Whether my Lord of Strafford did not send for him, and tell him 500l. more in his Purse would do him no harm.
He Answered, It is true, my Lord wished him to go on with his Suit; at the Board, and that no Man in Ireland should do him Wrong, and it would do him no harm to carry over 500l. more.
Being asked, What Sir Robert Meredith said to him.
He Answered, That he would bring all the Writings to him the Deponent.
Being asked on my Lord of Strafford's Motion, what Fees he laid out?
He Answered 40l. to Mr. Sambridge; and the Manager observed, he was preferred presently after the Bargain was executed.
Being asked, What Words were used to the Lady Hibbots.
He Answered, That my Lord-Deputy asked, Will you not perform the Order; If not by such a Day, I will send you to the Castle, and there you shall lie a Month, and at the Months end you shall be brought to the Board, and have 500l. laid on your Head, and at another Months end 1000l. more Fine, and you shall go back to the Place again, and after that a third months Imprisonment, and your Fine increased; your Estate I know is very great, and if it were ten times bigger than it is, I will make it crack.
To prove that the major Part of the Board was against the Plaintiff.
Lord Mountnorris a Witness.
The Lord Mountnorris was asked, Whether he was present at the Council-Table at that time when this Cause was agitated, and which way the major Part of the Votes went at that time.
He Answered, He was there present, and the major Vote went for the Lady, and there were 12 or 11, he cannot possibly say which (though he took it then perfectly into Memory) on one side, and nine on the other side.
E. of Corke a Witness.
The Earl of Corke asked to the same Purpose.
He first made an humble Suit to their Lordships, that he might not be produced as a Witness against the Prisoner. His Reason is, That when he hath delivered a true Testimony, my Lord of Strafford presently pursues him, and lays Imputations and Scorns upon him; and therefore humbly prayed to be spared, else that he might have liberty to justifie himself.
Whence the Manager observed, What it is to fall on Witnesses persons extravagantly, when they produced them, and therefore desire my Lord of Strafford might forbear it, being a great disheartening to Witnesses.
My Lord of Corke added, That my Lord of Strafford accused him to have a Pardon, whereas he knows he hath none. That he is an honest Man, and wishes my Lord of Strafford could leave the Kingdom with as much Reputation as himself had left it. And for the Matter demanded, his Lordship said, He was at the hearing of the Cause, and Voted against the Plaintiff; but whether the major Part Voted against him or no, he knows not.
Being asked, What Words my Lord of Strafford said about making a Party in that Cause.
He Answered, That he thinks he spake these Words, He did not think there would have been a Party against him, for if he had, he would not have brought it to that Table, for the Petition was preferred to himself.
Sir Adam Loftus being asked, What Sir Robert Meredith told him of his Part in the Bargain.
He Answered, That he heard him say, He had no Title or Interest in it, but only his Name used in trust, but for whom he did not declare, and that was all he said to him.
The Manager added, That they have another Witness to prove that of the majority of the Vote, my Lord of Ely, but he is sick.
And so the Manager summed up the Evidence, and observed it to be something, that my Lord of Strafford should pitch upon the very sum of 500l. that Mr. Hibbots had by way of increase. That the Order was made with an examination of Witnesses, on pretence of Fraud, where the Lady denied it on Oath, and that though it was so great a Fraud in the Lady to procure a Reversion for 2500l. which was sold for 3000l. and afterwards re-sold to the Lady for 7000l. and so concluded that it is an Arbitrary Government, drawn into my Lord of Strafford's own Breast, and the Inheritance of a great Estate taken from the King's Subject without Rule of Law, there being a Fine levied, but being not retorned (as the Commissioners are bound to retorn it) he made an Order it should not be retorned, and a Lady threatened with doubling and trebling the Fine, and one of the Feoffees, Sir Robert Meredith, confesses it was for my Lord of Strafford. And to prove that, Sir Philip Persival acknowledged so much.
Mr. Fitzgarret was Interrogated, What Sir Philip Persival said, who thereupon Answered, That Sir Philip had often told him, the Purchase was to the Use of my Lord-Deputy, now Earl of Strafford. That he hath had occasion of Conference with him about the Estate, and hath sometimes Discoursed with him concerning the Estate wherein his Name was Used. That he the Deponent might understand how far it concerned him, telling him, that the Estate would one Day be questioned. And Sir Philip Protested, he never knew of this Business till his Name was put into it, and he came to Seal the Writings, and that it was to the Use of my Lord-Deputy.
Some Questions arising about the number of Hands to the Order, being in all 14.
The Manager observed, That more have Subscribed than those that gave their Vote, being a Cause Introduced by my Lord of Strafford. That all Subscribed the Orders, as well those against them, as those for them, and Appealed therein to my Lord of Cork. The Course being, when an Order is made, to bring it to the Table another Day, and take all the Hands of them present; and he added, That their Lordships that are Counsellors know that Course to be Used here.
E. of Corke a Witness.
My Lord of Corke being asked to that Point.
Answered, That he knows nothing of it.
Lord Primate a Witness.
The Lord Primate of Ireland his Examination was offered, and was admitted accordingly to be Read, being taken 30. March, 1641.
To the Fourth Inter. That when the Major Part of the Council-Board go one way, and the Minor Part another way, when the Order is drawn up, the Minor Part Signs it as well as the Major. The Lord-Deputy alledging it to be the Practise of the Council of England, and he himself had done it; but before my Lord of Strafford's coming he never knew it to be so.
Lord Renula being asked to the same Point.
Lord Renula a Witness.
Answered, That he doth not remember that Order to be of Force there till of late Years, and that my Lord of Strafford hath declared to them that it is the Practise of England, and when the Major Part doth Subscribe, though others be of different Opinions, they are Involved in it, and must: Subscribe.
The Lord Savil desired he might be asked, Whether he ever knew, that when the Major Part did Vote against an Order, they did Subscribe it.
The Manager Answered, That that's their Grief; and though there be no such Course, yet if it concern my Lord of Strafford, he will make it a Course.
Lord Renula a Witness.
Lord Renula being asked, Whether he were present at the Council-Table when this Vote was given, and what he heard concerning the Vote.
He Answered, That he was not there, and he heard very little of it; that the most he heard of it, was since the coming of this Gentleman,
Mr. Hoy, into England; and that to his best Remembrace he heard William Parsons, now Lord Chief Justice, say, He was informed the Major Vote went against Sir Robert Meredith.
And so the Manager concluded the Charge as to the Eighth Article, saying, That here is a Proceeding for a Free-hold, contrary to the Fundamental Laws of the Kingdom, contrary to the Instructions in the manner and measure as their Lordships had heard.
My Lord of Strafford, after some time given for the Recollecting of his Notes, began his Reply in Substance as followeth.
E. of Strafford.
I will, with your Lordships Noble Permission, justifie my self against the Charge of High-Treason Exhibited against me.
Having been blamed by the Gentlemen at the Bar for going to Matters not Pertinent, I shall henceforth keep my felt so that within the Charge, trusting that the things wherewith I am not Charged, shall not dwell with your Lordships to my Prejudice, but that your Lordships will in your Nobleness and Justice reserve to your selves, till in its proper Place and kind, I shall Answer thereunto, conceiving that I am to Answer only to Treason, not to Misdemeanor.
The Charge Opened, is a Decree given by the Deputy and Council of Ireland, to the Subversion of the Fundamental Laws, and to the bringing in of an Arbitrary and Tyrannycal Government.
Whether it be so or no, or whether by any Manner of Construction it can be brought as an Argument to Convince me of High-Treason, I conceive I am to Answer.
Whether the Decree be in it self Just or Unjust, is not the Question, but will come Clearly to your Lordships Judgments upon the Petition of the Party when she shall Sue for her Right. And when it comes to be Charged upon me as a Misdemeanor, I shell give such an Answer as befits me.
There is nothing in this Charge that can be Interpreted Treason, for it is but the Exercising of a Jurisdiction in the Deputy, which he hath Commission for from His Majesty, and the Inlarging of a Jurisdiction in a Judge, I conceive, is not Treason.
The Proofs formerly offered to Prove the Use and Practise of the Deputies (which, I need not Repeat, your Lordships, being Persons of great Wisdom and once said, always said,) come to my Help and Assistance in my Charge, the Question being upon the same Jurisdiction only, and that in one Particular Circumstance I conceive my self Stronger in this Cause than in that of my Lord Mountnorris. This Case being of a Petition Prefered to me, but refered by me to be heard before the Council-Board; and the Witnesses say, That though they did not know nor Remember, that the Deputy himself heard Causes alone, yet it was frequent for the Deputy to receive Petitions, and refer them to the Board. So that I conceive I have Exercised or done nothing, but according to the Practise and Customs of that Kingdom, and consequently cannot be made Use of as an. Argument that I Subvert the Fundamental Laws, or bring in Arbitrary or Tyrannical Government, when I step, in the Paths of my Predecessors, and the Practise of other Men in the like Cases. And that say as to this Point of Jurisdiction.
The next Point I am Charged with is, That the most part of the Council-Board Voted against it; whereas I say in my Answer, the most Part Voted for it, and on that I most humbly insist still, and shall make it clearly appear to be so.
For Proof on the other Side, they have only my Lord Mountnorris his Testimony, who says, They had 12 against the Order, and Nine for it. And Mr. Hoy faith, That an Honourable Person that Night told him, 12 were for him and Nine against him; so it must all be one Man, and one Testimony.
To prove the Major Part was for the Decree, there was the Order Signed under the Clerk of the Council, a Sworn Minister, who could not draw it up without the Plurality of Voices, being against the constant Practice of the Board to do otherwise.
That this was the Practise, I desire my Lord Primat's Examination may be read to the Second, Third, Fourth, Fifth, and Sixth Interrogatories.
Those Examinations which were taken in the Presence of the Peers and Commons, taken this Morning, being admitted to be read, and the former taken in the Absence of the Members of the Commons House, being declared to be suppressed. The said Examinations were read accordingly.
2. To the Second, he knows the Use was to prefer Petitions to all the Chief Governors that have been within these Fifty Years last, but what hath been thereupon he cannot say. This my Lord of Strafford observed is to the Jurisdiction.
3. It is the received Practise of that Board, that the Clerk of the Council, being a sworn Minister, should draw up the Opinions according to the Major Part of the Board.
4. That he hath not known the Earl of Strafford to have at any time urged or pressed any Member of the Board contrary to his own Opinion.
5. That he hath heard him divers times profess he, had but a single Voice, and that Matters were to pass according to the Major Part of the Voices of the Board.
Whence my Lord of Strafford observed, That the Clerk of the Council, being a sworn Officer, is perjured, else the greater Part of the Board was against the Lady Hibbots.
Lord Dillon a Witness.
Robert Lord Dillon being asked concerning the Use of the Board in the Clerk of the Councils drawing up Orders, according to the Major Part of the Votes, and what he had observed in this particular Case.
He Answered, that the Clerk of the Council is a sworn Minister of His Majesty, and by Duty of his Place is to take Notice of the Votes, and accordingly to draw up the rough Draughts of Orders, and to present them to the Board, to see whether they be to the Sense of the Major Part of the Votes. That he was present at the Council-Board when this Cause was Voted, but cannot say, upon his Knowledge, it was drwn up according to the Major Part of the Voices at the Board, for he counted not the Votes; but that was an Inducement to him to believe so, because the Clerk of the Council drew it up so; and it is the Order of the Board, when the Major Part Votes, those that dissent, in regard their Votes are involved,
do commonly Sign, and that he had seen some Sign to the Order which had given Vote against the Decree.
Being asked severally how his Vote passed in this Order, and whether the Major Part did not Vote it, whether my Lord of Strafford did not always submit his Opinion to the Major Part, and whether in a Case that concerned my Lord Renula, there were Eight at the Board, and Four went One way, and Four another, that my Lord of Strafford would not over-rule it, but called in another, and desired the whole Business might be referred to him; whether before my Lord of Strafford's Restraint, this Order was questioned on this Point for want of the Major Part of Voices, and whether at the Signing of it, or any time after, he heard any Counscellor except against the Order.
His Lordship Answered, That he gave his Vote for the Decree that he reckoned not the Votes, but conceives the Major Part were for it; that he Remembers not my Lord Urging any Man to Vote contrary to his Opinion, or over-ruled it, but was content to let it go: That he Remembers not the contrary, but my Lord submitted to the Major Part of the Votes: That in the Business betwixt my Lord Renula Plaintiff and one Ormesby, he Remembers there were but Eight Men at the Board, whereof my Lord-Deputy made one, and Four sell on one side, and Four on the other and my Lord Renula was then Present, as he takes it, though withdrawn at the Instant, and for ought he knows my Lord Renula can say something to it. That when my Lord gave his Vote, he said, He would not take the Priviledge of Casting the Cause, but left it to an absent Counsellor, and which way soever he inclined, the Cause should go; and afterwards that Counsellor did Vote against the Opinion of my Lord-Deputy, and the, Order was drawn up so: That he never heard of any Complaint of the Order, nor heard of the Business, till he came to the Board: That he doth not Remember any Exception taken at the time of the Signing the Order, nor at any time after.
Sir Philip Manwareing being asked concerning the Matter of the Major Part.
Sir Philip Manwareing a Witness.
Answered, That he was Present at the Council-Table, and his Vote went for the Decree, and he conceives the Major Part of the Table did so too, he is very Confident of it; and he doth the rather believe it, because he never knew the contrary Practise at that Board in any Case; besides, he knows the Clerk of the Council is a very Faithful and Careful Servant, being a Sworn Officer; and it is the Duty of his Place to draw up Orders according to the Major Part of the Voices, and that no Member of the Board took Exception at the Signing of this Order that he knows.
For the matter of Imprisoning the Lady, my Lord of Strafford offered, That he hopes it's no great Offence for the Deputy of Ireland to say as much to a Subject that's Bound to perform the Order of the Board, and doth not; I ought not (under favour,) favour lets in that Case; for if Obedience be not had, it is to no Purpose Orders should be made.
For the Words concerning Fining of her, I offer to your Lordships Consideration, that one that gives Testimony thereof is Mr. Hoy, who is a Party Interessed, and to whom the Benefit will accrue of whatsoever shall be Recovered; and that your Lordships may Remember what a ready Story he told, and wronged his Memory, to desire to speak out of his Notes, for I never heard one speak more readily, and conceive he is not in this Particular so intire a Witness to convince me. That the other Witness
is Mr. Hibbots himself, a weak old Man, that hath not Judgment sufficient, but says forward and backward, and may be taken any Way: Therefore his Testimony is not so strong and binding. That suppose I had said the Words, they cannot make a Treason; Fining in Cases of Contempts being usual in Chancery here, to enforce Men to conform to Decrees. However, I stand not charged with it; and when it comes in its proper Place and Time, I trust I shall make a fair and just Answer in it.
The last thing in the Charge, is the conveying of the Lands to Sir Robert Meredith, and others, to my Use, which I deny in my Answer, and under favour, deny it still.
For the Witnesses offered.
I except against Mr. Hoy, as I must, under Favour, as often as I mention it.
That the Words spoken by Sir Robert Meredith, is only his saying, and offered here as a Report; and when Sir Robert speaks for himself, I believe he will say another thing.
That the Testimony of Mr. Fitzgarrett, is but what Sir Philip Percival said; and when Sir Philip comes to be examined hiemself, I trust Your Lordships will find it otherwise, I having never spoke to Sir Philip in all my Life, touching the Business.
When my Lady Hibbots complains of the Injustice of the Decree, before Your Lordships, I hope I shall clear it in its proper Place, but in the mean Time it is no Part of my Charge; and I dare say they would not offer such a thing in Charge, to my Lord Keeper, or my Lord Chief Justice; or if they should offer it, they know they should have a Rebuke; for Lawyers must keep within the Limits of the Charge; and therefore in this Particular, I may reserve myself, without Prejudice in Your Lordships Opinions, till it comes to its proper Place; where I hope I shall justifie my Carriage to be Honest and Faithful, according to the Trust Reposed in me.
His Lordship having finished his Defence, the Manager began his Reply thereunto, in Substance as followeth.
The Managers Reply.
That he shall not need to Labour much in making a Replication, little being Answered to the Charge, which he recited and opened.
That his Lordships Proceedings have in this Matter been contrary to Law, they must rest on their Lordships Memory, the Act of Parliament Cited before, the Instructions, and the Proclamation, the Exercise of a jurisdiction on the Estate of a Lady, without the least Colour of jurisdiction; whereas if there had been any, it would have been heard of.
That his Lordship Answers nothing to his sending for the Party Petitioning, Bidding him go on with the Suit; and Prophesying, that he might have 500l. more: That perhaps it is not Material, whether the Order was Just or Unjust; and my Lord of Strafford, will Answer only to the Jurisdiction. But we Observe, that Yesterday he made a great flourish to the Justness of a Decree, let the Jurisdiction be what it will; and when he cannot Justifie that, then he Declines it.
That my Lord his Pulse is still Beating, that this is no Treason, yet it is an Article to Prove and conduce to the General Charge, of Subverting the Laws; and though he Pretends that these Circumstances, of Purchasing the Lands to his own Use, and Speaking to the Party to proceed, and his Threats, are not to the Purpose; yet under Favour these, and his saying,
when he perceived a great Part to Vote against him, (though not the Major Part, as he says) that he could have kept it in his own Hands, do come home to the Point, That he hath Exercised an Arbitrary Power specially when it is for his own Benefit.
His Pretence, that this Cause was heard before the Lords of the Council, and therein differs from that of my Lord Mountnorris, is no Answer at all; for the Lords of the Council have nothing to do in Matters of Freehold or Inheritance, when it concerns not Plantation, or the Church, or is specially Recommended.
That they concur with my Lord Primates Examination, that the Clerk of the Council should draw up Orders according to the Major Part of the Votes; but what he hath done in this Case, they know not; and how far a Deputy might prevail with the Clerk of the Council, they submit: And there is an Express Proof of one of the Counsellors, that there was 11. or 12. against ther Order, and Nine for it.
And whereas it is said, he is but a single Witness, my Lord of Corke says, though he remembers not which Way the Major Voice went, yet he remembers very well my Lord Deputy express those Words, concerning the making of a Party; which shews, that something was done that did not agree with his Will: And another Witness says, that Sir William Parsons told him, that the Major Vote was against the Order.
And whereas my Lord Strafford pretends, that the Privy-Counsellor that told Mr. Hoy, there were more Voices for his Mother than against her, must be my Lord Mountnorris, That is denied; and we desire Mr. Hoy may in that Point explain himself.
He hath called Sir Philip Maynwaring, and others, that would have Testified the Truth to his Advantage; but not one of them expresses any thing to their Knowledge, but as they believe it; because by the Duty of his Place, the Clerk of the Council ought to have drawn it up occording to the Votes.
The Threats to Imprison and Fine the Lady; and the kind of Threats are proved by two Witnesses, with this addition by one, That he would crack her Estate; which shew a great Fervency in my Lord of Strafford to have the Order Performed; and why should he be so earnest, if he had not had some Game to play afterwards.
If the Conveyance had not been to his own Use, my Lord of Strafford would have Provided his Testimony; It being Proved in whose Name it was, and both they Affirm it to be for the Use of my Lord of Strafford.
Mr. Hoy being asked, whether the Counsellor who told him how the Votes passed, was my Lord Mountnorris or no;
He Answered, That Sir James Erskyn; since Dead, gave him a Note of the Names: And that the Lord Arch-Bishop of Dublin told him presently after, the Vote went on his Mothers side.
Mr. Palmer observed, that the Lord of Strafford draws an Argument, that because there was no Complaint of the Order, therefore there was no Mistake; and desired Mr. Hoy might be asked, why he made no Complaint.
Mr. Hoy being accordingly asked;
Answered, That he was ready to come for England, and to take Ship, and that Evening he went to the Master of the Court of Wards, to take
his leave of him, and to acquaint him with his going. That Sir Paul Davit being there, he and the Master of the Wards, desired him to walk into the Study, perswaded him against his going, telling him of my Lord Deputies great Power; and that he might as well run his head against a Rock, as have any Remedy against my Lord Strafford, as the times go now; and this was very soon after the Decree, and as he conceives, between it and Christmas following.
Being asked, whether Sir Paul Davis shewed him the Order, and whether it was interlined; and by? whose Hand:
He Answered, That he was at the Clerk of the Council to have got a Copy of the Order, and saw the Order interlined with a strange Hand; and asking whose it was, Sir Paul told him, it was my Lord Deputiy's.
E. of Strafford.
Here my Lrd of Strafford observed, That it is very ordinary for the Clerk of the Council to bring Orders to the Deputy, who if he sees cause, mends them.
Sir Dillon being asked, Whether any that Voted in my Lady Hybbots Case, did tell him which way the major part of the Votes in my Lady Hybbots Case went?
He Answered, That a little before his coming out of Ireland, speaking of the Charge against my Lord of Strafford, and particularly of this Cause, one or two of the Privy-Counsel said publickly, The major Part of the Council was for my Lady Hybbots.
E. of Strafford.
To this last Part my Lord of Strafford Answered, with a desire that the Witness might be asked, Whether Justice Parsons be not Father-in-Law to Mr. Hoy; And that this was since his my Lord of Straffords questioning.
And so the 8th Article was concluded, being his Exercise of an Arbitrary Power over the Estates of His Majesty's Subjects; though they have divers other Instances, as in the Case of the Earl of Ely, and my Lord of Killdare, the Prime Earl of that Kingdom.