The trial of Strafford
The ninth article

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History of Parliament Trust

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Author

John Rushworth

Year published

1721

Pages

236-241

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'The trial of Strafford: The ninth article', Historical Collections of Private Passages of State: Volume 8: 1640-41 (1721), pp. 236-241. URL: http://www.british-history.ac.uk/report.aspx?compid=84223 Date accessed: 16 September 2014.


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The Ninth Article.

The Charge.

That the said Earl of Strafford, the sixteenth Day of February, in the Twelfth Year of His Majesty's Reign, assuming to himself a Power above, and against Law, took upon him by a general Warrant under his Hand, to give Power to the Lord Bishop of Downe and Connor, his Chancellor, or Chancellors, and their several Officers thereto to be appointed, to Attach and Arrest the Bodies of all such of the Meaner and Poor sort, who after Citation, should either refuse to appear before them, or Appearing, should omit, or deny to Perform, or undergo all Lawful Decrees, Sentences and Divers, issued, imposed, or given out against them, and them to Commit, and keep in the next Goal, until they should either Perform such Sentences, or put in sufficient Bail, to shew some reason before the Council-Table, of such their contempt and neglect; and the said Earl, the Day and Year last mentioned, Signed and Issued a Warrant to that effect; and made the like Warrants to several other Bishops, and their Chancellors, in the said Realm of Ireland, to the same effect.

Mr. Glyn opened the Ninth Article, charging my Lord of Strafford with Assuming of a Power above Law, in Granting of a general Warrant to the Bishop of Downe and Conner, to Attach such Persons of the meaner sort as should not appear on their Citation, to Apprehend their Bodies, and bring them before the Council; an Act so High, that Higher could not be, unless it extended to Life, as in my Lord Mountnorris his Case; to grant a Warrant at Pleasure contrary to Law, to Apprehend the Bodies of His Majesty's Subjects, that Live under the Protection of the Law; which if it be made good, will be of great might, and prove the Charge fully.

A Copy of the Warrant being Produced, my Lord of Strafford excepted against it, as not to be Read, by the Proceedings of the Court, being not the Original.

To which the Council at the Bar Answered, That that's the Way to shelter any Crime, if none but the Original Warrants in such Cases should be admitted; it being no Record that they may repair to it. And their Lordships being desired that a Witness might be heard, what he can say for the attesting of it; after which, it will be proper for their Lordships to judge of the Copy.

Sir Fa. Montgomery a Witness.

Sir James Mountgomery Sworn, and asked whether he saw the Original Warrant; and whether this be a true Copy.

He Answered, He can depose, that he hath seen the Original Warrant, and read it; and that the Bishop of Derry did shew it himself. That this Copy, he believes, both in Matter and Words, to be a true Copy; for he hath another Copy agreeing with this; and that he knows this Warrant hath been put in Execution many times; and he himself hath been charged to assist them that have put it in Execution, by Virtue of this Warrant.

Thereupon the Warrant was read; being in effect as followeth.

By the Lord Deputy.

Forasmuch as We have been informed by the Right Reverend Father in God the Lord Bishop of Downe and Conner, that the most frequent Offences against God, and the greatest Contempts against the Ecclesiastical Jurisdiction, are Committed be the meaner and poorer sort of People in that Diocess; whose Faults for the most Part, escape unpunished, by Reason the Writ de Excommunicato Capiendo, is so long before it can be Sued forth, and Executed on them, that they remove to other Parts, and cannot be found; or if they be taken, their Poverty is Such, that they cannot satisfie the Sheriff, and other Officers Fees, due for taking them on that Writ; whereby the Officers become negligent, and backward of doing their Duties. We therefore desiring the Suppression of Sin, and Reformation of Manners, have thought fit to Strengthen the Ecclesiastical Authority of the said Right Reverend Father in God, the Lord Bishop of Downe and Conner, with our Secular Power, and do therefore hereby give Power and Authority to the said Lord Bishop, his Chancellor or Chancellors, by their several Officers by them to be appointed, to Arrest and Attach the Bodies of all such of the meaner and poorer Sort, that afer Citation, shall refuse to appear before them, or appearing, shall omit or deny to perform and undergo all Lawful Decrees, Sentences and Orders, issued, imposed, and given out against them, and them so Arrested to Commit, and keep in the next Goal, till they shall perform such Sentences, or put in sufficient Bond, to shew some Reasons before the Council-Table of such their Contempts, &c. willing all Justices of the Peace, &c. in that Diocess, to be Aiding, &c. as they, &c. Given, &c. Febr. 16. 1636.

Tho. Little.

Mr. Glyn opened the several Parts of the Warrant, and offered, that it was expresly against Law, putting their Lordships in mind of the former Words, That he would make an Act; of State equal to an Act of Parliament: But now he is better than his Word; for he will make an Act of State higher than an Act of Parliament: For whereas by the Law, no Subject of the Kings, in any Ecclesiastical Court, may be taken till he be cited; and then on Disobedience, he is Excommunicated; and on Excommunication, there is a Writ called, Capias Excommunicatum, by Virtue of which he is apprehended. Now my Lord of Strafford Issues a Warrant to take him, if he appear not on Citation, breaking through the Law, and making no Matter of that, but he will make a Law that extends to the Liberty of the Subject.

And if this had never been put in Execution, it had been all one to the Purpose of the Commons; for this shews how, being intrusted with the Kings Law in Ireland, he Discharges that Trust. But for Execution, they desired Witnesses might be heard.

Sir James Mountgomery being asked, how this Warrant was Executed; and the Kings Subjects used under Colour of his Authority:

He Answered, That he hath seen several Warrants that have Issued under the Hand of the Bishop of Downe's Chancellor, sometimes to the Constables, sometimes to his own Apparitors, with their Assistance for to apprehend the Persons Under-named; That there have sometimes Twenty, sometimes Thirty, sometimes more, sometimes less Names, been put in the Warrant. That he hath known them Executed with great Cruelty, sometimes Wounding, Beating, Imprisoning them.

Being asked on my Lord of Straffords Motion, how long since he knew any thing done upon that Warrant:

He Answered, Since the time of the Warrant granted; and he thinks the Warrant bears Date February 1636. till of late, much about this time Twelve-Month, which was the last time he was charged himself, to be Assistant to the Execution of it. That he heard the Bishop of Derry had taken up the Warrants in Sommer last, on many and frequent Complaints that had come; and had withdrawn it from the Bishop of Downe about July last.

Manager.

The Manager closed this Article, Observing, that my Lord of Strafford not only takes this Power, but gives it over to others; and see how they do Execute it over the Kings Subjects; Knights, and Men of Eminency must be called to assist; and therefore it was high time to Accuse my Lord of Strafford of Subverting the Laws of Ireland.

And so expected his Lordships Answer.

My Lord of Strafford began his Defence, in effect as followeth.

E. of Strafford.

Such Warrants have been Usually granted to the Bishops of Ireland, in times of all former Deputies.

But not satisfied with the Convenience thereof, I refused to give such Warrants generally, as was formerly used.

Being informed that divers in the Bishoprick of Downe gave not fitting Obedience, I gave this Warrant, being the only Warrant of this kind that I granted; and hearing Complaints of the Execution of it, I called it in again.

They have produced only a Copy of the Original Warrant, and what Words may be omitted that's in the Original, God knows; and I think, under Favour, it would not be an Evidence at the Kings Bench Bar.

And this stands with the Practice of former Deputies, to grant such Warrants of Assistance to the Bishops.

The Lord of Primate of Ireland, his Examination Read.

To the 7th Interrogatory, That he Remembers his immediate Predecessor in the Bishoprick of Meath told him, he had a Warrant of Assistance from the then Lord Deputy, who was either the Lord Chichester, or the Lord Grandison; That the Recusants in his Diocess desired it might be so, for the saving of those Charges which would come on them by the Writs de Excomnunicat' Capiendo.

Robert Lord Dillon, being asked whether he had known formerly such Warrants to be granted, and by whom.

He Answered, He hath heard Writs of Assistance have been granted by former Deputies, but he Remembers not that ever he saw any.

Mr. Tho. Little being asked, whether this Warrant was granted according to former Presidents:

He Answered, that he hath seen one of the Original Warrants before my Lords coming there; and that it was brought to him to draw another by; And going to lnstance in some Copies seen in my Lord of Faulklands Book of Entries.

Manager.

The Manager Excepted against him, for meddling with a Book formerly Over-ruled.

Mr. Little proceeds, That he hath seen an Original Warrant by which this was drawn, and it was under my Lord of Faulkland's hand; and this was made according to that Pattern.

Being asked, whether my Lord of Strafford, did not restrain, and give Direction to him not to Issue any other Warrant of that nature:

He Answered, There was no more made but this, though divers required them, my Lord forbidding him at all times afterwards.

E.of Strafford.

My Lord of Strafford offered his humble Request to their Lordships, that in all things that concern the Irish Charge, they will Please to Remember, it was not possible for him to procure any Witnesses in this short time of his Trial, having not Liberty till Friday was Seven Night; These things being Notorious, and might have been Cleared if he had had Time.

He added, That whether this be a True Copy of the Warrant or no, I cannot tell, but likely enough it is.

That it was Moved for by the Bishop of Downe and Connor, to whom, for some Reasons, I was willing to grant it; but being afterwards told by Sir George Ratcliffe, that he Doubted whether it was Legal or no, I called it in again, and never granted any but this.

That (as Appears in the Proof,) I sent to the Bishop of Derry, and desired him to call in the Warrant, and so he did long before this Complaint: And thence I infer, that it could not Argue my Intention to break the same.

Whereas the Gentleman at the Bar said, that I had been better than my Word; for I had said an Act of State should be as good as an Act of Parliament; but here I made an Act of State better than an Act of Parliament. I Observe, that he is willing to make me better than my Word, when it may be for my Disadvantage; but is willing to make me worse than my Word, when by Disproving me, he may hurt me That therefore it befits me to do as well as I can for my self in this Case; yet not to take it amiss from the Gentleman, who doth but his Duty.

Finally, I conceive it not Treason in me to follow the Precedent and Practice of those which have gone before me, which though it be not altogether so Legal, yet I hope it is not Treasonable. Nor is it Treason to mistake the Law; if it should, there would be more Actions of Treason than Trespass in Westminster-Hall; for I think few understand it, I do not I am sure.

And so I hope this shall never rise up in Judgment against me in itself, or as a concurrent Argument towards Treason.

Mr. Glyn Replied, in substance as followeth:

Manager.

What my Lord of Strafford is Charged with, he Confesses to be an Authority above Law; and that it is not Justifiable.

Yet he would justifie it by the Practice of his Predecessors, wherein the Examination of my Lord Primate, offered for Proof thereof, aggravates the Offence, the Warrant therein mentioned, being procured at the Request of the Papists; and perhaps it might be so now: but the Protestants have been Oppressed by it. That was to save the Charge of a Capias Excommunicatum, which was the Process Issued upon Excommunication; but by this Warrant they must be taken on the Citation, downright Club-Law, having in Similitude the Civil Law.

That his own Secretary that made the Warrant, and is as guilty as himself, tells of a Precedent, according to which he made this; Therefore the Copy produced is a true Copy, else he says not truth.

That whereas his Lordship says it is a single Act, and as soon as he had notice of the Illegality of it, he recalled it, and therefore it should not be laid to his Charge: Indeed if it were a single Act, this Answer might be taken; but when in the Case of my Lord of Corke his Inheritance was to be Determined, and desired the Benefit of the Law, did my Lord of Strafford suffer the Course of Law to go on: Now when he is pleased to make an excuse for himself, he calls it in; but when in matter of Life and Inheritance concerning Peers, Right is demanded, he denies it. If this single Act be compared with other Exorbitant Proceedings, we refer it to Your Lordships Wisdom and Justice, whether it be not a strong Evidence to prove his Subverting of the Laws.

After some Discourse touching their Proceeding on with the 10th Article, for that the same would hold long, the Day far spent, and my Lord Cottington and Sir Arthur lngram, Material Witnesses for my Lord of Strafford, (as he alledged) were absent; for whose Examination his Lordship desired a Commission, Their Lordships Adjourned the House.