Historical Collections of Private Passages of State: Volume 8, 1640-41. Originally published by D Browne, London, 1721.
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The First Article.
That the said Earl being President of the said Council, on the 21st of March, a Commission under the Great Seal of England, with certain Schedules of Instructions thereunto annexed, was directed to the said Earl, or others the Commissioners therein named; whereby, among other things, Power and Authority is limited to the said Earl, and others the Commissioners therein named, to hear and determine all offences and Misdemeanours, Suits, Debates, Controversies and Demands, Causes, Things and Matters whatsoever, therein contained, and within certain Precinas in the said Northern parts therein specified, and in such manner as by the said Schedule is limited and appointed.
That amongst other things in the said Instructions, it is directed, That the said President, and others therein appointed, shall hear and determine, according to the Course of Proceedings in the Court of Star-Chamber, divers offences, Deceits and faculties therein mentioned, whether the same be provided for an Acts of Parliament, or not, so that the fines imposed, be not less than by the Act or Acts of Parliament provided against those Offences, is appointed:
That also, amongst other things in the said Instructions, it is directed, That the said President, and others therein appointed, have Power to Examine, Near and Determine, according to the Course of Proceedings in the Court of Chancery,all manner of Complaints for any matter within the said Precinas, as well concerning Lands, Tenements and Dereditaments, either free hold Customary, or Copy-hold, as Leases, and other things therein mentioned; and to stay Proceedings in the Court of Common Law, by Injunction, or otherwise, by all ways and means, as is used in the Court of Chancery.
And although the former Presidents of the said Council had never put in Practice such Instructions, nor had they any such Instructions, yet the said Earl in the Month of May, in the said Eighth year, and divers years following, did put in Practice, Exercise and life, and caused to be used and put in practice, the said Commission and Instructions; and did direct and exercise and exorbitant and unlawful Power and Jurisdiction over the Persons and Estates of His Majesties Subjects in those parts, and did Disinherit divers of His Majesties Subjects in those parts of their Inheritances, Sequestred their Possessions, and did fine, Ransom, Punish, and Imprison them, and caused them to be fined, Ransomed, Punished and Imprisoned, to their Ruine and Destruction; and namely, Sir Coniers Darcy, Sir John Bourcher, and divers others, against the Laws, and in Subversion of the same. And the said Commission and Instructions, were procured and issued by advice of the said Earl.
And he the said Earl, to the intent that such illegal and unjust Power might be exercised with the greater License and Will, did Advise, Counsel, and Procure further directions, in and by the said Instructions to be given, that no Prohibition be granted at all, but in cases where the said Council shall exceed the limits of the said Instructions. And that if any Writ of Habeas Corpus be granted, the party be not discharged till the party perform the Decree and Order of the said Council.
Proofs touching the Commission for Government in the North, enlarged.
The Commission granted 21 Mar. 8 Car. was read, 19 Article whereby my Lord as President, or in his absence the Vice-President, assisted, (prout in the Commission) are authorized to hear, end and determine, according to the Course of proceedings in the Star-Chamber, all and all manner of Forgeries, Extortions, &c. And to Fine, &c. So as the Fines imposed be not less than by the Acts of Parliament is provided, &c.
Article 28. was read, whereby Power is given to send the Sergeant at Arms, and Attach in any part of the Realm of England; and to bring before the Lord President, &c. any person departing the Jurisdiction of that Court, after Commission of Rebellion sued forth.
Article 29. whereby is granted, That no Prohibition be granted in the Court of Westminster, to stay Proceedings in that Court. But in cases where the Court of the President shall exceed the Kings Instructions; and if any Habeas Corpus shall be sued forth for not performing the Order of that Court, the party Committed, not to be discharged, so long as such Orders shall stand in force; and if any Fine be thereupon estreated, The Preasurer and Barons of the Exchequer to discharge it.
Answered, That Sir Thomas Gower his Father, was Arrested in London, by a Sergeant at Arms; That his Father conceiving it to be out of the Instructions at York, did Appeal to the Council-Table: That Mr. Mason argued for his Father, and made it appear, That the President and Council had no Instructions to take a man without the precincts of the Court. That my Lord of Strafford fell on his Knees, and besought the King, That if his Instructions might not be so good as to bring in a Delinquent that had affronted the Court, if by stepping over the water he should go to beyond the precincts of it, he might leave that service, and lay his Bones in his own Cottage.
John Musgrave Sworn; was examined, Whether he knew of any Prohibition sued forth in Vaux his Cause: And whether a Warrant were granted to Attach: What threats my Lord of Strafford used to the party that sued it out, being after Octavo Caroli.
That he knew of an English Suit between Musgrave and Vaux: That upon notice given by Musgrave, a Prohibition was procured; Direction was given, that an Affidavit should be made of serving the Prohibition That Affidavit being made, a Warrant was directed to the Pursevant, or his Deputy, to Arrest Vaux. On which he was directed to the Pursevant, or his Deputy, to Arrest Vaux. On which he was Arrested, and Refused. That after Affidavit made of the Resuce, a further Warrant was sued forth for bringing in of the Resucers from London; which Warrant was now produced. That the Resucers being thereupon brought to York; and having lain several days in Prison, an Information was Exhibited by Sir George Ratcliffe, then the Kings Attorney at York, by relation of Francis Musgrave: To which they did Answer. And after, upon full hearing, That before the Censure, he the Deponent, in Michaelmas Term, before 1632. did come to London on behalf of Francis Musgrave, to move the Court of Common-Pleas, to have the Prohibition dissolved: And likewise Vaux did procure a Rule for a Prohibition in the Information Cause; which the Witness offered to shew under the Court Hand, That it was moved by Sir Robert Heath, that the difference might be referred to Mr. Justice Hutton, and Sir Robert Heath. That he the Deponent undertook for Musgrave, and Vaux did submit: That afterwards, by Sir George Ratcliffes direction, thinking it not fit to refer the Cause, it concerning the Jurisdiction of the Court of York. My Lord President being acquainted with it, the Reference went not on that Term, but stayed till the Presidents pleasure was known; with which Mr. Justice Hutton was made acquainted. That in December, upon his this Deponents return to York; and upon hearing the Information Cause; December 1632. Sir George Ratcliffe did offer to the Court, (the Lord President being there) whether he might go on in the Information Cause; (for that there was a Reference between Musgrave and Vaux, to Justice Hutton and Sir Robert Heath) or whether the Reference might go on or no? That the Lord President thereupon answered, That a Rule for a Prohibition, was no Prohibition; but if there were one, he would not obey it: And whosoever brought a Prohibition there, he would lay him by the Heels. And as he the Deponent remembered, he directed his Speech to the Register of the Court; and told him, there was a Letter from the King to that purpose: but that, he said, he could not very well remember. And as touching the Reference, my Lord said, It was a Cause that concerned the Jurisdiction of the Court of York; and no private man should end it: He would try the Jurisdiction of the Court upon it; and the next Term would go to London, and acquaint the Judges with it; and if they remanded the Cause back again, so; if not, he would Appeal to the King in it.
That after Christmas, in Candlemas Term, 1632. He the Deponent went to London with my Lord, and moved again for dissolving the Prohibition, and for Liberty to proceed. That again it was agreed between the Judges of the Court, and my Lord, to have a Treaty: And several Treaties they had, but could not agree. The effect of the Treaty was, That if a Trial could be directed at Law upon a feigned Action, I should go to Law, reserving the Equity to the Court; if not, that the Judges would remand the Cause back again. But after they had several days met, and no Trial could be directed, nor any Action devised at Law to try it, my Lord thereupon said, He would give no further meeting, but would Appeal to the King; and the party should Petition: On which, a Petition was drawn, which the Deponent offered. And the Judge speaking something of Vaux, my Lord said, he should not be in England, but he would have his Body; or words to that purpose.
He Answered, He would give the best account he could of what passed; being divers years since: That he was with Justice Hutton in his Study and they had Conference together (as they had many times) touching that height that my Lord of Strafford was pleased to carry the business of York-shire with: And that amongst other things, my Lord was pleased to say, my Lord had been with him, and shewed himself very angry with him, because he had granted a Prohibition. And this is all he could remember; He took it to be seven years ago, and in the Cause that concerned Vaux, as he took it; and this was at London: And added, That the Judge spake with a great deal of Passion, to think things should be carried in that manner as they were, that the Judges should not have Liberty to grant prohibitions: For the Judge said, that he had thus debated the business with my Lord, Why should you be angry for granting of Prohibitions? They in the Kings-Bench can grant Writs of Error to examine our Proceedings; and we think it no offence, and hold our selves as able to Judge, as they: And it is the Justice of the Law that requires it to be so; and therefore you must submit to us, as we must submit to them.
That he should give over moving for Prohibitions, which he did not understand to be a fault, since the Justice of the Kingdom was, that they should be granted; and it continued a matter of a year after.
That then he took an occasion to go to my Lord House to Gantropp; and his Errand was, partly to present his humble Duty and Service to his Lordship; and in the second place, if he could have opportunity, and if his Lordship would please to speak with him, to give his Lordship satisfaction in any thing he had done in that particular; because it was conceived, he opposed the Jurisdiction of that Court.
That after he had the Favour to speak with his Lordship, (which was long first) He was pleased to say no otherwise than thus, I have nothing to say to you, you are one that oppose me: But the present I have eased you of the Office of Justice of the Peace; so you need not trouble your self with that.
That he did humbly thank his Honour for it; for howsoever he meant it, he took it to be no dis-favour, but a Courtesie, he having been in three or four years, but not executing any Authority, it standing not with his occasions.
And his Lordship added, Hereafter you and I shall speak further of the business; That afterwards his Lordship met him in London, in the Inner Star-Chamber, he then attending on a motion day before the Lord Keeper, amongst others of his Rank.
That my Lord President was pleased to come behind his back, and lay his hand on his shoulder, and said, I Command you not to depart the Town. That the words were something strange to him; and not understanding well what his Lordship meant by it, he instantly went to his Lordship, and desired that he might know his mind, he not very well hearing him.
That for a matter of a Week, or such a thing, he did attend under this Command: And then applyed himself to his Lordship, by all Means and Friends that he could. He Petitioned three or four times; he is uncertain which: He made means, by Persons of Quality, to his Lordship, That his Lordship would tell him the place where he was to attend, or the Cause for what, or the Person before whom; but his Lordship was not pleased to give him any satisfaction: only thus much he received, That he was one that did oppose his Lordship, and he should attend. Seeing there was no Remedy, he made his Address to a Noble Friend present, and acquainted him with the business; who was pleased to take the matter so to heart, as to move it to his Lordship.
That then he conceived the fault he had committed, The not paying the Knighthood money in York-shire. And his the Deponents Answer was, he had offered it, but was not chargeable by Law; for he had not 40 l. a year three years before the Coronation, as the Writ did enjoyn.
F. Thorpe proceeded, and said, He could not say he punished him for the Prohibition; but he conceived, all did follow because he moved sometimes for Prohibitions: And that he had opposed his Authority and Power in York-shire.
The Charge against my Lord of Strafford, is not only the Executing of these Instructions; but also the exercising of an exorbitant and unlawful Power and Jurisdiction, over the Persons and Estates of His Majesties Subjects, To which the matter offered by the Witnesses is material.
That no man living hath less desire to speak of my Lord of Strafford, than he had; and if he had not been asked this Question on his Oath, and before that Presence, and on this Command, he should not have said it: For what he said now, he never had spoke before; and with what Sorrow he came now to speak it, he knew; and said, that he spake not this to any other purpose, but only, That these things which were done, were done on the occasion of the Prohibitions. For the matter of Knighting-money, though it were made the cause of staying him in London, yet, under favour, (he said) That was not, nor could be the Cause; For he had offered it below in the Country, only thus, That he was not Chargeable by Law, but very willing to pay it, if my Lord would have him pay it; so he might comply with his Lordship, or serve any occasion wherein his Lordship was employed.
And therefore that of Knighting was the occasion taken, yet he conceived that was not the true occasion. And lastly, that after he had been kept 12 or 14 days under this Command, his Lordship was pleased (on that which passed between that noble Lord (my Friend) and his Lordship) to give him leave to go home, and then he paid the money.
He answered, For his own particular he hath forborn, and durst not adventure it, nor any that had to do with him in those parts, as he knew, durst move till of very late; For he knew very well the price of my Lord of Strafford's displeasure.
To your Lordships Order, and in all things, I shall pay Obedience, I desire nothing in the World but a clear understanding of the Truth in this business, and so I am sure every man doth that hears me; and without Offence, and with all Reverence, I humbly offer, That the Witnesses may stand apart from the Committee for the Commons, the Committee asking the Witnesses many questions, which I conceive, by your Lordships Rule, should be asked by your Lordships only; For which I crave pardon, if I have offended in moving of it, I standing for my Life, and which is dearer, my Honour, and my Children.
That the Pursevant attending the council at York, came to his house, and carried him before the Lord President and Council, where he attended a day, and then had liberty to speak with my Lord; That his Lordship was pleased to tell him, there was an Accusation against him, but they that laid it were not come to Town, therefore he must attend; and that they were his betters, and therefore he had reason to attend: He desired to know what it was, but could not have that favour; but some eight days after (being in the mean time in the Pursevants Custody) he was brought to the Council-Table again, and his Lordship sitting at the upper end, commanded him to kneel, he coming as a Delinquent; which he did accordingly, bringing with him a spirit of submission, knowing very well his ruine depended on his opposition, and on his rising, his Lordship was offended, he stayed no longer kneeling.
Afterwards a Letter was read from some Gentlemen in the Country, wherein they had written, That I had spoken at the Sessions a little more than became me to the Court, in defence of a Client, on a Traverse to an Indictment. And what they had written (I confessed) was very true; for it was thus; upon the Traverse of an Indictment, the question being, Whether the bare Indictment were Evidence to the Petit Jury, I did say it was no Evidence, and I desired to Appeal to the Judges. My Lord President was pleased to say, He would teach me to know, there were other men for me to complain to, viz. The President and the Council. I told his Lordship, I was ready to the Kings learned Council, Whether it was not Law what I spoke. I was then put out, and direction sent, I must find Sureties, and make publick submission at the Sessions for saying these words: I'did find Sureties, and when I went to Sir W. Ellis to enter the Recognizance, He told me, I am sorry, but I cannot help you, for my Lord of Strafford over-ruled us; and you are to be bound to the good Behaviour, and make submission at the sessions: And he said further, That he was enjoyned, he did perform. And all this, I conceive, originally grew; for that I did oppose the Jurisdiction of the Court at York, and not for the Causes pretended. And this binding to my good Behaviour was eight or ten years ago.
I desire a little time to retire: And after some debating thereof betwixt his Lordship and the Committee, It was Resolved his Lordship should have some little space to rest, and peruse his Notes at the Bar, which the Manager alledged to be unusual in any Court of Justice in a proceeding of this Nature.
My Lords, there is a great deal of difference betwixt the case of a man that answers for a bloody, hainous, and known Treason, by the Statutes of the Realm, before the Lord Steward and his Peers, in an ordinary way of proceeding; and him that answers a mixt Charge, partly Misdemeanors, and partly (as apprehended) Treason. There is nothing in this that can be Treason, and when 1000 misdemeanors will not make one Felony, shall 28 Misdemeanors heighten it to a Treason? And in that Point, in due time, I shall desire my Council may express themselves, Whether any thing in this Charge (admit it all to be true) be Treason, that if they be but Misdemeanors, I should be admitted Council, and examine Witnesses by Commission. I had no leave to summon a Witness before Friday last, and the greatest part of my Proofs and Charge comes out of Ireland; and to be debarred from these, under pretence of Treason, I conceive to be, in this Case, a little severe. But I shall proceed to my Defence.
The Commission and Instructions to the President and Council of York, are of course renewed on the death of one of the Council of the Fee in Ordinary, and the putting in of a Counsellor at large, is only by Letter.
That in the Case of such Renewing, the Kings Council of the Fee, do by the Secretary, offer the Kings learned Council such things as they conceive conducing to the clearing and bettering of the Kings Service in those parts: And it finally comes to the Lord Keeper or Lord Chancellor, and they agree it.
As to the Execution of it, from the date of that Commission to this hour, I did never one Act, nor stayed a minute as President of the Council of York. The Commission being granted 21 March Oct Car. and I went towards Ireland in July following, which I can prove by my Servants, if they might be sworn. And before I be convinced of a Misdemeanor, I conceive they must be sworn: But that now I answer only to Treason.
If I were neither privy to the taking out of the Commission, nor any way employed in the executing of it, I Appeal unto your Lordships, and the Gentlemen of the House of Commons, Whether I can be charged as Criminal, as to this Commission, or any thing that Proceeds from it.
That if there be an Errour in a Judge, so that he give a Sentence otherwise than a man of better understanding conceives reason for, there is no cause it should be heightned to a Treason, to take from him his Life and Honour, and all he hath, meerly because he was not so wise a man as he might have been, nor so understanding as another: And if this be prest on Judges, I think few Judges will serve. And for my part, I had rather go to my Cottage, as the Witness faith, than serve on these Terms.
That as to the Sentence of Sir John Bourcher, which is charged upon me, but not insisted upon by the Gentleman; I was no way acquainted with the beginning, proceeding, or ending of the Cause, being all that while in Ireland; so Your Lordships may observe with what uncertainty men may speak, that do inform in such Cases.
That of the Commission, the 13th of the King, with which I am likewise charged, as the Procurer of it, I had no more knowledge, than of that which was most foreign; being at that time in Ireland, and the Commission renewed of one of the Council in Fee.
To the Testimonies given by the Witnesses, I observe, That John Gower, the first Witness, speaks nothing to the renewing of the Commission, but to his Fathers Commitment; and that was in November, but what year, Non liquet. But this is not within my Charge, therefore I shall not Answer to that; Though if it were in Charge, I doubt not, but in that, and every thing else, I shall give an account of an honest and just man, not to say of a discreet, and a wise man.
That for the Testimony of John Musgrave, it contains nothing within my Charge: and I can say nothing to it, but by way of Divination. And he is but a single Witness; And therefore I conceive, shall hardly be able to convince any man of High Treason, hardly of a Trespass.
That what John Musgrave Speaks of, is grounded on a question of the Jurisdiction of Courts; and one rule of our Law is, Boni judicis est amplicare Jurisdictionem. And why the enlarging of a Jurisdiction should be heightned to a Treason, I Appeal to Your Lordships Nobleness, Justice and Honour, to consider; for I think there are none in place of Judicatures but they will desire to enlarge their Jurisdiction, as far as in reason and Justice they may: And it is a chast Ambition (if rightly placed) to have as much Power as may be, That there may be Power to do the more good in the place where a man lives.
For F. Thorpe's Testimony, I observe, That I have nothing to say to him of Exception; but that he speaks nothing to the purpose, nor to anything in the charge, I being Charged with the Execution of the Commission 8 and 13 of the King; and all he speaks of, is precedent in time: And what he says, is by hear-say from Mr. Justice Hutton, and Sir William Ellis. I do not remember my Lord Gorings speaking to me about Mr. Thorpe, it being 12, 13, or 14 years ago. I have put in my Answer, and if that be not Impeached by Testimony of Witnesses (as it is not) I conceive it ought to be allowed.
His Lordship offered to prove his being in Ireland when Sir John Bourcher was censured by the Vice-President and Council; But the Commons not pressing his Lordship in that matter, he said, If it be granted, I have done.
That my Lord of Strafford fell on his Kness, desiring from His Majesty an enlarging of his Power; else that he might go home: So going out of England in July after, the Commission answers to the Procurement that was before.
We produce J. Musgrave, only to shew my Lords Violence about Prohibitions, before this Commission was procured; He growing so high a little before, That he would lay them by the Heels that brought the Kings Writ; The Council were awed, that they durst not demand Justice: So that the procuring of it, suited most with his Design.
That whereas it is said, the Charge is not Treason; if the Fact shall appear to their Lordships, satisfaction will in good time be given. That though this particular is not Treason, yet all the parts of it amount to the Subversion of the Laws of the Kingdom; That is press as Treason, and this as an Evidence.