Historical Collections of Private Passages of State: Volume 8, 1640-41. Originally published by D Browne, London, 1721.
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The Second Article.
That should after the obtaining the said Commission, dated the 21st of March, in the Eighth pear of his Majesties Reigh, (to wit) the last day of August then next following, he the said Earl (to being his Majesties Liege People into a dislike of his Majesty, and of His Government, and to terrific the Justices of the Peace from executing of the Laws: We the said Earl being then Provident, as alone said, and a Justice of Peace) did publickly, at the Assizes held for the Country of York, in the city of York, in and upon the laid last day of August, declare and public before the People there attending for the Administration of Justice according to Law, and in the presence of the Justice sitting, That some of the Justices were all for Law, and nothing would please them but Law; but then would find, that the Kings little Singer should be heavier than the Loyns of the Law.
For that, we desire to produce Witnesses, and they will shew how my Lord of Strafford is mistaken in his Answer: Or if he says true, As he slanders the King in one sense, so he slanders the Law in another.
William Long sworn, and interrogated, What words he heard my Lord of Strafford speak concerning the comparison between the Kings little Finger, and the Loyns of the Law, On what occasion, where, and at what time?
That some, nothing would content but Law; but they should know, The Kings little Finger should be heavier than the Loyns of the Law: And this was spoken in the place where the Judges sate in York-Castle, at the Assizes that year.
Who Answered, My Lord said, Some would not be satisfied but by Law; but they should have Law enough; for they should find the Kings little Finger, to be heavier than the Loyns of the Law. His Lordship being on the Bench then with the Judges at that time, and abundance of the Country being there then at Lammas Affizes, at the Castle-Bench; And he thinks it was 1632. or 1633. but he knew not the occasion.
Answered, That since his coming out of York-shire, he heard a report from his Neighbours, that M.P. is dead and buried, that he the Deponent, lived a Mile from the said Marmaduke Potter; which is Ninescore and Ten Miles from this place; but he heard no particular of the day of his burial.
That about eight years since, when Sir Thomas Leyton was Sheriff of York-shire, he heard the Earl of Strafford make a Speech publickly at the Bench at Summer-Affizes; and he said then, That the Kings little Finger should be heavier then the Loyns of the Law.
I know not whether it were material for me to Answer this, or no: but as the Charge is laid, it is impossible I should be guilty of the words: For it is laid to be the last of August, next following the 21st of March, in the Eighth year of His Majesties Reign; which falls out to be when I was in Ireland.
The words confessed in my Answer, are quite contrary, being, that the little Finger of the Law, was heavier than the Kings Loyns. And that I set forth in my Answer, and the occasion of them; which these Witnesses do not, or else will not, remember. The occasion was this:
There came divers Levies in the year when Sir Thomas Leyton was Sheriff, for divers great sums of money for issues in the Knighting-business, on some that had compounded, and paid their money to me, the Receiver of that money then, and by me answered in the Exchequer; yet these issued came down, through some Errour above, and were levied with very great rigour by Sir Thomas Leyton.
When I came down, I spake with Sir Thomas Leyton, and shewed him how the men were injured; and did desire him to return the money to them again, and I would see him discharged in the Exchequer, which he was contented to do. And then, to give satisfaction to the Country, I told them, That Commission was a Commission of Grace and Favour, and that their Compounding with the King, was an case to them, and much greater ease than by a proceeding at Law would have fallen on them, the very first issues being three or four times more than they had compounded the whole for. And thereupon I applied that Speech, That the little Finger of the Law was heavier than the Loyns of the King. For if I should then have fallen to threaten them, I had spoken contrary to the end I had proposed, which was to incline them: And further, that not one of the Witnesses spoke any thing to the occasion of the Speech.
That it is long since, and was never yet complained of; and that man must have a stronger memory than I, that will undertake to swear positively the very words spoken seven or eight years ago: And, under favour, he ought to have better Ears than Sir Thomas Leyton, who appears to have such and infirmity in Hearing, that he must now be whoopt to at the Bar, before he can hear; and sure his sence of hearing is much decayed, else he could not have heard me speaking at that distance to the place where the Sheriff sits in an open place, as far distant as from the Bar where I now stand, to my Lord Steward, or very near.
He Answered, He came from Durham, being sent for on other occasions; That he was at York in his Journey from Durham, the first day of the Assizes; and being at Dinner at Dr. Stanhopps, there came a Gent. sir Edward Stanhopp, who called Dr. Stanhopp Uncle, from the Assizes. That the Doctor asked what news, especially concerning my Lord Presidents Speech, he told them, that he prest hard to hear, and could tell some passages of it. Then they asked what they were? says he, My Lord President was speaking of this, That the way of the Prerogative was in some particulars, easier than the Common Law: And in his expression, he said these words, The little Finger of the Common Law, is heavier than the Loyns of the King. This the said Sir Edward Stanhopp told him, in the presence of divers others, who he thinks, do remember the words were so related; and that he had related them often since, and never took it otherwise, till he saw it in the Charge; and there it was clear otherwise.
Sir William Pennyman being asked, whether he was present at the time when my Lord of Strafford spoke the words of comparison, between the Kings little Finger, and the Loyns of the Law; what was spoke, and what was the occasion:
He Answered, That he was present at the Assizes at York at that time, and heard my Lord speak these words in another order and position, than is testified by these three Witnesses. And in truth (he said) he could with he spake now on his Oath, for he knew he spake ion much disadvantage; The occasion was this, A Rumour was cast up and down in the Country, That my Lord of Strafford had received great sums of money concerning Knighthood, which he had detained in his own hands, and not paid into the Exchequer; Hearing of this, his Lordship thought himself much wronged in it, and took occasion to vindicate himself; and there spoke of it, and told them, (to the best of his remembrance) there was some omission on the Secretaries part, or some of the Officers of the Exchequer. Hereupon my Lord took occasion to discourse of the Legality of Knighthood-money; and told them, Gentlemen, you may see this is a Commission of Grace and Favour: for whereas you may compound with the King for a matter of 20 or 30 l. you have in two or three Terms, run in to great sums. He added, That he did not remember the proportion; but the Inference was, So that you may see, that the little Finger of the Law is heavier than the Loyns of the King.
My Lords, I desire my Answer may be read; wherein, the occasion, and the words, are directly set forth, quite contrary to those in the Charge; and I protest, that I will take my Oath on it, That it was so.
And my humble request is, That no Witness I produce, may be prejudiced for any Testimony he shall give there, being with the Liberty and Allowance of both Houses. For if they should be discountenanced, nay, punished for it, I should think my self a very unhappy man indeed; and rather than I should prejudice any man in that kind, I profess, I would put my self on Gods mercy and goodness, and not make use of any member of either House, (and my principal Witnesses must be of both Houses) rather than acquit my self by their prejudice; for I account it an unjust thing to overthrow another to save my self.
The Testimony of a Member of the House, hath great credit in the House, and they take not the least exception against Sir William Pennyman, for any thing he said before their Lordships, but wish he may speak with clearness and truth; but had he informed this particular himself to the House, he had done my Lord of Strafford more right, than by not informing, to let it come in Charge; and bring in his Testimony contrary to his Vote. When a Witness hears a thing in question, though it be not, required of him, certainly he should vindicate the Reputation of his Friend, in contradicting it in season, but it is not so done; and certainly his silence to the House, was not well.
My Lords, This concerns me nearly, This Gentleman, Sir William Pennyman, is my noble Friend, and a Worthy Gentleman; and I would give him my Life on any occasion: but I know him to be a Person so full of Virtue and Nobleness, that he would not speak an untruth for all the world; perhaps he might not think sit to speak it in the House, men are left at their liberty.
The Charge came out in Print very lately, and whether Sir William Pennyman might know any thing of it, I leave it to those that better understand it. But with this humble Request to the noble and worthy Gentlemen of the commons House, that they would please to regard it so, that no man may suffer me, I protest I had rather suffer ten thousand times my self.
The Lord Steward concluded this matter, That his Lordship is put upon the Trial of his Peers, who will give him all fair Respect. That his Lordship shall be denied no just way for his clearing; that he could say nothing in the Name of the Lords to this particular that's come out on the present, nor these Gentlemen in the name of the Commons, only he may be sure to find all that is fit; which may Lord of Strafford said he doubted not, and hoped their Lordships would pardon him for moving it, it concerning him very much.
As to the mistake in point of time, the Commons laying it to be after the Commission 21 March, 8 Reg. and prove it to be before the time, is not at all material. The offence is not that he spake it on that day, but that he spake the words.
The Exception to Sir Thomas Leyton's Testimony, that he had need to have better Ears; he is a Gentleman of worth, his Deposition is on Oath, and he knew best what he Heard; the truth is, he stood within little distance of my Lord when he spake the words, and hath not been Deaf above two months, and two other Witnesses concur fully with him.
For Doctor Duncombe, whether he be the man that laid Aspersions in the North on some Noble Lords, I know not; but his Testimony only is, that he neard so from one that spake it at the Table, not upon Oath, and not knowing what use would be made of it. And another Witness shall be produced, that will speak to the occasion, and that it was not the matter of Knighting-money.
My Lord of Strafford desired it might be asked the Witness, Whether he fate on the Seat where the Sheriff uses to fit, he answered Affirmatively. His Lordship excepted against his Testimony, himself sitting where the President uses to sit, betwixt my Lord Chief Baron and Mr. Justice Vernon: And he Appealed to my Lord Chief Baron, Whether the Presidents Seat and the Sheriffs Seat, be not as far distant, very near as far, as from his Lordships then station to the Lord Steward.
Here the Committee offered other Witnesses, but my Lord of Strafford desired their Lordships Judgment, Whether they should not bring all together, which the Lord Steward declared they might as to this Point.
My Lords, He is no competent Witness, he lying in the Fleet, on a Sentence in the Star-Chamber at my Suit, being fined for divers things he had said which concerned my self, which depended on this in question, and conducing to it.
He comes not at his own Request or Suit, but in a Suit that concerns His Majesty and the Commonwealth, and might offer the Presidents own Rule in the Case, but that the Law speaks for him; that a Witness ought to be heard in this Cause, though there have been particular ill affections between them, and your Lordships well know how to compare him with other Witnesses, and to value him accordingly.
Sir David Fowles being Sworn, the Lord Steward put them in mind of the former Caution, that their Lordships would judge the value of his Testimony, the Committee not admitting what was excepted against him, he being not to obtain any thing for himself, nor his own Interest concerned, but produced for the King and Commonwealth, and therefore an indifferent Witness in the Case.
Sir David Fowles answered, He heard him say the very same words, That there were some for Law, and nothing but Law; but the King's little Finger should be heavier on them than the Lions of the Law. the occasion he cannot well remember; but there was some discontent taken by my Lord against him, he being desired by a Messenger to levy Money to mend a Bridge, he told the Messenger, He could not well do it of himself, for there was a Statute, as he took it 24 H. 8. that appoints four Commissioners to be at the doing of such Service, and he being but One, durst not undertake to do it: Besides, he said, He must see an Order or Warrant from the Sessions, else he could not do it, and none was shewed. Some other Exceptions he took to the unlawfulness of the business, and the Messenger reported this to my Lord, and that he conceived was the cause my Lord broke out so violently against him.
He answered, Before my Lord went to Ireland, he made a Speech to the whole Country, and desired them to go on in their Service; and so brake out, Some are all for Law, but they shall find the King's little Finger heavier on them than the Lions of the Law. And this is all he can remember.
Answered, That he was on the Bench at that time, Sir Thomas Leyton was Sheriff, and he heard my Lord speak these words; Some of you are all for Law, but you shall find that the King's little Finger is heavier than the Lions of the Law, but he doth not remember the occasion.
The main point I must insist on is, That the very words, if they had been spoken by me, as they are laid (concerning which, I call God to witness, I have spoken the truth, and the occasion.) It is no Treason within the Statue. And that being a point of Law, I crave leave to reserve my self according to your Lordships Order, that my Counsel, in time fitting and proper, may speak as concerning that in point of Law.
We shall close this Article, the last thing mentioned by his Lordship was spoken to before; as to the words, we had five Witnesses express in the Point, and therefore shall expect your Lordships Judgment in that. And so the Court was adjourned.