Historical Collections of Private Passages of State: Volume 8, 1640-41. Originally published by D Browne, London, 1721.
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The Fourth Article.
That Richard Earl of Cork, having sued out Process in course of Law, for recovery of his Possessions, from which he was put, by colour of an Order made by the said Earl of Strafford, and the Council Table of the said Realm of Ireland, upon a Paper Petition, without Legal proceeding, did the 20th day of February, in the 11th year of His now Majesties Reign, threaten the said Earn, (being then a Peer of the said Realm) to Imprison him, unless he would surcease his Suit, and said, That he would have neither Law nor Lawyers, dispute of question his Orders. And the 20th day of March, in the said 11th year, the said Earl of Strafford, speaking of an Order of the said Council, Table of the Realm, made in the time of King James, which concerned a Lease which the said Earl of Cork claimed in certain Rectories of Tythes, which the said Earl of Cork alledged to be of no force, said, that he would make the said Earl, and all Ireland know, that so long as he had the Government there, any Act of State there made, or to be made, should be as binding to the Subjects of that Kingdom, as an Act of Parliament; and did question the said Earl of Cork in the Castle-Chamber there, upon pretence of breach of the said Order of Council Cable; and did sundry other times, and did sundry other occasions, by his Words and Speeches, Arrogate to himself a Power above the Fundamental Laws, and Established Government of that Kingdom; and scorned the said Laws and Established Government.
This Article concerns my Lord of Cork's being disseized of an Impropriate Rectory, upon a Paper Petition to my Lord of Strafford, and referred to the Council-Table, the Earl of Strafford saying, upon the questioning of the Proceedings thereupon, That neither Law not Lawyers, should question or dispute his Orders; an Order of Council Board in King ames his time, enjoying, That no Parson, Patron, or Ordinary, should make a Lease for longer time, than the life of the Incumbent, was made use of as ground to dispossess the Earl of York.
In the first place, We desire to open the Proceedings at Council-Table before my Lord of Straffords time, (viz.) That in no case concerning Land, no Decree hath been there made, to bind up the party for remedy at Law.
The Lord Ranelagh being interrogated, whether by the course of Proceedings at Council-Table, the Deputy and Council have determined Title of Land and Possession, and interrupted the parties to proceed at Law.
He Answered, That he hath observed the course of the Board for 22 years; and the course was, That if Title of Land, between party and party, were in debate, It was commonly dismissed from the Board, with a leading order, to be tried by course of Common Law.
He Answered, That he cannot positively say, whether it were done privately; but to the best of his remembrance, he knows not that ever any Deputy determined any matter of private Interest, but brought it to the Board, though by reference, or private proceeding, it might have proceeded before it came to the Board.
My Lord of Strafford desired he might be asked, whether he ever knew, that any matter of Inheritance was ever by himself and the Council determined, whilst he was Governour there, that was barely Title of Land, and nothing else.
He Answered, And desired to explain himself concerning the former, That Causes of the Church, and matters of Plantations, were resolved in former Deputies times, to be dispatched at the Board. And for the latter question, he never knew matter of Title determined at the Board, but in Causes of the Church, and Plantations.
The Fifth day.
His Lordship Answered, That he had been in Possession, as Tenant of the Crown thirty five years, of a Rectory and certain Tythes in the County of Tiperary, for which he paid a yearly Rent; and having enjoyed it so long, my Lord presented to it Arthur Gwyn, that had been his Coach-mans Groom. That when he heard of it, he went to my Lord privately, and told his Lordship, that he was His Majesties Farmer of those Tythes, and paid a Rent; and desired he might not be sued for them in the Council-Chamber: But if a Suit must be commenced, that it might be in the proper Court, the Exchequer. That my Lord told him, he should Answer it there: That he did so, and my Lord ordered it against him; That a Commission went down, and Examinations were taken: And after my Lord had ordered it against him, an Order of course was sent down, that Gwyn should have them till I recovered them by course of Law. That thereupon, I brought an Action against him, and his Tenants, who were Arrested, and came to Dublin; and then went to my Lord, and Dr. Brambill, Bishop of Derry. That thereupon I was sent for before my Lord Lieutenant that then was; and my Lord Lieutenant told me, Sir, You have taken out Writs against Gwyn, to whom I Ordered the Tythes of the Rectory. I confest I had, and desired to know why he asked me so; adding, that I am sure your Lordship will not take away my Possession, by a Paper Bill, without Trial. That my Lord of Strafford answered, call in your Writs, or if you will not, I will clap you in the Castle; For I tell you, I will not have my Orders disputed by Law, nor Lawyers.
Gwyn was a poor man, and if he should get the Rents of the Impropriation into his hands, I could not get them again: And therefore I desired security, That if by course of Law I should recover it, I might have it again; That my Lord of Strafford thereupon said, It was very fit and just; but the Order being brought unto me, I said there was no such thing in the Order.
I say, that I told the Lieutenant, that I did hold, the Council-Chamber could not hold Plea of this, and thereupon cited 28 H. 6. the Book of Orders, the Proclamation. Then I moved his Lordship, that in regard Gwyn was a poor man, and not answerable, and might get the Rents, being near 100 marks a year, he might give security for the Rents, if I should recover them by course of Law; That my Lord of Strafford thought it just it should be so entred in the Order.
He Answered, That there was a Parsonage in the County of Kerry, in his Presentment, and it fell void; the Dean, and some others, commended one Atkinson to be his Vicar, That on their Commendation, not knowing him himself, he presented him, without any consideration. That Atkinson afterwards fell into decay, and was Imprisoned; and the Prison being very loathsom, the Bishop wrote unto him, this Deponent, and sent him a Lease, under the Hand and Seal of him the said Bishop, and the Incumbent, with a Label for his the Deponents hand, and desired him to seal it for 40 s. a year to another, that Atkinson might pay his Debts, and stock himself with Cattle; That he the Deponent, refused it, though brought 50 miles from his House, fearing it might be prejudicial to the next Clerk. That the Bishop sent Atkinson's Wife back over the Mountains with his Letter, and the Lease; and he the Earl of Cork, did sign it then; For, seeing the misery of the poor Woman, and her Children, he thought it a work of Charity; and it continued so till my Lord of Strafford came to the Government.
That then he had a Bill preferred against him in the Star-Chamber, for breaking an Act of State, That none should make a Lease for longer than the Incumbents life, and desired that the Bill should be read, in all the Proceedings of it; That thereupon he told the Earl of Strafford, it was a work of Charity, and he never heard of such an Act of State, being not published, and made in King James his time, and in the Lord Grandisons Government, who are both dead: And therefore he conceived, there was no cause to charge, or prosecute him for it, being but an Act of State. That my Lord of Strafford Answered, I tell you, my Lord, as Great as you are, I will make you, and all the Subjects of Ireland know, That any Act of State made, or to be made, shall be as binding to you, and the Subjects of Ireland, during my Government, as an Act of Parliament.
He Answered, That he did say that it was Voted at the Council-Table, but he knows not whether it were done by the major part; and, afterwards (with a lower voice) His Lordship added, that he thinks it was never Voted.
He Answered, It was his chance to be at Council-Table, when a Cause, depending between the Merchants of Galloway, and some others, that prosecuted the business in behalf of the Church, about a Lease made by the Dean of Derry; which was debated at the Council-Board. And there was one Mr. Martin of Council for the Merchants, and he pressing hard for his Clients; It pleased my Lord to think he had over-shot himself, or was too forward? and asked what he had to say, that he prest that Cause so hard; That Mr. Martin Answered him, He had an Act of Parliament, or Statute, or to that purpose.
John Kay, after some Exceptions taken by the Earl of Strafford, against him, as no fit Witness in respect of his prosecuting a Suit against his Lordship, for the Lady, Hibbotts, which was Over-ruled by their Lordships, was sworn, and being asked touching the said words to be spoken by the Earl of Strafford? and the occasion? and the time?
He Answered, That he was present at Council-Table by chance, when there was a Cause, wherein Mr. Martin pleading for his Clients: My Lord-Deputy then asked him, What made him so earnest for it? He said, He had an Act of Parliament, or Statute, to justifie his Cause. Hereupon my Lord-Deputy Answered, He should know, that as long as Himself sate in that Place, An Act of State should be as strong as an Act of Parliament, or words to that effect.
Mr. Waldron being asked, Whether it was in a Church-Cause? Answered, My Lord-Deputy made an Offer, That if they would take a Lease for 21 years, at full value, they should have it. But if they would stand on the Trial of the Lease, they must take the adventure.
He Answered, That he was at Council-Table some four or five years ago, and there did hear my Lord of Strafford say to one of the Council (he cannot say it was Mr. Martin) He would have him know, as long as himself was Governor, An Act of State should be as binding as an Act of Parliament; on what occasion he cannot say. He farther said, That in the 10th Year of the King, in the Parliament held in Ireland, he heard Sir George Ratcliffe (my Lord of Strafford's Eccho) in that House, say On occasion of a Bill that was cast out in that House, making it Felony for any to have Powder without License. It is all one, he would have an Act of State for it, which should be as binding as an Act of Parliament.
He Answered, That he doth very well remember the words, the time not precisely; but he was sure it was soon after my Lords coming into Ireland, and before the Parliament, and was the cause of the first Exception against him the said Sir Pierce Crosby, for he reasoned it with his Lordship, being at his own Table at Dinner, there being then present, and sitting next to him, a Member of this Honourable House, my Lord Castlehaven. There were likewise my Lord Osmond, and several others of the Council of Ireland. The words were these, That if he lived, He would make an Act of State to be of equal Power with an Act of Parliament. That he, the Deponent, thought his Lordship spoke it merrily, and answered him in the same kind, saying, My Lord, when you go about to do this, I will believe some body will rise, as an English Gentleman did in England, and desire a Clause of Exception, that it may not reach to himself, his Kindred and Friends. That my Lord of Strafford looked on him very earnestly, and said, He would take him, whosoever he was, and lay him by the Heels.
That this was in Parliament time: And he the Deponent would fain have qualified it; but Parliament, or not Parliament (says my Lord) Ireland is a Conquer'd Nation, and the Conqueror should give the Law. That he the said Sir Pierce Crosby Replyed, My Lord, then, I beseech you, give me leave, I am one of those that must uphold an Act of State, by all lawful ways, having the Honour to be a Member of the Government, though unworthy . What will be alledged on the other part? They will say an Act of Parliament attaints and restores Blood, and doth many things an Act of State cannot reach to, for it is confined within the limits of the Government. That My Lord having not to Reply to this, rose in some choller; and told him, the Deponent, of something else he conceived he the Deponent had done amiss at Council-Board on a Statute that was in debate.
And so the Manager concluded the Article with thus much more; The Article, in the conclusion, of it, charges him with scorning the Government and Laws. And it was desired their Lordships would take notice of what is proved out of these words, and the concurrent proof Yesterday.
The Earl of Strafford begins his Defence, saying,
Here is an Order of the House of Commons there, whereby your Lordships may perceive how unlikely I am to have any thing from Ireland that may work to my Justification, which was read, and bears Date 25 February, 1640.
Authorising those undernamed to go aboard any Ships, and seize, search, and break up all Trunks, Chests, and Cabins aboard. To seize on all Silver and Gold, except small Sums; and all Debts, Evidences, and Writings as they shall think fit, of him the said Earl of Strafford.
That the Council-Board of Ireland is a Court of Record, which differs much from the Council-Board of England; and that they proceed there by Bill, Answer, Examination,. Publication, and all the formal courses of legal Proceedings.
I desire a Book may be read, a Book in the hands of Mr. Denham, containing certain Answers given by the Lord Chichester, to certain Complaints made against that State, and written with Mr. Baron Denham's own hand, which on debate, was Resolved not to be read, being written only for a private Remembrance.
Robert Lord Dillon being asked, Whether before my Lord Strafford's time he had not known always, during his memory, the Deputy and Council in all causes of Plantation, and the Church, proceed by Petition, Answer, Examination of Witnesses, Publication, and Hearing, as in other Courts of Equity, and upon Oath.
He Answered, that he remembers in my Lord Chichester's time of Government, it was the practise of the Board so to do: That he remembers it in my Lord Grandison's time; that he had the Honour to be called to the Council-Board under my Lord Faulkland's Government, and knew it then. And it was in the Justices time that preceded my Lord Strafford's Government, To have Petitions, Examinations of Witnesses, Publication, a day of hearing granted, and all ordinary Proceedings.
He Answered, That out of his Observation, at Council-Table Acts of State were made, because of the scarcity of Parliaments, that they might be a Supplement to Acts of Parliament, that he hath known before;. and when he sate at the Board on contempts of these Acts of State, or Proclamations, which, he said, he had heard the Judges say to be a kind of Law of the Land for the present; the Parties were Attached, brought to the Board, and upon full Examination of the Cause, and Proof of the Contempt, sometimes Imprisoned. sometimes Fined, according to the Delinquency and Degree of the Offence supposed to be committed.
He Answered, It hath ever been, since his remembrance, the constant Practise there, in Causes of the Church and Plantation, to proceed on Petition, Answer, &c. and Fines imposed on Breakers of Publick Acts of State and Proclamations. But he remembers not any Fines for Contempts, in case of particular and private Interest.
Upon reading whereof, my Lord of Strafford observed, That it appears to be a Church-Cause, That the Order was just, and that the Clause for the Plaintiffs giving of Security to answer the mean Profits, which my Lord of Cork said was struck out of the Order, and for my Lord of Cork's liberty to bring his Action at Law, only he was limited to prosecute it within a year.
Mr. Leake was produced by my Lord of Strafford, and being asked what Authority he hath known the Council-Board in Ireland to exercise, both before my Lord of Strafford's coming thither, and since, in Causes of the Church and Plantation, and concerning Contempts to Proclamations, and Acts of State, and what Countryman he is ?
He Answered, That his name is Leake of Leake, in the County of Nottingham, where, he said, his Family hath continued 400 years: That it is 14 years since he went into Ireland, and before this Lord-Deputies time; and before that time he did not observe any restraint from Injunctions on the Council-Board, till the Instructions published, and they did stay them.
That they proceeded by Injunction, Process, Bill, Answer, Examination, and other Courses, as in the Chancery of England. And since the same course hath been held. And my Lord of Strafford hath had in the Castle-Chamber divers Causes of Law argued before him concerning the Church, wherein one Chadwick and divers others were convented thirty times, when he the Examinant was there, and heard them twenty he is sure, but he thinks thirty. But my Lord of Strafford did forbear to give Sentence, till he heard these Causes argued: That 14 years he hath been very well versed in that Kingdom, that he hath known Injunctions have gone out from thence to stay Proceedings in Causes, where they have Power of Jurisdiction, that he hath known my Lord Chancellor Loftus that was, to grant an Injunction without Bill, and before any Complaint depending before him, and that he himself had the Injunction granted.
He Answered, He hath been there at several times, to pursue some Tenants of his that fled into Ireland; and by reason of the Suits and Petitions he prosecuted in his own Right, he had occasion to enquire after Proceedings there, having been there for the most part of 14 years.
To the Statute of 28 H. 6. which the Commons have pressed as a Rule for the remitting of Causes to their proper Courts, and to annihilate all these Proceedings before the Deputy and Council; and before the Deputy alone in his particular Jurisdiction, in the nature of a Court of Requests in England. I reserve my self to have my Council give satisfaction therein: Only desire your Lordships to observe the last Clause, saving the King's Prerogative.
These Proceedings are not against Magna Charta, they being according to the Laws and Customs of the Land; though it be not the Custom of England. And if he hath been an Innovator, it hath been to conform Ireland by all ways he could in Religion and Laws, to the better and more excellent Pattern of England.
1 E. 6. Ca. 12. whereby it is provided, That none shall be Impeached concerning Treason for words only, if the party, being within the Realm, be not accused within thirty days: If out of the Realm, within six months, &c. Which Proviso his Lordship read, and reserved to his Council farther to apply it.
For the words spoken to my Lord of Cork, That neither Law nor Lawyers shall dispute my Orders. I conceive I might justifie the speaking of them, if the Orders, and Acts of State be justly warrantable, and honourably made.
For the last words, That I would make the said Earl and all Ireland know, That so long as I had Government there, An Act of State made, or to be made, should be as binding as an Act of Parliament. I observe my Lord of Cork's quick memory, that could swear them roundly, without missing a letter or syllable as they are laid in the Charge.
That these words are only in the Charge, and so only to be answered to. And for Answer, I say, That in case of an Act done, they may be brought collaterally, as an inducement, to prove the intention. But the Act must be proved, before they can touch me as of Treason.
My Lord of Cork is a single Witness, and by a Proviso, 1 E. 6. Ca. 12. no person, after the the first of February then following, is to be Arraigned, &c. of Treason, &c. for any words to be spoken after the said first of February, unless the Offender be accused by two sufficient Witnesses, or should, without violence, confess them.
Yet I think they might be fairly interpreted: For if an Act of State be not made against an Act of Parliament, or a Fundamental Law of the Land, but consistent with it, and made by way of provision for remedying some present Mischief in the Common-wealth, till the Parliament may provide Redress for it. They are as binding during the time they are in force, as an Act of Parliament (though I confess, the Comparison is not good) because they may be made according to Law and Justice; according to the Fundamental Laws of the Land, wherein the Prerogative of the Crown hath a part, as well as the Property of the Subject: For if the Propriety of the Subject, as it is, (and God forbid but. it should continue) be the second, undoubtedly the Prerogative of the Crown is the first Table of that Fundamental Law, and hath something more imprinted upon it: For if it hath a divinity imprinted upon it, it is God's Anointed; It is he that gives the Powers. And Kings are as Gods on Earth, higher Prerogatives than can be said, or found to be spoken of the Propriety or Liberty of the Subject; and yet they go on hand in hand, and long may they, do so, long may they go in that Agreement and Harmony, which they should have done hitherto, and I trust shall be to the last, not rising one above another in any kind, but kept in their own wonted Channels. For if they rise above these heights, the one or the other, they tear the Banks and overflow the fair Meads equally on one side and other. And therefore I do, and did allow, and ever shall, for my part, desire they may be kept at that agreement and perfect Harmony one with another, that they may each watch for, and not any way watch over the other. And therefore this being a Care of the Prerogative, as long as it goes not against the Common Law of the Land, it is the Law of the Land, and binds, as long as it trangresses not the Fundamental Law of the Land, being made provisionally for preventing of a Temporary Mischief, before an Act of Parliament can give a Remedy.
And this Condition must be implyed, That it must be binding, provided it be according to the Law of the Land. I instance in that Exception that King James would take, when a man says he will do a thing as far as he may with Conscience and Honour, because in Persons of Conscience and Honour, those words are always implied.
That the wisdom of our Ancestors hath prevented this Mischief; That for a mis-word a Peer of England should lose his Priviledge, being as great as any Subjects that live under a King, that is not a free Prince of the Empire. And the Preamble of a Statute in Queen Elizabeths time, the very bent whereof is to take away the dawning of words, without any further Act; which Preamble was read to their Lordships.
I except, against my Lord Kilmallock's swearing Sir George Ratcliffe to be my Eccho, as if he knew my thoughts; and against Mr. Hoy, as a party concerned in Interest, though not in name, in a Suit that is or will be brought against me before your Lordships come to the end of the Charge.
I except against Sir Pierce Crosby's Testimony, having been formerly Sentenced in Star-Chamber, and I know what Sir Pierce Crosby: swore there, and that I never Communed with him so far, as to have such a Discourse as is mentioned, in all my life.
To the Suit in the Castle-Chamber against the Earl of Cork, on pretence of breaking an Order of Council-Table. I conceive it had relation to an Order made in King James his time, 20 March, 11 Jac. which I desire may be read, (being now produced) as also the Information there exhibited, that so I may justifie my Answer in that point of it; That the Suit was not upon that Act alone, but for other matters also; but that was admitted by the Committee. And so the reading of them was waved.
To that Point of Mr. Waldron's, Testimony, touching the offering of a Lease to the Person concerned, rendering the half value: I conceive this Circumstance qualifies the words, it being according to Law.
To the several Provisoes in that Act of Parliament, mentioned by my Lord of Strafford, concerning words, we observe, That the words Charged are only matter of Evidence, to his general Intention, of subverting the Laws. And whereas he says they are not charged in time, the Commons bring this as done long ago, and continuing to this day, if he were not prevented; so they take him Flagrante Crimine.
That admitting the extent given by the Instructions to Church-Causes (though the Proclamation hath no such exception.) Yet it comes not to the Case of my Lord of Cork, who claimed the thing in question as a Lay-Impropriation, derived to the Crown, by the Statute of Dissolution.
That notwithstanding my Lord of Strafford's justification of his words, That neither Law nor Lawyers should question his Orders. This is to assume an Arbitrary Power; for if his Orders be legal, the Law must justifie them, if not, question them.
That the words, Of making an Act of State equal to an Act of Parliament, are proved by my Lord of Cork, and those spoken are a confirmation of those before, and expresly within the Article. The latter point thereof recites, that he spake the words at other times.
Answered, That it is a business past long ago; and but a Table-discourse, and he took not much notice of the Circumstances: But as he remembers, there fell a difference between my Lord' of Strafford, and Sir Pierce Crosby, within three or four months after my Lords coming over; and that as well as he can remember, my Lord of Strafford did say, That an Act of State was equal to an Act of Parliament; but he remembers not the occasion.
That the Justice of the Order in my Lord of Cork's Cause, is not material, or whether within the Jurisdiction of the Council-Table, the Charge being, That upon such an Order made, my Lord of Strafford threatned the Earl of Cork for Suing at Law.
That though he says, Acts of State are to be allowed for temporary provision, till an Act of Parliament, yet when things are propounded, and rejected in Parliament, shall he supply it by an Act of State?
And a little after, returning, the Lord Steward declared their Lordships Resolution, That the Witness might be examined; The matter in question, arising from what was offered from the Earl of Straffords Defence.
That at the Close of that Parliament, my Lord of Strafford, then Lord Deputy, told the House of Commons. then sent for up, That they had Voted against some Bills in the lower House, amongst the rest, that of Gun-powder; where it was made Felony for any man to buy, or have any, unless he got a License first for it: That my Lord afterwards told them, That notwithstanding they had Voted against it, yet he would make that, and some other Bills they had Voted against, Acts of State, that should be as good; and said, he heard it was done afterwards, but he doth not know that.
I had received direction concerning Powder; it being not conceived fit, for Reasons of State, to buy, and have Powder at Pleasure, or that that Commodity should be so frequently brought into the Kingdom, and committed to unsafe hands; so in that point, I did but what I was commanded out of many Reasons; which I desire I may forbear to express, it not conducing to my Acquittal or Condemnation.