Historical Collections of Private Passages of State: Volume 8, 1640-41. Originally published by D Browne, London, 1721.
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The Fifth Article.
That according to such his Declarations and Speeches, the said Earl of Strafford did use and exercise a Power above, and against, and to the Subversion of the said Fundamental Laws, and Established Government of the said Realm of Ireland, extending such his Power, to the Goods, Free-holds, Inheritances, Liberties, and Lives of His Majesties Subjects of the said Realm; and namely, the said Earl of Strafford; the Twelfth day of December, Anno Domini 1635. in the time of full Peace, did in the said Realm of Ireland, give, and procure to be given, against the Lord Mountnorris (then, and yet a Peer of the said Ireland, and, then Vice-Treasurer, and Receiver-general of the Realm of Ireland, and Treasurer at War, and one of the Principle Secretaries of State, and keeper of the Privy Signet of the said Kingdom) a sentence of death by a Council of War, called together by the said Earl of Strafford without any Warrant, or Authority of Law, or Offence deserving any such punishment. And he the said Earl, did also at Dublin, within the said Realm of Ireland, in the month of March, in the fourteenth year of His Majesties Reign, without any Legal or due Proceedings, or Trial, give, and cause to be given, a Sentence of Death against one other of His Majesties Subjects, whole name is yet unkown; and caused him to be put to Death in Execution of the same Sentence.
The Manager began to open this Article, shewing, That though my Lord of Strafford insisted on it, That whatever his words were, his Actions were not against Law. This Article comes properly to reply to that Answer, It charging him with exercising of a Tyrannical Power over the Person of a Peer of that Realm.
And first, It was desired that the Sentence of Death, against my Lord Mountnorris, might be read, which was attested on Oath, to be that which was delivered by Mr. Secretary Windebanck, upon the Commons humble Suit to His Majesty, for His leave, to have a Copy thereof, That the Papers concerning my Lord Mountnorris, might be delivered into the House, occasioned upon my Lord Mountnorris his Petition to the House on that behalf.
Reciting first, His Majesties Letter, July 21. then last, wherein notice is taken of the Respect due to the Deputy and General of His Majesties Army; and of the Carriage of my Lord Mountnorris, holding a Captains place in the Army; in uttering Speeches inciting a Revenge on the Earl of Strafford, Lord Deputy, and Lord General; and Command thereby given, on receipt thereof, to call a Council of War; and that the Lord Mountnorris should undergo such censure as the said Council of War should impose, for the Lord Deputies full reparation.
Secondly, That a Council of War was accordingly called; the words are also set forth, and the occasion, as followeth, That within three or four days after the Lord Deputy had Dissolved the Parliament, his Lordship sitting in the Presence Chamber, one of his Servants, in moving a Stool, happened to hurt the Lord Deputies Foot, then indisposed, through an accession of the Gout, which being spoken of at the Lord Chancellors Table, one said to the Lord Mountnorris, being there present, it was Your Lordships Kinsman, who is one of the Lord Deputies Gentlemen Ushers, that did it.
Whereupon the Lord Mountnorris, publickly, and in a scornful and contemptuous manner, answered, Perhaps it was done in Revenge of that publick Affront that my Lord Deputy did me formerly. But I have a Brother that would not have taken such a Revenge.
Fourthly, That thereupon, the Witnesses, for proof thereof, were called, viz. Viscount Moore, and Sir Robert Loftus, who upon Oath deposed the same words, to be so then and there spoken; and the Lord Mountnorris at last submitted himself to the Council, protesting, that whatsoever interpretation might be put upon his words, he intended no hurt to the person of his said Lordship; and affirmed, That he would dye before he would give the Deputy and General occasion to give him such a Rebuke.
Fifthly, That for the nature of the offence, It was conceived to contain, a Calumny to the Lord Deputy and General, insinuating the affront pretended, in these words of my Lord Mountnorris's, to be given to the said Kinsman, and an Incitement to Revenge; and that if the words had been spoken of the Person of the King, it had amounted to High Treason; which by some rules of Proportion, might be applyed to His Deputy.
Sixthly, That the words were spoken when the Lord Deputy had the Honour to be Apparelled with his own Robes of Majesty and Soveraignty; when part of the Army was in motion, and the Lord Deputy and General present.
Seventhly, That the words were adjudged an apparent breach of the 21st Article of the Printed Orders, and Laws for War, dated the 13th of March, 1633. whereby it is Ordered, that no man shall give any disgraceful words of any person in the Army, upon pain of imprisonment, publick Disarming, &c. And also of the 13th Article, That no man shall offer Violence or Contempt to his Commander, or do any act, or speak any words, to breed mutiny in the Army, or Impeach the obeying of the principal Officer, upon pain of Death.
Eighthly, That according to the said Articles, the Council do unanimously, with one joynt consent, (not one of us of another Opinion) adjudge the said Lord Mountnorris, for his high and great Offence, to be Imprisoned, to stand from henceforth deprived of all his Places, and Entertainments due, which he holds in the Army. To be Disarmed, to be banished the Army, and disabled from ever bearing Office. And lastly, to be Shot to death, or lose his Head at the Pleasure of the General.
This Sentence of Death against a Peer, was pronounced by Martial Law, against the fundamental Rules of Law, without Trial, Answer, or Hearing; That though my Lord of Strafford owns it not, yet he made relation of the injury to His Majesty: His Majesty did justly direct, that my Lord of Strafford should have just reparation. That my Lord of Strafford produceth the Witnesses, refused to let my Lord Mountnorris Answer, though he demanded the benefit of the Law; owns it in his own Person, for he said, (treading on our Foot) and an Injury done to us.
Coming thither accordingly, I found many of the Council, and Captains of the Army; and having conferred with several of the chief of them, and with my Lord Valentia Cromwell, and others, they said, they knew not for what that Council of War was summoned; after a whiles stay, my Lord Deputy came into the Room, and sat down at the Boards end, and commanded the rest to sit down; where my self, that had the Honour to be His Majesties Vice-Treasurer, by His Grace and Goodness, sate in my place: After all were set, my Lord Deputy exprest, he had called that Court to do himself Right and Reparation against my Lord Mountnorris. At those words, I rose up from my place, and humbly presented my self at the Boards end, as the manner is, near his Lordship; who making some Speech, about words uttered by me shortly after the preceding Parliament, which was April 18.1635. and the words spoken within three or four days after, took a Paper in his hand, and out of that, read the words wherewith he charged me; to the effect, I conceive, as they are mentioned in the Sentence. After his Lordship had read them, he demanded of me, whether I would confess them, or deny them. I did humbly desire, I might have the Charge in writing, that I might Answer it by advice of Learned Counsel, the words being charged to be spoken long before, and it was hard to Answer them suddenly. His Lordship Answered, That was not the course of a Martial Court, I must Answer directly. I did several times desire I might have the Charge in writing; and my Lord of Strafford answered in the same kind, That I must Answer, whether I would confess, or deny them.
Two or Three of the Counsel of War spoke something also to that purpose; as I remember, the Lord Cromwell for one, and Sir Ch. Coote, and Sir John Burlacy; who intimated, that the manner was, I must confess them, or deny them. Standing a while silent, my Lord Deputy said, He thought they must proceed against me as a Mute; for he will not Answer, and therefore they must take them for granted. I said over again what I had said before, and desired I might have my Charge in writing; and that I might have Advice of Counsel, that I might be used as a Peer of the Realm, and an Officer of the Crown; and still his Lordship denied, That must not be, It was not the Order of a Martial Court.
I replyed, and told the Lord Deputy, I had seen it otherwise in a Martial Court in England, between my Lord Reas and Ramzie, where the Cause was debated by the Advocates in writing. The Lord Deputy told me again, That must not be, I must Answer directly; and hereupon, the Lord Deputy caused His Majesties Letter, dated the last of July, to be read; and when that was read, required me to make Answer: I confess, I was amazed at hearing of this Letter, and was much grieved; and with Humility and Grief, expressed on my Knees what Sorrow it had wrought on me; and that I had never willingly Offended His Majesty, or His Laws: And declared, that I had been mis-represented to His Majesty; and those Letters were got by mis-information; and humbly desired a Copy of those Letters, and the Charge, that I might Answer by writing; and that His Majesty might know my Answer before farther Proceedings. His Lordship upon that, rebuked me with worse Language than was fit to be used to a meaner man, and not a Peer, that desired but Law and Justice. The Lord Deputy told me, I was not mis-represented to His Majesty; for himself had represented me, and that matter, to His Majesty; and he did not use to mis-represent any thing: And then directly required me, whether I would confess them, or deny them. If not, he would prove them on Oath; and thereupon my Lord Deputy called for my Lord Moore, sitting at Board with him, and required him to give his Testimony; who had an Oath given him by the Lord Deputies command, by the Clerk of the Council; and referred himself to what he and Sir Robert Loftus had long before put under their hands: Thereupon the Lord Deputy gave that Paper to the Clerk of the Council to read; which was the Paper the Lord Deputy held in his hand, and out of which he had read the Charge: And that being shewed to my Lord Moore, he said, to his best remembrance those were the words spoken. Sir Robert Loftus was also called in, and he being required to give his Testimony, referred himself to that which he and my Lord Moore had put under their hands; and being shewed him, with his hand to it, he affirmed it. Then my Lord Deputy asked me, what I could now say, since the words were proved to my face? I humbly told his Lordship, and made solemn Protestation, and offered to take my Oath, That I did never speak the words, as I was able to prove by several Witnesses; and desired, That the Lord Chancellor (at whose Table they were spoken) and Judge Martial of the Kingdom, there in Town, might be summoned to give his Testimony for truth, and Sir Adam Loftus his Son, and near twenty others; and desired they might be examined in the Cause; and that I was well able to prove, that the words charged to be spoken by me, were not spoken by me, but by others, as to that part that concerns the Affront; but his Lordship refused me to have any examined.
When my Witnesses were refused, and I had made my protestation, that I had not spoken them, and was ready to prove it, (my Lord Deputy Answered, That he knew my Oaths and Protestations well enough) I took Exception to the Testimony of the Lord Moore, and Sir Robert Loftus, as I might in a Legal way. But my Lord Deputy rebuked me, and spoke in commendation of them; and bid my Lord Moore sit down now, and be one of my Judges: And thereupon commanded me to withdraw, which I did, and went out into a Gallery by, where I stayed about the space of half an hour, I think not more, I am sure not an hour; and was then called in, and at the beginning, was required to Kneel as a Delinquent; which I conceived I was not, having endeavored always to shew my self a faithful Officer.
Then my Lord Deputy commanded Sir Charles Coote to pronounce the Sentence, as Provost Marshal of Connaught; which he did briefly in effect as in the Sentence: And my Lord Deputy took occasion to make a Speech, and told me invectively enough, (amongst other things) there remained no more now, if he pleased, but to cause the Provost Marshal to do Execution. But withall added, That for matter of Life, he would supplicate His Majesty. And I think he said, he would rather lose his Hand than I should lose my Head; which I took to be the highest scorn, to compare his the Lord Deputies Hand, with my Head: I said, I never did, and hoped I never should, endanger my Head by Offending His Majesties Laws.
I was hereupon commanded to be taken to Prison, by the Constable of the Castle, who took me thence away; what past in the time of my absence, I knew not; but the Articles I was charged with breach of, were not declared, nor I urged to Answer; if I had, I could have Answered, I knew of no such Articles, nor ever saw them, till June 1636. published by his own Authority; and made in time of War: And though made for regulating of the Army, yet were never put in practice; And on a Conference with some of the Council of War, I was informed, they differed in Opinion amongst themselves; and some moved, both the Articles might not be pressed; and his Lordship Answered, he would have both or none.
I was Committed the 12th, and remained until the 18th, and was not released by any Favour of my Lord Deputy, but on a Certificate of the Physicians; and that not admitted but upon Oath, That I was in peril of my Life; and a Petition drawn by them that had more care of my Health than my self, being so afflicted in body and mind, with the high Injustice and Oppression I had, that I was extreamly ill; and was then remitted on Security, given by the Chief Justice in 2000l. Bond, to be a Prisoner.
I continued at my House, and was very ill, and after that several times was called to the Council-Table by my Lord Deputy; and an Information exhibited in the Star-Chamber for pretended Crimes, which I shall ever desire to Answer in any public Legal Judicature, rather than live.
And I was imprisoned again the 11th of April; being sent for to my House, and found with my Counsel about me, preparing my Answer in the best manner I could; and the Advice was, I should demurr to that Information, because I stood under the Sentence of Death: I was carried by the Constable to the Castle, and brought before my Lord Deputy; and the said 11th of April 1636. was committed close Prisoner; and there continued till the second of May: And I knew no other cause, but that I had (as he said) neglected the Kings Grace; and had sent my Wife into England, and transgressed a Proclamation.
I was first Committed the 12th of December, let go the 18th to my House; Committed again the 11th of April, put out the second of May: I was then in great Extremity, and admitted to my House again; where I lay in a long continuing sickness, and under the hands of Physicians: And the 30th of January afterwards, because I sued not out the Pardon, was imprisoned again, and there continued till March, 1637.
The Lord Dillon was called, and after some exception taken by my Lord of Strafford, to the examining of him, because he might speak things that amount to an Accusation of himself, the same was over-ruled; the Committee for the Commons declaring, that they would make no use against him, of any thing he should speak concerning himself. His Lordship was thereupon Sworn, and asked what my Lord of Straffords carriage was at the said Sentence, not accusing himself:
He Answered; That he was present at the Council, on Summons to be there; and the Council being set, as a Council of War, my Lord of Strafford did shew what they were called for, and did set forth some Injuries he conceived done him by my Lord Mountnorris.
Upon that my Lord Mountnorris was spoken to, and much interlocution there was, before he would say he did speak the words, or deny them; and after much debate to and fro, the Witnesses were called in, my Lord Moore, and Sir Robert Loftus; and they did testifie the words in the Charge, upon Oath; much debate there was; to call every particular to remembrance he cannot at this present, but as near as he can he will, that was before my Lord Mountnorris withdrew; and after his withdrawing, and some Speeches to the Council of War, they came to Voting; and in the Voting, there was never a man, to his remembrance, in giving his Vote on both Articles, but did profess he gave it in a confidence that there should be Mercy extended to my Lord Mountnorris; and with an Intercession, that he might find Mercy from His Majesty; And when the Votes were all past, my Lord of Strafford stretched forth his right Arm, and protested he had rather have his Arm cut off, or lose his right Arm, than my Lord Mountnorris should lose a hair of his Head, or a drop of his Blood, for that cause; and that he would write to His Majesty, to supplicate Him for Mercy.
Being asked on the Committees motion, whether my Lord of Strafford did not publish he had acquainted His Majesty with it, and they were called together to give Reparation of some Injuries done to himself.
He Answered, My Lord made a long Speech at that time, setting forth the Charge, and making mention of His Majesties Letter, and His Majesties Letter was read; and he did understand by my Lord Deputy, it was to give Reparation; but the particular words, on his Oath he doth not remember.
He Answered, He did see a piece of Paper in my Lord of Strafford's hand; and believes it was some note for his remembrance, what it was he knows not; and when the Witnesses were brought in, there was a paper to which they had set their hands of the words spoken.
Being asked other questions successively, touching the pressing of the Counsels proceedings on the Article only that touched not death; and whether my Lord of Strafford wished them to proceed on both?
He Answered, He remembers in the debate, the manner of proceeding was spoken of; and to his best remembrance, by the Discipline and Rule of the Army it was said, he was to be proceeded against on both.
He Answered, He remembers he gave no Vote, and being more than five years since, the special words he doth not remember; but in general, after he had set forth the Injuries done to himself, he profest he would give no Vote, but left it to the Council.
Being asked on the Lord of Strafford's motion, whether he did not desire the Council of War, but to proceed as to any other Officer in the Army; and what Sentence they should give, he would not take ill.
The Lord Strafford confessed he did, when the Votes were delivered; but desired the Lord Dillon might be asked, whether he sate only as a party, not as a Judge? and sate bare through the whole proceeding of the Cause.
The Lord Ranelagh being asked, whether he was present at the Lord Mountnorris his Sentence? and whether my Lord Strafford declared, they were called together to give satisfaction for Injuries done him by my Lord Mountnorris?
He Answered, That in this particular my Lord of Strafford was Nobly pleased to mention his tenderness of my Lord Dillon, left he should be his own accuser. He was pleased to mention something the other day, wherein he had tenderness of him; That he shall be as little fearful to speak the truth in this Cause, as in that, having been required by their Lordships; as presuming he hath done nothing but what he may justifie; That for that particular question, he hath been heretofore examined in some particulars of it; and shall now, with the best of his memory repeat, and offer to their Lordships, according to his weakness, every passage in it.
That he was summoned to appear in the Council-Chamber; and, as he takes it, it was December, 12. 1635. That being there, my Lord sate in a Council of War, and he (amongst others) having the Honour to wait on him, my Lord Mountnorris's name being mentioned after he was set at the Board, arose, and stood as near my Lord Deputies Person, as was fit for him, towards the upper end of the Table: And there stood charged with several disrespectful words spoken by him; and the words mentioned in the Censure that was read, were the words; That he was charged to have spoken those words in breach of certain Articles, by which the Army of Ireland was Governed, the 13th and the 41st, That there was much interlocution from my Lord Deputy to my Lord Mountnorris, and returned from my Lord Mountnorris to my Lord; the substance was, That he was ready to give his Charge, That he had violated those Articles, That my Lord Mountnorris desired time to answer by Counsel; and that he might have his Charge in writing. That being not readily granted, he insisted on it, That he might have time to prepare his Answer, but was told, it was contrary to the form of that proceeding; But whether that Objection of the form, came from my Lord himself, or from some other Member of the Board that I heard before named, I cannot possibly say. But thus stands the state of it, my Lord Mountnorris neither confessing nor denying the Charge, my Lord Deputy replyed, Sir, If you do neither confess nor deny the Charge, how shall we proceed? The Deputy called on the Lord Moore, and said, What shall we say to this business? My Lord, faith the Lord Moore, what I can say, is under my Hand; That a little time after, a Letter was read from the King, whereby His Majesty was pleased to give direction to proceed in a Martial Court, for Reparation and Honour of the Lord Deputy, on the Complaint and Information given to the King. That my Lord Mountnorris instantly fell on his Knees, expressing a great deal of Grief and Sorrow, and in truth Passion, and had not much to say for himself; and soon after, was bid to withdraw; and being withdrawn, my Lord Deputy said, That as he had complained to the King, so he would expect that Honour from the Board, That his Cause should be taken into consideration, and such Redress given as was fit; He demanded Justice according to the Articles insisted on: And having declared it, there was a silence amongst us for some time; That he was the first that brake that silence; and in as humble manner and terms as he could light upon, did humbly desire my Lord Deputy to give him leave, to ask whether he would give leave to wave either of those Articles; but my Lord said, he would demand Justice on both.
That this being so, there was some Interlocution of discourse among the Council, and in truth he thinks, that he was one of the first that said, that these Articles, and the words, cannot bear so good a construction but that there may be some danger of a breach upon these Articles.
He Answered, That as he remembers, my Lord Moore having made a return to my Lord Deputy, My Lord, What I can say, your Lordship hath under my hand; he thinks my Lord Deputy said, My Lord, if you deny it, I have it under your hand to shew.
And thereupon (as he remembers) the Clerk of the Council standing by, had direction to draw up some Interrogatories, which my Lord Moore did acknowledge; and Sir Robert Loftus too did affirm, that they were spoken by my Lord Mountnorris, as much as was mentioned in the Paper.
He Answered, That he thinks the Horse-Troops were 40, or 50 at the most; some my Lords own. The Foot-Companies were 50. And of those Companies there were (he takes it) two Horse-Troops, besides my Lord's own Troop, and, four Foot-Companies; they were called up to guard and attend our Occasions in Parliament, and they did their Duties as Soldiers every day, as indeed my Lord of Strafford was careful of well exercising the Army as any General he ever saw; and there are forty Companies of the old standing Army.
He Answered, That my Lord of Strafford held them to the Point of the Articles, demanding Justice on the Articles; that he said sometimes, he would depend on our Judgment in it, and yet he would hold us to the Point of the Articles. And further, that if there were not a necessity of his being there, he would have withdrawn too. But my Lord would not give the Council a latitude to proceed according to the King's Letter for Reparation, but he held them to the Point of the Articles.
Being asked on my Lord of Strafford's Motion, Whether he did not tell my Lord Mountnorris, when he went out of the Room, that he would not speak a word till he came into the Room again, and whether he did not do it accordingly; and whether he sate bare all the while as a Party, and not as a Judge?
In Answer, he desired leave to offer to their Lordships, that he acquainted their Lordships before; that as soon as my Lord Mountnorris was withdrawn, my Lord did declare what he the Lord Ranelagh had formerly said. But after the Council fell into debate of it, he spake not a word, nor gave any interruption. And he cannot positively say, that he sat bare all the while.
Answered, That he happened to be in the Star-Chamber that day, by day my Lord of Strafford's Command, and carried the Sword that day. That the reading of the Sentence he remembers not, but the words he heard, That the Sentence given against my Lord Mountnorris, by the Council of War, was a noble and just Sentence, and for his part he would not lose his share of the Honour of it.
He Answered, Yes, his name was Thomas Denewitt, and it was last Summer was two years; that he was on the Green when he was Hanged, and they were born in the same Town: He said, he knew not what Martial Law is, but he was hanged on one of the boughs of a growing Tree, and he takes it my Lord of Strafford was present; he added, that all the Soldiers were there, and the Company; but knows not whether he was condemned by a Jury or no. And he heard that he was Hanged for a Quarter of Beef, that he and some of the Company took away.
He Answered, He did not know that man by name that was Hanged, but it was by Martial Law. And he, and another noble Lord that sits here were Suitors for him to my Lady, and she told them, she did endeavor, but could not prevail for a Pardon.
That he was not present at the Trial, but saw him Hanged on the Green at Dublin, on a Tree, and knows not his name; and he conceive the Provost-Marshal, or the Provost-Marshal's Son did Execution, for they were there both of them. That the Cause was double, as he heard, for which he was condemned; for flying from his Colours, and for stealing some Beef.
He Answered, That he remembers about the time of the 500 Soldiers sending to Carlisle, and the Army in Dublin, this man was executedby the Provost Marshal's Son, and on a Tree; and that time two other Soldiers were whipt. The voice of the report was, He was Hanged for a Quarter of Beef, and running away from his Colours.
He Answered, That he was warned to come to a Martial Court, and the Messenger come so late, that he came not timely enough to give his Vote in the Court. That he came when the matter was fully heard, and having done his duty to the Lord-Deputy, sate down behind the Chair. That there were some controverted Opinions concerning the condemnation of the man. The Lord-Deputy was pleased to desire his Opinion, and stated the Evidence to him, as it appeared before the Court, which, to his remembrance stood thus; The party was accused to have stollen some Beef; and charged to have run from his Colours, which was the reason of the parties being called thither, as he conceived. And it was thus, coming to his Lieutenant to demand his pay (if he be not mistaken, and if he be, he should be glad to be certified by any,) the Officer said, He had it not; then he desired to be Discharged, Then go and be Hanged, said the Officer; and thereupon left his Colours, yet left his Musket with his Corporal. That for the Beef, it seems the Fact was clear, that this was when a Regiment of Foot was to be transmitted to Carlisle, and were at Dublin attending their Transportation thence. That he the said Lord Ranelagh was desired to inform himself of the particular charged upon his going from his Colours. The thing in his excuse was, The Officer's bidding him go and be Hanged, and leaving his Musket: That therefore he, the Lord Ranelagh did the rather advise he should be tried by the Law, than in that Court: That he doth not conceive the Sentence was made certain before he came in; and if he be not mistaken, there is a Noble Peer of this House sate in that Council, and he is sure, that he (the said Peer) offered Reasons why he should not die for that Fact, for he heard him argue it so, and that is my Lord Conway.
He Answered, That he had been asked of this heretofore, and therefore is something more in his memory than otherwise it would have been, for he had almost forgot it, and it is very imperfectly in memory. He remembers that he was at a Council of War in Dublin, that there was a man condemned to be Hanged; and that it was for such a matter as their Lordships had heard spoken, more of it he doth not remember.
The Earl of Strafford began his Defence.
My Answer saith, That the Deputies have always exercised Martial Law in time of the Armies march, and divers Articles for Regulating the Army printed, according to which divers have been put to death in Peace as well as War.
That the Lord Mountnorris, for breach of two of those Articles, was proceeded against by 20 in number, and Sentence of Death pronounced, wherein I was no Judge; and I obtained from His Majesty that no personal hurt befel him, but a few days Imprisonment.
If I had been questioned on my Life for Murder or Felony, I might in extremity have feared (perhaps) but certainly this can by no Law be made Treason, for which only I must Answer, being a Crime of another nature.
I humbly desire the Commission may be read under the Broad-Seal, whereby I am made General of the Army, and Power derived to exercise Martial Law, which was read, and this limitation is in it as to the exercise of Martial-Law, Si opus fuerit. And this I observe is according to the practice of all the World in Cases of this Nature.
My Lord Wilmott being examined, confest there were Orders made for regulating the Army, that he had the Honour to be the General four years, and that the Articles offered by my Lord of Strafford, and by him viewed, are attested under his Hand, for which he took Pattern from my Lord Faulkland, my Lord Grandison, and my Lord Chichester; and he did it by the Power he had the Honour to hold under His Majesty as General: That yet he used them so sparingly, that neither in that time, nor in the Government of Munster (in which he had as large Authority as ever any man had) he never did condemn a man to death in peaceable times, and that the Authority hath been good. That Martial-Law is so frequent and ordinary in Ireland, that it is not to be denied, and so little offensive there, that the Common Law takes no exception at it. That he hath lived to see three or four Parliaments there, and they never complained of it. And to Govern an Army without Martial-Law is impossible for occasions in an Army rise on a sudden, and something must be done on a sudden for example-sake to others.
That Martial-Law was certainly in Ireland ever since he remembers, and long before; but it hath been used so sparingly, that in the time of Peace, for his part, he did never know any executed in his time.
Being asked on the Lord Strafford's Motion, Whether he hath known Sir Charles Coote as Provost-Marshal of Conaught, and Sir John Bowyer Provost-Marshal of Leimster, in time of Peace execute divers Persons, Rebels, and others, by Martial-Law.
He Answered, For Sir Charles Coote he can very well answer, though he had Authority, yet it is out of his memory that he ever executed any. And for Sir John Bowyer, he dwelleth remote from him, that the said Sir John Bowyer hath Authority, and so have many other Presidents, Marshals of the Army, Provost-Marshals of every Province, and upon great Reasons for it; for though they be inferior men, yet the intent of their Commission is but to prosecute those men that cannot be had into the Law, that is Rebels and Fugitives; and those men he hath heard have been Hanged.
I desire to produce an order of my Lord of Faulkland's, taken from his Book of Entries; but being not proved, nor written with my Lord Faulkland's own hand, the reading of it was not admitted, but left to their Lordships Consideration.
To prove the Practice of the Provost-Marshals.
I observe, That the Sentence of my Lord Mountnorris takes notice that the Army was part of it in motion, and divers Companies daily exercised and that my self was for the most part there present, which shews the truth of my Answer to that Point in part.
To free my self from the said Sentence, I desire a Letter from my self and Council of War to Secretary Cook 13 December, immediately after the Sentence, may be read, to shew that I was a Suitor to the King in my Lord Mountnorris's behalf.
He Answered, That he was present at the Sentence, and heard my Lord of Strafford say, that he would give no Judgment, nor have to do with the business concerning my Lord Mountnorris, and he sate a good time with his Hat off.
He Answered, Yes, and he gave no Judgment upon that reason; that my Lord of Strafford did publickly bid them all look on him as a private man, and sate by as a Suitor, not as a Judge, and put off his Hat at the beginning to speak, and sate uncovered all the while, till Sentence was pronounced.
The denial of my Lord Mountnorris, to examine Witnesses, was by my Lord Cromwell, Sir Charles Coore, Sir John Burlacy, not by me, I sitting by as a private party: For this I refer to my Lord Mountnorris's own Deposition, and my Lord Ranelagh's.
For the words, That I would not lose my share in the Honour of that Sentence; if I spake the words, I meant the Justice and satisfaction done me by that Sentence, being by the prime Officers of the Kingdom.
And whereas it was said yesterday, that though I thought it hard to lay words to my Charge, yet I thought it not hard to lay words to the Lord Mountnorris his Charge; there is a difference between laying words to a man's Charge, to Accuse and Condemn him of High-Treason, to loss of Estate, Life, Honour and Posterity, and pressing words to only two days Imprisonment, being only intended to discipline my Lord Mountnorris, and teach him to govern his Speech with more modesty.
His Defence to the business of Denwitt's Execution.
He produced the Sentence Dated 13 February, 1638. where his Crimes are set forth to be the Felonious stealing a Quarter of Beef, and running away from his Colours, in breach of the 9th and 6th Articles, for which he was sentenced to Death, according to the use of Martial-Law.
His Lordship opened the nature of the Offence, being committed at a time when the 500 men were attending to go to Carlisle; and the Example might be dangerous, and desired Sir George Mountnorris might be asked, Whether Denwitt was not convicted to be guilty, adding, that he had been Burnt in the Hand; and running from his Colours is Death by the Laws of Ireland.
As also the Statute 7 H. 7. C. 1. The departing of a Soldier from his Colours is Felony, and the Offender to undergo punishment of Law, And 10 H. 7. all Laws formerly made in England are to be in force in Ireland, and so that of 7 H. 7. For further clearing whereof he refers himself to the Council.
The Lord Wilmott was produced by him, to justifie the publishing of Orders, and exercise of Martial-Law in Ireland. But we Appeal to your Lordships, Whether he gave Testimony of executing any by Martial-Law.
Sir Adam Loftus says, There are Provost-Marshals, and they do use to put men to Death, but they are Rebels whom they execute, which squares not with this Case, only that of Sir Thomas Wayneman is a full President.
My Lord pretends he was no Judge in the Cause, your Lordships may remember who procured the Letter to proceed, and who sate there to manage the business, though he sate with his Hat off; if he would have been indifferent, he should have left the Counsellors to themselves.
He proves not the Course of Martial-Law, and there is a Judge-Marshal, to whom, in any proceedings in a Martial way, address should be made, and it was desired he might be called, to testifie how they went about it.
Another of the Managers did add, by way of Reply, That whereas my Lord of Strafford insists much, as if Martial-Law were part of the same Law of Ireland, but the 25 E. 3. is in force there, and that is recited in the Petition of Right in force here, as the ground why Martial-Law ought not to be in England, and therefore there is the same ground why it should not be in Ireland.
For that Commission he speaks of Opus est, is Martial-Law, when there is bellum flagrans; but what need was there of Martial-Law in my Lord Mountnorris his Case, when he would rather lose his Hand than the Sentence be executed.
Many Witnesses are produced to prove the practise, but not one speaks in point of Execution, unless upon Rebels and Traytors, and such as would not come into Law, whereas my Lord Mountnorris was had into the Law.
Whereas he takes the Example of those before him; the Commons cannot see the Restrictions put upon his Commission for Martial-Law, but in the preceding Deputies time there was a limitation, that the Provost should leave the Soldiers to trial at Law, except in time of War and Rebellion.
The Statute of 20 H. 6. is against him, for it makes the Soldiers running from his Colours Felony, and certainly meant it should be tried by that Law that makes it Felony, which would have given him the benefit of Clergy, not by Martial-Law.
He says, He acquainted no body before hand with the business; but if he may give the Interpretation, he will be sure to put a good end to it; if he would not prepare the Council for Justice, why should not the Delinquent be prepared?
After some debate touching the admitting of my Lord of Ely to be examined, to the Course of Martial-Law in Ireland, being new matter, arising out of his Answer; It was Resolved that he should be examined only to that new matter.
He Answered, He was 40 years since Judge there, and for the manner of proceeding, There was never any Deputy, or Governor of that Kingdom, but they had a Commission of Martial-Law to be exercised in the time of their Government; but the exercise of that Law was two-sold, one was Summary, the other was Plenary: That which was Summary and short, was committed to the Provost-Marshal, that sought after the Rebels and Kernes that kept the Woods.
These when they were apprehended, the Provost-Marshal Hanged them on the next Tree; and this was in poor Cases, where the estate of the party that prosecutes is not worth 40 s. In the second, which is the Plenary proceeding, there are three Considerations to be had, of the time, the place, and the person; the time must necessarily be in time of War, the place in the Field, and the persons must be such as are subject to the Rule of Martial-Law. And the proceeding was thus; The parties complained, the other appearing, an Information was drawn in writing, Witnesses produced, and reduced in writing, a Sentence given absolutely or condemnatory, and the Party punished or acquitted, and the Warrant directed to the Provost-Marshal to put the Judgment in Execution. But when the Army was dissolved, and every one returned to their own home, Soldiers, Captains, and Commanders; this Power ceased, and was no farther executed; for it had been an extraordinary damage to His Majesty, that by the Martial-Law every one should be tried; for he loses nothing but his life, not his Lands or his Goods, and therefore the proceeding without was so slow and seldom, that he had not remembred any man of quality worth 100l. or 200l. in thirty years to have been executed by Martial-Law.
Here the Manager did offer the Instructions given in my Lord Faulkland's time, which Mr. Fitz-Gerard testified to be by him examined with the Original in the Signet-Office, as to the 33 and 34th Articles. Part of the Instructions were read, viz.
One of the Managers observed, That my Lord of Strafford would have Power of Martial-Law over my Lord Mountnorris, but would not execute him; which shews he desires not blood so much as Power of blood; that the Law of all the Peers might be under his Girdle, and he besought their Lordships to consider it.
My Lord of Strafford taking notice of some words, charging him that my Lord Mountnorris lost his Offices in that Sentence; In way of Answer said, That they were lost in a Sentence in the Castle-Chamber for Misdemeanors fully proved, and by himself confessed, and therefore His Majesty disposed of them.