Historical Collections of Private Passages of State: Volume 8, 1640-41. Originally published by D Browne, London, 1721.
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The Fifteenth Article.
15. That the said Earl of Strafford, traiterously and wickedly devised and contrived by force of Arms, and in a warlike manner to subdue the Subjects of the said Realm of Ireland; and to bring them under his Tyrannical Power and Will, and in pursuance of these wicked and Traiterous Purposes aforesaid; The said Earl of Strafford in the Eighth year of His Majesty's Reign, did by his own Authority without any Warrant or colour of Law, Car, and Impose great sums of Money upon the Towns of Baltemore, Bandenbridge, Talo'we, and divers other Towns and Places in the said Realm of Ireland, and did cause the same to be Levied upon the Inhabitants of those Towns by Troops of Soldiers, with force and Arms, in a Warlike Banner. And on the Ninth Day of March, in the Twelfth Year of His now Majesty's Reign, Craiterously did give authority unto Robert Savill, a Serjeant at Arms, and to the Captains of the Companies of Soldiers, in several Parts of that Realm, to send such numbers of Soldiers, to lye on the Lands and Houses of such as would not conform to his Divers, until they should render Obedience to his said Orders and Warrants, and after such submission (and not before) the said Soldiers to return to their Garrisons. And did also issue the like Warrants unto divers others, which Warrants were in Warlike manner with force and Arms, put in Execution accordingly, and by such Warlike Means, did force divers of His Majesty's Subjects of that Realm, to submit themselves to his Unlawful Commands.
And in the said Twelfth year of His Majesty's Reign, the said Earl of Strafford did Traiterously cause certain Troops of Horse and foot, Armed in Warlike Manner, and in Warlike array, with force and Arms, to Expell Richard Butler from the possession of the Mannor of Castle-Cumber, in the Territory of Idough in the said Realm of Ireland, and did likewise, and in like Warlike Manner, Expell divers of His Majesty's Subjects from their Houses, Families, and Possessions, as namely Edward O Brenman, Owen Oberman, John Brenman, Patrick Oberman, Sir Cyprian Horsefield, and divers others, to the number of about an Hundred families, and took, and Imprisoned them and their Wives, and carried them Prisoners to Dublin, and their detained until they did yield up, surrender, or release their respective Estates or Rights.
And the said Earl in the like manner, hath, during his Government of the said kingdom of Ireland, Subdued divers others of His Majesty's Subjects there to his Will, and thereby, and by the means aforesaid, hath levied War within the said Realm, against His Majesty, and his Liege people of that Kingdom.
Mr. Palmer proceeded to open the 15th Article,
which concurred with the precedent in Point of Evidence, to make good the Charge of the Commons against the Lord of Strafford, in Point of High-Treason. The main Accusation being, His labouring to subvert the established Laws and Government, and instead of them, to introduce an Arbitrary and Tyrannical Power.
That this laid in the 15th Article, doth more than prove this Charge, charging him with Acts of Force and Hostility, which are not only an Evidence to prove his Design, but are actual Subversions of Law, and Introducing of an Arbitrary Power, as their Lordships will perceive, when they shall hear how he Executed his Commands by Soldiers.
And as this contributes with the rest in Proof of the main Charge, so he humbly offered, that this Article, singly and individually of it self, contained a Charge of High-Treason, and that the Nature of the Offence would appear in the Proofs of the Article.
In pursuance of these things that are Charged in the Article; the First they said, they would pass over at that time, and my Lord of Strafford also had notice, that they intended to wave it for the present.
The Second is, that 9 March 12. of the King, he gave a Warrant to one Savill, a Serjeant at Arms, and to Captains and Soldiers of that Kingdom, to Quarter on the Houses and Lands of such, as would not conform to render Obedience to his Orders, such number of Soldiers, as the Serjeant at Arms should think fit, according to the Demerit of the Delinquents, and to be kept there, until they made Submission, and then to return, and no before. And the like Warrant were issued to others, and to the Subjects of that Realm, who were forced to submit to his illegal Commands, and this is Charged to be a levying of War against the King, and his People.
Your Lordships may please to remember, what a Power my Lord of Strafford had assumed to himself from the Court of Justice Established by Law, in taking to himself an Arbitrary Power, to determine Causes on Petition, and that without any legal Process. And he intended to himself, an Execution of these Orders in the manner. If a Petition was presented, First a signification went to the Party, that he should satisfie the Complaint, else shew Cause; if he did not appear, then there went a Messenger, or Pursivant; on his Affidavit that the Party was not found (as well he might not be found) then an Attachment: after that, the Serjeant at Arms. This Serjeant at Arms had always with him a Warrant Dormant, (not a particular Warrant in the Case complained of) that whensoever he should have an Order to fetch any Man in (if once he had made Affidavit he could not be found) he was by virtue of that Warrant, to repair to the next Garrison, and there to take such Numbers of Soldiers, as he thought fit, and Quarter them on the House of the Party: and this was as ordinarily executed, as any Powers of Law in legal Cases.
In the Execution of this, the Party suffered as much Insolence, as is incident to War; their Cattel taken, their Corn thrash'd out, their growing Corn cut, their Houses burnt, and some exiled, and forced to leave their Country, and fly to remote Places, by reason of their Soldiers insolencies.
The Method propounded is, First, to Prove the Fact: then to Observe the Nature of the Offence, both from the Stat. of 25. Edw. 3. and also from a particular Stat, in Ireland 18 H. 6. whereby the Offender in this very Case, is adjudged to be a Traytor.
Mr. Savill the Serjeant at Arms produced and Sworn, and a Copy of his Warrant offered. My Lord of Strafford excepted against the reading of the Copy of a Charge of High Treason; adding, that it concerned him very much, he being to be Tryed for his Life and Honour, since upon this the whole Charge was to be grounded. On other Things he did not insist so much, but submitted to their Lordships Pleasure, because they said they would consider them in their Judgment; but this being the Ground and Foundation, whereupon they intend to Charge him with High Treason, he besought their Lordships to consider it, with that Honour, and Goodness, and justice they did in all Things.
Mr. Glyn in Answer alledged, that their Lordships had over-ruled it in the Case of the Bishop of Down. That (suppose a Warrant is offered by force, whereby High Treason is committed) if a Copy may not be given in Evidence, then let him that is guilty in such a, Case, get away the Originals, it clears him of the Treason: besides, it is no matter of Record: and Mr. Maynard observed, That if one writes a Letter, and therein commands one to commit Treason; if the Letter be burnt, this Man shall not prove the Command, if only the Original must make it good.
My Lord of Strafford offered to their Lordships, that he that is to Swear it to be a true Copy, is the Man, that (if a Fault be committed) is in fault himself as much as any, for he is the Man that executed this Treason, and now he shall Swear to the justifying of his own Act.
But, Mr. Palmer added, Now he sees it in our Hands, and he knows it: And that this Copy cannot be questioned, unless. he question what is done already; for, in this very Case, a Copy is allowed to be an Evidence, for the Relation it hath to the greatness of the Charge, as to my Lord of Strafford; and it cannot alter the Justice of the Evidence; for, if it be an Evidence, it is an Evidence in whatsoever the Cause is.
He Answered, That in January last there came to him one William Somer, Secretary to my Lord Rainalaugh, and told him, Mr. Serjeant Savill, you had a Warrant to Quarter Soldiers on one within the Town of Athlone, but the Parties were Friends, and you removed them; one of those Soldiers committing Extortion, in taking away two Pewter Dishes, and is to be Tryed at our next sitting; and, unless the Soldier have a Copy of your Warrant, he is like to suffer in it: That he thereupon Answered, He could not deny it; and brought the Original Warrant, and being a good Clerk, he bad him Copy it out.
That he, the said Mr. Savill, did thereupon deliver the Original Warrant to his Servant, Edmond Brumingham, as he remembers, who Copy'd it out. That Mr. Somer came, and told him, Here is a Copy: That he asked Mr. Somer, Whether he had examined it? Yes indeed, faith he, it is a true Copy: That upon that, he, the said Mr. Savill, delivered this to Mr. Somer, under his Hand, but did not compare it himself, yet is confident it is a true Copy.
Mr. Maynard observed, That they Charged a Treason in an Act, That my Lord of Strafford gave Authority to do such a thing; not that he gave this particular Warrant; and though they proved no Copy at all, yet proving the Command, it maintained sufficiently the Charge: for, a Treason may be a Treason, though not put in Execution. That they produced not this Copy, as necessary to give a precise Copy, but to prove that there was such a Command and Authority given; and, as a farther Evidence, they shew a Copy taken on such an Occasion: And, Witnesses are here, who will clearly Depose, That this is the very substance and effect of the Warrant, given under my Lord of Strafford's Hand.
He Answered, That by the Oath he hath taken, that he knew nothing of it, till the Night he came to the City: That he had not said, He had brought all his Warrants; for he had none; and should have spoken an Untruth if he had said it: and he came on his own occasion, not sent for.
Mr. Palmer desiring it might be Remembred, That the Copy was Signed by Savill's Hand; That Savill was the Person to whom the Warrant was directed; and, The Man that hath the Principal Warrant in his Custody; That gave direction for the Copying of it; and added, That himself was ready to Prove the Substance and Effect of it.
The Lord Steward Reported their Lordships Resolution, viz. That their Lordships had taken into Consideration this Copy, and thought of it seriously; and that in this individual Case, they held it not fit to be read, because it was not Attested: And that their Lordships, in no other Case since the Tryal began, had admitted the like Copy, but where it was Attested: That they conceived, this could be no Impediment, or failure in the Proceeding, because the Truth and Verity of it would depend on the first general Power given to execute it, which they that Manage the Evidence for the Commons, say, they can Prove.
Mr. Palmer thereupon Alledged, That they would apply themselves to their Lordships Directions: That the thing offered in Evidence had been Executed; That Soldiers (according to what was deposed to be the effect of this Warrant) have been Quartered on the Houses and Lands of such Persons, as have been Complained of on Paper-Petitions, either in case they have not Appeared, or after Appearance, did not render Obedience.
He Answered, That the Warrant, by Vertue of which, he laid Soldiers on several Delinquents Lands, was delivered to him by my Lord Deputy's Secretary, Mr. Edmonds (as he remembred) by Virtue of which Warrant, after five or six several Times going for the Delinquents, when they could not by any Means be brought in, he did (according to my Lord Deputy's Command) make Use of his Warrant, and laid Soldiers on them till they had submitted themselves: And, that the Warrant was given under my Lord Deputy's Hand.
He Answered, thus; He ever Observed on Complaints made to his Lordship, my Lord Issued his Command; This Command was served on the Party Complained of; And, on Return of that, Oath being made of it, that the Party gave not Satisfaction, A Warrant was Issued to the Pursivant; On the Pursivant's return (he not meeting with the Party) the Party possibly absenting himself, or Rescued out of the Pursivant's Hands, there is an Oath taken by the Pursivant, a Warrant given to the Serjeant at Arms, who goes in Person, or sends his Deputy three or four or five times, and when the Party cannot be got, then he lays Soldiers.
He Answered, That he was to go to the Captain, or Chief Officer of the next Company, or Garrison, to Complain of the Party he calls Delinquent, and show my Lord Deputy's Warrant, and then he Commands them to rise with such a Number, as he shall think convenient, and March to the Party Complained of, in whose House they lie, till they receive further Direction.
He Answered; That it was by a General Warrant he laid Soldiers on Delinquents, and that he had a particular Warrant first, but when that was disobeyed, he used this General one. that the Soldiers might not March but with an Officer; That he did never see those Soldiers go on Service like Naked Men, but they had such Arms as were sit for Soldiers; That he hath seen them Armed with Muskets, Swords, and such Furniture. That they have Meat and Drink from the Party they lie on, though (for his own part) he had never Meal's Meat from him.
He Answered, That he had done it on several Occasions; and that he was afraid that sometimes he should be Complained of to my Lord Deputy, in not putting it in Execution, when the Parties have thought he, the Deponent, hath been favourable without Cause: That he had, on several Occasions, executed his Command; as namely, He caused Soldiers to be laid on one Francis Ditton, likewise on one Conolly, and on Luke Borne, as he takes it, and some others, whereof he doth nor remember the Particulars: But, those Men could not be brought in by any other Means, that he knew.
He Answered, Sometimes my Lord's Secretary would demand, Why he would not put the Warrant in Execution? And he (this Deponent) would say, They were poor Men: But it never came to my Lord's Hands, so far as he could remember.
He Answered, He never saw the Warrant; but, he hath heard he hath, by Vertue of such a Warrant, laid Soldiers, but he knows not how many; he not looking to the Actions of others, but his own; and he wished it had all lain in his Power still, and he had done well enough.
He Answered, He had seen a Warrant, Signed by my Lord Wentworth on the Top, and a Seal to it, directed to the Sergeant Savill, to the same Purpose: That an Affidavit made to him of the Absence of the Contemptor of the first Warrant, he might lay Soldiers on the Land; and that he made Search for it, and saw it in Secretary Little's Book, but it was long ago.
He Answered, It was a constant Course, on a Command, and Affidavit made of serving a Warrant to the Pursivant, on the Party's failing, an Attachment was granted to the Serjeant, and a Dormant Warrant, That on his not finding him, he might lay Soldiers on the Land: This was constantly practised during my Lord's Goverment, as he observed; And particularly, upon one Richard Butler in the County of Typerary last Summer: And, no other Cause could he learn or know, but not giving Obedience to my Lord of Strafford's Orders, The Original Contempt.
He Answered, That he had heard, Soldiers were left on one Berne's Land, and they took other Mens Cattel that grazed on the Lands, and killed them, and burnt Part of the House, (as he was told) and broke up the Hutches where he had his Corn, and sent it to the next Market-Town to buy Beer for them.
He Answered, The Warrant imparts, That, on their Default, or Absence, the Serjeant at Arms may lay Soldiers on the Land, there to lie to feed on the Contemptor's Goods, and live there till he surrender his Body to the Serjeant at Arms. Then the Serjeant gives Notice to the Soldiers, that the Party is come in, and they go to their Garrison.
He Answered, That he had seen my Lord-Deputy's Hand signed (if it was his Hand) Wentworth: as he had seen it to many Orders, being very well acquainted with his Hand: That he had seen his Hand to such a Warrant; That the Man that showed him, the Warrant, was one of my Lord-Deputy's Troopers (by Name Patrick Brady) who told him, he was going to fetch Soldiers by Direction of Serjeant Savill, to lay on one Francis Dillon, who; was in Contempt at this Brady's own Suit: That the Occasion he showed him it, was: That Brady was indebted to him (the Deponent) and he (the Deponent) intending to Petition my Lord against him, Brady desired him to forbear it, for he had a good Way to get Money, and shewed him the Warrant; he (the Deponent) saw it under my Lord-Deputy's Hand and Seal.
Being asked, What was the Suit? He said, The Suit was on a Paper Petition? for (as he remembers) 100 l. and so Dillon falling into Contempt, a Warrant was issued to the Pursivant, and so, according to the Practice, the Soldiers were laid on him.
He Answered, That the Effect of the Warrant was, That the Serjeant at Arms should bring upon the Delinquents (such as was in Contempt) out of the next Garrison, Soldiers, with an Officer, and lay them on the Delinquent's Lands, till he had rendered his Body.
He Answered, That he had seen no Execution done: But, he had a Letter sent out of the Country, by a Gentlewoman's Son, and she desired him (the Deponent) to Petition, To have Soldiers that were laid on her Land discharged, it being only for a Contempt, in not Appearing. That he got a Copy of the Petition, her Name being Agnes White, and therein she petitioned my Lord of Strafford to have them discharged; and said, she was very old, and should dye, if she submitted herself to any Serjeant at Arms. The Order was, That upon the Affidavit he would give other Direction. The Son made Affidavit, That she was 80 Years old: On that, an Order was made, requiring Serjeant Savill to take off the Soldiers, and trouble her no more, she paying him his Fees. And he knew further, That Serjeant Pigott having an Attachment against John Barrow, who was gone away, by reason of certain Cruelties, sent after him, by Secretary Little, who threatned to put Soldiers on him, if he came not to compound with him for his Fees.
He Answered, That the Petitioner said, He was dammaged 500 l. by not performing Covenants; so she was commanded to pay 500 l. or else to shew Cause to the contrary: She was an old Woman, always on her Bed, and did not appear, not knowing what belonged to Law. Affidavit being made, That she appeared not, nor gave Satisfaction, an Attachment issued to the Pursivant; The Pursivant could not find her, on Affidavit. The Serjeant at Arms goes for her; and, not finding her, the first or second Time; he lays Soldiers on her: And there they remained eating and drinking three or four Weeks, till he got them discharged. And he heard by the Serjeant at Arms, that this was very usually and ordinarily done.
He Answered, That he heard of many, but never saw any but one, which was in the City of Dublin; One Tho. Cusacke of Dublin was seized by Serjeant Savill, with Corporal Hamond, and some others of my Lord-Lieutenant's Troops, for not obeying an Order within these two Years and a half: That he saw the Horse, and the Pistols at their Saddles; there were two or three, as he takes it.
He Answered, A Merchant of Manchester, trusted with Money, or Commodities, and being not able to pay him, he sued him, and so far, that he got a Warrant, and this was before my Lord Deputy on a Paper-Petition.
Edmund Berne being Sworn, and Interrogated, How many Soldiers were laid upon himself, by Virtue of this Warrant? and, For what Cause? and, What Contempt? and, What was the Loss? and, Whether the Soldiers were Armed.
He, in his several Answers, Deposed, That there came to his House Ten of myLord Deputy's own Foot Guard, and an Officer, in the County of Wicklowe in Ireland, in the Bernes Country, 12 Miles from Dublin; That it was on the 17th or 18th October, 1639, and they came on his Land, under Colour of a Contempt, and there lay 15 Days: In which time, they consumed and devoured all his Goods and Chattels they found at that time: They thrashed out three Ricks of Corn, one of Wheat, one of Rye, the other of Oats, which were very well worth 50l. at the least: After they had Thrashed this Corn, and devoured the Victuals they found in the House, and about the House, they sent some of this Corn to a Market-Town within three Miles, called Bray, and that they fold for Tobacco, Aquavita, some Beer, and Visuals for themselves: And they would not be content with this, to satisfy themselves on his Goods, but they must bring in the Women of the Town, and made the Women drink, and offered to Ravish them, but that some of the Town came in to Rescue them: That after they had consumed all his Goods, they broke up his Tenants Doors, killed their Geese, their Hens, and destroyed their Visuals; and when they had destroyed all his Tenants Goods, they came on the Town-People which were not, his Tenants, and broke open their Doors, and struck them, and eat their Victuals, and killed their Geese and Hens; and after they came to his Tenant, one Timothy Wells, they came on his Land and understanding he was his Tenant, they took away 40 English Sheep, and brought them to his House, and there, that Night, they killed two of them; That his Tenant under standing them to be there, referred himself to the Lord Chief Justice of Ireland then and petitioned, to this Purpose, that is, my Lord Dillon, and Sir Christopher Wainsford, that Mr. Wells, which Was his Tenant, had an Order to take away his Sheep from the Soldiers: And then the Soldiers, reply'd, That since he had got an Order to take away, his Sheep, they were sorry they did not kill more of them: That they were not content to have Wood (which was for his, the Deponent's, own Fuell, and to destroy that) but they burnt his Partitions, his very House-Door, fold his Trunck, his Bedsteads, his Dining-Table, and all they could light on in his House; that after this time, he was not able to keep House, but left his Wife and Children to the Courtesy of his Friends, and was fain to fly his Country, and to serve in the Low-Countries as a Soldier; that he may very well take it on his Oath, that this Loss was at least 500l. out of his way, for he was not able to sow the Fallows, and was fain to break up House and Home, and was never able to keep House since.
That this was upon Colour of a Contempt, upon a Petition preferred against him to my Lord Deputy, by Mr. Thomas Archibald for a pretended Debt of a matter of Ten Pounds, and these Soldiers were armed with Swords, Musquets, and Halbeards some of them.
He Answered, That one Archibald preferred a Petition against Berne, for a pretended Debt to my Lord-Lieutenant, and (as his usual Course was) his Lordship would referr the Matter to the two next Justices of the Peace uninteressed, and they to determine the Matter by Consent, if they could; else to certify that the Party bringing the Petition to him, the Deponent, desired him to draw the Warrant according to my Lord Lieutenant's Order. They sent a Warrant for Borne, who appearing, they examined the Business, and it was so trivial, that he, the Deponent, desired them to compound it. Berne stood on it, that the Plaintiff ought to have none, and he would pay him none. They certified my Lord-Lieutenant. After this Certificate, he (the Deponent) heard not of it, till he heard that Soldiers came to this Gentleman's Land, and hearing of it, and that some Tenants of his the Deponent's were wronged by it; he came thither, and some of them he knew, and asking by what Authority they were there? We come (say they) by Warrant of the Serjeant at Arms Mr. Pigott, That the Deponent thereupon said, Mr. Pigott hath no Warrant: Yes, say they, my Lord-Lieutenant's, and he directed us not to leave, till Berne delivered his Body for a Contempt.
That he, the Deponent, Answered, Though you have a Warrant for lying on his Land, you have no Warrant to destroy his Goods; for they were selling his Corn, and loaded the Horses that went through the Town.
Mr. Robert Little, my Lord of Strafford's Secretary being Sworn, was Interrogated several Questions, viz. Whether he made out any Warrant by the Lord of Strafford's Direction, and under his Hand and Seal to Pigott, or any else, for laying Soldiers after this Manner?
He Answered, That he doth not know that Pigott hath any such Warrant; nor doth he remember any such Warrant passed the Office, if it did, it was by Precedents of former, Times; but in good Faith, he doth not remember it.
Mr. Palmer inferred from hence, That he said the same for Savil that he said for Pigott, and yet how publick a Thing this of Savill's was their Lordships have heard, and it could not but come to his Knowledge, at least, his Ear.
His Lordship Answered, That he had heard something of it heretofore, but more particularly in November last, when being at the Council-Board, a Petition was preferred to the then Lord-Deputy and Council, by one Davis, who dwelt in the County of Clare; and by his Petition he set forth, That notwithstanding on a Reference from my Lord Deputy to the Judges of Assizes, he had obtained a Report from him; yet by Combination betwixt his; Adversary and the Serjeant, he had Soldiers laid on him, which made him leave his Dwelling: That he the (said Lord Ranalaugh) asked the Party, How the Serjeants came to lay Soldiers? Yes; faith he, my Lord-Deputy Wansford hath made a Warrant Dormant, and taken a Course for it from my Lord-Lieutenant, and from himself, (as he, the Lord Ranalaugh, (takes it) tho' positively he could say, That the Warrant Dormant was the general Cause.
He Answered, That he knew a Custom hath been in Ireland, for laying Soldiers on the Relievers of Rebels, and for laying Contribution-Money, in Case of Delinquency, or Non-payment; or where a Return was made by the Sheriff, that the King's Rents did not come in, these Rents being apply'd to the Payment of the Army. The Course before my Lord of Strafford's coming, was, That Soldiers were laid to constrain such; but in a Civil Cause between Party and Party, he never heard of it before in his Life.
Being asked (on my Lord of Strafford's Motion) Whether he, the Lord Ranalaugh, was not a Captain of the Army before the Lord of Strafford came, and whether he had not Commission by Soldiers, to levy Part of the Money due to him, from the Deputy and Vice-Treasurer?
He Answered, That, before my Lord-Deputy came into Ireland, the Course was, as he formerly touched, That where there was Arrear of Rents to the King, and these Rents did not come in to the Exchequer, then was assigned for the Payment of the King's Soldiers, and the Acquittances delivered to the Captains, on part of their Entertainment: and this Acquittance out of the Exchequer, was given by a special Warrant from the Deputy, and according to that Course, his (the Deputy's Method) was with other Captains, and thus he levied the Rent by his own Soldiers, by Virtue of that Warrant.
He Answered, That (if he hath not forgotten) when the Gentlemen of Ireland were here 1628, they were Suitors to the King for several Graces; and they obtained several of them from His Majesty: Among the rest (if he hath not forgotten) That in Case of Non-payment of Rents or Contribution, Soldiers might go, and lie upon the Defaulters.
Mr. Palmer observed, That when he speaks of Contribution or Rent, he speaks not of this Course, to compell to Obedience on Paper-Petitions. And so (he said) they would conclude with their Witnesses, reciting, That their Lordships have heard the Course taken, to secure that Power, my Lord of Strafford assumed to himself in Hearing of Causes. That this Usurpation on ordinary Courts of Justice, to whom it belongs, could not be secured without Arms in a warlike Manner, to compel Obedience. Their Lordships have heard how it was executed, That if the Proceeding had been legal, the Proofs of Law had been according to the calm and quiet Rules of Justice; but being an incroached Power, it must be executed by Force, and Arms, and War indeed (for so it. is in Substance) on the Subjects of Ireland. That this was in Time of Peace, the Troubles of Ireland being long since appeased, and the People reduced to the Condition of Subjects, governed by ordinary Laws and Magistrates: And now to put an extraordinary Power in execution, to compell the Subjects by Acts of Hostility, they conceive is within the Statute of 25 Edw. 3. A levying of War against our Sovereign Lord the King within his Realm. Which is nominally Treason in that Statute, and shortly, for this Reason:
The King being invested with His Sovereign Power, whereby they are protected; but this Power being (instead of Protection) used by His Ministers to the Subversion and Destruction of His Subjects, doth on the Matter, make an Inovation on the King himself, this being a bereaving the Subjects of the Law by which they should live, dispossessing them by Force of Arms, in warlike Manner, must be a War against himself, That Law is of Force in Ireland, by 10 H. 7. whereby all the Laws made before that Time, were made of Force there.
And by a particular Statute made the 18 H. 6. this very Offence of Sessing Soldiers by Lords, or any others, or any the King's People without their Consent, is adjudged Treason, and the Offender is to be judged a Traytor.
It is agreed and established, That no Lord, or any other, of what Condition soever he be, shall bring or lead from henceforth Hoblers, Kerne, or Hooded Men, neither English Rebels, nor Irish Enemies, nor any other People, nor Horse to lie on Horseback, or Foot to lie on the Kings People, but on their own Cost, without Consent. And if any so do, he shall be adjudged as a Traitor.
Mr. Palmer concluded, That this hath been done, and how their Lordships have heard that this hath been done by Soldiers that profess Hostility, brought from Garrisons, (the Places of War) in great Numbers, and indeed the Number left indefinitely to the Discretion of the Serjeant at Arms, in Warlike Furniture, which is literally true in the Cafe: And so he concluded the Article, expecting my Lord of Strafford's Defence.
My Lord of Strafford desired their Lordships would be pleased to give him Liberty to look over his Notes, and he doubted not but to give their Lordships a very clear Satisfaction, by the Help of Almighty God.
He desired their Lordships would please to remember, That if he proved not all Things so clearly and fully, the Reason was obvious and plain, the Shortness of his Time, the Witnesses being to be fetched out of Ireland, and he having none but such as come accidentally.
That the other Day he read to their Lordships, out of Sir Edward Cook's Book, That the Customs of Ireland are in many Things different from the Customs of England: That for the Things done in Ireland, he conceived he was to be judged by the Laws and Customs of Ireland, and not by the Laws and Customs of this Kingdom; and that his Commission was to execute the Place of Deputy, according to the Laws and Customs of that Kingdom.
That what hath been opened to their Lordships to be so extraordinary, he must justify as very ordinary, frequent, and usually exercised by the Customs of that Kingdom: That in all Times the Army of Ireland, and the Officers and Soldiers of it, have been the chief Hands in executing all the Justice of the Kingdom, and of bringing that due Obedience to the King's Authority, that's necessary, and fit, and due.
First, his Lordship undertook to make it appear, That (in Case of bringing in Rebels and Offenders of that Nature, and forcing them to come in) it had been the ordinary Practice of the Deputy and Council, before his Time, to Assess Soldiers, not only on the Party, but the Kindred of the Party's, till the Party be brought in; and yet it is no levying of War for all that.
And because his Lordship heard much speaking of Rebels and Traitors, he desired to represent to their Lordships, what they be, (viz.) A Company of petty loose Fellows, that would be here Apprehended by a Constable.
Lord Robert Dillon was called for, and my Lord of Strafford desired he might be asked, Whether it had not been the Practice of the Deputy and Council, to Asses Soldiers, not only on the Persons, but the Septs and whole Kindred of Rebels?
Here Mr. Palmer interposed, That for saving of Time, if my Lord makes this the Case, that Soldiers have been laid upon the Septs of Traitors or Rebels, that lie out in Woods, and esloigne themselves from the King's Protection, whom they call Kernes, Outlaws, and Rebels; they (the Committee) will admit the Usage, tho' it will not justify the Case, being expressly against Law; for by a Stat. 22 Eliz. If any lie out as Traitors, or Rebels, five of the Septs that bears the Sir name, shall be Fined at the Council-Chamber, but not have Soldiers laid on them; and against a Statute there can be no Usuage.
To which my Lord of Strafford Answered, And these are but ordinary Fellows: And he desired their Lordships would clearly understand what is meant by Rebels; for every petty Fellow stealing Sheep, and the like, if the Party be out in Action, they commonly term such Rebels.
His Lordship Answered, That touching this Point, he hath observed, That when a Party hath committed some Felony, or unjustifiable Act, and withdraws himself into the Woods, a Proclamation is made, for his coming in by such a Time, to render himself amenable to the Law; and if he then comes not in, but keeps out, in common Reputation he is accounted a Traitor or Rebel.
Sir Arthur Tyrringham being asked, Whether of his Knowledge the Deputies and Council have not frequently Sessed Soldiers on Offenders, and Rebels, when they could not be brought forth to Justice? and, What is understood by a Rebel in Ireland?
He Answere'd, That it hath been the ordinary Practice ever since he knew that Kingdom, since my Lord of Faulkland's being Deputy there, and hath been ever practised there, both by him, and the Justices that came after him: That ordinary Fellows be commonly reputed Rebels, with this Observation. It is true, That every Man is not a Rebel, at his first going out, though' he be called so; but the Course is first to proclaim them, and if they be not ameneable to Law, they be Rebels; and so they may be for Felonies of a very small Value.
He Answered to the first, Fifteen Years. To the second, That he remembers it very well, that in my Lord Faulkland's Time, it was an ordinary Course, where the King's Rents were due, to send some Horse and Horsemen, and take up these Rents, and lie on them till they were collected and taken up. So in my Lord Grandison's Time, and in all Chichester's Time: And this is all he can say.
Henry Dillon was called: And first my Lord of Strafford desired Liberty to defend the Credit of his Witness, as to some Exceptions taken to him the other Day, and offered the Occasion of the Order of Council-Board made against him, to be only this; That he said, he heard some such thing said, and thereupon was commanded to make an Acknowledgment, and to this he was invited and persuaded by my Lord Dillon, for Quietness Sake, rather than he should be troubled about so small a Matter, and that being granted, he supposed, the Gentleman stood upright, and was a competent Witness in this or any other Cause. To which, some of the Committee for the Commons answered, That they except not against the hearing of him, but offer to their Lordships Memory his Acknowledgment, that he spake falsely, as a weakening of his Memory. And then,
He Answered, That he had known several Acquittances put into the Hands of Sir Thomas Dutton, for Rents due on certain Parcels of Land in the County of Longford, that were not paid into the Exchequer by a certain Time, for which a-fore-Time Pursivants issued out against the Tenants; That himself was one of the Tenants, and being out of Town, Sir Thomas Dillon seized three of his Horses, at his the said Dillon's House, and there they remained till he came to Town, for 13 s. 4 d.
He Answered, That some Years before that, in my Lord Faulkland's Time, when he lived in the County of Longford, that were not paid, he remembers 30000l. was granted on the coming of Sir John B— into the Kingdom of Ireland, and afterwards, Six-score Thousand Pounds towards maintaining of the King's Army, and there was a Troop of Horse of Sir Robert— sent into the County of—. But he knows not whether this be the Money called the Contribution-Money; That he was then Sheriff of that County, and had Direction sent to Sess the Soldiers on them that refused to pay the Money. That at that time he conceiv'd they should have paid it, and himself and others did except against it; conceiving the Money was not granted farther, than as they would willingly pay. And Valerian— on the Statute urged, of assessing Soldiers, refused to assess Soldiers on the Warrant of my Lord of Faulkland; and thereon was sent for to the Castle, the Soldiers sent to his House, and remained there, as long as he had Provision; and after that, from his House they were assessed on several Delinquents, as the Soldiers pleased to Billet themselves; and the Foot-Company of Sir Arthur Tyrringham was then in that County. And one Night he remembers, 25 were Assessed on his own House, because he did not pay the Money: But he remembers not any thing of the Composition-Rents.
He Answered, That being Sheriff of the County of Longford in 1634, or 1633, there were Warrants directed from my Lord of Cork, and my Lord Chancellor, and he thinks under the Hands of the rest of the Lords of the Board, for levying Monies allotted to the Soldiers, and he had three Warrants himself, and by Virtue thereof levied Money, and paid the Money to the Troops there, under the Hands of my Lord of Cork, and Lord of Ely, and the Council.
Sir Arthur Tyrringham being ask'd, Whether he had not received Order, with a Warrant, for Attaching a Person in Case of Debt, and for laying Soldiers on him in case he paid it not, and who was the Person?
He Answered, That he had: And the Sheriff of the County brought the Warrant from my Lord of Faulkland, to lay some of his Men on a Debtor there, till he paid the Debt; That these Soldiers were laid, being under his Command, and stayed till the Debt was paid, at the Charge of the Party; and he tells this Particular in it, that makes him remember the whole Circumstance: The Debt was very small, not above 16 or 20 s. The Sheriff bringing him this Warrant, he did not a little wonder at the Matter, to require Soldiers for levying such a Sum. But it was then so ordinary and frequent, that it was seldom deny'd on any reasonable Occasion: The Men stay'd there some 8 or 10 Days, when the Party had enough, he sends to him the said Arthur, to recall the Men; that he told him, he would, if he, the said Party had satisfied the Money; the Party answered, He had not yet; but he would; That he, the said Sir Arthur, told him, What a strange Man are you, that will keep a Charge on your self? where, if you had paid it the first Hour, I would have withdrawn the Men.
He Answered, That he remembers in the Lord Justices Time, my Lord of Cork, and Lord of Ely (the King's Rents being slowly paid in) they did usually give Acquittances out of the Exchequer, to the Captains and Officers of the several Companies; and, if they were not paid by some Time limitted, and if the Sheriff, or the Collector did not bring in the Money, the last Resort was to fall on the Defaulters, by Assessing Soldiers on them, and there to lie till the Money was paid.
Thereupon his Lordship Answered, That he thought what he said he was sure of, and might justly say, That for the Exchequer-Rents, and Contribution Payments (for the Compositions he would say nothing) the Course was this: That for the Exchequer-Rents, the Vice-Treasurer gave out his Acquittances, These were assigned to some Captains, whose Turn it was for Payment, and they, accompany'd with a Warrant from the Deputy, to constrain the Payment by some few Soldiers.
And whereas my Lord Ranalaugh spake of Contribution-Money, Mr. Palmer humbly desired, he might be asked, Whether the raising of it by Soldiers, was not so agreed to in the Country? For my Lord of Strafford's own Answer says, The Country choose rather, that on Delinquency it should be so levied than otherwise: And, if it be by Consent, the Forde of the Statute is taken away.
My Lord of Strafford did here offer, That if he might have read the ancient Book in my Lord Faulkland's Time, he could have showed Sir Tho. Wayneman sent up and down, to this and that County, to fetch in the Composition-Rents, and that they have been thus levyed.
His Lordship added, That the next Point he should have endeavoured to prove, was, That the Gentry that granted the Sixscore Thousand Pounds for Supply of the Army in my Lord Faulkland's Time, agreed, That the same should not be brought into the King's Exchequer, but be levyed by Soldiers: nor be mentioned in any Accompt of the King's, least it should be mentioned to their Prejudice: But let the Gentlemen that manage the Evidence, labour to prove this.
Whence my Lord of Strafford observed, That it concerned him both to make good the Truth of his Answer, and to tell their Lordships, how narrowly he is moved to look to himself; for, though they now agree it to be done by the Agents, and practised by them; yet the first Part of this Killing Charge, is, That he should Traiterously and Wickedly Devise to subdue the Subjects of that Realm, by levying Money on them.
But Mr. Palmer explained himself; That they did admit the Contribution to be levied by the Agreement of the Agents, and by Consent, but they intend not to admit, that it did extend to a Practice by his Predecessors, for that it was formerly done, they did in no sort admit.
And Mr. Pym added, That they do not Charge him with levying the Contribution-Money, but with levying Money after the Contribution, was paid, which was more than the Contribution; but that is not in Issue.
So my Lord of Strafford concluded that Point; That the Contribution, for eight Years before his coming, was levied by Soldiers, is admitted; So that for all the Things concerning that Contribution, he did no more than was agreeable to the Agents themselves.
For the Collection of our Rents, in Cases of Default: That First a Summoning Process shall Issue: Secondly, The Pursivant sent: And Lastly, if this be not sufficient (in Case the Sum be not levyed) then our Vice-Treasurer by Warrant of our Deputy and Council, shall appoint a competent Number of Soldiers of the next Aiding, and Garrison, to collect the Rents at the Charge of the Parties complained of; having care, that no Man be burdened with a greater Number of Soldiers, than the Service shall necessarily require.
My Lord of Strafford from his Proofs inferred, That he had made it clearly appear, That, notwithstanding the Statute cited, it had been the frequent Use and Custom of Ireland, to Assess Soldiers on Septs of Offenders, for the levying of Exchequer-Rents, levying Debts, as appears in one particular Case which is left in Dublin, for the levying of the Composition-Rents by Troops of Horse and Horsemen; and for the Contribution, the State gives no Difference, betwixt Sessing for the King's Rents, and for Contempts and Disobedience to Justice, and certainly it would be High-Treason; for, if the Deputy had Power to Assess the Soldiers, without being guilty in the former Case, certainly his Assessing of Soldiers on Contemners, to bring them to be ameneable to the King's Justice, cannot be by any Construction made Treason in him: So that though it comes not to the particular Individuum; yet it comes, thus far, That Sessing of the Soldiers is a Power that was in the Deputies of Ireland, and so he trusts was by the Law of that Land, without making them Traytors.
His Lordship did further alledge, That when he came into Ireland, he found that none of the King's Rents were levied in other manner; Paper-Attachments being given unto the Captains, and they, on these Assignments levying the Money for their Entertainments: That he was willing to remedy this, being not much in love with the Course; and, since his Time, it was never practised, the Rents being brought in before it comes to that; though if they had not been paid sooner, it must have come to that: And therefore he desired he might show them a Proclamation, issued within three Months after he came into Ireland, to show, that he brought not the Custom with him, but found it there.
But the Committee opposed it, as conceiving it not sit he should Answer to an Article to which he was not pressed, (specially since they have not wholly laid it aside) and that he had notice Yesterday, that they intended not, for the present, to proceed upon it; which my Lord of Strafford confessed, and gave Thanks to the House of Commons for it.
His Lordship then, proceeded in his Defence, setting forth to their Lordships, That the first Instruction to my Lord of Faulkland, is no Limitation to him, it being not good, as to him, unless it were given him, which he mentions only by the Way.
For the Warrants charged to be by him Issued, and the Execution of them, His Lordship desires to free himself from the Testimony given by Mr. Berne and Mr. Kennedy, concerning a very foul Misdemeanor committed by some Soldiers, under Pretence of coming to fee the King's Writ executed, and his Justice complied withal, before he comes to that, that concerns Mr. Savill.
- I. It appears, these Soldiers were laid when he was not in Ireland; so that he is not answerable for any Thing Deposed by these Gentlemen, further than that he gave a Warrant for it to Mr. Pigott.
- II. He denies that ever Pigott had any such Warrant from him, nor is any Proof to that Purpose offered, Therefore it is not to be laid to his Accompt.
- III. Only Patrick Clear (says Pigott) threatned to lay Soldiers on some if they would not obey: But, because he threatned, therefore he had such a Warrant, is (under favour) no Consequence; Men commonly threaten most, when they have least to shew.
- IV. Mr. Kennedy says directly, Pigott had done what he did by Direction; but, in express Terms, he says, He never saw the Warrant.
This Warrant is not showed, nor comes it in Judgment against him; and though some Testimonies are given, that they have seen such a Warrant for Assessing Soldiers, &c. yet he conceives it very hard, That the Warrant should be the Ground of convincing him of Treason, and yet the Warrant not be shown, for what the Grounds are, and what the Limitations may be, do not appear: And, if there were such a Warrant, it is long since it passed from him; but, it is not shown; therefore to convince him in modo & forma, is very hard to be done; for what may be in it to qualify, or what amiss, no body knows. But to the Proofs, his Lordship observed, That the Proofs are very scant; This great Mighty War made on the King and his People, in Breach of the Statute cited, is one of the Poorest Wars that ever was made in Christendom; for last Summer, one says, He knew Soldiers laid on one Man.
The Seyjeant says, He never laid above six, sometimes two, sometimes three; and that this should be heightned to the making a War against the King and his People, seems to be a very great Strain put upon it, and more, he hopes, than the Matter will bear.
But, he shall make it appear, That the Serjeant at Arms is a publick Officer; and whatsoever Warrant he hath from him, it is not in Relation to him, but to the Execution and procuring Obedience to all other the; King's Courts of justice, as well as those of the Deputy's Jurisdiction; and, it was only to enable him the better to secure the King's Right: And he desired, that Nicholas Ardah be examined, Whether he be not an Officer of the Exchequer in Ireland, and whether he knows of any particular Sessing of Soldiers by the Serjeant at Arms, before my Lord of Strafford's Government ? And being asked severally these Questions:
And, that about the Second Year of His Majesty's Reign, there was one Tho. Fitzgerard High Sheriff of a County, that had not perfected his Accompts, and not appeared to the Pursivant; The Lord Chancellor that now is, desired the rest to assist him to move my Ld. of Faulkland to lay Horse on him; and the Party was brought in within a short Time after; but whether by Soldiers, he knows not; but he heard there was a Warrant.
He Answered, That he never saw any other Warrant of the same Nature; but, he hath heard by him that was his Predecessor (now a Captain of the Army) that he had received a Warrant from my Lord of Faulkland to Sess Soldiers on the Land of Tho. Fitzgerard, who had refused to come to pass Accompts.
He Answered, That he conceives, the Serjeant at Arms is an Officer, as well to the Court of Exchequer, as to the Chancery, on the last Process of Contempt. The last Process is a Writ to the Serjeant, to Attach a Man, whether betwixt Party and Party, or concerning the King; and that' he had spoken with Thimbleby, Serjeant at Arms, whether he did so in his own Right, or as Deputy? And asking him, What he would do if the Warrant was disobeyed? And he pretended he would Assess Soldiers; and being, a Scholar at— 23 Years; he heard one had Soldiers Sessed on him for Disobedience to the Serjeant at Arms; but, what the Particular was, he doth not know.
Here Mr. Palmer speaking some Words, which my Lord of Strafford interpreted an Interruption; his Lordship desired, That no hasty Words might be misinterpreted, he being for his Life and Children; and added, The Gentlemen would do well not to put him out of his Way, but let him speak the poor few Things he can for himself, and then leave them to their Lordships Wisdom. And then proceeded.
So, he supposed there could be no such severe Construction put upon this Warrant, that it should be adjudged a levying of War against the King and his People, when it appears to be the using of half a Dozen, sometimes two or three Soldiers to lie on refractory Perform, and bring them to be conformable to Justice; that the King's Law might be obeyed, without any treasonable or corrupt Intention whatsoever: And, he hopes their Lordships will have a more favourable and compassionate Consideration, than to judge him a Traytor for such a Piece of Business, accompanied with all these Circumstances.
But he added, That some Ways he is more qualified than an ordinary Person, by reason he had the Honour to be His Majesty's Deputy; and by His Commission, had Power to pursue Rebels, and to use the King's Army for punishing of Rebels, or securing the publick Peace of the Realm, as in his Discretion he should think sit; and, that he conceives, a Warrant, though there had been no Precedent in the Case (but with these accompanied) cannot be laid on him as a Crime: For this, he refers himself to his Commission, which had been formerly read, and therefore trusts this will not fall into their Lordships Judgment as a High-Treason, he being to govern according to the Customs of the Realm: There is a Statute 10 H. 7. cap. 17. whereby it was Ordained, Enacted; and Established by Authority of that Parliament, That from that Time forwards there be no Peace nor War undertaken in the Land, without the Deputy's Licence; but, all such War and Peace to be made by the Lieutenant, for the Time being; And this comes in time; after the Statute of 18. H. 6. This was never complained of as a Fault, and no ill Consequence followed on it. If a Man shall enter by Force, and wrongfully keep away Possession, that may be as well said to be a levying of War as this; and yet a forcible Entry is familiarly punished in the Star-Chamber, but not spoken of as a Treason.
I. He hath heard it said, That the King cannot be concluded in any Statute, unless he be particularly named, and consequently not his Chief Governor; For, these Words, No Lord, or any other, of what Condition soever,&c. Must imply, a Condition of a Lord, or one under a Lord, not a Condition above a Lord, as the Chief Governor is.
III. It speaks of bringing English Rebels, or Irish Enemies, or Hooded Men, Hoblers, Kernes, &c. But, that sending of the King's Soldiers to apprehend and attach such Refractory Persons, should be within the Statute, is a Stretching of the Words of it very far.
IV. Notwithstanding this Law, the Chief Governor hath alway used to Assess Soldiers (and Practice is the best Interpreter of Laws) and yet his Acts have not, by this Statute, been concluded Treason; since they have Compounded for it, and they pay a great Rent; The Composition-Rents paid for their Discharge from the Assessing of the Army, being one of the greatest Revenues before his coming there.
Though he shall not insist on it (as desiring never to depart from their Lordships Judgment, nor thinking himself more safe in any other; therefore freely and voluntarily he puts himself under their Lordships Censure, for his Life, as for his Death): But if he should insist on it, admitting all this, That it was Treason by the Statute-Law of Ireland, yet he is not Tryable for it here: But, he makes no Use of it to that Purpose; but, had he a Thousand Lives, he would humbly lay them every one at their Lordships Feet.
He added, That it is a very heavy Case, that such old Laws as these should be started, in this manner, when the Practice hath been quite contrary; and kindled, to destroy him and his Posterity at a Blow. But he trusts, God Almighty hath provided better for him, by their Lordships Favour and Justice: For, though the Gentlemen at the Bar are much more Learned than himself; yet, it may be, they are not so well Read in the Irish-Statutes, as they be in the English: Besides, he is most confident, he shall make it appear that Statute is Repealed.
And, if it falls in his Judgment, their Lordships (he hopes) will find, he had Reason to think, what he shall offer, might be available; and, that, their Lordships will not be offended if he mistakes the Law; and this, as in other Things, he desires the Advantage of by Counsel, concerning these Points of Law, before he be finally concluded.
First, By the Statute of 8 Edw. 4. cap 1. (and, had these Gentlemen seen these Statutes, he believes they would never put it in Charge against him.) Whereby it is Enacted, Confirmed, and Ratified by Authority of the said Parliament, That the said Statute be Adjudged and Approved in Force and Strength; and the said Statute may be of Force in this Land from 6th Day of March next; and that from henceforth the said Act, and all Statutes and Acts made by Authority of Parliament, within the Kingdom of England, be Adjudged and Ratified from the said 6th Day of March.
This comes in Time, after the Statute of Treason of H. 6. and Ratifying all the former Statutes of England: Ratifies the 25th of Edw. 3. in England, which is the Statute of Treason: and, 1 H. 4. which says, nothing shall be Treason, but what is said to be Treason within the said Statute of 25 E. 3.
Secondly, By the Statute of 10 H. 7. c. 22. and this is a Repeal in Judgments far better than his own. The former was for another Purpose. By this, all the Statutes made in England before that Time, are brought to be Laws within Ireland; and, all Laws contrary to these Laws are hereby repealed. But, the Law urged by those Gentlemen is against the Laws of 25 Edw. 3. and 1 H. 4. and consequently is repealed very clearly; and, the Words are these in effect; It tells of the Benefit and Advantage that might come to them, after the English Laws should be brought in; And, if any Statute have been made contrary to them, the same to be annulled, void, and of none effect.
And, that it hath been so taken and conceived, that that Law is Repealed, he hath, as he conceives, a Judgment in Parliament clearly on his Side, to clear him, as to this Treason, That the Deputy hath Power to Assess Soldiers, in Cases where he shall think convenient,
It is a Power, which (God forbid) any Man should exercise, but with all fair Intention, and Mildness that possibly can be; and he speaks it, not to draw any Inconvenience on that Kingdom (he being Willing to spend his Life for them, rather than do them any Hurt) nor will he carry from this Bar the Remembrance of any thing of their Unkindness in Prosecution (he means not them that are Members of this House:) pretær gratuitas Cicatrices, and will never look the worse on them he Vows to God.
Whereas, most Gracious Soveraign Lady, The Lords and Cheiftains of this Realm, in the time of Desolation of Justice, have arrogated to themselves Absolute and Regal Authority, &c. for Remedy whereof, your faithful Subjects, most humbly beseech it may be Enacted, &c. That no Earl, Viscount, Baron, Lord, &c. dwelling within this Realm, shall assume, &c. the Name of Captain, of any Country, except such as hath, or shall have the same by Letters-Patents from Your Majesty, &c. or by the Name of Captain, or otherwise exact for the finding of him, or them, their Horse, Foot, of or upon any of Your Majesty's Subjects, Tax, Sess, Subsidy, &c. nor shall call together People of the same Country to Treat, Conclude, and Agree for making War or Peace, &c. Sess, nor Lead the People, without the great Seal, or Warrant from the Lord Deputy, &c. upon Pain to every Earl, Viscount, Baron, or Lord, &c. for every time 100 l. of lawful Money of Ireland.
Whence he inferred, That here is a Commission, that the Deputy and chief Governors have Power to Assess, and yet are no Traitors; a Penalty which they would have spared, had they thought that Law to have been in Force.
So that as he hath been free in his Heart from any Treasonable Design towards His Majesty or His People, and as he hath been innocent to God Almighty within Doors, so from this Statute he shall stand clear Abroad, and this cannot be brought as to this Case, to convince him of Treason.
That this Proceeding of his, was Treason, by 25 E. 3. though he had thought Treason had been like Felony in this Respect; That there must be a felonious Intent to make Felony, and so to make Treason, there must be a treasonable Intent. And, he said (God knows) he had no treasonable Intent in all this; for if he had a Mind to have raised War against the King and his People, surely he should never have done it by laying two or three Soldiers on a private Man, and then taking them off again; And is this that levying of War against the King and his People, that is meant in the. Irish Statue of 25 Edw. 3.
He appeals to their Lordships, desiring them to lay it to themselves, and tell him whether two or three poor Soldiers sent in this manner to bring in a Man, that will not be liable to the King's Justice, could by any Construction, be brought to be a War levied against the King and his People? which, said he, if it be an Error, he knew it was no Treason; for he had thought it had been for the Honour, and Authority, and Justice of the King, and not done as an Enemy to him.
And therefore all laid together, though he must needs say, Men are dark towards themselves, and towards their own Cases, and less able to judge, than in the Case of other Men; in Truth, under Favour, with all Humility, and Submission to their Lordships better Judgments, he cannot believe nor fear, but for any Thing proved this Day against him, as he is clear in his Heart from all Treasons, and treasonable Intentions towards the King and His People; so he stands clear from Treason upon this Charge, not only in respect of the Irish Statute, but likewise the English Statute; and he shall beseech their Lordships, when it comes to its Time, they will give his Council leave to urge these Things for him, who he is sure will be able to do it with far greater Reason and Strength than himself, it being out of his Profession.
That their Lordships have heard a very long Defence, made by my Lord of Strafford, and that he would not apply himself to inforce any Thing by Circumstances, but to represent the Truth, and to avoid those Things offered by Way of Answer, for most part of that may be confessed, and yet avoided.
Whereas my Lord of Strafford hath made the greatest Part of his Defence in Matter of Fact from Usage, your Lordships may please to consider, That there can be no legal Usage contrary to an Act of Parliament, made before time of Memory, as 25 Edw. 3. in England, and 18 H. 6. in Ireland, much less can there be Usage for committing of Treason.
The Usage insisted on, is First, for Soldiers being Assess'd on Septs, till Rebels and Traitors not apprehendable, were brought in; and by Rebels, his Lordship would have understood, not Rebels against the King and State, but petty Offenders and Felons, and for that did examine Witnesses: But the Witnesses says, That when such had committed Felony, and withdrawn themselves into Woods, a Proclamation went out to call them in, and if then they came not in, they were esteemed Rebels, and Soldiers were laid on their Septs, which is not to lay Soldiers on Subjects in Time of Peace, when they will not conform to his private Orders.
The Stat. 11 Eliz. describes what the laying Soldiers on the Septs was, viz. When Outlaws and Rebels lie in the Woods, and will not be Apprehended with the ordinary Arm of Justice, then five of the best of the Septs shall be fined; but not, that Soldiers shall be laid on them. And this being a Statute and lately made, must needs give the rise to this laying of Soldiers on the Septs by the Council-Board, instead of a Fine; so this is no Justification or Excuse, it not bringing a full Answer home to the present Case; nor is this of Right to be justified.
The next Usage was concerning the King's Rents, which Mr. Conley only extends beyond the Time of my Lord of Faulkland, he speaks of it in the Time of my Lord Grandison and Chichester; yet it was no positive Testimony, and he was an old Man, and his Evidence uncertain for those Times. Besides, there was no Account given of the certain Reason, whether by a legal Process, or no: For there might be due Process awarded, and a Writ of Assistance, to carry the Power of the Country, and so the Thing be done by Legal Authority, and therefore since it cannot be applied to any Rule, it must be intended to be an Illegal Power, if at all.
The rest were all for Rents in the Time of my Lord of Faulkland. The Instructions were produced by my Lord of Strafford himself in time 1628, which was before my Lord of Faulklaud went out of that Government.
And by these Instructions there is an Agreement, and it is taken to be for the Benefit of the People, that the King's Rents should be levied by Soldiers; so that for all the Time of my Lord of Faulkland, and the Justices since, it was within the Compass of the Instructions, and reduced to the Consent of the People, and the Words of the Statute are, No Soldiers shall be Assessed without Consent; but this remains charged to be by Force, and against Consent.
That concerning the Contribution-Money, in which another Usage is alledged, is set forth to be an Agreement of the People, That because it might not come into the Exchequer, to be made a Precedent, it should not be levied by ordinary Process, but by Soldiers, if it were behind, it being assigned for Relief and Pay of Soldiers; and being by Consent, is out of the present Case.
Sir Arthur Tyrringham speaks of this Use in Cafe of a petty Debt of 16 or 20 s. on a Warrant from my Lord Faulkland, which is the only Case of Debt proved; but he could not tell whose, or what Debt it was, nor how determined or judged. If it were the King's Debt, it might be one of the Rents, or some Duty leviable by Consent of the People; neither did he say, it was on a Suit before the Deputy, and therefore that will not come to the Case.
That Sir Thomas Wayneman laid Soldiers, is but an Affirmation, and expects no Answer; (but if the Information be true) he used very violent Courses, for it hath appeared he hanged a Man without any Occasion.
My Lord produced the Instructions of 1628, and out of them inforced, That it might be lawful for him to levy Soldiers with Authority, but it appears by the first Article it was consented to at the Writing, and for the Benefit of the Subject, as was before answered; and that very much Money was assigned for the Soldiers; and it may be proved (if there be Occasion) That there issued Acquittances to the Captains of the Companies, to deliver to the Persons from whom the Money was due, in Case of Payment; and if they did not pay by Consent, Soldiers were laid, and not other wife:
For the Proclamation of December 1633, whereby the Payment of His Majesty's Rents and Revenues was ordered, it recites divers Rents were behind, that the Surplusage would not pay the Soldiers, that by Want of Money, the Soldiers might make Irruptions on the County; That according to Direction, to prevent Inconveniencies, Monies should be levied, which had Rise from the Instructions, 1628. For the Time of it was 1633. A Proclamation might well second that which was settled before, by the Instructions: If it did not pursue them, surely the Proclamation was an Offence in it self, and then there is no Justification of a Treason by a Treason, but it might as well have been objected against, as this in hand; But it is true, it hath the Countenance of these Instructions.
After Usage his Lordship observes the Testimonies produced, and takes Exceptions to that of Berne; that the Ground of his Complaint was when my Lord of Strafford was in England; That it was done by Pigott's Warrant, who was not proved to have any Warrant from him. It is true, there is no full and precise Proof, that Pigott had his Warrant from my Lord of Strafford. But though it was done after his coming for England, yet if his Warrant were made before, though it were executed in his Absence, it will lay it on my Lord of Strafford. But we say, the Warrant was made before, and to Pigott as well as Savill. One Witness says, Pigott himself did vouch my Lord of Strafford to have given him his Warrant, it was my Lord Lieutenant's Warrant, he was my Lord Lieutenant's Serjeant, the Soldiers were my Lord Lieutenant's Troopers; the Soldiers laid by Savill, are by my Lord Deputy's Warrant, proved to be under his Hand and Seal, and many Witnesses are in Savill's Case produced. And whereas my Lord says, No War rant was shewed; and if himself had not excepted against it, a true Copy had been produced; and if none be shewed, it is his own Fault; but my Lord of Strafford should have shewed it, if any thing was in it to qualify the Matter; for it is proved he gave Authority, and by his Authority the Soldiers were laid.
It is true, he and Savill mention the laying on of Soldiers on Fitzgerard, but it was for the King's Money, and they spake it not on their own Knowledge, but by Hear-say, and it was done but once; and whether since the Instructions, it doth not appear; and if it was since, then it was by Consent, and this Fitzgerard lay out as a Rebel, and if it was done, it was done under that Capacity. To that Point a Witness was produced.
He Answered, That this Fitzgerard was Sheriff in the County of Cork, and failing in his Accompt at that Time, Process was issued on his Recognizance, and he held it out three or four Years. That he (the Deponent being then the King's Remembrancer) thought it his Duty to acquaint the Barons of the Exchequer, that he could not be found, but kept abroad in the Woods, being a Man of good Estate; and then on acquainting my Lord of Faulkland with it, a Warrant was procured to the Serjeant at Arms.
This is all offered in Matter of Fact; my Lord proceeds to other Justifications. First, That His Majesty's Deputy is so qualified, that he bath Power to resist Rebels and secure Peace. And it is true, he hath Power; but he hath no Power at all to make a War, especially in time of Peace; now all Things are appeased there, and no Occasion is given of a War; only that Soldiers be maintained for a Nursery of Martial Discipline, but there is no Occasion of Soldiers to be laid on the King's People.
He alledged a Stat. 10 H. 7. That no War or Peace should be made, but by the Deputy's Licence; and therefore he infers, that by the Deputy, War might be made; It is true, where there is Hostility or Rebellion, then to oppose and repress that Rebellion, the Deputy may make a defensive War; but to do it in Time of Peace, on the King's People, that are under the Government of His Majesty's Laws, is to make War on the King's Subjects, under His Peace and Protection, and consequently, on the Sovereign Power that doth protect them.
He would compare it with forcible Entry, but the Circumstances do very much diversify it from Riots, or forcible Entries; It is done by Soldiers that come furnished with all warlike Ammunition, brought from Garrisons, the Places of War, brought with an Officer, brought in Numbers; and though the Lord of Strafford extenuates the Numbers, yet the Serjeant at Arms was unlimitted. So the Power given to him, was a vast Power, to take such a Number of Soldiers, as he should think fit.
His Lordship observes, That the Stat, of 18 H. 6. cannot conclude him, because Statutes here in England, do not include the King, unless he be nominated in them, the Committee expected not to hear this Reason; That because the King's Sacred Person is not mentioned in a Statute, who cannot be within the Blemish of such an Offence, therefore it should not extend to a Subject. This is to take a Power above Law, and make himself equal to Sovereignty, to say, That he should not be comprehended more than the King himself.
He says, He did not lead the Soldiers, but only gave a Warrant, and therefore this should not be Treason; but though he leads them not, the Commander is an Actor; and to give Warrant for Treason, is Treason.
He says, This is a Statute-Law in Ireland, and not examinable before their Lordships here. Mr. Palmer alledged, That he would do my Lord Right; That he submitted to their Lordships Judgments, and craved leave to give Answer to that Point, and said, The Laws of Ireland are devised from the Crown of England, the King being seized of it in Right of his Crown of England, and as a Parcel of this Crown: The Power they have to make Laws there, is derivative from the Crown of England, and they did thankfully accept them from the first Conqueror: Since that, they had Power to make Acts of Parliament, but that is subordinate, the Laws there are the Laws of England apply'd to that Place: As any particular Custom of a Place, not the general Law of the Land, is the Law of that Place by a general Custom, and yet may be judged out of the Precincts of that Custom; so the Laws of Ireland are the Laws of that Kingdom; yet may be judged by this Supream Court, out of the Limits of Ireland. Though in an Inferior Court, when a Thing questioned in Ireland, is brought by Writ of Error, they judge according to the Laws of Ireland, not of England.
And my Lord hath prayed, and we require, That he may be judged according to the Laws of Ireland. So this Law of 18 H. 6. may be judged by their Lordships, though it be a Law in Ireland. But my Lord urges, That this Law is repealed, and for that he gave Reasons on many Acts of Parliament; First, a Statute made 8 Edw. 4. That is made to a particular Purpose, reciting one particular Statute, and repealing that, and then by a general Clause, ratifying and introducing all the Statutes of England into Ireland. This being but on a particular Occasion, with such a general Clause, will not be appliable; however, it will be the Answer to that that follows. It is a general Clause to introduce the Laws of England, and shall not have that Reflexion to repeal any Law of Force in Ireland. This introducing of our Laws thither, shall not work to repeal their Laws, but make a Consistance of both Laws, so far as they may stand together. On that Mr. Palmer said, He would not enlarge himself, it being not Matter of Fact, and it was not expected that Matter of Law would have been insisted on, and therefore he leaves it to those that shall hereafter give their Lordships Satisfaction in Point of Law.
That which my Lord called a Judgment in Parliament, 11 Eliz. recites, that it was in Time of Desolation of Justice; That the Captains had brought Oppressions on the People. It was in a Time, when, though the Irish had been victim long before, yet they were not brought perfectly under Subjection of the Laws of England, there then remained Rebellions and Tumults; It was in Time of Hostility and War; And that Statute gives but an Implication neither, That Captains should not Assess without the Deputy's Warrant; And it follows not, That therefore he hath Authority to do it. But howsoever the Thing be, this was for Defence of the People, to make Resistance against Rebels. But the Thing in Charge was in Time of Peace, and full Government of the Law, and so that Statute will give no Justification at all.
My Lord recited the Words of the Statute, Not to be only the levying of the War, but adhering to the King's Enemies; but these Glosses are not to be confounded but severed. The adhering to the King's Enemies, is one Offence within that Statute, Levying of War another; so that if there be no Adherence, yet if there be a Levying of War, it will be Treason.
And this Levying of War, it was on the King's People; perhaps there was no Intent upon the King's Sacred Person; yet if it be against the King's People; such a Levying of War is Treason; ordinary Cases of Felony are to be against the King's Crown and Dignity, though it be the Homicide of a mean Subject, it is against the King's Crown and Dignity, because it is against the Protection and Safety of that Man that is the King's Subject; and so the Levying of War on the King's People, by laying Soldiers in this hostile Manner, being against the Protection, by which they are governed, against the Safety, by which the King is to defend them. It is a War against the King, His Crown, and Dignity.
This is the Answer to the Defence. And Mr. Palmer concluded, That he conceived the Charge of the House of Commons, in Matter of Fact, was fully maintained, and for Matter of Law, if there remained any Scruple, a farther Argument, and stronger Reasons should be offered hereafter.