Historical Collections of Private Passages of State: Volume 8, 1640-41. Originally published by D Browne, London, 1721.
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The Sixteenth Article.
That the Earl of Strafford the Two and twentieth of February, in the 7th Year of His Majesty's Reign, intending to oppress the said Subjects of Ireland, did make a Proposition, and obtained from His Majesty an Allowance thereof, That no Complaint of Injustice or Oppression done in Ireland, should be received in England against any, unless it appeared, that the Party made first his Address to him the said Earl, and the said Earl having by such usurped, tyrannical, and exorbitant Power, expressed in the former Articles, Destroyed, and oppressed the Peers, and other Subjects of that Kingdom of Ireland, in their Lives, Consciences, Land, Liberties, and Estates; the said Earl to the Intent, the better to maintain and strengthen his said Power, and to Ring the People into a Disaffection of His Majesty, as aforesaid, did use His Majesty's Name in the Execution of the said Power.
And to prevent the Subjects of the Realm of all Means of Complaints to His Majesty, and of Redress against him and his Agents, did issue a Proclamation, bearing Date the 17th Day of September, in the Eleventh Year of His Majesty's Reign, thereby commanding all the Nobility, Undertakers, and others, who held Estates and Offices in the said Kingdom, (except such as were employed in His Majesty's Service, or attending in England by his special Command) to make their personal Residence in the said Kingdom of Ireland: and not to depart thence, without Licence of himself.
And the said Earl hath since issued other Proclamations to the same purpose, by means whereof the Subjects of the said Realm are restrained from seeking Relief against the Oppressions of the said Earl, without his Licence; which Proclamation, the said Earl hath by several rigorous Days, as by fine, Imprisonment, and otherwise, put in Execution on His Majesty's Subjects, as namely, one Parry, and others, who came over only to complain of the Exorbitancies and Oppressions of the said Earl.
April 3. 1641.
Mr. Palmer Proceeded in further Maintenance of the Charge of High-Treason, by the Commons of England, against the Earl of Strafford; and said, They were now entring upon the Sixteenth Article of his Impeachment, and shewed;
That from the Former Articles had been represented several and divers Sorts of Crimes; and how that in every of them their Lordships might perceive a Power assumed by my Lord of Strafford, above, and contrary to the Laws, and destructive to them in every Part, so far as concerned the Subject Matter; and, how these Multiplications of Acts did presuppose an Habit, and evidently proved that main Charge, wherewith he was accused, viz. His endeavouring the Subversion of the Established Laws and Government, and to introduce an Arbitrary and Tyrannical Power.
And, that by this Article it would appear unto their Lordships, That those Exorbitancies that were done in Ireland; were prepensed and intended, before his going thither; That those Oppressions were so by him done; and that he might Countenance it, the Article Charges him, That on the 22th of February, in the 7th Year of the King, he procured from His Majesty's own Allowance, That no Complaint of Injustice, or Oppression, should be received in England, unless the Party first made his Address himself to the Deputy, and this was obtained on his repairing to that Government: And this was to be observed by the Secretaries here, the Master of Request, and all others by whom Complaints might have Passage to His Majesty; and, it remained as a Caution, That none should be admitted.
It is true, many specious Reasons and Arguments were subscribed to this Proposition, but the Effect of them was, to take the Reins of Rule into his own Hands, to prevent the immediate Access and Approach of the Subjects to His Majesty, in their seeking of Redress for their Grievances.
And, in the 11th Year of the King, after some Time spent there, to prevent them of all Means of Redress, their Complaints being before imbargued, that they could not be received, no Person at all must come over without Licence; There must not be a Rumour of what was done in Ireland, but such as he should so Authorize. To that End, by Colour of some Laws in Ireland, concerning them that were to maintain their Lands against the Irish in Times of Hostility and Rebellion; and, under Colour of some Instruction, for their keeping their Residence on their Lands, as also of a Letter to that Purpose from His Majesty, he is Charged; That on the 17th of Sept. 11 Car. he issued a Proclamation, and that commands the Nobility, Undertakers, and others that held Estates in Ireland, to reside there, and not to depart without his Licence, and so restrained them from seeking Relief against his Oppressions, without hisLicence. To them that desired Licences, he deny'd them: On them that adventured to repair hither without Licence, he imposed Fines and Imprisonments for transgressing that Proclamation; and howsoever this may be coloured with Pretences of Instructions, and Letters from His Majesty, it is an Usurpation on Regality, and an undermining of the Protection of His Majesty over His People.
For Proof thereof,
John Loftus, Witness.
John Loftus being Sworn, Attested; That the Copy of the Propositions, made by my Lord of Strafford, was taken out of the Clerk of the Council's Office, and was a true Copy.
The said Propositions were Read.
At Whitehall, 22th of Feb. 1631.
Propositions to be considered of by His Majesty, concerning the Government of Ireland.
These Propositions were entered according to His Majesty's Pleasure, signified by Mr. Secretary Cook.
These Propositions made to His Majesty by the Lord Wentworth Lord-Deputy of Ireland, and Lord-President of the North, were Read and Approved of at the Council-Board, 17th Feb. 1631.
There being present, &c.
That no particular Complaint of Justice, or Oppression, be admitted here against any, unless it appear, the Party made first his Address to the Deputy. This is but Justice to the Deputy, who must needs, in some Measure, be a Delinquent.
Whence Mr. Palmer inferred, It did appear that this was to be Entered, and remain with the Secretaries, Master of Requests, and all others whom it might concern.
The next Thing is the Proclamation, in Effect as followeth;
17th of Sep. 11 Car. By the Lord-Deputy and Council. A Proclamation, That Noblemen, Undertakers, and others, shall be Resident here.
After the Preamble it Imports.
We therefore, in Obedience to His Majesty's Royal Command signified by the said Letter, Do Publish, Declare, and make Known His Princely Pleasure, That, all the Nobility, Undertakers, and others that hold Estates, and Offices in the Kingdom (Such only excepted, as are imployed in His Service in England) do hereafter make their Personal Residence here; And not depart to England or other Place, without Licence of Us, the Lord-Deputy, any former Letter to the contrary notwithstanding: And in Case We, the Lord-Deputy shall have Notice of their Contempt of His Majesty's Will, We shall proceed against them in an exemplary Way to deter others: Therefore we straitly Command all Manner of Persons to take Notice of this Proclamation.
Mr. Palmer observed, That by the Propositions, all Complaints are prevented: By the Proclamation all Persons are restrained from coming over without the Lord-Deputy's Licence. And, that in Pursuance hereof, several Persons that have required Licences have been refused; That many of their Occasions to come over, were Complaints against the Deputy himself; That such Use hath been made of this Act, that the Committee of the House of Parliament there were restrained from coming over, on Pretence of this Prohibition.
Witnesses were produced. And first,
Richard Wade being Sworn: was Interrogated, Whether my Lord of Esmond did not require Licence to come into England, and if it was denied him? And, Whether he had not a Suit depending with my Lord of Strafford, and he would not let him come over till Publication passed, whereby he was prevented of examining his Witnesses?
He Answered, That in August, 1638, my Lord of Esmond sent him with a Petition to my Lord-Deputy, for Licence to go to make an End of the Cause, wherein my Lord-Lieutenant was Plaintiff; That he deliver'd the Petition to my Lord-Lieutenant himself, and waited on him every Day for his Answer; That he could not get Licence on that Petition. That, after this, in Michaelmas-Term, 1638, as he takes it, my Lord of Esmond procured the King's Letter; This Letter he delivered to my Lord Deputy, by Direction of my Lord Esmond; but, in this, could not get Licence: So that he was detained from Aug. 1638, till April following, and he thinks till Publication was granted.
Lorky being Sworn, and Interrogated touching my Lord of Esmond's Restraint, till the passing of Publication?
He Answered, That when my Lord of Esmond heard, that my Lord of Strafford had inserted him into a Bill, amongst other Defendants in the Star-Chamber, my Lord desired Leave to come to England, to make his Defence in that Cause, and to appear in it in Person, because without his Lordships leave he could not come over, by Virtue of this Proclamation. My Lord sollicited his leave, first by a Petition, Aug. 1638. Afterwards by several Letters, some he (the Deponent) carry'd to his Lordship, who still deny'd leave, and would not suffer my Lord of Esmond to come over, till after Publication was granted in the Cause, which he conceives was in April; my Lord of Esmond having sollicited from April, 1638, till April following.
Richard Wade Witness
Richard Wade Interrogated, What my Lord-Lieutenant said to him, concerning my Lord of Esmond's coming over ?
He Answered, That on delivery of the King's Letter to him, when he looked on it in the Evening, The out-side (said my Lord of Strafford) is Secretary Cook's Hand; and to Morrow Morning, if you attend me, you shall have an Answer.
That the next Morning, he (the Deponent) came to the Secretary Carr, who told his Lordship, the Deponent was there.
That my Lord sent for him, the Deponent, to his Study, and said, What needs my Lord of Esmond be so importunate; for he can do nothing there, but his Attorney and Agent may do it. Indeed, said he (the Deponent) my Lord intends only to go over to get a Commission to justify his Innocency: Why then, faith my Lord of Strafford, I will not give way, he shall have no Commission but what is out already: And, if he have any Commission, it is but Negative.
And, Mr. Palmer observed, That by this Means my Lord of Esmond came to be Sentenced: And, Mr. Maynard added, That so might the most innocent Man.
Lord Roche Witness.
Lord Roche Sworn, and Interrogated, Whether he did not demand a Licence, and was deny'd; and, In what Suit he thought to be relieved?
He Answered, That he prayed my Lord to give him leave, and he deny'd him: That his Occasion to come over was about an Information, preferred against him half a Year before in the Star-Chamber; conceiving, that there were some Intentions against him, that tended much to his Prejudice, by my Lord-Deputy, and Lord President of Munster, who were the Occasion of the Information, as he coneived; and, that he intended to come over, hoping he might do something with the King, and their Lordships; and, when he demanded Licence (his Lordship coming to take Ship, and he (the Deponent) conducting him, he deny'd it him (the Deponent) and the Suit was not pursued in five or six Months; and, till my Lord went over nothing was said of it, which was five or six Months more.
E. of Strafford.
My Lord of Strafford desired he might be asked, Whether he was not then Prisoner in the Castle? he alledging, That he was in Prison for divers great Misdemeanors. And being Interrogated accordingly,
He Answered, That he was not a Prisoner in half a Year after, till my Lord came out of England; nor was the Cause followed in five or six Months after he propounded a Licence to his Lordship, which was the Day his Lordship went Aboard.
The next Case offered, is the Case of Dermond Mac-Carty, who had a Suit against him several times, dismissed in a Court of Justice, which my Lord Deputy took afterwards into Determination himself and made an Order against him in the Cause that was so dismissed: Mac-Carty, Grandchild to him against who the Order was made (who was not bound by the Order; having no Land, nor Office in Ireland, and so not bound by the Proclamation) desired leave to come into England, to Complain indeed of this Injustice, though he pretended it was for his Education, but was deny'd by my Lord, and by others in his absence, because my Lord had deny'd him before.
The Petition Subscribed by my Lord Deputy himself was Read, my Lord Acknowledged it to be under his own Hand.
To the Right Honourable the Lord Viscount Wentworth, &c.
The humble Petition of Dermond Mac-Carty, showing, That your Petitioner, for his Private Occasions, specially for better Breeding and Education, is desirous to Travel into the Realm of England; He therefore most humbly Prayeth, your Lordship will be pleased, to Licence and Dispence with his Journey thither, And he will ever pray, &c.
Dublin-Castle, 28 June, 1637.
For Our Reasons, best known to Our Selves, We think it not fit to Grant the Petitioner's Request; but do rather hereby expresly inhibit, and forbid him to Transport himself into England, or any Part beyond the Seas, without Our Licence first had in that behalf: And, of these Directions the Petitioner is required, not only to take notice, but also obey the same, as he will answer the contrary at his utmost Peril.
On a second Petition prefered by Mac-Carty (because my Lord-Deputy had refused to give him Licence) Sir Christopher Wainsford did also refuse his Licence.
The Petition, and the Answer thereunto Purporting to that Effect, were Read.
James Nash Sworn, and Interrogated, Whether the Occasion of these Petitions was not to Complain of that Decree, made by my Lord-Deputy, in a Cause, that had in a Court of Justice been dismissed?
He Answered, That he knew the Passages of all the Causes, having been a Sollicitor and Agent for the Father of Mac-Carty, and waiting on their occasions in Dublin. That after the obtaining of two Dismissions in the Suit, my Lord did Order and Decree for Sir James Craig 5496l. against Mac-Carty. And, on this Decree, an Order, to Dispossess him of all his Father's Estate; and he being Banish'd into a Foreign Part, the Young Man, for Fear, would not come in and appear; but, hoping to have Redress in England, did Petition in this Matter, in Desire and Hope to have Redress in that Dsimission made by the Lord Strafford.
Mr. Palmer Opened the Case of Parry his Fine and Imprisonment, who is mentioned in the Article; That he was Servant to the late Lord Chancellor, was Examined before my Lord-Deputy of some Things that concerned his Master, and had Answered so much as it pleased my Lord to require of him. That after this (being used to follow my Lord Chancellors occasions) my Lord-Deputy, to prevent his coming over, referred him to further Examination before the Judges, whom he attended five or six Days, but there was nothing to examine him upon, for he had delivered all that was required, as fully as he knew; That finding my Lord Chancellor's Occasions very urgent, he came into England; and, as soon as he came hither, it seems he was followed with Directions thence; for, by Warrant from Secretary Cook, he was apprehended by a Messenger; and the Warrant expresses it, That he was one that came over without Licence: That he was turned over to Mr. Ralton, my Lord's Agent, and must give Bond to repair, and make his appearance in Ireland: Before that Bond was discharged. He did return; and, after his return, he Petitioned to be Discharged of this Bond, he conceiving he might come over without Licence, having no Estate nor Office in Ireland; yet notwithstanding he was Sentenced, Fined, and Imprisoned. It is true, the Cause expressed in the Sentence, is, Because he went away not being Examined; and the Sentence expresses, That he is not Fined for coming without Licence, but because he came away without being Examined.
Henry Parry Sworn, was Interrogated, Whether the Copy showed unto him was a true Copy of Secretary Cook's Warrant?
He Answered, That he examined it with the Original.
The Warrant was Read.
These are, in His Majesty's Name, to Will and Command you, to make your present repair to any Place, where you shall understand of the — of Henry Parry Gent. lately come out of Ireland without Licence; and, by Vertue hereof, to take him into Custody, and keep him safe till you hear from me.
Greenwich, 20 June, 1633. To Thomas Welch, Messenger of the King's Chamber.
Henry Parry being Interrogated, What were the Proceedings with him about his Examinations in Ireland, before his coming over? And, What was the whole Process of the Business?
He Answered, That 21 April, 1638, my Lord of Ely, then Lord Chancellor, his Lord and Master, was Committed to the Castle of Dublin, and, no sooner Committed, but he (the Deponent) was sent for to the Council-Board, and, an Oath Administred to him, by the Clerk of the Council, on my Lord of Strafford's direction. That thereupon his Lordship Interrogated him, Where the Great Seal was? He answered his Lordship, That he knew not where it was, unless it was with my Lord of Ely: And, after his Lordship had Examined him to that, he Commanded him to attend the Judges the next day, to be Examined on some Papers of his (the Deponents) which his Lordship had seized and brought to the Council-Board, and thereupon was dismissed at Night. That Monday next (this being Saturday) he attended the Judges alone to be Examined, and attended not only that day, but five days more, from thence to Saturday. That on Saturday, my Lord of Ely told him, He had occasion to send him over into England and desired him to go: That he did come away with some Letters from his Lordship, to some of his Lordships Friends here; And, and as soon as he came here with Instructions from his Lordships Friends, to Sollicit His Sacred Majesty for his Relief, and Enlargement out of Prison; and he continued a matter of two Months or thereabouts; and on that, one Thomas Welsh, by Vertue of Secretary Cook's Warrant, attached him, and kept him in Restraint about three Weeks. At the end of three Weeks he was sent for to Mr. Ralton, who told him, It was Secretary Cooke's pleasure he should enter into Bond to go into Ireland, else he should be sent by a Messenger.
That he (the Deponent) Answered, He could not pay a Messenger, but if he could not get leave to stay, he would enter into Bond to go to Ireland: That Mr. Ralton took a Bond, to appear the 10th or 12th of August following, this being in July, 1638. That he came into Ireland according to the Tenor of his Bond. That my Lord of Strafford being to go into the Country, he presented himself before his Lordship in the Gallery at the Castle, and acquainted his Lordship, that he was there to attend his Lordship, according to the Tenor of the Bond. His Lordship Asked him, Who took his Bond ? He acquainted his Lordship, That it was his Agent Mr. Ralton. His Lordship Asked, What Warrant had Mr. Ralton to take Bond of you ? He, (the Deponent) acquainted his Lordship, He did not know any Warrant he had: but, he said, He had direction from Secretary Cook.
My Lord asked further, Where he took the Bond, if at the Signet-Office ? No: said he (the Deponent) It was at his own House. My Lord Answered, That he (the Deponent) might do well to attend at the next sitting of the Council-Board. And, that he (the Deponent) going away, his Lordship called him back, and said, Methinks, Mr. Parry, you are much Sun-burned, the Weather is very hot in England. He (the Deponent) Answered again, The Weather is very fair. His Lordship Interrogated him, Where my Lady Moore was ? and, How she did ? He (the Deponent) acquainted his Lordship, She was in England.
E. of Strafford.
Here my Lord of Strafford interrupted him, Asking, If this was to the Business ? but, having direction to go on,
He Added, That my Lord asked him, Why he did not stay abroad to help my Lady Moore to spread abroad her Malice against him (my Lord of Strafford) to which he (the Deponent) said, He could say nothing: and so was dismissed. That afterwards he attended with a Petition of my Lord of Ely's; and, that my Lord asked him, Where his Petition was ? He said, He had not any, but presented his Person. His Lordship told him, That it was Council-Board-Day for Petitions, and wished him to come some other Time: Yet after was called back, and had an Answer to the Petition. That the Tuesday following, (as he takes it) he appeared before his Lordship again, without any Petition, not knowing any Cause he had to Petition; That, the next Day after he Petitioned; and on Reading his Petition, the Constable of the Castle was called, and thereupon he (the Deponent) was Committed, and Censured (as he was told the next Day) 500l. That his Lordship declared the Order of the Board, That he (the Deponent) was Fined 500/. Bound to his Good Behaviour; Committed to the Castle of Dublin; and to Acknowledge his Offence at the Board, and to Mr. Ralton: And there he continued in Prison, and was utterly ruined.
Being asked, Whether he was heard to Answer in the Cause? or, Whether he was Examined after his Return.
He Answered, That he never put in Answer in Writing, nor was there any Petition against him, but only his own Petition; nor further required to be Examined from that Day to this.
Being asked, How much of his Fine he paid?
He Answered, That before he could see his Order, he was fain to pay Sir Paul Davis 45l. and, when he saw his Order for reducing it; for it was reduced from 500l. to 250l. of which he paid 184l.
Mr. Palmer, afterwards his Majesty's Attorney-General.
Mr. Palmer proceeded, observing, That the next Thing was, A Refusal of the whole Kingdom to Present their Complaints: It is true, said he, it was not by my Lord of Strafford himself, but it ensued on these Acts and Proclamations; and that was hindering the Committee of the Parliament that were to come over, to make a Remonstrance of their Grievances to His Majesty.
Sir Robert Linch being Sworn, and Interrogated, Whether he was imployed by the House of Commons to come over hither ? and, Whether he was deny'd Licence ?
He Answered, That we were sent for by my Lord-Deputy Wainsford, and he put us (as we conceived them) several catching Questions; as, if they had not my Lord Deputy's Licence, and the Board's. Whether they would repair to England or no ? We Answered, That, in Obedience to the House of Commons, we did intend to repair to England. No; says my Lord-Deputy, Answer me Catagorically; Would you go or no, if we would Command you not to go ? To this we Answered, No: being between two Jurisdictions, both from His Majesty; for, we bad a Command from the House of Commons, and a Counter-Command from His Majesty, and we were denied Licence, and a Restraint of, Ships, for that Cause they conceived to restrain them.
Being asked, Whether the Deputy did know the House of Commons had ordered them to come over, and yet refused?
He Answered, The Lord-Deputy did know it, it was apparently known to all the Kingdom.
Mr. Fitz-gerard being Examined to the same Points, as Sir Robert Linch?
He Answered, That after the Session of Parliament, 1 October last, and the House of Commons had travelled till the 6th Nov. in the Affairs of the Kingdom, the Grand Committee had heard and discussed many Grievances general and particular, and voted them to the House. That about the Beginning of November, the House entred into Consideration of those Grievances, and drew up a Petition of Remonstrances to be presented to the Lord-Deputy, which was voted in the House of Commons 7 Nov. 9 Nov the whole House attended with the Speaker, and the Speaker read it publickly before him. The Grievances were of that Nature, that they did Humbly, and of Right (as he remembers) petition for Redress of those Grievances; That the House conceiving the Parliament would be Prorogued, or Dissolved before Redress was given, they entred into a Consideration of a Course to present it to His Majesty. And 11 Nov. made an Order, That the Committee should be appointed to repair to England with a Caution, That if Redress should not be had before Dissolution, or Prorogation of the Parliament, that Committee should not proceed. 12 Nov. it was Prorogued without Redress; that the next Dayafter Prorogation the Committee was summoned to attend at the Board, and there was Interrogated severally on a Question, as far as he can remember, viz. Of their Intention to go into England, whether they would ask Leave to go into England ? and admitting my Lord-Deputy should command them not to go, till His Majesty's Pleasure was known, whether they would go ? To all they were severally to answer, and Catagorically (this was my Lord Deputy's Word.) After Answergiven, they were ordered to withdraw; and being called in again, it was made known by the Lord Deputy Wainsford; That he and the Lords had considered the Whole Matter, and bade them take Notice, there was a Proclamation Restraining all the Subjects of Ireland to make repair to England till Application was made to the Deputy. That he engaged them in Allegiancenot to depart, till he (the Lord-Deputy) had known His Majesty's Pleasure, Whether they should go or no; which he would labour to know speedily.
The next Thing Mr. Palmer offered, was the Irish Remonstrance, which was read.
To the Right Honourable the Lord-Deputy, The humble and just Remonstrance of the Knights, Citizens, and Burgesses in Parliament.
The Petitioners do conceive great and strong Fears of a Proclamation published in this Kingdom, Anno 1635, Prohibiting Men of Quality or Estate, to depart this Kingdom without the Lord-Deputy's Licence, whereby the Subjects of this Kingdom Are hindred and interrupted from free Access to His said Majesty and Privy-Council of England, to obtain Remedies against their just Grievances, as their Ancestors have had, since the Reign of H.2. and great Fees exacted for the said Licences.
And so Mr. Palmer summed up the Evidence, That by the Proposition made before my Lord-Deputy's going over, it appeared what was intended, That no Complaints of Oppression should be made without Address, First, to the Deputy, and what followed, declares plainly the Execution of it; That notwithstanding the Injustice and Oppression done, Complaints could not be received. By the former Article, their Lordships have heard what he did there, and the great Causes of Complaint: after in Time, is the Proclamation, their Lordships see the Use made of it, that those who had made Complaints against my Lord himself, and his Orders, were refused to have Licence; some that adventured to come without Licence were Fined and Imprisoned to their utter Ruin. The whole Parliament, when the Order was well known, were refused to have Licence; it is true, not by my Lord of Strafford, but the Deputy, who coloured his Denial from these Acts of my Lord of Strafford; what Fears they had, their Lordships may apprehend by the Remonstrance; my Lord of Strafford assumed a great Power to himself, all Addresses being first made to him, and the Subject thereby excluded from His Majesty, till such Address was made; so that his Lordship is not Par negotia, but Supra, above all the Authority committed to him; not an Accessary but Principal; not in the Nature of a Subject but Domini, and so he expected his Lordship's Answer.
E. of Strafford.
My Lord of Strafford after a little Time of recollecting himself, began his Defence in Substance as followeth.
That he should only apply himself to the Things in his Charge, as near as he could, and give the fairest. Answer he could, where, by the way he alledged, That he might very justifiably say, he had never in his Life other Thoughts or Intentions before his going into Ireland, or during his abode there, but justly and faithfully in the Service of His Majesty and the Kingdom; nor did he ever desire, or intend any thing, so much as to introduce the English Laws and Government there: And whereas he is charged with a Subversion of the fundamental Laws, he may say, he thinks, with Truth and Modesty, That the Laws had never so free a Passage, that never any Deputy gave less Interruption to the Proceedings of the Law, than it had, during all his Time: That it did not appear by all that hath been said, that there was any Stay of Legal Proceedings; for all the Causes spoken of him, came originally, and primarily, before they depended in any other Court; and that he never hindred, but gave all Furtherance to the Passage of the Common-Law; and therefore if their Lordships find (as they cannot but expect from him much) Error and Mistakes, he besought them out of their Goodness and Nobleness, to apply it rather to his Infirmity and Weakness, than to any habit of ill he had got, and he trusts, he should make appear to their Lordships. The Charge is, to have procured, with an Intent of Oppression, a stop of all Complaints of Injustice, that none might be received in England, unless it appeared, That the Party did make his Address to him.
To prove this, the Gentlemen have read a Proposition of his, made before his going into Ireland, and as appears, by their own shewing, such a Proposition as was allowed and approved of by their Lordships at the Council-Board. He desires that in this (asin all Things else) he might not be taken in pieces, but altogether; for if they take part, and leave what they please, they may make a Man speak strange things; and therefore he desired their Lordships would hear the Reasons inducing that Proposition as well as the Proposition it self, being under the Clerk of the Councils Hand, and so Attested by Mr. Ralton: TheProposition andReasons were accordingly read as followeth in substance.
Feb. 1631. A Proposition amongst divers others, entred in the Register of theActs of Council 22Feb. 1631. follows in bac verba.
That no particular Complaint of Injustice or Oppression be admitted here against any, unless it first appear he hath made his Address to the Deputy.
And indeed, this is but Justice to the Deputy, who must needs in some measure be a Delinquent, if the Complaints be true, as being in chief universally to take care that His Majesty's Justice be throughly comply'd with in that Place; and therefore good Reason his Judgment should be informed, and his Integrity first tryed, before either be impeached; Nay, it is but Justice to the Government it self, which would be exceeding scandalous, through the Liberty of Complaints, and the Ministery therein extreamly discouraged, upon every petty matter to be drawn to Answer here, when the Thing itself is for the most Part either injurious, or for which, the Party might have received good Satisfaction at his own Door. But where the Complaint appears formally grounded, and where due Application hath beenmade to the Deputy, without Relief to the Party, let it be throughlyexamined, and severely Punished, wheresoever the Fault proves to be, especially ifit be corrupt or malicious; for so he shall not only magnify his Justice, but punish an unfaithful Minister, or clamorous Complainant, and his Service shall thereby bebettered.
From whenre my Lord of Strafford inferred, That by this it might appear to their Lordships, his Intent was not to assume any greater Authority, than became him to desire; but meerlyto prevent Clamors and unjust Complaints, and that they might be redressed nearer home without. Complaint, and no way to hinder any Man's just Complaint.
And so it had no relation nor aspect to himself, but meerlyto the furthering of the King's Justice. And so that Proposition could not (he conceived) be turn'd upon him, otherwise then as Just and Honourable. For the Proclamation it self, and the staying of Men from coming without Licence (the Thing complained of) he begged leave to acquaint their Lordships with some Particulars.
He conceived, by the Laws of Ireland, no Man that is a Subject and Liege Man there, can come from thence without Licence from the Deputy, but it is very Penal, and to that Purpose he would mention two or three Statutes of that Kingdom; One is the 26 H. 6. ca. 2. The Title whereof is, An Act that the Kings Subjects,. or Officers in Ireland, may be absent by the Command of the King or Governor, or Council, without Censure of,&c.
The Words of the Statute in Substance.
Also it is Decreed and Agreed, That none of the King's Liege Men (who comprehend all, as he conceives) or Officers of the Land, go out of the Land, but by Commission from the King or His Heirs, Lieutenants-Justices, &c. All the Rents, Benefits, Offices, or other Possessions by their said Absence, shall be seized into the King's Hands, &c.
Whence my Lord of Strafford inferred, That if they go without the Governor's Licence, there is a Forfeiture of all these.
Another is 25 H. 6. cap. 9. It is Ordained, &c.
That if any Liege Man be out of the Kingdom, by the Commandment of the King or His Heirs, or the Lieutenant there, Deputy-Justices, or Council; their Rents, &c. shall not be seized, &c. Whence his Lordship inferred, That if they go without Licence, they are punishable for it.
The next is a certain Article, preferred by certain Irish Agents then in England in May, 1638, or thereabouts, long before he was thought on for a Deputy in Ireland, either by himself or any Body else; and this is from their own Desire and Petition.
Being Attested by Mr. Ralton to be a true Copy, one Article was read, being in Substance as followeth.
To the King's most Excellent Majesty, the humble Petition of your Majesty's faithful Subjects, appointed Agents to prefer certain humble Requests. &c. to your Highness, in Behalf of your Kingdom of Ireland.
After the Preamble, amongst other Things, it contained,
That His Majesty would be pleased, that in respect of the Non-residence of many great Men, who spending their Estates Abroad, the Kingdom was impoverished, and great Sums of Money transported; Order might be taken, that both they, and all Undertakers, on whom Estates have been bestowed, for the better Supporting and Improving of the Kingdom, may make their Personal Residence, at least half the Year, and not to depart without Licence.
His Majesty's Answer was given in these Words.
All the Nobility, Undertakers, and others, who hold Estates and Offices within that Kingdom, are to make their Personal Residence there, and not to leave it without Licence, such Persons excepted only, as are employed in Our Service in England, or attend here by Our special Command.
Next my Lord of Stafford desired, he might read the Lord Faulkland's Instructions, which, as he conceived, were pursuing to this, and they were, as he takes it, 24 May, 1628. which being attested by Mr. Brooks to be examined by the Original, was read.
Instructions to be observed by, or, &c. Henry Viscount Faulkland or Council there, & c.
All the Nobility, Undertakers, and others, who hold Estates, or Offices in that Kingdom, are to make their Personal Residence there, and not to leave it without Licence; such Persons only excepted, as are employed in Our Service in England, or attend here by Our special Command.
Next his Lordship offered His Majesty's Letter of 30th of January 1635. Commanding the Publishing of this Proclamation, which Mr. Ralton affirming to be a true Copy, was read.
To the Lord Deputy of Ireland.
Whereas amongst other Things in the Graces vouchsafed to Our Subjects, 1628. We signified Our Pleasure, That the Nobility, Undertakers, and others, holding Estates in Ireland, should be resident there, and not to depart without Licence: And being now given to understand, That notwithstanding these Directions, divers Persons (not of the meaner Sort) take Liberty to pass into this Kingdom, or foreign Parts, as if they understood not what they owed to Us in their Duty, or themselves in their evil Carriage, which Presumption we may not long suffer, &c. We do therefore hereby Will and Require you, by Act of State, or Proclamation. to make known Our Pleasure, That all Nobility, Undertakers, and others, that hold Estates and Offices, (such Persons only excepted, as be employed here, &c.) do hereafter make their Personal Residence, and not depart for England, or other Place, without Privity of our Deputy, any former Letter to the contrary notwithstanding.
And because We resolve to have this Course constantly observed (if you shall have Notice of any Contemner of this Command) Our Will and Pleasure is, That you proceed against them in an exemplary Way, to deter others: And for so doing, this shall be your Warrant.
E. of Strafford.
My Lord of Strafford observed, That he might well have hoped, that this being required by the Laws of the Land, That no Man should depart without Licence, but it should be penal to him, having their own Articles, which desire the same Thing; That by this Proclamation the Power of my Lord of Faulkland was established upon him; and the King's Command for issuing this Proclamation, being justified by the King's own Letter, so that this should not have been laid to him, for so great and high a Crime as it hath been represented to your Lordships; and he trusted that by that Time, their Lordships thought it not so great a Crime, as it might at first seem to be.
That he was not very hasty in issuing the Proclamation, (he having no Interest in it, nor nothing to drive him forwards) for tho' His Majesty's Command was, bearing Date 20 June 1634, yet the Proclamation issued not till Sept. 1635. And because all he had said, had been turned on him as a Crime, his Lordship gave this further Answer,
That there could be no Proclamation made by the Deputy alone, (he being absolutely restrained by his Commission, not to make a Proclamation without the Council) therefore he could not be singular in the Fault, but had the Consent of all the King's Council; and for Instance, in Matter of Law, the Chief Justices are sitting at the Board, to whom all Matters of Law are referred, and they are answerable for it; and are so learned, that they could not do Things so frequently, without good Authority; and this he offered in Excuse of this, and all other Proclamations, not doubting but it was according to the Laws and Customs of the Land.
And for further Satisfaction, that Part of his Commission that concerned the Proclamation was read, and in this particular he desired leave to offer something more with all Humility, That tho' none of these were for his Justification, yet for Reasons of State, this Restraint was most necessary; for whosoever goes over Deputy, while these two great Men (to term them no worse) O Neal and Tir-Connel, have Regiments of the most ancient Irish Septs, serving the King of Spain, under their Command, it is necessary for them to have an Eye upon them; for if every one might withdraw himself at Pleasure, without giving an Account, it would open all the Power and Means that possibly can be, to distemper that State; and certainly if that Liberty might be granted, he feared it would produce sad Events in that Kingdom.
Moreover, if all the Primogeniture and Nobility of that Religion, should be suffered to go over to Doway, St. Omer, and the Jesuits Colleges, it was to be feared, they should not be so well brought up for the Service of the King and Common-wealth, as may be desired; and therefore it was necessary, according to the Constitutions of that Kingdom, that they shall give an Account to the Chief Governor: And it was no other than what is practised here in England; no Man being at Liberty to go hence into France without Licence. And certainly, said he, it is an Account we owe to the King, and stands with the Law of Nature. Pater Familia may take Account of his own Houshold, and the King being the great Father of the Common-wealth, we owe this Account to him: Therefore he conceived it can be no great Offence in him, to do this on these Grounds; and as he recommended the Prosperity of that Kingdom, and His Majesty's Affairs there and here, to God, by his Prayers and good Desires; so he wishes it might be taken into good Consideration, that this may be continued as a principal and necessary Expedient, to give His Majesty that Account, without which, the Governor shall not be able to take just Measures of Things there. His Lordship then observed, That something had been observed, that was no Part of his Charge, and therefore presumed their Lordships would not expect an Answer to it, or conclude him any Way in their Judgment guilty of it, since the Means of giving that Satisfaction, which otherwise he should have done, are now taken away.
But when they came to be complained of in their proper Place, he is ready to give such an Account, as becomes a Just and Innocent Man. But that which seemed to be the foulest of them, was that concerning my Lord of Esmond, of which he remembred very little; but something darkly, and if it appeared not as he should say, he was extreamly mistaken; for what he did not know or remember, he would not speak of it confidently, and in short, the Point is this.
Two Men Swear, That he (the Lord of Strafford) deny'd Liberty to my Lord of Esmond to come for England, Aug. 1638. and that he was kept in Ireland, and could not have Licence to come away till April 1639. His Lordship confessed it to be very true, and that he remembred my Lord of Esmond desiring to go over, was stopped by him a While (he being Serjeant Major-General of the Army) the Army having Occasion of Motion, and that he was sure it was much about the Time, if his Memory failed him not extreamly, (but when it came to this Time, and he had Means to produce Witnesses, he hoped to make this appear) besides, he was mistaken, if he did not very shortly after give him a Licence, and that he found not Occasion to make Use of it, and if that was so, all they said was taken away, for he afterwards finding it to draw towards Winter, laid aside the Licence till the Spring; at Spring he asked it, and had it; but in these Things not judicially brought against him, and to which he could not make certain Answers, he hoped he might stand clear, and unprejudiced, till he may answer positively for himself; and then, as their Lordships should find him, they might judge of him, and he should ever most willingly submit to their Judgments, and abide it whatever it was: And whereas the Witnesses said, My Lord, of Esmond was hindred, because he had no Commission to examine Witnesses, my Lord of Strafford said, He was able to prove, that a Bond was granted him to examine Witnesses.
And the Witness being accidentally there, his Lordship took notice of God's Providence from that, and said, God Almighty was willing to help and assist him wonderfully in his Trial, and that his Goodness to him in this Cause had been a great deal more than he would trouble their Lordships withal at that Time; but he said, he was confident, God had him in his Protection, and would never forsake him; and whatsoever he should lose in this World He would make it up to him in another World.
And for this Purpose Mr. Riley was produced, who being questioned Whether he was imployed in Suing out a Commission for Examining of Witnesses in Ireland, in a Cause concerning my Lord of Esmond, and Sir Pierce Crosby?
Mr. Kiley, Witness.
Mr. Riley Answered, That he was imployed as Clerk in the Cause, where Mr. Attorney was Plaintiff, by Relation of my Lord Lieutenant against my Lord of Esmond and Sir Pierce Crosby, and when that Cause came to Commission, they for the Defendant brought Commissioners Names, and did joyn in that Bond, but he cannot remember the Time.
Being asked (on Mr. Maynard's Motion) Whether Sir Pierce Crosby, or my Lord Esmond sued it out? He Answered, He could not directly say; but the Clerk of the Defendants could.
Mr. Ralton being asked to the same Point.
He Answered, That he remembers,.that about this Time, 1638, or 1639, Commissions was sued' out in the Business, between my Lord-Lieutenant and my Lord of Esmond, and Sir Pierce Crosby, and that he was very confident, that my Lord of Esmond had the Benefit of Examining Witnesses.
E. of Strafford.
My Lord of Strafford observed, That these Gentlemen stirred up those Things, to beget an ill Opinion of him; but in short answered, They were not in his Charge.
And further, That he conceived my Lord of Esmond was stayed on a Complaint of Sir Walsingham Coke's, concerning a Practice of his, to the endangering of Sir Walsingha's Life. And that he was stayed upon that Account, to be examined, and if he (the Lord of Strafford) was not mistaken, my Lord Esmond was, after Examination left at Liberty: But these Things, he said, were rather Aggravations of his Charge, than within the Charge, and therefore he humbly conceived, that in these Cases their Lordships would allow him Liberty, and hoped likewise the Gentlemen will likewise allow it, that so he might satisfy them, their Lordships, and all the World, that he hath carry'd himself justly and fairly in all these Particulars: Also assuring himself, that these Gentlemen were willing he should give the best Answer to all these Things he could; And so he would, and that with all Respect and Reverence to them in the World.
The next Case is my Lord Roche's, and his Lordship conceives, that my Lord Riche himself gives a fair Answer, for he was informed against him in the Star-Chamber, and my Lord of Strafford said indeed, He remembred there was such an Occasion for it, as he was willing to forget it, for that noble Gentleman's Cause, and that the Complaint was of so high a Nature against my Lord Roche, that he was not willing to press it, to his Prejudice, nor ever did, but where there was great Reason: And when he should come to Answer for it (for he imagines it is not expected he should Answer it finally now, being not within his Charge)' Heaven should justify him, and shew that he had Reason to stay him at that Time.
The next is Dermond Mac-Carty's: and the Cause of his Stay appears to be, That he would go Abroad for his Breeding. Now if he, and such others, should go to Doway and St. Omer, he thinks their Lordships and the House of Commons would have blamed him more for giving him and such Persons Leave, than faulted him for Restraining them: And, had he alledged, That he intended to go over to Complain of that Decree, he would not have hindred him; and, to that Purpose, he hath Witnesses, that he never stayed any Man, that pretended he would complain of him. The Decree was made by a Letter from His Majesty, on a notable Fraud of Mac-Carty (the Father) in the Case of Sir James Craig, and he that Swears in it is Sollicitor in the Cause, and so not altogether so competent a Witness.
But, these are all on the by, and come rather to prove an Intention, than that which is pressed on him, as a Thing to which he is properly and finally to Answer.
The next is concerning the Sentence of Mr. Parry, in which Business my Lord humhly offered, That no Testimony is yet produced, other, than the Testimony of the Party himself. Now, if the Judge may be Convinced, and Condemned by the single Testimony of the Party grieved, he knows no Man would willingly sit in Judgment on these Terms: And, out of this single Witness (being qualified with the Attribute of the Party grieved) Must he be Condemned, that was one of the Judges ?
But, as they have Proved nothing Judicially, that can weigh with their Lordships, it will be fit for him to justify himself for this Sentence, so far as comes to his Share, for all the whole Board consented to it: And therefore, he besought their Lordships, to give him the Honour, To offer the Sentence given against Mr. Parry, wherein their Lordships would see the Reason, That it was not for departing without Licence, but for great and soul Neglects and Contempts to the Board.
Mr. Gibson Attesting it to be a true Copy, the Decree of the Deputy and Council was Read, being in Substance;
Where as Henry Parry, one of them who attended the Lord Chancellor, as his Lordship's Register-Keeper, or Clerk for private Judicatures, and Keeper of the Books of these Private Proceedings, was Commanded to attend the Board to be Examined.: And whereas in Contempt thereof, he not only neglected to attend accordingly, but departed this Kingdom, which being represented to His Majesty, it pleased His Majesty to require his Return hither to attend this Board; To which End a Bond was taken for his Appearance here the next Council-Day, after the 12th of Aug. and whereas he was present himself at this Board the 9th of October, 1638, but offered no Petition; as if he disdained so far to humble himself to this Authority; whereupon it being made known to him, That it became him, in the Duty he owed to the Dignity of this Board, to come by Petition, as all other Men; but he forbearing to exhibit his Petition, till he was called by us the Deputy to do it; and then, when he exhibited it, he therein misrecited his Offence; alledging it to be for his repairing to England without Licence; whereas his Offence was, The Disobeying the Orders of this Board. Secondly, He laid a Tax on William Ralton Esquire; Alledging, That on Pretence of Direction from Secretary Cook, he took his Bond for Appearance here; whereas he knew it was not by any seigned Direction, but by Appointment of Secretary Cook, by His Majesty's Direction. Thirdly, Instead of humbling himself, he desired Cancelling of his Bond, and Dismission from Attendance; and the rather, because he conceived he had not in any Degree transgressed the Proclamation; cautiously alledging that to be his Offence, which was not laid to his Charge. And, for as much as his first Offence in Esloyning himself to shun the Guilt whereof he was Convinced; and after his bold and insolent Behaviour at this Board (in answering plainly, That he conceived the Command of the Lord Chancellor ought to free him from the Command of this Board) deserves such Proceedings against him, as may be both Punishment to him, and Example to others: It is therefore Ordered, That he stand Fined in 500l. Bound to his Good Behaviour; stand committed to the Castle during the Deputy's Pleasure; and make Acknowledgement of his Offence at this Board. And, the Form of his Submission is set down, I Acknowledge I Presented a Presumptuous and Untrue Petition, &c. Given 30 October, 1638.
The Names of those that subscribed it were also Read.
Whence my Lord of Strefford observed, That he was not Sentenced for going without Licence, but for other Causes; and desired my Lord Dillon, and Sir Adam Loftus (whose Hands are to the Decree) might be asked a Question or two. And first to the Business of my Lord of Esmond, which had been forgot before.
Robert Lord Dillon being asked, Whether he remembred any Charge laid against my Lord of Esmond, for a Practice against Sir Walsingham Coke? Whereupon being Examined; and, When it was ?
He Answered, That he remembred that it was about that Time, when a Letter was written from the Judges of Assize that went the Circuit of the County of Wexford; and they Reported, That they had taken Examinations: Whereupon it was mistrusted, or at least suggested, That my Lord of Esmond was to set some on to cut off Sir Walsingham Coke; and this being taken into Consideration, it was Resolved, That till the Judges had determined, Whether it was Treason, or not, he should be stayed for a Time; and, as he takes it, it was Resolved, he should be Advertised into England.
Being asked (on Mr. Maynard's Motion) What Time this was ?
He Answered, The Question was sudden to him; but it was much about the Time that my Lord of Esmond had been in Town before; but, he cannot expressly speak to the Time.
But, my Lord of Strafford observed, That the Complaint came from the Judges of Assize, when they came from the Circuit, and that was always about August.
Lord Dillon being asked, What Year it was?
He Answered, He cannot tell the Year of the Lord in Terms; but, he remembers, it was much about that Time when my Lord of Esmond was Questioned, and about the Summer-Circuit.
My Lord of Strafford proposing, That my Lord Dillon might be asked, What he remembred of the Sentence against Parry? and, What his Behaviour was?
To this Mr. Maynard excepted, as not proper to examine the Judge, Whether his Sentence was just or no?
To which my Lord of Strafford Answered, That it is as equal the Judge, that gives Sentence should be Examined, as the Party against whom the Sentence is given. That this is a Sentence for Things spoken and done at the Board, which stands not on such Niceties; but Contempts and Misdemeanors to a Court are frequently determined, without Examination of Witnesses; and, this is a Misdemeanor done in the Place.
But, my Lord Dillon being spared from Answering,
Sir Adam Loftus was Examined, What he knew of that Practice of my Lord of Esmond, against Sir Walsingham Coke's Life? And when?
He Answered, That the first time he heard of it, was, upon an Information of the Judges of the Circuit to my Lord-Deputy, then in Ireland, as he takes it; and, he thinks, my Lord was not then in Town, but sent that Information to the Council at Dublin, his Lordship being then at his Country-House; and therein, some Practice against Sir Walsingham Coke, of certain Rebels and Outlaws, that had laid in Ambush near his House, was set forth; and thereupon that Letter was sent to the Council to Consider of it, and take Course for his Security: That this was not all neither; for, the Examination of a Rebel in the Castle, brought it home nearest to my Lord of Esmond's Case. But, because the Rebel was a Man of that Condition, it was not thought his Testimony could be prevalent against my Lord of Esmond; therefore the other Witnesses were sent for to be Examined in the Cause. Now, this Course of Examination held a Matter of three Weeks or a Month, or thereabouts (he doth not well know the time) but, these Men not concurring with the Testimony of the Rebel, in Restraint, there was no Words made of it; but my Lord of Esmond was dismissed, and left to take his own Course. The Time was, as he takes it, in the Summer Assizes, 1637, or 1638, he knows not which: And this is the Truth, and all he knows of the Business.
E. of Strafford.
Whence my Lord of strefford, inferred, That being under that Charge of Serjeant-Major-General of the Army, he deny'd him Liberty to go into England; but, as soon as he was clear, he had his Licence.
Mr. Maynard desiring their Lordships to observe, That my Lord of Strafford explained himself thus; That he thought so, or very shortly after: And added, That the Gentleman is very quick with him, being a Man of great Understanding, and himself a weak Man. But that he means very justly, and would not be taken in an Untruth; and said That he hath a Servant that was with him, when my Lord of Esmond's Agent came to him, at his House in the Country; And desired, he might be asked, What Answer he gave him?
Francis Wetheringe being asked, What he knew concerning my Lord of Strafford's giving of Licence to my Lord of Esmond?
He Answered, That he remembers very well that the Gentlemen were Examined, before they came to Fairework-Park; while he was waiting on his Lordship at that Time, the Gentleman came to him, and desired him to tell my Lord he would speak with him: That he heard my Lord say, It was concerning his Licence, to repair to England; and, my Lord said, He should have it; but, it was Winter-time, and he would let it alone till the Spring.
Being asked, What Month it was?
He Answered, He could not very well remember, but it was the latter End of Summer, as he thought.
Mr. Ralton being asked, Whether the Business of my Lord of Esmond, and Sir Walsingham Coke, were not Advertized over hither?
He Answered, That he doth very well remember the Business (he being then Agent for my Lord-Lieutenant.) That in one of his Letters, or the Council's, Advertisement was given of this Practise against Sir Walsingham Coke; and, as he takes it, was in Sept. 1638, or thereabouts; and that my Lord was pleased to do him (the said Mr. Ralton) the Favour, to give him some Passages of it.
E. of Strafford.
Therefore my Lord of Strafford desired, these Things might not stick with their Lordships, or the House of Commons, to his Prejudice; when he had not Means, nor Possibility to make his Defence: but that in Charity they would reserve their Opinions till they found the Truth to the Bottom; and then he hoped he should appear an honest Man, and that was all he pretended to.
For the Remonstrance of the House of Commons in Ireland, it is no Evidendence. but a Charge to call him to Account rather, than to Condemn him, or Judge him by: For, it is the Remonstrance of the Commons House, that have not Power to give an Oath, and so may be easily misinformed. when they want a Means to try out the Truth.
But, for the Great Fees exacted for these Licences; Here are two of his Secretaries imployed in this Business; whom my Lord desired might be Examined, What Fees they demanded, and had in this Particular? He added, That he durst say, Thousands that went over without Licence, were never question'd for it: Nor any, but where there was Cause; as, in Case a Man was ill-affected, then he was looked after.
Mr. Slingsby being asked about the Fees for Licences?
He Answered, They did give the Clerks Direction, never to demand any Fees for Licences; and, that the Clerk never accompted to him for above Five Shillings for any Licence; which, he said, was voluntarily given, not demanded.
Mr. Little being asked to the Matter of Fees?
He Answered, That he charged his Servant still to demand no Fees for Licences, except of Privy-Counsellors, or Officers of the Army; and, when they had Licences, they paid for them; and, the Fee of the Licence from the Captains was Twenty Shillings; the ordinary Fee for others Five Shillings; and, many times none at all was paid.
E. of Strafford.
And then my Lord of Strafford added, That he had now gone over all the particular Proofs, as near as he could remember them: And, the last he shall insist on, is this; That there is nothing in this Charge, as he conceives, of Treason; and he must needs conclude every Article so, in regard Treason is the only Thing he is Charged withal: And, he conceives he hath given such Answers to this, that nothing shall convince him before their Lordships of Treason. And, for Matter of Misdemeanors, he knows their Lordships will give him Time to examine Witnesses, and Leave for his Counsel to be heard, and then he shall acquit himself as becomes him; and so with all Humility, submit it to their Lordships.
And thus his Lordship concluded his Defence.
Article XVI. Replication.
Mr. Palmer Replied in Substance as followeth.
Mr. Palmers Reply.
That my Lord of Strafford, in the Preamble of his Defence, hath made a great Profession to their Lordships of his Endeavour to preserve the Laws in Ireland; and, that no Deputy did ever less interrupt the Legal Proceedings: Which, though it be not the Matter of the Cause, he desired leave to put their Lordships in mind, how much he hath interrupted the legal Proceedings, because it hath been another part of his Army.
That it hath been fully proved, How he assumed to himself, out of the ordinary Jurisdiction, Causes to be heard before himself, on Paper Petitions, which, how grossly he hath determined, their Lordships have heard: And, whether this be not an Interruption to legal Proceedings, he submitted to their Lordships, and also left them to judge how contrary it was to this Profession of my Lord of Strafford.
To the Matter of the Defence, viz. That these Particulars were not complained of; Mr. Palmer Answered, It is true, There is no particular Complaint in the Article: But my Lord of Strafford in his Answer, said, He never deny'd Licences to any Man to go into England, and that puts it in Issue, and gives Occasion to prove his Denial.
To the Reasons of his Propositions, Mr. Palmer observed, they were, viz. Because he was responsible for the Justice of the Place; and therefore good Reason his Integrity should be tried before any Complaints came: The Officers and Ministers of Justice should not be drawn from thence on every Complaint, where they might have Redress at their own Doors. These are fair Shows, and something must be said to induce His Majesty's Allowance; and, as much Art and Skill could invent to prevent the Subjects Access to their Sovereign with Complaints of Injustice and Oppression; It must have a great deal of Wit and Art to colour it, and so he uses it: Their Lordships cannot expect it from him, nor will their Lordships expect it in the Proofs, that he should tell His Majesty he doth all this, that they may not complain of Injustice and Oppression, for this is a hard Thing to be done; But, the Thing it self shows for what End he obtained it, his many Acts of Injustice prove, Quo obtentu, this Proposition was gotten; If this had been gotten on the fair Grounds pretended, then, upon the Complaints here, His Majesty, in Consideration of them, had had it in his own Power to have referred them back to Ireland, if they were misinformed; but, Means were used that they should not come to the King, the Bar was laid with the Secretaries, and Masters of Requests, that His Majesty should by no Means know, as to consider of the Fitness, or Unfitness of them.
For the Matter of the Judges and Ministers being withdrawn; it is true, they were most likely to be complained of, but, when they cannot be complained of but to my Lord of Strafford; this draws a great Dependence on him, and makes them ameneable to his Will. As, in the Sentences wherein they concurred, and whereby he would justify himself.
Again, The discouraging of Complaints in this Proposition, and the Arguments used to His Majesty, provided a Punishment for Clamorous Complaints; so that they which had Cause of Complaint, being terrified with a Punishment (though they were not Clamorous) might now be made appear to be so.
For the Authorities whereby he justifies this Proclamation. First, He insists on the Laws of that Kingdom, That by the Law they could not depart the Realm, and that by an Implication 25 H. 6. But, Mr. Palmer observed, That that is no Prohibition of coming out of Ireland; but, if any Liege Man, &c. shall by the King's Command, depart the Realm, his Lands should not be seized; and the only Inference can be, That if others went without Licence, their Lands might be seized, but not that their Persons might be restrained from coming without Licence.
There were such Provisions and Ordinances in Ireland, to which the Instructions following, and His Majesty's Letter had Reference; That those Persons that had great Possessions in Ireland, in Time of Discord, were to be resident upon their Land Personally, so that their Land might be maintained against Incursions. And, this is plain, by a Statute 28 H. 8. cap. 3 reciting the Inconvenience from those they call Absentees; that is, That having large Possessions by Descent, or Grant, did Demurre in England, and left those Possessions unsafeguarded; and, by this Means, the Lands (which His Majesty had been at great Cost in Conquering) were regained by the Irish, and therefore there was a Penalty on those Lands; and, it is provided, that the King shall be Intitled to the Duke of Norfolk's Land for that Cause: But, here is only a Provision that the Lands should be safeguarded; but not that the Subject should not resort to the King's Majesty for redress of Grievances and Oppressions, and that is in the Charge against my Lord of Strafford.
For the Instructions of May, 1628, on a Petition by the Inhabitants; the Petition was, That they might make Personal Residence at least half a Year; but that related to Undertakers, and others that have Lands and Offices there, and so was for the same Purpose that the Lands should be safeguarded: But certainly, there is great Difference between Residence, and Restraining a Resort hither to make Complaint to His Majesty: It is true, there should be a Residence, they were not to depart without Licence; but if they had Temporary Occasions, or Reasons of Complaint, it is not against the Instructions that Licences should be deny'd.
My Lord insists on this, That it is the Law of the Land, and agreeable to the Laws of this Land, and he would willingly bring the Laws of this Land into Ireland. But, under Favour, the Laws of this Land are not so; It is no Offence, or Contempt, for any Subject, to depart this Land without Licence: Our Books are so. The Statute 5 R. 2. did provide, That none should depart without Licence (a general Prohibition) except they were Lords and good Merchants: Therefore, by the Law, (before that Statute was) any Man might depart without Licence; and, that Statute is since Repealed, by a Statute made 4 Jac. So that by the Common Law of England the Passage is open again; and, it is no Offence at all to depart without Licence. It is true, His Majesty may restrain by a Ne exeat Regno, &c. or by a Proclamation on special Causes, but till then, the Passage is open, and they may depart by the Law of the Land, and the Penalty is only in the Case of the Absentees.
My Lord alledges the King's Letter; There is as much Skill as can be for a Defence, The Proclamation reciting these Letters, and the Instructions. But, the Grounds are false: For, that which is appliable to a Residence for Defence, my Lord makes a Ground to restrain all kind of Resort.
My Lord takes notice of his Moderation, in executing the King's Letter, in respect of the Distance of Time between the Letter, January 1634, and the Proclamation, Sept. 1635. If it had been a Service to His Majesty, it should have been speeded sooner; It was a Disservice in being so long delayed, if the Matter required it; but, there was something else; It was not fit for my Lord's Opportunity till then; and, when it was fit, he published it, and not before.
My Lord deserting his Justification by the Proclamation, as a Temporary Law (as he may, for Proclamations be not Temporary Laws, in Case they be against Law, but Publication of Laws.) Now, he insists on this, That by his Commission he himself hath not Power to publish Proclamations, but by Advice of others; so the Power is not in himself alone, for he had the Concurrence of other Counsellors joyned with him.
Mr. Palmer desired their Lordships to observe his own Answer; and, the Reason, why that unreasonable Allowance was got, which is, That he is Responsible for the Justice of that Place; and, if he be so, he takes but their Concurring with him; in a Thing so much against Law, it may make it an Offence in them, it cannot extenuate his Offence.
He insists on a Necessity of this, That it is sit for that Kingdom, and wishes it might be so continued; and that in several Respects; in Respect of O Neale and Tirconnel, and the Rebels that adhere to them; and that it might be dangerous, if those in Ireland should go out at their Pleasure. Indeed, if their Resort were thither, it were true: But, the Commons having offered nothing, but their Request to come into England, where there is no O Neale, nor Tirconnel, to Complain to the King of Oppressions: And, however my Lord of Strafford doth conceive it fit in Ireland, their Lordships, hear by the Remonstrance, what just Fears they apprehended: It is an Innovation brought on them, which was never on their Ancestors from the Time of Henry II.
The next Thing was his Demeanor in the Execution of this Proclamation; Then he made that general Protestation, That these Particulars were not Complained of. To which, Mr. Palmer said, He must Answer as before. My Lord hath put it in Issue, That he never did deny Licence, which casts the Commons on Proof, That that in particular hath been deny'd.
The Case of my Lord of Esmond is observed to be in Time, 1638. And whereas it is said, A Licence was deny'd, because there was some Charge against him, of practising against Sir Walsingham Coke. This needs no other Answer, but what Sir Adam Loftus has given, That the Business was continued in Examination no longer than three Weeks, or thereabouts, and was then dismiss'd: Whereas the Denial continued longer. But, if it be truly informed, This Demand of Licence to come over was in August; the Information came not till September after: So that the Information cannot be applied to avoid the Denial of the Licence.
Torky being asked, The Time of Year the Summer Assizes used to be in Ireland?
He Answered, That be hath observed them, since his Knowledge of that Kingdom, to be in September for the County of Wexford.
Whence Mr. Palmer inferred, That if the Petition were in August, the Assizes in September, this could be no Reason, why in August an Information in September should be the Cause of denying the Licence.
My Lord says afterwards, He did give him a Licence; but your Lordships may remember, it was not till the Opportunity was pass'd of Examining Witnesses. And, whereas it hath been said, in Answer, That my Lord of Esmond did joyn, and Riley was produced; yet Riley says, There were two Defendants, Sir Pierce Crosby, and my Lord Esmond; and, for whom the Commission was, he cannot tell: And, if there were a Commission, it is very ordinary to have more than one; and, if it be desired, a second is just as the first. Mr. Ralton says, He is confident there was a Commission. If there was so, Why is not that Record produced?
The next Particular was my Lord Roche, and the Answer to that is, That there was an Information against him in the Star-Chamber. It is true; but that had ceased half a Year before he desired a Licence, and therefore could not be a Cause to hinder a Licence.
For Dermond Mac-Carty it is said, His Petition was for Liberty to go over for Breeding, and therefore he might go to Doway or St. Omer, &c. But their Lordships might observe this Petition was to come into England, and the Occasion was his Relation to that Suit, and that is conceived the Cause of Denying that Licence; for my Lord could not but know that Mac-Carty had Relation to the Suit before him, which was decreed after a double Dismission, and it is no Exception that the Witness is his Sollicitor in the Cause: It is ordinary that the Sollicitor be admitted a Witness, and the best Witness in Courts of Justice.
And to Answer that fully and clearly, it shall appear, That this very Thing is assigned by Secretary Little, to be the Reason why he should not go over, That he might not complain of his Suit; and a Witness did depose to that Effect.
John Meangh being Sworn, and Interrogated to the Cause of Denying the said Licence.
He Answers, That he went to Dublin with Mac-Carty, the Son, with the Petition, and that Secretary Little took the Petition in his Hand, and said, Are not you Mac-Carty's Son? Yes, said he. And you intend to go and complain against the Order my Lord conceived against your Father. No indeed, says he, I do not; Says the Secretary, I will take your Petition, and deliver it to my Lord, and I believe my Lord will not grant your Request, and they left the Petition, and went out. A little after, a Kinsman of his, the Deputy's Master, Sir Valentine Brown, said to him, the Son, I have heard my Lord hath granted your Request in your Petition; so they came to the Place to receive the Petition; and this is the Petition shewed their Lordships; when his Kinsman, the Deputy's Master, saw the Petition, he would not take it. Take notice, Gentlemen, faith Mr. Little, what Charge he hath, and if he doth any Thing to the contrary, let it be on his Peril. So they took the Petition, and went away.
E. of Strafford.
Against Parry's Testimony; First, my Lord says, He is a single Witness; but if that be not admitted, there is no need of his Testimony; for Secretary Cook's Warrant proves what was the Reason, and their Lordships may know whence that came. His Sentence is thus far in question here, Whether he was sentenced for coming over, or otherwise ? It is true (and that is the Iniquity of it) the Sentence doth express it for another Cause: It is not usual in Sentences, to say what it is not for, but what it is for; but it is for his not Petitioning the Council-Table, and setting forth, after in his Petition, That his Offence was, his coming over without Licence; and saying, Mr. Ralton pretended Secretary Cook's Directions; whereas he must so speak Truth, as not to be charged with a Pretence. And it were more just to sentence him for coming without Licence; than for his being not called, nor any Way able to Answer the Defence. That others are joyned with him in the Sentence, it doth not excuse his Lordship, They shew the more Dependency upon him, and by this Means no Complaints of Injustice or Oppression can be brought to any but himself, and that brings them under his Wing, However, the Fault is in them, as well as in him.
E. of Strafford.
The Remonstrance, he says is only a Charge; but it is the Declaration and Voice of all the People, of susficient Credit, to represent their Grievances, what they conceive to be their true Liberty, and how they have used it ever since the Time of H. 2. which is, That they should have Redress for Grievances, which is no other than the Common Law; That the Subjects should have free Access to the Sovereign.
His last is, That there is nothing of Treason in this: And to this the same Answer is given, as to all the rest, which are not individual Treasons. The Multiplication of Acts, all containing something in them of an Arbitrary Power, conclude, as Effects from the Cause, from whence this proceeds.
And this Thing is not so petty as my Lord makes it, to deny the Access of the Subject to their Sovereign; and tho' it be allowed by His Majesty's Letter and Instructions; yet these being obtained by himself, make it worse, he taking so Sovereign a Power, that Non sentit parem, nec superiorem.
Mr. palmer instanced in that great Case of the Marquis of Dublin, that had the Dominion of Ireland granted him, he had Merum maximum Imperiorem, under the Broad-Seal, and his Patent passed in Parliament; yet it was one of the Articles charged on him, for it tended to the Severance of the Allegiance of the People from their King.
In the next Article their Lordships shall hear his Demeanor to those of the Scotch Nation.
Mr. Maynard desired to add a Word to what had been said; First, My Lord says, That the particulars are not in the Charge; but that is a Mistake, for this Case of Parry is particularly charged, and divers others; it is true, the rest are general, but this is particular, so the Charge is good in that.
And, whereas my Lord had endeavoured to justify this by Law. Mr. Maynard observed, That they do not lay the Point upon that, how far the Subject may be restrained in that Particular, But here is the Sting of my Lord of Strafford's Proceedings, He takes this (be it lawful or unlawful) to prevent the Complaints which might be brought to His Majesty against his Injustice, for he hath done all that to this People: Now an ill Intent may make that ill which in it self otherwise will not be ill; and he besought their Lordship to take this into Consideration, What a miserable Condition the Subjects of Ireland are in, when there are never so great Grievances laid on them, yet they cannot complain, and no Complaint can be received, unless he that oppresses them, gives them leave so to do; and when their Oppressions rise so high, when shall he give them leave?
My Lord of Strafford says, Thousands have come, yea many he is sure, that have not been punished nor questioned. Whence Mr. Maynard observed, That it is ill-Luck that the Oppressed are always punished, others may go without Punishment; but it falls out unhappily, That they that have Complaints against him, are the Men that are restrained, and it may be thought that they will bear a Complaint sometimes, that they may seek a better Opportunity; when they shall see such Examples, that is, one Fined for exhibiting a Petition, and saying, That is untrue; when against another, an Information that hath laid dead half a Year, shall be quickned upon that Occasion, and they must be punished more, that are more oppressed, as in the Case of my Lord of Esmond.
And whereas my Lord of Strafford says, He never punished any, where there was Complaint before. Mr. Maynard besought their Lordships to observe, That it is point-blank contrary to the Evidence, and Oath before their Lordships; for in that particular Case of Mac-Carty, there were two Dismissions: It is true, the Merits of the Cause are not proper to be offered, but there is Cause to take Confidence, that whereas it is called a Fraud on Mac-Carty's Part, when it is examined, it will be a very heavy Oppression.
And whereas it hath been said by way of Justification, (Mitigation at least) That there hath been no Fees taken for Licences, but such as Were given voluntarily, except in Case of Officers of the State, or the Army; Proof was offered, That Mr. b Little that takes on him to Swear for himself and his Fellows, tho' he did not know whether it were or no, hath deny'd Licence without Fees; and that Certain Fees were demanded, shall be made appear.
Richard Wade Witness.
Whereupon Richard Wade being Interrogated, Whether Fees were not demanded by the Secretaries for Licences of Mens Passage into England, and what Fees?
He Answered, That for Fees for my Lord of Esmond's Licence, he was demanded 24 or 25 s.
Patrick Gough being asked to that Point.
Patrick Gough Witness.
He Answered, That he remembers he hath taken Licences twice or thrice for my Lord Viscount Mountgomery, and for every one of them paid 25 s. and for three of his Servants 25 s. and that those were demanded, for he (the Deponent) would have given less if they would have taken less, and that these were demanded by Secretary Little's Servants.
Mr. Glyn desired one Word more, and the rather, said he, because it seems my Lord of Strafford slights this Article, which is the most proved, and the least answered of any yet heard, their Lordships may observe what is laid to his Charge, The subverting of Laws, and the introducing of a Tyrannical Government. And before he goes about his Work, he puts off all Means of Redress beforehand; that if he give any Occasion of Offence, he that is offended, shall not possibly have Remedy. His Justification is, Because of that great Danger that may ensue for they may joyn with Rebels, but that's a Pretence: Indeed he used that Argument when he moved it to His Majesty; but it was, that they might not come over to make Complaints.
That his Propositions were made and entred at the Council-Table, here he aggravates his Offence, and Mr. Glyn did thus illustrate it; That if a Man come to him, and desire leave to lie in his House, if he gives the Party leave, and he by that Means takes Occasion to betray him, or to commit Felony, or steal his Goods; that Leave was well given, but it aggravates the other's Offence, when he doth Mischief to him that lodged him.
So my Lord of Strafford's Proposition was fair, but if their Lordships observe the Subsequence of it, That he might exercise his Power, and leave the Subject without Means of Redress, but they must come to himself for it. Mr. Glyn further said, He thinks, had he suffered under his Hands, after the Example of my Lord Mountnorris, he should be loth to say to his Face, he would complain.
An Act of Parliament he produces for his Justification, which is plainly against him; for it shews, there were some that held Lands there by Tenure, and if they were not resident they forfeited: Then comes the Act and says, That those whom the King commands to be absent, shall not forfeit; which shows that they had a Personal Power without Licence: So that the very Law produced, is expressly against him, and their Lordships may fee by his own Proposition, the Occasion of his introducing this Letter. And Mr. Glyn concluded, That he supposes that my Lord of Strafford hath made no Answer to that.
And so the 16th Article was finished, and the 17th and 18th being for the present set aside, the Committee that managed the Evidence, proceeded to the 19th Article.