Historical Collections of Private Passages of State: Volume 8, 1640-41. Originally published by D Browne, London, 1721.
This free content was digitised by double rekeying. All rights reserved.
A Summary of the Evidence of My Lord of Strafford.
This Day being appointed for the Summing up of the Evidence formerly given on both Sides, in the Cause concerning my Lord of Strafford; The Right Honourable the Lord Steward spake in substance as followeth.
My Lord of Strafford, I am Commanded by my Lords to let you know, that they do expert your Lordship will go on in the Order set, to sum up your Lordship's Evidence; and, those Gentlemen of the House of Commons will likewise sum up theirs, for the Close of Proofs in Matter of Fact; and, that your Lordship do it with all Clearness and Succinctness, avoiding any thing that may give Impediment to the Clear and Fair Proceeding of the Cause, which, for Matter of Fact, is come to a Period.
My Lord of Strafford humbly desired, that he might clearly understand what was expected in that Case, and then he would perfectly obey ray Lords in all things; adding, that he conceives their Lordships Intention is, that they shall go upon what hath been alledged before their Lordships, without any New Matter to be further alledged on either Side.
And, my Lord Strafford thereupon Answered, That he will offer no New Matter, unless it should arise, from the other Side; professing himself ready to be disposed of, in all Acts of Obedience to their Lordships. And then his Lordship proceeded to Recollect his Evidence, in substance as followeth.
May it please your Lordships, It falls to my turn, by your-Lordships Leave and Favour, to presume to put you in mind, and to represent to you, the Proofs, as they have been offered; which I shall do, to the best of my Memory, with a great deal of Clearness. I shall desire to represent them neither better nor worse than they are in themselves, and I wish the like Rule may be-observed on the other Side; For, in the proceeding of this Cause, I heard them alledge, that, as they conceived; divers Articles were fully Proved; Whence I conceive, there was nothing fully Proved.
My Lords, my Memory is weak, my Health hath been impaired, and I have not had such quiet Thoughts as I desired to have had, in a business of so great and weighty Importance to me: And therefore I shall most humbly beseech your Lordships, that by your Wisdom, your Justice and Goodness, I may be so much bound to you, as to have my Infirmities supplied by your better Abilities, better Judgments, and better Memories.
My Lords, The Charge I am to Answer, is a Charge of High-Treason; and, that which makes it the most grievous of all, it is an Impeachment of Treason from the Honourable House of Commons: Were not that in the Case, my Lords, it would not press so heavy and sore upon me, as now it doth, having the Authority and Power of their Names upon it; Otherwise, my Lords, the Innocency and the Clearness of my own Heart from so soul a Crime, is such, that I must with Modesty say, if I had no other Sin to answer for, it would be, easily borne.
My Lords, as I went along Article by Article; these Gentlemen were pleased to say, They were no Treasons in themselves, but Conducing to the Proof of Treason: and, most of the Articles being gone over, they come to the Point at last. And hence, my Lords, I have all along watched, to fee if that I could find that Poysoned Arrow, that should Invenome all the rest; that Deadly Cup of Wine, that should intoxicate a few alledged Inconveniences, and Misdemeanors, to run them up to High-Treason.
My Lords, I confess it seems very strange to me, that there being a special difference between Misdemeanors, and between Felonies and Treasons; How is it possible that ever Misdemeanors should make Felonies, or a hundred Felonies make a Treason? Or, that Misdemeanors should be made Accessaries to Treasons, where there is not a Principal in the Case? No Treason, I hope, shall be found in me, nor in any thing I hear to be charged, under favour, and not waved.
They say well, That if a Man be taken threatning of a Man to Kill him, Conspiring his Death, and with a Bloody Knife in his Hand, these be great Arguments to convince a Man of Murder. But then, under favour, the Man must be Kill'd; for, if the Man be not Kill'd, the Murder is nothing. So, all these Things that they would make conduce to Treason, unless something be Treasonable, under favour, they cannot be applied to Treason.
My Lords, I have learnt that in this Case, which I did not know before, that there be Treasons of two kinds; there be Statute-Treasons, there be Treasons at Common-Law, or Treasons Constructive and Arbitrary.
My Lords, These Constructive Treasons have been strangers in this Commonwealth a great while, and, I trust, shall be still, by your Lordships Wisdom and Justice: But as for Treasons in the Statute, I do, with all Gladness and Humility acknowledge your Lordships to be my Judges; and none but you, under favour, can be my Judges: His Majesty is above it, the King Condemns no Man; the great operation of His Sceptre is Mercy; His Justice is dispensed by his Ministry; so he is no Judge in the Case, (with Reverence be it spoken:) and likewise no Commoner can be Judge in the Case of Life and Death, under favour, in regard he is of another Body: So that, my Lords, I do acknowledge entirely, you are my Judges, and do, with all Chearfulness in the World, submit my self unto you; thinking that I have great cause to give God Thanks, that I have you for my Judges, and, God be praised it is so; and celebrated be the Wisdom of our Ancestors that have so ordained it.
The first Point they charge me withal of Treason, is upon the Fifteenth Article; Wherein, nevertheless, before I come to Answer the Particulars, I must humbly inform your Lordships, that, in that Article, two of the most material Charges are waved in the first part; that piece of the Charge that sounds so high, concerning a Miscarriage in me, in Levying Money upon the Towns of Baltemore, Bandenbridge, Talow, of that I hear nothing; and I shall mention it only thus far, humbly to remember your Lordships, that, in that Particular, I trust I have spoken nothing, that I should merit less belief of your Lordships: For my part, it is far from me, to put you upon any Prejudice, by any means whatsoever; I look only to the preserving of my self, if it may be without prejudice and hurt to any living Soul.
Then they likewise wave another piece of the Charge, and that is, that I should, by force of Arms, dispossess divers Persons in the Territory of Idengh; and well they may, for, in truth, there is nothing at all of it that I am to Answer, it being wholly done by the Order of Chancery, and I having no more to do with it, than any Man that hears it: the Matter that stays with me in this Article, is, the alledged Warrant to Mr. Savill Sergeant at Arms, and the execution of it, for that I shall humbly beseech your Lordships, I may mind you, with all humility, that that Warrant is not shewed; and, I do think, that my Lords the Judges do, in the Tryals before them, observe, that Deeds are to prove themselves in ordinary Tryals betwixt Men and Men; Now, how much more in a Tryal for Life, and, which is more than that, (though my Misfortune will have me to own it) in the Tryal of a Peer?
The Witnesses, my Lords, say, They have seen such a Warrant; But, no Witness says, he knows it, and will Swear it to be my Hand and Seal; or, that I set my Hand or Seal to it; for, it may be Counterfeited, for any thing they know.
For, Mr. Savill, upon Oath, I thought (under favour) he ought not I to be admitted against me; for, he swears directly, to justifie himself: for if there be no such Warrant, he is answerable for the Fact, not I. But, my Lords, admit there were such a Warrant, I humbly conceive, I gave your Lordships a very clear and full Answer to it; I shewed you (and proved it, as I conceive) that the Sessing of Soldiers, hath been a Coercive Means used in Ireland always, to enforce Obedience to the King's Authority; I proved it to have been used, to fetch in the King's Rents of all kinds, Contributions, Compositions, and Exchequer Rents; I proved it to have been used, to bring in Offenders and Rebels, and (as my Lord Ranelagh deposes) for any Unjustifiable Act. Sir Arthur Terringham, for a small Debt, which appears not to be the King's Debt; my Lords, nothing at all is proved against it, but negatively, the Witnesses say, they did not know such a thing, they had not heard the like; and, I think, none of your Lordships had, before this Cause; and yet that thing might be too.
And, my Lords, I beseech your Lordships, How should it be not Treason, to Assess Soldiers for the King's Debts, and yet the Assessing of Soldiers, on the Contempt of the King's Authority, should be Treason? for certainly, the King's Authority is of far more Dignity, and more Respect is to be had to it, than the getting of a few poor Debts; and, why it should be Treason in one Case, and not in another, methinks it is very strange.
My Lords, in the next place, I conceive, that not in any Construction, this can be said to be a Levying of War against the King and His People, being but the Employment of two or three Soldiers, to procure Obedience to His Majesty's Government; Because (as I conceive likewise) I had Commission to make War as I saw Cause, for Punishing the Rebels, and Securing the Publick Peace; and therefore, How can I be charged with that I have Power to do?
The worst that can be made of it, is, an absurd execution of a Power; but, to make it Treason, when I had Commission and Liberty so to do, methinks that is very hard: And, it was no absurd execution of a Power, under favour, neither, when I had the Precedent of all the former Deputies and Lieutenants in the Case.
My Lords, it was never complained of all the while I was there, for ought appears to your Lordships; so that, it, seems, there was no great Innovation, nor Inconvenience; for, if there were, I should have heard of it.
But, the Statute of 11 Edw. I. c. 7. sets a Penalty upon any Subject that shall Assess, without the Deputy's Authority. Now I do most humbly beseech your Lordships, that you would be pleased to remember that, and let me know how it should be but Penal in a Common Person to do it, and yet Treason in a Deputy?
My Lords, I shall likewise humbly mind your Lordships for the Statute, or rather two Statutes, as I take it, whereby I conceive this Statute that made a Treason in Ireland, was repealed; But, howsoever, the Practice in all Time hath gone quite contrary to that Statute, and the best Interpretation of Law, is the Practice of Law; and therefore the Practice having been otherwise, it is an Argument very strong and prevalent, that the Deputy, as Chief Governor, was never intended to be concluded within that Act, nor never to be brought in by General Words only.
And, that this should be a Levying of War against the King, within the Statute of 25 Edw. III. in England, surely I conceive it cannot be; for, the Burning of Towns, the Taking of Forts, Killing and Slaying, that I conceive to be a Levying of War; but, this is a strange Levying of War, with two or three Soldiers to rest in Peace and Quietness, eating on Contemners only, (and not Killing and Slaying,) and all to procure Obedience to the King, not in Disobedience to His Command. If to lie upon them and eat, be High-Treason, in this Case, What shall become of a great Company of Good-fellows, that at this time eat at the Charge of the Country?
No, my Lords; This, in the Case of a Private Man, had been but a Forceable Entry, or a Ryot at the most, if a Man had done the same thing Mr. Savil did of his own Authority, without the Deputy, it had been but a Force and Ryot; and, How shall this be, in my Case, High Treason?
The next Charge, in that Case, is, concerning a Warrant to one Piggot, another Sergeant at Armes, and the great and crying Miscarriages and Misimployments of such a War; if there, had been any, it was when I (as your Lordships may please to remember) was out of Ireland, and that was the Case of Bern, a very foul Misdemeanor, as it proved. But, my Lords, I being out of the Kingdom, and no such Warrant shewn, I conceive I am absolutely dismissed as unto that, and have nothing to Answer for it: there was nothing done while I was in the Kingdom: there is no Warrant of mine shewn: therefore, I conceive, I stand clear of that likewise.
But admit there were such a Warrant, the Answer goes to that as to the test; and certainly, I hope, will fully acquit me of this Fifteenth Article, as Treason; And so I must, in humility, submit to your Lordships wiser and better Judgments.
The next Statute-Treason, is an Intendment, or Design, or what you will have it, for bringing over the Irish Army into this Kingdom, to reduce it, or to do I know not what, nor, I think, no Body else, for there is no such thing.
But, my Lords, for Proof in this Case, you have two offered there, and no more, under favour, at all: the first Proof is, the Fears and Doubts of my Lord Ranalaugh, that tells you, he Fears such a thing, and Doubts such a My Lords, if Fears and Doubts may be sufficient to Condemn me for Treason, By my Faith, I fear, and doubt very much, these Fears and Doubts might Accuse me, and Condemn me of Treason more than once a Year; But, my Lords, his Fears and Doubts he may keep to himself, I hope they shall not be brought any way to the prejudice of me; I am, I thank God, both confident and knowing, there is no such thing.
The next, is the Testimony of Mr. Treasurer Vane; and the Words Mr. Treasurer doth Witness against me in that Particular, are, as I conceive, these; That I should say to His Majesty, in an Argument concerning an Offensive or Defensive War with Scotland; Your Majesty hath tried all Ways, and are refused, and, in this extreme Necessity, for the Safety of the Kingdom, and your People, you may employ the Irish Army to reduce this Kingdom.
My Lords, To this I say, that (under favour) Mr. Treasurer was in this (methoughts) a little Dubious; he was something Doubtful; for, at the first, he told your Lordships, he would deal plainly and clearly with you; that he knew before whom he spoke: and then, my Lords, it was but to the best of his Remembrance, that these, and these Words were spoken. At the last, my Lords, being put to it more, he was pleased to say, that these were positively the Words, or something to that Effect: So, my Lords, here is but a dubious and uncertain Witness, under favour, and these Professions of his speaking clearly and plainly, and of his Consideration before whom he was, (which are something unusual Clauses to Men, that come to Swear upon Oath) make me conceive him something Dubious in this Point.
Secondly, My Lords, he is a Single Witness, and not only so, but, under favour, disavowed by all the rest who were present at the Council; my Lord of Northumberland remembred no such thing; my Lord Marquis of Hamilton remembred no such thing; my Lord Treasurer remembred no such thing; my Lord Cottington is very well assured he said no such thing, for if he had, he should have taken offence at it himself, which he never did.
My Lords, in the Third place, He is pleased to mention, That it was in a Debate, Whether an Offensive or Defensive War ? and, that then I should say, The King had an Army in Ireland, &c. My Lords, It falls out in Time, to be, as I conceive, about the 5th of May last, not many Days sooner or later; the Army of Ireland was not raised 'till June following. So it seems, I should tell the King a great Untruth, That He had an Army in Ireland, which He might employ for His Service, before that Army was raised; for, it is a notorious thing, and any of that Country knows, that the Army was not raised 'till the 15th of June, as I remember.
Lastly, In further taking away of this Testimony, I have proved it, by a great many Witnesses, beyond all exception, that there was never any such Intendment of the bringing this Army into England; nay, that the Design was quite otherwise; and this hath been apparently cleared before your Lordships, by the Testimony of my Lord of Northumberland, Marquis of Hamilton, Sir Thomas Lucas, and Mr. Slingsby; And might have been further justified, by the Testimony of my Lord of Ormond President of Munster, and Sir John Burlace Master of the Ordnance in Ireland, if they had been here to have been produced: So that all these laid together; the strong and clear Proof on my part; the producing of a single Witness, which, by the Proviso of I Edw. VI. cannot rise in Judgment against any Man for High-Treason. I trust, all these laid together, I shall appear to your Lordships clear and free from these two Points, whereupon they enforce me to be within the compass of Treason, by the Statute alledged.
The Third Treason that is laid to my Charge, is upon the 27th Article, where Four Musketeers being sent to Egton, by Serjeant-Major Yaworth, war to call for their Eight Pence a Day, is prest upon me, as a Levying of War upon the King, and his People, and to be High Treason, upon the-Statute of 25 Edw. III.
These be wonderful Wars; if we have no greater Wars, than such as four Men are able to raise, by the Grace of God we shall not sleep very unquietly. But, How do they prove: this to be done by me? they produce to your Lordships the Warrant of Sir William Pennyman; but had no, Warrant at all of mine to shew.
Sir William Pennyman doth not alledge any Warrant of mine to that Purpose; he speaks; of a General Warrant, wherein I and the Deputy Lieutenants join, for the paying of the Fortnight's Pay, as they call it, and that is very true; but that I should give Warrant to Levy by Soldiers, no such thing is proved; no such thing is shewed; no such thing is alledged by Sir William Pennyman, who best knew it; and, should do it in his own Justification, if there were such a thing: but, on the other side, I must humbly beseech your Lordships, to mind you what a clear and full Proof I made thereof to you, 'till you were weary; though, I think, I could have continued it a Year longer, if need had been, that there was nothing done by me in the Levying of the first Month's Pay, or the second Fortnight's Pay, but with full Consent of the Country, nothing being of Constraint, nothing being of Force put upon them.
The Second Point, was, a Warrant shewed to your Lordships, or at least pretended, from Sir Edward Osborne the Vice-President, wherein he charges them to obey and pursue the Substance and Direction of his Warrant; on pein of Death; and this must likewise be laid to me: My Lords, I confess I have Faults enough, more than a good many though, I trust, neither so crying nor grievous as some would pretend them to be; but Faults I have, more than too many, I need not take nor add to my self other Meris; but, whether this be a Fault, or no, I cannot undertake to judge. But certainly, I am in no Fault; for, I was at — when this Warrant issued from Mr. Vice-President; and, I dare say, he is a Gentleman so worthy and noble, and so great a Lover of Truth, that let him be examined upon Oath, if he shall not absolutely clear me from Privity or Direction of it, I so much rely on him, that I will be thought Guilty-before your Lordships for this Charge: Now, my Lords, having gone over all that first part, which I thought fit to apply my self to, and that is Statute-Treason, there is no Statute-Treasons in the whole Charge, nor colour or pretence thereof, save only that of Newcastle, which was waved.
I do conceive my self, in a manner, by themselves, Clear of Seven of these; for, they have, in a manner, relinquished Five of them; So that the First Article is the main Article whereupon I must be touched, and that is laid in the Charge thus; That I have Trayterously endeavoured to subvert the Fundamental Laws and Government of the Realms of England and Ireland; and have, by Trayterous Words, Counsels and Actions, declared the same; and have advised His Majesty to Compel His Subjects to submit thereunto, by Force.
My Lords, I must confess I have many times with myself considered with Wonder, at the Wisdom of our Ancestors, that set the Pillars of this Monarchy with that singular Judgment and Prudence, that I have ever observed, that so oft as either the Prerogative of the Crown, or Liberty of the Subject, Ecclesiastical or Temporal Powers, exceed those modest Bounds set and appointed for them, by the Sobriety and Moderation of former Times, the exercise of it overturn'd to the Prejudice and to the Detriment of the Publick Weal; all the Strings of this Government and Monarchy have been so perfectly tuned, through the Skill and Attention of our Fore-Fathers, that if you wind any of them any thing higher, or let them lower, you shall infallibly interrupt the sweet Accord that ought to be entertained of King and People.
With this Opinion I had the Honour to fit many Years in the Commons House; and this Opinion I have carry'd along with me exactly and entirely for Fourteen Years in the King's Service; ever resolving in my Heart, Stare super vias antiquas, to prove, with equal Care, the Prerogative of the Crown, and the Liberty of the Subject, to Introduce the Laws of England into Ireland, ever setting before myself a Joynt and Individual Well-being of King and People, (for either they must be both, or neither;) which made my Misfortune the greater, to be now, in my Gray Hairs, charged as an Under-worker against that Government, a Subverter of that Law I most affected, and a Contriver against that Religion, to the Truth whereof I would Witness, by the fealing of it with my Blood.
My Lords, As to the latter part, concerning my Religion, they have quitted me; and I have nothing to answer to that, because it is waved; and, I trust, my Lords, I shall clear my self in the first part, concerning my being a Subverter of the Fundamental Laws, that I shall stand Clear to your Lordships Judgments in that Case.
My Lords, I shall first give you an Account of the Words, wherewithal I am Charged forth of Ireland; and, the first Words are in the Third Article, where I am Charged to have said, That Ireland is a Conquered Nation, and that the King may do with them as he pleaseth; And, to the City of Dublin, That their Charters are nothing worth, and bind the King no farther than he pleaseth. These are the Words charged.
My Lords, methinks it is very strange, under favour, that this can be made an Inducement to prove this Charge, because I said, That Ireland is a Conquer'd Nation, therefore I endeavour to subvert the Fundamental Laws, when I speak the Truth; for certainly it is very true, it was so.
My Lords, under favour, I remember very well, there was as much said here at this Bar, since we began; and yet I dare well swear, and acquit him that spake it, from intending to subvert the Laws. For, my Lords, you were told, and told truly, That Ireland was a Conquered Nation, and that it was subordinate to England, (and, God forbid that it should be otherwise) and that they have received Laws from the Conqueror.
My Lords, the Words testified by my Lord Gormonstone and Kilmalock to be spoken, are not the Words wherewith I am charged, and so, under favour, I conceive, cannot be brought to my Prejudice, as to this Tryal, and they are Words that are denied by me.
For my Words concerning their Charters, your Lordships remember very well, I doubt not, wherefore I said they were void, For their misuse of them, and that I told them so, not with the intent to overthrow their Patents, or Charters, but to make them more conformable to those things, that the State thought fit, for encrease of Religion and Trade, and encouraging and bringing English into that Town; And that it was meant so, and no otherwise; Whatsoever was said, it appears by this, their Charters were never touched nor infringed, nor medled withal by me, during the time I was in that Kingdom; so that Words so spoken, and to such a Purpose, that they should go to prove such a Conclusion, I conceive there is great difference betwixt those Premises, and that Conclusion.
The next Charge for Words in Ireland, is in the Fourth Article, where I am charged to have said, That I would neither have Law nor Lawyers dispute or question my Orders: and, that I would make the Earl of Cork, and all Ireland know, that as long as I had the Government there, any Act of State should be as binding to the Subjects of that Kingdom, as an Act of Parliament.
My Lords, I humbly beseech your Lordships to give me leave to say for my self, That these Words of the Charge are only Sworn by my Lord of Cork, and no Man else: and, his Lordship appeared a little mistaken the other day in one Point, on the Reading of an Order of the Council-Board, for so it appears, as I conceive; so that for one single Witness, and he the Party aggrieved by these Words, to be the Man that must convince me, I conceive your Lordships will not think that to stand with the ordinary Rules of Proceeding.
For the rest, to say Acts of State in Ireland, should be Binding, so long as they are not contrary to Law, I confess I then conceived it had been no Offence, for I thought them to be as Binding, being not contrary to Law; but, the Elder we grow, the Wiser we may grow, if God give us the Grace, and Attentions; and so I trust I shall, by these Gentlemen, that have taught me to forbear those kind of Speeches hereafter.
My Lords, These are all the Words charged against me for Ireland, saving only some things that I shall come to anon, that is charged upon me in one of the latter Articles, concerning Scotland; I say, my Lords, these are all the Words that have slipped from me in Seven Years time, having been well watched, and observed, as your Lordships may perswade your selves I have been; But, in Seven Years time, I say, these are all the Words brought to my Charge: and, in truth, I conceive a wiser Man than my self might be forgiven for one Error, or slip of his Tongue of that nature, in a Year's time, seeing it is in no greater measure, God be praised, than these are.
My Lords, these being the Words that passed from me in Ireland, there are other Words that are charged upon me, to have been spoken in England; but if your Lordships will give me leave, (though perhaps in no very good method) I shall not fail to touch, first or last, the Words in every Article.
My Lords, I may alledge much New Matter, but I will observe your Lordships Order punctually, by the Grace of God; for what I may say in that Case, if it might be admitted, I keep it to my self: But the truth is, they that do prove the Words to be thus, That I would make the LittleFinger of the Lave, heavier than the King's Loyns; they do not tell you the Occasion of the Speech, or what went before, or what after; for, my Lords, if they had told the Occasion, (which, methinks, they should as well have remembred as the Words) it would plainly and clearly have appeared to your Lordships, that Sir William Pennyman's Testimony was most true; for the Occasion was such, that to have said those Words, had been to have spoken against that to which I intended the Discourse; but speaking them as I said, it makes very strong for that Purpose to which I directed them; which was, to appease the Country, and quiet the Discontents, for having been Double-charged with the Knight-Money; and therefore it was not properly Threatning them, further to have provoked them.
My Lords, you have Sir William Pennyman's Testimony, that it was so, and my Profession, who (under favour) will not speak an Untruth, to save my Life; I protest before God, that I say, I verily believe, or else I will never speak it, indeed; and there it is, they have proved it to have been said one way, we another way; we give the Occasion of our Speech, and disavow their's, and so we must leave it; and howsoever, these Words so spoken, can never be drawn (as I humbly conceive) as Premises to prove their Conclusions, that therefore I am guilty of High-Treason: They have made me guilty of a foolish Word, and that I confess, and, if they please, I will confess it all the day long; for I have been foolish all the days of my life, and I hope hereafter I shall look unto my ways, that I offend not with my tongue; for if I cannot rule it abroad, I will rule it within doors, else I will never stir abroad, but bound it so to my own business and affairs, that, I trust, I shall give no offence.
The next Article that chargeth me with Words, is the 22d Article, and these be Words spoke in England: The first part of them, which concerns the bringing in of the Irish Army, I have spoken to already: but, in the conclusion, there are other words, And shortly, the said Earl of Strafford returned to England, and to sundry Persons declared his opinion to be, That His Majesty should first try the Parliament here, and if that did not supply him according to his Occasions, he might then use his Prerogative as he pleased, to levy what he needed, and that he should be acquitted both of God and Man, if he took some other Courses to supply himself, though it were against the Will of his Subjects.
My Lords, as unto this, I conceive the Charge is not proved by any Witness, that hath been here produced against me; and in truth, my Lords, I must needs say this, under favour, (if it be an Error in my Judgment, I must humbly crave your Lordships Pardon) through the whole Cause I have not seen a weaker Proof, and if I had had Time to have gotten my Witnesses out of Ireland, I hope that should be proved, and so clearly, as nothing could be proved more; but I must stand or fall to what I have proved, and so I do, my Lords; the Proof they offer for this (as I conceive) is the Testimony of my Lord Primate, and his Testimony is, That in some Discourse betwixt us two, touching Levying upon the Subject in case of imminent Necessity, he found me of opinion, that the King might use his Prerogative as he pleased. My Lords, this is (under favour) a single Testimony, it is of a Discourse between him and me, and there is not any other that. Witnesses any thing concerning it; so that (under favour, my Lords) I conceive this will not be sufficient to bring me any ways in danger of Treason, being but a single Testimony; and, my Lords, it is to be thought, and to be believed, (and it were a great Offence for any Man to think otherwise) that in this Case any thing can please the King, (he is so Gracious and Good) but what shall be Just and Lawful, and then there is no doubt, but so far as with Justice and Lawfulness, he may use his Prerogative in case of imminent Danger, when ordinary Means will not be admitted.
The next is, the Testimony of my Lord Conway, and the Words that his Lordship testifies are these; That in case the King would not be otherwise supplied by Subsidies, he might seek Means to help himself, though it were against the Will of his Subjects. Truly, my Lords, if I should acknowledge these Words, I do not see how they can be any way Capital in my Case; but this, again, is but a single Testimony, and there is no other that says it but himself; and if there be a good Sence given to them, certainly the Words may very well bear it; for I think it is a very Natural Motion for any Man to preserve himself, though it be to the disliking of another; and why a King should not do it as well as a Subject, it is such a Prerogative of Kings, as I never yet heard of; for I thought, though they had been Gods on Earth, yet they are Men, and have Affections as Men, and should preserve themselves, being not only accountable for Themselves to God Almighty, but also for their Subjects, whose Good and Benefit is wrapt up and involved in theirs; and therefore the King ought more to regard his own Preservation, than the Commonwealth.
The third is, That Mr. Treasurer says, that, to his best remembrance, I did say, That if the Parliament should not succeed, I would be ready to assist His Majesty any other Way. God forbid this should be any Offence for to say so, either in him or me; for I will swear, if it please you, that he said so, as well as I; therefore God forbid it should endanger either of us both: For, my Lords, to say I will serve the King any other Way, it is no other than what became a good and faithful Servant to do, always provided the Way be good and lawful, which, in this Case, is always to be admitted among Persons of Honour and Persons of Trust; and therefore admitting it not any other Way, it was just, and lawful, and commendable in Mr. Treasurer and me; for I vow to your Lordships, we both said it, and he as fully as I.
The next Words I am charged withal, are in the 23d Article, and those, my Lords, are, that having tried the Affections of his People, His Majesty was loose and absolved from all Rules of Government, and was to do every thing that Power would admit; and that His Majesty had tried all Ways, and was refused, and should be acquitted both of God and Man: For the latter part, which concerns the Reducing of this Kingdom by the Irish Army, I have Answered already, and therefore shall not need to repeat it.
My Lords, mine Answer (under favour) to those Words, with your Lordships Noble Permission, must be thus, That they are no way proved in the most material part of them, by any Testimony that hath been offer'd; I shall, as near as I can, repeat the Proofs that were offered on this Point, (for these Articles were brought in four or five together,) but I shall apply the Proofs severally and distinctly.
The Testimony first given, was the Testimony of the Lord of Bristol, wherein his Lordship says, That in a Discourse, there was Difference betwixt his Lordship and me, in some Tenets of ours. To which I Answered the other Day, That in Discourse, we speak not always the things we think; but many times, to gain from other Mens Arguments, to strengthen me in my Opinion, I will seem to be of the contrary; This is ordinary and familiar in all Conversation, and very honest and just; so that albeit we seem to differ as we held it severally, yet if the pulse of our Hearts had been touched close, both his and mine, perhaps we should have found it one and the same: Besides, his Lordship said, I disliked not the Discourse, we speaking of another Parliament; only I said, It was not convenient at that time, and that the present Dangers would not admit a Remedy of so long Consideration; and that the King must provide for the Commonwealth, Et salus populi suprema lex.
My Lords, I know you are so Just, that you would Judge me, as you would be Judged your selves; and whether any Man that hears me, would be content, to have every Word that falls in Discourse betwixt Man and Man, to be so severely interpreted, I leave to every Man's Breast, what he finds in the closet of his own Heart, and desire to be Judged according to that.
My Lords, I say (under favour) these Words are not within the Charge, and therefore I am not to be accountable for them; besides, it is a single Testimony, and, by the Proviso of that Statute, cannot be made use of to the End and Purpose for which they bring them.
My Lords, the next Testimony offered for proving this Charge, is the Testimony of my Lord of Newburgh, and he says, That at the Council-Board, or in the Gallery, I did say, That seeing the Parliament had not supplied the King, His Majesty might take other Courses for the Defence of the Kingdom. Truly, my Lords, (under favour) who doubts but he might? for my part, I see not where the Offence is, for another Man to have said thus; for if another Man will not help me, may not I therefore help my self? (Under favour) I conceive there is no great Weight nor Crime in these Words; but in these, likewise, he stands a single Testimony, there is no Man that joyns with him in it; and there is this in the whole Cause, concerning the Words, that I think there is not any one thing wherein two concurr.
The next Testimony is that of the Earl of Holland, and he says, That at the Council-Board, I said, The Parliament having denied the King, he had advantage to supply himself other Ways: Truly, my Lords, I say still, other Ways, being lawful Ways, and just Ways, and such Ways as the goodness of the King can only walk in, and in no other can he walk. And therefore I conceive, they be far from bringing it to so high a guilt as Treason; and this likewise his Lordship expresses as the rest do, singly on his own Word, as he conceives them, and not on the particular Word of any other Person, which is, I say, the Case of every One that speaks in the Business; and therefore there being so great a difference in the Report, and Conceiving of Things, it is very had my Words should be taken to my Destruction, when no Man agrees what they were.
My Lord of Northumberland is the next, and he says, I should say, at a Committee for the Scotish Affairs, That in case of Necessity, and for Defence and Safety of the Kingdom, every thing must be done for the Preservation of the King, and his People. And this is the Testimony of my Lord in that Point: If I take any thing short, it is against my Will; I give you my Notes as far as I have them, and further I cannot remember them.
But, my Lords, I say, this brings it to that, which is indeed the great part of my Defence in this Case: There is another agreed in this too, and it is Mr. Treasurer, who says, That in Argument for Offensive or Defensive War, I should say, That having try'd all Ways, and being refused, the King might, in extreme Necessity, provide for the Safety of Himself and his People; I say, this brings it to that, which is principally for my Defence, that must qualifie, if not absolutely free me from any Blame; and that is that which did precede, and follow after.
My Lords, (under favour) I have heard some Discourse of great weight, and of great Authority; and that is certain, the Arguments that were used in the Case of Ship-Money, by those that Argued against the King in that Case, say as much, and will undertake, if any Man read those Arguments, he shall find as much said there, as I said at Council-Board; for there you shall hear, that there be certain Times and Seasons, when Propriety ceases, as in the case of Burning, where a Man pulls down the next House, to preserve the whole Street from being set on fire: In the case of building Forts on any Man's Land, where it is for the Publick Defence of the Kingdom: In both these Cases, Propriety doth cease: Nay, he says that in War, Inter Arma silent Leges. Now, my Lords, these are as highly said, as any thing you have heard by me, and yet certainly is no subverting of the Fundamental Laws, for all that; and therefore, if a Man must be judged, he must not be judged by pieces, but by all together.
My Lords, Whatsoever I said at Council-Board, was led in by this Case, what a King should do, in case of a Foreign Invasion of an Enemy, when the ordinary Ways and Means of Levying Money would not come in seasonably to prevent Mischief, for what a King may do, in case of absolute Necessity; certainly, in these Cases, the ordinary Rules do not take place: As this was the Case that let in the Discourse, so I most humbly beseech your Lordships (for it is fully proved) to remember what was the Conclusion of that Discourse; which was, That after the present Occasion provided for, the King was obliged in Honour and Justice to vindicate and free the Liberty of the Subject from all Prejudice and Harm it might sustain in that extraordinary Occasion, and that this was to be done by a Parliament, and no other way but a Parliament: and the King and his People could never be happy, 'till the Prerogative of the Crown and the Liberty of the Subject were so bounded and known, that they might go hand in hand together, mutually to the Assistance of one another.
My Lords, give me that which precedes, and that which follows, (both being proved to be the Case, in these Words in the Charge) I think, considering these two, I should be far from having committed any great Crime or Offence, in saying these Words.
But I say, as I said before, I shall be more wary for the time hereafter, if it please God to give me that Grace and Life, which I submit to him, and shall readily and willingly resign to his good Will and Pleasure: I conceive therefore, that as these Words are accompanied, they be not Words that do amount to Treason; and are so qualified, and so weakly proved, that I trust they shall not stick with your Lordships.
The next Words that I am charged withal in England, be on the 25th Article, and that is, that I should say, That the Aldermen that would not give in the Names of the able Men of the City, deserved to be put to Fine and Ransom; and that no good would be done with them, 'till an Example were made of them, and they were laid by the Heels, and some of the Aldermen Hang'd up.
In the first part of the Article, there is something concerning my Advice for Raising the Money; but it is not proved that I did any thing therein, but as others did, and as in former Years had been done, before my coming into the Kingdom: For the Words, that they deserved Fine and Ransom, I confess them in my Answer, just in the same manner as my Lord of Berkshire was pleased to testifie them the other Day, that is, That if they should not do the Thing desired, they might, in my opinion, be liable to Fine and Ransom.
And, my Lords, admit I were mistaken in my Opinion, shall it be a Treason to be mistaken? I say, in my Opinion, they might be liable to Fine and Ransom; but what is this to Treason? Under favour, nothing at all, as I conceive. For the other part, That it would never be well, till some of the Aldermen be hanged; it proves to be testified by Mr. Alderman Garroway, and he owns it only for himself; for it was not, That some of the Aldermen should be hanged, but he said at the Bar, till he himself were hanged.
My Lords, This is a single Testimony, and these Words, as he says, were by me spoken to the King at the Council-Board, That it would never be well, till some of them were hanged, meaning himself. Truly, my Lords, I thank God, I never spake such unmannerly language, all the days of my life; I have had more regard to my Words, than to say such things to my Master; and your Lordships must needs be, many of you, by, and I am very confident, there is not one among you, that can remember any such Words were spoke; for, in good faith, I did not speak them; And, my Lords, before this Misfortune did befall me, I should with modesty have thought my self a Person on equal terms, to have been believed as well as Mr. Garroway, and I speak it with as great confidence as he, that I never spake the Words.
My Lords, The next is the 26th Article, and that is, That I should say, The City of London dealt Undutifully with the King, and they were more ready to help the Rebels, than to help His Majesty; and if any hurt came to them, they might thank themselves.
My Lords, I am, in the first part of this Article, charged to have counselled and proved two dangerous and wicked Projects, the one concerning the stay of the Bullion in the Tower, the other concerning Copper-coin; and no Proof hath been offered, that either compelled, or appoved either of those two Projects. And, my Lords, it is proved to your Lordships, that when the Merchants came, I told them, I knew nothing of the business as to the Bullion, neither, indeed, did I ever know there was any Bullion, nor any thing of that nature, in the Tower. But for the Words, I conceive it had been no Treason for me to think at that time, that the Londoners had dealt Unthankfully with His Majesty; I thought I might have said it freely, without danger of such a Thought as might conduce to the convicting me of Treason.
But whatsoever I then thought, or on what grounds soever, it may be remembred, that then I alledged, and now I speak it, when News was brought to York, that the City had sent the King Two hundred thousand Pounds; I took notice, that notwithstanding all I had thought formerly, they had now made such Recompence, and so cleared their Faith and Duty to the King, that I should be their Servant, and lay my hand under their feet, (as those that heard me, are able to speak;) for though, at first, I said they had dealt Unthankfully with the King, yet afterwards I was ready and willing, upon all Occasions, to testifie the contrary of them, and to profess that I was ready to serve them upon all Occasions, just, and honest, and honourable.
As for my saying, That they were readier to help the Rebels than the King; in truth, I am a Man that cannot justifie a thing I do not approve; I must needs say, it was an unadvised Speech, and I wish I had not spoke it: It seems I did speak it; for I have reason to believe honest Men when they Swear, though, in truth, I remember it not: but I have no reason or cause to think they would take an Oath otherwise than Truth. I have no exception to the Men, and therefore, upon their Words, I must credit them, before my own Memory; but it was an Unadvised Speech; and he is a wise Man, and much wiser than my self, that some time offends not with his Tongue. And, in truth, my Lords, though there be no Treason in it, they are the most unwarranted Words that appear in the whole Proof made against me.
In the 26th, there are some Words that I should speak to my Lord Cottington concerning a foolish Pamphlet, or Gazette, which I then had in my Hand; and, it is such a Toy in it self, and all the Circumstances of it, that I hold it not worth the mentioning, but only that I would not forget any thing in the Proofs, as near as I could; and the Proof is uncertain, for only one Man says it, and the very Words he cannot express: Now, he that shall Swear, when he cannot express the Words, his Testimony is but of small value; and, he is but a single Proof at best, to disprove what is deposed by Sir William Parkhurst, who says, he was by, yet heard not the Words; And Cogam says, he remembers not the Words: And so, upon the Matter, there are two against one; and, the Whole being so uncertain, I conceive it is of very little moment in your Lordships Judgments.
My Lords, These are, as near as I can gather, all that are charged as unto Words, spoken either in England or Ireland Councils; other than these I am not charged withal, and so there remains nothing but my Actions: And, if I can free them, as well as I have freed the Words, I conceive then, under favour, I have fully Answered all that hath been Objected against me.
For that of my Lord Mountnorris, I have shewed plainly and clearly to your Lordships, that I was no Judge in the Cause, but a Party, and therefore not Responsible for any Judgment given against his Lordship. I gave no Vote, and so, consequently, am not to answer for any Guilt, if there were any; which, under favour, I conceive, since all Martial Law is Adjudged to be against the Law, I may be of another Opinion; but, formerly conceiving that that might have stood with the Law, I might say something more for the Justification of it, than now I do; but however, I was no Party.
They say, he was a Peer, and it is very true; but, as he was a Peer, so he was a Captain of the Army; and, in this Case, we consider Men as Members of the Army, not as Peers: And, if a Peer will not submit himself to an Officer of the Army, he must submit himself to the Order of the Army.
Besides, I say it was intended only as a Discipline to him, the better to remember him to govern his Tongue afterwards towards other Men; and, that there was no more Prejudice fell upon him by it, but two or three Days Imprisonment, so there was no great Animosity in the business: Besides, it appeared to your Lordships, that two or three Days after, we writ to the King, and obtained his Pardon; so that I conceive, the Inconvenience was not very great to him, nor the Proceedings such, as should make it Unpardonable, or Criminal in them that gave Sentence upon him, whereof I was none.
For that other, concerning Denwitt, your Lordships may remember, he was found Guilty of Stealing a Quarter of Beef, and for Running from his Colours, and was formerly Burnt in the Hand; for that he should be Proceeded against another way: But, falling out at that time, when Five hundred Men were going over to Carlisle, and they being unwilling to be put to Sea, we were inforced to those Proceedings, for the preventing of further Mischief. And, there is another thing; that the Martial-Law hath, been alway in Force, and executed in all times in Ireland, and never so sparingly as in my time; for, this is the only Man that suffered all the time. I had the Honour of the Government: And, I dare appeal to them that know the Country, Whether, in former times, many Men have not been Committed, and Executed, by Martial-Law, by the Deputy's Warrant, that were not Thieves and Rebels, but such as went up and down the Country? if they could not give Account of themselves, the Provost-Martial, by Direction of the Deputies, using, in such Case, to Hang them up. I dare say, there are Hundreds of Examples in this kind; so that as to that, I do not Justifie it; But, I say, it is a Pardonable Fault; and, that others are of course pardoned for it; And, I trust, that what falls of Course, shall not be laid upon me as High-Treason, or conducing to it.
The next is the Sixth Article, and that is in the Case of Richard Rollston; and therein, I am said to have subverted the Fundamental Laws, by executing a Power, and a Jurisdiction, which was not warranted by Law, upon a Paper Petition, putting out of Possession of his Freehold and Inheritance my Lord Mountnorris.
My Lords, that Sentence will appear to your Lordships to be no more, than the relieving a Poor Man in case of Equity; and, it is proved to you to be a Power that hath been formerly practised by the Deputies; and, I humbly conceive the Decree is just: So that, my Lords, I must confess, it is something strange to me, that having the King's Letter to Warrant me in the Course of Proceedings, and having the Power of former Deputies in like Case, and doing no more therein than the Lord Chancellor, by the very self-same Law, should do in other Places: And, that which should be—done by the Chancellor, should be Innocent and Just, yet become High-Treason when done by Me, is a thing I understand not.
The next is the Case of Tonnres; and that is waved by them: and well may it be; for, it was in a Case of Plantation; there was no Possession altered, and it is fully within the Book of the King's Instructions.
The next is in the Case of Sir John Gifford against the Lord Viscount Loftus, which they have waved: and well they may; for it was grounded on a Letter from the King, commanding it to be heard by the Deputy and Council; which is clearly within the Instructions, and hath been since heard by the King and Council-Board, and by them confirmed for a just Decree.
The next is the Case of my Lord of Kildare; and, that they may well wave too; the Proceedings being grounded upon a Letter from His Majesty, and nothing done but in pursuance of an Award between the Lord Digby's House, and that House of Kildare, made by King James.
The next is the Lady Hibbot's Case; and that was, Relief given to Poor Men, circumvented by Practice, to the Prejudice of himself. My Lords, I had Power to hear that Cause, and all Causes of that nature, by the King's Letter, and according to the Practice of former Deputies: And, I conceive, it will appear, when it comes to be heard, to be a just and fair Decree, I do not any way question that, though I remember little of the business.
But, at the worst, this is but an over-exercising of a Jurisdiction; and, that it should be High-Treason in a Judge to exceed his Jurisdiction, I must confess I never heard it. I told your Lordships the other day, Bono Judici est Amplior Jurisdictio.
But, that it should be High-Treason to enlarge Jurisdiction, is a perilous Point; and, if it be so, it befits your Lordships, and all Judges, to be well certained what you may do, left by going too far, you fall into great Inconveniences.
But, my Lords, I say, (under favour) that all these, if they had been done without any manner of Authority, had not been a Subversion, but rather a Diversion of the Law: it could not be properly said, to be the subverting of the Fundamental Laws, though it might be a diverting, and so long as I keep the Rule of the Law, and do the same things that another Man does, in a more legal Way, I mean in a more warrantable Place; I say, my doing of the same thing in an improper Place, is not a Subversion, but a Diversion of the Law: If you will bring in the Thames about Lambeth, to come in again below the Bridge, the River is the same, though the Course be diverted to another Place: So the Fundamental Law is the same, though the Course be diverted to another Place; I say, the Fundamental Law is the same, only it is carry'd in another Pipe: And, Shall this be said to be a Subverting? Under favour, as the River is the same, so the Law is the same; it is not a Subversion, but a Diversion. Nor doth it skill where Justice be done, (I mean so far as it concerns the Subjects Interest;) for, so long as he hath Justice speedily, and with least Charge, his End is complied with, and it concerns not himself, whether he hath it in the King's-Bench, or Common-Pleas, so he hath it speedily, and with the least Charge: And therefore, as long as the Laws are the same, though executed by several Persons, and in several Places, I cannot conceive it to be a Subversion: And, I shall humbly beseech your Lordships, to take Care, that while these Strains are put upon me, to make this Personal Charge against me, ye do not through my Sides, wound the Crown of England, by taking that Power from the Deputy, which must of necessity be lodged in him, if you will have that Kingdom depend upon the Crown of England, which I hold, in all Wisdom and Judgment, ought to be cared for: Therefore, I beseech you, prejudice not the Deputy, to the Disabling him from serving the Crown hereafter, by Beating down me, who am this day to Answer before you; For, if you take away the Power of the Deputy, you shall not have that Kingdom long depend upon this Crown; for, it rests under God and His Majesty, and must principally rest upon the Care of him that is intrusted with that Charge: And therefore, give me leave, on the behalf of the Crown of England, to beseech you to be wary of lessening the Deputies Power too much; for, if you do, I fear you will find it a great Disservice to the Crown.
My Lords, the next thing I am charged with, is the 9th Article; that is, a Warrant of Assistance to the Bishop of Down and Connor, and, for that, your Lordships see there was but one of them, and have heard it proved, that before my time such Warrants were frequent indeed, no Man was denied them: But, my Lords, it must likewise be remembred, that of my own accord, I did recall it, before I was ever question'd for it; and, it is very hard, if he that mends his Faults, should be afterward punished for it for it is a degree of Repentance, and it is hard that a Man should be finally Condemned after Repentance: And therefore, my Lords, I trust, seeing there was but one of them, seeing I did my self recall it, so willingly, as soon as I found the Inconvenience, I hope that will be easier remitted to me.
The next is the 10th Article, that concerns the Customs, and that is rather to be looked on as a Fraud, than as a Treason, as I conceive it; there is no Treason in the business, sure: but, I have proved, the Bargain was honestly made; That there was more offered for it by me, than any other; That I had it upon no other terms, than it was formerly lett to others; That I was constrain'd to it whether I would or no; And then, my Lords, if the Bargain, by the Increase of that Kingdom, prove a good and profitable Bargain; it is a very hard Case, that if it be encreased through the King's Wisdom and Goodness, and the Kingdom's Growth, Trade and Traffick, that this should be turned upon me, as an Argument, to make me Guilty of Treason.
But whereas they press, That I have gained Three Hundred Thousand Pounds Estate by it; it is a very strange Mistake: For, the King has out of it his Rent of Fifteen or Sixteen Thousand Pounds a Year, and Five entire Parts of Eight clear to himself; and therefore it was a strange Calculation, and much mistaken by them that gave the Information of it to the Gentlemen.
For the Book of Rates, it was none of mine, but was agreed on before my time; I had nothing to do with it, and therefore have nothing to Answer for it: And, when it shall come to be proved,' it will appear, that the Rates were set fairly and justly, and equal: betwixt King and People, according to the Law, whatsoever hath been said to the contrary.
The next is the 11th Article, concerning Pipe-Staves, and that is by them waved: and well they may; for the plain truth is, if it had been proceeded in, it would have appeared, that there is come Fifteen hundred Pounds Gain to the King, and Four hundred Pounds Loss to my self, and preserving of Woods, and that is all that would be made from that Article.
The next is, the business of the Tobacco, which is not appliable to Treason in any kind: But because I would be Clear in every Man's Judgment that hears me, I beseech your Lordships to call to mind, it was the Petition of the Commons House of Ireland, That the Grant of Impost on the Tobacco should be taken in and converted to the King's Use; to that whatsoever was done, was pursuing their Intentention and Desire.
That there was no way but this, to make Benefit aud Profit of it, is most manifestly shewn, that there was a Proclamation in England of the like nature, and a Command of the King to proceed in it accordingly; and an Act of Parliament transmitted here, for Passing it to the Crown, according to the Intention of the Commons House; and, for the greatness of the Bargain, no Proof hath been offered to your Lordships, but only the Estimate of a Merchant; and, how far your Lordships will be guided by the Estimate of a Merchant, I know not; but, I have had trial of some of them, and their Estimates never hold; for, they have always told me, I shall gain much, and when I came to the point, I gained nothing: and if Sir George Ratcliffe should be sworn to the Point, he should say confidently, that we are Fourscore and six thousand out of Purse, and, when he came out of Ireland, but Fourscore thousand Pounds received; and this is the Profit estimated by the great Merchants, at a Hundred and forty thousand Pounds a Year: But, at the worst, it is but a Monopoly, and a Monopoly of the best condition, because it was begun by a Parliament. I have seen many Monopolies question'd in Parliament, and many overthrown in Parliament, but, I never heard a Monopoly charged for a Treason.
My Lords, The next is the 13th Article, and that is concerning the Flax business; For that, my Lords, if I had thought it any way concerning me, I could have cleared it in a very great measure; But I had no private Interest in the business, much less of private Profit; but only an endeavour and desire to bring in the Trade of Linnen-Cloth to that Kingdom, which would be much Advantage to both Kingdoms, and no Prejudice to this Kingdom, which a Woollen Trade would have been, if set up there.
For any matter of private Benefit, you have no Witness but Crokay, a Fellow brought out of Prison; Here is but a single Witness, and a sorry one; a Fellow, who, by misbehaving and misusing the Trust committed to him, was turned out; and, upon the turning of him out, the Proclamation was absolutely called in; and, now he comes to be a Witness, being himself the only offended in the Cause.
But, I beseech your Lordships to think, I have not lived with so mean a heart in the World, that I should look to gain Four Nobles, more or less upon a Cart Load of Flax; It is very well known my thoughts have carried me free enough from gaining so poor and petty a matter, as that is. I know nothing in the World of it, no more than the Man in the Moon; but, when it comes to be heard, your Lordships will find me extreme pure in that; for I thank God I have clear hands, I assure you.
The 14th is waved by them, concerning an Unlawful Oath given to Matters and Officers of Ships: and, it might very well be waved; for, I conceive it to be Warranted by the Law: Sure I am, it is both the Practice of England and Ireland, and hath always, and at all times, been practised and used, and is only for the preventing of Fraud and Deceit in Merchants, by not paying the King's Duties and Customs.
The 16th doth Charge upon me certain Propositions I made, before I went into Ireland: And, in good Faith, my Lords, you may see how short-sighted Men may be to their own Action; for, I did very well believe, I should never have reaped any thing from those Propositions but Thanks; I am sure they were well received then, when they were offered to His Majesty and the Council; and I must truly confess, I never thought they should be objected against me as a Fault.
My Lords, The Proposition was, That no Man should be allowed to Complain of Injustice or Oppression in Ireland, unless he first addressed himself to the Deputy: My Lords, there was no Original Intent, but only to prevent Clamours, and Unjust Vexations of the King's Ministers there; that, after Men had received Judgment of the King's Courts, they might not presently come, and by Clamours, call over a Chief Justice, or a Chancellor, or President, to Answer here, and be at Charge of five or six hundred Pounds, unless they acquaint the Deputy with it, that they might be righted in the Place; and, this is charged against me as a great Crime.
Truly, my Lords, I shall confess, and amend any thing, and trust other Judgments rather than mine own; but, I see not how this can Charge me, as intending to subvert the Laws of the Land, but rather to preserve them.
My Lords, for that I have shewn, that no Man out of that Kingdom, can come without License, but upon very great Penalties. I have shewn likewise, it was the desire of their own Agents, some 15 or 16 Years since, That there might be such a Restraint, and none might come over without License. I have shewed you likewise, the Instructions to my Lord of Faulkland, by which he was Commanded, in pursuance of that Desire, that none should come over without his License: I have shewed the express Command of His Majesty to me, to have it so. I have shewed you likewise the Reasons of State, why it should be so, to prevent that Practice and Intelligence, which might otherwise arise betwixt them of that Nation, serving under Tir-Connel and O Neale; and likewise to prevent the going over, and transplanting the Prime Nobility and Gentry to Seminaries, and other such Places, there to be brought up: and therefore in reason of State, it is a Restraint, and ought so to be. But, having these grounds of Law, Warrant, Practice, Former Instruction and all, Why this should be brought to me in particular Charge, to convince me of endeavouring the subversion of the Laws, I must submit to your Lordships.
My Lords, There is, in the latter part of this, another Charge, concerning the Sentencing of one Parry, who was Sentenced (as I conceive) very Justly; and, I have no more to answer for in that Sentence, than any of the rest, having but a single Voice; and, that I should answer for all, I confess is something hard. But, there is no manner of Testimony in the World in this, save the Testimony of Parry himself: Now, if Parry, the Man offended, his Testimony shall be taken against the Judge, I know no Man can be safe, and other Testimony is not offered: and therefore I trust that that will easily fall off of it self.
The 17th is likewise waved, and is, in truth, of no great Consequence, one way or other, and therefore I shall give no other Answer to it; It was well waved, and had been as well left out, having no great matter in it.
The 18th is likewise waved, but it is that which sticks very heavy upon me; and, wherein I find my self as much afflicted, as in any one part of the Charge: For, my Lords, here I am charged up and down, to endeavour to draw upon my self a Dependance of the Papists, in both Kingdoms of Ireland and England; and, that I have during the time of my Government, restored divers Mass-Houses in Dublin, and elsewhere, that have been by precedent Deputies taken away. I am likewise charged to have drawn to my self a Dependance of the Irish Army, Eight Thousand, all Papists; and likewise to have miscarried my self in a Commission intrusted with me, before my going into Ireland, concerning Compositions for Recusants.
This is a very heavy and grievous Charge, and hath raised a. great deal of III Opinion against me in the World, to be a Favourer and Contriver with Papists, and I know not whom, against the Religion I profess; a Greater and Fouler Crime there cannot be against God or Man; and yet this goes in Print all over the World, and, when it comes to the Point, here is no Proof, nor any part of the Charge made good. And, therefore, since it is not made good by the Charge, I humbly desire I may be vindicated in your Lordships Noble Opinions, and the Opinions of all that hear me, that I am, in my Religion, what I ought to be; and, that which I will Dye in, and Maintain against all the World: And, I am so far from Contriving any thing to the hindrance of it, that, if God give me life, I will serve it, and prevent any Inconvenience to it: and, my Religion and Duty to God is so dear and precious to me, that there is nothing in this World, but I shall lay it down, as Straw and Stubble, under my feet, and trample upon it, rather than in any kind forfeit that: but, in the mean time, I suffer, and must be content.
My Lords, The next is the 19th Article; and that was for framing a New and Unusual Oath, which the Scots did take in Ireland, to give Pledges of their Allegiance to the King; I have shewn you for that, that the Oath was framed by the King's express Command in January, before the Oath was given, which was, I think, in May. And, I did then humbly conceive it lawful for me so to do, being only to take from them a Pledge of their Allegiance to the King. I confess, I conceived such an Oath might have been lawfully administred to the People; and shewed, that the same Oath was administred here in England, to those of that Nation; I shewed that it was taken in Ireland voluntarily: And, I humbly represent to your Lordships the Time when this Oath was required, when the King and both the Armies were in the Field, lodged not far from one another: And, whereas it is said, it should oblige the Clergy in Ecclesiastical Matters; if your Lordships call to mind, the very Oath it self clears that Point, requiring only a Temporal Obedience and Allegiance, in a Time of that Danger and Distraction, given by the King's own Command, and to no other Purpose.
And, my Lords, the Proofs are nothing at all on the matter; Sir James Montgomery tells you a Tale, not much material; nor Mr. Maxwell, not Sir John Clotworthy; there is nothing at all in it, concerning Treason. Stewart's Sentence remains only to be Answered in this Article; for that, I conceive, it was Justly and Fairly given, as I then conceived. I was one of the rest, and nothing was intended by that Decree, but his Reformation; and, when he had pleased to have taken the Oath, he might have been released of the Sentence, and sent home again quietly.
The next is the 20th Article; Wherein I am charged to be a Provoker, and Incendiary of a War against His Majesty's Subjects of the Scotch Nation; and, that I should say of them, They were Rebels and Traytors: and, being about to come into England, that I should say, I would root out of the Kingdom the Scotish Nation, Root and Branch.
My Lords, I shall need no more to say in this, for my being an Incendiary;I think, by the Proof, it hath been clearly made appear to your Lordships, that I gave no Opinion, but such as others did in the like Case. It is proved by my Lord Traquair, and my Lord Treasurer, and might have been proved by many more, if it had been needful.
For the Words that I should say, The Rooting out the Scots Root and Branch; They are only testify'd by one single Witness; Salmon the School Master swears it, and no Man else but he; and I hope, my Lords, that when your Lordships do call to mind, how he is Cross'd by his Fellowness John Lostus, your Lordships will be satisfied; he swears, I will persecute them to the Blood, and Root them out Root and Branch, and, I cannot tell what: But, John Lostus said indeed, that I said, I hope that such of the Scotish Nation, as would not submit to the Ecclesiastical Government, I would root out Stock and Branch: A wonderful difference between these two. But, my Lords, it was testified by Mr. Secretary Manwaring, then present, that I neither spoke the one nor the other, but as in my Answer I did truly and faithfully deliver it; I said, That unless they would take that Oath of Allegiance, and secure the King of their Allegiance in that Point, I hope I should not fee any of them stay in that Kingdom, that refused it: and there is no Proof in the world but the School-Master; and, I hope, your Lordships will not take him to be a good and valid Proof to convince me in this Case, being a Person of no greater Quality, and Crossed by his Fellow-Witness: For my self, I do absolutely say, I was so far from wishing III to that Nation, or any Dissension or Division between them, that I never desired other in my heart and foul, but a firm Peace through the King's Dominions: My Counsels tended to that; and, if I might seem to begin in a contrary way, yet the last resort was, to bring all to Quietness, and so, that it should be without Blood. And, I dare say, there be them that heard me say it many a time in the King's-Council, That the King should be in nothing to much sparing and tender, as to draw any Blood in that Quarrel; I dare say, many that heard it, will Justifie me in it: And, if your Lordships will give me leave, I do think I have something that might procure your Lordships belief that it was so; for, at that time, my Fortune (though now by Misfortune it be mean enough) was such, as I needed not desire to shuffle the Cards, and deal a-new; and, especially, when nothing was to be got but Blows: and that, I trust, will be an Argument to your Lordships, that nothing was desired by me so much as Peace; and that, under God's Goodness, and the Protection and Benefit of His Majesty's Scepter, I might enjoy the little Estate my Ancestors left me; for it is certainly true, whatever the World may think to the contrary, it is very little better from what my Father left me; something it is, and the most part of the Improvement of it was, before I came to serve the King; and yet I have had more from the King than I deserved in all kinds; and all the whole service of my Life, were it never so many Years, could not merit nor deserve from Him, the Hundredth part of what I had from His Favour.
My Lords, Mr. Treasurer Vane says, I was in the Argument for an Offensive, and he for a Defensive War; for a War, both of us: And, I beseech your Lordships, How should it be more Treasonable for me, to be for an Offensive, than for him to be for a Defensive War? for a War there must be, and the difference was not great: and, for a Counsellor to deliver his Opinion, and have that turned upon him as Capital, to sweep from the World himself and his Posterity, is a very hard Case, to say no more of it.
My Lords, This is more fully charged in a subsequent Article than this; for, this is but only for breaking of the last Parliament, that I should advise it to be called, with an intent to break it, which is very unlikely; for, that nothing in the World could be of so happy effect to me, as the success of that Meeting; and yet I must destroy, and disadvantage my self in that, than which, nothing could be of more advantage than the success of that Parliament.
In the Twenty-fourth Article comes in that of the Parliament more fully; and there I am charged, Falsly, and Treacherously, and Maliciously to have declared before His Majesty's Privy-Council, That the Parliament of England had forsaken the King, and given Him the Advantage to Supply Himself other ways; and having so maliciously Slandered the said House of Commons, that I did, with the Advice of the Archbishop of Canterbury, and the Lord Finch, publish a False and Trayterous Book, call'd, His Majesty's Declaration of the Causes of Dissolving the last Parliament, &c. This goes very heavy upon me in the World, that I should be a Breaker of Parliaments; a Counsellor against Parliaments. My Lords, there is nothing proved of it; and, I hope I shall be Cleared by your Lordships, and these Noble Gentlemen, and all the World, that I had no such thing in my Heart.
For the Point of the Declaration, I was at that time Sick in my Bed, and could do nothing in it, and therefore, I trust, I shall, be Acquitted as to that: As to the Breaking of the Parliament, or any Ill-will to Parliaments, I have ever honour'd them; and, far be it from me to wish, that they may not be frequent, for the Good of the King and Kingdom: But, as oft as you shall have it urged, and prest against me, that I should be an Endeavourer to subvert the Fundamental Laws of the Land in this kind, I beseech your Lordships, call to mind what hath been proved, that at all Publick Debates, at Council, and Privately apart, I have humbly represented to His Majesty, from time to time, that Parliaments are the Only Way to Settle Himself in Quietness in the Kingdom, and to acquire Prosperity and Happiness to Himself and His People: And, when you shall hear them press upon me, that I have endeavoured to Subvert the Fundamental Laws of the Land, I beseech your Lordships to call to mind, how frequently and fervently I have advised the King to call for Parliaments, which, under God, is the great Protection and defence of the Fundamental Laws of the Kingdom.
The next is the 27th; and, for that, I can say no more, than that your Lordships have heard the Proofs for the Levying of Money: It hath been cleared to your Lordships, that nothing was done by me, but by Consent of the Country, with their Unanimous Good-liking, and for their Benefit and Advantage; being done so, and for so good Ends, as, I trust, that shall not be enforced against me: And it is very strange to me, why it should be expected, that if two Armies be in the Field, one against the other, (as there was at York) that they should be govern'd with as much Quietness, as an Attorney walking with his Writs at his Girdle, betwixt the King's Bench and the Common Pleas.
For, Armies cannot be Govern'd: without some Latitude in this kind: Inter arma silent leges; rightly applied, there is Truth in that. But, I did nothing in the Business, I did nothing by Compulsion, but by the voluntary Liking of Parties themselves; and therefore, I conceive, that shall not be charged upon me as Treason.
There remains now the 28th Article; and that is the only Bloody Article, if it had been or could be made good, that is in the whole Charge; for, there I am charged, out of ill and wicked Purposes, (and, indeed, What can be worse than Treason?) to have Betrayed Newcastle into the power of the Scotch Army; and, likewise, to have betrayed the King's Army at Newburn, to a dishonourable Retreat.
My Lords, if either of these had been true, I should have saved your Lordships the labour. I would have given Judgment against my self, that had been certain: But, my Lords, never was any Man more Innocent, therefore they may very well wave it.
Have I been all this while charged as an Incendiary ? and, Am I now come, in the conclusion, to be charged as a Confederate ? It is wonderful strange ! Certainly your Articles fight one against another in this; for, How can I be an Incendiary in one part, and a Conspirator with them that charged me, to be an Incendiary in the other part ?
In good faith, I have not been very kindly dealt withal by my Confederates, if they be Confederates, to charge me as an Incendiary, that did them that Service and Help, as to deliver into their hands a Town of such Consequence as that is.
No, my Lords, I wish all Happiness to the Nation; but, I can never wish so to it, as that they should take one of the King's Towns in England, if I could have helped it. My Lords, it was lost before I had the Charge of the Army; I had nothing to do in the business, nor am I to give any Account of it; nor is any thing proved.
And, as to the Defeat at Newburn, you yet fight one Article with another, methinks, in that too; for, I am charged to be the Man that delivered up Newcastle, and yet, all the world knows, that nothing could save it from being lost, but the taking away from the Scots the Passges at that time: So, that I should use all Means to prevent Men from doing that, which I meant to do for them, is very strange to me. Here is no Probability, and certainly little Truth in the whole business, as concerning my Consederating with the Scots, either for the one or the other.
And so, my Lords, I am come to the End of these XXVIII Articles, that were for my further Impeachment; I have gone over them all: And, out of these, now there remains that other Second Treason, That I should be guilty of endeavouring to subvert the Fundamental Laws of the Land, in the first of those Seven Articles.
My Lords, That those should now be Treason together, that are not Treason in any one part, and accumulatively to come upon me in that kind; and, where one will not do it of it self, yet woven up with others, it shall do it; Under favour, may Lords, I do not conceive that there is either Statute-Law, or Common-Law, that hath declared this, endeavouring to subvert the Fundamental Laws, to be High-Treason.
I say, neither Statutes-Law, nor Common-Law Written, that I could hear of; and, I have been as diligent to enquire of it as I could be: And, your Lordships will believe I had reason so to do. And sure, it is a very hard thing, I should here be question'd for my Life arid Honour, upon a Law that is not Extant, that Cannot be Shewed. There is a Rule that I have read out of my Lord Coke, Non apparentibus & non existentibus eadem est Ratio.
Jesu! My Lords, Where hath this Fire lay'n all this while, so many hundred Years together, that no Smoak should appear till it burst out now, to consume me and my Children? Hard it is, and extreme hard, in my Opinion, that a Punishment should precede the Promulgation of a Law; that I should be Punished by a Law subsequent to the Act done. I most humbly beseech your Lordships, take that into Consideration; for, certainly, it were better a great deal to live under no Law, but the Will of Man, and Conform our selves in Human Wisdom, as well as we could, and to comply with that Will, than to live under the Protection of a Law, as we think, and then a Law should be made to Punish us, for a Crime precedent to the Law: then, I conceive, no Man living could be safe, if that should be admitted.
My Lords, it is hard, in another respect, that there should be no Tokens set upon this Offence, by which we may know it; no manner of Token given; no Admonition by which we might be aware of it. If I pass down the Thames in a Boat, and Run and Split my self upon an Anchor, if there be not a Buoy to give me Warning, the Party shall give me Damages; but, if it be Marked out, then it is at my own Peril. Now, my Lords, Where is the Mark set upon this Crime? Where is the Token by which I should discover? If it be not Marked, if it lie under-Water, and not above, there is no Human Prudence can prevent the Destruction of a Man Presently and Instantly. Let us then lay aside all that is Human Wisdom, let us rely only upon Divine Revelation; for certainly, nothing else can preserve us, if you will Condemn us before you tell us where the Fault is, that we may avoid it.
My Lords, may your Lordships be pleased to have that regard to the Peerage of England, as never to suffer your selves to be put upon those Moot-Points, upon such Constructions, and Interpretations, and Strictness of Law, as these are, when the Law is not clear nor known: If there must be a Trial of Wits, I do most humbly beseech your Lordships to consider, that the Subject may be of something else, than of your Lives and your Honours.
My Lords, it will be likewise, under favour, (as I humbly conceive) Wisdom and Prudence in your Lordships, for your Selves and Posterities, for the whole Kingdom, to cast from you into the Fire, those Bloody and Mysterious Volumes, of Constructive and Arbitrary Treasons, and to betake your selves to the Plain Letter of the Statute, that tells you where the Crime is, that so you may avoid it; and let us not, my Lords, be ambitious to be more Learned in those killing Arts, than our Fore-Fathers were before us.
My Lords, It is now full Two hundred and forty Years since any Man ever was Touch'd, to this Height, upon this Crime, before my self: We have lived, my Lords, happily to our selves at Home, we have lived Gloriously Abroad to the World; let us be Content with that which our Fathers left us; and let us not awake those sleepy Lyons to our own Destruction, by ratling up of a company of Records, that have lain for so many Ages by the Wall, forgotten, or neglected
My Lords, There is this that troubles me extremely, left it should be my Misfortune, to all the rest, (for my other Sins, not for my Treasons) that my Precedent should be of that Disadvantage (as this will be, I fear, in the Consequence of it) upon the whole Kingdom
My Lords, I beseech you therefore, that you will be pleased seriously to consider it, and let my particular Case be so looked upon, as that you do not, through me, wound the Interest of the Commonwealth: For, howsoever those Gentlemen at the Bar say, They Speak for the Commonwealth, and they believe so; yet (under favour) in this Particular, I believe I Speak for the Commonwealth too; and, that the Inconveniencies and Miseries that will follow upon this, will be such, as it will come, within a few Years, to that which is express'd in the Statute of Henry the Fourth, It will be of such a Condition, that no Man shall know what to do, or what to say.
Do not, my Lords, put greater Difficulty upon the Ministers of State, than that with Chearfulness they may Serve the King and the State; for if you will Examine them by every Grain, or every little Weight, it will be so heavy, that the Publick Affairs of the Kingdom will be left waste, and no Man will meddle with them, that hath Wisdom, and Honour, and Fortune to lose.
My Lords, I have now troubled your Lordships a great deal longer than I should have done; were it not for the Interest of those Pledges that a Saint in Heaven left me, I would be loth my Lords — [Here his Weeping stopt him:] What I forfeit for my self, it is nothing; but, I confess, that my Indiscretion should forfeit for them, it wounds me very deeply. You will be pleased to pardon my Infirmity; something I should have said, but I fee I shall not be able, and therefore I will leave it.
And now, my Lords, for my Self, I thank God I have been, by his good Blessing towards me, taught, That the Afflictions of this present Life, are not to be compared with that Eternal Weight of Glory that shall be Revealed for us hereafter: And so, my Lords, ev'n so, with all Humility, and with all Tranquility of Mind, I do submit my self clearly and freely to your Judgments; and, whether that Righteous Judgment shall be to Life, or to Death,