The Seventh Day. Monday, March 29. 1641.
The Sixth Article.
That the said Earl of Strafford, without any Legal Proceedings, and upon a Paper-Petition of Richard Rolstone, did cause the said Lord Mountnorris to be disseized and put out of possession of his Freehold, and Inheritance of his Mannor of Tymore in the Country of Armagh, in the Kingdom of Ireland, the said Lord Mountnorris having been 18 Years before in quiet Possession thereof.
Mr. Glyn opened the Sixth Article, setting forth the Execution of an Arbitrary Power by the Earl of Strafford, contrary to Law, in point of the Estates of His Majesties Subjects, by dissieizing and putting the Lord Mountnorris, a Peer, out of Possession of Lands of 200l. a Year, which he had possessed 18 Years before, on a Paper-Petition, without any Rules of Justice, during the said Lord Mountnorris his Imprisonment, contrary to an Act of Parliament read the other day, to King James his Instructions, to the directions of His Majesties Proclamation, and the Rules of proceeding in the Kingdom of Ireland.
The Decree made in the Cause betwixt Rolstone and my Lord Mountnorris was first offered, the Manager observing, that it was nothing to the matter, whether the Decree were just or unjust, and that it never depended in the Chancery, as is set forth in his Answer.
Thomas Little a Witness.
Thomas Little, the Lord of Strafford's Secretary, being sworn, attested that the Copy produced was under his own hand.
E. of Strafford.
And here my Lord of Strafford informed their Lordships, that upon his Defence he would ask Mr. Little some questions, desiring their Lordships to remember that he is upon his Oath.
The Decree was read Dated 28. July. 1637. whereby for the Reasons therein set forth, and with the assistance of the Lord Chief Justice of the Common Pleas; It was, among other things, Ordered, That Henry Rolston should be put into quiet possession of certain Lands therein mentioned.
Lord Mountnorris a Witness.
Lord Mountnorris being Examined, Whether he was put out of possession by Virtue of that Order, and how long he had Possession of the Lands?
He Answered, He was in quiet and peaceable Possession from May 20, till he was put out by my Lord of Strafford's Warrant, August 29. 1637. as was written to him from an Agent that was there from the delivery of the Warrant to the Sheriff. That he was all the while the business was in prosecution, till his coming into England, a little before his putting out of possession, in prison, under restraint, for not suing out his Pardon; upon the Sentence of the Council of War.
Mr. Anslow a Witness.
Mr. Anslow sworn and interrogated to the same purpose.
Answered, That to my Lord Mountnorris's possession of the Lands, he can say only by seeing the Accounts passed by former Receivers, and the Patent my Lord Mountnorris had of the Land; but for his being put out of the possession by the Order, he found when he was left in Ireland, about a year and half ago he was put out of possession by an Order of my Lord of Strafford, and that he being there, could have no Rents paid, Henry Rolston's Son being in possession, the Father being dead.
Being asked, Whether a Petition was not preferred for liberty to proceed at Law ?
He Answered, It was in his own behalf, for the Land was estated on him by his Father: And that he the Deponent being to pass his Land on the Commission of Grace, Rolston Petitioned for it himself; and therefore he the Deponent Petitioned it might be hindred to pass, and that he might have his Right tried legally, but he could get no Answer; the Commissioners saying, They sat not there to question any Lords Estate.
The Manager observed this to be the assuming of an Arbitrary Power of Jurisdiction, in a case of Land, without any former President; wherein, if he be justifiable, he may as well, riding on the High-way, determine any mans Estate; and added, That if my Lord of Strafford insist on this, they shall prove it not only in this, but in twenty more of this condition on the Reply.
E. of Strafford.
My Lord of Strafford desiring they might bring their Proofs at once.
The Manager Answered, That they should prove an Act of the same. Nature, but of a higher strain, concerning a Peer of the Realm (for he chased such Lions.)
E. of Strafford.
But my Lord of Strafford desiring they might be kept to that within the Charge.
His Lordship began his Defense in substance as followeth:
E. of Strafford.
I confess I am Charged with Treason by the Honourable House of Commons, and that is my greatest grief; for if it were not an Arrow sent out of that Quiver, it would not be so heavy as it is; but as it comes from them it pierces my heart through; not with Guilt, yet with Grief, that in my Grey hairs I should be mis-understood by the Compannions of my Youth, with whom I have formerly spent so much time.
If the Decree be just (as it is most just) I hope it will go very far in the Case.
That whereas it is said it was against a Peer, Justice excepts not persons and I know no Priviledge Peers have in point of possession of Land above common persons.
The Act of Parliament read the other day, against which, it is supposed to be made, I conceive it to be the Statute in H. 6. time, and desire your Lordships to remember, that by the last words, the King's Prerogative is saved.
I have done nothing contrary to the Instructions in King James his time, nor the Proclamation, nor any thing, but according to the Power of former Deputies.
I acknowledge my Answer is mistaken, in saying, the Cause depended formerly in the Chancery, which was not out of cunning but a meer failing of memory.
I desire my Commission may be read, whereby it will appear I had Power to do that for which I am now questioned.
The Commission was read, whereby he had Authority to proceed Secundum consuetudines terræ; &c.
From whence he observed, That having so great a Power, the receiving of a Petition, and giving Relief to a poor body, should not be so great a fault, being at the most, but the exceeding of a, Jurisdiction, but by no Construction can be made Treason.
That yet this is no exceeding of a Jurisdiction, but was a Power always in the Deputies before his time, and warranted.
To prove it, he produced the printed Instructions, whereby the Deputy and Council-Table are forbid to meddle with common businesses within Cognizance of ordinary Courts, nor alter possession of Land, nor make private Orders, or Hearings, nor make Injunctions for staying Suits in any Civil Cause.
Which shews, that that course was in practise before the Instructions took it away, (viz.) to alter possessions, to grant Injunctions, &c. To prove by Witnesses, that this Power was always exercised by the Deputy in the nature of a Court of Requests in England.
He offered my Lord Primate of Armagh his Deposition, being taken, by reason of his sickness, by vertue of an Order of their Lordships; but for that the Commons had the liberty by that Order to cross-examine, and yet had no notice thereof, or of the Depositions so taken; the using of these Depositions was waved, after much debate, till the next day, in the mean time the Commons may cross-examine.
Henry Dillon asked, Whether Petitions have been usually preferred to the Deputies, and in how many Governors time he hath known it to be so, That these Paper-Peitions have been preferred.
He Answered, His Father had a Lease during his own life and his Wives, and the longer liver of them, and fifteen Years after to his Executors and Administrators, which he the said Henry Dillon (being come to full Age) enquired into; and looking upon his Fathers Evidences, he found a business there depending between Sir Patrik Plaintiff, and his Father Defendant, before my Lord Chichester, in the Time of his Government; and he found several Orders under my Lord Chichester's Hand in that Cause, that he being Executor to Maurice Fitzgerard, and having occasion to peruse his Writings, to see what Debts were due to him, he found among them several Orders of my Lord Grandison's Time, one Petition of Fitzgerard, as well for Debts as for Land. That in the time of my Lord Faukland he observ'd, and hath seen several Orders made by his Lordship, and one made on behalf of his Sister Mary Dillon, for a Portion paid by his Father, and he recovered the Portion, and received the Money.
That in the Time of my Lord of Corke and Lord of Elyes being Governors, there was a Petition preferred against him, by my Lord of Longford, for a Horse taken by him the said Henry Dillon, as Sheriff of the County of Longford, pretending it to be a stray, and belonging to His Majesty, and triable, as he conceived, in the Exchequer, and that he did appear, but my Lord of Longford died before Examination.
Being asked, Whether the Causes were before the Deputy alone, or the Deputy and Council.
He Answered, That in the Time of my Lord Chichester he knows not whether they were before the Deputy alone, but he found only my Lord Chichester's Hand to the Orders. In my Lord Grandison's Time he saw his Hand only, but where the Causes depended he knows not.
But that in my Lord Faukland's Time, was only by my Lord-Deputy: That of my Lord Corke's and Lord of Ely's, he remembers not whether it was before their Lordships and the Council; but the Way he was called to Answer was by Pursevant, before he had Notice of the Suit.
Being asked, Whether Examinations were taken.
He Answered, That in the Case of his Sister, he conceives there were Examinations taken upon Oath.
And that in the Cause before my Lord of Corke and Lord of Ely the Attachment was under the Hands of the two Lords Justices alone.
Being asked on the Managers Motion, Whether he hath any of those Orders to shew.
He Answered, He knows not whether those in my Lord Chichester's Time were deliver'd to my Lord Dun, on composing the Difference, or in his Custody.
Robert Lord Dillon was asked, What he heard my Lord Grandison say in Maintenance of this Judicature by my Lord-Deputy alone.
He Answered, that he heard my Lord Grandison himself say nothing of it, but he heard by others, that he pretended to it as a Judicature be longing to the Sword.
Being asked what he hath known of the practice of this Court before the Lord Deputy alone, before how many Deputies; and upon what occasions:
He Answered, That he hath seen divers Orders of Deputies, or Petitions, singly signed by themselves, and no other hand but the Deputies.
Being asked in how many Deputies times;
He Answered, That he hath seen of my Lord Faulkland, and Lord Grandison's, and to his best remembrance (but he will not peremptorily say it) of my Lord Chichesters.
Being asked of the Earle Bathes motion, whether he hath known them to proceed upon Petition for matters of Land.
He Answered, He never knew any.
Being asked on Mr. Maynards motion, whether they were Orders of Reference, or by consent;
He Answered, He remembers one more particularly, and it was an Order of my Lord Faulklands, of reference to my Lord Angier, that was Master of the Rolls; and was for a Debt.
Being asked on my Lord Straffords motion, whether Sir Paul Davis Clerk of the Council, do not ordinarily examine on Oath; and thereupon Causes come to publication.
He Answered, The Clerk of the Council hath a Commission for taking Oath, and wheresoever the Deputy requires, he is to take Oath; but whether de facto he took Oath on those former Orders, he remembers not. And whether he takes Oath in things determined by the Deputy alone, he knows nothing of it. But it is the common course of proceedings, when there is an Order for an Attachment, an Oath is taken of course, that the party is in contempt.
Being asked on Mr. Whitlocks motion, how anciently Commission hath been granted to the Clerk of the Council to take an Oath.
He Answered, he doth not know; but knoweth, that since he had the Honour to sit at the Board, they have had them, and that is 12 or 13 years.
Being asked whether he hath known in matters of Equity, or Title of Land, any determination by any other Deputy alone; And whether my Lord of Strafford hath not done it in many Cases:
He answered to the first, That he doth not remember any particular Case of it: To the second, That he never knew my Lord of Strafford, with his Remembrance, medle with matters of Law; but for matters of Equity, to his Remembrance he hath.
And this my Lord of Strafford confessed, this being in the Court of Requests is to the Chanchery.
To prove that the Clerks of the Council have power to examine on Oath, an Order was read to the Lord Chancellor from the Lord Faulkland, for drawing up a Commission to enable Sir William Usher for taking Affidavits, and ministring Oaths in all Causes wherein the Lord Deputy or the Board, &c.
E. of strafford.
His Lordship came to shew that the Instructions were so much mistaken, they were never observed by the Deputy, Judges of Assize, Presidents of Provincial, &c. nor could the poor Irish be debarred from Remedy on Petitions, without occasioning an universal out-cry, being not acquainted with Legal Forms, and beggarly; and the Man that came against my Lord Mountnorris, was in forma Pauperis.
To prove this, my Lord of Strafford's Book of Entries was mention'd and an Order of my Lord Faukland' s made in June1629. which is after, the Instructions being in 1622. and being affirmed by my Lord Wilmott to be under my Lord Faukland' s Hand, it was read:
Containing a Petition, which set forth the Petitioners Disturbance in his Possession of certain Lands by Sir James Fitzgerard, contrary to a forformer Order, and assaulting and beating the Petitioner and his Tenants, &c.
And my Lord of Faukland' s Warrant thereupon for Sir James his Appearance, to Answer the Contempt; and for the Sheriffs keeping the Petitioner in Possession.
He produced another Order of my Lord of Faukland's August 20. 1626 being for Attaching divers Persons that had not paid Provisions for the Deputies Houshold.
He produced another Order made on Walter Dennots Petition, October 1624. for Direction to certain Debtors to pay some Monies due.
Being a Warrant to examine the Truth of the Plaintiffs Demands; and a Command to the Debtors to pay what's due, or give better Security, else to appear, to shew cause to the contrary; the same being grounded upon Letters out of England in the Petitioners Behalf.
He produced an Order of my Lord of Corke, and Lord of Ely, affirm'd by the Lord Corke to be under his Hand, on Petition of Henry Jawant: The Order being a Reference to the Lord Primate; and to take Order for the Petitioners Relief as by a former Order of Reference was directed.
E. of strafford.
And whereas it may be objected that these were in Church Causes, or Plantation Causes, His Lordship observ'd, That these Orders were made by the Deputy and Justices alone, without the Council, though by the Instructions, the Deputy ought not to meddle with such Causes, without the Council.
He then offer'd to shew, that this Practice of hearing Business on Paper Petitions, is used by the Presidents in their Provincial Courts, and by the Judges in their Circuits, by Commissions from the Deputy; whence his Lordship observ'd, That if the Deputies have Power to Authorize, they have likewise Power to Execute; and he offer'd to this Purpose, my Lord Ranulagh's Answer at Council-Board, under Mr. Mewtis's Hand.
Here the Manager observ'd, That my Lord of Strafford is charged with Exorbitant using of the Law, and cannot be justified with others breaking of the Law; besides, it is neither in the Charge, nor in his Answer.
My Lord of Strafford answered, That he offered this only to shew, that he is no Innovator of the Law, further than others before him; and to shew that the Instructions were mistaken in that point, and could not be observed, nor can they without much detriment to the Common-wealth, yea, that they have broken them, and that he only hath observed them.
And so this matter was laid aside, as not fully pertinent to the Charge.
E. of Strafford.
His Lordship in the next place observed, That as the Case stands with the Government and People of Ireland, there is a necessity that this Power that hath been thus at all times in the Deputies, should still remain there, for relief of the poorer sort of People, who are not able to undergo the long Circuit of Legal Proceedings, nor are acquainted with them; and must be drawn to it by Degrees; and that the Plaintiff in this Cause was a Suitor in forma pauperis; that it is a great assistance to the Merchants, where they may recover their Debts suddenly, and not lose their occasions, and their benefit by increase of Trade; That some Reports being raised, as if he had neglected the poorer sort of People, and not given Redress as former Deputies have done, he advertised it over to His Majesty, and fully informed Him of the Proceedings and Instructions, and desired His Majesties Pleasure; which was declared by a Letter under His Majesties Signet, received October 6. the Ninth year of the King, and to himself directed, which was read; Wherein recital is made of the Instructions, 1622. and particularly in the point of Judicature by the Deputies, That it is necessary to uphold such Power, especially for relief of the poorer sort there, as formerly had been used; And Power is thereby to him given, (notwithstanding any former Directions, Proclamation, or Restraint) to hear and determine such Causes as shall be brought before him, according to the Power of former Deputies, yet not to meddle with Titles of Free-hold, except in Cases of Equity; but to refer Title of Free-hold to its proper Judicature, and not to hear Causes where there is Priority in other Courts, unless in case of Appeal for lack of Justice, after due Obedience: Power likewise (the said Rules observed) to call before him any person complained of, and therein to make such Order and Decree as shall stand with Justice, and to cause the same to be put in Execution. Dated October 5. 9 Car.
He then offered the first Decree in the Cause to be read, that had formerly been read, having relation to this, bearing date May 23. 1636.
And the same was read, being Signed Wentworth. Gerard Lowther, &c.
E. of Strafford.
Whence his Lordship observed, That the Order was made for Relief of a poor man, where my Lord of Mountnorris had by Violence, and extream hard pressure, possest himself Lands worth 200l. a year, never paying out of his Purse above 30l. the rest arising on a Letter procured for Sawing Mills, and by interest at above 20 in the hundred; wherein his Lordship had the Assistance of two Reverend and Learned Judges, the Chancellor that now is, and Sir Gerard Lowther, That the Decree is in every part just and equitable; and if he had not given relief, he had been justly censured, That the party is now in Town, and means to complain, and Sue for 600l. more than he is yet allowed.
The Commitee declared, they insist not on the merit of the Cause, as not being material.
And so my Lord of Strafford observed, That he stands justified by the Kings Letter, which makes things differ from what they did formerly, and shew, that the Power was there before, and is now restored.
His Lordship further added, that his Practice in exercising Jurisdiction, was conformable to that Letter, viz. That he medled not with Title of Land triable at Law, nor with Causes which had priority of Suit in other Courts; That he referred the business of the Provincial Courts to these Courts, and many businesses to the Judges of Assize, and none determined by him, but upon full Hearing and Assistance of the Judges.
And whereas it is said, my Lord Mountnorris was kept in Prison by reason of not Suing out the Pardon on his Sentence pronounced by the Council of War, I will make it appear it was for Contempts, in refusing to answer a Bill Exhibited against him on the Kings behalf, in the Castle-Chamber.
Mr. Slingsby being asked touching that point;
Answered, That he did constantly wait on my Lord to the Castle Chamber, and there heard the Information of the Kings Attorney against my Lord Mountnorris read, and my Lord Mountnorris was called to Answer it several times, and was committed to Prison for not Answering it; but he cannot precisely speak to the time, but he thinks he was left in Prison upon that, till my Lords going into England.
Sir Adam Loftus asked touching the same point, did first make his humble Suit that he might not be Examined in any Cause concerning my Lord Mountnorris, for some reasons inducing him thereunto.
Which my Lord of Strafford said was, because Sir Adam succeeded my Lord Mountnorris in the place of Vice-Treasurer; and being required (if that were all) to speak notwithstanding:
He Answered, That he conceives he was Committed for not answering the Information; but the precise day of his Commitment, and the time how long, he cannot well remember.
Being asked, whether he was not brought before the Deputy a day or two before he came away, and refused to Answer, and was thereupon Committed?
He Answered, That it was true.
Being asked on the Managers motion, whether he was not Committed on the old Sentence, and remained in Prison on that?
He Answered, That he doth not know.
E. of Strafford.
If I had time to produce the Orders of the Castle-Chamber, I could make it appear when my Lord Mountnorris was Committed, and how long he continued so; but he was Committed for that Contempt, and remained Committed six Months, I think, before he would Answer; which I would not speak if it were not true.
The Lord Dillon called, and asked to the same purpose:
He Answered, That the Judges of the Castle-Chamber are by Commission, and that he is not of that Commission. That the Deputy, or
Chief Governour, calls by way of Assistance, such as he pleases. That he heard at Council-Board, my Lord Mountnorris was Committed for a Contempt, in not answering in the Star-Chamber; but when it began, or how long, he knows not.
E. of Strafford.
In Execution of this Jurisdiction, I had no private Advantage to myself, nothing but Trouble was gained by it, no new thing was done, but such as was formerly by all the Chief Governors there; and such as I had special Warrant for from His Majesty. I have observed the Rules that guide others in Chancery, and other Courts of Equity, and the Judges in their Circuits: Therefore it can be no Subversion of the Laws; for the same thing done by others hath been Legally done, it differs only in respect of Place, being before myself; and so cannot be Treason: And though it might be Illegal here, yet it is according to the Laws and Customs of Ireland, by which I am to be judged for all things there done. And the same is done by the Presidents of the North, and of Wales; who did familiarly receive Petitions from Poor people that cannot seek Remedy by a Legal course; and yet it is not Treason in England: And it cannot sink into my Understanding, how the Enlargement of a Jurisdiction should be strained to High Treason; specially being warranted by ancient Practice, and modern Authority, being only according to the nature of a Court of Requests, and not entrenching on the Jurisdiction of Law Courts. And so I hope this will never rise up in judgment against me as Treason, either in itself, or by way of Application.
The Manager began his Reply, in substance as followeth:
Whereas my Lord of Strafford says, This is not Treason; this is the burden of his Song: But this is one of the Particulars that prove his Design to subvert the fundamental Laws of both Kingdoms; He will not acknowledge acumulative Treason, he must have a Treason over Shooes and Boots; yet is he will look on it all together, he shall see the horridness of it, and it will prove as great a Treason as ever was presented to a House of Parliament.
The Manager opened the Article, and said, they dispute not whether if it had been done in Chancery, or other Courts, it had been well done; but it is done by him without Rule of Law; and hereupon he hath drawn to himself an Arbitrary Power.
Whereas my Lord of Strafford, to take from himself the Act of Parliament 28 H. 6 enjoyning, That Causes should be referred to the proper Courts, urged the last Words, [Saving the Kings Prerogative] We do observe, That when he is Charged with an Exorbitant proceeding, to the destruction of the Law; he flies to the Kings Prerogative for shelter.
That to mention the Kings Prerogative in the face of the Peers of the Realm, and in presence of all the Commons, when he is charged with an Exorbitant proceeding, to the Subversion of the Laws, is but to cast a Scandal upon the Kings Prerogative, and to make it have a worse Relish; whereas the Law supports the Kings Prerogative, and the Subject supports it.
When his Answer is charged not to be according to Truth, he casts a Gloss upon it, from the easiness of his being mistaken; whereas, when he
is able to justifie it, he glories in it, as that whereto he must stand or fall.
That the Letters Patents which my Lord of Strafford produces, rise in Judgment against him; for the King hath trusted him ad custodiendas leges Regni, and therefore if he hath broken through them, he hath broken his Trust.
He says, It is strange the exceeding of Jurisdiction should be laid to his charge as Treason; He is charged with the Subverting of the Law, and that's more than the Exceeding of a Power. He read the Instructions to warrant his Act; and by these the Commons desire to be judged, whether they do not in the Negative say, there shall be no such Proceeding before the Deputy; and yet he will imply, there have been Proceedings to the contrary, which we cannot fee.
He justifies his Proceedings by former Deputies, and hath produced Henry Dillon, who hath seen several Proceedings in Sir Henry Bagnalls time, and others, where Orders have been made by the Deputy alone, but the Orders themselves are not brought; whereas is they were looked on, and Consideration had what results out of them, their Lordships would not have suffered them to be read, without Attestation that they were true Copies. But now whether they be entred or no, or what other Proceedings there were, the Witness doth not know; and therefore they are no Evidence, nor in truth ought to be offered: And the Witness being asked what the Orders were, he says, one was a Reference, and whether Witnesses were examined, he says, he doth not know.
He produces my Lord Dillon; and we offer to be adjudged by him; for he says, He knew not any Deputy before my Lord of Strafford, that hath intermeddled with matters of Land, except in Plantation and Church Causes; and this Order is charged to be made by him alone.
He pretends this is a Court, and a Prerogative of the Sword.
We know not whether my Lord of Strafford intends to keep it by Force; but whereas he produceth a Commission for giving Oath to the Clerk of the Council; this Commission needed not if it were a Court, for the Court itself would give an Oath; and whereas he mentions it to be in the nature of the Court of Requests, we would gladly know, whether there be not Authority in the Judge to give an Oath.
He produces several Orders in my Lord of Faulkland's time.
The first is expressly for Plantation Lands; and there was no determination in Equity, or otherwise.
The second Order he produced in my Lord Faulklana's time, was a meer Green-cloth Case, and nothing to this Purpose.
The third Order produced, was in a Business recommended from England to my Lord of Faulkland, and such Causes as are out of the Instructions excepted.
The Order in the Lord of Cork's time, was but an Order of Reference to the Archbishop; and a Reference is no Determination, a private Person may do as much.
So that we observe, nothing hath been offered to prove, that a Deputy alone hath determined matter of possession; and in this we rest with Confidence, That none ever did before himself; and shall therefore desire the Examination of some Privy-Counsellors.
He produced a Letter from His Majesty to proceed in such Causes: But if by Law it ought not to be, then a Letter, and Authority derived thereby, is void, and warrants not Proceeding in the Subject; the Letter was as just
as might be, being obtained on his Information, to whose Government and Trust His Majesty had committed the Kingdom; and if he mis-inform, he must Answer it. And the Letter is written with caution, giving Authority to proceed in matter of Equity, as former Deputies had done; and if it be not proved that his Predecessors had used such Proceedings, where is his Authority?
He says, he hath proceeded according to the direction of the Kings Letter; that is, he never determined Title of Land but in Equity; and when such Causes have come to him, he hath referred them to Law, which we are forced to disprove that, by offering it under his own hand, that whereas a Nobleman of the Realm, my Lord of Baltirglas, had mortgaged to Sir Robert Parkhurst, for 3000l. Land of a 1000l. year: when Sir Robert had Title at Law, and might as Mortgagor, have entred after the day past, Sir Robert prefers a Petition to my Lord of Strafford himself, and he without the Council, determines the Possession, and takes it from the Mortgagee, and afterwards he purchases the Lands himself, and letts them for 680 and odd pounds a year.
For my Lord Mountnorris his Imprisonment, the Manager said, That when his distressed Lady, the Mother of Twelve Children, Petitioned His Majesty, declaring the great Distress her Husband suffered by the Tyrannical Power exercised over them; His Majesty like a Gracious Prince, referred it to the consideration of the Deputy, That on submission he should deliver him out of Prison. But when the poor Lady presented it with Tears in her Eyes, and cast herself at his Feet, though there was a Reference from His Majesty; yet he,. that would at another time shelter himself under the King Prerogative, refuses to give so much Respect as to entertain it; and when the eldest Son came, refused to accept it.
Another of the Managers added, That whereas there is a Restriction in the King Letter, that the Earl of Strafford should not meddle with any thing in other Courts, they would shew, that after two Decrees in a Court, my Lord hath on a Petition, Decreed quite contrary; and it was no Beggars Causes, but a Knights, and 5000l. value: That to the Kings Letter they will give all Reverence.
But if my Lord of Strafford had found such a constant Practice to be proved, he needed no Letter to set up the Jurisdiction that was in him before; That this Letter under the Signet, can give no Countenance against an Act of Parliament; which Orders, That the Deputy shall not meddle with Causes, but remit them to their proper Courts; and no other Exposition can be given of the saving of the Kings Prerogative, but only a reservation of His Liberty to Sue in any Courts.
And for him to seek by mis-information, to procure a Letter from His Majesty, for a Power not warrantable by Law, he conceives it an Abuse of His Majesty, and that makes his Fault the greater; and he instanced in the Marquess of Dublin, who for procuring Letters Patents under the Great Seal, to exercise a Power against Law, was complained of in Parliament, and had Judgment for it, among other things, of High Treason.
They proceeded to Proof. And first,
E. of Corke a Witness.
The Earl of Corke being asked, whether before my Lord of Straffords time, he hath known the Deputy, or Justice alone, determine any matter of Land, in Equity or otherwise;
He Answered, He remembers not any, except in cases of the Church. and Plantation.
Lord Ranulagh a Witness.
The Lord Ranalagh being asked to that point,
Answered, Never any to his knowledge; having been of the Table two and twenty years.
S. Adam Loftus a Witness.
Sir Adam Loftus being asked to the same point,
Answered, He remembers not any; having been a Privy-Counsellor twenty years.
Lord mountnorris a Witness.
The Lord Mountnorris being asked to the point,
Answered, He never knew any, having been a Privy-Counsellor since 14 Jac. and lived in Ireland 38 years; That he was there all the time of my Lord Chichester, or very near; and was so acquainted with his proceedings, that he dare engage himself for all he is worth, that the Lord Chichester never put any such Order under his hand.
Earle of Bath a Witness.
The Earl of Bath Sworn, and asked to that point,
Answered, That he hath often heard the Deputy in cases of Debt, for relief of poor men, hath proceeded alone; but in cases of Land he never heard of any.
To take off Henry Dillon' s Testimony, the Manager alledged, That he had been Sentenced at the Council-Board, for speaking untruths.
E. of Strafford.
My Lord of Strafford desired the Exception might not be made; some Exceptions by him made to Witnesses against him, being not admitted; and that there might be unum pondus, una Mensura.
The Manager Answered, In eodem genere Mali. This Exception is not for Extortion, or collateral Matters, but for Perjury.
Thereupon his Acknowledgment was read; wherein he confesses he had highly transgressed against the Honour of His Majesty and the Board, in presuming to declare apparent untruths.
And that such an Acknowledgment was made, was testified by Sir Adam Loftus, and likewise by the Lord Dillon, who shewed their Lordships the occasion thereof.
To the matter of my Lord Mountnorris his Imprisonment, it was offered under my Lord of Straffords own hand, to shew that it was partly upon the Sentence, December 24. 1636.
My Lord of Strafford not denying it to be his hand, it was read, being a Reference upon my Lord Mountnorris his Petition, and in substance as followeth.
That for the Petitioners restraint more than twelve months, he hath no body, to blame but himself, that hath all that space lain under a deserved censure of the Council of War, and stood in Contempts, and trifled with the Court of Castle-Chamber.
That His Majesties removal of the Sentence hath been often signified, but never sued forth; That the Petitioner did to the same effect, Petition the Lord Deputy in May last, and; therefore all the Answer that for the present can be given, is, that his most gracious Pardon seeks no man, nor can His Majesty remit all of that Sentence to be applied to the Petitioners benefit, till by his humble suit he procured His Majesty Pardons under the Great Seal, &c. which taking the usual way, and humbly acknowledging the justness of that Sentence, he may have, &c.
A Petition was then read, directed to the Earl of Strafford from my Lord Mountnorris.
Praying a Warrant for a Pardon under the Great Seal, occording to the Law and the Purport of His Majesties directions; if his Lordship shall conceive His Majesties Letters (on which the Lord Mountnorris relied as sufficient) did not amount to a Legal Pardon.
Then was read my Lord of Strafford's Answer.
Dublin, January 30. 1636. When the Petitioner shall prefer his Petition for the said Pardon, acknowledging the justness of the Sentence pronounced against him by the Council of War, we shall take his Request into our further consideration.
Whence one of the Managers observed, That the King directs a Pardon to be drawn; and till the Sentence be acknowledged to be just, no consideration shall be taken, and that the Preamble of the Pardon recites as much; and he would not suffer it to be Sealed till this acknowledgment passed.
Then was produced the Lady Mountnorris her Petition to His Majesty, referred to the Lord Strafford.
Mr. Anslowe a Witness.
Mr. Anslowe Sworn, attested the truth of the Copy: and it was read.
Setting forth her Sorrow on behalf of her Husband, suffering in Honour, Health, and Imprisonment, for a word mis-interpreted, and still pursued in the Castle-Chamber; and humbly praying a Command for his coming into England, &c.
His Majesties Reference to my Lord of Strafford, July 18. 1636.
His Majesty is pleased, That on such a Submission as the Lord Deputy shall approve of; he shall have his Liberty to come into England; wherein the Lord Deputy is to take Notice, and to give Order therein accordingly.
Mr. Anslowe being asked, whether this was brought to the Deputy by the Lady Mountnorris; and whether he did not reject it:
He Answered, That he was by when my Lady Mountnorris presented the Petition, she was humbly on her Knees to desire my Lord of Strafford to receive it: And he refused absolutely to receive it from her.
They then produced the Order in a Cross Suit, int. Robert Parkhurst Plaintiff, and the Lord Baltinglasse, & al. Defendants, Et e contra.
The Order was read, whereby certain Lands for 3000l. paid at several times to the Viscount, and 300l. more to be paid afterward, were settled with Sir Robert Parkhurst.
William Brettergh a Witness.
William Brettergh Sworn, was Interrogated touching my Lord Baltinglasse his Possession of the said Lands, and his dispossessing thereof.
He Answered, That he was Sollicitor for prosecuting of this Cause, and made Defence of it in behalf of my Lord of Baltinglasse, being then in England: But at the time of the Decree, his Lordship was come over; That his Lordship never made Answer to it; but when the Cause came to hearing, my Lord of Strafford ordered the Possession of the Land against my Lord Baltinglasse; and the Possession before was in one Grimble, who was Tenant. And that he could speak many other things concerning the carriage of it.
Mr. Glyn desired the Witness might be examined touching my Lord of Straffords purchase of those Lands; and offered the Articles where by my Lord of Strafford leased the Land for 28 years, and at 666l. per annum.
E. of Strafford.
My Lord of Strafford confest thereupon, that he had it, but it was in Trust for a Noble Person.
The Manager observed, That whether it was for a Friend, or himself, it is equal; for a Man will do a courtesie for his Friend, as soon as for himself; And so he concluded his Reply, hoping that their Lordships were satisfied, that he hath introduced an Innovation; and being so, that he hath exercised a Tyrannical Power over the Estates of His Majesties Subjects.
To such parts thereof as was new matter, my Lord of Strafford replied, in substance as followeth.
E. of Straffords Defence.
I desire that these matters that come on me suddenly, and being no part of my Charge, may not stick with Your Lordships.
In the business of my Lord of Baltinglasse, I remember little, only that my Lord Baltinglasse had forfeited his Estate to Sir Robert Parkhurst, who had a clear and free Estate in the Land, by Fine and Recovery, and divers Conveyances; The Lord Baltinglasse desired me to take the hearing of the Cause, to see if I could procure from Sir Robert Parkhurst, a further sum of Money: The Order was made with both their likings; and my Lord Baltinglasse was content to perfect the whole Estate. Sir Robert Parkhurst was in Possession at that time, not the Lord Baltinglasse; That seeing no cause to relieve him in Equity, they left him to seek Relief in other places. That afterwards an Agreement was made, 300l. received by the Lord Baltinglasse; and after 100l. more got to
be given, and so there was a full Conveyance and Acquittance from Father and Son, That himself hath no Interest in it, but only of Trust to anothers Use.
For that which was offered against the Jurisdiction; the Proofs are Negative, and contradict not what I have offered; And if I might shew my Lord of Faulklands Book of Entries, I could produce as much done by my Lord Faulkland alone, in 1623. Attachments against Body and Goods, Hearings between Parties and Parties, Warrants for Distresses, Warrants to the Sheriff for Possession of Lands, Injunctions to Judges of Assize.
For my Lord Mountnorris his Imprisonment, I desire Your Lordships to observe, that His Majesties Reference is, That I shall not set him at Liberty without a Submission, so that he may thank himself for his Restraint.
For my Carriage to the Lady Mountnorris at the delivering the Petition, I desire Your Lordships to hear a Witness.
Who being asked to that Purpose,
Answered, That he was present when my Lady Mountnorris was once with my Lord, but knows not whether that were the time in question. It was about 1636. That he was present when her Son delivered one before; which my Lord would receive but her Son would not deliver the Reference, but a Copy, being so Commanded by his Lady Mother.
That when my Lady delivered it on her Knees, my Lord told her, She had done him the greatest Injury she could devise; and that if she had broke his Head, she should have pleased him better.
Being asked, whether my Lord rejected the Petition;
He Answered, That he cannot certainly remember what was done with it; but my Lord said, he could not do any thing on a Copy.
The Lord Viscount Dillon being asked to the same Point,
Answered, He was by when my Lady Mountnorris came to my Lord to the Covent-Garden, with a Petition in her Hand, and kneeled to my Lord, but my Lord desired her to rise, and offering the Petition, he said, he would not meddle with any Petition at that time; That my Lord was going abroad, and led her to her Coach in Civility, but received not the Petition.
E. of Strafford.
My Lord of Strafford professeth, these things be so long past, that he remembers them not well, nor whether she offered a Copy the second time.
The Manager did here observe, That he acknowledged the Civility of my Lord of Strafford in this Point; but there is one Point sticks with him, as higher than any offered, and then their Lordships may think he goes high enough; That there hath been proved my Lord of Straffords Tyrannical Proceedings on the Life and Fortune of my Lord Mountnorris; One step more, the Manager said he had heard off, and that was his Soul, and that sticks with him more than any thing else, He kept him in Prison till he should acknowledge the justness of a Sentence, which in his Heart he abhorred, and held njust; That all former Tyrants, when they would proceed against a Man, have found out two false Witnesses; but when a Man shall be made a false Witness against himself, it is much more Tyrannical.
And he wished this Design had kept only in Ireland, and had not come into England, which he hopes shall be so no more.
And so after a short Reply to the two Particulars last mentioned, the Manager closed the 6th Article, conceiving that it remains as was offered, That my Lord of Strafford hath determined things contrary to the Commission and Authority obtained from His Majesty.
The Manager added, That for the present the Commons will pass by the 7th Article, and proceed to the 8th, concerning Arbitrary Power over the Estates of the Kings Subjects; And of that, the last Part, only concerning the Lady Hibbott.
E. of Stafford.
But my Lord of Strafford professing his Disability to endure the Toil; and that he was ready to drop down, in respect of his much sickness and weakness, and desiring their Lordships to turn the Case inward, and to see in the Closet of their own Hearts, if there be not Reason, that being upon his Life, his Honour, and Children, and all he hath, he should not be prest further; and setting forth how the rest of the Day after his going hence, is disposed of.
The House was Adjourned till next Day.