When he had done,* two of the Members, Mr. Glyn and Mr. Pym endeavouring to render him as odious, as it is usually observed from Declamatours, satisfying the Ear of the Auditours, but not their ju∣dicial Censure; for the point came to be this, the Commons are to justifie their Charge by Law upon the matters of Fact, as yet not appearing under the Letter of any Statute of Treason. As for that of the 25 of Edward 3. it came short; but yet it is supplied with this Proviso annexed, that because all particular Treasons could not be then defined, therefore what the Parliament should declare to be Treason •n time to come should be punished as Treason; within which compass they intend to bring him, and that by Bill of Attainder.
The Earl put upon a point of Law, desires Council, which by no means the Commons would assent unto, and notwithstanding all the reason in the world, it was canvased three Days, and at last con∣cluded, Page 398 that his Council should plead such matters as they should be restrained unto.
Saturday the seventeenth of April, the Earl appears with his Council,* Master Lane the Prince's Attourney, Master Gardner Re∣corder of London, Master Loe and Master Lightfoot; Lane argued that the said Statute of 25 Edward 3. was a Declarative Law, and so not to be interpreted as of consequence, equity, or constructi∣on, but by the express Letter onely: that it was a penal Law, and so not to admit of any Constructions or Inferences; for the true nature of penalties enforce the keeping of known Laws, not of conjectural and dubious. And for the Salvo, he affirmed, that in the sixth of Henry 4. the Nobility petitioned the Parliament to li∣mit all Treasons by Statute; in which Parliament Chapter 10. an Act passed thereupon, that the Salvo should be holden repealed in all times to come, nothing to be esteemed Treason, but what was literally contained in the Statute of 25. Edward the third, nor could the rest of the Council speak more then what had been said by Mr. Lane being so sufficient for matters of Law, unless their Lordships would state any other questions to which they were ready to answer, upon which the Court adjourned without prefixing any time of meeting.
The Commons meant it not to meet any more,* the Earl had satisfied all curious observations of his defence, and the Commons knew it well enough; but they resolved to attaint him by Bill, which was debated by the Commons the nineteenth day, and the Earl voted by them guilty of high Treason meerly upon the evidence of Secretary Vane, and his notes, but upon reading the Bill en∣grossed in their house the one and twentieth day, It was hardly canvassed by the Poll; the dissenters being fifty nine and my Lord Digby the most eminent, that urged for him, and yet it passed.
That afternoone, with all expedition it was brought to the Lords, and the four and twentieth day, they were put in minde to fix a day for reading of it, to which they returned answer, that on Munday and Tuesday after they would not fail, being not over harty to do it then, for it was debated by the Lords to be a business of very high concernments, and so perplext as necessarily required a con∣ference with the Common, who put it upon Mr. St. Iohn the Kings Solicitor, to satisfie them, and to justifie the Bill by Law, upon Thursday the nine and twentieth, and to offer reasons enforcing them to this way of proceeding against the Earl, who was ordered to be there present.
And the Commons to shadow the violence of this proceeding with the Earl, they bethought themselves, of some publique affair; and so petition the King.
1. For removing of all Papists from Court.
2. For disarming of them generally throughout the Kingdome.
Page 399 3. For disbanding the Irish Army.
To which they had Answer the eight and twentieth.
1. They all knew what legal trust the Crown hath in that particular, therefore he shall not need to say any thing to assure them that he shall use it so, as there, shall be no just cause of scandal.
2. He is content it shall be done by Law.
3. And for the last, he had entered into consultation about it finding many difficulties therein; and he doth so wish the disbanding of all Armies, as he did conjure them speedily and heartily to joyn with him in disbanding those two here, Scots and English.
I am now come to the point, to consider of the Differences be∣tween two Writers, our Historian and his Observatour, concerning the Death of the Earl of Strafford, and reflecting upon the late Arch-bishop of Armagh, Primate of all Ireland, whilest he was li∣ving, and so pursued since his Death, I being intrusted by him, when time and occasion should happen, to offer in publick what I had in charge under his own hand-writing, (and others also) not to quarrel it any further, but to rectifie mis-understandings, if it may be done without malice on any side; and so I shall handle it as a Moderatour.
We begin from the Bill of Attainder which was read in presence of the Earl at the Bar.
Whereas the Knights,* Citizens, and Burgesses of the House of Com∣mons in this present Parliament assembled, have in the name of them∣selves and of all the Commons of England, impeached Thomas Earl of Strafford of High-treason, for endeavouring to subvert the ancient and fundamental Laws and Government of his Majesties Realms of England and Ireland, and to introduce an Arbitrary and Tyrannical Goverment against Law in the said Kingdoms; and for exercising a tyrannous and exorbitant Power over and against the Laws of the said Kingdoms, over the Liberties, Estates, and Laws of his Majesties Subjects; and likewise for having by his own Authority commanded the laying and assessing of Souldiers upon his Majesties Subjects in Ireland, against their consent, to compell them to obey his unlawfull Commands and Or∣ders, made upon Paper-petitions, in Causes, between party and party, which accordingly was executed upon divers of his Majesties Subjects, in a warlike manner within the said Realm of Ireland; and in so doing did levy War against the Kings Majesty and his Liege-people in that Kingdom. And also for that he upon the unhappy Dissolution of the last Parliament, did slander the House of Commons to his Majesty, and did counsel and advise his Majesty, that he was loose and absolved from Rules of Government, and that he had an Army in Ireland, Page 400which he might imploy to reduce this Kingdome; for which he de∣serves to undergo the paines and Forfeitures of high Treason.
And the said Earl hath been also an Incendiary of the wars between the two Kingdoms of England and Scotland, all which offences have been sufficiently proved against the said Earl upon his Impeachment.
Be it therefore Enacted by the Kings most excellent Majesty and by the Lords and Commons in this present Parliament assembled, and by ••thority of the same, that the said Earl of Strafford, for the hainous crimes and offences aforesaid, stand and be adjudged and attainted of high Treason, and shall suffer such pain of death, and incur the For∣feitures of his Goods and Cattels, Lands, Tenements and hereditaments of any estate of freehold or Inheritance in the said Kingdomes of England and Ireland, which the said Earl, or any other to his use, or in trust for him, have or had the day of the first sitting of this present Parliament, or at any time since.
Provided that no Iudge or Iudges, Iustice or Iustices whatsoever, shall adjudge or interpret any Act or thing to be Treason, nor hear or determine any Treason, nor in any other manner than he or they should or ought to have done before the making of this Act, and as if this Act had never been had, or made. Serving alwaies unto all and singular persons and bodies politique and corporal their Heirs and successors, (other, than the said Earl and his Heirs, and such as claim by from or under him) all such right, title and Interests, of in and to all and singular such of the said Lands, Tenements, and Hereditaments, as he, they, or any of them, had before the first day of this present Parliament, any thing herein contained to the contrary notwithstanding.
Provided that the passing of this present Act, and his Majesties assent thereunto, shall not be any determination of this present sessions of Parliament, and all Bills and matters whatsoever depending in Par∣liament, and not fully enacted and determined, And all Statutes and Acts of Parliament, which have their continuance until the end of this present session of Parliament, shall remain continue, and be in force, as if this Act had not been.
This Bill of Attainder being read opened and affirmed by sundry Presidents and Acts of Parliament, might no doubt remove the misty cloud of the Peers understanding. And therefore the next day the heat of that house appeared towards his destruction, contrary to the Kings conscience, whose Judgement was, that he deserved relief. And to that end, the first of May, he called both Houses together, and to them he opened himself for the Earls de∣fence, thus.