An. 17. Car. J. 2. That the Secretary's Depofition was exceed1641. ing dubious; for, upon two Examinations, he could not remember any fuch Words; the third Time his Teftimony was not pofitive, but that I fpake thofe Words, or the like; and Words may be very like in Sound, yet differ much in Sense.

3. That there were prefent at the Debate but eight Privy Counsellors; two of them (the Archbishop and Secretary Windebank) cannot be produced. Secretary Vane affirms the Words; I deny them. Four remain for Evidence, the Marquis of Hamilton, the Earl of Northumberland, the Lord Treasurer, and the Lord Cottington. All these have declared upon their Honours, That they never heard me speak thofe Words, nor any the like.

6

4. Suppofe I fpake the Words, which I grant not, yet cannot the Word this rationally imply England, as is yielded on all Hands; becaufe England was not out of the Way of Obedience, as the Earl of Clare well obferved; and because there never was any the leaft Intention of landing the Irish Army in England, as the Lords of the Council are able to atteit.'

Mr. Whitlocke proceeds to tell us, "That the foregoing Paper, of fo great Confequence, was miffing at the Committee; and, by the Earl's Anfwer, fuppofed he had seen it, and that it was conveyed to him by fome of the Committee: That he, being in the Chair, and having the Charge and Cuftody of all the Papers, was fufpected more than others to have acted this Piece of Treachery. He adds That great Inquiry and Search was made for the Paper, but it could not then be found. He told them when it was mifling; and that amongst such a Multitude of Papers as he had in his Cuftody, it was not easy to fee that he had them all again, when they were brought forth, or any of them called for That he never fhewed this Paper to any but the Committee, and knew not who had it, or what was become of it; nor did he convey it, or know of any that had conveyed it away. But this

:

would

That

1641.

would not ferve; the Houfe was acquainted with An. 17. Car. Î. the miffing of the Paper, and they ordered, every one of the Committee fhould make a folemn Proteftation in the Houfe, that they did not convey it away, nor knew what was become of it.'

All of them made this Proteftation, and the Lord Digby with more Earneftness and deeper Imprecations than any of the reft; yet afterwards, at the Battle of Nafeby, the King's Cabinet being taken, among the Papers in it was a Copy of thefe Notes, under the Lord Digby's Hand; whereby Whitlocke was clear'd, and the Conveyer of the Paper to the King, and from him to the Earl of Strafford, was fully difcovered.'

The Earl having delivered his Answer to the additional Proof, the Lord Steward told him, That if he had any Thing further to fay in his Defence, he fhould proceed, because the Court intended to prepare Matters for their Speedy Judgment.

Whereupon he made a fummary Repetition of the feveral Parts of his former Defence, and concluded thus:

My Lords, it is hard to be queftioned upon a The Earl's De Law which cannot be fhewn. Where hath this fence. Fire lain hid fo many hundred Years, without Smoak to discover it, till it thus burft forth to confume me and my Children ?

That Punishment fhould precede Promulgation of a Law; to be punished by a Law fubfequent to the Fact, is extream hard: What Man can be fafe, if this be admitted?

My Lords, it is hard in another respect, that there should be no Token fet, by which we should know this Offence; no Admonition, by which we fhould avoid it. If a Man pafs the Thames in a Boat, and fplit himself upon an Anchor, and no Buoy be floating to difcover it, he who owneth the Anchor fhall make Satisfaction: But if a Buoy be fet there, every Man pafleth upon his own Peril. VOL. IX. Now,

An. 17. Car. 1. Now, where is the Mark, where is the Token this Crime, to declare it to be High Treason?

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4

upon

My Lords, be pleased to give that Regard to the Peerage of England, as never to expofe yourfelves to fuch moot Points, fuch conftructive Interpretations of Laws: If there must be a Trial of Wits, let the fubject Matter be of somewhat else than the Lives and Honours of Peers.

It will be Wifdom for yourfelves, for your Pofterity, and for the whole Kingdom, to caft into the Fire these bloody and myfterious Volumes of conftructive and arbitrary Treafon, as the primitive Chriftians did their Books of curious Arts; and betake yourselves to the plain Letter of the Law and Statute, that telleth us what is, and what is not Treason, without being more ambitious to be more learned in the Art of Killing, than our Forefathers.

It is now full 240 Years fince any Man was touch'd for this alledged Crime, to this Height, before myself. Let us not awaken these fleeping Lions, to our Deftructions, by taking up a few mufty Records, that have lain by the Walls fo many Ages forgotten, or neglected.

'May your Lordships please not to add this to my other Misfortunes; let not a Precedent be derived from me fo disadvantageous, as this will be, in its Confequence, to the whole Kingdom. Do not, thro' me, wound the Interest of the CommonWealth And how foever these Gentlemen say, they speak for the Common-Wealth; yet, in this Particular, I indeed speak for it, and fhew the Inconveniences and Mischiefs that will fall upon it : For, as it is faid in the Statute, 1. Henry IV. No one will know what to do or jay for Fear of fuch Penalties (m). • Do

(m) By this Act, which the Earl of Strafford here quoted, it was enacted, That, in no Time to come, any Treafon be judged ⚫ otherwise than it was ordained by the Statute in the Time of the King's Noble Grand-Father, King Edward III. whom God af• foil.' And the Reafon given for it is, Because, by an Act of 21. Rich. II. divers Pains of Treafon were ordained by Statute, in as much that there was no Man which did know how he ought

to behave himself, to do, fpeak, or fay, for doubt of fuch Pains."

Statutes at Large, Anno 1, Hen. IV, Cap. 10.

1641.

• Do not put, my Lords, fuch. Difficulties upon An. 17. Car. I. Minifters of State, that Men of Wisdom, of Honour, and of Fortune, may not, with Chearfulness and Safety, be employed for the Public. If you weigh and measure them by Grains and Scruples, the public Affairs of the Kingdom will lye wafte; no Man will meddle with them, who hath any Thing to lofe.

6 My Lords, I have troubled you longer than I should have done, were it not for the Intereft of those dear Pledges a Saint in Heaven hath left me'

At this Word he stopped a while, letting fall fome Tears to her Memory, then he went on. What I forfeit myfelf is nothing; but that my Indiscretion fhould extend to my Pofterity, woundeth me to the very Soul.

'You will pardon my Infirmity, fomething I should have added, but am not able, therefore let it pass.

Now, my Lords, for myself, I have been, by the Bleffing of Almighty God, taught, That the Afflictions of this prefent Life are not to be compared to the eternal Weight of Glory which shall be revealed hereafter.

And fo, my Lords, even fo, with all Tranquility of Mind, I freely fubmit myself to your Judgment; and whether that Judgment be of Life or Death, Te Deum laudamus.'

Mr. Whitlocke fums up his Account of the Earl's Behaviour, in these Words; which are the more remarkable as he was Chairman of the Committee against him, Certainly never any Man acted fuch a Part, on fuch a Theatre, with more Wisdom, Conftancy, and Eloquence; with greater Reason, Judgment, and Temper; and with a better Grace in all his Words and Gestures, than this great and excellent Perfon did; and he moved the Hearts of all his Auditors, fome few excepted, to Remorfe and Pity.'

April 14. Notwithstanding these Proceedings relating to the Trial, the Bill for the Attainder of the O 2 Earl

1641.

An. 17. Car. 1. Earl of Strafford went on ;. and this Day it was read a fecond Time in the Houfe of Commons, and committed to a Committee of the whole Houfe (n).

to disband the Armies.

April 15. Another Conference was defired by the Commons, relating to the Trial and this Bill; in which, amongst other Matters, it was observed to the Lords, That the Evidence of Fact being given, it was propofed, from the Beginning, to go by way of Bill; and that they had accordingly brought in a Bill for his Attainder. That the Proceedings, by way of Bill, ftand no way in Oppofition to the other Proceedings that have already been in this Business.

Mr. Whitlocke reported from this Conference, That they were told by the Lords that they were not abfolutely refolved how the Trial fhould proceed: That the Lord Strafford's Counsel fhould have Notice to attend there the next Day, and fhould not fpeak to any Matter of Fact, but to Matter of Law only.

The fame Day, at a Conference of both Houses about the Satisfying and Diffolving of the three Armies, which were fuddenly to be disbanded, the The Earl of Hol- Earl of Holland declared, That his Majefty had land appointed been pleased to nominate him as General for that Purpose; upon which he spake very learnedly in the way of all Acknowledgment of fo great a Favour caft upon him, many of that Honourable Affembly being more deferving, as he said, and more capable than himself; nevertheless accounted himfelf very happy to be made an Inftrument of fo-much Good, for the Quiet and Peace of the Kingdom; and that his greatest Care should be to perform the faid Truft faithfully, and in Duty to the King, and the Good of his Country (9).'

April

(n) This Bill of Attainder was brought in by Sir Arthur Haflerig. Lord Clarendon gives a very long and particular Account of it in his firft Volume, p. 178 to p. 183, Fol. Edit.Dr. Naljon fays, This Bill was read thrice in one Day; an Affertion owing to meer PartyPrejudice: For it was read the first Time, April 10; the fecond, April 14; and the third, April 21; as appears by the Journals. (0) Diurnal Occurrences, p. 80.