¹ House of Lords, Braye MSS, fo. 142b, 7 05 1641.Google Scholar

² Ibid.

³ For the text of the questions to the judges, see Lords MSS, 05 1641.Google Scholar For their answer, see Braye MSS, fo. 142b, 7 05 1641.Google Scholar The best argument in favour of a sound basis in law for the Lords' decision is in Russell, Conrad, ‘The theory of treason in the trial of Strafford’, English Historical Review, LXXX, no. CCCXIV (01 1965), 30–50.CrossRefGoogle Scholar In the end, however, Russell's excellent position is not statutable ad litteram.

⁴ For an excellent statement of this position, see Wedgwood, C. V., Thomas Wentworth, first earl of Strafford, 1593–1641: a revaluation (New York, 1962), pp. 357–78.Google Scholar See also Timmis, John H. III, Thine is the kingdom: the trial for treason of Thomas Wentworth, earl of Strafford (University, Alabama, 1974), pp. 165–9.Google Scholar

⁵ The Braye MSS are a nearly complete set of notes taken down at the trial by the official recorders and stenographers of the House of Lords. From these minutes, the Lords Journals were written. John Browne was the clerk of the parliaments, 1638–91, and many of his papers, including official and semi-official records of the House of Lords, passed on his death to his daughter and from her ultimately to Lord Braye. The most important of these have been bought or photographed for the House. They include draft journals (1621–90), original manuscript minutes of the trial of Archbishop Laud (1644), papers laid on the table of the House, and Parliament Office memoranda (1625–91). Cf. the general description given in H.M.C, 10th Report, appendix, Record Office memoranda, nos. 7, 11, and 24, and the Addenda 1514–1714 volume of the Calendar. See also House of Lords Record Office memorandum no. 24, ‘The Braye manuscripts bought by the Record Office on 26th January 1961’ (1961).Google Scholar

⁶ Before the Braye MSS, the cardinal sources were Rushworth, A brief and perfect relation, and Harleian MSS 6424.

⁷ See below, where I give in toto the proceedings in Lords during their votes on the Bill.

⁸ I do not intend to rehearse here the history of treason law. I desire to set down only sufficient law and precedent to show the stasis of the case and, consequently, the final questions for decision.

⁹ I mean no strong criticism here. Given the earlier gaps in the record, Miss Wedgwood came very close to what actually happened and Mr Russell has done an excellent job of showing how the making of a division between king and people might be interpreted as treason, if the law is extended and interpreted.

¹⁰ For the proceedings on the entire article, see Rushworth, John, The tryal of Thomas, earl of Strafford (London, 1721), pp. 427–59.Google Scholar

¹¹ Scotland was in open rebellion at the time. Vane testified that Strafford had said in council to the king, ‘You have an army in Ireland. You may employ it to reduce this kingdom.’ Whether ‘this kingdom’ referred to Scotland or England was not clear. Vane testified to the words, not the interpretation. Rushworth, , Tryal, p. 546.Google Scholar For the proceedings on the entire article, see pp. 520–81.

¹² Russell, , ‘Theory of treason’, p. 50.Google Scholar

¹³ I intend here legality under the strict letter of treason law by statute. A Bill of Attainder was unquestionably legal but it was a specific legislative act. It still is legal, of course, as a bill of pains and penalties.

¹⁴ The best discussion of the question by a legal historian is by Stephen, J. F., History of the common law, 11, 250–3.Google Scholar After a great deal of hesitation, he decides that the Commons' abandonment of the impeachment should be taken as a tacit admission that the salvo was no longer in force. Vaughan (Verney's, Notes, p. 53Google Scholar) argues that 1 Mary 1, cap. 1 allows parliament to declare treasons but not to punish for them unless they are committed after the declaration. I don't understand this hesitation. 21 Rich. 2, cap. 20 was specifically repealed by 1 Hen. 4 and I find no ambiguity in the law. Further, the 1st Edw. 6, cap. 20 fixed treason to be 25 Edw. 3, as did 1 Mary 1. On this question, see also Elton, , The Tudor constitutionGoogle Scholar and Rezneck, , ‘The parliamentary declaration of treason’, Law Quart. Rev., XLVI (1930), 80.Google Scholar

¹⁵ The authority of Coke is against common law treasons. The House of Lords did consider treason at common law on 7 05 1641, but voted only that the matter of fact had been proved and not whether the general charges made treason. The question was then submitted to the judges, whose opinion simply held that Strafford was guilty of treason on the basis of what had been voted as proven. The judges did not divide the question and state which charges were to be taken under statute law and which under common law. Given the disposition of the questions, however, and the unmistakable centrality of articles 15 and 23, it seems clear that the main effort was to bring Strafford under the sway of statute law.Google Scholar

¹⁶ Braye MSS, fo. 142b, 5 05 1641. Emphasis mine.Google Scholar

¹⁷ The official records twice attribute the tactic to Arundel, once on 3 May, when it was declared as policy, and again on the 10th, when it was ‘Ordered that the House did approve of the…Lo. Steward in his forming & managing of his plan at the trial of the E. of Strafford & gave him thanks for the same’. The ultimate compromise between the two Houses was apparently worked out by a joint committee which met several times between 29 April and 3 May in Westminster Hall. The members from the Lords were Lord Privy Seal, Lord Steward, Bath, Essex, Bristol, Saye, Warwick, Southampton, Roberts, and Seymour. Ibid. 3 and 10 May 1641.

¹⁸ Ibid. 5 May 1641.

¹⁹ The E.H.R. has already printed a partial text of the Braye MSS as an authentic record of the Lords' proceedings for 5, 6, and 7 May 1641. However, Mr Russell left out approximately one hundred words which are important to both my argument and the historical record. I have set off these sentences with ** like this ** and offer my reading of the Braye MSS as a slightly more authentic version of the proceedings.

²⁰ Observe the careful wording of the question and the reply: ‘upon all your lordships have voted to be proved’. To have done otherwise would have been illegal.