being asked by those he spake to how he durst maintaine so bloody an assertion he answered that the matter was not so haynous as was supposed for the King who is the lesser is concluded by the Pope who is the greater and as a Malefactor being condemned before a Temporall Judge may bee delivered over to bee Executed so the King standing convicted by the Popes sentence of excommunication may justly be slaughtered without fault for the killing of the King is the execution of the Popes supreame sentence as the other is the execution of the Law for this judgement of High Treason was given against him and execution done My Lords here is no cleere intent appearing that Owen desired the thing should bee done only Arguments that it might be done This is a compassing there is a cleere Endeavour to corrupt the judgement to take off the bonds of conscience the greatest security of the Kings life God forbid saith one of better judgement than he That I should stretch out my hand against the Lords annointed no saith he the Lord doth not forbid it you may for these reasons lawfully kill the King Hee that denies the Title to the Crown and plots the meanes of setting it upon another head may doe this without any direct or immediate desiring the death of him that then weares it yet this is Treason as was adjudged in 10. Henry 7. in the case of Burton and in the Duke of Norfolks case 13. Elizabeth This is a compassing of his death for there can no more be two Kings in one Kingdome than two Suns in the Firmament he that conceives a title counts it worth ventring for though it cost him his life he that is in possession thinks it as well worth the keeping Iohn Sparhauke in King Henry the fourths time meeting two men upon the way amongst other talk said that the King was not rightfull King but the Earle of March and that the Pope would grant indulgencies to all that would assist the Earles title and that within halfe a yeree there would be no Liveries nor Conizances of the King that the King had not kept promise with the people but had layd taxes upon them In Easter Terme in the third yeere of Henry the fourth in the Kings Bench Rot. 12. this adjudged Treason This denying the title with motives though but implyedly of Action against it adjudged Treason this is a compassing the Kings death How this was a compassing the Kings death is declared in the reasons of the judgement That the words were spoken with an intent to withdraw the affections of the people from the King and to excite them against the King that in the end they might rise up against him in mortem destructionem of the King My Lords in this Judgement and others which I shall cite to your Lordships It appeares that it is a compassing the Kings death by words to indeavour to draw the peoples hearts from the King to set discord betweene the King and them whereby the people should leave the King should rise up against him to the death and destruction of the King The cases that I shall cite prove not onely that this is Treason but what is sufficient evidence to make this good Upon a Commission held the 18. yeere of Edw. 4. in Kent before the Marquesse of Dorset and others an Inditement was preferred against John Awater of High-Treason in the forme before mentioned for words which are entred in the enditement sub hac forma That he had beene servant to the Earle of Warwicke that though he were dead the Earle of Oxford was alive and should have the government of part of the Countrey That Edward whom you call King of England was a false man and had by art and subtlety slaine the Earle of Warwicke and the Duke of Clarence his brother without any cause who before had beene both of them attainted of High-Treason My Lords this Inditement was returned into the Kings Bench in Trinity Tearme in the eighteenth yeere of Edward the fourth and in Easter Tearme in the two and twentieth yeere of Edward the fourth he was outlawed by the stay of the outlawry so long it seemes the Judges had well advised before whether it were Treason or not At the same Session Thomas Hober was indited of Treason for these words That the last Parliament was the most simple and insufficient Parliament that ever had beene in England That the King was gone to live in Kent because that for the present he had not the love of the Citizens of London nor should he have it for the future That if the Bishop of Bath and Wels were dead the Archbishop of Canterbury being Cardinall of England would immediately lose his head This inditement was returned into the Kings Bench in Trinity Tearme in the eighteenth yeere of Edward the fourth Afterwards there came a Privy Seale to the Judges to respit the proceedings which as it should seeme was to the intent the Judges might advise of the Case for afterwards he is outlawed of high-Treason upon this inditement These words were thought sufficient evidence to prove these severall Inditements That they were spoken to withdraw the peoples affection from the King to excite them against him to cause risings against him by the people in mortem destructionem of the King Your Lordships are pleased to consider that in all these Cases the Treason was for words onely words by private persons and in a more private manner but once spoken and no more onely amongst the people to excite them against the King My Lords here are words Counsels more than words and actions too not onely to dis-affect the people to the King but the King likewise towards the people not once but often not in private but in places most publique not by a private person but by a Counsellor of State a Lord Lieutenant a Lord President a Lord Deputy of Ireland 1 To his Majesty That the Parliament had denied to supply him a slander upon all the Commons of England in their affections to the King and Kingdome in refusing to yeeld timely supply for the necessities of King and Kingdome 2 From thence That the King was loose and absolved from rules of government and was to doe every thing that power would admit My Lords more cannot be said they cannot be aggravated whatever I should say would be in diminution 3 Thence You have an Army in Ireland you may imploy to reduce this Kingdome To counsell a King not to love his people is very unnaturall it goes higher to hate them to malice them in his heart the highest expressions of malice to destroy them by warre These coales they were cast upon his Majesty they were blowne they could not kindle in that brest Thence my Lords having done the utmost to the King hee goes to the people At York the Country being meâ— together for Justice at the open Assizes upon the Bench he tels them speaking of the
Justices of the Peace that they were all for Law nothing but Law but they should find that the Kings little finger should be heavier than the loines of the Law They shall find my Lords who speakes this to the people a Privie Counsellour this must be either to traduce his Majesty to the people as spoken from him or from himselfe who was Lord Lieutenant of the County and President intrusted with the forces and Justice of those parts that he would imploy both this way add my Lords to his words there the exercising of an arbitrary and vast Jurisdiction before he had so much as Instructions or colour of warrant Thence we carry him into Ireland there he represented by his place the sacred person of his Majesty 1 There at Dublyn the principall City of that Kingdome whither the Subjects of that Countrey came for Justice in an Assembly of Peeres and others of greatest ranke upon occasion of a speech of the Recorder of that City touching their Franchises and Legall Rights he tels them that Ireland was a conquered Nation and that the King might doe with them what he pleased 2 Not long after in the Parliament 10. Car. in the Chaire of State in full Parliament againe That they were a conquered Nation and that they were to expect Lawes as from a Conquerour before The King might doe with them what he would now They were to expect it that he would put this power of a Conquerour in execution The Circumstances are very considerable in full Parliament from himselfe in Cathedra to the representative body of the whole Kingdome The occasion adds much when they desire the benefit of the Lawes and that their Causes and Suites might be determined according to Law and not by himselfe at his will and pleasure upon paper Petitions 3 Upon like occasion of pressing the Lawes and Statutes That hee would make an Act of Counsell board in that Kingdome as binding as an Act of Parliament 4. He made his words good by his actions assumed and exercised a boundlesse and lawlesse Jurisdiction over the lives persons and estates of his Majesties Subjects procured judgement of death against a Peere of that Realme commanded another to be hanged this was accordingly executed both in times of high Peace without any processe or colour of Law 5. By force for a long time he seised the yarne and flax of the Subjects to the starving and undoing of many thousands besides the Tobacco businesse and many Monopolies and unlawfull Taxes forced a new Oath not to dispute his Majesties royall commands determined mens estates at his owne will and pleasure upon paper Petitions to himselfe forced Obedience to these not onely by Fines and Imprisonment but likewise by the Army sessed Souldiers upon the refusers in a hostile manner 6. Was an Incendiary of the warre betweene the two Kingdomes of England and Scotland My Lords we shall leave it to your Lordships Judgements whether these words Counsells and Actions would not have beene a sufficient Evidence to have proved an Inditement drawne up against him as those before mentioned and many others are That they were spoken and done to the intent to withdraw the Kings heart from the people and the affections of the people from the King that they might leave the King and afterwards rise up against him to the destruction of the King if so here is a compassing of the Kings death within the words of the Statute of the five and twentieth yeare of Edward the third and that warranted by many former judgements My Lords I have now done with the three Treasons within the The fourth generall Head Statute of the five and twentieth of Edward the third I proceed to the fourth upon the Statute of the eighteenth yeare of Henry the sixt Chapter the third in Ireland I shall make bold to read the words to your Lordships That no Lord nor any other of what condition soever he be shall bring or lead hoblers kerves or hooded men nor any other people nor horses to lie on horseback or on foot upon the Kings Subjects without their good wills and consent but upon their owne costs and without hurt doing to the Commons and if any so doe he shall be judged as Traitor 1. The Argument that hath been made concerning the Person That it extends not to the King and therefore not to him weighs nothing with your Lordships Rex non habet in regne parem from the greatnesse of his office to argue himselfe into the same impossibility with his sacred Majesty of being uncapable of High-Treason it 's an Offence no reason The words in the Statute No Lord nor any other of what condition soever he be includes every Subject In Trinity Terme in the three and thirtieth yeare of Henry the eighth in the Kings Bench Leonard Lord Gray having immediately before been Lord Deputy of Ireland is attainted of High-Treason and judgement given against him for letting divers Rebels out of the Castle of Dublin and discharging Irish hostages and pledges that had been given for securing the Peace for not punishing one that said the King was an Heretique I have read the whole Record ther 's not one thing laid to his charge but was done by him as Lord Leivetenant Hee had the same Plea with my Lord of Strafford That these things were no adhering to the Kings Enemies but were done for reasons of State That he was not within those words of the Statute of the five and twentieth yeare of Edward the third himselfe being Lord Lievtenant there they cost his life Obj. 2. It hath been said That the Souldiers sessed upon the Subjects by him were not such persons as are intended by that Statute Hoblers Kerves and hoodedmen these rascall people Answ My Lords they were the names given to the Souldiary of those times Hoblers horsemen the other the foot but the words of the Statute goe further Nor any other people neither horse nor foot his Lordship sessed upon them both horse and foot Object 3. The Statute extends only to them that leade or bring Savill led them my Lord onely gave the warrant Answ To that I shall say onely thus plus peccat author quam actor by the rule of Law agentes consentientes pari plectuntur panâ if consent much more a command to doe it makes the commander a Traitor If there bee any Treason within this Statute my Lord of Strafford is guilty It hath been therefore said That this Statute like Goliah's sword hath been wrapt up in a cloth and laid behind the doore that it hath never been put in execution Answ My Lords if the Clerk of the Crown in Ireland had certified your Lordships that upon search of the Judgements of Attainders in Ireland he could not finde that any man had been attainted upon this Statute your Lordships had had some ground to believe it yet it is onely my Lord of Straffords affirmation Besides your Lordships know that an act of
Subject shall assemble the people and conclude a warre and accordingly shall lead them to invade the Subject this is a levying of warre within the word of that statute and then the statutes of the five and twentieth yeere of Edward the third the first of Henry the fourth and the first of Queene Mary which the Earle of Strafford in his Answer desires to be tryed by are as well repealed in this point as the statute of the eighteenth yeere of Henry the sixth he might then without feare of Treason have done what he pleased with the Irish Army for all the statutes of levying war by this statute of the eleventh yeer of Queene Elizabeth were taken out of his way In Ireland a Subject gathers forces concludes a warre against the Kings people actually invades them bloodshed burning of houses Depredations ensue two of those that is murder and burning of houses are Treason and there the other felony by this construction the punishment of Treason and felony is turned onely into a fine of one hundred pounds from losse of life lands and all his goods onely to losse of part of his goods 3 The third absurdity a warre is concluded three severall Inrodes are made upon the Subject in the first a hundred pound dammage in the second five thousand pounds dammage in the third ten thousands pound dammage is done to the Subjects the penalty for the last inrode is no more than for the first onely one hundred pounds This statute by this construction tells any man how to get his living without long labour Two parts of the hundred pounds is given to the King a third part to the informer here 's no dammage to the Subject that is robbed and destroyed My Lords the Statute will free it selfe and the makers of it from these absurdities The meaning of this statute is That if any Captaine shall of his own head conclude of peace or war against the Kings Enimies or Rebels or shall upon his owne head invade them without warrant from the King or the Lord Deputie of Ireland that then he shall forfeit an hundred pounds The offence is not for laying of Souldiers upon the Kings people but making of warre against the Irish Rebells without warrant the offence â—s not in the matter but in the manner for doing a thing lawfull but without mission 1 This will appeare by the generall scope of the statute all the parts being put together 2 By particular clauses in the Statute 3 By the Condition of that Kingdome at the time of the making of that statute For the first The preamble recites that in time of Declination of Justice under pretext of defending the Countrey and themselves divers great men arrogated to themselves Regall authority under the names of Captaines that they acquired to themselves that government which belonged to the Crown for preventing this Its enacted that no man dwelling within the Shire grounds shall thenceforth assume or take upon himselfe the authority of name of a captaine within those Shire grounds without Letters Pattents from the Crowne nor shall under colour of his captaine-ship make any demand of the people of any exaction nor as a captaine assemble the people of the shire grounds nor as a captaine shall lead those people to doe any acts offensive or invasive without warrant under the great Seale of England or of the Lord Deputy upon penalty that if he do any thing contrary to that act then the Offender shall forfeit an hundred pounds My Lords the Rebels had been out the courts of justice scarce sate for defence of the countrey diverse usurped the place of Captaines concluded of warre against the Rebels and invaded them without warrant invading the Rebels without authority is the crime 2. This appeares further by the particular clauses in the statute None shall exercise any captaine-ship within the shire grounds nor assemble the men of the shire grounds to conclude of warre or lead them to any invasion That that had anciently beene so continued to this time that is the Irish and the English pale they within the shire grounds were within the English pale and ad fidem legem Angliae the Irish that were without the pale were enimies alwayes either in open act of hostility or upon leagues and hostages given for securing the peace And therefore as here in England we had our marches upon the frontiers in Scotland and Wales so were their Marches betweene the English and Irish pale where the inhabitants held their Lands by this tenure to defend the Countrey against the Irish as appeares in the close Rols of the Tower in the twentieth yeere of Edward the third membranâ 15. on the backside and in an Irish Parliament held the 42. yeere of Edward the 3. It s declared that the English pale was almost destroyed by the Irish enimies and that there was no way to prevent the danger but onely that the owners reside upon their Lands for defence and that absence should bee a forfeiture This act of Parliament in a great counsell here was affirmed as appeares in the close Roll the 22. yeere of Edward the third membra 20. dorse Afterwards as appeares in the Statute of the 28. yeere of Henry the 6. in Ireland this hostility continued betweene the English marches and the Irish enemies who by reason there was no difference betweene the English marches and them in their apparell did daily not being knowne to the English destroy the English within the pale Therefore it s enacted that every Englishman shall shave the haire of his upper lip for distinction sake This hostility continued till the 10. yeere of Henry the 7. as appeares by the Statute of the tenth of Henry the 7. the 17. Chapter and so successively downeward till the making of this very statute of the 11. yeere of Queene Elizabeth as appeares fully in the ninth chapter Nay immediately before and at the time of the making of this statute there was not onely enmity betweene those of the Shire grounds that is the English and Irish pale but open Warre and Acts of hostility as appeares by History of no lesse authority then that statute it selfe For in the first Chapter of this statute is the Attainder of Shane O Neale who had made open Warre was slaine in open Warre It 's there declared that he had gotten by force all the North of Ireland for an hundred and twenty miles in length and above a 100. in breadth that hee had mastered divers places within the English pale When the flame of this warre by his death immediately before this statute was spent yet the fire-brands were not all quenched for the rebellion was continued by Iohn Fitz Gerard called the white Knight and Thomas Queverford This appeares by the Statute of the 13. yeere of Queene Elizabeth in Ireland but two yeeres after this of the eleventh yeere of Queene Elizabeth where they are attainted of high treason for levying Warre this eleaventh yeere