Shire grounds were within the English pale and ad fidem legem Angliae the Irish that were without the pale were enemies alwayes either in open act of hostility or upon leagues and hostages given for securing the peace and therefore as heere in England wee had our marches upon the frontiers in Scotland and Wales so were there Marches betweene the English and Irish pale where the inhabitants held their Landes by this tenure to defend the Country against the Irish as appeares in the close Rolls of the Tower in the 20. yeare of Edward the third membrana 15. on the backside and in an Irish Parliament held the 42. yeare of Edward the third It s declared that the English pale was almost destroyed by the Irish enemies and that there was no way to prevent the danger but onely that the owners reside upon their Landes for defence and that absence should bee a forfeiture this act of Parliament in a great counsell heere was affirmed as appeares in the close Roll the 22. yeare of Edward the third membrana 20. dorse Afterwards as appeares in the Statute of the eight-and-twenty yeare 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 known 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 tenth yeare of Henry the seaventh as appeares by the Statute of the tenth of Henry the seaventh the seaventeenth Chapter and so successively downewards till the making of this very Statute of the eleaventh yeare of Queene Elizabeth as appeares fully in the ninth Chapter Nay immediatly before and at the time of the making of this Statute there was not onely emnity 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 hee had gotten by force all the North of Ireland for an hundred and twenty miles in length and above a 100. in bredth that he had mastered diverse places within the English pale when the flame of this warre by his death immediatly before this Statute was spent yet the fire brands were not all quenched for the rebellion was continued by John Fitz. Gerard called the white Knight and Thomas Queverford this appeares by the Statute of the thirteenth yeare of Queene Elizabeth in Ireland but two yeares after this of the eleaventh yeare of Queene Elizabeth where they are attainted of high treason for levying Warre this eleaventh yeare wherein this Statute was made So that my Lords immediatly before and at the time of the making of this Statute there being Warre betweene those of the Shire grounds mentioned in this Statute and the Irish the concluding of Warre and Acts offensive and invasive there mentioned can bee intended against no others but the Irish enemies Againe the words of the Statute are no Captaine shall assemble the people of the Shire grounds to conclude of peace or warre is it to bee presumed that those of the Shire grounds will conclude of Warre against themselves nor saith the Statute shall carry those of the Shire grounds to doe any Acts invasive by the construction which is made on the other side they must bee carried to fight against themselves Lastly the words are as Captaine none shall assume the name or authority of a Captaine or as a Captaine shall gather the people together or as a Captaine leade them The offence is not in the matter but in the manner If the acts offensive were against the Kings good subjects those that went under command were punishable as well as the Commanders but in respect the Souldiers knew the service to be good in it selfe being against the enemies and that it was not for them to dispute the authority of their commanders the penalty of a 100. pounds is laid onely upon him that as Captaine shall assume this power without warrant the people commanded are not within the Statute My Lords the logicke whereupon this argument hath beene framed stands thus because the Statute of the eleaventh yeare of Queene Elizabeth inflicts a penalty of a 100. pound and no more upon any man that as a Captaine without warrant and upon his owne head shall conclude of or make Warre against the Kings enemies therefore the Statute of the 18. yeare of Henry the sixt is repealed which makes it treason to lay Souldiers upon or to levy warre against the Kings good people But my Lords observation hath bin made upon other words of this statute that is that without licence of the deputy these things cannot bee done This shewes that the deputy is within none of these Statutes My Lords this Argument stands upon the same reason with the former because hee hath the ordering of the Army of Ireland for the defence of the people and may give warrant to the Officers of the Army upon eminent occasions of invasion to resist or prosecute the enemy because of the danger that else might ensue forthwith by staying for a warrant from his Majesty out of England Therefore it is no treason in the Deputy to imploy the Army in Ireland whensoever hee pleaseth for the subversion of the Kings good people and of the lawes My Lords the Statute of the tenth yeare of Henry the seaventh the seaventeenth Chapter touched upon for this purpose cleares the busines in both points for there it is declared that none ought to make warre upon the Irish rebells and enemies without warrant from the Lieutenant the forfeiture a hundred pounds as here the Statute is the same with this and might as well have beene cited for repealing the Statute of the eighteenth yeare of Henry the sixt as this of the eleaventh yeare of Queene Elizabeth but if this had beene insisted upon it would have expounded the other two cleare against him Obj. > My Lords it hath beene further said although the statute bee in force and there be a treason within it yet the Parliament hath no jurisdiction the treasons are committed in Ireland therefore not triable here Answ My Lords Sir John Perrot his predecessors in the 24. yeare of Queene Elizabeth was tried in the Kings bench for treason done in Ireland when hee was Deputy and Orucke in the 33. yeare of Queene Elizabeth judged heere for treason done in Ireland Obj. But it will bee said these trialls were after the Statute of the foure-and-thirtieth yeare of Henry the eight which enacts that treasons beyond sea may bee tried in England Answ My Lords his predecessor my Lord Gray was tried and adjudged
here in the Kings bench that was in Trinity tearme in the three-and-thirtie yeare of Henry the eight this was before the making of that Statute Obj. To this againe will bee said that it was for treason by the Lawes and Statutes of England but this is not for anything that 's treason by the Law of England but by an Irish Statute So that the question is onely whether your Lordships in Parliament heere have cognizance of an offence made treason by an Irish Statute in the ordinary way of judicature without bill for so is the present question For the clearing of this I shall propound two things to your Lordships consideration Whether the rule for expounding the Irish Statutes and customes bee one and the same in England as in Ireland That being admitted whether the Parliaments in England have cognizance or jurisdiction of things there done in respect of the place because the Kings writ runnes not there For the first if in respect of the place the Parliament here hath cognizance there And secondly if the rules for expounding the Irish Statutes and Customes bee the same here as there this exception as I humbly conceive must fall away In England there is the common law the Statutes the acts of Parliament and customes peculiar to certaine places differing from the common law if any question arise concerning either a custome or an act of Parliament the common law of England the first the primative and the generall law that 's the rule and expositour of them and of their severall extents it is so heere it is so in Ireland the common law of England is the common law of Ireland likewise the same here and there in all the parts of it It was introduced into Ireland by King John and afterwards by King Harry the third by act of Parliament held in England as appeares by the pattent Rolls of the 30. yeare of King Henry the third the first membrana The words are Quia pro communi utilitate terrae Hiberniae unitate terrarum Regis Rex vult de communi consilio Regis provisum est quod omnes leges consuetudines quae in regno Angliae tenentur in Hibernia teneantur eadem terra eisdem legibus subjaceat per easdem regatur sicut Dominus Johannes Rex cum ultimo esset in Hibernia statuit fierimandavit Quia c. Rex vult quod omnia brevia de communi Jure quae currunt in Anglia similiter currant in Hibernia sub novo sigillo Regis mandatum est Archiepiscopis c. quod pro pace tranquillitate ejusdem terrae per casdem leges eos regi deduci permittant ea 〈◊〉 omnibus sequantur In cujus c. Teste Rege apud Woodstock decimo none die Septembris Here 's an union of both Kingdomes and that by act of Parliament and the same Lawes to bee used here as there in omnibus My Lords That nothing might bee left here for an exception that is that in treasons felonies and other capitall offences concerning life the Irish lawes are not the same as here Therefore it is enacted in a Parliament held in England in the fourteenth yeere of Edward the second it is not in print neither but is in the Parliament book That the Laws concerning life and member shall be the same in Ireland as in England And that no exception might yet remaine in a Parliament held in England the fifth yeere of Edward the third It is enacted quod una eadem Lex fiat tam Hibernicis quam Anglicis This Act is enrolled in the Patent rolls of the fifth yeere of Edward the third part 1. memb 35. The Irish therefore receiving their Lawes from hence they send their Students at Law to the Innes of Courts in England where they receive their degree and of them and of the common Lawyers of this Kingdome are the Judges made My Lords The petitions have been many from Ireland to send from hence some Judges more learned in the Lawes then those they had there It hath been frequent in cases of difficulty there to send sometimes to the Parliament here sometimes to the King by advice from the Judges here to send them resolutions of their doubts Amongst many I 'll cite your Lordships onely one because it is in a case of Treason upon an Irish Statute and therefore full to this point By a Statute there made in the fifth yeere of Edward the fourth there is provision made for such as upon suggestions are committed to prison for Treason that the party committed if he can procure 24. Compurgators shall be bailed and let out of prison Two Citizens of Dublin were by a grand Jury presented to have committed Treason They desired the benefit of this Statute that they might bee let out of prison upon tender of their Compurgators The words of the Statute of the fifth yeere of Edward the fourth in Ireland being obscure the Judges there not being satisfied what to doe sent the case over to the Queene desired the opinion of the Judges here which was done accordingly The Judges here sent over their opinion which I have out of the Booke of Justice Anderson one of the Judges consulted withall The Judges here delivered opinion upon an Irish Statute in case of Treason If it bee objected That in this case the Judges here did not judge upon the party their opinions were onely ad informandum conscientiam of the Judges in Ireland that the judgement belonged to the Judges there My Lords with submission this and the other Authorities prove that for which they were cited that is That no absurdity no failer of Justice would ensue if this great Judicatory should judge of Treason so made by an Irish Statute The common Law the rule of Judging upon an Irish Statute the pleas of the Crowne for things of life and death are the same here and there This is all that hath yet been offered For the second point That England hath no power of Judicature for things done in Ireland My Lords the constant practice of all ages proves the contrary Writs of errour in Pleas of the Crowne as well as in civill causes have in all Kings reignes beene brought here even in the inferiour Courts of Westminster Hall upon judgements given in the Courts of Ireland The practice is so frequent so well known as that I shall cite none of them to your Lordships no president will I beleeve bee produced to your Lordships that ever the case was remanded back againe into Ireland because the question rose upon an Irish Statute or custome But it will be said That writs of errour are only upon a failer of justice in Ireland and that suits cannot originally be commenced here for things done in Ireland because the Kings writ runs not in Ireland This might bee a good plea in the Kings Bench and inferiour Courts at Westminster Hall the question is whether it bee so in Parliament
The Kings writ runs not within the County Palatine of Chester and Durham nor within the five Ports neither did it in Wales before the union in Henry the eighth's time after the Lawes of England were brought into Wales in King Edward the first 's time suits were not originally commenced in Westminst Hall for things done in them yet this never excluded the Parliament suits for life lands and goods within those jurisdictions are determinable in Parliament as well as in any other parts of the Realme Ireland as appeares by the Statute of the thirtieth yeer of Henry the third before mentioned is united to the Crowne of England By the Statute of the eight and twentieth yeere of Henry the sixth in Ireland it is declared in these words That Ireland is the proper Dominion of England and united to the Crowne of England which Crowne of England is of it selfe and by it selfe fully wholly and entirely endowed with all power and authority sufficient to yeeld to the subjects of the same full and plenary remedy in all debates and suits whatsoever By the Statute of the three and thirtieth yeer of Henry the eighth the first Chapter when the Kings of England first assumed the title of King of Ireland it is there enacted That Ireland still is to bee held as a Crown annexed and united to the Crown of England So that by the same reason from this that the Kings writ runs not in Ireland it might aswell bee held that the Parliament cannot originally hold plea of things done within the County Palatine of Chester Durham nor within the five Ports Wales Ireland is part of the Realme of England as appears by those Statutes aswell as any of them This is made good by constant practice In all the Parliament rolls from the first to the last there are receivers and tryers of petitions appointed for Ireland For the Irish to come so farre with their petitions for justice and the Parliament not to have cognizance when from time to time they had in the beginning of the Parliament appointed receivers and tryers of them is a thing not to bee presumed An appeale in Ireland brought by William Lord Vescye against John Fitz Thomas for treasonable words there spoken before any Judgement given in the case there was removed into the Parliament in England and there the defendant acquitted as appeares in the Parliament pleas of the two and twentieth yeere of Edward the first The suits for lands offices and goods originally begun here are many and if question grew upon matter in fact a Jury usually ordered to try it and the verdict returned into Parliament as in the case of one Balliben in the Parliament of the five and thirtieth yeere of Edward the first If doubt arose upon a matter triable by Record a writ went to the Officers in whose custody the Record remained to certifie the Record as was in the case of Robert Bagot the same Parliament of the five and thirtieth yeere of Edward the first where the writs went to the Treasurer and Barons of the Exchequer Sometimes they gave judgement here in Parliament and commanded the Judges there in Ireland to doe execution as in the great case of petition between the coparceners of the Earle Marshall in the Parliament of the three and thirtieth yeere of Edward the first where the writ was awarded to the Treasurer of Ireland My Lords The Lawes of Ireland were introduced by the Parliaments of England as appeares by three Acts of Parliament before cited It is of higher jurisdiction dare Leges then to judge by them The Parliaments of England doe binde in Ireland if Ireland bee particularly mentioned as is resolved in the Book case of the first yeere of Henry the seventh Cokes seventh Report Calvins case and by the Judges in Trinity Terme in the three and thirtieth yeere of Queene Elizabeth The Statute of the eighth yeere of Edward the fourth the first Chapter in Ireland recites that it was doubted amongst the Judges whether all the English Statutes though not naming Ireland were in force there if named no doubt From King Henry the third his time downward to the eighth yeere of Queene Elizabeth by which Statute it is made felony to carry sheepe from Ireland beyond seas in almost all these Kings reignes there be Statutes made concerning Ireland The exercising of the Legislative power there over their lives and estates is higher then of the Judiciall in question Untill the nine and twentieth yeere of Edward the third erroneous judgements given in Ireland were determinable no where but in England no not in the Parliaments of Ireland as it appeares in the close rolls in the Tower in the nine and twentieth yeere of Edward the third membr 12. Power to examine and reverse erroneous judgements in the Parliaments of Ireland is granted from hence Writs of errour lie in the Parliament hereupon erroneous judgements after that time given in the Parliaments of Ireland as appears in the Parliament rolls of the eighth yeere of Henry the sixth no. 70. in the case of the Prior of Lenthan It is true the case is not determined there for it 's the last thing that came into the Parliament and could not be determined for want of time but no exception at all is taken to the jurisdiction The Acts of Parliament made in Ireland have bin confirmed in the Parliaments of England as appears by the close rolls in the Tower in the two and fortieth yeere of Edward the third memb 20. dorso where the Parliament in Ireland for the preservation of the Countrey from the Irish who had almost destroyed it made an Act that all the land owners that were English should reside upon their lands or else they were to bee forfeited This was here confirmed In the Parliament of the fourth yeer of Henry the fifth chap. 6. Acts of Parliament in Ireland are confirmed and some priviledges of the Peeres in the Parliaments there are regulated Power to repeale Irish Statutes power to confirme them cannot be by the Parliament here if it hath not cognizance of their Parliaments unlesse it be said That the Parliament may doe it knowes not what Garnesey and Jersey are under the Kings subjection but are not parcels of the Crowne of England but of the Duchy of Normandy they are not governed by the Lawes of England as Ireland is and yet Parliaments in England have usually held plea of and determined all causes concerning lands or goods In the Parliament of 33. H. iâ— there be plactia de Insula Jernesey and so in the Parliament 14. E. 2. and so for Normandy and Gascoyne and alwaies as long as any part of France was in subjection to the Crown of England there were at the beginning of the Parliaments receivers and tryers of petitions for those parts appointed I beleeve your Lordships will have no cases shewed of any plea to the jurisdiction of the Parliaments of England in any things done in any
would have done to others It s true we give law to Hares and Deeres because they be beasts of Chase It was never accounted either cruelty or foul play to knock Foxes and Wolves on the head as they can be found because these be beasts of prey The Warrener sets traps for Powlcats and other Vermine for preservation of the Warren Further my Lords most dangerous diseases if not taken in time they kill Errors in great things as Warre and Marriage they allow no time for repentance it would have been too late to make a law when there had been no law My Lords for further answer to this objection he hath offended a law a law within the endeavouring to subvert the lawes and politie of the state wherein he lived which had so long and with such faithfulnesse protected his Ancestry himself and his whole family it was not malum quia prohibitum it was malum in se against the dictates of the dullest conscience against the light of nature they not having the law were a law to themselves Besides this he knew a law without That the Parliament in cases of this nature had potestatem vitae necis Nay he well knew that he offended the promulged and ordinary rules of law Crimes against law have been proved have been confessed so that the question is not de culpa sed de poena what degree of punishment those faults deserve we must differ from him in opinion that twenty felonies cannot make a treason if it be meant of equality in the use of the Legislative power for he that deserves death for one of these felonies alone deserves a death more painful and more ignominious for all together Every felony is punished with losse of life lands and goods a felony may bee aggravated with those circumstances as that the Parliament with good reason may adde to the circumstances of punishment as was done in the case of John Hall in the Parliament of 1. H. 4. who for a barbarous murder committed upon the Duke of Glocester stifling him between two feather-beds at Calice was adjudged to be hanged drawn and quartered Batteries by Law are punishable only by fine and single dammages to the party wounded In the Parliament held in 1. H. 4. cap. 6. one Savadge committed a Battery upon one Chedder fervant to Sir John Brooke a knight of the Parliament for Sommersetshire It s there enacted that he shall pay double dammages and stand convicted if he render not himselfe by such a time The manner of proceedings quickned the penalty doubled the circumstances were considered it concerned the Common-wealth it was Battery with breach of priviledge of Parliament This made a perpetuall Act no warning to the first offendor And in the Kings Bench as appears by the booke case of 9. H. 4. the first leafe double dammages were recovered My Lords in this of the Bill the offence is high and generall against the King and the Common-wealth against all and the best of all If every Felony be losse of life lands and goods what is misuser of the Legislative power by addition of Ignominie in the death and disposall of the lands to the Crowne the publicke patrimony of the kingdome But it was hoped that your Lordships had no more skill in the Art of killing of men then your worthy Ancestors My Lords this appeale from your selves to your Ancestors we admit of although we do not admit of that from your Lordships to the Peers of Ireland He hath appealed to them your Lordships will be pleased to heare what Judgement they have already given in the Case that is the severall attainders of treason in Parliament after the Statute of 25. E. 3. for treasons not mentioned nor within that Statute and those upon the first offendors without warning given By the Statute of 25. E. 3. its treason to levy war against the King Gomines and Weston afterwards in Parliament in 1. R. 2. num 38. 39. adjudged traitors for surrendring two severall Castles in France onely out of feare without any compliance with the Enemy this not within the Statute of 25. E. 3. My Lords in 3. R. 2. John Imperiall that came into England upon letters of safe conduct as an Agent for the state of Genoah sitting in the Evening before his doore in Breadstreete as the words of the Records are paulo ante ignitegium John Kirby and another Citizen comming that way casually Kirby trode upon his Toe it being twilight this grew to a quarrell and the Embassadour was slaine Kirby was indicted of high treason the inditement findes all this and that it was onely done se defendendo and without malice The Judges it being out of the Statute of 25. E. 3. could not proceede the Parliament declared it treason and judgement afterwards of high treason there 's nothing can bring this within the Statute of 25. E. 3. but it concernes the honour of the Nation that the publicke faith should be strictly kept It might endanger the trafficke of the Kingdome they made not a Law first they made the first man an example This is in the Parliament roll 3. R. 2. num 18. and Hilary Terme 3. R. 2. Rot. 31. in the Kings Bench where judgment is given against him In 11. R. 2. Tresilian and some others attainted of treason for delivering opinions in the subversion of the Law and some others for plotting the like My Lords the case hath upon another occasion beene opened to your Lordships only this is observable That in the Parliament of the first yeare of Henry the third where all treasons are again reduced to the Statute of 25. E. 3. these Attainders were by a particular Act confirmed and made good that the memory thereof might bee transmitted to succeeding ages They stand good unto this day the Offences there as here were the endeavouring the subversion of the lawes My Lords after 1. H. 4. Sir John Mortimer being committed to the Tower upon suspicion of treason brake prison and made an escape This no way within any Statute or any former Judgment at common Law for this that is for breaking the prison only and no other cause in the Parliament held the second yeer of Henry the sixth hee was attainted of high treason by Bill My Lords Poysoning is only murder yet one Richard Coke having put poyson into a pot of pottage in the kitchin of the Bish of Rochester whereof two persons died hee 's attainted of treason and it was enacted that he should bee boyled to death by the Statute of 22. H. 8. cap. 9. By the Statute of 25. H. 8. Elizabeth Barton the holy maid of Kent for pretending revelations from God that God was highly displeased with the King for being divorced from the Lady Katherine and that in case he persisted in the separation and should marry another that he would not continue King above one moneth after because this tended to the depriving of the lawfull succession to the Crowne shee is attainted of treason In the Parliament 2. 3. H. 6. cap. 16. the Lord Admirall of England was attainted of treason for procuring the Kings Letters to both Houses of Parliament to be good to the said Earle in such matters as hee should declare unto them for saying that hee would make the Parliament the blackest Parliament that ever was in England endevouring to marry the Lady Elizabeth the Kings sister taking a bribe of Sherrington accused of treason and thereupon consulting with Councell for him and some other crimes none of them treason so cleerely within the Statute of 25. E. 3. or any other Statute as is the case in question My Lords All these Attainders for ought I know are in force at this day the Statutes of the first yeere of Henry the fourth and the first of Qu. Mary although they were willing to make the Statute of the five and twentieth yeere of Edward the third the rule to the inferiour Courts yet they left the Attainders in Parliament precedent to themselves untoucht wherein the Legislative power had been exercised There 's nothing in them whence it can be gathered but that they intended to leave it as free for the future My Lords In all these Attainders there were crimes and offences against the Law they thought it not unjust circumstances considered to heighten and add to the degrees of punishment and that upon the first offender My Lords We receive as just the other Lawes and Statutes made by these our Ancestors they are the rules wee goe by in other cases why should we differ from them in this alone These My Lords are in part those things which have satisfied the Commons in passing of the Bill It is now left to the Judgement and Justice of your Lordships FINIS
pains for that which when he hath gotten is not his own Or who fight for that wherein he hath no other interest but such as is subject to the will of another The Ancient encouragement to men that were to defend their Countries was this That they were to hazard their Persons pro Aris Focis for their Religion and for their Houses But by this Arbitrary way which was practised in Ireland and counselled here no man had any certainty either of Religion or of his House or any thing else to be his own But besides this such Arbitrary courses have an ill operation upon the courage of a Nation by embasing the hearts of the people A servile condition doth for the most part beget in men a slavish temper and disposition Those that live so much under the Whip and the Pillory and such servile Engines as were frequently used by the E. of Strafford they may have the dregges of valour sullennesse stubbornnesse which may make them prone to Mutinies and discontents but those Noble and gallant affections which put men on brave Designes and Attempts for the preservation or inlargement of a Kingdome they are hardly capable of Shall it be Treason to embase the Kings Coyne though but a piece of twelve-pence or sixe-pence and must it not needs be the effect of a greater Treason to embase the spirits of his Subjects and to set a stamp and Character of servitude upon them whereby they shall be disabled to doe any thing for the service of the King or Common-wealth The fift Consideration is this That the exercise of this Arbitrary Government in times of sudden danger by the invasion of an enemy will disable his Majesty to preserve himselfe and his Subjects from that danger This is the onely pretence by which the E. of Strafford and such other mischievous Counsellors would induce his Majesty to make use of it and if it be unfit for such an occasion I know nothing that can be alledged in maintenance of it When warre threatens a Kingdome by the comming of a forrain Enemy it is no time then to discontent the people to make them weary of the present Government and more inclinable to a Change The supplies which are to come in this way will be unready uncertain there can be no assurance of them no dependence upon them either for time or proportion And if some money be gotten in such a way the Distractions Divisions Distempers which this course is apt to produce will be more prejudiciall to the publique safety then the supply can be advantagious to it and of this we have had sufficient experience the last Summer The sixt That this crime of subverting the Laws and introducing an Arbitrary and Tyrannicall Government is contrary to the Pact and Covenant betwixt the King and his people That which was spoken of before was the legall union of Allegeance and Protection this is a personall union by mutuall agreement and stipulation confirmed by oath on both sides The King and his people are obliged to one another in the nearest relations He is a Father and a childe is called in Law Pars Patris Hee is the Husband of the Common-wealth they have the same interests they are inseparable in their condition be it good or evill He is the Head they are the Body there is such an incorporation as cannot be dissolved without the destruction of both When Iustice Thorpe in Edw. the thirds time was by the Parliament condemned to death for Bribery the reason of that Judgement is given because he had broken the Kings Oath not that he had broken his own oath but that he had broken the Kings oath that solemne and great obligation which is the security of the whole Kingdome If for a Judge to take a small summe in a private cause was adjudged Capitall how much greater was this offence whereby the E. of Strafford hath broken the Kings Oath in the whole course of his Government in Ireland to the prejudice of so many of his Majesties Subjects in their Lives Liberties and Estates and to the danger of all the rest The Doctrine of the Papists Fides non est servanda cum Haereticis is an abominable Doctrine yet that other Tenet more peculiar to the Iesuites is more pernicious whereby Subjects are discharged from their Oath of Allegeance to their Prince whensoever the Pope pleaseth This may be added to make the third no lesse mischievous and destructive to humane society then either of the rest That the King is not bound by that Oath which he hath taken to observe the Laws of the Kingdome but may when he sees cause lay Taxes and burdens upon them without their consent contrary to the Laws and Liberties of the Kingdome This hath been preached and published by divers And this is that which hath been practised in Ireland by the E. of Strafford in his Government there and indeavoured to be brought into England by his Counsell here The seventh is this It is an offence that is contrary to the end of Government The end of Government was to prevent oppressions to limit and restrain the excessive power and violence of great men to open the passages of Iustice with indifferency towards all This Arbitrary power is apt to induce and incourage all kind of insolencies Another end of Government is to preserve men in their estates to secure them in their Lives and Liberties but if this Designe had taken effect and could have been setled in England as it was practised in Ireland no man would have had more certainty in his own then power would have allowed him But these two have been spoken of before there are two behind more important which have not yet been touched It is the end of Government that vertue should be cherisht vice supprest but where this Arbitrary and unlimited power is set up a way is open not onely for the security but for the advancement and incouragement of evill Such men as are aptest for the execution and maintenance of this Power are onely capable of preferment and others who will not be instruments of any unjust commands who make a conscience to doe nothing against the Laws of the Kingdome and Liberties of the Subject are not onely not passable for imployment but subject to much jealousie and danger It is the end of Government that all accidents and events all Counsels and Designes should be improved to the publique good But this Arbitrary Power is apt to dispose all to the maintenance of it self The wisdome of the Councell-Table the Authority of the Courts of Justice the industry of all the Officers of the Crown have been most carefully exercised in this the Learning of our Divines the Iurisdiction of our Bishops have been moulded and disposed to the same effect which though it were begun before the E. of Straffords Imployment yet it hath beene exceedingly furthered and advanced by him Under this colour and pretence of maintaining the Kings Power
Parliament are onely declarative of the Old Law not introductive of a new as the great Charter of our Liberties the Statute of the five and twentieth yeare of Edward the third of Treasons the Statute of the Prerogative and of late the petition of right If the Law were doubtfull in this Case they conceived the Parliament where the old may be altered and new Lawes made the fittest Iudge to cleare this doubt Secondly my Lords they proceeded this way to out those scruples and delaies which through disuse of proceedings of this nature might have risen in the manner and way of proceeding since the Statute of the first of Henery the fourth the seventeenth Chapter and more fully in the Roll number 144. The proceedings in Parliament have usually beene upon an Inditement first found though in Cases of Treason particularly mentioned in the Statute of the five and twentieth yeare of Edward the third which had not been done in this Case Doubts likewise might rise for Treasons not particularly mentioned in the Statute of 25. Edw. 3. whether the declaratory power of Parliament be taken away and if not taken away in what manner they were to be made and by whom They finde not any Attainders of Treason in Parliament for neare this 200 yeares but by this way of Bill And againe they knew that whatsoever could be done any other way it might be done by this Thirdly in respect of the proofes and depositions that have beene made against him for first although they knew not but that the whole Evidence which hath beene given at the Barre in every part of it is sufficiently comprehended within the Charge yet if therein they should be mistaken if it should prove otherwise use may justly be made of such Evidence in this way of Bill wherein so as Evidence be given in it 's no way requisite that there should have beene any Articles or Charge at all And so in the Case of double Testimony upon the Statute of the first of Edward the sixt whether one direct witnesse with others to Circumstances had been single or double testimony and although single Testimony might be sufficient to satisfie private Consciences yet how farre it would have beene satisfactory in a judiciall way where formes of Law are more to be stood upon was not so cleare whereas in this way of Bill private satisfaction to each mans Conscience is sufficient although no Evidence had beene given in at all My Lords the proceeding by way of Bill it was not to decline your Lordships Iustice in the judiciall way In these Exegencies of the State and Kingdome it was to husband time by silencing those doubts they conceived it the speediest and the furest way My Lords These are in effect the things the Commons tooke into their Consideration in respect of the manner and way of proceeding against the Earle In the next place I am to declare unto your Lordships the things they tooke into their consideration in respect of the matter and merits of the Cause They are comprehended within these 6. heads 1. That there is a Treason within the Statute of 25. E. 3. by Levying of warre upon the matter of the fifteenth Article 2. If not by actuall Levying of warre yet by advising and declaring his intention of warre and that by Savils warrant and the advice of bringing over the Irish Army upon the matter in the 23. Article The intending of a Warre if not within the Clause of Levying Warre in the Statute of 25. E. 3. yet within the first Treason of compassing the death of the King 3. If neither of these two single Acts be within the Statute of 25. E. 3. yet upon putting all together which hath beene proved against him That ther 's a Treason within the first clause of compassing the death of the King Et si non prosunt singula juncta juvant 4. That he hath fessed and laid Souldiers upon the Subjects of Ireland against their will and at their Charge within the Irish Statute of the eighteenth yeare of Henry the sixt That both person and thing are within the Statute That the Statute remaines in force to this day That the Parliament here hath Cognizance of it And that even in the ordinary way of Judicature that if there be a Treason and a Traitor that the want of jurisdiction in the Judicall way may justly be supplied by Bill 5. That his endeavouring to subvert the fundamentall Lawes and Governement of the Realmes of England and Ireland and instead thereof to introduce a tyranicall Governement against Law is Treason by the Common Law That Treasons at the Common Law are not taken away by the Statutes of 25. E. 3. 1. H. 4. c. 10. 1â— Mar. c. 1. nor any of them 6. That as this Case stands It 's just and necessary to resort to the Supreame power in Parliament in case all the rest should faile Of these six five of them are Treason within the Compasse of the Lawes already established Three within the Statute of 25 E. 3. One within the Irish Statute the other by the Common Law of England If but any one of these 6. Considerations hould The Commons conceive that upon the whole matter they had good cause to passe the Bill My Lords for the first of levying Warre 1. The Case I shall make bold to read the Case to your Lordships before I speake to it it s thus The Earle did by warrant under his hand and Seal give authority to Robert Savill a Serjeant at Arms and his Deputies to sesse such number of Souldiers horse and foote of the Army in Ireland together with an officer as the Serjeant should thinke fit upon his Majesties Subjects of Ireland against their will This warrant was granted by the Earle to the end to compell the Subjects of Ireland to submit to the unlawfull Summons and orders made by the Earle upon paper Petitions exhibited unto him in case of private Interest betweene party and party This warrant was executed by Savill and his Deputies by sessing of Souldiers both horse and foote upon diverse of the Subjects of Ireland against their will in warre-like manner and at divers times the Souldiers continued upon the parties upon whom they were sessed and wasted their goods untill such time as they had submitted themselves unto those Summons and orders My Lords This is a levying of warre within the statute of 25o. E. 3. The words of the Statute are If any man doe levy warre against our Lord the King in his Realm this is declared to be Treason I shall indeavour in this to make it appeare to your Lordships What shall be a levying of Warre in respect of the motive or cause of it What shall bee said a levying of warre in respect of the Action or thing done And in the third place I shall apply them to the present Case It will bee granted in this of levying of warre That forces may bee raised and likewise used in a
that County and thence to London and other parts to excite them to take Armes for the throwing in of all inclosures throughout England nothing was done nor no Assembly The Statute of 13. Eliz. cap. 1. during the Queenes life made it Treason to intend or advise to levy war against the Queen In Easter Tearme 39. Eliz. All the Iudges of England met about the case it was resolved by them that this was a warre intended against the Queene they agreed that if it had beene of one Towneship or more upon private interest and claime of right of Common it had not been Treason But this was to throw in all inclosures thorough the Kingdome whereto these parties could pretend no claime that it was against the Law in regard that the Statute of Merton gave power of Inclosures in many Cases Upon this Resolution Bradshaw and Burton were executed at Aynestowe hill in Oxford-shire the place where they intended their first meeting So that my Lords if the end of it be to overthrow any of the Statutes any part of the Law and setled Governement or any of the great Officers intrusted with the execution of them this is a warre against the King My Lords it will be further considerable what shall be accounted a leavying of warre in respect of the Actions and things done There 's a designe to alter some part of the Lawes and present Governement for the effecting thereof people bee provided of Armes gathered together into troopes but afterwards march not with Banners displayed nor doe Bellum percutere Whether the arming themselves and gathering together upon this Designe whether this be a warre or such prosecution of the Designe with force as makes it Treason within the Statute First If this be not a Warre in respect that it necessarily occasions hostile preparations on the other side 2. From the words of the Statute shall levy warre and be thereof probably attainted of open Deed by people of their Condition although the bare conspiring be not an open Deed yet whether the arming and drawing men together be not an open Declaration of Warre In Sir Thomas Talbots case before cited in the seventeenth yeere of Richard the second The Acts of force are expressed in the Parliament Roll. That hee caused divers of the people of the County of Chester to bee armed in a warre-like manner in assemblies heere is no marching no bauners displayed In the 28. yeare of Henry the 6 th William Bell and Thomas Lacy in Com' Kanc. conspired with Thomas Cheney called the Hermite of the Queene of Faires to overthrow the Lawes and customes of the Realme and for the effecting of it they with two hundred more met together and concluded upon a course of raising greater forces in the county of Kent and the adjacent Shires this adjudged Treason these were open Actes My Lords for the application of both these to the Case in question First in respect of the end of it here was a warre against the King It was to subvert the Lawes This being the designe for the effecting of it he assumed to his owne person an arbitrary power over the lives liberties and estates of his Majesties Subjects and determined Causes upon paper petitions at his owne will and pleasure obedience must be forced by the Army this declared by the Warrant If it bee said That the Warrant expresseth not any intent of subverting the Lawes It expresseth fully one of the principall meanes whereby this was to be done that is obedience to his arbitrary orders upon paper petitions this was done in reference to the maine designe In the Cases of the Towne of Cambridge and Sr. William Cogan that have formerly beene cited to your Lordshippes upon other occasions the things in themselves were not Treason they were not a levying of Warre In that of Cambridge the Townesmen met together and in a forcible manner broke up the University treasury and tooke out of it the Records and Evidence of the liberties of the University over the Towne In the other they of Bridgewater marched to the Hospitall and compelled the Master of the Hospitall to deliver unto them certaine Evidences that concerned the Towne and forced him to enter into a bond of two hundred pound These if done upon these private ends alone had not beene Treason as appeares by the very words of the Statute of 25. Edw. 3. before mentioned of marching openly or secretly But my Lords these of Cambridge and Bridgewater they were of the conspiracy with the villaines as appeares in the Parliament Roll of the fift yeare of Richard the second number the one and thirtieth and two and thirtieth where the Townes of Cambridge and Bridgewater are expressely excepted out of the generall pardon made to the Villaines This being done in Reference to that designe of the villains of altering the Lawes this it was that made it Treason If the designe went no further then the enforcing obedience to these paper orders made by himselfe It was sufficient it was to subvert one fundamentall part of the Lawes nay in effect the whole Law what use of Law if hee might order and determine of mens estates at his owne pleasure This was against the Law notoriously declared in Ireland In the close roll in the Tower in the five and twentieth yeare of Edw. 1. a Writ went to the Justices in Ireland that Kingdome at that time was governed by Justices declaring that upon petitions they were not to determine any titles betweene party and party upon any pretence of profit whatsoever to the King In the eight and twentieth yeare of Henry the sixt the second Chapter Suites in equity not before the Deputy but in Chancery Suits at Common Law not before him but in Cases of life in the Kings Bench for title of land or goods in the proper Courts of the Common pleas or Kings Bench. This declared in the Instructions for Ireland in the latter end of King James his time and by the Proclamation in his Majesties time my Lord took notice of them called the Commissioners narrow hearted Commissioners The Law said he should not thus proceed in subversion of it he saith he will and will enforce obedience by the Army This is as much in respect of the end as to endeavour the overthrow of the Statutes of Laborers of victualls or of Merton for Inclosures Here is a warre against the King in respect of the end In respect of the Actions whether there be either a levying of warre or an open deed or both My Lords there was an Army in Ireland at that time of two thousand horse and foot by this Warrant there is a full designation of this whole Army and an Assignement of it over unto Savill for this purpose The Warrant gives him power from time to time to take as many Souldiers horse and foot with an Officer throughout the whole Army as himselfe shall please heere is the terrour and awe of the whole Army to enforce obedience
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 Heber 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 hee had not the love of the Citizens of London nor should hee have it for the future That if the Bishop of Bath and Wells were dead the Arch-Bishop of Canterbury being Cardinall of England would immediately loose his head This Inditement was returned into the Kings Bench in Trinity Tearme in the eighteenth yeare of Edward the fourth Afterwards there came a Privy Scale to the Iudges to respit the proceedings which as it should seeme was to the intent the Iudges 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 with draw the peoples affection from the King to excite them against him to cause risings against him by the people in morē destructions of the King Your Lordships are pleased to consider that in all these Cases the Treason was for words only words by private persons and in amore private manner but once spoken and no more only amongst the people to excite them against the King My Lords here are words Counsells more then words and actions too not only to disaffect 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 Leivetenant a Lord President a Lord Deputie 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 the King and Kingdome 2. From thence that the King was loose and absolved from rules of governement 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 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 war 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 he goes to the people At York the Country being met together for Justice at the open Assizes upon the Bench he tells 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 then the loines of the Law They shall find my Lords who speaks this to the people a Privie Counsellor this must be either to traduce his Majesty to the people as spoken from him or from himselfe who was Lord Leivetenant 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 Citty of that Kingdome whether the Subjects of that Country came for Justice in an Assembly of Peeres and others of greatest ranke upon occasion of a Speech of the Recorder of that Citty touching their Franchises and Legall Rights he tells them that Ireland was a Conquered Nation and that the King might do 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 Conqueror before the King might do with them what he would now They were to expect it that he would put this power of a Conqueror in execution The Circumstances are very considerable in full Parliament from himselfe in Cathedrâ 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 he 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 Petititions to himselfe forced Obedience to these not only 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 between 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 been 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 The 4. Generall Head Treasons within the 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
parts wheresoever in subjection to the Crowne of England The last thing I shall offer to your Lordships is the case of 19. El. in my Lord Dyer 306. and Judge Cromptons book of the jurisdiction of Courts fol. 23. The opinion of both these Books is That an Irish Peer is not triable here It 's true a Scotish or French Nobleman is triable here as a common person the Law takes no notice of their Nobility because those Countries are not governed by the Lawes of England but Ireland being governed by the same Laws the Peers there are triable according to the Law of England onely per pares By the same reason the Earle of Strafford not being a Peere of Ireland is not triable by the Peers of Ireland so that if hee bee not triable here hee is triable no where My Lords In case there be a Treason and a Traitor within the Statute and that he be not triable here for it in the ordinary way of judicature if that jurisdiction failes this by way of Bill doth not Attainders of Treason in Parliament are as legall as usuall by Act of Parliament as by Judgement I have now done with the Statutes of 25. E. 3. and 18. H. 6. My Lord of Strafford hath offended against both the Kingdomes and is guilty of high Treason by the Lawes of both 5 My Lords In the fifth place I am come to the Treasons at the common Law The endevouring to subvert the fundamentall Lawes and government of the Kingdome and to introduce an arbitrary and tyrannicall government In this I shall not at all labour to prove that the endevouring by words counsels and actions to subvert the Lawes is treason at the common Law if there be any common Law treasons at all left nothing treason if this not to make a Kingdome no Kingdome take the politic and government away England's but a piece of earth wherein so many men have their commorancy abode without ranks or distinction of men without propertie in anything further then possession no Law to punish the murdering or robbing one another That of 33. H. 8. of introducing the Imperiall Law sticks not with your Lordships It was in case of an appeal to Rome these appeals in cases of marriages other causes counted Ecclesiasticall had been frequent had in most Kings reigns been tolerated some in times of Popery put a conscience upon them the Statutes had limited the penalty to a Premunire only Neither was that a totall subversion only an Appeale from the Ecclesiasticall Court here in a single cause to the Court at Rome and it treason or not that case proves not a treason may be punished as a felony a felony as a trespasse if his Majesty so please the greater includes the lesser In the case of Premunire in the Irish reports that which is there declared to be treason proceeded upon only as a Premunire The thing most considerable in this is whether the treasons at common Law be taken away by the Stat. of 25. E. 3. 1. H. 4. or 1. Q. M. or any of them My Lords To say they bee taken away by the Stat. of 25. E. 3. is to speak against both the direct words and scope of that Statute In it there 's this clause That because many other like cases of treason might fall out which are not there declared therefore it is enacted That if any such case come before the Judges they shall not proceed to judgement till the case bee declared in Parliament whether it ought to be adjudged treason or not These words and the whole scope of that Statute showes That it was not the meaning to take away any treasons that were so before but onely to regulate the jurisdiction and manner of tryall Those that were single certain Acts as Conspiring the Kings death Levying warre Counterfeiting the money or great Seal Killing a Judge these are left to the ordidinary Courts of Justice The others not depending upon single Acts but upon constructions and necessary inferences they thought it not fit to give the inferiour Courts so great a latitude here as too dangerous to the subject those they strained to the Parliament This Statute was the great security of the subject made with such wisdome as all the succeeding ages have approved it It hath often passed through the fornace but like gold hath lost little or nothing The Statute of 1. H. 4. cap. 10. is in these words Whereas in the Parliament held the 21. yeere of Richard the second divers paines of treasons were ordained insomuch that no man did know how to behave himselfe to doe say or speake It is accorded that in no time to come any treason be adjudged otherwise then it was ordained by the Statute of 25. E. 3. It hath bin said To what end is this Statute made if it takes not away the common Law treasons remaining after the Statute of 25. E. 3. There be two maine things which this Statute doth First it takes away for the future all the Treasons made by any Statute since 25. Ed. 3. to 1. Hen. 4. even to that time For in respect that by another Act in that Parliament the Statute of 21. E. 2. was repealed it will not bee denyed but that this Statute repeales more treasons then these of 21. E. 2. it repeals all Statute treasons but those in 25. E. 3. Secondly It not only takes away the Statute treasons but likewise the declared treasons in Parliament after 25. E. 3. as to the future After declaration in Parliament the inferiour Courts might judge these treasons for the declaration of a treason in Parliament after it was made was sent to the inferiour Courts that toties quoties the like case fell out they might proceed therein the subject for the future was secured against these so that this Statute was of great use By the very words of it it still referrs all treasons to the provision of 25. E. 3. it leaves that entire and upon his old bottome The Statute of 1. Q. M. cap. 1. saith That no offences made treason by any Act of Parliament shall thenceforth be taken or adjudged to bee treason but onely such as be declared and expressed to bee treason by the Statute of 25. E. 3. concerning treason or the declaration of treason and no others And further provides that no pains of death penaltie or forfeiture in any wise shall ensue for committing any treason other then such as be in the Statute of 25. E. 3. ordained and provided any Acts of Parliament or any declaration or matter to the contrary in any wise notwithstanding By the first part of this Statute onely offences made Treason by Act of Parliament are taken away the Common Law Treasons are no way touched The words and no others refer still to offences made treason by Act of Parliament they restraine not to the treasons onely particularly mentioned in the Statute of 25. E. 3. but leave that Statute entire as