Commotions of Civill distempers whereby the Kings that then reigned were alwayes kept in want and distresse the people consumed with Civill wars and by such wicked counsels as these some of our Princes have beene brought to such miserable ends as no honest heart can remember without horrour and earnest Prayer that it may never be so againe The third Consideration is this The subversion of the Lawes And this Arbitrary power as it is dangerous to the Kings Person and to his Crowne so is it in other respects very prejudiciall to his Majesty in his Honour Profit and Greatnesse and yet these are the gildings and paintings that are put upon such counsels These are for your Honour for your service whereas in truth they are contrary to both But if I shall take off this varnish I hope they shall then appeare in their owne native deformity and therefore I desire to consider them by these Rules It cannot be for the Honour of a King that his sacred Authority should be used in the practise of injustice and oppression that his Name should be applyed to patronize such horrid crimes as have beene represented in Evidence against the Earle of Strafford and yet how frequently how presumptuously his Commands his Letters have been vouched throughout the course of this Defence your Lordships have heard When the Iudges doe justice it is the Kings justice and this is for his honour because he is the Fountaine of justice but when they doe injustice the offence is their owne But those Officers and Ministers of the King who are most officious in the exercise of this Arbitrarie power they doe it commonly for their advantage and when they are questioned for it then they fly to the Kings interest to his Direction And truly my Lords this is a very unequall distribution for the King that the dishonour of evill courses should be cast upon him and they to have the advantage The prejudice which it brings to him in regard of his profit is no lesse apparent It deprives him of the most beneficiall and most certaine Revenue of his Crowne that is the voluntary aids and supplies of his people his other Revenues consisting of goodly Demeanes and great Manors have by Grants been alienated from the Crowne and are now exceedingly diminished and impaired But this Revenue it cannot be sold it cannot be burdned with any Pensions or Annuities but comes intirely to the Crowne It is now almost fifteene years since his Majesty had any assistance from his people and these illegall wayes of supplying the King were never prest with more violence and art then they have been in this time and yet I may upon very good grounds affirm that in the last fifteene years of Queen Elizabeth she received more by the Bounty and Affection of her Subjects then hath come to His Majesties Coffers by all the inordinate and rigorous courses which have beene taken And as those Supplies were more beneficiall in the Receipt of them so were they like in the use and imployment of them Another way of prejudice to his Majesties profit is this Such Arbitrary courses exhaust the people and disable them when there shall be occasion to give such plentifull supplies as otherwise they would doe I shall need no other proofe of this then the Irish Government under my L. of Strafford where the wealth of the Kingdome is so consumed by those horrible exactions and burdens that it is thought the Subsidies lately granted will amount to little more then halfe the proportion of the last Subsidies The two former wayes are hurtfull to the Kings profit in that respect which they call Lucrum Cessans by diminishing his receipts But there is a third fuller of mischiefe and it is in that respect which they call Damnum emergens by increasing his Disbursements Such irregular and exorbitant attempts upon the Libertie of the people are apt to produce such miserable distractions and distempers as will put the King and Kingdome to such vast expences and losses in a short time as will not be recovered in many yeares Wee need not goe farre to seeke a proofe of this these two last yeares will be a sufficient evidence within which time I assure my selfe it may be proved that more Treasure hath beene wasted more losse sustained by his Majesty and his Subjects then was spent by Queene Elizabeth in all the War of Tyrone and in those many brave Attempts against the King of Spaine and the royall assistance which she gave to France and the Low-Countries during all her Reigne As for Greatnesse this Arbitrary power is apt to hinder and impaire it not onely at home but abroad A Kingdome is a society of men conjoyned under one Government for the common good The world is a society of Kingdomes and States The Kings greatnesse consists not onely in his Dominion over his Subjects at home but in the influence which he hath upon States abroad That he should be great even among Kings and by his wisdome and authority so to incline and dispose the affaires of other States and Nations and those great events which fall out in the world as shall be for the good of Mankind and for the peculiar advantage of his owne people This is the most glorious and magnificent greatness to be able to relieve distressed Princes to support his owne friends and Allies to prevent the ambitious designes of other Kings and how much this Kingdome hath been impaired in this kinde by the late mischievous counsels your Lordships best know who at a neerer distance and with a more cleare sight doe apprehend these publique and great affaires then I can doe Yet thus much I dare boldly say that if his Maiestie had not with great wisdome and goodness forsaken that way wherein the Earle of Strafford had put him we should within a short time have been brought into that miserable condition as to have been uselesse to our friends contemptible to our enemies and uncapable of undertaking any great designe either at home or abroad A fourth Consideration is That this Arbitrary and Tyrannicall Power which the E. of Strafford did exercise in his own person and to which he did advise his Majesty is inconsistent with the Peace the Wealth the Prosperity of a Nation It is destructive to Justice the Mother of Peace to Industry the spring of Wealth to Valour which is the active vertue whereby the prosperity of a Nation can onely be procured confirmed and inlarged It is not only apt to take away Peace and so intangle the Nation with Warres but doth corrupt Peace and puts such a malignity into it as produceth the Effects of warre We need seek no other proofe of this but the E. of Straffords Government where the Irish both Nobility and others had as little security of their Persons or Estates in this peaceable time as if the Kingdome had been under the rage and fury of warre And as for Industrie and Valour who will take
to the common Law treason as appears by the words immediatly foregoing By the second part for the paines and forfeitures of treasons if it intend only the punishment of treason or if it intend both treason and punishment yet all is referred to the provision and ordinance of 25. E. 3. any Act of Parliament or other declaration or thing notwithstanding It saith not other then such penalties or treasons as are expressed and declared in the Statute of 25. E. 3 that might perhaps have restrained it to those that are particularly mentioned No it referrs all treasons to the generall ordination and provision of that Statute wherein the common-Law-treasons are expresly kept on foot If it bee askt what good this Statute doth if it take not away the common-Law-treasons 1. It takes away all the treasons made by Act of Parliament not onely since the first of H. 4. which weremany but all before 1. H. 4. even untill 25. E. 3. by expresse words 2. By expresse words it takes away all declared treasons if any such had been made in Parliament these for the future are likewise taken away so that whereas it might have been doubted whether the Statute of 1. H. 4. took away any treasons but those of 21. Richard 2. this clears it both for treasons made by Parliament or declared in Parliament even to the time of making the Statute This is of great use of great security to the subject so that as to what shall be treason and what not the Statute of 25. E. 3. remaines entire and so by consequence the treasons at the common Law Onely my Lords it may be doubted whether the manner of the parliamentary proceedings bee not altered by the Statute of 1. H. 4. the 17. chapter and more fully in the Parliament roll number 144. that is whether since that Statute the parliamentary power of declaration of treasons whereby the inferiour Courts received jurisdiction be not taken away and restrained onely to Bill that so it might operate no further then to that particular contained in the Bill that so the parliamentary declarations for after times should be kept within the Parliament it selfe and be extended no further Since 1. H. 4. we have not found any such declarations made but all Attainders of treason have bin by Bill If this be so yet the common Law treasons still remaining there is one and the same ground of reason and equity since 1. H. 4. for passing of a Bill of treason as was before for declaring of it without Bill Herein the Legislative power is not used against my Lord of Strafford in the Bill it s onely the jurisdiction of the Parliament But my Lords because that either through my mistaking of the true grounds and reasons of the Commons or my not pressing of them with apt arguments and presidents of former times or that perchance your Lordships from some other reasons and authorities more swaying with your Lordships judgements then these from them may possibly bee of a contrary or dubious opinion concerning these treasons either upon the Statutes of 25. E. 3. 18. H. 6. or at the common Law If all these five should faile they have therefore given me further in command to declare to your Lordships some of their reasons why they conceive that in this case the meer Legislative power may be exercised Their reasons are taken from these three grounds 1 From the nature and quality of the offence 2 From the frame and constitution of the Parliament wherein this Law is made 3 From practises and usages of former times The horridnesse of the offence in endevouring the overthrowing the Lawes and present governement hath beene fully opened to your Lordships heretofore The Parliament is the representation of the whole Kingdome wherein the King as Head your Lordships as the more noble and the Commons the other members are knit together into one Body politick This dissolves the arteries and ligaments that hold the Body together the Lawes Hee that takes away the Laws takes not away the allegeance of one subject alone but of the whole Kingdome It was made treason by the Statute of 13. El. for her time to affirme That the Lawes of the Realme doe not binde the descent of the Crowne no Law no descent at all No Lawes no Peerage no ranks or degrees of men the same condition to all It 's treason to kill a Judge upon the Bench this kils not Iudicem sed Iudicium Hee that borrowed Apelles and gave bond to returne again Apelles the Painter sent him home after he had cut off his right hand his bond was broken Apelles was sent but not the Painter There bee twelve men but no law there 's never a Judge amongst them It s felony to embezill any one of the judiciall Records of the Kingdome this at once sweeps them all away and from all It s treason to counterfeit a twenty shill-piece here 's a counterfeiting of the Law we can call neither the counterfeit nor true coine our owne It s treason to counterfeit the great Seale for an acre of land no property hereby is left to any land at all Nothing treason now either against King or Kingdome no law to punish it My Lords if the question were asked in Westminster Hall whether this were a crime punishable in Starre-chamber or in the Kings Bench by fine or imprisonment they would say It went higher If whether felony they would say That 's for an offence onely against the life or goods of some one or few persons It would I beleeve be answered by the Judges as it was by the chiefe Justice Thirning in 21. R. 2. That though he could not judge the case treason there before him yet if he were a Peere in Parliament hee would so adjudge it My Lords if it bee too bigge for those Courts we hope it s in the right way here 2. The second consideration is from the frame and constitution of the Parliament the Parliament is the great body politicke it comprehends all from the King to the Beggar if so my Lords as the naturall so this body it hath power over it selfe and every one of the members for the preservation of the whole It s both the Physician and the patient if the body bee distempered it hath power to open a veine to let out the corrupt bloud for curing of it selfe if one member be poysoned or gangrened it hath power to cut it off for the preservation of the rest But my Lords it hath bin often inculcated that Law-makers should imitate the supreme Law-giver who commonly warnes before he strikes the Law was promulged before the jugdement of death for gathering the stickes no law no transgression My Lords to this the rule of Law is Frustra legis auxilium invocat qui in legem committit from the lex Talionis he that would not have had others to have law why should he have any himselfe why should not that be done to him that himselfe
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
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
and Prerogative many dangerous practises against the peace and safety of this Kingdome have been undertaken and promoted The increase of Popery and the favours and incouragement of Papists have been and still are a great grievance and danger to the Kingdome The Innovations in matters of Religion the usurpations of the Clergie the manifold burdens and taxations upon the people have been a great cause of our present distempers and disorders and yet those who have been chiefe Furtherers and Actors of such Mischiefes have had their Credit and Authority from this That they were forward to maintain this Power The E. of Strafford had the first rise of his greatnesse from this and in his Apologie and Defence as your Lordships have heard this hath had a maine part The Royall Power and Majesty of Kings is most glorious in the prosperity and happinesse of the people The perfection of all things consists in the end for which they were ordained God onely is his own end all other things have a further end beyond themselves in attaining whereof their own happinesse consists If the means and the end be set in opposition to one another it must needs cause an impotency and defect of both The eight Consideration is The vanity and absurdity of those excuses and justifications which he made for himself whereof divers particulars have been mentioned in the course of his Defence 1. That he is a Counsellor and might not be questioned for any thing which he advised according to his conscience The ground is true there is a liberty belongs to Counsellors and nothing corrupts Counsels more then fear He that will have the priviledge of a Counsellor must keep within the just bounds of a Counsellor those matters are the proper subjects of Counsell which in their times and occasions may be good or beneficiall to the King or Common-wealth But such Treasons as these the subversion of the Laws violation of Liberties they can never be good or justifiable by any circumstance or occasion and therefore his being a Counsellor makes his fault much more hainous as being committed against a greater Trust and in a way of much mischiefe and danger lest his Majesties conscience and judgement upon which the whole course and frame of his Government do much depend should be poysoned and infected with such wicked principles and designes And this he hath endeavoured to doe which by all Lawes and in all times hath in this Kingdome beene reckoned a Crime of an high Nature 2. He labours to interest your Lordships in his cause by alledging It may be dangerous to your selves and your Posterity who by your birth are fittest to be near his Majesty in places of Trust and Authority if you should be subject to be questioned for matters delivered in Counsell To this was answered that it was hoped their Lordships would rather labour to secure themselves and their posterity in the exercise of their vertues then of their vices that so they might together with their own honour and greatnesse preserve the honour and greatnesse both of the King and Kingdome 3. Another excuse was this that whatsoever he hath spoken was out of a good intention Sometimes good and evill truth and falshood lie so near together that they are hardly to be distinguished Matters hurtfull and dangerous may be accompanied with such circumstances as may make it appeare usefull and convenient and in all such cases good intentions will justifie evill Counsell But where the matters propounded are evill in their own nature such as the matters are wherewith the E. of Strafford is charged to break a publique faith to subvert Laws and Government they can never be justified by any intentions how specious or good soever they be pretended 4. He alledgeth it was a time of great necessity and danger when such counsels were necessary for preservation of the State Necessity hath been spoken of before as it relates to the Cause now it is considered as it relates to the Person if there were any necessity it was of his own making he by his evil counsell had brought the King into a necessity and by no Rules of Iustice can be allowed to gain this advantage by his own fault as to make that a ground of his justification which is a great part of his offence 5. He hath often insinuated this That it was for his Majesties service in maintenance of that Soveraign Power with which he is intrusted by God for the good of his people The Answer is this No doubt but that Soveraign Power wherewith his Majesty is intrusted for the publique good hath many glorious effects the better to inable him thereunto But without doubt this is none of them That by his own will he may lay any Taxe or Imposition upon his people without their consent in Parliament This hath now been five times adjudged by both Houses In the Case of the Loanes In condemning the Commission of Excise In the Resolution upon the Saving offered to be added to the Petition of Right In the sentence against Manwaring and now lately In condemning the Ship-money And if the Soveraigne Power of the King can produce no such effect as this the Allegation of it is an Aggravation and no Diminution of his offence because thereby he doth labour to interest the King against the just grievance and complaint of the People 6. This Counsell was propounded with divers limitations and Provisions for securing and repairing the liberty of the people This implies a contradiction to maintain an Arbitrary absolute Power and yet to restrain it with limitations and provisions for even those limitations and provisions will be subject to the same absolute Power and to be dispensed in such manner and at such time as it self shall determine let the grievances and oppressions be never so heavy the Subject is left without all remedy but at his Majesties own pleasure 7. He alledgeth they were but words and no effect followed This needs no answer but that the miserable distempers into which he hath brought all the three Kingdomes will be evidence sufficient that his wicked Counsels have had such mischievous effects within these two or three last years that many years peace will hardly repaire those losses and other great mischiefes which the Common-wealth hath sustained These excuses have been collected out of the severall parts of his Defence perchance some others are omitted which I doubt not have been answered by some of my Collegues and are of no importance either to perplex or to hinder your Lordships judgement touching the hainousnesse of this Crime The ninth Consideration is this That if this be Treason in the nature of it it doth exceed all other Treasons in this That in the Design and endeavour of the Author it was to be a constant and a permanent Treason other Treasons are transient as being confinde within those particular actions and proportions wherein they did consist and those being past the Treason ceaseth The Powder-Treason
My Lords if the Earle had armed two thousand men horse and foot and formed them into companies to this end your Lordships would have conceived that this had beene a warre It 's as much as in the case of Sir Thomas Talbot who armed them in assemblies This is the same with a breach of trust added to it That Army was first raised and afterwards committed to his trust for defence of the people is now destined by him to their destruction This assignation of the Army by his Warrant under his hand and seale is an open Act. My Lords heer 's not onely an open act done but a levying of warre Souldiers both horse and foot with an Officer in warlicke manner sessed upon the Subject which killed their Cattell consumed and wasted their goods Ob. O but five or sixe were the most imimployed at any time a mighty warre of six men scarce a Ryot Your Lordships observe a great difference where six single men goe upon a designe alone and when sent from an Army of six hundred all engaged in the same service so many were sent as were sufficient to execute the Command if upon a poore man fewer more upon a rich if the six had not beene able the whole Army must make it good the reason that the Sheriffe alone or with but one Bayliffe to doe execution is because hee hath the Command of the Law the Kings Writ and the posse Comitatus in case of Resistance heer 's the warrant of the Generall of an Army heer 's the posse exercitus the power of the Army under this awe of the whole Army six may force more then sixty without it and although never above fix in one place yet in the severall parts of the Kingdome at the same time might be above sixty for sessing of Souldiers was frequent it was the ordinary course for execution of his orders The Lord Lievetenant of a County in England hath a designe to alter the Lawes and governement nay admit the designe goes not so high hee onely declares thus much that he will order the freeholds and estates of the Inhabitans of the County at his owne will and pleasure and doth accordingly proceed upon paper petitions foreseeing there will be disobedience he grants out warrants under his hand and seale to the deputy Lievetenants and Captaines of the traine bands that upon refusall they shall take such number of the traine bands thorow the County with Officers as they shall think good and lay them upon the lands and houses of the refusers Souldiers in a warlike manner are frequently sessed upon them accordingly Your Lordships doe conceive that this is a levying of Warre within the Statute The Case in question goes further in these two Respects That it is more against the declared Law in Ireland not onely against the Common Law but likewise against the Statute of the eight and twentieth yeare of Henry the sixt against the Acts of the Commissioners against Proclamations in pursuance of the Law against that himselfe took notice of narrow hearted Comissioners In this that here was an Army the Souldiers Souldiers by profession Acts of hostility from them of greater Terror then from free-holders of the same County My Lords I have now done with the first of levying warre The second is the machination the advising of a warre The Case in this rests upon the Warrant to Savill and the advice in the 23 Article The Warrant shewes a resolution of employing the old Army of Ireland to the opprossion of his Majesties Subjects and the Lawes In the 23 Article having told his Majesty that he was loosed and absolved from rules of Government and might doe every thing which power might admit hee proceeded further in speech to his Majesty in these words You have an Army in Ireland You may employ to reduce this Kingdome My Lords both being put together ther 's a machination a practise an advise to levy warre and by force to oppresse and destroy his Majesties Subjects Object It hath beene said the Statute of 25. Edw. 3. is a penall Law and cannot bee taken by equity and Construction there must be an actuall warre the Statute makes it Treason to counterfeit the Kings Coyne the conspiring the raising of furnaces is no Treason unlesse he doth nummum percutere actually coyne Answ My Lords this is onely said not proved the Law is otherwise 19. of Henry the sixt fol. 47. there adjudged that the conspiring and ayding to counterfeit coyne was Treason and Iustice Stamford fol. 3. 44. is of opinion That this or conspiring to counterfeit the great Seale is Treason The Statute is If any shall counterfeit the great Seale conspiring to doe it by the book is Treason if a man take the broad Seale from one Pattent and put it to another here is no counterfeiting its tuntamount and therefore Treason as is adjudged in 2. Henry 4. fo 25. and by the opinion of Stamford If machination or plotting a warre be not within that clause of the Statute of levying warre yet it s within the first of compassing the death of the King as that which necessarily tends to the destruction both of the King and of the people upon whose safety and protection he is to engage himselfe That this is Treason hath beene adjudged both after the Statutes of the first of Henry the fourth Chapter the tenth the first of Queene Mary the first Chapter so much insisted upon on the other side In the third yeare of King Henry the fourth one Balshall comming from London found one Barnard at plough in the Parish of Ofley in the County of Hertford Bernard asked Balshall what newes he told him the newes was That King Richard the second was alive in Scotland which was false for he was then dead and that by Midsomer next he would come into England Bernard asked him what was best to be done Balshall answered get men and goe to King Richard In Michaelmas Tearme in the third yeare of Henry the fourth in the Kings Bench rot 4. this advise of warre adjudged Treason In Queene Maries time Sir Nicholas Throckmorton conspired with Sir Thomas Wyat to levy warre within this Realme for alteration in Religion he joyned not with him in the execution This Conspiracy alone declared to be Treason by the Judges This was after the Statute of the first of Queene Mary so much insisted upon That Parliament ended in October this opinion was delivered the Easter-Tearme after and is reported by Justice Dyer fo 98. It 's true Sir Thomas Wyat afterwards did levy warre Sir Nicholas Throgmorton hee onely conspired this adjudged Treason Storie in Queene Elizabeths time practised with Forreiners to levy warre within the Kingdome nothing done in pursuance of the practise The intent without any adhering to Enemies of the Queene or other cause adjudged to be Treason and he executed thereupon It 's true my Lords that yeare 13. Elizabeth by Act of Parliament it 's made Treason
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