to intend the levying of warre this Case was adjudged before the Parliament The Case was adjudged in Hillary Terme the Parliament began not untill the Aprill following This my Lords is a Case adjudged in point That the practising to levy warre though nothing be done in execution of it is Treason Object It may be objected that in these Cases the conspiring being against the whole Kingdome included the Queene and was a compassing her destruction as wel as of the Kingdomes heere the advise was to the King Answ 1 The Answer is first that the warrant was unknowne to his Majesty that was a machination of warre against the people and Lawes wherein his Majesties person was engaged for protection That the advice was to his Majesty aggravates the offence it was an Attempt not only upon the Kingdome but upon the Sacred Person and his office too himselfe was host is patriae he would have made the Father of it so too nothing more unnaturall more dangerous To offer the King poyson to drink telling him that it is a Cordiall is a compassing of his death The poyson was repelled there was an antidote within the malice of the giver beyond expression The perswading of Forreiners to invade the kingdome holds no proportion with this Machination of warre against the Lawes or kingdome is against the King they cannot be severed My Lords if no actuall warre within the The 3. Generall Head Statute if the counselling of a warre if neither of these single Acts be Treason within the Statute The Commons in the next place have taken it into their consideration what the addition of his other words Counsells and Actions do operate in the Case and have conceived That with this addition all being put together that he is brought within the Statute of 25. Edward 3. The words of the Statute are if any man shall compasse or imagine the death of the King the words are not if any man shall plot or consult the death of the King no my Lords they go further then to such things as are intended immediately directly and determinatively against the life and person of the King they are of a larger extent to compasse is to doe by Circuit to consult or practice another thing directly which being done may necessarily produce this effect However it be in the other Treasons within this Statute yet in this by the very words there is roome left for constructions for necessary Inferences and Consequences What hath beene the judgement and practice of former times concerning these words of compassing the Kings death will appeare to your Lorships by some Cases of attainders upon these words One Owen in King James his time in the 13. yeare of his raigne at Sandwich in Kent spake these words That King James being excommunicated by the Pope may be killed by any man which killing is no murther being asked by those he spake too how he durst maintaine so bloudy an assertion hee answered that the matter was not so heynous as was supposed for the King who is the lesser is concluded by the Pope who is the greater and as a Malefactor being condemned before a Temporall Judge may be delivered over to be Executed so the King standing convicted by the Popes sentence of excommunication may justly be slaughtered without fault for the killing of the King is the execution of the Popes supreame sentence as the other is the execution of the Law for this judgement of High-Treason was given against him and execution done My Lords here is no cleere intent appearing that Owen desired the thing should bee done onely Arguments that it might bee done This is a Compassing there is a cleare Endeavour to corrupt the judgement to take off the bonds of Conscience the greatest security of the Kings life God forbid saith one of better judgement then he That I should stretch out my hand against the Lords annointed no saith he the Lord doth not forbid it you may for these reasons lawfully kill the King He that denies the Title to the Crowne and plots the meanes of setting it upon another head may doe this without any direct or immediate desiring the death of him that then weares it yet this is Treason as was adjudged in 10. Henry 7. in the case of Burton and in the Duke of Norfolkes case 13. Elizabeth This is a compassing of his death for there can no more be two Kings in one Kingdome then two sunnes in the Firmament he that conceives a title counts it worth ventring for though it cost him his life hee that is in possession thinkes it as well worth the keeping John Sparhauke in King Henry the fourths time meeting two men upon the way amongst other talke said that the King was not rightfull King but the Earle of March and that the Pope would grant indulgencies to all that would assist the Earles title and that within halfe a yeare there would be no Liveries nor Conizances of the King that the King had not kept promise with the people but had layed taxes upon them In Easter Tearme in the third yeare of Henry the fourth in the Kings Bench Rot. 12. this adjudged Treason This denying the title with motives though but implyedly of Action against it adjudged Treason this is a compassing the Kings death How this was a compassing the Kings death is declared in the reasons of the judgement That the words were spoken with an intent to withdraw the affections of the people from the King and to excite them against the King that in the end they might rise up against him in mortem destructionem of the King My Lords in this Judgement and others which I shall cite to your Lordships It appeares that it is a compassing the Kings death by words to indeavour to draw the peoples hearts from the King to set discord between the King and them wherby the people should leave the King should rise up against him to the death and destruction of the King The cases that I shall cite prove not onely that this is Treason but what is sufficient evidence to make this good Upon a Commission held the 18. yeare of Ed. 4. in Kent before the Marquesse of Dorset others an Inditement was preferred against Iohn Awater of High-Treason in the forme before mentioned for words which are entred in the enditment sub hâc formâ That he had been servant to the Earle of Warwick that though he were dead the Earle of Oxford was alive and should have the government of part of the Country That Edward whom you call King of England was a false man and had by art and subtilty slain the Earle of Warwick and the Duke of Clarence his brother without any cause who before had beene both of them attainted of High-Treason My Lords this Inditement was returned into the Kings Bench in Trinity Tearme in the eighteenth yeare of Edward the fourth and in Easter Tearme in the two and twentieth yeare of Edward
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
warre-like manner and yet no levying of warre within the Statute that is when the forces are raised and imployed upon private ends either of revenge or interest Before this Statute in E. 1. time The Title of a Castle was in difference between the Earles of Hereford and Gloster for the mainetaining of the possession on the one side and gayning of it on the other Forces were raised on either side of many hundred men they marched with Banners displayed one against the other In the Parliament in the 20. yeere of Edw. 1. this adjudged onely trespasse and either of the Earls fined a 1000. markes a peece After the Statute in Hillary Terme the fiftieth yeere of Edward the third in the Kings Bench Rot. 3. Nicholas Huntercome in a warre-like manner with 40. men armed amongst other weapons with Gunnes so antient as appeares by that Record they were did much spoyle in the Mannor of the Abbee of Dorchester in the County of Oxford This no Treason So it hath beene held by the Judges that if one or more Towneships upon pretence of saving their Commons doe in a forecible and warre-like manner throwe in Inclosures This is onely a Riot noe Treason The words of the Statute of 25. E. 3. cleare this Point that if any man ride armed openly or secretly with men at Armes against any other to kill and robbe or to detaine him untill hee hath made fine and ransome for his deliverance this is declared not to bee Treason but Fellony or Trespasse as the case shall require all the printed Statutes which have it covertly or secretly are mis-printed for the words in the Parliament Roll as appeares n. 17. are Discovertment on secreretment openly or secretly So that my Lords in this of levying warre the Act is not so much to bee considered but as in all other Treasons and Fellonies quo animo with what intent and purpose Object My Lords If the end bee considerable in levying warre it may bee said that it cannot bee a Treason warre unlesse against the King For the wordes of the statute are If any man levy warre against the King Answ That these words extend further then to the Person of the King appeares by the wordes of the Statute which in the beginning declares it to be Treason to compasse and imagine the Kings death and after other Treasons this is to be declared to be Treason to levy warre against the King If the levying of warre extend no further then to the person of the King These words of the Statute are to no purpose for then the first Treason of compassing the Kings death had fully included it before because that hee which levies warre against the person of the King doth necessarily compasse his death It s a warre against the King when intended for alteration of the Lawes or Government in any part of them or to destroy any of the great Officers of the Kingdome This is a levying of Warre against the King Because the King doth protect and maintaine the Lawes in every part of them and the great Officers to whose care hee hath in his owne steede delegated the Execution of them Because they are the Kings Lawes Hee is the Fountaine from whence in their severall Channels they are derived to the Subject all our inditements run thus Trespasses laied to bee done Contrapacem Domini Regis the Kings peace for exorbitant offences though not intended against the Kings Person against the King his Crowne and Dignity My Lords this construction is made good by diverse Authorities of great weight ever since the statute of 25. E. 3. down-wards In R. the 2 ds time Sir Thomas Talbot conspired the death of the Dukes of Glocester and Lancaster and some other of the Peeres for the effecting of it hee had caused diverse people in the County of Chester to be armed in warre-like manner in Assemblies In the Parliament held the seventeenth yeere of Richard the second number the 20. Sir Thomas Talbot accused of high Treason for this It s there declared that insomuch as one of them was Lord high Steward of England and the other high Constable of England that this was done in destruction of the estates of the Realme and of the Lawes of the Kingdome and therefore adjudged Treason and the judgement sent downe into the Kings Bench as appeares Easter-Tearme in the seventh yeere of Richard the second in the Kings Bench Rott 16. These two Lords had appeared in the eleventh yeere of Richard the second in mainetenance of the Act of Parliament made the yeare before one of them was of the Commissioners appointed by Parliament and one of the Appellours of those that would have overthrowne it The Duke of Lancaster likewise was one of the Lords that was to have beene indicted of Treason for endeavouring the maintenance of it and therefore conspiring of their deaths is said to be in destruction of the Lawes This there declared to bee a Treason that concerned the Person of the King and the Common-wealth In that great insurrection of the Villains and meaner people in Richard the seconds time they tooke an oath Quod Regi Comunibus fidelitatem servarent to bee true to the King and Commons that they would take nothing but what they paid for punished all theft with death heere 's no intendment against the person of the King The intent was to abolish the Law of villinage and servitude to burne all the Records to kill the Judges this in the Parliament of the fifth yeere of Richard the second number the one and thirtieth and two and thirtieth the first part is declared to be Treason against the King and against the Law In the eleventh yeere of Richard the second in Parliament the raising of forces against the Commissioners appointed by act of Parliament the yeer before adjudged Treason by all the Judges The Statute of 1. Mar. cap. 12. inacts that if twelve or more shall indeavour by force to alter any of the Lawes or Statutes of the Kingdome hee shall from such a time there limited bee adjudged onely as a fellon This act was to continue but to the next Parliament it is expired it shewes by the words onely that the offence was higher before the making of it My Lords In Queene Elizabeths time Grant and diverse Prentices of London to the number of 200. rose and assembled at Tower-hill carried a Cloake upon a Pole insteede of a banner their intent was to deliver divers Prentices out of prison that had beene committed upon a sentence in Star-Chamber for ryots To kill the Lord Major of London and for setting prices on victuals In Trinity Tearme 37. Eliz. divers of the Iudges consulted withall and resolved that this was a levying of warre against the Queene being intended against the government and officers of the Queen and thereupon Grant and others executed as Traitors Afterwards in that Queenes time divers of the County of Oxford consulted together to goe from house to house in
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
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
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
wills and consent but upon their own costs and without hurt doing to the Commons and if any so do he shall be judged as Traitor 1. The Argument that hath been made concerning the Person That it extends not to the King and therefore not to him weighs nothing with your Lordships Rex non habet in regno parem from the greatnesse of his office to argue himselfe into the same impossibility with his sacred Majesty of being uncapable of High-Treason it 's an Offence no reason The words in the Statute No Lord nor any other of what condition soever he be includes every Subject In Trinity Terme in the three and thirtieth yeare of Henry the eight in the Kings Bench Leonard Lord Gray having immediately before been Lord Deputy of Ireland is attainted of High-Treason and Judgement given against him for letting diverse Rebels out of the Castle of Dublin and discharging Irish hostages and pledges that had been given for securing the Peace for not punishing one that said the King was an Heretique I have read the whole Record ther 's not one thing laid to his charge but was done by him as Lord Leivetenant He had the same Plea with my Lord of Strafford That these things were no adhering to the Kings Enemies but were done for reasons of State That he was not within those words of the Satute of the five and twentieth yeare of Edward the third himselfe being Lord Lieutenant there they cost his life Object 2 It hath been said That the Souldiers sessed upon the Subjects by him were not such persons as are intended by that Statute Hoblers Kerves and hooded men these rascall people Answ My Lords they were the names given to the Souldiary of those times Hoblers horsemen the other the foot but the words of the Statute goe further Nor any other people neither horse nor foot his Lordship sessed upon them both horse and foot Object 3 The Statute extends only to them that leade or bring Savill led them my Lord only gave the warrant Answ To that I shall say only thus plus peccat author quam actor by the rule of Law agentes consentientes pari plectuntur paenâ if consent much more a command to doe it makes the commandor a Traitor If there be any Treason within this Statute my Lord of Strafford is guilty It hath been therfore said That this Statute like Goliab's sword hath beene wrapt up in a cloth and laid behind the doore that it hath never been put in execution Answ My Lords if the Cleark of the Crowne in Ireland had certified your Lordships that upon search of the Judgements of Attainders in Ireland he could not finde that any man had bin attainted upon this Statute your Lordships had had some ground to beleeve it yet its onely my Lord of Straffords affirmation Besides your Lordships know that an Act of Parliament binds untill it bee repealed It hath bin therefore said that this Statute is repealed by the Statutes of the eight yeere of Edward the fourth the first Chapter and of the tenth yeere of Henry the seventh the two and twentieth Chapter because by these two Statutes the English Statutes are brought into Ireland The Argument if I mistook it not stood thus That the Statute of the first of Henry the fourth the 10. Chapter saith that in no time to come Treason shall be adjudged otherwise then it was ordained by the Statute of the 25. yeare of Edward the third That the Treason mentioned in the 18 yeere of Henry the sixt in the Irish Statute is not contained in the Stat. of the 25 yeere of Ed. the 3. and therfore being contrary to the Statute of the first of Henry the fourth it must needs be void My Lords the difference of the times wherin the Statute of the first yeere of Henry the fourth and that of the 18 yeere of Henry the sixt were made cleares the Point as is humbly conceived that of Henry the sixt was made 40 yeares after the other The Statute of the eighth yeare of Edward the fourth and the tenth of Henry the seventh bringing in the English Statutes in order and series of time as they were made one after another as afterwards is prooved they did it cannot be that the Statute of the first yeere of Henery the fourth made fourty yeere before should repeale or make void the Statute of the 18. H. 6. made so long after The rule of Law is that Leges posteriores priores abrogant that latter lawes repeale former but by this construction a former Lawe should repeale and make voide a Non ens a Statute that then was not If this were Lawe then all the Statutes that made any new Treason after the first yeere of Henery the fourth were voide in the very fabricke and at the time when they were made hence likewise it would follow that the Parliament now upon what occasion soever hath noe power to make any thing Treason not declared to bee so in the Statute of the five and twentieth yeere of Edward the third This your Lordshippes easily see would make much for my Lord of Straffords advantage but why the Law should bee so your Lordshippes as yet have onely heard an affirmation of it no reason But some touch was given that this Statute of the tenth yeere of Henery the seventh in words makes all the Irish Statutes voide which are contrary to the English The Answer to this is a deniall that there are any such wordes in the Statute This Statute declares that the English Statutes shall bee effectuall and confirmed in Ireland and that all Statutes before time made to the contrary shall bee revoked this repeales onely the Irish Statutes of the tenth yeere of Henerie the fourth and the nine and twentieth yeere of Henerie the sixt which say that the English Statutes shall not bee in force in Ireland unlesse particularly received in Parliament It makes all the Irish Statutes voide which say that the English Statutes shall not bee in force there It is usuall when a Statute saith that such a thing shall bee done or not done to adde further that all Statutes to the contrary shall be voide No likeli-hood that this Statute intended to take away any Statute of Treason When but in the Chapter next before this Murder there is made Treason as if done upon the Kinges Person That this Statute of the eighteenth yeare of Harry the sixt remaines on foote and not repealed either by the Statute of the eighth yeere of Edward the fourth or this of the tenth yeere of Henerie the seventh appeares expressely by two severall Acts of Parliament made at the same Parliament of the tenth yeere of Henry the seventh By an Acte of Parliament in Henry the sixt time in Ireland it was made Treason for any man to procure a privie Seale or any other Command whatsoever for apprehending any person in Ireland for Treason done without that Kingdome and to put any such Command
in execution Diverse had beene attaineted of Treason for executing such Commands Heere is a Treason soe made by Acte of Parliament in Henry the sixt time In the third Chapter of this Parliament of the tenth of Henry the seventh an Act is passed for no other end then to repeale this Statute of Henry the sixt of Treason If this Statute of Henry the sixt of Treason had beene formerly repealed by the Statute of 8. Edw. 4. or then by the two and twentieth Chapter of this Parliament of 10. H. 7. by bringing in the English Statutes the Law-makers were much mistaken now to make a particular Act of Parliament to repeale it it being likewise so unreasonable an Act as it was In the eighth Chapter of this Parliament of the tenth of Henry the seaventh It 's enacted That the Statutes of Killkenny and all other Statutes made in Ireland two onely excepted whereof this of the eighteenth of Henry the sixt is none for the Common-weale shall bee enquired off and executed My Lord of Strafford saith that the bringing in of the English Statutes hath repealed this Statute of the eighteenth yeere of Henry the sixt the Acte of Parliament made the same time saith noe it saith that all the Irish Statutes excepting two whereof this is none shall still bee in force Object Oh! But however it was in 10. Hen. 7. yet it appeares by Judgement in Parliament afterwards That this Statute of the eighteenth yeere of Henry the sixt is repealed and that is by the Parliament of the eleventh yeere of Queene Elizabeth the seventh Chapter That by this Parliament it is enacted that if any man without license from the Lord Deputie lay any Souldiers upon the Kings Subjects if hee bee a Peere of the Realme hee shall forfeite one hundred pounds if under the degree of a Peere 100. markes This Statute as is alleadged declares the penalty of laying Souldiers upon the Subjects to bee onely a hundred pounds and therefore it s not Treason Answer My Lords if the offence for which this penalty of one hundered pounds is laid upon the offender bee for laying Souliders or leading them to doe any acts offensive or invasive upon the Kinges people The Argument hath some force but that the offence is not for laying Souldiers upon the true Subjects that this is not the offence intended in the Statute will appeare to your Lordshippes Ex absurdo from the wordes of it The words are That if any man shall assemble the people of the Country together to conclude of peace or warre or shall carry those people to doe any Acts offensive or invasive then hee shall forfeite one hundred pounds If concluding of warre and carrying the people to Acts invasive bee against the Kinges Subjects this is high Treason within the words of the Statute of the five and twentieth yeere of Edward the third For if any Subject shall assemble the people and conclude a warre and accordingly shall leade them to invade the Subject this is a levying of warre within the wordes of that Statute and then the Statutes of the five and twentieth yeer of Edward the third the first of Henry the fourth and the first of Queene Mary which the Earle of Strafford in his Answer desires to bee tryed by are as well repealed in this point as the Statute of the eighteenth yeere of Henrie the sixt hee might then without feare of Treason have done what hee pleased with the Irish Army for all the Statutes of levying warre by this Statute of the eleventh Yeere of Queene ELIZABETH were taken out of his way In Ireland a Subject gathers forces concludes a warre against the Kings people actually invades them blood-shedde burning of houses Depredations ensue two of those that is murder and burning of houses are Treason and there the other fellony by this construction the punishment of Treason and fellony is turned onely into a fine of one hundred pounds from losse of life lands and all his goods onely to losse of part of his goods The third absurdity a warre is concluded three severall Inrodes are made upon the Subject in the first a hundred pound Damage in the second five thousand pound Dammage in the third tenne thousand pound Dammage is done to the Subjects the penalty for the last inrode is no more then for the first only one hundred pounds This Statute by this construction tells any man how to get his living without long labour Two parts of the hundred pounds is given to the King a third part to the informer heer 's no dammage to the Subject that is robbed and destroyed My Lords the Statute will free it selfe and the makers of it from these absurdities The meaning of this Statute is That if any Captaine shall of his owne head conclude of peace or warre against the Kings Enemies or Rebels or shall upon his owne head invade them without warrant from the King of the Lord Deputie of Ireland that then hee shall forfeite a hundred pounds The offence is not for laying of Souldiers upon the Kings people but making of warre against the Irish Rebells without warrant the offence is not in the matter but in the manner for doing a thing lawfull but without mission 1. This will appeare by the generall scope of the Stat. all the parts being put together 2. By particular clauses in the Statute And 3. By the Condition of that Kingdome at the time of the making of that Statute For the first The preamble recites that in time of Declination of Justice under pretext of defending the Country and themselves divers great men arrogated to themselvs regal authority under the names of Captains that they acquired to themselves that government which belonged to the Crowne for preventing of this It s enacted that no man dwelling within the Shire grounds shall thenceforth assume or take upon himselfe the authority or name of a Captaine within those Shire grounds without Letters Pattents from the Crown nor shall under colour of his Captainesship make any demand of the people of any exaction nor as a Captaine assemble the people of the Shire grounds nor as a Captaine shall leade those people to doe any acts offensive or invasive without warrant under the great Seale of England or of the Lord Deputie upon penalty that if hee doe any thing contrary to that act then the Offendor shall forfeite a hundred pounds My Lords the Rebells had beene out the Courts of justice scarce sat for defence of the Country diverse usurped the place of Captaines concluded of warre against the Rebells invaded them without warrant invading the Rebells without authority is the crime This appeares further by particular clauses in the Statute none shall exercise any Captaineship within the Shire grounds nor assemble the men of the Shire grounds to conclude of Warre or leade them to any invasion That that had anciently beene so continued to this time that is the Irish and the English pale they within the
Shire grounds were within the English pale and ad fidem legem Angliae the Irish that were without the pale were 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