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
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
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
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
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
would have done to others It s true we give law to Hares and Deeres because they be beasts of Chase It was never accounted either cruelty or foul play to knock Foxes and Wolves on the head as they can be found because these be beasts of prey The Warrener sets traps for Powlcats and other Vermine for preservation of the Warren Further my Lords most dangerous diseases if not taken in time they kill Errors in great things as Warre and Marriage they allow no time for repentance it would have been too late to make a law when there had been no law My Lords for further answer to this objection he hath offended a law a law within the endeavouring to subvert the lawes and politie of the state wherein he lived which had so long and with such faithfulnesse protected his Ancestry himself and his whole family it was not malum quia prohibitum it was malum in se against the dictates of the dullest conscience against the light of nature they not having the law were a law to themselves Besides this he knew a law without That the Parliament in cases of this nature had potestatem vitae necis Nay he well knew that he offended the promulged and ordinary rules of law Crimes against law have been proved have been confessed so that the question is not de culpa sed de poena what degree of punishment those faults deserve we must differ from him in opinion that twenty felonies cannot make a treason if it be meant of equality in the use of the Legislative power for he that deserves death for one of these felonies alone deserves a death more painful and more ignominious for all together Every felony is punished with losse of life lands and goods a felony may bee aggravated with those circumstances as that the Parliament with good reason may adde to the circumstances of punishment as was done in the case of John Hall in the Parliament of 1. H. 4. who for a barbarous murder committed upon the Duke of Glocester stifling him between two feather-beds at Calice was adjudged to be hanged drawn and quartered Batteries by Law are punishable only by fine and single dammages to the party wounded In the Parliament held in 1. H. 4. cap. 6. one Savadge committed a Battery upon one Chedder fervant to Sir John Brooke a knight of the Parliament for Sommersetshire It s there enacted that he shall pay double dammages and stand convicted if he render not himselfe by such a time The manner of proceedings quickned the penalty doubled the circumstances were considered it concerned the Common-wealth it was Battery with breach of priviledge of Parliament This made a perpetuall Act no warning to the first offendor And in the Kings Bench as appears by the booke case of 9. H. 4. the first leafe double dammages were recovered My Lords in this of the Bill the offence is high and generall against the King and the Common-wealth against all and the best of all If every Felony be losse of life lands and goods what is misuser of the Legislative power by addition of Ignominie in the death and disposall of the lands to the Crowne the publicke patrimony of the kingdome But it was hoped that your Lordships had no more skill in the Art of killing of men then your worthy Ancestors My Lords this appeale from your selves to your Ancestors we admit of although we do not admit of that from your Lordships to the Peers of Ireland He hath appealed to them your Lordships will be pleased to heare what Judgement they have already given in the Case that is the severall attainders of treason in Parliament after the Statute of 25. E. 3. for treasons not mentioned nor within that Statute and those upon the first offendors without warning given By the Statute of 25. E. 3. its treason to levy war against the King Gomines and Weston afterwards in Parliament in 1. R. 2. num 38. 39. adjudged traitors for surrendring two severall Castles in France onely out of feare without any compliance with the Enemy this not within the Statute of 25. E. 3. My Lords in 3. R. 2. John Imperiall that came into England upon letters of safe conduct as an Agent for the state of Genoah sitting in the Evening before his doore in Breadstreete as the words of the Records are paulo ante ignitegium John Kirby and another Citizen comming that way casually Kirby trode upon his Toe it being twilight this grew to a quarrell and the Embassadour was slaine Kirby was indicted of high treason the inditement findes all this and that it was onely done se defendendo and without malice The Judges it being out of the Statute of 25. E. 3. could not proceede the Parliament declared it treason and judgement afterwards of high treason there 's nothing can bring this within the Statute of 25. E. 3. but it concernes the honour of the Nation that the publicke faith should be strictly kept It might endanger the trafficke of the Kingdome they made not a Law first they made the first man an example This is in the Parliament roll 3. R. 2. num 18. and Hilary Terme 3. R. 2. Rot. 31. in the Kings Bench where judgment is given against him In 11. R. 2. Tresilian and some others attainted of treason for delivering opinions in the subversion of the Law and some others for plotting the like My Lords the case hath upon another occasion beene opened to your Lordships only this is observable That in the Parliament of the first yeare of Henry the third where all treasons are again reduced to the Statute of 25. E. 3. these Attainders were by a particular Act confirmed and made good that the memory thereof might bee transmitted to succeeding ages They stand good unto this day the Offences there as here were the endeavouring the subversion of the lawes My Lords after 1. H. 4. Sir John Mortimer being committed to the Tower upon suspicion of treason brake prison and made an escape This no way within any Statute or any former Judgment at common Law for this that is for breaking the prison only and no other cause in the Parliament held the second yeer of Henry the sixth hee was attainted of high treason by Bill My Lords Poysoning is only murder yet one Richard Coke having put poyson into a pot of pottage in the kitchin of the Bish of Rochester whereof two persons died hee 's attainted of treason and it was enacted that he should bee boyled to death by the Statute of 22. H. 8. cap. 9. By the Statute of 25. H. 8. Elizabeth Barton the holy maid of Kent for pretending revelations from God that God was highly displeased with the King for being divorced from the Lady Katherine and that in case he persisted in the separation and should marry another that he would not continue King above one moneth after because this tended to the depriving of the lawfull succession to the Crowne shee is attainted of treason In the Parliament 2. 3. H. 6. cap. 16. the Lord Admirall of England was attainted of treason for procuring the Kings Letters to both Houses of Parliament to be good to the said Earle in such matters as hee should declare unto them for saying that hee would make the Parliament the blackest Parliament that ever was in England endevouring to marry the Lady Elizabeth the Kings sister taking a bribe of Sherrington accused of treason and thereupon consulting with Councell for him and some other crimes none of them treason so cleerely within the Statute of 25. E. 3. or any other Statute as is the case in question My Lords All these Attainders for ought I know are in force at this day the Statutes of the first yeere of Henry the fourth and the first of Qu. Mary although they were willing to make the Statute of the five and twentieth yeere of Edward the third the rule to the inferiour Courts yet they left the Attainders in Parliament precedent to themselves untoucht wherein the Legislative power had been exercised There 's nothing in them whence it can be gathered but that they intended to leave it as free for the future My Lords In all these Attainders there were crimes and offences against the Law they thought it not unjust circumstances considered to heighten and add to the degrees of punishment and that upon the first offender My Lords We receive as just the other Lawes and Statutes made by these our Ancestors they are the rules wee goe by in other cases why should we differ from them in this alone These My Lords are in part those things which have satisfied the Commons in passing of the Bill It is now left to the Judgement and Justice of your Lordships FINIS
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
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
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
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
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