Concerning the Bill of Attainder of High Treason, Text

Concerning the Bill of Attainder of High Treason · Text

p. 1M^R. S^T. JOHN'^S Argument.

My Lords,

THE Knights, Citizens, and Burgeſſes of the Commons Houſe of Parliament have paſſed a Bill for the attainting of Thomas Earle of Strafford of High-Treaſon. The Bill hath beene tranſmitted from them to your Lordſhips. It concernes not him alone, but your Lordſhips and the Commons too, though in different Reſpects.

It is to make him as miſerable a man, as man or Law can make him.

Not loſſe of life alone, but with that, of honour, name, poſterity, and eſtate; Of all that's deare to all.

To uſe his owne expreſſion, an eradication of him both root and branch, as an Achan, a troubler of the State, as an execrable, as an accurſed thing.

This Bill, as it concernes his Lordſhip, the higheſt that can be in the penall part, ſo doth it on the other ſide as highly concerne your Lordſhips and the Commons in that which ought to be the tendreſt, the Judicatory within, that that judge not them who judge him: And in that which is moſt ſacred amongſt men, the publick Juſtice of the Kingdome.

The Kingdome is to be accounted unto for the loſſe of the meaneſt member, much more for one ſo neare the head.

The Commons are concerned in their Account for what is done, your Lordſhips in that which is to be done.

The buſineſſe therefore of the preſent Conference, is to acquaint your Lordſhips with thoſe things that ſatisfied the Commons in paſſing of this Bill, ſuch of them as have come p. 2within my capacity, and that I can remember, I am commanded from the Commons at this time to preſent unto your Lordſhips.

My Lords, in Judgements of greateſt moment, there are but two wayes for ſatisfying thoſe that are to give them, Either the Lex lata, the Law already eſtabliſhed, Or elſe the uſe of the ſame power for making new Lawes, whereby the old at firſt received life.

In the firſt conſideration, of the ſetled Lawes; In the degrees of puniſhment the poſitive Law received by generall conſent, and for the common good, is ſufficient to ſatisfie the conſcience of the Judge in giving judgement according to them.

In ſeverall Countreys there is not the ſame meaſure of puniſhment for one and the ſame offence. Wilfull murder in Ireland is Treaſon, and ſo is the wilfull burning of a houſe or ſtack of Corne. In the Iſle of Man, it's felony to ſteale a Hen, but not to ſteale a Horſe; and yet the Judge in Ireland hath as juſt a ground to give judgement of high Treaſon in thoſe Caſes there, as here to give judgement only of felony, and in the Iſle of Man of felony for the Hen, as here of petty Larceny.

My Lords, in the other conſideration of uſing the Supreame power, the ſame Law gives power to the Parliament to make new Lawes, that enables the inferiour Court to judge according to the old. The rule that guides the conſcience of the Inferiour Court is from without, the preſcripts of the Parliament and of the Common Law; in the other the rule is from within; That ſalus populi be concerned; That there be no wilfull oppreſſion of any the fellow members, that no more blood be taken than what is neceſſary for the Cure, the Laws and Cuſtomes of the Realme as well enable the exerciſe of this, as of the ordinary and judiciall power.

My Lords, what hath beene ſaid, is becauſe that this proceeding of the Commons by way of Bill, implyes the uſe of the meere Legiſlative power, in reſpect new Lawes are for the moſt part paſt by Bill.

This, my Lords, though juſt and Legall, and therefore not wholly excluded, yet it was not the only ground that put the p. 3Commons upon the Bill, they did not intend to make a new Treaſon, and to condemne my Lord of Strafford for it, they had in it other Conſiderations likewiſe, which were to this effect.

1 Firſt, the Commons knew that in all former ages, if doubts of Law aroſe upon caſes of great and generall Concernment, the Parliament was uſually conſulted withall for reſolution; which is the reaſon that many Acts of Parliament are only declarative of the Old Law, not introductive of a new, as the great Charter of our Liberties; the Statute of the five and twentieth yeere 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 bee altered, and new Lawes made) the fitteſt Judge to cleare this doubt.

2 Secondly, my Lords, they proceeded this way to out thoſe ſcruples and delayes, which through diſ-uſe of proceedings of this nature might have riſen in the manner and way of proceeding, ſince the Statute of the firſt of Henry 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 beene 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 neere this 200 yeeres, but by this way of Bill. And againe, they knew that whatſoever could be done any other way, it might be done by this.

3 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 p. 4way 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 beene ſingle or double Teſtimony; and although ſingle Teſtimony might be ſufficient to ſatisfie private Conſciences, yet how farre it would have been ſatisfactory in a judiciall way where forms 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 been given in at al.

My Lords, the proceeding by way of Bill, it was not to decline your Lordſhips Juſtice 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 ſureſt way.

My Lords, Theſe are in effect, the things the Commons took 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 took into their Conſideration, in reſpect of the matter and merits of the Cauſe; They are comprehended within theſe ſix 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 war, yet by adviſing and declaring his intention of war, 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 been 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 ſeſſed 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 p. 5Cognizance 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 tyrannicall Government 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. 1. 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 ſix Conſiderations hold, The Commons conceive that upon the whole matter they had good cauſe to paſſe the Bill.

My Lords, for the firſt of levying Warre, I ſhall make bold to read the Caſe to your Lordſhips before I ſpeak to it; it's thus:

The Earle did by warrant under his hand and Seale give authority to Robert Savill a Serjeant at Arms, and his Deputies, to ſeſſe ſuch number of Souldiers, horſe and foot of the Army in Ireland together with an officer, as the Serjeant ſhould think 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 foot, upon divers of the Subjects of Ireland againſt their will in warlike manner, and at divers times the Souldiers continued upon the parties upon whom they were ſeſſed, and waſted their goods, until ſuch time as they had ſubmitted themſelves unto thoſe Summons and orders.

p. 6My Lords, This is a levying of warre within the ſtatute of 250. 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.

1 What ſhall be a levying of Warre, in reſpect of the motive or cauſe of it.

2 What ſhall be ſaid a levying of warre in reſpect of the Action orthing done.

3 And in the third place, I ſhall apply them to the preſent Caſe.

It will be granted in this of levying of warre, That forces may be raiſed and likewiſe uſed in a war-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 onelyonly treſpaſſe, and either of the Earles fined 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 war-like manner, with 40 men armed, amongſt other weapons, with Gunnes (ſo ancient as appeares by that Record they were) did much ſpoyle in the Mannour 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 Townſhips upon pretence of ſaving their Commons, doe in a forcible and war-like manner, throw in Incloſures; This is only a Riot, no Treaſon.

The words of the Statute of 25. Edw. 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 he hath made fine and ranſome for his deliverance; this p. 7is declared not to be Treaſon, but Fellony or Treſpaſſe, as the caſe ſhall require, all the printed Statuts which have it covertly or ſecretly are miſ▪ printed; for the words in the Parliament Roll, as appeares n. 17. are Diſcovertment ou ſecreretment openly or ſecretly.

So that my Lords, in this of levying warre, the Act is not ſo much to be conſidered, but as in all other Treaſons and Fellonies, quo animo, with what intent and purpoſe.

Obj. My Lords, If the end be conſiderable in levying warre, it may be ſaid, that it cannot be a Treaſon warre, unleſſe againſt the King: For the words of the ſtatute are, If any man levy warre againſt the King.

Anſ. That theſe words extend further then to the Perſon of the King appears by the words of the Statute, which in the begining declares it to be Treaſon to compaſſe & imagine the Kings death, and after other Treaſons, this is to be declared to be Treaſon to levy war againſt the King. If the levying of war 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 he which levies war againſt the perſon of the King doth neceſſarily compaſſe his death.

Its 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 War againſt the King.

1 Becauſe the King doth protect and maintaine the Laws in every part of them, and the great Officers to whoſe care he hath in his own ſteed delegated the Execution of them.

2 Becauſe they are the Kings Lawes, He is the Fountaine from whence in their ſeverall Channels they are derived to the Subject; all our inditements run thus, Treſpaſſes laied to be done, Contra pacem 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. downwards.

In R. the 2^ds. time Sir Thomas Talbot conſpired the death of the Dukes of Gloceſter and Lancaſter, & ſome other of the Peeres; for the effecting of it, he had cauſed diverſe people in the County of p. 8Cheſter 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; Its 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 in Eaſter-Tearme in the ſeventh yeer 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 yeere 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 be a Treſon that concerned the Perſon of the King and the Commonwealth.

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 be true to the King and Commons, that they would take nothing but what they paid for, puniſhed all theft with death, here's no intendment againſt the perſon of the King; The intent was to aboliſh the Law of villainage 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 yeere before adjudged Treaſon by all the Judges.

The Statute of 1. Mar. cap. 12. enacts 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 be adjudged onelyonly as a fellon; This act was to continue but to the next Parliament, it is expired; it ſhewes by the words onelyonly p. 9that the offence was higher before the making of it.

My Lords, In Queene Elizabeths time, Grant and divers Prentices of London, to the number of 200. roſe and aſſembled at Tower-hill, carried a Cloake upon a Pole inſtead 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 prizes on victuals. In Trinity Tearme 37. Eliz. divers of the Judges conſulted withall, and reſolved that this was a levying of warre againſt the Queene, being intended againſt the government and officers of the Queene, 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 that County, and thence to London & 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 Queene.

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 Queen, they agreed that if it had beene of one Towneſhip or more upon private intereſt and claime of right of Common, it had not bin Treaſon; But this was to throw in all incloſures thorough the Kingdome, wherto 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 & things done; There's a deſigne to alter ſome part of the Lawes and preſent Governement, for the effecting thereof people be provided of Armes, gathered together into troopes, but afterwards match not with Banners diſplayed, nor doe Bellum percutere. p. 10Whether 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 otherſide?

2. From the words of the Statute, ſhall levy warre, & 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 he cauſed divers of the people of the County of Cheſter to be armed in a war like manner in aſſemblies; heere is no marching, no banners diſplayed.

In the eighth yeer of Henry the 8^th. William Bell and Thomas Lacy in Com' Kanc. conſpired with Thomas Cheney, called the Hermite of the Queene of Fairies, 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 own perſon, an arbitrary power over the lives, liberties and eſtates of his Majeſties Subjects, and determined Cauſes upon paper petitions at his own will and pleaſure, obedience muſt be forced by the Army, this declared by the Warrant.

2 My Lords, if it be 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 been cited to your Lordſhips, upon other occaſions, the things in themſelves were not Treaſon, p. 11they were not a levying of Warre.

In that of Cambridge, the Town 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 Vniverſity over the Town.

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 been 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 firſt yeare of Richard the ſecond, number the one and thirtieth, and two and thirtieth, where the Towns of Cambridge and Bridgewater are expreſly excepted out of the generall pardon made to the Villaines. This being done in Reference to that deſigne of the villaines of altering the Lawes, this was that which 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 he might order and determine of mens eſtates at his own pleaſure? This was againſt the Law notoriouſly declared in Ireland.

In the cloſe roll in the Tower, in the five and twentieth yeere of Ed. 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.

6 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.

p. 12The 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 victuals, or of Merton for Incloſures. Here is a warre againſt the King in reſpect of the end.

2. In reſpect of the Actions, whether there be either a levying of war, 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. 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 been a war, 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 & ſeale is an open Act.

2. My Lords, heer's not onelyonly an open act done but a levying of war, ſouldiers both horſe and foot, with an Officer in warlike manner ſeſſed upon the ſubject, which killed their Cattell, conſumed and waſted their goods.

Ob. O, but five or ſixe were the moſt imployed at any time, a mighty warre of ſix men, ſcarce a Ryot.

Anſ. 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 but with one Bayliffe to doe execution, is, becauſe he hath 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 poſſ… p. 13exercitus, the power of the Army, under this awe of the whole Army, ſix may force more then ſixty without it, and although never above ſix 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 Lievtenant of a County in England hath a deſigne to alter the Lawes and government, nay admit the deſign goes not ſo high, he onelyonly declares thus much, that he will order the freeholds and the eſtates of the Inhabitants 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 Lievtenants 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.

1 That it is more againſt the declared Law in Ireland, not only 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 Commiſſioners.

2 In this that here was an Army, the Souldiers, Souldiers by profeſſion, Acts of hoſtility from them of greater Terror than from free-holders of the ſame County.

My Lords, I have now done with the firſt of levying warre.

2 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 oppreſſion of his Majeſties Subjects and the Lawes.

In the 23 Article, having told his Majeſty that hee was looſed and abſolved from rules of Government, and might doe every thing which power might admit, he proceeded further in ſpeech p. 14to his Majeſty, in theſe words; You have an Army in Ireland you may employ to reduce this Kingdome.

My Lords, both being put together, there's a machination, a practiſe, an adviſe to levie warre, and by force to oppreſſe and deſtroy his Majeſties Subjects.

Obj. 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 onelyonly ſaid, not proved, the Law is otherwiſe, … 9. of Henry the ſixt, fol. 47. there adjudged that the conſpiring and ayding to counterfeit coyne was Treaſon; and Juſtice 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, it's 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 hee is to engage himſelfe: That this is Treaſon, hath beene adjugded both after the Statutes of the firſt of Henry the fourth, chapter the tenth, and 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 Bernard at plough in the pariſh of Ofley in the Connty of Hertford; Bernard asked Balſhall, what news, hee told him the newes was, That King Richard the ſecond was alive in Scotland (which was falſe, for hee 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 Terme, in the third yeare of Henry the fourth, in the Kings Bench, rot. 4. this adviſe of warre adjudged Treaſon.

p. 15In Queene Maries time, Sir Nicholas Thr…gmorton conſpired with Sir Thomas Wyat to levie warre within this Realme for alteration in Religion, he joyned not with him in the execution. This Conſpiracy alone declared to bee 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-Terme after, and is reported by Juſtice Dyer, fo. 98. It's true, Sir Thomas Wyat afterwards did levie warre, Sir Nicholas Throgmorton hee onelyonly 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 bee Treaſon, and hee executed thereupon. It's truemy Lords, that yeare 13. Elizabeth by Act of Parliament, it's made Treaſon 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 April 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.

Obj. 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 well as of the Kingdomes; here the advice was to the King.

Anſ. 1. The anſwer is, firſt, that the warrant was unknowne to his Majeſty, that was a machination of warre againſt the people and Laws, wherein his Majeſties perſon was engaged for protection.

2. 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 hoſtes patriae, hee 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. p. 16The 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 Statute, if the counſellingThe third generall Head. of a war, 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 my man ſhall plot or conſult the death of the King, no my Lords, they go further than 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 Lordſhips by ſome caſes of attainders upon theſe words.

One Owen in King Iames his time in the 13. yeere of his raigne at Sandwich in Kent, ſpake theſe words, That King Iames being excommunicated by the Pope, may bee killed by any man; which killing is no murther: being asked by thoſe he ſpake to, how he durſt maintaine ſo bloody an aſſertion? he anſwered that the matter was not ſo haynous as was ſuppoſed; for the King who is the leſſer, is concluded by the Pope who is the greater; and as a Malefactor being condemned before a Temporall Judge, may bee delivered over to bee Executed; p. 17ſo the King ſtanding convicted by the Popes ſentence of excommunication, may juſtly be ſlaughtered without fault; for the killing of the King is the execution of the Popes ſupreame ſentence, as the other is the execution of the Law: for this, judgement of High Treaſon was given againſt him, and execution done.

My Lords, here is no cleere intent appearing that Owen deſired the thing ſhould bee done, only Arguments that it might be done, This is a compaſsing, there is a cleere Endeavour to corrupt the judgement, to take off the bonds of conſcience, the greateſt ſecurity of the Kings life; God forbid ſaith one of better judgement than he, That I ſhould ſtretch out my hand againſt the Lords annointed, no ſaith he, the Lord doth not forbid it, you may for theſe reaſons lawfully kill the King.

Hee that denies the Title to the Crown, and plots the meanes of ſetting it upon another head, may doe this without any direct or immediate deſiring the death of him that then weares it, yet this is Treaſon, as was adjudged in 10. Henry 7. in the caſe of Burton, and in the Duke of Norfolks caſe. 13. Elizabeth.

This is a compaſsing of his death, for there can no more be two Kings in one Kingdome, than two Suns in the Firmament; he that conceives a title, counts it worth ventring for, though it coſt him his life, he that is in poſſeſſion thinks it as well worth the keeping. Iohn Sparhauke in King Henry the fourths time, meeting two men upon the way, amongſt other talk ſaid, that the King was not rightfull King, but the Earle of March, and that the Pope would grant indulgencies to all that would aſſiſt the Earles title, and that within halfe a yeree there would be no Liveries nor Conizances of the King, that the King had not kept promiſe with the people, but had layd taxes upon them. In Eaſter Terme in the third yeere of Henry the fourth in the Kings Bench, Rot. 12. this adjudged Treaſon. This denying the title with motives though but implyedly of Action againſt it, adjudged Treaſon, this is a compaſsing the Kings death.

How this was a compaſsing the Kings death, is declared in the reaſons of the judgement; That the words were ſpoken with an intent to withdraw the affections of the people from the p. 18King, and to excite them againſt the King, that in the end they might riſe up againſt him in mortem & deſtructionem of the King.

My Lords, in this Judgement and others which I ſhall cite to your Lordſhips, It appeares that it is a compaſsing the Kings death by words, to indeavour to draw the peoples hearts from the King, to ſet diſcord betweene the King and them, whereby the people ſhould leave the King, ſhould riſe up againſt him to the death and deſtruction of the King.

The caſes that I ſhall cite, prove not onelyonly that this is Treaſon, but what is ſufficient evidence to make this good.

Upon a Commiſsion held the 18. yeere of Edw. 4. in Kent, before the Marqueſſe of Dorſet and others, an Inditement was preferred againſt John Awater of High-Treaſon, in the forme before mentioned, for words which are entred in the enditement ſub hac forma, That he had beene ſervant to the Earle of Warwicke, that though he were dead, the Earle of Oxford was alive, and ſhould have the government of part of the Countrey, That Edward whom you call King of England, was a falſe man, and had by art and ſubtlety ſlaine the Earle of Warwicke and the Duke of Clarence his brother, without any cauſe, who before had beene both of them attainted of High-Treaſon.

My Lords, this Inditement was returned into the Kings Bench in Trinity Tearme in the eighteenth yeere of Edward the fourth, and in Eaſter Tearme in the two and twentieth yeere of Edward the fourth he was outlawed, by the ſtay of the outlawry, ſo long it ſeemes the Judges had well adviſed before whether it were Treaſon or not.

At the ſame Seſsion Thomas Hober was indited of Treaſon for theſe words, That the laſt Parliament was the moſt ſimple and inſufficient Parliament that ever had beene in England. That the King was gone to live in Kent, becauſe that for the preſent he had not the love of the Citizens of London, nor ſhould he have it for the future. That if the Biſhop of Bath and Wels were dead, the Archbiſhop of Canterbury, being Cardinall of England, would immediately loſe his head. This inditement was returned into the Kings Bench in Trinity Tearme in the eighteenth yeere of Edward the fourth. p. 19Afterwards there came a Privy Seale to the Judges to reſpit the proceedings, which as it ſhould ſeeme was to the intent the Judges might adviſe of the Caſe, for afterwards he is outlawed of high-Treaſon upon this inditement.

Theſe words were thought ſufficient evidence to prove theſe ſeverall Inditements, That they were ſpoken to withdraw the peoples affection from the King, to excite them againſt him, to cauſe riſings againſt him by the people, in mortem & deſtructionem of the King.

Your Lordſhips are pleaſed to conſider that in all theſe Caſes, the Treaſon was for words onelyonly, words by private perſons, and in a more private manner, but once ſpoken and no more, onelyonly amongſt the people, to excite them againſt the King.

My Lords, here are words, Counſels more than words, and actions too, not onelyonly to diſ-affect the people to the King, but the King likewiſe towards the people; not once but often, not in private, but in places moſt publique, not by a private perſon, but by a Counſellor of State, a Lord Lieutenant, a Lord Preſident, a Lord Deputy of Ireland.

1 To his Majeſty, That the Parliament had denied to ſupply him; a ſlander upon all the Commons of England in their affections to the King and Kingdome, in refuſing to yeeld timely ſupply for the neceſsities of King and Kingdome.

2 From thence, That the King was looſe and abſolved from rules of government, and was to doe every thing that power would admit. My Lords, more cannot be ſaid, they cannot be aggravated, whatever I ſhould ſay would be in diminution.

3 Thence, You have an Army in Ireland you may imploy to reduce this Kingdome.

To counſell a King not to love his people, is very unnaturall, it goes higher, to hate them, to malice them in his heart; the higheſt expreſsions of malice, to deſtroy them by warre: Theſe coales they were caſt upon his Majeſty, they were blowne, they could not kindle in that breſt.

Thence, my Lords, having done the utmoſt to the King, hee goes to the people▪ At York the Country being me… together for Juſtice, at the open Aſsizes upon the Bench, he tels them, ſpeaking p. 20of the Juſtices of the Peace, that they were all for Law, nothing but Law, but they ſhould find that the Kings little finger ſhould be heavier than the loines of the Law.

They ſhall find, my Lords, who ſpeakes this to the people, a Privie Counſellour; this muſt be either to traduce his Majeſty to the people as ſpoken from him, or from himſelfe, who was Lord Lieutenant of the County and Preſident, intruſted with the forces and Juſtice of thoſe parts, that he would imploy both this way; add, my Lords, to his words there the exerciſing of an arbitrary and vaſt Juriſdiction before he had ſo much as Inſtructions or colour of warrant.

Thence we carry him into Ireland, there he repreſented by his place the ſacred perſon of his Majeſty.

1 There at Dublyn, the principall City of that Kingdome, whither the Subjects of that Countrey came for Juſtice, in an Aſſembly of Peeres and others of greateſt ranke, upon occaſion of a ſpeech of the Recorder of that City touching their Franchiſes and Legall Rights, he tels them, that Ireland was a conquered Nation, and that the King might doe with them what he pleaſed.

2 Not long after, in the Parliament 10. Car. in the Chaire of State, in full Parliament, againe, That they were a conquered Nation, and that they were to expect Lawes as from a Conquerour; before, The King might doe with them what he would; now, They were to expect it, that he would put this power of a Conquerour in execution. The Circumſtances are very conſiderable, in full Parliament, from himſelfe in Cathedra, to the repreſentative body of the whole Kingdome.

The occaſion adds much, when they deſire the benefit of the Lawes, and that their Cauſes and Suites might be determined according to Law, and not by himſelfe, at his will and pleaſure upon paper Petitions.

3 Upon like occaſion of preſsing the Lawes and Statutes, That hee would make an Act of Counſell board in that Kingdome as binding as an Act of Parliament.

4. He made his words good by his actions, aſſumed and exerciſed a boundleſſe and lawleſſe Juriſdiction over the lives p. 21perſons, and eſtates of his Majeſties Subjects, procured judgement of death againſt a Peere of that Realme, commanded another to be hanged, this was accordingly executed, both in times of high Peace, without any proceſſe or colour of Law.

5. By force for a long time he ſeiſed the yarne and flax of the Subjects, to the ſtarving and undoing of many thouſands, beſides the Tobacco buſineſſe, and many Monopolies and unlawfull Taxes, forced a new Oath not to diſpute his Majeſties royall commands, determined mens eſtates at his owne will and pleaſure upon paper Petitions to himſelfe, forced Obedience to theſe, not onelyonly by Fines and Impriſonment, but likewiſe by the Army, ſeſſed Souldiers upon the refuſers in a hoſtile manner.

6. Was an Incendiary of the warre betweene the two Kingdomes of England and Scotland.

My Lords, we ſhall leave it to your Lordſhips Judgements, whether theſe words, Counſells, and Actions would not have beene a ſufficient Evidence to have proved an Inditement drawne up againſt him, as thoſe before mentioned, and many others are; That they were ſpoken and done to the intent to withdraw the Kings heart from the people, and the affections of the people from the King, that they might leave the King, and afterwards riſe up againſt him to the deſtruction of the King; if ſo, here is a compaſſing of the Kings death within the words of the Statute of the five and twentieth yeare of Edward the third, and that warranted by many former judgements.

My Lords, I have now done with the three Treaſons within theThe fourth generall Head. Statute of the five and twentieth of Edward the third. I proceed to the fourth upon the Statute of the eighteenth yeare of Henry the ſixt, Chapter the third in Ireland; I ſhall make bold to read the words to your Lordſhips,

That no Lord, nor any other of what condition ſoever he be, ſhall bring or lead hoblers, kerves, or hooded men, nor any other people, nor horſes to lie on horſeback or on foot upon the Kings Subjects without their good wills and conſent, but upon their owne coſts, and without hurt doing to the Commons, and if any ſo doe he ſhall be judged as Traitor.

1. The Argument that hath been made concerning the Perſon, p. 22That it extends not to the King, and therefore not to him, weighs nothing with your Lordſhips, Rex non habet in regne parem, from the greatneſſe of his office to argue himſelfe into the ſame impoſſibility with his ſacred Majeſty of being uncapable of High-Treaſon, it's an Offence, no reaſon; The words in the Statute, No Lord nor any other of what condition ſoever he be, includes every Subject.

In Trinity Terme in the three and thirtieth yeare of Henry the eighth, in the Kings Bench, Leonard Lord Gray, having immediately before been Lord Deputy of Ireland, is attainted of High-Treaſon, and judgement given againſt him for letting divers Rebels out of the Caſtle of ▪ Dublin, and diſcharging Iriſh hoſtages and pledges that had been given for ſecuring the Peace, for not puniſhing one that ſaid the King was an Heretique, I have read the whole Record, ther's not one thing laid to his charge but was done by him as Lord Leivetenant: Hee had the ſame Plea with my Lord of Strafford, That theſe things were no adhering to the Kings Enemies, but were done for reaſons of State, That he was not within thoſe words of the Statute of the five and twentieth yeare of Edward the third, himſelfe being Lord Lievtenant there, they coſt his life.

Obj. 2. It hath been ſaid, That the Souldiers, ſeſſed upon the Subjects by him, were not ſuch perſons as are intended by that Statute, Hoblers, Kerves, and hoodedmen, theſe raſcall people.

Anſw. My Lords, they were the names given to the Souldiary of thoſe times, Hoblers horſemen, the other the foot, but the words of the Statute goe further, Nor any other people, neither horſe nor foot, his Lordſhip ſeſſed upon them both horſe and foot.

Object. 3. The Statute extends only to them that leade or bring▪ Savill led them, my Lord onelyonly gave the warrant.

Anſw. To that I ſhall ſay onelyonly thus, plus peccat author quam actor, by the rule of Law, agentes & conſentientes pari plectuntur panâ, if conſent, much more a command to doe it, makes the commander a Traitor. If there bee any Treaſon within this Statute, my Lord of Strafford is guilty.

It hath been therefore ſaid, That this Statute like Goliah's ſword hath been wrapt up in a cloth and laid behind the doore, that it hath never been put in execution. p. 23Anſw. My Lords, if the Clerk of the Crown in Ireland had certified your Lordſhips that upon ſearch of the Judgements of Attainders in Ireland, he could not finde that any man had been attainted upon this Statute, your Lordſhips had had ſome ground to believe it, yet it is onelyonly my Lord of Straffords affirmation: Beſides your Lordſhips know that an act of Parliament binds untill it be repealed.

It hath been therefore ſaid, that this Statute is repealed by the Statutes of the eighth 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 Satutes, 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 adjuged otherwiſe, then it was ordained by the Statute of the 25. yeere of Edward the third: That the Treaſon mentioned in the 18 yeere of Henry the ſixth in the Iriſh Satute is not contained in the Statute of the 25 yeere of Edward the 3. and therefore being contrary to the ſtatute of the firſt of Henry the fourth, it muſt needs be void.

My Lords, the difference of the times wherein the ſtatute of the firſt yeere of Henry the fourth, and that of the 18 yeere of Henry the ſixth were made, cleare the Point, as is humbly conceived; that of Henry the ſixth was made fourty yeeres after the other.

The ſtatute of the eighth yeere 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 proved they did) it cannot be that the ſtatute of the firſt yeere of Henry the fourth made fourty yeere before, ſhould repeale or make void the ſtatute of the 18. Henry 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 Law ſhould repeale and make void a Non ens; a ſtatute then was not.

If this were Law, then all the ſtatutes that made any new Treaſon after the firſt yeere of Henry the fourth, were void 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 no power to make any thing Treaſon not declared to be ſo in the ſtatute of the five and twentieth yeere of Edward the third; This your Lordſhips eaſily ſee would make much for my Lord of p. 24Straffords advantage; but why the Law ſhould be ſo, your Lordſhips as yet have onelyonly heard an affirmation of it▪ no reaſon.

But ſome touch was given, that this ſtatute of the tenth yeer of H. the ſeventh, in words makes all the Iriſh ſtatutes void, which are contrary to the Engliſh. The Anſwer to this, is a deniall that there are any ſuch words in the ſtatute: This ſtatute declares, that the Engliſh ſtatutes ſhall be effectuall and confirmed in Ireland, and that all ſtatutes, before time, made to the contrary ſhall be revoked: this repeales onelyonly the Iriſh ſtatutes of the tenth yeere of Henry the fourth, and the nine and twentieth yeere of Honry the ſixth, which ſay that the Engliſh ſtatutes ſhall not be in force in Ireland, unleſſe particularly received in Parliament; It makes all the Iriſh ſtatutes void, which ſay that the Engliſh ſtatutes ſhall not be in force there.

It is uſuall when a Statute ſaith, that ſuch a thing ſhall be 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 Kings Perſon.

That this ſtatute of the eighteenth yeer of Henry the ſixth remains on foot and not repealed, either by the Statute of the eighth yeere of Edward the fourth, or this of the tenth yeere of Henry 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 Act of Parliament in H. the ſixth's 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; Divers had been attainted of Treaſon for executing ſuch Commands: Heere is a Treaſon ſo made by Act of Parliament in Henry the ſixth's 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 ſixth, of Treaſon.

If this ſtatute of Henry the ſixth of Treaſon, had been formerly repealed by the ſtatute of 8. Edward 4. or then by the two and twentieth Chapter of this Parliament of 10. Henry 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.

p. 25In the eighth Chapter of this Parliament, of the tenth of Henry the ſeventh; It is enacted, That the ſtatutes of Kilkenny and all other ſtatutes made in Ireland (two onelyonly excepted, whereof this of the eighteenth of Henry the ſixth is none) for the Common-weale ſhall be 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 ſixth; the Act of Parliament made the ſame time ſaith no; it ſaith that all the Iriſh ſtatutes, excepting two, whereof this is none, ſhall ſtill be in force.

Object. Oh! But how ever it was in 10. H. 7. yet it appeares by Judgement in Parliament afterwards, That this ſtatute of the eighteenth yeere of Henry the ſixth 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 he be a Peere of the Realme, he ſhall forfeit 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 onelyonly a hundred pounds; and therefore its not Treaſon.

Anſwer, My Lords, if the offence for which this penalty of one hundred pounds, is laid upon the offender▪ be for laying Souldiers, or leading them to doe any acts oftenſive or invaſive upon the Kings 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 Lordſhips, Ex abſurdo, from the words of it.

The words are, That if any man ſhall aſſemble the people of the County together to conclude of peace, or warre; or ſhall carry thoſe people to doe any Acts offenſive or invaſive, then he ſhall forfeit one hundred pounds; If concluding of warre and carrying the people to Acts invaſive, be againſt the Kings 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 lead them to invade the Subject, this is a levying of warre within the word of that ſtatute; and then the ſtatutes of the five and twentieth yeere of Edward the third, the firſt of Henry the fourth, and the firſt of Queene Mary, which the Earle of Strafford in his Anſwer deſires to be tryed by, are as well repealed in this point, as the ſtatute of the eighteenth yeere of Henry p. 26the ſixth, he might then without feare of Treaſon have done what he pleaſed with the Iriſh Army; for all the ſtatutes of levying war, by this ſtatute of the eleventh yeer of Queene Elizabeth were taken out of his way.

In Ireland a Subject gathers forces, concludes a warre againſt the Kings people, actually invades them; bloodſhed, burning of houſes, Depredations enſue; two of thoſe, that is, murder and burning of houſes are Treaſon, and there the other felony; by this conſtruction the puniſhment of Treaſon and felony is turned onelyonly into a fine of one hundred pounds; from loſſe of life, lands, and all his goods, onelyonly to loſſe of part of his goods.

3 The third abſurdity; a warre is concluded, three ſeverall Inrodes are made upon the Subject; in the firſt, a hundred pound dammage; in the ſecond, five thouſand pounds dammage; in the third, ten thouſands pound dammage is done to the Subjects; the penalty for the laſt inrode is no more than for the firſt, onelyonly one hundred pounds. This ſtatute by this conſtruction tells any man how to get his living without long labour.

Two parts of the hundred pounds is given to the King, a third part to the informer; here's no dammage to the Subject that is robbed and deſtroyed.

My Lords, the Statute will free it ſelfe and the makers of it from theſe abſurdities.

The meaning of this ſtatute is, That if any Captaine ſhall of his own head conclude of peace or war, against the Kings Enimies or Rebels, or ſhall upon his owne head invade them, without warrant from the King, or the Lord Deputie of Ireland, that then he ſhall forfeit an hundred pounds.

The offence is not for laying of Souldiers upon the Kings people, but making of warre againſt the Iriſh Rebells without warrant; the offence …s not in the matter, but in the manner, for doing a thing lawfull, but without miſſion.

1 This will appeare by the generall ſcope of the ſtatute, all the parts being put together.

2 By particular clauſes in the Statute.

3 By the Condition of that Kingdome at the time of the making of that ſtatute.

For the firſt, The preamble recites that in time of Declination of Juſtice under pretext of defending the Countrey and themſelves, divers p. 27great men arrogated to themſelves Regall authority under the names of Captaines, that they acquired to themſelves that government which belonged to the Crown. for preventing this Its enacted, that no man dwelling within the Shire grounds, ſhall thenceforth aſſume or take upon himſelfe the authority of name of a captaine within thoſe Shire grounds, without Letters Pattents from the Crowne, nor ſhall under colour of his captaine-ſhip make any demand of the people of any exaction, nor as a captaine aſſemble the people of the ſhire grounds; nor as a captaine ſhall lead thoſe people to doe any acts offenſive or invaſive without warrant under the great Seale of England, or of the Lord Deputy, upon penalty that if he do any thing contrary to that act, then the Offender ſhall forfeit an hundred pounds.

My Lords, the Rebels had been out, the courts of juſtice ſcarce ſate for defence of the countrey, diverſe uſurped the place of Captaines, concluded of warre againſt the Rebels and invaded them without warrant; invading the Rebels without authority is the crime.

2. This appeares further by the particular clauſes in the ſtatute; None ſhall exerciſe any captaine-ſhip within the ſhire grounds, nor aſſemble the men of the ſhire grounds to conclude of warre, or lead them to any invaſion.

That that had anciently beene ſo continued to this time, that is, the Iriſh and the Engliſh pale, they within the ſhire grounds were within the Engliſh pale, and ad fidem & legem Angliae; the Iriſh that were without the pale were enimies alwayes either in open act of hoſtility or upon leagues, and hoſtages given for ſecuring the peace. And therefore as here in England, we had our marches upon the frontiers in Scotland and Wales, ſo were their Marches betweene the Engliſh and Iriſh pale, where the inhabitants held their Lands by this tenure to defend the Countrey againſt the Iriſh, as appeares in the cloſe Rols of the Tower in the twentieth yeere of Edward the third, membranâ 15. on the backſide; and in an Iriſh Parliament held the 42. yeere of Edward the 3. Its declared, that the Engliſh pale was almoſt deſtroyed by the Iriſh enimies, and that there was no way to prevent the danger, but onelyonly that the owners reſide upon their Lands for defence, and that abſence ſhould bee a forfeiture. This act of Parliament p. 28in a great counſell here was affirmed, as appeares in the cloſe Roll, the 22. yeere of Edward the third, membra. 20. dorſe.

Afterwards as appeares▪ in the Statute of the 28. yeere of Henry the 6. in Ireland, this hoſtility continued betweene the Engliſh marches and the Iriſh enemies, who by reaſon there was no difference betweene the Engliſh marches and them, in their apparell, did daily not being knowne to the Engliſh, deſtroy the Engliſh within the pale. Therefore its enacted, that every Engliſhman ſhall ſhave the haire of his upper lip, for diſtinction ſake. This hoſtility continued, till the 10. yeere of Henry the 7. as appeares by the Statute of the tenth of Henry the 7. the 17. Chapter; and ſo ſucceſſively downeward, till the making of this very ſtatute of the 11. yeere of Queene Elizabeth, as appeares fully in the ninth chapter.

Nay immediately before, and at the time of the making of this ſtatute, there was not onelyonly enmity betweene thoſe of the Shire grounds; that is, the Engliſh and Iriſh pale; but open Warre and Acts of hoſtility, as appeares by Hiſtory of no leſſe authority, then that ſtatute it ſelfe. For in the firſt Chapter of this ſtatute is the Attainder of Shane O Neale, who had made open Warre, was ſlaine in open Warre. It's there declared, that he had gotten by force all the North of Ireland, for an hundred and twenty miles in length, and above a 100. in breadth; that hee had maſtered divers places within the Engliſh pale. When the flame of this warre by his death immediately before this ſtatute was ſpent, yet the fire-brands were not all quenched; for the rebellion was continued by Iohn Fitz Gerard called the white Knight, and Thomas Queverford: This appeares by the Statute of the 13. yeere of Queene Elizabeth in Ireland, but two yeeres after this of the eleventh yeere of Queene Elizabeth, where they are attainted of high treaſon, for levying Warre this eleaventh yeere, wherein this Statute was made.

So that my Lords, immediately 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 be intended againſt no others, but the Iriſh enemies.

p. 29Againe 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 be 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 lead 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 bee 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 onelyonly 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 been framed ſtands thus; Becauſe the ſtatute of the eleventh yeere 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. yeere of Henry the ſixth is repealed, which makes it Treaſon to lay ſouldiers upon, or to levie war againſt the Kings good people.

But my Lords, obſervation hath been made upon other words of this ſtatute, that is, that without licence of the Deputy, theſe things cannot be done: This ſhewes, that the Deputy is within none of the 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 p. 30reſiſt or proſecute the enimy, 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 yeere of Henry the ſeventh the 17. Chapter touched upon for this purpoſe, cleares the buſineſſe in both points; for there it is declared, that none ought to make warre upon the Iriſh rebels and enimies, without warrant from the Lieutenant, the forfeiture a 100 pounds as here the ſtatute is the ſame with this, and might as well have beene cited for repealing the ſtatute of the eighteenth yeere of Henry the 6. as this of the 11. yeere of Queene Elizabeth: but if this had been inſiſted upon, it would have expounded the other two cleare againſt him.

Object. My Lords, it hath been further ſaid, although the ſtatute be 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 Iohn Perrot his predeceſſors in the 24. yeere of Queene Elizabeth was tried in the Kings bench for Treaſon done in Ireland, when he was Deputy; Orucke in the 33. yeere of Queene Elizabeth judged heere for Treaſon done Ireland.

Object. But it will be ſaid, theſe trials were after the ſtatute of the 34. yeere of Henry the eight, which enacts, that treaſons beyond ſea may be tried in England.

Anſw. My Lords, his predeceſſor my Lord Gray was tried and adjudged here in the Kings bench, that was in Trinity terme in the 33. yeere of Henry the eighth, this was before the making of that ſtatute▪

Object. To this againe will be ſaid, that it was for Treaſon by the Lawes and ſtatutes of England; but this is not for any thing, that's Treaſon by the Law of England, but by an Iriſh ſtatute.

So that the queſtion is onelyonly, whether your Lordſhips in Parliament here have cogniſance of an offence made treaſon by an p. 31Iriſh 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:

1. Whether the rule for expounding the Iriſh Statutes and cuſtomes bee one, and the ſame in England, as in Ireland.

2. 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 primitive and the generall Law, that's the rule and expoſitour of of them and of their ſeverall extents; it is ſo here, 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 Iohn, and afterwards by King Henry the third by act of Parliament held in England, as appeares by the pattent Rolls of the 30 yeere of King Henry the third, the firſt membranâ. The words are, Quia pro communi utilitate terrae Hiberaniae, & unitate terrarum Regis, Rex vult, & de commune conſilio Regis proviſum eſt, quòd omnes leges & conſuetudines quae in regno Angliae tenentur, in Hibernia teneantur, & eadem terra eiſdem legibus ſubjaceat, & per eaſdem regatur, ſicut Dominus Johannes Rex cum ultimò eſſet in Hibernia, ſtatuit, & fieri mandavit. Quia, &c. Kex vult quod omnia brevia de p. 32communi Jure quae currunt in Angliae, ſimilitèr currant in Hibernia ſub novo ſigillo Regis, mandatum eſt Archiepiſcopis, &c. quod pro pace & tranquillitate ejuſdem terrae, per eaſdem leges eos regi & deduci permittant, & eas in omnibus ſequantur. In cujus, &c. Teſte Rege, apud Woodſtock, decimo nono die Septembris.

Here's an union of both Kingdomes, and that by act of Parliament, and the ſame Lawes to be uſed heere as there, in omnibus.

My Lords, That nothing might be 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 14. yeere of Edward the ſecond (it is not in print neither, but is in the Parliament booke) That the Lawes 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 Ed. the 3. part. 1. membr. 25.

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.

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 ſome times 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 onelyonly 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 p. 33are 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 be let out of priſon upon tender of their Compurgators. The words of the Statute of the 5. yeere of Ed. 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 Book of Juſtice Anderſon, one of the Judges conſulted withall. The Judges here delivered opinion upon an Iriſh Statute in caſe of Treaſon.

If it be objected, That in this caſe the Judges here did not judge upon the party; their opinions were only ad informandam 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 beene offered.

For the ſecond point, That England hath no power of Judicature for things done in Ireland; My Lords, the conſtant practice of ages proves the contrary.

Writs of errour in Pleas of the Crowne, as well as in civill cauſes, have in all Kings reignes been brought here, even in the inferiour Courts of Weſtminſter Hall, upon judgements given in the courts of Ireland: The practice is ſo frequent, and 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 p. 34roſe upon an Iriſh Statute, or cuſtome.

Object. But it will bee ſaid, That writs of errour are onelyonly upon a failer of juſtice in Ireland; and that ſuits cannot originally bee commenced here for things done in Ireland, becauſe the Kings writ runs not in Ireland.

Anſw. This might be a good plea in the Kings Bench, and inferiour Courts at Weſtminſter Hall; the queſtion is, whether it bee ſo in Parliament. The Kings writ runs not within the County Palatine of Cheſter and Durham, nor within the five Ports; neither did it in Wales before the union in Henry the eighth's time; after the Lawes of England were brought into Wales in King Edward the firſt's time, ſuits were not originally commenced in Weſtminſter 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 yeere of Henry the third, before mentioned, is united to the Crowne of England.

By the Statute of the eight and twenty 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 Crown of England, which Crowne of England is of it ſelfe, and by it ſelf, 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 33. yeere 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 Crowne annexed and united to the Crowne of England.

So that by the ſame reaſon, from this, that the Kings writ runs not in Ireland, it might aſwell be held, that the Parliament cannot originally hold plea of things done within the County Palatine of Cheſter and Durham, nor p. 35within the five Ports and Wales; Ireland is part of the Realme of England, as appeares by thoſe ſtatutes, as well as any of them.

This is made good by conſtant practice. In all the Parment 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 be preſumed.

An appeale in Ireland brought by William Lord Veſcye againſt Iohn 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 tryable 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 Partition betweene the copartners of the Earle Marſhall, in the Parliament of the 33. 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.

p. 36The Parliaments of England doe binde in Ireland, if Ireland be 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. Vntill 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 Ed. the third, mem. 12. Power to examine and reverſe erroneous judgements in the Parliaments of Ireland is granted from hence; Writs of errour lie in the Parliament here upon erroneous judgements after that time given in the Parliaments of Ireland, as appeares in the Parliament rolls of the eighth yeere of Henry the ſixth, membra. 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 been confirmed in the Parliaments of England, as appeares by the cloſe rolls in the Tower, in the 42. yeere of Edward the 3. membra. 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 p. 37Engliſh ſhould reſide upon their lands, or elſe they were to be forfeited: this was here confirmed.

In the Parliament of the 4. yeere of H. the 5. chap. 6. Acts of Parliament in Ireland are confirmed, and ſome privileges 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 beſaid, That the Parliament may doe, it knowes not what.

Garneſey and Jerſey are under the Kings ſubjection, but are not parcels of the Crown of England, but of the dutchy 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 land, or goods. In the Parliament of 33. E. 1. there be placita de Inſula Ierneſey; and ſo in the Parliament 14. E. 2. and ſo for Normandy and Gaſcoyne; and alwayes as long as any part of France was in ſubjection to the Crown of England, there were at the beginning of 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 thing done, in any parts whereſoever, in ſubjection to the Crown of England.

The laſt thing I ſhall offer to your Lordſhips is the caſe of 19. El. in my Lord Dyer 306. and Judge Comptons book of the juriſdiction of Courts, fol. 23. The opinion of both theſe books is, that an Iriſh Peere 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 Countryes are not governed by the Lawes of England; but Ireland being governed by the ſame Lawes, the Peeres there are triable according to the Law of England, onelyonly per pares.

By the ſame reaſon the Earle of Strafford, not being a peere of Ireland, is not triable by the Peeres of Ireland; ſo that if he be not triable here, he 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 p. 38way of judicatory, 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 tyrannycall government.

In this I ſhall not at all labour to prove, that the endevouring by words, counſells, and actions to ſubvert the Lawes, is treaſon at the common Law, if there be any common-Lawtreaſons at all left; nothing treaſon, if this not, to make a Kingdome no Kingdome: take the politie and government away, England's but a peece of earth, wherein ſo many men have their commorancy and abode, without rancks or diſtinction of men, without property in any thing 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, and other cauſes counted Eccleſiaſticall, had been frequent, had in moſt Kings reignes been tollerated; ſome in times of popery put a conſcience upon them, the ſtatutes had limitted the penally to a Premunire only: Neither was that a totall ſubverſion, only an appeal from the Eccleſiaſticall Court here in a ſingle cauſe to the Court at Rome; and if 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 onelyonly as a Premunire.

The thing moſt conſiderable in this is, whether the treaſons at common Law be taken away by the Statute of 25. E. 3. 1. H. 4. or 1. Q. M. or any of them.

My Lord, to ſay they be taken away by the Stat. of 25. E. 3. is to ſpeak againſt the direct words and ſcope of that Statute.

p. 39In 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 be declared in Parliament, whether it ought to be adjudged treaſon, or not.

Theſe words, and the whole ſcope of that Statute ſhewes, that it was not the meaning to take away any treaſons that were ſo before, but only to regulate the juriſdiction and manner of triall. Thoſe that were ſingle and certaine Acts, as conſpiring the Kings death, levying war, counterfeiting the money, or great Seale, killing a Judge, theſe are left to the ordinary Courts of juſtice; the others not depending upon ſingle Acts, but upon conſtructions and neceſſary inferences, they thought it unfit to give inferiour Courts ſo great a latitude here, as too dangerous to the ſubject; thoſe they ſtrained to Parliaments.

This ſtatute was the ſecurity of the ſubject, made with ſuch wiſedome as all the ſucceeding ages have approved it: It hath often paſſed through the furnace, 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 2. divers pains 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 been ſaid, to what end is this ſtatute made, if it takes not away the common Law treaſons remaining after the ſtatute of 25. Edward 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. E. 3. to 1. H. 4. even to that time: For, in reſpect that by another Act in that Parliament, the ſtatute of 21. R. 2. was repealed, it will not be denied, but that this ſtatute repeals more treaſons then theſe of 21. R. 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 inferior Courts might judge theſe treaſons; for the declaration of a treaſon in Parliament after it was made, was ſent to the inferior Courts, that toties quoties the like caſe fell out, they might proceed therein: the ſubject p. 40for the future was ſecured againſt theſe; ſo that this ſtatute was of great uſe.

By the very words of it, it ſtill refers 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 be treaſon, but onelyonly as be declared and expreſſed to be 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, penalty, 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, onelyonly offences made treaſon by Act of Parliament are taken away, the Common Law treaſons are no way touched: The words (and no others) referre ſtill to offences made treaſon by Act of Parliament; they reſtrain not to the treaſons onelyonly particularly mentioned in the ſtatute of 25. E. 3. but leaue that ſtatute entire as to the Common-law treaſon, as appears by the words immediatly foregoing.

By the ſecond part, for the pains and forfeitures of treaſons, if it intend onelyonly 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 refers all treaſons to the general ordination and proviſion of that ſtatute, wherein the Common▪ law-treaſons are expreſly kept on foot.

If it be askt what good this ſtatute doth, if it take not away the the Common-law▪ treaſons.

1. It takes away all the treaſons made by Act of Parliament, not only ſince the firſt of H. 4. which were many, 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. and 22. R. 2. this clears it both for treaſons made by Parliament, p. 41or declared in Parliament, even to the time of taking the ſtatute.

This is of great uſe, of great ſecurity to the ſubject; ſo that as to to what ſhall be treaſon, and what not, the ſtatute of 25. E. 3. remains entire, and ſo by conſequence the treaſons at the Common Law.

Only, my Lords, it may be doubted, whether the manner of the manner of the Parliamentary proteedings be not altered by the ſtatute of 1. Hen. 4. the 17. cap. and more fully in the Parliament roll num. 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 only to Bill; that ſo it might operate no further, than 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 been 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 it without Bill.

Herein the Legiſlative power is not uſed againſt my Lord of Strafford in the Bill; it is only 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 poſsible be of a contrary and dubious opinion concerning theſe treaſons, either upon the ſtatutes of 25. E. 3. and 18. H. 6. or at the Common Law.

My Lords, if all theſe five ſhould faile, they have given me further in command to declare to your Lordſhips ſome of their reaſons, why they conceive that in this caſe the meere Legaſlative 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 practices and uſages of former times.

The horridneſſe of the offence in endeavouring the overthrowing the Lawes and preſent government, hath been fully opened p. 42to 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 in one body politick: This diſſolves the arteries and ligaments that hold the Body together, the Lawes: He that takes away the Lawes, 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 bind 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 kills not Iudicem, ſed Iudicium: He that borrowed Apelles, and gave bond to return 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 be twelve men, but no law; there's never a Judge amongſt them.

Its felony to embezill any one of the judiciall records of the Kingdome; this at once ſweepes them all away, and from all.

Its treaſon to counter feit a twenty ſhilling peece; here's a counterfeiting of the Law, we can call neither the counterfeit nor true coyne our owne.

Its 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 onelyonly 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 judge the caſe treaſon there before him, yet if he were a Peere in Parliament, he would ſo adjudge it.

My Lords, if it be too big for thoſe Courts, we hope its 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 begger: 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: Its both the Phyſitian p. 43and the patient: if the body be diſtempered, it hath power to open a veine to let out the corrupt blood for curing of it ſelfe; if one member be poyſoned and gangren'd, it hath power to cut it off for the preſervation of the reſt.

But, my Lords, it hath been often inculcated, that Law-makers ſhould imitate their ſupreme Law-giver, who commonly warnes before he ſtrikes; the Law was promulged before the judgement of death for gathering of ſticks; 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 himſelf would have done to others

It's true, we give law to Hares, and Deers, becauſe they be beaſts of Chaſe; it was never accounted either cruelty or foule 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 polity of the State wherein he lived, which had ſo long, and with ſuch faithfulneſſe protected his Anceſtry, himſelfe, 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 culpâ, ſed de poenâ, 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 hee that deſerves death for one of theſe felonies alone, deſerves a death more painfull, and more ignominious for all together.

Every felony is puniſhed with loſſe of life, lands, and goods; a felony may be aggravated with thoſe circumſtances, as that the Parliament p. 44with good reaſon may adde to the circumſtances of puniſhment, as was done in the caſe of John Hall, in the Parliament. 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, ſervant to Sir Iohn Brook, a Knight of the Parliament for Somerſetſhire; 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 offender; and in the Kings Bench, as appeares by the book 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 publick patrimony of the Kingdome.

But it was hoped, that your Lordſhips had no more skill in the Art of killing of men, than your worthy Anceſters.

My Lords, this appeale from your ſelves to your Anceſters we admit of; although we doe not admit of that from your Lordſhips to the Peeres of Ireland.

He hath appealed unto them; your Lordſhips will bee pleaſed to hear what judgement they have already given in the caſe, that is, the ſeverall attenders of treaſon in Parliament, after the Statute of 25. E. 3. for treaſons not mentioned, without nor within that Statute, and thoſe upon the firſt offenders warning given.

By the Statute of 25. E. 3. its treaſon to levie war againſt the King: Gomines and Weſton afterwards in Parliament in 1. R. 2. Num. 38, 39. adjudged traytors for ſurrendring two ſeverall Caſtles in France, only out of feare, without any compliance with the Enimy; this not within the Statute of 25. E. 3.

My Lords, in 3. R. 2. Iohn Imperiall that came into England upon p. 45letters of ſafe conduct, as an Agent for the ſtate of Genoa, ſitting in the Evening before his door in Breadſtreet, (as the words of the Records are) paulo ante ignit egium, Iohn Kirby and another Citizen comming that way, caſually Kirby trode upon his Toe: it being twilight, this grew to a quarrell, and the Ambaſſador was ſlaine; Kirby was indicted of high treaſon, the indictment findes all this, and that it was only done ſe defendendo, and without malice: The Iudges, it being out of the ſtatute of 25. E. 3. could not proceede; the Parliament declared it treaſon, and judgement afterwards of high treaſon, ther's nothing can bring this within the ſtatute of 25. E. 3. but it concerns the honour of the Nation, that the publick faith ſhould be ſtrictly kept: It might endanger the traffick 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 judgement is given againſt him.

In 11. R. 2. Treſiltan, 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 been opened to your Lordſhip only this is obſervable, That in the Parliament of the 1. yeere of Henry the third, where all treaſons are againe reduced to the Statute of 25. Edward 3. theſe Attainders were by a particular Act confirmed and made good, that the memory thereof might be tranſmitted to ſucceeding ages: They ſtand good to this day; the offences there, as here, were the endeavouring the ſubverſion of the lawes.

My Lords, after …. Henry the fourth, Sir John Mortimer being committed to the Tower upon ſuſpition of treaſon, brake priſon, and made an eſcape: This no way within any Statute, or any former Judgement at common Law; for this, that is, for breaking the priſon onelyonly, and no other cauſe, in the Parliament held the ſecond yeere of Henry the ſixth he was attainted of high treaſon by Bill.

My Lords, poyſoning is onelyonly murder; yet one Richard Coke having put poyſon into a pot of potage, in the kitchin of the Biſhop of Rocheſter, whereof two perſons dyed, hee's attainted of Treaſon, and it was enacted that he ſhould be 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 Katherina; and that in caſe he perſiſted in the ſeparation, and ſhould marry another▪ p. 46that he would not continue King above one month after; becauſe this tended to the depriving of the lawfull ſucceſsion to the Crown, ſhe is attainted of Treaſon.

In the Parliament 2. and 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 he ſhould declare unto them, for ſaying that he 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 Counſell 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 1. H. 4. and the 1. Queene Mary, although they were willing to make the ſtatute of the 25. yeere of E. 3. the Rule of 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 bee 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 adde 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 Anceſters: They are the rules we go by in other caſes, why ſhould wee differ from them in this alone?

Theſe (my Lords) are in part thoſe things which have ſatisfied the Commons in paſsing the Bill: but it is now left to the Judgement and Juſtice of your Lordſhips.

FINIS.

End of the text · Oliver St John, Concerning the Bill of Attainder of High Treason (1641)