M ^r. S ^t. IOHN's Argument.

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 been transmitted from them to your Lordships. It concernes not him alone, but your Lordships and the Commons too, though in different Respects.

[Page 2] 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 thats 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 Lorships 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 publike 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 within my capacity, and that I can remember, I am Commanded from the Commons at this time to present unto your Lordships.

[Page 3] My Lords, in Judgements of greatest moment, there are but two waies for satis­fying those that are to give them, Either the Lex lata, the Law already established, Or els 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 Countries 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 stacke of Corne. In the Isle of Man, it's fellony 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 onely of Fellony, and in the Isle of Man of Felony for the Hen, as heere of pettie 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 Inferior Court is from without, the prescripts of the Parlia­ment [Page 4] and of the Common Law; in the other the rule is from within; That salus populi be concerned; That therebe no wil­full oppression of any the fellow members, that no more blood be taken then what is necessary for the Cure, the Lawes 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 implies the use of the meere Legis-Lative power, in respect new Lawes are for the most part past by Bill.

This, my Lords, though just and Legall, and therefore not wholy excluded, yet it was not the only ground that put the Com­mons 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 Concernement; the Parliament was usually consulted with­all for resolution, which is the reason that many Acts of Parliament are onely decla­rative of the Old Law, not introductive of a new, as the great Charter of our Liber­ties; [Page 5] the Statute of the five and twentieth yeare of Edward the third, of Treasons; the Statute of the Prerogative, and of late the petition of right. If the Law were doubtfull in this Case, they conceived the Parliament (where the old may be altered, and new Lawes made) the fittest Iudge to cleare this doubt.

2 Secondly, my Lords, they proceeded this way to out those scruples and delaies which through disuse of proceedings of this nature might have risen in the manner and way of proceeding, since the Statute of the first of Henery the fourth, the seventeenth Chapter, and more fully in the Roll, num­ber 144. The proceedings in Parliament have usually beene upon an Inditement first found, though in Cases of Treason par­ticularly mentioned in the Statute of the five and twentieth yeare of Edward the third, which had not been done in this Case: Doubts likewise might rise for Treasons, not particularly mentioned in the Statute of 25. Edw. 3. whether the declaratory power of Parliament be taken away, and if not taken away, in what manner they were to be made and by whom. They finde not any Attainders of Treason in Parliament for neare this 200 yeares, but by this way of Bill. And againe, they knew that whatsoe­ver could be done any other way, it might be done by this.

[Page 6] Thirdly, in respect of the proofes and depositions that have beene made against him, for first, although they knew not but that the whole Evidence which hath beene given at the Barre, in every part of it is suffi­ciently comprehended within the Charge, yet if therein they should be mistaken, if it should prove otherwise, use may justly be made of such Evidence in this way of Bill, wherein so as Evidence be given in, it's no way requisite that there should have beene any Articles or Charge at all. And so in the Case of double, Testimony upon the Sta­tute of the first of Edward the sixt, whether one direct witnesse with others to Circum­stances, had been single or double testimony; and although single Testimony might be sufficient to satisfie private Consciences, yet how farre it would have beene satisfactory in a judiciall way where formes of Law are more to be stood upon was not so cleare, whereas in this way of Bill private satis­faction to each mans Conscience is suffici­ent, although no Evidence had beene given in at all.

My Lords, the proceeding by way of Bill, it was not to decline your Lordships Iustice in the judiciall way; In these Exegen­cies of the State and Kingdome, it was to husband time by silencing those doubts, they conceived it the speediest and the furest way.

[Page 7] My Lords. These are in effect, the things the Commons tooke into their Conside­ration, in respect of the manner, and way of proceeding against the Earle. In the next place I am to declare unto your Lord­ships, the things they tooke into their consideration, in respect of the matter and merits of the Cause, They are compre­hended within these 6. heads.

1. That there is a Treason within the Sta­tute of 25. E. 3. by Levying of warre upon the matter of the fifteenth Article.

2. If not by actuall Levying of warre, yet by advising and declaring his intention of warre, and that by Savils warrant, and the advice of bringing over the Irish Army, upon the matter in the 23. Article, The intending of a Warre if not within the Clause of Levying Warre in the Statute of 25. E. 3. yet within the first Treason of com­passing the death of the King.

3. If neither of these two single Acts be within the Statute of 25. E. 3. yet upon put­ting all together, which hath beene proved against him, That ther's a Treason within the first clause of compassing the death of the King.

Et si non prosunt singula juncta juvant.

4. That he hath fessed and laid Soul­diers upon the Subjects of Ireland against their will, and at their Charge, within the Irish Statute, of the eighteenth yeare of [Page 8] Henry the sixt. That both person and thing are within the Statute, That the Sta­tute remaines in force to this day, That the Parliament here hath Cognizance of it, And that even in the ordinary way of Ju­dicature, that if there be a Treason, and a Traitor, that the want of jurisdiction in the Judicall way, may justly be supplied by Bill.

5. That his endeavouring to subvert the fundamentall Lawes and Governement of the Realmes of England and Ireland, and instead thereof, to introduce a tyranicall Governement against Law, is Treason by the Common Law. That Treasons at the Common Law are not taken away by the Statutes of 25. E. 3. 1. H. 4. c. 10. 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 6. Considerations hould, The Commons conceive that upon the whole matter they had good cause to passe the Bill.

[Page 9] My Lords, for the first of levying Warre, 1. The Case. I shall make bold to read the Case to your Lordships before I speake to it, its thus.

The Earle did by warrant under his hand and Seal give authority to Robert Savill a Ser­jeant at Arms, and his Deputies to sesse such number of Souldiers, horse and foote of the Army in Ireland together with an officer, as the Serjeant should thinke fit, upon his Ma­jesties Subjects of Ireland against their will: This warrant was granted by the Earle to the end to compell the Subjects of Ireland to submit to the unlawfull Summons and or­ders made by the Earle upon paper Petiti­ons exhibited unto him in case of private Interest betweene party and party; This warrant was executed by Savill and his De­puties by sessing of Souldiers both horse and foote, upon diverse of the Subjects of Ireland against their will in warre-like man­ner, and at divers times the Souldiers con­tinued upon the parties upon whom they were sessed, and wasted their goods, untill such time as they had submitted themselves unto those Summons and orders.

My Lords, This is a levying of warre within the statute of 25 ^o. 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.

[Page 10] 1 What shall be a levying of Warre, in re­spect of the motive or cause of it.

2 What shall bee said a levying of warre in respect of the Action or thing done.

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

It will bee granted in this of levying of warre, That forces may bee raised, and likewise used in a warre-like manner, and yet no levying of warre within the Statute, that is, when the forces are raised and im­ployed upon private ends either of revenge or interest.

Before this Statute in E. 1. time. The Title of a Castle was in difference between the Earles of Hereford and Gloster, for the mainetaining of the possession on the one side, and gayning of it on the other, For­ces were raised on either side of many hun­dred men, they marched with Banners dis­played one against the other. In the Par­liament in the 20. yeere of Edw. 1. this ad­judged onely trespasse, and either of the Earls fined a 1000. markes a peece.

After the Statute in Hillary Terme, the fiftieth yeere of Edward the third, in the Kings Bench, Rot. 3. Nicholas Huntercome in a warre-like manner, with 40. men ar­med, amongst other weapons, with Gunnes, (so antient as appeares by that Record they were,) did much spoyle in the Man­nor of the Abbee of Dorchester, in the [Page 11] County of Oxford: This no Treason: So it hath beene held by the Judges, that if one or more Towneships upon pretence of sa­ving their Commons, doe in a forecible and warre-like manner, throwe in Inclo­sures; This is onely a Riot, noe Trea­son.

The words of the Statute of 25. E. 3. cleare this Point, that if any man ride ar­med openly or secretly with men at Armes against any other to kill and robbe, or to detaine him untill hee hath made fine and ransome for his deliverance; this is decla­red not to bee Treason, but Fellony or Trespasse, as the case shall require, all the printed Statutes which have it covertly or secretly are mis-printed; for the words in the Parliament Roll, as appeares n. 17. are Discovertment on secreretment openly or se­cretly.

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

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

Answ. That these words extend further then to [Page 12] the Person of the King appeares by the wordes of the Statute, which in the be­ginning declares it to be Treason to com­passe and imagine the Kings death, and af­ter other Treasons, this is to be declared to be Treason, to levy warre against the King. If the levying of warre extend no further then to the person of the King. These words of the Statute are to no purpose, for then the first Treason of compassing the Kings death had fully included it before, because that hee which levies warre against the per­son of the King doth necessarily compasse his death.

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 Warre against the King.

1 Because the King doth protect and main­taine the Lawes in every part of them, and the great Officers to whose care hee hath in his owne steede delegated the Execution of them.

2 Because they are the Kings Lawes, Hee is the Fountaine from whence in their se­verall Channels, they are derived to the Subject, all our inditements run thus, Tres­passes laied to bee done, Contrapacem Domini Regis, the Kings peace for exorbitant offen­ces, though not intended against the Kings [Page 13] Person, against the King his Crowne and Dignity.

My Lords, this construction is made good by diverse Authorities of great weight ever since the statute of 25. E. 3. down-wards.

In R. the 2 ^ds. time Sir Thomas Talbot con­spired the death of the Dukes of Glocester and Lancaster, and some other of the Peeres, for the effecting of it, hee had caused di­verse people in the County of Chester to be armed in warre-like manner, in Assem­blies. In the Parliament held the seventeenth yeere of Richard the second, number the 20. Sir Thomas Talbot accused of high Treason for this; 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 Easter-Tearme in the seventh yeere of Richard the second in the Kings Bench, Rott. 16. These two Lords had appeared in the eleventh yeere of Richard the se­cond in mainetenance of the Act of Parlia­ment made the yeare before, one of them was of the Commissioners appointed by Parliament, and one of the Appellours of those that would have overthrowne it : The Duke of Lancaster likewise was one [Page 14] of the Lords that was to have beene indi­cted of Treason for endeavouring the main­tenance of it, and therefore conspiring of their deaths is said to be in destruction of the Lawes; This there declared to bee a Treason that concerned the Person of the King and the Common-wealth.

In that great insurrection of the Villains and meaner people in Richard the seconds time, they tooke an oath, Quod Regi & Comunibus fidelitatem servarent, to bee true to the King and Commons, that they would take nothing but what they paid for, punished all theft with death, heere's no intendment against the person of the King, The intent was to abolish the Law of vil­linage and servitude, to burne all the Re­cords, to kill the Judges, this in the Par­liament of the fifth yeere of Richard the second, number the one and thirtieth and two and thirtieth, the first part, is declared to be Treason against the King and against the Law.

In the eleventh yeere of Richard the se­cond, in Parliament the raising of forces a­gainst the Commissioners appointed by act of Parliament the yeer, before adjudg­ed Treason by all the Judges.

The Statute of 1. Mar. cap. 12. inacts, that if twelve or more shall indeavour by force to alter any of the Lawes or Statutes of the Kingdome, hee shall from such a [Page 15] time there limited bee adjudged onely as a fellon; This act was to continue but to the next Parliament, it is expired; it shewes by the words onely that the offence was higher before the ma­king of it.

My Lords, In Queene Elizabeths time, Grant and diverse Prentices of London to the number of 200. rose and assembled at Tow­er-hill, carried a Cloake upon a Pole in­steede of a banner, their intent was to de­liver divers Prentices out of prison that had beene committed upon a sentence in Star-Chamber for ryots, To kill the Lord Ma­jor of London, and for setting prices on vi­ctuals. In Trinity Tearme 37. Eliz. divers of the Iudges consulted withall, and resol­ved that this was a levying of warre a­gainst the Queene, being intended against the government and officers of the Queen, and thereupon Grant and others executed as Traitors.

Afterwards in that Queenes time, divers of the County of Oxford consulted toge­ther to goe from house to house in that County, and thence to London and other parts to excite them to take Armes for the throwing in of all inclosures throughout England, nothing was done, nor no Assem­bly: The Statute of 13. Eliz. cap. 1. during the Queenes life made it Treason to in­tend or advise to levy war against the Queen.

[Page 16] In Easter Tearme, 39. Eliz. All the Iud­ges of England met about the case, it was resolved by them, that this was a warre in­tended against the Queene, they agreed that if it had beene of one Towneship or more upon private interest and claime of right of Common, it had not been Trea­son; But this was to throw in all inclo­sures thorough the Kingdome, whereto these parties could pretend no claime; that it was against the Law, in regard that the Statute of Merton gave power of Inclo­sures in many Cases. Upon this Resolu­tion Bradshaw and Burton were execu­ted at Aynestowe hill in Oxford-shire, the place where they intended their first mee­ting.

So that, my Lords, if the end of it be to overthrow any of the Statutes, any part of the Law and setled Governement, or a­ny of the great Officers intrusted with the execution of them; this is a warre against the King.

My Lords, it will be further considera­ble, what shall be accounted a leavying of warre in respect of the Actions and things done; There's a designe to alter some part of the Lawes and present Governement, for the effecting thereof people bee provided of Armes, gathered together into troopes, but afterwards march not with Banners display­ed, nor doe Bellum percutere. Whether the [Page 17] arming themselves and gathering together upon this Designe, whether this be a warre or such prosecution of the Designe with force as makes it Treason within the Statute?

First, If this be not a Warre in respect that it necessarily occasions hostile preparations on the other side?

2. From the words of the Statute, shall levy warre, and be thereof probably attainted of open Deed by people of their Condition, although the bare conspiring be not an open Deed, yet whether the arming and drawing men together be not an open Declaration of Warre?

In Sir Thomas Talbots case before cited in the seventeenth yeere of Richard the second, The Acts of force are expressed in the Par­liament Roll. That hee caused divers of the people of the County of Chester to bee armed in a warre-like manner in assemblies; heere is no marching, no bauners displayed.

In the 28. yeare of Henry the 6 ^th. Wil­liam Bell and Thomas Lacy in Com' Kanc. conspired with Thomas Cheney, called the Hermite of the Queene of Faires to over­throw the Lawes and customes of the Realme, and for the effecting of it, they with two hundred more met together, and concluded upon a course of raising greater forces in the county of Kent, and the adja­cent Shires, this adjudged Treason, these were open Actes.

[Page 18] My Lords, for the application of both these to the Case in question.

First in respect of the end of it, here was a warre against the King, It was to subvert the Lawes, This being the designe, for the effecting of it, he assumed to his owne person, an arbitrary power over the lives, liberties and estates of his Majesties Sub­jects, and determined Causes upon paper petitions at his owne will and pleasure, obedience must be forced by the Army, this declared by the Warrant.

If it bee said, That the Warrant ex­presseth not any intent of subverting the Lawes, It expresseth fully one of the principall meanes whereby this was to be done, that is, obedience to his arbitrary or­ders upon paper petitions, this was done in reference to the maine designe.

In the Cases of the Towne of Cam­bridge and S ^r. William Cogan, that have formerly beene cited to your Lordshippes, upon other occasions, the things in them­selves were not Treason, they were not a levying of Warre.

In that of Cambridge, the Townesmen met together, and in a forcible manner broke up the University treasury, and tooke out of it the Records and Evidence of the liber­ties of the University over the Towne.

In the other, they of Bridgewater mar­ched to the Hospitall, and compelled the [Page 19] Master of the Hospitall to deliver unto them certaine Evidences that concerned the Towne, and forced him to enter into a bond of two hundred pound.

These, if done upon these private ends alone, had not beene Treason, as appeares by the very words of the Statute of 25. Edw. 3. before mentioned of marching openly or secretly.

But my Lords, these of Cambridge and Bridgewater, they were of the conspiracy with the villaines, as appeares in the Parlia­ment Roll of the fift yeare of Richard the second, number the one and thirtieth, and two and thirtieth, where the Townes of Cam­bridge and Bridgewater are expressely ex­cepted out of the generall pardon made to the Villaines. This being done in Reference to that designe of the villains of altering the Lawes, this it was that made it Trea­son.

If the designe went no further then the enforcing obedience to these paper orders made by himselfe, It was sufficient, it was to subvert one fundamentall part of the Lawes, nay in effect the whole Law, what use of Law if hee might order, and deter­mine of mens estates at his owne pleasure; This was against the Law notoriously de­clared in Ireland.

In the close roll in the Tower, in the five and twentieth yeare of Edw. 1. a Writ went [Page 20] to the Justices in Ireland, (that Kingdome at that time was governed by Justices) de­claring that upon petitions they were not to determine any titles betweene party and par­ty upon any pretence of profit whatsoever to the King.

In the eight and twentieth yeare of Henry the sixt the second Chapter, Suites in equi­ty, not before the Deputy, but in Chancery, Suits at Common Law, not before him, but in Cases of life in the Kings Bench, for title of land or goods in the proper Courts of the Common pleas, or Kings Bench.

This declared in the Instructions for Ire­land in the latter end of King James his time, and by the Proclamation in his Ma­jesties time, my Lord took notice of them, called the Commissioners narrow hearted Commissioners.

The Law said, he should not thus pro­ceed in subversion of it, he saith, he will, and will enforce obedience by the Army. This is as much in respect of the end as to endeavour the overthrow of the Statutes of Laborers, of victualls, or of Merton for Inclosures. Here is a warre against the King in respect of the end.

2 In respect of the Actions, whether there be either a levying of warre, or an open deed, or both.

My Lords, there was an Army in Ireland at that time of two thousand horse and foot, [Page 21] 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 beene a warre, It's as much as in the case of Sir Thomas Tal­bot who armed them in assemblies.

This is the same with a breach of trust added to it. That Army was first raised and afterwards committed to his trust for de­fence of the people, is now destined by him to their destruction. This assignation of the Army by his Warrant under his hand and seale is an open Act.

2 My Lords, heer's not onely an open act done, but a levying of warre, Souldiers both horse and foot, with an Officer in warlicke manner sessed upon the Subject, which killed their Cattell, consumed and wasted their goods.

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

Your Lordships observe a great diffe­rence [Page 22] where six single men goe upon a de­signe alone, and when sent from an Army of six hundred, all engaged in the same service, so many were sent as were suffici­ent to execute the Command, if upon a poore man fewer, more upon a rich, if the six had not beene able, the whole Army must make it good; the reason that the She­riffe alone, or with but one Bayliffe to doe execution, is, because hee hath the Com­mand of the Law, the Kings Writ and the posse Comitatus in case of Resistance; heer's the warrant of the Generall of an Army, heer's the posse exercitus, the power of the Army, under this awe of the whole Ar­my, six may force more then sixty without it, and although never above fix in one place, yet in the severall parts of the Kingdome at the same time might be above sixty; for sessing of Souldiers was frequent, it was the ordinary course for execution of his orders.

The Lord Lievetenant of a County in England hath a designe to alter the Lawes and governement, nay admit the designe goes not so high, hee onely declares thus much, that he will order the freeholds and estates of the Inhabitans of the Coun­ty at his owne will and pleasure, and doth accordingly proceed upon paper petitions, foreseeing there will be disobedience; he grants out warrants under his hand and seale [Page 23] to the deputy Lievetenants and Captaines of the traine bands, that upon refusall they shall take such number of the traine bands thorow the County with Officers as they shall think good, and lay them upon the lands and houses of the refusers; Souldi­ers in a warlike manner are frequently sessed upon them accordingly. Your Lord­ships doe conceive that this is a levying of Warre within the Statute.

The Case in question goes further in these two Respects.

1 That it is more against the declared Law in Ireland, not onely against the Common Law, but likewise against the Statute of the eight and twentieth yeare of Henry the sixt, against the Acts of the Commissioners, a­gainst Proclamations in pursuance of the Law, against that himselfe took notice of, narrow hearted Comissioners.

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

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

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 op­prossion [Page 24] of his Majesties Subjects and the Lawes.

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

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

Object. It hath beene said, the Statute of 25. Edw. 3. is a penall Law, and cannot bee taken by equity and Construction, there must be an actuall warre; the Statute makes it Treason to counterfeit the Kings Coyne, the conspiring, the raising of furnaces is no Treason, unlesse he doth nummum percutere, actually coyne.

Answ. My Lords, this is onely said, not pro­ved, the Law is otherwise, 19. of Henry the sixt, fol. 47. there adjudged that the conspi­ring and ayding to counterfeit coyne was Treason, and Iustice Stamford, fol. 3. & 44. is of opinion, That this or conspiring to counterfeit the great Seale is Treason. The Statute is, If any shall counterfeit the great Seale, conspiring to doe it by the book is Treason; if a man take the broad Seale from one Pattent, and put it to another, [Page 25] here is no counterfeiting, its tuntamount, and therefore Treason, as is adjudged in 2. Henry 4. fo. 25. and by the opinion of Stamford.

If machination or plotting a warre be not within that clause of the Statute of le­vying warre, yet its within the first of compassing the death of the King, as that which necessarily tends to the destruction both of the King and of the people, upon whose safety and protection he is to engage himselfe: That this is Treason hath beene adjudged both after the Statutes of the first of Henry the fourth Chapter the tenth, & the first of Queene Mary the first Chapter, so much insisted upon on the other side. In the third yeare of King Henry the fourth, one Balshall comming from London, found one Barnard at plough in the Parish of Ofley in the County of Hertford, Bernard asked Bal­shall, what newes, he told him the newes was; That King Richard the second was alive in Scotland (which was false, for he was then dead) and that by Midsomer next he would come into England; Bernard asked him, what was best to be done, Balshall an­swered, get men, and goe to King Richard. In Michaelmas Tearme, in the third yeare of Henry the fourth in the Kings Bench, rot. 4. this advise of warre adjudged Treason.

In Queene Maries time. Sir Nicholas Throckmorton conspired with Sir Thomas [Page 26] Wyat to levy warre within this Realme for alteration in Religion, he joyned not with him in the execution. This Conspiracy alone declared to be Treason by the Judges. This was after the Statute of the first of Queene Mary so much insisted upon. That Parliament ended in October, this opinion was delivered the Easter-Tearme after, and is reported by Justice Dyer, fo. 98. It's true, Sir Thomas Wyat afterwards did levy warre, Sir Nicho­las Throgmorton hee onely conspired, this adjudged Treason.

Storie, in Queene Elizabeths time, pra­ctised with Forreiners to levy warre with­in the Kingdome, nothing done in pur­suance of the practise. The intent with­out any adhering to Enemies of the Queene or other cause adjudged to be Trea­son, and he executed thereupon. It's true my Lords, that yeare 13. Elizabeth by Act of Parliament, it's made Treason to intend the levying of warre, this Case was adjudged before the Parliament. The Case was adjudged in Hillary Terme, the Parlia­ment began not untill the Aprill fol­lowing; This my Lords, is a Case adjudg­ed in point, That the practising to levy warre, though nothing be done in execution of it is Treason.

Object. It may be objected that in these Cases, the conspiring being against the whole King­dome [Page 27] included the Queene, and was a com­passing her destruction, as wel as of the King­domes, heere the advise was to the King.

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

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 host is patriae, he would have made the Fa­ther of it so too; nothing more unnaturall, more dangerous; To offer the King poy­son to drink, telling him that it is a Cordiall, is a compassing of his death. The poyson was repelled, there was an antidote within, the malice of the giver beyond expression. The perswading of Forreiners to invade the kingdome holds no proportion with this, Machination of warre against the Lawes or kingdome is against the King they cannot be severed.

My Lords, if no actuall warre within the The 3. Ge­nerall Head Statute, if the counselling of a warre, if neither of these single Acts be Treason within the Statute; The Commons in the next place have taken it into their consideration, what the addition of his other words, Counsells, and Actions do operate in the Case, and have conceived, That with this addition all being [Page 28] put together, that he is brought within the Statute of 25. Edward 3.

The words of the Statute are, if any man shall compasse or imagine the death of the King, the words are not, if any man shall plot or consult the death of the King, no my Lords, they go further then to such things as are intended immediately, directly, and deter­minatively against the life and person of the King, they are of a larger extent, to com­passe is to doe by Circuit, to consult or practice another thing directly, which be­ing done, may necessarily produce this effect.

However it be in the other Treasons within this Statute, yet in this by the very words there is roome left for constructi­ons, for necessary Inferences and Conse­quences.

What hath beene the judgement and pra­ctice of former times concerning these words of compassing the Kings death will appeare to your Lorships by some Cases of attain­ders upon these words.

One Owen in King James his time in the 13. yeare of his raigne at Sandwich in Kent, spake these words, That King James being excommunicated by the Pope, may be killed by any man; which killing is no murther: being asked by those he spake too, how he durst maintaine so bloudy an assertion, hee answered that the matter [Page 29] was not so heynous as was supposed; for the King who is the lesser is concluded by the Pope who is the greater, and as a Malefactor being condemned before a Temporall Judge may be delivered over to be Executed, so the King standing con­victed by the Popes sentence of excommu­nication may justly be slaughtered without fault, for the killing of the King is the execu­tion of the Popes supreame sentence, as the other is the execution of the Law; for this, judgement of High-Treason was given a­gainst him, and execution done.

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

He that denies the Title to the Crowne, and plots the meanes of setting it upon ano­ther head, may doe this without any di­rect or immediate desiring the death of him that then weares it, yet this is Trea­son as was adjudged in 10. Henry 7. in the [Page 30] case of Burton and in the Duke of Norfolkes case. 13. Elizabeth.

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

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

[Page 31] My Lords, in this Judgement and others which I shall cite to your Lordships; It ap­peares that it is a compassing the Kings death by words, to indeavour to draw the peoples hearts from the King, to set discord be­tween the King and them, wherby the people should leave the King, should rise up against him to the death and destruction of the King.

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

Upon a Commission held the 18. yeare of Ed. 4. in Kent, before the Marquesse of Dorset & others, an Inditement was preferred against Iohn Awater of High-Treason, in the forme before mentioned, for words which are en­tred in the enditment, sub hâc formâ, That he had been servant to the Earle of Warwick, that though he were dead, the Earle of Oxford was alive, and should have the government of part of the Country, That Edward whom you call King of England was a false man, and had by art and subtilty slain the Earle of Warwick and the Duke of Clarence his brother without any cause, who before had beene both of them attainted of High-Treason.

My Lords, this Inditement was returned into the Kings Bench in Trinity Tearme in the eighteenth yeare of Edward the fourth, and in Easter Tearme in the two and twen­tieth yeare of Edward the fourth he was out­lawed, by the stay of the outlawry so long [Page 32] it seemes the Judges had well advised be­fore whether it were Treason or not.

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

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

Your Lordships are pleased to consider that in all these Cases, the Treason was for words only, words by private persons, and in amore private manner, but once spoken and no more, only amongst the people, to excite [Page 33] them against the King.

My Lords, here are words; Counsells more then words, and actions too, not only to dis­affect the people to the King, but the King likewise towards the people, not once but of­ten, not in private, but in places most pub­lique, not by a private person, but by a Coun­sellor of State, a Lord Leivetenant, a Lord President, a Lord Deputie of Ireland.

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

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

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 war: These coales they were cast upon his Maje­sty, they were blowne, they could not kin­dle in that brest.

Thence, my Lords, having done the utmost to the King, he goes to the people: At York the [Page 34] Country being met together for Justice, at the open Assizes upon the Bench, he tells them, speaking of the Justices of the Peace, that they were all for Law, nothing but Law, but they should find that the Kings little finger should be heavier then the loines of the Law.

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

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

1. There at Dublyn the principall Citty of that Kingdome, whether the Subjects of that Country came for Justice, in an Assembly of Peeres and others of greatest ranke, upon oc­casion of a Speech of the Recorder of that Citty touching their Franchises and Legall Rights, he tells them, that Ireland was a Con­quered Nation, and that the King might do with them what he pleased.

2. Not long after, in the Parliament 10. Car. in the Chaire of State, in full Parliament, a­gaine, That they were a conquered Nation, and [Page 35] that they were to expect Lawes as from a Conque­ror, before, the King might do with them what he would, now, They were to expect it, that he would put this power of a Conqueror in execution. The Circumstances are very considerable, in full Parliament, from himselfe in Cathedrâ, to the representative body of the whole King­dome.

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

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

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

5. By force for a long time he seised the yarne and flax of the Subjects, to the starving and undoing of many thousands, besides the Tobacco businesse, and many Monopolies, and unlawfull Taxes, forced a new Oath not to dispute his Majesties royall commands, de­termined [Page 36] mens estates at his owne will and pleasure upon paper Petititions to himselfe, forced Obedience to these, not only by Fines and Imprisonment, but likewise by the Ar­my, sessed Souldiers upon the refusers in a ho­stile manner.

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

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

My Lords, I have now done with the three The 4. Gene­rall Head. Treasons within the Statute of the five and twentieth of Edward the third. I proceed to the fourth upon the Statute of the eighteenth yeare of Henry the sixt, Chapter the third in Ireland; I shall make bold to read the words to your Lordships,

That no Lord, nor any other of what condition [Page 37] soever he be, shall bring or lead hoblers, kerves, or hooded men, nor any other people, nor horses to lie on horseback or on foot upon the Kings Subjects with­out their good wills and consent, but upon their own costs, and without hurt doing to the Commons, and if any so do he shall be judged as Traitor.

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

In Trinity Terme in the three and thirtieth yeare of Henry the eight, in the Kings Bench; Leonard Lord Gray, having immediately be­fore been Lord Deputy of Ireland, is attainted of High-Treason, and Judgement given a­gainst him for letting diverse Rebels out of the Castle of Dublin, and discharging Irish hostages and pledges that had been given for securing the Peace, for not punishing one that said the King was an Heretique. I have read the whole Record, ther's not one thing laid to his charge but was done by him as Lord Leivetenant: He had the same Plea with my Lord of Strafford; That these things were no adhering to the Kings Enemies, but [Page 38] were done for reasons of State, That he was not within those words of the Satute of the five and twentieth yeare of Edward the third, himselfe being Lord Lieutenant there, they cost his life.

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

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

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

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

It hath been therfore said, That this Statute like Goliab's sword hath beene wrapt up in a cloth and laid behind the doore, that it hath never been put in execution.

Answ. My Lords, if the Cleark of the Crowne in Ireland had certified your Lordships [Page 39] that upon search of the Judgements of Attainders in Ireland, he could not finde that any man had bin attainted upon this Statute, your Lordships had had some ground to be­leeve it, yet its onely my Lord of Straffords affirmation: Besides your Lordships know that an Act of Parliament binds untill it bee repealed.

It hath bin therefore said, that this Statute is repealed by the Statutes of the eight yeere of Edward the fourth, the first Chapter, and of the tenth yeere of Henry the seventh, the two and twentieth Chapter, because by these two Statutes, the English Statutes are brought into Ireland.

The Argument, (if I mistook it not,) stood thus; That the Statute of the first of Henry the fourth, the 10. Chapter, saith, that in no time to come, Treason shall be adjudged o­therwise, then it was ordained by the Statute of the 25. yeare of Edward the third, That the Treason mentioned in the 18 yeere of Henry the sixt in the Irish Statute is not contained in the Stat. of the 25 yeere of Ed. the 3. and ther­fore being contrary to the Statute of the first of Henry the fourth, it must needs be void.

My Lords, the difference of the times wherin the Statute of the first yeere of Henry the fourth, and that of the 18 yeere of Henry the sixt were made, cleares the Point, as is humbly conceived; that of Henry the sixt was made 40 yeares after the other.

[Page 40] The Statute of the eighth yeare of Ed­ward the fourth, and the tenth of Henry the seventh, bringing in the English Sta­tutes in order and series of time, as they were made one after another (as afterwards is prooved they did) it cannot be that the Statute of the first yeere of Henery the fourth made fourty yeere before, should repeale or make void the Statute of the 18. H. 6. made so long after. The rule of Law is that Leges posteriores priores abrogant, that latter lawes repeale former, but by this construction a former Lawe should repeale and make voide a Non ens, a Statute that then was not.

If this were Lawe, then all the Sta­tutes that made any new Treason after the first yeere of Henery the fourth were voide in the very fabricke, and at the time when they were made, hence like­wise it would follow that the Parlia­ment now upon what occasion soever hath noe power to make any thing Treason not declared to bee so in the Statute of the five and twentieth yeere of Edward the third; This your Lordshippes ea­sily see would make much for my Lord of Straffords advantage; but why the Law should bee, so your Lordshippes as yet have onely heard an affirmation of it, no reason.

But some touch was given that this [Page 41] Statute of the tenth yeere of Henery the seventh in words makes all the Irish Sta­tutes voide, which are contrary to the En­glish. The Answer to this is a deniall that there are any such wordes in the Sta­tute: This Statute declares, that the En­glish Statutes shall bee effectuall and con­firmed in Ireland, and that all Statutes, be­fore time, made to the contrary shall bee revoked; this repeales onely the Irish Statutes of the tenth yeere of Henerie the fourth, and the nine and twentieth yeere of Henerie the sixt, which say that the English Statutes shall not bee in force in Ireland, unlesse particularly re­ceived in Parliament, It makes all the I­rish Statutes voide, which say that the English Statutes shall not bee in force there.

It is usuall when a Statute saith, that such a thing shall bee done or not done, to adde further that all Statutes to the contrary shall be voide.

No likeli-hood that this Statute in­tended to take away any Statute of Trea­son; When but in the Chapter next be­fore this, Murder there is made Trea­son, as if done upon the Kinges Per­son.

That this Statute of the eighteenth yeare of Harry the sixt remaines on foote and not repealed either by the Statute of [Page 42] the eighth yeere of Edward the fourth, or this of the tenth yeere of Henerie the seventh appeares expressely by two severall Acts of Parliament made at the same Parliament of the tenth yeere of Henry the seventh.

By an Acte of Parliament in Henry the sixt time, in Ireland it was made Treason for any man to procure a pri­vie Seale, or any other Command what­soever, for apprehending any person in Ireland for Treason done without that Kingdome, and to put any such Com­mand in execution; Diverse had beene attaineted of Treason for executing such Commands: Heere is a Treason soe made by Acte of Parliament in Henry the sixt time : In the third Chapter of this Parliament of the tenth of Henry the seventh an Act is passed for no other end then to repeale this Statute of Henry the sixt of Treason.

If this Statute of Henry the sixt of Treason, had beene formerly repealed by the Statute of 8. Edw. 4. or then by the two and twentieth Chapter of this Parlia­ment of 10. H. 7. by bringing in the En­glish Statutes, the Law-makers were much mistaken now to make a particular Act of Parliament to repeale it, it be­ing likewise so unreasonable an Act as it was.

[Page 43] In the eighth Chapter of this Parlia­ment of the tenth of Henry the seaventh; It's enacted, That the Statutes of Killken­ny and all other Statutes made in Ireland (two onely excepted, whereof this of the eighteenth of Henry the sixt is none) for the Common-weale shall bee enquired off and executed. My Lord of Strafford saith, that the bringing in of the English Statutes hath repealed this Statute of the eighteenth yeere of Hen­ry the sixt, the Acte of Parliament made the same time saith noe; it saith that all the Irish Statutes, excepting two, whereof this is none, shall still bee in force.

Object. Oh! But however it was in 10. Hen. 7. yet it appeares by Judgement in Parliament afterwards, That this Statute of the eighteenth yeere of Henry the sixt is repealed, and that is by the Parliament of the eleventh yeere of Queene Elizabeth, the seventh Chapter, That by this Parliament it is enacted, that if any man without li­cense from the Lord Deputie, lay any Soul­diers upon the Kings Subjects, if hee bee a Peere of the Realme, hee shall forfeite one hundred pounds, if under the degree of a Peere 100. markes. This Statute as is alleadged declares the penalty of laying Souldiers upon the Subjects to bee onely a hundred pounds; and therefore its not Treason.

[Page 44] Answer. My Lords if the offence for which this penalty of one hundered pounds is laid upon the offender bee for laying Souliders, or leading them to doe any acts offensive or invasive upon the Kinges people, The Argument hath some force; but that the offence is not for laying Souldiers upon the true Subjects, that this is not the offence intended in the Statute will appeare to your Lordshippes, Ex absurdo, from the wordes of it.

The words are, That if any man shall assem­ble the people of the Country together to con­clude of peace or warre, or shall carry those people to doe any Acts offensive or inva­sive, then hee shall forfeite one hundred pounds; If concluding of warre and car­rying the people to Acts invasive, bee a­gainst the Kinges Subjects, this is high Treason within the words of the Statute of the five and twentieth yeere of Edward the third; For if any Subject shall assem­ble the people and conclude a warre, and accordingly shall leade them to invade the Subject, this is a levying of warre within the wordes of that Statute; and then the Sta­tutes of the five and twentieth yeer of Edward the third; the first of Henry the fourth; and the first of Queene Mary which the Earle of Strafford in his Answer desires to bee try­ed by, are as well repealed in this point as [Page 45] the Statute of the eighteenth yeere of Hen­rie the sixt, hee might then without feare of Treason have done what hee plea­sed with the Irish Army; for all the Statutes of levying warre, by this Sta­tute of the eleventh Yeere of Queene ELIZABETH were taken out of his way.

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

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

4 Two parts of the hundred pounds is gi­ven to the King, a third part to the informer, [Page 46] heer's no dammage to the Subject that is robbed and destroyed.

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

The meaning of this Statute is, That if any Captaine shall of his owne head conclude of peace or warre against the Kings Enemies or Rebels, or shall upon his owne head invade them, without warrant from the King of the Lord Deputie of Ireland, that then hee shall forfeite a hundred pounds.

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

• 1. This will appeare by the generall scope of the Stat. all the parts being put together.
• 2. By particular clauses in the Statute And,
• 3. By the Condition of that Kingdome at the time of the making of that Statute.

For the first, The preamble recites that in time of Declination of Justice under pretext of defending the Country and them­selves, divers great men arrogated to them­selvs regal authority under the names of Cap­tains, that they acquired to themselves that [Page 47] government which belonged to the Crowne, for preventing of this Its enacted, that no man dwelling within the Shire grounds, shall thenceforth assume or take upon himselfe the authority or name of a Captaine within those Shire grounds, without Letters Pattents from the Crown, nor shall under colour of his Captaines­ship make any demand of the people of any exaction, nor as a Captaine assemble the people of the Shire grounds; nor as a Captaine shall leade those people to doe any acts offensive or invasive without war­rant under the great Seale of England or of the Lord Deputie upon penalty that if hee doe any thing contrary to that act, then the Offendor shall forfeite a hundred pounds.

My Lords, the Rebells had beene out, the Courts of justice scarce sat, for defence of the Country diverse usurped the place of Captaines, concluded of warre against the Rebells & invaded them without warrant; invading the Rebells without authority is the crime.

1 This appeares further by particular clauses in the Statute, none shall exercise any Captaineship within the Shire grounds, nor assemble the men of the Shire grounds to conclude of Warre, or leade them to any invasion.

That that had anciently beene so con­tinued to this time, that is the Irish and the [Page 48] English pale, they within the Shire grounds were within the English pale, and ad fidem & legem Angliae; the Irish that were without the pale were enemies alwayes either in open act of hostility or upon leagues, and hostages given for securing the peace, and therefore as heere in England, wee had our marches upon the frontiers in Scotland and Wales, so were there Marches betweene the English and Irish pale, where the inhabi­tants held their Landes by this tenure to defend the Country against the Irish, as appeares in the close Rolls of the Tower in the 20. yeare of Edward the third, mem­brana 15. on the backside, and in an Irish Par­liament held the 42. yeare of Edward the third. Its declared, that the English pale was almost destroyed by the Irish ene­mies, and that there was no way to pre­vent the danger, but onely that the owners reside upon their Landes for defence, and that absence should bee a forfeiture, this act of Parliament in a great counsell heere was affirmed, as appeares in the close Roll, the 22. yeare of Edward the third, membrana 20. dorse.

Afterwards as appeares in the Statute of the eight-and-twenty yeare of Henry the 6. in Ireland, this hostility continued betweene the English marches and the Irish enemies, who by reason there was no difference betweene the English marches and them [Page 49] in their apparell, did daily not being known 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 tenth yeare of Henry the seaventh, as appeares by the Statute of the tenth of Henry the seaventh, the seaventeenth Chap­ter; and so successively downewards, till the making of this very Statute of the eleaventh yeare of Queene Elizabeth, as appeares fully in the ninth Chap­ter.

Nay immediatly before, and at the time of the making of this Statute, there was not onely emnity betweene those of the Shire grounds that is the English and Irish pale, but open Warre and Acts of hostility, as appeares by History of no lesse authority, then that Statute it selfe, for in the first Chapter of this Sta­tute is the Attainder of Shane O Neale, who had made open Warre, was slaine in open Warre. Its there declared, that hee had gotten by force all the North of Ireland for an hundred and twenty miles in length, and above a 100. in bredth, that he had mastered diverse places within the English pale; when the flame of this warre by his death immediatly before this Statute was spent, yet the fire brands were not all quenched for the rebellion was [Page 50] continued by John Fitz. Gerard called the white Knight, and Thomas Queverford, this appeares by the Statute of the thir­teenth yeare of Queene Elizabeth in Ireland, but two yeares after this of the eleaventh yeare of Queene Elizabeth, where they are attainted of high treason for levying Warre this eleaventh yeare, wherein this Statute was made.

So that my Lords immediatly before, and at the time of the making of this Sta­tute, there being Warre betweene those of the Shire grounds mentioned in this Statute; and the Irish, the concluding of Warre and Acts offensive and invasive there mentioned can bee intended a­gainst no others, but the Irish ene­mies.

Againe the words of the Statute are no Captaine shall assemble the people of the Shire grounds to conclude of peace or warre, is it to bee presumed that those of the Shire grounds will con­clude of Warre against themselves? nor saith the Statute shall carry those of the Shire grounds to doe any Acts invasive; by the construction which is made on the other side, they must bee carried to fight against themselves.

Lastly the words are, as Captaine none shall assume the name or authority of a Captaine, or as a Captaine shall gather the [Page 51] people together, or as a Captaine leade them. The offence is not in the matter, but in the manner: If the acts offensive were against the Kings good subjects; those that went under command were punishable, as well as the Commanders, but in respect, the Souldiers knew the service to be good in it selfe being against the enemies, and that it was not for them to dispute the authority of their commanders, the penalty of a 100. pounds is laid onely upon him, that as Captaine shall assume this power without warrant, the people commanded are not within the Statute.

My Lords, the logicke whereupon this argument hath beene framed stands thus, because the Statute of the eleaventh yeare of Queene Elizabeth inflicts a penalty of a 100. pound, and no more upon any man, that as a Captaine without warrant, and upon his owne head shall conclude of, or make Warre against the Kings enemies: therefore the Statute of the 18. yeare of Henry the sixt, is repealed, which makes it treason to lay Souldiers upon, or to levy warre against the Kings good people.

But my Lords observation hath bin made upon other words of this statute, that is that without licence of the deputy; these things cannot bee done: This shewes, that the de­puty is within none of these Statutes.

My Lords, this Argument stands upon [Page 52] the same reason with the former, because hee hath the ordering of the Army of Ire­land for the defence of the people, and may give warrant to the Officers of the Army upon eminent occasions of invasion to resist or prosecute the enemy, because of the dan­ger that else might ensue forthwith by stay­ing for a warrant from his Majesty out of England; Therefore it is no treason in the Deputy to imploy the Army in Ireland whensoever hee pleaseth for the subversion of the Kings good people, and of the lawes.

My Lords, the Statute of the tenth yeare of Henry the seaventh, the seaventeenth Chapter touched upon for this purpose, cleares the busines in both points, for there it is declared, that none ought to make warre upon the Irish rebells and enemies without warrant from the Lieutenant, the forfeiture a hundred pounds as here the Statute is the same with this, and might as well have beene cited for repealing the Statute of the eighteenth yeare of Henry the sixt, as this of the eleaventh yeare of Queene Elizabeth: but if this had beene insisted upon it would have expounded the other two cleare against him.

Obj. >My Lords, it hath beene further said al­though the statute bee in force, and there be a treason within it, yet the Parliament hath no jurisdiction; the treasons are committed in Ireland, therefore not triable here.

[Page 53] Answ. My Lords, Sir John Perrot his predeces­sors in the 24. yeare of Queene Elizabeth was tried in the Kings bench for treason done in Ireland, when hee was Deputy; and Orucke in the 33. yeare of Queene Elizabeth judged heere for treason done in Ireland.

Obj. But it will bee said, these trialls were af­ter the Statute of the foure-and-thirtieth yeare of Henry the eight, which enacts, that treasons beyond sea may bee tried in Eng­land.

Answ. My Lords, his predecessor my Lord Gray was tried and adjudged here in the Kings bench, that was in Trinity tearme in the three-and-thirtie yeare of Henry the eight, this was before the making of that Statute.

Obj. To this againe will bee said, that it was for treason by the Lawes and Statutes of England, but this is not for anything, that's treason by the Law of England, but by an Irish Statute.

So that the question is onely whether your Lordships in Parliament heere have cognizance of an offence made treason by an Irish Statute in the ordinary way of ju­dicature without bill, for so is the present question.

For the clearing of this, I shall pro­pound two things to your Lordships consi­deration;

[Page 54] 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 primative and the gene­rall law, that's the rule and expositour of them and of their severall extents, it is so heere, it is so in Ireland; the common law of England, is the common law of Ireland likewise; the same here and there in all the parts of it.

It was introduced into Ireland by King John, and afterwards by King Harry the third, by act of Parliament held in England as appeares by the pattent Rolls of the 30. yeare of King Henry the third, the first [Page 55] membrana. The words are, Quia pro commu­ni utilitate terrae Hiberniae, & unitate terrarum Regis, Rex vult, & de communi consilio Regis provisum est, quod omnes leges & consuetudines quae in regno Angliae tenentur, in Hibernia te­neantur, & eadem terra eisdem legibus subja­ceat, & per easdem regatur, sicut Dominus Jo­hannes Rex cum ultimo esset in Hibernia statuit, & fierimandavit. Quia &c. Rex vult quod omnia brevia de communi Jure quae currunt in Anglia, similiter currant in Hibernia sub novo sigillo Regis, mandatum est Archiepiscopis, &c. quod pro pace & tranquillitate ejusdem terrae, per casdem leges eos regi & deduci per­mittant, & ea [...] omnibus sequantur. In cujus &c. Teste Rege, apud Woodstock, decimo none die Septembris.

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

My Lords, That nothing might bee left here for an exception, that is, that in treasons, felonies, and other capitall offences concer­ning life, the Irish lawes are not the same as here, Therefore it is enacted in a Parliament held in England in the fourteenth yeere of Edward the second (it is not in print neither, but is in the Parliament book) That the Laws concerning life and member shall be the same in Ireland as in England.

And that no exception might yet remaine, [Page 56] in a Parliament held in England, the fifth yeere of Edward the third, It is enacted, quod una & eadem Lex fiat tam Hibernicis quam Anglicis. This Act is enrolled in the Patent rolls of the fifth yeere of Edward the third, part. 1. memb. 35.

The Irish therefore receiving their Lawes from hence, they send their Students at Law to the Innes of Courts in England, where they receive their degree; and of them, and of the common Lawyers of this Kingdome are the Judges made.

My Lords, The petitions have been many from Ireland, to send from hence some Judges more learned in the Lawes then those they had there.

It hath been frequent in cases of difficulty there, to send sometimes to the Parliament here, sometimes to the King by advice from the Judges here, to send them resolutions of their doubts: Amongst many I'll cite your Lordships onely one, because it is in a case of Treason upon an Irish Statute, and therefore full to this point.

By a Statute there made in the fifth yeere of Edward the fourth, there is provision made for such as upon suggestions are committed to prison for Treason, that the party commit­ted, if he can procure 24. Compurgators, shall be bailed, and let out of prison.

Two Citizens of Dublin were by a grand Jury presented to have committed Treason; [Page 57] They desired the benefit of this Statute, that they might bee let out of prison upon tender of their Compurgators. The words of the Statute of the fifth yeere of Edward the fourth in Ireland being obscure, the Judges there not being satisfied what to doe, sent the case over to the Queene, desired the opinion of the Judges here; which was done accordingly: The Judges here sent over their opinion, which I have out of the Booke of Justice Anderson, one of the Judges consulted withall. The Judges here delivered opinion upon an Irish Statute in case of Treason.

If it bee objected, That in this case the Judges here did not judge upon the party; their opinions were onely ad informandum conscientiam of the Judges in Ireland; that the judgement belonged to the Judges there:

My Lords, with submission, this and the other Authorities prove that for which they were cited; that is, That no absurdity, no failer of Justice would ensue if this great Ju­dicatory should judge of Treason so made by an Irish Statute.

The common Law, the rule of Judging upon an Irish Statute, the pleas of the Crowne for things of life and death, are the same here and there. This is all that hath yet been offered.

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

[Page 58] Writs of errour in Pleas of the Crowne as well as in civill causes, have in all Kings reignes beene brought here, even in the infe­riour Courts of Westminster Hall, upon judgements given in the Courts of Ireland: The practice is so frequent, & so well known, as that I shall cite none of them to your Lord­ships: no president will I beleeve bee pro­duced to your Lordships, that ever the case was remanded back againe into Ireland, be­cause the question rose upon an Irish Statute or custome.

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

This might bee a good plea in the Kings Bench, and inferiour Courts at Westminster Hall; the question is, whether it bee so in Parliament. The Kings writ runs not within the County Palatine of Chester and Durham, nor within the five Ports; neither did it in Wales before the union in Henry the eighth's time, after the Lawes of England were brought into Wales in King Edward the first's time, suits were not originally commenced in Westminst. Hall, for things done in them, yet this never excluded the Parliament: suits for life, lands, and goods within those jurisdictions are de­terminable in Parliament, as well as in any o­ther parts of the Realme.

[Page 59] Ireland, as appeares by the Statute of the thirtieth yeer of Henry the third, before mentioned, is united to the Crowne of England.

By the Statute of the eight and twentieth yeere of Henry the sixth in Ireland, it is declared in these words; That Ireland is the proper Dominion of England, and united to the Crowne of England, which Crowne of England is of it selfe, and by it selfe, fully, wholly, and entirely endowed with all power and authority sufficient to yeeld to the subjects of the same full and plenary remedy in all debates and suits whatsoever.

By the Statute of the three and thirtieth yeer of Henry the eighth, the first Chapter, when the Kings of England first assumed the title of King of Ire­land, it is there enacted, That Ireland still is to bee held as a Crown annexed and united to the Crown of England.

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

This is made good by constant practice. In all the Parliament rolls, from the first to the last, there are receivers and tryers of petitions appointed for Ireland. For the Irish to come so farre with their petitions for justice, and the Parliament not to have cognizance, when from time to time they had in [Page 60] the beginning of the Parliament appointed recei­vers and tryers of them, is a thing not to bee pre­sumed.

An appeale in Ireland brought by William Lord Vescye against John Fitz Thomas for treasonable words there spoken, before any Judgement given in the case there, was removed into the Parliament in England, and there the defendant acquitted, as appeares in the Parliament pleas of the two and twentieth yeere of Edward the first.

The suits for lands, offices, and goods, originally begun here, are many; and if question grew upon matter in fact, a Jury usually ordered to try it, and the verdict returned into Parliament, as in the case of one Balliben, in the Parliament of the five and thirtieth yeere of Edward the first. If doubt arose upon a matter triable by Record, a writ went to the Officers in whose custody the Record remained, to certifie the Record, as was in the case of Robert Bagot the same Parliament of the five and thirtieth yeere of Edward the first, where the writs went to the Treasurer and Barons of the Exchequer.

Sometimes they gave judgement here in Par­liament, and commanded the Judges there in Ire­land to doe execution, as in the great case of peti­tion between the coparceners of the Earle Marshall, in the Parliament of the three and thirtieth yeere of Edward the first, where the writ was awarded to the Treasurer of Ireland.

My Lords, The Lawes of Ireland were intro­duced by the Parliaments of England, as appeares [Page 61] by three Acts of Parliament before cited.

It is of higher jurisdiction dare Leges, then to judge by them.

The Parliaments of England doe binde in Ire­land, if Ireland bee particularly mentioned, as is re­solved in the Book case of the first yeere of Henry the seventh, Cokes seventh Report, Calvins case, and by the Judges in Trinity Terme, in the three and thirtieth yeere of Queene Elizabeth: The Statute of the eighth yeere of Edward the fourth, the first Chapter in Ireland recites, that it was doubted a­mongst the Judges, whether all the English Statutes, though not naming Ireland, were in force there; if named, no doubt.

From King Henry the third his time downward to the eighth yeere of Queene Elizabeth (by which Statute it is made felony to carry sheepe from Ire­land beyond seas) in almost all these Kings reignes there be Statutes made concerning Ireland.

The exercising of the Legislative power there over their lives and estates, is higher then of the Ju­diciall in question. Untill the nine and twentieth yeere of Edward the third, erroneous judgements given in Ireland were determinable no where but in England; no, not in the Parliaments of Ireland, as it appeares in the close rolls in the Tower, in the nine and twentieth yeere of Edward the third, membr. 12. Power to examine and reverse errone­ous judgements in the Parliaments of Ireland is granted from hence; Writs of errour lie in the Par­liament hereupon erroneous judgements after that [Page 62] time given in the Parliaments of Ireland, as appears in the Parliament rolls of the eighth yeere of Henry the sixth, no. 70. in the case of the Prior of Len­than. It is true, the case is not determined there, for it's the last thing that came into the Parliament, and could not be determined for want of time; but no exception at all is taken to the jurisdiction.

The Acts of Parliament made in Ireland have bin confirmed in the Parliaments of England, as ap­pears by the close rolls in the Tower, in the two and fortieth yeere of Edward the third, memb. 20. dorso; where the Parliament in Ireland, for the preservation of the Countrey from the Irish, who had almost de­stroyed it, made an Act, that all the land owners that were English should reside upon their lands, or else they were to bee forfeited: This was here con­firmed.

In the Parliament of the fourth yeer of Henry the fifth, chap. 6. Acts of Parliament in Ireland are con­firmed, and some priviledges of the Peeres in the Parliaments there are regulated.

Power to repeale Irish Statutes, power to con­firme them, cannot be by the Parliament here, if it hath not cognizance of their Parliaments, unlesse it be said, That the Parliament may doe it knowes not what.

Garnesey and Jersey are under the Kings subjecti­on, but are not parcels of the Crowne of England, but of the Duchy of Normandy; they are not go­verned by the Lawes of England, as Ireland is; and yet Parliaments in England have usually held plea [Page 63] of, and determined all causes concerning lands or goods. In the Parliament of 33. H. i [...] there be plactia de Insula Jernesey; and so in the Parliament 14. E. 2. and so for Normandy and Gascoyne; and alwaies as long as any part of France was in subjection to the Crown of England, there were, at the beginning of the Parliaments, receivers and tryers of petitions for those parts appointed.

I beleeve your Lordships will have no cases shewed of any plea to the jurisdiction of the Parli­aments of England, in any things done in any parts wheresoever in subjection to the Crowne of England.

The last thing I shall offer to your Lordships is the case of 19. El. in my Lord Dyer 306. and Judge Cromptons book of the jurisdiction of Courts, fol. 23. The opinion of both these Books is, That an Irish Peer is not triable here. It's true, a Scotish or French Nobleman is triable here as a common person; the Law takes no notice of their Nobility because those Countries are not governed by the Lawes of Eng­land; but Ireland, being governed by the same Laws, the Peers there are triable according to the Law of England, onely per pares.

By the same reason the Earle of Strafford, not being a Peere of Ireland, is not triable by the Peers of Ireland; so that if hee bee not triable here, hee is triable no where.

My Lords, In case there be a Treason and a Trai­tor within the Statute, and that he be not triable here for it in the ordinary way of judicature, if that juris­diction [Page 64] failes, this by way of Bill doth not; Attain­ders of Treason in Parliament are as legall, as usuall by Act of Parliament as by Judgement.

I have now done with the Statutes of 25. E. 3. and 18. H. 6. My Lord of Strafford hath offended a­gainst both the Kingdomes, and is guilty of high Treason by the Lawes of both.

5 My Lords, In the fifth place I am come to the Treasons at the common Law, The endevouring to subvert the fundamentall Lawes and government of the Kingdome, and to introduce an arbitrary and tyrannicall government.

In this I shall not at all labour to prove, that the endevouring by words, counsels, and actions to sub­vert the Lawes, is treason at the common Law; if there be any common Law treasons at all left; no­thing treason, if this not, to make a Kingdome no Kingdome: take the politic and government away, England's but a piece of earth, wherein so many men have their commorancy & abode, without ranks or distinction of men, without propertie in anything further then possession; no Law to punish the mur­dering or robbing one another.

That of 33. H. 8. of introducing the Imperiall Law, sticks not with your Lordships: It was in case of an appeal to Rome; these appeals in cases of marriages, & other causes counted Ecclesiasticall, had been fre­quent, had in most Kings reigns been tolerated; some in times of Popery put a conscience upon them, the Statutes had limited the penalty to a Premunire on­ly: Neither was that a totall subversion, only an Ap­peale [Page 65] from the Ecclesiasticall Court here in a single cause to the Court at Rome; and it treason or not, that case proves not; a treason may be punished as a felony, a felony as a trespasse, if his Majesty so please; the greater includes the lesser: In the case of Premu­nire in the Irish reports, that which is there declared to be treason, proceeded upon only as a Premunire.

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

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

In it there's this clause, That because many other like cases of treason might fall out which are not there decla­red, therefore it is enacted, That if any such case come before the Judges, they shall not proceed to judgement till the case bee declared in Parliament, whether it ought to be adjudged treason, or not.

These words, and the whole scope of that Statute showes, That it was not the meaning to take away a­ny treasons that were so before; but onely to regu­late the jurisdiction and manner of tryall. Those that were single & certain Acts, as Conspiring the Kings death, Levying warre, Counterfeiting the money, or great Seal, Killing a Judge, these are left to the ordi­dinary Courts of Justice: The others not depending upon single Acts, but upon constructions and neces­sary inferences, they thought it not fit to give the in­feriour Courts so great a latitude here, as too dange­rous to the subject, those they strained to the Parlia­ment.

[Page 66] This Statute was the great security of the subject, made with such wisdome as all the succeeding ages have approved it: It hath often passed through the fornace but, like gold, hath lost little or nothing.

The Statute of 1. H. 4. cap. 10. is in these words, Whereas in the Parliament held the 21. yeere of Ri­chard the second, divers paines of treasons were ordai­ned insomuch, that no man did know how to behave himselfe, to doe, say, or speake, It is accorded, that in no time to come any treason be adjudged otherwise then it was ordained by the Statute of 25. E. 3.

It hath bin said, To what end is this Statute made, if it takes not away the common Law treasons re­maining after the Statute of 25. E. 3.

There be two maine things which this Statute doth: First, it takes away for the future all the Treasons made by any Statute since 25. Ed. 3. to 1. Hen. 4. even to that time : For, in re­spect that by another Act in that Parliament, the Statute of 21. E. 2. was repealed, it will not bee denyed, but that this Statute repeales more treasons then these of 21. E. 2. it repeals all Statute treasons but those in 25. E. 3.

Secondly, It not only takes away the Statute trea­sons, but likewise the declared treasons in Parlia­ment after 25. E. 3. as to the future. After declaration in Parliament the inferiour Courts might judge these treasons; for the declaration of a treason in Parlia­ment, after it was made, was sent to the inferiour Courts, that toties quoties the like case fell out, they might proceed therein; the subject for the future [Page 67] was secured against these; so that this Statute was of great use.

By the very words of it, it still referrs all trea­sons to the provision of 25. E. 3. it leaves that entire and upon his old bottome.

The Statute of 1. Q. M. cap. 1. saith That no offen­ces made treason by any Act of Parliament, shall thence­forth be taken or adjudged to bee treason, but onely such as be declared and expressed to bee treason by the Statute of 25. E. 3. concerning treason, or the declaration of trea­son and no others: And further provides that no pains of death, penaltie, or forfeiture, in any wise shall ensue for committing any treason, other then such as be in the Statute of 25. E. 3. ordained and provided any Acts of Parliament or any declaration, or matter to the contra­ry, in any wise notwithstanding.

By the first part of this Statute, onely offences made Treason by Act of Parliament are taken a­way, the Common Law Treasons are no way touched: The words (and no others) refer still to of­fences made treason by Act of Parliament; they re­straine not to the treasons onely particularly men­tioned in the Statute of 25. E. 3. but leave that Sta­tute entire as to the common Law treason, as ap­pears by the words immediatly foregoing.

By the second part for the paines and forfeitures of treasons, if it intend only the punishment of trea­son, or if it intend both treason and punishment, yet all is referred to the provision and ordinance of 25. E. 3. any Act of Parliament or other declaration or thing notwithstanding.

[Page 68] It saith not, other then such penalties or treasons as are expressed and declared in the Statute of 25. E. 3 that might perhaps have restrained it to those that are particularly mentioned: No, it referrs all treasons to the generall ordination and provision of that Statute, wherein the common-Law-trea­sons are expresly kept on foot.

If it bee askt what good this Statute doth if it take not away the common-Law-treasons:

1. It takes away all the treasons made by Act of Parliament, not onely since the first of H. 4. which weremany, but all before 1. H. 4. even untill 25. E. 3. by expresse words.

2. By expresse words, it takes away all declared treasons, if any such had been made in Parliament: these for the future are likewise taken away; so that whereas it might have been doubted, whether the Statute of 1. H. 4. took away any treasons but those of 21. Richard 2. this clears it both for trea­sons made by Parliament, or declared in Parlia­ment, even to the time of making the Statute.

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

Onely, my Lords, it may be doubted whether the manner of the parliamentary proceedings bee not altered by the Statute of 1. H. 4. the 17. chapter, and more fully in the Parliament roll, number 144. that is, whether since that Statute the parliamen­tary power of declaration of treasons, whereby [Page 69] the inferiour Courts received jurisdiction, be not taken away and restrained onely to Bill, that so it might operate no further then to that particular contained in the Bill; that so the parliamentary declarations for after times, should be kept within the Parliament it selfe, and be extended no further. Since 1. H. 4. we have not found any such declara­tions made, but all Attainders of treason have bin by Bill.

If this be so, yet the common Law treasons still remaining, there is one and the same ground of rea­son and equity since 1. H. 4. for passing of a Bill of treason, as was before for declaring of it without Bill.

Herein the Legislative power is not used against my Lord of Strafford in the Bill, its onely the ju­risdiction of the Parliament.

But, my Lords, because that either through my mistaking of the true grounds and reasons of the Commons, or my not pressing of them with apt arguments and presidents of former times, or that perchance your Lordships from some other rea­sons and authorities, more swaying with your Lordships judgements, then these from them, may possibly bee of a contrary or dubious opi­nion concerning these treasons, either upon the Statutes of 25. E. 3. & 18. H. 6. or at the com­mon Law:

If all these five should faile, they have there­fore given me further in command to declare to your Lordships some of their reasons, why they [Page 70] conceive that in this case the meer Legislative pow­er may be exercised.

Their reasons are taken from these three grounds:

• 1 From the nature and quality of the offence.
• 2 From the frame and constitution of the Parlia­ment wherein this Law is made.
• 3 From practises and usages of former times.

The horridnesse of the offence in endevouring the overthrowing the Lawes and present governe­ment, hath beene fully opened to your Lordships heretofore.

The Parliament is the representation of the whole Kingdome, wherein the King as Head, your Lord­ships as the more noble, and the Commons the other members, are knit together into one Body politick: This dissolves the arteries and ligaments that hold the Body together, the Lawes: Hee that takes away the Laws, takes not away the allegeance of one sub­ject alone, but of the whole Kingdome.

It was made treason by the Statute of 13. El. for her time, to affirme, That the Lawes of the Realme doe not binde the descent of the Crowne; no Law, no descent at all.

No Lawes, no Peerage, no ranks or degrees of men; the same condition to all.

It's treason to kill a Judge upon the Bench; this kils not Iudicem, sed Iudicium: Hee that borrowed Apelles, and gave bond to returne again Apelles the Painter, sent him home after he had cut off his right hand; his bond was broken, Apelles was sent, but not the Painter. There bee twelve men, but no [Page 71] law; there's never a Judge amongst them.

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

Its treason to counterfeit a twenty shill-piece, here's a counterfeiting of the Law, we can call neither the counterfeit nor true coine our owne.

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 onely against the life or goods of some one or few persons: It would, I beleeve, be answered by the Judges, as it was by the chiefe Justice Thirning, in 21. R. 2. That though he could not judge the case treason there before him, yet if he were a Peere in Parliament, hee would so ad­judge it.

My Lords, if it bee too bigge for those Courts, we hope 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 Beggar: if so, my Lords, as the naturall, so this body, it hath power over it selfe, and every one of the members for the pre­servation [Page 72] of the whole: Its both the Physician and the patient: if the body bee distempered, it hath power to open a veine to let out the corrupt bloud for curing of it selfe; if one member be poysoned or gangrened, it hath power to cut it off for the preservation of the rest.

But, my Lords, it hath bin often inculcated, that Law-makers should imitate the supreme Law­giver, who commonly warnes before he strikes; the Law was promulged before the jugdement of death for gathering the stickes; no law, no trans­gression.

My Lords, to this the rule of Law is, Frustra legis auxilium invocat, qui in legem committit, from the lex Talionis, he that would not have had others to have law, why should he have any himselfe? why should not that be done to him, that himselfe would have done to others?

Its true, we give law to Hares and Deeres, be­cause they be beasts of Chase; It was never ac­counted either cruelty or foul play to knock Foxes and Wolves on the head, as they can be found; be­cause these be beasts of prey: The Warrener sets traps for Powlcats and other Vermine, for pre­servation of the Warren.

Further, my Lords, most dangerous diseases, if not taken in time, they kill: Errors in great things, as Warre and Marriage, they allow no time for re­pentance; it would have been too late to make a law, when there had been no law.

My Lords, for further answer to this objecti­on, [Page 73] he hath offended a law, a law within, the en­deavouring to subvert the lawes and politie of the state wherein he lived, which had so long, and with such faithfulnesse protected his Ancestry, himself, and his whole family; it was not malum, quia prohi­bitum, it was malum in se, against the dictates of the dullest conscience, against the light of nature; they, not having the law, were a law to themselves.

Besides this, he knew a law without, That the Parliament in cases of this nature had potestatem vitae & necis.

Nay, he well knew, that he offended the pro­mulged and ordinary rules of law: Crimes against law have been proved, have been confessed, so that the question is not de culpa, sed de poena, what de­gree of punishment those faults deserve; we must differ from him in opinion, that twenty felonies cannot make a treason, if it be meant of equality in the use of the Legislative power: for, he that de­serves death for one of these felonies alone, de­serves a death more painful and more ignominious for all together.

Every felony is punished with losse of life, lands, and goods; a felony may bee aggravated with those circumstances, as that the Parliament with good reason may adde to the circumstances of pu­nishment, as was done in the case of John Hall, in the Parliament of 1. H. 4. who for a barbarous murder committed upon the Duke of Glocester, stifling him between two feather-beds at Calice, was adjudged to be hanged, drawn, and quartered.

[Page 74] Batteries by Law are punishable only by fine and single dammages to the party wounded.

In the Parliament held in 1. H. 4. cap. 6. one Savadge committed a Battery upon one Chedder fervant to Sir John Brooke, a knight of the Parlia­ment for Sommersetshire; Its there enacted, that he shall pay double dammages, and stand convicted if he render not himselfe by such a time: The man­ner of proceedings quickned, the penalty doubled, the circumstances were considered, it concerned the Common-wealth, it was Battery with breach of priviledge of Parliament.

This made a perpetuall Act, no warning to the first offendor; And in the Kings Bench, as appears by the booke case of 9. H. 4. the first leafe, double dammages were recovered.

My Lords, in this of the Bill the offence is high and generall, against the King and the Com­mon-wealth; against all, and the best of all.

If every Felony be losse of life, lands and goods, what is misuser of the Legislative power, by additi­on of Ignominie in the death and disposall of the lands to the Crowne, the publicke patrimony of the kingdome.

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

My Lords, this appeale from your selves to your Ancestors we admit of, although we do not admit of that from your Lordships to the Peers of Ireland

He hath appealed to them; your Lordships will [Page 75] be pleased to heare what Judgement they have al­ready given in the Case, that is the severall attain­ders of treason in Parliament, after the Statute of 25. E. 3. for treasons not mentioned, nor within that Statute, and those upon the first offendors without warning given.

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

My Lords, in 3. R. 2. John Imperiall that came into England upon letters of safe conduct, as an Agent for the state of Genoah, sitting in the Evening before his doore in Breadstreete, (as the words of the Records are,) paulo ante ignitegium; John Kirby and another Citizen comming that way, casually Kirby trode upon his Toe: it being twilight, this grew to a quarrell, and the Embassa­dour was slaine; Kirby was indicted of high trea­son, the inditement findes all this, and that it was onely done se defendendo, and without malice.

The Judges, it being out of the Statute of 25. E. 3. could not proceede, the Parliament declared it treason, and judgement afterwards of high treason, there's nothing can bring this within the Statute of 25. E. 3. but it concernes the honour of the Nation, that the publicke faith should be strictly kept: It might endanger the trafficke of the Kingdome; [Page 76] they made not a Law first, they made the first man an example. This is in the Parliament roll, 3. R. 2. num. 18. and Hilary Terme, 3. R. 2. Rot. 31. in the Kings Bench, where judgment is given against him.

In 11. R. 2. Tresilian, and some others attainted of treason for delivering opinions in the subversion of the Law, and some others for plotting the like: My Lords, the case hath upon another occasion beene opened to your Lordships; only this is observable, That in the Parliament of the first yeare of Henry the third, where all treasons are again reduced to the Statute of 25. E. 3. these Attainders were by a par­ticular Act confirmed and made good, that the me­mory thereof might bee transmitted to succeeding ages: They stand good unto this day; the Offences there, as here, were the endeavouring the subversion of the lawes

My Lords, after 1. H. 4. Sir John Mortimer being committed to the Tower upon suspicion of treason, brake prison, and made an escape: This no way within any Statute, or any former Judgment at com­mon Law; for this, that is, for breaking the prison only, and no other cause, in the Parliament held the second yeer of Henry the sixth, hee was attainted of high treason by Bill.

My Lords, Poysoning is only murder; yet one Richard Coke having put poyson into a pot of pot­tage in the kitchin of the Bish. of Rochester where­of two persons died, hee's attainted of treason, and it was enacted, that he should bee boyled to death by the Statute of 22. H. 8. cap. 9.

[Page 77] By the Statute of 25. H. 8. Elizabeth Barton, the holy maid of Kent, for pretending revelations from God, that God was highly displeased with the King for being divorced from the Lady Katherine, and that in case he persisted in the separation, and should marry another, that he would not continue King a­bove one moneth after; because this tended to the depriving of the lawfull succession to the Crowne, shee is attainted of treason.

In the Parliament 2. & 3. H. 6. cap. 16. the Lord Admirall of England was attainted of treason for procuring the Kings Letters to both Houses of Par­liament, to be good to the said Earle in such matters as hee should declare unto them, for saying that hee would make the Parliament the blackest Parliament that ever was in England, endevouring to marry the Lady Elizabeth the Kings sister, taking a bribe of Sherrington, accused of treason, and thereupon con­sulting with Councell for him, and some other crimes, none of them treason, so cleerely within the Statute of 25. E. 3. or any other Statute, as is the case in question.

My Lords, All these Attainders, for ought I know, are in force at this day; the Statutes of the first yeere of Henry the fourth, and the first of Qu. Mary, although they were willing to make the Sta­tute of the five and twentieth yeere of Edward the third the rule to the inferiour Courts, yet they left the Attainders in Parliament precedent to them­selves untoucht, wherein the Legislative power had been exercised. There's nothing in them whence it [Page 78] can be gathered, but that they intended to leave it as free for the future.

My Lords, In all these Attainders, there were crimes and offences against the Law; they thought it not unjust, circumstances considered, to heighten and add to the degrees of punishment, and that upon the first offender.

My Lords, We receive, as just, the other Lawes and Statutes made by these our Ancestors: they are the rules wee goe by in other cases; why should we differ from them in this alone?

These (My Lords) are in part those things which have satisfied the Commons in passing of the Bill; It is now left to the Judgement and Justice of your Lordships.