MAny dayes have been ſpent in maintenance of the Impeachment of the Earle of Strafford, by the Houſe of Commons, whereby he ſtands charged with High Treaſon: And your Lordſhips have heard his Defence with Patience, and with as much favour as Iuſtice would allow: We have paſſed through our Evidence, and the Reſult of all this is, that it remaines clearly proved, That the Earle of Strafford hath indeavoured by his words, actions, and counſels, to ſubvert the Fundamentall Lawes of England and Ireland, and to introduce an Arbitrary and Tyrannicall Government.

This is the envenomed Arrow for which he inquired in the beginning of his Replication this day, which hath infected all his Bloud: This is that Intoxicating Cup, (to uſe his owne Metaphor) which hath tainted his Iudgement, and poiſoned his Heart: From hence was infuſed that Specificall Difference which turned his Speeches, his Actions, his Counſels into Treaſon; Not Cumulative, as he expreſt it, as if many Miſdemeanours could make one Treaſon; but Formally and Eſſentially. It is the End that doth informe Actions, and doth ſpecificate the nature of them, making not onely criminall, but even indifferent words and actions to be Treaſon, being done and ſpoken with a Treaſonable intention.

That which is given me in charge, is, to ſhew the quality of the offence, how hainous it is in the nature, how miſchievous in the effect of it; which will beſt appeare if it be examined by that Law, to which he himſelfe appealed, that univerſall, that ſupreme Law, Salus populi: This is the Element of all Laws, out of which they are derived; the End of all Laws, to which they are deſigned, and in which they are perfected. How far it ſtands in oppoſition to this Law, I ſhall endeavour to ſhew in ſome Conſiderations which I ſhal preſent to your Lordſhips, all ariſing out of the Evidence which hath been opened.

The firſt is this: It is an offence comprehending all other offences; here you ſhall finde ſeverall Treaſons, Murders, Rapines, Oppreſsions, Perjuries.

The Earth hath a Seminarie vertue, whereby it doth produce all Hearbs, and Plants, and other Vegetables: There is in this Crime, a Seminarie of all evils hurtfull to a State; and if you conſider the reaſons of it, it muſt needs be ſo: The Law is that which puts a difference betwixt good and evill, betwixt juſt and unjuſt; If you take away the Law, all things will fall into a confuſion, every man will become a Law to himſelfe, which in the depraved condition of humane nature, muſt needs produce many great enormities: Luſt will become a Law, and Envie will become a Law, Covetouſneſſe and Ambition will become Lawes; and what dictates, what deciſions ſuch Laws will produce, may eaſily be diſcerned in the late Government of Ireland: The Law hath a power to prevent, to reſtraine, to repaire evils; without this all kind of miſchiefs and diſtempers will break in upon a State.

It is the Law that doth intitle the King to the Allegeance and ſervice of his people; it intitles the people to the protection and juſtice of the King. It is God alone who ſubſiſts by himſelfe, all other things ſubſiſt in a mutuall dependence and relation. He was a wiſe man that ſaid, that the King ſubſiſted by the field that is tilled: It is the labour of the people that ſupports the Crowne: If you take away the protection of the King, the vigour and cheerfulneſs of Allegeance will be taken away, though the Obligation remaine.

The Law is the Boundarie, the Meaſure betwixt the Kings Prerogative, and the Peoples Liberty: Whiles theſe move in their owne Orbe, they are a ſupport and ſecurity to one another; The Prerogative a cover and defence to the Liberty of the people, and the people by their liberty are enabled to be a foundation to the Prerogative; but if theſe bounds be ſo removed, that they enter into conteſtation and conflict, one of theſe miſchiefes muſt needs enſue: If the Prerogative of the King overwhelm the liberty of the people, it will be turned into Tyrannie; if liberty undermine the Prerogative, it will grow into Anarchie.

The Law is the ſafeguard, the cuſtody of all private intereſt: Your Honours, your Lives, your Liberties and Eſtates are all in the keeping of the Law; without this, every man hath a like right to any thing, and this is the condition into which the Iriſh were brought by the E. of Strafford: And the reaſon which he gave for it, hath more miſchiefe in it then the thing it ſelfe, They were a Conquered Nation. There cannot be a word more pregnant, and fruitfull in Treaſon, then that word is: There are few Nations in the world that have not been conquered; and no doubt but the Conquerour may give what Lawes he pleaſe to thoſe that are conquered: But if the ſucceeding Pacts and Agreements doe not limit and reſtraine that Right, what people can be ſecure? England hath been conquered, and Wales hath been conquered, and by this reaſon will be in little better caſe then Ireland. If the King by the Right of a Conquerour gives Lawes to his People, ſhall not the people by the ſame reaſon be reſtored to the Right of the conquered, to recover their liberty if they can? What can be more hurtfull, more pernicious to both, then ſuch Propoſitions as theſe? And in theſe particulars is determined the firſt Conſideration.

The ſecond Conſideration is this: This Arbitrary power is dangerous to the Kings Perſon, and dangerous to his Crown: It is apt to cheriſh Ambition, uſurpation, and oppreſsion in great men, and to beget ſedition and diſcontent in the People; and both theſe have beene, and in reaſon muſt ever be cauſes of great trouble and alteration to Princes and States.

If the Hiſtories of thoſe Eaſterne Countries be peruſed, where Princes order their affaires according to the miſchievous principles of the E. of Strafford, looſe and abſolved from all Rules of Government, they will be found to be frequent in combuſtions, full of Maſſacres, and of the tragicall ends of Princes. If any man ſhall look into our owne Stories, in the times when the Laws were moſt neglected, he ſhall find them full of Commotions, of Civill diſtempers; whereby the Kings that then reigned, were alwayes kept in want and diſtreſſe; the people conſumed with Civill wars: and by ſuch wicked counſels as theſe, ſome of our Princes have beene brought to ſuch miſerable ends, as no honeſt heart can remember without horrour, and earneſt Prayer, that it may never be ſo againe.

The third Conſideration is this, The ſubverſion of the Lawes; And this Arbitrary power, as it is dangerous to the Kings Perſon and to his Crowne, ſo is it in other reſpects very prejudiciall to his Majeſty in his Honour, Profit, and Greatneſſe; and yet theſe are the gildings and paintings that are put upon ſuch counſels; Theſe are for your Honour, for your ſervice; whereas in truth they are contrary to both: But if I ſhall take off this varniſh, I hope they ſhall then appeare in their owne native deformity, and therefore I deſire to conſider them by theſe Rules.

It cannot be for the Honour of a King, that his ſacred Authority ſhould be uſed in the practiſe of injuſtice and oppreſsion; that his Name ſhould be applyed to patronize ſuch horrid crimes, as have beene repreſented in Evidence againſt the Earle of Strafford; and yet how frequently, how preſumptuouſly his Commands, his Letters have been vouched throughout the courſe of this Defence, your Lordſhips have heard. When the Iudges doe juſtice, it is the Kings juſtice, and this is for his honour, becauſe he is the Fountaine of juſtice; but when they doe injuſtice, the offence is their owne: But thoſe Officers and Miniſters of the King, who are moſt officious in the exerciſe of this Arbitrarie power, they doe it commonly for their advantage; and when they are queſtioned for it, then they fly to the Kings intereſt, to his Direction: And truly my Lords, this is a very unequall diſtribution for the King, that the diſhonour of evill courſes ſhould be caſt upon him, and they to have the advantage.

The prejudice which it brings to him in regard of his profit, is no leſſe apparent: It deprives him of the moſt beneficiall, and moſt certaine Revenue of his Crowne, that is, the voluntary aids and ſupplies of his people; his other Revenues, conſiſting of goodly Demeanes, and great Manors, have by Grants been alienated from the Crowne, and are now exceedingly diminiſhed and impaired: But this Revenue it cannot be ſold, it cannot be burdned with any Penſions or Annuities, but comes intirely to the Crowne. It is now almoſt fifteene years ſince his Majeſty had any aſſiſtance from his people; and theſe illegall wayes of ſupplying the King were never preſt with more violence, and art, then they have been in this time; and yet I may upon very good grounds affirm, that in the laſt fifteene years of Queen Elizabeth, ſhe received more by the Bounty and Affection of her Subjects, then hath come to His Majeſties Coffers by all the inordinate and rigorous courſes which have beene taken. And as thoſe Supplies were more beneficiall in the Receipt of them, ſo were they like in the uſe and imployment of them.

Another way of prejudice to his Majeſties profit, is this: Such Arbitrary courſes exhauſt the people, and diſable them, when there ſhall be occaſion, to give ſuch plentifull ſupplies, as otherwiſe they would doe. I ſhall need no other proofe of this, then the Iriſh Government under my L. of Strafford, where the wealth of the Kingdome is ſo conſumed by thoſe horrible exactions and burdens, that it is thought the Subſidies lately granted will amount to little more then halfe the proportion of the laſt Subſidies. The two former wayes are hurtfull to the Kings profit, in that reſpect which they call Lucrum Ceſſans, by diminiſhing his receipts; But there is a third, fuller of miſchiefe, and it is in that reſpect which they call Damnum emergens, by increaſing his Disburſements: Such irregular and exorbitant attempts upon the Libertie of the people, are apt to produce ſuch miſerable diſtractions and diſtempers, as will put the King and Kingdome to ſuch vaſt expences and loſſes in a ſhort time, as will not be recovered in many yeares: Wee need not goe farre to ſeeke a proofe of this, theſe two laſt yeares will be a ſufficient evidence, within which time I aſſure my ſelfe, it may be proved, that more Treaſure hath beene waſted, more loſſe ſuſtained by his Majeſty and his Subjects, then was ſpent by Queene Elizabeth in all the War of Tyrone, and in thoſe many brave Attempts againſt the King of Spaine, and the royall aſsiſtance which ſhe gave to France, and the Low-Countries, during all her Reigne.

As for Greatneſſe, this Arbitrary power is apt to hinder and impaire it, not onely at home, but abroad. A Kingdome is a ſociety of men conjoyned under one Government, for the common good: The world is a ſociety of Kingdomes and States. The Kings greatneſſe conſiſts not onely in his Dominion over his Subjects at home, but in the influence which he hath upon States abroad; That he ſhould be great even among Kings, and by his wiſdome and authority ſo to incline and diſpoſe the affaires of other States and Nations, and thoſe great events which fall out in the world, as ſhall be for the good of Mankind, and for the peculiar advantage of his owne people. This is the moſt glorious, and magnificent greatneſs, to be able to relieve diſtreſsed Princes, to ſupport his owne friends and Allies, to prevent the ambitious deſignes of other Kings; and how much this Kingdome hath been impaired in this kinde, by the late miſchievous counſels your Lordſhips beſt know, who at a neerer diſtance, and with a more cleare ſight, doe apprehend theſe publique and great affaires, then I can doe. Yet thus much I dare boldly ſay, that if his Maieſtie had not with great wiſdome and goodneſs forſaken that way wherein the Earle of Strafford had put him, we ſhould within a ſhort time have been brought into that miſerable condition, as to have been uſeleſſe to our friends, contemptible to our enemies, and uncapable of undertaking any great deſigne either at home or abroad.

A fourth Conſideration is, That this Arbitrary, and Tyrannicall Power, which the E. of Strafford did exerciſe in his own perſon, and to which he did adviſe his Majeſty, is inconſiſtent with the Peace, the Wealth, the Proſperity of a Nation; It is deſtructive to Juſtice, the Mother of Peace; to Induſtry, the ſpring of Wealth; to Valour, which is the active vertue whereby the proſperity of a Nation can onely be procured, confirmed, and inlarged.

It is not only apt to take away Peace, and ſo intangle the Nation with Warres, but doth corrupt Peace, and puts ſuch a malignity into it, as produceth the Effects of warre. We need ſeek no other proofe of this, but the E. of Straffords Government, where the Iriſh, both Nobility and others, had as little ſecurity of their Perſons or Eſtates in this peaceable time, as if the Kingdome had been under the rage and fury of warre.

And as for Induſtrie, and Valour, who will take pains for that, which when he hath gotten, is not his own? Or who fight for that wherein he hath no other intereſt, but ſuch as is ſubject to the will of another? The Ancient encouragement to men that were to defend their Countries was this, That they were to hazard their Perſons, pro Aris & Focis, for their Religion, and for their Houſes; But by this Arbitrary way which was practiſed in Ireland, and counſelled here, no man had any certainty, either of Religion, or of his Houſe, or any thing elſe to be his own; But beſides this, ſuch Arbitrary courſes have an ill operation upon the courage of a Nation, by embaſing the hearts of the people: A ſervile condition doth for the moſt part beget in men a ſlaviſh temper and diſpoſition. Thoſe that live ſo much under the Whip and the Pillory, and ſuch ſervile Engines, as were frequently uſed by the E. of Strafford, they may have the dregges of valour, ſullenneſſe, & ſtubbornneſſe, which may make them prone to Mutinies, and diſcontents; but thoſe Noble and gallant affections, which put men on brave Deſignes and Attempts for the preſervation or inlargement of a Kingdome, they are hardly capable of. Shall it be Treaſon to embaſe the Kings Coyne, though but a piece of twelve-pence, or ſixe-pence, and muſt it not needs be the effect of a greater Treaſon, to embaſe the ſpirits of his Subjects, and to ſet a ſtamp and Character of ſervitude upon them, whereby they ſhall be diſabled to doe any thing for the ſervice of the King or Commonwealth?

The fift Conſideration is this, That the exerciſe of this Arbitrary Government, in times of ſudden danger, by the invaſion of an enemy, will diſable his Majeſty to preſerve himſelfe and his Subjects from that danger. This is the onely pretence by which the E. of Strafford, and ſuch other miſchievous Counſellors would induce his Majeſty to make uſe of it; and if it be unfit for ſuch an occaſion, I know nothing that can be alledged in maintenance of it.

When warre threatens a Kingdome by the comming of a forrain Enemy, it is no time then to diſcontent the people, to make them weary of the preſent Government, and more inclinable to a Change; The ſupplies which are to come in this way, will be unready, uncertain; there can be no aſſurance of them, no dependence upon them, either for time or proportion: And if ſome money be gotten in ſuch a way, the Diſtractions, Diviſions, Diſtempers, which this courſe is apt to produce, will be more prejudiciall to the publique ſafety, then the ſupply can be advantagious to it; and of this we have had ſufficient experience the laſt Summer.

The ſixt, That this crime of ſubverting the Laws, and introducing an Arbitrary and Tyrannicall Government, is contrary to the Pact and Covenant betwixt the King and his people. That which was ſpoken of before, was the legall union of Allegeance and Protection; this is a perſonall union by mutuall agreement and ſtipulation, confirmed by oath on both ſides: The King and his people are obliged to one another in the neareſt relations; He is a Father, and a childe is called in Law, Pars Patris: Hee is the Husband of the Common-wealth, they have the ſame intereſts, they are inſeparable in their condition, be it good or evill; He is the Head, they are the Body; there is ſuch an incorporation as cannot be diſſolved without the deſtruction of both.

When Iuſtice Thorpe, in Edw. the thirds time, was by the Parliament condemned to death for Bribery, the reaſon of that Judgement is given, becauſe he had broken the Kings Oath, not that he had broken his own oath, but that he had broken the Kings oath, that ſolemne and great obligation, which is the ſecurity of the whole Kingdome: If for a Judge to take a ſmall ſumme in a private cauſe, was adjudged Capitall, how much greater was this offence, whereby the E. of Strafford hath broken the Kings Oath in the whole courſe of his Government in Ireland, to the prejudice of ſo many of his Majeſties Subjects, in their Lives, Liberties, and Eſtates, and to the danger of all the reſt?

The Doctrine of the Papiſts, Fides non eſt ſervanda cum Haereticis, is an abominable Doctrine: yet that other Tenet more peculiar to the Ieſuites is more pernicious, whereby Subjects are diſcharged from their Oath of Allegeance to their Prince whenſoever the Pope pleaſeth; This may be added to make the third no leſſe miſchievous and deſtructive to humane ſociety, then either of the reſt; That the King is not bound by that Oath which he hath taken to obſerve the Laws of the Kingdome, but may when he ſees cauſe, lay Taxes and burdens upon them without their conſent, contrary to the Laws and Liberties of the Kingdome. This hath been preached and publiſhed by divers; And this is that which hath been practiſed in Ireland by the E. of Strafford, in his Government there, and indeavoured to be brought into England, by his Counſell here.

The ſeventh is this; It is an offence that is contrary to the end of Government; The end of Government was to prevent oppreſsions, to limit and reſtrain the exceſſive power and violence of great men, to open the paſſages of Iuſtice with indifferency towards all; This Arbitrary power is apt to induce and incourage all kind of inſolencies.

Another end of Government is to preſerve men in their eſtates, to ſecure them in their Lives and Liberties; but if this Deſigne had taken effect, and could have been ſetled in England, as it was practiſed in Ireland, no man would have had more certainty in his own, then power would have allowed him: But theſe two have been ſpoken of before, there are two behind more important, which have not yet been touched.

It is the end of Government, that vertue ſhould be cheriſht, vice ſuppreſt; but where this Arbitrary and unlimited power is ſet up, a way is open not onely for the ſecurity, but for the advancement and incouragement of evill; Such men as are apteſt for the execution and maintenance of this Power, are onely capable of preferment; and others who will not be inſtruments of any unjuſt commands, who make a conſcience to doe nothing againſt the Laws of the Kingdome, and Liberties of the Subject, are not onely not paſſable for imployment, but ſubject to much jealouſie and danger.

It is the end of Government, that all accidents and events, all Counſels and Deſignes ſhould be improved to the publique good: But this Arbitrary Power is apt to diſpoſe all to the maintenance of it ſelf. The wiſdome of the Councell-Table, the Authority of the Courts of Juſtice, the induſtry of all the Officers of the Crown have been moſt carefully exerciſed in this; the Learning of our Divines, the Iuriſdiction of our Biſhops have been moulded and diſpoſed to the ſame effect, which though it were begun before the E. of Straffords Imployment, yet it hath beene exceedingly furthered and advanced by him.

Under this colour and pretence of maintaining the Kings Power and Prerogative many dangerous practiſes againſt the peace and ſafety of this Kingdome have been undertaken and promoted. The increaſe of Popery, and the favours and incouragement of Papiſts have been, and ſtill are a great grievance and danger to the Kingdome: The Innovations in matters of Religion, the uſurpations of the Clergie, the manifold burdens and taxations upon the people, have been a great cauſe of our preſent diſtempers and diſorders; and yet thoſe who have been chiefe Furtherers and Actors of ſuch Miſchiefes, have had their Credit and Authority from this, That they were forward to maintain this Power. The E. of Strafford had the firſt riſe of his greatneſſe from this, and in his Apologie and Defence, as your Lordſhips have heard, this hath had a maine part.

The Royall Power, and Majeſty of Kings, is moſt glorious in the proſperity and happineſſe of the people; The perfection of all things conſiſts in the end for which they were ordained, God onely is his own end, all other things have a further end beyond themſelves, in attaining whereof their own happineſſe conſiſts: If the means and the end be ſet in oppoſition to one another, it muſt needs cauſe an impotency and defect of both.

The eight Conſideration is, The vanity and abſurdity of thoſe excuſes and juſtifications which he made for himſelf, whereof divers particulars have been mentioned in the courſe of his Defence.

1. That he is a Counſellor, and might not be queſtioned for any thing which he adviſed according to his conſcience; The ground is true, there is a liberty belongs to Counſellors, and nothing corrupts Counſels more then fear; He that will have the priviledge of a Counſellor, muſt keep within the juſt bounds of a Counſellor; thoſe matters are the proper ſubjects of Counſell, which in their times and occaſions, may be good or beneficiall to the King or Common-wealth; But ſuch Treaſons as theſe, the ſubverſion of the Laws, violation of Liberties, they can never be good, or juſtifiable by any circumſtance, or occaſion; and therefore his being a Counſellor, makes his fault much more hainous, as being committed againſt a greater Truſt, and in a way of much miſchiefe and danger, leſt his Majeſties conſcience and judgement (upon which the whole courſe and frame of his Government do much depend) ſhould be poyſoned and infected with ſuch wicked principles and deſignes: And this he hath endeavoured to doe, which by all Lawes, and in all times hath in this Kingdome beene reckoned a Crime of an high Nature.

2. He labours to intereſt your Lordſhips in his cauſe, by alledging, It may be dangerous to your ſelves, and your Poſterity, who by your birth are fitteſt to be near his Majeſty, in places of Truſt and Authority, if you ſhould be ſubject to be queſtioned for matters delivered in Counſell. To this was anſwered, that it was hoped their Lordſhips would rather labour to ſecure themſelves, and their poſterity, in the exerciſe of their vertues, then of their vices, that ſo they might together with their own honour and greatneſſe, preſerve the honour and greatneſſe, both of the King and Kingdome.

3. Another excuſe was this, that whatſoever he hath ſpoken was out of a good intention; Sometimes good and evill, truth and falſhood lie ſo near together, that they are hardly to be diſtinguiſhed: Matters hurtfull and dangerous may be accompanied with ſuch circumſtances as may make it appeare uſefull and convenient, and in all ſuch caſes, good intentions will juſtifie evill Counſell; But where the matters propounded are evill in their own nature, ſuch as the matters are wherewith the E. of Strafford is charged, to break a publique faith, to ſubvert Laws and Government, they can never be juſtified by any intentions, how ſpecious, or good ſoever they be pretended.

4. He alledgeth it was a time of great neceſsity and danger, when ſuch counſels were neceſſary for preſervation of the State. Neceſsity hath been ſpoken of before, as it relates to the Cauſe; now it is conſidered as it relates to the Perſon; if there were any neceſſity, it was of his own making; he by his evil counſell had brought the King into a neceſſity, and by no Rules of Iuſtice, can be allowed to gain this advantage by his own fault, as to make that a ground of his juſtification, which is a great part of his offence.

5. He hath often inſinuated this, That it was for his Majeſties ſervice in maintenance of that Soveraign Power with which he is intruſted by God for the good of his people. The Anſwer is this, No doubt but that Soveraign Power wherewith his Majeſty is intruſted for the publique good, hath many glorious effects, the better to inable him thereunto; But without doubt this is none of them, That by his own will he may lay any Taxe or Impoſition upon his people without their conſent in Parliament. This hath now been five times adjudged by both Houſes: In the Caſe of the Loanes, In condemning the Commiſsion of Exciſe, In the Reſolution upon the Saving offered to be added to the Petition of Right, In the ſentence againſt Manwaring, and now lately, In condemning the Ship-money; And if the Soveraigne Power of the King can produce no ſuch effect as this, the Allegation of it is an Aggravation, and no Diminution of his offence, becauſe thereby he doth labour to intereſt the King againſt the juſt grievance and complaint of the People.

6. This Counſell was propounded with divers limitations, and Proviſions; for ſecuring and repairing the liberty of the people. This implies a contradiction to maintain an Arbitrary & abſolute Power, and yet to reſtrain it with limitations, and proviſions; for even thoſe limitations and proviſions will be ſubject to the ſame abſolute Power, and to be diſpenſed in ſuch manner, and at ſuch time, as it ſelf ſhall determine; let the grievances and oppreſsions be never ſo heavy, the Subject is left without all remedy, but at his Majeſties own pleaſure.

7. He alledgeth, they were but words, and no effect followed: This needs no anſwer, but that the miſerable diſtempers into which he hath brought all the three Kingdomes, will be evidence ſufficient that his wicked Counſels have had ſuch miſchievous effects within theſe two or three laſt years, that many years peace will hardly repaire thoſe loſſes, and other great miſchiefes which the Common-wealth hath ſuſtained.

Theſe excuſes have been collected out of the ſeverall parts of his Defence; perchance ſome others are omitted, which I doubt not have been anſwered by ſome of my Collegues, and are of no importance, either to perplex or to hinder your Lordſhips judgement, touching the hainouſneſſe of this Crime.

The ninth Conſideration is this, That if this be Treaſon, in the nature of it, it doth exceed all other Treaſons in this, That in the Deſign, and endeavour of the Author, it was to be a conſtant and a permanent Treaſon; other Treaſons are tranſient, as being confinde within thoſe particular actions and proportions wherein they did conſiſt, and thoſe being paſt, the Treaſon ceaſeth.

The Powder-Treaſon was full of horror and malignity, yet it is paſt many years ſince; The murder of that Magnanimous and glorious King, Henry the fourth of France, was a great and horrid Treaſon; And ſo were thoſe manifold attempts againſt Qu. Elizabeth of bleſſed memory; but they are long ſince paſt, the Deteſtation of them only remains in Hiſtories, and in the minds of men; and will ever remain; But this Treaſon, if it had taken effect, was to be a ſtanding, perpetuall Treaſon, which would have been in continuall act, not determined within one time or age, but tranſmitted to Poſterity, even from generation to generation.

The tenth Conſideration is this, That as it is a Crime odious in the nature of it, ſo it is odious in the judgement and eſtimation of the Law; To alter the ſetled frame and conſtitution of Government, is Treaſon in any eſtate; The Laws whereby all other parts of a Kingdome are preſerved, ſhould be very vain and defective, if they had not a power to ſecure and preſerve themſelves.

The forfeitures inflicted for Treaſon by our Law, are of Life, Honour, and Eſtate, even all that can be forfeited, and this Priſoner having committed ſo many Treaſons, although he ſhould pay all theſe forfeitures, will be ſtill a Debtor to the Common-wealth: Nothing can be more equall then that he ſhould periſh by the Juſtice of that Law which he would have ſubverted; Neither wil this be a new way of bloud; There are marks enough to trace this Law to the very originall of this Kingdome: And if it hath not been put in execution, as he alledgeth, this 240. years, it was not for want of Law, but that all that time hath not bred a man bold enough to commit ſuch Crimes as theſe; which is a circumſtance much aggravating his offence, and making him no whit leſſe liable to puniſhment, becauſe he is the onely man that in ſo long a time hath ventured upon ſuch a Treaſon as this.

It belongs to the charge of another to make it appear to your Lordſhips, that the Crimes and Offences proved againſt the Earle of Strafford, are High Treaſon by the Lawes and Statutes of this Realm, whoſe learning and other abilities are much better for that ſervice. But for the time and manner of performing this, we are to reſort to the Direction of the Houſe of Commons, having in this which is already done, diſpatched all thoſe inſtructions which wee have received; and concerning further proceedings, for clearing all Queſtions and Objections in Law, your Lordſhips will hear from the Houſe of Commons in convenient time.

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.

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.

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 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.

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; the Statute of the five and twentieth yeare of Edward the third, of Treaſons; the Statute of the Prerogative, and of late the petition of right. If the Law were doubtfull in this Caſe, they conceived the Parliament (where the old may be altered, and new Lawes made) the fitteſt Iudge to cleare this doubt.

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

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

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

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

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

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

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

Et ſi non proſunt ſingula juncta juvant.

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

5. That his endeavouring to ſubvert the fundamentall Lawes and Governement of the Realmes of England and Ireland, and inſtead thereof, to introduce a tyranicall Governement againſt Law, is Treaſon by the Common Law. That Treaſons at the Common Law are not taken away by the Statutes of 25. E. 3. 1. H. 4. c. 10. 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.

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 25o. E. 3. The words of the Statute are, If any man doe levy warre againſt our Lord the King in his Realm, this is declared to be Treaſon.

I ſhall indeavour in this to make it appeare to your Lordſhips.

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

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

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

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

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

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

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

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

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

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

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.

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

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

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

In R. the 2ds. 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 of the Lords that was to have beene indicted of Treaſon for endeavouring the maintenance of it, and therefore conſpiring of their deaths is ſaid to be in deſtruction of the Lawes; This there declared to bee a Treaſon that concerned the Perſon of the King and the Common-wealth.

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

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

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

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

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

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

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

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

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

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

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

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

My Lords, for the application of both theſe to the Caſe in queſtion.

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

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

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

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

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

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

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

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

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

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

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

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

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

My Lords, there was an Army in Ireland at that time of two thouſand horſe and foot, by this Warrant there is a full deſignation of this whole Army, and an Aſſignement of it over unto Savill for this purpoſe. The Warrant gives him power from time to time to take as many Souldiers, horſe and foot, with an Officer, throughout the whole Army as himſelfe ſhall pleaſe, heere is the terrour and awe of the whole Army to enforce obedience. My Lords, if the Earle had armed two thouſand men, horſe and foot, and formed them into companies to this end, your Lordſhips would have conceived that this had beene a warre, It's as much as in the caſe of Sir Thomas Talbot who armed them in aſſemblies.

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

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

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

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

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

The Caſe in queſtion goes further in theſe two Reſpects.

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

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

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

The ſecond is the machination, the adviſing of a warre; The Caſe in this reſts upon the Warrant to Savill, and the advice in the 23 Article.

The Warrant ſhewes a reſolution of employing the old Army of Ireland, to the opproſſion of his Majeſties Subjects and the Lawes.

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

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

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

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

If machination or plotting a warre be not within that clauſe of the Statute of levying warre, yet 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 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 included the Queene, and was a compaſſing her deſtruction, as wel as of the Kingdomes, heere the adviſe was to the King.

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

That the advice was to his Majeſty, aggravates the offence, it was an Attempt not only upon the Kingdome, but upon the Sacred Perſon, and his office too; himſelfe was hoſt is patriae, he would have made the Father of it ſo too; nothing more unnaturall, more dangerous; To offer the King poyſon to drink, telling him that it is a Cordiall, is a compaſſing of his death. The poyſon was repelled, there was an antidote within, the malice of the giver beyond expreſſion. The perſwading of Forreiners to invade the kingdome holds no proportion with this, Machination of warre againſt the Lawes or kingdome is againſt the King they cannot be ſevered.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

For the firſt, The preamble recites that in time of Declination of Juſtice under pretext of defending the Country and themſelves, divers great men arrogated to themſelvs regal authority under the names of Captains, that they acquired to themſelves that government which belonged to the Crowne, for preventing of this 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.

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

That that had anciently beene ſo continued to this time, that is the Iriſh and the Engliſh pale, they within the Shire grounds were within the Engliſh pale, and ad fidem & legem Angliae; the Iriſh that were without the pale were enemies alwayes either in open act of hoſtility or upon leagues, and hoſtages given for ſecuring the peace, and therefore as heere in England, wee had our marches upon the frontiers in Scotland and Wales, ſo were there Marches betweene the Engliſh and Iriſh pale, where the inhabitants held their Landes by this tenure to defend the Country againſt the Iriſh, as appeares in the cloſe Rolls of the Tower in the 20. yeare of Edward the third, membrana 15. on the backſide, and in an Iriſh Parliament held the 42. yeare of Edward the third. 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 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 continued by John Fitz. Gerard called the white Knight, and Thomas Queverford, this appeares by the Statute of the thirteenth yeare of Queene Elizabeth in Ireland, but two yeares after this of the eleaventh yeare of Queene Elizabeth, where they are attainted of high treaſon for levying Warre this eleaventh yeare, wherein this Statute was made.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

That being admitted whether the Parliaments in England have cognizance or juriſdiction of things there done in reſpect of the place, becauſe the Kings writ runnes not there.

For the firſt, if in reſpect of the place, the Parliament here hath cognizance there; And ſecondly, if the rules for expounding the Iriſh Statutes and Cuſtomes bee the ſame here as there, this exception as I humbly, conceive muſt fall away.

In England there is the common law, the Statutes, the acts of Parliament and cuſtomes peculiar to certaine places differing from the common law, if any queſtion ariſe concerning either a cuſtome or an act of Parliament, the common law of England; the firſt, the primative and the generall law, that's the rule and expoſitour of them and of their ſeverall extents, it is ſo heere, it is ſo in Ireland; the common law of England, is the common law of Ireland likewiſe; the ſame here and there in all the parts of it.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Garneſey and Jerſey are under the Kings ſubjection, but are not parcels of the Crowne of England, but of the Duchy of Normandy; they are not governed by the Lawes of England, as Ireland is; and yet Parliaments in England have uſually held plea of, and determined all cauſes concerning lands or goods. In the Parliament of 33. H. 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 failes, this by way of Bill doth not; Attainders of Treaſon in Parliament are as legall, as uſuall by Act of Parliament as by Judgement.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Herein the Legislative power is not uſed againſt my Lord of Strafford in the Bill, 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 conceive that in this caſe the meer Legiſlative power may be exerciſed.

Their reaſons are taken from theſe three grounds: 1 From the nature and quality of the offence. 2 From the frame and conſtitution of the Parliament wherein this Law is made. 3 From practiſes and uſages of former times.

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

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

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

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

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

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

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

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

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

Batteries by Law are puniſhable only by fine and ſingle dammages to the party wounded.

In the Parliament held in 1. H. 4. cap. 6. one Savadge committed a Battery upon one Chedder fervant to Sir John Brooke, a knight of the Parliament for Sommerſetſhire; 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 be pleaſed to heare what Judgement they have already given in the Caſe, that is the ſeverall attainders of treaſon in Parliament, after the Statute of 25. E. 3. for treaſons not mentioned, nor within that Statute, and thoſe upon the firſt offendors without warning given.

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

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

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

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

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

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

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

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

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

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

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

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