Historical Collections of Private Passages of State: Volume 8, 1640-41. Originally published by D Browne, London, 1721.
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The Argument Of Mr. Lane, The Prince's Attorney-General, On the Behalf of the Earl of Strafford, In point of Law.
I Shall not at all touch the Matter of Law, farther than to clear your Judgments of one Statute only, (viz.) 25 Edw. III. because when the same was alledged by the Lord Strafford, in his own Defence, that not being Convict of the Letter thereof, he could not be Convict of Treason; Remember, the Salvo of the Statute was much insisted upon by those from the House of Commons, as much conducing to their Ends. My Lords, I will first speak of the Statute it self, and then of its Salvo or Provision. The Statute is, That if any Man shall Intend the Death of the King, his Queen, their Children; Kill the Chancellor, or Judge upon the Bench, Imbase the King's Coin, or Counterfeit the BroadSeal, &c. he shall be Convict, and Punish'd as a Traytor. That the Lord Strafford comes not within the Letter of this Statute, is not so much as once alledg'd; nor, indeed, it cannot be with any Reason: All that can be said, is, That by Relation, or by Argument (à Minore ad Majus) he may be drawn into it; yet, that this cannot be, I humbly offer these Considerations:
First, This is a Declarative Law, and such are not to be taken by way of Consequence, Equity, or Construction, but by the Letter only; otherwise they should imply a Contradiction to themselves, and be no more Declarative Laws, but Laws of Construction, or Constitutive.
Secondly, This is a Penal Law, and such (if our Grounds, hitherto unquestion'd, hold good) can admit of no Constructions, or Inferences: For Penalties, are to perswade the Keeping of Known Laws, not of Laws Conjectural, Ambiguous, and by Consequence (which, perhaps, the most Learned may not, in their Disputes, question, much less the subject, who is not obliged to Interpret the Statute) doubt of, in the point of Obedience; yea, rather, without any doubt, he is rather to obey the Letter of the Statute, and conceive (and that truly) that he is not liable to the Penalty.
Thirdly, We have a notable Law, 13 Eliz. cap. 2. whereby it is declared. That the Bringing in of Bulls from Rome, to stir up the Subject; to Mutiny and Rebellion, shall be punished as Treason: Now, if by Interpretation, or by Consequence, this Sence might have been thrust upon the preceding Statutes, the making of this had been superfluous; yea, the Persons then charged with that Crime, might have been Impeached of Treason, ev'n before the making of this Act.
Anno 21 Edw. III. We have a Statute, declaring, That for a Servant to Kill his Master, is an Act of Treason; and, in the 23d Year of the same King, a Process of Treason was framed against a Man for Killing his Father, grounded upon the same Argument à Minore ad Majus: But, it was found, and the Sentence is yet in Records, that although in the 21st Year of Edward III. that Argument might have been admitted, yet in the 27th it could not, by reason of the Declarative Law intervening in the 25th Year; and, this Case comes very home to the Point in Law.
My Lords, I will not demand, What kind of Offence it may be, for a Man to Subvert the Fundamental Laws of the Kingdom? the Crime, doubtless, is unnatural and monstrous, and the Punishment must keep the same Proportion; only I presume to offer these few things to your Lordships Consideration:
1. That one or more Acts of Injustice, whether Maliciously or Ignorantly done, can, in no sence of Law, be called, The Subversion of the Fundamental Laws: if so, as many Judges (perhaps) so many Traytors; 'tis very incident to Man's Nature to Err; nor doth the Lord Strafford plead his Innocency in Oversights, but in Treason.
2. I do rember the Case of John de la Pole Duke of Suffolk; this Man, in the 28th of Henry the Sixth, was charged by the House of Commons with Articles of Treason, and those too very like to these against my Lord Strafford;
- I. That he had given the King bad Advices.
- II. That he had Embased His Coin.
- III. That he had Sessed Men of War.
- IV. That he had given out Summary Decrees.
- V. That he had imposed Taxes.
- VI. That he had Corrupted the Fountain of Justice.
- VII. That he had perswaded the King to Unnecessary War, and the giving over of Anjou in France.
And, for all these, though he was charged with High-Treason, for wronging the Right of the Subject, and subverting the fundamental Laws of the Kingdom, yet, after a long agitation, the Matter was found, by the Lords of the Parliament, not to imply Treason, but only Felony: Add to this another, who in the 23d of Henry VIII. was charged for subverting the English Laws, and yet no Treason charged upon him. Add to both, the Charge of Richard Larkes, pleaded at the Common-Pleas, who was charged with Treason, for Subverting the Law, but Convicted only of Felony. By which you may see, my Lords, what, to this time, hath been Subverting the Laws.
3. It is very considerable, That the Lord Strafford is not charged to have Subverted, but only to have Intended to Subvert the Fundamental Laws; and this, I conceive, if there were no more, might keep him free from that Statute, the 25th of Edw. III. For altho,' as touching the King, His Queen, and Children, Intention is Treasonable; yet, in all other things there mentioned, there must be Action, besides Intention: For it is not said, If a Man do Intend to Kill a Chancellor, it shall be Treason, but, if he doth Kill him; and if he doth actually Counterfeit the Broad-Seal: And, altho' a Man should prepare a Furnace, make ready his Stamp, melt his Bullion, yet, if he gives not the King's Impression upon the Coin, all his Intentions, yea, his Preparations, will not serve to make up a Treason.
Ye see therefore, my Lords, that the Body of the Statute cannot stick against the Lord Strafford, neither in Letter nor Consequence; this is not, that must not be: All that can be said, is, That the Fact may be Treason by the Common Law. For my part, I profess my Ignorance, who ever thought the Common Law might declare, but never make a Treason: It might be presupposed, that there is a Statute whereupon to build a Declaration; and therefore, to say there is no Statute for it, it is to say, It is no Treason at all: The Statute ever makes the Treason; and to be declared Treason, either by Common Law, or by Parliament, are but two different ways of Proceedings, and must both resolve into one Principle; nay, and which comes home to the Point, in 21st Edw. III. to kill a Man employed in the King's War, was Treason; and, the 23d, to Kill the King's Messenger, was Treason, by Declaration of the Common Law, but always by reason of the Statute; yet none of these are Treasons, but Felonies only, because of the intervening Statute of 25 Edw. III. such hath ever been thought the force of its Letter and Declaration: And so I will leave it; and a word or two of the Salvo, which is this, That because all Particulars could not be enumerated, therefore what the Parliament should declare to be Treasonable in time to come, should be punished as a Treason.
And, according to this Reservative, in the 8th Year of King Richard II one charged before the-King's Bench, was afterwards referred to the Parliament; and there, tho'the Fact was not contained in the Body of the Statute, yet because of the Proviso afore-mention'd, it was adjudged Treason.
In the 11th Year of the same King, the Duke of Ireland, and Nevill Arch-Bishop of York, were Impeached of High-Treason, by Gloucester, Arundel, and Warwick, and, notwithstanding the Statute, were Convicted thereof by the Salvo; but, in the 21st of the same Richard II. the tide turned, and the King had such a hand with the Parliament, that the Sentence was recalled, and those three Noblemen themselves were adjudged Traytors; again, in the 1st of Hen. IV. his Successor, that Revocation of the 21st of Richard II. was Repealed, and the Sentence of the 11th of His Reign Established: Such were the tossings to and fro of Treason, and all because of that uncertain Proviso.
Therefore it was, that in the same Parliament, the 1st of Henry IV. a Petition was preferred by the Nobility, to have Treason limited within some Statute; Because they knew not what to speak, or what to do, for fear thereof: And, in chap. 10. an Act was made upon this Petition, That the Salvo should be holden Repealed in all Times to come, and nothing esteemed. Treason, but what was literally contained in 25th Edward III. And therefore it is said in the Records, That there was great Joy at the making of this Act; in that the Drawn Sword, hanging over every Man's Head, by this slender thread of a Consequence or Illation, was removed by that Act. Add to this, that in the 1st of Queen Mary, cap. I. the same is repeated, That no Man shall be punished in Life or Estate, as a Traytor, but for the Crime contained in the Statute of 25 Edw. III. without the least mention of the pretended Salvo.
The Earl of Northumberland's Case comes nigh to the Point, he was charged with Treason, the 5th of Henry IV. and if the Statute of I Hen. IV. chap. 10. whereby this, Proviso is repealed, had not intervened, no doubt he had been Condemned of Treason; but he was only Convict of Felony, and that because he could not be drawn within the Letter of the Statute of 25 Edw. III. And, I dare confidently say it, that since that Act was made, 1 Hen. IV. cap. 10. whereby the Proviso is repealed, no Man hath ever been declared a Traytor, either by King or Parliament, except it were upon that, or some other Statute Literally and Declaratively taken. These two things I do offer to your Lordships Considerations, That the Lord Strafford cannot be Impeached of Treason, by the Statute of 25 Edw. III. and, That the Salvo, contained in the same, stands repealed almost two hundred Years ago. And this is all, I conceive, to be necessary for that Statute, which was alledged by the Lord Strafford, in his Defence, for Matter of Law.
The Recorder said, He could add nothing to what the former Councel had spoken, for Matter of Law; but, if their Lordships would state unto him any further Questions, he was ready to give his Resolution according to his best ability.