Historical Collections of Private Passages of State: Volume 8, 1640-41. Originally published by D Browne, London, 1721.
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Mr. St John's Argument of Law, Concerning the Bill of Attainder.
April 29th, 1641.
The Knights, Citizens, and Burgesses of the Commons House of Parliament, have Passed a Bill for the Attainting of Thomas Earl of Strafford of High-Treason. The Bill hath been transmitted from them to your Lordships: It concerns not him alone, but your Lordships, and the Commons too, though in different respects.
It concerns his Lordship the highest that can be in the Penal part; so it doth, on the other side, as highly concern your Lordships and the Commons, in that which ought to be the tenderest, the Judicatory within that, that Judge not them who Judge him, and in that which is most sacred amongst Men, the Publick Justice of the Kingdom.
The King is to be accounted unto, for the loss of the meanest Member, much more of one so near the Head.
The Commons are concerned in their Account for what is done; your Lordships, in that which is to be done.
The business therefore of the present Conference, is to acquaint your Lordships with those things, that satisfy'd 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 Judgment of greatest moment, there are but two ways for satisfying those, that are to give them; either the Lex lata, the Law already established, or else the use of the same Power for making new Laws, whereby the old at first received life.
In the first Consideration of the setled Laws, in the degrees of Punishment, the Positive Law, received by General Consent, and for the Common Good, is sufficient to satisfie the Conscience of the Judge, in giving judgment according to them.
In several Countries, there is not the same measure of Punishiment, for one and the same Offence; Wilful Murder, in Ireland it is Treason, and so is the Wilful Burning of a House, or a Stack of Corn: In the Isle of Man it is Felony to Steal a Hen, but not to Steal a Horse; and yet the Judge in Ireland hath as just a ground to give Judgment of High-Treason in those Cases there, as here to give Judgment only of Felony; and in the Isle of Man, of Felony for the Hen, as here of Pety-Larceny,
My Lords, In the other Consideration of using the Supreme Power, the same Law gives Power to the Parliament to make new Laws, that enables the inferiour Court to Judge according to the old. The Rules that guide the Conscience Of the inferiour Court, is from without, the Prescripts of the Parliament, and of the Common-Law; in the other, the Rule is from within, that Salus Populi be concerned, that there be no Wilful Oppression of any of the Fellow-Members, that no more Blood be taken than what is necessary for the Cure; the Laws and Customs of the Realm as well enable the Exercise of this, as of the Ordinary and Judicial Power.
My Lords, What hath been said, is, because that this Proceeding of the Commons by way of Bill, implies the use of the meer Legislative Power, in respect that new Laws are, for the most part, pass'd by Bill.
This, my Lords, though Just and Legal, and therefore not wholly 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 Condemn 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 of great and general Concernments, the Parliament was usually consulted withal for Resolution; which is the reason that many Acts of Parliament are only Declarative of the Old Law, not Introductive of a New, as the Great Charter of our Liberties; The Statute of Five and twentieth Year of Edward the Third, of Treasons; The Statute of the Prerogative; and of late, The Petition of Right: If the Law were doubtful in this Case, they perceived the Parliament (where the Old way is altered, and New Laws made) the fittest Judge to clear this Doubt.
Secondly, My Lords, they proceeded, this way, to obviate those Scruples and Delays, which through disuse of Proceedings of this nature, might have risen the Manner and Way of Proceedings, since the Statute of the Ist of Hen. IV. cap. 17; and more fully in the Roll, numb. 144. The Proceedings of Parliament have usually been upon an Indictment first found; though in Cases of Treason particularly mention'd in the Statute of 25 Edw. III. which had not been done in this Case, Doubts likewise might rise, for Treasons, not particularly mentioned in the Statute of 25 Edw. III. whether the Declaratory Power of Parliament be taken away, in what manner they were to be made, and by whom, they find not any Attainders of Treason in Parliament, for near this 200 Years, but by this way of Bill; and again, they know that whatsoever could be done any other way, it might be done by this.
Thirdly, In respect of the Proofs and Depositions, that have been made against him; for, First, although they knew not, but that the whole Evidence which hath been given at the Bar, 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 been any Articles or Charge at all; and so in the case of Double Testimony, upon the Statute of the 1st of Edw. VI. whether one direct Witness, with others, to Circumstances, had been single or double Testimony? And although single Testimony might be sufficient to satisfy private Consciences, yet how far it would have been satisfactory in a Judicial way, (where Forms of Law are more to be stood upon) was not so clear; whereas in their way of Bill, private Satisfaction to each Man's Conscience is sufficient, although no Evidence had been given in at all.
My Lords, The proceeding by way of Bill, it was not to decline your Lordships Justice in the Judicial way, in these Exigends of the State and Kingdom; it was to husband Time; by silencing those Doubts, they conceived it the speediest and surest way.
My Lords, These are, in effect, the Things the Commons took into their Consideration, in respect of the Manner and Way of Proceeding against the Earl.
In the next Place, I am to declare unto your Lordships, the Things they took into their Considerations, in respect of the Matter and Merits of the Cause, and they are, comprehended within these Six Heads:
1. That there is a Treason within the Statute of 25 of Edw. III. by Levying of War, upon the Matter of the 15th Article.
2. If not by Actual Levying of War, yet by Advising, and Declaring his Intention of War, and that by Savil's Warrant, and Advice of bringing over the Irish Army, upon the Matter in the 23d Article; then Intending of a War, if not within the Clause of Levying of a War, in the Statute of 25th Edw. III. yet within the first Treason, of comparing the Death of the King.
3. If either of these two single Acts is within the Statute of the 25th of Edw. III. yet, upon putting all together, which hath been proved against him, that there's a Treason within the first Clause, compassing the Death of the King.
Et st non prosunt singula juncta juvant.
4. That he hath Sessed, and laid Soldiers upon the Subjects of Ireland, against their Will, and at their Charge, within the Irish Statute of the 18th Year of Hen. VIth; That both Person and Thing are within the Statute; That the Statute remains in Force to this Day; That the Parliament here hath cognizance of it, and that ev'n in the ordinary way of Judicature; That if there be a Treason and a Traytor, the want of Jurisdiction in the Judicial way, may justly be supplied by Bill.
5. That his endeavouring to subvert the Fundamental Laws and Government of the Realms of England and Ireland, and, instead thereof, to introduce a Tyrannical Government against Law, is Treason by the Common-Law; That Treasons at the Common-Law are not taken away by the Statute of 25th Edw. III. 1 Hen. IVth, &c. not any of them.
6. That as this Case stands, it's just and necessary to resort to the Supreme Power in Parliament, in case all the rest should fail.
Of these six, five of them are Treason, within the compass of the Laws already established, three with the Statute of 25th Edw. III. and one within the Irish Statute, the other by the Common-Law of England.
If but any one of these six Considerations hold, the Commons conceive, that upon the whole Matter, they had good cause to Pass the Bill.
My Lords, For the first, of Levying War, I shall make bold to read the Case to your Lordships, before I speak to it: It's thus; The Earl did, by Warrant under his Hand and Seal, give Authority to Robert Savil, a Sergeant at Arms, and his Deputies, to Sess such numbers of Soldiers, Horse and Foot, of the Army in Ireland, together with an Officer, as the Sergeant should think fit, upon His Majesty's Subjects of Ireland, against their Will; this Warrant was granted by the Earl, to the end to compel the Subjects of Ireland to submit to the unlawful Summons and Orders made by the Earl upon Paper Petitions, exhibited to him in Case of private Interest between Party and Party; this Warrant was executed by Savil and his Deputies, by Sessing of Soldiers, both Horse and Foot, upon divers of the Subjects of Ireland, against their Wills, in Warlike manner, and at divers times the Soldiers continued upon the Parties, upon whom they were Sessed, and wasted their Goods, until such time as they had submitted themselves unto those Summons and Orders.
My Lords, This is a Levying War within the Statute of 25th Edw. III. The Words of the Statute are, If any Man do Levy War against our Lord the King in His Realm, this is declared Treason.
I shall endeavour in this, to make clear to your Lordships,
- 1. What shall be a Levying of War, in respect of the Motive or Cause of it.
- 2. What shall be said a Levying of War, in respect of the Action or Thing done.
- 3. And in the third Place, I shall apply them to the present Case.
It will be granted in this Levying of War, that Forces may be raised, and likewise used in Warlike manner, and yet no Levying of War within the Statute, that is, when the Forces are raised and employed upon private Ends, either of Revenge or Interest.
Before this Statute in Edw. the Ist's. time, the Title of a Castle was in difference between the Earls of Hereford and Gloucester, for the. maintaining of the Possession on the one side, and gaining of it on the other; Forces were raised on either side of many hundred Men; they marched with Banners displayed, one against another. In the Parliament, in the 20th Year of Edw. I. this was adjudged only Trespass, and either of the Earls Fined 1000 Marks a piece.
After the Statute in Hilary Term, in the 15th Year of Edw. III. in the Kings-Bench, Rot. 3. Nicholas Huntercome, in Warlike manner with 40 Men, armed amongst other Weapons, with Guns.(so ancient, as appears by that Record, they were) did much Spoil in the Manour of the Abbey of Dorchester in the County of Oxford; this was accounted no Treason, and so it hath been held by the Judges, That if one or more Town ship, upon pretence of saving their Commons, do in a Forcible and Warlike manner throw in Inclosures, this is only a Riot, no Treason.
The words of the Statute 25 Edw. III. clear this Point, that if any Man ride Armed openly or Secretly with Men at Arms, against any other, to kill and rob, or to detain him until he hath made Fine and Ransom for his Deliverance, this is declared not to be Treason, but Felony or Trespass, as the Case shall require: all the printed Statutes which have it covertly or secret, are mis-printed, for the Words in the Parliament Roll, as appears in the 17th, are, Discovertment ou Secretement, open or secretly.
So that my Lords, in this of Levying War, the Act is not so much to be considered, but as in all other Treasons and Felonies, quo animo, with what Intent and Purpose?
My Lords, If the End be considerable in Levying War, it may be said that it cannot be a War, unless against the King, for the Words of the Statute are, If any Man Levy War against the King
That these Words extend farther than to the Person of the King, appears by the Words of the Statute, which in the beginning declares it to be Treason, to compass and imagine the Death of the King; and after other Treasons, this is to be declared to be Treason, to Levy War against the King; If Levying of War, extend no further than to the Person of the King, these Words of the Statute are to no Purpose, for then the first Treason of compassing the King's Death, had fully included it before, because that he which Levies War against the Person of the King, doth necessarily compass his Death.
It's a War against the King, when intended for Alteration of the Laws or Government in any Part of them, or to destroy any of the Great Officers of the Kingdom. This is a Levying War against the King;
1. Because the King doth Protect and Maintain the Laws in every part of them, and the Great Officers, to whose Care, he hath in his own stead, delegated the execution of them.
2. Because they are the King's Laws, he is the Fountain from whence in their several Channels, they are derived to the Subject: all our Indictments run thus, Trespasses laid to be done, Contra pacem Domini Regis, the King's Peace, for exorbitant Offences, though not intended against the King's Person, against the King, his Crown and Dignity.
My Lords this Construction is made good, by divers Authorities of great weight, ever since the Statute of 25th of Edw. III. downwards.
In Ric. IId's time, Sir Tho. Talbot conspired the Deaths of the Dukes of Gloucester and Lancaster, and some other of the Peers; for the effecting of it, he had caused several People in the County of Chester to be Armed in Warlike manner in Assemblies. In the Parliament held in the 17th Year of Ric. II. N° 20. Sir Tho. Talbot being accused of High-Treason for this: It's there declared, insomuch as one of them was Lord High Steward of England, and the other High Constable, that this was done in Destruction of the Estates of the Realm, and of the Laws of the Kingdom, and therefore adjudged Treason, and the Judgment sent down into the King's Bench, as appears, Easter Term, in 17 Ric. II. in the King's Bench, Rot. 16th. These two Lords had appeared in the 11th of Ric. II. in maintenance of the Act of Parliament made in the Year before; one of them was of the Commissioners appointed by Parliament, and one of the Appealers of those who would have overthrown it.
The Duke of Lancaster likewise was one of the Lords that was to have been Indicted of Treason, for endeavouring the maintenance of it; and therefore conspiring of their Deaths, is said to be in Destruction of their Laws: This, there, is declared to be Treason; That, concerned the Person of the King, and Commonwealth.
In that great Insurrection of the Villains, and Meaner People, in Richard the IId's time, they took an Oath, Quod Regi & Communibus fidelitatem servarent, to be true to the King and Commons, and that they would take nothing but what they pay'd for, punished all Theft with Death: Here's no Intendment against the Person of the King; The Intent was, to establish the Laws of Villainage and Servitude, to burn all the Records, to kill the Judges: This in the Parliament of the 5th of Ric. II. N° 31, 32. the first part, is declared to be Treason against the King, and against the Law.
In the 11th Year of Ric. II. in Parliament, the raising of Forces against the Commissioners, appointed by Act of Parliament the Year before, adjudged Treason by all the Judges.
The Statute 1mo Mary, c. 12. Enacts, That if Twelve or more shall endeavour by Force, to alter any of the Laws or Statutes of the Kingdom, he shall, from such a time there limited, be adjudged only as a Felon. This Act was to continue but to the next Parliament; it is expired; it shews by the words only, that the Offence was higher before the making it.
My Lords, In Queen Elizabeth's time, Grant, and divers Apprentices of London, to the number of 200, rose and assembled at Tower-Hill, carry'd a Cloak upon a Pole instead of a Banner,; their Intent was, to deliver divers Apprentices out of Prison, that had been committed, upon a Sentence in the Star-Chamber, for Riots, to kill the Lord Mayor of London, and for setting Prices on Victuals. In Trinity Term, 37 Eliz. divers of the Judges were consulted withal, and resolved, That this was a Levying of War against the Queen, being intended against the Government and Officers of the Queen, and therefore Grant and others were executed as Traytors.
Afterwards, in that Queen's time, divers of the County of Oxford consulted, to go together from House to House in that County, and thence to London, and other Parts, to excite them to take up Arms, for the throwing in of all Inclosures throughout England. Nothing was done, nor no Assembly; yet the Statute of 13 Eliz. cap. I. during the Queen's Life, made it Treason, to Intend, or Advise to Levy War against the Queen.
In Easter Term, 39 of Eliz. all the Judges of England met about the Case: It was resolved by them, That this was a War intended against the Queen: They agreed, That if it had been of one Township, or more, up on private Interest, and claim of Right of Common, it had not been Treason; but this was to throw in all Inclosures through the Kingdom, where-unto these Parties should pretend no claim. That it was against the Law, in regard that the Statute of Merton gave power of Inclosures in many Cases: Upon this Resolution, Bradsaw and Burton were executed at Aynestow-hill in Oxfordshire, the Place where they intended the first Rendezvous.
So that, my Lords, if the End of it be to overthrow any of the Statutes, any part of the Law and setled Government, or any of the great Officers intrusted with the execution of them, This is a War against the King.
My Lords, It will be further considerable, what shall be accounted a Levying of War, in respect of the Actions and Things done; there's a design to alter some part of the Laws, and present Government; for the effecting thereof, People be provided of Arms, gathered together into Troops, but afterwards march not with Banners displayed, nor do bellum percutere; Whether the Army themselves, and gathering together upon this Design, be a War, or such prosecution of the Design with Force, as makes it Treason within the Statute?
First, If this be not a War, in respect that it necessarily occasions Hostile Preparations on the other Side?
Secondly, From the words of the Statute, shall Levy War, and be thereof, probably, Attainted of Open Deed, by People of their Condition: Altho the bare Conspiring be not an Open Deed; yet whether the Arming and Drawing of Men together, be not an Open Declaration of War?
In Sir Thomas Talbot's Case, before cited, in the 17th Year of Ric. II. the Acts of Force are expressed in the Parliament Roll; That he caused divers of the People of the County of Chester to be Armed in a Warlike manner in Assemblies: Here is no Marching, no Banners displayed.
In the 8th Year of Henry VIII. William Bell and Thomas Lacy, in Com' Kanc' Conspired with Thomas Cheyney, called The Hermit of the Queen of Faries, to overthrow the Law and Custom of the Realm; and for the effecting of it, they, with 200 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 Acts.
My Lords, For the Application of both these to the Case in question:
First, In respect of the End of it; here was a War against the King, it was to subvert the Laws, this being the design; for the effecting of it, he assumed to his own Person an Arbitrary Power over the Lives, Liberties, and Estates of His Majesty's Subjects; and determined Causes, upon Paper Petitions, at his own Will and Pleasure; Obedience must be forced by the Army, this is declared by the Warrant.
My Lords, If it be said, that the Warrant expresseth not any Intent of Subverting the Laws; It expresseth fully one of the principal Means whereby this was to be done, that is, Obedience to his Arbitrary Orders, upon Paper Petitions; This was done in reference to the main Design.
In the Cases of the Town of Cambridge, and Sir William Cogan, they have formerly been cited to your Lordships upon other Occasions; the things in themselves were not Treason, they were not a Levying of War.
In that of Cambridge, the Town met together; and in a forcible manner broke up the University Treasury, and took out of it the Records, and Evidences of the Liberties of the University over the Town.
In the other, they of Bridgwater marched to the Hospital, and compelled the Master of the Hospital to deliver unto them certain Evidences that concerned the Town, and forced him to enter into a Bond of 200 l.
These, if done upon these private Ends alone, had not been a Treason as appears by the very words of the Statute of 25 Edw. III. before mentioned, of marching openly or secretly.
But, my Lords, these of Cambridge and Bridgwater, they were of the Conspiracy with the Villains, as appears in the Parliament-Roll of the first Year of Ric. II. Numb. 311, 32. where the Towns of Cambridge and Bridgwater are expressly excepted out of the General Pardon made to the Villains; this being done in reference to that design of the Villains, of Altering the Laws; this was that which made it Treason.
If the Design went no further, than the enforcing Obedience to these Paper Orders made by himself, it was sufficient it was to subvert one fundamental part of the Law; nay, in effect, the whole Law. What use of Law, if he might order and determine of Mens Estates at his own Pleasure? This was against the Law notoriously declared in Ireland.
In the Close Roll in the Tower, in the 25th Year of Edw. I. a Writ went to the Justices in Ireland, (that Kingdom, at that time, was governed by Justices) declaring, That, upon Petitions, they were not to determine any Titles between Party and Party, upon any pretence of Profit whatsoever to the King.
In the 28th Year of Hen. VI. cap. 2. Suits in Equity, not before the Deputy, but in Chancery; Suits at Common-Law, not before him, but in Cases of Life in the King's-Bench; for Title of Lands or Goods, in the proper Courts of the King's Bench, or Common-Pleas.
This declared in the Instructions for Ireland, in the latter end of King James's time, and by the Proclamation in His Majesty's time; my Lord took notice of them, call'd the Commissioners Narrow-hearted Commissioners.
The Law said, he should not thus proceed in the Subversion of it: He faith 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 Labourers, of Victuals, or of Merton for Inclosures; here is a Warrant against the King, in respect of the End.
2. In respect of the Actions, whether there be either a Levying of War, or an Open Deed, or both.
My Lords, There was an Army in Ireland at that time of Two thousand Horse and Foot: By this Warrant, there is a full designation of this whole Army, and an Assignment of it over to Savil for this Purpose.
The Warrant gives him Power, from time to time, to take as many Soldiers, Horse and Foot, with an Officer, throughout the whole Army, as himself shall please; here is the Terror and Awe of the whole Army to enforce Obedience. My Lords, If the Earl had Armed Two thousand Men, Horse and Foot, and formed them into Companies to this End, your Lordships would have conceived that this had been a War. It's as much as in the Case of Sir Thomas Talbot, who Armed them in Assemblies.
This is the same, with a Breach of Trust added to it.
That Army, which was first raised, and afterwards committed to his Trust, for the Defence of the People, is now destined by him to their Destruction. This Assignation of the Army by his Warrant, under his Hand and Seal, is an Open Act.
My Lords, Here's not only an Open Act done, but a Levying of War, Soldiers, both Horse and Foot, with an Officer in Warlike manner, assessed upon the Subject, which killed their Cattle, consumed and wasted their Goods.
Your Lordships observe a great difference, where six Men go upon a Design 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 Poor Man, fewer, more upon a Rich; if the six had not been able, the whole Army must make it good. The reason that the Sheriff directed alone; or but with one Bayliff to do execution, is, because he hath the Command of the Law, the King's Writ, and the Posse Comitatus, in case of Resistance. Here's the Warrant of a General of an Army; Here's the Posse Exercitus, the Power of the Army, under the Awe of the whole Army; six may force more, than sixty without it; and altho' never above six in one place, yet in several parts of the Kingdom at the same time, might be above sixty; for sessing of Soldiers was frequent, it was the ordinary course for execution of his Orders.
The Lord-Lieutenant of a County in England hath a design to alter the Laws and Government; nay, admit the design goes not so high, he only declares thus much, he will order the Freeholders and Estates of the Inhabitants of the County, at his own Will and Pleasure, and doth accordingly proceed upon Paper-Petitions; foreseeing there will be disobedience, he grants out Warrants under his Hand and Seal, to the Deputy-Lieutenants and Captains of the Trained-bands, that, upon refusal, they will take such number of the Trained-bands through the County, with Officers, as they shall think good, and lay them upon the Lands and Houses of the Refusers; Soldiers in a Warlike manner are frequently sessed upon them accordingly: Your Lordships do conceive, that this is a Levying of War within the Statute.
The Case in question goes further, in these two respects:
That it is more against the declared Law in Ireland, not only against the Common-Law, but likewise against the Statute of 28 Hen. VI. against the Acts of the Commissioners; against Proclamations in pursuance of the Law; against that himself took notice of, Narrow-hearted Commissioners.
In this, That here was an Army, the Soldiers by Profession; Acts of Hostility from them, of greater terrour than from Freeholders of the same County.
My Lords, I have now done with the First, Of Levying of War.
The Second, is the Machination, The Advising of a War.
The Case in this, rests upon a Warrant to Savile, and the Advice in the 23d Article.
The Warrant shews a Resolution of employing the old Army of Ireland, to the Oppression of His Majesty's Subjects, and the Laws.
In the 23d Article, having told His Majesty, That he was loosed and absolved from Rules of Government, and might do every thing which Power might admit; he proceeded further in speech to His Majesty, in these words, You have an Army in Ireland, you may employ to reduce this Kingdom.
My Lords, Both being put together, there's a Machination, a Practice, an Advice to Levy War, and by Force to Oppress and Destroy His Majesty's Subjects.
It hath been said, the Statute of 25 Edw. III. is a Penal Law, and cannot be taken by Equity and Construction, there must be an Actual War: The Stature makes it Treason to Counterfeit the King's Coin; the Conspiring, the Raising of Furnaces, is no Treason, unless he doth Nummum percutere, Actually Coin.
My Lords, This is only said, not proved; the Law is otherwise, the 19th Hen. VI. fol. 49. there adjudged, That the conspiring and aiding to Counterfeit Coin, was Treason: And Justice Stamford (fol. 331, & 44) is of opinion that this, or the conspiring to Counterfeit the Great Seal, is Treason. The Statute is, If any shall Counterfeit the Great Seal, conspiring to do it by the Book, is Treason; if a Man take the Broad Seal from one Patent, and put it to another, here is no Counterfeiting, it's Tantamount, and therefore Treason, as is adjudged in 2 Hen. IV. fol. 25. And by the opinion of Stamford, if Machination or Plotting a War be not within that Clause of the Statute of Levying of War, yet it is within the first, of Compassing the Death of the King, as that which necessarily tends to the Destruction both of King and People, upon whose Safety and Protection he is to engage himself. That this is Treason, hath been adjudged, both after the Statutes of 1 Hen. IV. cap. 10. and 1 Queen Mary; so much insisted upon on the other side. In the 3d Year of King Henry IV. one Balshal coming from London, found one Bernard at Plough in the Parish of Offley in the County Hertford; Bernard asked Balshal, What News? He told him, that the News was, That King Richard II. was Alive in Scotland, (which was false, for he was Dead,) and that by Midsummer next he would come into England. Bernard asked him, What were best to be done? Balshal answered, Get Men, and go to King Richard. In Michaelmas Term, in 3d Year of Henry IV. in the King's Bench, Rot. 4. this Advice of War adjudged Treason.
In Queen Mary's time, Sir Nicholas Throckmorton conspired with Sir Thomas Wyat, to Levy War within this Realm, for Alteration in Religion; he joined not with him in the Execution. This Conspiracy alone declared to be Treason by all the Judges; this was after the Statute of Queen Mary, so much insisted on.
That Parliament ended in October; this Opinion was delivered the Easter-Term following, and is reported by Justice Dyer, fol. 98. It's true, Sir Thomas Wyat afterwards did Levy War; Sir Nicholas Throckmorton he only conspired. This adjudged Treason.
One Story, in Queen Elizabeth's time, practised with Foreigners, to levy War within this Kingdom; nothing done in pursuance of the Practice. The Intent, without any adhering to Enemies of the Queen, or other Cause, adjudged Treason, and he executed thereupon.
It's true, my Lords, that Year, 13 Eliz. by Act of Parliament, it's made Treason, to Intend the Levying of War; this Case was adjudged before the Parliament: The Case: was adjudged in Hilary-Term; the Parliament begun not 'till the April following. This, my Lords, is a Case judged in Point, that the practising to levy War, 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 Kingdom, included the Queen, and was a Compassing Her Destruction, as well as of the Kingdom's; here the Advice was to the King.
Answ. The Answer is, First, That the Warrant was unknown to His Majesty; that was a Machination of War against the People and Laws, wherein His Majesty's Person was engaged for Protection.
Secondly, That the Advice was to His Majesty, aggravates the Offence, it was an Attempt which was the Offence; it was an Attempt not only upon the Kingdom, but upon the Sacred Person, and His Office too; himself was bostis patriæ, he would have made the Father of it so too: Nothing more unnatural nor more dangerous, than to offer the King Poyson to drink; telling him that it is a Cordial, is a passing of His Death: the Poyson was repelled, there was an Antidote within; the Malice of the Giver beyond expression. The perswading of Foreigners to Invade the Kingdom, hold no proportion with this Machination of War; against the Law or Kingdom, is against the King, they cannot be severed.
My Lords, If no Actual War within the Statute, if the Counselling of War, if neither of these single Acts be Treason within the Statute; The Commons, in the next place, have taken it into Consideration, what the addition of his other Words, Counsels, 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 Edw. III.
The words of the Statute are, If any Man shall Compass, or Imagine the Death of the King; the words are not, If any Man shall Plot, or Counsel the Death of the King; No, my Lords, they go further than to such things as are intended immediately, directly, and determinatively against the Life and Person of the King, they are of a larger extent; to Compass, is to do 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 room left for Constructions, for necessary Inferences and Consequences.
What hath been the Judgment and Practice of former Times, concerning these words, of Compassing the King's Death, will appear to your Lordships, by some Cases of Attainders upon these words.
Owen's case of Sandwich in Kent.
One Owen, in King James's time, in the 13th Year of his Reign, at Sandwich in Kent, spake these words, That King James being Excommunicated by the Pope, may be Kill'd by any Man, which Killing is no Murther. Being asked by those he spake to, how he durst maintain so Bloody an Assertion? Answered, That the Matter was not so heinous 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 Temporal Judge, may be delivered over to be Executed; So the King, standing Convicted by the Pope's Sentence of Excommunication, may justly be Slaughtered without fault; for, the Killing of the King, is the Execution of the Pope's Supreme Sentence, as the other is the Execution of the Law. For this, Judgment of High-Treason was given against him, and Execution done.
My Lords, There is no clear Intent appearing, that Owen desired the Thing should be done, only Arguments that it might be done, this is a Compassing, there is a clear Endeavour to corrupt the Judgment, to take off the Bonds of Conscience, the greatest security of the King's Life: God forbid (faith one of better Judgment than he) that I should stretch out my hand against the Lord's Anointed: No, (faith he) the Lord doth not forbid it; you may, for these Reasons, lawfully kill the King.
He that denies the Title to the Crown, and plots the Means of setting it upon another's Head, may do this without any direct, or immediate desiring the death of Him that wears it; yet this is Treason, as was adjudged in the 10th of Hen. VII. in these of Burton, and in the Duke of Norfolk's Case, 13 Eliz.
This is a Compassing of His Death; for there can no more be two Kings in one Kingdom, than two Suns in the Firmament: he that conceives a Title, counts it worth venturing for, though it cost him his life: he that is in possession, thinks it as well worth the keeping. John Sparhawk, in King Henry the Fourth's time, meeting two Men upon the Way, amongst other talk, said, That the King was not rightful King, but the Earl of March; and that the Pope would grant Indulgences to all that could assist the Earl's Title, and that within half a Year there would be no Liveries nor Cognizances of the King; that the King had not kept Promise with the People, but had laid Taxes upon them.
In Easter-Term, in the 3d Year of Henry the Fourth, in the King's Bench Rot. 12. this adjudged Treason; this denying the Title, with Motives, though not impliedly of Action against it, adjudged Treason; this is a Compassing the King's Death.
How this was a Compassing of the King's Death, is declared in the Reasons of the Judgment; that the Words were spoken with an intent to withdraw the Affections of the People from the King, and to excite them against him, that in the end they might rise up against him in mortem & destructionem of the King.
My Lords, In this Judgment, and others, which I shall cite to your Lordships, it appears, that it is a Compassing the King's Death, by Words to endeavour to draw the Peoples Hearts from the King, to set Discord between the King and Them, whereby the People should leave the King, should rise up against Him, to the Death and Destruction of the King.
The Cases that I shall cite, prove not only that it is Treason, but what is sufficient Evidence to make this good.
Upon a Commission held the 18th Year of Edw. IV. in Kent, before the Marquis of Dorset, and others, an Indictment was preferred against John Awater, of High-Treason, in the Form before mentioned, for Words, which are entred in the Indictment Sub hac forma: That he had been Servant to the Earl of Warwick; That though he were dead, the Earl of Oxford was alive, and should have the Government of part of that Country; That Edward, whom you call King of England, was a false Man, and had, by Art and Subtilty, slain the Earl of Warwick, and the Duke of Clare his Brother, without any cause, who before had been both of them attainted of High-Treason.
My Lords, This Indictment was returned into the King's-Bench in Trinity-Term, in the 18th Year of Edw. IV. and in Easter-Term, the 22d of Edw. IV. he was Outlawed, by the stay of the Outlawry, so long as it seems the Judges had well advised before, whether it were Treason, or not.
At the same Session, Thomas Heber was Indicted of Treason, for these Words, That the last Parliament was the most simple and insufficient Parliament that ever had been in England; That the King was gone to live in Kent, because that for the present he had not the Love of the Citizens of London, nor should he have it for the future; That if the Bishop of Bath and Wells were dead, the Arch-Bishop of Canterbury being Cardinal of England, would immediately lose his Head.
This Indictment was returned into the King's-Bench in Trinity-Term, in the 18th Year of Edward IV. Afterwards there came a Privy-Seal to the Judge, to respit the Proceedings, which (as it should seem) was to the intent the Judges might advise of the Case: for afterwards he is Outlawed of High-Treason, upon this Indictment.
These Words are thought sufficient Evidence to prove these several Indictments, that they were spoken to withdraw the Peoples Affections from the King, to excite them against Him, to cause Risings against Him by the People, in mortem & destructionem of the King.
Your Lordships are pleased to consider, That in all these Cases, the Treason was for Words only, Words by private Persons, and in a more private manner, but once spoken, and no more, only amongst the People, to excite them against the King.
My Lords, Here are Words, Counsels, more than 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 Publick; not by a Private Person, but by a Councillor of State, a Lord-Lieutenant, a Lord-President, a Lord-Deputy of Ireland.
1. To His Majesty, That the Parliament had denied to supply Him: A Slander upon all the Commons of England, in their Affections to the King and Kingdom, in refusing to yield timely Supply for the Necessities of the King and Kingdom.
2. From thence, That the King was loose and absolved from Rules of Government, and was to do every thing that Power would admit. My Lords, more cannot be said, they cannot be aggravated; whatever I should say, would be in diminution.
3. Thence, You have an Army in Ireland, you may employ to reduce this Kingdom.
To Counsel a King, Not to Love his People, is very Unnatural; it goes higher, to hate them, to malice them in his Heart; the highest expressions of Malice, to destroy them by War. These Coals they were cast upon His Majesty, they were blown, they could not kindle in that Breast.
Thence, my Lords, having done the utmost to the King, he goes to the People. At York, he 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 King's Little-Finger, should be heavier than the Loyns of the Law, as they shall find. My Lords, Who speaks this to the People, a Privy-Councillor? This must be either to traduce His Majesty to the People, as spoken from Him, or from himself, who was Lord-Lieutenant of the County, and President, intrusted with the Forces and Justice of those Parts, that he would employ 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.
First; There, at Dublin, the Principal City of that Kingdom, whither the Subjects of that Country came for Justice, in an Assembly of Peers, and others of greatest Rank, upon occasion of a Speech of the Recorder of that City, touching their Franchises and Legal Rights; he tells them, That Ireland was a Conquered Nation, and that the King might do with them what he pleased.
Secondly; Not long after, in the Parliament 10 Car. in the Chair of State, in full Parliament again, That they were a Conquer'd Nation, and that they were to expect Laws 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 himself in Cathedra, to the Representative Body of the whole Kingdom.
The Occasion adds much, when they desir'd the Benefit of the Laws, and that their Causes and Suits might be determined according to Law, and not by himself, at his Will and Pleasure, upon Paper Petitions.
Thirdly, Upon like Occasion, of Pressing the Laws and Statutes, that he would make an Act of Council-Board in that Kingdom, as Binding as an Act of Parliament
Fourthly, He made his Words good by his Actions, Assumed and Exercised a Boundless and Lawless Jurisdiction over the Lives, Persons, and Estates of His Majesty's Subjects, procured Judgments of Death against a Peer of that Realm; Commanded another to be Hanged, this was accordingly Executed; both in times of High Peace, without any Process or Colour of Law.
Fifthly, By Force, of a long time, he Seized the Yarn and Flax of the Subjects, to the Starving and Undoing of many thousands; besides the Tobacco business, and many Monopolies and Unlawful Taxes; forced a New Oath, Not to dispute His Majesty's Royal Commands; determined Mens Estates at his own Will and Pleasure, upon Paper Petitions to himself; forced Obedience to these, not only by Fines and Imprisonment, but likewise by the Army; sessed Soldiers, upon the Refusers, in an Hostile manner.
Sixthly, Was an Incendiary of the War between the two Kingdoms of England and Scotland.
My Lords, We shall leave it to your Lordships Judgments, whether these Words, Counsels, and Actions would not have been a sufficient Evidence, to have Proved an Indictment drawn up against him, as those before mentioned, and many others, are; That they were spoken and done to the Intent to draw the King's 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 King's Death, within the words of the Statute of 25th Year of Edward III. and that Warranted by many former Judgments.
My Lords, I have now done with the Three Treasons within the Statute of the 25th of Edward IIId. I proceed unto the Fourth, upon the Statute of the 18th of Henry VIth, chap. 3. in Ireland, and I shall make bold to read the words unto your Lordships:
"That no Lord, nor any other, of what condition soever he be, shall bring, or lead Hoblers, Kernes, or Hooded Men, nor any other People, nor Horses, to lie on Horseback, or on Foot, upon the King's 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 adjudged as a Traytor.
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 greatness of his Office, to argue himself into the same imposlibility with His Sacred Majesty, of being incapable of High-Treason, it's an Offence, no Treason; The words in the Statute, No Lord, nor any other, of what condition soever he be, include every Subject.
In Trinity-Term, in the 33d Year of Henry VIIIth, in the King's Bench. Leonard Lord Gray, having immediately before been Lord Deputy of Ireland, is attainted of High-Treason, and Judgment given against him, for letting divers Rebels out of the Castle of Dublin, and discharging Irish Hostages and Pledges, that had been given for securing the Peace; for not Punishing one that said, That the King was an Heretick. I have read the whole Record; there's not one thing laid to his Charge, but what was done by him as Lord Lieutenant: He had the same Plea with my Lord of Strafford; That these things were no adhering to the King's Enemies, but were done for Reasons of State, that he was not within those words of the Statute of 25 Edward IIId. himself being Lord Lieutenant there.
Object. It hath been said, That the Soldiers sessed upon the Subjects by him, were not such Persons as are intended by that Statute, Hoblers, Kernes, and Hooded Men, those Rascally People.
Answ. My Lords, They were the Names given to the Soldiery of those times, Hoblers, Horsemen; the other, the Foot. But the words of the Statute go further, Nor any other People, neither Horse nor Foot. His Lordship sesfed upon them both Horse and Foot.
Object. The Statute extends only to those, that lead or bring: Savil led them; my Lord only gave the Warrant.
Answ. To this I shall only say thus, Plus peccat Author, quam Actor, by the rule of the Law Agentes & Consentientes pari plectuntur pœna; If Consent, much more a Command to do it, makes the Commander a Traytor: If there be any Treason within this Statute, my Lord of Strafford is Guilty.
It hath been therefore said, That this Statute, like Goliah's Sword, hath been wrapt up in Cloth, and lay'd behind the Door, that it hath never been put in execution.
My Lords, If the Clerk of the Crown in Ireland had certify'd your Lordships, upon search of the Judgments of Attainders in Ireland, he could not find that any Man had been attainted upon this Statute, your Lordships had had some ground to believe it; Yet it's only my Lord of Strafford's Affirmation: Besides, your Lordships know, that an Act of Parliament binds until it be repealed.
It hath been therefore said, That this Statute is repealed by the Statute of 8 Edw. IV. cap. 1. and of 10 Hen. VII. cap. 22. 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 I Hen. IV. cap. 10. saith, That in no time to come, Treason shall be adjudged otherwise, than it was ordained by the Statute of 25 Edw. III. That the reason mention'd in the 18th Year of Henry VIth, in the Irish Statute, is not contained in 25 Edw. III. and therefore contrary to the Statute of 1 Hen. IV. it must needs be void.
If this were Law, then all the Statutes that made any new Treason after the Ist of Henry IV. were void in the very fabrick, and at the time when they were made: Hence likewise it would follow, that the Parliament now, upon what Occasion soever, hath no Power to make any thing Treason, not declared to be so in the Statute 25 Edw. III. This, your Lordships easily fee, would make much for the Lord of Strafford's Advantage: But why the Law should be so, your Lordships have only, as yet, heard an Affirmation of it, no Reason.
But some touch was given, that the Statute of the 10th Year of Hen. VII in Words, makes all the Irish Statutes void, which are contrary to the English. The Answer to this, is a denial that there are any such Words in the Statute. The Statute declares, that the English Statutes shall be effectual, and confirmed in Ireland; and that all the Statutes made beforetime to the contrary, shall be revoked.
This repeals only the Irish Statutes of the 10th Year of Henry IVth, and the 29th Year of Henry VIth, which say, that the English Statutes shall not be in force in Ireland, unless particularly received in Parliament, it makes all the Irish Statutes void, which say, that the English Statutes shall not be in force there.
It is usual, when a Statute says, that such a thing shall be done, or not done, to add further, that all Statutes to the contrary shall be void.
No likelihood that this Statute intended to take away any Statute of Treason, but when in the Chapter next before this, Murder there is made Treason, as if done upon the King's Person.
That this Statute of the 18th Year of Henry VIth remains on foot, and not repealed either by the Statute of the 8th Year of Edward IVth, or this of the 10th Year of Henry VIIth, appears expresly by two several Acts of Parliament made at the same Parliament of the 10th Year of Henry VII.
By an Act of Parliament of Henry VIth's time, in Ireland, it was made Treason, for any Man whatsoever to procure a Privy-Seal, or any other Command whatsoever, for apprehending any Person in Ireland for Treason done without that Kingdom, and to put any such Command in execution, divers had been attainted of Treason for executing such Commands: There is a Treason, so made by Act of Parliament, in Henry the VIth's time. in the 3d Chapter of this Parliament of the 10th of Henry VIIth, an Act is Passed for no other End, than to repeal this Statute of Henry VIth, of Treason.
If this Statute of Henry VIth, of Treason, had been formerly repealed by the Statute of 8 Edw. IV. or then by the 22d chap. of this Parliament of the 10th of Hen. VII. by bringing in the English Statutes, the Law-makers were much mistaken now to make a particular Act of Parliament to repeal it, it being likewise so unreasonable an Act as it was.
In the 8th chap of this Parliament of the 10th of Henry VII. it is Enacted, that the Statutes of Kilkenny, and all other Statutes made in Ireland (two only excepted, whereof this of the 18th of Henry VIth is none) for the Common-Weal, shall be enquired of, and executed. My Lord of Strafford faith, That the bringing in of the English Statute, hath repealed this Statute: The Act of Parliament made at the same time, faith, No It says, That all the Irish Statutes, excepting two, whereof this is none, shall still be in force.
Object. Oh, but however it was in the 10 Hen. VII. yet it appears by Judgment in Parliament afterwards, that this Statute of 18 Hen. VI. is repealed, and that is by the Parliament of the 11th Year of Queen Eliz. cap. 7. that by this Parliament it is Enacted, That if any Man, without License from the Lord Deputy, lay any Soldiers upon the King's Subjects, if he be a Peer of the Realm, he shall forfeit One hundred Pounds; if under the degree of a Peer, One hundred Marks.
This Statute, as is alledged, declares the Penalty of laying Soldiers on the Subjects, to be only One hundred Pounds, and therefore it's not Treason.
Answ. My Lords, If the Offence for which this Penalty of One hundred Pounds is laid upon the Offenders, be for layings Soldiers, or leading them to do any Act Offensive or Invasive upon the King's People, the Argument hath some force; but that the Offence is not for laying Soldiers upon the true Subjects, that this is not the Offence intended in the Statute, will appear to your Lordships ex absurdo, from the words of it:
The words are,
"That if any Man shall assemble the People of the Country together, to conclude, of Peace or War, or shall carry those. People to do any Acts Offensive or Invasive, then he shall forfeit One hundred Pounds.
If concluding of War, and carrying the People to Acts Invasive, be against the King's Subjects, this is High-Treason, which are the words of the Statute of 25 Edw. III. For if any Subject shall assemble the People, and conclude a War, and accordingly shall lead them to Invade the Subject, this is a Levying of War, within the words of the Statute: And then the Statutes of 25 Edw. III. 1 Hen. IV. 1 of Q. Mary, which the Earl of Strafford, in his Answers, desires to be Tryed by, are as well repealed, in this Point, as the Statute of the 18th of Hen. VI. He might then, without fear of Treason, have done what he pleased with the Irish Army; for all the Statutes of Levying of War, by this Statute of 11 Eliz. were taken out of his way.
In Ireland a Subject gathers Forces, concludes a War against the King's People, actually Invades them Bloodshed, Burning of Houses; Depradations ensue; two of those, that is, Murder, and Burning of Houses, are Treason; and there the other Felony, by the construction the punishment of Treason, and Felony is turned only into a Fine of One Hundred Pounds; from loss of life, Lands, and all his Goods only to loss of part of his Goods.
The Third Absurdity, A War is concluded, three several Inrodes are made upon the Subject; in the first, a hundred Pounds damage; in the second, five thousand Pounds damage; in the third, ten thousand Pounds damage, is done to the Subject; the Penalty for the last Inrode is no more than 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 unto the Informer; Here's no damage to the Subject, that is robbed and destroyed.
My Lords, The Statute will free it self and the Makers from those Absurdities.
The meaning of the Statute, is, That if any Captain shall, of his own head, conclude of Peace or War against the King's Enemies, or Rebels, or shall, upon his own head, invade them, without Warrant from the king, or Lord Deputy of Ireland, that then he shall forfeit an hundred Pounds.
The Offence is not for laying of Soldiers upon the King's People, but, making War against the Irish Rebels, without Warrant: The Offence is not in the Matter, but in the Manner; for doing a thing Lawful, but, without Million.
- I. This will appear by the general Scope of the Statute, all the parts being put together.
- II. By particular Clauses in the Statute.
- III. By the Condition of that kingdom, at the time of making of that Statute.
For the First, The Preamble recites, that in the time of declination of Justice, under pretext of defending the Country and themselves, divers Great Men arrogated to themselves Regal Authority, under the names of Captains; that they acquired to themselves that Government which belonged to the Crown: For preventing of this, It's Enacted, That no Man dwelling within the Shire-Grounds, shall thenceforth assume, or take to himself the Authority or Name of a Captain, within these Shire-Grounds, without Letters Patents from the Crown; nor shall; under colour of his Captainship, make any demand of the People of any Exaction; not as a Captain, assemble the People of the Shite-Grounds; nor as a Captain shall lead those People to do any Acts offensive or Invasive, without Warrant under the Great Seal of England, or of the Lord Deputy, upon Penalty, that if he do any thing contrary to that Act, that then the Offender shall forfeit an hundred Pounds.
My Lords, The Rebels had been out; the Courts of Justice scarce sate; for defence of the Country, divers usurped the place of Captains, concluded of War against the Rebels and invaded them, without Warrant: Invading the Rebels without Authority, is a Crime.
This appears farther by particular. Clauses in the Statute, None shall exercise any Captainship within the Shire-Grounds, nor assemble the Men of the Shire-Grounds, to conclude War, or lead them to any Invasion.
That that hard anciently been 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 Angliæ. The Irish without the Pale were Enemies always, either in open act of Hostility, or upon Leagues and Hostages given for securing the Peace; and therefore as here in England we had our Marches upon the Frontiers in Scotland and Wales; so were there Marches between the Irish and English Pale, where the Inhabitants held their land by this Tenure, to defend the Country against the Irish, as appears in the Close Roll of the Tower, in the 20th Year of Edward III. membrana 15 on the backside. And in an Irish Parliament, held the 42d Year of Edward III. it's declared, That the English Pale was almost destroyed by the Irish Enemies, and that there was no way to prevent the Danger, but only, that the Owners reside upon their Lands for Defence, and that Absence should be a forfeiture. This Act of Parliament in a Great Council here was Affirmed, as appears in the Close Roll, the 22d Year of Edward III. membrana 20 dorso.
Afterwards, as appears in the Statute of 28 Hen. VIth, in Ireland, this Hostility continued between the English Marches and the Irish Enemies, who, by reason there was no difference between the English Marches and them in their Apparel, did daily (not being known to the English) destroy the English within the Pale: Therefore it is Enacted, That every English-man shall have the Hair of his Upper-Lip, for distinction-sake. This Hostility continued until the 10th Year of Hen. VII. as appears by the Statute of 10 Hen. VII. and 17th, so successively downwards, 'till the making of this very Statute of 11 Eliz. as appears fully in cap. 9.
Nay, immediately before, and at the time of the making of this Statute, there was not only Enmity between those of the Shire-Ground, that is, the English and Irish Pale, but Open War, and Acts of Hostility, as appears by History of no less Authority than that Statute it self; for in chap. 1. of that Statute, is the Attainder of Shane O-Neale, who had made open War, was slain in open War; it's there declared, That he had gotten, by Force, all the. North of Ireland, for 120 Miles in length, and about 100 in breadth; that he had master'd divers Places within the English Pale: When the flame of this War, by his death, immediately before this Statute, was spent, yet the firebrands were not all quenched, for the Rebellion continued by John Fitz-Gerald, called the White Knight, and Thomas Gueverford; this appears by the Statute of the 13th Year of Queen Eliz. in Ireland, but two Years after this of the 11th of Queen Eliz. where they are attainted of High-Treason, for levying of War this 11th Year, wherein the Statute was made.
So that, my Lords, immediately before, and at the time of the making of this Statute, there being, War between those of the Shire-Grounds, mentioned in this Statute, and the Irish the concluding of War, and Acts Offensive and Invasive, there mentioned, can be intended against no others but the Irish Enemies.
Again; The words of the Statute are, No Captain shall assemble the People of the Shire-Grounds, to conclude, of Peace or War; is to presume, that those of the Shire-Grounds will conclude of War against themselves. Not (with the Statute) shall carry those of the Shire-Grounds to do any Acts Invasive: By the construction which is made on the other Side, they must be carry'd to fight against themselves.
Lastly, The words are, That as Captain, none shall assume the Name or Authority of a Captain; or as a Captain shall gather the People together; or as a Captain lead them. The Offence is not in the Matter, but in the Manner: If the Acts Offensive were against the King's good Subjects, those that were under Command, were punishable, as well as the Commanders; but in respect the Soldiers knew the service to be good in it self, being against the Enemies, and that it was not for them to dispute the Authority of their Commanders, the Penalty of 100l. is laid only upon him, that as Captain, shall assume this Power without Warrant; the People commanded, are not within this Statute.
My Lords, The Logick whereupon this Argument is framed, stands thus; Because the Statute of the 11th Year of Queen Elizabeth inflicts a Penalty of 100l. and no more, upon any Man, that as a Captain, without Warrant, and upon his own head, shall conclude of, or make War against the King's Enemies; therefore the Statute of the 18th Year of Henry VIth is repealed, which makes it Treason to lay Soldiers upon, or to levy War against the King's good People.
But, my Lords, Observation hath been made upon other words of this Statute, that is, that without license of the Deputy, these things cannot be done; this shews that the Deputy is within none of the Statutes.
My Lords, This Argument stands upon the same reason with the former, because he 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 imminent 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.
My Lords, The Statute of the 10th Year of Henry VIIth, cap. 17. touched upon for this Purpose, clears the business in both Points; for there it is declared, That none ought to make War upon the Irish Rebels, and Enemies, without Warrant from the Lieutenant, the Forfeiture 100l. As here the Statute is the same with this, and might as well have been cited, for repealing the Statute of the 18th Year of Henry VIth, as this of the 11th Year of Queen Elizabeth. But if this had been insisted upon, it would have expounded the other two clear against him.
Object. My Lords, It hath been further said, Although the Statute be in force, and there be a Treason within it, yet the Parliament hath no Jurisdiction, the Treasons are committed in Ireland, therefore not triable Here.
Answ. My Lords, Sir John Parrot, his Predecessor, 24 Edw. was Tryed in the King's-Bench, for Treason done in Ireland, when he was Deputy; and Oruche, in the 33d Year of Queen Elizabeth, adjudged Here, for Treason done in Ireland.
Object. But it will be said, These Tryals were after the Statute of the 34th Year of Henry VIIIth, which Enacts, That Treasons beyond Sea, may be Tryed in England.
Answ. My Lords, his Predecessor, my Lord Gray, was Tryed, and Adjudged here in the King's-Bench; that was in Trinity-Term, in the 33d Year of Henry VIIIth; this was before the making of that Statute.
Object. To this again will we say, That it was for Treason by the Laws and Statutes of England: That this is not for any thing that's Treason by the Law of England, but an Irish Statute.
So that the question is only, whether your Lordships here in Parliament, 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 Statute and Customs, be one and the same in England as in Ireland?
That being admitted, Whether the Parliament in England have Cognizance or Jurisdiction of Things there done, in respect of the Place, because the King's Writ runs not there?
For the First, in respect of the Place, the Parliament here hath Cognizance there. And, Secondly, If the Rules for expounding the Irish Statutes and Customs, be 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 Customs peculiar to certain Places, differing from the Common-Law; If any Question arise concerning either a Custom, or an Act of Parliament, the Common-Law of England, the First, the Primitive and the General Law, that's the Rule and Expositor of them, and of their several Extents; it is so here, it is so in Ireland; the Common-Law of England, is the Common-Law of Ireland likewise; the same Here and There in all the parts of it.
It was introduced into Ireland by King John, and afterwards by King Henry III. by Act of Parliament held in England, as appears by the Patent-Rolls of the 30th Year of King Henry III. the first Membrana; the words are, Quia pro Communi Utilitate terræ Hiberniæ & unitate terrarum Regis, Rex vult, & de Communi Concilio Regis Provisum est, quod omnes Leges & Consuetudines quæ in Regno Angliæ tenentur, in Hibernia teneantur, & eadem terræ eisdem legibus subjacedt, & per easdem Regatur, sicut Dominus Johannes Rex cum ultimò esset in Hibernia statuit & fieri mandavit, quia, &c. Rex vult quòd omma brevia de Communi Jure quæ currunt in Anglia, similiter currant in Hibernia, sub novo sigillo Regis mandatum est Archiepiscopis, &c. quod pro pace & tranquilitate ejusdem terræ, per easdem leges eos regi & deduci permittant, & eas in omnibus sequantur in cujus, &c. Teste Rege apud Woodstock, Decimo nono die Septembris.
Here is an Union of both Kingdoms, and that by Act of Parliament, and the same Laws to be used Here as There, in omnibus.
My Lords, That nothing might be left here for an exception, that is, That in Treasons, Felonies, and other capital Offences concerning Life, the Irish Laws are not the same as here; therefore it is Enacted by a Parliament held in England, in the 14th Year of Edward IId, (it is not in Print neither, but 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 remain, in a Parliament held in England, the 5th Year of Edw. IIId, it is Enacted, Quod una & eadem Lex fiat tam Hibernicis quam Anglicis.
This Act is enrolled in the Patent Rolls of the 5th Year of Edw. III. Parl. membr. 25.
The Irish therefore receiving their Laws from hence, they send their Students at Law to the Inns of Court in England, where they receive their Degree; and of them, and of the Common-Lawyers of this Kingdom, are the Judges made.
The Petitions have been many from Ireland, to send from hence some Judges, more learned in the Laws, than those they had there.
It hath been frequent, in Cases of Difficulty there, to send sometimes to the Parliament, sometimes to the King, by Advice from the Judges here, to send them Resolutions of their Doubts: Amongst many, I'll cite your Lordships only one, because it is in a Case of Treason, upon an Irish Statute, and therefore full to this Point.
By a Statute there made the 5th Year of Edward IVth, there is a 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 benefit of this Statute, that they might be let out of Prison, upon tender of their Compurgators: The words of the Statute of 5 Edward IV. in Ireland being obscure, the Judges there being not satisfy'd what to do, sent the Case over to the Queen, desired the Opinion of the Judges here, which was done accordingly. The Judges here sent over their Opinion, which I have out of the Book of Justice Anderson, one of the Judges consulted withal. The Judges delivered their Opinion upon an Irish Statute in Case of Treason.
If it be Objected, That in this Case, the Judges here did not judge upon the Party; their Opinions were only ad informandam Conscientiam of the Judges in Ireland, that the Judgment 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 failure of Justice would ensue, if this great Judicatory should judge of Treason, so made by an Irish Statute.
The Common-Law rules of judging upon an Irish Statute; the Pleas of the Crown for things of Life and Death, are the same Here and There, this is all that yet hath 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 Error in Pleas of the Crown, as well as in Civil Causes, have in all Kings Reigns been brought Here, ev'n in the inferior Courts of Westminster-Hall, upon Judgment given in the Courts of Ireland; the Practice is so frequent, and so well known, as that I shall cite none of them to your Lordships: No Precedent will, I believe, be produced to your Lordships, that ever the Case was remanded back again into Ireland, because the Question arose upon an Irish Statute, or Custom.
Object. But it will be said, That Writs of Error, are only upon failure of Justice in Ireland, and that Suits cannot originally be commenced Here, for Things done in Ireland, because the King's Writ runs not in Ireland.
Answ. This might be a good Plea in the King's-Bench, and inferiour Courts at Westminster-Hall; the question is, Whether it be so in Parliament? The Kings Writ runs not within the Counties Palatine of Chester and Durham, nor within the Five Ports; neither did it in Wales, before the Union of Henry VIIIth's time, after the Laws of England were brought into Wales; in King Edward Ist's time, Suits were not originally commenced at Westminster-Hall, for Things done in them: yet this never excluded the Parliament Suits; for Life, Lands, and Goods within these Jurisdictions, are determinable in Parliament, as well as in any other parts of the Realm.
Ireland, as appears by the Statute of the 30th Year of Henry III. (before mention'd) is United to the Crown of England.
By the Statute of the 28th Year of Henry Vlth, in Ireland, it is declared, in these words, That Ireland is the proper Dominion of England, and United to the Crown of England, which Crown of England is of it self, and by it self, wholly and entirely endowed with all Power and Authority sufficient to yield to the Subjects of the same full and plenary Remedy in all Debates and Suits whatsoever.
By the Statute of the 23d Year of Henry VIIIth, cap. 1. when the Kings of England first assumed the Title of King of Ireland, it is there Enacted, That Ireland still is to be held as a Crown annexed and united to the Crown of England.
So that, by the same reason from this, that the King's Writs run not in Ireland, it might as well be held, that the Parliament cannot originally hold Plea of things done within the Counties Palatine of Chester and Durham, nor within the Five Ports, and Wales; Ireland is a part of the Realm of England, as appears by those Statutes, as well 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 far with their Petitions for Justice, and the Parliament not to have Cognizance, when, from time to time, they had in the beginning of the Parliament, appointed Receivers and Tryers of them, is a thing not to be presumed.
An Appeal in Ireland, brought by William Lord Vesey, against John Fitz-Thomas, for Treasonable Words there spoken, before any Judgment given in Case there, was removed into the Parliament in England, and there the Defendant acquitted, as appears in the Parliament Pleas of the 22d Year of Edward Ist.
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 the Parliament; as in the Case of one Ballyben, in the Parliament of the 35th Year of Edw. Ist. If a Doubt arose upon a Matter tryable by Record, a Writ went to the Officers, in whose custody the Record remained, to certifie the Record, as was in the Case of Robert Bagott the same Parliament, of the 35th Year of Edward Ist, where the Writ went to the Treasurer, and Barons of the Exchequer.
Sometimes they gave Judgment here in Parliament, and commanded the Judges there in Ireland to do Execution, as in the great Case of Partition, between the Copartners of the Earl-Marshal in the Parliament of the 33d Year of Edward Ist, where the Writ was awarded to the Treasurer of Ireland.
My Lords, The Laws of Ireland were introduced by the Parliament of England, as appears by Three Acts of the Parliament before cited.
It is of higher Jurisdiction, Dare Leges, than to judge by them.
The Parliaments of England do bind in Ireland, if Ireland be particularly mentioned, as is resolved in the Book-Case of the Ist Year of Hen. VII. Coke's Seventh Report, Calvin's Case; and by the Judges in Trinity-Term, in the 33d Year of Queen Elizabeth. The Statute of the 8th Year of Edw. IVth, cap. 1. in Ireland, recites, That it was doubted amongst the Judges, whether all the English Statutes, tho' not naming Ireland, were in force there? If named, no doubt.
From King Henry the IIId's time, downwards, to the 8th Year of Queen Elizabeth, (by which Statute it is made Felony to carry Sheep from Ireland beyond Seas) in almost all these King's Reigns there be Statutes made concerning Ireland. The exercising of the Legislative Power there, over their Lives and Estates, is higher than of the Judicial in question: Until the 29th Year of Edw. III. erroneous Judgments given in Ireland, were determinable no-where but in England; no, not in the Parliament of Ireland, as it appears in the Close Rolls in the Tower, in the 29th Year of Edw. III. memb. 12. Power to examine and reverse erroneous Judgments in the Parliaments of Ireland is granted; from hence, Writs of Error lie in the Parliament here upon erroneous Judgments, after that time, given in the Parliaments of Ireland, as appears in the Parliament Rolls of the 8th Year of Hen. VIth, Numb. 70. in the Case of the Prior of Lenthan. It is true, the Case is not determined there, for it's the last thing that came into the Parliament, and could not be determined for want of Time, but no exception at all is taken to the Jurisdiction.
The Acts of Parliament made in Ireland, have been confirmed in the Parliaments of England, as appears by the Close Rolls in the Tower, in the 42d Year of Edw. III. Memb. 20. Dorso; where the Parliament in Ireland, for Preservation of the Country from the Irish, who had almost destroy'd it, made an Act, That all the Land-Owners, that were English, should reside upon their Lands, or else they were to be forfeited; this was here confirmed.
In the Parliament of the 4th Year of Hen. Vth, cap. 6. Acts of Parliament in Ireland are confirmed, and some Privileges of the Peers in the Parliaments there are regulated.
Power to repeal Irish Statutes, Power to confirm them, cannot be by the Parliament here, if it hath cognizance of their Parliaments; unless it be said, that the Parliament may do — it knows not what.
Garnsey and Jersey are under the King's subjection, but are not Parcels of the Crown of England, but of the Duchy of Normandy, they are not govern'd by the Laws 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 33 Edw. I. there be Placida de Insula Jersey. And so in the Parliament 14 Edw. II. and so for Normandy and Gascoigne; and always 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 believe your Lordships will have no Case shewed of any Plea, to the Jurisdiction of the Parliaments of England, in any things done in any Parts wheresoever in subjection to the Crown of England.
The last thing I shall offer to your Lordships, is, the Case of 19 Eliz. in my Lord Dyer, 306. and Judge Crompton's Book, Of the Jurisdiction of Courts, fol. 23. The opinion of both these Books, is, That an Irish Peer is not Tryable here, it's true, a Scotch or French Nobleman is Tryable here, as a Common Person; the Law takes no notice of their Nobility, because those Countries are not governed by the Laws of England: but Ireland being governed by the same Laws, the Peers there are Tryable according to the Law of England only, per pares.
By the same reason, the Earl of Strafford not being a Peer of Ireland, is not Tryable by the Peers of Ireland; so that if he be not Tryable here, he is Tryable no-where.
My Lords, In case there be a Treason and a Traytor within the Statute, and that he be not Tryable here for it in the ordinary way of Judicature, if that Jurisdiction fail, this by way of Bill doth not; Attainders of Treason in Parliament, are as legal, as usual by Act of Parliament, as by Judgment.
I have now done with the Statutes of the 25th of Edward III. and 18th of Henry Vlth. My Lord of Strafford hath offended against both the Kingdoms, and is Guilty of High Treason by the Laws of both.
My Lords, In the Fifth place, I am come to the Treasons at the Common-law, The endeavouring to subvert the fundamental Laws and Government of the Kingdom, and to introduce an Arbitrary and Tyrannical Government.
In this I shall not at all labour to prove, That the endeavouring by Words, Counsels, and Actions to subvert the Laws, is Treason at the Common-Law, if there be any Common-Law Treasons at all left; nothing is Treason, if this be not, to make a Kingdom no Kingdom: Take the Polity and Government away, England's but a piece of Earth, wherein so many Men have their Commorancy and Abode, without Ranks or Distinction of Men, without Property in any thing further than Possession; no Law to punish the Murthering or Robbing one another.
That of 33 Hen. VIII. of introducing the Imperial Law, sticks not with your Lordships; it was in Case of an Appeal to Rome; these Appeals in Cases of Marriages, and other Causes counted Ecclesiastical, had been frequent, had in most King's Reigns been tolerated; some, in times of Popery, put a Conscience upon them; the Statutes had limited the Penalty to a Præmunire only; neither was that a total Subversion, only an Appeal from the Ecclesiastical Court here in a single Cause, to the Court of Rome; and if Treason or not, that Case proves not a Treason may be punished as a Felony; a Felony as a Trespass, if His Majesty so please: The greater includes the less in the Case of Præmunire: In the Irish Reports, that which is there declared to be Treason, was proceeded upon only as a Præmunire.
The Things most considerable in this, is, Whether the Treasons at Common-Law, are taken away by the Statute of the 25th of Edw. IIId? which 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 Judgment, 'till the Case be declared in Parliament, whether it ought to be adjudged Treason, or not.
These Words, and the whole Scope of that Statute, shew, that it was not the Meaning, to take away any Treasons that were so before, but only to regulate the Jurisdiction and Manner of Tryal. Those that were single and certain Acts, as, Conspiring the King's Death, Levying War, Counterfeiting the Money, or Great Seal, Killing a Judge; these are left to the ordinary Courts of Justice: The others not depending upon single Acts, but upon Constructions, and necessary Inferences, they thought it not fit to give the inferiour Courts so great a latitude here, as too dangerous to the Subject, those they restrained to the Parliament.
This Statute was the great Security of the Subjects, made with such Wisdom, as all the succeeding Ages have approved it; it hath often passed through the Furnace, but, like Gold, hath left little or nothing.
The Statute of 1 Hen. IV. cap. 10. is in these words, Whereas in the Parliament held the 21st Year of Richard II. divers Peins of Treason were ordained, insomuch that no Man did know how to behave himself, to do, say, or speak; it is accorded, That in no time to come, any Treason be adjudged otherwise, than it was ordained by the Statute of 25th of Edward III.
It hath been said, To what End is this Statute made, if it takes not away the Common-Law Treasons remaining after the Statute of the 25th of Edward IIId?
There be two main Things which this Statute doth; First, it takes away, for the future, all the Treasons made by any Statute since 25 Edw. III. to the 1 Hen. IV. ev'n to that time; for in respect, that by another Act in that Parliament, the Statute of 21 Ric. II. was repealed, it will not be denied but that this Statute repeals more Treasons than these of the 21 Ric. II. It repeals all Statute-Treasons but those in 25 Edw. III.
Secondly, It not only takes away the Statute-Treasons, but likewise the declared Treasons in Parliament, after the 25th of Edw. III. 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.
But by the very words of it, I shall refer all Treasons to the Provision of 25 Edw. III. it leaves that entire, and upon the old bottom. The Statute of 1 Queen Mary, cap. 1. faith, That no Offences made Treasons by any Act of Parliament, shall thenceforth be taken or adjudged to be Treason, but only such as be declared and expressed to be Treason by the Statute of 25 Edw. III. concerning Treason, or the Declaration of Treason, and no others: And further provides, That no peins of Death, Penalties, or Forfeiture in any-wise shall ensue, for committing any Treason, other than such as be in the Statute of the 25th of Edw. III. ordained and provided; Any Act of Parliament, or any Declaration, or Matter to the contrary, in any-wise notwithstanding.
By the first of this Statute, only Offences made Treason by Act of Parliament, are taken away, the Common-Law Treasons are no ways touched, the words [And no others] refer still to Offences made Treasons by Act of Parliament; they restrain not to the Treasons only, particularly mention'd in the Statute of 25 Edw. III. but leave that Statute entire to the Common-Law Treason, as appears by the words immediately foregoing.
By the second part, for the Peins and Forfeitures of Treason, 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 the 25th of Edw. III. Any Act of Parliament, or other Declaration, or Thing notwithstanding.
It faith not, other than such Penalties or Treasons, as are expressed and declared in the Statute of 25 Edw. III. that might perhaps have restrained it to those that are particularly mentioned; no, it refers all Treasons to the general Ordination and Provision of that Statute, wherein the Common-Law Treasons are expresly kept on foot.
If it be Asked, 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 only since the Ist of Hen. IV. which were many, but all before 1 Hen. IV. ev'n 'till the 25th of Edw. III. by express Words.
2. By express Words, it takes away all declared Treasons, if any such had been in Parliament; Those for the future are likewise taken away: So that whereas it might have been doubted, whether the Statute of the 1 Hen. IV. took away any Treasons but those of the 22d and 23d Years of Ric. II. This clears it, both for Treasons made by Parliament, or declared in Parliament, ev'n 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 Edw. III. remains entire, and so, by consequence, the Treasons at the Common-Law.
Only, my Lords, it may be doubted, whether the Manner of the Parliamentary Proceedings be not altered by the Statute of 1 Hen. IV. cap. 17. and more fully in the Parliament Roll, numb. 144; that is, whether since that Statute, the Parliamentary Power of Declaration of Treasons, whereby the inferiour Courts receive Jurisdiction, be not taken away and restrained only to Bill, that so it might operate no further than to that Particular contained in the Bill, that so the Parliamentary Declarations for After-times should be kept within the Parliament it self, and be extended no further; since 1 Hen. IV. we have not found any such Declarations made, but all Attainders of Treason have been by Bill?
If this be so, yet the Common-Law Treasons still remaining, there is one and the same ground of Reason and Equity since the I Hen. IV. for passing 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 m the Bill, it's only the Jurisdiction of the Parliament.
But, my Lords, because that either through my mistaking of the true Grounds and Reasons. of the Commons, or my not pressing them with apt Agreements, and Precedents of former Times, or that perchance your Lordships, from some other Reasons and Authorities, more swaying with your Lordships Judgments, than these from them, may possibly be of a contrary or dubious Opinion, concerning these Treasons, either upon the Statutes of 25 Edw. III. and 18 Hen. 6. or at the Common-Law;
My Lords, If all these five should fail, 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.
- 1. From the Nature and Quality of the Offence.
- 2. From the Frame and Constitution of the Parliament, wherein this Law is made.
- 3. From Practices and Usages of former Times.
The Horridness of the Offence, in endeavouring the Overthrowing the Laws and present Government, hath been fully opened to your Lordships heretofore.
The Parliament is the Representation of the whole Kingdom; wherein the King as Head, your Lordships as the most 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 Laws; He that takes away the Laws, takes not away the Allegiance of one Subject alone, but of the whole Kingdom.
It was made Treason, by the Statute of 13 Eliz. for Her time, to affirm, that the Laws of the Realm do not bind the Descent of the Crown; no Law, no Descent at all.
No Laws, no Peerage; no Ranks or Degrees of Men; the same Condition to all.
It's Treason to Kill a Judge upon the Bench; this Kills not Judicem, sed Judicium. He that borrow'd Apelles, and gave Bond to return again Apelles the Painter, sent him home, after he had cut off his Right Hand; his Bond was broken; Apelles was sent, but not the Painter. There are Twelve Men, but no Law; there's never a Judge among them.
It's Felony to Imbezil any one of the Judicial Records of the Kingdom; this at once sweeps them all away, and from all.
It's Treason to Counterfeit a Twenty Shillings Piece; here's a Counterfeiting of the Law; we can call neither the Counterfeit, nor True Coyn, our own.
It's Treason to Counterfeit the Great-Seal for an Acre of Land; no Property hereby is left to any Land at all; nothing Treason now, either against King or Kingdom; no Law to punish it.
My Lords, If the Question were Asked at Westminster-Hall, Whether this were a Crime punishable in Star-Chamber, or in the King's-Bench, by Fine, or Imprisonment ? they would say, it went higher: If, whether Felony ? they would say, that's for an Offence only against the Life, or Goods of some one or few Persons: It wou'd, I believe, be Answered by the Judges, as it was by the Chief Justice Thurning, in 21 Ric. II. That tho' he cou'd not Judge the Case Treason there before him, yet if he were a Peer in Parliament, he would so Adjudge it.
My Lords, If it be too big for those Courts, we hope it's in the right way here.
2. The Second Consideration, is from the Frame and Constitution of the Parliament; the Parliament is the great Body Politick, it comprehends all, from the King to the Beggar: If so, my Lords, as the Natural, so this Body, it hath Power over it self, and every one of the Members, for the Preservation of the Whole; It's both the Physician and the Patient; If the Body be distemper'd, it hath Power to open a Vein, to let out the corrupt Blood, for curing it self; if one Member be Poyson'd, or Gangren'd, it hath Power to Cut it off, for the preservation of the rest.
But, my Lords, it hath often been inculcated, that Law-makers should imitate the Supreme Law-giver, who commonly warns before he strikes. The Law was promulged before the Judgment of Death for gathering the Sticks. No Law, no Transgression.
My Lords, To this 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 a Law, Why should he have any himself? Why should not that be done to him, that himself would have done to others?
It's true, we give Law to Hares and Deer, 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 Warrenner sets Traps for Polcats and other Vermin, for preservation of the Warren.
Further, my Lords, Most dangerous Diseases, if not taken in time, they kill; Errors, in great things, as War, 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 against a Law, a Law within the endeavouring to subvert the Laws and Polity of the State wherein he lived, which had so long, and with such faithfulness 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 a Law, were a Law to themselves.
Besides this, he knew a Law without, that the Parliament, in Cases of this nature, had Potestatem vita & 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 loss of Life, Lands and Goods; a Felony may be aggravated with those Circumstances, as that the Parliament, with good reason, may add to the Circumstances of Punishment, as was done in the Case of John Hall, in the Parliament of the Ist of Hen. IVth, who, for a barbarous Murder committed upon the Duke of Gloucester, Stifling him between two Feather-beds, at Calais, was Adjudged to be Drawn, Hanged, and Quartered.
Batteries, by Law, are only punishable by Fine, and. single Damages to the Party wounded.
In the Parliament held in the Ist of Hen. IVth. cap. 6. one Savage committed a Battery upon one Chedder, Servant to Sir John Brooke a Knight of the Parliament for Somersetshire It's there Enacted, that he shall pay double Damages, and stand Convicted, if he render not himself by such a Time. The Manner of Proceedings quickned, and the Penalty doubled: The Circumstances were consider'd, it concerned the Commonwealth, it was a Battery with Breach of Privilege of Parliament.
This made a perpetual Act: no Warning to the first Offender: and in the King's-Bench, as appears by the Book-Case of 9 Hen IV. the first leaf, Double Damages were recovered.
My Lords, In this of the Bill, the Offence is High and General, against the King and the Commonwealth, against all, and the best of all.
If every Felony be loss of Life, Lands, and Goods; What is Misuser of the Legislative Power, by addition of Ignominy, in the Death and Disposal of the Lands to the Crown, the Publick Patrimony of the Kingdom?
But it was hoped, that your Lordships had no more skill in the Art of killing Men, than your worthy Ancestors.
My Lords, This Appeal from your Selves to your Ancestors we do admit of, altho' 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 hear what Judgment they have already given in the Case, that is, the several Attainders of Treason in Parliament; after the Statute of 25Edw. III. for Treasons not mentioned, nor within that Statute, and those upon the first Offenders, without Warning given.
By the Statute of 25Edw. III. it's Treason to levy War against the King; Gomines and Weston afterwards in Parliament, in I Ric. II. n. 38, 39. adjudged Traytors, for surrendring two several Castles in France, only out of Fear, without any Compliance with the Enemy; this not within the Statute of 25 Edw. III.
My Lords, In the 3d of Ric. II. John Imperiall, who came into England upon Letters of Safe-Conduct, as an Agent for the State of Genoa, sitting in the Evening before his Door, in Bread-Street, (as the words of the Records are) Paulo ante ignitegium; John Kirkby and another Citizen coming that way, Casually Kirkby trod upon his Toe, it being Twilight; this grew to a Quarrel, and the Ambassador was slain; Kirkby was Indicted of High-Treason, the Indictment finds all this, and that it was only done se defendendo, and without Malice.
The Judges, it being out of the Statute 25 Edw. III. could not proceed; the Parliament declared it Treason, and Judgment afterwards of High-Treason: There's nothing can bring this within the Statute of 25 Edw. III. but it concerns the Honour of the Nation, that the Publick Faith should be strictly kept: It might endanger the Traffick of the Kingdom; they made not a Law first, they made the first Man an Example: This is in the Parliament-Roll, 3 Ric. II. numb. 18. and Hilary-Term, 3 Ric. II. Rot. 31. in the King's-Bench, where Judgment is given against him.
In 11 Ric. II. 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, been opened to your Lordships; only this is observable, that in the Parliament of the Ist Year of Henry III. where all Treasons are again reduced to the Statute of 25 Edw. III. These Attainders were by a particular Act confirmed and made good, that the memory thereof might be transmitted to succeeding Ages; they stand good unto this day; the Offences there, as here, were the endeavouring the Subversion of the Laws.
My Lords, After the Ist of Henry IVth, Sir John Mortimer being committed to the Tower upon suspicion of Treason, brake Prison, and made his 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 2d Year of Henry VIth, he was attainted of High-Treason by Bill.
My Lords, Poysoning is only Murder; yet one Richard Cooke having put Poyson into a Pot of Pottage in the Kitchen of the Bishop of Rochester, whereof two Persons died, he's Attainted of Treason, and it was Enacted, That he should be Boiled to Death, by the Statute of 22 Hen. VIII. c. 9.
By the Statute of 25 Hen. VIII. Eliz. 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 Katharine, and that in case he persisted in the Separation, and should Marry another, that he would not continue King above one Month after: Because this tended to the depriving of the lawful Succession to the Crown, she is Attainted of Treason.
My Lords, All these Attainders, for ought I know, are in force at this day. The Statutes of the Ist Year of Henry IVth, and the Ist of Queen Mary, altho' they were willing to make the Statute of 25 Edward III. 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 Laws and Statutes made by these our Ancestors; they are the Rules we go 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 the Bill; it is now left to the Judgment and Justice of your Lordships.
Upon the Close of Mr. St. Johns's Speech, the House Adjourned; nor was there one word spoken but by Mr. St. Johns, only the Lord Lieutenant used the last part of his Rhetorick, and by a dumb Eloquence, Manibus ad sydera tensis, often holding up his Hands towards Heaven, all along Mr. St. Johns's Speech, made his Replies with a deep silence.
Upon Friday, April the 30th, he petition'd the Lords to be Heard again, alledging, That his Lawyers had not fully spoken at their last Meeting; but this was deny'd him, because the House of Commons were to have the last Speech, nor were they content to speak again.
The following Speech of Mr. GLYN, is, by Mistake, misplaced' for it ought to be next to my Lord's Summary of the Evidence.