to intend the levying of warre this Case was adjudged before the Parliament The Case was adjudged in Hillary Terme the Parliament began not untill the Aprill following This my Lords is a Case adjudged in point That the practising to levy warre though nothing be done in execution of it is Treason Object It may be objected that in these Cases the conspiring being against the whole Kingdome included the Queene and was a compassing her destruction as wel as of the Kingdomes heere the advise was to the King Answ 1 The Answer is first that the warrant was unknowne to his Majesty that was a machination of warre against the people and Lawes wherein his Majesties person was engaged for protection That the advice was to his Majesty aggravates the offence it was an Attempt not only upon the Kingdome but upon the Sacred Person and his office too himselfe was host is patriae he would have made the Father of it so too nothing more unnaturall more dangerous To offer the King poyson to drink telling him that it is a Cordiall is a compassing of his death The poyson was repelled there was an antidote within the malice of the giver beyond expression The perswading of Forreiners to invade the kingdome holds no proportion with this Machination of warre against the Lawes or kingdome is against the King they cannot be severed My Lords if no actuall warre within the The 3. Generall Head Statute if the counselling of a warre if neither of these single Acts be Treason within the Statute The Commons in the next place have taken it into their consideration what the addition of his other words Counsells and Actions do operate in the Case and have conceived That with this addition all being put together that he is brought within the Statute of 25. Edward 3. The words of the Statute are if any man shall compasse or imagine the death of the King the words are not if any man shall plot or consult the death of the King no my Lords they go further then to such things as are intended immediately directly and determinatively against the life and person of the King they are of a larger extent to compasse is to doe by Circuit to consult or practice another thing directly which being done may necessarily produce this effect However it be in the other Treasons within this Statute yet in this by the very words there is roome left for constructions for necessary Inferences and Consequences What hath beene the judgement and practice of former times concerning these words of compassing the Kings death will appeare to your Lorships by some Cases of attainders upon these words One Owen in King James his time in the 13. yeare of his raigne at Sandwich in Kent spake these words That King James being excommunicated by the Pope may be killed by any man which killing is no murther being asked by those he spake too how he durst maintaine so bloudy an assertion hee answered that the matter was not so heynous as was supposed for the King who is the lesser is concluded by the Pope who is the greater and as a Malefactor being condemned before a Temporall Judge may be delivered over to be Executed so the King standing convicted by the Popes sentence of excommunication may justly be slaughtered without fault for the killing of the King is the execution of the Popes supreame sentence as the other is the execution of the Law for this judgement of High-Treason was given against him and execution done My Lords here is no cleere intent appearing that Owen desired the thing should bee done onely Arguments that it might bee done This is a Compassing there is a cleare Endeavour to corrupt the judgement to take off the bonds of Conscience the greatest security of the Kings life God forbid saith one of better judgement then he That I should stretch out my hand against the Lords annointed no saith he the Lord doth not forbid it you may for these reasons lawfully kill the King He that denies the Title to the Crowne and plots the meanes of setting it upon another head may doe this without any direct or immediate desiring the death of him that then weares it yet this is Treason as was adjudged in 10. Henry 7. in the case of Burton and in the Duke of Norfolkes case 13. Elizabeth This is a compassing of his death for there can no more be two Kings in one Kingdome then two sunnes in the Firmament he that conceives a title counts it worth ventring for though it cost him his life hee that is in possession thinkes it as well worth the keeping John Sparhauke in King Henry the fourths time meeting two men upon the way amongst other talke said that the King was not rightfull King but the Earle of March and that the Pope would grant indulgencies to all that would assist the Earles title and that within halfe a yeare there would be no Liveries nor Conizances of the King that the King had not kept promise with the people but had layed taxes upon them In Easter Tearme in the third yeare of Henry the fourth in the Kings Bench Rot. 12. this adjudged Treason This denying the title with motives though but implyedly of Action against it adjudged Treason this is a compassing the Kings death How this was a compassing the Kings death is declared in the reasons of the judgement That the words were spoken with an intent to withdraw the affections of the people from the King and to excite them against the King that in the end they might rise up against him in mortem destructionem of the King My Lords in this Judgement and others which I shall cite to your Lordships It appeares that it is a compassing the Kings death by words to indeavour to draw the peoples hearts from the King to set discord between the King and them wherby the people should leave the King should rise up against him to the death and destruction of the King The cases that I shall cite prove not onely that this is Treason but what is sufficient evidence to make this good Upon a Commission held the 18. yeare of Ed. 4. in Kent before the Marquesse of Dorset others an Inditement was preferred against Iohn Awater of High-Treason in the forme before mentioned for words which are entred in the enditment sub hâc formâ That he had been servant to the Earle of Warwick that though he were dead the Earle of Oxford was alive and should have the government of part of the Country That Edward whom you call King of England was a false man and had by art and subtilty slain the Earle of Warwick and the Duke of Clarence his brother without any cause who before had beene both of them attainted of High-Treason My Lords this Inditement was returned into the Kings Bench in Trinity Tearme in the eighteenth yeare of Edward the fourth and in Easter Tearme in the two and twentieth yeare of Edward
pains for that which when he hath gotten is not his own Or who fight for that wherein he hath no other interest but such as is subject to the will of another The Ancient encouragement to men that were to defend their Countries was this That they were to hazard their Persons pro Aris Focis for their Religion and for their Houses But by this Arbitrary way which was practised in Ireland and counselled here no man had any certainty either of Religion or of his House or any thing else to be his own But besides this such Arbitrary courses have an ill operation upon the courage of a Nation by embasing the hearts of the people A servile condition doth for the most part beget in men a slavish temper and disposition Those that live so much under the Whip and the Pillory and such servile Engines as were frequently used by the E. of Strafford they may have the dregges of valour sullennesse stubbornnesse which may make them prone to Mutinies and discontents but those Noble and gallant affections which put men on brave Designes and Attempts for the preservation or inlargement of a Kingdome they are hardly capable of Shall it be Treason to embase the Kings Coyne though but a piece of twelve-pence or sixe-pence and must it not needs be the effect of a greater Treason to embase the spirits of his Subjects and to set a stamp and Character of servitude upon them whereby they shall be disabled to doe any thing for the service of the King or Common-wealth The fift Consideration is this That the exercise of this Arbitrary Government in times of sudden danger by the invasion of an enemy will disable his Majesty to preserve himselfe and his Subjects from that danger This is the onely pretence by which the E. of Strafford and such other mischievous Counsellors would induce his Majesty to make use of it and if it be unfit for such an occasion I know nothing that can be alledged in maintenance of it When warre threatens a Kingdome by the comming of a forrain Enemy it is no time then to discontent the people to make them weary of the present Government and more inclinable to a Change The supplies which are to come in this way will be unready uncertain there can be no assurance of them no dependence upon them either for time or proportion And if some money be gotten in such a way the Distractions Divisions Distempers which this course is apt to produce will be more prejudiciall to the publique safety then the supply can be advantagious to it and of this we have had sufficient experience the last Summer The sixt That this crime of subverting the Laws and introducing an Arbitrary and Tyrannicall Government is contrary to the Pact and Covenant betwixt the King and his people That which was spoken of before was the legall union of Allegeance and Protection this is a personall union by mutuall agreement and stipulation confirmed by oath on both sides The King and his people are obliged to one another in the nearest relations He is a Father and a childe is called in Law Pars Patris Hee is the Husband of the Common-wealth they have the same interests they are inseparable in their condition be it good or evill He is the Head they are the Body there is such an incorporation as cannot be dissolved without the destruction of both When Iustice Thorpe in Edw. the thirds time was by the Parliament condemned to death for Bribery the reason of that Judgement is given because he had broken the Kings Oath not that he had broken his own oath but that he had broken the Kings oath that solemne and great obligation which is the security of the whole Kingdome If for a Judge to take a small summe in a private cause was adjudged Capitall how much greater was this offence whereby the E. of Strafford hath broken the Kings Oath in the whole course of his Government in Ireland to the prejudice of so many of his Majesties Subjects in their Lives Liberties and Estates and to the danger of all the rest The Doctrine of the Papists Fides non est servanda cum Haereticis is an abominable Doctrine yet that other Tenet more peculiar to the Iesuites is more pernicious whereby Subjects are discharged from their Oath of Allegeance to their Prince whensoever the Pope pleaseth This may be added to make the third no lesse mischievous and destructive to humane society then either of the rest That the King is not bound by that Oath which he hath taken to observe the Laws of the Kingdome but may when he sees cause lay Taxes and burdens upon them without their consent contrary to the Laws and Liberties of the Kingdome This hath been preached and published by divers And this is that which hath been practised in Ireland by the E. of Strafford in his Government there and indeavoured to be brought into England by his Counsell here The seventh is this It is an offence that is contrary to the end of Government The end of Government was to prevent oppressions to limit and restrain the excessive power and violence of great men to open the passages of Iustice with indifferency towards all This Arbitrary power is apt to induce and incourage all kind of insolencies Another end of Government is to preserve men in their estates to secure them in their Lives and Liberties but if this Designe had taken effect and could have been setled in England as it was practised in Ireland no man would have had more certainty in his own then power would have allowed him But these two have been spoken of before there are two behind more important which have not yet been touched It is the end of Government that vertue should be cherisht vice supprest but where this Arbitrary and unlimited power is set up a way is open not onely for the security but for the advancement and incouragement of evill Such men as are aptest for the execution and maintenance of this Power are onely capable of preferment and others who will not be instruments of any unjust commands who make a conscience to doe nothing against the Laws of the Kingdome and Liberties of the Subject are not onely not passable for imployment but subject to much jealousie and danger It is the end of Government that all accidents and events all Counsels and Designes should be improved to the publique good But this Arbitrary Power is apt to dispose all to the maintenance of it self The wisdome of the Councell-Table the Authority of the Courts of Justice the industry of all the Officers of the Crown have been most carefully exercised in this the Learning of our Divines the Iurisdiction of our Bishops have been moulded and disposed to the same effect which though it were begun before the E. of Straffords Imployment yet it hath beene exceedingly furthered and advanced by him Under this colour and pretence of maintaining the Kings Power
and Prerogative many dangerous practises against the peace and safety of this Kingdome have been undertaken and promoted The increase of Popery and the favours and incouragement of Papists have been and still are a great grievance and danger to the Kingdome The Innovations in matters of Religion the usurpations of the Clergie the manifold burdens and taxations upon the people have been a great cause of our present distempers and disorders and yet those who have been chiefe Furtherers and Actors of such Mischiefes have had their Credit and Authority from this That they were forward to maintain this Power The E. of Strafford had the first rise of his greatnesse from this and in his Apologie and Defence as your Lordships have heard this hath had a maine part The Royall Power and Majesty of Kings is most glorious in the prosperity and happinesse of the people The perfection of all things consists in the end for which they were ordained God onely is his own end all other things have a further end beyond themselves in attaining whereof their own happinesse consists If the means and the end be set in opposition to one another it must needs cause an impotency and defect of both The eight Consideration is The vanity and absurdity of those excuses and justifications which he made for himself whereof divers particulars have been mentioned in the course of his Defence 1. That he is a Counsellor and might not be questioned for any thing which he advised according to his conscience The ground is true there is a liberty belongs to Counsellors and nothing corrupts Counsels more then fear He that will have the priviledge of a Counsellor must keep within the just bounds of a Counsellor those matters are the proper subjects of Counsell which in their times and occasions may be good or beneficiall to the King or Common-wealth But such Treasons as these the subversion of the Laws violation of Liberties they can never be good or justifiable by any circumstance or occasion and therefore his being a Counsellor makes his fault much more hainous as being committed against a greater Trust and in a way of much mischiefe and danger lest his Majesties conscience and judgement upon which the whole course and frame of his Government do much depend should be poysoned and infected with such wicked principles and designes And this he hath endeavoured to doe which by all Lawes and in all times hath in this Kingdome beene reckoned a Crime of an high Nature 2. He labours to interest your Lordships in his cause by alledging It may be dangerous to your selves and your Posterity who by your birth are fittest to be near his Majesty in places of Trust and Authority if you should be subject to be questioned for matters delivered in Counsell To this was answered that it was hoped their Lordships would rather labour to secure themselves and their posterity in the exercise of their vertues then of their vices that so they might together with their own honour and greatnesse preserve the honour and greatnesse both of the King and Kingdome 3. Another excuse was this that whatsoever he hath spoken was out of a good intention Sometimes good and evill truth and falshood lie so near together that they are hardly to be distinguished Matters hurtfull and dangerous may be accompanied with such circumstances as may make it appeare usefull and convenient and in all such cases good intentions will justifie evill Counsell But where the matters propounded are evill in their own nature such as the matters are wherewith the E. of Strafford is charged to break a publique faith to subvert Laws and Government they can never be justified by any intentions how specious or good soever they be pretended 4. He alledgeth it was a time of great necessity and danger when such counsels were necessary for preservation of the State Necessity hath been spoken of before as it relates to the Cause now it is considered as it relates to the Person if there were any necessity it was of his own making he by his evil counsell had brought the King into a necessity and by no Rules of Iustice can be allowed to gain this advantage by his own fault as to make that a ground of his justification which is a great part of his offence 5. He hath often insinuated this That it was for his Majesties service in maintenance of that Soveraign Power with which he is intrusted by God for the good of his people The Answer is this No doubt but that Soveraign Power wherewith his Majesty is intrusted for the publique good hath many glorious effects the better to inable him thereunto But without doubt this is none of them That by his own will he may lay any Taxe or Imposition upon his people without their consent in Parliament This hath now been five times adjudged by both Houses In the Case of the Loanes In condemning the Commission of Excise In the Resolution upon the Saving offered to be added to the Petition of Right In the sentence against Manwaring and now lately In condemning the Ship-money And if the Soveraigne Power of the King can produce no such effect as this the Allegation of it is an Aggravation and no Diminution of his offence because thereby he doth labour to interest the King against the just grievance and complaint of the People 6. This Counsell was propounded with divers limitations and Provisions for securing and repairing the liberty of the people This implies a contradiction to maintain an Arbitrary absolute Power and yet to restrain it with limitations and provisions for even those limitations and provisions will be subject to the same absolute Power and to be dispensed in such manner and at such time as it self shall determine let the grievances and oppressions be never so heavy the Subject is left without all remedy but at his Majesties own pleasure 7. He alledgeth they were but words and no effect followed This needs no answer but that the miserable distempers into which he hath brought all the three Kingdomes will be evidence sufficient that his wicked Counsels have had such mischievous effects within these two or three last years that many years peace will hardly repaire those losses and other great mischiefes which the Common-wealth hath sustained These excuses have been collected out of the severall parts of his Defence perchance some others are omitted which I doubt not have been answered by some of my Collegues and are of no importance either to perplex or to hinder your Lordships judgement touching the hainousnesse of this Crime The ninth Consideration is this That if this be Treason in the nature of it it doth exceed all other Treasons in this That in the Design and endeavour of the Author it was to be a constant and a permanent Treason other Treasons are transient as being confinde within those particular actions and proportions wherein they did consist and those being past the Treason ceaseth The Powder-Treason
the fourth he was outlawed by the stay of the outlawry so long it seemes the Judges had well advised before whether it were Treason or not At the same Session Thomas Heber was indited of Treason for these words That the last Parliament was the most simple and insufficient Parliament that ever had beene in England That the King was gone to live in Kent because that for the present hee had not the love of the Citizens of London nor should hee have it for the future That if the Bishop of Bath and Wells were dead the Arch-Bishop of Canterbury being Cardinall of England would immediately loose his head This Inditement was returned into the Kings Bench in Trinity Tearme in the eighteenth yeare of Edward the fourth Afterwards there came a Privy Scale to the Iudges to respit the proceedings which as it should seeme was to the intent the Iudges might advise of the Case for afterwards he is outlawed of high-Treason upon this inditement These words were thought sufficient evidence to prove these severall Inditements That they were spoken to with draw the peoples affection from the King to excite them against him to cause risings against him by the people in morē destructions of the King Your Lordships are pleased to consider that in all these Cases the Treason was for words only words by private persons and in amore private manner but once spoken and no more only amongst the people to excite them against the King My Lords here are words Counsells more then words and actions too not only to disaffect the people to the King but the King likewise towards the people not once but often not in private but in places most publique not by a private person but by a Counsellor of State a Lord Leivetenant a Lord President a Lord Deputie of Ireland 1. To his Majesty That the Parliament had denied to supply him a slander upon all the Commons of England in their affections to the King and Kingdome in refusing to yeeld timely supply for the necessities of the King and Kingdome 2. From thence that the King was loose and absolved from rules of governement and was to doe every thing that power would admit My Lords more cannot be said they cannot be aggravated whatever I should say would be in diminution Thence You have an Army in Ireland you may imploy to reduce this Kingdome To counsell a King not to love his people is very unnaturall it goes higher to hate them to malice them in his heart the highest expressions of malice to destroy them by war These coales they were cast upon his Majesty they were blowne they could not kindle in that brest Thence my Lords having done the utmost to the King he goes to the people At York the Country being met together for Justice at the open Assizes upon the Bench he tells them speaking of the Justices of the Peace that they were all for Law nothing but Law but they should find that the Kings little finger should be heavier then the loines of the Law They shall find my Lords who speaks this to the people a Privie Counsellor this must be either to traduce his Majesty to the people as spoken from him or from himselfe who was Lord Leivetenant of the County and President intrusted with the forces and Justice of those parts that he would imploy both this way add my Lords to his words there the exercising of an arbitrary and vast Jurisdiction before he had so much as Instructions or colour of warrant Thence we carry him into Ireland there he represented by his place the sacred person of his Majesty 1. There at Dublyn the principall Citty of that Kingdome whether the Subjects of that Country came for Justice in an Assembly of Peeres and others of greatest ranke upon occasion of a Speech of the Recorder of that Citty touching their Franchises and Legall Rights he tells them that Ireland was a Conquered Nation and that the King might do with them what he pleased 2. Not long after in the Parliament 10. Car. in the Chaire of State in full Parliament againe That they were a conquered Nation and that they were to expect Lawes as from a Conqueror before the King might do with them what he would now They were to expect it that he would put this power of a Conqueror in execution The Circumstances are very considerable in full Parliament from himselfe in Cathedrâ to the representative body of the whole Kingdome The occasion adds much when they desire the benefit of the Lawes and that their Causes and Suites might be determined according to Law and not by himselfe at his will and pleasure upon paper Petitions 3. Upon like occasion of pressing the Lawes and Statutes That he would make an Act of counsell board in that Kingdome as binding as an Act of Parliament 4. He made his words good by his actions assumed and exercised a boundlesse and lawlesse Jurisdiction over the lives persons and estates of his Majesties Subjects procured judgement of death against a Peere of that Realme commanded another to be hanged this was accordingly executed both in times of high Peace without any processe or colour of Law 5. By force for a long time he seised the yarne and flax of the Subjects to the starving and undoing of many thousands besides the Tobacco businesse and many Monopolies and unlawfull Taxes forced a new Oath not to dispute his Majesties royall commands determined mens estates at his owne will and pleasure upon paper Petititions to himselfe forced Obedience to these not only by Fines and Imprisonment but likewise by the Army sessed Souldiers upon the refusers in a hostile manner 6. Was an Incendiary of the warre between the two Kingdomes of England and Scotland My Lords we shall leave it to your Lordships Judgements whether these words Counsells and Actions would not have been a sufficient Evidence to have proved an Inditement drawne up against him as those before mentioned and many others are That they were spoken and done to the intent to withdraw the Kings heart from the people and the affections of the people from the King that they might leave the King and afterwards rise up against him to the destruction of the King if so here is a compassing of the Kings death within the words of the Statute of the five and twentieth yeare of Edward the third and that warranted by many former judgements My Lords I have now done with the three The 4. Generall Head Treasons within the Statute of the five and twentieth of Edward the third I proceed to the fourth upon the Statute of the eighteenth yeare of Henry the sixt Chapter the third in Ireland I shall make bold to read the words to your Lordships That no Lord nor any other of what condition soever he be shall bring or lead hoblers kerves or hooded men nor any other people nor horses to lie on horseback or on foot upon the Kings Subjects without their good
here in the Kings bench that was in Trinity tearme in the three-and-thirtie yeare of Henry the eight this was before the making of that Statute Obj. To this againe will bee said that it was for treason by the Lawes and Statutes of England but this is not for anything that 's treason by the Law of England but by an Irish Statute So that the question is onely whether your Lordships in Parliament heere have cognizance of an offence made treason by an Irish Statute in the ordinary way of judicature without bill for so is the present question For the clearing of this I shall propound two things to your Lordships consideration Whether the rule for expounding the Irish Statutes and customes bee one and the same in England as in Ireland That being admitted whether the Parliaments in England have cognizance or jurisdiction of things there done in respect of the place because the Kings writ runnes not there For the first if in respect of the place the Parliament here hath cognizance there And secondly if the rules for expounding the Irish Statutes and Customes bee the same here as there this exception as I humbly conceive must fall away In England there is the common law the Statutes the acts of Parliament and customes peculiar to certaine places differing from the common law if any question arise concerning either a custome or an act of Parliament the common law of England the first the primative and the generall law that 's the rule and expositour of them and of their severall extents it is so heere it is so in Ireland the common law of England is the common law of Ireland likewise the same here and there in all the parts of it It was introduced into Ireland by King John and afterwards by King Harry the third by act of Parliament held in England as appeares by the pattent Rolls of the 30. yeare of King Henry the third the first membrana The words are Quia pro communi utilitate terrae Hiberniae unitate terrarum Regis Rex vult de communi consilio Regis provisum est quod omnes leges consuetudines quae in regno Angliae tenentur in Hibernia teneantur eadem terra eisdem legibus subjaceat per easdem regatur sicut Dominus Johannes Rex cum ultimo esset in Hibernia statuit fierimandavit Quia c. Rex vult quod omnia brevia de communi Jure quae currunt in Anglia similiter currant in Hibernia sub novo sigillo Regis mandatum est Archiepiscopis c. quod pro pace tranquillitate ejusdem terrae per casdem leges eos regi deduci permittant ea 〈◊〉 omnibus sequantur In cujus c. Teste Rege apud Woodstock decimo none die Septembris Here 's an union of both Kingdomes and that by act of Parliament and the same Lawes to bee used here as there in omnibus My Lords That nothing might bee left here for an exception that is that in treasons felonies and other capitall offences concerning life the Irish lawes are not the same as here Therefore it is enacted in a Parliament held in England in the fourteenth yeere of Edward the second it is not in print neither but is in the Parliament book That the Laws concerning life and member shall be the same in Ireland as in England And that no exception might yet remaine in a Parliament held in England the fifth yeere of Edward the third It is enacted quod una eadem Lex fiat tam Hibernicis quam Anglicis This Act is enrolled in the Patent rolls of the fifth yeere of Edward the third part 1. memb 35. The Irish therefore receiving their Lawes from hence they send their Students at Law to the Innes of Courts in England where they receive their degree and of them and of the common Lawyers of this Kingdome are the Judges made My Lords The petitions have been many from Ireland to send from hence some Judges more learned in the Lawes then those they had there It hath been frequent in cases of difficulty there to send sometimes to the Parliament here sometimes to the King by advice from the Judges here to send them resolutions of their doubts Amongst many I 'll cite your Lordships onely one because it is in a case of Treason upon an Irish Statute and therefore full to this point By a Statute there made in the fifth yeere of Edward the fourth there is provision made for such as upon suggestions are committed to prison for Treason that the party committed if he can procure 24. Compurgators shall be bailed and let out of prison Two Citizens of Dublin were by a grand Jury presented to have committed Treason They desired the benefit of this Statute that they might bee let out of prison upon tender of their Compurgators The words of the Statute of the fifth yeere of Edward the fourth in Ireland being obscure the Judges there not being satisfied what to doe sent the case over to the Queene desired the opinion of the Judges here which was done accordingly The Judges here sent over their opinion which I have out of the Booke of Justice Anderson one of the Judges consulted withall The Judges here delivered opinion upon an Irish Statute in case of Treason If it bee objected That in this case the Judges here did not judge upon the party their opinions were onely ad informandum conscientiam of the Judges in Ireland that the judgement belonged to the Judges there My Lords with submission this and the other Authorities prove that for which they were cited that is That no absurdity no failer of Justice would ensue if this great Judicatory should judge of Treason so made by an Irish Statute The common Law the rule of Judging upon an Irish Statute the pleas of the Crowne for things of life and death are the same here and there This is all that hath yet been offered For the second point That England hath no power of Judicature for things done in Ireland My Lords the constant practice of all ages proves the contrary Writs of errour in Pleas of the Crowne as well as in civill causes have in all Kings reignes beene brought here even in the inferiour Courts of Westminster Hall upon judgements given in the Courts of Ireland The practice is so frequent so well known as that I shall cite none of them to your Lordships no president will I beleeve bee produced to your Lordships that ever the case was remanded back againe into Ireland because the question rose upon an Irish Statute or custome But it will be said That writs of errour are only upon a failer of justice in Ireland and that suits cannot originally be commenced here for things done in Ireland because the Kings writ runs not in Ireland This might bee a good plea in the Kings Bench and inferiour Courts at Westminster Hall the question is whether it bee so in Parliament
parts wheresoever in subjection to the Crowne of England The last thing I shall offer to your Lordships is the case of 19. El. in my Lord Dyer 306. and Judge Cromptons book of the jurisdiction of Courts fol. 23. The opinion of both these Books is That an Irish Peer is not triable here It 's true a Scotish or French Nobleman is triable here as a common person the Law takes no notice of their Nobility because those Countries are not governed by the Lawes of England but Ireland being governed by the same Laws the Peers there are triable according to the Law of England onely per pares By the same reason the Earle of Strafford not being a Peere of Ireland is not triable by the Peers of Ireland so that if hee bee not triable here hee is triable no where My Lords In case there be a Treason and a Traitor within the Statute and that he be not triable here for it in the ordinary way of judicature if that jurisdiction failes this by way of Bill doth not Attainders of Treason in Parliament are as legall as usuall by Act of Parliament as by Judgement I have now done with the Statutes of 25. E. 3. and 18. H. 6. My Lord of Strafford hath offended against both the Kingdomes and is guilty of high Treason by the Lawes of both 5 My Lords In the fifth place I am come to the Treasons at the common Law The endevouring to subvert the fundamentall Lawes and government of the Kingdome and to introduce an arbitrary and tyrannicall government In this I shall not at all labour to prove that the endevouring by words counsels and actions to subvert the Lawes is treason at the common Law if there be any common Law treasons at all left nothing treason if this not to make a Kingdome no Kingdome take the politic and government away England's but a piece of earth wherein so many men have their commorancy abode without ranks or distinction of men without propertie in anything further then possession no Law to punish the murdering or robbing one another That of 33. H. 8. of introducing the Imperiall Law sticks not with your Lordships It was in case of an appeal to Rome these appeals in cases of marriages other causes counted Ecclesiasticall had been frequent had in most Kings reigns been tolerated some in times of Popery put a conscience upon them the Statutes had limited the penalty to a Premunire only Neither was that a totall subversion only an Appeale from the Ecclesiasticall Court here in a single cause to the Court at Rome and it treason or not that case proves not a treason may be punished as a felony a felony as a trespasse if his Majesty so please the greater includes the lesser In the case of Premunire in the Irish reports that which is there declared to be treason proceeded upon only as a Premunire The thing most considerable in this is whether the treasons at common Law be taken away by the Stat. of 25. E. 3. 1. H. 4. or 1. Q. M. or any of them My Lords To say they bee taken away by the Stat. of 25. E. 3. is to speak against both the direct words and scope of that Statute In it there 's this clause That because many other like cases of treason might fall out which are not there declared therefore it is enacted That if any such case come before the Judges they shall not proceed to judgement till the case bee declared in Parliament whether it ought to be adjudged treason or not These words and the whole scope of that Statute showes That it was not the meaning to take away any treasons that were so before but onely to regulate the jurisdiction and manner of tryall Those that were single certain Acts as Conspiring the Kings death Levying warre Counterfeiting the money or great Seal Killing a Judge these are left to the ordidinary Courts of Justice The others not depending upon single Acts but upon constructions and necessary inferences they thought it not fit to give the inferiour Courts so great a latitude here as too dangerous to the subject those they strained to the Parliament This Statute was the great security of the subject made with such wisdome as all the succeeding ages have approved it It hath often passed through the fornace but like gold hath lost little or nothing The Statute of 1. H. 4. cap. 10. is in these words Whereas in the Parliament held the 21. yeere of Richard the second divers paines of treasons were ordained insomuch that no man did know how to behave himselfe to doe say or speake It is accorded that in no time to come any treason be adjudged otherwise then it was ordained by the Statute of 25. E. 3. It hath bin said To what end is this Statute made if it takes not away the common Law treasons remaining after the Statute of 25. E. 3. There be two maine things which this Statute doth First it takes away for the future all the Treasons made by any Statute since 25. Ed. 3. to 1. Hen. 4. even to that time For in respect that by another Act in that Parliament the Statute of 21. E. 2. was repealed it will not bee denyed but that this Statute repeales more treasons then these of 21. E. 2. it repeals all Statute treasons but those in 25. E. 3. Secondly It not only takes away the Statute treasons but likewise the declared treasons in Parliament after 25. E. 3. as to the future After declaration in Parliament the inferiour Courts might judge these treasons for the declaration of a treason in Parliament after it was made was sent to the inferiour Courts that toties quoties the like case fell out they might proceed therein the subject for the future was secured against these so that this Statute was of great use By the very words of it it still referrs all treasons to the provision of 25. E. 3. it leaves that entire and upon his old bottome The Statute of 1. Q. M. cap. 1. saith That no offences made treason by any Act of Parliament shall thenceforth be taken or adjudged to bee treason but onely such as be declared and expressed to bee treason by the Statute of 25. E. 3. concerning treason or the declaration of treason and no others And further provides that no pains of death penaltie or forfeiture in any wise shall ensue for committing any treason other then such as be in the Statute of 25. E. 3. ordained and provided any Acts of Parliament or any declaration or matter to the contrary in any wise notwithstanding By the first part of this Statute onely offences made Treason by Act of Parliament are taken away the Common Law Treasons are no way touched The words and no others refer still to offences made treason by Act of Parliament they restraine not to the treasons onely particularly mentioned in the Statute of 25. E. 3. but leave that Statute entire as