the Conscience of the Judge in giving Judgment according to them In several Countries there is not the same measure of Punishment for one and the same Offence Willful Murder in Ireland it is Treason and so is the wilfull Burning of a House or a Stack of Corne In the Isle of Man it is Felony to Steal a Hen but not to steale a Horse and yet the Judge in Ireland hath as just a Ground to give Judgement of High-Treason in those Cases there as here to give Judgment onely 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 Supreame Power the same Law gives power to the Parliament to make new Lawes that enables the inferiour Court to Judge according to the old The Rules that guides 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 then what is necessary for the Cure the Lawes and Customes 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 new Lawes are for the most part past by Bill This my Lords though just and legal and therefore not wholly excluded yet it was not the onely 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 onely 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 Lawes made the fittest Judge to clear this Doubt Secondly My Lords they proceeded this way to obviate those Scruples and Delayes which through disuse of proceedings of this nature might have risen in the manner and way of proceedings since the Statute of the First of Hen. 4. Cap. 17. and more fully in the Roll number 144. The proceedings of Parliament have usually been upon an Indictment first found though in Cases of Treason particularly mentioned in the Statute of 25 Edw. 3. which had not been done in this case doubts likewise might rise for Treasons not particularly mentioned in the Statute of 25 Edw. 3. whether the Declaratory Power of Parliament be taken away 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 Barr 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 1 of Edw. 6. 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 mans 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 23 Article then intending of a War if not within the clause of levying of a War in the Statute of 25th Edw 3. yet within the first Treason of compassing the death of the King 3. If either of these two single Acts is within the Statute of 25th Edw. 3. yet upon putting all together which hath been proved against him that there 's a Treason within the first Clause of Compassing the death of the King Et si non Prosunt singula juncta juvant 4. That he hath 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. 6th 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 even in the ordinary way of Judicature that if there be a Treason and a Traitor that 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. 3. 1 Hen. 4th c. nor any of them 6. That as this case stands it 's just and necessary to resort to the Supream 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 within the Statute of 25th Edw. 3. 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 Sesse such numbers of Soldiers Horse and Foot of the Army in Ireland together with an Officer as the Sergeant should think fit upon His Majesties Subjects of Ireland against their Will this Warrant was granted by the Earl to the end to compell 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. 3. 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 1. 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 Edward 1. this was adjudged only Trespass and either of the Earls Fined 1000 Marks apiece After the Statute in Hillary Term in the 15th year of Edw. the 3. in the Kings-Bench Rot. 3. Nicholas Huntercome in Warlike manner with 40 men armed amongst other weapons with Guns so antient as appears by that Record they were did much spoil in the Mannor of the Abby 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. 3. 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 Ransome 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 misprinted for the words in the Parliament Roll as appears in the 17th are Discovertment on 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 further 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 Kings 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 Kings 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 Kings 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. 3. downwards In R. the 2. time Sir Tho. Talbot conspired the death of the Dukes of Glocester 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 R. 2. N o 20. Sir Thomas 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 Judgement sent down into the Kings Bench as appears Easter Term in the 17th year of R. 2. in the Kings Bench Rot. 16th These two Lords had appeared in the 11th of R. 2 in maintainance of the Act of Parliament made in the year before one of them was of the Commissioners appointed by Parliament and one of the Appealors 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 Common-wealth In that great insurrection of the Villains and meaner People in Richard the II. time they took an Oath Quod Regi Communibus fidelitatem servarent to be true
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 Traitor 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 Judgement I have now done with the Statutes 25 Edw. 3. and 18 Hen. 6. 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 Englands 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. 8. 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 Kings Reigns been tolerated some in times of Popery put a conscience upon them the Statutes had limited the penalty to a Praemunire 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 Praemunire in the Irish Reports that which is there declared to be Treason was proceeded upon only as a Praemunire The things most considerable in this is Whether the Treasons at Common-Law are taken away by the Statute of 25 Edw. 3. 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 Iudges they shall not proceed to Iudgment 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 shews 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 Kings 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 inferior 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 the First H. 4. cap. 10. is in these words Whereas in the Parliament held the 21 year of Richard the 2. divers pains 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 Edw. 3. 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 Edw. 3 Therebe two main things which this Statute doth First it takes away for the future all the Treasons made by any Statute since 25 Edw. 3. to the 1 H. 4. even to that time for in respect that by another Act in that Parliament the Statute of 21 Rich. 2. was repealed it will not be denyed but that this Statute repeals more Treasons than these of the 21 R. 2. It repeals all Statute-Treasons but those in 25 Edw. 3. Secondly It not only takes away the Statute-Treasons but likewise the declared Treasons in Parliament after the 25th of Edw. 3. as to the future after Declaration in Parliament the inferior Courts might judge these Treasons for the Declaration of a Treason in Parliament after it was made was sent to the inferior Courts that toties quotîes 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. 3. it leaves that entire and upon the old bottom The Statute of 1 Queen M. cap. 1. saith That no offences made Treason 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. 3. Concerning Treason or the Declaration of Treason and no others And further provides That no pains of death penalties or forfeiture in any wise shall ensue for committing any Treason other than such as be in the Statute of 25 Edw. 3. 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 Treason by Act of Parliament they restrain not to the Treasons only particularly mentioned in the Statute in the 25th Edw. 3. 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 Treasons if it intend only the punishment of Treason or if it intend both Treason and Punishment yet all is referred to the Provision and Ordinance of 25 Edw. 3. any Act of Parliament or other Declaration or thing notwithstanding It saith not other then such Penalties or Treasons as are expressed and declared in the Statute of 25 Edw. 3. 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
to the King and Commons and that they would take nothing but what they paid for punished all theft with death here 's no intendment against the Person of the King The intent was to establish the Laws of Villanage and Servitude to burn all the Records to kill the Judges This in the Parliament of the 5th year of R. 2. No. 31 32. the First Part is declared to be Treason against the King and against the Law In the 11th year of R. 2. 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 I mo Mary Cap. 12. Enacts That if 12 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 Elizabeths time Grant and divers Apprentices of London to the number of 200. rose and assembled at Tower-hill carried 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 prizes 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 Traitors Afterwards in that Queens 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. 1. during the Queens 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 upon private interest and claim of right of Common it had not been Treason but this was to throw in all Inclosures through the Kingdom whereunto 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 Talbots Case before cited in the Seventeenth year of R. 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 Eighth year of Hen. VIII William Bell and Thomas Lacy in Com. Kanc. conspired with Thomas Cheyney called the Hermite of the Queen of Faries to overthrow the Law and Customs of the Realm and for the effecting of it they with Two hundred more met together and concluded upon a course of raising greater Forces in the County of Kent and the adjacent Shires This adjudged Treason these were open 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 Majesties 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 Bridgewater 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. 3. before-mentioned of marching openly or secretly But my Lords these of Cambridge and Bridgewater they were of the conspiracy with the Villains as appears in the Parliament-Roll of the First year of Rich. the 2. Numb 311. and 32. where the Towns of Cambridge and Bridgewater are expresly 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
at Plough in the Parish of Ofley in the County of Hertford Bernard asked Balshal what news he told him that the news was That King Richard the Second 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 the Third year of Hen. 4th in the Kings 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 joyned 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 upon 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 Elizabeths time practised with Foreigners to levy War within this Kingdom nothing done in persuance 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 Hillary 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 Kingdoms 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 Lawes wherein His Majesties 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 hostis patriae he would have made the Father of it so to 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 E. 3. 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 Kings Death will appear to your Lordships by some Cases of Attainders upon these words One Owen in K. Iames His time in the 13 th year of His Reign at Sandwich in Kent spake these words That K. Iames being Excommunicated by the Pope may be killed 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 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 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 onely 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 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 Crown and plots the means of setting it upon anothers 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. 7. in these of Burton and in the Duke of Norfolkes Case 13 Eliz. This is a compassing of His Death for there can no more be two Kings in one Kingdom then 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 Iohn Sparhauk in King Henry the Fourth's time meeting too 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 Indulgencies to all that could assist the Earles 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-Terme in the third year of Henry the Fourth in the Kings Bench Rot. 12. this adjudged Treason this denying the Title with Motives though not implyedly of Action against it adjudged Treason this is a compassing the Kings death How this was a compassing of the Kings 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
probable Grounds we are accountable only for our industry or remisness but in judgment We are deeply responsible to God Almighty for it's Rectitude or Obliquity in Cases of Life the Judge is God's Steward of the Parties blood and must give a strict account for every drop But as I told you Mr. Speaker I will not insist long upon the Ground of Difference in me now from what I was formerly The truth on 't is Sir the same Ground whereupon I with the rest of the Five to whom you first committed the Consideration of my Lord Strafford brought down our Opinion That it was fit he should be Accused of Treason upon the same Ground I was engaged with earnestness in his Prosecution and had the same Ground remained in that force of belief with me which till very lately it did I should not have been tender in his Condemnation But truly Sir to deal plainly with you that Ground of our Accusation That Spur to our Prosecution and that which should be the basis of my judgment of the Earl of Strafford as unto Treason is to my understanding quite vanisht away This it was Mr. Speaker His Advising the King to employ the Army of Ireland to reduce England This I was assured would be proved before I gave my consent to his Accusation I was confirmed in the same belief during the Prosecution and fortified in it most of all since Sir Henry Vane's preparatory Examination by the assurances which that worthy Member Mr. Pym gave me that his Testimony would be made convincing by some Notes of what passed at that Iunto concurrent with it which I ever understanding to be of some other Councellor you see now prove but a Copy of the same Secretaries Notes discovered and produc'd in the manner you have heard and those such disjoynted Fragments of the Venemous part of Discourses no Results no Conclusions of Counsels which are the only things that Secretaries should Register there being no use at all of the other but to Accuse and to bring men into danger But Sir this is not that which overthrows the Evidence with me concerning the Army of Ireland nor yet that all the rest of the Iunto upon their Oaths remember nothing of it But this Sir which I shall tell you is that which works with me under favour to an utter overthrow of his Evidence as unto that of the Army of Ireland before whilst I was a Prosecutor and under tie of Secrecy I might not discover any weakness of the Cause which now as a Judge I must Mr. Secretary was examined thrice upon Oath at the preparatory Committee The first time he was questioned to all the Interrogatories and to that part of the Seventh which concerns the Army of Ireland He said positively in these words I cannot Charge him with that But for the rest he desires time to recollect himself which was granted him Some days after he was Examined a second time and then deposes these words concerning the King's being Absolved from Rules of Government and so forth very clearly But being prest to that part concerning the Irish Army He said again I can say nothing to that Here we thought we had done with him till divers weeks after my Lord of Northumberland and all others of the Iunto denying to have heard any thing concerning those words Of reducing England by the Irish Army It was thought fit to Examine the Secretary once more and then he deposes these words to have been said by the Earl of Strafford to His Majesty You have an Army in Ireland which you may Imploy here to reduce or some word to that sense this Kingdom Mr. Speaker these are the Circumstances which I confess with my Conscience thrust quite out of doors that Grand Article of our Charge concerning his desperate Advice to the King of Employing the Irish Army here Let not this I beseech you be driven to an Aspersion upon Mr. Secretary as if he should have Sworn otherwise than he knew or believed he is too worthy to do that only let thus much be inferred from it that he who twice upon Oath with time of recollection could not remember any thing of such a business might well a third time mis-remember somewhat in this business the difference of one letter here for there or that for this quite alters the Case the latter also being more probable since it is confest of all hands that the Debate then was concerning a War with Scotland and you may remember that at the Bar he once said To employ there And thus Mr. Speaker I have faithfully given you an account what it is that hath blunted the edge of the Hatchet or Bill with me towards my Lord of Strafford This was that whereupon I Accused him with a free heart Prosecuted him with earnestness and had it to my understanding been proved should have condemned him with Innocence Whereas now I cannot satisfie my Conscience to do it I profess I can have no notion of any bodies intent to subvert the Laws Treasonably or by force and this design of Force not appearing all his other wicked Practises cannot amount so high with me I can find a more easie and more natural Spring from whence to derive all his other Crimes than from an intent to bring in Tyranny and to make his own Posterity as well as Us Slaves as from Revenge from Pride from Avarice from Passion and Insolence of Nature But had this of the Irish Army been proved it would have diffused a Complexion of Treason over all it would have been a Withe indeed to bind all those other scattered and lesser branches as it were into a Faggot of Treason I do not say but the rest may represent him a man as worthy to die but perhaps worthier than many a Traytor I do not say but they may justly direct Us to Enact That they shall be Treason for the future But God keep me from giving Judgment of Death on any man and of Ruine to his innocent Posterity upon a Law made a Posteriori Let the Mark be set on the door where the Plague is and then let him that will enter die I know Mr. Speaker there is in Parliament a double Power of Life and Death by Bill a Judicial Power and a Legislative the measure of the one is what 's legally just of the other what is Prudentially and Politickly fit for the good and preservation of the whole But these two under favour are not to be confounded in Judgment We must not piece up want of legality with matter of convenience not the defailance of prudential fitness with a pretence of legal Justice To Condemn my Lord of Strafford Judicially as for Treason my Conscience is not assured that the matter will bear it And I do it by the Legislative Power my reason consultively cannot agree to that since I am perswaded neither the Lords nor the King will pass the Bill and consequently that Our passing it will be
and affirmed That he would dye before he would give the Deputy and General occasion to give him such a Rebuke Fifthly That for the nature of the offence It was conceived to contain a Calumny to the Lord Deputy and General insinuating the affront pretended in these words of my Lord Mountnorris's to be given to the said Kinsman and an Incitement to Revenge and that if the words had been spoken of the Person of the King it had amounted to High Treason which by some rules of Proportion might be applyed to His Deputy Sixthly That the words were spoken when the Lord Deputy had the Honour to be Apparelled with his own Robes of Majesty and Soveraignty when part of the Army was in motion and the Lord Deputy and General present Seventhly That the words were adjudged an apparent breach of the 21st Article of the Printed Orders and Laws for War dated the 13th of March 1633. whereby it is Ordered that no man shall give any disgraceful words of any person in the Army upon pain of Imprisonment publick Disarming c. And also of the 13th Article That no man-shall offer Violence or Contempt to his Commander or do any act or speak any words to breed mutiny in the Army or Impeach the obeying of the principal Officer upon pain of death Eighthly That according to the said Articles the Counsel do unanimously with one joynt consent not one of us of another Opinion adjudge the said Lord Mountnorris for his high and great Offence to be Imprisoned to stand from henceforth deprived of all his Places and Entertainments due which he holds in the Army To be Disarmed to be banished the Army and disabled from ever bearing Office And lastly to be Shot to death or lose his Head at the pleasure of the General Given at His Majesties Castle at Dublin December 12. 1635. Valentia Cromwell This Sentence of Death against a Peer was pronounced by Martial Law against the fundamental Rules of Law without Trial Answer or Hearing That though my Lord of Strafford owns it not yet he made relation of the Injury to His Majesty His Majesty did justly direct that my Lord of Strafford should have just reparation That my Lord of Strafford produceth the Witnesses refused to let my Lord Mountnorris Answer though he demanded the benefit of the Law owns it in his own Person for he said treading on our Foot and an Injury done to us And whereas some would have mitigated it and found him guilty of the first Article He himself pronounceth it both or none The whole proceeding was but half an hour no notice was given before-hand and my Lord Mountnorris checked for desiring to cross-examine My Lord Mountnorris produced as a Witness some Exceptions were taken against him by my Lord of Strafford but were over-ruled His Lordship being Sworn and being directed to declare the whole truth in this business Answered as followeth Upon the 11th of December 1635. I was warned by a Pursevant late at Evening to attend my Lord Deputy in the Council-Chamber at a Council of War next morning by Eight of the Clock Coming thither accordingly I found many of the Council and Captains of the Army and having conferred with several of the chief of them and with my Lord Valentia Cromwell and others they said they knew not for what that Council of War was summoned after a whiles stay my Lord Deputy came into the Room and sat down at the Boards end and commanded the rest to sit down where my self that had the Honour to be His Majesties Vice-Treasurer by His Grace and Goodness sate in my place After all were set my Lord Deputy exprest he had called that Court to do himself Right and Reparation against my Lord Mountnorris At those words I rose up from my place and humbly presented my self at the Boards end as the manner is near his Lordship who making some Speech about words uttered by me shortly after the preceding Parliament which was April 18. 1635. and the words spoken within three or four days after took a Paper in his hand and out of that read the words wherewith he charged me to the effect I conceive as they are mentioned in the Sentence After his Lordship had read them he demanded of me whether I would confess them or deny them I did humbly desire I might have the Charge in writing that I might Answer it by advice of Learned Counsel the words being charged to be spoken long before and it was hard to Answer them suddenly His Lordship Answered That was not the course of a Martial Court I must Answer directly I did several times desire I might have the Charge in writing and my Lord of Strafford answered in the same kind That I must Answer whether I would confess or deny them Two or Three of the Counsel of War spoke something also to that purpose as I remember the Lord Cromwell for one and Sir Ch. Coote and Sir Iohn Burlacy who intimated that the manner was I must confess them or deny them Standing a while silent my Lord Deputy said He thought they must proceed against me as a Mute for he will not Answer and therefore they must take them for granted I said over again what I had said before and desired I might have my Charge in writing and that I might have Advice of Counsel that I might be used as a Peer of the Realm and an Officer of the Crown and still his Lordship denied That must not be It was not the Order of a Martial Court I replyed and told the Lord Deputy I had seen it otherwise in a Martial Court in England between my Lord Reas and Ramzie where the Cause was debated by the Advocates in writing The Lord Deputy told me again That must not be I must Answer directly and hereupon the Lord Deputy caused His Majesties Letter dated the last of Iuly to be read and when that was read required me to make Answer I confess I was amazed at hearing of this Letter and was much grieved and with Humility and Grief expressed on my Knees what Sorrow it had wrought on me and that I had never willingly Offended His Majesty or His Laws And declared that I had been mis-represented to His Majesty and those Letters were got by mis-information and humbly desired a Copy of those Letters and the Charge that I might Answer by writing and that His Majesty might know my Answer before further Proceedings His Lordship upon that rebuked me with worse Language than was fit to be used to a meaner man and not a Peer that desired but Law and Justice The Lord Deputy told me I was not mis-represented to His Majesty for himself had represented me and that matter to His Majesty and he did not use to mis-represent any thing And then directly required me whether I would confess them or deny them If not he would prove them on Oath and thereupon my Lord Deputy called for my Lord Moore sitting
Pattern from my Lord Faulkland my Lord Grandison and my Lord Chichester and he did it by the Power he had the Honour to hold under His Majesty as General That yet he used them so sparingly that neither in that time nor in the Government of Munster in which he had as large Authority as ever any man had he never did condemn a man to death in peaceable times and that the Authority hath been good That Martial-Law is so frequent and ordinary in Ireland that it is not to be denied and so little offensive there that the Common Law takes no exception at it That he hath lived to see three or four Parliaments there and they never complained of it And to Govern an Army without Martial-Law is impossible for occasions in an Army rise on a suddain and something must be done on a suddain for example-sake to others That Martial-Law was certainly in Ireland ever since he remembers and long before but it hath been used so sparingly that in the time of Peace for his part he did never know any executed in his time Being asked on the Lord Strafford's Motion Whether he hath known Sir Charles Coote as Provost-Martial of Conaught and Sir Iohn Bower Provost-Marshall of Leimster in time of Peace execute divers Persons Rebels and others by Martial-Law He Answered For Sir Charles Coote he can very well answer though he had Authority yet it is out of his memory that he ever executed any And for Sir Iohn Bower he dwelleth remote from him that the said Sir Iohn Bower hath Authority and so have many other Presidents Marshalls of the Army Provost-Marshalls of every Province and upon great Reasons for it for though they be Inferior men yet the intent of their Commission is but to prosecute those men that cannot be had into the Law that is Rebels and Fugitives and those men he hath heard have been hanged Whence my Lord of Strafford inferred That he had done nothing de Novo That Provost-Marshalls have been always appointed and executed those Places under the General for the time being The Committee admitted that there be four Provost-Marshalls but deny that they exercise Marshall-Law That those Provost-Marshalls have executed divers men to death by Marshall-Law Rebels and Traytors I desire to produce an Order of my Lord of Faulkland's taken from his Book of Entries but being not proved nor written with my Lord Faulkland's own hand the reading of it was not admitted but left to their Lordships Consideration To prove the Practise of the Provost-Marshalls Sir Adam Loftus being asked concerning the Provost-Marshalls executing of Marshall-Law before my Lord of Strafford's time and on what men He Answered That it is most apparent in all times since he can remember Martial-Law hath been executed that 's undoubted But it was on Rebels and Out-Laws and he hath known no other but such executed by Martial-Law Lord Robert Dillon being asked to the same purpose Answered He hath heard the Provost-Marshals have taken and hanged men by Martial-Law in time of Peace since the beginning of King Iames his Reign that of Rebels and Out-Laws there is no question My Lord of Strafford desired to compare his Orders with those of my Lord of Wilmotts And they were compared accordingly in divers Articles His Lordship produced a Copy of His Majesties Letter attested to be a true Copy by Charles Gibson Which was read being the Letter recited in the Sentence of my Lord Mountnorris I observe That the Sentence of my Lord Mountnorris takes notice that the Army was part of it in motion and divers Companies daily exercised and that my self was for the most part there present which shews the truth of my Answer to that Point in part To free my self from the said Sentence I desire a Letter from my self and Council of War to Secretary Cook 13. December immediately after the Sentence may be read to shew that I was a Suitor to the King in my Lord Mountnorris's behalf But being after the Sentence and written by himself and the Council of War for extenuating of the Fact the reading of it was over-ruled I conceive my Lord Renula and Lord Dillon made it appear that I declined giving Judgment in the Sentence But for further proof Sir Robert Farrer was asked Whether my Lord of Strafford did not declare he would be no Judge nor give Opinion in that Cause and whether he sate bare He Answered That he was present at the Sentence and heard my Lord of Strafford say that he would give no Judgment nor have to do with the business concerning my Lord Mountnorris and he sate a good time with his hat off Being asked on one of the Committees motion touching his pressing of both the Articles He said He acknowledged my Lord did require Judgment on both Articles and yet sate silent at the time they were upon the Sentence Being asked Whether my Lord of Strafford did not desire them to regard him no more than an ordinary Officer and do no otherwise than in reason and judgment they should think fit He Answered My Lord of Strafford said these very words That they should not look upon him but go to the Cause according to their Opinion directly And being asked Whether my Lord Mountnorris was a Captain of the Army He Answered Yes and the Council did admit it Sir George Wentworth being asked to the same purpose as Sir Robert Farrer He Answered He was present at the Sentence and heard my Lord of Stafford say publickly He did not sit there as a Judge and that he would give no Vote in it Being asked Whether my Lord of Stafford did not tell Sir George Wentworth that he should give no Vote in it because he was his Lordships Brother He Answered Yes and he gave no Judgment upon that reason that my Lord of Strafford did publickly bid them all look on him as a private man and sate by as a Suitor not as a Judge and put off his hat at the beginning to speak and sate uncovered all the while till Sentence was pronounced To shew that my Lord Mountnorris was enlarged by me presently after I here produce the Warrant Dated 18. December though indeed he was released 15. December The denial of my Lord Mountnorris to examine Witnesses was by my Lord Cromwell Sir Charles Coote Sir Iohn Burlacy not by me I sitting by as a private party For this I refer to my Lord Mountnorris's own Deposition and my Lord Renula's To prove it further Sir Robert Farrer was asked touching the denying of further time and Council He Answered He cannot tell who denied him he remembers my Lord Cromwell spake something but knows not whether to that effect Sir Robert Farrer being asked on one of the Managers Motion Whether before their coming together they did know the occasion of their meeting He Answered He did not he was warned to attend and did not know the business till he came thither I did never
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 Kings 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 onely that it is Treason but what is sufficient Evidence to make this good Upon a Commission held the 18th year of Ed. 4. in Kent before the Marquess of Dorset and others an Indictment was preferred against Iohn Awater of High Treason in the Forme 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 Kings Bench in Trinity-Terme in the Eighteenth year of Edward the Fourth and in Easter-Terme the Two and twentieth of Edward the Fourth he was outlawed by the stay of the outlawry so long as it seemes 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 Archbishop of Canterbury being Cardinal of England would immediately lose his head This Indictment was returned into the Kings Bench in Trinity-Terme in the 18th year of Edward the 4th 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 onely words by private persons and in a more private manner but once spoken and no more onely amongst the People to excite them against the King My Lords here are Words Counsels more then Words and Actions too not onely 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 Counsellor ofState a Lord Lieutenant a Lord-President a Lord-Deputy of Ireland 1. To His Majesty that the Parliament had denyed 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 Coales 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 the Country being met together for Justice at the Open Assises 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 Loynes of the Law as they shall find My Lords Who speaks this to the people a Privy-Counsellor 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 Regal 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 Suites 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 Majesties Subjects procured Judgment 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 Majesties 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
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 vitae necis Nay he well knew that he offended the Promulged and Ordinary Rules of Law Crimes against Law have been Proved have been Confessed so that the Question is not De culpa sed de poena What degree of Punishment those Faults deserve We must differ from him in Opinion That twenty Felonies cannot make a Treason if it be meant of equallity 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 Iohn Hall in the Parliament of the 1 H. 4. who for a Barbarous Murder committed upon the Duke of Glocester Stifling him between two Feather-Beds at Calice was Adjudged to be Hanged Drawn and Quartered Batteries by Law are only punishable by Fine and single Damages to the Party Wounded In the Parliament held in 1 H. 4. Cap. 6. one Savage committed a Battery upon one Chedder Servant to Sir Iohn 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 considered it concerned the Common-Wealth it was a Battery with Breach of Priviledge of Parliament This made a perpetual Act no warning to the first Offender and in the Kings Bench as appears by the Book-Case of 9 H. 4. 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 Common-wealth 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 then your worthy Ancestors My Lords this Appeal from your selves to your Ancestors we do admit of although we do not admit of that from your Lordships to the Peers of Ireland He hath appealed to them your Lordships will be pleased to hear what Judgment they have already given in the case that is the several Attainders of Treason in Parliament after the Statute of 25 E. 3. for Treasons not mentioned nor within that Statute and those upon the first Offenders without warning given By the Statute of 25 E. 3. it 's Treason to levy War against the King Gomines and Weston afterwards in Parliament in the 1 R. 2. 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 25th E. 3. My Lords In the 3 d of Rich. 2d. Iohn Imperiall that came into England upon Letters of Safe Conduct as an Agent for the State of Genoa sitting in the evening before his door in Breadstreet as the words of the Records are Paulo ante ignitegium Iohn Kirkby and another Citizen coming that way Casually Kirkby troad 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 E. 3. 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 E. 3. but it concerns the Honor of the Nation that the Publick Faith should be strictly kept It might endanger the Traffique of the Kingdom they made not a Law first they made the first man an Example this is in the Parliament-Roll 3 R. 2. Number 18. and Hillary Terme 3 R. 2. Rot. 31. in the Kings-Bench where Judgment is given against him In 11 R. 2. Tresilian and some others attainted of Treason for delivering Opinions in the Subversion of the Law and some others for plotting the like My Lords the Case hath upon another occasion been opened to your Lordships only this is observable that in the Parliament of the first year of Henry the Third where all Treasons are again reduced to the Statute of 25 E. 3. These Attainders were by a particular Act confirmed and made good that the memory thereof might 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 1 H. 4. Sir Iohn Mortimer being committed to the Tower upon suspition 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 second year of Henry the Sixth 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 Kitchin of the Bishop of Rochester whereof two persons dyed he 's Attainted of Treason and it was Enacted that he should be Boyled to Death by the Statute of 22 H. 8. c. 9. By the Statute of the 25 H. 8. Elizabeth Barton the Holy Maid of Kent for pretending Revelations from God That God was highly displeased with the King for being Divorced from the Lady Katherine and that in case he persisted in the Separation and should Marry another that he would not continue King not above one Moneth 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 First year of Henry the 4 th and the First of Queen Mary although they were willing to make the Statute of 25 E. 3. the Rule to the Inferiour Courts yet they left the Attainders in Parliament precedent to themselves untoucht wherein the Legislative power had been exercised There 's nothing in them whence it can be gathered but that they intended to leave it as free for the future My Lords In all these Attainders there were Crimes and Offences against the Law they thought it not unjust Circumstances considered to heighten and add to the degrees of punishment and that upon the first Offender My Lords we receive as just the other Lawes
any clear Law guilty of death that I never did bear any touch of Conscience with greater regret which as a sign of my repentance I have often with sorrow confessed both to God and Men as an act of so sinful frailty that it discovered more a fear of man than of God whose Name and Place on Earth no man is worthy to bear who will avoid inconveniencies of State by Acts of so high injustice as no publique convenience can expiate or compensate I see it a bad exchange to wound a mans own conscience thereby to salve State sores to calm the storms of popular discontents by stirring up a Tempest in a mans own bosom Nor hath Gods Justice failed in the event and sad consequences to shew the world the fallacy of that Maxim Better one man perish though unjustly than the people be displeased or destroyed For in all likelyhood I could never have suffered with my people greater calamities yet with greater comfort had I vindicated Straffords innoncency at least by denying to Sign that destructive Bill according to that justice which my Conscience suggested to me then I have done since I gratified some mens unthankful importunities with so cruel a favour and I have observed that those who counsell'd me to Sign that Bill have been so far from receiving the rewards of such ingratiatings with the people that no men have been harassed and crushed more than they he only hath been least vexed by them who counselled me not to consent against the Vote of my own Conscience I hope God hath forgiven me and them the sinful rashness of that business To which being in my Soul so fully conscious those Judgments God hath pleased to send upon me are so much the more welcome as a means I hope which his mercy hath sanctified so to me as to make me repent of that unjust Act for so it was to me and for the future to teach me that the best rule of policy is to preferr the doing of Justice before all enjoyments and the peace of my Conscience before the preservation of my Kingdoms Nor hath any thing more fortified my resolutions against all those violent importunities which since have sought to gain a like consent from me to Acts wherein my Conscience is unsatisfied than the sharp touches I have had for what passed me in my Lord of Straffords business Not that I resolved to have employed him in my affairs against the advice of my Parliament but I would not have had any hand in his death of whose guiltlesness I was better assured than any man living could be Nor were the crimes objected against him so clear as after a long and fair hearing to give convincing satisfaction to the major part of both Houses especially that of the Lords of whom scarce a third part were present when the Bill passed that House And for the House of Commons many Gentlemen disposed enough to diminish my Ld. of Straffords Greatness and Power yet unsatisfied of his Guilt in Law durst not condemn him to dye who for their integrity in their Votes were by posting their Names exposed to the popular Calumny Hatred and Fury which grew then so exorbitant in their clamors for Iustice That is to have both my Self and the Two Houses Vote and do as they would have us that many 't is thought were rather terrified to concur with the condemning party than satisfied that of right they ought so to do And that after Act vacating the Authority of the precedent for future imitation sufficiently tells the world that some remorse touched even his most implacable enemies as knowing he had very hard measure and such as they would be very loath should be repeated to themselves This tenderness and regret I find in my Soul for having had any hand and that very unwillingly God knows in shedding one mans Bloud unjustly though under the colour and formalities of Justice and pretences of avoiding publique mischiefs which may I hope be some Evidence before God and Man to all posterity that I am far from bearing justly the vast Load and Guilt of all that Blood which hath been shed in this unhappy War which some Men will needs charge upon me to ease their own Souls who am and ever shall be more afraid to take away any mans Life unjustly than to lose my own An ACT for Reversing the Earl of Strafford's Attainder WHereas Thomas late Earl of Strafford was impeached of High-Treason upon pretence of endeavouring to subvert the Fundamental Laws and called to a publique and solemn Arraignment and Tryal before the Peers in Parliament where he made a particular Defence to every Article objected against him insomuch that the turbulent party then seeing no hopes to effect their unjust Designs by any ordinary way and method of proceedings did at last resolve to attempt the Destruction and Attainder of the said Earl by an Art of Parliament to be therefore purposely made to condemn him upon accumulative Treason none of the pretended crimes being Treason apart and so could not be in the whole if they had been proved as they were not and also adjudged him guilty of Constructive Treason that is of Levying War against the King though it was only the Commanding an Order of the Council-Board in Ireland to be executed by a Sergeant at Arms and three or four Soldiers which was the constant practice of the Deputies there for a long time To the which end they having first presented a Bill for this intent to the House of Commons and finding there more opposition than they expected they caused a multitude of tumultuous persons to come down to Westminster armed with Swords and Staves and to fill both the Palace-yards and all the approaches to both Houses of Parliament with Fury and Clamor and to require Justice speedy Justice against the Earl of Strafford and having by those and other undue practices obtained that Bill to pass the House of Commons they caused the Names of those resolute Gentlemen who in a Case of innocent Blood had freely discharged their Consciences being Fifty nine to be posted up in several places about the Citys of London and Westminster and stiled them Straffordians and Enemies to their Countrey hoping thereby to deliver them up to the fury of the People whom they had endeavoured to incense against them and then procured the said Bill to be sent up to the House of Peers where it having some time rested under great deliberation at last in a time when a great part of the Peers were absent by reason of the tumults and many of those who were present protested a gainst it the said Bill passed the House of Peers and at length His Majesty the late King CHARLES the I. of Glorious Memory granted a Commission for giving His Royal Assent thereunto which nevertheless was done by His said Majesty with exceeding great sorrow then and ever remembred by him with unexpressible grief of Heart and out of His Majestys
great Piety he did publiquely express it when His own Sacred Life was taken away by the most detestable Traytors that ever were For all which Causes be it Declared and Enacted by the Kings most Excellent Majesty by and with the Advice and Consent of the Lords Spiritual and Temporal and Commons in this present Parliament Assembled That the Act Entituled An Act for the Attainder of Thomas Earl of Strafford of High Treason and all and every Clause and Article and thing therein contained being obtained as aforesaid is now hereby Repealed Revoked and Reversed And to the end that Right be done to the memory of the deceased Earl of Strafford aforesaid Be it further Enacted That all Records and Proceedings of Parliament relating to the said Attainder be wholly Cancell'd and taken off the File or otherwise Defaced and Obliterated to the intent the same may not be visible in after ages or brought into example to the prejudice of any person whatsoever Provided That this Act shall not extend to the future questioning of any person or persons however concerned in this business or who had any hand in the tumults or disorderly procuring the Act aforesaid Any thing herein contained to the contrary thereof notwithstanding THE TABLE A. ABstract of the Earls Answer to the 28 Articles Pa. 22. to 30 Account Introductive of several Passages previous to the Tryal of Thomas Earl of Strafford p. 1. Accusation of High Treason of Thomas Earl of Strafford p. 3. Accusation of Sir George Ratcliffe p. 4. Act of Attainder at large 756. Mr. St. Johns Argument of Law concerning the same 675. to 705. It is read a Second time 47. Lord Digby's Speech to that Bill 50. Exceptions taken thereat by some Members 55 Act of Attainder as also the Act for continuance of this present Parliament past the Lords 755 A Message to the Lords to send to His Majesty for His consent to the Bill of Attainder and the continuance of this present Parliament 755. Act of Reversal of this Bill of Attainder 778 Adjournment of the Commons upon the Kings Speech May 1. 735. Answer of the Earl read containing 200 sheets of Paper 22. Army in Ireland new levied to be disbanded 18 and 42 Eight Articles against the Earl in maintainance of his Accusation 8 9. Articles of High Treason voted against Sir George Ratcliffe 17. Twenty eight Articles against the Earl sent up to the Lords 20. They are at large inserted 61. Article II. read charging the Earl with words saying The Kings little finger should be heavier than the loins of the Law c. 149. Names of Witnesses their Evidence Exception taken Interlocutory Passages Defence and Reply as to that Article 149 to 155. Artice III. read charging him with words saying That Ireland was a conquered Nation that the King might do with it as he pleased 155 Names of Witnesses their Evidence Exception taken Interlocutory passages Defence and Reply as to that Article 156 to 172 Artic. IV. read charging him with words that he would make all Ireland know That any Act of State there made should be as binding as an Act of Parliament 173. Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Article 174 to 185. Article V. read charging him that he did procure to be given against the Lord Mountnorris sentence of death in a Council of War 186 and the sentence read 187. Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Article 188 to 204. Article VI. read charging him with putting the Lord Mountnorris out of possession of his Freehold upon a Paper-Petition 205. Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Aticle 205 to 213. Article VIII read Charging him with causing the Lord Loftus Lord Chancellor of Ireland to be close prisoner 221. Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Article 222 to 235. Article IX read Charging him with assuming a Power above Law to give a general Warrant to the Bishops Officers to Arrest the Body of such as do not obey Ecclesiastical Decrees Sentences c. and to commit them and a Copy produced 236 237. Passages Interlocutory Defence and Reply 238 to 240. Article X. read Wherein he is charged with procuring the Customs to be Farmed to his own use and did procure the Native Commodities of Ireland to be rated in the Book of Rates for the Customs 241 The Case stated by Mr. Maynard 242 Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Article 243 to 250 Article XI Agreed for the present to be laid aside 252 Article XII read Charging him with making a Monopoly of Tobacco getting the whole Trade into his hands 401 Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Article 402 to 412 Article XIII read Charging him with getting great quantities of Flax into his hands enjoyning the working thereof into Yarn and Thread c. 416 Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Article 416 to 428 Article XIV Laid aside for the present 425 Article XV. read Charging the Earl with imposing great sums of Money upon people without Warrant or colour of Law and causing the same to be levied by Troops of Soldiers 426 The Charge opened by Mr. Geoffrey Palmer 427 Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Article 427 to 454 c. Article XVI read charging him with putting forth a Proclamation commanding the Nobility c. not to depart that Kingdom without his Licence 460 The Article opened by Mr. Palmer who proceeded to manage the Evidence 461 Names of Witnesses their Evidence Exceptions taken Interlocutory passages Defence and Reply as to that Article 462 to 481 Interlocutory passages after the Reply 484 to 487 Article XIX read Charging him that he did with his own Authority contrive and frame a new and universal Oath against the Scots in Ireland 489 The Article opened by Mr. Whitlock 490 The Oath tendred to the Scots read 494 Names of Witnesses their Evidence Exceptions taken Interlocutory passages and Defence 494 to 498 More Interlocutory passages 499 to 502 The Oath tendred to some of the Scotch Nation refident in England 503 The Reply to the Earls Defence 508 Article XX. read Charging him with endeavouring to perswade and provoke His Majesty to an Offensive War against His Subjects of Scotland c. 515 Article XXI read Charging him with compelling His Majesty to call a Parliament in England with design to break the same and by Force and Power to raise Money 516 Article XXII read Charging him to have procured the Parliament in Ireland to declare their assistance in a War against the Scots and to raise an Army of 8000 Foot and 1000 Horse
Westminster-Hall during the Trial 41 King 's little finger heavier than the loins of the Law see Art 2. 149 King's Letter on behalf of the Earl 757 Sir Robert King a Member of Parliament in Ireland sent for as a Witness against the Earl 4. L. LEtter to Sir Jacob Ashley and Sir John Conyers to prevent a Design to engage the Army against the Parliament 745 Letter from the King to moderate the severity of the Law against the Earl 755 Letter from the Earl to his Secretary Slingsby before his death 774 Loftus Lord Chancellor made a close prisoner see Art 8. 221 Twelve Lords send to His Majesty to shew favour to his innocent Children 758 M. MAriners a Bill to be drawn to enable the pressing of them 755 Members of Parliament in Ireland sent for by the Commons 4 5 6. A Committee touching the Examination of Members of both Houses named 14 15 16 Members make a protestation of Secresie 16 Four Members viz. Mr. Selden Palmer Maynard and Whitlock added to the Committee for the Earl who made their Protestation of Secresie 32 Members appointed to view the place of Trials 39 Members desired by the Earls Petition to be heard as Witnesses 40 Some Members of the Lords House desired by the Commons to be made use of as Witnesses 44 Members names of the House of Commons whom the House desires to be present at the Trial as Witnesses 44 Message from the Lords for a Conference by a Committee of Thirty of their House with a proportionable number of this House touching the examination of Members c. 10 Message to the Lords about disbanding the new levied Irish Army 42 Message to the Lords to appoint a day for the Earl to conclude his Trial 44 Both Houses agree that if the Earl come not to morrow the House of Commons may sum up their Evidence and conclude 45 Message to acquaint the Lords that the Proceedings by Bill stand in no way of opposition to what hath been already done 48 Moneys without Parliament to be raised by force see Art 21. 516 Monopoly made of Tobacco see Art 12. 402 Sir Walter Montague Sir Toby Mathews c. to be removed from Court 42 Lord Montnorris his Case of Ireland to be reported by the Committee Montnorris sentence of death pronounced against him see Art 5. 186 Sentence read 187 Concerning his being put out of possession of his Freehold see Art 6. 205 Multitudes of people assembled in Westminster 742 Petition from them desiring Iustice against the Earl communicated to the Commons ibid. They depart upon the Lords taking the Protestation 742 N. LYsimachus Nicanor his scandalous Pamphlet Printed 770 Earl of Northumberland made General of the Royal Army in England upon whose sickness the Earl of Strafford was made Lieutenant-General Anno 1640. 769 Earl of Northumberland communicates Mr. Percies Letter to the Peers 748 Earl of Northumberland Lord High Admiral of England 769 O. OAth contrived against the Scots in Ireland see Art 19. 489 The like to the Scots in England 503 Offensive War against the Scots urged by the Earl see Art 20. 515 A Troop of Reformed Officers to be disbanded 15 Officers c. Warrant to them see Art 9. 236 P. PAper posted up at Sir William Brunkards House in the Old Palace-yard declaring the names of many persons to be enemies of Iustice 59 Parliament in Ireland declare against the Scots see Art 22. 517 People assemble in multitudes at Westminster 742 Petitions Orders and Books of Entries of Impositions c. sent for out of Ireland 8 Petitions and Complaints of proceedings in Ireland reported 10 Petition of the Parliament of Ireland to the King read 15 Petition of the Earl to examine some Members of this House read 40 Two Petitions of the Citizens of London read 55 One of them concerning Grievances inserted 56 Petition from a multitude of people at Westminster desiring Iustice against the Earl communicated to the Commons 742 A discovery in the Petition of Soldiers to be brought into the Tower ibid. Father Philips's Letter to Mr. Walter Montague read 751 He is called to the Bar and is impeached 752 Mr. Piercy's Letter concerning the Plot 748 to 750 Mr Piercy and Sir John Suckling voted to be guilty of High Treason 754 Plot discovered in England 735 Upon which the House resolves on a Protestation ibid. Preamble thereunto ibid. The Protestation read 736 Names of the Protestors 736 to 740 The Plot still suspected to be carried on 740 Ports in Ireland to be open 46 1500 Barrels of Powder gone to Portsmouth to be stayed 740 Lord Primate of Ireland his Examination debated 44 Proceedings by way of Bill no way in opposition to what hath been already done 48 Proclamation to issue out against Sir George Ratcliffe if he appear not at the day limited 16 Proclamation by the Earl commanding the Nobility to reside in Ireland see Art 16. 460. Protestation of Secresie taken by the Members 16 The same taken by the four Members added to the Committee for the Earl 32 Protestation of the Lords denying that they did approve of the Earls raising Money in Yorkshire 37 38 Protestation resolved on by the House upon the discovery of the Plot in England 735 Carried up to the Lords to take the same 741 Mr. Hollis's Speech to the Lords to promote the taking thereof 742 The Protestation taken by the Lords and the multitude depart ibid. Q. THe Queen came to her private Closet in Westminster-Hall during the Trial 41 Queen-Mother apprehending her self in danger of the Multitude Mr. Martyn moved the House that she may depart the Kingdom 758 R. LOrd Ranelaghs debate about his Examination 174 Not to be examined 175 Sir George Ratcliffe not to speak with or write to the Earl of Strafford 15 A Proclamation to issue out against him if he appear not at the day limited 16 Articles of High-Treason voted against him 17 Records of Attainder a Committee appointed to search those Cases in the Kings-Bench 7 Reformado-Officers to be disbanded 15 Remonstrance of Ireland reported by Mr. Whistler 7 Remonstrance of the House of Commons in Ireland read 11 12 13 114. No Replication to be put in to the Earls Answer 32 Strafford A Committee of Irish Affairs of the whole House designed in order to his Accusation 1 He is in a great Dilemma in the North 2 His intended Impeachment of some Members disappointed ibid. He is accused of High-Treason 3 Sequestred from the Parliament and Committed to the Black Rod ibid. Examination of Witnesses to be taken previous to his Tryal in the presence of some of the Commons 6 Records of Attainder in the Kings Bench to be search'd in order to a Bill of Attainder 7 Irish Remonstrance reported which reflected on his proceedings in Ireland 7 and 10 Petitions Orders and Books of Proceedings upon Paper-Petitions and of Entries relating to the Custom-House in Ireland sent for 7 8 Articles in maintainance of the Accusation of the said Earl 8