away by the Statute of 25. E. 3. 1. H. 4. or 1. Q. M. or any of them My Lord to say they be taken away by the Stat. of 25. E. 3. is to speak against 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 be declared in Parliament whether it ought to be adjudged treason or not These words and the whole scope of that Statute shewes that it was not the meaning to take away any treasons that were so before but only to regulate the jurisdiction and manner of triall Those that were single and certaine Acts as conspiring the Kings death levying war counterfeiting the money or great Seale 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 unfit to give inferiour Courts so great a latitude here as too dangerous to the subject those they strained to Parliaments This statute was the security of the subject made with such wisedome as all the succeeding ages have approved it It hath often passed through the furnace 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 2. divers pains 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 been said to what end is this statute made if it takes not away the common Law treasons remaining after the statute of 25. Edward 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. E. 3. to 1. H. 4. even to that time For in respect that by another Act in that Parliament the statute of 21. R. 2. was repealed it will not be denied but that this statute repeals more treasons then these of 21. R. 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 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 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 refers 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 be treason but onely as be declared and expressed to be 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 penalty 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 referre still to offences made treason by Act of Parliament they restrain not to the treasons onely particularly mentioned in the statute of 25. E. 3. but leaue that statute entire as to the Common-law treason as appears by the words immediatly foregoing By the second part for the pains and forfeitures of treasons if it intend onely the punishment of treason or if it intend both treason and punishment yet all is referred to the provision and ordinance of 25. E. 3. any Act of Parliament or other declaration or thing notwithstanding It saith not other then such penalties or treasons as are expressed and declared in the statute of 25. E. 3. that might perhaps have restrained it to those that are particularly mentioned No it 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 askt what good this statute doth if it take not away the the Common-law treasons 1. It takes away all the treasons made by Act of Parliament not only since the first of H. 4. which were many but all before 1. H. 4. even untill 25. E. 3. by expresse words 2. By expresse words it takes away all declared treasons if any such had been made in Parliament these for the future are likewise taken away so that whereas it might have been doubted whether the statute of 1. H. 4. took away any treasons but those of 21. and 22. R. 2. this clears it both for treasons made by Parliament or declared in Parliament even to the time of taking the statute This is of great use of great security to the subject so that as to to what shall be treason and what not the statute of 25. E. 3. remains entire and so by consequence the treasons at the Common Law Only my Lords it may be doubted whether the manner of the manner of the Parliamentary proteedings be not altered by the statute of 1. Hen. 4. the 17. cap. and more fully in the Parliament roll num 144. that is whether since that statute the Parliamentary power of declaration of treasons whereby the inferiour Courts received jurisdiction be not taken away and restrained only to Bill that so it might operate no further than to that particular contained in the Bill that so the Parliamentary declarations for after times should be kept within the Parliament it selfe and be extended no further Since 1. H. 4. we have not found any such declarations made but all Attainders of treason have been by Bill If this be so yet the common-Law-treasons still remaining there is one and the same ground of reason and equity since 1. H. 4. for passing of a Bill of treason as was before for declaring it without Bill Herein the Legislative power is not used against my Lord of Strafford in the Bill it is only the jurisdiction of the Parliament But my Lords because that either through my mistaking of the true grounds and reasons of the Commons or my not pressing of them with apt arguments and presidents of former times or that perchance your Lordships from some other reasons and authorities more swaying with your Lordships judgements then these from them may possible be
Lordships the things they took into their Consideration in respect of the matter and merits of the Cause They are comprehended within these six heads 1. That there is a treason within the Statute of 25. E. 3. by Levying of warre upon the matter of the fifteenth Article 2. If not by actuall levying of war yet by advising and declaring his intention of war and that by Savils warrant and the advice of bringing over the Irish army upon the matter in the 23 Article The intending of a Warre if not within the Clause of Levying Warre in the statute of 25. E. 3. yet within the first treason of compassing the death of the King 3. If neither of these two single Acts be within the Statute of 25. E. 3. yet upon putting all together which hath been proved against him That ther 's a Treason within the first clause of compassing the death of the King Et si non prosunt singula juncta juvant 4. That he hath sessed and laid Souldiers upon the Subjects of Ireland against their will and at their Charge within the Irish Statute of the eighteenth yeare of Henry the sixt That both person and thing are within the Statute That the statute remaines in force to this day That the Parliament here hath Cognizance of it And that even in the ordinary way of Judicature that if there be a Treason and a Traitor that the want of jurisdiction in the Judicall way may justly be supplied by Bill 5. That his endeavouring to subvert the fundamentall Lawes and Governement of the Realmes of England and Ireland and instead thereof to introduce a tyrannicall Government against Law is Treason by the Common law That Treasons at the Common Law are not taken away by the Statutes of 25. E. 3. 1. H. 4. c. 10. 1. Mar. c. 1. nor any of them 6. That as this Case stands It 's just and necessary to resort to the Supreame power in Parliament in case all the rest should faile Of these six five of them are Treason within the Compasse of the Lawes already established Three within the Statute of 25. E. 3. One within the Irish Statute the other by the Common Law of England If but any one of these six Considerations hold The Commons conceive that upon the whole matter they had good cause to passe the Bill My Lords for the first of levying Warre I shall make bold to read the Case to your Lordships before I speak to it it 's thus The Earle did by warrant under his hand and Seale give authority to Robert Savill a Serjeant at Arms and his Deputies to sesse such number of Souldiers horse and foot of the Army in Ireland together with an officer as the Serjeant should think fit upon his Majesties Subjects of Ireland against their will This warrant was granted by the Earle to the end to compell the Subjects of Ireland to submit to the unlawfull Summons and orders made by the Earle upon paper Petitions exhibited unto him in case of private Interest betweene party and party This warrant was executed by Savill and his Deputies by sessing of Souldiers both horse and foot upon divers of the Subjects of Ireland against their will in warlike manner and at divers times the Souldiers 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 of warre within the statute of 250. E. 3. The words of the Statute are If any man doe levy warre against our Lord the King in his Realm this is declared to be Treason I shall indeavour in this to make it appeare to your Lordships 1 What shall be a levying of Warre in respect of the motive or cause of it 2 What shall be said a levying of warre in respect of the Action orthing done 3 And in the third place I shall apply them to the present Case It will be granted in this of levying of warre That forces may be raised and likewise used in a war-like manner and yet no levying of warre within the Statute that is when the forces are raised and imployed upon private ends either of revenge or interest Before this Statute in E. 1. time The Title of a Castle was in difference between the Earles of Hereford and Gloster for the mainetaining of the possession on the one side and gayning of it on the other Forces were raised on either side of many hundred men they marched with Banners displayed one against the other In the Parliament in the 20. yeere of Edw. 1. this adjudged onely trespasse and either of the Earles fined 1000. markes a peece After the Statute in Hillary Terme the fiftieth yeere of Edward the third in the Kings Bench Rot. 3. Nicholas Huntercome in a war-like manner with 40 men armed amongst other weapons with Gunnes so ancient as appeares by that Record they were did much spoyle in the Mannour of the Abbee of Dorchester in the County of Oxford This no Treason So it hath beene held by the Judges that if one or more Townships upon pretence of saving their Commons doe in a forcible and war-like manner throw in Inclosures This is only a Riot no Treason The words of the Statute of 25. Edw. 3. cleare this Point that if any man ride armed openly or secretly with men at Armes against any other to kill and robbe or to detaine him untill he hath made fine and ransome for his deliverance this is declared not to be Treason but Fellony or Trespasse as the case shall require all the printed Statuts which have it covertly or secretly are mis printed for the words in the Parliament Roll as appeares n. 17. are Discovertment ou secreretment openly or secretly So that my Lords in this of levying warre the Act is not so much to be considered but as in all other Treasons and Fellonies quo animo with what intent and purpose Obj. My Lords If the end be considerable in levying warre it may be said that it cannot be a Treason warre unlesse against the King For the words of the statute are If any man levy warre against the King Ans That these words extend further then to the Person of the King appears by the words of the Statute which in the begining declares it to be Treason to compasse imagine the Kings death and after other Treasons this is to be declared to be Treason to levy war against the King If the levying of war extend no further then to the person of the King these words of the Statute are to no purpose for then the first Treason of compassing the Kings death had fully included it before because that he which levies war against the person of the King doth necessarily compasse his death It s a warre against the King when intended for alteration of the Lawes or Government in any part of them or to destroy any of the great Officers of the Kingdome This is
a levying of War against the King 1 Because the King doth protect and maintaine the Laws in every part of them and the great Officers to whose care he hath in his own steed delegated the Execution of them 2 Because they are the Kings Lawes He is the Fountaine from whence in their severall Channels they are derived to the Subject all our inditements run thus Trespasses laied to be done Contra pacem Domini Regis the Kings peace for exorbitant offences though not intended against the Kings Person against the King his Crowne and Dignity My Lords this construction is made good by diverse Authorities of great weight ever since the statute of 25. E. 3. downwards In R. the 2 ds time Sir Thomas Talbot conspired the death of the Dukes of Glocester and Lancaster some other of the Peeres for the effecting of it he had caused diverse people in the County of Chester to be armed in warre-like manner in Assemblies In the Parliament held the seventeenth yeere of Richard the second number the 20. Sir Thomas Talbot accused of high Treason for this It s there declared that insomuch as one of them was Lord high Steward of England and the other high Constable of England that this was done in destruction of the estates of the Realme and of the Lawes of the Kingdome and therefore adjudged Treason and the judgement sent downe into the Kings Bench as appeares in Easter-Tearme in the seventh yeer of Richard the second in the Kings Bench Rott 16. These two Lords had appeared in the eleventh yeere of Richard the second in mainetenance of the Act of Parliament made the yeere before one of them was of the Commissioners appointed by Parliament and one of the Appellours of those that would have overthrowne it The Duke of Lancaster likewise was one of the Lords that was to have beene indicted of Treason for endeavouring the maintenance of it and therefore conspiring of their deaths is said to be in destruction of the lawes This there declared to be a Treson that concerned the Person of the King and the Common-wealth In that great insurrection of the Villains and meaner people in Richard the seconds time they tooke an oath Quod Regi Comunibus fidelitatem servarent to be true to the King and Commons 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 abolish the Law of villainage and servitude to burne all the Records to kill the Judges this in the Parliament of the fifth yeere of Richard the second number the one and thirtieth and two and thirtieth the first part is declared to be Treason against the King and against the Law In the eleventh yeere of Richard the second in Parliament the raising of forces against the Commissioners appointed by act of Parliament the yeere before adjudged Treason by all the Judges The Statute of 1. Mar. cap. 12. enacts that if twelve or more shall indeavour by force to alter any of the Lawes or Statutes of the Kingdome hee shall from such a time there limited be adjudged onely as a fellon This act was to continue but to the next Parliament it is expired it shewes by the words onely that the offence was higher before the making of it My Lords In Queene Elizabeths time Grant and divers Prentices of London to the number of 200. rose and assembled at Tower-hill carried a Cloake upon a Pole instead of a banner their intent was to deliver divers Prentices out of prison that had beene committed upon a sentence in Star Chamber for ryots To kill the Lord Major of London and for setting prizes on victuals In Trinity Tearme 37. Eliz. divers of the Judges consulted withall and resolved that this was a levying of warre against the Queene being intended against the government and officers of the Queene and thereupon Grant and others executed as Traitors Afterwards in that Queenes time divers of the County of Oxford consulted together to goe from house to house in that County and thence to London other parts to excite them to take Armes for the throwing in of all inclosures throughout England nothing was done nor no Assembly The Statute of 13. Eliz. cap. 1. during the Queenes life made it Treason to intend or advise to levy war against the Queene In Easter Tearme 39. Eliz. All the Iudges of England met about the case it was resolved by them that this was a warre intended against the Queen they agreed that if it had beene of one Towneship or more upon private interest and claime of right of Common it had not bin Treason But this was to throw in all inclosures thorough the Kingdome wherto these parties could pretend no claime that it was against the Law in regard that the Statute of Merton gave power of Inclosures in many Cases Upon this Resolution Bradshaw and Burton were executed at Aynestowe hill in Oxford-shire the place where they intended their first meeting So that my Lords if the end of it be to overthrow any of the Statutes any part of the Law and setled Governement or any of the great Officers intrusted with the execution of them this is a warre against the King My Lords it will be further considerable what shall be accounted a leavying of warre in respect of the Actions things done There 's a designe to alter some part of the Lawes and present Governement for the effecting thereof people be provided of Armes gathered together into troopes but afterwards match not with Banners displayed nor doe Bellum percutere Whether the arming themselves and gathering together upon this Designe whether this be a warre or such prosecution of the Designe with force as makes it Treason within the Statute First If this be not a Warre in respect that it necessarily occasions hostile preparations on the otherside 2. From the words of the Statute shall levy warre be thereof probably attainted of open Deed by people of their Condition although the bare conspiring be not an open Deed yet whether the arming and drawing men together be not an open Declaration of Warre In Sir Thomas Talbots case before cited in the seventeenth yeere of Richard the second The Acts of force are expressed in the Parliament Roll That he caused divers of the people of the County of Chester to be armed in a war like manner in assemblies heere is no marching no banners displayed In the eighth yeer of Henry the 8th William Bell and Thomas Lacy in Com' Kanc. conspired with Thomas Cheney called the Hermite of the Queene of Fairies to overthrow the Lawes and customes of the Realme and for the effecting of it they with two hundred more met together and concluded upon a course of raising greater forces in the county of Kent and the adjacent Shires this adjudged Treason these were open Actes My Lords for the application of both these to the Case in question
twentieth yeare of Henry the sixt against the Acts of the Commissioners against Proclamations in pursuance of the Law against that himselfe took notice of Narrow hearted Commissioners 2 In this that here was an Army the Souldiers Souldiers by profession Acts of hostility from them of greater Terror than from free-holders of the same County My Lords I have now done with the first of levying warre 2 The second is the machination the advising of a warre The case in this rests upon the warrant to Savill and the advice in the 23 Article The Warrant shewes a resolution of employing the old Army of Ireland to the oppression of his Majesties Subjects and the Lawes In the 23 Article having told his Majesty that hee was loosed and absolved from rules of Government and might doe every thing which power might admit he proceeded further in speech to his Majesty in these words You have an Army in Ireland you may employ to reduce this Kingdome My Lords both being put together there 's a machination a practise an advise to levie warre and by force to oppresse and destroy his Majesties Subjects Obj. It hath beene said the Statute of 25. Edw. 3. is a penall Law and cannot bee taken by equity and construction there must be an actuall warre the Statute makes it Treason to counterfeit the Kings Coyne the conspiring the raising of furnaces is no Treason unlesse he doth nummum percutere actually coyne Answ My Lords this is onely said not proved the Law is otherwise â— 9. of Henry the sixt fol. 47. there adjudged that the conspiring and ayding to counterfeit coyne was Treason and Justice Stamford fol. 3. 44. is of opinion That this or conspiring to counterfeit the great Seale is Treason The Statute is If any shall counterfeit the great Seale conspiring to doe it by the book is Treason if a man take the broad Seale from one Pattent and put it to another here is no counterfeiting it 's tuntamount and therefore Treason as is adjudged in 2. Henry 4. fo 25. and by the opinion of Stamford If machination or plotting a warre be not within that clause of the Statute of levying warre yet it 's within the first of compassing the death of the King as that which necessarily tends to the destruction both of the King and of the people upon whose safety and protection hee is to engage himselfe That this is Treason hath beene adjugded both after the Statutes of the first of Henry the fourth chapter the tenth and the first of Queene Mary the first chapter so much insisted upon on the other side In the third yeare of King Henry the fourth one Balshall comming from London found one Bernard at plough in the parish of Ofley in the Connty of Hertford Bernard asked Balshall what news hee told him the newes was That King Richard the second was alive in Scotland which was false for hee was then dead and that by Midsomer next he would come into England Bernard asked him what was best to be done Balshall answered get men and goe to King Richard In Michaelmas Terme in the third yeare of Henry the fourth in the Kings Bench rot 4. this advise of warre adjudged Treason In Queene Maries time Sir Nicholas Thrâ—gmorton conspired with Sir Thomas Wyat to levie warre within this Realme for alteration in Religion he joyned not with him in the execution This Conspiracy alone declared to bee Treason by the Judges This was after the Statute of the first of Queene Mary so much insisted upon That Parliament ended in October this opinion was delivered the Easter-Terme after and is reported by Justice Dyer fo 98. It 's true Sir Thomas Wyat afterwards did levie warre Sir Nicholas Throgmorton hee onely conspired this adjudged Treason Storie in Queene Elizabeths time practised with Forreiners to levy warre within the Kingdome nothing done in pursuance of the practise The intent without any adhering to Enemies of the Queene or other cause adjudged to bee Treason and hee executed thereupon It 's truemy Lords that yeare 13. Elizabeth by Act of Parliament it 's made Treason to intend the levying of warre this case was adjudged before the Parliament The case was adjudged in Hillary Terme the Parliament began not untill the April 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 Obj. 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 well as of the Kingdomes here the advice was to the King Ans 1. The answer is first that the warrant was unknowne to his Majesty that was a machination of warre against the people and Laws wherein his Majesties person was engaged for protection 2. 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 hostes patriae hee 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 Statute if the counselling The third generall Head of a war 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 my man shall plot or consult 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 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 Lordships by some cases of attainders upon these words One Owen in King Iames his time in the 13. yeere of his raigne at Sandwich in Kent spake these words That King Iames being excommunicated by the Pope may bee killed by any man which killing is no murther
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 than the loines of the Law They shall find my Lords who speakes this to the people a Privie Counsellour this must be either to traduce his Majesty to the people as spoken from him or from himselfe who was Lord Lieutenant 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 City of that Kingdome whither the Subjects of that Countrey came for Justice in an Assembly of Peeres and others of greatest ranke upon occasion of a speech of the Recorder of that City touching their Franchises and Legall Rights he tels them that Ireland was a conquered Nation and that the King might doe 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 Conquerour before The King might doe with them what he would now They were to expect it that he would put this power of a Conquerour in execution The Circumstances are very considerable in full Parliament from himselfe in Cathedra 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 hee 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 Petitions to himselfe forced Obedience to these not onely 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 betweene 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 beene 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 Treasons within the The fourth generall Head Statute of the five and twentieth of Edward the third I proceed to the fourth upon the Statute of the eighteenth yeare of Henry the sixt Chapter the third in Ireland I shall make bold to read the words to your Lordships That no Lord nor any other of what condition soever he be shall bring or lead hoblers kerves or hooded men nor any other people nor horses to lie on horseback or on foot upon the Kings Subjects without their good wills and consent but upon their owne costs and without hurt doing to the Commons and if any so doe he shall be judged as Traitor 1. The Argument that hath been made concerning the Person That it extends not to the King and therefore not to him weighs nothing with your Lordships Rex non habet in regne parem from the greatnesse of his office to argue himselfe into the same impossibility with his sacred Majesty of being uncapable of High-Treason it 's an Offence no reason The words in the Statute No Lord nor any other of what condition soever he be includes every Subject In Trinity Terme in the three and thirtieth yeare of Henry the eighth in the Kings Bench Leonard Lord Gray having immediately before been Lord Deputy of Ireland is attainted of High-Treason and judgement given against him for letting divers Rebels out of the Castle of Dublin and discharging Irish hostages and pledges that had been given for securing the Peace for not punishing one that said the King was an Heretique I have read the whole Record ther 's not one thing laid to his charge but was done by him as Lord Leivetenant Hee had the same Plea with my Lord of Strafford That these things were no adhering to the Kings Enemies but were done for reasons of State That he was not within those words of the Statute of the five and twentieth yeare of Edward the third himselfe being Lord Lievtenant there they cost his life Obj. 2. It hath been said That the Souldiers sessed upon the Subjects by him were not such persons as are intended by that Statute Hoblers Kerves and hoodedmen these rascall people Answ My Lords they were the names given to the Souldiary of those times Hoblers horsemen the other the foot but the words of the Statute goe further Nor any other people neither horse nor foot his Lordship sessed upon them both horse and foot Object 3. The Statute extends only to them that leade or bring Savill led them my Lord onely gave the warrant Answ To that I shall say onely thus plus peccat author quam actor by the rule of Law agentes consentientes pari plectuntur panâ if consent much more a command to doe it makes the commander a Traitor If there bee any Treason within this Statute my Lord of Strafford is guilty It hath been therefore said That this Statute like Goliah's sword hath been wrapt up in a cloth and laid behind the doore that it hath never been put in execution Answ My Lords if the Clerk of the Crown in Ireland had certified your Lordships that upon search of the Judgements of Attainders in Ireland he could not finde that any man had been attainted upon this Statute your Lordships had had some ground to believe it yet it is onely my Lord of Straffords affirmation Besides your Lordships know that an act of
of a contrary and dubious opinion concerning these treasons either upon the statutes of 25. E. 3. and 18. H. 6. or at the Common Law My Lords if all these five should faile they have given me further in command to declare to your Lordships some of their reasons why they conceive that in this case the meere Legaslative power may be exercised Their reasons are taken from these three grounds 1. From the nature and quality of the offence 2. From the frame and constitution of the Parliament wherein this Law is made 3. From practices and usages of former times The horridnesse of the offence in endeavouring the overthrowing the Lawes and present government hath been fully opened to your Lordships heretofore The Parliament is the representation of the whole Kingdome wherein the King as Head your Lordships as the more noble and the Commons the other members are knit together in one body politick This dissolves the arteries and ligaments that hold the Body together the Lawes He that takes away the Lawes takes not away the allegeance of one subject alone but of the whole Kingdome It was made Treason by the statute of 13. El. for her time to affirme That the Lawes of the Realme doe not bind the descent of the Crowne no Law no descent at all No Lawes no Peerage no ranks or degrees of men the same condition to all It 's treason to kill a Judge upon the Bench this kills not Iudicem sed Iudicium He that borrowed Apelles and gave bond to return again Apelles the Painter sent him home after he had cut off his right hand his bond was broken Apelles was sent but not the Painter There be twelve men but no law there 's never a Judge amongst them It s felony to embezill any one of the judiciall records of the Kingdome this at once sweepes them all away and from all It s treason to counter feit a twenty shilling peece here 's a counterfeiting of the Law we can call neither the counterfeit nor true coyne our owne It s treason to counterfeit the great Seale for an acre of land no property hereby is left to any land at all Nothing treason now either against King or Kingdome no Law to punish it My Lords If the question were asked in Westminster Hall whether this were a crime punishable in starre-chamber or in the Kings Bench by fine or imprisonment they would say it went higher If whether felony they would say That 's for an offence onely against the life or goods of some one or few persons It would I beleeve be answered by the Judges as it was by the chiefe Justice Thirning in 21. R. 2. That though he could judge the case treason there before him yet if he were a Peere in Parliament he would so adjudge it My Lords if it be too big for those Courts we hope it s in the right way here 2. The second consideration is from the frame and constitution of the Parliament the Parliament is the great body politicke it comprehends all from the King to the begger if so my Lords as the naturall so this body it hath power over it selfe and every one of the members for the preservation of the whole It s both the Physitian and the patient if the body be distempered it hath power to open a veine to let out the corrupt blood for curing of it selfe if one member be poysoned and gangren'd it hath power to cut it off for the preservation of the rest But my Lords it hath been often inculcated that Law-makers should imitate their supreme Law-giver who commonly warnes before he strikes the Law was promulged before the judgement of death for gathering of sticks no Law no transgression My Lords to this the rule of Law is Frustra Legis auxilium invocat qui in Legem committit from the Lex talionis he that would not have had others to have law why should he have any himselfe why should not that be done to him that himself would have done to others It 's true we give law to Hares and Deers because they be beasts of Chase it was never accounted either cruelty or foule play to knock Foxes and Wolves on the head as they can be found because these be beasts of prey The Warrener sets traps for Powlcats and other Vermine for preservation of the Warren Further my Lords most dangerous diseases if not taken in time they kill Errors in great things as Warre and Marriage they allow no time for repentance it would have been too late to make a law when there had been no law My Lords for further answer to this objection he hath offended a law a law within the endeavouring to subvert the lawes and polity of the State wherein he lived which had so long and with such faithfulnesse protected his Ancestry himselfe and his whole family it was not malum quia prohibitum it was malum in se against the dictates of the dullest conscience against the light of nature they not having the law were a law to themselves Besides this he knew a law without that the Parliament in cases of this nature had potestatem vitae necis Nay he well knew that he offended the promulged and ordinary rules of law Crimes against Law have been proved have been confessed so that the question is not de culpâ sed de poenâ what degree of punishment those faults deserve we must differ from him in opinion that twenty felonies cannot make a treason if it be meant of equality in the use of the Legislative power for hee that deserves death for one of these felonies alone deserves a death more painfull and more ignominious for all together Every felony is punished with losse of life lands and goods a felony may be aggravated with those circumstances as that the Parliament with good reason may adde to the circumstances of punishment as was done in the case of John Hall in the Parliament H. 4. who for a barbarous murder committed upon the Duke of Glocester stifling him between two feather-beds at Calice was adjudged to be hanged drawn and quartered Batteries by Law are punishable only by fine and single dammages to the party wounded In the Parliament held in 1. H. 4. cap. 6. one Savadge committed a Battery upon one Chedder servant to Sir Iohn Brook a Knight of the Parliament for Somersetshire It 's there enacted that he shall pay double dammages and stand convicted if he render not himselfe by such a time The manner of proceedings quickned the penalty doubled the circumstances were considered it concerned the Common-wealth it was Battery with breach of priviledge of Parliament This made a perpetuall Act no warning to the first offender and in the Kings Bench as appeares by the book case of 9. H. 4. the first leafe double dammages were recovered My Lords in this of the Bill the offence is high and generall against the King and the Common-wealth against all and the best of all