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A93120 An argument of lavv concerning the bill of attainder of high-treason of Thomas Earle of Strafford at a conference in a committee of both Houses of Parliament. By Mr. St. John his Majesties Solicitor Generall. Published by order of the Commons House. St. John, Oliver, 1598?-1673. 1641 (1641) Wing S321; ESTC R203496 35,970 52

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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 ● 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 Thr●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