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
same Parliament of the five and thirtieth yeere of Edward the first where the writs went to the Treasurer and Barons of the Exchequer Sometimes they gave judgement here in Parliament and commanded the Judges there in Ireland to doe execution as in the great case of Partition betweene the copartners of the Earle Marshall in the Parliament of the 33. yeere of Edward the first where the writ was awarded to the Treasurer of Ireland My Lords The Lawes of Ireland were introduced by the Parliaments of England as appeares by three Acts of Parliament before cited It is of higher jurisdiction dare Leges then to judge by them The Parliaments of England doe binde in Ireland if Ireland be particularly mentioned as is resolved in the Book case of the first yeere of Henry the seventh Cokes seventh Report Calvins case and by the Judges in Trinity Terme in the three and thirtieth yeere of Queene Elizabeth The Statute of the eighth yeere of Edward the fourth the first Chapter in Ireland recites that it was doubted amongst the judges whether all the English Statutes though not naming Ireland were in force there if named no doubt From King Henry the third his time downward to the eighth yeere of Queene Elizabeth by which statute it is made felony to carry sheepe from Ireland beyond seas in almost all these Kings reignes there be statutes made concerning Ireland The exercising of the Legislative power there over their lives and estates is higher then of the Judiciall in question Vntill the nine and twentieth yeere of Edward the third erroneous judgements given in Ireland were determinable no where but in England no not in the Parliaments of Ireland as it appeares in the close rolls in the Tower In the nine and twentieth yeere of Ed. the third mem 12. Power to examine and reverse erroneous judgements in the Parliaments of Ireland is granted from hence Writs of errour lie in the Parliament here upon erroneous judgements after that time given in the Parliaments of Ireland as appeares in the Parliament rolls of the eighth yeere of Henry the sixth membra 70. in the case of the Prior of Lenthan It is true the case is not determined there for it 's the last thing that came into the Parliament and could not be determined for want of time but no exception at all is taken to the jurisdiction The Acts of Parliament made in Ireland have been confirmed in the Parliaments of England as appeares by the close rolls in the Tower in the 42. yeere of Edward the 3. membra 20. dorso where the Parliament in Ireland for the preservation of the Countrey from the Irish who had almost destroyed it made an Act that all the land-owners that were English should reside upon their lands or else they were to be forfeited this was here confirmed In the Parliament of the 4. yeere of H. the 5. chap. 6. Acts of Parliament in Ireland are confirmed and some privileges of the Peeres in the Parliaments there are regulated Power to repeale Irish Statutes power to confirme them cannot be by the Parliament here if it hath not cognizance of their Parliaments unlesse it besaid That the Parliament may doe it knowes not what Garnesey and Jersey are under the Kings subjection but are not parcels of the Crown of England but of the dutchy of Normandy they are not governed by the lawes of England as Ireland is and yet Parliaments in England have usually held plea of and determined all causes concerning land or goods In the Parliament of 33. E. 1. there be placita de Insula Iernesey and so in the Parliament 14. E. 2. and so for Normandy and Gascoyne and alwayes as long as any part of France was in subjection to the Crown of England there were at the beginning of Parliaments receivers and tryers of petitions for those parts appointed I beleeve your Lordships will have no cases shewed of any plea to the jurisdiction of the Parliaments of England in any thing done in any parts wheresoever in subjection to the Crown of England The last thing I shall offer to your Lordships is the case of 19. El. in my Lord Dyer 306. and Judge Comptons book of the jurisdiction of Courts fol. 23. The opinion of both these books is that an Irish Peere is not triable here It 's true a Scotish or French Nobleman is triable here as a common person the Law takes no notice of their Nobility because those Countryes are not governed by the Lawes of England but Ireland being governed by the same Lawes the Peeres there are triable according to the Law of England onely per pares By the same reason the Earle of Strafford not being a peere of Ireland is not triable by the Peeres of Ireland so that if he be not triable here he is triable no where My Lords In case there be a Treason and a Traitor within the statute and that he be not triable here for it in the ordinary way of judicatory if that jurisdiction failes this by way of Bill doth not Attainders of Treason in Parliament are as legall as usuall by Act of Parliament as by Judgement I have now done with the statutes of 25. E. 3 and 18. H. 6. My Lord of Strafford hath offended against both the Kingdomes and is guilty of high Treason by the Lawes of both 5 My Lords In the fifth place I am come to the Treasons at the common Law the endevouring to subvert the fundamentall Lawes and government of the Kingdome and to introduce an arbitrary and tyrannycall government In this I shall not at all labour to prove that the endevouring by words counsells and actions to subvert the Lawes is treason at the common Law if there be any common-Law-treasons at all left nothing treason if this not to make a Kingdome no Kingdome take the politie and government away England's but a peece of earth wherein so many men have their commorancy and abode without rancks or distinction of men without property in any thing further then possession no Law to punish the murdering or robbing one another That of 33 H. 8. of introducing the Imperiall Law sticks not with your Lordships It was in case of an appeal to Rome These appeals in cases of marriages and other causes counted Ecclesiasticall had been frequent had in most Kings reignes been tollerated some in times of popery put a conscience upon them the statutes had limitted the penally to a Premunire only Neither was that a totall subversion only an appeal from the Ecclesiasticall Court here in a single cause to the Court at Rome and if treason or not that case proves not a treason may be punished as a felony a felony as a trespasse if his Majesty so please the greater includes the lesser In the case of Premunire in the Irish reports that which is there declared to be treason proceeded upon onely as a Premunire The thing most considerable in this is whether the treasons at common Law be taken
being asked by those he spake to how he durst maintaine so bloody an assertion he answered that the matter was not so haynous as was supposed for the King who is the lesser is concluded by the Pope who is the greater and as a Malefactor being condemned before a Temporall Judge may bee delivered over to bee Executed so the King standing convicted by the Popes sentence of excommunication may justly be slaughtered without fault for the killing of the King is the execution of the Popes supreame sentence as the other is the execution of the Law for this judgement of High Treason was given against him and execution done My Lords here is no cleere intent appearing that Owen desired the thing should bee done only Arguments that it might be done This is a compassing there is a cleere Endeavour to corrupt the judgement to take off the bonds of conscience the greatest security of the Kings life God forbid saith one of better judgement than 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 Hee that denies the Title to the Crown and plots the meanes of setting it upon another head may doe this without any direct or immediate desiring the death of him that then weares it yet this is Treason as was adjudged in 10. Henry 7. in the case of Burton and in the Duke of Norfolks case 13. Elizabeth This is a compassing of his death for there can no more be two Kings in one Kingdome than two Suns in the Firmament he that conceives a title counts it worth ventring for though it cost him his life he that is in possession thinks it as well worth the keeping Iohn Sparhauke in King Henry the fourths time meeting two men upon the way amongst other talk said that the King was not rightfull King but the Earle of March and that the Pope would grant indulgencies to all that would assist the Earles title and that within halfe a yeree there would be no Liveries nor Conizances of the King that the King had not kept promise with the people but had layd taxes upon them In Easter Terme in the third yeere of Henry the fourth in the Kings Bench Rot. 12. this adjudged Treason This denying the title with motives though but implyedly of Action against it adjudged Treason this is a compassing the Kings death How this was a compassing the Kings death is declared in the reasons of the judgement That the words were spoken with an intent to withdraw the affections of the people from the King and to excite them against the King that in the end they might rise up against him in mortem destructionem of the King My Lords in this Judgement and others which I shall cite to your Lordships It appeares that it is a compassing the Kings death by words to indeavour to draw the peoples hearts from the King to set discord betweene 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 this is Treason but what is sufficient evidence to make this good Upon a Commission held the 18. yeere of Edw. 4. in Kent before the Marquesse of Dorset and others an Inditement was preferred against John Awater of High-Treason in the forme before mentioned for words which are entred in the enditement sub hac forma That he had beene servant to the Earle of Warwicke that though he were dead the Earle of Oxford was alive and should have the government of part of the Countrey That Edward whom you call King of England was a false man and had by art and subtlety slaine the Earle of Warwicke and the Duke of Clarence his brother without any cause who before had beene both of them attainted of High-Treason My Lords this Inditement was returned into the Kings Bench in Trinity Tearme in the eighteenth yeere of Edward the fourth and in Easter Tearme in the two and twentieth yeere of Edward the fourth he was outlawed by the stay of the outlawry so long it seemes the Judges had well advised before whether it were Treason or not At the same Session Thomas Hober was indited of Treason for these words That the last Parliament was the most simple and insufficient Parliament that ever had beene in England That the King was gone to live in Kent because that for the present 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 Wels were dead the Archbishop of Canterbury being Cardinall of England would immediately lose his head This inditement was returned into the Kings Bench in Trinity Tearme in the eighteenth yeere of Edward the fourth Afterwards there came a Privy Seale to the Judges to respit the proceedings which as it should seeme was to the intent the Judges might advise of the Case for afterwards he is outlawed of high-Treason upon this inditement These words were thought sufficient evidence to prove these severall Inditements That they were spoken to withdraw the peoples affection 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 than words and actions too not onely to dis-affect the people to the King but the King likewise towards the people not once but often not in private but in places most publique not by a private person but by a Counsellor of State a Lord Lieutenant a Lord President a Lord Deputy of Ireland 1 To his Majesty That the Parliament had denied to supply him a slander upon all the Commons of England in their affections to the King and Kingdome in refusing to yeeld timely supply for the necessities of King and Kingdome 2 From thence That the King was loose and absolved from rules of government and was to doe every thing that power would admit My Lords more cannot be said they cannot be aggravated whatever I should say would be in diminution 3 Thence You have an Army in Ireland you may imploy to reduce this Kingdome To counsell a King not to love his people is very unnaturall it goes higher to hate them to malice them in his heart the highest expressions of malice to destroy them by warre These coales they were cast upon his Majesty they were blowne they could not kindle in that brest Thence my Lords having done the utmost to the King hee goes to the people At York the Country being meâ— together for Justice at the open Assizes upon the Bench he tels them speaking of the