wherein this Statute was made So that my Lords immediately before and at the time of the making of this Statute there being Warre betweene those of the Shire grounds mentioned in this statute and the Irish the concluding of Warre and Acts offensive and invasive there mentioned can be intended against no others but the Irish enemies Againe the words of the statute are no captaine shall assemble the people of the Shire grounds to conclude of peace or warre Is it to bee presumed that those of the Shire grounds will conclude of Warre against themselves nor saith the statute shall carry those of the Shire grounds to doe any Acts invasive by the construction which is made on the other side they must be carried to fight against themselves Lastly the words are As captaine none shall assume the name or authority of a captaine or as a captaine shall gather the people together or as a captaine lead them The offence is not in the matter but in the manner If the acts offensive were against the Kings good Subjects those that went under command were punishable as well as the Commanders but in respect the Souldiers knew the service to bee good in it selfe being against the enemies and that it was not for them to dispute the authority of their commanders the penalty of a 100. pounds is laid onely upon him that as Captaine shall assume this power without warrant The people commanded are not within the Statute My Lords the logicke whereupon this argument hath been framed stands thus Because the statute of the eleventh yeere of Queene Elizabeth inflicts a penalty of a 100. pound and no more upon any man that as a captaine without warrant and upon his owne head shall conclude of or make Warre against the Kings enemies therefore the statute of the 18. yeere of Henry the sixth is repealed which makes it Treason to lay souldiers upon or to levie war against the Kings good people But my Lords observation hath been made upon other words of this statute that is that without licence of the Deputy these things cannot be done This shewes that the Deputy is within none of the statutes My Lords this Argument stands upon the same reason with the former because hee hath the ordering of the Army of Ireland for the defence of the people and may give warrant to the Officers of the Army upon eminent occasions of invasion to resist or prosecute the enimy because of the danger that else might ensue forthwith by staying for a warrant from his Majesty out of England Therefore it is no Treason in the Deputy to imploy the Army in Ireland whensoever hee pleaseth for the subversion of the Kings good people and of the Lawes My Lords the statute of the tenth yeere of Henry the seventh the 17. Chapter touched upon for this purpose cleares the businesse in both points for there it is declared that none ought to make warre upon the Irish rebels and enimies without warrant from the Lieutenant the forfeiture a 100 pounds as here the statute is the same with this and might as well have beene cited for repealing the statute of the eighteenth yeere of Henry the 6. as this of the 11. yeere of Queene Elizabeth but if this had been insisted upon it would have expounded the other two cleare against him Object My Lords it hath been further said although the statute be in force and there be a Treason within it yet the Parliament hath no jurisdiction the Treasons are committed in Ireland therefore not triable here Answ My Lords Sir Iohn Perrot his predecessors in the 24. yeere of Queene Elizabeth was tried in the Kings bench for Treason done in Ireland when he was Deputy Orucke in the 33. yeere of Queene Elizabeth judged heere for Treason done Ireland Object But it will be said these trials were after the statute of the 34. yeere of Henry the eight which enacts that treasons beyond sea may be tried in England Answ My Lords his predecessor my Lord Gray was tried and adjudged here in the Kings bench that was in Trinity terme in the 33. yeere of Henry the eighth this was before the making of that statute Object To this againe will be said that it was for Treason by the Lawes and statutes of England but this is not for any thing that 's Treason by the Law of England but by an Irish statute So that the question is onely whether your Lordships in Parliament here have cognisance of an offence made treason by an Irish statute in the ordinary way of judicature without bill for so is the present question For the clearing of this I shall propound two things to your Lordships consideration 1. Whether the rule for expounding the Irish Statutes and customes bee one and the same in England as in Ireland 2. That being admitted whether the Parliaments in England have cognizance or jurisdiction of things there done in respect of the place because the Kings writ runnes not there For the first if in respect of the place the Parliament here hath cognizance there And secondly if the rules for expounding the Irish statutes and Customes bee the same here as there this exception as I humbly conceive must fall away In England there is the common law the statutes the acts of Parliament and customes peculiar to certaine places differing from the common Law if any question arise concerning either a custome or an act of Parliament the common Law of England the first the primitive and the generall Law that 's the rule and expositour of of them and of their severall extents it is so here it is so in Ireland the common Law of England is the common Law of Ireland likewise the same here and there in all the parts of it It was introduced into Ireland by King Iohn and afterwards by King Henry the third by act of Parliament held in England as appeares by the pattent Rolls of the 30 yeere of King Henry the third the first membranâ The words are Quia pro communi utilitate terrae Hiberaniae unitate terrarum Regis Rex vult de commune consilio Regis provisum est quòd omnes leges consuetudines quae in regno Angliae tenentur in Hibernia teneantur eadem terra eisdem legibus subjaceat per easdem regatur sicut Dominus Johannes Rex cum ultimò esset in Hibernia statuit fieri mandavit Quia c. Kex vult quod omnia brevia de communi Jure quae currunt in Angliae similitèr currant in Hibernia sub novo sigillo Regis mandatum est Archiepiscopis c. quod pro pace tranquillitate ejusdem terrae per easdem leges eos regi deduci permittant eas in omnibus sequantur In cujus c. Teste Rege apud Woodstock decimo nono die Septembris Here 's an union of both Kingdomes and that by act of Parliament and the same Lawes to be used heere as there in omnibus My
Lords That nothing might be left here for an exception that is that in treasons felonies and other capitall offences concerning life the Irish lawes are not the same as here Therefore it is enacted in a Parliament held in England in the 14. yeere of Edward the second it is not in print neither but is in the Parliament booke That the Lawes concerning life and member shall be the same in Ireland as in England And that no exception might yet remaine in a Parliament held in England the fifth yeere of Edward the third It is enacted quod una eadem Lex fiat tam Hibernicis quam Anglicis This act is enrolled in the Patent rolls of the fifth yeere of Ed. the 3. part 1. membr 25. The Irish therefore receiving their Lawes from hence they send their Students at Law to the Innes of Courts in England where they receive their degree and of them and of the common Lawyers of this kingdome are the Judges made The petitions have been many from Ireland to send from hence some Judges more learned in the Lawes then those they had there It hath been frequent in cases of difficulty there to send some times to the Parliament here sometimes to the King by advice from the Judges here to send them resolutions of their doubts Amongst many I 'll cite your Lordships onely one because it is in a case of treason upon an Irish statute and therefore full to this point By a Statute there made in the fifth yeere of Edward the fourth there is provision made for such as upon suggestions are committed to prison for Treason that the party committed if he can procure 24. Compurgators shall be bailed and let out of prison Two Citizens of Dublin were by a grand Jury presented to have committed Treason They desired the benefit of this statute that they might be let out of prison upon tender of their Compurgators The words of the Statute of the 5. yeere of Ed. the fourth in Ireland being obscure the Judges there not being satisfied what to doe sent the case over to the Queene desired the opinion of the Judges here which was done accordingly The Judges here sent over their opinion which I have out of the Book of Justice Anderson one of the Judges consulted withall The Judges here delivered opinion upon an Irish Statute in case of Treason If it be objected That in this case the Judges here did not judge upon the party their opinions were only ad informandam conscientiam of the Judges in Ireland that the judgement belonged to the Judges there My Lords with submission this and the other Authorities prove that for which they were cited that is That no absurdity no failer of justice would ensue if this great Judicatory should judge of Treason so made by an Irish Statute The common Law the rule of judging upon an Irish Statute the Pleas of the Crowne for things of life and death are the same here and there This is all that hath yet beene offered For the second point That England hath no power of Judicature for things done in Ireland My Lords the constant practice of ages proves the contrary Writs of errour in Pleas of the Crowne as well as in civill causes have in all Kings reignes been brought here even in the inferiour Courts of Westminster Hall upon judgements given in the courts of Ireland The practice is so frequent and so well known as that I shall cite none of them to your Lordships no president will I beleeve bee produced to your Lordships that ever the case was remanded back againe into Ireland because the question rose upon an Irish Statute or custome Object But it will bee said That writs of errour are onely upon a failer of justice in Ireland and that suits cannot originally bee commenced here for things done in Ireland because the Kings writ runs not in Ireland Answ This might be a good plea in the Kings Bench and inferiour Courts at Westminster Hall the question is whether it bee so in Parliament The Kings writ runs not within the County Palatine of Chester and Durham nor within the five Ports neither did it in Wales before the union in Henry the eighth's time after the Lawes of England were brought into Wales in King Edward the first 's time suits were not originally commenced in Westminster Hall for things done in them yet this never excluded the Parliament suits for life lands and goods within those jurisdictions are determinable in Parliament as well as in any other parts of the Realme Ireland as appeares by the statute of the thirtieth yeere of Henry the third before mentioned is united to the Crowne of England By the Statute of the eight and twenty yeere of Henry the sixth in Ireland it is declared in these words That Ireland is the proper Dominion of England and united to the Crown of England which Crowne of England is of it selfe and by it self fully wholly and entirely endowed with all power and authority sufficient to yeeld to the subjects of the same full and plenary remedy in all debates and suits whatsoever By the Statute of the 33. yeere of Henry the eighth the first Chapter when the Kings of England first assumed the title of King of Ireland it is there enacted That Ireland still is to bee held as a Crowne annexed and united to the Crowne of England So that by the same reason from this that the Kings writ runs not in Ireland it might aswell be held that the Parliament cannot originally hold plea of things done within the County Palatine of Chester and Durham nor within the five Ports and Wales Ireland is part of the Realme of England as appeares by those statutes as well as any of them This is made good by constant practice In all the Parment rolls from the first to the last there are receivers and tryers of petitions appointed for Ireland For the Irish to come so farre with their petitions for justice and the Parliament not to have cognizance when from time to time they had in the beginning of the Parliament appointed receivers and tryers of them is a thing not to be presumed An appeale in Ireland brought by William Lord Vescye against Iohn Fitz Thomas for treasonable words there spoken before any Judgement given in the case there was removed into the Parliament in England and there the defendant acquitted as appeares in the Parliament pleas of the two and twentieth yeere of Edward the first The suits for lands offices and goods originally begun here are many and if question grew upon matter in fact a Jury usually ordered to try it and the verdict returned into Parliament as in the case of one Balliben in the Parliament of the five and thirtieth yeere of Edward the first If doubt arose upon a matter tryable by Record a writ went to the Officers in whose custody the Record remained to certifie the Record as was in the case of Robert Bagot the
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
If every felony be losse of life lands and goods what is misuser of the Legislative power by addition of Ignominie in the death and disposall of the lands to the Crowne the publick patrimony of the Kingdome But it was hoped that your Lordships had no more skill in the Art of killing of men than your worthy Ancesters My Lords this appeale from your selves to your Ancesters we admit of although we doe not admit of that from your Lordships to the Peeres of Ireland He hath appealed unto them your Lordships will bee pleased to hear what judgement they have already given in the case that is the severall attenders of treason in Parliament after the Statute of 25. E. 3. for treasons not mentioned without nor within that Statute and those upon the first offenders warning given By the Statute of 25. E. 3. its treason to levie war against the King Gomines and Weston afterwards in Parliament in 1. R. 2. Num. 38 39. adjudged traytors for surrendring two severall Castles in France only out of feare without any compliance with the Enimy this not within the Statute of 25. E. 3. My Lords in 3. R. 2. 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 ignit egium Iohn Kirby and another Citizen comming that way casually Kirby trode upon his Toe it being twilight this grew to a quarrell and the Ambassador was slaine Kirby was indicted of high treason the indictment findes all this and that it was only done se defendendo and without malice The Iudges it being out of the statute of 25. E. 3. could not proceede the Parliament declared it treason and judgement afterwards of high treason ther 's nothing can bring this within the statute of 25. E. 3. but it concerns the honour of the Nation that the publick faith should be strictly kept It might endanger the traffick of the kingdome they made not a Law first they made the first man an example This is in the Parliament Roll 3. R. 2. num 18. and Hilary Terme 3. R. 2. Rot. 31. in the Kings Bench where judgement is given against him In 11. R. 2. Tresiltan 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 Lordship only this is observable That in the Parliament of the 1. yeere of Henry the third where all treasons are againe reduced to the Statute of 25. Edward 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 to this day the offences there as here were the endeavouring the subversion of the lawes My Lords after â— Henry the fourth Sir John Mortimer being committed to the Tower upon suspition of treason brake prison and made an escape This no way within any Statute or any former Judgement at common Law for this that is for breaking the prison onely and no other cause in the Parliament held the second yeere of Henry the sixth he was attainted of high treason by Bill My Lords poysoning is onely murder yet one Richard Coke having put poyson into a pot of potage in the kitchin of the Bishop of Rochester whereof two persons dyed hee 's attainted of Treason and it was enacted that he should be boyled to death by the statute of 22. H. 8. cap. 9. By the statute of 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 Katherina and that in case he persisted in the separation and should marry another that he would not continue King above one month after because this tended to the depriving of the lawfull succession to the Crown she is attainted of Treason In the Parliament 2. and 3. H. 6. cap. 16. the Lord Admirall of England was attainted of Treason for procuring the Kings Letters to both Houses of Parliament to be good to the said Earle in such matters as he should declare unto them for saying that he would make the Parliament the blackest Parliament that ever was in England endevouring to marry the Lady Elizabeth the Kings sister taking a bribe of Sherrington accused of Treason and thereupon consulting with Counsell for him and some other crimes none of them Treason so cleerely within the statute of 25. E. 3. or any other statute as is the case in question My Lords All these Attainders for ought I know are in force at this day the statutes of the 1. H. 4. and the 1. Queene Mary although they were willing to make the statute of the 25. yeere of E. 3. the Rule of 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 bee 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 adde to the degrees of punishment and that upon the first offender My Lords We receive as just the other Lawes and statutes made by these our Ancesters They are the rules we go by in other cases why should wee differ from them in this alone These my Lords are in part those things which have satisfied the Commons in passing the Bill but it is now left to the Judgement and Justice of your Lordships FINIS