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 Westminst 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 yeer of Henry the third before mentioned is united to the Crowne of England By the Statute of the eight and twentieth 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 Crowne of England which Crowne of England is of it selfe and by it selfe 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 three and thirtieth yeer 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 Crown annexed and united to the Crown of England So that by the same reason from this that the Kings writ runs not in Ireland it might aswell bee held that the Parliament cannot originally hold plea of things done within the County Palatine of Chester Durham nor within the five Ports Wales Ireland is part of the Realme of England as appears by those Statutes aswell as any of them This is made good by constant practice In all the Parliament 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 bee presumed An appeale in Ireland brought by William Lord Vescye against John 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 triable 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 petition between the coparceners of the Earle Marshall in the Parliament of the three and thirtieth 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 bee 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 Untill 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 Edward the third membr 12. Power to examine and reverse erroneous judgements in the Parliaments of Ireland is granted from hence Writs of errour lie in the Parliament hereupon erroneous judgements after that time given in the Parliaments of Ireland as appears in the Parliament rolls of the eighth yeere of Henry the sixth no. 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 bin confirmed in the Parliaments of England as appears by the close rolls in the Tower in the two and fortieth yeere of Edward the third memb 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 bee forfeited This was here confirmed In the Parliament of the fourth yeer of Henry the fifth chap. 6. Acts of Parliament in Ireland are confirmed and some priviledges 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 be said That the Parliament may doe it knowes not what Garnesey and Jersey are under the Kings subjection but are not parcels of the Crowne of England but of the Duchy 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 lands or goods In the Parliament of 33. H. iâ— there be plactia de Insula Jernesey and so in the Parliament 14. E. 2. and so for Normandy and Gascoyne and alwaies as long as any part of France was in subjection to the Crown of England there were at the beginning of the 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 things done in any
My Lords if the Earle had armed two thousand men horse and foot and formed them into companies to this end your Lordships would have conceived that this had beene a warre It 's as much as in the case of Sir Thomas Talbot who armed them in assemblies This is the same with a breach of trust added to it That Army was first raised and afterwards committed to his trust for defence of the people is now destined by him to their destruction This assignation of the Army by his Warrant under his hand and seale is an open Act. My Lords heer 's not onely an open act done but a levying of warre Souldiers both horse and foot with an Officer in warlicke manner sessed upon the Subject which killed their Cattell consumed and wasted their goods Ob. O but five or sixe were the most imimployed at any time a mighty warre of six men scarce a Ryot Your Lordships observe a great difference where six single men goe upon a designe alone and when sent from an Army of six hundred all engaged in the same service so many were sent as were sufficient to execute the Command if upon a poore man fewer more upon a rich if the six had not beene able the whole Army must make it good the reason that the Sheriffe alone or with but one Bayliffe to doe execution is because hee hath the Command of the Law the Kings Writ and the posse Comitatus in case of Resistance heer 's the warrant of the Generall of an Army heer 's the posse exercitus the power of the Army under this awe of the whole Army six may force more then sixty without it and although never above fix in one place yet in the severall parts of the Kingdome at the same time might be above sixty for sessing of Souldiers was frequent it was the ordinary course for execution of his orders The Lord Lievetenant of a County in England hath a designe to alter the Lawes and governement nay admit the designe goes not so high hee onely declares thus much that he will order the freeholds and estates of the Inhabitans of the County at his owne will and pleasure and doth accordingly proceed upon paper petitions foreseeing there will be disobedience he grants out warrants under his hand and seale to the deputy Lievetenants and Captaines of the traine bands that upon refusall they shall take such number of the traine bands thorow the County with Officers as they shall think good and lay them upon the lands and houses of the refusers Souldiers in a warlike manner are frequently sessed upon them accordingly Your Lordships doe conceive that this is a levying of Warre within the Statute The Case in question goes further in these two Respects That it is more against the declared Law in Ireland not onely against the Common Law but likewise against the Statute of the eight and 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 Comissioners In this that here was an Army the Souldiers Souldiers by profession Acts of hostility from them of greater Terror then from free-holders of the same County My Lords I have now done with the first of levying warre 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 opprossion of his Majesties Subjects and the Lawes In the 23 Article having told his Majesty that he was loosed and absolved from rules of Government and might doe every thing which power might admit hee 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 ther 's a machination a practise an advise to levy warre and by force to oppresse and destroy his Majesties Subjects Object 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 19. of Henry the sixt fol. 47. there adjudged that the conspiring and ayding to counterfeit coyne was Treason and Iustice 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 its 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 he is to engage himselfe That this is Treason hath beene adjudged both after the Statutes of the first of Henry the fourth Chapter the tenth 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 Barnard at plough in the Parish of Ofley in the County of Hertford Bernard asked Balshall what newes he told him the newes was That King Richard the second was alive in Scotland which was false for he 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 Tearme 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 Throckmorton conspired with Sir Thomas Wyat to levy warre within this Realme for alteration in Religion he joyned not with him in the execution This Conspiracy alone declared to be 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-Tearme after and is reported by Justice Dyer fo 98. It 's true Sir Thomas Wyat afterwards did levy 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 be Treason and he executed thereupon It 's true my 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 Aprill 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 Object 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 wel as of the Kingdomes heere the advise was to the King Answ 1 The Answer is first that the warrant was unknowne to his Majesty that was a machination of warre against the people and Lawes wherein his Majesties person was engaged for protection 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 host is patriae he 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 The 3. Generall Head Statute if the counselling of a warre 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 any man shall plot or consult the death of the King no my Lords they go further then 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 Lorships by some Cases of attainders upon these words One Owen in King James his time in the 13. yeare of his raigne at Sandwich in Kent spake these words That King James being excommunicated by the Pope may be killed by any man which killing is no murther being asked by those he spake too how he durst maintaine so bloudy an assertion hee answered that the matter was not so heynous 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 be delivered over to be Executed so the King standing convicted by the Popes sentence of excommunication may justly be slaughtered without fault for the killing of the King is the execution of the Popes supreame sentence as the other is the execution of the Law for this 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 onely Arguments that it might bee done This is a Compassing there is a cleare 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 then he That I should stretch out my hand against the Lords annointed no saith he the Lord doth not forbid it you may for these reasons lawfully kill the King He that denies the Title to the Crowne 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 Norfolkes case 13. Elizabeth This is a compassing of his death for there can no more be two Kings in one Kingdome then two sunnes in the Firmament he that conceives a title counts it worth ventring for though it cost him his life hee that is in possession thinkes it as well worth the keeping John Sparhauke in King Henry the fourths time meeting two men upon the way amongst other talke 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 yeare there would be no Liveries nor Conizances of the King that the King had not kept promise with the people but had layed taxes upon them In Easter Tearme in the third yeare 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 between the King and them wherby 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. yeare of Ed. 4. in Kent before the Marquesse of Dorset others an Inditement was preferred against Iohn Awater of High-Treason in the forme before mentioned for words which are entred in the enditment sub hâc formâ That he had been servant to the Earle of Warwick that though he were dead the Earle of Oxford was alive and should have the government of part of the Country That Edward whom you call King of England was a false man and had by art and subtilty slain the Earle of Warwick 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 yeare of Edward the fourth and in Easter Tearme in the two and twentieth yeare 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 Heber 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 hee had not the love of the Citizens of London nor should hee have it for the future That if the Bishop of Bath and Wells were dead the Arch-Bishop of Canterbury being Cardinall of England would immediately loose his head This Inditement was returned into the Kings Bench in Trinity Tearme in the eighteenth yeare of Edward the fourth Afterwards there came a Privy Scale to the Iudges to respit the proceedings which as it should seeme was to the intent the Iudges 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 with draw the peoples affection from the King to excite them against him to cause risings against him by the people in morē destructions of the King Your Lordships are pleased to consider that in all these Cases the Treason was for words only words by private persons and in amore private manner but once spoken and no more only amongst the people to excite them against the King My Lords here are words Counsells more then words and actions too not only to disaffect the people to the King but the King likewise towards the people not once but often not in private but in places most publique not by a private person but by a Counsellor of State a Lord Leivetenant a Lord President a Lord Deputie 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 the King and Kingdome 2. From thence that the King was loose and absolved from rules of governement 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 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 war 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 he goes to the people At York the Country being met together for Justice at the open Assizes upon the Bench he tells them speaking of the Justices of the Peace that they were all for Law nothing but Law but they should find that the Kings little finger should be heavier then the loines of the Law They shall find my Lords who speaks this to the people a Privie Counsellor this must be either to traduce his Majesty to the people as spoken from him or from himselfe who was Lord Leivetenant 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 Citty of that Kingdome whether the Subjects of that Country came for Justice in an Assembly of Peeres and others of greatest ranke upon occasion of a Speech of the Recorder of that Citty touching their Franchises and Legall Rights he tells them that Ireland was a Conquered Nation and that the King might do 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 Conqueror before the King might do with them what he would now They were to expect it that he would put this power of a Conqueror in execution The Circumstances are very considerable in full Parliament from himselfe in Cathedrâ 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 he 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 Petititions to himselfe forced Obedience to these not only 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 between 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 been 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 The 4. Generall Head Treasons within the 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
here in the Kings bench that was in Trinity tearme in the three-and-thirtie yeare of Henry the eight this was before the making of that Statute Obj. To this againe will bee said that it was for treason by the Lawes and Statutes of England but this is not for anything that 's treason by the Law of England but by an Irish Statute So that the question is onely whether your Lordships in Parliament heere have cognizance 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 Whether the rule for expounding the Irish Statutes and customes bee one and the same in England as in Ireland 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 primative and the generall law that 's the rule and expositour of them and of their severall extents it is so heere 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 John and afterwards by King Harry the third by act of Parliament held in England as appeares by the pattent Rolls of the 30. yeare of King Henry the third the first membrana The words are Quia pro communi utilitate terrae Hiberniae unitate terrarum Regis Rex vult de communi consilio Regis provisum est quod omnes leges consuetudines quae in regno Angliae tenentur in Hibernia teneantur eadem terra eisdem legibus subjaceat per easdem regatur sicut Dominus Johannes Rex cum ultimo esset in Hibernia statuit fierimandavit Quia c. Rex vult quod omnia brevia de communi Jure quae currunt in Anglia similiter currant in Hibernia sub novo sigillo Regis mandatum est Archiepiscopis c. quod pro pace tranquillitate ejusdem terrae per casdem leges eos regi deduci permittant ea 〈◊〉 omnibus sequantur In cujus c. Teste Rege apud Woodstock decimo none die Septembris Here 's an union of both Kingdomes and that by act of Parliament and the same Lawes to bee used here as there in omnibus My Lords That nothing might bee 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 fourteenth yeere of Edward the second it is not in print neither but is in the Parliament book That the Laws 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 Edward the third part 1. memb 35. 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 My Lords 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 sometimes 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 bee let out of prison upon tender of their Compurgators The words of the Statute of the fifth yeere of Edward 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 Booke of Justice Anderson one of the Judges consulted withall The Judges here delivered opinion upon an Irish Statute in case of Treason If it bee objected That in this case the Judges here did not judge upon the party their opinions were onely ad informandum 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 been offered For the second point That England hath no power of Judicature for things done in Ireland My Lords the constant practice of all ages proves the contrary Writs of errour in Pleas of the Crowne as well as in civill causes have in all Kings reignes beene brought here even in the inferiour Courts of Westminster Hall upon judgements given in the Courts of Ireland The practice is so frequent 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 But it will be said That writs of errour are only upon a failer of justice in Ireland and that suits cannot originally be commenced here for things done in Ireland because the Kings writ runs not in Ireland This might bee a good plea in the Kings Bench and inferiour Courts at Westminster Hall the question is whether it bee so in Parliament
would have done to others It s true we give law to Hares and Deeres because they be beasts of Chase It was never accounted either cruelty or foul 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 politie of the state wherein he lived which had so long and with such faithfulnesse protected his Ancestry himself and his whole family it was not malum quia prohibitum it was malum in se against the dictates of the dullest conscience against the light of nature they not having 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 culpa sed de poena what degree of punishment those faults deserve we must differ from him in opinion that twenty felonies cannot make a treason if it be meant of equality in the use of the Legislative power for he that deserves death for one of these felonies alone deserves a death more painful and more ignominious for all together Every felony is punished with losse of life lands and goods a felony may bee 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 of 1. H. 4. who for a barbarous murder committed upon the Duke of Glocester stifling him between two feather-beds at Calice was adjudged to be hanged drawn and quartered Batteries by Law are 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 fervant to Sir John Brooke a knight of the Parliament for Sommersetshire 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 offendor And in the Kings Bench as appears by the booke 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 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 publicke patrimony of the kingdome But it was hoped that your Lordships had no more skill in the Art of killing of men then your worthy Ancestors My Lords this appeale from your selves to your Ancestors we admit of although we do not admit of that from your Lordships to the Peers of Ireland He hath appealed to them your Lordships will be pleased to heare what Judgement they have already given in the Case that is the severall attainders of treason in Parliament after the Statute of 25. E. 3. for treasons not mentioned nor within that Statute and those upon the first offendors without warning given By the Statute of 25. E. 3. its treason to levy war against the King Gomines and Weston afterwards in Parliament in 1. R. 2. num 38. 39. adjudged traitors for surrendring two severall Castles in France onely out of feare without any compliance with the Enemy this not within the Statute of 25. E. 3. My Lords in 3. R. 2. John Imperiall that came into England upon letters of safe conduct as an Agent for the state of Genoah sitting in the Evening before his doore in Breadstreete as the words of the Records are paulo ante ignitegium John Kirby and another Citizen comming that way casually Kirby trode upon his Toe it being twilight this grew to a quarrell and the Embassadour was slaine Kirby was indicted of high treason the inditement findes all this and that it was onely done se defendendo and without malice The Judges it being out of the Statute of 25. E. 3. could not proceede the Parliament declared it treason and judgement afterwards of high treason there 's nothing can bring this within the Statute of 25. E. 3. but it concernes the honour of the Nation that the publicke faith should be strictly kept It might endanger the trafficke 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 judgment is given against him In 11. R. 2. Tresilian and some others attainted of treason for delivering opinions in the subversion of the Law and some others for plotting the like My Lords the case hath upon another occasion beene opened to your Lordships only this is observable That in the Parliament of the first yeare of Henry the third where all treasons are again reduced to the Statute of 25. E. 3. these Attainders were by a particular Act confirmed and made good that the memory thereof might bee transmitted to succeeding ages They stand good unto this day the Offences there as here were the endeavouring the subversion of the lawes My Lords after 1. H. 4. Sir John Mortimer being committed to the Tower upon suspicion of treason brake prison and made an escape This no way within any Statute or any former Judgment at common Law for this that is for breaking the prison only and no other cause in the Parliament held the second yeer of Henry the sixth hee was attainted of high treason by Bill My Lords Poysoning is only murder yet one Richard Coke having put poyson into a pot of pottage in the kitchin of the Bish of Rochester whereof two persons died hee 's attainted of treason and it was enacted that he should bee 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 Katherine and that in case he persisted in the separation and should marry another that he would not continue King above one moneth after because this tended to the depriving of the lawfull succession to the Crowne shee is attainted of treason In the Parliament 2. 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 hee should declare unto them for saying that hee 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 Councell 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 first yeere of Henry the fourth and the first of Qu. Mary although they were willing to make the Statute of the five and twentieth yeere of Edward the third the rule to the inferiour Courts yet they left the Attainders in Parliament precedent to themselves untoucht wherein the Legislative power had been exercised There 's nothing in them whence it can be gathered but that they intended to leave it as free for the future My Lords In all these Attainders there were crimes and offences against the Law they thought it not unjust circumstances considered to heighten and add to the degrees of punishment and that upon the first offender My Lords We receive as just the other Lawes and Statutes made by these our Ancestors they are the rules wee goe by in other cases why should we differ from them in this alone These My Lords are in part those things which have satisfied the Commons in passing of the Bill It is now left to the Judgement and Justice of your Lordships FINIS