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
Parliament binds untill it be repealed It hath been therefore said that this Statute is repealed by the Statutes of the eighth yeere of Edward the fourth the first Chapter and of the tenth yeere of Henry the seventh the two and twentieth Chapter because by these two Satutes the English Statutes are brought into Ireland The Argument if I mistook it not stood thus That the Statute of the first of Henry the fourth the 10. Chapter saith that in no time to come Treason shall be adjuged otherwise then it was ordained by the Statute of the 25. yeere of Edward the third That the Treason mentioned in the 18 yeere of Henry the sixth in the Irish Satute is not contained in the Statute of the 25 yeere of Edward the 3. and therefore being contrary to the statute of the first of Henry the fourth it must needs be void My Lords the difference of the times wherein the statute of the first yeere of Henry the fourth and that of the 18 yeere of Henry the sixth were made cleare the Point as is humbly conceived that of Henry the sixth was made fourty yeeres after the other The statute of the eighth yeere of Edward the fourth and the tenth of Henry the seventh bringing in the English statutes in order and series of time as they were made one after another as afterwards is proved they did it cannot be that the statute of the first yeere of Henry the fourth made fourty yeere before should repeale or make void the statute of the 18. Henry 6. made so long after The rule of Law is that Leges posteriores priores abrogant that latter lawes repeale former But by this construction a former Law should repeale and make void a Non ens a statute then was not If this were Law then all the statutes that made any new Treason after the first yeere of Henry the fourth were void in the very fabricke and at the time when they were made hence likewise it would follow that the Parliament now upon what occasion soever hath no power to make any thing Treason not declared to be so in the statute of the five and twentieth yeere of Edward the third This your Lordships easily see would make much for my Lord of Straffords advantage but why the Law should be so your Lordships as yet have onely heard an affirmation of it no reason But some touch was given that this statute of the tenth yeer of H. the seventh in words makes all the Irish statutes void which are contrary to the English The Answer to this is a deniall that there are any such words in the statute This statute declares that the English statutes shall be effectuall and confirmed in Ireland and that all statutes before time made to the contrary shall be revoked this repeales onely the Irish statutes of the tenth yeere of Henry the fourth and the nine and twentieth yeere of Honry the sixth which say that the English statutes shall not be in force in Ireland unlesse particularly received in Parliament It makes all the Irish statutes void which say that the English statutes shall not be in force there It is usuall when a Statute saith that such a thing shall be done or not done to adde further that all statutes to the contrary shall be voide No likeli-hood that this statute intended to take away any statute of Treason When but in the Chapter next before this Murder there is made Treason as if done upon the Kings Person That this statute of the eighteenth yeer of Henry the sixth remains on foot and not repealed either by the Statute of the eighth yeere of Edward the fourth or this of the tenth yeere of Henry the seventh appeares expressely by two severall Acts of Parliament made at the same Parliament of the tenth yeere of Henry the seventh By an Act of Parliament in H. the sixth's time in Ireland it was made Treason for any man to procure a privie Seale or any other Command whatsoever for apprehending any person in Ireland for Treason done without that Kingdome and to put any such Command in execution Divers had been attainted of Treason for executing such Commands Heere is a Treason so made by Act of Parliament in Henry the sixth's time In the third Chapter of this Parliament of the tenth of Henry the seventh an Act is passed for no other end then to repeale this statute of Henry the sixth of Treason If this statute of Henry the sixth of Treason had been formerly repealed by the statute of 8. Edward 4. or then by the two and twentieth Chapter of this Parliament of 10. Henry 7. by bringing in the English statutes the Law-makers were much mistaken now to make a particular Act of Parliament to repeale it it being likewise so unreasonable an Act as it was In the eighth Chapter of this Parliament of the tenth of Henry the seventh It is enacted That the statutes of Kilkenny and all other statutes made in Ireland two onely excepted whereof this of the eighteenth of Henry the sixth is none for the Common-weale shall be enquired off and executed My Lord of Strafford saith that the bringing in of the English statutes hath repealed this statute of the eighteenth yeere of Henry the sixth the Act of Parliament made the same time saith no it saith that all the Irish statutes excepting two whereof this is none shall still be in force Object Oh! But how ever it was in 10. H. 7. yet it appeares by Judgement in Parliament afterwards That this statute of the eighteenth yeere of Henry the sixth is repealed and that is by the Parliament of the eleventh yeere of Queene Elizabeth the seventh Chapter That by this Parliament it is enacted that if any man without license from the Lord Deputie lay any Souldiers upon the Kings Subjects if he be a Peere of the Realme he shall forfeit one hundred pounds if under the degree of a Peere 100 markes This statute as is alleadged declares the penalty of laying Souldiers upon the Subjects to bee onely a hundred pounds and therefore it s not Treason Answer My Lords if the offence for which this penalty of one hundred pounds is laid upon the offender be for laying Souldiers or leading them to doe any acts oftensive or invasive upon the Kings people The Argument hath some force but that the offence is not for laying Souldiers upon the true Subjects that this is not the offence intended in the statute will appeare to your Lordships Ex absurdo from the words of it The words are That if any man shall assemble the people of the County together to conclude of peace or warre or shall carry those people to doe any Acts offensive or invasive then he shall forfeit one hundred pounds If concluding of warre and carrying the people to Acts invasive be against the Kings Subjects this is high Treason within the words of the statute of the five and twentieth yeere of Edward the third For if any