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
away by the Statute of 25. E. 3. 1. H. 4. or 1. Q. M. or any of them My Lord to say they be taken away by the Stat. of 25. E. 3. is to speak against the direct words and scope of that Statute In it there 's this clause That because many other like cases of treason might fall out which are not there declared therefore it is enacted That if any such case come before the Judges they shall not proceed to Judgement till the case be declared in Parliament whether it ought to be adjudged treason or not These words and the whole scope of that Statute shewes that it was not the meaning to take away any treasons that were so before but only to regulate the jurisdiction and manner of triall Those that were single and certaine Acts as conspiring the Kings death levying war counterfeiting the money or great Seale killing a Judge these are left to the ordinary Courts of justice the others not depending upon single Acts but upon constructions and necessary inferences they thought it unfit to give inferiour Courts so great a latitude here as too dangerous to the subject those they strained to Parliaments This statute was the security of the subject made with such wisedome as all the succeeding ages have approved it It hath often passed through the furnace but like gold hath lost little or nothing The statute of 1. H. 4 cap. 10. is in these words Whereas in the Parliament held the 21 yeere of Richard the 2. divers pains of treasons were ordained insomuch that no man did know how to behave himselfe to doe say or speake It is accorded that in no time to come any treason be adjudged otherwise then it was ordained by the Statute of 25. E. 3. It hath been said to what end is this statute made if it takes not away the common Law treasons remaining after the statute of 25. Edward 3. There be two maine things which this statute doth First it takes away for the future all the treasons made by any statute since 25. E. 3. to 1. H. 4. even to that time For in respect that by another Act in that Parliament the statute of 21. R. 2. was repealed it will not be denied but that this statute repeals more treasons then these of 21. R. 2. it repeals all statute treasons but those in 25. E. 3. Secondly It not only takes away the statute treasons but likewise the declared treasons in Parliament after 25. E. 3. as to the future After declaration in Parliament the inferior Courts might judge these treasons for the declaration of a treason in Parliament after it was made was sent to the inferior Courts that toties quoties the like case fell out they might proceed therein the subject for the future was secured against these so that this statute was of great use By the very words of it it still refers all treasons to the provision of 25. E. 3. it leaves that entire and upon his old bottome The statute of 1. Q. M. cap. 1. saith That no offences made treason by any Act of Parliament shall thenceforth be taken or adjudged to be treason but onely as be declared and expressed to be treason by the statute of 25. E. 3. concerning treason or the declaration of treason and no others And further provides that no pains of death penalty or forfeiture in any wise shall ensue for committing any treason other then such as be in the statute of 25. E. 3. ordained and provided any Acts of Parliament or any declaration or matter to the contrary in any wise notwithstanding By the first part of this statute onely offences made treason by Act of Parliament are taken away the Common Law treasons are no way touched The words and no others referre still to offences made treason by Act of Parliament they restrain not to the treasons onely particularly mentioned in the statute of 25. E. 3. but leaue that statute entire as to the Common-law treason as appears by the words immediatly foregoing By the second part for the pains and forfeitures of treasons if it intend onely the punishment of treason or if it intend both treason and punishment yet all is referred to the provision and ordinance of 25. E. 3. any Act of Parliament or other declaration or thing notwithstanding It saith not other then such penalties or treasons as are expressed and declared in the statute of 25. E. 3. that might perhaps have restrained it to those that are particularly mentioned No it refers all treasons to the general ordination and provision of that statute wherein the Common law-treasons are expresly kept on foot If it be askt what good this statute doth if it take not away the the Common-law treasons 1. It takes away all the treasons made by Act of Parliament not only since the first of H. 4. which were many but all before 1. H. 4. even untill 25. E. 3. by expresse words 2. By expresse words it takes away all declared treasons if any such had been made in Parliament these for the future are likewise taken away so that whereas it might have been doubted whether the statute of 1. H. 4. took away any treasons but those of 21. and 22. R. 2. this clears it both for treasons made by Parliament or declared in Parliament even to the time of taking the statute This is of great use of great security to the subject so that as to to what shall be treason and what not the statute of 25. E. 3. remains entire and so by consequence the treasons at the Common Law Only my Lords it may be doubted whether the manner of the manner of the Parliamentary proteedings be not altered by the statute of 1. Hen. 4. the 17. cap. and more fully in the Parliament roll num 144. that is whether since that statute the Parliamentary power of declaration of treasons whereby the inferiour Courts received jurisdiction be not taken away and restrained only to Bill that so it might operate no further than to that particular contained in the Bill that so the Parliamentary declarations for after times should be kept within the Parliament it selfe and be extended no further Since 1. H. 4. we have not found any such declarations made but all Attainders of treason have been by Bill If this be so yet the common-Law-treasons still remaining there is one and the same ground of reason and equity since 1. H. 4. for passing of a Bill of treason as was before for declaring it without Bill Herein the Legislative power is not used against my Lord of Strafford in the Bill it is only the jurisdiction of the Parliament But my Lords because that either through my mistaking of the true grounds and reasons of the Commons or my not pressing of them with apt arguments and presidents of former times or that perchance your Lordships from some other reasons and authorities more swaying with your Lordships judgements then these from them may possible be
Subject shall assemble the people and conclude a warre and accordingly shall lead them to invade the Subject this is a levying of warre within the word of that statute and then the statutes of the five and twentieth yeere of Edward the third the first of Henry the fourth and the first of Queene Mary which the Earle of Strafford in his Answer desires to be tryed by are as well repealed in this point as the statute of the eighteenth yeere of Henry the sixth he might then without feare of Treason have done what he pleased with the Irish Army for all the statutes of levying war by this statute of the eleventh yeer of Queene Elizabeth were taken out of his way In Ireland a Subject gathers forces concludes a warre against the Kings people actually invades them bloodshed burning of houses Depredations ensue two of those that is murder and burning of houses are Treason and there the other felony by this construction the punishment of Treason and felony is turned onely into a fine of one hundred pounds from losse of life lands and all his goods onely to losse of part of his goods 3 The third absurdity a warre is concluded three severall Inrodes are made upon the Subject in the first a hundred pound dammage in the second five thousand pounds dammage in the third ten thousands pound dammage is done to the Subjects the penalty for the last inrode is no more than for the first onely one hundred pounds This statute by this construction tells any man how to get his living without long labour Two parts of the hundred pounds is given to the King a third part to the informer here 's no dammage to the Subject that is robbed and destroyed My Lords the Statute will free it selfe and the makers of it from these absurdities The meaning of this statute is That if any Captaine shall of his own head conclude of peace or war against the Kings Enimies or Rebels or shall upon his owne head invade them without warrant from the King or the Lord Deputie of Ireland that then he shall forfeit an hundred pounds The offence is not for laying of Souldiers upon the Kings people but making of warre against the Irish Rebells without warrant the offence â—s not in the matter but in the manner for doing a thing lawfull but without mission 1 This will appeare by the generall scope of the statute all the parts being put together 2 By particular clauses in the Statute 3 By the Condition of that Kingdome at the time of the making of that statute For the first The preamble recites that in time of Declination of Justice under pretext of defending the Countrey and themselves divers great men arrogated to themselves Regall authority under the names of Captaines that they acquired to themselves that government which belonged to the Crown for preventing this Its enacted that no man dwelling within the Shire grounds shall thenceforth assume or take upon himselfe the authority of name of a captaine within those Shire grounds without Letters Pattents from the Crowne nor shall under colour of his captaine-ship make any demand of the people of any exaction nor as a captaine assemble the people of the shire grounds nor as a captaine shall lead those people to doe any acts offensive or invasive without warrant under the great Seale of England or of the Lord Deputy upon penalty that if he do any thing contrary to that act then the Offender shall forfeit an hundred pounds My Lords the Rebels had been out the courts of justice scarce sate for defence of the countrey diverse usurped the place of Captaines concluded of warre against the Rebels and invaded them without warrant invading the Rebels without authority is the crime 2. This appeares further by the particular clauses in the statute None shall exercise any captaine-ship within the shire grounds nor assemble the men of the shire grounds to conclude of warre or lead them to any invasion That that had anciently beene so continued to this time that is the Irish and the English pale they within the shire grounds were within the English pale and ad fidem legem Angliae the Irish that were without the pale were enimies alwayes either in open act of hostility or upon leagues and hostages given for securing the peace And therefore as here in England we had our marches upon the frontiers in Scotland and Wales so were their Marches betweene the English and Irish pale where the inhabitants held their Lands by this tenure to defend the Countrey against the Irish as appeares in the close Rols of the Tower in the twentieth yeere of Edward the third membranâ 15. on the backside and in an Irish Parliament held the 42. yeere of Edward the 3. It s declared that the English pale was almost destroyed by the Irish enimies and that there was no way to prevent the danger but onely that the owners reside upon their Lands for defence and that absence should bee a forfeiture This act of Parliament in a great counsell here was affirmed as appeares in the close Roll the 22. yeere of Edward the third membra 20. dorse Afterwards as appeares in the Statute of the 28. yeere of Henry the 6. in Ireland this hostility continued betweene the English marches and the Irish enemies who by reason there was no difference betweene the English marches and them in their apparell did daily not being knowne to the English destroy the English within the pale Therefore it s enacted that every Englishman shall shave the haire of his upper lip for distinction sake This hostility continued till the 10. yeere of Henry the 7. as appeares by the Statute of the tenth of Henry the 7. the 17. Chapter and so successively downeward till the making of this very statute of the 11. yeere of Queene Elizabeth as appeares fully in the ninth chapter Nay immediately before and at the time of the making of this statute there was not onely enmity betweene those of the Shire grounds that is the English and Irish pale but open Warre and Acts of hostility as appeares by History of no lesse authority then that statute it selfe For in the first Chapter of this statute is the Attainder of Shane O Neale who had made open Warre was slaine in open Warre It 's there declared that he had gotten by force all the North of Ireland for an hundred and twenty miles in length and above a 100. in breadth that hee had mastered divers places within the English pale When the flame of this warre by his death immediately before this statute was spent yet the fire-brands were not all quenched for the rebellion was continued by Iohn Fitz Gerard called the white Knight and Thomas Queverford This appeares by the Statute of the 13. yeere of Queene Elizabeth in Ireland but two yeeres after this of the eleventh yeere of Queene Elizabeth where they are attainted of high treason for levying Warre this eleaventh yeere