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
of a contrary and dubious opinion concerning these treasons either upon the statutes of 25. E. 3. and 18. H. 6. or at the Common Law My Lords if all these five should faile they have given me further in command to declare to your Lordships some of their reasons why they conceive that in this case the meere Legaslative power may be exercised Their reasons are taken from these three grounds 1. From the nature and quality of the offence 2. From the frame and constitution of the Parliament wherein this Law is made 3. From practices and usages of former times The horridnesse of the offence in endeavouring the overthrowing the Lawes and present government hath been fully opened to your Lordships heretofore The Parliament is the representation of the whole Kingdome wherein the King as Head your Lordships as the more noble and the Commons the other members are knit together in one body politick This dissolves the arteries and ligaments that hold the Body together the Lawes He that takes away the Lawes takes not away the allegeance of one subject alone but of the whole Kingdome It was made Treason by the statute of 13. El. for her time to affirme That the Lawes of the Realme doe not bind the descent of the Crowne no Law no descent at all No Lawes no Peerage no ranks or degrees of men the same condition to all It 's treason to kill a Judge upon the Bench this kills not Iudicem sed Iudicium He that borrowed Apelles and gave bond to return again Apelles the Painter sent him home after he had cut off his right hand his bond was broken Apelles was sent but not the Painter There be twelve men but no law there 's never a Judge amongst them It s felony to embezill any one of the judiciall records of the Kingdome this at once sweepes them all away and from all It s treason to counter feit a twenty shilling peece here 's a counterfeiting of the Law we can call neither the counterfeit nor true coyne our owne It s treason to counterfeit the great Seale for an acre of land no property hereby is left to any land at all Nothing treason now either against King or Kingdome no Law to punish it My Lords If the question were asked in Westminster Hall whether this were a crime punishable in starre-chamber or in the Kings Bench by fine or imprisonment they would say it went higher If whether felony they would say That 's for an offence onely against the life or goods of some one or few persons It would I beleeve be answered by the Judges as it was by the chiefe Justice Thirning in 21. R. 2. That though he could judge the case treason there before him yet if he were a Peere in Parliament he would so adjudge it My Lords if it be too big for those Courts we hope it s in the right way here 2. The second consideration is from the frame and constitution of the Parliament the Parliament is the great body politicke it comprehends all from the King to the begger if so my Lords as the naturall so this body it hath power over it selfe and every one of the members for the preservation of the whole It s both the Physitian and the patient if the body be distempered it hath power to open a veine to let out the corrupt blood for curing of it selfe if one member be poysoned and gangren'd it hath power to cut it off for the preservation of the rest But my Lords it hath been often inculcated that Law-makers should imitate their supreme Law-giver who commonly warnes before he strikes the Law was promulged before the judgement of death for gathering of sticks no Law no transgression My Lords to this the rule of Law is Frustra Legis auxilium invocat qui in Legem committit from the Lex talionis he that would not have had others to have law why should he have any himselfe why should not that be done to him that himself would have done to others It 's true we give law to Hares and Deers because they be beasts of Chase it was never accounted either cruelty or foule 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 polity of the State wherein he lived which had so long and with such faithfulnesse protected his Ancestry himselfe 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 culpâ sed de poenâ 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 hee that deserves death for one of these felonies alone deserves a death more painfull and more ignominious for all together Every felony is punished with losse of life lands and goods a felony may be 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 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 servant to Sir Iohn Brook a Knight of the Parliament for Somersetshire 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 offender and in the Kings Bench as appeares by the book 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
M R. S T. JOHN ' S Argument My Lords THE Knights Citizens and Burgesses of the Commons House of Parliament have passed a Bill for the attainting of Thomas Earle of Strafford of High-Treason The Bill hath beene transmitted from them to your Lordships It concernes not him alone but your Lordships and the Commons too though in different Respects It is to make him as miserable a man as man or Law can make him Not losse of life alone but with that of honour name posterity and estate Of all that 's deare to all To use his owne expression an eradication of him both root and branch as an Achan a troubler of the State as an execrable as an accursed thing This Bill as it concernes his Lordship the highest that can be in the penall part so doth it on the other side as highly concerne your Lordships and the Commons in that which ought to be the tendrest the Judicatory within that that judge not them who judge him And in that which is most sacred amongst men the publick Justice of the Kingdome The Kingdome is to be accounted unto for the losse of the meanest member much more for one so neare the head The Commons are concerned in their Account for what is done your Lordships in that which is to be done The businesse therefore of the present Conference is to acquaint your Lordships with those things that satisfied the Commons in passing of this Bill such of them as have come within my capacity and that I can remember I am commanded from the Commons at this time to present unto your Lordships My Lords in Judgements of greatest moment there are but two wayes for satisfying those that are to give them Either the Lex lata the Law already established Or else the use of the same power for making new Lawes whereby the old at first received life In the first consideration of the setled Lawes In the degrees of punishment the positive Law received by generall consent and for the common good is sufficient to satisfie the conscience of the Judge in giving judgement according to them In severall Countreys there is not the same measure of punishment for one and the same offence Wilfull murder in Ireland is Treason and so is the wilfull burning of a house or stack of Corne. In the Isle of Man it 's felony to steale a Hen but not to steale a Horse and yet the Judge in Ireland hath as just a ground to give judgement of high Treason in those Cases there as here to give judgement only of felony and in the Isle of Man of felony for the Hen as here of petty Larceny My Lords in the other consideration of using the Supreame power the same Law gives power to the Parliament to make new Lawes that enables the inferiour Court to judge according to the old The rule that guides the conscience of the Inferiour Court is from without the prescripts of the Parliament and of the Common Law in the other the rule is from within That salus populi be concerned That there be no wilfull oppression of any the fellow members that no more blood be taken than what is necessary for the Cure the Laws and Customes of the Realme as well enable the exercise of this as of the ordinary and judiciall power My Lords what hath beene said is because that this proceeding of the Commons by way of Bill implyes the use of the meere Legislative power in respect new Lawes are for the most part past by Bill This my Lords though just and Legall and therefore not wholly excluded yet it was not the only ground that put the Commons upon the Bill they did not intend to make a new Treason and to condemne my Lord of Strafford for it they had in it other Considerations likewise which were to this effect 1 First the Commons knew that in all former ages if doubts of Law arose upon cases of great and generall Concernment the Parliament was usually consulted withall for resolution which is the reason that many Acts of Parliament are only declarative of the Old Law not introductive of a new as the great Charter of our Liberties the Statute of the five and twentieth yeere of Edward the third of Treasons the Statute of the Prerogative and of late the petition of Right If the Law were doubtfull in this Case they conceived the Parliament where the old may bee altered and new Lawes made the fittest Judge to cleare this doubt 2 Secondly my Lords they proceeded this way to out those scruples and delayes which through dis-use of proceedings of this nature might have risen in the manner and way of proceeding since the Statute of the first of Henry the fourth the seventeenth chapter and more fully in the Roll number 144. The proceedings in Parliament have usually beene upon an Inditement first found though in Cases of Treason particularly mentioned in the Statute of the five and twentieth yeare of Edward the third which had not beene done in this Case Doubts likewise might rise for Treasons not particularly mentioned in the Statute of 25. Edw. 3. whether the declaratory power of Parliament be taken away and if not taken away in what manner they were to be made and by whom They finde not any Attainders of Treason in Parliament for neere this 200 yeeres but by this way of Bill And againe they knew that whatsoever could be done any other way it might be done by this 3 Thirdly in respect of the proofes and depositions that have beene made against him for first although they knew not but that the whole Evidence which hath beene given at the Barre in every part of it is sufficiently comprehended within the Charge yet if therein they should be mistaken if it should prove otherwise use may justly be made of such Evidence in this way of Bill wherein so as Evidence be given in it 's no way requisite that there should have beene any Articles or Charge at all And so in the Case of double Testimony upon the Statute of the first of Edward the sixt whether one direct witnesse with others to Circumstances had beene single or double Testimony and although single Testimony might be sufficient to satisfie private Consciences yet how farre it would have been satisfactory in a judiciall way where forms of Law are more to be stood upon was not so cleare whereas in this way of Bill private satisfaction to each mans Conscience is sufficient although no evidence had been given in at al. My Lords the proceeding by way of Bill it was not to decline your Lordships Justice in the judiciall way In these Exegencies of the State and Kingdome it was to husband time by silencing those doubts they conceived it the speediest and the surest way My Lords These are in effect the things the Commons took into their Consideration in respect of the manner and way of proceeding against the Earle In the next place I am to declare unto your
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
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