was full of horror and malignity yet it is past many years since The murder of that Magnanimous and glorious King Henry the fourth of France was a great and horrid Treason And so were those manifold attempts against Qu. Elizabeth of blessed memory but they are long since past the Detestation of them only remains in Histories and in the minds of men and will ever remain But this Treason if it had taken effect was to be a standing perpetuall Treason which would have been in continuall act not determined within one time or age but transmitted to Posterity even from generation to generation The tenth Consideration is this That as it is a Crime odious in the nature of it so it is odious in the judgement and estimation of the Law To alter the setled frame and constitution of Government is Treason in any estate The Laws whereby all other parts of a Kingdome are preserved should be very vain and defective if they had not a power to secure and preserve themselves The forfeitures inflicted for Treason by our Law are of Life Honour and Estate even all that can be forfeited and this Prisoner having committed so many Treasons although he should pay all these forfeitures will be still a Debtor to the Common-wealth Nothing can be more equall then that he should perish by the Justice of that Law which he would have subverted Neither wil this be a new way of bloud There are marks enough to trace this Law to the very originall of this Kingdome And if it hath not been put in execution as he alledgeth this 240. years it was not for want of Law but that all that time hath not bred a man bold enough to commit such Crimes as these which is a circumstance much aggravating his offence and making him no whit lesse liable to punishment because he is the onely man that in so long a time hath ventured upon such a Treason as this It belongs to the charge of another to make it appear to your Lordships that the Crimes and Offences proved against the Earle of Strafford are High Treason by the Lawes and Statutes of this Realm whose learning and other abilities are much better for that service But for the time and manner of performing this we are to resort to the Direction of the House of Commons having in this which is already done dispatched all those instructions which wee have received and concerning further proceedings for clearing all Questions and Objections in Law your Lordships will hear from the House of Commons in convenient time FINIS AN ARGVMENT of Law concerning the Bill of ATTAINDER of HIGH-TREASON of THOMAS Earle of Strafford At a Conference in a Committe of both Houses of Parliament By Mr. St. JOHN his Majesties Solicitor GENERALL Published by order of the Commons House LONDON Printed by G. M. for John Bartlet at the signe of the gilt Cup neare S. Austins-gate in Pauls Church-yard 1641. Mr. St. IOHN'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 been 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 Lorships 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 publike 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 waies for satisfying those that are to give them Either the Lex lata the Law already established Or els 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 Countries 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 stacke of Corne. In the Isle of Man it 's fellony 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 onely of Fellony and in the Isle of Man of Felony for the Hen as heere of pettie 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 Inferior 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 therebe no wilfull oppression of any the fellow members that no more blood be taken then what is necessary for the Cure the Lawes 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 implies the use of the meere Legis-Lative power in respect new Lawes are for the most part past by Bill This my Lords though just and Legall and therefore not wholy 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 First the Commons knew that in all former ages if doubts of Law arose upon cases of great and generall Concernement the Parliament was usually consulted withall for resolution which is the reason that many Acts of
THE DECLARATION OF JOHN PYM Esquire VPON THE VVHOLE MATTER of the Charge of High Treason against THOMAS EARLE OF STRAFFORD APRIL 12. 1641. WITH An ARGUMENT of Law concerning the Bill of Attainder of High Treason of the said EARLE of STRAFFORD Before a Committee of both Houses of Parliament in WESTMINSTER Hall BY Mr St-Iohn his Majesties Solicitor Generall on Thursday April 29. 1641. Both Published by Order of the Commons House Printed at London for Iohn Bartlet and are to be sold at the gilt Cup near S. Austins Gate in Pauls Church-yard 1641. THE SPEECH OR DECLARATION OF JOHN PYM Esquire After the Recapitulation or summing up of the Charge of High-Treason AGAINST THOMAS EARLE OF STRAFFORD 12. APRIL 1641. Published by Order of the COMMONS HOUSE LONDON Printed for JOHN BARTLET 1641. THE SPEECH OR DECLARATION OF JOHN PYM Esq c. MY LORDS MAny dayes have been spent in maintenance of the Impeachment of the Earle of Strafford by the House of Commons whereby he stands charged with High Treason And your Lordships have heard his Defence with Patience and with as much favour as Iustice would allow We have passed through our Evidence and the Result of all this is that it remaines clearly proved That the Earle of Strafford hath indeavoured by his words actions and counsels to subvert the Fundamentall Lawes of England and Ireland and to introduce an Arbitrary and Tyrannicall Government This is the envenomed Arrow for which he inquired in the beginning of his Replication this day which hath infected all his Bloud This is that Intoxicating Cup to use his owne Metaphor which hath tainted his Iudgement and poisoned his Heart From hence was infused that Specificall Difference which turned his Speeches his Actions his Counsels into Treason Not Cumulative as he exprest it as if many Misdemeanours could make one Treason but Formally and Essentially It is the End that doth informe Actions and doth specificate the nature of them making not onely criminall but even indifferent words and actions to be Treason being done and spoken with a Treasonable intention That which is given me in charge is to shew the quality of the offence how hainous it is in the nature how mischievous in the effect of it which will best appeare if it be examined by that Law to which he himselfe appealed that universall that supreme Law Salus populi This is the Element of all Laws out of which they are derived the End of all Laws to which they are designed and in which they are perfected How far it stands in opposition to this Law I shall endeavour to shew in some Considerations which I shal present to your Lordships all arising out of the Evidence which hath been opened The first is this It is an offence comprehending all other offences here you shall finde severall Treasons Murders Rapines Oppressions Perjuries The Earth hath a Seminarie vertue whereby it doth produce all Hearbs and Plants and other Vegetables There is in this Crime a Seminarie of all evils hurtfull to a State and if you consider the reasons of it it must needs be so The Law is that which puts a difference betwixt good and evill betwixt just and unjust If you take away the Law all things will fall into a confusion every man will become a Law to himselfe which in the depraved condition of humane nature must needs produce many great enormities Lust will become a Law and Envie will become a Law Covetousnesse and Ambition will become Lawes and what dictates what decisions such Laws will produce may easily be discerned in the late Government of Ireland The Law hath a power to prevent to restraine to repaire evils without this all kind of mischiefs and distempers will break in upon a State It is the Law that doth intitle the King to the Allegeance and service of his people it intitles the people to the protection and justice of the King It is God alone who subsists by himselfe all other things subsist in a mutuall dependence and relation He was a wise man that said that the King subsisted by the field that is tilled It is the labour of the people that supports the Crowne If you take away the protection of the King the vigour and cheerfulness of Allegeance will be taken away though the Obligation remaine The Law is the Boundarie the Measure betwixt the Kings Prerogative and the Peoples Liberty Whiles these move in their owne Orbe they are a support and security to one another The Prerogative a cover and defence to the Liberty of the people and the people by their liberty are enabled to be a foundation to the Prerogative but if these bounds be so removed that they enter into contestation and conflict one of these mischiefes must needs ensue If the Prerogative of the King overwhelm the liberty of the people it will be turned into Tyrannie if liberty undermine the Prerogative it will grow into Anarchie The Law is the safeguard the custody of all private interest Your Honours your Lives your Liberties and Estates are all in the keeping of the Law without this every man hath a like right to any thing and this is the condition into which the Irish were brought by the E. of Strafford And the reason which he gave for it hath more mischiefe in it then the thing it selfe They were a Conquered Nation There cannot be a word more pregnant and fruitfull in Treason then that word is There are few Nations in the world that have not been conquered and no doubt but the Conquerour may give what Lawes he please to those that are conquered But if the succeeding Pacts and Agreements doe not limit and restraine that Right what people can be secure England hath been conquered and Wales hath been conquered and by this reason will be in little better case then Ireland If the King by the Right of a Conquerour gives Lawes to his People shall not the people by the same reason be restored to the Right of the conquered to recover their liberty if they can What can be more hurtfull more pernicious to both then such Propositions as these And in these particulars is determined the first Consideration The second Consideration is this This Arbitrary power is dangerous to the Kings Person and dangerous to his Crown It is apt to cherish Ambition usurpation and oppression in great men and to beget sedition and discontent in the People and both these have beene and in reason must ever be causes of great trouble and alteration to Princes and States If the Histories of those Easterne Countries be perused where Princes order their affaires according to the mischievous principles of the E. of Strafford loose and absolved from all Rules of Government they will be found to be frequent in combustions full of Massacres and of the tragicall ends of Princes If any man shall look into our owne Stories in the times when the Laws were most neglected he shall find them full of
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
Parliament are onely declarative of the Old Law not introductive of a new as the great Charter of our Liberties the Statute of the five and twentieth yeare 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 be altered and new Lawes made the fittest Iudge to cleare this doubt Secondly my Lords they proceeded this way to out those scruples and delaies which through disuse of proceedings of this nature might have risen in the manner and way of proceeding since the Statute of the first of Henery 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 been 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 neare this 200 yeares but by this way of Bill And againe they knew that whatsoever could be done any other way it might be done by this 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 been single or double testimony and although single Testimony might be sufficient to satisfie private Consciences yet how farre it would have beene satisfactory in a judiciall way where formes 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 beene given in at all My Lords the proceeding by way of Bill it was not to decline your Lordships Iustice 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 furest way My Lords These are in effect the things the Commons tooke 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 Lordships the things they tooke into their consideration in respect of the matter and merits of the Cause They are comprehended within these 6. heads 1. That there is a Treason within the Statute of 25. E. 3. by Levying of warre upon the matter of the fifteenth Article 2. If not by actuall Levying of warre yet by advising and declaring his intention of warre and that by Savils warrant and the advice of bringing over the Irish Army upon the matter in the 23. Article The intending of a Warre if not within the Clause of Levying Warre in the Statute of 25. E. 3. yet within the first Treason of compassing the death of the King 3. If neither of these two single Acts be within the Statute of 25. E. 3. yet upon putting all together which hath beene proved against him That ther 's a Treason within the first clause of compassing the death of the King Et si non prosunt singula juncta juvant 4. That he hath fessed and laid Souldiers upon the Subjects of Ireland against their will and at their Charge within the Irish Statute of the eighteenth yeare of Henry the sixt That both person and thing are within the Statute That the Statute remaines in force to this day That the Parliament here hath Cognizance of it And that even in the ordinary way of Judicature that if there be a Treason and a Traitor that the want of jurisdiction in the Judicall way may justly be supplied by Bill 5. That his endeavouring to subvert the fundamentall Lawes and Governement of the Realmes of England and Ireland and instead thereof to introduce a tyranicall Governement against Law is Treason by the Common Law That Treasons at the Common Law are not taken away by the Statutes of 25. E. 3. 1. H. 4. c. 10. 1â— Mar. c. 1. nor any of them 6. That as this Case stands It 's just and necessary to resort to the Supreame power in Parliament in case all the rest should faile Of these six five of them are Treason within the Compasse of the Lawes already established Three within the Statute of 25 E. 3. One within the Irish Statute the other by the Common Law of England If but any one of these 6. Considerations hould The Commons conceive that upon the whole matter they had good cause to passe the Bill My Lords for the first of levying Warre 1. The Case I shall make bold to read the Case to your Lordships before I speake to it it s thus The Earle did by warrant under his hand and Seal give authority to Robert Savill a Serjeant at Arms and his Deputies to sesse such number of Souldiers horse and foote of the Army in Ireland together with an officer as the Serjeant should thinke fit upon his Majesties Subjects of Ireland against their will This warrant was granted by the Earle to the end to compell the Subjects of Ireland to submit to the unlawfull Summons and orders made by the Earle upon paper Petitions exhibited unto him in case of private Interest betweene party and party This warrant was executed by Savill and his Deputies by sessing of Souldiers both horse and foote upon diverse of the Subjects of Ireland against their will in warre-like manner and at divers times the Souldiers continued upon the parties upon whom they were sessed and wasted their goods untill such time as they had submitted themselves unto those Summons and orders My Lords This is a levying of warre within the statute of 25o. E. 3. The words of the Statute are If any man doe levy warre against our Lord the King in his Realm this is declared to be Treason I shall indeavour in this to make it appeare to your Lordships What shall be a levying of Warre in respect of the motive or cause of it What shall bee said a levying of warre in respect of the Action or thing done And in the third place I shall apply them to the present Case It will bee granted in this of levying of warre That forces may bee raised and likewise used in a
parts wheresoever in subjection to the Crowne of England The last thing I shall offer to your Lordships is the case of 19. El. in my Lord Dyer 306. and Judge Cromptons book of the jurisdiction of Courts fol. 23. The opinion of both these Books is That an Irish Peer 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 Countries are not governed by the Lawes of England but Ireland being governed by the same Laws the Peers 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 Peers of Ireland so that if hee bee not triable here hee 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 judicature 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 tyrannicall government In this I shall not at all labour to prove that the endevouring by words counsels 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 politic and government away England's but a piece of earth wherein so many men have their commorancy abode without ranks or distinction of men without propertie in anything 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 other causes counted Ecclesiasticall had been frequent had in most Kings reigns been tolerated some in times of Popery put a conscience upon them the Statutes had limited the penalty to a Premunire only Neither was that a totall subversion only an Appeale from the Ecclesiasticall Court here in a single cause to the Court at Rome and it 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 only as a Premunire The thing most considerable in this is whether the treasons at common Law be taken away by the Stat. of 25. E. 3. 1. H. 4. or 1. Q. M. or any of them My Lords To say they bee taken away by the Stat. of 25. E. 3. is to speak against both 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 bee declared in Parliament whether it ought to be adjudged treason or not These words and the whole scope of that Statute showes That it was not the meaning to take away any treasons that were so before but onely to regulate the jurisdiction and manner of tryall Those that were single certain Acts as Conspiring the Kings death Levying warre Counterfeiting the money or great Seal Killing a Judge these are left to the ordidinary Courts of Justice The others not depending upon single Acts but upon constructions and necessary inferences they thought it not fit to give the inferiour Courts so great a latitude here as too dangerous to the subject those they strained to the Parliament This Statute was the great security of the subject made with such wisdome as all the succeeding ages have approved it It hath often passed through the fornace 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 second divers paines 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 bin said To what end is this Statute made if it takes not away the common Law treasons remaining after the Statute of 25. E. 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. Ed. 3. to 1. Hen. 4. even to that time For in respect that by another Act in that Parliament the Statute of 21. E. 2. was repealed it will not bee denyed but that this Statute repeales more treasons then these of 21. E. 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 inferiour Courts might judge these treasons for the declaration of a treason in Parliament after it was made was sent to the inferiour 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 referrs 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 bee treason but onely such as be declared and expressed to bee 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 penaltie 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 refer still to offences made treason by Act of Parliament they restraine not to the treasons onely particularly mentioned in the Statute of 25. E. 3. but leave that Statute entire as
to the common Law treason as appears by the words immediatly foregoing By the second part for the paines and forfeitures of treasons if it intend only 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 referrs all treasons to the generall ordination and provision of that Statute wherein the common-Law-treasons are expresly kept on foot If it bee askt what good this Statute doth if it take not away the common-Law-treasons 1. It takes away all the treasons made by Act of Parliament not onely since the first of H. 4. which weremany 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. Richard 2. this clears it both for treasons made by Parliament or declared in Parliament even to the time of making the Statute This is of great use of great security to the subject so that as to what shall be treason and what not the Statute of 25. E. 3. remaines entire and so by consequence the treasons at the common Law Onely my Lords it may be doubted whether the manner of the parliamentary proceedings bee not altered by the Statute of 1. H. 4. the 17. chapter and more fully in the Parliament roll number 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 onely to Bill that so it might operate no further then 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 bin 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 of it without Bill Herein the Legislative power is not used against my Lord of Strafford in the Bill it s onely 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 possibly bee of a contrary or dubious opinion concerning these treasons either upon the Statutes of 25. E. 3. 18. H. 6. or at the common Law If all these five should faile they have therefore given me further in command to declare to your Lordships some of their reasons why they conceive that in this case the meer Legislative 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 practises and usages of former times The horridnesse of the offence in endevouring the overthrowing the Lawes and present governement hath beene 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 into one Body politick This dissolves the arteries and ligaments that hold the Body together the Lawes Hee that takes away the Laws 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 binde 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 kils not Iudicem sed Iudicium Hee that borrowed Apelles and gave bond to returne 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 bee 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 sweeps them all away and from all It s treason to counterfeit a twenty shill-piece here 's a counterfeiting of the Law we can call neither the counterfeit nor true coine 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 not judge the case treason there before him yet if he were a Peere in Parliament hee would so adjudge it My Lords if it bee too bigge 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 Beggar 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 Physician and the patient if the body bee distempered it hath power to open a veine to let out the corrupt bloud for curing of it selfe if one member be poysoned or gangrened it hath power to cut it off for the preservation of the rest But my Lords it hath bin often inculcated that Law-makers should imitate the supreme Law-giver who commonly warnes before he strikes the Law was promulged before the jugdement of death for gathering the stickes 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 himselfe