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
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
Lordships the things they took into their Consideration in respect of the matter and merits of the Cause They are comprehended within these six 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 war yet by advising and declaring his intention of war 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 been 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 sessed 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 tyrannicall Government 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. 1. 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 six Considerations hold The Commons conceive that upon the whole matter they had good cause to passe the Bill My Lords for the first of levying Warre I shall make bold to read the Case to your Lordships before I speak to it it 's thus The Earle did by warrant under his hand and Seale give authority to Robert Savill a Serjeant at Arms and his Deputies to sesse such number of Souldiers horse and foot of the Army in Ireland together with an officer as the Serjeant should think 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 foot upon divers of the Subjects of Ireland against their will in warlike manner and at divers times the Souldiers continued upon the parties upon whom they were sessed and wasted their goods until such time as they had submitted themselves unto those Summons and orders My Lords This is a levying of warre within the statute of 250. 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 1 What shall be a levying of Warre in respect of the motive or cause of it 2 What shall be said a levying of warre in respect of the Action orthing done 3 And in the third place I shall apply them to the present Case It will be granted in this of levying of warre That forces may be raised and likewise used in a war-like manner and yet no levying of warre within the Statute that is when the forces are raised and imployed upon private ends either of revenge or interest Before this Statute in E. 1. time The Title of a Castle was in difference between the Earles of Hereford and Gloster for the mainetaining of the possession on the one side and gayning of it on the other Forces were raised on either side of many hundred men they marched with Banners displayed one against the other In the Parliament in the 20. yeere of Edw. 1. this adjudged onely trespasse and either of the Earles fined 1000. markes a peece After the Statute in Hillary Terme the fiftieth yeere of Edward the third in the Kings Bench Rot. 3. Nicholas Huntercome in a war-like manner with 40 men armed amongst other weapons with Gunnes so ancient as appeares by that Record they were did much spoyle in the Mannour of the Abbee of Dorchester in the County of Oxford This no Treason So it hath beene held by the Judges that if one or more Townships upon pretence of saving their Commons doe in a forcible and war-like manner throw in Inclosures This is only a Riot no Treason The words of the Statute of 25. Edw. 3. cleare this Point that if any man ride armed openly or secretly with men at Armes against any other to kill and robbe or to detaine him untill he hath made fine and ransome for his deliverance this is declared not to be Treason but Fellony or Trespasse as the case shall require all the printed Statuts which have it covertly or secretly are mis printed for the words in the Parliament Roll as appeares n. 17. are Discovertment ou secreretment openly or secretly So that my Lords in this of levying warre the Act is not so much to be considered but as in all other Treasons and Fellonies quo animo with what intent and purpose Obj. My Lords If the end be considerable in levying warre it may be said that it cannot be a Treason warre unlesse against the King For the words of the statute are If any man levy warre against the King Ans That these words extend further then to the Person of the King appears by the words of the Statute which in the begining declares it to be Treason to compasse imagine the Kings death and after other Treasons this is to be declared to be Treason to levy war against the King If the levying of war extend no further then to the person of the King these words of the Statute are to no purpose for then the first Treason of compassing the Kings death had fully included it before because that he which levies war against the person of the King doth necessarily compasse his death It s a warre against the King when intended for alteration of the Lawes or Government in any part of them or to destroy any of the great Officers of the Kingdome This is
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
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