wherein this Statute was made So that my Lords immediately before and at the time of the making of this Statute there being Warre betweene those of the Shire grounds mentioned in this statute and the Irish the concluding of Warre and Acts offensive and invasive there mentioned can be intended against no others but the Irish enemies Againe the words of the statute are no captaine shall assemble the people of the Shire grounds to conclude of peace or warre Is it to bee presumed that those of the Shire grounds will conclude of Warre against themselves nor saith the statute shall carry those of the Shire grounds to doe any Acts invasive by the construction which is made on the other side they must be carried to fight against themselves Lastly the words are As captaine none shall assume the name or authority of a captaine or as a captaine shall gather the people together or as a captaine lead them The offence is not in the matter but in the manner If the acts offensive were against the Kings good Subjects those that went under command were punishable as well as the Commanders but in respect the Souldiers knew the service to bee good in it selfe being against the enemies and that it was not for them to dispute the authority of their commanders the penalty of a 100. pounds is laid onely upon him that as Captaine shall assume this power without warrant The people commanded are not within the Statute My Lords the logicke whereupon this argument hath been framed stands thus Because the statute of the eleventh yeere of Queene Elizabeth inflicts a penalty of a 100. pound and no more upon any man that as a captaine without warrant and upon his owne head shall conclude of or make Warre against the Kings enemies therefore the statute of the 18. yeere of Henry the sixth is repealed which makes it Treason to lay souldiers upon or to levie war against the Kings good people But my Lords observation hath been made upon other words of this statute that is that without licence of the Deputy these things cannot be done This shewes that the Deputy is within none of the statutes My Lords this Argument stands upon the same reason with the former because hee hath the ordering of the Army of Ireland for the defence of the people and may give warrant to the Officers of the Army upon eminent occasions of invasion to resist or prosecute the enimy because of the danger that else might ensue forthwith by staying for a warrant from his Majesty out of England Therefore it is no Treason in the Deputy to imploy the Army in Ireland whensoever hee pleaseth for the subversion of the Kings good people and of the Lawes My Lords the statute of the tenth yeere of Henry the seventh the 17. Chapter touched upon for this purpose cleares the businesse in both points for there it is declared that none ought to make warre upon the Irish rebels and enimies without warrant from the Lieutenant the forfeiture a 100 pounds as here the statute is the same with this and might as well have beene cited for repealing the statute of the eighteenth yeere of Henry the 6. as this of the 11. yeere of Queene Elizabeth but if this had been insisted upon it would have expounded the other two cleare against him Object My Lords it hath been further said although the statute be in force and there be a Treason within it yet the Parliament hath no jurisdiction the Treasons are committed in Ireland therefore not triable here Answ My Lords Sir Iohn Perrot his predecessors in the 24. yeere of Queene Elizabeth was tried in the Kings bench for Treason done in Ireland when he was Deputy Orucke in the 33. yeere of Queene Elizabeth judged heere for Treason done Ireland Object But it will be said these trials were after the statute of the 34. yeere of Henry the eight which enacts that treasons beyond sea may be tried in England Answ My Lords his predecessor my Lord Gray was tried and adjudged here in the Kings bench that was in Trinity terme in the 33. yeere of Henry the eighth this was before the making of that statute Object To this againe will be said that it was for Treason by the Lawes and statutes of England but this is not for any thing that 's Treason by the Law of England but by an Irish statute So that the question is onely whether your Lordships in Parliament here have cognisance of an offence made treason by an Irish statute in the ordinary way of judicature without bill for so is the present question For the clearing of this I shall propound two things to your Lordships consideration 1. Whether the rule for expounding the Irish Statutes and customes bee one and the same in England as in Ireland 2. That being admitted whether the Parliaments in England have cognizance or jurisdiction of things there done in respect of the place because the Kings writ runnes not there For the first if in respect of the place the Parliament here hath cognizance there And secondly if the rules for expounding the Irish statutes and Customes bee the same here as there this exception as I humbly conceive must fall away In England there is the common law the statutes the acts of Parliament and customes peculiar to certaine places differing from the common Law if any question arise concerning either a custome or an act of Parliament the common Law of England the first the primitive and the generall Law that 's the rule and expositour of of them and of their severall extents it is so here it is so in Ireland the common Law of England is the common Law of Ireland likewise the same here and there in all the parts of it It was introduced into Ireland by King Iohn and afterwards by King Henry the third by act of Parliament held in England as appeares by the pattent Rolls of the 30 yeere of King Henry the third the first membranâ The words are Quia pro communi utilitate terrae Hiberaniae unitate terrarum Regis Rex vult de commune consilio Regis provisum est quòd omnes leges consuetudines quae in regno Angliae tenentur in Hibernia teneantur eadem terra eisdem legibus subjaceat per easdem regatur sicut Dominus Johannes Rex cum ultimò esset in Hibernia statuit fieri mandavit Quia c. Kex vult quod omnia brevia de communi Jure quae currunt in Angliae similitèr currant in Hibernia sub novo sigillo Regis mandatum est Archiepiscopis c. quod pro pace tranquillitate ejusdem terrae per easdem leges eos regi deduci permittant eas in omnibus sequantur In cujus c. Teste Rege apud Woodstock decimo nono die Septembris Here 's an union of both Kingdomes and that by act of Parliament and the same Lawes to be used heere as there in omnibus My
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
a levying of War against the King 1 Because the King doth protect and maintaine the Laws in every part of them and the great Officers to whose care he hath in his own steed delegated the Execution of them 2 Because they are the Kings Lawes He is the Fountaine from whence in their severall Channels they are derived to the Subject all our inditements run thus Trespasses laied to be done Contra pacem Domini Regis the Kings peace for exorbitant offences though not intended against the Kings Person against the King his Crowne and Dignity My Lords this construction is made good by diverse Authorities of great weight ever since the statute of 25. E. 3. downwards In R. the 2 ds time Sir Thomas Talbot conspired the death of the Dukes of Glocester and Lancaster some other of the Peeres for the effecting of it he had caused diverse people in the County of Chester to be armed in warre-like manner in Assemblies In the Parliament held the seventeenth yeere of Richard the second number the 20. Sir Thomas Talbot accused of high Treason for this It s there declared that insomuch as one of them was Lord high Steward of England and the other high Constable of England that this was done in destruction of the estates of the Realme and of the Lawes of the Kingdome and therefore adjudged Treason and the judgement sent downe into the Kings Bench as appeares in Easter-Tearme in the seventh yeer of Richard the second in the Kings Bench Rott 16. These two Lords had appeared in the eleventh yeere of Richard the second in mainetenance of the Act of Parliament made the yeere before one of them was of the Commissioners appointed by Parliament and one of the Appellours of those that would have overthrowne it The Duke of Lancaster likewise was one of the Lords that was to have beene indicted of Treason for endeavouring the maintenance of it and therefore conspiring of their deaths is said to be in destruction of the lawes This there declared to be a Treson that concerned the Person of the King and the Common-wealth In that great insurrection of the Villains and meaner people in Richard the seconds time they tooke an oath Quod Regi Comunibus fidelitatem servarent to be true to the King and Commons that they would take nothing but what they paid for punished all theft with death here 's no intendment against the person of the King The intent was to abolish the Law of villainage and servitude to burne all the Records to kill the Judges this in the Parliament of the fifth yeere of Richard the second number the one and thirtieth and two and thirtieth the first part is declared to be Treason against the King and against the Law In the eleventh yeere of Richard the second in Parliament the raising of forces against the Commissioners appointed by act of Parliament the yeere before adjudged Treason by all the Judges The Statute of 1. Mar. cap. 12. enacts that if twelve or more shall indeavour by force to alter any of the Lawes or Statutes of the Kingdome hee shall from such a time there limited be adjudged onely as a fellon This act was to continue but to the next Parliament it is expired it shewes by the words onely that the offence was higher before the making of it My Lords In Queene Elizabeths time Grant and divers Prentices of London to the number of 200. rose and assembled at Tower-hill carried a Cloake upon a Pole instead of a banner their intent was to deliver divers Prentices out of prison that had beene committed upon a sentence in Star Chamber for ryots To kill the Lord Major of London and for setting prizes on victuals In Trinity Tearme 37. Eliz. divers of the Judges consulted withall and resolved that this was a levying of warre against the Queene being intended against the government and officers of the Queene and thereupon Grant and others executed as Traitors Afterwards in that Queenes time divers of the County of Oxford consulted together to goe from house to house in that County and thence to London other parts to excite them to take Armes for the throwing in of all inclosures throughout England nothing was done nor no Assembly The Statute of 13. Eliz. cap. 1. during the Queenes life made it Treason to intend or advise to levy war against the Queene In Easter Tearme 39. Eliz. All the Iudges of England met about the case it was resolved by them that this was a warre intended against the Queen they agreed that if it had beene of one Towneship or more upon private interest and claime of right of Common it had not bin Treason But this was to throw in all inclosures thorough the Kingdome wherto these parties could pretend no claime that it was against the Law in regard that the Statute of Merton gave power of Inclosures in many Cases Upon this Resolution Bradshaw and Burton were executed at Aynestowe hill in Oxford-shire the place where they intended their first meeting So that my Lords if the end of it be to overthrow any of the Statutes any part of the Law and setled Governement or any of the great Officers intrusted with the execution of them this is a warre against the King My Lords it will be further considerable what shall be accounted a leavying of warre in respect of the Actions things done There 's a designe to alter some part of the Lawes and present Governement for the effecting thereof people be provided of Armes gathered together into troopes but afterwards match not with Banners displayed nor doe Bellum percutere Whether the arming themselves and gathering together upon this Designe whether this be a warre or such prosecution of the Designe with force as makes it Treason within the Statute First If this be not a Warre in respect that it necessarily occasions hostile preparations on the otherside 2. From the words of the Statute shall levy warre be thereof probably attainted of open Deed by people of their Condition although the bare conspiring be not an open Deed yet whether the arming and drawing men together be not an open Declaration of Warre In Sir Thomas Talbots case before cited in the seventeenth yeere of Richard the second The Acts of force are expressed in the Parliament Roll That he caused divers of the people of the County of Chester to be armed in a war like manner in assemblies heere is no marching no banners displayed In the eighth yeer of Henry the 8th William Bell and Thomas Lacy in Com' Kanc. conspired with Thomas Cheney called the Hermite of the Queene of Fairies to overthrow the Lawes and customes of the Realme and for the effecting of it they with two hundred more met together and concluded upon a course of raising greater forces in the county of Kent and the adjacent Shires this adjudged Treason these were open Actes My Lords for the application of both these to the Case in question
First in respect of the end of it here was a warre against the King It was to subvert the Lawes This being the designe for the effecting of it he assumed to his own person an arbitrary power over the lives liberties and estates of his Majesties Subjects and determined Causes upon paper petitions at his own will and pleasure obedience must be forced by the Army this declared by the Warrant 2 My Lords if it be said That the Warrant expresseth not any intent of subverting the Lawes It expresseth fully one of the principall meanes whereby this was to be done that is obedience to his arbitrary orders upon paper petitions this was done in reference to the maine designe In the Cases of the Towne of Cambridge and Sr. William Cogan that have formerly been cited to your Lordships upon other occasions the things in themselves were not Treason they were not a levying of Warre In that of Cambridge the Town met together and in a forcible manner broke up the University treasury and tooke out of it the Records and Evidence of the liberties of the Vniversity over the Town In the other they of Bridgewater marched to the Hospitall and compelled the Master of the Hospitall to deliver unto them certaine Evidences that concerned the Towne and forced him to enter into a bond of two hundred pound These if done upon these private ends alone had not been Treason as appeares by the very words of the Statute of 25. Edw. 3. before mentioned of marching openly or secretly But my Lords these of Cambridge and Bridgewater they were of the conspiracy with the villaines as appeares in the Parliament Roll of the first yeare of Richard the second number the one and thirtieth and two and thirtieth where the Towns of Cambridge and Bridgewater are expresly excepted out of the generall pardon made to the Villaines This being done in Reference to that designe of the villaines of altering the Lawes this was that which made it Treason If the designe went no further then the enforcing obedience to these paper orders made by himselfe It was sufficient it was to subvert one fundamentall part of the Lawes nay in effect the whole Law what use of Law if he might order and determine of mens estates at his own pleasure This was against the Law notoriously declared in Ireland In the close roll in the Tower in the five and twentieth yeere of Ed. 1. a Writ went to the Justices in Ireland that Kingdome at that time was governed by Justices declaring that upon petitions they were not to determine any titles betweene party and party upon any pretence of profit whatsoever to the King 6 In the eight and twentieth yeare of Henry the sixt the second Chapter Suites in equity not before the Deputy but in Chancery Suits at Common Law not before him but in Cases of life in the Kings Bench for title of land or goods in the proper Courts of the Common pleas or Kings Bench. This declared in the Instructions for Ireland in the latter end of King James his time and by the Proclamation in his Majesties time my Lord took notice of them called the Commissioners narrow-hearted Commissioners The Law said he should not thus proceed in subversion of it he saith he will and will enforce obedience by the Army This is as much in respect of the end as to endeavour the overthrow of the Statutes of Laborers of victuals or of Merton for Inclosures Here is a warre against the King in respect of the end 2. In respect of the Actions whether there be either a levying of war or an open deed or both My Lords there was an Army in Ireland at that time of two thousand horse and foot by this Warrant there is a full designation of this whole Army and an Assignement of it over unto Savill for this purpose The Warrant gives him power from time to time to take as many souldiers horse and foot with an Officer throughout the whole Army as himselfe shall please heere is the terrour and awe of the whole Army to enforce obedience My Lords if the Earle had armed two thousand men horse and foot and formed them into companies to this end your Lordships would have conceived that this had been a war It 's as much as in the case of Sir Thomas Talbot who armed them in assemblies This is the same with a breach of trust added to it That Army was first raised and afterwards committed to his trust for defence of the people is now destined by him to their destruction This assignation of the Army by his Warrant under his hand seale is an open Act. 2. My Lords heer 's not onely an open act done but a levying of war souldiers both horse and foot with an Officer in warlike manner sessed upon the subject which killed their Cattell consumed and wasted their goods Ob. O but five or sixe were the most imployed at any time a mighty warre of six men scarce a Ryot Ans Your Lordships observe a great difference where six single men goe upon a designe alone and when sent from an Army of six hundred all engaged in the same service so many were sent as were sufficient to execute the command if upon a poore man fewer more upon a rich if the six had not beene able the whole Army must make it good the reason that the Sheriffe alone or but with one Bayliffe to doe execution is because he hath command of the Law the Kings Writ and the posse Comitatus in case of Resistance heer 's the warrant of the Generall of an Army heer 's the possâ— exercitus the power of the Army under this awe of the whole Army six may force more then sixty without it and although never above six in one place yet in the severall parts of the Kingdome at the same time might be above sixty for sessing of souldiers was frequent it was the ordinary course for execution of his orders The Lord Lievtenant of a County in England hath a designe to alter the Lawes and government nay admit the design goes not so high he onely declares thus much that he will order the freeholds and the estates of the Inhabitants of the County at his owne will and pleasure and doth accordingly proceed upon paper petitions foreseeing there will be disobedience he grants out warrants under his hand and seale to the deputy Lievtenants and Captaines of the traine bands that upon refusall they shall take such number of the traine bands thorow the County with Officers as they shall think good and lay them upon the lands and houses of the refusers Souldiers in a warlike manner are frequently sessed upon them accordingly Your Lordships doe conceive that this is a levying of Warre within the Statute The Case in question goes further in these two respects 1 That it is more against the declared Law in Ireland not only against the Common Law but likewise against the Statute of the eight and
Justices of the Peace that they were all for Law nothing but Law but they should find that the Kings little finger should be heavier than the loines of the Law They shall find my Lords who speakes this to the people a Privie Counsellour this must be either to traduce his Majesty to the people as spoken from him or from himselfe who was Lord Lieutenant of the County and President intrusted with the forces and Justice of those parts that he would imploy both this way add my Lords to his words there the exercising of an arbitrary and vast Jurisdiction before he had so much as Instructions or colour of warrant Thence we carry him into Ireland there he represented by his place the sacred person of his Majesty 1 There at Dublyn the principall City of that Kingdome whither the Subjects of that Countrey came for Justice in an Assembly of Peeres and others of greatest ranke upon occasion of a speech of the Recorder of that City touching their Franchises and Legall Rights he tels them that Ireland was a conquered Nation and that the King might doe with them what he pleased 2 Not long after in the Parliament 10. Car. in the Chaire of State in full Parliament againe That they were a conquered Nation and that they were to expect Lawes as from a Conquerour before The King might doe with them what he would now They were to expect it that he would put this power of a Conquerour in execution The Circumstances are very considerable in full Parliament from himselfe in Cathedra to the representative body of the whole Kingdome The occasion adds much when they desire the benefit of the Lawes and that their Causes and Suites might be determined according to Law and not by himselfe at his will and pleasure upon paper Petitions 3 Upon like occasion of pressing the Lawes and Statutes That hee would make an Act of Counsell board in that Kingdome as binding as an Act of Parliament 4. He made his words good by his actions assumed and exercised a boundlesse and lawlesse Jurisdiction over the lives persons and estates of his Majesties Subjects procured judgement of death against a Peere of that Realme commanded another to be hanged this was accordingly executed both in times of high Peace without any processe or colour of Law 5. By force for a long time he seised the yarne and flax of the Subjects to the starving and undoing of many thousands besides the Tobacco businesse and many Monopolies and unlawfull Taxes forced a new Oath not to dispute his Majesties royall commands determined mens estates at his owne will and pleasure upon paper Petitions to himselfe forced Obedience to these not onely by Fines and Imprisonment but likewise by the Army sessed Souldiers upon the refusers in a hostile manner 6. Was an Incendiary of the warre betweene the two Kingdomes of England and Scotland My Lords we shall leave it to your Lordships Judgements whether these words Counsells and Actions would not have beene a sufficient Evidence to have proved an Inditement drawne up against him as those before mentioned and many others are That they were spoken and done to the intent to withdraw the Kings heart from the people and the affections of the people from the King that they might leave the King and afterwards rise up against him to the destruction of the King if so here is a compassing of the Kings death within the words of the Statute of the five and twentieth yeare of Edward the third and that warranted by many former judgements My Lords I have now done with the three Treasons within the The fourth generall Head Statute of the five and twentieth of Edward the third I proceed to the fourth upon the Statute of the eighteenth yeare of Henry the sixt Chapter the third in Ireland I shall make bold to read the words to your Lordships That no Lord nor any other of what condition soever he be shall bring or lead hoblers kerves or hooded men nor any other people nor horses to lie on horseback or on foot upon the Kings Subjects without their good wills and consent but upon their owne costs and without hurt doing to the Commons and if any so doe he shall be judged as Traitor 1. The Argument that hath been made concerning the Person That it extends not to the King and therefore not to him weighs nothing with your Lordships Rex non habet in regne parem from the greatnesse of his office to argue himselfe into the same impossibility with his sacred Majesty of being uncapable of High-Treason it 's an Offence no reason The words in the Statute No Lord nor any other of what condition soever he be includes every Subject In Trinity Terme in the three and thirtieth yeare of Henry the eighth in the Kings Bench Leonard Lord Gray having immediately before been Lord Deputy of Ireland is attainted of High-Treason and judgement given against him for letting divers Rebels out of the Castle of Dublin and discharging Irish hostages and pledges that had been given for securing the Peace for not punishing one that said the King was an Heretique I have read the whole Record ther 's not one thing laid to his charge but was done by him as Lord Leivetenant Hee had the same Plea with my Lord of Strafford That these things were no adhering to the Kings Enemies but were done for reasons of State That he was not within those words of the Statute of the five and twentieth yeare of Edward the third himselfe being Lord Lievtenant there they cost his life Obj. 2. It hath been said That the Souldiers sessed upon the Subjects by him were not such persons as are intended by that Statute Hoblers Kerves and hoodedmen these rascall people Answ My Lords they were the names given to the Souldiary of those times Hoblers horsemen the other the foot but the words of the Statute goe further Nor any other people neither horse nor foot his Lordship sessed upon them both horse and foot Object 3. The Statute extends only to them that leade or bring Savill led them my Lord onely gave the warrant Answ To that I shall say onely thus plus peccat author quam actor by the rule of Law agentes consentientes pari plectuntur panâ if consent much more a command to doe it makes the commander a Traitor If there bee any Treason within this Statute my Lord of Strafford is guilty It hath been therefore said That this Statute like Goliah's sword hath been wrapt up in a cloth and laid behind the doore that it hath never been put in execution Answ My Lords if the Clerk of the Crown in Ireland had certified your Lordships that upon search of the Judgements of Attainders in Ireland he could not finde that any man had been attainted upon this Statute your Lordships had had some ground to believe it yet it is onely my Lord of Straffords affirmation Besides your Lordships know that an act of
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