division I allow of that is Treason by Statute-Law as he terms it though it be Treason by the Common-Law and constructive Treason And upon that method he hath recited the evidence produced on either part Give me leave to follow and trace him a little and afterwards to discharge my own duty in taking my own course and representing the evidence as it appears truly and I will avoid as much as I can to fall into my Lord of Strafford's error in mis-reciting a Particle if I do it shall be against my will He begins with the Fifteenth Article and pretends that that is not proved The ground and foundation of that Article was a Warrant issued out by himself to a Serjeant at Arms one Savill which gave directions and power to that Serjeant to lay Soldiers on any person that should contemn the Process of the Council-board in Ireland that was the effect Now says he this Warrant is not produced and adds That the Judges will tell your Lordships that if a man be charged with any thing under Hand and Seal the Deed must be produced and proved or else no credit is to be given to it Truly my Lords it is true if it had been a Bond or a Deed where those that Seal it use to call their neighbours to testify and be Witnesses to it perhaps it might be a colourable answer that because we do not produce the Deed and prove it by Witnesses you can therefore give no credit to it But my Lords in case of authority to commit High Treason I suppose my Lord of Strafford nor any other did call witnesses to prove the Signing Sealing and Delivering of the Warrant for execution of High Treason and therefore it is a new way and invention found out by his Lordship for ought I see to commit High Treason and to give authority for it and it is but taking away the original Warrant and he shall never be touched for any Treason But I beseech your Lordships patience till I come to open that Article and your Lordships will find the Warrant though it be not produced proved by three or four Witnesses and his Hand and Seal proved too And whereas he pretends the Serjeant at Arms is no competent Witness because he excuses himself my Lord mistakes himself for I take it to be no excuse to prove a Warrant from any person whatsoever if it be to commit High Treason and therfore Savil's testimony is the more strong being so far from excusing that he doth accuse himself And though he is charged with laying of Soldiers upon the King's People contrary to an express Act of Parliament made in 18 H. 6. yet my Lord is pleased I know not how to term it whether it be merrily or otherwise to use his Retorick Here is a great levying of War when there is not above four Musquetiers or six at most laid upon any one man My Lords it is a plain levying of War and without all question and in all sense it is as much mischievous to me to be surprized by four or six Musquetiers to enforce me to any thing they would have as if there were an Army of Forty thousand brought upon me for if that strength will but over-master me it is all one to me whether I be mastered by four or by four thousand And therefore let not this be a rule that to send four or six or ten Musquetiers up and down is not considerable because of the smalness of the number the danger is the same yet this is no levying of War because they goe not in Troops of greater number as it pleases my Lord of Strafford to affirm My Lords Your Lordships remember what the effect of the Warrant is sworn to be that howsoever the Serjeant at Arms and his Ministers that executed it brought but four or six or ten yet the Serjeant might have brought all the Army of Ireland for there was authority so to do And admitting the matter of Fact proved he mentions an Act of Parliament made 11 Eliz. whereby a penalty is laid upon men that shall lay Soldiers on the King's Subjects and yet as my Lord observes it must now be Treason in the Deputy My Lords The very casting of an eye upon that Act shews it to be as vainly objected as if he had said nothing for in truth it is no other than as if he should say The King hath given me the Command of an Army in Ireland and therefore I may turn them upon the bowels of the King's Subjects It is no more in effect Your Lordships heard him the other day mentioning two Acts of Repeal and I expected he would have insisted upon them but it seems he hath been better advised and thinks them not worthy repetition nor indeed are they And if the matter of Fact be proved upon the Fifteenth Article I am confident he will find the Statute of 18 H. 6. to be of full force My Lords I am very sorry to hear that when levying of War upon the King's Subjects is in agitation and he charged with High Treason he should make mention of the Yorkshire men and the Army now on foot whereby he would insinuate that if he be charged with High Treason then they must be likewise though they lye quartered and have meat and drink with the assent of the people which may breed ill blood for ought I know From the Fifteenth Article he descends to the Three and twentieth and that is the Article whereby he stands charged with speaking of Words and giving of Counsel to His Majesty to incense him against His Parliament pretending a Necessity and telling him He is loose and absolved from all Rules of Government That he had an Army in Ireland which he might make use of to reduce this Kingdom In this he is pleased to begin with the Testimony of my Lord Ranelagh conceiving an apprehension and fear in him that the Army should go over to England which my Lord says is no more but his saying and Mr. Treasurer Vane ' s. I pray God my Lord Ranelagh had not much cause to fear but by the same rule he may lay a charge of unwarrantable fear upon all the Commons for sure the the Commons of England did fear it else they would not make an Article of it but my Lord Ranelagh's fear did not arise from a slight cause and he shewed himself a good Common-wealths man in expressing it and he is to be commended for it howsoever it be apprehended by my Lord of Strafford For his observation of the single Testimony of Mr. Treasurer Vane give me leave to take the same latitude as his Lordship did for he shews to three or four Articles what he could have proved as to the Article concerning the Army he could have proved the design of it by Sir John Burlacy and some others if they had been here But by this rule and liberty he hath taken to alledge what he could have shown give me
with all possible Speed removed my self into Holland never suspecting that my Guilt would increase with my Absence in the retired private Life which I had resolved of and did according to that Resolution lead beyond Sea having the Vanity of some Hope that a little time discovering the falshood of some things believed of me would take away the Inconvenience of other things that were but unworthily suspected Some Weeks I rested there without any new hurt till the falshood of a Person to whose trust I committed a Packet brought it to a Hand well contented with any Occasion to satisfy his own particular private Malice and Revenge upon me and so my Letters one to the Queens Majesty and the other to my Brother Sir Lewis Dives were publickly brought to be read in both Houses of Parliament from thence new Arguments of Guilt are so far inforced against me and the former Displeasure revived and heightned to such a pitch that at the same time I heard of the Interception of my Letters I found my self accused of High Treason too and that for Levying War against the King a Crime certainly that of all other I could least suspect my self guilty of And to say the Truth it came into my Charge but by Accident for being in general charged of High Treason and the Impeachment in particular bearing only That I had appeared in Warlike manner to the Terror of the King's Subjects a Question was raised by a Lord or two learned in the Law Whether that Accusation would amount to Treason or no and so lieve was desired to amend the Charge which being granted to make sure Work by the Statute of 25 Ed. 3. it was put in that I had Levied War against the King If I were Guilty or suspected of so lewd a Crime how it came to sleep so long or if not how these Letters wherein upon an unpartial Survey there will not be found so much as an Opinion as unto Peace or War could minister Occasion for a Charge of my Levying War against the King I leave to equal Consideration I am far from Censuring or disputing the Resolution or Opinion of both or either House of Parliament no Man receives a Stroke from thence with more Submission and Humility and the great Reverence I bear to it hath made such an Impression in me that the weight of their Displeasure hath added many years to me but in so neer a a concernment of my Life and my Honor that grave Assembly may give me lieve without presuming to think their Judgments unjust to say their Evidence may be untrue and the Persons trusted by them not so full of Honor Ingenuity or Integrity so free from Passion Malice Interest or Affection as they are thought It will be no Presumption or Disrespect to that great Councel to say that I have many Enemies who have used all the ill Arts their Wit or Malice could suggest to bring this Affliction upon me and have not in whispers or in the dark published their Resolution to destroy me witness the known tampering with very many Persons both by Threats and Promises to accuse me their creating and cherishing such monstrous Untruths of my treating with the Danes and other Foreign Power of a great Treason of mine plotted and discovered at Sherburne with mighty Warlike Preparations there of my being at the Head of the Rebels in Ireland and the like to make me odious to the People to whose rage and violence they have often indeavoured to give me up a Sacrifice the deep sense I have of my Affliction and Injuries shall never transport me to heighten the representation of them to the least degree beyond truth but whoever shall consider the Penalty of Treason the Ruine and Desolation it brings to Families the Brand and Infamy it fixes on our Memories and shall remember that this Portion was designed to me for going on my Master's Errand in a Coach and six Horses will believe that a mixture of Sorrow and Innocence with so much Passion as may keep them company may well be allowed to breath it self with so much Freedome as to present to the World with a true and sensible Life my Sufferings upon whomsoever the Injustice and Inhumanity may light of having opprest and bow'd down to the Earth a young Man and all his Hopes by such undeserved Calamities Since that time other Letters of mine or Copies of Letters possibly never sent have had the same Fortune and been published to the World to shew the Follies and Indiscretions of a Man enough in her Disfavor before with Glosses and Comments to inform the People how much of the dangerous and pernicious Counsels pretended to be then and still on Foot had passed through my Hands and how great an Enemy I am to Parliaments to this later most grievous and venemous Imputation I hope God will have preserved me some kind of Antidote in Mens Memories of what part I had the happiness to bear in the passing of the Triennial Bill and to it I shall only say thus much that I have had the Honor to be a Member of the one House and must presume to think my self still a Member of the other that I value the Honor the Dignity and the Privileges of both infinitely above the Pleasures and Benefits of Life and if I ever wilfully contributed or shall ever consent to the prejudice of either I wish the Desires of all my Enemies may fall upon me To that of my having had so great a Hand in ill Counsels which are expressed to be of his Maiesties removing from London to a place of Safety and the like I shall be bold to say that the Letter to the Queens Majesty from whence my Enemies would make the inference hath not with any considerer the least propending of Advice any way but is meerly an account of mine own Intentions to apply my self to his Majesties Service either by absence or at Attendance according to course that his Majesty in his Wisdom should think fit to take Every Body knows I never had the Honor to be a Counsellor neither have I presumed without being questioned by his Majesty to interpose in his Affairs when he hath graced me with any Question I have answered with the Freedom of a Subject and a Gentleman But had I bin a Counsellor having seen what I have seen and heard what I have heard I who have known such Members of both Houses marked out by the Multitude for Blessings and such for Sacrifice I who can say with truth that such of that Rabble cryed out The King 's the Traitor such That the young Prince would govern better I who can pâ—â—ve that a Leader of those People in the Heat and Violence of the Tumult cryed out That the King was not fit to live had I been a Counsellor what had I been as the Learning of Treason was then understood should I not have advised his Majesty to withdraw to a Place of Safety not
People being but the Imployment of two or three Soldiers to procure obedience to His Majestie 's Government because as I conceive likewise I had Commission to make War as I saw Cause for punishing the Rebels and securing the Publick Peace and therefore How can I be charged with that I have power to do The worst that can be made of it is an absurd execution of a Power but to make it Treason when I had Commission and Liberty so to do methinks that is very hard And it was no absurd execution of a Power under favour neither when I had the Precedent of all the former Deputies and Lieutenants in the Case My Lords it was never Complained of all the while I was there for ought appears to your Lordships so that it seems there was no great Innovation nor Inconvenience for if there were I should have heard of it But the Statute 11. E. 1. ca. 7. sets a penalty upon any Subject that shall Assess without the Deputies Authority Now I do most humbly beseech your Lordships that you would be pleased to remember that and let me know how it should be but Penal in a Common person to do it and yet Treason in a Deputy My Lords I shall likewise humbly mind your Lordships of the Statute or rather two Statutes as I take it whereby I conceive this Statute that made a Treason in Ireland was repealed But howsoever the practice in all time hath gone quite contrary to that Statute and the best Interpretation of Law is the Practice of Law and therefore the Practice having been otherwise it is an Argument very strong and prevalent that the Deputy as Chief Governour was never intended to be Concluded within that Act nor never to be brought in by General Words onely And that this should be a Levying of War against the King within the Statute of 25 E. 3. in England surely I conceive it cannot be for the Burning of Towns the Taking of Forts Killing and Slaying that I conceive to be Levying of War but this is a strange Levying of War with two or three Soldiers to rest in Peace and Quietness eating on Contemners only and not Killing and Slaying and all to procure Obedience to the King not in Disobedience to his Command If to lie upon them and eat be high-High-Treason in this Case What shall become of a great Company of good Fellows that at this time eat at the Charge of the Country No My Lords This in the Case of a private Man had been but a Forcible Entry or a Ryot at the most if a man had done the same thing Mr. Savil did of his own Authority without the Deputy it had been but a Force and Ryot and How shall this be in my Case High-Treason The next Charge in that Case is concerning a Warrant to one Piggot another Serjeant at Arms and the great and crying Miscarriages and Misimployments of such a Warrant if there had been any it was when I as your Lordships may please to remember was out of Ireland and that was the Case of Bern a very Foule Misdemeanor as it proved But My Lords I being out of the Kingdom and no such Warrant shown I conceive I am absolutely dismissed as unto that and have nothing to answer for it there was nothing done while I was in the Kingdom there is no Warrant of mine shown therefore I conceive I stand clear of that likewise But admit there was such a Warrant the Answer goes to that as to the test and certainly I hope will fully acquit me of this Fifteenth Article as Treason And so I must in humility submit to your Lordships wiser and better Judgments The next Statute-Treason is an Intendment or Design or what you will have it for bringing over the Irish Army into this Kingdom to reduce it or to do I know not what nor I think no body else for there is no such thing But My Lords for proof in this Case you have two offered there and no more under favour at all the first proof is the Fears and Doubts of my Lord Ranulagh that tells you he Fears such a thing and Doubts such a thing My Lords if Fears and doubts may be sufficient to Condemn me for Treason By my Faith I fear and Doubt very much these Fears and Doubts might Accuse me and Condemn me of Treason more then once a Year But my Lords his Fears and Doubts he may keep to himself I hope they shall not be brought any way to the prejudice of me I am I thank God both confident and knowing there is no such thing The next is the Testimony of Mr. Treasurer Vane and the Words Mr. Treasurer doth Witness against me in that particular are as I conceive these that I should say to His Majesty in an Argument concerning an Offensive or Defensive War with Scotland Your Majesty hath tryed all wayes and are refused and in this extream necessity for the safety of the Kingdom and Your People You may imploy the Irish Army to reduce this Kingdom My Lords To this I say that under favour Mr. Treasurer was in this methoughts a little Dubious he was something doubtful for at the first he told your Lordships he would deal plainly and clearly with you that he knew before whom he spoke and then my Lords it was but to the best of his Remembrance that these and these words were spoken At the last my Lords being put to it more he was pleased to say that these were positively the words or something to that effect So my Lords here is but a dubious and uncertain Witness under favour and these professions of his speaking clearly and plainly and of his Consideration before whom he was which are something unusual Clauses to Men that come to Swear upon Oath make me conceive him something Dubious in this point Secondly My Lords he is a single Witness and not only so but under favour disavowed by all the rest that were present at the Council My Lord of Northumberland remembred no such thing My Lord Marquess of Hamilton remembred no such thing My Lord Treasurer remembred no such thing my Lord Cottington is very well assured he said no such thing for if he had he should have taken offence at it himself which he never did My Lords in the Third place He is pleased to mention That it was in a Debate Whether an offensive or Defensive War and that then I should say The King had an Army in Ireland c. My Lords it falls out in time to be as I conceive about the 5th of May last not many dayes sooner or later the Army of Ireland was not raised till June following So it seems I should tell the King a great untruth that he had an Army in Ireland which he might imploy for His Service before that Army was raised for it is a notorious thing and any of that Country knows that the Army was not raised till the Fifteenth of June as
I remember Lastly in farther taking away of this Testimony I have proved it by a great many Witnesses beyond all exception that there was never any such intendment of the bringing this Army into England nay that the Design was quite otherwise and this hath been apparently cleared before your Lordships By the Testimony of my Lord of Northumberland Marquess of Hamilton Sir Thomas Lucas and Mr. Slingsby And might have been further justifi'd by the Testimony of my Lord of Ormond President of Munster and Sir John Burlace Master of the Ordnance in Ireland if they had been here to have been produced So that all these laid together the strong and clear proof on my part the producing of a single Witness which by the Proviso of 1 Edw. 6. cannot rise in Judgment against any man for High-Treason I trust all these laid together I shall appear to your Lordships clear and free from these two points whereupon they enforce me to be within the compass of Treason by the Statute alleadged The Third Treason that is laid to my Charge is upon the 27th Article where Four Musquettiers being sent to Egton by Sergeant Major Yaworth to call for their Eight pence a day is prest upon me as a Levying of War upon the King and His People and to be high-High-Treason upon the Statute of 25 E. 3. These be wonderful Wars if we have no greater Wars then such as four men are able to raise by the Grace of God we shall not sleep very unquietly But How do they prove this to be done by me they produce to your Lordships the Warrant of Sir William Pennyman but had no Warrant at all of mine to shew Sir William Pennyman doth not alledge any Warrant of mine to that purpose he speaks of a General Warrant wherein I and the Deputy-Lieutenants joyn for the paying of the Fortnights pay as they call it and that is very true but that I should give Warrant to Levy by Soldiers no such thing is proved no such thing is shewed no such thing is alleadged by Sir William Pennyman that best knew it and should do it in his own Justification if there were such a thing but on the other side I must humbly beseech your Lordships to mind you what a clear and full proof I made thereof to you till you were weary though I think I I could have continued it a year longer if need had been that there was nothing done by me in the Levying of the first Months pay or the second Fortnights pay but with full consent of the Country nothing being of Constraint nothing being of force put upon them The Second Point was a Warrant shewed to your Lordships or at least pretended from Sir Edward Osborne the Vice-President wherein he charges them to obey and persue the substance and direction of his Warrant on pain of Death and this must likewise be laid to me My Lords I confess I have faults enough more than a good many though I trust neither so crying nor grievous as some would pretend them to be but Faults I have more then too many I need not take nor add to my self other Mens but whether this be a Fault or no I cannot undertake to Judge But certainly I am in no Fault for I was at when this Warrant issued from Mr. Vice-President and I dare say he is a Gentleman so worthy and noble and so great a Lover of Truth that let him be examined upon Oath if he shall not absolutely clear me from Privity or Direction of it I so much rely on him that I will be thought Guilty before your Lordships for this Charge Now my Lords having gone over all that first part which I thought fit to apply my self to and that is Statute-Treason There is no Statute-Treasons in the whole Charge nor colour or pretence thereof save onely that of Newcastle which was waved In these my Lords I hope I am clear before your Lordships and sure I am they give me little disquiet for in good faith I am clear in my own poor Judgment Then comes in the second Condition of Treason in the Charge and that is Constructive Treason and it is laid down in the first Article of the General Charge For my Lords I must tell you the First Articles exhibited are Grounds and Foundations whereupon the rest are gathered and to which they resort and apply themselves severally I do conceive my self in a manner by themselves clear of seven of these for they have in a manner relinquished Five of them So that the First Article is the main Article whereupon I must be touched and that is laid in the Charge thus That I have Trayterously endeavoured to subvert the Fundamental Laws and Government of the Realms of England and Ireland and have by Trayterous Words Councils and Actions declared the same and have advised His Majesty to Compel his Subjects to submit thereunto by force My Lords I must confess I have many times with my self considered with wonder at the Wisdom of our Ancestors that set the Pillars of this Monarchy with that singular Judgment and Providence that I have ever observed that so oft as either the Prerogative of the Crown or Liberty of the Subject Ecclesiastical or Temporal Powers exceed those modest bounds set and appointed for them by the sobriety and moderation of former times the exercise of it over-turn'd to the Prejudice and to the Detriment of the Publick Weale all the Strings of this Government and Monarchy have been so perfectly tuned through the skill and attention of our Fore-Fathers that if you wind any of them any thing higher or let them lower you shall infallibly interrupt the sweet accord that ought to be entertained of King and People With this Opinion I had the honour to sit many years in the Commons House and this Opinion I have carry'd along with me exactly and intirely for Fourteen Years in the King's Service ever Resolving in my heart Stare super vias antiquas to promote with equal care the Prerogative of the Crown and the Liberty of the Subject to Introduce the Laws of England into Ireland ever setting before my self a Joynt and Individual well-being of King and People for either they must be both or neither which made my Misfortune the greater to be now in my Gray Hairs charged as an under-worker against that Government a Subverter of that Law I wost affected and a Contriver against that Religion to the truth whereof I would Witness by the Sealing of it with my Blood My Lords As to the latter part concerning my Religion they have quitted me and I have nothing to answer to that because it is waved and I trust my Lords I shall clear my self in the first part concerning my being a Subverter of the Fundamental Laws that I shall stand clear to your Lordships Judgments in that Case My Lords This Subversion must be by Words by Councils and by Actions in Ireland and in England My Lords
upon the Coyn all his intentions yea his preparations will not serve to make up a Charge of Treason And this under favour may serve to answer the Case of Guido Faux lately objected unless it be alledged that the Lord Strafford had as real an intention against the King's Life as Faux had for though the Intention in that Case be Treason by the Statute yet in all other things there is no Treason without the Action so immense and vast a Difference both is and ought to be betwixt a Project against the Royal Blood and all things else of a lower and inferiour Nature You see then My Lords that the body of the Statute cannot strike against the Lord Strafford neither in letter nor consequence this is not that must not be All that can be said is That yet his Fact may be Treason by the Common Law For my part I profess my Ignorance who ever thought the Common Law might declare but never make a Treason that is it must be presupposed that there is a Statute whereupon to build the Declaration and therefore to say that there is no Statute for it is to say it is no Treason at all The Statute ever makes the Treason and to be declared to be Treason either by Common Law or by Parliament are but two different ways of proceeding and must both resolve into one Principle nay and which comes home to the point in the 21 Ed. 3. to kill a man imployed in the King's War was Treason and 23. to kill the King's Messenger was Treason by Declaration of the Common Law but alwayes by reason of the Statute yet none of these are now Treason but Felony only by reason of the intervening Statute of 25 Ed. 3. Such hath ever been thought the force of its Letter and Declaration And so I leave it and will speak a word or two of the Salvo which is That because all Particulars could not be then determined therefore what the King and his Parliament should declare to be Treasonable in time to come should be punished as Treason And according to this Reservation in the 8 Ric. 2. one M was charged before the Kings-Bench and afterwards referred to the Parliament and there though the Fact was not contained in the Body of the Statute yet because of the Proviso it was adjudged Treason In the 11th Year of the same King the Duke of Ireland and Nevil Archbishop of York were impeached of High Treason by Glocester Arrundel and Warwick and notwithstanding the Statute were convicted thereof by the Salvo But in the 21 of the same Rich. 2. the Tide turned and the King had such a hand with the Parliament that the Sentence was recalled and those three Noblemen themselves were adjudged Traytors Again in the First Year of H. 4. his Successor that Revocation of the 21 Rich. 2. was repealed and the Sentence of the 11th of his Reign Re-established such were the Tossings to and fro of Treason and all because of that uncertain Proviso Therefore it was that in the same Parliament 1 H. 4. a Petition was preferred by the Nobility to have Treason limited within some Statute because they knew not either what to speak or what to do for fear thereof And in Chap. 10. an Act was made upon this Petition That that Salvo should be holden Repealed in all time to come and nothing Esteemed Treason but what was literally contained in the Statute 25 Ed. 3. And then it is said in the Record that there was great Joy at the making of this Act in that the drawn Sword hanging over every man's head by this slender thread of a Consequence or Illation was removed by that Act. Add to this that 1 Mariae c. 1. the same is repeated that No man shall be punished in Life or Estate as a Traitor but for the Crimes contained in the Statute 25 Ed. 3. without the least mention of the pretended Salvo The Earl of Northumberland 's Case comes nigh to the point he was charged with Treason 5 H. 4. and if the Statute of 1 H. 4. c. 10. whereby the Proviso is repealed had not intervened no doubt he had been condemned of Treason but he was convict of Felony and that because he could not be drawn within the Letter of that Statute 25 Ed. 3. and I dare confidently say it That since that Act made 1 H. 4. c. 10. whereby the Proviso is repealed no man hath ever been declared a Traitor either by the King or Parliament except it were upon that or some other Statute litterally and declaratively taken These two things I do offer to your Lordships Consideration that the Lord Strafford cannot be Impeached of Treason by the Statute of 25 Ed. 3. and that the Salvo contained in the same stands repealed almost 200 Years ago And this is all I conceive to be necessary for that Statute which was alledged by the Lord Strafford in his Defence for matter of Law Then the Recorder Mr. Gardener spoke something to this purpose That what was spoken upon that Statute was because it seemed inseparable from the matter of Fact That they could proceed no further till a state were afforded to them That to do otherwise they conceived might be Exceeding prejudicial to the Earl of Strafford 1. In regard that they should suppose that to be done which is not proved to be so 2. That the matter of Law ariseth so naturally from the matter of Fact that it will be impossible to separate them one from the other 3. That it is the Course of all Judicatures first to settle the Verdict and upon that to fix the Arguments otherwise he could conceive no possible Way of Proceeding and therefore in the Lord Strafford 's name he most humbly intreated their Lordships either wholly to determine the matter of Fact not whether Treason or not for then all after-Proceedings in Law were unnecessary but whether done or not done or else to give them some states of the Question whereunto they might conform themselves Whereupon the Court adjourned But the Commons were resolved to pursue another Method and nothing now would do but the Bill of Attainder Munday April 19. and accordingly upon Monday April 19 it was Resolved upon the Question That the Endeavour of Thomas Earl of Strafford to Subvert the Antient and Fundamental Laws of the Realm of England and Ireland and to introduce an Arbitrary and Tyrannical Government against Law in Both these Kingdoms is High Treason By which Vote they not only precluded all further Argument as to matter of Law but made themselves Accusers Parties and Judges both as to Matter of Fact and Law also Upon Wednesday Wednesday April 21. Bill of Attainder of the E. of Strafford read thrice in one day and passed the Commons April 21. the Bill of Attainder was twice read in the Morning with the Amendments and ordered to be ingrossed and so eager were they in the Prosecution that it was read again in the
him and in that which is most Sacred amongst Men the Publick Justice of the Kingdom The King is to be accounted unto for the loss of the meanest Member much more of one so near the Head The Commons are concerned in their Account for what is done your Lordships in that which is to be done The business therefore of the present Conference is to acquaint your Lordships with those things that satisfy'd 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 Judgment 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 Laws whereby the old at first received life In the first consideration of the setled Laws in the degrees of Punishment the Positive Law received by General Consent and for the Common Good is sufficient to satisfie the Conscience of the Judge in giving Judgment according to them In several Countries there is not the same measure of Punishment for one and the same Offence Wilful Murder in Ireland it is Treason and so is the wilful Burning of a House or a Stack of Corn In the Isle of Man it is Felony to Steal a Hen but not to Steal a Horse and yet the Judge in Ireland hath as just a Ground to give Judgment of High-Treason in those Cases there as here to give Judgment only of Felony and in the Isle of Man of Felony for the Hen as here for Petty-Larceny My Lords in the other Consideration of using the Supream Power the same Law gives Power to the Parliament to make new Laws that enables the inferiour Court to Judge according to the old The Rules 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 wilful oppression of any of the Fellow-Members that no more Blood be taken than what is necessary for the Cure the Laws and Customes of the Realm as well enable the Exercise of this as of the Ordinary and Judicial Power My Lords What hath been said is because that this proceeding of the Commons by way of Bill implies the use of the meer Legislative Power in respect new Laws are for the most part past by Bill This My Lords though just and legal 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 condemn 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 of great and general concernments the Parliament was usually consulted withal 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 Five and Twentieth year of Edward the Third of Treasons The Statute of the Prerogative and of late the Petition of Right if the Law were doubtful in this Case they perceived the Parliament where the old way is altered and new Laws made the fittest Judge to clear this Doubt Secondly My Lords they proceeded this way to obviate those Scruples and Delayes which through disuse of proceedings of this nature might have risen in the manner and way of proceedings since the Statute of the First of Hen. 4. Cap. 17. and more fully in the Roll number 144. The proceedings of Parliament have usually been upon an Indictment first found though in Cases of Treason particularly mentioned in the Statute of 25 Edw. 3. 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 in what manner they were to be made and by whom they find not any Attainders of Treason in Parliament for near this 200 years but by this way of Bill and again they know that whatsoever could be done any other way it might be done by this Thirdly In respect of the Proofs and Depositions that have been made against him for First although they knew not but that the whole Evidence which hath been given at the Bar 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 been any Articles or Charge at all and so in the case of double Testimony upon the Statute of the 1 Edw. 6. whether one direct Witness with others to circumstances had been single or double Testimony And although single Testimony might be sufficient to satisfie private Consciences yet how far it would have been satisfactory in a judicial way where forms of Law are more to be stood upon was not so clear whereas in their way of Bill private satisfaction to each man's Conscience is sufficient although no Evidence had been given in at all My Lords The proceeding by way of Bill it was not to decline your Lordships Justice in the judicial way in these exigends of the State and Kingdom it was to Husband time by silencing those doubts they conceived it the speediest and 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 Earl In the next place I am to declare unto your Lordships the things they took into their Considerations in respect of the Matter and Merits of the Cause and they are comprehended within these six heads 1. That there is a Treason within the Statute of 25 of Edw. III. by Levying of War upon the Matter of the 15th Article 2. If not by actual levying of War yet by advising and declaring his intention of War and that by Savil's Warrant and advice of bringing over the Irish Army upon the Matter in the 23d Article then intending of a War if not within the clause of levying of a War in the Statute of 25th Edw. 3. yet within the first Treason of compassing the death of the King 3. If either of these two single Acts is within the Statute of 25th Edw. 3. yet upon putting all together which hath been proved against him that there is 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 Soldiers upon the Subjects of Ireland against their Will and at their Charge within the Irish Statute of
the 18th year of Hen. 6th that both Person and thing are within the Statute That the Statute remains 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 judicial way may justly be supplied by Bill 5. That his endeavouring to subvert the Fundamental Laws and Government of the Realms of England and Ireland and instead thereof to introduce a Tyrannical Government against Law is Treason by the Common-Law That Treasons at the Common-Law are not taken away by the Statute of 25th Edw. 3 1 Hen. 4th c. nor any of them 6. That as this case stands it 's just and necessary to resort to the Supream Power in Parliament in case all the rest should fail Of these six five of them are Treason within the compass of the Laws already established Three within the Statute of 25th Edw. 3. and 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 pass the Bill My Lords For the first of Levying War I shall make bold to read the case to your Lordships before I speak to it It 's thus The Earl did by Warrant under his Hand and Seal give Authority to Robert Savil a Sergeant at Arms and his Deputies to Sess such numbers of Soldiers Horse and Foot of the Army in Ireland together with an Officer as the Sergeant should think fit upon His Majesties Subjects of Ireland against their Will this Warrant was granted by the Earl to the end to compel the Subjects of Ireland to submit to the unlawful Summons and Orders made by the Earl upon Paper Petitions exhibited to him in case of private interest between party and party this Warrant was executed by Savil and his Deputies by Sessing of Soldiers both Horse and Foot upon divers of the Subjects of Ireland against their Wills in Warlike manner and at divers times the Soldiers continued upon the parties upon whom they were sefsed and wasted their Goods until such time as they had submitted themselves unto those Summons and Orders My Lords This is a Levying War within the Statute of 25th Edw. 3. The words of the Statute are If any man do Levy War against our Lord the King in His Realm this is declared Treason I shall endeavour in this to make clear to your Lordships 1. What shall be Levying of War in respect of the motive or cause of it 2. What shall be said a Levying of War in respect of the action or thing done 3. And in the third place I shall apply them to the present case It will be granted in this Levying of War that Forces may be raised and likewise used in Warlike manner and yet no Levying of War within the Statute that is when the Forces are raised and employed upon private ends either of revenge or interest Before the Statute in Edw. the 1 time the Title of a Castle was in difference between the Earls of Hereford and Gloucester for the maintaining of the possession on the one side and gaining of it on the other Forces were raised on either side of many hundred Men they marched with Banners displayed one against another In the Parliament in the 20th of Edward 1. this was adjudged only Trespass and either of the Earls Fined 1000 Marks apiece After the Statute in Hillary Term in the 15th year of Edw. the 3. in the King's-Bench Rot. 3. Nicholas Huntercome in Warlike manner with 40 men armed amongst other weapons with Guns so ancient as appears by that Record they were did much spoil in the Mannor of the Abby of Dorchester in the County of Oxford this was accounted no Treason and so it hath been held by the Judges That if one or more Town-ship upon pretence of saving their Commons do in a forcible and Warlike manner throw in inclosers this is only a Riot no Treason The words of the Statute 25 Edw. 3. clear this point that if any man ride Armed openly or secretly with men at Arms against any other to kill and rob or to detain him until he hath made Fine and Ransome for his deliverance this is declared not to be Treason but Felony or Trespass as the Case shall require all the printed Statutes which have it covertly or secret are misprinted for the words in the Parliament Roll as appears in the 17th are Discovertment ou Secretement Open or Secretly Object So that my Lords in this of Levying War the Act is not so much to be considered but as in all other Treasons and Felonies quo animo with what intent and purpose My Lords If the end be considerable in Levying War it may be said that it cannot be a War unless against the King for the words of the Statute are If any man Levy War against the King Answ That these words extend further than to the person of the King appears by the words of the Statute which in the beginning declares it to be Treason to compass and imagine the death of the King and after other Treasons this is to be declared to be Treason to Levy War against the King If Levying of War extend no further than to the person of the King these words of the Statute are to no purpose for then the first Treason of compassing the King's death had fully included it before because that he which Levies War against the Person of the King doth necessarily compass his death It 's a War against the King when intended for alteration of the Laws or Government in any part of them or to destroy any of the great Officers of the Kingdom This is a Levying War against the King 1. Because the King doth protect and maintain the Laws in every part of them and the great Officers to whose care he hath in his own stead delegated the execution of them 2. Because they are the King's Laws he is the Fountain from whence in their several Channels they are derived to the Subject all our Indictments run thus Trespasses laid to be done Contra pacem Domini Regis the King's Peace for exorbitant offences though not intended against the King's Person against the King His Crown and Dignity My Lords this construction is made good by divers Authorities of great weight ever since the Statute of 25th of Edw. 3. downwards In Richard the 2d time Sir Thomas Talbot conspired the death of the Dukes of Gloucester and Lancaster and some other of the Peers for the effecting of it he had caused several People in the County of Chester to be Armed in Warlike manner in Assemblies in the Parliament held in the 17th year of R. 2. No 20. Sir Thomas Talbot being Accused of High-Treason for this It 's there declared insomuch as one of them was Lord High Steward of England
200 l. These if done upon these private ends alone had not been a Treason as appears 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 Villains as appears in the Parliament Roll of the First year of Richard the 2d Number 311. and 32. where the Towns of Cambridge and Bridgwater are expresly excepted out of the general Pardon made to the Villains this being done in reference to that design of the Villains of altering the Laws this was that which made it Treason If the design went no further than the enforcing Obedience to these Paper-Orders made by himself it was sufficient it was to subvert one fundamental part of the Law 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 25th year of Edward the 1. a Writ went to the Justices in Ireland that Kingdom at that time was governed by Justices declaring That upon Petitions they were not to determine any Titles between party and party upon any pretence of profit whatsoever to the King In the Eight and twentieth year of Hen. the 6th Chap. 2. Suits 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 Lands or Goods in the proper Courts of the Kings-Bench or Common-Pleas 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 the 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 Labourers of Victuals or of Merton for Inclosures here is a Warrant against the King in respect of the end Secondly 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 Assignment of it over to Savil for this purpose The Warrant gives him power from time to time to take as many Soldiers Horse and Foot with an Officer throughout the whole Army as himself shall please here is the terror and awe of the whole Army to enforce Obedience My Lords If the Earl 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 which was first raised and afterwards committed to his Trust for the Defence of the People is now destined by him to their destruction This assignation of the Army by his Warrant under his Hand and Seal is an open Act. My Lords Here 's not only an open Act done but a Levying of War Soldiers both Horse and Foot with an Officer in Warlike manner assessed upon the Subject which killed their Cattel consumed and wasted their Goods Your Lordships observe a great difference where six men go upon a design 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 poor man fewer more upon a rich if the six had not been able the whole Army must make it good The reason that the Sheriff directed alone or but with one Bayliff to do execution is because he hath the Command of the Law the King 's Writ and the Posse Comitatus in case of resistance Here 's the Warrant of a General of an Army Here 's the Posse Exercitus the Power of the Army under the awe of the whole Army six may force more then sixty without it and although never above six in one place yet in several parts of the Kingdom at the same time might be above sixty for sessing of Soldiers was frequent it was the ordinary course for execution of his Orders The Lord-Lieutenant of a County in England hath a design to alter the Laws and Government nay admit the design goes not so high he only declares thus much he will order the Freeholders and Estates of the Inhabitants of the County at his own will and Pleasure and doth accordingly proceed upon Paper-Petitions foreseeing there will be disobedience he grants out Warrants under his Hand and Seal to the Deputy-Lieutenants and Captains of the Trained-bands that upon refusal they will take such number of the Trained-bands through the County with Officers as they shall think good and lay them upon the Lands and Houses of the refusers Soldiers in a Warlike manner are frequently sessed upon them accordingly your Lordships do conceive that this is a Levying of War within the Statute The Case in question goes further in these two Respects That it is more against the declared Law in Ireland not only against the Common-Law but likewise against the Statute of 28 Hen. 6th against the Acts of the Commissioners against Proclamations in persuance of the Law against that himself took notice of narrow-hearted Commissioners In this that here was an Army the Soldiers by profession Acts of Hostility from them of greater terror than from Freeholders of the same County My Lords I have now done with the First of Levying of War The Second is the Machination the advising of a War The Case in this rests upon a Warrant to Savile and the advice in the 23 Article The Warrant shews a resolution of imploying the old Army of Ireland to the oppression of his Majesties Subjects and the Laws In the 23d Article having told his Majesty that he was loosed and absolved from Rules of Government and might do every thing which Power might admit he proceeded further in Speech to his Majesty in these words You have an Army in Ireland you may employ to reduce this Kingdom My Lords Both being put together there 's a Machination a practise and advice to Levy War and by force to oppress and destroy his Majesties Subjects It hath been said the Statute of the 25 Edw. 3. is a penal Law and cannot be taken by equity and construction there must be an actual War the Statute makes it Treason to counterfeit the King's Coin the conspiring the raising of Furnaces is no Treason unless he doth Nummum percutere actually Coin My Lords This is only said not proved the Law is otherwise the 19th Hen. 6. fol. 49. there adjudged That the conspiring and aiding to
counterfeit Coin was Treason and Justice Stamford fol. 331. 44. is of opinion that this or the conspiring to counterfeit the Great Seal is Treason The Statute is If any shall counterfeit the Great Seal conspiring to do it by the Book is Treason if a man take the Broad Seal from one Patent and put it to another here is no counterfeiting it 's tantamount and therefore Treason as is adjudged in 2 Hen. 4. fol. 25. and by the opinion of Stamford If Machination or Plotting a War be not within that clause of the Statute of Levying of War yet is within the first of compassing the death of the King as that which necessarily tends to the destruction both of King and People upon whose safety and protection he is to engage himself That this is Treason hath been adjudged both after the Statutes of 1 Hen. 4. Cap. 10. and 1 Queen Mary so much insisted upon on the other side In the Third year of King Henry 4th one Balshal coming from London found one Bernard at Plough in the Parish of Osley in the County of Hertford Bernard asked Balshal what news he told him that the news was That Richard the Second was alive in Scotland which was false for he was dead and that by Midsummer next he would come into England Bernard asked him What were best to be done Balshal answered Get Men and go to King Richard In Michaelmas Term in the Third year of Hen. 4th in the Kings-Bench Rot. 4. This advice of War adjudged Treason In Queen Mary's time Sir Nicholas Throckmorton conspired with Sir Thomas Wyat to Levy War within this Realm for alteration in Religion he joyned not with him in the execution This conspiracy alone declared to be Treason by all the Judges this was after the Statute of Queen Mary so much insisted upon That Parliament ended in October this opinion was delivered the Easter Term following and is reported by Justice Dyer fol 98. It 's true Sir Thomas Wyat afterwards did Levy War Sir Nicholas Throckmorton he only conspired This adjudged Treason One Story in Queen Elizabeths time practised with Foreigners to Levy War within this Kingdom nothing done in pursuance of the practice The intent without any adhering to enemies of the Queen or other cause adjudged Treason and he executed thereupon It 's true my Lords that year 13 Eliz. by Act of Parliament it 's made Treason to intend the levying of War this Case was adjudged before the Parliament The Case was adjudged in Hillary Term the Parliament begun not till the April following This my Lords is a Case judged in point that the practising to Levy War though nothing be done in execution of it is Treason Object It may be objected That in these Cases Object the Conspiring being against the whole Kingdom included the Queen and was a Compassing Her destruction as well as of the Kingdoms here the advice was to the King Answ The Answer is first That the Warrant was unknown to His Majesty Answ that was a Machination of War against the People and Laws wherein His Majesties Person was engaged for protection Secondly That the advice was to his Majesty aggravates the Offence it was an Attempt which was the Offence it was an Attempt not only upon the Kingdom but upon the Sacred Person and His Office too himself was hostis patriae he would have made the Father of it so to Nothing more unnatural nor more dangerous than to offer the King Poyson to drink telling him that it is a Cordial is a passing of his death the Poyson was repelled there was an Antidote within the Malice of the giver beyond expression The perswading of Foreigners to invade the Kingdom hold no proportion with this Machination of War against the Law or Kingdom is against the King they cannot be severed My Lords If no actual War within the Statute if the Counselling of War if neither of these single Acts be Treason within the Statute The Commons in the next place have taken it into consideration what the addition of his other Words Counsels and Actions do operate in the Case and have conceived that with this Addition all being put together that he is brought within the Statute of 25 E. 3. The words of the Statute are If any Man shall Compass or Imagine the death of the King the words are not If any Man shall Plot or Counsel the Death of the King No my Lords they go further than to such things as are intended immediately directly and determinatively against the Life and Person of the King they are of a larger extent to compass is to do by Circuit to Consult or Practise another thing directly which being done may necessarily produce this effect However it be in the other Treasons within this Statute yet in this by the very words there is room left for constructions for necessary inferences and consequences What hath been the Judgment and Practice of former times concerning these words of compassing the Kings Death will appear to your Lordships by some Cases of Attainders upon these words One Owen Owen's Case of Sandwich in Kent in King James His time in the 13th year of His Reign at Sandwich in Kent spake these words That King James being Excommunicated by the Pope may be killed by any Man which killing is no Murther Being asked by those he spake to how he durst maintain so Bloody an Assertion Answered That the matter was not so heinous as was supposed for the King who is the Lesser is concluded by the Pope who is the Greater and as a Malefactor being Condemned before a Temporal Judge may be delivered over to be Executed So the King standing Convicted by the Popes Sentence of Excommunication may justly be slaughtered without fault for the Killing of the King is the Execution of the Popes Supream Sentence as the other is the Execution of the Law For this Judgment of High Treason was given against him and Execution done My Lords there is no clear intent appearing that Owen desired the thing should be done only Arguments that it might be done this is a Compassing there is a clear Endeavour to corrupt the Judgment to take off the Bonds of Conscience the greatest security of the Kings Life God forbid saith one of better Judgment then he that I should stretch out my hand against the Lords Anointed No saith he the Lord doth not forbid it you may for these Reasons lawfully kill the King He that denies the Title to the Crown and plots the means of setting it upon anothers head may do this without any direct or immediate desiring the death of Him that wears it yet this is Treason as was adjudged in the 10 of Hen. 7 in these of Burton and in the Duke of Norfolk's Case 13 Eliz. This is a compassing of His Death for there can no more be two Kings in one Kingdom then two Suns in the Firmament he that conceives a Title counts it worth venturing
year of Henry the Sixth which say that the English Statutes shall not be in force in Ireland unless 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 usual when a Statute sayes that such a thing shall be done or not done to add further that all Statutes to the contrary shall be void No likelihood that this Statute intended to take away any Statute of Treason but when in the Chapter next before this Murder there is made Treason as if done upon the Kings person That this Statute of the Eighteenth year of Henry the Sixth remains on foot and not repealed either by the Statute of the Eighth year of Edward the Fourth or this of the Tenth year of Henry the Seventh appears expresly by two several Acts of Parliament made at the same Parliament of the tenth year of Henry the Seventh By an Act of Parliament of Henry the Sixth's time in Ireland it was made Treason for any Man whatsoever to procure a Privy-Seal or any other Command whatsoever for apprehending any Person in Ireland for Treason done without that Kingdom and to put any such Command in Execution divers had been attainted of Treason for executing such Commands There 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 repeal 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 E 4. or then by the two and twentieth Chapter of this Parliament of the 10th of Henry the Seventh by bringing in the English Statutes the Law-makers were much mistaken now to make a particular Act of Parliament to repeal it it being likewise so unreasonable an Act as it was In the Eighth Chapter of this Parliament of the 10th of Henry the Seventh it is Enacted that the Statutes of Kilkenny and all other Statutes made in Ireland two only excepted whereof this of the Eighteenth of Henry the Sixth is none for the Common-Weal shall be enquired of and executed My Lord of Strafford saith that the bringing in of the English Statute hath repealed this Statute 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 however it was in the 10 H. 7. yet it appears by Judgment in Parliament afterwards that this Statute of 18 H. 6. is repealed and that is by the Parliament of the 11th year of Queen Elizabeth the 7th Chapter that by this Parliament it is Enacted That if any Man without Licence from the Lord-Deputy lay any Soldiers upon the Kings Subjects if he be a Peer of the Realm he shall forfeit one hundred pounds if under the degree of a Peer One hundred Marks This Statute as is alleadged declares the Penalty of laying Soldiers on the Subjects to be only one hundred pounds and therefore it s not Treason Answ My Lords if the Offence for which this Penalty of one hundred pounds is laid upon the Offenders be for laying Soldiers or leading them to do any Act Offensive or Invasive upon the Kings People the Argument hath some force but that the Offence is not for laying Soldiers upon the true Subjects that this is not the Offence intended in the Statute will appear 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 War or shall carry those People to do any Acts Offensive or Invasive then he shall forfeit One hundred pounds If concluding of War and carrying the people to Acts Invasive be against the Kings Subjects this is high-High-Treason which are the words of the Statute of 25 E. 3. for if any Subject shall assemble the people and conclude a War and accordingly shall lead them to invade the Subject this is a levying of War within the words of the Statute and then the Statutes of the 25 E. 3. 1 H. 4. 1 of Queen Mary which the Earl of Strafford in his Answers desires to be tryed by are as well repealed in this point as the Statute of the 18th of Henry the Sixth he might then without fear of Treason have done what he pleased with the Irish Army for all the Statutes of levying of War by this Statute of 11 Eliz. were taken out of his way In Ireland a Subject gathers Forces concludes a War against the Kings People actually invades them bloodshed burning of houses depredations ensue two of those that is Murder and burning of Houses are Treason and there the other Felony by the construction the punishment of Treason and Felony is turned only into a fine of One hundred pounds from loss of Life Lands and all his Goods only to loss of part of his Goods The Third Absurdity a War is concluded three several Inrodes are made upon the Subjects in the first a hundred pounds damage in the second five thousand pounds damage in the third ten thousand pounds damage is done to the Subjects the penalty for the last inroade is no more then for the first only one hundred pounds This Statute by this Construction tells any man how to get his living without long labour Two parts of the hundred pounds is given to the King a third part unto the Informer Here 's no damage to the Subject that is robbed and destroyed My Lords The Statute will free it self and the makers from those Absurdities The meaning of the Statute is That if any Captain shall of his own head conclude of Peace or War against the Kings Enemies or Rebels or shall upon his own head invade them without Warrant from the King or Lord Deputy of Ireland that then he shall forfeit a Hundred pounds The offence is not for laying of Soldiers upon the Kings people but making War against the Irish Rebells without Warrant the Offence is not in the Matter but in the Manner for doing a thing lawful but without Mission I. This will appear by the general Scope of the Statute all the parts being put together II. By particular Clauses in the Statute III. By the Condition of that Kingdom at the time of the making of that Statute For the First The Preamble recites that in time of Declination of Justice under pretext of defending the Country and themselves diverse great Men arrogated to themselves Regal Authority under the names of Captains that they acquired to themselves that Government which belonged to the Crown for preventing of this It 's Enacted That no man dwelling within the Shire-Grounds shall thenceforth assume or take to himself the Authority or name of a Captain within these Shire-Grounds without Letters-Patents from the Crown nor shall under colour of his
Captainship make any demand of the people of any Exaction nor as a Captain assemble the people of the Shire-Grounds nor as a Captain shall lead those people to do any acts Offensive or Invasive without Warrant under the Great-Seal of England or of the Lord-Deputy Deputy upon penalty that if he do any thing contrary to that Act that then the Offender shall forfeit a Hundred pounds My Lords the Rebels had been out the Courts of Justice scarce sate for defence of the Country divers usurped the place of Captains concluded of War against the Rebels and invaded them without Warrant Invading the Rebels without Authority is a crime This appears further by particular clauses in the Statute none shall exercise any Captainship within the Shire-grounds nor assemble the men of the Shire-grounds to conclude War or lead them to any Invasion That that had anciently been so continued to this time that is the Irish and the English Pale they within the Shire-grounds were within the English Pale and ad fidem legem Angliae The Irish without the Pale were enemies always either in open act of Hostility or upon Leagues and Hostages given for securing the Peace and therefore as here in England we had our Marches upon the frontiers in Scotland and Wales so were there Marches between the Irish and English Pale where the Inhabitants held their Lands by this tenure to defend the Country against the Irish as appears in the close Roll of the Tower in the 20th year of Edw. 3. membrana 15. on the backside and in an Irish Parliament held the 42 year of Edw. 3. it 's declared That the English Pale was almost destroyed by the Irish enemies and that there was no way to prevent the danger but only that the Owners reside upon their Lands for defence and that absence should be a forfeiture This Act of Parliament in a great Council here was affirmed as appears in the close Roll the 22 year of Edw. 3. Membrana 20 dorso Afterwards as appears in the Statute of 28 Hen. 6th in Ireland this Hostility continued between the English Marches and the Irish Enemies who by reason there was no difference between the English Marches and them in their Apparel did daily not being known to the English destroy the English within the Pale Therefore it is enacted that every English-man shall have the hair of his upper Lip for distinction sake This hostility continued until the 10th year of Henry the 7th as appears by the Statute of 10 H. 7th and 17th so successively downwards till the making of this very Statute of 11 Eliz. as appears fully in the 9th Chap. Nay immediately before and at the time of the making of this Statute there was not only enmity between those of the Shire-ground that is the English and Irish Pale but open War and acts of Hostility as appears by History of no less Authority than that Statute it self for in the first Chapter of that Statute is the Attainder of Shane Oneale who had made open War was slain in open War it 's there declared That he had gotten by force all the North of Ireland for an hundred and twenty miles in length and about a hundred in breadth that he had mastered divers places within the English Pale when the flame of this War by his death immediately before this Statute was spent yet the Firebrands were not all quenched for the Rebellion continued by John Fitz-Gerard called the White Knight and Thomas Gueverford this appears by the Statute of the Thirteenth year of Queen Eliz. in Ireland but two years after this of the Eleventh year of Queen Eliz. where they are attainted of High-Treason for Levying of War this Eleventh year wherein this Statute was made So that my Lords immediately before and at the time of the making of this Statute there being War between those of the Shire-Grounds mentioned in this Statute and the Irish the concluding of War and Acts Offensive and Invasive there mentioned can be intended against no others but the Irish Enemies Again The words of the Statute are No Captain shall assemble the people of the Shire-grounds to conclude of Peace or War Is to presume that those of the Shire-grounds will conclude of War against themselves Nor with the Statute Shall carry those of the Shire-grounds to do 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 That as a Captain none shall assume the Name or Authority of a Captain or as a Captain shall gather the people together or as a Captain 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 were under Command were punishable as well as the Commanders but in respect the Soldiers knew the service to be good in it self being against the enemies and that it was not for them to dispute the Authority of their Commanders the penalty of 100 l. is laid only upon him That as Captain shall assume this Power without Warrant the People commanded are not within this Statute My Lords The Logick whereupon this Argument is framed stands thus because the Statute of the Eleventh year of Queen Elizabeth inflicts a penalty of 100 l. and no more upon any man that as a Captain without Warrant and upon his own head shall conclude of or make War against the King's Enemies Therefore the Statute of the 18th year of Henry the 6th is repealed which makes it Treason to lay Soldiers upon or to levy 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 shews that the Deputy is within none of the Statutes My Lords This Argument stands upon the same reason with the former because he 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 Enemy because of the danger that else might ensue forthwith by staying for a Warrant from His Majesty out of England My Lords The Statute of the 10th year of Henry the 7th Chap. 17. touched upon for this purpose clears the business in both points for there is declared That noâ—e ought to make War upon the Irish Rebels and Enemies without Warrant from the Lieutenant the forfeiture 100 l. as here the Statute is the same with this and might as well have been cited for repealing the Statute of the 18th year of Henry the 6th as this of the 11th year of Queen Elizabeth But if this had been insisted upon it would have expounded the other two clear 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
greater for drawing others to joyn with him in it That the Oath injoyned in England seems to have followed the Precedent of Ireland that though Salmon mistakes the time he does not mistake the substance and that though my Lord Strafford 's Witnesses do not remember the Words about the Scots it is no impeachment of the Witnesses against him that do Concluding That this administring an Oath was assuming a Power above Regal for this is not penes Potestatem Ministri Mr. Maynard added That though the King injoyned him to administer an Oath yet not to punish the Refusers Upon Monday April 5. the Commons proceeded to the 20 21 22 Munday April 5. Artic. 20 21 22 23 24. 23 and 24 Articles but before they began the Lord High Steward informed them That upon my Lord's Petition the Earl of Northumberland had been Examined but being late could not be Cross Examined by the Commons Mr. Whitlock desired he might be reserved and some other Witnesses My Lord opposed Supplemental Evidence and desired he might Cross Examine my Lord of Canterbury They answered My Lord of Canterbury was Impeached but they did not intend to make use of his Evidence and the other Witnesses were such as were to speak vivâ voce instancing in Serjeant Glanvil Mr. Whitlock then begun to open the foresaid Articles in gross which the Earl desired the Lords might not be acquainting them his Memory could not serve him to make replyes if they inverted the Method That any other person in his Circumstances would think as long time as he had been favoured with to recollect and put his Notes in Order no more than necessary though a far abler man than himself Mr. Glyn said he never knew a Prisoner prescribe a Method especially in case of High Treason My Lord then desired he might have time till to morrow for his Answer which being offered with all humility for his Defence he hoped their Lordships might grant without Offence But he was over-ruled and they proceeded Mr. Whitlock proceeded in the Charge That he advised the King that the Scots Demands were a sufficient ground of War that they struck at the Root of Monarchy and were not only matters of Religion That he seized their Ships in Ireland procured the Parliament in Ireland to give assistance and supply for a War against Scotland That his design was the same against England That Sir George Ratcliff told Sir Robert King The King had 30000 men and 400000 l. in his Purse and his Sword by side and if he wants money who will pity him he may make peace when he will though that be the worst of Evils that if the Parliament did not supply him he might use his Prerogative and would be acquitted before God and Man if he took other Courses to supply himself and he would be ready to serve him in any other way that he advised the Dissolving of the Parliament and said that they having denied the King Supplies he might provide for the Kingdom by such wayes as he thought fit and not suffer himself to be mastered by the wilfulness or frowardness of his People That having tried all wayes he was to do all that Power would admit being absolved from all Rules of Government and acquitted before God and Man that he had an Army in Ireland which he might Employ to reduce his Kingdoms For proof Earl of Traquair the Earl of Traquair deposed That the Earl said that the Vnreasonable demands of Subjects in Parliament was a ground for the King to put himself into a posture of War and that at the Council-Board the Earl with the rest concluded That if the Commissioners from Scotland to whom the King had given leave to come up to represent their demands did not give good satisfaction touching them the Council would be assistant to his Majesty to put him into a posture of War to reduce them to their Obedience but who spoke first at the Board he remembers not After some debate about reading the Examinations of Witnesses not present Earl of Morton the Lord High Steward ruling it the Examination of the Earl of Morton was read he being sick That the Earl had said as before for the Ground of War and that the Examinate told his Majesty he had given the Scots leave to Petition in Parliament for Redress and without hearing their Reasons there was not sufficient Ground for War to which his Majesty said he spoke reason howbeit the Lord Strafford said there was ground enough for War Whence Mr. Whitlock observed That though he knew not the Reasons nor was versed in Republica aliena yet he repeats his advice That these Demands c. That the Scots Commissioners by his Majestie 's leave being on their way to give Reasons yet the Earl of Strafford said the demands were not matters of Religion but strook at the Root of Government and such as he thought were fit for his Majesty to punnish Sir Henry Vane deposes Sir Hen. Vane That after the breaking up of the Parliament some thing was proposed and he himself proposed a Defensive War the Earl of Strafford an Offensive The Earl of Northumberland's Examination read Earl of Northumberland was to the same Effect The Bishop of London Lord Treasurer of England Bishop of London deposed That among others my Lord Strafford gave advice That his Majesty should prepare himself to reduce them by Force his Majesty having acquainted them upon the Earl of Traquair 's Relation That some of their Demands were prejudicial to the Crown and which he could not grant That the War being at ancther meeting resolved upon whether Offensive or Defensive there were divers opinions but believes my Lord Strafford inclined to an Offensive War Nicholas Barnwell deposed Mr. Nicholas Barnwell That Sir Robert Loftus seized several Scotch Ships and Boats and that others hearing fled away and that Sir George Ratcliff was displeased with Sir Robert for making it publick by which means they Escaped Then the Lord Primate of Ireland's Examination was read Archbishop of Armagh That discoursing about levying of money the Earl of Strafford declared that he agreed with those of England who thought in Case of imminent necessity the King might make use of his Prerogative to Levy what he pleased adding That His Majesty was first to try his Parliament and if they supplied him not then he might make use of his Prerogative as he pleased himself The Lord Conway deposed Lord Conway That in private discourse about the 12 Subsidies the Lord Strafford said words to this Effect That the King had need and if the Parliament would not supply the King though he hoped they would the cause being just and lawful the King was justified before God and man if he sought means to help himself though it were against their Wills Sir Henry Vane deposed that the Lord Strafford said Sir Hen. Vane In case the Parliament did not succeed he would be
the said Counties respectively or otherwise sufficiently Armed and furnished as you in your discretion shall appoint and require And he did not send to pay money but to relieve them by turns and if they found it for their Ease they might do their duty which by Common Allegiance is due or be at the Charge to have it done for them And then he insisted upon another Clause which is according to the Statute of 11 H. 7. in these words And further Our pleasure is and we do give and grant for us our Heirs and Successors That whatsoever you or any other person or persons of what degree soever by your Commission Warrant or Command shall do by Virtue of this Our Commission or Letters Patents or according to the Instructions aforesaid or the purport of this Our Commission touching the Execution of the Premisses both you and the said persons in shewing forth these our Letters Patents or the Constat or Inrollment thereof shall be discharged and acquitted against Us Our Heirs and Successors and freed from all Impeachment and other molestation for the same And therefore if he erred he hopes he is to be Excused for this purpose citing part of the Statute of 11 H. 7. THe King our Soveraign Lord Part of the Statute of 11 H. 7. recalling to his Remembrance the Duty and Allegiance of His Subjects and that they by reason of the same are bound to serve the King for the time to come in His Wars against every Rebellion and Power and Might c. and whatsoever falls against the mind of the Prince and that it is against all Law Reason and Conscience that attending His Person or being in other places of His Command any should lose or forfeit for doing their true Service and Obedience Be it therefore Enacted c. That from henceforth no manner of Person or Persons whatsoever that attends the King in His Person and do Him true Allegiance in His Person or be in other places in His Wars for the said Deed or true Duty he and they shall be any way convicted and Attainted of Treason nor of any other Offence by any Process of Law whereby he shall forfeit Lands Goods Tenements c. and shall be for that Deed and Service utterly discharged of any Vexation c. So that as he conceives having done nothing but for the good of his Majestie 's Service the preservation of the Countrey whatever he may have offended he hopes by the Act of Parliament and his Commission he may appear to their Lordships Justice and Compassion to a man that may Err acquitted of the Charge of High Treason For the words That Refusers were guilty of little less then High-Treason that taking it as he said for a denial of Common Allegiance it is no small Crime but it is only a single Testimony for which he takes himself not to be accomptable Mr. Maynard replyed Managers Reply That he had in stating his Case encreased not diminished his Fault for that the consent of some Gentlemen and Free-holders could not bind the rest and it is no legal way to raise money by Warrant much less by Force That he had no consent of the Lords for what he did as he pretended His Commission speaks not of money and the Statute is not to his Case it being for service on their Allegiance due to the King and levying Money Illegally is no part of that service That he did not first require men to serve but first pay and if not menaces them with Service as appears by the Warrants And to the single testimony of Sir William Ingram concerning Treason for non-payment they produced Mr. Cholmley who deposed That his Lordship said Mr. Henry Cholmley We are all tyed to serve the King in our own Persons and they that refuse are in little better case then Treason and punishable in the Star-Chamber And as he sayes the Warrants were not his it is evident they were by his Command Mr. Whitlock observed That what my Lord pleads in his Justification are sufficient grounds for his Condemnation for affirming necessity absolves the King from Rules of Government and that subjects may be taxed without assent of Parliament are expressly against the Fundamental Laws and a Course to introduce Arbitrary Government My Lord desired to speak to Mr. Cholmley 's Evidence which was new matter which he said differed from Sir William Ingram 's One sayes if money were not paid it was little better c the other he that denies his Allegiance is in little better case than Treason and punishable and for the assuming by his Commission to raise Taxes God forbid he should say or think such a thing but only to call men to perform their Duty for preservation of the King and Countrey He offered then something as to Sir William Penyman 's Warrant which he said was issued by him and the Deputy-Lieutenants Mr. Maynard replyed This was no colour of answer because a Man must serve in person therefore money must be required else he must be brought by head and shoulders to serve in person and offered a Warrant of Sir Edward Osborn 's made upon peril of Life and that all that can be imprisonment levying money charging upon peril of life levying of Goods hath been put upon the Subject Mr. Glyn added That the direction was his the execution others that Gogan 5. R. 2. was accused of Treason for forcing a man to enter into Bond which is not so much as forcing payments on the King's Subjects Then Sir Edward Osborn 's Warrant was read attested by Mr. Cholmley to be the Original in these words VVHereas His Majesty is informed Sir Edward Osborn's Warrant for Levying money that the Regiment under Command of Colonel Cholmley is set forth with little Money which expresses great disaffection to His Majesties service and wilful neglect of your own and the whole Kingdoms safety the Scotch Army having taken Newcastle and being on their march towards these parts These are therefore to Will and require you in His Majestie 's Name and by His special Command to raise and cause to be raised by the Port Constable or otherwise as you shall think best the summ of 20 s. 8 d. at least for each common Soldier 's belonging to such Towns or Parishes to send the same immediately to York to be delivered to the Colonel for Pay and Supply of the said Soldiers and likewise to charge and command all and every person and persons who find private Arms or contribute thereunto for thwith to send the like summ at least to York to be disposed as aforesaid And in case any of them refuse to contribute you are required by like Command to certifie me the Names of such refusers that a Messenger may be sent to bring them hither to serve in person and be severely punished according to the Quality of so high an offence seeing the safety of His Majestie 's Person and the safety of
and the other High Constable that this was done in destruction of the Estates of the Realm and of the Laws of the Kingdom and therefore adjudged Treason and the Judgment sent down into the King's Bench as appears Easter Term in the 17th year of R. 2. in the King's-Bench Rot. 16th These two Lords had appeared in the 11th of R. 2. in maintainance of the Act of Parliament made in the year before one of them was of the Commissioners appointed by Parliament and one of the Appealors of those who would have overthrown it The Duke of Lancaster likewise was one of the Lords that was to have been Indicted of Treason for endeavouring the maintenance of it and therefore conspiring of their deaths is said to be in destruction of their Laws This there is declared to be Treason that concerned the Person of the King and Common-wealth In that great insurrection of the Villains and meaner People in Richard the II. time they took an Oath Quod Regi Communibus fidelitatem servarent to be true to the King and Commons and 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 establish the Laws of Villanage and Servitude to burn all the Records to kill the Judges This in the Parliament of the 5th year of R. 2. No 31 32. the First Part is declared to be Treason against the King and against the Law In the 11th year of R. 2. in Parliament the raising of Forces against the Commissioners appointed by Act of Parliament the year before adjudged Treason by the Judges The Statute Jmo Mary Cap. 12. Enacts That if 12 or more shall endeavour by force to alter any of the Laws or Statutes of the Kingdom he shall from such a time there limited be adjudged only as a Felon This Act was to continue but to the next Parliament it is expired it shews by the words only that the offence was higher before the making it My Lords In Queen Elizabeths time Grant and divers Apprentices of London to the number of 200. rose and assembled at Tower-hill carried a Cloak upon a Pole instead of a Banner their intent was to deliver divers Apprentices out of Prison that had been committed upon a Sentence in the Star-Chamber for Riots to kill the Lord Major of London and for setting prizes on Victuals In Trinity Term 37 Eliz. divers of the Judges were consulted withal and resolved That this was a Levying of War against the Queen being intended against the Government and Officers of the Queen and therefore Grant and others were executed as Traytors Afterwards in that Queens time divers of the County of Oxford consulted to go together from House to House in that County and thence to London and other parts to excite them to take up Arms for the throwing in of all inclosures throughout England Nothing was done nor no assembly Yet the Statute of 13 Eliz. Cap. 1. during the Queens Life made it Treason to intend or advise to Levy War against the Queen In Easter Term 39 of Eliz. all the Judges of England met about the Case it was resolved by them that this was a War intended against the Queen they agreed That if it had been of one Township or more upon private interest and claim of right of Common it had not been Treason but this was to throw in all Inclosures through the Kingdom whereunto these parties should pretend no claim That it was against the Law in regard that the Statute of Merton gave power of Inclosures in many Cases upon this resolution Bradsaw and Burton were executed at Aynestowhill in Oxfordshire the place where they intended the first Rendezvous So that my Lords if the end of it be to overthrow any of the Statutes any part of the Law and setled Government or any of the great Officers intrusted with the execution of them This is a War against the King My Lords It will be further considerable what shall be accounted a Levying of War in respect of the Actions and things done there 's a design to alter some part of the Laws and present Government for the effecting thereof People be provided of Arms gathered together into Troops but afterwards march not with Banners displayed nor do Bellum percutere whether the Army themselves and gathering together upon this design be a War or such prosecution of the Design with force as makes it Treason within the Statute First If this be not a War in respect that it necessarily occasions hostile preparations on the other side Secondly From the words of the Statute shall Levy War and 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 of men together be not an open Declaration of War In Sir Thomas Talbot's Case before cited in the Seventeenth year of R. II. 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 Warlike manner in Assemblies here is no Marching no Banners displayed In the Eighth year of Hen. VIII William Bell and Thomas Lacy in Com. Kanc. conspired with Thomas Cheyney called the Hermet of the Queen of Faries to overthrow the Law and Customs of the Realm 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 Acts. My Lords For the application of both these to the case in question First In respect of the end of it here was a War against the King it was to subvert the Laws this being the design 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 is declared by the Warrant My Lords If it be said that the Warrant expresseth not any intent of subverting the Laws It expresseth fully one of the principal means whereby this was to be done that is obedience to his Arbitrary Orders upon Paper-Petitions This was done in reference to the main design In the cases of the Town of Cambridge and Sir William Cogan they have formerly been cited to your Lordships upon other occasions the things in themselves were not Treason they were not a Levying of War In that of Cambridge the Town met together and in a forcible manner broke up the University-Treasury and took of it the Records and Evidences of the Liberties of the University over the Town In the other they of Bridgewater marched to the Hospital and compelled the Master of the Hospital to deliver unto them certain Evidences that concerned the Town and forced him to enter into a Bond of
come in further Agitation and discussion in this Honourable House 9. Lastly The Judges Opinions are not usually call'd upon in Parliament but when upon Debate great and difficult Points in Law do arise where this most Honourable doth think fit to Command their Opinions but no Resolutions do belong unto the said Judges in Parliament but unto your Lordships yet in the Front and Preamble of the said Questions the Resolution of the said Questions by the Judges is forthwith desired to be required by your Lordships in Writing Although the first Question Viz. Whether the Subjects of this Kingdom c. be positively resolved by the Preamble to the said Questions in which it is likewise declared That the said Judges Answers thereunto are not desired For any Doubt or Ambiguity which may be conceived or thought of for or concerning the Premisses nor of the said Questions but for Manifestation and Declaration of a clear Truth and of the Laws and Statutes already planted and setled in this Kingdom And they conceive it is impossible to make any Manifestation or Declaration of Law or Statutes which may hold or be useful upon such general Questions as most of these are namely by what Laws in what Cases of what Power of what Force How Where and Why by Whom Wherefore what punishment by what Rule of Policy in what Condition of Persons In regard that the next succeeding Judges may be of another Opinion and that a Circumstance may alter the Reason of the Law in many particular Cases which the Wit of Man is not able to foresee or give a general Rule in And they say That to give any satisfaction to your Lordships or the Honourable House of Commons would make up a great Volume and require far more time then your Lordships have afforded unto the said Judges considering their great Toyl in the Circuits the last long Vacation their other Employments in the Common-wealth at their daily Attendance on your Lordships in Parliaments and in ordering Courts of Justice and yet lest they may seem to come any way short in performance of that Duty which they confess to be due unto your Lordships or be wanting in promoting and advancing the Good of the Common-wealth which they believe to be aimed at by the said Questions though it may seem to draw Damage or Prejudice upon their Particulars They do in all humbleness present unto your Lordships the ensuing Answers unto the said Questions which is as much as by their Oaths or in their Duty they owe unto His Sacred Majesty before his Princely pleasure be therein signified they can answer thereunto TO the First they Answer That the Subjects of this Kingdom are a Free People and are for the general to be Govern'd only by the Common Laws of England and Statutes of Force in this Kingdom yet they say That as in England many Statutes are grown obsolete and out of use and some particular Ancient Laws as well in Criminal as Civil Causes have been changed by Interpretation of the Judges there as they found it most agreeable for the general Good of the Common-wealth and as the Times did require it so our Predecessors the Judges of this Kingdom as the Necessity of the Times did move them did declare the Law in some particular Cases otherwise then the same is practised in England which the now Judges cannot alter without apparent diminution of a great part of His Majesties standing Revenue and opening a Gap for the shaking and questioning the Estates of many of His Majesties Subjects and the overthrowing of several Judgments Orders and Decrees which depend thereupon For Example If it be found by Office of Record sufficient for Form That a Man was killed in actual Rebellion and at the time of his Death he was seised of Lands Hereditaments Goods or Chattels by the constant Declaration of Law and Practise in former times here the Crown was Intitled to such Lands Goods and Chattels and many Mens Estates depend thereupon and yet the Law is not so taken in England So If one or more commit Felony and then stand out upon his or their keeping and he or they will not submit themselves to be tryed by the Law but being in that Case do rob or spoil and terrifie His Majesties People whereby the Country is disquieted This by the constant Opinion of our Predecessors in this Kingdom hath been adjudged a Levying of War within the Statute of 25 E. 3. and so consequently Treason Also by the common received Opinion and Practice of this Kingdom the Wife is to have a Third of all the Goods and Chattels and Credits of her Husband the Debts being paid although he dispose of all by his Will from her And yet the constant Practise is otherwise in England And other Instances of that kind might be made so that that word Only must receive a benign Exposition before the first Question can receive a general Answer in the Affirmative Secondly Many Causes of great Weight and Consequence in this Kingdom are to be Decreed and Ordered by Equity in the proper Courts of Equity and in Course of State at the Council Board and by particular Customes not contrary to Law for which the Common Law and Statutes of Force in this Kingdom gave no Remedy Thirdly There are several other Laws of Force in England and Ireland so far as they have been received which though some would have to be part of the Common Law of England yet we find them particularly distinguished from it in our Printed Books and Parliament Rolls in England As Lex Consuetudo Parliamenti jura Belli Ecclesiastical or Canon Law in certain Cases Civil Law in some Cases not only in Ecclesiastical Courts but in the Courts of Constable and Marshal and of the Admiralty and upon particular occasions in other Courts Lex Mercatoria c. 2. To the Second they say That the Judges of this Kingdom do take the Oath of Judges which Oath is specified amongst the Statutes in 18 E. 3. And is afterwards explained by the Stat. of 20 E. 3. And that they may not stay hinder or delay the Suit of any Subject or his Judgment or Execution thereupon otherwise than according to the Law and Course of the Court when they Sit under pretence of any Act of State Proclamation Writ Letter or Direction under the Great or Privy Seal or Privy Signet or Letter or other Commandment Lord Lieutenant Lord Deputy Justice Justices or other Chief Governors of this Kingdom most of which doth appear by their Oath expressed in the Statutes and the Statute of 20 E. 3. c. 8. And the Statute of 20 E. 3. c. 2. as to the Barons of the Exchequer And that as they know no Punishments due to Judges for their Deviations and Transgressions without other Aggravation so they know no punishment laid down by any Law against them for their Deviations and Transgressions in hindering staying or delaying of Justice contrary to their said Oath