M R. S T. JOHN ' S Argument.  
My Lords,  
THE Knights, Citizens, and Burgesses of the Commons House of Parliament have passed a Bill for the attainting of Thomas Earl of Strafford of High-Treason. The Bill hath been transmitted from them to your Lordships. It concerns not him alone, but your Lordships and the Commons too, though in different Respects.  
It is to make him as miserable a man, as man or Law can make him.  
Not loss of life alone, but with that, of honour, name, posterity, and estate; Of all that's dear to all.  
To use his own expression, an eradication of him both root and branch, as an Achan, a troubler of the State, as an execrable, as an accursed thing.  
This Bill, as it concerns his Lordship, the highest that can be in the penal part, so doth it on the other side as highly concern your Lordships and the Commons in that which ought to be the tenderest, the Judicatory within, that that judge not them who judge him: And in that which is most sacred amongst men, the public Justice of the Kingdom.  
The Kingdom is to be accounted unto for the loss of the meanest member, much more for 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 satisfied the Commons in passing of this Bill, such of them as have come within my capacity, and that I can remember, I am commanded from the Commons at this time to present unto your Lordships.  
My Lords, in Judgements of greatest moment, there are but two ways 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 settled Laws; In the degrees of punishment the positive Law received by general consent, and for the common good, is sufficient to satisfy the conscience of the Judge in giving judgement according to them.  
In several Countries there is not the same measure of punishment for one and the same offence. Wilful murder in Ireland is Treason, and so is the wilful burning of a house or stack of Corne. In the Isle of Man, it's felony to steal a Hen, but not to steal a Horse; and yet the Judge in Ireland hath as just a ground to give judgement of high Treason in those Cases there, as here to give judgement only of felony, and in the Isle of Man of felony for the Hen, as here of petty Larceny.  
My Lords, in the other consideration of using the Supreme power, the same Law gives power to the Parliament to make new Laws, that enables the inferior Court to judge according to the old. The rule that guides the conscience of the Inferior Court is from without, the prescripts of the Parliament and of the Common Law; in the other the rule is from within; That salus populi be concerned; That there be no wilful oppression of any the fellow members, that no more blood be taken than what is necessary for the Cure, the Laws and Customs 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 mere Legislative power, in respect new Laws are for the most part passed 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 intent 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.  
1 First, the Commons knew that in all former ages, if doubts of Law arose upon cases of great and general Concernment, 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 the 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 conceived the Parliament (where the old may be altered, and new Laws made) the fittest Judge to clear this doubt.  
2 Secondly, my Lords, they proceeded this way to out those scruples and delays, which through dis-use of proceed of this nature might have risen in the manner and way of proceeding, since the Statute of the first of Henry the fourth, the seventeenth chapter, and more fully in the Roll, number▪ 144. The proceed in Parliament have usually been upon an Indictment first found, though in Cases of Treason particularly mentioned in the Statute of the five and twentieth year of Edward the third, which had not been done in this Case: Doubts likewise might rise for Treasons, not particularly mentioned in the Statute of 25. Edw. 3. whether the declaratory power of Parliament be taken away, and if not taken away, in what manner they were to be made, and by whom. They find not any Attainders of Treason in Parliament for near this 200 years, but by this way of Bill. And again, they knew that whatsoever could be done any other way, it might be done by this.  
3 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 first of Edward the sixth, whether one direct witness with others to Circumstances, had been single or double Testimony; and although single Testimony might be sufficient to satisfy private Consciences, yet how fare 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 this way of Bill private satisfaction to each man's Conscience is sufficient, although no evidence had been given in at al.  
My Lords, the proceeding by way of Bill, it was not to decline your Lordship's Justice in the judicial way; In these Exegencies of the State and Kingdom, it was to husband time by silencing those doubts: they conceived it the speediest and the surest way.  
My Lords, These are in effect, the things the Commons took into their Consideration, in respect of the manner, and way of proceeding against the Earl. In the next place I am to declare unto your Lordships, the things they took into their Consideration, in respect of the matter and merits of the Cause; They are comprehended within these six heads.  
1. That there is a treason within the Statute of 25. E. 3. by Levying of war upon the matter of the fifteenth Article.  
2. If not by actual levying of war, yet by advising and declaring his intention of war, and that by Savils warrant, and the advice of bringing over the Irish army, upon the matter in the 23 Article; The intending of a War, if not within the Clause of Levying War in the statute of 25. E. 3. yet within the first treason of compassing the death of the King▪  
3. If neither of these two single Acts be within the Statute of 25. E. 3. yet upon putting all together, which hath been proved against him, That there's a Treason within the first clause of compassing the death of the King.  
Et si non prosunt singula, juncta juvant.  
4. That he hath sessed and laid Soldiers upon the Subjects of Ireland against their will, and at their Charge, within the Irish Statute of the eighteenth year of Henry the sixth. 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 judical 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 Statutes of 25. E. 3. 1. H. 4. c. 10. 1. Mar. c. 1. nor any of them.  
6. That as this Case stands, It's just and necessary to resort to the Supreme 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 25. E. 3. One within the Irish Statute, the other by the Common Law of England.  
If but any one of these six Considerations hold, The Commons conceive that upon the whole matter they had good cause to 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 Savill a Sergeant at Arms, and his Deputies, to sesse such number of Soldiers, horse and foot of the Army in Ireland together with an officer, as the Sergeant should think fit, upon his Majesty's 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 unto him in case of private Interest between party and party; This warrant was executed by Savill and his Deputies by sessing of Soldiers both horse and foot, upon divers of the Subjects of Ireland against their will in warlike manner, and at divers times the Soldiers continued upon the parties upon whom they were sessed, and wasted their goods, until such time as they had submitted themselves unto those Summons and orders.  
My Lords, This is a levying of war within the statute of 250. E. 3. The words of the Statute are, If any man do levy war against our Lord the King in his Realm, this is declared to be Treason.  
I shall endeavour in this to make it appear to your Lordships. 

1 What shall be a 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 orthing done.  
3 And in the third place, I shall apply them to the present Case.    
It will be granted in this of levying of war, That forces may be raised and likewise used in a 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 this Statute in E. 1. time. The Title of a Castle was in difference between the Earls of Hereford and Gloster, for the mainetaining 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 the other. In the Parliament in the 20. year of Edw. 1. this adjudged only trespass, and either of the Earls fined 1000 marks a piece.  
After the Statute in Hillary Term, the fiftieth year of Edward the third, in the King's Bench, Rot. 3. Nicholas Huntercome in a 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 Manor of the Abbee of Dorchester, in the County of Oxford: This no Treason: So it hath been held by the Judges, that if one or more Townships upon pretence of saving their Commons, do in a forcible and warlike manner, throw in Enclosures; This is only a Riot, no Treason.  
The words of the Statute of 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 ransom 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 secretly are miss▪ printed; for the words in the Parliament Roll, as appears n. 17. are Discovertment ou secreretment openly or secretly.  
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.  
Obj. My Lords, If the end be considerable in levying war, it may be said, that it cannot be a Treason war, unless against the King: For the words of the statute are, If any man levy war against the King.  
Ans. That these words extend further then to the Person of the King appears by the words of the Statute, which in the beginning declares it to be Treason to compass & imagine the King's death, and after other Treasons, this is to be declared to be Treason to levy war against the King. If the levying of war extend no further then to the person of the King, these words of the Statute are to no purpose, for then the first Treason of compassing the 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 of 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 steed 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 inditements 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 25. E. 3. downwards.  
In R. the 2ds.. time Sir Thomas Talbot conspired the death of the Dukes of Gloucester and Lancaster, & some other of the Peers; for the effecting of it, he had caused divers people in the County of Chester to be armed in warlike manner, in Assemblies. In the Parliament held the seventeenth year of Richard the second, number the 20. Sir Thomas Talbot accused of high Treason for this; It's there declared, that insomuch as one of them was Lord high Steward of England, and the other high Constable of England, that this was done in destruction of the estates of the Realm, and of the Laws of the Kingdom, and therefore adjudged Treason; and the judgement sent down into the King's Bench, as appears in Easter-Tearme in the seventh year of Richard the second in the King's Bench, Rot. 16. These two Lords had appeared in the eleventh year of Richard the second in mainetenance of the Act of Parliament made the year before; one of them was of the Commissioners appointed by Parliament, and one of the Appellours of those that 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 the laws; This there declared to be a Treason that concerned the Person of the King and the Commonwealth.  
In that great insurrection of the Villains and meaner people in Richard the seconds time, they took an oath, Quod Regi & Comunibus fidelitatem servarent, to be true to the King and Commons, that they would take nothing but what they paid for, punished all theft with death, here's no intendment against the person of the King; The intent was to abolish the Law of villainage and servitude, to burn all the Records, to kill the Judges; this in the Parliament of the fifth year of Richard the second, number the one and thirtieth and two and thirtieth, the first part, is declared to be Treason against the King and against the Law.  
In the eleventh year of Richard the second, in Parliament the raising of forces against the Commissioners appointed by act of Parliament the year before adjudged Treason by all the Judges.  
The Statute of 1. Mar. cap. 12. enacts that if twelve 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 shows by the words only that the offence was higher before the making of it.  
My Lords, In Queen Elizabeth's time, Grant and divers Prentices 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 Prentices out of prison that had been committed upon a sentence in 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 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 thereupon Grant and others executed as Traitors.  
Afterwards in that Queen's time, divers of the County of Oxford consulted together to go from house to house in that County, and thence to London & other parts to excite them to take Arms for the throwing in of all enclosures throughout England, nothing was done, nor no Assembly: The Statute of 13. Eliz. cap. 1. during the Queen's life made it Treason to intent or advise to levy war against the Queen.  
In Easter Term, 39 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 Towneship or more upon private interest and claim of right of Common, it had not been Treason; But this was to throw in all enclosures through the Kingdom, whereto these parties could pretend no claim; that it was against the Law, in regard that the Statute of Merton gave power of Enclosures in many Cases. Upon this Resolution Bradshaw and Burton were executed at Aynestowe hill in Oxford-shire, the place where they intended their first meeting.  
So that, my Lords, if the end of it be to overthrow any of the Statutes, any part of the Law and settled Government, or any of the great Officers entrusted 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 & 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 match not with Banners displayed, nor do Bellum percutere. Whether the arming themselves and gathering together upon this Design, whether this 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 otherside?  
2. From the words of the Statute, shall levy war, & be thereof probably attainted of open Deed by people of their Condition, although the bare conspiring be not an open Deed, yet whether the arming and drawing men together be not an open Declaration of War?  
In Sir Thomas Talbots case before cited in the seventeenth year of Richard the second, The Acts of force are expressed in the Parliament Roll: That he caused divers of the people of the County of Chester to be armed in a war like manner in assemblies; here is no marching, no banners displayed.  
In the eighth year of Henry the 8th. William Bell and Thomas Lacie in Com' Kanc. conspired with Thomas Cheney, called the Hermit of the Queen of Fairies, to overthrow the Laws 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 Majesty's Subjects, and determined Causes upon paper petitions at his own will and pleasure, obedience must be forced by the Army, this declared by the Warrant.  
2 My Lords, if it be said, That the Warrant expresseth not any intent of subverting the 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 Sr. William Cogan, that have formerly been cited to your Lordships, upon other occasions, the things in themselves were not Treason, they were not a levying of War.  
In that of Cambridge, the Town met together, and in a forcible manner broke up the University treasury, and took out of it the Records and Evidence 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 two hundred pound.  
These, if done upon these private ends alone, had not been 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 second, number the one and thirtieth, and two and thirtieth, where the Towns of Cambridge and Bridgewater are expressly 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 order made by himself, It was sufficient, it was to subvert one fundamental part of the Laws, nay in effect the whole Law: what use of Law if he might order and determine of men's estates at his own pleasure? This was against the Law notoriously declared in Ireland.  
In the close roll in the Tower, in the five and twentieth year of Ed. 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.  
6 In the eight and twentieth year of Henry the sixth, the second Chapter, Suits in equity, not before the Deputy, but in Chancery, Suits at Common Law, not before him, but in Cases of life in the King's Bench, for title of land or goods in the proper Courts of the Common pleas, or King's Bench.  
This declared in the Instructions for Ireland in the latter end of King James his time, and by the Proclamation in his Majesty's time, my Lord took notice of them, called the Commissioners narrow-hearted Commissioners.  
The Law said, he should not thus proceed in subversion of it▪ he saith, he will, and will enforce obedience by the Army. This is as much in respect of the end, as to endeavour the overthrow of the Statutes of Laborers, of victuals, or of Merton for Enclosures. Here is a war against the King in respect of the end.  
2. In respect of the Actions, whether there be either a levying of war, or an open deed, or both.  
My Lords, there was an Army in Ireland at that time of two thousand horse and foot, by this Warrant there is a full designation of this whole Army, and an Assignment of it over unto Savill 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 form them into companies to this end, your Lordships would have conceived that this had been a war, It's as much as in the case of Sir Thomas Talbot who armed them in assemblies.  
This is the same with a breach of trust added to it. That Army was first raised and afterwards committed to his trust for defence of the people, is now destined by him to their destruction. This assignation of the Army by his Warrant under his hand & seal is an open Act.  
2. 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 sessed upon the subject, which killed their Cattles, consumed and wasted their goods.  
Ob. O, but five or six were the most employed at any time, a mighty war of six men, scarce a Riot.  
Ans. Your Lordships observe a great difference where six single 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 alone, or but with one Bailiff to do execution, is, because he hath command of the Law, the King's Writ and the posse Comitatus in case of Resistance; here's the warrant of the General of an Army, here's the poss● exercitus, the power of the Army, under this awe of the whole Army, six may force more than sixty without it, and although never above six in one place, yet in the 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, that he will order the freeholds and the 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 train bands, that upon refusal they shall take such number of the train bands thorough 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.  
1 That it is more against the declared Law in Ireland, not only against the Common Law, but likewise against the Statute of the eight and twentieth year of Henry the sixth, against the Acts of the Commissioners, against Proclamations in pursuance of the Law, against that himself took notice of, Narrow hearted Commissioners.  
2 In this that here was an Army, the Soldiers, 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 war.  
2 The second is the machination, the advising of a war; The case in this rests upon the warrant to Savill, and the advice in the 23 Article.  
The Warrant shows a resolution of employing the old Army of Ireland, to the oppression of his Majesty's Subjects and the Laws.  
In the 23 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 practice, an advice to levy war, and by force to oppress and destroy his Majesty's Subjects.  
Obj. It hath been said, the Statute of 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.  
Answ. My Lords, this is only said, not proved, the Law is otherwise, ● 9 of Henry the sixth, fol. 47. there adjudged that the conspiring and aiding to counterfeit coin was Treason; and Justice Stamford fol. 3. & 44. is of opinion, That this, or 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 tuntamount, and therefore Treason, as is adjudged in 2. Henry 4. foe. 25. and by the opinion of Stamford.  
If machination or plotting a war be not within that clause of the Statute of levying war, yet it's within the first of compassing the death of the King, as that which necessarily tends to the destruction both of the King and of the people, upon whose safety and protection he is to engage himself: That this is Treason, hath been adjugded both after the Statutes of the first of Henry the fourth, chapter the tenth, and the first of Queen Mary, the first chapter, so much insisted upon on the other side. In the third year of King Henry the fourth, one Balshall coming from London, found one Bernard at plough in the parish of Ofley in the Connty of Hertford; Bernard asked Balshall, what news, he told him the news was, That King Richard the second was alive in Scotland (which was false, for he was then dead) and that by Midsummer next he would come into England; Bernard asked him, what was best to be done; Balshall answered, get men, and go to King Richard. In Michaelmas Term, in the third year of Henry the fourth, in the King's Bench, rot. 4. this advice of war adjudged Treason.  
In Queen Mary's time, Sir Nicholas Thr●gmorton conspired with Sir Thomas Wyatt to levy war within this Realm for alteration in Religion, he joined not with him in the execution. This Conspiracy alone declared to be Treason by the Judges. This was after the Statute of the first of Queen Mary so much insisted upon. That Parliament ended in October, this opinion was delivered the Easter-Terme after, and is reported by Justice Dyer, foe. 98. It's true, Sir Thomas Wyatt afterwards did levy war, Sir Nicholas Throgmorton he only conspired, this adjudged Treason.  
Story, in Queen Elizabeth's time, practised with Foreigners to levy war within the Kingdom, nothing done in pursuance of the practice; The intent without any adhering to Enemies of the Queen or other cause, adjudged to be Treason, and he executed thereupon. It's truemy Lords, that year 13. Elizabeth by Act of Parliament, it's made Treason to intent the levying of war; this case was adjudged before the Parliament. The case was adjudged in Hillary Term, the Parliament began not until the April following; This my Lords, is a case adjudged in point, That the practising to levy war, though nothing be done in execution of it is Treason.  
Obj. It may be objected that in these Cases, 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.  
Ans. 1. The answer is, first, that the warrant was unknown to his Majesty, that was a machination of war against the people and Laws, wherein his Majesty's person was engaged for protection.  
2. That the advice was to his Majesty, aggravates the offence, it was an Attempt not only upon the Kingdom, but upon the Sacred person, and his office too; himself was hosts patriae, he would have made the Father of it so too; nothing more unnatural, more dangerous; To offer the King poison to drink, telling him that it is a Cordial, is a compassing of his death. The poison was repelled, there was an antidote within, the malice of the giver beyond expression. The persuading of Foreigners to invade the kingdom holds no proportion with this: Machination of war against the Laws or kingdom is against the King, they cannot be severed.  
My Lords, if no actual war within the Statute, if the counselling 
The third general Head.  of a war, if neither of these single Acts be Treason within the Statute; The Commons in the next place have taken it into their 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. Edward 3.  
The words of the Statute are, if any man shall compass or imagine the death of the King, the words are not, if my man shall plot or consult 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 judgement and practice of former times concerning these words of compassing the King's death, will appear to your Lordships by some cases of attainders upon these words.  
One Owen in King james his time in the 13. year of his reign at Sandwich in Kent, spoke these words, That King james being excommunicated by the Pope, may be killed by any man; which killing is no murder: being asked by those he spoke to, how he durst maintain so bloody an assertion? he 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 Pope's sentence of excommunication, may justly be slaughtered without fault; for the kill of the King is the execution of the Pope's supreme sentence, as the other is the execution of the Law: for this, judgement of High Treason was given against him, and execution done.  
My Lords, here is no clear intent appearing that Owen desired the thing should be done, only Arguments that it might be done, This is a compass, there is a clear Endeavour to corrupt the judgement, to take off the bonds of conscience, the greatest security of the King's life; God forbidden saith one of better judgement than 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 another head, may do this without any direct or immediate desiring the death of him that than wears it, yet this is Treason, as was adjudged in 10. Henry 7. in the case of Burton, and in the Duke of Norfolk's case. 13. Elizabeth.  
This is a compassing of his death, for there can no more be two Kings in one Kingdom, than two Suns in the Firmament; he that conceives a title, counts it worth venturing for, though it cost him his life, he that is in possession thinks it as well worth the keeping. john Sparhauke in King Henry the fourth's time, meeting two men upon the way, amongst other talk said, that the King was not rightful King, but the Earl of March, and that the Pope would grant indulgencies to all that would assist the Earl's title, and that within half a yeree there would be no Liveries nor Conizances of the King, that the King had not kept promise with the people, but had laid taxes upon them. In Easter Term in the third year of Henry the fourth in the King's Bench, Rot. 12. this adjudged Treason. This denying the title with motives though but implyedly of Action against it, adjudged Treason, this is a compassing the King's death.  
How this was a compassing the King's death, is declared in the reasons of the judgement; That the words were spoken with an intent to withdraw the affections of the people from the King, and to excite them against the King, that in the end they might rise up against him in mortem & destructionem of the King.  
My Lords, in this Judgement and others which I shall cite to your Lordships, It appears that it is a compassing the King's death by words, to endeavour to draw the people's hearts from the King, to set discord between the King and them, whereby the people should leave the King, should rise up against him to the death and destruction of the King.  
The cases that I shall cite, prove not only that this is Treason, but what is sufficient evidence to make this good.  
Upon a Commission held the 18. year of Edw. 4. in Kent, before the marquis of Dorset and others, an Indictment was preferred against John Awater of High-Treason, in the form before mentioned, for words which are entered in the indictment sub hac forma, That he had been servant to the Earl of Warwick, that though he were dead, the Earl of Oxford was alive, and should have the government of part of the Country, That Edward whom you call King of England, was a false man, and had by art and subtlety slain the Earl of Warwick and the Duke of Clarence his brother, without any cause, who before had been both of them attainted of High-Treason.  
My Lords, this Indictment was returned into the King's Bench in Trinity Term in the eighteenth year of Edward the fourth, and in Easter Term in the two and twentieth year of Edward the fourth he was outlawed, by the stay of the outlawry, so long it seems the Judges had well advised before whether it were Treason or not.  
At the same Session Thomas Hober was indicted of Treason for these words, That the last Parliament was the most simple and insufficient Parliament that ever had been in England. That the King was gone to live in Kent, because that for the present he had not the love of the Citizens of London, nor should he have it for the future. That if the Bishop of Bath and Wells were dead, the Archbishop of Canterbury, being Cardinal of England, would immediately lose his head. This indictment was returned into the King's Bench in Trinity Term in the eighteenth year of Edward the fourth. Afterwards there came a Privy Seal to the Judges to respite the proceed, which as it should seem was to the intent the Judges might advise of the Case, for afterwards he is outlawed of high-Treason upon this indictment.  
These words were thought sufficient evidence to prove these several Inditements, That they were spoken to withdraw the people's affection from the King, to excite them against him, to cause rise against him by the people, in mortem & destructionem of the King.  
Your Lordships are pleased to consider that in all these Cases, the Treason was for words only, words by private persons, and in a more private manner, but once spoken and no more, only amongst the people, to excite them against the King.  
My Lords, here are words, Counsels more than words, and actions too, not only to dis-affect the people to the King, but the King likewise towards the people; not once but often, not in private, but in places most public, not by a private person, but by a Counsellor of State, a Lord Lieutenant, a Lord Precedent, a Lord Deputy of Ireland.  
1 To his Majesty, That the Parliament had denied to supply him; a slander upon all the Commons of England in their affections to the King and Kingdom, in refusing to yield timely supply for the necessities of King and Kingdom.  
2 From thence, That the King was lose and absolved from rules of government, and was to do every thing that power would admit. My Lords, more cannot be said, they cannot be aggravated, whatever I should say would be in diminution.  
3 Thence, You have an Army in Ireland you may employ to reduce this Kingdom.  
To counsel a King not to love his people, is very unnatural, it goes higher, to hate them, to malice them in his heart; the highest expressions of malice, to destroy them by war: These coals they were cast upon his Majesty, they were blown, they could not kindle in that breast.  
Thence, my Lords, having done the utmost to the King, he goes to the people▪ At York the Country being me● together for Justice, at the open Assizes upon the Bench, he tells them, speaking of the Justices of the Peace, that they were all for Law, nothing but Law, but they should find that the King's little finger should be heavier than the loins of the Law.  
They shall find, my Lords, who speaks this to the people, a Privy Counsellor; this must be either to traduce his Majesty to the people as spoken from him, or from himself, who was Lord Lieutenant of the County and Precedent, entrusted with the forces and Justice of those parts, that he would employ both this way; add, my Lords, to his words there the exercising of an arbitrary and vast Jurisdiction before he had so much as Instructions or colour of warrant.  
Thence we carry him into Ireland, there he represented by his place the sacred person of his Majesty.  
1 There at Dublyn, the principal City of that Kingdom, whither the Subjects of that Country came for Justice, in an Assembly of Peers and others of greatest rank, upon occasion of a speech of the Recorder of that City touching their Franchises and Legal Rights, he tells them, that Ireland was a conquered Nation, and that the King might do with them what he pleased.  
2 Not long after, in the Parliament 10. Car. in the Chair of State, in full Parliament, again, That they were a conquered Nation, and that they were to expect Laws as from a Conqueror; before, The King might do with them what he would; now, They were to expect it, that he would put this power of a Conqueror in execution. The Circumstances are very considerable, in full Parliament, from himself in Cathedra, to the representative body of the whole Kingdom.  
The occasion adds much, when they desire the benefit of the Laws, and that their Causes and Suits might be determined according to Law, and not by himself, at his will and pleasure upon paper Petitions.  
3 Upon like occasion of pressing the Laws and Statutes, That he would make an Act of Counsel board in that Kingdom as binding as an Act of Parliament.  
4. He made his words good by his actions, assumed and exercised a boundless and lawless Jurisdiction over the lives persons, and estates of his Majesty's Subjects, procured judgement of death against a Peer of that Realm, commanded another to be hanged, this was accordingly executed, both in times of high Peace, without any process or colour of Law.  
5. By force for a long time he seized the yarn and flax of the Subjects, to the starving and undoing of many thousands, besides the Tobacco business, and many Monopolies and unlawful Taxes, forced a new Oath not to dispute his Majesty's royal commands, determined men's estates at his own will and pleasure upon paper Petitions to himself, forced Obedience to these, not only by Fines and Imprisonment, but likewise by the Army, sessed Soldiers upon the refusers in a hostile manner.  
6. Was an Incendiary of the war between the two Kingdoms of England and Scotland.  
My Lords, we shall leave it to your Lordship's Judgements, whether these words, Counsels, and Actions would not have been a sufficient Evidence to have proved an Indictment drawn up against him, as those before mentioned, and many others are; That they were spoken and done to the intent to withdraw the King's heart from the people, and the affections of the people from the King, that they might leave the King, and afterwards rise up against him to the destruction of the King; if so, here is a compassing of the King's death within the words of the Statute of the five and twentieth year of Edward the third, and that warranted by many former judgements.  
My Lords, I have now done with the three Treasons within the 
The fourth general Head.  Statute of the five and twentieth of Edward the third. I proceed to the fourth upon the Statute of the eighteenth year of Henry the sixth, Chapter the third in Ireland; I shall make bold to read the words to your Lordships,  
That no Lord, nor any other of what condition soever he be, shall bring or lead hoblers, kerves, or hooded men, nor any other people, nor horses to lie on horseback or on foot upon the King's Subjects without their good wills and consent, but upon their own costs, and without hurt doing to the Commons, and if any so do he shall be judged as Traitor.  
1. The Argument that hath been made concerning the Person, That it extends not to the King, and therefore not to him, weighs nothing with your Lordships, Rex non habet in regne parem, from the greatness of his office to argue himself into the same impossibility with his sacred Majesty of being uncapable of High-Treason, it's an Offence, no reason; The words in the Statute, No Lord nor any other of what condition soever he be, includes every Subject.  
In Trinity Term in the three and thirtieth year of Henry the eighth, in the King's Bench, Leonard Lord Grace, having immediately before been Lord Deputy of Ireland, is attainted of High-Treason, and judgement given against him for letting divers Rebels out of the Castle of▪ Dublin, and discharging Irish hostages and pledges that had been given for securing the Peace, for not punishing one that said the King was an Heretic, I have read the whole Record, there's not one thing laid to his charge but was done by him as Lord Lieutenant: He had the same Plea with my Lord of Strafford, That these things were no adhering to the King's Enemies, but were done for reasons of State, That he was not within those words of the Statute of the five and twentieth year of Edward the third, himself being Lord Lieutenant there, they cost his life.  
Obj. 2. It hath been said, That the Soldiers, sessed upon the Subjects by him, were not such persons as are intended by that Statute, Hoblers, Kerves, and hoodedmen, these rascal people.  
Answ. My Lords, they were the names given to the Souldiary of those times, Hoblers' horsemen, the other the foot, but the words of the Statute go further, Nor any other people, neither horse nor foot, his Lordship sessed upon them both horse and foot.  
Object. 3. The Statute extends only to them that lead or bring▪ Savill led them, my Lord only gave the warrant.  
Answ. To that I shall say only thus, plus peccat author quam actor, by the rule of Law, agentes & consentientes pari plectuntur panâ, if consent, much more a command to do it, makes the commander a Traitor. If there be any Treason within this Statute, my Lord of Strafford is guilty.  
It hath been therefore said, That this Statute like Goliah's sword hath been wrapped up in a cloth and laid behind the door, that it hath never been put in execution. Answ. My Lords, if the Clerk of the Crown in Ireland had certified your Lordships that upon search of the Judgements of Attainders in Ireland, he could not find that any man had been attainted upon this Statute, your Lordships had had some ground to believe it, yet it is only my Lord of strafford's affirmation: Besides your Lordships know that an act of Parliament binds until it be repealed.  
It hath been therefore said, that this Statute is repealed by the Statutes of the eighth year of Edward the fourth, the first Chapter; and of the tenth year of Henry the seventh, the two and twentieth Chapter, because by these two Satutes, the English Statutes are brought into Ireland.  
The Argument, (if I mistook it not,) stood thus; That the Statute of the first of Henry the fourth, the 10. Chapter, saith, that in no time to come, Treason shall be adjuged otherwise, than it was ordained by the Statute of the 25. year of Edward the third: That the Treason mentioned in the 18 year of Henry the sixth in the Irish Statute is not contained in the Statute of the 25 year of Edward the 3. and therefore being contrary to the statute of the first of Henry the fourth, it must needs be void.  
My Lords, the difference of the times wherein the statute of the first year of Henry the fourth, and that of the 18 year of Henry the sixth were made, clear the Point, as is humbly conceived; that of Henry the sixth was made forty years after the other.  
The statute of the eighth year of Edward the fourth, and the tenth of Henry the seventh, bringing in the English statutes in order and series of time, as they were made one after another (as afterwards is proved they did) it cannot be that the statute of the first year of Henry the fourth made forty year before, should repeal or make void the statute of the 18. Henry 6. made so long after. The rule of Law is, that Leges posteriores priores abrogant, that latter laws repeal former: But by this construction a former Law should repeal and make void a Non ens; a statute than was not.  
If this were Law, than all the statutes that made any new Treason after the first year of Henry the fourth, were void in the very fabric, and at the time when they were made; hence likewise it would follow, that the Parliament, now upon what occasion soever, hath no power to make any thing Treason not declared to be so in the statute of the five and twentieth year of Edward the third; This your Lordships easily see would make much for my Lord of strafford's advantage; but why the Law should be so, your Lordships as yet have only heard an affirmation of it▪ no reason.  
But some touch was given, that this statute of the tenth year of H. the seventh, in words makes all the Irish statutes void, which are contrary to the English. The Answer to this, is a denial that there are any such words in the statute: This statute declares, that the English statutes shall be effectual and confirmed in Ireland, and that all statutes, before time, made to the contrary shall be revoked: this repeals only the Irish statutes of the tenth year of Henry the fourth, and the nine and twentieth year of Honry 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 saith, that such a thing shall be done or not done, to add further that all statutes to the contrary shall be void.  
No likeli-hood that this statute intended to take away any statute of Treason; When but in the Chapter next before this, Murder there is made Treason, as if done upon the King's 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 expressly by two several Acts of Parliament, made at the same Parliament of the tenth year of Henry the seventh.  
By an Act of Parliament in H. the sixth's time, in Ireland, it was made Treason for any man to procure a 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: Hear 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. Edward 4. or then by the two and twentieth Chapter of this Parliament of 10. Henry 7. by bringing in the English statutes, the Lawmakers 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 tenth of Henry the seventh; It is enacted, That the statutes of Kilkenny and all other statutes made in Ireland (too only excepted, whereof this of the eighteenth of Henry the sixth is none) for the Commonweal shall be enquired off and executed. My Lord of Strafford saith, that the bringing in of the English statutes, hath repealed this statute of the eighteenth year of Henry the sixth; the Act of Parliament made the same time saith not; it saith that all the Irish statutes, excepting two, whereof this is none, shall still be in force.  
Object. Oh! But how ever it was in 10. H. 7. yet it appears by Judgement in Parliament afterwards, That this statute of the eighteenth year of Henry the sixth is repealed, and that is by the Parliament of the eleventh year of Queen Elizabeth, the seventh Chapter, That by this Parliament it is enacted, that if any man without licence from the Lord deputy, lay any Soldiers upon the King's Subjects, if he be a Peer of the Realm, he shall forfeit one hundred pounds, if under the degree of a Peer, 100 marks. This statute, as is alleged, declares the penalty of laying Soldiers upon the Subjects, to be only a hundred pounds; and therefore it's not Treason.  
Answer, My Lords, if the offence for which this penalty of one hundred pounds, is laid upon the offender▪ be for laying Soldiers, or leading them to do any acts oftensive or invasive upon the King's 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, than he shall forfeit one hundred pounds; If concluding of war and carrying the people to Acts invasive, be against the King's Subjects, this is high Treason within the words of the statute of the five and twentieth year of Edward the third: 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 word of that statute; and then the statutes of the five and twentieth year of Edward the third, the first of Henry the fourth, and the first of Queen Mary, which the Earl of Strafford in his Answer desires to be tried by, are as well repealed in this point, as the statute of the eighteenth year 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 war, by this statute of the eleventh year of Queen Elizabeth were taken out of his way.  
In Ireland a Subject gathers forces, concludes a war against the King's 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 this 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.  
3 The third absurdity; a war is concluded, three several Inroads are made upon the Subject; in the first, a hundred pound damage; in the second, five thousand pounds' damage; in the third, ten thousands pound damage is done to the Subjects; the penalty for the last inroad is no more than 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 to the informer; here's no damage to the Subject that is rob and destroyed.  
My Lords, the Statute will free itself and the makers of it from these absurdities.  
The meaning of this statute is, That if any Captain shall of his own head conclude of peace or war, against the King's Enemies or Rebels, or shall upon his own head invade them, without warrant from the King, or the Lord Deputy of Ireland, that then he shall forfeit an hundred pounds.  
The offence is not for laying of Soldiers upon the King's people, but making of war against the Irish Rebels without warrant; the offence ●s not in the matter, but in the manner, for doing a thing lawful, but without mission.  

1 This will appear by the general scope of the statute, all the parts being put together.  
2 By particular clauses in the Statute.  
3 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, divers 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 this Its enacted, that no man dwelling within the Shire grounds, shall thenceforth assume or take upon himself the authority of name of a captain within those 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, upon penalty that if he do any thing contrary to that act, than the Offender shall forfeit an hundred pounds.  
My Lords, the Rebels had been out, the courts of justice scarce sat 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 the crime.  
2. This appears further by the particular clauses in the statute; None shall exercise any captainship within the shire grounds, nor assemble the men of the shire grounds to conclude of 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 that were 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 their Marches between the English and Irish pale, where the inhabitants held their Lands by this tenure to defend the Country against the Irish, as appears in the close Rolls of the Tower in the twentieth year of Edward the third, membranâ 15. on the backside; and in an Irish Parliament held the 42. year of Edward the 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 counsel here was affirmed, as appears in the close Roll, the 22. year of Edward the third, membra. 20. dorse.  
Afterwards as appears▪ in the Statute of the 28. year of Henry the 6. 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's enacted, that every Englishman shall shave the hair of his upper lip, for distinction sake. This hostility continued, till the 10. year of Henry the 7. as appears by the Statute of the tenth of Henry the 7. the 17. Chapter; and so successively downward, till the making of this very statute of the 11. year of Queen Elizabeth, as appears fully in the ninth chapter.  
Nay immediately before, and at the time of the making of this statute, there was not only enmity between those of the Shire grounds; 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 itself. For in the first Chapter of this statute is the Attainder of Shane O Neale, 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 above a 100 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 was continued by john Fitz Gerard called the white Knight, and Thomas Queverford: This appears by the Statute of the 13. year of Queen Elizabeth in Ireland, but two years after this of the eleventh year of Queen Elizabeth, where they are attainted of high treason, for levying War this eleaventh 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 it to be presumed that those of the Shire grounds will conclude of War against themselves? nor saith 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; As 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 King's good Subjects, those that went under command were punishable, as well as the Commanders; but in respect, the Soldiers knew the service to be good in itself being against the enemies, and that it was not for them to dispute the authority of their commanders, the penalty of a 100 pounds is laid only upon him, that as Captain shall assume this power without warrant: The people commanded are not within the Statute.  
My Lords, the logic whereupon this argument hath been framed stands thus; Because the statute of the eleventh year of Queen Elizabeth inflicts a penalty of a 100 pound, 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 18. year of Henry the sixth is repealed, which makes it Treason to lay soldiers upon, or to levy war against the King's 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 shows, 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; Therefore it is no Treason in the Deputy to employ the Army in Ireland, whensoever he pleaseth, for the subversion of the King's good people, and of the Laws.  
My Lords, the statute of the tenth year of Henry the seventh the 17. Chapter touched upon for this purpose, clears the business in both points; for there it is declared, that none ought to make war upon the Irish rebels and enemies, without warrant from the Lieutenant, the forfeiture a 100 pounds as here the statute is the same with this, and might as well have been cited for repealing the statute of the eighteenth year of Henry the 6. as this of the 11. 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 Treasons are committed in Ireland, therefore not triable here.  
Answ. My Lords, Sir john Perrot his predecessors in the 24. year of Queen Elizabeth was tried in the King's bench for Treason done in Ireland, when he was Deputy; Orucke in the 33. year of Queen Elizabeth judged here for Treason done Ireland.  
Object. But it will be said, these trials were after the statute of the 34. year of Henry the eight, which enacts, that treasons beyond sea may be tried in England.  
Answ. My Lords, his predecessor my Lord Grace was tried and adjudged here in the King's bench, that was in Trinity term in the 33. year of Henry the eighth, this was before the making of that statute▪  
Object. To this again will be said, that it was for Treason by the Laws and statutes of England; but this is not for any thing, that's Treason by the Law of England, but by an Irish statute.  
So that the question is only, whether your Lordships in Parliament here have cognisance of an offence made treason by an Irish statute in the ordinary way of judicature without bill, for so is the present question.  
For the clearing of this, I shall propound two things to your Lordship's consideration:  
1. Whether the rule for expounding the Irish Statutes and customs be one, and the same in England, as in Ireland.  
2. That being admitted, whether the Parliaments in England have cognizance or jurisdiction of things there done in respect of the place, because the King's writ runs not there.  
For the first, if in respect of the place, the Parliament here hath cognizance there; And secondly, if the rules for expounding the Irish statutes and Customs be the same here as there, this exception as I humbly conceive, must fall away.  
In England there is the common law, the statutes, the acts of Parliament, and customs peculiar to certain places, differing from the common Law; if any question arise concerning either a custom or an act of Parliament, the common Law of England, the first, the primitive and the general Law, that's the rule and expositor of of them and of their several extents; it is so here, it is so in Ireland; the common Law of England is the common Law of Ireland likewise; the same here and there in all the parts of it.  
It was introduced into Ireland by King john, and afterwards by King Henry the third by act of Parliament held in England, as appears by the patent Rolls of the 30 year of King Henry the third, the first membranâ. The words are, Quia pro communi utilitate terrae Hiberaniae, & unitate terrarum Regis, Rex vult, & de common consilio Regis provisum est, quòd omnes leges & consuetudines quae in regno Angliae tenentur, in Hibernia teneantur, & eadem terra eisdem legibus subjaceat, & per easdem regatur, sicut Dominus Johannes Rex cum ultimò esset in Hibernia, statuit, & fieri mandavit. Quia, etc. Kex vult quod omnia brevia de communi Jure quae currunt in Angliae, similitèr currant in Hibernia sub novo sigillo Regis, mandatum est Archiepiscopis, etc. quod pro pace & tranquillitate ejusdem terrae, per easdem leges eos regi & deduci permittant, & eas in omnibus sequantur. In cujus, etc. Teste Rege, apud Woodstock, decimo nono die Septembris.  
Here's an union of both Kingdoms, and that by act of Parliament, and the same Laws to be used here as there, in omnibus.  
My Lords, That nothing might be left here for an exception, that is, that in treasons▪ felonies, and other capital offences concerning life, the Irish laws are not the same as here. Therefore it is enacted in a Parliament held in England in the 14. year of Edward the second (it is not in print neither, but is in the Parliament book) That the Laws concerning life and member shall be the same in Ireland, as in England.  
And that no exception might yet remain, in a Parliament held in England, the fifth year of Edward the third, It is enacted: quod una & eadem Lex fiat tam Hibernicis, quam Anglicis. This act is enroled in the Patent rolls of the fifth year of Ed. the 3. part. 1. membr. 25.  
The Irish therefore receiving their Laws from hence, they send their Students at Law to the Inns of Courts in England, where they receive their degree; and of them, and of the common Lawyers of this kingdom, are the Judges made.  
The petitions have been many from Ireland, to send from hence some Judges more learned in the Laws than those they had there.  
It hath been frequent in cases of difficulty there, to send some times to the Parliament here, sometimes to the King by advice from the Judges here, to send them resolutions of their doubts: Amongst many I'll cite your Lordships only one, because it is in a case of treason upon an Irish statute, and therefore full to this point.  
By a Statute there made in the fifth year of Edward the fourth, there is provision made for such, as upon suggestions are committed to prison for Treason, that the party committed, if he can procure 24. Compurgators, shall be bailed, and let out of prison.  
Two Citizens of Dublin were by a grand Jury presented to have committed Treason; They desired the benefit of this statute, that they might be let out of prison upon tender of their Compurgators. The words of the Statute of the 5. year of Ed. the fourth in Ireland being obscure, the Judges there not being satisfied what to do, sent the case over to the Queen desired the opinion of the Judges here; which was done accordingly: The Judges here sent over their opinion, which I have out of the Book of Justice Anderson, one of the Judges consulted withal. The Judges here delivered opinion upon an Irish Statute in case of Treason.  
If it be objected, That in this case the Judges here did not judge upon the party; their opinions were only ad informandam conscientiam of the Judges in Ireland; that the judgement belonged to the Judges there.  
My Lords, with submission, this and the other Authorities prove that for which they were cited; that is, That no absurdity, no failer of justice would ensue, if this great Judicatory should judge of Treason so made by an Irish Statute.  
The common Law, the rule of judging upon an Irish Statute, the Pleas of the Crown for things of life and death, are the same here and there. This is all that hath yet been offered.  
For the second point, That England hath no power of Judicature for things done in Ireland; My Lords, the constant practice of ages proves the contrary.  
Writs of error in Pleas of the Crown, as well as in civil causes, have in all Kings reigns been brought here, even in the inferior Courts of Westminster Hall, upon judgements given in the courts of Ireland: The practice is so frequent, and so well known, as that I shall cite none of them to your Lordships: no precedent will (I believe) be produced to your Lordships, that ever the case was remanded back again into Ireland, because the question risen upon an Irish Statute, or custom.  
Object. But it will be said, That writs of error are only upon a failer of justice in Ireland; and that suits cannot originally be commenced here for things done in Ireland, because the King's writ runs not in Ireland.  
Answ. This might be a good plea in the King's Bench, and inferior Courts at Westminster Hall; the question is, whether it be so in Parliament. The King's writ runs not within the County Palatine of Chester and Durham, nor within the five Ports; neither did it in Wales before the union in Henry the eighth's time; after the Laws of England were brought into Wales in King Edward the first's time, suits were not originally commenced in Westminster Hall, for things done in them, yet this never excluded the Parliament: suits for life, lands, and goods within those jurisdictions are determinable in Parliament, as well as in any other parts of the Realm.  
Ireland, as appears by the statute of the thirtieth year of Henry the third, before mentioned, is united to the Crown of England.  
By the Statute of the eight and twenty year of Henry the sixth in Ireland, it is declared in these words; That Ireland is the proper Dominion of England, and united to the Crown of England, which Crown of England is of itself, and by itself, fully, wholly, and entirely endowed with all power and authority sufficient to yield to the subjects of the same full and plenary remedy, in all debates and suits whatsoever.  
By the Statute of the 33. year of Henry the eighth, the first Chapter, when the Kings of England first assumed the title of King of Ireland, it is there enacted, That Ireland still is to be held as a Crown annexed and united to the Crown of England.  
So that by the same reason, from this, that the King's writ runs not in Ireland, it might aswell be held, that the Parliament cannot originally hold plea of things done within the County Palatine of Chester and Durham, nor within the five Ports and Wales; Ireland is part of the Realm of England, as appears by those statutes, as well as any of them.  
This is made good by constant practice. In all the Parment rolls, from the first to the last, there are receivers and tryers of petitions appointed for Ireland. For the Irish to come so fare with their petitions for justice, and the Parliament not to have cognizance, when from time to time they had in the beginning of the Parliament appointed receivers and tryers of them, is a thing not to be presumed.  
An appeal in Ireland brought by William Lord Vescye against john Fitz Thomas for treasonable words there spoken, before any Judgement given in the case there, was removed into the Parliament in England, and there the defendant acquitted, as appears in the Parliament pleas of the two and twentieth year of Edward the first.  
The suits for lands, offices, and goods, originally begun here, are many; and if question grew upon matter in fact, a Jury usually ordered to try it, and the verdict returned into Parliament, as in the case of one Balliben, in the Parliament of the five and thirtieth year of Edward the first. If doubt arose upon a matter tryable by Record, a writ went to the Officers in whose custody the Record remained, to certify the Record, as was in the case of Robert Bagot the same Parliament of the five and thirtieth year of Edward the first, where the writs went to the Treasurer and Barons of the Exchequer.  
Sometimes they gave judgement here in Parliament, and commanded the Judges there in Ireland to do execution, as in the great case of Partition between the copartners of the Earl Martial, in the Parliament of the 33. year of Edward the first, where the writ was awarded to the Treasurer of Ireland.  
My Lords, The Laws of Ireland were introduced by the Parliaments of England, as appears by three Acts of Parliament before cited.  
It is of higher jurisdiction dare Leges, then to judge by them.  
The Parliaments of England do bind in Ireland, if Ireland be particularly mentioned, as is resolved in the Book case of the first year of Henry the seventh, Coke seventh Report, calvin's case, and by the Judges in Trinity Term, in the three and thirtieth year of Queen Elizabeth: The Statute of the eighth year of Edward the fourth, the first Chapter in Ireland recites, that it was doubted amongst the judges, whether all the English Statutes, though not naming Ireland, were in force there; if named, no doubt.  
From King Henry the third his time downward to the eighth year of Queen Elizabeth (by which statute it is made felony to carry sheep from Ireland beyond seas) in almost all these Kings reigns, there be statutes made concerning Ireland.  
The exercising of the Legislative power there over their lives and estates, is higher than of the Judicial in question. Until the nine and twentieth year of Edward the third, erroneous judgements given in Ireland, were determinable no where, but in England; no, not in the Parliaments of Ireland, as it appears in the close rolls in the Tower. In the nine and twentieth year of Ed. the third, mem. 12. Power to examine and reverse erroneous judgements in the Parliaments of Ireland is granted from hence; Writs of error lie in the Parliament here upon erroneous judgements after that time given in the Parliaments of Ireland, as appears in the Parliament rolls of the eighth year of Henry the sixth, membra. 70. in the case of the Prior of Lenthan. It is true, the case is not determined there, for it's the last thing that came into the Parliament, and could not be determined for want of time; but no exception at all is taken to the jurisdiction.  
The Acts of Parliament made in Ireland have been confirmed in the Parliaments of England, as appears by the close rolls in the Tower, in the 42. year of Edward the 3. membra. 20. dorso; where the Parliament in Ireland, for the preservation of the Country from the Irish, who had almost destroyed it, made an Act, that all the land-owners, that were English should reside upon their lands, or else they were to be forfeited: this was here confirmed.  
In the Parliament of the 4. year of H. the 5. chap. 6. Acts of Parliament in Ireland are confirmed, and some privileges of the Peers in the Parliaments there are regulated.  
Power to repeal Irish Statutes, power to confirm them, cannot be by the Parliament here, if it hath not cognizance of their Parliaments; unless it besaid, That the Parliament may do, it knows not what.  
Garnesey and Jersey are under the King's subjection, but are not parcels of the Crown of England, but of the duchy of Normandy; they are not governed by the laws of England, as Ireland is; and yet Parliaments in England have usually held plea of, and determined all causes concerning land, or goods. In the Parliament of 33. E. 1. there be placita de Insula jernesey; and so in the Parliament 14. E. 2. and so for Normandy and Gascoigne; and always as long as any part of France was in subjection to the Crown of England, there were at the beginning of Parliaments, receivers and tryers of petitions for those parts appointed.  
I believe your Lordships will have no cases showed of any plea to the jurisdiction of the Parliaments of England, in any thing done, in any parts wheresoever, in subjection to the Crown of England.  
The last thing I shall offer to your Lordships is the case of 19 El. in my Lord Dyer 306. and Judge Comptons' book of the jurisdiction of Courts, fol. 23. The opinion of both these books is, that an Irish Peer is not triable here. It's true, a Scotish or French Nobleman is triable here as a common person; the Law takes no notice of their Nobility, because those Countries are not governed by the Laws of England; but Ireland being governed by the same Laws, the Peers there are triable according to the Law of England, only per pares.  
By the same reason the Earl of Strafford, not being a peer of Ireland, is not triable by the Peers of Ireland; so that if he be not triable here, he is triable no where.  
My Lords, In case there be a Treason and a Traitor within the statute, and that he be not triable here for it in the ordinary way of judicatory, if that jurisdiction fails, this by way of Bill doth not; Attainders of Treason in Parliament are as legal, as usual by Act of Parliament, as by Judgement.  
I have now done with the statutes of 25. E. 3▪ and 18. H. 6. My Lord of Strafford hath offended against both the Kingdoms, and is guilty of high Treason by the Laws of both.  
5 My Lords, In the fifth place I am come to the Treasons at the common Law, the endeavouring to subvert the fundamental Laws and government of the Kingdom, and to introduce an arbitrary and tyrannical government.  
In this I shall not at all labour to prove, that the endeavouring by words, counsels, and actions to subvert the Laws, is treason at the common Law, if there be any common-Law-treasons at all left; nothing treason, if this not, to make a Kingdom no Kingdom: take the polity and government away, England's but a piece of earth, wherein so many men have their commorancy and abode, without ranks or distinction of men, without property in any thing further than possession; no Law to punish the murdering or robbing one another.  
That of 33▪ H. 8. of introducing the Imperial Law, sticks not with your Lordships: It was in case of an appeal to Rome: These appeals in cases of marriages, and other causes counted Ecclesiastical, had been frequent, had in most Kings reigns been tolerated; some in times of popery put a conscience upon them, the statutes had limited the penally to a Praemunire only: Neither was that a total subversion, only an appeal from the Ecclesiastical Court here in a single cause to the Court at Rome; and if treason or not, that case proves not; a treason may be punished as a felony, a felony as a trespass, if his Majesty so please; the greater includes the lesser: In the case of Praemunire in the Irish reports, that which is there declared to be treason, proceeded upon only as a Praemunire.  
The thing most considerable in this is, whether the treasons at common Law be taken away by the Statute of 25. E. 3. 1. H. 4. or 1. Q. M. or any of them.  
My Lord, to say they be taken away by the Stat. of 25. E. 3. is to speak against the direct words and scope of that Statute.  
In it there's this clause, That because many other like cases of treason might fall out, which are not there declared, therefore it is enacted, That if any such case come before the Judges, they shall not proceed to Judgement till the case be declared in Parliament, whether it ought to be adjudged treason, or not.  
These words, and the whole scope of that Statute shows, that it was not the meaning to take away any treasons that were so before, but only to regulate the jurisdiction and manner of trial. Those that were single and certain Acts, as conspiring the King's death, levying war, counterfeiting the money, or great Seal, killing a Judge, these are left to the ordinary Courts of justice; the others not depending upon single Acts, but upon constructions and necessary inferences, they thought it unfit to give inferior Courts so great a latitude here, as too dangerous to the subject; those they strained to Parliaments.  
This statute was the security of the subject, made with such wisdom as all the succeeding ages have approved it: It hath often passed through the furnace, but, like gold, hath lost little or nothing.  
The statute of 1. H. 4▪ cap. 10. is in these words, Whereas in the Parliament held the 21 year of Richard the 2. divers pains of treasons were ordained, insomuch, that no man did know how to behave himself, to do say▪ or speak, It is accorded, that in no time to come any treason be adjudged otherwise then it was ordained by the Statute of 25. E. 3.  
It hath been said, to what end is this statute made, if it takes not away the common Law treasons remaining after the statute of 25. Edward 3.  
There be two main things which this statute doth: First it takes away for the future all the treasons made by any statute since 25. E. 3. to 1. H. 4. even to that time: For, in respect that by another Act in that Parliament, the statute of 21. R. 2. was repealed, it will not be denied, but that this statute repeals more treasons than these of 21. R. 2. it repeals all statute treasons but those in 25. E. 3.  
Secondly, It not only takes away the statute treasons, but likewise the declared treasons in Parliament after 25. E. 3. as to the future. After declaration in Parliament the inferior Courts might judge these treasons; for the declaration of a treason in Parliament after it was made, was sent to the inferior Courts, that toties quoties the like case fell out, they might proceed therein: the subject for the future was secured against these; so that this statute was of great use.  
By the very words of it, it still refers all treasons to the provision of 25. E. 3. it leaves that entire and upon his old bottom.  
The statute of 1. Q. M. cap. 1. saith, That no offences made treason by any Act of Parliament, shall thenceforth be taken or adjudged to be treason, but only as be declared and expressed to be treason, by the statute of 25. E. 3. concerning treason, or the declaration of treason and no others: And further provides that no pains of death, penalty, or forfeiture, in any wise shall ensue for committing any treason, other than such as be in the statute of 25. E. 3. ordained and provided; any Acts of Parliament, or any declaration, or matter to the contrary, in any wise notwithstanding.  
By the first part of this statute, only offences made treason by Act of Parliament are taken away, the Common Law treasons are no way touched: The words (and no others) refer still to offences made treason by Act of Parliament; they restrain not to the treasons only particularly mentioned in the statute of 25. E. 3. but leave that statute entire as to the Common-law treason, as appears by the words immediately foregoing.  
By the second part, for the pains and forfeitures of treasons, if it intent only the punishment of treason, or if it intent both treason and punishment, yet all is referred to the provision and ordinance of 25. E. 3. any Act of Parliament, or other declaration, or thing notwithstanding.  
It saith not, other than such penalties, or treasons as are expressed and declared in the statute of 25. E. 3. that might perhaps have restrained it to those that are particularly mentioned: No, it refers all treasons to the general ordination and provision of that statute, wherein the Common▪ law-treasons are expressly kept on foot.  
If it be asked what good this statute doth, if it take not away the the Common-law▪ treasons.  
1. It takes away all the treasons made by Act of Parliament, not only since the first of H. 4. which were many, but all before 1. H. 4. even until 25. E. 3. by express words.  
2. By express words, it takes away all declared treasons, if any such had been made in Parliament, these for the future are likewise taken away; so that whereas it might have been doubted, whether the statute of 1. H. 4. took away any treasons but those of 21. and 22. R. 2. this clears it both for treasons made by Parliament, or declared in Parliament, even to the time of taking the statute.  
This is of great use, of great security to the subject; so that as to to what shall be treason, and what not, the statute of 25. E. 3. remains entire, and so by consequence the treasons at the Common Law.  
Only, my Lords, it may be doubted, whether the manner of the manner of the Parliamentary proteeding be not altered by the statute of 1. Hen. 4. the 17. cap. and more fully in the Parliament roll num. 144. that is, whether since that statute the Parliamentary power of declaration of treasons, whereby the inferior Courts received jurisdiction, be not taken away and restrained only to Bill; that so it might operate no further, than to that particular contained in the Bill; that so the Parliamentary declarations for after times should be kept within the Parliament itself, and be extended no further. Since 1. H. 4. we have not found any such declarations made, but all Attainders of treason have been by Bill.  
If this be so, yet the common-Law-treasons still remaining, there is one and the same ground of reason and equity since 1. H. 4. for passing of a Bill of treason, as was before for declaring it without Bill.  
Herein the Legislative power is not used against my Lord of Strafford in the Bill; it is only the jurisdiction of the Parliament.  
But, my Lords, because that either through my mistaking of the true grounds and reasons of the Commons, or my not pressing of them with apt arguments and precedents of former times; or that perchance your Lordships from some other reasons and authorities more swaying with your Lordship's judgements, than these from them, may possible be of a contrary and dubious opinion concerning these treasons, either upon the statutes of 25. E. 3. and 18. H. 6. or at the Common Law.  
My Lords, if all these five should fail, they have given me further in command to declare to your Lordships some of their reasons, why they conceive that in this case the mere Legaslative power may be exercised.  
Their reasons are taken from these three grounds: 

1. From the nature and quality of the offence.  
2. From the frame and constitution of the Parliament wherein this Law is made.  
3. From practices and usages of former times.    
The horridness of the offence in endeavouring the overthrowing the Laws and present government, hath been fully opened to your Lordships heretofore.  
The Parliament is the representation of the whole Kingdom, wherein the King as Head, your Lordships as the more noble, and the Commons the other members, are knit together in one body politic: This dissolves the arteries and ligaments that hold the Body together, the Laws: He that takes away the Laws, takes not away the allegiance of one subject alone but of the whole Kingdom.  
It was made Treason by the statute of 13. El. for her time, to affirm, That the Laws of the Realm do not bind the descent of the Crown; no Law, no descent at all.  
No Laws, no Peerage, no ranks or degrees of men; the same condition to all.  
It's treason to kill a Judge upon the Bench; this kills not judicem, sed judicium: He that borrowed Apelles, and gave bond to return again Apelles the Painter, sent him home after he had cut off his right hand; his bond was broken, Apelles was sent, but not the Painter. There be twelve men, but no law; there's never a Judge amongst them.  
It's felony to embezzle any one of the judicial records of the Kingdom; this at once sweeps them all away, and from all.  
It's treason to counterfeit a twenty shilling piece; here's a counterfeiting of the Law, we can call neither the counterfeit nor true coin our own.  
It's treason to counterfeit the great Seal for an acre of land, no property hereby is left to any land at all. Nothing treason now, either against King or Kingdom, no Law to punish it.  
My Lords, If the question were asked in Westminster Hall, whether this were a crime punishable in star-chamber, or in the King's Bench, by fine or imprisonment, they would say, it went higher: If whether felony, they would say? That's for an offence only against the life, or goods of some one, or few persons: It would, I believe, be answered by the Judges, as it was by the chief Justice Thirning, in 21. R. 2. That though he could judge the case treason there before him, yet if he were a Peer in Parliament, he would so adjudge it.  
My Lords, if it be too big for those Courts, we hope it's in the right way here.  
2. The second consideration is from the frame and constitution of the Parliament; the Parliament is the great body politic, it comprehends all from the King to the beggar: if so, my Lords, as the natural, so this body, it hath power over itself, and every one of the members for the preservation of the whole: It's both the Physician and the patiented: if the body be distempered, it hath power to open a vein to let out the corrupt blood for curing of itself; if one member be poisoned and gangrened, it hath power to cut it off for the preservation of the rest.  
But, my Lords, it hath been often inculcated, that Lawmakers should imitate their supreme Lawgiver, who commonly warns before he strikes; the Law was promulged before the judgement of death for gathering of sticks; no Law, no transgression.  
My Lords, to this the rule of Law is, Frustra Legis auxilium invocat, qui in Legem committit; from the Lex talionis, he that would not have had others to have law, why should he have any himself? why should not that be done to him, that himself would have done to others  
It's true, we give law to Hares, and Deers, because they be beasts of Chase; it was never accounted either cruelty or foul play to knock Foxes and Wolves on the head, as they can be found; because these be beasts of prey: The Warrener sets traps for Powlcats, and other Vermin, for preservation of the Warren.  
Further, my Lords, most dangerous diseases, if not taken in time, they kill: Errors in great things, as War, and Marriage, they allow no time for repentance; it would have been too late to make a law, when there had been no law.  
My Lords, for further answer to this objection, he hath offended a law, a law within, the endeavouring to subvert the laws and polity of the State wherein he lived, which had so long, and with such faithfulness protected his Ancestry, himself, and his whole family; it was not malum, quia prohibitum, it was malum in se, against the dictates of the dullest conscience, against the light of nature; they, not having the law, were a law to themselves.  
Besides this, he knew a law without, that the Parliament in cases of this nature had potestatem vitae & necis.  
Nay, he well knew, that he offended the promulged and ordinary rules of law: Crimes against Law have been proved, have been confessed, so that the question is not the culpâ, sed de poenâ, what degree of punishment those faults deserve; we must differ from him in opinion, that twenty felonies cannot make a treason, if it be meant of equality in the use of the Legislative power: for he that deserves death for one of these felonies alone, deserves a death more painful, and more ignominious for all together.  
Every felony is punished with loss of life, lands, and goods; a felony may be aggravated with those circumstances, as that the Parliament with good reason may add to the circumstances of punishment, as was done in the case of John Hall, in the Parliament. H. 4. who for a barbarous murder committed upon the Duke of Gloucester, stifling him between two featherbeds at Calais, was adjudged to be hanged, drawn, and quartered.  
Batteries by Law are punishable only by fine and single damages to the party wounded.  
In the Parliament held in 1. H. 4. cap. 6. one Savage committed a Battery upon one Chedder, servant to Sir john Brook, a Knight of the Parliament for Somersetshire; It's there enacted, that he shall pay double damages, and stand convicted, if he render not himself by such a time: The manner of proceed quickened; the penalty doubled, the circumstances were considered, it concerned the Commonwealth; it was Battery with breach of privilege of Parliament.  
This made a perpetual Act, no warning to the first offender; and in the King's Bench, as appears by the book case of 9 H. 4. the first leaf, double damages were recovered.  
My Lords, in this of the Bill, the offence is high and general against the King and the Commonwealth, against all and the best of all.  
If every felony be loss of life, lands, and goods what is misuser of the Legislative power, by addition of Ignominy in the death and disposal of the lands to the Crown, the public patrimony of the Kingdom.  
But it was hoped, that your Lordships had no more skill in the Art of killing of men, than your worthy Ancestors.  
My Lords, this appeal from yourselves to your Ancestors we admit of; although we do not admit of that from your Lordships to the Peers of Ireland.  
He hath appealed unto them; your Lordships will be pleased to hear what judgement they have already given in the case, that is, the several attenders of treason in Parliament, after the Statute of 25. E. 3. for treasons not mentioned, without nor within that Statute, and those upon the first offenders warning given.  
By the Statute of 25. E. 3. its treason to levy war against the King: Gomines and Weston afterwards in Parliament in 1. R. 2. Num. 38, 39 adjudged traitors for surrendering two several Castles in France, only out of fear, without any compliance with the Enemy; this not within the Statute of 25. E. 3.  
My Lords, in 3. R. 2. john Imperial that came into England upon letters of safe conduct, as an Agent for the state of Genoa, sitting in the Evening before his door in Breadstreet, (as the words of the Records are) paulo ante ignit egium, john Kirby and another Citizen coming that way, casually Kirby trod upon his Toe: it being twilight, this grew to a quarrel, and the Ambassador was slain; Kirby was indicted of high treason, the indictment finds all this, and that it was only done se defendendo, and without malice: The judges, it being out of the statute of 25. E. 3. could not proceed; the Parliament declared it treason, and judgement afterwards of high treason, there's nothing can bring this within the statute of 25. E. 3. but it concerns the honour of the Nation, that the public faith should be strictly kept: It might endanger the traffic of the kingdom; they made not a Law first, they made the first man an example. This is in the Parliament Roll, 3. R. 2. num. 18. and Hilary Term, 3. R. 2. Rot. 31. in the King's Bench, where judgement is given against him.  
In 11. R. 2. Tresiltan, and some others attainted of treason for delivering opinions in the subversion of the Law, and some others for plotting the like: My Lords, the case hath upon another occasion been opened to your Lordship only this is observable, That in the Parliament of the 1. year of Henry the third, where all treasons are again reduced to the Statute of 25. Edward 3. these Attainders were by a particular Act confirmed and made good, that the memory thereof might be transmitted to succeeding ages: They stand good to this day; the offences there, as here, were the endeavouring the subversion of the laws.  
My Lords, after ●. Henry the fourth, Sir John Mortimer being committed to the Tower upon suspicion of treason, broke prison, and made an escape: This no way within any Statute, or any former Judgement at common Law; for this, that is, for breaking the prison only, and no other cause, in the Parliament held the second year of Henry the sixth he was attainted of high treason by Bill.  
My Lords, poisoning is only murder; yet one Richard Coke having put poison into a pot of pottage, in the kitchen of the Bishop of Rochester, whereof two persons died, he's attainted of Treason, and it was enacted that he should be boiled to death by the statute of 22. H. 8. cap. 9  
By the statute of 25. H. 8. Elizabeth Barton, the holy maid of Kent, for pretending revelations from God, that God was highly displeased with the King for being divorced from the Lady Katherine; and that in case he persisted in the separation, and should marry another▪ that he would not continue King above one month after; because this tended to the depriving of the lawful succession to the Crown, she is attainted of Treason.  
In the Parliament 2. and 3. H. 6. cap. 16. the Lord Admiral of England was attainted of Treason for procuring the King's Letters to both Houses of Parliament, to be good to the said Earl in such matters as he should declare unto them, for saying that he would make the Parliament the blackest Parliament that ever was in England, endeavouring to marry the Lady Elizabeth the King's sister, taking a bribe of Sherrington, accused of Treason, and thereupon consulting with Counsel for him, and some other crimes, none of them Treason, so clearly within the statute of 25. E. 3. or any other statute as is the case in question.  
My Lords, All these Attainders, for aught I know, are in force at this day; the statutes of the 1. H. 4. and the 1. Queen Mary, although they were willing to make the statute of the 25. year of E. 3. the Rule of the inferior Courts, yet they left the Attainders in Parliament precedent to themselves untouched, wherein the Legislative power had been exercised. There's nothing in them whence it can be gathered, but that they intended to leave it as free for the future.  
My Lords, in all these Attainders, there were crimes and offences against the Law, they thought it not unjust, circumstances considered, to heighten and add to the degrees of punishment, and that upon the first offender.  
My Lords, We receive, as just, the other Laws and statutes made by these our Ancestors: They are the rules we go by in other cases, why should we differ from them in this alone?  
These (my Lords) are in part those things which have satisfied the Commons in passing the Bill: but it is now left to the Judgement and Justice of your Lordships.  
FINIS.