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 twenty-second year of Edward the First.

The suits for lands, offices, and goods, originally begun here, are many; and, if a question grew upon matter of fact, a jury was usually ordered to try it, and the verdict returned into parliament, as in the case of one Balliben, in the parliament of the thirty-fifth year of Edward the First. If doubt arose upon a matter triable 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 thirty-fifth year of Edward the First, where the writs went to the treasurer and barons of the Exchequer.

Sometimes they gave judgment 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-marshal, in the parliament of the thirty-third 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, than 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's seventh report, Calvin's case, and by the judges in Trinity term, in the thirty-third year of Queen Elisabeth. 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's time, downward, to the eighth year of Queen Elisabeth, (by which statute it is made felony to carry sheep from Ireland beyond seas) in almost all these kings reigns there are 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 twentyninth year of Edward the Third, erroneous judgments, 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 twentyninth year of Edward the Third, Memb. 12. Power to examine and reverse erroneous judgments in the parliaments of Ireland is granted from hence: Writs of error lie in the parliament here upon erroneous judgments after the time given in the parliaments of Ireland, as appears in the parliament-rolls of the eighth year of Henry the Sixth, Numb. 70, in the case of the prior of Lenthan. It is true, the case is not determined there, for it is 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 forty-second year of Edward the Third, Memb. 20. Dorso; where the parliament of Ireland, for the preservation of the country from the

1

Irish, who had almost destroyed it, made an act, That all the landowners, that were English, should reside upon their lands, or else they were to be forfeited: This was here confirmed.

In the parliament of the fourth year of Henry the Fifth, chap. vi. 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 cognisance of their parliaments, unless it be said, That the parliament may do it knows not what.

Guernsey 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 lands, or goods. In the parliament of 33 Edw. I. there are Placita de Insula Jernesey; and so in the parliament of 14 Edw. II, 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 the parliaments, receivers and triers of petitions for those parts appointed."

My Lords, I believe your lordships will have no cases shewed of any plea to the jurisdiction of the parliaments of England, in any things 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 Elis. in my Lord Dyer, 306, and judge Crompton's book of the Jurisdiction of Courts, fol. 23. The opinion of both these books is, That an Irish Peer is not triable here. It is true, a Scotch 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.

My Lords, 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 he be not triable here for it in the ordinary way of judicature, 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 judgment.

I have now done with the statutes of 25 Edw III. and 18 Hen. VI. 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 arbitary 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 is treason, if not this, to make a kingdom no kingdom: Take the polity and government away, England is 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 murthering or robbing one another.

That of 33 Hen. VIII. 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 penalty to a præmunire 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 tresspass, if his majes ty so please; the greater includes the lesser. In the case of pramunire in the Irish reports, that, which is there declared to be treason, was proceeded upon only as a pramunire.

The thing most considerable in this, is, Whether the treasons at common law be taken away by the statute of 25 Edw. III. 1 Hen. IV. or 1 Queen Mary, or any of them?

My Lords, to say they are taken away by the statute of 25 Edw. III. is to speak against both the direct words and scope of that statute.

In it there is 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 judgment 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 shew, 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 not fit to give the inferior courts so great a latitude here, as too dangerous to the subject; those they restrained to the parliament. This statute was the great 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 Henry IV. cap. x. is in these words, Whereas, in the parliament held the twenty-first year of Richard the Second, 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 than it was ordained by the statute of 2 Edward III?

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 III.?

There are two main things which this statute doth: First, it takes away for the future all the treasons made by any statute since 25 Edw. III. to 1 Henry IV. even to that time: For, my lords, in respect that, by another act in that parliament, the statute of 21. Richard II, was

repealed, it will not be denied, but that this statute repeals more treasons than these of 21 Richard II. it repeals all statute treasons but those in 25 Edward III.

Secondly, it not only takes away the statute treasons, but likewise the declared treasons in parliament after 25 Edw. III. 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 Edward III. it leaves that intire, and upon its old bottom.

The statute of 1 Q. M. cap. i. saith, "That no offences, made treason by any act of parliament, shall thenceforth be taken or adjudged to be treason, but only such as be declared and expressed to be treason by the statute of 25 Edward III. 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 Edward III. 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 Edward III. but leave that statute intire as to the common law treason, as appears by the words immediately foregoing, or the declaration of treason.

By the second part, for the pains and forfeitures of treasons, if it intend only the punishment of treason, or if it intend both treason and punishment, yet all is referred to the provision and ordinance of 25 Edward III, 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 Edward III. that might perhaps have restrained it to those that are particularly mentioned: No, it refers all treasons to the general ordination and provision of that statute, wherein the common law treasons are expresly kept on foot.

If it be asked, what good this statute doth, if it take not common law treasons?

away the

1. It takes away all the treasons made by act of parliament, not only since the first of Henry IV. which were many, but all before 1 Henry IV. even until 25 Edward III. 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 Henry IV. took away any treasons but those of 21 and 22 Richard II, this clears it both for treasons made by parliament, or declared in parliament, even to the time of making the statute.

This is of great use, of great security to the subject; so that, as to

what shall be tteason, and what not, the statute of 25 Edw. III. remains intire, and so by consequence the treasons at the commmon law. Only, my Lords, it may be doubted whether the manner of the parliamentary proceedings be not altered by the statute of 1 Henry IV. cap. xvii, and more fully in the parliament roll, number 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 Hen. IV. we have not found any such declaration 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 Hen. IV. for passing of a bill of treason, as was before for declaring of it without bill. Herein the legislative power is not used against my Lord of Strafford in the bill, it 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 lordships judgments, than these from them, may possibly be of a contrary or dubious opinion concerning these treasons, either upon the statutes of 25 Edward III. and 18 Henry VI. or at the common law:

My Lords, if all these five should fail, they have therefore given me further in command to declare to your Lordships some of their reasons, why they conceive that in this case the mere legislative power may be exercised.

Their reasons are taken from these three grounds:

1. From the nature and quality of the offence.

2.

From the frame and constitution of the parliament wherein this Taw is made.

3. From practices and usages of former times.

My Lords, 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 into one body politick: 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 Elisabeth 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.