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No laws, no pecrage, no ranks or degrees of men; the same condition to all.
It is 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 is never a judge amongst them.
It is felony to embezzle any one of the judicial records of the king dom; this at once sweeps them all away, and from all.
It is trcason to counterfeit a twenty-shilling piece; here is a counterfeiting of the law; we can call neither the counterfeit nor true coin our own.
It is 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 the Star-Chamber, or in the King'sBench, by fine or imprisonment? They would say, it went higher: If whether felony? They would say, that is 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 Richard II. That, though he could not 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 is in the right
2. The second consideration is from the frame and constitution of the parliament; the parliament is the great body politick, it compreliends 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 is both the physician and the patient : 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 or gangrened, it hath power to cut it off for the preservation of the rest.
But, my Lords, it hath been often inculcated, that law-makers should imitate the supreme lawgiver, who commonly warns before he strikes; the law was promulged before the judgment of death, for gathering the 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 is true, we give law to hares and deers, because they are beasts of chace; 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 policy 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 vitæ et 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 de culpa, sed de pæna, what degree of punishment those faults deserve ; we much 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 of 1 Henry IV. who, for a barbarous murder committed upon the Duke of Gloucester, stiffling him between two feather-beds 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 Hen. IV. cap. vi. one Savadge committed a battery upon one Chedder, servant to Sir John Brooke, a knight of the parliament for Somersetshire; it is there enacted, that he shall pay double damages, and stand convicted, if he render not himself by such a time: the manner of proceedings 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 Henry IV, the first leaf, double damages were recovered.
My Lords, in this of the bill the offence is high and general, against all, and the best of all.
If every felony be loss of life, lands, and goods, what is misuse of the legislative power, by addition of ignominy in the death and disposal of the lands to the crown, the publick patrimony of the kingdomn ?
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 your selves to your ancestors, .we admit of, although we do not admit of that from your Lordships to the peers of Ireland.
He hath appealed to them: your lordships will be pleased to hear what judgment they have already given in the case; that is, the several
attainders of treason in parliament, after the statute of 25 Edward III. for treasons not mentioned, nor within that statute, and those upon the first offenders without warning given them.
By the statute of 25 Edward III. it is treason to levy war against the King: Gomines and Weston afterwards in parliament in 1 Richard II. numb. 38. 39. were adjudged traitors for surrendering two several castles in France only out of fear, without any compliance with the enemy; this is not within the statute of 25 Edward III.
My Lords, in 3 Richard II. 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 Bread-street, as the words of the records are, paulo ante ignitegium ; 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 Edward III, could not proceed; the parliament declared it treason, and judgment afterwards of high treason there; nothing can bring this within the statute of 25 Edward III, but it concerns the honour of the nation, that the publick faith should be strictly kept: It might endanger the traffick of the kingdom : they made 'not à law first, they made the first man example. This is in the parliament roll, 3 Richard II, number 18. and Hilary term, 3 Richard II. Rot. 31. in the King's-Bench, where judgment is given against him.
In 11 Richard II. Tresilian and others were 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 Lordships ; only this is observable, That in the parliament of the first year of Henry the Third, where all treasons are again reduced to the statute of 25 Edward III, these attainders were by a particular act confirmed and made good, that the memory thereof might be transmitted to succeeding ages: they stand good unto this day; the offences there, as here, were endeavouring the subversion of the laws.
My Lords, after 1 Henry IV. Sir John Mortimer, being committed to the Tower upon suspicion of treason, broke prison, and made an escape: this is no way within any statute or any former judgment 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 is attainted of treason, and it was enacted, that he should be boiled to death by the statute of 22 Henry VIII,
By the statute of 25 Henry VIII. Elisabeth Barton, the holy maid of Kent, for pretending revelations from God, that God was highly dise pleased with the King for being divorced from the Lady Catharine, 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 was attainted of treason.
In the parliament 2 and 3 Edward VI. cap. xvi, 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 Elisabeth the King's sister, taking a bribe of Sherrington, accused of treason, and thereupon consulting with council for him, and some other crimes, none of them treason, so clearly within the statute of 25 Edward III. 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 first year of Henry the Fourth, and the First of Queen-Mary, although they were willing to make the statute of the five and twentieth year of Edward the Third the rule to the inferior courts, yet they left the attainders in parliament precedent to themselves untouched, wherein the legislative power had been exercised. There is nothing in them whence it can be gathered, but that they intended to leave it as free for the future.
My Lords, in 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 of the bill: it is now left to the judgment and justice of your Lordships.
THE TRIUMPH OF KING CHARLES ;
OB, THE TRIUMPHANT MANNER AND ORDER OF
RECEIVING HIS MAJESTY INTO HIS CITY OF LONDON,
On Thursday, the twenty-fifth day of November, Anno Dom. 1641,
UPON HIS SAFE AND HAPPY RETURN FROM SCOTLAND.
With Mr. Recorder's Speech to his Majesty,
AND HIS MAJESTY'S MOST GRACIOUS ANSWER.
London, printed by A. N. 1641. Quarto, containing thirty-eight pages.
Cives Londinenses, Illustrissimi Regis Caroli è Scutia Reditum, sic
PRINCIPIS adventus Caroli, vel gratior urbi
Quis dicat; Carolus vel mage gratus erat?
Nostra soluta facit debita, grata minus.
Ut crescat Caroli Gratia, noster amor.
THANKS, mighty Sir, that you would gracious be,