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AN ARGUMENT OF LAW,
THE BILL OF ATTAINDER OF HIGH TREASON
THOMAS EARL OF STRAFFORD:
At a Conference in a Committee of both Houses of Parliament.
BY MR. ST. JOHN,
His Majesty's Sollicitor General,
Published by Order of the Commons House. London, printed Anno Domini, 1641.
Quarto, containing eighty Pages,
My Lords, THE "HE knights, citizens, and burgeses 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 is dear to all.
To use bis own expression, an eradication of him both root and branch, as an Acban, 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 judge not them who judge him; and, in that which is most sacred amongst men, the publick 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 judgments 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 judgment according to them.
In several countries, there is not the same measure of punishment for one and the same offence. Wilful murder in Ireland is treason, and so is the wilful burning of a house, or stack of corn. In the isle of Man, it is felony to steal a hen, but not to steal a horse; and yet, the judge in Ireland hath as just a ground to give judgment of high treason, in those cases, there, as here to give judgment only of felony; and in the isle of Man, of felony for the hen, as here of petty lareeny.
My lords, in the other consideration of using the supreme power, the same law gives power to the parliament to make new laws, that inables 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 blond be taken, than what is necessary for the cure: The laws and customs of the realm as well inable 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
commons upon the bill; they did not intend to make a new trcason, and to condemn my Lord of Strafford for it; they had in it other considerations likewise, which were to this effect:
First, The cominons knew, that, in all former agcs, 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 25. Edw. III. of treasons; the statute of the prerogative; and, of late, the petition of right. If the law was 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.
Secondly, My lords, they proceeded this way to out those scruples and delays, which, through disuse of proceedings of this nature, might have risen in the manner and way of proceeding, since the statute of 1. Henry VI. cap. xvii. and more fully in the roll, number 144. The proceedings in parliament have usually been upon an indictinent first found; though in cases of treason, particularly mentioned in the statute of 25 Edw. III. which had not been done in this case: Doubts likewise might rise for treasons, not particularly mentioned in the statue of 25 Edw. III, 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 two hundred 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.
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 is 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 1. Edw. VI. 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 far it would have been satisfactory in a judicial way; where forms of law are more to be stood upon, was not so clear; whereas, in this way of bill, private satisfaction to each man's conscience is sufficient, although no evidence had been given in at all.
My lords, the proceeding by way of bill, it was not to decline your lordships justice in the judicial way: In these exigencies 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. Ju 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 Edw. III. 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 Savill's warrant, and the advice of bringing over the Irish army, upon the matter of the twenty-third article, the intending of a war, if not within the clause of levying war in the statute of 25 Edw. III. 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. Edw. III. yet, upon putting all together, which hath been proved against him, that there is a treason within the first clause of compassing the death of the king:
Et, si non prosunt singula, juncta juvant. 4. That he hath assessed and laid soldiers upon the subjects of Ireland against their will, and at their charge, within the Irish statute of 18. Hen. VI. That both person and thing are within the statute, that the statute remains in force to this day, that the parliament here hath cognisance of it, and that even in the ordinary way of judicature;
that, if there be a treason and a traitor, the want of jurisdiction, in the judicial way, may justly be supplied by bill.
5. That his endeavouring to subvert the fundamental laws and government of the realms of England and Ireland, and, instead thereof, to introduce a tyrannical government against law, is treason by the common law. That treasons at the common law are not taken away by the statutes of 25 Edw. III. i Hen. IV. cap. x. 1 Mar. cap. 1, nor any of them.
6. That, as this case stands, it is 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; threć within the statute of 25 Edw. III. 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.
The case, 1. 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 is thus :
The earl did by warrant under his hand and seal give authority to Robert Savill, a serjeant at arms, and his deputies, to sess such a number of soldiers, horse and foot, of the army in Ireland, together with an officer, as the serjeant 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, again their will, in a 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 subnitted themselves unto those summons and orders.
My lords, this is a levying of war within the statute of 25 Edw. III, 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 or thing 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 Edw. I's time, the title of a castle was in difference between the Earls of Hereford and Gloucester; for the maintaining of the possession on the one side, and gaining of it on the other, forces were raised on either side of many hundred men; they marched with banners displayed one against the other. In the parlia
ment in the twentieth year of Edw. I. this was adjudged only trespass, and either of the earls fined a thousand marks a-picce.
After the statate in Hilary term, the fiftieth year of Edward the Third, in the King's-bepch, Rot. 3. Nicholas Huntercome, in a warlike manner, with forty men armed, amongst other weapons, with guns, so ancient as appears by that record they were, did much spoil in the mannor of the abbey of Dorchester, in the county of Oxford : This was 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 inclosures; this is only a riot, no treason.
The words of the statute of 25 Edw. III. 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 misprinted; for the words in the parliament roll, as appears in num. 17, are discovertment ou secretement, 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.
Object. 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."
Answ. That these words extend further than to the person of the king appears by the words of the statute, which in the beginning declare it to be treason to compass and 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 than to the person of the king, these words of the statute are to no purpose, for then the first treason of compassing the king's death had fully included it before, because that he, which levics war against the person of the king, doth necessarily compass bis death.
It is 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 stead delegated the execution of them.
2. Because they are the king's laws. He is the fountain from whence, in their several channels, they are derived to the subject; all our indictments run thus, Trespasses laid to be done, Contra pacem Domini Regis, the king's peace, for exorbitant offences, though not intended against the king's person, against the king's crown and dignity,
My lords, this construction is made good by divers authorities of great weight, ever since the statute of 25 Edw, III. downwards.
In Richard the Second's time, Sir Thomas Talbot conspired the death of the Dukes of Gloucester and Lancaster, and some other of