the peers; for the effecting of it, he had caused divers people in the county of Chester to be armed in a warlike manner, in assemblies. In the parliament held the seventeenth year of Richard the Second, number the 20th, Sir Thomas Talbot was accused of high treason for this; it is 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 judgment sent down into the King's-Bench, as appears, Easter term 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 maintenance of the act of parliament made the year before; one of them was of the commissioners appointed by parliament, and one of the appellors 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 is 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 Second's time, they took an oath, Quod Regi et Communibus fidelitatem servarent, to be true to the king and commons, that they would take nothing but what they paid for, and punished all theft with death; here is no intendment against the person of the king, the intent was to abolish the law of villainage and servitude, to burn all the records, and to kill the judges; this, in the parliament of the fifth year of Richard the Second, numbers 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, was adjudged treason by all the Judges.

The statute of 1 Mar. Cap. xii. enacts, that, if twelve or more shall endeavour by force to alter any of the laws and statutes of the kingdom, they shall, from such a time there limited, be adjudged only as felons; this act was to continue but to the next parliament; it is expired; it shews by the word only, that the offence was higher before the making of it.

My lords, in queen Elisabeth's time, Grant and divers apprentices of London, to the number of two-hundred, rose and assembled at Towerhill, and carried a cloke upon a pole instead of a banner; their intent was to deliver divers apprentices out of prison, that had been committed upon a sentence in the Star-chamber for riots, to kill the Lord Mayor of London, and for setting prices on victuals. In Trinity Term, 27 Elis. divers of the judges were consulted withal, and resolved that this was a levying of war against the queen, being intended against the government and officers of the queen, and thereupon Grant and others were 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, and other parts, to excite them to take arms, for the throwing in of all inclosures throughout England; nothing was done, nor no assembly. The statute of 13 Elis. cap. i. during the queen's life, made it treason to intend or advise to levy war against the queen,

In Easter Term, 39 Elis. all the judges of England met about the case. It was resolved by them, that this was a war intended against the queen: they agreed, that, if it had been of one township, or more, upon private interest and claim of right of common, it had not been treason; but this was to throw in all inclosures through the kingdom, whereto these parties could pretend no claim; that it was against the law, in regard that the statute of Merton gave power of inclosures in many cases. Upon this resolution, Bradshaw and Burton were executed at Aynestow-hill in Oxfordshire, 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 intrusted with execution of them; this is a war against the king.

My lords, it will be further considerable, what shall be accounted a levying of war in respect of the actions and things done. There is a design to alter some part of the laws and present government: for the effecting thereof people are provided with arms, and gathered together into troops, but afterwards march 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 other side?

Secondly, From the words of the statute shall levy war, and be thereof probably attainted of open deed by people of their condition, although the bare conspiring be not an open deed, yet whether the arming and drawing men together be not an open declaration of war? In Sir Thomas Talbot's 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 warlike manner in assemblies; here is no marching, no banners displayed.

In the eighth year of Henry the eighth, William Bell and Thomas Lacy in Com' Cant. 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 was 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 is declared by the warrant.

My lords, if it be said, That the warrant expresseth not any intent of subverting the laws, it expresseth fully one of the principal means whereby this was to be done, that is, obedience to his arbitrary orders upon paper petitions; this was done in reference to the main design.

In the cases of the town of Cambridge and Sir William Cogan, 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 twohundred pounds.

These, if done upon these private ends alone, had not been treason, as appears by the very words of the statute of 25 Edw. III. beforementioned 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, andtwo and thirtieth, where the towns of Cambridge and Bridgewater are expresly excepted out of the general pardon made to the villains. This being done in reference to that design of the villains, of altering the laws; this was that which made it treason.

If the design went no further than the forcing obedience to these paper orders 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 Edw. I. a writ went to the justices in Ireland (that kingdom at that time was governed by justices) declaring, that upon petitions they were not to determine any titles between party and party, upon any pretence of profit whatsoever to the king.

In the eight and twentieth year of 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'sbench; for title of land or goods, in the proper courts of the commonpleas or king's-bench.

This declared in the instructions for Ireland in the latter end of king James's time, and by the proclamation in his majesty's time, my lord took notice of them, and called the commissioners narrow-hearted commissioners.

The law said, he should not thus proceed in subversion of it; he saith, he will, and will force obedience by the army. This is as much in respect of the end, as to endeavour the overthrow of the statutes of labourers, of victuals, or of Merton for inclosures. Here is a 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 force obedience. My lords, if the earl had armed two thousand men, horse and foot, and formed them into companies to this end, your lordships would have conceived that this had been a war; it is 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, but is now destined by him to their destruction. This assignation of the army, by his warrant under his hand and seal, is an open

act.

My lords, here is not only an open act done, but a levying of war; soldiers both horse and foot, with an officer, in a warlike manner sessed upon the subject, which killed their cattle, consumed and wasted their goods.

Obj. O, but five or six were the most employed at any time; a mighty war of six men, scarce a riot.

Anws. 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 goes alone, or but with one bailiff, to do execution, is, because he hath the command of the law, the king's writ, and the posse comitatus, in case of resistance; here is the warrant of the general of an army, here is the posse 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, foresceing 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 numbers of the train-bands through the county, with officers, as they shall think good, and lay them upon the lands and houses of the refusers; soldiers in a warlike manner are frequently sessed upon them accordingly. Your lordships do conccive 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, bnt 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 free-holders of the same county.

My lords, I have now done with the first, of levying war.

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 twenty-third 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 twenty-third 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 is 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 the twenty-fifth of Edward the Third 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 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, 19 Henry VI. fol. 47, there adjudged, That the conspiring and aiding to counterfeit coin was treason; and justice Stamford, fol. 3, and 44, is of opinion, That this or conspiring to counterfeit the great scal is treason. The statute is, If any shall counterfeit the great seal, conspiring to do it by the book, it is treason; if a man take the broad seal from one patent, and put it to another, here is he counterfeiting, it is tantamount, and therefore treason, as is adjudged in 2 Henry IV. fol. 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 is 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 adjudged both after the statutes of the first of 1 Henry IV. cap. x, and 1 Mary, cap. i, 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 Offley, in the county 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