2. Scotland, although the (y) kings of it have often done homage to the kings of England in ancient times (as their sovereign lords) was still an absolute, independent kingdom in this respect of being subject only to and governed by its own parliaments and laws; but not subordinate to nor governed by the laws or parliaments of England, which never bound them heretofore, nor now, as they did and do Ireland; their laws and statutes and ours still continuing different. Therefore this act neither did nor could bind the Scots peers or commons in point of trial here for treasons cominitted in Scotland, as it binds the Irish (still subject to our laws and parliaments) for treasons done in Ireland. thereupon be used against the offenders, as in cases of felony at the common law, and that the offenders being thereof convicted by verdict, confession, or outlawry, shall suffer pain of death," &c. Which words, without the least contradiction, stand as well with trial of peers who are guilty of it by their peers alone, as of commons by a jury, they bɛing both according to the order of our common law, and a verdict by peers is as properly styled a verdict in law, as a verdict by jury,; witness 1 H. 4, 1. and Coke's 3 Inst. c. 2. p. 30. But in the statute of 35 H. 8, there is no creation or introduction at all of any new treasons, but only an introduction of a new form and way of trial for treasons formerly made and declared as such, then done, or hereafter to be committed out of this realm, and that new forin of trial, precisely li 3. The very acts of pacification (8) between both kingdoms, and the solemn league and covenant passed this parliament here and in Scot-mited in all particulars, and especially enacted land too (which do specially reserve the trials of all traitors and delinquents of their kingdom to their trial and judicatory only of their own parliaments and realms), have for ever provided against this vain pretence, and secured not only all Scottish peers, but commoners too, against any trials here by virtue of this act for treasons done in Scotland; therefore I shall give it no further answer. The last objection I can think of is this: That in every case of treason or felony new made by statute, the lords of parliament in England shall have their trial by then peers saved, notwithstanding the statute provides not for it by express words: so that provisos of trial by their peers inserted into them in such cases are but idle, and, ex abundanti, because it is provided for both by the common law, and by Magna Charta itself, c. 29. and so was it adjudged in the case of the lord Hungerford heretofore, and in the earl of Castlehaven's case of late for buggery, upon the statute of 25 H.8, c. 6. Stamford's Pleas of the Crown, f. 152, 153, and Crompton's Jurisdiction of Courts, f. 29. Therefore the trial of Irish peers by their peers shall be likewise saved to them within this act, though it be not expressed, as well as the trial by peers is to English peers by express proviso. to be by an ordinary jury, except only in case of our English peers: therefore this statute comes not at all within the objection, because it particularly defines the place where, the judge before whom, the juries by whom, with the whole form and manner how such foreign treasons shall be tried, with all other circumstances of the trial, and expressly prescribes, That all but English peers indicted for foreign treasons shall be tried by good and lawful men of the shire where the king's bench or commissioners sit. Therefore to alter this form of trial, precisely prescribed by this statute, by introducing a new trial by Irish peers, is to run quite cross against, elude, and repeal this statute, as I have argued and proved at large. I have now quite done with my Argument of this new untrodden case; and I hope therein sufficiently manifested, that this plea of the prisoner is invalid, and such as ought to be over-ruled in point of law; and therefore as he hath been sent for over from Ireland, by the wisdom and justice of our parliament, and by the lords, justices, and council there transmitted hither, to receive a just and speedy trial at this bar for his bloody treasons, which there (in respect of the rebels power, tumults in that realm) he could not conveniently undergo; so I humbly pray on the behalf of the I answer, first, That this rule holds generally king, kingdom, parliament, and our whole true in all cases of new treasons and felonies English nation, to all which he hath been such where the offences only are made capital, or a capital traitor and enemy, that this plea of punishable according to the ancient, usual, and his may presently be over-ruled, and himself ordinary proceedings of law, and the manner brought to his speedy trial, judgment, and exof the trial of them left at large, and not pre-ecution, for his unparalleled treasons, and the cisely limited how and by whom they shall be tried; as they are in the objected cases upon the statutes of 25 II. 8, c. 6. and 5 Eliz. c. 17. concerning buggery, where the words are, "That this vice shall be adjudged felony, and that such order and form of process shall (y) See Hov. p. 545, 546, 550. Walsingham Hist. Ang. p. 48 to 56. Mat. Paris Hist. Ang. p. 417, 433, 666, 607. 29 E. 1. Rot. Claus. dors. 10 claus. 33 E. 1. dors. 13. scedula claus. 34 E. 1. dors. 10 claus. 10 E. 3. dors. 9. (3) 1 Jac. c. 2. 3 Jac. c. 3. 4 Jac. 1. blood of those many thonsands of innocent English protestants shed in Ireland upon this occasion, which cries for justice and execution against him without further delay; the rather, because nulli differemus justitiam is one clause of that very act of Magna Charta, ch. 29, which he hath pleaded in bar of his trial, of which I pray both he and the whole kingdom may now enjoy the benefit, by his undelayed trial and execution too, in case he shall be found guilty of the treasons for which he stands indicted; of which there is little doubt, since so fully confessed by himself in a writing under his own hand; and we are ready to make them good against him, as we have already done against his confederate Mac-Mahon, by the testimony of a cloud of honourable, pregnant witnesses, in case he shall deny it. After two Arguments at the bar on both sides of this case, justice Bacon argued it himself, and delivered his Opinion and Judgment against the prisoner's Plea, that though he be a baron of Ireland, yet he was triable for his treason by a Middlesex jury in the King's-Bench, and outed of his peerage, by 35 H. 8, c. 2. Which Judgment was approved by this Order of both houses of parliament: Die Lunæ, 10 Februarii, 1645. "Ordered by the lords and commons in parliament assembled, That the said houses do approve of the judgment given by Mr. Justice Bacon, in over-ruling the plea of the lord Maguire, and of the manner of the trial by the indictment of high treason in the King'sBench: and the judge is hereby required to proceed speedily thereu; on according to law and justice.-John Brown, Cler. Parl. Henry Elsing, Cler. Parl. D. C." mentum et omnia alia quæ nobis ratione corooæ et dignitatis regiæ ab ipsis fieri et præstari nobis, in absentia nostra, poterunt plenarie et sine omissione aliqua prompto et libenti animo præstiterint: ac archiepiscopi, episcopi, abbates, priores, comites, barones, milites, libere tenentes, ac tota communitas terræ nostræ Hiberniæ nobis tanquam regi et domino suo ligio consimile sacramentum fidelitatis præstare teneantur. Dedimus vobis potestatem recipiendi nomine nostro fidelitatem ipsorum. Ita tamen quod si vos omnes interesse nequiveritis, tunc duo vel unus vestrum qui præsens fuerit nichilominus plenariam habeat potestatem recipiendi nomine nostro fidelitatem ipsorum in quod fidelitatem prædictam nomine nostro reforma prædicta. Et ideo vobis mandamus, cipiatis, prout melius videbitis expedire. In cujus, &c. Dat. per manum W. de Merton Canc, apud Westm. 7, die Decembris." 33 H. 8, c. 1, made in Ireland*. An Act that the King and his Successors shall be Kings of Ireland. "Forasmuch as the king our mest gracious dread sovereign lord, and his grace's most noUpon which, on Monday, Febr. 10, 1615, ble progenitors, kings of England, have been. he was brought from the Tower of London to lords of this land of Ireland, having all manner the King's-Bench bar, and there arraigned; of kingly jurisdiction, power, pre-eminences, where putting himself upon his trial, be chal- and authority royal, belonging or appertaining lenged twenty-three of the jury, which ap- to the royal estate and majesty of a king, by peared, peremptorily: whereupon a Distringas the name of lord of Ireland, where the king's was awarded to the sheriff of Middlesex to majesty and his noble progenitors, justly and return Quadraginta Tales the next day; of rightfully were, and of right ought to be, kings whom he challenged twelve more peremptorily: of Ireland, and so to be-reputed, taken, namand being tried by twelve of the residue re-ed, and called, and for lack of naming the turned (against whom he had no legal exception nor challenge), be was upon bis own confessions and pregnant evidence of fifteen witnesses, persons of quality, found guilty of the treasons for which he was indicted; and thereupon Feb. 11, was adjudged to be drawn to Tyburn, and there hanged by the neck, and cut down alive, and then his bowels to be taken out, and there burnt before his face, his head to be cut off, and his body to be divided into four quarters, and then to be disposed as the parliament shall appoint. Which was accordingly executed the 20th of February. king's majesty and his noble progenitors kings of Ireland, according to their said true and just title, stile, and name, therein hath been great occasion that the Irishmen and inhabitants within this realm of Ireland, have not been so obedient to the king's highness and his most noble progenitors, and to their laws, as they of right and according to their allegiance and bounden. duties ought to have been. Therefore, at the humble pursuit, petition, and request of the lords spiritual and temporal, and other the king's loving, faithful, and obedient subjects of this land of Ireland, and by their full assents, be it enacted, ordained, and established by this present parliament, that the king's highness, his heirs and successors, kings of England, be always kings of this land of Ireland, and that his majesty, his heirs and successors, have the name, stile, title, and ho nour of King of this land of Ireland, with all inhristo patri eadem gratia manner of honours, pre-eminences, prerogapo, et dilectis et fidelibus suis tives, dignities,, and other things whatsoever Mauricii justiciario suo Hibern. they be, to the estate and majesty of a king hanni de Saumford, esceatori suo appertaining and belonging: and that his ma Cum defuncto jam celebrisjesty, his heirs and successors, be from hence ino H. rege patre nostro (cujus forth named, callel, accepted, reputed, and r altissimus) ad nos regni taken to be kings of the land of Ireland, to terræ Hibern, dominium have, hold, and enjoy the said stile, title, mand prælati, comites, et proregni nostri nobis tanit regi fidelitatis jura At the end of the Argument Mr. Prynne says thus: To fill up the vacant pages of this sheet, I shall annex the one Record, and also one Irish act, being bot, very pertinent to my Argument. hool *The Stat. of Ireland printed at Dublin, 1621, p. 183. jesty, and honours of the king of Ireland, with and every such offence shall be adjudged and all manner of pre-eminence, prerogative, dig- deemed high-treason, and the offenders, their nities, and all other the premisses, unto the aiders, counsellors, maintainers, and abettors king's highness, his heirs and successors for therein, and every of them, being lawfully con ever, as united and knit to the imperial crown victed of any such offence, by presentment, of England. And be it further enacted by the verdict, confession, or proofs, according to the authority aforesaid, That on this side the first customs and laws of this said land of Ireland, day of July next coming, proclamation shall shall suffer pains of death, as in cases of highbe made in all shires within this land of Ire-treason, and also shall lose and forfeit unto the land, of the tenor and sentences of this act. And if any person and persons, of what estate, dignity, or condition soever they or he be, subject or resident within this land of Ireland, after the said first day of July, by writing or imprinting, or by any exterior act or deed, maliciously procure or do, or cause to be procured or done, any thing or things to the peril of the king's majesty's most royal person, or maliciously give occasion, by writing, deed, print, or act, whereby the king's majesty, his heirs or successors, or any of them, might be disturbed or interrupted of the crown of this realm of Ireland, or of the name, stile, or title thereof, or by writing, deed, print, or act, procure or do, or cause to be procured or done, any thing or things to the prejudice, slander, disturbance, or derogation of the king's majesty, his heirs or successors, in, of, or for. the crown of this realm of Ireland, or in, of, or for the name, title, or stile thereof, whereby his majesty, his heirs or successors, or any of them, might be disturbed or interrupted in body, name, stile, or title of inheritance, of, in, or to the crown of this land of Ireland, or of the name, stile, title, or dignity of the same; that then every such person and persons, of what estate, degree, or condition they be, subject or resiants within the said land of Ireland, and their aiders, counsellors, maintainers, and abettors therein, and every of them, for every such offence, shall be adjudged high traitors, king's highness, and to his heirs, kings of this realm of Ireland, all such his manors, lands, tenements, rents, reversions, annuities, and hereditaments, which they had in possession as owner, and were sole seized of in their own right, of, by, or in any title or means, or in any other person or persons had to their use of any estate of inheritance, at the day of any such treason and offences by them committed and done. And that also every such offender shall lose and forfeit to the king's highness, and to his said heirs, as well all such estates of freehold, and interest for years, of lands and rents, as all the goods, chattels, and debts, which they or any of them had at the time of the r conviction or attainder, of, or for any such of fence; saving alway to every person and persons, and bodies politic, their heirs, successors, and assigns, and to every of them, other than such persons as shall be so convicted or attainted, their heirs and successors, and all other claiming to their use, all such right, title, use, interest, possession, condition, rents, fees, offices, annuities, commons, and profits, which they or any of them shall happen to have, in, to, or upon any such manors, lands, tenements, rents, reversions, services, annuities, and hereditaments, which so shall happen to be lost and forfeited, by reason and occasion of any of the treasons or offences above rehearsed, any time before the said treasons or of fences committed or done. 174. Proceedings upon a Charge for Breach of the Trust reposed in them by the Parliament, preferred against Mr. HOLLIS and Mr. WHITELOCKE by the Lord Savile:* 21 CHARLES I. A. D. 1645. [Whitelocke's Mem. 6 Rushw. 177.] THE history of this obscure transaction is thus given detachedly by Whitelocke: March 19th, 1645. The lord Savile left the Oxford party, and came to London; he was staid by the Guards, and this day examined by a Committee of the Lords, of the grounds of his coming in, and was committed to the custody of the black rod. ters and garrisons; and to betake himself to the king, or whither he pleaseth within one week; after which time, if he stay within the line of communication, or the Parliament's Quarters, he is to be taken and proceeded against, as one adhering to the enemy. April 21. The earls of Holland, Thanet, Monmouth, Westmorland, and the lord Savile, took the oath appointed by the Parliament, for such as come in to them, before the Commissioners of the Great Seal. March 31. The lord Savile, in regard he hath not given any satisfaction to the Parliament, for his coming from Oxford hither, but rather many grounds of suspicion, that he came July 2. Mr. Gourden, a member of the to do ill offices, was ordered speedily to depart House of Commons, presented to them a Letthe city, and all other the Parliament's Quarter from the lord Savile, with a Paper inclosed in it, and desired, That they might be read, He had been created earl of Sussex by and after some debate they were read: The the king in the preceding year. Letter was expressing "his affections to the Parliament, to whom he had come from the king and submitted himself, and taken the oath enjoined; in observance whereof, and of his duty to the Parliament, under whose protection he was, he held himself obliged to discover to them what he knew concerning two of their Members, who had done contrary to their trust, and to the prejudice of the Parliament in the matters contained in the inclosed Paper." That Paper set forth, "That Mr. Holl's and Mr. Whitelocke being persons well affected to the king, and to his cause, were nevertheless two of the Parliament's Commissioners lately sent to Oxford to his majesty with Propositions from the Parliament for peace: That they being at Oxford did contrary to their trust, and to the prejudice of the Parliament, treat and advise with the king, and some great lords about him, namely, the earl of Lindsey, the earl of Southampton, and others, about the King's Answer to those Propositions, and did give a Paper in writing, what they advised the King's Answers should be: That their advice in the said Paper was followed by the King, and some of the very words thereof were made use of in the King's Answer, and that both before and after that time, they held intelligence and correspondence with the king and his party at Oxford." Much other matter was in the Paper to the like effect, and upon the reading of it, divers of the house were very high, and moved, That Mr. Hollis and Mr. Whitelocke might make a present Answer to this Paper, or Charge, as some called it. Mr. Hollis presently in his place made his Answer to the matter of the Paper, and therein unadvisedly and suddenly confessed more than he needed to have done, but denied any intelligence or correspondence by him with any of the King's party. Mr. Whitelocke was not in town this morning, and knew nothing of this business; but after Mr. Hollis had spoken, Mr. John L'Isle stood up and acquainted the house, that Mr. Whitelocke being then absent, if they pleased he would undertake to give him notice to attend the house the next day, which was or dered. But some were not satisfied therewith, and they fiercely moved, "That this being a charge of High Treason against two of their Members, in whom the offence was greater than in others, that they would proceed with equal justice; and that both Mr. Hollis and Mr. Whitelocke might be committed to the Tower, Mr. Hollis who was present to be sent thither, and a warrant to apprehend Mr. Whitelocke and to carry him thither also." Upon this sir William Lewys stood up, and with as much vigour on the other side, said, "He could not wonder at the justice of these who would commit a man to the Tower before he was heard, and the other after he had fully answered that which they called a Charge; That he could not admit it to be a Charge, but a scandalous and libellous Paper against two worthy members of the house, who, they all knew, had served the Parliament faithfully, and to the utmost hazard of their lives and fortunes: And because they had done so, and were so capable of doing further and more service to the Parliament, therefore one of their enemies was come hither to cast a boue among them, and to raise differences amongst the members of parliament; a likely way when their other designs failed them, to do mischief to the parliament: He desired them to consider the person of him whom they called the Accuser, who was indeed an Accuser of the Brethren, that it was the lord Savile, now cloathed with a new Title from the king of earl of Sussex, and perhaps this present service was to be part of that by which he was yet to merit his new Title: That still he was the same man who was first of the Parliament party, then revolted from them to the King, and now was revolted from the King to the Parliament again, and that a Paper brought in from this person should be looked upon as a Charge against two worthy members of their house, or be in the least a ground to commit them to the Tower. he could not sufficiently wonder at the reason or justice of such a motion as that was: He rather thought it more reasonable and just, and accordingly moved, That this Libel, this Paper might be thrown out of the house, and the contriver of it, the lord Savile, be under more straight custody, and examined who set him on to promote this business; and that Mr. Hollis and Mr. Whitelocke might not be put to the trouble of any further attendance about it." This smart motion of sir William Lewys, so contrary to the former, being spoken by him with great ingenuity and mettle, and seconded by sir Philip Stapleton and others of that party, so wrought upon the house, that the motion for commitment to the Tower was laid aside, and Mr. L'Isle ordered to give notice to Mr. Whitelocke that the house required his attendance there the next day. July 3. Mr. Whitelocke attended the house all this morning, and nothing was said to him in public by reason of the other business: about 12 o'clock he acquainted the house that he received a Letter from a worthy member of the house, signifying their pleasure that he should attend them, which he now did accordingly, and humbly desired to know what the business was. Then it was moved by some that the Letter and Paper of the lord Saville might be read to him, others were for a time to be appointed two or three days after for this business. Mr. Whitelocke desired it might be the next day. Upon his suit, it was appointed for the next day, and that the Paper and Letters of the lord Saville should be then ready, and he to be heard to say what he thought fit to this busi ness. July 4. About ten o'clock, some friends of Mr. Whitelocke's called upon the business appointed for the day, and the Letter of the lord Saville, with the Paper inclosed, were read in the house to Mr. Whitelocke, after which he stood up in his place, and made Answer to it by way of Narrative to this effect: 6 trary, and vindicated your honour in them. There was also discourse concerning the Scots Commissioners, whom they athrined to be averse to peace,' we assured them that they were not, but willing to have a good peace. "There was likewise upon this occasion, discourse of the Presbytery, and of the point of Jure divino; we told them that the Scots were off from the rigid Presbytery,' and did not insist upon the point of Jure divino.-They were then likewise discoursing of Tumults, and of Persons, and Petitions brought to West "Mr. Speaker; I am happy, since I must be under an Accusation (which is no mean thing) in this honourable house, that this gentleman my lord Saville is my Accuser; and inore happy that you, to whom I have been so long a servant, and who know my ways so well, are to be my judges. I shall say nothing concerning my lord Saville, because he is my Accuser, but to the parts of his Accusation I shall give you a short and true Answer, with all ingenui-minster in a violent and disorderly manner;" ty and submission to your great judgment. "His first part of the Accusation is, That I was a person well affected to the king,' but he gives no instances thereof, nor is it a crime to be well affected to my sovereign; we have all expressed the same in our Covenant.-I could give some instances to the contrary effect, as the plunder of my goods, seizing the profits of my lands, indicting my person of High Treason for serving you; and giving away my inheritance to sir Charles Blunt a Papist; which are no great motives to an extraordinary affection, more than a subject is obliged to his prince. But if my lord Saville means by well affected to the king,' my being well affected to Peace; I confess I am a passionate lover of a good peace, and seeker of it, and thereby have testified my affection both to king and parliament; and the longer our troubles continue, the more we shall all be of this opinion and affection.-Sir, I hope I may be thought capable to know my duty to my king, and to understand what protection I was to have from him, the mutual relations of both; and further I hold myself disobliged. 6 "The second Accusation is, That I met at the earl of Lindsey's lodgings in Oxford, to 'advise about the king's Answer to your Propositions, and that I there did give advice to 'the king, contrary to the trust reposed in me by you.' To this I answer, That when your Cominissioners came to Oxford, we consulted together, what (among other things) was fit for us to do in point of civilities and visits whilst we were there; and it was agreed by us all, that we should not visit any that were excepted in your Propositions; but that we might visit others, who did visit, or send visits to us. "The earl of Lindsey sent to visit Mr. Hollis and me with a compliment, That he was not well, else he would have come to visit us at our lodgings. And I having a particular relation and alliance to him, we went together to return a visit to his lordship, and told our fellow commissioners of our intentions before we gave the visit, and they approved of it. When we came to the earl's lodging, we found there the earl of Southampton, the lord Saville, and some others; but it was so far from an appointed meeting, that I knew not of their being there, till I saw them in the chamber.There was much discourse among us about your Propositions, and they urged the unreasonableness of them :' we affirmed the con we did not speak of any violent independent party,' nor any the words mentioned in the lord Saville's Paper, nor that the Propositions were unreasonable. They indeed pressed much upon that argument, that they were unreasonable; particularly the Propositions concerning Religion and the Militia; we told them, that unless the king would grant those Propositions, it would be in vain to treat of any peace. "There was also much discourse about the acknowledging you to be a Parliament; the earl of Lindsey said, That the king had acknowledged you a Parliament, by the words, We 'Lords and Commons of Parliament.' answered, That this was the same style his majesty gave to the Assembly at Oxford, and we could not be satisfied with that acknowledg ment.' Then the earl of Lindsey demanded of us, how we would be acknowledged? We told him thus; The Lords and Commons assembled in the Parliament of England at Westminster.' ་ "After this we returned to our lodgings, and acquainted our fellow Commissioners with the persons that were at the earl of Lindsey's chamber, when we were there, and with the matter of our discourse with them. In all our discourses, Mr. Hollis and myself did justify your Propositions, and vindicate your proceedings. "Mr. Speaker, It is no small trouble to my thoughts, to have my name questioned in this house, but I am comforted in my own integrity and innocency, and in my Accuser, but chiefly in my Judges, to whom I most humbly and` most willingly submit myself." After Whitelocke had spoken, there was much debate in the house, whether this Paper of the lord Saville were an Accusation or Charge against them? Many gentlemen argued, That it was against the privilege of the house to take it for an Accusation, being from the lord Saville, who was an enemy come from the king's quarters, and one in contempt to both houses of parliament, for refusing to name the person from whom he received the Letter concerning Mr. Hollis, and therefore committed a close prisoner: That he had not discovered this to the Parliament in five or six months together that he had been in their quarters, but after he had been complained of by Mr. Hollis about a Letter, and Mr. Whitelocke was in the Chair of the Committee ap |