Duke Hamilton Earl of CAMBRIDGE HIS CASE, Spoken to, and argued on the behalf OF THE Commonwealth, Before the HIGH COURT OF JUSTICE.

By Mr. STEEL of Grays-Inn.

LONDON: Printed for Francis Tyton, at the Three Daggers near the Inner Temple-Gate, Fleetstreet, 1649.

Mr. Steel's Speech before the High Court of JUSTICE, upon occasion of the first coming of the Earl of Cambridge to the Bar, February 9. 1648.

My Lord,

THat power which was at first in Families, Towns, and then in greater Collective bo­dies, was after, for the better conservation of the whole, disposed into bodies Politique and Represen­tative: Principium Originis is the priviledge of th'one, as Dispensationis of th'other; which distin­ction as easily prevents all disputes about the preemi­nency of these powers, as it usually satisfies that questi­on touching bodies Natural, viz. Whether the Primum sensorium be to be ascribed to the heart or head? Of the birth and growth of these powers, God himself gave us some resemblance, when that Lux primogenia, the light created on the first, was upon the fourth day contracted into those heavenly lights, which were the first created Rulers of this world: The powers of men thus setled, were invested with various immunities, suitable to their Offices, as so many beams flowing from them for the good of mankinde; and amongst these, I know none more bright and influential to the world, then that of Justice; which when 'tis rightly darted into [Page 4]the hearts and hands of men, doth not prove like that sword behinde the Ephod, but rather as that of Gi­deon, and sometimes upon just occasion, like that which hung over the head of Damocles, ready to do speedy and impartial execution: Of this power I both sup­pose this Honorable Court to be the proper Subject, and the now Prisoner at Bar the proper Object.

The proceedings of Justice are call'd, Streams of Righteousness for their clear and current passage: And (my Lord, what if no gallant Ship nor Galley with oars, sail in these of yours? yet if the glorious Lord vouchsafe you his presence he will be broad Rivers to you; what if others of inferior rank, spare not to load your persons and actions with reproaches? yet you know, not withstand­ing Latratus Canum, what's the posture of that faith­ful witness in heaven, Et peragit cursus surda Dia­na suos: And as for this Lord, brought by a divine hand to appear thus before you, I may say of him, Quae alios divisa reos faciunt in hunc conjuncta flu­unt, so fit is he to stand at the Bar of Justice; to look upon him as he now appears, may perhaps move compas­sions, as once Date obolum Bellisario did to that great Commander (and indeed (my Lord) however his Crime may be above your mercy, yet I would not have his better part either be beyond your prayers or pity) ne­verthêless, that you may take a right view of those acti­ons for which he is here convented, I wish he may rather [Page 5]be look'd upon as marching the last Summer in the head of twenty thousand men, in an Hostile and Treacherous maner to invade this Nation, as if that which some feared in the Argument of Calvins Case, if the judge­ment should pass, as it after wards did, were under this mans conduct come to pass; viz. That the the Scots, am­bitious of such a priviledge as to be Denizens of Eng­land, would thereafter come like avers sans number into the English Commons; or as if he were willing to re­vive the truth of that observation of Comities, that what Portugal was to Spain, and the Venetians and Florentines then to Italy, that was Scotland of old to England, a scourge to minde them of their duties to God, and to keep them humble: But more particu­larly to touch the aggravating circumstances of this horrid Treason, and therein to omit the mentioning of those personal benefits this Nation had afforded him, by making him capable of their own Dignities, and pri­viledges, equal to any Natural born Englishman, and to take the dimensions more peculiar to this Rebellion: We were the last year after a tedious storm of War, beginning to rejoyce in the hopes of seeing the Ves­sel of this State, come safe into the harbor of Peace, but the enemies of Englands happiness, and of their own, were not willing to enjoy this blessing up­on the Terms it was purchased; an harmonious spirit [Page 6]must pass betwixt the South and North, the vessel again lanch into the deep, all our hopes of settlement be indangered, and the poor wasted Northern counties, which ere now expected a Jubile, must by these Bre­thren in cruelty be used like Sechemites, and again tormented, before they be healed of their old sores; as if they now came to take Livery and Seisin of those counties, which some affirm were promised them as part of their reward for this service: And all this, as a­gainst those solemn Treaties transacted in 1642. and 1643. for the Vnion of both Kingdoms, and those In­gagements not to make War each with other, before three moneths warning, nor to Garison Berwick or Carlisle, without consent of both Parliaments; so also against the frequent premonitions of the General Assem­bly in Scotland (the Assembly here also by their Letter, signifying their concurrence with those endeavors of the Scotish Divines) and both agreeing, this Expedition to be against, not for the ends of the Covenant; but whilest these Invaders were thus forewan'd, they not­withstanding forearm themselves in the worst sence for us: But two circumstances above all seem to me, to extend the vileness of this fact beyond all aggravati­ons; the one, That the Parliament of England, whilest they in Scotland were forming their weapons against us, by their Commissioners residing there, often [Page 7]signified their desires of presereving a Brotherly Agree­ment; howbeit, instead of receiving any other sa­tisfaction, we must be answered, Per argumenta ba­culina: the other, That their coming in must be for the ends of the Covenant, that being usually made the stock whereon to grast their desperate Designs; thinking thereby, as to mask their own deformities, so to seduce many well meaning men into their consederacy; and from thence as this third War was called Bellum Hypocritarum, so may the Prisoner, under whose com­mand in chief they came, be justly stiled Hypocrita­rum Princeps: The Parliament of England here­upon appealed to heaven by their Declaration, and therein Prophetically spake what came to pass, That they doubted not but God would be with them, and the prayers of his people for them; and that those who had dealt falsly, in striking hands with the common Enemy, to kindle a new fire betwixt these kingdoms, should perish themselves therein; upon which appeal the highest Judge gave out his righteous decree, & spes hypocri­tarum periit; and had he not indeed appeared for his despised people, by a more then ordinary rule of his dispensation, and inabled a small company of men, like stars in their course, to fight against and vanquish this Sisera and his mighty Host, England doubtless ere this had been a Field of Blood: Of this unnatural and [Page 8]unchristian Army thus totally by a power from Hea­ven routed, habemus ducem, we have here pre­sent the principal Author and Actor, against whom the pillaged depopulated counties, the blood of many inno­cents, many of his own Countreymen both at home, and now in forreign parts, and God himself, by the strange and speedy delivery of him into your hands, after his escape from Windsor, coming himself sooner then possi­bly he could have done if sent for, immediately after the former execution, do all unanimously call for a just sentence, and the same do I in the Name of the People of England.

The Charge being read against the said Earl, contain­ing matter of High Treason, for his invatling this Na­tion in an Hostile maner, and levying actual War there­in, he thereunto put in this ensuing Plea.

The Plea of Iames Earl of Cambridge, whereby (as he alleaged) he was not to be tryed for Treason within this Kingdom.

1. THat he was imployed by the Parliament of the Kingdom of Scotland, not to invade this Kingdom, but for the ends they have declared, sent to the Parliament of the Kingdom of England.

2. That he is no Englishman, notwithstanding the Naturalization of his Father.

3. That he is a Prisoner of War, rendred upon Articles by Major General Lambert; and that those Capitulations were made before his Rendition with Ma­jor General Lamberts Commissioners.

THE ARGUMENT of Mr. Steel, On the behalf of the COMMON-VVEALTH, Touching the matter of Law in the CASE of the Earl of CAMBRIDGE.

My Lord,

THe Councel for the Earl of Cambridge have framed their Arguments upon the fact, as they conceive it proved; and also by admittance of the contrary in some points, I shall use the same method, first, Arguing from the fact, as I conceive it stated by the proofs produced, and then by admittance of the contrary, that though the fact should be as they would have it, that yet the Law will fall out to be against them.

The Charge being read to the Prisoner, he hath there­unto put in his Plea, consisting of three parts; the truth and validity whereof hath been denyed on the behalf of the Commonwealth.

First, The first part of his Plea was, That he was im­ployed by the Parliament of the Kingdom of Scotland, not to invade this Kingdom, but for the ends declared by them: The improvement made of this part of the Plea, is, That the Earl was but a Servant in this Expedi­tion, and under the Authority and command of ano­ther, and tyed under Oathes and penalties to give obe­dience; if he had disobeyed, he had been liable to pu­nishment, [Page 11]therefore it were hard for him to be punished for obeying also: That he hath not exceeded his Com­mission; besides the Parliament of England in their Declaration of the 17 of February last, lay the blame of this Invasion upon the Parliament of Scotland: And lastly, That the Earls case is not unlike that of an Ambassador, who is not to be blamed for acting against a State, if he have it in mandatis, as in the case of the Bishop of Ross, in the Reign of Queen Eliz.

By endeavor to give satisfaction to all which, I shall dispatch what I have to say upon this first part of the Plea.

I shall admit it proved, that he had that Commission and Authority mentioned; and also, that the rule is ge­nerally true, That a man is not to be punished for an act which he doth by the necessity of obedience, because he hath nor solutum arbitrium, which is required to de­nominate actions either blame-worthy or excusable; but I shall easily prove, that this Rule is capable of restricti­ons; both by the Rules of Law and Reason, and if we observe the distinctions aright which determine this question, we shall still finde the Earl of Cambridge within that part which renders him inexcusable.

First, The first difference is, where the Action is law­ful, and where unlawful which is commanded: If it be lawful, a Superior command may dispence with some circumstances; but if unlawful, the Servant obeying, is not the less to be blamed: I never held that Law of Ina the Saxon King to be warrantable Divinity, Servus si quid operis patrarit die Dominico ex precepto Domini sui Eiber esto, if the precept it self were unjust.

Now for the Action in question, wherein this Earl was engaged, it is not defended by his own Councel, the dispute being onely de modo, whether he be to be pu­nished [Page 12]as an Enemy, or as Traytor, though if this Ar­gument held, he were neither way to be punished, and therefore certainly the necessity of his obedience is no mitigation for his Crime; and if it should, Empson and Dudley, with all their Monopolizing Successors, had been unjustly censured, who always have had Patents and Commissions from Authority to plead: And so al­so all that catalogue of former Traytors, who have hatched their Treasons and Designs against this State in Forreign parts, and have ever had the Pope or Forreign Princes to put a stamp of Authority and command up­on them, must by this Argument be in some measure justified.

It was never expected from any under command, to write himself more a servant then us [...] ad aras, those be­ing the Hercules's pillars whereon a non plus ultra is writ­ten, and therefore who ever exceeds those bounds, he will finde it to be at his peril.

Secondly, The second difference is, where the instru­ment is inanimatum, and where an Active living instru­ment; of the first it is truly said, Instrumenti nulla vis, all being therein attributed to the principal efficient, but otherwise of the other: From hence the Statute of 1, 2. Phil. and Ma. ca. 10. did justly repeal the Statute of 33 H. 8. c. 20. which had punished a man for Treason, though he became non compos mentis before the execu­tion; and no less justly did 25 Ed. 3. de proditionibus by the word (Imagination) alter in the like point that Law which was in use till then, concerning such a persons com­mitting the act of Treason, such an one being no better then quasi inanimatus: But who can affirm this Earl to be other then an active and vigorous instrument, non modo vivit sed in senatum venit, being a chief Member of that Parliament, under whose command he would shel­ter [Page 13]himself, and by that means is a Master rather then a Servant, and so met with by that Declaration of the Parliament of this Kingdom, of which he would have made an Argument for himself.

Thirdly, Where there is necessitas culpabilis, the Law will not excuse, as it will where there is no crime in con­tracting the necessity: Those who in former times gave victuals and provision to Sir John Oldcastle, were not punished as Traytors, because they did it (say our Re­cords) Pro timore Mortis, & recesserunt quam citò po­tuerunt, 3 Inst. 10. and upon this reason seems that opi­nion of Tremayle to be grounded in 21 H. 7.39. That a Servant may justifie the killing of another, to save his Masters life, if he cannot otherwise escape.

But if one being drunk commits a crime, though he hath not properly and immediately the free exercise of his will, yet the Law reputes him voluntarius Daemon, and he is not at all the less excusable by our Law, 1 Inst. 247. 4 li. Beverleys Case; and by the Philosophers Rule, such a one doth ignorans, not per ignorantiam agere, and is therein so far from being excused, that he is therefore to be doubly punished.

Now to assume, that whereby the Earls Councel would excuse him; viz. His Oath and Commission, renders him the less excusable, because both are strong Arguments of a free and full consent; for who can imagine them of Scotland to be such mean Statists, as to think that Oath equally obliging, which was com­pulsive, to the same, if freely taken; or that that Gene­ral should be trusted with a Commission over all their Forces both by Sea and Land, as his Commission runs, whose heart as well as hand had not imbraced it; and truly, they that have heard his Letters read to Sir Mar­maduke Langdale, wherein he prays for the increase of [Page 14]the distractions at London, and for his friends at Col­chester, would not judge him an unwilling instrument, but one exceeding, rather then falling short in executing his Commission.

Lastly, Necessity of obedience may excuse in privatis, but never in publicis: If a Feme covert together with her husband, commit an act which in another would amount to felony, yet in her it shall not, because sub potestate viri, 27 Ass. p. 40. but otherwise the Law is in point of Treason, & so is the judgement of my Lord Verulam, Nes valet privilegium (saith he) contra rem-publicam. And as to the case of an Ambassador urged on the other side, and in particular of the Bishop of Ross in the days of Queen Elizabeth, I answer, first, The priviledges of those who are entertained as Ambassadors, are very great, and not to be made presidents or assum'd by any other, whence Proregis Dedecus redundat in regem, and there­fore before 25 Ed. 3. it was Treason to kil an Ambassador, 22 Ass. p. 48. and from hence might arise that priviledge shewed to the Bishop of Ross. Secondly, It appears to be rather an Act of Grace then of Justice, that, that Bi­shop was freed, because he was set at liberty after a long imprisonment, which if not lyable to the censure of the Law, he should not at all in Justice have endured: Also by the judgement of my Lord Bacon, cited by the learn­ed Doctor on the other side, in point of conspiracy against the State, even an Ambassador is not priviledged; yet of this Bishop learned Cambden saith in his Eliz. Fuit libe­ratus que rebellioni clam faces subjecerat, all which were Arguments of Grace, and therefore that case will be no president for this, wherein also conspiracies and cor­respondencies, with many of this Nation have been proved, and are otherwise notorious.

And for that inevitable labyrinth out of which the [Page 15]Earl of Cambridge cannot extricate himself, but that whether obey or not obey, he is under a mischief, he may for that thank himself, volenti non fit injuria, this is like the plague of an Erroneous Conscience, which whether obeyed or not, proves a tormentor to its sub­ject.

Secondly, The second part of the Earls Plea is, That he is no Englishman, notwithstanding the Naturaliza­tion of his Father; which in effect is as much as to say, and so it hath been insisted on, He is by birth a Scots man, and by consequence an Alien to, and not tryable as a Traytor by, the Laws of England: Concerning the handling of which question, it being that whereupon the validity of the other two doth in my judgement principally depend, I shall first answer the material Ob­jections which I conceive, made by the Councel on the other side, before I offer any thing positively to assert the invalidity of this part of the Plea.

Obj. It hath been said, The proof is not clear, for the Earl of Cambridge his being a Postnatus; viz. One born after King James his Access to the Crown of Eng­land, and that being but a non liquet, in favorem vitae, the most favorable construction is to be taken for the Pri­soner.

First, Answ. I deny that the proof amounts to no more in this particular then a non liquet, for there is one positive witness that speaks directly to the Earls birth, after King James his coming to the Crown of England; another speaks to the Earls own confession, of being about two or three and forty years of age, which speaks him born since that time; and a third speaks to the common report of his being born since; and if the proof were but semiplena probatia; yet as Bracton saith, That amounts to a presumption; and, saith he, Presum­ptioni [Page 16]stabitur donec probetur in contrerium, especially when the Earl himself, who should have proved the con­trary for the making good his Plea, hath offered nothing against it, and being asked, never absolutely deny­ed it.

Secondly, I do agree, that what the Jewish Expo­sitors observe in the Exposition of their Laws, which sounded in favor, is to be observed in our Law, in those things which we usually say the Law favors; viz. Fa­vores sunt ampliandi, and that strict Expositions are one­ly for penal Rules, according to that of the Civilians, Constitutio penalis non excedit casum, yet we shall finde; that where the penalty of a penal Law is against one or few persons, and the benefit redounds to the generality, in that case even a penal Statute shall be taken largely against the Offendor, so the Rule is put Plow. Com. 36. Plats Case, where it is resolved, though the Statute of 1 R. 2. c. 12. give an Action of escape against the Gar­den of the Fleet; yet for the reason abovesaid, it is, though a penal Law, by a benign interpretation, to ex­tend to the Sheriff of London; and in like maner if there were any latitude in Cases of Treason and Murther (as there is not) yet to extend it on the behalf of the Pri­soners, might prove to many thousands, Crudelis mise­recordia.

Thirdly, Adde to this, that the Law of England is so tender of the Publique Weal, that though in other Cases it may seem to insist too much upon formalities, yet herein it will dispence sometimes with its most cer­tain Rules: Hence it is, that if one pass over anothers Land without his consent, to fetch a Falcon, or the like, he may be punished as a Trespasser; but not so, if to hunt or kill a Fox or an Otter (which instances, I sup­pose, not unsuitable to the Prisoner) because these [Page 17]are Creatures contra bonum Publicum, which reason the Book gives of the Law in that Case, 12 H. 8.10. for the same reason, no man shall be punished as a Trespasser for erecting Bulwarks on anothers Land, Dyer 36. Male­verers Case: And hence certainly was the reason of that ancient Law, That Capital Offenders who had trans­gressed against the Law, had Lupina Capita, and might therefore by the Justice of Lex talionis, arteperire suâ; wherein the Law followed Naturae ordinem: The rules of nature are most constant, yet for the preservation of the whole, it will sometimes contradict it self, as to prevent a vacuum and the like, what an inversion do we see of natures most constant and ordinary Rules: Do not they then in this prove somewhat unnatural, and imbrace a cloud in stead of substance, that fear not to omit the weightiest things of the Law, rather then in cases of invincible necessity, dispence with some formalities?

Obj. But though the Earl of Cambridge were a Postnatus, yet he is quasi Ligeus acquisitus unto Eng­land; and if so, as his Allegiance began with an Act of the Nation, so it might determine by an Act of the same Power, to wit, by Command from the Parliament of Scotland.

First, Answ. The strength of this Objection, if admitted, would, as I conceive, by a new invented di­stinction, overthrow the learned and solemn resolution of all the Judges and Chancellor of England, 6 Jac. in Calvins Case, wherein all Allegiances that the wits of men could imagine are enumerated, and they are but four; viz. Ligeantia Naturalis, Acquisita, Localis, and Legalis; and by the Judgement of that Case, Ro­bert Calvin, Son and Heir to James Lord Calvin of Colcross in Scotland, born three years after King James his access to the Crown (as also all other so born) were [Page 18]adjudged Subjects of this Kingdom of England Lige­antiâ Naturali, by the best and highest Allegiance, with­out any quasi at all, in the same kinde, and to all intents and purposes that any natural born Englishman was.

Secondly, The Objection seems to me, not onely to be against the Judgement of this Case, but against rea­son also; for what acquisition is there by the party, or what contributes he to it, whether he be born in this or that time or place; the conceit, that there is any act of the party's in this (as there must be to make a quasi Lige­us acquisitus) seems to savor of the Pythagorean Me­tempsucosis, or that opinion of Plato, who held a pre­existence of Souls, which after came into the bodies, tanquam in ergastula.

Obj. It is inconsistent to have two natural Allegiances to two several Kingdoms, as it is impossible to have two Fathers, in which Case major relatio trahet ad se mi­norem, and in that case the Earl is rather to be reputed a Subject of Scotland where he was born, then of Eng­land.

First, Answ. It is indeed inconsistent that the same person should in two several Kingdoms have two origi­nal Allegiances, in a physical acceptation, to wit, to be so born; yet by construction of Law, he that is born in Scotland, may have an Allegiance to England, equi­valent with the other; thus Calvin by the resolution of that Case was Scotus patriâ, and Anglus privi­legio.

And thus without any contradiction, it was ever held for Law, That the Natives of Gascoign and Aquitain, and those other countreys which were Geographically out of England, were yet in construction of Law, equally Denizens and Subjects of England with those born here, in regard of one Allegiance and Protection [Page 19]wherein they were equally involved, 27 Ass. Pl. 48.

Secondly, No Allegiance which gains the name of alta & Naturalis Ligeantia, can by the Common Law of England be devested, though otherwise it may be by the Civil Laws, there being no magis and minus that its capable of, which the Objection would suppose; and the truth is, The resolution of Calvins Case, answers all the suppositions of any future contingencies, and po­sitively resolves, That this Allegiance cannot possibly be lost by any matter ex post facto, no, not by difference of discents and Governments, 7 Li. 27. and what is agreed to be inherent to a natural born Englishman, be­longs also to a Postnatus, non potest patriam in quo natus est exuere, nec Ligeantiae Debitum ejurare, 1 Inst. 129.

Thirdly, And for the inconsistences of Allegiancies that the objection seems to insinuate, in the case of Com­petition between the Kingdoms, Bracton hath met with that supposal long since, Li. de. exeptionibus 427. speak­ing of one that is ad fidem utrins (que) Regis, si contingat gu­erram accidere inter Regna, putting the case of one born in France, and Indenized in England, Remaneat per­sonaliter cum eo cui Ligeantiam fecerit, & faciat servi­tium debitum ei cum quo non steterit in personâ.

Obj. Though the Earl of Cambridge were a Postnatus, yet as this Case is, it makes him not to differ from an Alien, because the Kingdoms of England and Scotland were at the time of this Invasion divided, and there were then several Administrations of their powers, from whence a double Allegiance is to be considered, Regis & Regni.

First. Ans. If we look upon the judicial powers of the Kingdoms in a Legal consideration, even at the time mentioned in the Objection, besides the Union of the Kingdoms made by force of 1 Jac. cap. 1. we shall finde [Page 20]as strong Stipulations and Engagements by Treaties confirmed by Parliament and otherwise, betwixt the Nations, as were possibly to be made, none of which were repealed at the time of this expedition, and so far from that, that the Earl himself hath often at the Bar profest, That neither his coming nor Commission were against the Parliament or Kingdom of England; How then were the powers of these Nations so legally or ju­dicially different?

Secondly, The Union of the Laws and Governments of these Nations, was a thing desired and endeavored by some, as may appear by the latter part of the Statute of 4 Jac. cap. 1. but it was not effected; therefore the distinction of the Kingdoms was taken into considera­tion in Calvins Case, where (Regna) was one of the Nomina operativa, and granted, That though the King­doms, Laws, and Nobilities of the Nations of England and Scotland were several and distinct, yet the Allegiance of all born in either Nation after the union, was one and the same; and the pleading of that case (which best de­notes the Law) demonstrates this, That such distinction of the Kingdoms was under consideration; for the pleading was, That Calvin was born extra Ligeantiam Regni Regis Angliae, and infra Ligeantiam Regni Regis Scotia; and the learned Chancellor of that time saith in his Postnati, that the judgement was, That neither Calvin, nor any other Postnati, were Aliens to the King or Kingdom of England.

Thirdly, It is agreed on the other side, That there was always one Ligeantia Regis; and therefore even thence I do infer, that there was also one Ligeantia Reg­ni, because that Allegiance which was due to the King, was certainly due to him in his politique capacity, though not to that onely, or divided in the Subject from [Page 21]his natural capacity; however it may be said neverthe­less, as it is in Calvins Case (by a community of pro­perties) that it was due to the natural capacity also, viz. As it ought ever to be accompanied with the politique, thence it was but just in the Parliament, notwithstand­ing the Kings Personal Command and Opposition a­gainst them, yet to permit the taking of the Oath of Allegiance, and not to abolish it till after his death, it being ad Legem Ligatio, yet the person was so necessary, that without it, it had been ridiculous to administer it in the form it was, in which case majus dignum trabit ad se minus; and hence it was, that capital crimes committed in one Kings time, might be proceeded against after the death of that King 3 Ed. 3. Fitz. Reattachment 18. & Bro. Corone, 178. If the King had purchased Land to him and his Heirs, though the word (Successors) the word of his politique capacity, had not been mentioned, yet he was feised thereof in jure Coronae, 43 Ed. 3.20. And if Land had been given to the King and another, and their Heirs, they had for the same reason been Tenants in Common, and not Joynt-Tenants, Com. 239. for the same reason: And though many of those persons who have been Kings, have often oppressed, in stead of pre­served their Subjects; yet still that which Bracton hath said upon the same ground, remains true of the Regal Power, Non aliud Rex potest quam quod de jure potest, his Office still being Ex Officio, as 2 Li. Coo. Wisemans Case saith, and Fitz. na. bre. 113. out of the Register, to provide for the preservation of his People; and if any other construction should be made, then it must have followed in the Kings Personal absence, minority, or disability, the Kingdom must either have been but weak­ly, or not at all govern'd; from all which it may be in­ferr'd, That the Obligation and Allegiance which was [Page 22]owing to the King, did include, that which Savo sens [...] was the Kingdoms also.

It remains now, that somewhat be spoken for the fur­ther invalidating of this part of the Plea, wherein I shall

First prove, That one born in Scotland after the Union of the Crowns, cannot be to any purpose considered as an Alien to England.

Secondly, That though the Earl of Cambridge had been born before the Union, yet he had not been an Alien to England; partly from a National considerati­on, but more principally from personal considerations; viz. first, By reason of his Local Allegiance both in Scotland and England. Secondly, Ligeantiâ acquisitâ, and that by the Naturalization of his Father, or his own Denization.

Thirdly, That though he had been an Alien, yet as this case is upon the proofs, he will prove tryable for Treason by the Laws of this Kingdom.

Before I speak of any of these, I might touch upon that part which layeth Murther to the charge of this Earl; it having been fully proved, That several persons by name, amongst many others, were slain and mur­thered by the Scotish Army; and to make him punish­able for this Crime, there is no need of denization, it being an offence in it self against the Law of God and Nations, and we trust, requisite to be an ingredient to it, as is required in Treason: Hence we finde Rape pu­nishable in England, committed by a Scot, 13 Eliz. Dyer 304. and Murther done by the Lord Zanchar of the same Nation, 9 Li. Coo. 116. where we finde him in­dicted by the Name of Robert Creighton Esq which together with the express Authority of 11 E. 3. Fitz. bre. 473. are (by the way) sufficient warrants for our charging the Prisoner by the Name of James Earl of Cambridge, [Page 23]without mentioning his Dukedom, as he hath often in­timated we should have done.

And if the Earl should say, He kill'd not these persons himself, his Councel can soon tell him, That's not ma­terial, the Law being, That if divers persons come to do an unlawful act, and one commit a Murther or Trea­son, its so in all, 1 Mar. Dyer 38. 13 H. 4.13. 19 Ed. 2 Fitz. Cor. 433. But the truth is, I shall not rely upon this, being not willing so high an offence should pass under any other name then that of Treason; therefore I pass to those aforementioned considerations, which will evince his Crime to be no less then Treason.

1. As to the first of these, there being so much said in the Argument of Calvins Case, I shall omit the citing of any thing particularly from thence, and select some­thing from the Statutes made shortly after the Union. Its agreed by all Historians, That these two King­doms were anciently but one, Divisos orbe Britannos, & sabducta Britannia mundo; thence its observa­ble, That in the Preface of 1 Jac. cap. 1. by the access of the King of Scotland to this Kingdom; the Parliament speaking of the Union, correct themselves in these words, or rather a reuniting of these two Nati­ons (though anciently but one;) if so, this reunion a­mounted to no less then (as it were) a National remitter of the ancient Union.

For the settlement of this Union, Commissioners were chosen to compose some differences betwixt the Nati­ons, and to consider what was fit and necessary to be done for the Commonweal of both Kingdoms, 1 Jac. cap. 2. These Commissioners consult long about it, and because they could not perfect it within the time prefixt, an Act passeth for longer time, 3 Jac. cap. 3.

At length the work is finisht by the Statute of 4 Jaco. [Page 24]cap. 1. by which all Statutes that express or imply any strangeness of the one Nation to the other are repealed; and moreover, it doth Enact and say, That if there had appeared any other Statutes of this Realm of England, wherein any thing is Ordained, Enacted and Established expresly, and by name, against the Scotish as Enemies, or Scotland as an Enemy Countrey to the King of this Realm, or the State of the same, we should for so much of them as concerneth Scottish men or Scotland, have utterly abrogated and adnulled the same, seeing all En­mity and Hostility of former times between the two King­doms and People is now happily taken away. So the Sta­tute. After which it seems as strange, that any born in Scotland, after, and during the continuance of that Union, should make themselves strangers to England; as if natural born English men should have made the same allegation.

In the aforesaid Statute of 4 Jac. 1. there is a clause, That no Scotishman coming into England to prosecute the Law against any Englishman, offending in Scotland, is to be arrested here, except for Treason and Murther; and in the latter end of the Act, amongst other things, it is Enacted, That if any Englishman should commit Treason or other Crimes in Scotland, and come into England, he should not upon his apprehension here be sent into Scot­land to have his Tryal there, but be tryed where he is taken; but the Statute of 7 Jac. c. 1. which was the year after the resolution in Calvins Case, repealed that clause of 4 Jac. 1. last mentioned, as to all of­fences but Treason, leaving the offendors in that kinde to be tryed in the Kingdom where they were appre­hended; and though the Statute speak onely of Eng­lish, yet the like Act was to pass in Scotland, in case any of that Nation committed Treason here, else neither was to be binding to the Nations.

[Page 25] 2. In the next place, somewhat may be said from a National Consideration to prove the Earl no alien here, though born before the Union, not that my purpose is to endeavor the revival of that ancient homage done formerly by that Kingdom to this, it is not worth the mentioning, in comparison of that love and those en­gagements which have been betwixt us, Gens una sum­mus, was heretofore said of us, and if it may be, I wish, Sic simus in aevum; but because somewhat hath been on the other side cited from the stories of Bruce and Baliol, in the days of Edward 1. and for that I finde both Law and History afford some matter for this Argu­ment; I hold it my duty not to be altogether silent in what passed in those times and since: I will not insist up-those several Appeals made by Magdolphus and others of the Scotish Nation to Ed. 1. contra custodes Scotiae, and against the Kings of Scotland themselves, all Ar­guments of allegiance then acknowledged from that Kingdom to this.

But to instance in some Presidents neerer to this in question, Simon Frysel, in 34 Ed. 1. anno 1306. a Native of Scotland, came in an hostile manner from that Kingdom to invade this, and being apprehended here, he was condemned as a Traytor; the words of Math. West, 456. concerning him, are, That he was a turri Londinensi per plateas distractus ut proditor.

In the same year of Ed. 1. William Wallis the Com­mander in chief of the Scotish Forces, and a Native of that Nation also, as the Prisoner was, came into this Kingdom, and being apprehended, was, saith Walfingham fol. 61. Londonias usque ductus & judicialitèr condemnatus, trahitur, suspenditur, & ultimò decollatur, though he pleaded, as our Historians tell us, what this Earl doth. That he was a Subject of Scotland, and not of this King­dom, [Page 26]and therfore ought not to be tried here for Treason. In 42 Ed. 3.3. in the Lord Beaumonts case, when it was replyed that the party, objected against to be an Alien, was a Scots man, the plea is no longer insisted upon. A protection quia profecturus lies not into a Country that is within the allegiance and protection of England, 7 H. 4.14. yet we shall finde the only rea­son given, wherefore it was granted into Scotland, was, because of the Wars that were then betwixt the Nati­ons, 7 Ed. 4.27. After the ceasing of which Wars, it may be collected by the book, a protection would have lien no more thither, then it would have lien into Wales or Ireland.

In 13, 14. Eliz. Dyer. 304. one was arraigned for a Rape, at the return of the venire facias to try him, he pleaded that he was a Scots man, and desired a medic­tate linguae, which manner of Tryal is granted to Aliens by the Statutes of 27, & 28 Ed. 3. but by the judgment of the Judges of both Benches it was denyed him, for this reason amongst others, because, saith the Book, a Scots man was never here reputed for an Alien, but rather a Subject.

Object. Whereas it hath been said, This was because the Statutes of 27, & 28 Ed. 3. were made when Scots men were generally reputed Subjects to this King­dom.

Ans. I answer, That the Book gives no such reason. Secondly, To affirm this, is to suppose the Iudges, by such a Forreign conceipt, to go against the express provision of two Acts of Parliament, and the constant practise in pursuance thereof.

In the same year of 13 Eliz. in the case of the Duke of Norfolk, the evidence of the Bishop of Ross, a Scots man, was offered against the Duke by the Councel for the [Page 27]Commonwealth, which the Duke opposed from the judgment of Bracton, That a Forreigners testimony was not in that case to be received; but Cataline chief Justice, though he says nothing to Bractons opinion touching exterorum testimonium, yet he gives the rule of the Court, that the testimony was to be received, Cambdens, Eliz. 214.

After this time also the Queen of Scots was tryed in this Kingdom, though not upon the Statute of 25. Ed. 3. yet upon the Statute of 27. Eliz. cap. 2. then in force; And though in the proceedings of that business Com­missioners of both Nations met, and that the Scots Commissioners did protest, that though they did joyn with our Commissioners, yet they did thereby make no acknowledgment, that they were other, then a For­reign Nation to this: yet the English men protested a­gainst that Protestation, as we finde in the history of that Queen.

3. But to pass from this National to a more Personal Consideration, and from thence (though he were an Antenatus) to prove the Earl liable to punishment for Treason against this State, and that by a local allegi­ance, both in Scotland and England; wherein it must be granted as a principle, and cannot be denyed, but that if an Alien come into this Nation, and there abide, and commit that act which would always be Treason in an English Subject, it is by the Law Treason in him during that abode, because he oweth localem ligeantiam, and the indictment against him shall say Contra ligean­tiae suae debitum, 7. li. Calvins Case. Thus in 36 Eliz. 2. the Portugals here in England joyn in an Act of Treason with Doctor Loper, and it was adjudged Trea­son in all. Thus this Earl, though he had been born be­fore the Union, yet he lived in Scotland after the Uni­on, [Page 28]and at the very time of this Invasion, whereby he became a Subject, at least locali ligeanti [...].

So in England also, not onely by his former residence here, which he will say perhaps was avoyded by his re­moval hence, but by his late coming in, he became Li­gens here locali Ligeantiâ, because he came from a King­dom then, by his own confession, in amity with this. This was the case of Sherley a Frenchman, 4 Mar. who came from France, then in amity with England, and be­ing taken, levying War in an hostile manner, was in­dicted and executed as a Traytor, Dyer. 144. and as the book puts it, 7. li. Calvins Case, if he had had issue here that issue should have inherited.

4. In the next place, I shall prove the Earl of Cam­bridge (though he had been an antenatus) to be a Subject of England Ligeantiâ acquisitâ, and that by the natu­ralization of his Father or by his own denization, but first as to the naturalization of his Father.

1. The Act of Parliament hath been read and proved whereby the Father of this Earl by the name of James Marquess of Hamilton, Earl of Cambridge, in 21 Jac. was naturalized to be to all intents and purposes a Sub­ect of this Nation, as if he had been here born, with a further clause, that his heirs might inherit and pur­chase any Lands, Tenements, &c. By which Act it clear­ly appear that this Earl is naturalized also. For, 1. Though in the case of a denization, there may need the word Heir, to extend it to them, because it goes as it is limited, it may be for life, in tayl, or upon condition, 9 Ed. 4.7. yet its repugnant to suppose, that, in point of a naturalization, because he that is born in England, as by relation this makes him, without any other ex­pressions, conveys the right to his heirs: Hence Natu­ralization is never temporanea though data 1. Jnst. 129.2. [Page 29]Here are not wanting words neither that reach to the heirs, if necessary; for the Act is, That his Heirs may in­herit and purchase, &c. And in pursuance hereof its no­torious, that this Earl hath done both; But we shall finde, that oftentimes no more goes to express a Natura­lization then this: No other expression is used to im­port the priviledg of being English to them that are born of English Parents beyond Sea, but onely that they may have and freely bear the inheritance within the same allegiance as other inheritors, 25 Ed. 3. de natis ul­tra Mare. And in 3 H. 6.55. Hall and his wise brought a Writ of Dover, the Tenant pleaded that the Feme was an alien, the Demandants reply, that the Feme in the time of H. 4. was inabled by Act of Parli­ament to purchase Lands & Tenements, &c. with which Reply the Defendants Counsel rested satisfied, as if the Replication expressed it sufficiently that she was natu­ralized, and thereupon demanded view.

Object. But it hath been objected, That this Act can have no other effect, then if the now Earls Father had been born in England; and though he were a Native English-man, yet having issue, this Earl, by a Native Scots-woman in Scotland, the issue thereby remains an Alien though his Father were Naturalized or born in England.

1 Ans. I shall easily grant, both that this Earl was so born in Scotland, and that the Naturalization amounts to no more then if the old Earl had been born in England, but do deny the inference drawn from thence, That ther­fore the now Earl must be an Alien. For though in for­mer times some Controversie hath been touching this question, viz. Whether the issue of an English man, going out of the Kingdom, born of an alien woman, shall be a Subject of England, or no? Yet I take the [Page 30]Law to be clear at this day, that such issue is a Subject of England.

By the common Law, if Father and Mother, both English, have issue beyond sea, that issue is English, 1 R. 3.4. the Statute of 25 Ed. 3. de natis ultra mare, being declarative of the common Law, 42 Ed. 3. cap. 10. and if the reason and practice of the Law be exami­ned we shall finde it to be the same, where the father only is English, for these Reasons.

First, Because at this day any person may go from this Kingdom to another without license, though he be neither Nobleman, Merchant, or Soldier, except some re­straint by a ne exeat regnum, Proclamation, or other Act of State be against him, so is it resolved, 12, 13 Eliz. Dyer. 296. And though all, except persons so qualified, were restrained by 5 R. 2. cap. 2. yet that Statute is repealed by the Statute of 4 Jac. c. 1. made principally in refe­rence to Scotland; Therefore however the Law may be as to such as go when prohibited, or who stay beyond Sea when commanded to return; yet as to all others at this day, and always as to Noblemen, as the father of this Earl was, upon whom no restraint was ever put by Common or Statute Law, certainly the Law is other­wise, especially when the removal is to a Country in a­mity, as Scotland was.

Secondly, Partus sequitur semen by the Common Law, therefore in 4 Ed. 4.25. Statham villenage 9. if a free man marry a wife, and have issue, that issue is free; but otherwise, if the man had been villain and the woman free.

Thirdly, The woman alien by the marriage is indeni­zed, and the issue then must needs partake of the privi­ledg, and it appears by 26 Ed. 1. rot. Parl. 1. that when Edmond, the brother of Ed. 1. who marryed the Queen [Page 31]of Navar, dyed, all the Judges resolved, she should be en­ed; and what though she should not, as in other cases it hath been doubted; Yet that hinders not, but during co­verture she was endenized, and thats enough to endenize the issue. If a wife marry a free man, it is and hath been a doubt, whether this be a perpetual infranchisement to the woman after the death of her Baron, but it never was doubted, but that both her self, during coverture, and her issue ever after were infranchised, Lit. sect. 187. 1 Instit. 136.

And for express authority in the point in hand, be­sides the ancient authority of, Abridg. Ass. 39. tit. Bastard. 7. and Bro. Denizen 21. it was the Judg­ment of all the Judges of England, 2 Ca. in the Dut­chy Chamber, betwixt the King and Eaton, usually called Stephensons Case, the Record whereof is ready to be produced, where Judg Yelverton and Harvey, then Judges Assistants to that Court, declared it to be their judgments, as also of all the other Judges, That the two Sons of Stephenson, born beyond Sea upon the body of an Alien, were Denizens.

Object. I observed but one book cited for maintenance of the contrary opinion, and that was 26 H. 6. where indeed it is 22 H. 6.38.

Ans. Which Authority is against, not for that opi­nion for which it is cited; for in an Action there brought, the Defendant pleads, that the Plaintiffs an­cestor, in the time of H. 4. went beyond Sea without Licence, and there bad issue the Plaintiff: upon this plea, Arderne the Plaintiffs Councel demurs; but saith the book, Prisot the Defendants Councel durst not demur.

Secondly, If the book were as it is supposed, yet it makes nothing against the Law at this day, because by [Page 32]the Book it appears, that the Plaintiffs ancestor went be­yond Sea, in the time of H. 4. without licence, which being after R. 2. there was a restraint upon him, except by licence, or qualified as that Statute of R. 2. requires, which Restraint is now abrogated as is before said; and the Inhabitants of England, as is suitable to all Islanders, may travel at pleasure, except especially forbidden; and so whatever the Law was then, its otherwise now, mutataratione legis mutatur lex.

Object. What if the present Earl did himself endea­vor, or, as he saith, was advised, notwithstanding the Naturalization of of his Father, to procure himself to be Naturalized, or indenized.

Ans. Yet that could be but in majorem caut [...]lam; as some savings have been inserted into Acts of Parlia­ment themselves, not for necessity, but for satisfaction of the Lay Gent. as our books express it, 1. li. C [...]. 24. Plow. Com. 379. upon the Statute of 5 Ed. 6. and even in that case of Stephenson, though the Iudges assist­ants delivered what was their own opinions and of the rest of the Iudges, yet if making the party a Denizen would end the controversie, they did advise it.

Fifthly, Besides this purchase of his Fathers, the Earl hath himself contributed to his own Denization, not so much by inheriting his Fathers dignity, and purcha­sing and enjoying himself Lands in England, that be­ing rather an evidence of what he formerly was, then making him what he was not before; but by the Writ of summons sent to this Earl himself, 15 Car. The Re­cord whereof hath been read, commanding him ex fide & ligeantia su [...], to appear in Parliament as a Peer of this Realm, who accordingly did appear, and acted in this Parliament, being chosen of several Committees in the Lords House, to consider of many things of great [Page 33]concernment, some whereof were for the strength of the Nation, as hath been fully proved by the Records of the Lords House; all which actions are so inconsistent with his being an alien, and would be such a solecism in State to admit an alien to be invested amongst others with a judicial power, that rather then it should be admitted, all this layd together will (I conceive) amount to, at least, a Denization.

I will not say that the granting of every office, or the being employed in any transaction, which concerns the Law or Government of the Kingdom, will make an Alien a Denizen; the books of 9 Ed. 4.1. and 14 H. 4.19. forbid me to say so, but it's another thing to have a judicial power in Parliament, and to sit by virtue of such summons in the Parliament of England: The Lord De-la Ware was disabled to sit in the House of Peers du­ring his life; but he dying, and a Writ of Summons coming to his Son, he was by vertue thereof enabled, not onely to sit, but to enjoy that place which his An­cestors formerly had done, 11 li. Coo. 1. and in 39. Ed. 3.29. Umfravil Earl of Angos ought to be named Earl in the Writ against him, because by that name he was summoned to the Parliament, and for not naming him so, the Writ abated; A Denization is a kinde of a Na­tional Manumission: Now as there is in Law an express infranchisement of a Villain, and an infranchisement in Law, Lit. sect. 205. So it may be said of Denizati­ons. And amongst other Manumissions by Act in Law, I finde in Britton, fol. 79. & 82. if a Villain were made a Knight, this did make him free rations dignitatis, and did not make the conferring of that dignity to be a voyd act, paralel whereunto is the case in hand.

Sixthly, The last thing I shall insist upon, touching this second part of the plea, is to make it appear, that [Page 34]though the Earl had been born before the Union, and an Alien, that yet there are other circumstances in this case yet remaining, which will clearly make this Act of his to amount to no less then Treason, viz. His coming from a Kingdom in amity with this, and his marching in hither with English Traytors; That he marcht in and held correspondency with Sir Marma­duke Langdale and his son, and with Sir Thomas Glen­ham, and divers others, hath been fully proved; And that that Kingdom was then in amity with this, besides the National Treaties and Engagements unrepealed, it appears as well by the Earls own confessions at the Bar, as by the words of the Scotish Declaration made upon this expedition, read at the Earls own request, which, what ever it be, doth yet conclude this Earl and all his party from alledging the contrary for their advantage, it having been often reiterated by him; and also there­in said, That this expedition was neither against the Parliament nor People of England; besides, that it is no sleight matter to make Nations in amity to become open Enemies in a legal construction, which we are now upon, as appears by the book of 19 Ed. 4.6.

Now that these Circumstances will make this Act reach to Treason, appears by these Authorities of Law. In the days of Queen Mary, France and England were in amity, Sherley, a French Native, during that amity, joyns himself with some English Traytors, Sher­ley is apprehended and indicted as a Traytor contra lige­antiae suae debitum, 4 Mar. Dyer. 144. which is confir­med for good Law likewise, 7 li. in Calvins Case by all the Judges, with which agrees Brook. Treason. 32. and Crompton Jurisdiction of Courts 72. and Mr Justice Dallisons Reports 3, 4. Mar. All which Authorities agree in this difference, That if Alien Enemies joyn [Page 35]with English Rebels, and be apprehended, the Aliens shall be tryed by Martial Law, or ransom'd; but if Alien amies so joyn, its Treason in all; and 'tis observ­able that the case is put cautelously, in H. 4. and so a­bridg'd by Bro [...]. Treason. 1. That where Alien Enemies joyn with English, the Aliens shall be tryed by Mar­tial Law, and the English as Traytors.

Object. The Objection hath been made, and so far it seems the Law is agreed, That if Aliens fight under the banner of English, that this may be Treason in all, but not if the English fight under the command of Ali­ens, which is alledged to be the case in hand.

Ans. First, I cannot safely admit that which the ob­jection takes for granted, that the English were the Auxiliaries, and the Scots the principals in this act, when I finde it in the proof offered by the Earl himself, that he came in by the invitation of their friends in Eng­land, and when I remember what was designed and pro­duced in the South of England before and at the same time with this expedition. 2. But admit it to be other­wise, yet if this difference were material, then it should follow likewise, That if Alien enemies did fight under an English Command, it should be Treason in all, but it is not so.

3. The Law makes no such difference, nay the very ob­jection seems to be made and answered, 4. Mar. Dyer. 144. for the book saith, that though Sherley were an A­lien, yet hoc non refort tempore pacis inter Anglos et Galles, the weight is layd upon tempus pacic onely.

4. The true reason of the Law in one case is the same in both, which I conceive to be from the detestation of conspiring with an inward secret enemy, and from the trust the Law reposeth in such as are of a Country in amity. There is no Treason, but where there is a Trust, [Page 36]hence anciently Treason, in its genuine and original ac­ceptation, was onely and properly amongst allyes and friends, who mutually did repose confidence in each o­ther, as may be seen in the Mirror, f. 30. and 201. And that a greater trust was placed in Aliens amies, then in others, appears in that our Law allows not onely Traf­fique and Commerce with them, but also allows them to be to some purposes Denizens, namely as to the bringing personal actions, which if they bring, it shall not be allowed to plead that the Plaintiffs are Aliens, 19 Ed. 4, 6. & 6 H. 8. Dy. 2.

Object. But the Earl hath objected, that upon the Scotish Forces coming in under his Command, they of that Nation were by the House of Commons voted e­nemies, and those of this Kingdom, who adhered to them, Traytors.

Ans. 1. The words of that Vote seem to be exclusive of the Prisoner, mentioning only those under his Com­mand. 2. Though every enemy in the legal significa­tion of the word, be not a Traytor, yet every Traytor is an enemy, and therefore if now he be proved a Tray­tor, he may be well enough an Enemy within that Vote; The present Charge against him is a Charge of High Treason, yet the conclusion doth not improperly pray Judgment against him both as a Traytor and publique Enemy. 3. Take the words in the strictest sence, and the Vore onely names those of the Scotish Nation Ene­mies, but those of this Kingdom Traytors; Now the labor hath been, and I suppose it clear that the Earl himself is of this Nation, and so a Traytor by that Vote from which he would derive an Argument for himself. 4. If yet any other construction should be made, Leges posteriores priores abrogant, he is, by the Act whereby this Court now sits, ordered to be tryed for Treason in [Page 37]the same kinde as the rest, who are now under question; and if his fact be Treason, it will easily follow by an ar­gument of a denominatis, that he is a Traytor.

3. The third part of the Earl of Cambridg his Plea is, That he is a prisoner of War, and rendred upon Arti­cles, and that those capitulations were made before his Rendition with Major General Lamberts Commissi­oners.

That there were Articles, and he a prisoner of War, I shall agree to be prov'd, as also that one of those Arti­cles was, That he should have quarter, and have his life assured, and it must be agreed on the other hand, That the Lord Gray, who had equal authority, protested from the first against that Treaty, and after took him prisoner be­fore any assent thereunto: But whether, by the proof, the Earl were not a prisoner before the signing the Ar­ticles, and whether before the Articles were to have any effect, the same were not to be ratified by the Comman­ders in chief, is submitted to judgment upon the evi­dence. That therefore I may do the prisoner right in this point, which he seems to make his strongest asylum, I shall admit that there were such Articles, and wave the relying upon the other Circumstances, which may not seem so clear in proof.

Nevertheless I shall briefly shew my Reasons, where­fore I apprehend no security from the stroke of civil Justice, belongs to the prisoner by this Refuge; for as to the military is not the contention.

First, If these Articles be of avayl, against the Ci­vil Power of the State, they must in effect amount to a pardon or discharge of Treason, (for this point doth take the last point by admittance, viz. that the fact is Trea­son.) Now though the military Power may exempt a prisoner of War from the execution of the Sword, and [Page 38]of their own Power, yet it is not in their power, nor do they assume, or ever challenged such a power, as to ex­empt Delinquents and Traytors from the execution of the Magistrate, for the bringing of whom to condign punishment the Souldier was at first armed, and the war principally begun; and if it should be in the power of one Soldier, it would pari ratione be in the power of all, as wel to spare all as one; and if to grant a pardon of life, then likewise for their livelyhoods; and so the end of the War, and the satisfaction promised, would be in the power of the servants of the State to frustrate; not that the Articles have no effect, for he was by them freed from the immediate execution of the Sword.

Secondly, The pardoning of Treason is a power so inseparable to the supream Power, that by the Autho­rities of Law it is not communicable to any other, in 5 Ed. 4.123. its made a great doubt, and so said to be 1 Bro: Treason. 22. Mercy and Justice being not transferable, 7. li. Co. in the case of Penall Statutes. 9 Ed. 4.2. and 20 H. 7.6. It's true indeed, there was a time when some had gotten this power into their hands, but by the Statute of 27 H. 8. cap. 24. this power was resumed into the supream Power, and there it hath since lodg'd; and however we dispute not what the Parliament may do by express words, as they have done in many Acts and Tenders of Indemnity, yet with­out such expressions, not by any implicite power, nor ex officio, can any justly assume it.

Thirdly, By the Rules of Law no Officer or Mini­ster of State can give away or dispence with the Interest of the Common wealth; if a Customer, who is an Of­cer of State, take a Bond in his own name for the Impor­tation of Bulloigne, he cannot discharge this Bond. 4 Ed. 4.4. and 12. The King was the supream Officer [Page 39]of the Common-wealth, yet if an Indictment of Nu­sance had been preferred against one in his name, it had not been in his power to have discharged this offence, 3 Ed. 3. Fitz. Ass. 445. nor could he for the same Reason by any non obstante dispence with the penalty of any Statute which did concern the Interest of the Com­mon wealth, 12 Jac: Sir Arthur Ingrams Case, and H. 36. Eli: betwixt Hamond and Griffith, in an Inform­ation upon a penal Statute, the Informer dyed, yet the Kings Attorney might proceed. The difference I ap­prehend to be, as to the point in hand, betwixt one try­able by Martial Law meerly, as an Alien enemy is, for such a one being tryable by the Sword, if taken, may be discharged by that power, though in that Case I totally exclude not the legislative Power; but for a Traytor ori­ginally and legally, only tryable by the municipal Laws of a State, to be absolutely discharged by a subordinate power, without the Concurrence or Confirmation of the Magistrate, will ever be strange to me, till I find that Rule overthrown of nil dat quod babe [...], which can never be in a just and moral sence.

Fourthly, However the words sound, the intenti­on and true meaning of the parties was not to free those that were concerned from Justice, if the State required it; and intentions are the best Rules for construction in these cases: That it was intended only in this Treaty to free the prisoner from the present execution of the Sword by Martial Law, and no otherwise, hath been sworn by two of those Gentlemen that were Commissi­oners under Major General Lambert; who have sworn their own intentions: Words, saith Bracton, are but vestiment a rerum, as the body and outward form; the true meaning and intention of parties is the life and soul of every contract: as for sensus leteralis it hath been (I have [Page 40]observed) via regia, but it hath not proved unto that side via tuta: However words found, the exposition must be secundum subjectam materiam. In 41 E. 3.6. if one having divers faculties hath an annuity granted to him pro concilio impenso, the words are general, but it shall be construed for counsel in that art which was intended: And as Brudnel saith, in 14 H. 8.2. Contracts shall be expounded according to the intents of those that did contract. Cicero saith, speaking de justitia, as a Judg, not as an Advocate, fol. 24. to cavil with words against the mind of the parties est calumnia quaedam & malitiosa [...]ur [...] interpretatio; in which place he puts a Case upon a Treaty, as ours is, of one who had made a truce for one hundred and thirty days with his enemy, and taking ad­vantage of the Letter, fell upon his enemy in the night, alledging the truce was only for days, which the Orator derides as meer injustice, and no otherwise may the lit­teral construction, contended for, be in the present Case, except the letter must be observed, or not observed, as it proves advantageous or disadvantageous to the prisoner; besides its usual in Law, That by averments the inten­tions of parties take place where the letter would not so decide the question, as 5 li. Coo. 68. and 21 R. 2: Fitz. devis. 27. Nor do I see, how in the pening those Articles, any other expressions could well have been; if provision had been made, that the prisoner should have been ex­empted from the power of civil Justice, that had been voyd; and if it had been expressed, that nothing was by those Articles intended to exempt him from civil Ju­stice, that had also implyed a power in them, if they had seen cause to have given an absolute discharge from the Magistrate, which had been equally by construction de­rogatory to the civil Power.

Fifthly, If the Earl had ever been de facto par­doned, [Page 41]yet he may seem to have lost the benefit therof by his escape made after a special promise to the Governor with whom he was prisoner; the Civil Law, as Fortes­cue observes, cap. 46. Libertinum ingratum in pristi­nam redigit servitutem, and our Law saith, if one hath committed a capital Crime, and, being pardoned after, do but break the peace, he forfeits the benefit of the par­don. 3 H. 7.7. As Bartue did the benefit of his License to travel, by his resort to the Fugitives, 2 Eli. Dy. 176. And I conceive no difference, whether the condition be expressed or implyed, which I infer not to make the escape Treason, being not so charged, and the Statutes of 2 H. 6. and 14 Eliz. being expired concerning that, but only for this purpose it is enforced, that he who ren­dred himself up a prisoner of War, and had for that consideration quarter granted him, and yet after breaks that which was on his part to be performed, hath there­by deprived himself of that priviledg which otherwise he might have enjoyed.

Object. If now the Prisoner shall be questioned for his life, who by the rendition of himself had quarter given him for it, how is the Consideration made good which did induce him to surrender; besides, there if he had dyed (as the Earl himself said) he had preserved his estate, and avoyded the consequences of Attainder?

Ans. It's strange that it should be thought no privi­ledg to have so much time to dye, in case there were cer­tainty of it, above a death by a military execution, which usually is sudden and sine strepitu Judicii. 2. Is it no priviledg above an immediate death by the Sword, to have a fair judicial proceeding by a Charge against him, putting in his own plea thereunto, the matter of fact by witnesses and other evidence proved on both sides, and Counsel assigned him of his own choyce to ar­gue [Page 42]his Cause in point of Law, and himself to be heard as much as he could speak in his own Defence? 3. And the danger seems by this manner of Tryal not greater then before, for he that dyes a Traytor in [...], because himself is the cause why formalities of legal proceedings against him cannot be observed, by the ancient Law forfeited his estate, and remained attainted notwithstanding, Plowd. Com. 262. Fitz. Dower. 106. where, in a Writ of Dower, the Demandant was bart'd for that her husband went into Scotland, and joyning himself with the enemies, dyed in emnity.

Object. As to the examples of Josuah with the Gibeo­nites, and of the Prophet Elisha forbidding the King of Israel to smite those whom he had taken captive with his Sword and Bow.

Answer. I answer, As to the first, viz. that of Joshua with the Gibeonites; God forbid but that as that, so all other Leagues and Treaties should be kept so far as to bind that power that made them, and who can rationally expect more? Now Josuah was the Successor of Moses, and a Magistrate as well as Commander; Besides, the said the Princes of the Congregation swore unto them, and had these Circumstances been incident to this Case, the dispute had been ended.

1. As to the other instance, the men of Syria had a personal quarrel against Elisha, and therefore none being interested but the Prophet, it might well become his pi­ety to be their Intercessor. 2. For any thing appears. the Prophet only speaks against their being smitten with the Sword of War, which, if it had been drawn in cold blood, might have been the blood of War in Peace but not against the Sword of Civil Justice. 3. These enemies were taken in the midst of Samaria intr [...] praeli [...], and therefore bread and water might well be set [Page 43]before them, that they might eat and go to their masters; but there hath been in this case much blood drawn, and mischief done; for the avenging and satisfaction where­of, Justice cries to them that bear not the Sword in vain.

And now (my Lord) though I might have demand­ed Judgment for want of the Prisoners making good his own plea, which he ought to have done before I had said any thing to the contrary; the plea of being an Alien lying on his part to prove that pleads it, 9 Ed. 4.12. and Dy. 300. And the plea of a Pardon, being a confession of the Fact, if not made out, proves fatal and final also to the party, Stanf: cor. 150. Yet neverthe­less, for that the Prisoner hath not been confined herein to the strict formalities of the Law, I have also, on the behalf of the Commonwealth, taken the priviledg of speaking thus much for asserting the invalidity of his Plea. And therefore, upon the whole matter, having now said what hath prevailed with my judgment to offer in this case, I humbly submit the same to the Judg­ment and Consideration of this Honorable Court.


Reader, Correct with thy pen these following slips.

Page 11. line 10. for endeavor read endeavoring. P. 14. l. 22. for que r. qui. P. 16. l. 19. for Garden r. Gardian. P. 22. l. 1. for sav [...] r. san [...]; l. 28. for we trust r. no trust. P. 27. l. 31. blot out the figure 2. l. 32. for Loper r. Lopez. P. 28. l. 6. for Ligens r. Ligeu [...]. Whare Dover is r. Dower, P. 32. l. 17. for Lay Gent. 1. Lay Gents.

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