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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
authority_n	act_n	parliament_n	year_n	2,273	5	5.2206	4	false

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A91287	The subjection of all traytors, rebels, as well peers, as commons in Ireland, to the laws, statutes, and trials by juries of good and lawfull men of England, in the Kings Bench at Westminster, for treasons perpetuated by them in Ireland, or any foreign country out of the realm of England. Being an argument at law made in the Court of Kings Bench, Hil. 20 Caroli Regis, in the case of Connor Magwire, an Irish baron ... fully proving; that Irish peers, as well as commons may be lawfully tried in this court in England, by the statute of 35 H.8.c.2. for treasons committed by them in Ireland, by a Middlesex jury, and outed of a trial by Irish peers: which was accordingly adjudged, and he thereupon tried, condemned, executed as a traytor ... By William Prynne Esq; a bencher of Lincolnes Inne.	Prynne, William, 1600-1669.	1658 (1658)	Wing P4090; Thomason E945_5; ESTC R203350	65,819	94

Parliament in the same Land and brought with them Irish Servants to the Parliaments and Counsels there holden whereby the privities of the Englishmen within the same Land have been and be daily discoverd within it to the Irish people Rebels to the King to the great perill and mischief of the Kings lawfull liege people in the same Land And the Statute of 10 H. 7. in Ireland c. 16. enacts That the Spiritual and temporal Lords of the Land of Ireland shall appear in every Parliament holden in that Land in their Parliament Robes in like manner and form as the Lords of the Realm of England appear in the Parliaments holden within the said Realm under pain of forfeiting 100 s. to the King which use of Robes they had there for penury omitted by the space of 20 or 24 years But there is no mention of any Tryal by their Peers in these or any other English or Irish Statutes but those forecited of 2 Eliz. c. 1. 6. Yea the Statute of 25 H. 6. in Ireland c. 28 enacts For that there is a Law established that every Lord that is called a Lord of the Parliament in all pleas personal as well as real in which amerciaments do lye shall be amerced 100 s. to the great impoverishment of the said Lords for as much as their livings are diminished and wasted by war That no Lord of Parliament shall be amerced from thence forward in the said pleas otherwise than other persons notwithstanding any Law made before to the contrary The amerciaments therefore of Irish Lords and Commons being alike by this Law it is very probable their tryals by Jurie were both alike and that they were not tryed by their Peers Now the Prisoners councel have pleaded in his plea that Magna Charta gives the tryal by Peers in Ireland and no other Law but it and that it was not accepted received confirmed and used as a Law in Ireland till the Statute of 10 H. 7. and the words thereof if it be confirmed by that Act are most clear in it That all Statutes late made c. from henceforth be deemed accepted usea and executed within this Realm of Ireland in all points And if it were made a Law there by the Statute 8 E. 4. c. 1. which I rather believe the words of that Act are That from henceforth all other Statutes and Acts made by authority of Parliament in England be ratified confirmed and adjudged by authority of this Parliament in their force and strength from the sixth day of March So as Magna Charta was not a general Law in force use acceptance or execution in Ireland at least amongst the Irish till 8 E. 4. or 10 H. 7. as is evident by these Acts Because I would leave nothing concealed or unanswered that might make for the prisoners advantage I must acknowledge that King Henry the 3d. in the first year of his Reign sent a Roll of the liberties which his Father King Iohn and he had granted to this Realm of England unto Ireland out of his special grace by unanimous consent of all his Lieges and confirmed the same to all his Spiritual and Temporal Lords and faithfull Subjects there for their fidelity to him and his Father to them and their Heirs for ever as a signal bedge of his favour by this patent * Rex Archiepiscopis Episcopis Abbatibus Comitibus Baronibus Militibus et libere tenentibus et omnibus fidelibus suis per Hiberniam constitutis Salutem Fidelitatem vestram in Domino commendantes quam Domino patri nostro semper exhibuistis et Nobis estis diebus nostris exhibiti volumus quod in signum fidelitatis vestrae tàm prae●lare ●am insigniter Libertatibus Regno nostro Angliae a patre nostro et nobis concessis de gratia nostra et dono in Regno nostro Hiberniae gaudiatis vos et vestri imperpetuum Qu●● distincte in Rotulum redactas decommune consilio omnium fidelium nostrorum vobis mittimus signatas sigillo Domini Gu●●onis Apostolicae sedis Legati et fidelifsimi nostri Willielmi Marescalli * Rectoris nostri et Regni nostri quia sigillum nondum babuimus easdem processu temporis majorum constlio proprio sigillo firmandas Teste apud Gloverniam 3 die Februari he being * c. owned but on the 28 of October before at Gloucester where this Patent bears date After which King Henry having ratified the Great Charter of Liberties in England in the 9th year of his reign printed in all our Statutes Books and in Cooks 2 Institutes in the 12 year he commanded it to be published openly in Ireland by his Writ * Rex dilecto et fideli suo R. Burgo Iustic. suo Hiberniae salutem Mandamus vobis firmiter praecipientes quatenus certo die loco faciatis venire coram vobis Archiepiscopos Episcopos Abbates Priores Comites Barones Milites et libere tenentes Ballivos singulorum Comitatuum et coram eis publice legifaciati Cartam Dom. Regis Johannis patris nostri cui sigillum suum appen●um est quani fieri fecit jurari a Magnatibus Hiberniae de legibus consuetudinibus Angliae observandis in Hibernia Et praecipiatis eis ex parte nostra quod leges illas et consuetudines in Carta praedicta contentas de caetero firmiter teneant observent Hoc idem per singulos Comiratus Hiberniae clamari faciatis et teneri Prohibentes firmiter ex parte nostra et super forisfacturam nostram ne quis contra hoc mandatum nostrum venire praesumat eo excepto quod non de morte nec de catallis Hibernensium occasione nichil stauatur ex parte nostra citra quindecem dies a die St. Michaelis anno r. n. 12. super quo respectum de dedimus Magnatibus nostris Hiberniae usque ad terminum praedictnm Teste m●ipso apud Westm. 8 die Maii anno 12. In Cooks 3 Instit. f. 141. b. 4 Instit. p. 3●9 b. in 18 H. 3. Rot pat m. 17. n. 21. There is mantion made of Consuetudines Leges Reg●i nostri Angliae quas bonae memoriae Dominus Johannis Rex pater noster de communi omnium de Hibernia consensu teneri statuit in terra illa Teste Rege apud Winch. 28 die Octob. In the 30th year of Henry the third all Laws and Customs of England were established in Ireland by this * Patent Quia pro communi utilitate terrae Hiberniae pro unitats terrarum Rex vul et de Communi Consilio Regnt provisum est quod omnes Leges et consuetudines quae in regno Angliae tenentur in Hibernia teneantur et eadem terra eisdem legibus subjaceat et per easdem regatur sicut Johan Rex cum ultimo esset in Hibernia statuit et strmiter mandavit Ideo volumus quod omnia Brevia de communi sure quae currunt

Ireland Yea to Irish Peers as well as to Irish Commoners and that there can be no tryal at all upon it here of an Irish Peer by Irish Peers nor in any place else within England and that only as the Prisoners case is by a Middlesex Jury And so I have finished my assertive part The first and grand objection is that which I meet with in the beginning of this Prisoners plea The Statute of Magna Charta c. 29. That no Freeman shall be taken or imprisoned or disseised of his Freehold c. nor will we pass upon ●or condemn him but by the lawfull judgment of his Peers or by the law of the land which Law and Statute is among others established for a Law in the Kingdom of Ireland there to be put in ure at all times when need is by the Statute made in the Parliament held at Droghedah in Ireland in the 10th year of King H. 7. c. 22. and by vertue of these two Laws he ought to be tryed by his Peers in or of Ireland in this sute against him by and for the King To which I shall give these satisfactory Answers 1. That the Statute of Magna Charta in its original creation and confirmation was made granted to the Archbishops Bishops Abbots Priors Earls Barons Towns and to all the Free-men of this our Realm of England and to them only to be kept in our Kingdom of England for ever whence it is intituled The great Charter of the Liberties of England as the prologue of it resolves The first Chapter thereof is peculiar to the Church of England viz. That the Church of England shall be free and enjoy all her rights and liberties inviolable We have also granted to our Freemen of our Realm of England these liberties under-written to have and to hold to them and their Heirs of us and our heirs for ever So cap. 12. The City of London shall have all her old Liberties and Customs and all other Cities Boroughs Towns and the Barons of the Cinqueports and all other ports shall have all their Liberties and their Customes Cap. 35. One measure of wine c. shall be throughout our Realm Ch. 32. All Merchants if they were not openly prohibited before shall have safe and sure conduct to depart out of England to come into England and to tarry in England as well by Land as by water c. In Cap. 23. All Weeres shall be utterly put down between Thames and Medway and throughout all England and the conclusion C. 37. concerns the Realm of England and Englishmen only Neither doth the * Charter of King John nor that of the 11 of H 3. nor 18 H. 3. m. 17. nu 21. nor of 30 H. 3. nor yet of 13 E. 1. cited in Co. 4 Institutes p. 349 and 350. and in his Institut on Littleton f. 141. establish Mag. Char. at least in relation to all the Native Irish but English alone it being made particularly for the Realm of England and English men and therefore the Prisoner pleads it was setled there only as a Law to be received and put in use in respect of the Irish then living only in the English pale and the Kings loyal Subjects not of any Irish enemies in hostility by the Statute of 10 H. 7. c. 22. but not before and so is Sir Ed. Cooks opinion in express terms in his 4 Institut pag. 35● By which it is most clear That from King Henry the seconds dayes who first subdued Ireland An. 1171. there were no trials in Ireland of any English or Irish Peers Subjects to our Kings for Treason by their Irish Peers by vertue of Magna Charta till after the Statute of 10 H. 7. which was made but forty six yeers before the Statute of 35 H. 8. between which and this later Law we read not of one trial of any Irish Peer for treason there by his Peers nor yet since that I can find but only one of late by 2 El. c. 1 6. till this very day By which it is most apparent that this tryal by Peers in Ireland a privilege now inficted on was never actually claimed or enjoyed by any Peer of Ireland especially by those in antient emnity and rebellion against our Kings stiled * enemies in the Irish Statutes and English Records before the Statute of 35 H. 8. and so it can be no prejudice nor injustice at all nor breach of Magna Charta to out the Prisoner of it 2ly It may be questioned upon very good Reasons whether the Statute of 10 H. 7. ch. 22. doth consirm this Statute of Magna Charta in Ireland or not at least as to Irish Peers especially those of the old Irish Bloud to whom it relates not as I have proved in the point of trial by Peers and that upon these Grounds First because the words of that Statute are not That all Laws made in England shall be confirmed received and executed in Ireland in all points but That all Statutes late made within the Realm of England concerning or belonging to the Commonweal not Peers of the same shall henceforth be deemed good and effectual in Law and received executed in this Realm of Ireland Now Magna Charta being no Law then late made within this Realm but made at least 271 years before it can hardly without much straining of the words beyond their proper meaning be brought within the compass of this Act though Sir Ed. Cook in his fourth Institutes pag. 351. informs us That Hil. 10 Jac. it was resolved by the two chief Justices and chief Baron that this word LATE in this Act hath the sence of BEFORE and shall not be taken in its proper sence or meaning so that the Act by this construction against the sence of the words extends to Magna Charta and to all the Acts of Parliament made in England not only late but even long before yea many hundred yeers before this Act which for my part under the favour of those Reverend Judges who thus interpret it I hold still disputeable yea erronious and no Law at all especially for these two Reasons 1. Because if any Law introduced and confirmed Magna Charta and the other Laws of England in Ireland it is the Statute of 8 E. 4. c. 1. which confirms the Statute made in England in the Parliament of 6 R. 2. ch. 6. concerning Rapes of which there was some doubt made whether it extended to Ireland and then concludes thus In avoyding of all inconvenience that might happen because of the ambiguity of the said Statute Be it enacted confirmed and ratified by authority of the said Parliament that the said Statute be adjudged and approved in force and strength and may be of force in this Land from the 6th day of March last past and that from henceforth the said Act and all other Statutes and Acts made by Authority of Parliament within the Realm of England be ratified confirmed and adjudged by

perpetrated by an indifferent honest lawfull English Jury upon an endictment found by the grand Inquest than thus to kill behead such Malefactors in Ireland and seise both them and their Goods as Enemies and ransome them at pleasure without Tryal Jury or Endictment and not only to indemnifie but reward those that do it by Laws there made by the English and Irish themselves which will answer all Objections and wipe off the least shadow of Injustice in this Case and tryal The third Objection is this That if Irish Peers had been within this Law there being so many rebellions in Ireland since its enacting we should have had some Presidents of Irish Peers here tried by Jurie ere this But there is no such President extant therefore certainlie Irish Peers for Treasons perpetrated in Ireland are out of this Act To this I answer 1. That no Irish Peers have been tried by their Peers in Ireland for treasons since this Act ergo they are within i● 2. That this Argument is merely fallacious and non concludant for the reason why no Irish Peers have been tried here since this Law by vertue of it is not because they were not deemed within it but for other reasons 1. Because most of the Irish Peers who have been in actual rebellion since this Law were * either actually slain in the wars or fled the Kingdom or else were received into grace and pardoned before tryal upon their submissions or else attainted and executed by Act of Parliament or by Martial-law in Ireland And by these means onlie avoided their Trials here 2ly Because some Irish Rebels as great as Magwire or anie of their Peers in power and estate have been heretofore tried and executed for Treason in England by vertue of this Law though brought over hither from Ireland against their wills as Orourke and Sir John Parrot of old and Mac-Mahon the last Term and the Tryals of these three here are direct Presidents in point and good warrant by this very Act for the Tryal also of this Irish Peer as I have proved 3ly This Statute is not very antient yet still in as full force as ever and if this be the first President of an Irish Peer that came judicially in question here in England to be tryed upon it since its making it is no Argument he is out of this Law but rather an Inducement to make him a leading President to those rebellious Peers of that Nation who have been the Ring-leaders of the ordinary Commons there in this grand Rebellion there being no President Judgement nor foild season against it Yea ●ome Judgements in case of Irish Commons and many unanswerable reasons for it The fourth Objection is the opinion of the Book in Dyer f. 360. ●● forecited recited in Cromptons Jurisdiction of Courts f. 23. a. and Mr. St. Johns Argument at Law at Straffords Attainder p. 63. That an Irish Peer cannot be tryed here in England for Treason done in Ireland neither by his Peers nor by a Jury because he is no Subject of England To this I have * already given an Answer and shall here only adde 1. That the only reason given in the Book hath been since several times adjudged to be no reason at all nor Law by all the Judges of England a Subject of Ireland being a * Subject to the King of England in all places as is adjudged in Calvins Case and that Wrey disclaimed any such opinion delivered by him as is there reported Therefore the reason of this opinion being adjudged erroneous and no Law the opinion it self grounded on it must needs be so too The rather because the opinion there cited was upon a Case casually put and moved out of Court by way of discourse without study or argument and suddenly delivered only by Dyer and Gerrard since Wrey disclaimed it but not given upon any cause actually depending or debated and argued in Court 2ly That it is a full authority for me both because it determines there can be no Tryal of an Irish Peer by his Peers in England but only by a Jury and that in Ireland it self Peers are not used to be tryed by Peers but attainted by Act of Parliament Therefore an authority point-blank against the Prisoners plea The 5th Objection is Orourks Case which in Judge Andersons own Book of Reports is put thus Whether Orourk an Irish Subject and no Peer nor Baron of Ireland might be tryed by this Act here in England for Treasons committed in Ireland which words nient esteant un Peer ou Baron de Ireland in the putting of the Case seems to intimate that in that Case the opinion of the Judges was that an Irish Peer was not within this Act To which I shall return this brief Answer That this clause not being a Peer or Baron in Ireland in the putting of that Case was only a description of the quality of his person he being no Peer or Baron of that Realm not any point in or part of the Case there being not one syllable in the whole debate or Argument of it by way of admission or otherwise that an Irish Peer was not within this Act And in this very Case the Judges resolved the Book in Dyer to be no Law and Wrey disclaimed any such opinion of his therein reported as Sir Edward Cooks Institutes on Littleton fol. 261. b. records The 6th Objection is this intimated in an Order of the Lords House That this may much concern the Peers of England For this Law for trying forein Treasons is enacted in Ireland and so by colour of it English Peers may be sent over into Ireland to be tryed there by a Jury of Irish Commoners for Treasons done in England as well as Irish Peers sent thence to be tryed by ordinarie Juries here in England for Treasons committed in Ireland I answer 1. That there is no such Law extant in Ireland that I can fi●d among all their printed Statutes so as this is a vain surmise But 2ly if there were any such Law there yet England being the supreme Realm to Ireland may make Laws in the Parliament here to bind the Irish Peers and Commons but the Parliament in Ireland being a * subordinate Realm to England never yet did nor can make any Laws at all to bind any English Peers or Commons for things done in England untill the Rebels there shall be able to conquer England which I hope they never shall as we have conquer'd them Therefore we need not fear any such obliging Laws of theirs or the tryal of English Peers in Ireland So as this vain fancy is quite out of Dores and the Lords themselves upon conference with the Commons have been fully satisfied that this Case no waies concerneth the Peers of England whose Tryal by their Peers is by direct proviso saved to them in this Act and therefore cannot come in question or be taken from them by pretence of any such

over that be accepted used and executed within the Land of Ireland in all points at all times requisite according to the tenor and affect of the same And that by authority aforesaid they and every of them be authorized approved and confirmed in the said Land of Ireland That before the time of the supposed Treasons King Charles by his Letters Patents under the great Seal of Ireland bearing date the last day of August in the 4th year of his Raign at Dublin in Ireland did create Brian Magwire Father of the said Connor Magwire Baron of Iniskellin in the County of Farmanagh in the said Realm and granted to him and the Hei●●males of his body the title honor and dignity of the said Barony and to have a place and voice among the Peers and Nobles of Ireland in the Parliaments of that Realm By virtue whereof the said Brian was seised in his demesn as of Fee tayl of the said Barony and dyed seised thereof at Dublin 1 Feb. 12 Caroli before the supposed Treasons after whose death the said Barony discended to him as Heir in tail That by virtue of these Letters Patents before the said supposed Treasons committed he was one of the Barons Lords and Peers of Parliament in the Realm of Ireland and at the Parliament begun and held there the 16th day of March 16 Car. at Dublin and continued untill the 17th of August then next following and then adjourned till the 9th of November next ensuing and thence proroged to the 24 of February next following and from thence continued till the 24 of Iune Car. he was present as one of the Peers of the Realm of Ireland And further saith that on the 23 of October 17 Car. he was taken and arrested by certain Persons to him unknown at Dublin in Ireland and there committed to safe Custody for the Treasons pretended to be committed by him till afterwards he was on the 12 of Iune 18 Car. by certain Persons to him unknown brought in safe Custody against his Will to Westminster within the Realm of England and then and there committed to the Tower of London where he is yet detained And therefore prayeth that he may be tryed and judged by his Peers of the Realm of Ireland for the supposed Treasons in the Indictment To this plea of his Mr. Aske the Kings Attorney in this Court hath demurred in Law and the Prisoner hath joyned in demurrer And whether this Plea of the Prisoner as to his tryall by his Peers of the Realm of Ireland be good in Law is the sole question to be now argued This Case is of very great concernment and yet of greater expectation It concerns the whole Peerage of Ireland in some respects on the one hand and on the other the Iustice both of the King Parliament and Kingdome of England in bringing a desperate Rebell and Arch-Traytor to condigne punishment for the most horrid bloody Treason against the Kings Royal Crown and authority the Protestant Religion and the whole English Nation inhabiting Ireland devoted to destruction by this Traytor and his Confederates that ever was plotted or executed under the Sun The eyes of all our 3 Kingdomes highly concerned in and deeply suffering by this Treason but more especially the eyes and hearts of our adjoyning vigilant Parliame●t which hath specially recommended it to this Court and assigned my self among others Counsel in this Case are intentively fixed upon the final result and issue of it I wish my vacancy to study and abilitie to argue this publique Cause had been such as might have satisfied expectation and discharged the trust reposed in me but other publique services having much interrupted me therein I shall begin to argue it for the present with the best skill I may and so leave it to those learned Gentlemen of the Law if there shall be need of any further Arguments who are provided to argue after me to supply what is defective in this my proemiall Argument All matters of fact and form arising in this Plea have been already admitted true and sufficiently pleaded in Law by mutual consent and nothing but the meer matter in Law rests now to be debated which I conceive to be but one short single point For though the Prisoner pleads that there was a Parliament of which he was a Peer and Member continuing in Ireland by prorogation at the time of his apprehension and sending over into England Yet this Privilege of Parliament comes no wayes in question as to the point of his triall now only in issue as hath been falsly suggested to the Lords house and intimated in an Ordinance of theirs since revoked but relates only to his first apprehension which is not here in controversie ' Besides he pleads not that this Parliament is yet continuing and actually sitting in Ireland of which he ought to have * the privilege but that it was continued till the 24 of Iune 17 Car. which is 3 years since and so intended to be long since ended Nor pleads he that he ought to be or to have been tryed for this Treason in the Parliament of Ireland nor that his privilege of Parliament ought to extend to secure him from any apprehension or Indictment for high Treasou when the Treason is visible and reall as his is and not imaginary only in which Case of Treason no privilege of Parliament is to be admitted as hath been resolved 8 H. 6. rot Parl. n. 57. 31 H. 6. rot Parl. n. 25 26 27. Cooks 4. Instit. fo. 25. So as the matter of his privilege of Parliament is quite out of dores and the sole point in issue is but this Whether a Peer of Ireland committing high Treason in Ireland for which he is there apprehended and afterwards by order of Parliament here brought thence into England against his Will may be endicted and tryed for that Treason in this Court of Kings Bench by a Jury of Middlesex only not by his Peers of Ireland by virtue of the Statute of 35 Hen. 8. chap. 2. And under favour I conceive in some clearness affinmatively that he ma● and shall be tryed here by an Ordinary Iury of Middlesex and outed of his Peerage by virtue of this Act The Question arising meerly upon the Act it self which is very short I shall first recite it and then draw my Arguments out of the very intention words and bowells of it FOrasmuch as some doubts and questions have been moved that certain kinds of Treasons done perpetrated or committed out of the Kings Majesties Realm of England and other his graces Dominions cannot ne may by the Common Laws of this Realm be enquired of heard and determined within this his said Realm of England for a plain remedy order and declaration therein to be had and made Be it enacted by Authority of this present Parliament that all manner of offences being already made or declared or hereafter to be made or declared by any the Laws and

within the limits of this Realm c. Addes this memorable clause thereto Considering then this Statute made in the Realm of England is most beneficial and expedient to have due execution within the Kings Land and Dominion of IRELAND especially in respect of the high rebellion here lately committed that the odible infamy against the King and Queen in the same Act expressed and other offences abuses and abominations there mentioned principally have been promulged pronounced done and attempted within this said Land Be it therefore established ordained and enacted by authority of this present Parliament that the aforesaid Statute and Ordinance and every thing and things therein con●ained be established confirmed acce●ted deemed iudged and taken for a good and right Law within the Kings Land and Dominion of IRELAND and to be as good effectual and of the same strength and quality effect force and vertue to all intents and purposes within the said Land as the same is or ought to be in the Realm of ENGLAND and that the said Statute and Act made in ENGLAND and every thing therein contained shall have relation and take effect within this Land of IRELAND against all offendors contrary to the form thereof c. Now that Act of 26 H. 8. c. 13. with this of 35 H. 8. c. 2. being principally made and intended for the Treasons done and committed in Ireland as this Irish-Parliament resolves in terminis and being most beneficial and expedient for that Realm it wou'd be very illegal yea irrational absurd impolitick and improvident to exclude Ireland out of this Law where Treasons were most frequent most dangerous to out Kings and Realm and to extend it only to other places out of the Realm where Treasons were seldome done or perpetrated and nothing so perilous to the King and Realm of England as Treason● Rebellions in Ireland have usually been in former and later ages 3ly It hath been adjudged by all the Judges of England both in * Orourks case 33 Eliz. and in Sir John Parrets case 24 El. cited in Calvins case Cooks 7 Report f. 23 a. in his 1 Institutes on Littleton f. 26. b. 3 Institut p. 11 24. and so was it agreed without any argument in Hugh Mac● Mahones case this last Michaelmas Term the P●l●o●e●● Confederate in this horrid Treason that Treason committed in Ireland it self by an Irish Commoner is tryable in this Court by this very Statute contrary to the sub●tane extrajudicial opinion of Dyer M. 19 20 Ell● fol. 360. resolved since to be no Law Seing then it hath been thus frequently resolved heretofore and in case of the Treasons now in question this very last Term without any scruple That an Irish-Commoner committing Treason in Ireland and brought over from thence hither against his will is tryable in this Court by a Middlesex Jury there is no doubt at all of the first question but that this Statute extends to Treasons committed in Ireland by Irish Commoners and the doubt if there be any will rest meerly in the second point which I am already arrived at Namely Whether this Act extends to Treasons perpetrated in Ireland by Irish-Peers as well as by Irish Commoners And under correction I conceive with much clearness that it doth for the s●●●suing reasons 1. From the generallity and universality of the Act it self wherein I shall observe a four-fold universality which supplies me with four undenyable arguments to prove Irish Peers within this Law as well as Irish Commoners The first is a universality of the Kinds of offences specified in the Act in these general Terms All manner of offences being already mad or declared or here after to be made or declared by any the Laws or Statutes of this Realm to be Treasons misprisiion of Treasons or concealment of Treasons done or perpetrated out of this Realm of England shall be enquired of by the Kings Iustices of his Bench c. Now these general words All manner of offences c. must necessarily extend to all manner of Treasons perpetrated or committed out of this Realm by Peers as well ar Commoners To the Treasons of the Lord Magwire as well as to the Treasons of Mac Mahone Esq they being the selfsame Treasons in substance and a manner of Treasons specially made and declared by the Laws of this Realm since there are no restrictive words to confine these general clauses of Treasons only to Commoners and no expresse exception for the offences or Treasons of Irish Peers to be found within the Statute else there would be a repugnance and contradiction between the text and the Glo●●e and this general should be turned into a specifical in respect of the Traitors offending Therefore this general clause extending to all Treasons whatsoever done or perpetrated out of the Realm must necessarily extend to the Treasons of all Irish Peers as well as Commons and so both of them by the words and intention of this Law shall be triable in this Court The second is a universality of time All manner of offences already made or declared or hereafter to be made or declared Treason c. done perpetrated or committed or hereafter to be done perpetrated or committed shall be enquired of by the Kings Iustices of the Bench c. which extends to all former Treasons done out of the Realm at any time before the making and to all future Treasons since the passing of this Act Now this universality of time extends as well to the Treasons of Irish Peers as Commoners to the Treasons of Baron Magwire as well as of Mr. Mac-Mahone both being alike Treasons committed after this Act The 3d. is a * universality of place All manner of Treasons done perpetrated or committed out of this Realm of England that is in any place whatsoever out of the Realm of England be it in Ireland Scotland France Spain Germane Italie Barbary Turkie the East or West Indies as was resolved in Dr. Stories case Hil. 13 Eliz. Dier 298 b. ● 3. Phil. Mar. Dier 131 132. Now this extends generally to all forein Treasons committed by Peers as well as Commons and so to the Treason of the Prisoner at the Bar it being done in Ireland out of this Realm of England and so fully within the Act The 4th which is fatal and unanswerable is a universality of Persons coupled together with all the 3 former generalities in these expresse words All manner of offences made Treason c. done perpetrated or committed By any Person or Persons out of this Realm of England shall be from henceforth inquired of heard and determ●●e● before the Kings Iustices of his Bench c. Now any Person or Persons being a universal expression equivalent to all manner of Persons whatsoever Collectively or to all and euery Person whatsoever distributively extends to Irish Peers as well as Commoners yea to all Subjects of all Ranks whatsoever within the compasse of this Law in regard of the manner of

the Prisoner stands indicted had been plotted and executed in Middlesex Therefore to admit him to a Tryal by Irish Peers and not by good and lawfull men of Middlesex or to send the Prisoner back to Ireland there to be tryed by his Peers is to run quite counter and pointblanck against this unanswerable clause of the Statute That he shall be tryed by good and lawfull men of the same Shire where the Kings Bench sits to all intents and purposes as if the Treasons had been there committed And had they been there committed actuallie as they are legallie by the express purview of this Law it could never so much as be scrupled and made a quere whether he should be tryed by his Irish Peers here or sent over to be tryed in Ireland for Treasons acted there after an Endictment for them here found against him In one word Statutes which prescribe new forms of Trial in such a particular way as this Act doth are like Letters of Attorny or Licenses of Alienation * they must be most strictly pursued and not varied from in the least punctilio as was resolved by all the Judges of England Hill 21 Jac. in the case of Penal laws Co. 7 Rep. f. 36 37. Therefore no other form of Trial ought to be admitted in this Case than what the Statute prescribes and that is onlie by good and lawfull men of Middlesex not by Irish Peers 7ly The Proviso in this Act puts a period to this Case Provided always that if any the Peers of this Realm shall happen to be endicted of any such Treasons or other offences aforesaid by authority of this Act that then after such Endictment they shall have their Tryal by their Peers in such like manner as hath been heretofore accustomed From whence I shall observe these five particulars First that Treasons committed by English Peers in forein parts are tryable here in England within the verie bodie and purview of this Law Therefore by the self-same reason law and justice Treasons committed out of this Realm in Ireland even by Irish Peers are triable in England by this Act else Irish Peers should be quite out of this Act and in better condition than English or any Irish Commoners who are clearly adjudged within it 2ly That Tryal by Peers is saved by this Proviso onlie to the Peers of this Realm which both in the Prologue and body of this Act is expresly stiled this Realm of England But the Peers of Ireland are no * Peers at all of this Realm of England as is resolved in 11 Ed. 3. Brief 473. 20 E. 4. 4. Co. 7 Rep. f. 15 16. 9 Rep. Lord Sanchars case f. 117. Co. 3 Instit. p. 30. and Dyer f. 360. b. Therefore no waies within the compass words or reason of this Proviso but clearly secluded out of it and so not tryable by their Peers And this Statute prescribing a new way of trial for forein Treasons not triable here by Peers before had excluded all English Peers from trial by their Peers by the bodie of the Law as some conceive had it not been saved to them by this special Proviso Therefore certainlie Irish Peers who are not provided for at all and no Peers in England must necessarilie be excluded from their Peerage by it upon their trial here 3ly The reason why this Law doth save the tryal by Peers to Peers of this Realm onlie and to no others which as some conceived was not saved to them in cases of forein Treasons by the Statute of 26 H. 8. c. 13. as appears by the Lord Grayes case hereafter cited makes an end of the Case in Question because Peers of the Realm of England are Peers in everie shire and Countie of England Therefore by the great Charter of England and all other Acts confirming it and the Common law it self they ought to be tried onlie by their Peers within all Counties and places of the Realm of England But-Irish Scotish and forein Peers are no Peers in any Countie of England as the forecited Books ●esolve Now this Statute enacting all forein Treasons to be triable not in Ireland or any other his Majesties Dominions but in England only it was necessarie and convenient by this special Proviso to save the Trial by Peers to all English Peers to be tryed for forein treasons only in England according to * Magna Charta and the Common law being their birthright because they are actual Peers in all places of England and may have English Peers enough at hand to trie them without delay upon all occasions But Irish and other Peers being no Peers at all in England and it being a thing improper to trie them by English Peers being no real Peers to them and a thing impossible to try them here by Irish or any other forein Peers for the reasons formerlie alleged and this Statute confining the trials within it only to England it had been a direct contradiction and absurditie to provide that these forein Peers should be tried here by their forein Peers for Treasons and not by an ordinarie Jury because they are neither Peers themselves in England nor others who should come hither from Ireland or other forein parts who lose their forein Peerage as soon as they set foot on English ground with relation unto England where their Peerage presentlie ceaseth 4ly The Statute is That the trial for such Treasons c. shall be in such manner and form to all in●ents and purposes as if they had been committed in England Now if English Peers commit Treason in England they shall by the Statute of Magua Charta cap. 29 yea by King Johns Charter and by the Common law long before as Sir Edmund Cook proves in his Commentary upon it and I have at large demonstrated in my * Plea for the Lords and House of Peers be tried onlie by their Peers and not by any ordinarie Jurie by English but not Irish Peers as I have formerlie proved Therefore the ground of saving trial by Peers to Peers of England by this Act is an unanswerable argument to denie such a trial here to any Peers of Ireland by Irish or English Peers 5ly The last words of this Proviso determine the case in question without more dispute Provided alwaies that if any Peers of this Realm happen to be indicted of any such Treasons aforesaid by authority of this Act they shall have such trial by their Peers in such like manner as hath bean heretofore accustomed It being alwaies the Custome of England * since Magna Charta and long before in cases of Treason at the Kings sute to trie all English Peers in England only by their Peers and such a privilege as * Sir Edward Cook holds they cannot waive if they would as it was adjudged in the Lord Dacres case Pas. 28 H. 8. and since in the Earl of Castlehavens ease 7 Car. But on the other side it is most certain that it hath never

Authority of this Parliament in their force and strength from the said 6th day of March So that this Law if any at all confirmed Magna Charta and all the Statutes made by Authority of Parliament in England to be in force and use in Ireland yet only as to the English Irish Subjects under the Kings obedience and none else as I have proved and this Statute of 10 H. 7. which confirms only the Statutes lately made must and doth in truth and reason relate only to the Laws made in England since that Statute of 8 E. 4. c. 1. not formerly there confirmed by that Act so that the Prisoners Plea That Magna Charta was confirmed by 10 H. 7. is but a meer mistake and a void Plea neither are the Judges here bound to take notice of this Irish Act of 8 E. 4. c. 1. unless pleaded by the Prisoner being no Law of this Kingdom and not binding here 2. Because the forementioned Charters of * 6 Joh. 12. and 30 H. 3. c. confirming the use of the Laws of the Realm of England in Ireland did not extend to settle Magna Charta there at least wise not as to the benefit of the natural Irish but to the English and the Irish within the English Pale alone as is agreed by Sir Ed. Cook and in a manner resolved by this Act of 10 H. 7. as the words thereof From henceforth be deemed good and effectual in the Law and over that be used accepted and executed within the Land of Ireland in all points at all times requisite import And if those Charters extended not to Magna Charta which are fuller then this Act I doubt this Law will hardly do it 3ly Admit the Law of 10 H. 7. extends to Magna Charta in some particulars thereof formerly used in Ireland yet it reacheth not to the trying of Irish Peers by their Peers now in question for these ensuing Reasons 1. Because trial of Irish Peers by their Peers in Ireland was never used nor heard of nor is there any one instance to be found before or since Magna Charta till 10 H. 7. which there setled that great Charter for a Law nor from 10 H. 7. till 35 H. 8. nor since that but of late in one case only about twenty yeers since till this instant Now what Littleton notes of the Statute of Merton * Sect. 108. That no action can be brought upon that Statute for a disparagement for that since the making of it it was never seen nor heard that any such Action was brought upon it against the Guardian and if any Action might have been brought upon this matter it will be intended that sometime it would have been put in ure The like shall I say concerning Magna Charta and the trial of Irish Peers by their Peers in Ireland That if the trying of Irish Peers by their Peers had been the common Law of Ireland or if Magna Charta and 10 H. 7. had established it there for a Law it would some time or other have been there put in ●re and some Peers there would have claimed and enjoyed this their priviledge in point of Trial but since it was never yet in use there for ought I finde nor any one can prove before 35 H. 8. I cannot deem it the common Law nor Priviledge of the Peers of Ireland but the peculiar Priviledge of our English Peers both by the common Statute-Law and great-Charter of England and no trial of right incident to Irish Peers as it is to English Therefore this kinde of Trial neither is confirmed to nor intended to be conferred on Irish Peers by Magna Charta which is but a confirmation only of our * common Laws of England and no introduction of any new Law here and so should introduce no new Law there but confirm the common Laws and Customes there formerly used and so the Tryal by Peers is not there setled in respect of the Irish Peers by the Statute of 10 H. 7. Now that which principally confirms me in this opinion is the two special Acts of Parliament made in Ireland in 2 Eliz. c. 1. 6. * already cited which create a special form of tryal of Irish Peers not by their Peers there of Irish blood but by their Peers of that Realm of the English blood alone only in the new Treasons and Premunires specified in and created by those two Acts but in no other Treasons Which clauses had been merely nugatory and superfluous had the Tryal of Irish Peers in Ireland by Irish Peers been the birth-right and known priprivilege of Irish Peers either by the Common law there used or by the Custome of Ireland or by Magna Charta with this Act of 10 H. 7. confirming it It therefore never being the intent of this Act nor of Magna Charta to grant any new privilege or form of Tryal to Irish Peers which they never formerly enjoyed neither the one nor other will sufficiently support the Prisosoners plea nor indulge him any tryal here or there by his Peers of Ireland at least of Irish blood for so horrid a Treason as this Which I hope is a satisfactory answer to this objection since Custome is the best Expositer of all antient Laws as Sir Edw. Cook declares in his Commentary on Littleton sect. 108. f. 81. b. 4ly Admit the Objection true That Magna Charta extends to Ireland by vertue of this Act of 10 H. 7. so far as to give Irish Peers in Ireland though not of the English Pale a trial by their Peers which they had not before its confirmation there yet then I answer That this Statute of 35 H. 8. ch. 2 upon which the Prisoner is arraigned by making all Treasons done and perpetrated in Ireland triable in England when there is just occasion as now there is in this time of a universal horrid Rebellion and in sundry other forementioned respects repeals this Clause of Magna Charta and deprives the Prisoner of the benefit of his Peerage if at all conferred on him by it and the Act of 10 H. 7. Since it is most certain that Statutes made in the Parliaments of England being the supreme Kingdom and Court to which Ireland its Courts are subordinate and whose erronious judgements in their High Courts and Parliaments there were only reversible here in England in the Kings Bench and Parliament of England as is evident by Claus. 7. H. 3. par 2. m. 10. and Claus. 29. E. 3. m. 12. 8 H. 6. rot Parl. ● 69. Cooks 4 Instit. p. 356. Mr. St. Johns Argument at Law at Straffords Attainder p. 58 61. K●ilway f. 202. b. Br. Error 127. Fitz. Nat. Bre. f. 24. Co. 7 Rep. f. 18. a Calvins Case do oblige those of Ireland not only before but ever since 10 H. 7. when Ireland is either particularly named or generally included as is agreed by Rastals Abri●gement title Ireland 11 E. 3. chap. 2. and 10 E.

Rebels power Tumults in that Realm he could not conveniently undergo So I humbly pray on the behalf of the King Kingdome Parliament and our whole English Nation to all which he hath been such a capital Traytor and Enemy that this Plea of his may presently be over-ruled and himself brought to his speedy Tryal Iudgement and execution for his unparallel'd Treasons and the blood of those many thousands 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 Justiciam is one clause of that very Act of Magna Charta ca. 29. which he hath pleaded in bar of his Tryal of which I pray both he and the whole Kingdom may now enjoy the benefit by his undelayed Tryal 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 clowd of honorable 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 judgement against the Prisoners plea that though he be a Baron of Ireland yet he was triable for his Treason by a Middlesex Jury in the Kings Bench and outed of his Peerage by 35 H. 8. c. 2. Which Iudgement was approved by this Order of both Houses of Parliament Die Lunae 10 Febr. 1644. Ordered by the Lords and Commons in Parliament assembled That the said Houses do approve of the judgment given by Master Justice Bacon in over-ruling the Plea of the Lord Magwire and of the manner of the Tryal by the Indictment of High Treason in the Kings Bench And the Judge is hereby required to proceed speedily thereupon according to Law and Iustice John Brown Cler. Parl. Henry Elsing Cler. Parl. D. C. Upon which on Monday Febr. 10. 1644. he was brought from the Tower of London to the Kings Bench Bar there arraigned where putting himself upon his trial he challenged 23 of the Jury which appeared peremptorily Whereupon a Distring as was awarded to the Sheriff of Middlesex to retorn Quadrag●nta Tales the next day of whom he challenged 12 more peremptorily And being tryed by twelve of the residue retorned against whom he had no legal exception nor challenge he was upon his own Confessions and pregnant evidence of 15 Witnesses Persons of Quality found guilty of the Treasons for which he was indicted and thereupon Febr. 11. was adjudged tobe 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 Febr. Even so let all such perfidious bloody Traytors perish TO fill up the vacant pages of this Sheet I shall annex this one Record and also one Irish Act being both very pertinent to my Argument Pat. 1 E. 1. m. 20. Hibernia Venerabili in Christo Patri eadem gratia Midden Episcopo Dilectis fidelibus suis Mauricio filio Mauricii Justiciario suo Hibern et Magistro Johanni de Saumford Escaetori suo Hibern salutem Cum de●uncto jam celebris memoriae Domino H. Rege pa●re nostro cujus animae propicietur altissimus ad nos Regni Angliae gubernacu● et terrae Hibern Dominium per●ineant ob quod Praelati Comites Pro●eres as Communit●s Regni nostri nobis tanquam Domino suo ligio et Regi fidelitat●s Juramentum omnia alia quae nobis rations Coronae dignitatis Regiae ab ipsis fieri praestari nobis in absentia nostra poterunt plenariè sine omissione aliqua prompto liben●i animo praestiter int Ac Archiepiscopi Episcopi Abbates Priores Comites Barones Milites libere tenentes ac tota Communi as terrae nostrae Hiberniae nobis tanquam * Regi Domino suo ligio consimile sacramentum fidelitatis praest are teneantur Dedimus vobis potestatem recipiendi nomine nostro fidelitatem ipsorum Ita tamen quod si vos omnes interesse nequiveritis tune duo vel unus ●estrum qui praesens fuerunt nichilominus plenariam habeat potestatem rec●p●endi nomine nostr● fidelitatem ipsorum in forma praedict● Et ideo vobis mandamus quod fidelitatem praedictam nomine nostro recipiatis prout melius videbitis expedire In cuju● c. Dat. per manum W. de Merton C●nc apud Westm. VII die Decembris 33 H. 8. c. 1. made in Ireland An Act that the King and his Successors to be Kings of IRELAND FOrasmuch as the King our most gracious dread soveraign Lord his Graces mostnoble progenitors Kings of England have been Lords of this Land of Ireland having all manner kingly jurisdiction power preeminences and authority royal belonging or appertaining to the royal Estate and Majesty of a King by the name of Lord of Ireland where the Kings Majestie and his noble Progenitors justly and rightfully were and of right ought to be Kings of Ireland and so to be reputed taken named and called and for lack of naming the Kings 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 Inhabit ants within this Realm of Ireland have not been so obedient to the Kings 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 Wherefore at the humble pursute petition and request of the Lords spiritual and temporal and other the Kings loving faithfull and obedient Subjects of this Land of Ireland and by their full assents Be it enacted ordained and esta blished by this present Parliament● That the Kings Highnesse his Heirs and Successors Kings of England be alwaies Kings of this Land of Ireland and that his Majesty his heirs and Successors have the name stile title and honor of King of this Land of Ireland with all manner of honors preheminences prerogatives dignities and other things whatsoever they be to the Estate and Majesty of a KING appertaining or belonging and that his Majesty his Heirs and Successors be from henceforth named called accepted reputed and taken to be Kings of the Land of Ireland to have hold and enjoy the said stile title majesty and honors of the King of Ireland with all manner preheminence prerogative dignities and all other the premises unto the Kings Highnesse his Heirs and Successors for ever as united and knit to the Imperial Crown of