before had used or practised in that Realme and therefore the Prisoner shall be tried by an ordinary Jury at this Bar not by his Irish Peers because if he were in Ireland for ought appears yet to me he should not be tried by his Peers there and in both these points the Book in Dyer the only Authority which seems to be strongest against is for me the words whereof are these in English The grand Chancellor of Ireland moved this question to the Queens councel If an Earl or Lord of Ireland who commits Treason in Ireland by rebellion shall be arraigned and put to his trial in England for this offence by the Statutes of 26 H. 8. c. 13. 32 H. 8. c. 4. 35 H. 8. 2 or 3 E. 6. And it was held by Wrey Dyer and Gerrard Attorney General That he could not Mark now their reasons for he cannot have his trial here by his Peers which is a full resolution in point of my third Question agreeing with what I have endeavoured with Arguments to prove and is an unquestionable Truth which I submit to Then it follows Nor can he be tried here by any Jury of twelve mark the reason Not because he is a Peer of Ireland and therefore ought to be tried by his Peers and not by a Jury for that had been full against me and it is now the only knot in queâ—tion but because he is not a subject of England but of Ireland and therefore he shall be tried there which reason extending as well to an Irish Commoner as Peer hath been since adjudged directly false absurd and against the Law both in Orourks Case and in Sir John Parrets Case and since in Mac-mahons Case and Sir Ed. Cook informs us in his Institutes on Lit. f. 261 that Wray himself in Orourks Case where this Opinion of his was vouched did openly disclaim that ever he delivered any such opinion as this but ever held the contrary to it and so it is a misreport in this particular After which the Book concludes thus And it is said that the usage to wit in Ireland to attaint a Peer Is by Parliament and not by Peers which comes full in terminis to what I have last insisted on and I am certain cannot be disproved Wherefore this authority in Dyer as to all that is truth and Law in it is wholly for me in the reason of the Law and against me only in what hath been since adjudged to be no Law I shall close up all with a stronger Case and authoritie than this in question which will over-rule this case and that was in * Trinity Term An. 33 H. 8. in the Kings Bench Edward Lord Gray immediatly before having been Lord Deputie in Ireland was endicted arraigned and attainted of High Treason by an ordinary Jurie in the Kings Bench in England for letting divers Rebels out of the Castle of Dublin and discharging Irish hostages and pledges that had been given for the securing the peace of Ireland and for not punishing one who said the King was an Heretick whilest he was Lord Deputy in Ireland For these Treasons all acted and committed in Ireland through an English Peer he was tried by an ordinary Jury in England by the Statute of 26 H. 8. c. 13. ratified in Ireland by 28 H. 8. c. 7. forecited which secluded him from his tryal by Peers being not saved by these Acts. Therefore a Fortiori shall these Statutes and this of 35 H 8. c. 2. 5 E. 6. cap. 1. made since his judgement exclude this Irish Lord being no English Peer from any tryal by his Peers Finally the Prologue of this Statute coupled with the body thereof puts a period to this question beyond all doubt or dispute For as much as some doubts and questions have been moved that certain kinds of Treasons c. committed out of the Kings Majesties Realm of England cannot nor may by the Common laws of this Realm be inquired 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 c. that all manner of Treasons c. committed by any person oâ— persons â—out of this Realm of England shall be from henceforth inquired of heard and determined by the Kings Iustices of his Bench c. by good and lawfull men of the same Shire where the said Bench shall sit and be kept in like manner and form to all intents and purposes as if such Treasons had been done within the same Shire where they shall be so inquired of heard and determined The sole scope end purpose then of the King and Parliament in this Act being to take away all doubts and questions formerly moved in point of Law touching the tryal of treasons done out of the Realm before the Kings Justices of his Bench and Commissioners in England by a Iury and to make and enact a plain remedy and declaration therein for the future in manner aforesaid I humbly apprehend there can be no doubt nor question now moved whether this Prisoner ought to be tryed by his Peers in Ireland or England for this his most horrid Treason committed out of the Realm of England since this Statute so clearly declares and resolves the contrary in most plaine and positive words The rather because the Kings Patent creating him Baron of Ineskellin under the great Seal of Ireland maketh him only a Peer in Ireland and gives him only a Place and Voyce among the Peers and Nobles of Ireland in the Parliaments of Ireland not in England as he sets forth in his own * Plea in precise terms as the Patent made by King Edward the 4th to Robert Bold created him Baron of Rathtauth in Ireland and constituted him Unum Dominum Baronem omnium singulorum Parliamentorum magnorum Conciliorum nostrorum in terra nostra Hiberniae tenendorum habendum tenendum una cum stilo titulo nomine honore loco et sessione inde sibi et haeredibus suis masculis imperpetuum And as King Henry 8. made Thomas Viscount Rochford by the self-same Patent both Earl of Wiltshire infra regnum nostrum Angliae and Earl of Ormond in terra et dominio nostro Hiberniae only with several clauses of investitures several Habendums and several Creation-monies for each Title and Kingdom And as the Patents of all other Irish Earls Viscounts Lords and Barons in Ireland create and make them Peers only in Ireland not in England as * learned Mr. Selden informs us and their very Patents resolve in terminis And therefore quite exclude the Prisoner and all other Peers of Ireland from any tryal by their Peers in England either by the Proviso or body of this Statute or their Patents which are point-blanck against it And now I hope I have fully made good the point in question with all the several branches of it That this Act extends to Treason committed in
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 â—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. 35â— 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
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 perpetrated 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 a principal Contriver of the last Irish Rebellion 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 there upon tried condemned executed as a Trayur Wherein are comprised many other particulars and notable Records relating to the Laws Peers Statutes affairs of Ireland not obvious in our Lawbooks and worthy publike knowledge By William Prynne Esq a Bencher of Lincolnes Inne Numb. 35. 31 33. Ye shall take no satisfaction for the life of a Murderer which is guilty of death but he shall be surely put to death So ye shall not pollute the land wherein you are for bloud de fileth the land and the land cannot be cleansed of the bloud that is shed therein but by the bloud of him that shed it LONDON Printed by J. Leach for the Author 1658. TO THE Ingenuous Readers ESPECIALLY Professors Students of the Laws of England and Ireland HAving lately published a much enlarged Edition of my Plea for the Lords and House of Peers wherein the undoubted antient Birthright of all English Lords and Barons to sit vote and judge in all Parliaments of England and their tryal by their Peers is irrefragably vindicated by Histories and Records in all ages and larger Discoveries made of the Proceedings and Judicature in our Parliaments in Cases as well of Commoners as Peers than in all former Treatises whatsoever I apprehended it neither unseasonable nor unprofitable to publish this Argument at Law concerning the Trial of Irish Peers for forein Treasons acted by them made by me near 14 years past in the Kings bench Court at Westminster in the Case of Connor Magwire an Irish Baron there indicted for High Treason in having a principal hand in the late bloudy Rebellion in Ireland against whom I was by special Order assigned Counsel among others by the Parliament then sitting upon whose Plea and a Demurrer there unto I first argued this new point in Law never formerly disputed adjudged in open Court Whether an Irish Peer for Commoner committing Treason in Ireland sent over from thence into England against his will might be lawfully tryed for it in the Kings Bench at Westminster by a Middlesex Jury and outed of his tryal by Irish Peers of his condition by the Statute of 35 H. 8. c. 2 After two solemn Arguments at the Bar by my self and Serjeant Rolls against and Mr. Hales and Mr. Twisden for the Prisoner and Mr. Justice Bacons Argument on the Bench his Plea was over-ruled adjudged against him it being resolved he might and ought to be tried only by a Jury of Middlesex not by his Peers of Ireland Whereupon he pleading Not guilty to his Indictment was tried by a Substantial Jury to whom he took both his peremptory and legal challenges which the Court allowed him of right and after a very fair and full trial was found guilty by the Iury upon most pregnant evidence and then condemned executed as a Traytor at Tyburn as he well demerited The Reasons inducing me to publish this Argument were 1. The near affinity and cognation it hath with my Plea for the Lords 2ly The Novelty Rarity of the Subject and points debated in it not formerly discussed at large in our Law-books 3ly The generality and publike concernment thereof extending to all Irish Subjects whether Peers or Commons and so worthy their knowledge perusal and of all publike Officers in Ireland especially Lawyers 4ly The prevention of Misreports of this case and Argument in this age wherein many Arguments at Law and Reports of Cases have been lately published by Inâ—udicious hands mistaking mangling or misreciting the Reasons Records Lawbooks cited both at Barr and Bench and sometimes the Cases Iudgements themselves to the prejudice seduction of young Students of the Law and scandal of the Law it self 5ly The importunitie of some Friends who formerly desired Copies thereof from me when I had no leisure to furnish them therewith 6ly The Vindication declaration both of the Parliaments and Kings Bench honorable resplendent equal untainted Justice against this Arch-Irish-Traytor and Rebel and that in these particulars 1. In trying this notorious Offendor guiltie of the horridest universallest Treason and Rebellion that ever brake forth in Ireland and that in a time of open War both in Ireland and England only by a Legal Indictment and indifferent sworn Jury of honest and lawful Freeholders according to the known Laws and Statutes of the Realm not in a Court Marshal or any other New-minted Judicature by an arbitrarie summarie illegal or martial proceeding without any lawful presentment indictment or Trial by a sworn impartial able Iury resolved to be diametrically contrary to the fundamental Laws Customs Great Charters Statutes of the Realm and inherent Liberty of the Subject especially in time of Peace when all other Courts of Justice are open and of very dangerous consequence and thereupon specially prohibited enacted against as you may read at leisure in the Statute of 5 R. 2. Parl. 1. ch. 5. Rot. Parl. n. 57. 2 R. 2. rot Parl. n. 57. 1 H. 4. rot Parl. n. 44. 2 H. 4. rot Parl. n. 89. The Votes of the House of Commons and Lords against it May 7. 1628. the Petition of Right 3 Caroli Mr. Cambdens Annals of Qu. Elizabeth p. 242 243. Cooks 3 Instit. p. 52. 124. and accordingly declared by the Commons House in their a Remonstrance of the State of the Kingdom 15 Decemb. 1641. and by the whole Parliament and most now in power in the case of the Lord Mount-Norris whose trial and capital condemnation in a Court Marshal in Ireland by Martial Law in time of peace without a lawful Indictment and Trial by his Peers in a summarie way by the Earl of Straffords power then Lord Deputy of Ireland was one of the principal b Charges evidences against him to make good his general impeachment of High Treason for which he was condemned and beheaded on Tower hill for a Traytor by judgement and Act of Parliament Namely That he had TRAYTEROUSLY endevoured TO SUBVERT THE FUNDAMENTAL LAWS AND GOVERNMENT OF THE REALM and instead thereof TO INTRODUCE AN ARBITRARY TYRANNICAL GOVERNMENT AGAINST LAW though this Lord was not executed or put to death by that Sentence against him Which if executed had been WILFULL MURDER both in his JUDGES EXECUTIONERS as Sir Edward Cook resolves
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 Heiâ—â—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 Parliameâ—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 maâ— 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
Statutes of this Realm to be Treasons misprisions of Treasons or concealments of Treasons and done perpetrated or committed by any person or persons out of this Realm of England shall be from henceforth inquired of heard and determined before the Kings Iustices of his Bench for Pleas to be holden before himself by good and lawfull men of the same Shire where the said Bench shall sit and be kept or else before such Commissioners and in such Shire of the Realm as shall be assigned by the Kings Majesties Commission and by good and lawfull men of the same Shire in such manner and form to all intents and purposes as if such Treasons or Concealments of Treasons had been done perpetrated and committed within the same Shire where they shall be so inquired of heard and determined as is aforesaid Provided alwayes 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 Indictment they shall have their Tryall by their Peers in such like manner as hath been heretofore accustomed From this Act I shall deduce several Arguments and conclusions to prove that the Prisoner at the Bar though a Peer of Ireland shall be tryed by an ordinary Iury of Middlesex here not by his Peers in or of Ireland for the Treasons committed in Ireland whereof he stands here indicted For my more methodical proceeding I shall divide the single point in controversie into these 3 subordinate Questions 1. Whether this Sâ—atute extends to Treasons committed in Ireland by Irish Commoners 2ly Whether it reacheth to Treasons in Ireland perpetrated by Irish Peers as well as by Irish Commons 3ly Admit it extends to Irish Peers as well as Commoners whether it doth not then inevitably out them of their Tryalls by Irish Peers and Subject both of them alike to a Tryal at this Bar by a Middlesex Iury For the first Whether this Act extends to Treasons committed in Ireland by Irish-Commoners There is but little doubt of it For first it is as clear as the Sun at Noon-day that this Act extends to all Treasons done or perpetracted in Ireland by Irish-Commoners for the main scope and intent of this Law being to make all manner of offences then made or declared or hereafter to be made or declared to be Treasons misprisions of Treasons or concealments of Treasons by any Laws or Statutes of this Realm done perpetracted or committed by any person or persons out of England inquirable or tryable within this Realm without any scruple or difficulty either in this Court or before such Commissioners in such Shire of this Realm as the King by his Commission shall assign the very sum and substance of this Act as the express letter thereof resolves the Realm of Ireland being out of this Realm of England and no part thereof and Treasons therein committed by Commoner being Treasons done and perpetrated out of this Realm of England as is clear by 20 H. 6. f. 8. a. b. â—9 H. 6. 53. b. 32 H. 6. 25. b. 2 R. 3. f. 12. 1 H. 7. f. 3. Plowden 368. b. Dyer f. 360. b. Cook 7. Report f. 22 23. Calvins case â—H 5. c. 8. 4 H. 5. c. 8. 4 H. 5. c. 6 Cooks 3 instit. p. 1â— 18. These treasons must certainly and most necessarily be both within the intent and words of this Law and so consequently tryable in this Court by an ordinary Jury of Middlesex without any scruple or difficulty The rather because Ireland though out of this Realm of England is vet part of the Kings dominions and a subordinate Kingdom united and annexed to the Crown of England governed by the Laws of England and bound by Acts of Parliament made in England in many Cases as is resolved and undeniably evidenced by Pat. 6. Iohan. in 6. n. 17. Rot. Pat. 8 Johan m. 1. Claus. 12. H. 3. m. 8 Pat. 30 H. 3. m. 3. 14 H. 3. The Statute of Ireland Pat. 5 E. 3. pars 1. m. 25. 11 E. 3. c. 2 3 4 5. 27 E. 3. c. 3 18. 13 E. 1. Stat. de Mâ—rcat 1 H. 5. c. 8. 4 H. 5. c. 6. 1 H. 6. c. 3. 3 H. 7. c. 8. 1 H. 8. c. 5. â—32 H. 8. c. 4. 35 H. 8. c. 2. 32 H. 6. Statutes of Ireland c. 1. 8 E. 4. in Ireland c. 1. 10 H. 7. in Ireland c. 4 5. 22. 7 H. 8. in Ireland c. 1. 28 H. 8. in Ireland c. 2 3 5 6 7 8 13 15. 18 19. 33 H. 8. in Ireland c. 1. 1 H. 7. f. 3. Kelway f. 202. b. Cooks 7 Rep. of 22 23. Calvins case 1 Inâ—tit f. 141. b. 4 Instit. f. 349 350 c. 3 Instit. p. 18 Mr. Saint Johns Argument at Law at Straffords attainder p. 53. to 64. And therefore Treasons there committed are more apt and proper to be tryed here within the letter and intention of this Law then Treasons done in France Spain or any parts else out of the Kings dominions where our Laws and Acts of Parliament are not obligatory 2. This Statute as I conceive was principally made to punish Treasons misprisions of Treasons and concealments of Treasons in Ireland where they were more frequently done and perpetrated than in any or all parts of the world out of this Realm of England as our Histories and the * Irish-Statutes record And the â—orid general Treason Insurrection and Rebellion in Ireland much like this for which the Prisonner is indicted mentioned in the Statute of Ireland 28 H. 8. c. 1. but 7 years before this Act with other frequent Treasons and Rebellions there were no doubt the chiefest ground of making this new Law And that which puts it out of all dispute is the Statute of 28 H. 8. made in the Parliament at Dublin in Ireland c. 7. which reciting the Statute of 26 H. 8. c. 13. made in England concerning Treasons and enacting as this of 35 H. 8. That if any of the Kings Subjects Denizens or others do commit or practise out of the limits of this Realm of England in any outward parts any such offences which by this Act are made or heretofore have been made Treason that then such Treason whatsoever it be that shall so happen to be done or commitshall be inquired and presentâ—d by the oaths of 12 good lawfull men upon good and probable evidence and witness in such Shire and County of this Realm before such persons â—â— it shall please the Kings Highness to appoint by commission under his great Seal in like manner and form as Treasons committed within this Realm have been used to be inquired of and presented that then upon every indictment and presentment founden and made of any such Treasons and certified into the KINGS BENCH like process and other circumstance shall be there had and sued against such offendors as if the same Treasons so presented had been lawfully found to be done and committed
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 conâ—ained be established confirmed acceâ—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 Treasonâ— 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 Macâ— Mahones case this last Michaelmas Term the Pâ—lâ—oâ—eâ—â— 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 subâ—tane extrajudicial opinion of Dyer M. 19 20 Ellâ— 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 sâ—â—â—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 Gloâ—â—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. â— 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 determâ—â—eâ— 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 â—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 inâ—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
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 tà m praeâ—lare â—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 Quâ—â— distincte in Rotulum redactas decommune consilio omnium fidelium nostrorum vobis mittimus signatas sigillo Domini Guâ—â—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 appenâ—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 mâ—ipso apud Westm. 8 die Maii anno 12. In Cooks 3 Instit. f. 141. b. 4 Instit. p. 3â—9 b. in 18 H. 3. Rot pat m. 17. n. 21. There is mantion made of Consuetudines Leges Regâ—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
Pat. 12. E. 1. m. 11. Pro diversis in Hibernia quod uti possint Legibus Angliae in Hibernia Rex omnibus ballivis fidelibus suis Hiberniae ad quos c. salutem Volâ—ntes Giraldo fil Johannis Hibernico gratiam facere specialem concedimus pro nobis Haeredibus noâ—tris quod idem Geraldus liberi sui quos legitime procreaverit hanc habeant libertatem quod ipsi de caeteâ—o in Hibernia utantur legibus Anglicanis firmiter inhibemus ne quis â—os contra hanc concessionem nostram vexet in aliquo vel perturbet In cujus c. T. Rege apud Carnarvan 30 die Maij Consimiles literae habet Margeria de Lessan Henricus de Lessan Petrus de Lessan Andreas de Lessan Bene dictus fil Johannis Ardmagh Willielmus Heuke Hibernici In cujus c. Teste ut supra Pat. 18. E. 1. m. 24. Rex omnibus Ballivis fidelibus suis in Hibernia ad quos c. salutem Volentes Isamaiae filiae Oragilig Matildae fil Oragilig Hibernicis graciam facere specialem concedimus pro nobis haereaibus nostris quod eadem Isamaia Matilda ad totam vitam suam hanc habeant libertatem videlicit quod ipsae de caetero in Hibernia utantur legibus Anglicanis fiâ—miter inhibemus ne quis eas contra â—anc concessionem nostram vexet in aliquo vel perturbet In cujus c. T. Rege apud Westm. 12 die Junii per ipsum Regem Pat. 19. E. 1. m. 20. Rex omnibus ad quos c. salutem Sciatis quod de gratia nostra speciali concessimus Willielmo filio Carmok Clerico quod ipse omnes posteri sui imperpetuum Lege consuetudine Anglicana utantur in terra nostra Hiberniae iâ—a quod ipsi per alias leges consuetudines pâ—r nos ministros nostros quoscunque de caetero non deducantur contra voluntatem suam sed quod ipsi in vita sua morte de caetero libertate gaudeant Anglicana In cujus c. Teste Rege apud Ashermg 22 die Jan. The like Patent is granted Mauricio de Bre. Hibernico Pat. 24. E. 1. m. 3. These Records with Claus. 2. E. 3. m. 17. Rex dilecto fideli suo Johanni Darcy de Nevien Justiciario suo Hiberniae salutem Exparte quorundam hominnm de Hibernia extitit supplicatum Ut per statutum inde faciendum concedere velimus quod omnes Hibernici qui voluerint legibus utantur Anglicanis it a quod necesse non habeant super has chartas aliquas a nobis impetrare Nos igitur certior ari volentes si sine alieno praeâ—â—dâ—cio praemissis annuer â—valeamus vobis mandamus quod voluntatem magnatum terrae illius in proximo Parliamento ibidem tenendo super hoc cum ailigentia persâ—rutari faciatis de eo quod inveneritis una cum vestro consilio ad visamâ—nto nos distincte aperte cum celeritate qua potestis certificetis hoc breve nostrum nobis remittentes which compared with Claus. 5. E. 3. part 1. m. 25. Pro hominibustâ—rrae Hiberniae de Lege ANGLIAE UTENDA in custodiis recuper andis c. are an unanswerable evidence beyond contradiction That the great Charter Liberties Customs and Laws of England granted to those of Ireland by King John Henry the third Edward the first and third extended only to the English Subjects inhabiting Ireland and to such Irish who lived in English Counties in due subjection to the Kings of England or were by special Charters of indenization enabled to enjoy the benefit of them who were but few in consideration of the rest of the Irish Nobility Gentry and Commons retaining their ancient Brehon Laws and would not submit to the Laws of England nor Government of our Kings against whom they frequently rebelled being reputed rather Enemies than Rebels and usually so stiled in the Statutes of Ireland till the Statute of 33 H. 8. c. 9. as appears by the Statutes of 18 H. 6. c. 3. 25 H. 6. c. 4 5. 28 H. 6. c. 1. 3 E. 4. c. 2. 5 E. 4. c. 6. 18 E. 4. c. 2. 10 H. 7. c. 9 10 17 19. 28 H. 8. c. 11. by Sir John Davis Irish Reports in the Case of Tanistry fol. 39. the common Laws and Statutes of England being not universally received or established throughout the whole Realm of Ireland till after the Statutes of 3 and 4 Phil. and Mar. c. 3. 11 Eliz. c. 9. and King James his Proclamation in the third yeer of his reign or at leastwise till the Statutes of 8 E. 4. c. 1. or 10 H. 7. c. 22. which established all the Statutes made in England concerning or belonging to the good of the same only as to the Englishry or English Pale and Counties not to the Irishery as the Statutes of 17 H. 7. c. 8 9 10 11 13 17 19. 35 H. 6. c. 3. 5 Ed. 4. c. 3 4 5. 13 H. 8. c. 3. 28 H. 8. c. 15. made in Ireland with other Acts resolve which the Lord Magwire confesseth in his Plea and his Council cannot deny Now the Lord Magwire being none of the English Pale or Irish Sept Liege Subjects to our Kings but of the Irishry and professed Enemies to our Kings as the Irish Annals and Statutes inform us the Statute of Magna Charta and the Laws Liberties and Customs of England granted to the English and loyal Irish Subjects in Ireland and so this trial by Peers could not extend to his ancestors till after the Statutes of 8 E. 4. or 10 H. 7. of 35 H. 8. c. 1. yea after the Statutes of 3 and 4 Ph. and Ma. c. 3. and 11 Eliz. c. 9. for reducing the Irishry into Counties and under the Laws and Statutes of England to which they were not formerly subject And from these Patents of King John and Henry the third forecited and the Statutes of 8 E 4. and 10 H. 7. till 35 H. 8. chap. 1. No one president of any one Irish Peers trial by his Peers in Ireland in any case whatsoever can be produced Therefore certainly there was no such trial known or in use in Ireland before 35 H. 8. nor any president of it since till one of late and una Hirundo non facit Ver. If then the Peers of Ireland before the making of this Act of 35 H. 8. were never actually tried by their Peers for any treason done in Ireland for ought can be proved and there be no express Act for any trial by Peers there for any Treason but only the Act of 2 Eliz. c. 1. and 6. and that only for special Treasons within those Laws which are none of those for which the Prisoner stands here indicted I may safely conclude That this Law of 35 H. 8. never intended to preserve to Irish Peers a trial by their Peers in Ireland which kinde of trial was never
meaning And so much in answer to this grand objection wherein I have been over tedious but shall recompence it with brevity in the remainder The second Objection a meer branch of the former is this That if Irish Peers should be tryable by an ordinary Jury within this Law for Treasons done in Ireland this might prejudice the whole Nobility of Ireland who by colour of this Act might be sent for out of Ireland and tryed here for Treasons Misprisions and concealments of Treasons there committed and so quite deprived of their birth-right of tryal by their Peers which would be of dangerous consequence I answer 1. That I have manifested that this tryal by Peers was never deemed claimed nor enjoyed in Ireland as a privilege by Irish Peers nor ever used or practised in that land before this Act but once claimed since and that in Ireland Therefore it cannot be intended that this Statute or the makers of it ever imagined to save this manner of Tryal by Peers only to Irish Peers which they never enjoyed nor so much as once claimed or possessed before the making of it Neither can it be any injury or injustice to deprive them of that now they never heretofore claimed used enjoyed as their privilege and birth-right being not indubitably setled on them by any Law that I have seen but only in some special Cases of Treason since 35 H. 8. wherof this is none by the late Acts of 2 El. z. c. 1. 6. when as this privilege is taken from them not by a bare strained exposition or implication but by this express Act of Parliament made long since for the Common good and safety of England and Ireland not yet repealed 2ly This Objection with as great or greater strength colour might be made for all the Commons of Ireland far more numerous and considerable than their Peers they being deprived by it of tryals by Irish Juries in their native Country than for Irish Peers alone which Tryal here against Irish Commons was never of late excepted against this Law having been so often adjudged to reach to them Therefore there is no colour to exempt Irish Peers out of it 3ly This pretended prejudice to Irish Peers in point of Tryal by their Peers is soly in cases of High Treasons or Misprision and concealments of it and no other the Statute extending to no crimes but these alone Therefore the mischief is not great in general and no Irish Peers I presume but such who have trayterous or disloyal hearts will deem it a disparagement or injustice to them to be secluded of a Tryal by their Peers only in these Cases of High Treason And if others who are professed Rebels and Traytors murmur at it as none else will we need not much regard it nor prefer their pretended privilege before our own Kings Kingdomes Religions yea Irelands safety and wellfare in bringing them to a speedy tryal and condign punishments for their Treasons here in England by vertue of this Law 3ly Even by the very Common law before this Act Treasons committed in Ireland by Peers or Commons were tryable before the Marshall of England in England it self as is evident by the Parliament Roll of 2 H. 6. â— 9. * Where Iohn Lord Talbot being the Kings Lieutenant in Ireland accused James Bottiler Earl of Ormond of certain Treasons there particularly recited by him committed in Ireland before John Duke of Bedford Constable of England in his Marshals Court Which accusations the King by the advice of his Parliament did discharge and abolish to appease the differences between them Upon which else he might have been proceeded against though an Irish Peer without any tryal by his Peers See Cooks 4 Instit p. 123 124. Therefore a fortiori this special Act of Parliament may subject Irish Peers to a tryal by a substantial English Jury in England for Treasons done in Ireland since tryable for them here before its making even in the Marshals Court 5ly This Statute doth not simply take away the tryal of all Treasons committed in Ireland from thence only it makes them all tryable here when the King State and Parliament shall see just cause or occasion for tryal of them here as now they do in these times of general rebellion there when the Rebels are so predominant and the times such that no safe fair or indifferent tryal of this Traytor can be there had or expected And seeing the Law and common reason will inform every man that the King and State will never be at the cost and trouble to send for Traytors and Witnesses out of Ireland to try them here but upon a most just occasion and urgent necessity to prevent either a faiter or delay of Justice in case of horrid Treasons and Rebellions And no Irish Peer who hath any loyalty in his heart or reason in his head will deem it a dishonor or prejudice to the whole Irish Peerage in general or the trayterous Peers sent hither to be tryed in particular to be outed of a tryal by Irish Peers in such Cases of necessity and expediency only it being better and safer for this Realm and Ireland too that these native Irish Peers who have been proved to break out into actual Rebellion in all ages as this Prisoners Ancestors have done as much or more than any his * Grandfather being the first man that broke forth in Tyrones Rebellion should be subject to tryals for the same by ordinary English Juries here and outed of their Peerage then that such Arch-Traytors and Rebels as the Prisoner and his Confederates are guilty of the effusion of many thousands of Protestants and English mens bloods should escape uncondemned or be executed by Martial law And our Law in this Case which concerns the safety of 2 Kingdoms at once will rather suffer a particular mischief especially to rebellious Peers than a general inconvenience to both Realms and all loyal Subjects in both 6ly Though the tryal of all English and Irish Peers by a legal indictment presentment and Jury of their Peers alone and not by Martial-law or Commissioners themselves alone be an essential fundamental Right and Privilege for the securitie of their lives and estates which our Parliaments in all ages have been very curious to preserve and not to alter yet the Tryal of Peers by Peers alone not by a Jury of other Freemen for the most part if rightly considered is rather a meer punctilio of honor than matter of real privilege or benefit to Peers and by intendment of Law and common experienc a fair and legal tryal by the oaths of 12 honest substantial indifferent English Gentlemen or Freeholders to whom the Prisoner may take all * sorts of lawfull challenges by Law which shall be allowed if there be any just cause of suspition of partiality injustice consanguinity c. besides his peremptory challenge of 35 Jurors without cause which challenges * Cook affirms shall not
Irish Commons else they should be in far better condition than English or Scotish Peers and quite exempted out of this Act. Now the same words that bring English-Peers within this Law must of necessity hook in Irish-Peers too there being no clause which exempts or includes the one more than the other 5ly The very letter intent and scope of this Act as appears by the body of it and likewise by the Statutes of 26 H. 8. c. 13. 5 6 E. 6. c. 11. to the same effect was to make all Treasons done or commiteed out of England by any person or persons whatsoever tryable in England either before the Justices in this Court or * before special Commissioners in some other Counties but to be still tryable within this Realm as the words All manner of Treasons hereafter to be done perpetrated or committed by any person or persons out of the Realm of England shall be from henceforth enquired of head and determined before the Kings Justices of his Bench c. clearly resolve in direct terms Therefore to make the Treasons of Irish-Peers committed in Ireland or elsewhere tryable here in England as well as the Treasons of English-Peers or Irish-Commoners And to send them back into Ireland to be there tryed by their Peers when once they are here in Prison and indicted in this Court by exempting them out of this Act contrary to the very letter and intent of the Law is to run point-blank against the very words and meaning of this Law and the Law-makers Therefore he must by this Act be tryed at this Bar and that by an ordinary Jury only as I shall prove anon 6ly The very scope and sole purport of this Act is not to make new Treasons or Traytors which were none before but to bring real Traytors only for Treasons formerly made or hereafter to be made and declared Treasons by the Laws and Statutes of this Realm to exemplary punishment in this Kingdome for the peace and preservation of the King Realm and the better execution of Justice the very life of Laws upon Delinquents only of the highest rank for the most transcendent crimes of High Treasons of misprision or concealments of Treasons not for Felonies or petit Treasons Which consideration must necessarily induce us for the common good to give it the largest fullest and most equitable constraction that may be Thus the Judges in former times have always interpreted it as appears by Dyer f. 132 298. Cookes 7. Rep. Calvins Case f. 23. a. his first Institut on Littleton f. 26. his 3 Instit. p. 24. and in Orourkes case wherein the Judges resolved 1. That the Statute of 1 Mar. Sess. 1. repealing all former Treasons but those within 25 E. 3. and of 1 2 Phil. and Mar. c. 10. enacting That all Tryals hereafter to be had for any Treason shall be had and used only according to the due course of the Common-law of this Realm and not otherwise exend not to the taking way of forem Treasons or their tryals by this Law And in Orourks case they extended it by equity beyond and in some sort against the letter of the Law it self for he standing mute and refusing his Tryal was thereupon condemned and executed for a Treason committed by him in Ireland though the words of the Statute are The Treason shall be enquired of heard and determined before the Justices of the Kings Bench by good and lawfull men of the same Shire where the said Bench shall sit and the Act speaks nothing at all of standing mute But this being a publique Law for the Common good to bring Traytors only to their Tryal and just punishment his refusal to put himself upon his Tryal was adjudged to be a determination and conviction of his Treasons within the Act else any Traytor by standing mute might evade and frustrate this good Law If then this Statute may thus be construed by equity and dilated beyond the words to one who stands mute for a Treason done in Ireland much more may it be extended to a treason by an Irish-Peer who is fully within the words and intent of it as I have already manifested And it would be a most pernicious gloss which should either elude or nullifie this beneficial publique Law 7ly It is clearly resolved in and by our Parliaments 13 E. 1. Proem. 13 E. 1. of Statute Merchants 21 E. 3. rot parl. n. 67. in the Statute of 5 H. 5. ch. 6. in divers of our * Law-books That Acts of Parliaments made in England wherein Ireland is either specially named or generally and necessarily included do bind those in Ireland both Commoners or Peers alike This therefore being such a Law extending and binding those in Ireland as hath been resolved in the forecited Cases it must certainly bind both the Peers and Commons of Ireland to a Tryal at this Bar for Treasons done in Ireland when the King and Kingdom deem it necessary or expedient to try them here in England 8ly The Proviso in this Act for tryal of Treasons done out of this Realm by Peers within the same extends only in positive terms to Peers of this Realm of England because they only are Peers within England and so only tryable by their Peers for forein Treasons within the same not to Peers of Ireland who are no Peers at all nor tryable by their Peers within this Realm of England Therefore this Proviso extending only to Peers of this Realm excludes all other forein Peers whether Irish or Scots from any tryal by their Peerâ— in England for Treasons acted out of it 9ly There is very great reason why Natural Irish Peers and Barons should be within the compass of this Law as well as Commoners and rather they than any other forein Peers because as our * Historians the Irish Annals Statutes and our Records do testifie ever since their conquest by K. Henry the 2d and submission to the Kings of England they have frequently almost every year in most Kings Reigns broken footh into private petit or general Rebellions and Insurrections against the English as I could instance in sundry particulars in which Rebellions I commonly find a Magwire a Mao-Mahon and Oneal in the van as Ring-leaders of all the rest as they were in this last Rebellion wherein most of the native Irish Peers and greatest septs have been deeply engaged as principal Conspiratours Among other Rebellions I find in Story and which is more authentick in the express Statute made in the Parliament at Dublin in Ireland anno 28 H. 8. c. 1. but 7 years before this Law That Gerald Fitz Gerald Earl of Kyldare the Earl of Desmond with divers other of the Irish Peers and Gentry conspiring together to extirpate the English and deprive the King of his Soveraignty in Ireland did send to the French King the Emperour and Bishop of Rome for ayd and assistance for taking the same Land out of the Kings and
been accustomed heretofore that Irish or anie other forein Peers should be tried for anie Treasons here committed by English Irish or anie other forein Countrie Peers within the Realm of England Nay no one President of this kind was ever heard of and it is an impossible thing in point of Law as I have proved therefore no such trial by anie Peers can be once thought of or imagined for the Prisoner or anie other Peer of Ireland within the purview or proviso of this Act 5ly I shall adde further ex abundanti to put this case out of all question that I have made some cursorie search into most of the Irish Annals Histories Antiquities Statutes upon this occasion and I should have made a further inquisition had I enjoyed anie vacant hours to do it yet I cannot find so much as one President of anie Irish Peer tried in Ireland for Treason or anie other offence by his Peers before this Statute of 35 H. 8. and I believe the Prisoners Councel cannot as indeed they neither did nor could produce one example of such a trial there by Peers before this Law nor anie Act of Parliament in that Realm before this Statute concerning Treason which provides that Irish Peers shall be tried by their Peers there being no such clause or least hint thereof to be found in the Statutes of 18 H. 6. c. 2 3. â—â— H. 7. c. 13. 13 H. 8. c. 1. 28 H. 8. c. 1 2 7. which make sundrie offences Treasons and extend to and mention Irish Lords and Rebels by name as well as Commons all and everie of these Acts leaving both the Irish Peers and Commoners to the self-same rrial by a Jury And since this Act I presume they cannot produce above one president and that a verie late one in case of Treason where an Irish Peer was tried by his Peers and it was the case of the L. Slane much about 20 years since there tried and acquitted by his Peers in Ireland as I am informed before which time it was then confessed by the Judges there they never heard or read of any one such tryal used in Ireland and since it we have heard of no other trial there by Peers to second it but onlie of one Noble Lord the Lord of Valentiae Vicount Norris there extrajudiciallie condemned by meet Martial-law in a Council of War even in times of peace by the Earl of Strafford An. dom 1635. but not executed nor tried by his Peers in a legal way all their Peers formerlie being there either attainted by Act of Parliament as is evident by the Irish Statutes of 28 H. 8. c. 1. 3 4 Ph. Ma. c. 2. 11 El. c. 1. 13 Eliz. c. 6 7. 27 Eliz. c. 1. 28 Eliz. c. 8 9. 11 Jac. c. 4. 2 H. 6. rot Parl. n. 8. or executed by Martial-law as soon as apprehended in the Wars or else slain in actual Rebellion or pardoned upon their submissions without anie trial for their Treasons by their Peers For Attainders of Irish Peers and other Traitors and Rebels by Act of Parliament in Ireland I find the Earl of Kildare with others attainted for a Treason and Rebellion much like this for which the Prisoner stands here indicted in a Parliament held at Dublin in Ireland 28 H. 8. c. 1. Since this in 11 Eliz. c. 1. Shan O Neale a bloodie desperate Rebel was attainted by Parliament after his death being hewn in pieces by the Scots and the name of Oneyle extinguished it being made High Treason for anie to assume that name And I find a Mac-Mahon and Magwire forfeiting Lands among other Rebels in that Act which largelie sets forth the Queens Title to Ireland 27 Eliz. ca. 1. James Eustace Viscount of Baltinglas was attainted of High Treason for a publique Rebellion against the Queen 28 Eliz. cap. 9. I find John Brown and near one hundred more Irish-men by name attainted of High Treason by this Act for an open Rebellion In 11 12 Iac. C. 4. I find Hugh Earl of Tyrone Jury Earl of Tirconell Caconaugh Magwire Mac-Mahon and above 20 more chief Irish Gentlemen attainted of High Treason by this Act for their open Rebellions But for a trial of any Irish Peer for anie Treason in Ireland by his Peers I can meet with no president as yet but that of the Lord Slane onlie and shall be glad to be informed of any other to parallel it Indeed in the printed Statute of 2 Eliz. c. 1. made in Ireland for restoring to the Crown the antient Jurisdiction over the State Ecclesiastical and Spiritual and abolishing all forein power repugnant to the same and in the Statute of 2 Elizabethae in Ireland cap. 6. intituled An. Act whereby certain offences are made High Treason I meet with these two clauses concerning the trial of Irish Peers for Treasons onlie within these Acts. And if it shall happen that anie Peer of this Realm shall fortune to be endicted of and for anie offence that is made Premunire or Treason by this Act that then the same Peer or Peers so being indicted shall be put to answer for everie such Indictment before such Peers of this Realm of English blood not Irish mark it as by the Lord Deputie Governor or Governors of this Realm shall be by Commission appointed under the Broad Seal and to have his and their trial by his and their Peers and to receive and have such like judgement upon the same trial of his or their Peers or making open confession of the same offence or offences as in other Cases of Treason and Premunire hath been used or is used in other Cases of High Treason and misprision of Treason Which later clauses As in other cases of Premunire and High Treason hath been used And as is used in other cases of High Treason or misprision of Treason relate only unto thosè words to receive and have like judgement upon trial and so onlie to the judgement and sentence given in these new Treasons and offences enacted by these Acts not to the manner of trial by Peers which is meerlie a new kind of trial never mentioned in any other Irish Acts before these and restrained onlie to the new Treasons and Premunires specified in these Acts in imitation of the * English Statutes made in the self-same Cases which provide a Tryal by Peers for our English Peers which was never heard of in any Acts of Parliament in Ireland till these and never practised that I read of in that Realm either before or since To clear this up more fully the Statute of 11 E. 3. c. 4. makes mention of Prelates Earls and Barons in Ireland as well as in England And the Statute of 4 H. 5. c. 6. prohibits that any one of the Irish Nation should be chosen to be an Arch-Bishop Abbot or Prior within Ireland because many of them against a former Act there made had been made Arch-bishops Bishops Abbots Priors wherby they became Peers of the
3. chap. 8. 4 E. 4. chap. 1. 3 H. 7. chap. 8. 14 H. 4. Rastal Parceners 2. 27 E. 3. of the Staple chap. 1. 18 14 Eliz. chap. 5. 1 H. 7. ass 3. 3 H. 7. fol. 10. 2 R. 3. f. 12. and Cooks 7 Report Calvins Case f. 17 22 23. 4 Instit. p. 35. it being so resolved as to this purpose by all the Judges of England in Orourks and Sir John Parrets Cases cited in Calvins Case and adjudged in Mac-mahons Case tried at this Bar the last Term that this Act of 35 H. 8. â— 2. bindes those of Ireland for Treasons there committed makes them subject to a trial here whether Peers or Commoners as I have already proved 5ly It is unquestionable That every Commoner of Ireland hath as large as full an interest in Magna Charta the Laws and Priviledges of England and Ireland and as much right to be tried in Ireland for Treason there committed by an Irish Jury as any Peer in Ireland hath in or by them to be tried there by his Peers these Laws being no respecters of persons and every mans birth right alike of Commons as much as of Peers as the Laws and great Charter of England are Magna Charta being as largly made and as amply granted to the meanest Freeman as to the greatest Peers of England and Ireland as the Prologue and 9 14 15 19 21 22 26 27 29 Chapters thereof resolve Since then this Act of 35 H. 8. chap. 2. doth without all controversie as hath been resolved in the forecited Case deprive the Commoners of Ireland of a Trial in Ireland by Irish Commoners and subjects them to a trial by an English Jury here for Treasons there committed for which by the common Law the Customes of Ireland and Magna Charta before the Statute of 26 H. 8. and this Act of 35 H. 8. they could be no where tried but only in Ireland not in England as is collected from the Case of Sir Elias Ashburnam Tr. 18 E. 3. coram Rege Rot. 14. cited by Sir Edward Cook in his 4 Instit. p. 356. the principal case that can be objected against me which makes nothing to the purpose being long before these Statutes were made Therefore by the self same reason it shall take away the trial of Irish Peers in Ireland and England by Irish or English Peers for Treasons perpetrated by them in Ireland and subject them to a trial by an ordinary English Jury at this Bar or before Commissioners in any County of England as I have already proved which Jury here are in truth Peers to all Irish Peers being here no Peers at all but onely Commoners If it be objected That this Law of 35 H. 8. chap. 2. cannot abrogate Magna Charta all Acts and Iudgements against Magna Charta being declared voyd by 25 E. 1. ch. 1. 2 4. 28 E. 1. ch. 1. 42 E. 3. ch. 1. Therefore it shall not take away the tryal by Peerage from Irish Peers I answer 1. That you may by like reason object that it cannot take away a Tryal in Ireland by an Irish Jury from Irish Commoners seeing it cannot repeal Magna Charta and the Common-law But this objection is yielded and adjudged idle in case of an Irish Commoner therefore it is and must be so in case of an Irish Peer 2ly The objected Statutes do make void and null all Acts and Statutes made against Magna Charta before the Parliaments wherein they were made but they extend not at all to future real Parliaments and their Acts subsequent Parliaments having alwaies had power to control alter abrogate precedent Acts yea the very Common-law and Great Charter it self when inconvenient or defective as all our Books accord Therefore Sir Edward Cook in his 4 Institutes p. 42. resolves and proves at large by 11 R. 2. c. 3. 5 roâ— Parl. n. 22. 48 49. 1 H. 4. c. 3. 2 H. 4. c. 22. 21 R. 2. c. â—6 1 H. 4. n. 48. 70. 144. 21 R. 2. n. 20 21. 36 37 85 86 89 90. that Acts yea and Oaths against the lawfull power of subsequent Parliaments that they shall not repeal such and such Laws though mischievous or unjust bind not at all and are merely idle For â—odem modo quo quid constituitur dissolvitur those who have power to make any Laws having as great as full a power to controll alter or repeal them when they see cause and necessity for it as you may read in Rastals and Poultons Abridgements of Statutes and the Statutes at large repealing former Acts and how often Magna Charta hath been altered supplied or * repealed in some particulars in and by our Parliaments since its making by subsequent Acts both by prescribing creating new imprisonments forfeitures corporal punishments fines executions treasons capital offences customs imposts not then known or different waies or places of tryal not then in use in Cases of forein Treasons and the like by a Jury in England not then usual but since confirmed by the Statutes of 26 H. 8. c. 13. 28 H. 8. c. 25. 33 H. 8. c. 27. 35 H. 8. c. 2. 5 6 E. 6. c. 11. contrary to or * different from Magna Charta and the Common law 2 E. 6. c. 24. is so well known to all Lawyers that I will not spend breath to prove it 3ly I answer that this Act of 35 H. 8. doth both alter and in some sort repeal Magna Charta and the Common-law as to the point and place of trying forein Treasons in England it self as to English Peers and Commoners to whom alone the great Charter was first granted they being not tryable in England by Iury or Peers for any forein treasons by the Common-law or great Charter Therefore a Fortiori it must both alter and repeal the Common-law and great Charter as to Irish Subjects for whom the great Charter was never originally made not yet directly confirmed to them by 10 H. 7. but only implicitly and doubtfully at most as I have proved 4ly I answer that this Act of 35 H. 8. doth no waies abrogate or alter Magna Charta in truth or reality but rather ratifie confirm it in the form and manner of this Tryal though not in the place For Magwire being only a Peer in Ireland but not in England Every Free-man of England that shall be impanneled to try him is in truth law his Peer here And this Act enacting that he shall be tryed not by Marshal-law or the Judges themselves but by good and lawfull men of the Shyre where the Kings Bench shall sit who are his equals and Peers in England and saving the Tryal by Peers to every Peer of this Realm after his indictment found by Jury This way and form of tryal by Jury in England being then and now the Law of the Land is no contradiction or repeal at all but a direct pursute and confirmation thereof according to its letter
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 iâ— 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 â—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. â—â— 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 fiâ—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