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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
england_n	edward_n	king_n	prisoner_n	3,115	5	8.4781	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

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 que●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 o● persons ●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

in Anglia similiter currant in Hibernia sub vovo sigillo nostro c. Teste meipso apud Woodstock 19 die Septemb. The Patent of King Iohn which this Patent mentions is that of Rot. Pat. 6 Johan Regis m. 6. n. 17. never yet printed Rex c. Justiciariis Baronibus Militibus et omnibus fidelibus suis c. sciatis quod dedimus potestatem Justiciariis nostris Hibernioe quod brevia sua currant per terram nostram et potestatem Hiberniae scilicet Breve de Recto de feodo aimidiae Militis et infra et erit terminus de morte aut post transfretationem Henrici patris nostri de Hibernia in Angliam Et Breve de Nova disseisina et erit terminus post primam Coronationem nostram apud Cant. Et Breve de Fugitivis et Nativis et ejus erit terminus post captionem Dublin Et Breve de divisis faciendis inter duas villas exceptis B●roniis Et ideo vobis mandamus et firmiter praecipimus quod haec it a fieri et firmiter teneri * per ●otam potest atem nostram Hiberniae faciatis Teste meipso apud Westm. 2 Novemb. In the 41 year of his Reign Claus. 41 H. 3. m. 11. dors I find this memorable writ touching the confirmation and Customes of England setled in Ireland by assent of the Prelates and great men thereof Rex Thesaurario et Baronibus de Scaccario Dublin salutem Quia de assensu et vosuntate Praesatorum Magnatum terrae Hiberniae dudum fuit provisum et concessum quod eisdem legibus uterentur in terra illa quibus homines regni nostri utuntur in regno illo et quod eadem Brevia quoad terras tenementa recuperanda currerent in terra illa quae currunt in regno praedicto sicut nostis Et dicta provisio concessio omnibus retroactis temporibus fuerit obtenta approbata miramur quamplurimum quod sicut ex insinua●ione venerabilis patris Thomae Lismor Episcopi accepimus emanare permisistis ex Cancellaria Edwardi filii nostri in Hibernia contra consuetud inem optentam formam Brevium in regno nostro ufitatam Breve subscriptum contra praefatum Episcopum in hac verba E. illustris Regis Angliae primogenitus Vic. Waterford salutem Precipe Thomae Lismor Episcopo quod juste sine dilatione reddat Waltero Episcopo Waterford Maneria de Archmordeglan Kilmordri Motha cum pertinentiis quae clamat esse jus Ecclesiae suae in quae idem Episcopus non habet ingressum nisi per Alanum quondam Lismor Episcopum cui Griffinus quondam Lismor Episcopus illa demisit qui in illa se intrusit post mortem Roberti quondam Lismor Episcopi qui inde injuste sine judicio dissesuit Robertum quondam Waterford Episcopum praedecessorem Episcopi post ultimum reditum c. Quia vero dictum Breve tam dissonum est et contra leges consuetudines in Regno nostro optentas formas brevium nostrorum ibidem approbatas praesertim cum Breve ingressus non transeat tertiam personam nec ratione intrusionis in terram aliquem post mortem alicujus competat actio alicui de terra illa nisi illi cui per mortem illam jus debetur in eadem Nec enim dicitur intrusor qui jure haereditario vel ratione Ecclesiae suae succedit praedecessori sui in hiis de quibus idem praedecessor fuit seisitus in Dominico suo ut de feodo die quo obiit Vobis mandamus quod si●dictum Breve a Cancellaria praedicta in forma praedicta emanaverit executionem ejusdem Brevis supersedeatis revocantes sine dilatione quicquid per idem Breve actum fuerit in Curia praefati filii nostri Teste apud Wynd 27 die Januar. Eodem modo scribitur Alano la Suche Justic. Hiberniae Waleranno de Wellesly sociis suis Justiciariis itinererantibus ut supra In the 5th year of King Edward 3. rot Pat. 5 E. 3. parte 1. memb. 25 It was enacted in a Parliament that year in England amongst other things Quod una eadem Lex fiat tam Hibernicis quam Anglicis excepta servitute V●cagiorum penes Dominos suos c. by a Parliament then holden in Ireland Yet notwithstanding all these Patents Charters Acts the benefit of the great Charter and of the Liberties Laws and Customs of England extended not to all Ireland and the Irish therein dwelling but only to such parts of Ireland as were reduced and divided into Counties and possessed by the English Colonies and to the English men inhabiting in Ireland and such Irish within the English Pale as lived in due subjection and obedience to the Kings of England or were specially endenized by their Parents to them not to the Irish Countries and Colonies which were not reduced into Counties and under the obedience of the Kings of England amounting to more than two third parts of Ireland in extent of Ground who had no benefit of the Laws or Liberties of England but by special Grants and Charters of indenization from the Kings of England which some Septs of the Irish and others purchased from our Kings as Sir John Davis proves at large in his Irish Reports in the Case of Tanistry fol. 37 38 39. and the Records there cited To which I shall add these following Records not mentioned by him fully evidencing this Truth Claus. 37. H. 3. m. 15. Dors. Rex Justic. Hiberniae salutem Monstravit nobis Mamorth Offerthierim Rothericus frater ejus quod Antecessores sui ipse licet Hibernienses fuissent semper tamen firmiter fuerunt ad fidem servitium nostrum praedecessorum nostrorum Regum Angliae ad Conquestum una cum Anglicis faciendum super Hibernienses Et ideo vobis mandamns quod si it a est ●●●c non permittas ipsos Mamorth Rodericum repelli●●● quin possint terras vendicare in quibus jus habent stcut quilibet Anglicus Quia si ipsi Antecessores sui sic se habu●runt cum Anglicis quamvis Hibernienses injustum est licet Hibernienses sint quod exceptione qua repelluntur Ibernenses a vendicatione terrarum aliis repellantur T●ste c. By this Record it is apparant that all Irishmen but those whose Ancestors joyned with our Kings in the conquest of Ireland and were loyal Subjects to our Kings had no benefit of the Kings Writs and Laws to claim or recover Lands in Ireland in 37 H. 3. Hereupon divers native Irish men purchased several Patents from our Kings granted out of special grace to enable themselves and their Posterity to enjoy the benefit of the English Laws in Ireland for which I shall cire these few ensuing Presidents instead of many of like nature Pat 17. Johan Reg. memb. 15. together with

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 Vol●ntes Giraldo fil Johannis Hibernico gratiam facere specialem concedimus pro nobis Haeredibus no●tris quod idem Geraldus liberi sui quos legitime procreaverit hanc habeant libertatem quod ipsi de caete●o in Hibernia utantur legibus Anglicanis firmiter inhibemus ne quis ●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 fi●miter inhibemus ne quis eas contra ●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 i●a quod ipsi per alias leges consuetudines p●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 prae●●d●cio praemissis annuer ●valeamus vobis mandamus quod voluntatem magnatum terrae illius in proximo Parliamento ibidem tenendo super hoc cum ailigentia pers●rutari faciatis de eo quod inveneritis una cum vestro consilio ad visam●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 hominibust●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

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

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 S●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. ●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 ●H 5. c. 8. 4 H. 5. c. 8. 4 H. 5. c. 6 Cooks 3 instit. p. 1● 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 M●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. ●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 In●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 ●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 present●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 ●● 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

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. ●● 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

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.

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. ● 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 ro● Parl. n. 22. 48 49. 1 H. 4. c. 3. 2 H. 4. c. 22. 21 R. 2. c. ●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 ●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

be admitted or granted in case of tryal by Peers it being the usual antient a tryal in all Cases between the King and ordinary Subjects between man and man Peers and Commoners both in all civil and criminal causes whatsoever it is and will be every way as just as beneficial to a Peer in point of Law as a Tryal by twelve Peers upon their Honours only b without oath And the exchange only of the form of Tryal by twelve indifferent English Gentlemen of quallity upon their oaths for twelve Irish Peers of English blood nominated and appointed only by the King or his c Lord Deputy of Ireland upon their Honours without oath in this case of necessity can be no injustice injury or prejudice to the Irish Peers in general nor yet to the Prisoner in particular The rather if we consider First That every Indictment by which an English or Irish Peer is or can be tryed must first be proved before a grand Jury of Commons as this very Statute prescribes and found by them upon Oath not by a Jurie of Peers which is a kind of preparatory trial of a Peer by Jury without which there can be no proper tryal by Peers as is resolved Cooks 3 Institutes p. 28 30 31 32. 1 H 4. 1. 2ly That in Cases of Appeal brought by a common person ●or murder rape robberie or the like and likewise in case of a Premunire against an English Peer where his life is not brought into question he shall not be tried by his Peers but by an ordinary Jury as other men Trial of Peers by Peers being onlie in cases of Indictments for Treasons or Felonies at the Kings sute and no other as is clear by the Statute of Magna Charta c. 29. Neither will we pass upon him or condemn him without the lawfull judgement of his Peers c. the words onlie of the King not of the Commons In this our Books are express in point all cited in Sir Edw. Cooks 2 Institutes on this verie Chapter of Magna Charta cap. 29. in his pleas of the Crown or 3 Instit. c. 2. p. 30 31. 20 Ed. 4. 6. b. Now this case in question concerning not onlie the King but the whole Kingdome of England and Ireland and those manie thousands of Common persons whose innocent blood hath been shed in Ireland by him and his Confederate Rebels crying out for vengeance and Justice against him without delay he may thereupon be justly tried by an ordinary Jurie of Commons as well as in Case of an Appeal of murder brought by a common person 3ly Peers of Parliament even of this Realm not by inherent Nobility and Birth right but only in right of their Baronies which they hold in auter Droit as Arch-Bishops Bishops Abbots Priors and the like shall not be tried by their Peers for treasons or felonies at the Kings sute but onlie by an ordinary Jurie as Archbishop Scroope of York Cramner Arch-bishop of Canterbury * Adam de Orlton or Tarlton Bishop of Hereford Mark Bishop of Carlile Fisher Bishop of Rochester and others were tried 3 Ed. 3. f. 6. Kelwaies Reports f. 184. Stamfords Pleas of the Crown f. 135. Cromptons Jurisdiction of Courts f. 12. 19. Hall● Chron 6 H. 4. f. 25. Coo. 3 Instit. f. 36. Now if these verie English Peers to whom Magna Charta was immediatelie granted by name of Arch-Bishops Bishops Abbots being the first persons mentioned in the Prologue and ch. 1. 29 of this Charter shall be outed of their peerage in these Cases of Indictment at the Kings sute though within the very letter of Magna Charta because they are no Peers of England by blood or birth-right but in right of their Churches then a fortiori Irish Peers shall be deprived of their Peerage by this special Act who are not within the letter or intent of Magna Charta never made for them but for English Noble blood And if it be neither injustice nor injurie nor inconvenience to deprive these Ecclesiastical English Peers of a trial by Peers in cases of Treason or felony at the Kings sute though within the letter of Magna Charta and to try them by an indifferent Jurie of Freeholders It cannot be reputed any injustice injury rejudice or inconvenience at all now to out this Irish Peer of his Peerage here where he is no native Peer for such an horrid Treason as this 4ly Irish Peers are no Peers at all in England upon which account and reason if they commit Treason herein they shall be tried by an ordinarie Jury Therefore to try them onlie by Freeholders no● by Peers in England can be no injurie nor dishonour to their Peerage unless it were in Ireland where they are Peers and yet have been seldome or never hitherto tried there by their Peers as I have proved 5ly The verie Statutes of Ireland it self made by the Peers and Commons thereof to prevent manie mischiefs by Theeves Murderers and Rebells in that Realm do deprive both the Lords Commons there of any legal trial at all both for their lives and estates too witness the Statutes of 28 H. 6. c. 1. 3 5 E. 4. c. 2. expose them to the judgement slaughter plunder of particular men in some cases authorizing all manner of men that find any theeves robbing breaking up houses by day or night or going or comming to rob or steal having no faithfull man of good name and fame in their company in English apparel to take and kill those * Theeves and cut off their heads without endictment or Jury and seise their Goods without any impeachment of the King his Heirs Officers or any other for which they are to receive a sum of mony from every Plow-land and person of estate within the Barony where they shall slay and behead such Theeves And 25 H. 6. c. 4 5. If any English men shall have any hair or beard upon his upper lip like the Irish it shall be lawfull for every man to take their Goods as Irish Enemies and to ransome them as Enemies And if any Irish Enemy received to the Kings allegiance shall afterwards rob spoyl and destroy the Kings Liege people it shall be lawfull for every Liege-man that may meet with him afterwards to do with him and his Goods and Chattels as to Enemies who were never Liege and to ransome them at their free will without any impeachment of the Law And Ch. 6. If any men except Knights Prelates shall wear gilded Bridle Pestrels or other harneys that it shall be lawfull to every man that will to take the said man his horse and harnesse and to possess the same as his own Goods without endictment or legal tryal All which would be monstrous in England Therfore it is much more legal and just and no injurie at all to try the Prisoner an Arch-Rebel in England in this time of war and combustion in Ireland for his Treasons there