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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

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 In●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

rot Parl. n. 57. 1 H. 4. rot Parl. n. 44. 2 H. 4. n. 60 89. 2 H. 5. c. 6. 20 H. 6. c. 9. 22 H. 8. c. ● 23 H. 8. c. 13. 26 H. 8. c. 13. 28H 8. c. 7 10 18. 31 H. 8. c. 8. 14. 32 H. 8. c. 4 35. 33 H. 8. c. 12. 20 21 23. 35 H. 8. c. 2 3. 1 E. 6. c. 12. 5. E. 6. c. 11. 1 Mar. c. 6. 1 2 Phil. Mar c. 10 11. 1 Eliz. c. 1. 6. 5 El. c. 1. 13 El. c. 1. 14 El. c. 1. 18 El. c. 1. 23 El. c. 1. 27 El. c. 2. 3 Jac. c. 2. the Pitition of right 3. Caroli with sundry other Statutes enact and ſ all our Law books resolve so that no mans life whatsoever can legally be hazarded or taken away for any real or pretended Treason or capital crime without a double Jury the verdicts of 24 sworn good honest men at the least or more or by a Grand Iury and 12 or more Peers of the Realm if an English Peer and in case of Forrai ners by a Jury of 6. English and 6. of their own Countrey-men if so many may be found fit to be retorned of a Jury to avoid partiality which seconded must be with the Judgement of one or more sworn Judges setting on the Tribunal of Justice Which treble Bulwork and grand fundament I security of all English Freemens and others lives Inheritances Families Estates against all unlawfull Conspiracies Practises Combinations subordinations of Witnesses machiavilian Policies and arbi●rary tyrannical Powers proceedings whatsoever especially in perilous treacherous times if once undermined subverted or interrupted by arbitrary Courts-Martial Committees or any other new erected Tribunals by what names or specious pretences whatsoever of publick safety danger or necessity what sad effects it would soon produce to the endangering yea losse of the Lives Inheritances Fortunes of the most innocent best-deserving Persons and real Patriots of their Countries Laws and Liberties through the power policy confederacy covetousnesse ambition reveng malice emulation suspition tyranny injustice partiality self-interests of suborned perjured Witnesses or despitefull powerfull Prosecutors Accusers and of unrighteous packed partial prae-ingaged Judges admitting no legal Pleas against their exorbitant Jurisdictions no legal challenges to their petsons nor appeals from their unjust sentences though capital without any clear testimony to prove them guilty and worthy of death by our known Laws all Lovers of their own Families Friends Neighbours Liberties Lives Estates or the publick safety may eafily resolve not only from sundry experiments and t Histories in former and late ages over-tedious to recite but by the memorable Presidents of innocent Nahoth recorded for this purpose in sacred Writ 1 King 21. and of the Pro Zechariah 2 Chron. 24. 20 21. 22. compared with that of Psal. 94. 20 21. shall the Throne of inquity have fellowship with thee which frameth mischief by a Law They gather themselves together against the Soul or Life of the Righteous and condemn the innocent Blood with Ezech. 22. 6 9 12 27. I say 59. 6 7. Behold the Princes of Israel every one were in thee to their power to shed blood In thee have they taken Gifts to shed blood Her Princes in the midest thereof are like Wolves ravening the prey To shed Blood and to destroy Souls that is the u lives of innocent men under a pretence of Law Justice for pretended crimes Treasons to get dishonest gain their wayes are wayes of iniquity the Att of VIOLENCE is in their hands their feet run to evil and they make hast to shed innocent blood their thoughts are thonghts of iniquity wasting and destruction are in their paths there is no Judgement or Justice in their going● they have made them crooked paths Parallel'd with Jer. 22. 17. But thine eyes and thine heart are not but for thy covetousness and for to shed innocent blood and for oppression and violence to do it Such Monsters of Injustice rapine oppression violence against all Laws of God and Man do Kings Princes and great men degerate into even among Gods own people when they break down the Pales and Fences of publique Laws and Justice made for their Subjects preservation and let loose the reines to arbitrary goverment and lawless proceedings to shed their blood or confiscate their Estates supplant and ruine their posterity in a seeming way of Justice The consideration of which sacred Texts and Presidents should both caution and engage all future English Parliaments the whole Nation and every individual member thereof for ever to abandon and abominate such irregular Judicatures and extravagant proceedings and not to give the least countenance or incouragement thereunto especially after this memorable President of the Lord Magwire and our many years late contest in Parliament and bloody encounters in the field to maintain the fundamental Laws Privileges and good Customes of this Kingdome whereof the Tryal of men by a lawfull Indictment Jury and verdict of their Peers is the principal whereby not only the Supream authority but the peoples security of lives Lands Livings and Privileges both in general and particular are preserved and maintained and by abolishing or alteration of the which it is impossible but that present confusion will fall upon the whole state and frame of this Kingdome as King James himself and the whole Parliament long since resolved in the Act of 1 Iacob ch. 2. and without the full possession of which fundamental Rights Laws and liberties we can have little hopes as to humane Considerations to enjoy anie comfort of life or so much as life it self but at the pleasures of some men ruling méerite by will and power as the General Officers and Army themselves have long since published and declared to the Parliament and world in express words in their x Declaration and Representation humbly tendred to the Parliament concerning THE JUST FUNDAMENTAL RIGHTS LIBERTIES OF THEMSELVES THE KINGDOME Iune 14. 1657. which they may do well to remember and pursue In prosecution whereof in the Heads of Proposals agreed upon by his Excellency and the Councel of the Army to be tentred to the Commissioners of Parliament residing with the Army containing the particulars of THEIR DESIRES in pursuance of their former Declarations and Papers August 1. 1647. Proposal 10. they desired That the Rights of the Commons of England might be cleared as to A DUE EXEMPTION from any Iudgment Tryal or other Proceedings against them by the House of Peers without the concurring Judgement of the House of Commons As also FROM ANY OTHER JUDGEMENT SENTENCE OR PROCEEDING AGAINST THEM OTHER THAN BY THEIR EQUALS OR ACCORDING TO THE LAW OF THE LAND Which how inconsistent it is with all Military and summary proceedings in all new Courts Committees or Commissions since erected I refer to their own Consciences and Iudgements to resolve 5ly The Readers may hereby discern that Errors themselves in the Courts

of Ireland with other grievances could not antiently be redressed in the Parliaments thereof but * only in England till 29 E. 3. as is evident by this memorable hitherto unprinted Record made for relief in such Cases * Rex Justiciario Cancellario suis Hiberniae salutem Ex parte nonnullorum fidelium nostrorum Communitatis terrae nostrae Hiberniae Nobis est graviter conquaerendo monstratum ut cum ipsi dampna gravamina quamplurima à magno tempore sustinuerint ex hoc quod ipsi terras tenementa sua in manum nostram per Ministros nostros terrae praedictae cum nomine districtionis cum ex causa transgressionis sive alienationis sine licentia nostra factae voluntariè absque causa rationabili capta extra manus nostras licet ritè processu debito inde penes vos alios de Consilio nostro in partibus illis juxta legem consuetudinem terrae praedictae prosecuti fuissent * recuperare non possunt Et etiam ex hoc quod ERRORES qui in Recordis Processibus placitorum coram Justiciariis nostris aliis Curiis Placiis in eadem terra quae Recordum habent habitis in redditionibus judiciorum placitorum eorundem intervenisse praetendantur in Parliamentis in eadem terra corrigi neqeunt nec alias justicia inde fieri sine remedio in Anglia querendo propter quod quidam propter labores expensas circa praemissa oppositas ad maximam miseriam inopiam deducuntur quidam omnino exhaeredati existunt unde iidem fideles nostri Nobis cum instancia supplicarunt ut super praemissis remedium congruum apponi faciamus Et quia videtur Nobis Consilio nostro durum esse et grave quod conquaerentes super assecutione Justiciae de iniutiis sibi illatis in partibus praedictis taliter absque remedio fatigerentur per quod pro quictae et indempnitate populi nostri in terra praedicta sub nostro regimine existentis cui in exhibitione Iusticiae sumus debitores ordinavimus quod de omnibus terris tenementis in terra pradicta per Justiciarios Escaetores seu quoscunque alios Ministros nostros sub Sigillo nostro in manum nostram ●aptis illis qui pro eisdem terris tenementis extra manum nostram debito justo processu coram vobis prosequi voluerint super hoc plena Justicia secundum legem et consuetudinem terrae nostrae Angliae of dictae terrae nostrae Hiberniae fiat quibuscunque mandatis nostris * sub magno vel privato sigillo nostro Angliae vobis aut aliis Ministris in terra praedicta ante haec tempora directis non obstantibus Et quod ad prosecutionem omnium singulorum qui conqueri voluerint errores in recordis vel processibus coram aliquibus Justiciariis seu aliis Ministris praedictis intervenisse Rotuli eorundem Recordorum Processuum in Parliamentis nostris in eadem terra tenendis per Justiciarios seu Ministros coram quibus Recorda Processus illa fuerint deferantur et ibidem eadem Recorda et Processus diligenter recitentur et examinentur et errores si quos in eisdem inveniri contigerit debite corrigantur Et ideo Vobis mandamus quod Ordinationem praedictam in terra nostra praedicta teneri partibus conquaerentibus plenam celeram Justiciam fieri faciatis in forma predicta quibuscunque mandatis vobis aut aliis in terra praedicta ante haec temporae in contrarium directis nonobstantibus Ita quod aliquis materiam non habeat Nobis pro defectis Justiciae super casibus praedictis de caetero conquaerendi Teste Rege apud Westm. 30 die Augusti Per ipsum Regem et Consilium If then the King and his Counsel in England might thus by this their Ordinance made in England without a Parliament redress these grievances and faylers of Justice in cases only of private concernment in Ireland it self formerly examinable and remediable only in England for the ease and benefit of the loyal Subjects not of Irish Enemies and Rebels there much more may the King and Parliament of England for the preservation of the Kings Crown interest and of the lives inheritances of all his loyal Subjects there and securing the peace of Ireland enact and ordain that all Irish Rebels Traytors committing High Treason and taking up Arms against the King and destroying his Liege people there especially in times of universal Rebellions and Insurrections shall be sent over thence and tryed for the same in England by a sworn Jury of lawfull indifferent Englishmen in the Kings Bench be they Commons or Peers of Ireland without any injury or injustice Thus submitting this Argument to the candid censure and friendly embracement of every judicious Reader and craving a share in his Prayers for Gods gracious blessing both on me and it I leave it to the Readers immediate perusal without further Prologue From my Study in Lincolns-Inne June 19. 1658. on which day of the Month 1637. I was taken * Pro confesso by the Star-Chamber Lords upon a pretended contempt in REFUSING TO ANSWER when as themselves refused to give me leave to plead or answer and rejected the Answers tendred in Court under my own and my Councels hand to the Information there exhibited against all Rules of Law Iustice and of that very Court William Pryn. THE ARGVMENT OF WILLIAM PRYNNE of Lincolns-Inne Esq Hill 20 Car. Banc. Regis IN THE Case of the Lord Cannor Magwire Baron of Ineskellin in Ireland the chief contriver of the late Irish Rebellion and Massacre of the Protestant English against whom he was assigned Councell by both houses of Parliament COnnor Magwire by the name of Connor Magwire of London Esquire was in Michaelmas Tearm last Indicted in this Court for several high Treasons committed by himself together with Hugh Mac-Mahon and divers other Conspiratours and false Traytors against our Lord the King within the Realm of Ireland in partibus transmarinis on the 23 day of October 17 Caroli Upon his Arraignment at this Bar after not guilty pleaded being demanded how he would be tryed he put in this special Plea as to the particular manner of his Tryall only under his Councels hand That by the Statute of Mag. Charta it is enacted That no freeman ought to be imprisoned c. Nor will we passe upon him but by the lawful Iudgement of his Peers or by the Law of the Land That after this in a Parliament held at Droghedah in the Kingdome of Ireland in the 10th year of King Henry 7th it was enacted That all Statutes late made within the Realm of England concerning or belonging to the Common an a Publique weal of the same from thenceforth should be deemed good and effectual in Law and

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

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

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.

Law established in Ireland Whereupon they have revensed their Order which seemed to give some colour for this Objection Pat. 48H 3. pars 1. m. 8. I find this memorable Record Rex c. omnibus salutem Cum secundum consuetudinem hactenus in Hibernia obtentam Utlagati in Regno nostro Angliae pro Utlagatis in Hibernia haberi non consueverunt Gregorius le Somner ratione Utlagariae in ipsum promulgatae in Regno nostro Angliae●uper captus fuit in Hibernia in Angliam reductus imprisonatus Nolumus quod fidelibus nostris Hiberniae aliquod praejudicium ex hoc in posterum gravetur In cujus c. Teste Rege apud Turrim London 26 die Junii● If Englishmen outlawed in England could not by the Law and Custome of Ireland be taken upon a C●pias Utlagatum in Ireland or reputed as out-lawed persons there as this Patent resolves much less can they there be tried for any Treasons acted in England by colour of this Law nor can our English Peers be there tried for Treasons here by an Irish Jury A seventh Objection which I have heard made by some is as vain and absurd as the former That if Irish Peers be within this Act for Treasons done in Ireland then by the same reason Peers in Scotland might be sent for and brought into England and there tryed by an ordinary Jury by vertue of this Law for Treasons done in Scotland which would be a great prejudice to the Peers of Scotland and the privileges of that Kingdome I answer 1. That this Act extends not to any Treasons of Scots Lords or Commons committed or acted in Scotland and tryable there though it reacheth to Irish Lords and Ireland 1. Because this Act was made long before the union betwixt England and Scotland by 1 Iac. c. 2 3. Iac. c. 3 4 Iac. c. 1. 16 Caroli whiles that Scotland was under the absolute and immediate power of its own Kings and not of the Kings of England and so it cannot extend to them 2ly Scotland although the * Kings of it have often done homage to the Kings of England in antient times as their Soveraign Lords was still an absolute independant Kingdom in this respect of being subject only to governed by its own Parliaments and Laws But not subordinate to nor governed by the Laws or Parliaments of England which never bound them heretofore nor now as they did and do Ireland their Laws and Statutes and ours still continuing different Therefore this Act neither did nor could bind the Scots Peers or Commons in point of Tryal here for Treasons committed in Scotland as it binds the Irish still subject to our Laws and Parliaments for Treasons done in Ireland 3ly The very Acts of Pacification between both Kingdoms the solemn League and Covenant passed this Parl. here in Scotland too which do specially reserve the Tryals of all Traytors and Delinquents of either Kingdom to the Tryal and Judicatory only of their own Parliaments and Realms have for ever provided against this vain pretence and secured not only all Scotish Peers but Commoners too against any Tryals here by vertue of this Act for Treasons done in Ireland Therefore I shall give it no further Answer The last Objection I can think of is this That in every Case of Treason or Felony new made by Statute the Lords of Parliament in England shall have their Tryal by their Peers saved not withstanding the Statute provides not for it by express words so that provisoes of Tryal by their Peers inserted into them in such Cases are but idle and ex abundanti because it is provided for both by the Common law and by Magna Charta it self c. 29. and so was it adjudged in the case of the Lord Hungerford heretofore and in the Earl of Castlehavens Case of late for Buggery upon the Statute of 25 H. 8. c. 6. Stamfords Pleas of the Crown f. 152 153 Cromptons Iurisdiction of Courts f. ●9 Therefore the Tryof Irish Peers by their Peers shall be likewise saved to them within this Act though it be not expressed as well as the Tryal by Peers is to English Peeers by expresse Provisoe I answer First that this rule holds generallie true in all Cases of new Treasons and Felonies where the offences only are made capital or punishable according to the antient usual and ordinarie proceedings of Law and the manner of the Tryal of them left at large and not preciselie limited how and by whom they shall be tryed As they are in the objected Cases upon the Statutes of 25 H. 8. c. 6. 5 Eliz. cap. 17. concerning Buggery where the words are That this Vice shall be adjudged Felony and that such order and form of Process shall thereupon be used against the Offenders as in Cases of Felony at the Common law and that the Offenders being thereof convicted by verdict confession or Outlawry shall suffer pain of death c. which words without the least contradiction stand as well with Tryal of Peers who are guilty of it by their Peers alone as of Commons by a Jury they being both according to the order of our Common law and a verdict by Peers is as properlie stiled a verdict in Law as a verdict by Jurie witnesse 1 H. 4. 1. and Cooks 3 Institut ch. 2. p. 30. But in the Statute of 35 H. 8. there is no creation or introduction at all of any New Treasons but only an introduction of a new form and way of Tryal for Treasons formerly made and declared such then done or hereafter to be committed out of this Realm and that new form of Tryal precisely limited in all particulars and especially enacted to be by an ordinary Iury except onlie in Case of our English Peers Therfore this Statute comes not at all within the Objection because it particularlie defines the place where the Judges before whom the Juries by whom with the whole form and manner how such forein Treasons shall be tryed with all other circumstances of the Tryal and expresly prescribes That all but English Peers indicted for forein Treasons shall be tryed by good and lawfull men of the Shire where the Kings Bench or Commissioners sit Therefore to alter this form of Tryal precisely prescribed by this Statute by introducing a new Tryal by Irish Peers is to run quite cross against and elude repeal this Sta●ute as I have argued and proved at large I have now quite done with my Argument of this new untroden Case and I hope therein sufficiently manifested that this Plea of the Prisoner is invalid and such as ought to be over-ruled in point of Law And therefore as he hath been sent for over from Ireland by the wisdome and Justice of our Parliament and by the Lords Justices and Councel there transmitted hither to receive a just and speedy Tryal at this Bar for his bloody Treasons which there in respect of the

Rebels power Tumults in that Realm he could not conveniently undergo So I humbly pray on the behalf of the King Kingdome Parliament and our whole English Nation to all which he hath been such a capital Traytor and Enemy that this Plea of his may presently be over-ruled and himself brought to his speedy Tryal Iudgement and execution for his unparallel'd Treasons and the blood of those many thousands of innocent English Protestants shed in Ireland upon this occasion which cries for Justice and Execution against him without further delay The rather because nulli differemus Justiciam is one clause of that very Act of Magna Charta ca. 29. which he hath pleaded in bar of his Tryal of which I pray both he and the whole Kingdom may now enjoy the benefit by his undelayed Tryal and execution too in Case he shall be found guilty of the Treasons for which he stands indicted of which there is little doubt since so fully confessed by himself in a writing under his own hand and we are ready to make them good against him as we have already done against his Confederate Mac-Mahon by the Testimony of a clowd of honorable pregnant witnesses in case he shall deny it After two Arguments at the Bar on both sides of this Case Justice Bacon argued it himself and delivered his opinion and judgement against the Prisoners plea that though he be a Baron of Ireland yet he was triable for his Treason by a Middlesex Jury in the Kings Bench and outed of his Peerage by 35 H. 8. c. 2. Which Iudgement was approved by this Order of both Houses of Parliament Die Lunae 10 Febr. 1644. Ordered by the Lords and Commons in Parliament assembled That the said Houses do approve of the judgment given by Master Justice Bacon in over-ruling the Plea of the Lord Magwire and of the manner of the Tryal by the Indictment of High Treason in the Kings Bench And the Judge is hereby required to proceed speedily thereupon according to Law and Iustice John Brown Cler. Parl. Henry Elsing Cler. Parl. D. C. Upon which on Monday Febr. 10. 1644. he was brought from the Tower of London to the Kings Bench Bar there arraigned where putting himself upon his trial he challenged 23 of the Jury which appeared peremptorily Whereupon a Distring as was awarded to the Sheriff of Middlesex to retorn Quadrag●nta Tales the next day of whom he challenged 12 more peremptorily And being tryed by twelve of the residue retorned against whom he had no legal exception nor challenge he was upon his own Confessions and pregnant evidence of 15 Witnesses Persons of Quality found guilty of the Treasons for which he was indicted and thereupon Febr. 11. was adjudged tobe drawn to Tyburn and there hanged by the Neck and cut down alive and then his Bowels to be taken out and there burnt before his Face his Head to be cut off and his body to be divided into four Quarters and then to be disposed as the Parliament shall appoint Which was accordingly executed the 20th of Febr. Even so let all such perfidious bloody Traytors perish TO fill up the vacant pages of this Sheet I shall annex this one Record and also one Irish Act being both very pertinent to my Argument Pat. 1 E. 1. m. 20. Hibernia Venerabili in Christo Patri eadem gratia Midden Episcopo Dilectis fidelibus suis Mauricio filio Mauricii Justiciario suo Hibern et Magistro Johanni de Saumford Escaetori suo Hibern salutem Cum de●uncto jam celebris memoriae Domino H. Rege pa●re nostro cujus animae propicietur altissimus ad nos Regni Angliae gubernacu● et terrae Hibern Dominium per●ineant ob quod Praelati Comites Pro●eres as Communit●s Regni nostri nobis tanquam Domino suo ligio et Regi fidelitat●s Juramentum omnia alia quae nobis rations Coronae dignitatis Regiae ab ipsis fieri praestari nobis in absentia nostra poterunt plenariè sine omissione aliqua prompto liben●i animo praestiter int Ac Archiepiscopi Episcopi Abbates Priores Comites Barones Milites libere tenentes ac tota Communi as terrae nostrae Hiberniae nobis tanquam * Regi Domino suo ligio consimile sacramentum fidelitatis praest are teneantur Dedimus vobis potestatem recipiendi nomine nostro fidelitatem ipsorum Ita tamen quod si vos omnes interesse nequiveritis tune duo vel unus ●estrum qui praesens fuerunt nichilominus plenariam habeat potestatem rec●p●endi nomine nostr● fidelitatem ipsorum in forma praedict● Et ideo vobis mandamus quod fidelitatem praedictam nomine nostro recipiatis prout melius videbitis expedire In cuju● c. Dat. per manum W. de Merton C●nc apud Westm. VII die Decembris 33 H. 8. c. 1. made in Ireland An Act that the King and his Successors to be Kings of IRELAND FOrasmuch as the King our most gracious dread soveraign Lord his Graces mostnoble progenitors Kings of England have been Lords of this Land of Ireland having all manner kingly jurisdiction power preeminences and authority royal belonging or appertaining to the royal Estate and Majesty of a King by the name of Lord of Ireland where the Kings Majestie and his noble Progenitors justly and rightfully were and of right ought to be Kings of Ireland and so to be reputed taken named and called and for lack of naming the Kings Majesty and his noble Progenitors Kings of Ireland according to their said true and just Title Stile and Name therein hath been great occasion that the Irishmen and Inhabit ants within this Realm of Ireland have not been so obedient to the Kings Highness and his most noble Progenitors and to their Laws as they of right and according to their allegiance and bounden duties ought to have been Wherefore at the humble pursute petition and request of the Lords spiritual and temporal and other the Kings loving faithfull and obedient Subjects of this Land of Ireland and by their full assents Be it enacted ordained and esta blished by this present Parliament● That the Kings Highnesse his Heirs and Successors Kings of England be alwaies Kings of this Land of Ireland and that his Majesty his heirs and Successors have the name stile title and honor of King of this Land of Ireland with all manner of honors preheminences prerogatives dignities and other things whatsoever they be to the Estate and Majesty of a KING appertaining or belonging and that his Majesty his Heirs and Successors be from henceforth named called accepted reputed and taken to be Kings of the Land of Ireland to have hold and enjoy the said stile title majesty and honors of the King of Ireland with all manner preheminence prerogative dignities and all other the premises unto the Kings Highnesse his Heirs and Successors for ever as united and knit to the Imperial Crown of