over that be accepted used and executed within the Land of Ireland in all points at all times requisite according to the tenor and affect of the same And that by authority aforesaid they and every of them be authorized approved and confirmed in the said Land of Ireland That before the time of the supposed Treasons King Charles by his Letters Patents under the great Seal of Ireland bearing date the last day of August in the 4th year of his Raign at Dublin in Ireland did create Brian Magwire Father of the said Connor Magwire Baron of Iniskellin in the County of Farmanagh in the said Realm and granted to him and the Heiâ—â—males of his body the title honor and dignity of the said Barony and to have a place and voice among the Peers and Nobles of Ireland in the Parliaments of that Realm By virtue whereof the said Brian was seised in his demesn as of Fee tayl of the said Barony and dyed seised thereof at Dublin 1 Feb. 12 Caroli before the supposed Treasons after whose death the said Barony discended to him as Heir in tail That by virtue of these Letters Patents before the said supposed Treasons committed he was one of the Barons Lords and Peers of Parliament in the Realm of Ireland and at the Parliament begun and held there the 16th day of March 16 Car. at Dublin and continued untill the 17th of August then next following and then adjourned till the 9th of November next ensuing and thence proroged to the 24 of February next following and from thence continued till the 24 of Iune Car. he was present as one of the Peers of the Realm of Ireland And further saith that on the 23 of October 17 Car. he was taken and arrested by certain Persons to him unknown at Dublin in Ireland and there committed to safe Custody for the Treasons pretended to be committed by him till afterwards he was on the 12 of Iune 18 Car. by certain Persons to him unknown brought in safe Custody against his Will to Westminster within the Realm of England and then and there committed to the Tower of London where he is yet detained And therefore prayeth that he may be tryed and judged by his Peers of the Realm of Ireland for the supposed Treasons in the Indictment To this plea of his Mr. Aske the Kings Attorney in this Court hath demurred in Law and the Prisoner hath joyned in demurrer And whether this Plea of the Prisoner as to his tryall by his Peers of the Realm of Ireland be good in Law is the sole question to be now argued This Case is of very great concernment and yet of greater expectation It concerns the whole Peerage of Ireland in some respects on the one hand and on the other the Iustice both of the King Parliament and Kingdome of England in bringing a desperate Rebell and Arch-Traytor to condigne punishment for the most horrid bloody Treason against the Kings Royal Crown and authority the Protestant Religion and the whole English Nation inhabiting Ireland devoted to destruction by this Traytor and his Confederates that ever was plotted or executed under the Sun The eyes of all our 3 Kingdomes highly concerned in and deeply suffering by this Treason but more especially the eyes and hearts of our adjoyning vigilant Parliameâ—t which hath specially recommended it to this Court and assigned my self among others Counsel in this Case are intentively fixed upon the final result and issue of it I wish my vacancy to study and abilitie to argue this publique Cause had been such as might have satisfied expectation and discharged the trust reposed in me but other publique services having much interrupted me therein I shall begin to argue it for the present with the best skill I may and so leave it to those learned Gentlemen of the Law if there shall be need of any further Arguments who are provided to argue after me to supply what is defective in this my proemiall Argument All matters of fact and form arising in this Plea have been already admitted true and sufficiently pleaded in Law by mutual consent and nothing but the meer matter in Law rests now to be debated which I conceive to be but one short single point For though the Prisoner pleads that there was a Parliament of which he was a Peer and Member continuing in Ireland by prorogation at the time of his apprehension and sending over into England Yet this Privilege of Parliament comes no wayes in question as to the point of his triall now only in issue as hath been falsly suggested to the Lords house and intimated in an Ordinance of theirs since revoked but relates only to his first apprehension which is not here in controversie ' Besides he pleads not that this Parliament is yet continuing and actually sitting in Ireland of which he ought to have * the privilege but that it was continued till the 24 of Iune 17 Car. which is 3 years since and so intended to be long since ended Nor pleads he that he ought to be or to have been tryed for this Treason in the Parliament of Ireland nor that his privilege of Parliament ought to extend to secure him from any apprehension or Indictment for high Treasou when the Treason is visible and reall as his is and not imaginary only in which Case of Treason no privilege of Parliament is to be admitted as hath been resolved 8 H. 6. rot Parl. n. 57. 31 H. 6. rot Parl. n. 25 26 27. Cooks 4. Instit. fo. 25. So as the matter of his privilege of Parliament is quite out of dores and the sole point in issue is but this Whether a Peer of Ireland committing high Treason in Ireland for which he is there apprehended and afterwards by order of Parliament here brought thence into England against his Will may be endicted and tryed for that Treason in this Court of Kings Bench by a Jury of Middlesex only not by his Peers of Ireland by virtue of the Statute of 35 Hen. 8. chap. 2. And under favour I conceive in some clearness affinmatively that he maâ— and shall be tryed here by an Ordinary Iury of Middlesex and outed of his Peerage by virtue of this Act The Question arising meerly upon the Act it self which is very short I shall first recite it and then draw my Arguments out of the very intention words and bowells of it FOrasmuch as some doubts and questions have been moved that certain kinds of Treasons done perpetrated or committed out of the Kings Majesties Realm of England and other his graces Dominions cannot ne may by the Common Laws of this Realm be enquired of heard and determined within this his said Realm of England for a plain remedy order and declaration therein to be had and made Be it enacted by Authority of this present Parliament that all manner of offences being already made or declared or hereafter to be made or declared by any the Laws and
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 â—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
within the limits of this Realm c. Addes this memorable clause thereto Considering then this Statute made in the Realm of England is most beneficial and expedient to have due execution within the Kings Land and Dominion of IRELAND especially in respect of the high rebellion here lately committed that the odible infamy against the King and Queen in the same Act expressed and other offences abuses and abominations there mentioned principally have been promulged pronounced done and attempted within this said Land Be it therefore established ordained and enacted by authority of this present Parliament that the aforesaid Statute and Ordinance and every thing and things therein conâ—ained be established confirmed acceâ—ted deemed iudged and taken for a good and right Law within the Kings Land and Dominion of IRELAND and to be as good effectual and of the same strength and quality effect force and vertue to all intents and purposes within the said Land as the same is or ought to be in the Realm of ENGLAND and that the said Statute and Act made in ENGLAND and every thing therein contained shall have relation and take effect within this Land of IRELAND against all offendors contrary to the form thereof c. Now that Act of 26 H. 8. c. 13. with this of 35 H. 8. c. 2. being principally made and intended for the Treasons done and committed in Ireland as this Irish-Parliament resolves in terminis and being most beneficial and expedient for that Realm it wou'd be very illegal yea irrational absurd impolitick and improvident to exclude Ireland out of this Law where Treasons were most frequent most dangerous to out Kings and Realm and to extend it only to other places out of the Realm where Treasons were seldome done or perpetrated and nothing so perilous to the King and Realm of England as Treasonâ— Rebellions in Ireland have usually been in former and later ages 3ly It hath been adjudged by all the Judges of England both in * Orourks case 33 Eliz. and in Sir John Parrets case 24 El. cited in Calvins case Cooks 7 Report f. 23 a. in his 1 Institutes on Littleton f. 26. b. 3 Institut p. 11 24. and so was it agreed without any argument in Hugh Macâ— Mahones case this last Michaelmas Term the Pâ—lâ—oâ—eâ—â— Confederate in this horrid Treason that Treason committed in Ireland it self by an Irish Commoner is tryable in this Court by this very Statute contrary to the subâ—tane extrajudicial opinion of Dyer M. 19 20 Ellâ— fol. 360. resolved since to be no Law Seing then it hath been thus frequently resolved heretofore and in case of the Treasons now in question this very last Term without any scruple That an Irish-Commoner committing Treason in Ireland and brought over from thence hither against his will is tryable in this Court by a Middlesex Jury there is no doubt at all of the first question but that this Statute extends to Treasons committed in Ireland by Irish Commoners and the doubt if there be any will rest meerly in the second point which I am already arrived at Namely Whether this Act extends to Treasons perpetrated in Ireland by Irish-Peers as well as by Irish Commoners And under correction I conceive with much clearness that it doth for the sâ—â—â—suing reasons 1. From the generallity and universality of the Act it self wherein I shall observe a four-fold universality which supplies me with four undenyable arguments to prove Irish Peers within this Law as well as Irish Commoners The first is a universality of the Kinds of offences specified in the Act in these general Terms All manner of offences being already mad or declared or here after to be made or declared by any the Laws or Statutes of this Realm to be Treasons misprisiion of Treasons or concealment of Treasons done or perpetrated out of this Realm of England shall be enquired of by the Kings Iustices of his Bench c. Now these general words All manner of offences c. must necessarily extend to all manner of Treasons perpetrated or committed out of this Realm by Peers as well ar Commoners To the Treasons of the Lord Magwire as well as to the Treasons of Mac Mahone Esq they being the selfsame Treasons in substance and a manner of Treasons specially made and declared by the Laws of this Realm since there are no restrictive words to confine these general clauses of Treasons only to Commoners and no expresse exception for the offences or Treasons of Irish Peers to be found within the Statute else there would be a repugnance and contradiction between the text and the Gloâ—â—e and this general should be turned into a specifical in respect of the Traitors offending Therefore this general clause extending to all Treasons whatsoever done or perpetrated out of the Realm must necessarily extend to the Treasons of all Irish Peers as well as Commons and so both of them by the words and intention of this Law shall be triable in this Court The second is a universality of time All manner of offences already made or declared or hereafter to be made or declared Treason c. done perpetrated or committed or hereafter to be done perpetrated or committed shall be enquired of by the Kings Iustices of the Bench c. which extends to all former Treasons done out of the Realm at any time before the making and to all future Treasons since the passing of this Act Now this universality of time extends as well to the Treasons of Irish Peers as Commoners to the Treasons of Baron Magwire as well as of Mr. Mac-Mahone both being alike Treasons committed after this Act The 3d. is a * universality of place All manner of Treasons done perpetrated or committed out of this Realm of England that is in any place whatsoever out of the Realm of England be it in Ireland Scotland France Spain Germane Italie Barbary Turkie the East or West Indies as was resolved in Dr. Stories case Hil. 13 Eliz. Dier 298 b. â— 3. Phil. Mar. Dier 131 132. Now this extends generally to all forein Treasons committed by Peers as well as Commons and so to the Treason of the Prisoner at the Bar it being done in Ireland out of this Realm of England and so fully within the Act The 4th which is fatal and unanswerable is a universality of Persons coupled together with all the 3 former generalities in these expresse words All manner of offences made Treason c. done perpetrated or committed By any Person or Persons out of this Realm of England shall be from henceforth inquired of heard and determâ—â—eâ— before the Kings Iustices of his Bench c. Now any Person or Persons being a universal expression equivalent to all manner of Persons whatsoever Collectively or to all and euery Person whatsoever distributively extends to Irish Peers as well as Commoners yea to all Subjects of all Ranks whatsoever within the compasse of this Law in regard of the manner of
the Prisoner stands indicted had been plotted and executed in Middlesex Therefore to admit him to a Tryal by Irish Peers and not by good and lawfull men of Middlesex or to send the Prisoner back to Ireland there to be tryed by his Peers is to run quite counter and pointblanck against this unanswerable clause of the Statute That he shall be tryed by good and lawfull men of the same Shire where the Kings Bench sits to all intents and purposes as if the Treasons had been there committed And had they been there committed actuallie as they are legallie by the express purview of this Law it could never so much as be scrupled and made a quere whether he should be tryed by his Irish Peers here or sent over to be tryed in Ireland for Treasons acted there after an Endictment for them here found against him In one word Statutes which prescribe new forms of Trial in such a particular way as this Act doth are like Letters of Attorny or Licenses of Alienation * they must be most strictly pursued and not varied from in the least punctilio as was resolved by all the Judges of England Hill 21 Jac. in the case of Penal laws Co. 7 Rep. f. 36 37. Therefore no other form of Trial ought to be admitted in this Case than what the Statute prescribes and that is onlie by good and lawfull men of Middlesex not by Irish Peers 7ly The Proviso in this Act puts a period to this Case Provided always that if any the Peers of this Realm shall happen to be endicted of any such Treasons or other offences aforesaid by authority of this Act that then after such Endictment they shall have their Tryal by their Peers in such like manner as hath been heretofore accustomed From whence I shall observe these five particulars First that Treasons committed by English Peers in forein parts are tryable here in England within the verie bodie and purview of this Law Therefore by the self-same reason law and justice Treasons committed out of this Realm in Ireland even by Irish Peers are triable in England by this Act else Irish Peers should be quite out of this Act and in better condition than English or any Irish Commoners who are clearly adjudged within it 2ly That Tryal by Peers is saved by this Proviso onlie to the Peers of this Realm which both in the Prologue and body of this Act is expresly stiled this Realm of England But the Peers of Ireland are no * Peers at all of this Realm of England as is resolved in 11 Ed. 3. Brief 473. 20 E. 4. 4. Co. 7 Rep. f. 15 16. 9 Rep. Lord Sanchars case f. 117. Co. 3 Instit. p. 30. and Dyer f. 360. b. Therefore no waies within the compass words or reason of this Proviso but clearly secluded out of it and so not tryable by their Peers And this Statute prescribing a new way of trial for forein Treasons not triable here by Peers before had excluded all English Peers from trial by their Peers by the bodie of the Law as some conceive had it not been saved to them by this special Proviso Therefore certainlie Irish Peers who are not provided for at all and no Peers in England must necessarilie be excluded from their Peerage by it upon their trial here 3ly The reason why this Law doth save the tryal by Peers to Peers of this Realm onlie and to no others which as some conceived was not saved to them in cases of forein Treasons by the Statute of 26 H. 8. c. 13. as appears by the Lord Grayes case hereafter cited makes an end of the Case in Question because Peers of the Realm of England are Peers in everie shire and Countie of England Therefore by the great Charter of England and all other Acts confirming it and the Common law it self they ought to be tried onlie by their Peers within all Counties and places of the Realm of England But-Irish Scotish and forein Peers are no Peers in any Countie of England as the forecited Books â—esolve Now this Statute enacting all forein Treasons to be triable not in Ireland or any other his Majesties Dominions but in England only it was necessarie and convenient by this special Proviso to save the Trial by Peers to all English Peers to be tryed for forein treasons only in England according to * Magna Charta and the Common law being their birthright because they are actual Peers in all places of England and may have English Peers enough at hand to trie them without delay upon all occasions But Irish and other Peers being no Peers at all in England and it being a thing improper to trie them by English Peers being no real Peers to them and a thing impossible to try them here by Irish or any other forein Peers for the reasons formerlie alleged and this Statute confining the trials within it only to England it had been a direct contradiction and absurditie to provide that these forein Peers should be tried here by their forein Peers for Treasons and not by an ordinarie Jury because they are neither Peers themselves in England nor others who should come hither from Ireland or other forein parts who lose their forein Peerage as soon as they set foot on English ground with relation unto England where their Peerage presentlie ceaseth 4ly The Statute is That the trial for such Treasons c. shall be in such manner and form to all inâ—ents and purposes as if they had been committed in England Now if English Peers commit Treason in England they shall by the Statute of Magua Charta cap. 29 yea by King Johns Charter and by the Common law long before as Sir Edmund Cook proves in his Commentary upon it and I have at large demonstrated in my * Plea for the Lords and House of Peers be tried onlie by their Peers and not by any ordinarie Jurie by English but not Irish Peers as I have formerlie proved Therefore the ground of saving trial by Peers to Peers of England by this Act is an unanswerable argument to denie such a trial here to any Peers of Ireland by Irish or English Peers 5ly The last words of this Proviso determine the case in question without more dispute Provided alwaies that if any Peers of this Realm happen to be indicted of any such Treasons aforesaid by authority of this Act they shall have such trial by their Peers in such like manner as hath bean heretofore accustomed It being alwaies the Custome of England * since Magna Charta and long before in cases of Treason at the Kings sute to trie all English Peers in England only by their Peers and such a privilege as * Sir Edward Cook holds they cannot waive if they would as it was adjudged in the Lord Dacres case Pas. 28 H. 8. and since in the Earl of Castlehavens ease 7 Car. But on the other side it is most certain that it hath never
before had used or practised in that Realme and therefore the Prisoner shall be tried by an ordinary Jury at this Bar not by his Irish Peers because if he were in Ireland for ought appears yet to me he should not be tried by his Peers there and in both these points the Book in Dyer the only Authority which seems to be strongest against is for me the words whereof are these in English The grand Chancellor of Ireland moved this question to the Queens councel If an Earl or Lord of Ireland who commits Treason in Ireland by rebellion shall be arraigned and put to his trial in England for this offence by the Statutes of 26 H. 8. c. 13. 32 H. 8. c. 4. 35 H. 8. 2 or 3 E. 6. And it was held by Wrey Dyer and Gerrard Attorney General That he could not Mark now their reasons for he cannot have his trial here by his Peers which is a full resolution in point of my third Question agreeing with what I have endeavoured with Arguments to prove and is an unquestionable Truth which I submit to Then it follows Nor can he be tried here by any Jury of twelve mark the reason Not because he is a Peer of Ireland and therefore ought to be tried by his Peers and not by a Jury for that had been full against me and it is now the only knot in queâ—tion but because he is not a subject of England but of Ireland and therefore he shall be tried there which reason extending as well to an Irish Commoner as Peer hath been since adjudged directly false absurd and against the Law both in Orourks Case and in Sir John Parrets Case and since in Mac-mahons Case and Sir Ed. Cook informs us in his Institutes on Lit. f. 261 that Wray himself in Orourks Case where this Opinion of his was vouched did openly disclaim that ever he delivered any such opinion as this but ever held the contrary to it and so it is a misreport in this particular After which the Book concludes thus And it is said that the usage to wit in Ireland to attaint a Peer Is by Parliament and not by Peers which comes full in terminis to what I have last insisted on and I am certain cannot be disproved Wherefore this authority in Dyer as to all that is truth and Law in it is wholly for me in the reason of the Law and against me only in what hath been since adjudged to be no Law I shall close up all with a stronger Case and authoritie than this in question which will over-rule this case and that was in * Trinity Term An. 33 H. 8. in the Kings Bench Edward Lord Gray immediatly before having been Lord Deputie in Ireland was endicted arraigned and attainted of High Treason by an ordinary Jurie in the Kings Bench in England for letting divers Rebels out of the Castle of Dublin and discharging Irish hostages and pledges that had been given for the securing the peace of Ireland and for not punishing one who said the King was an Heretick whilest he was Lord Deputy in Ireland For these Treasons all acted and committed in Ireland through an English Peer he was tried by an ordinary Jury in England by the Statute of 26 H. 8. c. 13. ratified in Ireland by 28 H. 8. c. 7. forecited which secluded him from his tryal by Peers being not saved by these Acts. Therefore a Fortiori shall these Statutes and this of 35 H 8. c. 2. 5 E. 6. cap. 1. made since his judgement exclude this Irish Lord being no English Peer from any tryal by his Peers Finally the Prologue of this Statute coupled with the body thereof puts a period to this question beyond all doubt or dispute For as much as some doubts and questions have been moved that certain kinds of Treasons c. committed out of the Kings Majesties Realm of England cannot nor may by the Common laws of this Realm be inquired heard and determined within this his said Realm of England For a plain remedy order and declaration therein to be had and made be it enacted c. that all manner of Treasons c. committed by any person oâ— persons â—out of this Realm of England shall be from henceforth inquired of heard and determined by the Kings Iustices of his Bench c. by good and lawfull men of the same Shire where the said Bench shall sit and be kept in like manner and form to all intents and purposes as if such Treasons had been done within the same Shire where they shall be so inquired of heard and determined The sole scope end purpose then of the King and Parliament in this Act being to take away all doubts and questions formerly moved in point of Law touching the tryal of treasons done out of the Realm before the Kings Justices of his Bench and Commissioners in England by a Iury and to make and enact a plain remedy and declaration therein for the future in manner aforesaid I humbly apprehend there can be no doubt nor question now moved whether this Prisoner ought to be tryed by his Peers in Ireland or England for this his most horrid Treason committed out of the Realm of England since this Statute so clearly declares and resolves the contrary in most plaine and positive words The rather because the Kings Patent creating him Baron of Ineskellin under the great Seal of Ireland maketh him only a Peer in Ireland and gives him only a Place and Voyce among the Peers and Nobles of Ireland in the Parliaments of Ireland not in England as he sets forth in his own * Plea in precise terms as the Patent made by King Edward the 4th to Robert Bold created him Baron of Rathtauth in Ireland and constituted him Unum Dominum Baronem omnium singulorum Parliamentorum magnorum Conciliorum nostrorum in terra nostra Hiberniae tenendorum habendum tenendum una cum stilo titulo nomine honore loco et sessione inde sibi et haeredibus suis masculis imperpetuum And as King Henry 8. made Thomas Viscount Rochford by the self-same Patent both Earl of Wiltshire infra regnum nostrum Angliae and Earl of Ormond in terra et dominio nostro Hiberniae only with several clauses of investitures several Habendums and several Creation-monies for each Title and Kingdom And as the Patents of all other Irish Earls Viscounts Lords and Barons in Ireland create and make them Peers only in Ireland not in England as * learned Mr. Selden informs us and their very Patents resolve in terminis And therefore quite exclude the Prisoner and all other Peers of Ireland from any tryal by their Peers in England either by the Proviso or body of this Statute or their Patents which are point-blanck against it And now I hope I have fully made good the point in question with all the several branches of it That this Act extends to Treason committed in
Ireland Yea to Irish Peers as well as to Irish Commoners and that there can be no tryal at all upon it here of an Irish Peer by Irish Peers nor in any place else within England and that only as the Prisoners case is by a Middlesex Jury And so I have finished my assertive part The first and grand objection is that which I meet with in the beginning of this Prisoners plea The Statute of Magna Charta c. 29. That no Freeman shall be taken or imprisoned or disseised of his Freehold c. nor will we pass upon â—or condemn him but by the lawfull judgment of his Peers or by the law of the land which Law and Statute is among others established for a Law in the Kingdom of Ireland there to be put in ure at all times when need is by the Statute made in the Parliament held at Droghedah in Ireland in the 10th year of King H. 7. c. 22. and by vertue of these two Laws he ought to be tryed by his Peers in or of Ireland in this sute against him by and for the King To which I shall give these satisfactory Answers 1. That the Statute of Magna Charta in its original creation and confirmation was made granted to the Archbishops Bishops Abbots Priors Earls Barons Towns and to all the Free-men of this our Realm of England and to them only to be kept in our Kingdom of England for ever whence it is intituled The great Charter of the Liberties of England as the prologue of it resolves The first Chapter thereof is peculiar to the Church of England viz. That the Church of England shall be free and enjoy all her rights and liberties inviolable We have also granted to our Freemen of our Realm of England these liberties under-written to have and to hold to them and their Heirs of us and our heirs for ever So cap. 12. The City of London shall have all her old Liberties and Customs and all other Cities Boroughs Towns and the Barons of the Cinqueports and all other ports shall have all their Liberties and their Customes Cap. 35. One measure of wine c. shall be throughout our Realm Ch. 32. All Merchants if they were not openly prohibited before shall have safe and sure conduct to depart out of England to come into England and to tarry in England as well by Land as by water c. In Cap. 23. All Weeres shall be utterly put down between Thames and Medway and throughout all England and the conclusion C. 37. concerns the Realm of England and Englishmen only Neither doth the * Charter of King John nor that of the 11 of H 3. nor 18 H. 3. m. 17. nu 21. nor of 30 H. 3. nor yet of 13 E. 1. cited in Co. 4 Institutes p. 349 and 350. and in his Institut on Littleton f. 141. establish Mag. Char. at least in relation to all the Native Irish but English alone it being made particularly for the Realm of England and English men and therefore the Prisoner pleads it was setled there only as a Law to be received and put in use in respect of the Irish then living only in the English pale and the Kings loyal Subjects not of any Irish enemies in hostility by the Statute of 10 H. 7. c. 22. but not before and so is Sir Ed. Cooks opinion in express terms in his 4 Institut pag. 35â— By which it is most clear That from King Henry the seconds dayes who first subdued Ireland An. 1171. there were no trials in Ireland of any English or Irish Peers Subjects to our Kings for Treason by their Irish Peers by vertue of Magna Charta till after the Statute of 10 H. 7. which was made but forty six yeers before the Statute of 35 H. 8. between which and this later Law we read not of one trial of any Irish Peer for treason there by his Peers nor yet since that I can find but only one of late by 2 El. c. 1 6. till this very day By which it is most apparent that this tryal by Peers in Ireland a privilege now inficted on was never actually claimed or enjoyed by any Peer of Ireland especially by those in antient emnity and rebellion against our Kings stiled * enemies in the Irish Statutes and English Records before the Statute of 35 H. 8. and so it can be no prejudice nor injustice at all nor breach of Magna Charta to out the Prisoner of it 2ly It may be questioned upon very good Reasons whether the Statute of 10 H. 7. ch. 22. doth consirm this Statute of Magna Charta in Ireland or not at least as to Irish Peers especially those of the old Irish Bloud to whom it relates not as I have proved in the point of trial by Peers and that upon these Grounds First because the words of that Statute are not That all Laws made in England shall be confirmed received and executed in Ireland in all points but That all Statutes late made within the Realm of England concerning or belonging to the Commonweal not Peers of the same shall henceforth be deemed good and effectual in Law and received executed in this Realm of Ireland Now Magna Charta being no Law then late made within this Realm but made at least 271 years before it can hardly without much straining of the words beyond their proper meaning be brought within the compass of this Act though Sir Ed. Cook in his fourth Institutes pag. 351. informs us That Hil. 10 Jac. it was resolved by the two chief Justices and chief Baron that this word LATE in this Act hath the sence of BEFORE and shall not be taken in its proper sence or meaning so that the Act by this construction against the sence of the words extends to Magna Charta and to all the Acts of Parliament made in England not only late but even long before yea many hundred yeers before this Act which for my part under the favour of those Reverend Judges who thus interpret it I hold still disputeable yea erronious and no Law at all especially for these two Reasons 1. Because if any Law introduced and confirmed Magna Charta and the other Laws of England in Ireland it is the Statute of 8 E. 4. c. 1. which confirms the Statute made in England in the Parliament of 6 R. 2. ch. 6. concerning Rapes of which there was some doubt made whether it extended to Ireland and then concludes thus In avoyding of all inconvenience that might happen because of the ambiguity of the said Statute Be it enacted confirmed and ratified by authority of the said Parliament that the said Statute be adjudged and approved in force and strength and may be of force in this Land from the 6th day of March last past and that from henceforth the said Act and all other Statutes and Acts made by Authority of Parliament within the Realm of England be ratified confirmed and adjudged by
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 â—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-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. â— 69. Cooks 4 Instit. p. 356. Mr. St. Johns Argument at Law at Straffords Attainder p. 58 61. Kâ—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 Abriâ—gement title Ireland 11 E. 3. chap. 2. and 10 E.
meaning And so much in answer to this grand objection wherein I have been over tedious but shall recompence it with brevity in the remainder The second Objection a meer branch of the former is this That if Irish Peers should be tryable by an ordinary Jury within this Law for Treasons done in Ireland this might prejudice the whole Nobility of Ireland who by colour of this Act might be sent for out of Ireland and tryed here for Treasons Misprisions and concealments of Treasons there committed and so quite deprived of their birth-right of tryal by their Peers which would be of dangerous consequence I answer 1. That I have manifested that this tryal by Peers was never deemed claimed nor enjoyed in Ireland as a privilege by Irish Peers nor ever used or practised in that land before this Act but once claimed since and that in Ireland Therefore it cannot be intended that this Statute or the makers of it ever imagined to save this manner of Tryal by Peers only to Irish Peers which they never enjoyed nor so much as once claimed or possessed before the making of it Neither can it be any injury or injustice to deprive them of that now they never heretofore claimed used enjoyed as their privilege and birth-right being not indubitably setled on them by any Law that I have seen but only in some special Cases of Treason since 35 H. 8. wherof this is none by the late Acts of 2 El. z. c. 1. 6. when as this privilege is taken from them not by a bare strained exposition or implication but by this express Act of Parliament made long since for the Common good and safety of England and Ireland not yet repealed 2ly This Objection with as great or greater strength colour might be made for all the Commons of Ireland far more numerous and considerable than their Peers they being deprived by it of tryals by Irish Juries in their native Country than for Irish Peers alone which Tryal here against Irish Commons was never of late excepted against this Law having been so often adjudged to reach to them Therefore there is no colour to exempt Irish Peers out of it 3ly This pretended prejudice to Irish Peers in point of Tryal by their Peers is soly in cases of High Treasons or Misprision and concealments of it and no other the Statute extending to no crimes but these alone Therefore the mischief is not great in general and no Irish Peers I presume but such who have trayterous or disloyal hearts will deem it a disparagement or injustice to them to be secluded of a Tryal by their Peers only in these Cases of High Treason And if others who are professed Rebels and Traytors murmur at it as none else will we need not much regard it nor prefer their pretended privilege before our own Kings Kingdomes Religions yea Irelands safety and wellfare in bringing them to a speedy tryal and condign punishments for their Treasons here in England by vertue of this Law 3ly Even by the very Common law before this Act Treasons committed in Ireland by Peers or Commons were tryable before the Marshall of England in England it self as is evident by the Parliament Roll of 2 H. 6. â— 9. * Where Iohn Lord Talbot being the Kings Lieutenant in Ireland accused James Bottiler Earl of Ormond of certain Treasons there particularly recited by him committed in Ireland before John Duke of Bedford Constable of England in his Marshals Court Which accusations the King by the advice of his Parliament did discharge and abolish to appease the differences between them Upon which else he might have been proceeded against though an Irish Peer without any tryal by his Peers See Cooks 4 Instit p. 123 124. Therefore a fortiori this special Act of Parliament may subject Irish Peers to a tryal by a substantial English Jury in England for Treasons done in Ireland since tryable for them here before its making even in the Marshals Court 5ly This Statute doth not simply take away the tryal of all Treasons committed in Ireland from thence only it makes them all tryable here when the King State and Parliament shall see just cause or occasion for tryal of them here as now they do in these times of general rebellion there when the Rebels are so predominant and the times such that no safe fair or indifferent tryal of this Traytor can be there had or expected And seeing the Law and common reason will inform every man that the King and State will never be at the cost and trouble to send for Traytors and Witnesses out of Ireland to try them here but upon a most just occasion and urgent necessity to prevent either a faiter or delay of Justice in case of horrid Treasons and Rebellions And no Irish Peer who hath any loyalty in his heart or reason in his head will deem it a dishonor or prejudice to the whole Irish Peerage in general or the trayterous Peers sent hither to be tryed in particular to be outed of a tryal by Irish Peers in such Cases of necessity and expediency only it being better and safer for this Realm and Ireland too that these native Irish Peers who have been proved to break out into actual Rebellion in all ages as this Prisoners Ancestors have done as much or more than any his * Grandfather being the first man that broke forth in Tyrones Rebellion should be subject to tryals for the same by ordinary English Juries here and outed of their Peerage then that such Arch-Traytors and Rebels as the Prisoner and his Confederates are guilty of the effusion of many thousands of Protestants and English mens bloods should escape uncondemned or be executed by Martial law And our Law in this Case which concerns the safety of 2 Kingdoms at once will rather suffer a particular mischief especially to rebellious Peers than a general inconvenience to both Realms and all loyal Subjects in both 6ly Though the tryal of all English and Irish Peers by a legal indictment presentment and Jury of their Peers alone and not by Martial-law or Commissioners themselves alone be an essential fundamental Right and Privilege for the securitie of their lives and estates which our Parliaments in all ages have been very curious to preserve and not to alter yet the Tryal of Peers by Peers alone not by a Jury of other Freemen for the most part if rightly considered is rather a meer punctilio of honor than matter of real privilege or benefit to Peers and by intendment of Law and common experienc a fair and legal tryal by the oaths of 12 honest substantial indifferent English Gentlemen or Freeholders to whom the Prisoner may take all * sorts of lawfull challenges by Law which shall be allowed if there be any just cause of suspition of partiality injustice consanguinity c. besides his peremptory challenge of 35 Jurors without cause which challenges * Cook affirms shall not
The Subjection of all TRAYTORS REBELS as well PEERS as COMMONS in IRELAND TO THE Laws Statutes and Trials by Juries of good and lawfull men of ENGLAND in the Kings Bench at Westminster for Treasons perpetrated by them in IRELAND or any foreign Country out of the Realm of ENGLAND BEING An Argument at Law made in the Court of Kings Bench Hil. 20 Caroli Regis in the case of Connor Magwire an Irish Baron a principal Contriver of the last Irish Rebellion Fully proving That Irish Peers as well as Commons may be lawfully tried in this Court in England by the Statute of 35 H. 8. c. 2. for Treasons committed by them in Ireland by a Middlesex Jury and outed of a Trial by Irish Peers Which was accordingly adjudged and he there upon tried condemned executed as a Trayur Wherein are comprised many other particulars and notable Records relating to the Laws Peers Statutes affairs of Ireland not obvious in our Lawbooks and worthy publike knowledge By William Prynne Esq a Bencher of Lincolnes Inne Numb. 35. 31 33. Ye shall take no satisfaction for the life of a Murderer which is guilty of death but he shall be surely put to death So ye shall not pollute the land wherein you are for bloud de fileth the land and the land cannot be cleansed of the bloud that is shed therein but by the bloud of him that shed it LONDON Printed by J. Leach for the Author 1658. TO THE Ingenuous Readers ESPECIALLY Professors Students of the Laws of England and Ireland HAving lately published a much enlarged Edition of my Plea for the Lords and House of Peers wherein the undoubted antient Birthright of all English Lords and Barons to sit vote and judge in all Parliaments of England and their tryal by their Peers is irrefragably vindicated by Histories and Records in all ages and larger Discoveries made of the Proceedings and Judicature in our Parliaments in Cases as well of Commoners as Peers than in all former Treatises whatsoever I apprehended it neither unseasonable nor unprofitable to publish this Argument at Law concerning the Trial of Irish Peers for forein Treasons acted by them made by me near 14 years past in the Kings bench Court at Westminster in the Case of Connor Magwire an Irish Baron there indicted for High Treason in having a principal hand in the late bloudy Rebellion in Ireland against whom I was by special Order assigned Counsel among others by the Parliament then sitting upon whose Plea and a Demurrer there unto I first argued this new point in Law never formerly disputed adjudged in open Court Whether an Irish Peer for Commoner committing Treason in Ireland sent over from thence into England against his will might be lawfully tryed for it in the Kings Bench at Westminster by a Middlesex Jury and outed of his tryal by Irish Peers of his condition by the Statute of 35 H. 8. c. 2 After two solemn Arguments at the Bar by my self and Serjeant Rolls against and Mr. Hales and Mr. Twisden for the Prisoner and Mr. Justice Bacons Argument on the Bench his Plea was over-ruled adjudged against him it being resolved he might and ought to be tried only by a Jury of Middlesex not by his Peers of Ireland Whereupon he pleading Not guilty to his Indictment was tried by a Substantial Jury to whom he took both his peremptory and legal challenges which the Court allowed him of right and after a very fair and full trial was found guilty by the Iury upon most pregnant evidence and then condemned executed as a Traytor at Tyburn as he well demerited The Reasons inducing me to publish this Argument were 1. The near affinity and cognation it hath with my Plea for the Lords 2ly The Novelty Rarity of the Subject and points debated in it not formerly discussed at large in our Law-books 3ly The generality and publike concernment thereof extending to all Irish Subjects whether Peers or Commons and so worthy their knowledge perusal and of all publike Officers in Ireland especially Lawyers 4ly The prevention of Misreports of this case and Argument in this age wherein many Arguments at Law and Reports of Cases have been lately published by Inâ—udicious hands mistaking mangling or misreciting the Reasons Records Lawbooks cited both at Barr and Bench and sometimes the Cases Iudgements themselves to the prejudice seduction of young Students of the Law and scandal of the Law it self 5ly The importunitie of some Friends who formerly desired Copies thereof from me when I had no leisure to furnish them therewith 6ly The Vindication declaration both of the Parliaments and Kings Bench honorable resplendent equal untainted Justice against this Arch-Irish-Traytor and Rebel and that in these particulars 1. In trying this notorious Offendor guiltie of the horridest universallest Treason and Rebellion that ever brake forth in Ireland and that in a time of open War both in Ireland and England only by a Legal Indictment and indifferent sworn Jury of honest and lawful Freeholders according to the known Laws and Statutes of the Realm not in a Court Marshal or any other New-minted Judicature by an arbitrarie summarie illegal or martial proceeding without any lawful presentment indictment or Trial by a sworn impartial able Iury resolved to be diametrically contrary to the fundamental Laws Customs Great Charters Statutes of the Realm and inherent Liberty of the Subject especially in time of Peace when all other Courts of Justice are open and of very dangerous consequence and thereupon specially prohibited enacted against as you may read at leisure in the Statute of 5 R. 2. Parl. 1. ch. 5. Rot. Parl. n. 57. 2 R. 2. rot Parl. n. 57. 1 H. 4. rot Parl. n. 44. 2 H. 4. rot Parl. n. 89. The Votes of the House of Commons and Lords against it May 7. 1628. the Petition of Right 3 Caroli Mr. Cambdens Annals of Qu. Elizabeth p. 242 243. Cooks 3 Instit. p. 52. 124. and accordingly declared by the Commons House in their a Remonstrance of the State of the Kingdom 15 Decemb. 1641. and by the whole Parliament and most now in power in the case of the Lord Mount-Norris whose trial and capital condemnation in a Court Marshal in Ireland by Martial Law in time of peace without a lawful Indictment and Trial by his Peers in a summarie way by the Earl of Straffords power then Lord Deputy of Ireland was one of the principal b Charges evidences against him to make good his general impeachment of High Treason for which he was condemned and beheaded on Tower hill for a Traytor by judgement and Act of Parliament Namely That he had TRAYTEROUSLY endevoured TO SUBVERT THE FUNDAMENTAL LAWS AND GOVERNMENT OF THE REALM and instead thereof TO INTRODUCE AN ARBITRARY TYRANNICAL GOVERNMENT AGAINST LAW though this Lord was not executed or put to death by that Sentence against him Which if executed had been WILFULL MURDER both in his JUDGES EXECUTIONERS as Sir Edward Cook resolves
in his 3. Institutes p. 52. 124. printed by the House of Commons special order and King Alfred long before him who hanged up no fewer than 44 of his Justices in one year AS MVRDERERS for condemning and executing some of his Subjects WITHOUT A SWORN JURY of 12. men and others of them for offences not Capital by the known Laws or without pregnant evidence as Andrew Horn records in his Myrrour deâ— Justices ch. 5. p. 296 297 298 who thence infers Abusion est de la Commen ley que JUSTICES lour MINISTRES que occient la gent per FAUX JUDGMENT NE SONT DESTRUITS AL FOER DE AUTRES HOMICIDES que fit le Roy Alfred que FIST PENDRE 44 JVSTICES EN UN AN TANT COME HOMICIDES pur lour FAUX JUDGEMENTS which others guilty of the like crimes especially since these antient Straffords Canterbuâ—ies with the Ship-mony-Judges late Presidents Impeachments Sentences to the prejudice of the Subjects lives estates may do well to ruminate upon 2ly In assigning this Arch-Traytor such learned Counsel as be desired to advise and plead for him in this Case of High Treason in all matters of Law arising therein which the Parliament likewise allowed to Strafford and Canterbury though impeached of high Treason and therfore cannot in * point of Justice be denied to any other person or persons in like Cases if desired 3ly In admitting him free liberty to put in a plea in writing to the manner of his Tryal and to the Iurisdiction of the Kings Bench it self though the c highest Court of Justice in all England but the Parliament and having lawfull conusans of all sorts of Treasons whatsoever and not peremptorily over-ruling rejecting it forthwith and giving judgement against him pro confesso or as * standing mute for not submitting to its Jurisdiction and a Tryal by an ordinary Middlesex Jury being a matter of Law and right but permitting yea ordering his Plea upon a Demurrer thereunto to be publickly argued pro contra at the Bar by Counsel and then solemnly argued at the Bench by the Judge before it was over-ruled being a Case of general concernment to satisfie him and all the world of the legality and Justice of his Tryal And then permitting him according to Law to plead not guilty and put himself upon his Tryal by the Country not sentencing him to death for Treason without any Tryal or good evidence produced to convict him 4ly In allowing him a free honorable Tryal upon an Indictment first found upon Oath by the grand Jury then suffering him to take not only his particular chalenges by the poll to every of the Jurors retorned upon a voyre dire not formerly heard of yet allowed him as reasonable to take away all coulor of partiality or non indifferency in the Jurors Whereupon every Jury man was examined before he was sworn of the Jury Whether he had contributed or advanced any monies upon the Propositions for Ireland or was to have any share in the Rebels Lands in Ireland by Act of Parliament or otherwise But likewise in permitting him to take his peremptory challenge to 35 of the 2 Juries retorned without any particular cause alleged which Liberty d our Laws allowing men in favorem vitae and because there may be private causes of iust exceptions to them known to the Prisoner not fit to be revealed or for which he wants present proof and that in Cases of High-Treason as well as of Felony the Court thoughâ— just and equal to allow the same to him though a notorious Irish Rebel Wherefore it ought much more to be allowed to all English Freemen lesse peccant and not so notoriously guilty as this transcendent Traytor the debarring the party indicted of his lawfull challenges being to debar him of a principal matter concerning his Tryal yea a means to take away his life without just cause or guilt much more then a Tryal by such Iurors Committees Commissioners or other Judges nominated by persons interessed or parties without the denomination or direction of sworn Officers of Justice alone against the course of the Common law as the Statute of 11 H. 4. c. 9. and Cooks 3 Instit. p. 32 33. resolve In this Argument the Readers especially Irish Students of the Law may take notice First of some observable passages and * Records touching the setling of the Laws and Great Charter of England in Ireland the endenization of Irish-Natives to make them capable of the Laws and Liberties of the English there the Statutes Peers of Ireland and the Tryal of Peers there for Treasons not obvious in other Law Books to which I at first imended to have added an Appendix of the most remarkable passages in our Histories and chiefest Records in the Tower relating to the Sover aign Jurisdiction of the Kings and Parliaments of England over Ireland and to the Parliaments Officers Government and affairs thereof not hitherto published and unknown to most of very necessary and excellent use Which being over-large for an Appendix I must reserve for a particular Treatise by themselves or joyned with some other Records and Histories relating unto Scotland most worthy of publick view if God send health and opportunity to communicate them to posterity Only I shall here insert one pertinent Record to manifest that the trying of Irish Malefactors in England the binding them to appear the recording their defaults and giving judgement against them for not appearing here for Murders Robberies and Felonies committed or acted by them in Ireland is no Novelty having omitted it in my Argument it being in use in the ninth year of King John as this Patent manifests e Rex M. filio Henrici Iusticiario Hiberniae salutem Mandamus vobis quod deduci faeiatis secundum judicium Comitis Dublin Galfredum de Marisco alios qui rectati sunt de incendio roberia morte homnum aliis rectis quoâ— pertienent ad Coronam nostram unde eis dies datus est coram nobis in Anglia a die sancti Michaelis ad 15 dies ad quem non venerunt nec pro se responsales miserunt et absentiam suam die illo Attornatis eis in defaltam Et ipsos 〈…〉 secundum judicium â—â—â—dict Comitiâ—de vita et membris et obsidibus et vadiis et plegiis Teste meâ—pso apud Theoukesbury 12 die Novembris 2ly The Readers may herein discern the Treacheries Conspiracies Insurrections Rebellions of the Native Irish in all Ages since their submission to King Henry the 2d Anno 1171. and their swearing of fealty to him and his Heirs for ever as to their lawfull Kings and Lords recorded at large in our k Historians towards our Kings and English Nation and their frequent endeavours utterly to cast off their Dominion and extirpate them out of Ireland which is notably expressed in many of our Records as Claus. 5 E. 3. part 2. m. 12. dorso Paâ— 5 E.
3. pars 1. m. 25. Cl. 35 E. 3. m. 36. Claus. 36. E. 3. m. 42. dors Claus. 42 E. 3. m. 6. dors 13 Whence Giraldus Cambrensis who went along into Ireland with King Henry the 2d and with his son john when made King thereof by his Father who made the first and fullest description of it and its Conquest and of the manners qualities of the Irish of any of our Historians gives this Character of them and their deportment towards the English in that age l Praeomnt alia gente Proditionibus semper insistunt fidem datam nemini servant fidei et Sacramenti Religionem quam sibi semper servari summopere volunt aliis praestitam quotidie violarenec verecundantur nec verentur unde et cum cautelas omnes observaveris adhibueris cum securitati indemnitati tuaetam Sacramentis et obsidibus quam amiâ—itiis firmiter junctis beneficiis multimodè collatis modis omnibus invigelaveris tunc primo timendum est tibi quia tunc praeâ—ipuè ipsorum vigilat malitia cum ex securitatis abundantia te tibi praesenserint non invigilare Tum demum ad arcem nequitiae tum ad assueta fallaciae telae confugiunt ut sumpta securitatis occasione laedere valeant vel improvisum He subjoins Inter alia multa artis iniquae figmenta hoc unum habent tanquam praecipuum argumentum and ô that too many English as well as Irish were not guilty of this transcendent Treachery and Hypocrisie Sub religionis et pacis obtentu ad sacrum aliquem locum conveniunt cum eo quem oppetere cupiunt primo compaternatis foedera jungunt Deinde ter circa Ecclesiam se invicem portant postmodum ecclesiam intrantes coram altari reliquiis Sanctorum sacramentis multifarie praestitis demum missae celebratione et orationibus Sanctorum sacerdotum canquam dispensatione quadam indiâ—â—olubiliter faederantur Ad ultimum vero ad majorem amicitiae confirmationem et quasi negotii consummationem sanguireÌ„ sponte ad hoc fusum uterque alterius bibit Hoc autem de ritu Gentilium adhuc habent qui sanguinem in firmandis faederibus uti solent O quoties in ipso desponsationis hujus articulo A VIRIS SANGUINUM ET DOLOSIS tam dolose inique funditur sanguis ut alteruter penitus maneat exanguis O quoties eadem hor a et in continenti vel sequitur vel praevenit vel etiam inaudito more sanguinolentum divortium ipsum interumpit desponsationem Adeo proditionis pestis hâ—c invaluit et quasi radices pouit adeo in naturam converti praevalet pravae consuetudinis longus abusus adeo a convictu mores formantur et qui tangit picem coniâ—quinabitur ab ea adeo mali vis magna est quod etiam advenae eodem vitio inquinati sunt He adds in another place m Ad resistendum Anglis et antiquae libertatis sub capitum discrimine iura tuendum unanimi voto conspirant Et ut hunc plenius affectum deducere possint ad effectum vinctis undique faederibus de novo fiunt ex hinc amici qui antea fuerunt inimici All which we find verified of them in this last rebellion and massacre of the English for which this prisoner was indicted and executed So as we may well conclude of the Irish in his ensuing words n Nationis subdolae longè fortius timenda est arâ— quam Mars pax quam fax mel quam fel ma litia quam militia proditio quam expeditio amicitia praefucata quam inimicitia despicata 3ly The Readers may here in part discern by whom and in what manner the Laws of England were first established in Ireland and how farr and to what persons there to which I shall add this passage of o Mat. Paris An. 1172. touching K. Henry the 2. his setling our Lawsthere Rex Pater antequam ab Hybernia rediret apud Lissemor Concilium congregavit Ubi Leges Angliae ab omnibus sunt gratanter acceptae et juratoria cautione praestita confirmatae With that of p Syâ—vesterâ—â—aâ—â—us who â—â—â—â—â—ing the Constitutions made at the Council of Cassils in Ireland under this King Henry for the Government of the Church and â—eformation of the manners of the Irish there recorded at large concludes thus Itaque â—mâ—â—â— divina ad instar sacrosanctae Ecclesâ—e Iuxta quod Anglicana observat Ecclesia in omnibus partibus Hyberniae amoâ—o traâ—â—â—â—tur Dignum etenim sust issiâ—â—m est ut sicut Domâ—nium et Regâ—m ex Anglia sortita est divinitus Hybernia sic etiam EXINDE vivendi formam reciâ—iâ—â—nt mâ—liâ—â—em Ipsi namque Regi magnifico tam Ecclesia quam Regnum Hyberniae debent quicquia de bâ—nâ— pacâ—s â—i incremento Religionis hactenus est assecuta After which the Irish rebelling and casting off the English Laws q King John Anno Dom. 1211. arriving at Dublin with a great Army Occurrerunt ei ibidem plusquam viginti Reguli illius Regionis qui omnes â—imore maximo perterriti â—â—mâ—gium illi fidelitatem fecerunt Fecit quoque Râ—â—ibidem construere Leges et Consuetudines Anglicanas ponens Vicecomites et alios Ministros qui populum Regni illius juxta Leges Anglicanas judicarent â—o â—â—â— r in the English Pale and territories reduced into Counties and under the Kings dominion as Matthew Paris and others story Fourthly the Readers and our whole Nation may hereby and herein discover for their present and future information the provident care and prudence of our English Parliaments in all former ages to secure the lives and inheritances of all English Freemen and Irish Subjects against all arbitrary tyrannical Power and proceedings whatsoever even in cases of pretended or real Treasons and the highest capital offences by providing and enacting from time to time that not only all English Freemen but all other Irish or outlandish persons accused of any High Treasons misprisions or concealments of Treasons committed by them either within or without the Realm of Engl. should be impeached of and arraigned for the same only upon a legal Presentment or Indictment first found against them by a Iury of good and lawful men upon their oathes and after that tried for the same by another legal Iury of 12. honest and substantial indifferent Freeholders upon their Oathes or by the lawful judgement of their Peers if English Peers and not for judged of life or limb nor outlawed exiled put to death passed upon or any way destroyed but only by the lawfull judgement of their Péers according to the due course of the Common Law and not otherwise â—â— the Grand â—harter of King Iohn the statute of Magna Charta ch. 29. in 9 H. 3. 25 E. 1. c. 1. 28 E. 1. c. 1. 5 E. 3. c. 9. 20 E. 3. c. 2. 25 E. 3. c. 2. of Treasons 28 E. 3. c. 3. 42 E. 3. c. 3. 2R 2.
Tryal but such only who are excepted out of it by special Proviso Now Irish Peers are none of those Persons excepted as I shall prove anon That these words any person or persons extend to Peers as well as Commoners where there is no exception of Peers is undeniable First because a Peer is a Person though of a higher rank or degree than an ordinary Commoner or Freeman and one kind of person in Law therefore within these words any person or persons 2ly Because general Laws made for the common good safety of the Realm and punishment of the grand crime of High Treason are like to Go himself * No respectors of persons but bind and punish all alike Therefore any person or persons in such a publick Law as this made for the common good safety and punishment of the greatest Treasons Evils must necessarily include all persons subjects whatsoever and except none especially the greatest whole examples and offences are commonly most dangerous and pernicious Thirdly in all publick Acts whatsoever These words any person or persons extend to Peers as well as Commoners and I know no one President to the contrary To instance in some few Acts instead of many In the Statutes of 26 H. 8. c. 13. 5 6 E. 6. c. 11. concerning Treasons any person or persons or any of the Kings Subjects Denizen or others that shall commit or practise Treason out of the limits of this Realm in any outward parts extend to Peers as well as Commons Therefore in this Act of the same nature So in the Statutes of 1 Ed. 6. c. 1. 2 3 E. 6. c. 1. 5 6 E. 6. c. 1. 1 Eliz. c. 2. If any person or persons shall deprave or revile the most blessed Sacraments or the book of the Common prayer c. In the Statute of 1 Eliz. cap. 1. and also of 5 Eliz. cap. 1. If any person or persons c. shall extoll c. the power of the Bishop of Rome or of his See 13 Eliz. c. 1. If any person or persons shall bring in or put in ure any Bull from the Bishop of Rome Agnus Dei Pictures Crosses c. In the Statute of 23 Eliz. c. 2. If any person or persons shall with a malicious intent speak any false or seditious news of the Queen c. In 27 Eliz. c. 2. If any person or persons shall barbour or contribute any mony to the maintenance of any Jesuites Priests c. In all these Acts to pretermit * many others the words any person or persons extend to Peers as well as Commons as is resolved in the bodies and Provisoes of all these Acts Yea in the Statute of 25 E. 3. c. 2. of Treasons though a most penal Law the words are only If a man do compass or imagine the deach of the King If a man do levy war against the King in his Realm c. If a man counterfeit the Kings Broad or Privy-seal or his mony c. Yet it hath been resolved without dispute in all times and so agreed by Sir Edward Cook Institutes 3. p. 4 5. That this word a man extends to both sexes alike including women as well as men Peers as well as Commoners Lords as well as Pesants yea all ranks callings conditions of men who are Subjects and that this word man in the singular number only extends to many men to any number of men committing any of these Treasons joyntly as well as to a single man or Traytor because it is a general Law made for the safety of the Kings person and the Realm Much more then must any person or persons in this Statute being both in the singular and plural number and in common acceptation a far more universal general and comprehensive expression than this of a man in 25 E. 3. c. 2. extend equally to all sorts sects and degrees of men as well as it and so to Peers as much as it and to Peers as well as to Commons as it doth in the Statutes of 25 H. 8. c. 22. 26 H. 8. c. 13. 27 H. 8. c. 2. 33 H. 8. c. 12. 20. 5 E. 6. c. 11. 1 Mar. c. 6. 1. 2 Phil. Mar. c. 9 to 11. 5 Eliz. c. 1. 13 Eliz. c. 2. 18 Eliz. c. 1. 23 Eliz. c. 1. 27 Eliz. c. 2. 3 Jac. c. 4 concerning Treasons 2ly My second Argument to prove Irish Peers within this Statute is because Irish-Commons are within its Verge even for Treasons committed in Ireland as hath been adjudged in the forecited cases of Orourk Sir John Parrot and Mac-Mahone For Laws and Law givers being no respectors of persons where the offences be the same and there being no one clause word or syllable in this Statute extending to Irish-Commoners Treasons but which doth may and ought by the self same Justice reason equity to extend to the Treasons of Irish-Peers this Statute making no distinction between the one and other and the Commons of Ireland having as absolute a right and Inheritance in their native Privilege of being tryed by their Peers in Ireland which yet is taken away by this Act in case of Treason as the Peers in Ireland have in their Peerage to be tryed there by their Irish-Peers We must not yea we cannot in point of Justice distinguish between the one and other where the Law it self makes no distinction Therefore since the Irish Commoner is undoubtedly within the words and scope of this Act to be tryed at this Bar by a Middlesex-Jury the Irish-Peer unless we will judge with respect of persons and coyn a distinction not warranted by this Act must be also tryed in the self-same manner The Law is the same the crime is the same both in Magwires and in Mac-Mahones cases therefore the Tryal and Judgement too must in law reason be the same in both 3ly It will be granted me without dispute That if an Irish-Peer commit Treason in any forein parts out of England and Ireland as in Spain France Flanders Italy or Germany he shall be tryed in this Court by an ordinary Jury if Free-holders and not by his Peers in Ireland by vertue of this Act. Nay if he commit Treason in Ireland and flye into England he may and shall be tryed for that very Treason by an ordinary Jury at this Bar * because by flying his Country and a legal tryal there he hath outed himself of the benefit of his Peers Therefore it extends to Irish-Peers even for Treasons done in Ireland else they could not be tryable here in any of these Cases which are granted on all hands to be Law 4ly It is evident by the Proviso in this Act that English Peers committing any manner of Treasons out of this Realm are tryable for it in England by vertue of this Law as well as English Commons though they were not so by the Common-law Therefore Irish Peers committing Treason shall be within it likewise so tryable here as well as
Irish Commons else they should be in far better condition than English or Scotish Peers and quite exempted out of this Act. Now the same words that bring English-Peers within this Law must of necessity hook in Irish-Peers too there being no clause which exempts or includes the one more than the other 5ly The very letter intent and scope of this Act as appears by the body of it and likewise by the Statutes of 26 H. 8. c. 13. 5 6 E. 6. c. 11. to the same effect was to make all Treasons done or commiteed out of England by any person or persons whatsoever tryable in England either before the Justices in this Court or * before special Commissioners in some other Counties but to be still tryable within this Realm as the words All manner of Treasons hereafter to be done perpetrated or committed by any person or persons out of the Realm of England shall be from henceforth enquired of head and determined before the Kings Justices of his Bench c. clearly resolve in direct terms Therefore to make the Treasons of Irish-Peers committed in Ireland or elsewhere tryable here in England as well as the Treasons of English-Peers or Irish-Commoners And to send them back into Ireland to be there tryed by their Peers when once they are here in Prison and indicted in this Court by exempting them out of this Act contrary to the very letter and intent of the Law is to run point-blank against the very words and meaning of this Law and the Law-makers Therefore he must by this Act be tryed at this Bar and that by an ordinary Jury only as I shall prove anon 6ly The very scope and sole purport of this Act is not to make new Treasons or Traytors which were none before but to bring real Traytors only for Treasons formerly made or hereafter to be made and declared Treasons by the Laws and Statutes of this Realm to exemplary punishment in this Kingdome for the peace and preservation of the King Realm and the better execution of Justice the very life of Laws upon Delinquents only of the highest rank for the most transcendent crimes of High Treasons of misprision or concealments of Treasons not for Felonies or petit Treasons Which consideration must necessarily induce us for the common good to give it the largest fullest and most equitable constraction that may be Thus the Judges in former times have always interpreted it as appears by Dyer f. 132 298. Cookes 7. Rep. Calvins Case f. 23. a. his first Institut on Littleton f. 26. his 3 Instit. p. 24. and in Orourkes case wherein the Judges resolved 1. That the Statute of 1 Mar. Sess. 1. repealing all former Treasons but those within 25 E. 3. and of 1 2 Phil. and Mar. c. 10. enacting That all Tryals hereafter to be had for any Treason shall be had and used only according to the due course of the Common-law of this Realm and not otherwise exend not to the taking way of forem Treasons or their tryals by this Law And in Orourks case they extended it by equity beyond and in some sort against the letter of the Law it self for he standing mute and refusing his Tryal was thereupon condemned and executed for a Treason committed by him in Ireland though the words of the Statute are The Treason shall be enquired of heard and determined before the Justices of the Kings Bench by good and lawfull men of the same Shire where the said Bench shall sit and the Act speaks nothing at all of standing mute But this being a publique Law for the Common good to bring Traytors only to their Tryal and just punishment his refusal to put himself upon his Tryal was adjudged to be a determination and conviction of his Treasons within the Act else any Traytor by standing mute might evade and frustrate this good Law If then this Statute may thus be construed by equity and dilated beyond the words to one who stands mute for a Treason done in Ireland much more may it be extended to a treason by an Irish-Peer who is fully within the words and intent of it as I have already manifested And it would be a most pernicious gloss which should either elude or nullifie this beneficial publique Law 7ly It is clearly resolved in and by our Parliaments 13 E. 1. Proem. 13 E. 1. of Statute Merchants 21 E. 3. rot parl. n. 67. in the Statute of 5 H. 5. ch. 6. in divers of our * Law-books That Acts of Parliaments made in England wherein Ireland is either specially named or generally and necessarily included do bind those in Ireland both Commoners or Peers alike This therefore being such a Law extending and binding those in Ireland as hath been resolved in the forecited Cases it must certainly bind both the Peers and Commons of Ireland to a Tryal at this Bar for Treasons done in Ireland when the King and Kingdom deem it necessary or expedient to try them here in England 8ly The Proviso in this Act for tryal of Treasons done out of this Realm by Peers within the same extends only in positive terms to Peers of this Realm of England because they only are Peers within England and so only tryable by their Peers for forein Treasons within the same not to Peers of Ireland who are no Peers at all nor tryable by their Peers within this Realm of England Therefore this Proviso extending only to Peers of this Realm excludes all other forein Peers whether Irish or Scots from any tryal by their Peerâ— in England for Treasons acted out of it 9ly There is very great reason why Natural Irish Peers and Barons should be within the compass of this Law as well as Commoners and rather they than any other forein Peers because as our * Historians the Irish Annals Statutes and our Records do testifie ever since their conquest by K. Henry the 2d and submission to the Kings of England they have frequently almost every year in most Kings Reigns broken footh into private petit or general Rebellions and Insurrections against the English as I could instance in sundry particulars in which Rebellions I commonly find a Magwire a Mao-Mahon and Oneal in the van as Ring-leaders of all the rest as they were in this last Rebellion wherein most of the native Irish Peers and greatest septs have been deeply engaged as principal Conspiratours Among other Rebellions I find in Story and which is more authentick in the express Statute made in the Parliament at Dublin in Ireland anno 28 H. 8. c. 1. but 7 years before this Law That Gerald Fitz Gerald Earl of Kyldare the Earl of Desmond with divers other of the Irish Peers and Gentry conspiring together to extirpate the English and deprive the King of his Soveraignty in Ireland did send to the French King the Emperour and Bishop of Rome for ayd and assistance for taking the same Land out of the Kings and
Peers Therfore such a Trial shall not nor can be had or admitted now 3ly Because neither the Kings Bench nor the Commissioners before whom the Statute limits these forein Treasons to be tryed nor yet the High Steward of England if any such should be created have any power or jurisdiction to summon a Jury of Peers out of Ireland to appear before them here in England upon such a Tryal as this neither are the Peers of Ireland bound by any Law to appear or attend as Peers on any such service or tryal here being Peers bound to service as Peers which their Patents express only in Ireland and no Peers here Therefore a Tryal by his Irish Peers here in England is an impossibility as well as illegality 4ly Admit a Jury of Peers might be summoned and sent from thence yet it would be a great delay of Justice it requiring a long time to procure a full appearance of Peers thence yea a betraying of Ireland to the Rebels at this instant to send for so many Protestant indifferent Peers now from thence as might serve to try him here Moreover it would be an infinite expence charge trouble besides the danger by Sea to summon a Jury of Peers from thence and if they failed to appear in England upon summons as is probable they would and lawfully might they being not bound to it by any Law and so no fine certain to be set upon them for not appearing nor legal means of coercion to compell them to come over upon such a Tryal there should be a fayler of Justice for want of such a Peerage And therefore no such Tryal may or can be expected which would delude and nul this Law 5ly This Statute directs the Tryal of forein Treasons in express terms to be before the Judges in the Kings Bench or the Commissioners appointed by the King in any County of this Realm Now no Tryal by English or Irish Peers was ever heatd of either in the Kings Bench or before such Commissioners But it alwaies hath been and ought to be either in the house of Peers in Parliament or before the Lord High Steward of England as all former Presidents accord and 15 E. 3. c. 2. 1 H. 4. 1. 10 E. 4. 6. b. 13 H 8. 12. Brook Treason 29 33. Cooks 3 Institutes c. 1. 2. p. 28 29 30. 4 E. 3. rot Parl. n. 1. 50 E. 3. rot Parl. n. 21 to 31. 34. 7 R. 2. n. 15. to 24. 10 R. 2. n. 6. to 18. 11 n. 2. n. 6 7. 14 R. 2. n. 14. 21 R. 2. n. 12 to 17. Placita Coronae coram dom Rege in Parl. n. 1. to 20. 1 H. 4. Plac. Coronae in Parl. n. 1. to 11. Walsingham Hist. Ang. p. 402. 2 H. 4. n. 30. 31. 5 H. 4. rot Parl. n. 12. resolve Therefore no Tryal can be in this case by Peers either in this Court or before Commissioners by vertue of this Act or any other Law 6ly This Statute is introductive of a new way of trying forein Treasons done out of this Realm by a Jury within England which by the rules of the Common law could neither inquire nor take notice of any Treasons or matters committed perpetrated or acted beyond the Seas as is evident by the Prologue of this Act the Statutes of 26 H. 8. c. 13. 5 E. 6. c. 11. M. 2 3 E. 1. Coram Rege Rot. 56. Hereford M. 2 E. 2. Fitzh. Obligation 15. Utlagary 18. Tr. 8 E. 2. Fitzh. Testament 6. 6 E. 3. f. 17. 18. 27 Ass 43. 41 E. 3. 19. 48 E. 3. 2 3. 20 H. 6. 28 44. 15 E. 4. 14 15. 20 E. 4. Perkins sect. 121. 494. 737. Cook 4 Instit. c. 17. 1 Instit. â— 74. Stamford l. 2. c. 14. Cook 2 Rep. 49 a. Long Pecocks case 5 Rep. f. 107. a. 3 Instit. f. 48 49. Whereupon it altering the Common law in this particular it outs all former doubts most punctually prescribes all the particulars and appurtenances belonging to the Tryal of them from which there neither may nor can be any variation by Law First it appoints the place where they shall be tryed 1. In general within this Realm of England 2ly In particular either in the Kings Bench wherever it sits on in such County as the King by his Commissions shall assign 2ly The Judges before whom the Tryal shall be are thus particularly described The Justices of the Kings Bench oâ— such Commissioners as the King shall appoint under the great Seal 3ly The Jury-men by whom they shall be tâ—yed are thus defined in Terminis in the Act By good and lawfull men not Peers or Commons of Ireland of the same Shire where the said Bench of the King shall sit if the Tryal shall be in the Kings Bench And if before Commissioners assigned by the King in any shire of the Realm then by the good and lawfull men of the same shire where the Commissioners sit which is doubled â—ike Pharohs dreams to make it more certain and likewise precisely enacted by the Statutes of 26 H. 8. c. 13. 5 6 E. 6. c. 11. in pursuance of this Act 4ly The manner how the Tryal shall be is thus punctually specified In such manner and form to all intents and purposes as if such Treasons c. had been done perpetrated and committed within the same * shire where they shall be so inquired heard and determined as is aforesaid which last words with the very like in the Sratutes of 26 H. 8. c. 13. 5 E. 6. c. 11. extending to our case put an end to the point in Question For if the Lord Magwire now at the Bar had committed the Treasons for which he is now endicted in Westminster there is no doubt nor scruple of it but he should have been tryed by a Jury of Middlesex notwithstanding his Peerage in Ireland and he could neither have pleaded nor demanded his Peerage as is resolved expresliè in Calvins case C. 7 Rep. f. 15 16. and in the Lord Sanchiars Case Cooks 9 Rep. f. 117. who was tryed condemned by an ordinary Jury for suborning Carliel to murther Turner with a piâ—toll in England though a Peer of Scotland because he was here no Peer and the forecited Books are express that the same Law holds in case of a Peer of Ireland Since then this Law expreslie enacts That the Tryal of all forein Treasons shall be by good and lawfull men of the same Shire where the Kings Bench shall sit in such manner and form To all intents and purposes as if the same Treasons had been committâ—â— here in Middlesex where the Kings Bench sits There neither may nor can be any other form of tryal for the Prisoner nor in any other place nor before any other Judges nor by any other Jury but such as this Statute hath puncâ—…e defiâ—ed and than is by a Jurie of Middlesex To all intents and purposes as if the Treasons for which
been accustomed heretofore that Irish or anie other forein Peers should be tried for anie Treasons here committed by English Irish or anie other forein Countrie Peers within the Realm of England Nay no one President of this kind was ever heard of and it is an impossible thing in point of Law as I have proved therefore no such trial by anie Peers can be once thought of or imagined for the Prisoner or anie other Peer of Ireland within the purview or proviso of this Act 5ly I shall adde further ex abundanti to put this case out of all question that I have made some cursorie search into most of the Irish Annals Histories Antiquities Statutes upon this occasion and I should have made a further inquisition had I enjoyed anie vacant hours to do it yet I cannot find so much as one President of anie Irish Peer tried in Ireland for Treason or anie other offence by his Peers before this Statute of 35 H. 8. and I believe the Prisoners Councel cannot as indeed they neither did nor could produce one example of such a trial there by Peers before this Law nor anie Act of Parliament in that Realm before this Statute concerning Treason which provides that Irish Peers shall be tried by their Peers there being no such clause or least hint thereof to be found in the Statutes of 18 H. 6. c. 2 3. â—â— H. 7. c. 13. 13 H. 8. c. 1. 28 H. 8. c. 1 2 7. which make sundrie offences Treasons and extend to and mention Irish Lords and Rebels by name as well as Commons all and everie of these Acts leaving both the Irish Peers and Commoners to the self-same rrial by a Jury And since this Act I presume they cannot produce above one president and that a verie late one in case of Treason where an Irish Peer was tried by his Peers and it was the case of the L. Slane much about 20 years since there tried and acquitted by his Peers in Ireland as I am informed before which time it was then confessed by the Judges there they never heard or read of any one such tryal used in Ireland and since it we have heard of no other trial there by Peers to second it but onlie of one Noble Lord the Lord of Valentiae Vicount Norris there extrajudiciallie condemned by meet martial-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
Pat. 12. E. 1. m. 11. Pro diversis in Hibernia quod uti possint Legibus Angliae in Hibernia Rex omnibus ballivis fidelibus suis Hiberniae ad quos c. salutem Volâ—ntes Giraldo fil Johannis Hibernico gratiam facere specialem concedimus pro nobis Haeredibus noâ—tris quod idem Geraldus liberi sui quos legitime procreaverit hanc habeant libertatem quod ipsi de caeteâ—o in Hibernia utantur legibus Anglicanis firmiter inhibemus ne quis â—os contra hanc concessionem nostram vexet in aliquo vel perturbet In cujus c. T. Rege apud Carnarvan 30 die Maij Consimiles literae habet Margeria de Lessan Henricus de Lessan Petrus de Lessan Andreas de Lessan Bene dictus fil Johannis Ardmagh Willielmus Heuke Hibernici In cujus c. Teste ut supra Pat. 18. E. 1. m. 24. Rex omnibus Ballivis fidelibus suis in Hibernia ad quos c. salutem Volentes Isamaiae filiae Oragilig Matildae fil Oragilig Hibernicis graciam facere specialem concedimus pro nobis haereaibus nostris quod eadem Isamaia Matilda ad totam vitam suam hanc habeant libertatem videlicit quod ipsae de caetero in Hibernia utantur legibus Anglicanis fiâ—miter inhibemus ne quis eas contra â—anc concessionem nostram vexet in aliquo vel perturbet In cujus c. T. Rege apud Westm. 12 die Junii per ipsum Regem Pat. 19. E. 1. m. 20. Rex omnibus ad quos c. salutem Sciatis quod de gratia nostra speciali concessimus Willielmo filio Carmok Clerico quod ipse omnes posteri sui imperpetuum Lege consuetudine Anglicana utantur in terra nostra Hiberniae iâ—a quod ipsi per alias leges consuetudines pâ—r nos ministros nostros quoscunque de caetero non deducantur contra voluntatem suam sed quod ipsi in vita sua morte de caetero libertate gaudeant Anglicana In cujus c. Teste Rege apud Ashermg 22 die Jan. The like Patent is granted Mauricio de Bre. Hibernico Pat. 24. E. 1. m. 3. These Records with Claus. 2. E. 3. m. 17. Rex dilecto fideli suo Johanni Darcy de Nevien Justiciario suo Hiberniae salutem Exparte quorundam hominnm de Hibernia extitit supplicatum Ut per statutum inde faciendum concedere velimus quod omnes Hibernici qui voluerint legibus utantur Anglicanis it a quod necesse non habeant super has chartas aliquas a nobis impetrare Nos igitur certior ari volentes si sine alieno praeâ—â—dâ—cio praemissis annuer â—valeamus vobis mandamus quod voluntatem magnatum terrae illius in proximo Parliamento ibidem tenendo super hoc cum ailigentia persâ—rutari faciatis de eo quod inveneritis una cum vestro consilio ad visamâ—nto nos distincte aperte cum celeritate qua potestis certificetis hoc breve nostrum nobis remittentes which compared with Claus. 5. E. 3. part 1. m. 25. Pro hominibustâ—rrae Hiberniae de Lege ANGLIAE UTENDA in custodiis recuper andis c. are an unanswerable evidence beyond contradiction That the great Charter Liberties Customs and Laws of England granted to those of Ireland by King John Henry the third Edward the first and third extended only to the English Subjects inhabiting Ireland and to such Irish who lived in English Counties in due subjection to the Kings of England or were by special Charters of indenization enabled to enjoy the benefit of them who were but few in consideration of the rest of the Irish Nobility Gentry and Commons retaining their ancient Brehon Laws and would not submit to the Laws of England nor Government of our Kings against whom they frequently rebelled being reputed rather Enemies than Rebels and usually so stiled in the Statutes of Ireland till the Statute of 33 H. 8. c. 9. as appears by the Statutes of 18 H. 6. c. 3. 25 H. 6. c. 4 5. 28 H. 6. c. 1. 3 E. 4. c. 2. 5 E. 4. c. 6. 18 E. 4. c. 2. 10 H. 7. c. 9 10 17 19. 28 H. 8. c. 11. by Sir John Davis Irish Reports in the Case of Tanistry fol. 39. the common Laws and Statutes of England being not universally received or established throughout the whole Realm of Ireland till after the Statutes of 3 and 4 Phil. and Mar. c. 3. 11 Eliz. c. 9. and King James his Proclamation in the third yeer of his reign or at leastwise till the Statutes of 8 E. 4. c. 1. or 10 H. 7. c. 22. which established all the Statutes made in England concerning or belonging to the good of the same only as to the Englishry or English Pale and Counties not to the Irishery as the Statutes of 17 H. 7. c. 8 9 10 11 13 17 19. 35 H. 6. c. 3. 5 Ed. 4. c. 3 4 5. 13 H. 8. c. 3. 28 H. 8. c. 15. made in Ireland with other Acts resolve which the Lord Magwire confesseth in his Plea and his Council cannot deny Now the Lord Magwire being none of the English Pale or Irish Sept Liege Subjects to our Kings but of the Irishry and professed Enemies to our Kings as the Irish Annals and Statutes inform us the Statute of Magna Charta and the Laws Liberties and Customs of England granted to the English and loyal Irish Subjects in Ireland and so this trial by Peers could not extend to his ancestors till after the Statutes of 8 E. 4. or 10 H. 7. of 35 H. 8. c. 1. yea after the Statutes of 3 and 4 Ph. and Ma. c. 3. and 11 Eliz. c. 9. for reducing the Irishry into Counties and under the Laws and Statutes of England to which they were not formerly subject And from these Patents of King John and Henry the third forecited and the Statutes of 8 E 4. and 10 H. 7. till 35 H. 8. chap. 1. No one president of any one Irish Peers trial by his Peers in Ireland in any case whatsoever can be produced Therefore certainly there was no such trial known or in use in Ireland before 35 H. 8. nor any president of it since till one of late and una Hirundo non facit Ver. If then the Peers of Ireland before the making of this Act of 35 H. 8. were never actually tried by their Peers for any treason done in Ireland for ought can be proved and there be no express Act for any trial by Peers there for any Treason but only the Act of 2 Eliz. c. 1. and 6. and that only for special Treasons within those Laws which are none of those for which the Prisoner stands here indicted I may safely conclude That this Law of 35 H. 8. never intended to preserve to Irish Peers a trial by their Peers in Ireland which kinde of trial was never
3. chap. 8. 4 E. 4. chap. 1. 3 H. 7. chap. 8. 14 H. 4. Rastal Parceners 2. 27 E. 3. of the Staple chap. 1. 18 14 Eliz. chap. 5. 1 H. 7. ass 3. 3 H. 7. fol. 10. 2 R. 3. f. 12. and Cooks 7 Report Calvins Case f. 17 22 23. 4 Instit. p. 35. it being so resolved as to this purpose by all the Judges of England in Orourks and Sir John Parrets Cases cited in Calvins Case and adjudged in Mac-mahons Case tried at this Bar the last Term that this Act of 35 H. 8. â— 2. bindes those of Ireland for Treasons there committed makes them subject to a trial here whether Peers or Commoners as I have already proved 5ly It is unquestionable That every Commoner of Ireland hath as large as full an interest in Magna Charta the Laws and Priviledges of England and Ireland and as much right to be tried in Ireland for Treason there committed by an Irish Jury as any Peer in Ireland hath in or by them to be tried there by his Peers these Laws being no respecters of persons and every mans birth right alike of Commons as much as of Peers as the Laws and great Charter of England are Magna Charta being as largly made and as amply granted to the meanest Freeman as to the greatest Peers of England and Ireland as the Prologue and 9 14 15 19 21 22 26 27 29 Chapters thereof resolve Since then this Act of 35 H. 8. chap. 2. doth without all controversie as hath been resolved in the forecited Case deprive the Commoners of Ireland of a Trial in Ireland by Irish Commoners and subjects them to a trial by an English Jury here for Treasons there committed for which by the common Law the Customes of Ireland and Magna Charta before the Statute of 26 H. 8. and this Act of 35 H. 8. they could be no where tried but only in Ireland not in England as is collected from the Case of Sir Elias Ashburnam Tr. 18 E. 3. coram Rege Rot. 14. cited by Sir Edward Cook in his 4 Instit. p. 356. the principal case that can be objected against me which makes nothing to the purpose being long before these Statutes were made Therefore by the self same reason it shall take away the trial of Irish Peers in Ireland and England by Irish or English Peers for Treasons perpetrated by them in Ireland and subject them to a trial by an ordinary English Jury at this Bar or before Commissioners in any County of England as I have already proved which Jury here are in truth Peers to all Irish Peers being here no Peers at all but onely Commoners If it be objected That this Law of 35 H. 8. chap. 2. cannot abrogate Magna Charta all Acts and Iudgements against Magna Charta being declared voyd by 25 E. 1. ch. 1. 2 4. 28 E. 1. ch. 1. 42 E. 3. ch. 1. Therefore it shall not take away the tryal by Peerage from Irish Peers I answer 1. That you may by like reason object that it cannot take away a Tryal in Ireland by an Irish Jury from Irish Commoners seeing it cannot repeal Magna Charta and the Common-law But this objection is yielded and adjudged idle in case of an Irish Commoner therefore it is and must be so in case of an Irish Peer 2ly The objected Statutes do make void and null all Acts and Statutes made against Magna Charta before the Parliaments wherein they were made but they extend not at all to future real Parliaments and their Acts subsequent Parliaments having alwaies had power to control alter abrogate precedent Acts yea the very Common-law and Great Charter it self when inconvenient or defective as all our Books accord Therefore Sir Edward Cook in his 4 Institutes p. 42. resolves and proves at large by 11 R. 2. c. 3. 5 roâ— Parl. n. 22. 48 49. 1 H. 4. c. 3. 2 H. 4. c. 22. 21 R. 2. c. â—6 1 H. 4. n. 48. 70. 144. 21 R. 2. n. 20 21. 36 37 85 86 89 90. that Acts yea and Oaths against the lawfull power of subsequent Parliaments that they shall not repeal such and such Laws though mischievous or unjust bind not at all and are merely idle For â—odem modo quo quid constituitur dissolvitur those who have power to make any Laws having as great as full a power to controll alter or repeal them when they see cause and necessity for it as you may read in Rastals and Poultons Abridgements of Statutes and the Statutes at large repealing former Acts and how often Magna Charta hath been altered supplied or * repealed in some particulars in and by our Parliaments since its making by subsequent Acts both by prescribing creating new imprisonments forfeitures corporal punishments fines executions treasons capital offences customs imposts not then known or different waies or places of tryal not then in use in Cases of forein Treasons and the like by a Jury in England not then usual but since confirmed by the Statutes of 26 H. 8. c. 13. 28 H. 8. c. 25. 33 H. 8. c. 27. 35 H. 8. c. 2. 5 6 E. 6. c. 11. contrary to or * different from Magna Charta and the Common law 2 E. 6. c. 24. is so well known to all Lawyers that I will not spend breath to prove it 3ly I answer that this Act of 35 H. 8. doth both alter and in some sort repeal Magna Charta and the Common-law as to the point and place of trying forein Treasons in England it self as to English Peers and Commoners to whom alone the great Charter was first granted they being not tryable in England by Iury or Peers for any forein treasons by the Common-law or great Charter Therefore a Fortiori it must both alter and repeal the Common-law and great Charter as to Irish Subjects for whom the great Charter was never originally made not yet directly confirmed to them by 10 H. 7. but only implicitly and doubtfully at most as I have proved 4ly I answer that this Act of 35 H. 8. doth no waies abrogate or alter Magna Charta in truth or reality but rather ratifie confirm it in the form and manner of this Tryal though not in the place For Magwire being only a Peer in Ireland but not in England Every Free-man of England that shall be impanneled to try him is in truth law his Peer here And this Act enacting that he shall be tryed not by Marshal-law or the Judges themselves but by good and lawfull men of the Shyre where the Kings Bench shall sit who are his equals and Peers in England and saving the Tryal by Peers to every Peer of this Realm after his indictment found by Jury This way and form of tryal by Jury in England being then and now the Law of the Land is no contradiction or repeal at all but a direct pursute and confirmation thereof according to its letter
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 Angliaeâ—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 Juniiâ— If Englishmen outlawed in England could not by the Law and Custome of Ireland be taken upon a Câ—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. â—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 Staâ—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