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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
authority_n	aforesaid_a	king_n	say_a	2,246	5	6.5967	4	false

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

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

Statutes of this Realm to be Treasons misprisions of Treasons or concealments of Treasons and done perpetrated or committed by any person or persons out of this Realm of England shall be from henceforth inquired of heard and determined before the Kings Iustices of his Bench for Pleas to be holden before himself by good and lawfull men of the same Shire where the said Bench shall sit and be kept or else before such Commissioners and in such Shire of the Realm as shall be assigned by the Kings Majesties Commission and by good and lawfull men of the same Shire in such manner and form to all intents and purposes as if such Treasons or Concealments of Treasons had been done perpetrated and committed within the same Shire where they shall be so inquired of heard and determined as is aforesaid Provided alwayes that if any the Peers of this Realm shall happen to be endicted of any such Treasons or other offences aforesaid by authority of this Act that then after such Indictment they shall have their Tryall by their Peers in such like manner as hath been heretofore accustomed From this Act I shall deduce several Arguments and conclusions to prove that the Prisoner at the Bar though a Peer of Ireland shall be tryed by an ordinary Iury of Middlesex here not by his Peers in or of Ireland for the Treasons committed in Ireland whereof he stands here indicted For my more methodical proceeding I shall divide the single point in controversie into these 3 subordinate Questions 1. Whether this S●atute extends to Treasons committed in Ireland by Irish Commoners 2ly Whether it reacheth to Treasons in Ireland perpetrated by Irish Peers as well as by Irish Commons 3ly Admit it extends to Irish Peers as well as Commoners whether it doth not then inevitably out them of their Tryalls by Irish Peers and Subject both of them alike to a Tryal at this Bar by a Middlesex Iury For the first Whether this Act extends to Treasons committed in Ireland by Irish-Commoners There is but little doubt of it For first it is as clear as the Sun at Noon-day that this Act extends to all Treasons done or perpetracted in Ireland by Irish-Commoners for the main scope and intent of this Law being to make all manner of offences then made or declared or hereafter to be made or declared to be Treasons misprisions of Treasons or concealments of Treasons by any Laws or Statutes of this Realm done perpetracted or committed by any person or persons out of England inquirable or tryable within this Realm without any scruple or difficulty either in this Court or before such Commissioners in such Shire of this Realm as the King by his Commission shall assign the very sum and substance of this Act as the express letter thereof resolves the Realm of Ireland being out of this Realm of England and no part thereof and Treasons therein committed by Commoner being Treasons done and perpetrated out of this Realm of England as is clear by 20 H. 6. f. 8. a. b. ●9 H. 6. 53. b. 32 H. 6. 25. b. 2 R. 3. f. 12. 1 H. 7. f. 3. Plowden 368. b. Dyer f. 360. b. Cook 7. Report f. 22 23. Calvins case ●H 5. c. 8. 4 H. 5. c. 8. 4 H. 5. c. 6 Cooks 3 instit. p. 1● 18. These treasons must certainly and most necessarily be both within the intent and words of this Law and so consequently tryable in this Court by an ordinary Jury of Middlesex without any scruple or difficulty The rather because Ireland though out of this Realm of England is vet part of the Kings dominions and a subordinate Kingdom united and annexed to the Crown of England governed by the Laws of England and bound by Acts of Parliament made in England in many Cases as is resolved and undeniably evidenced by Pat. 6. Iohan. in 6. n. 17. Rot. Pat. 8 Johan m. 1. Claus. 12. H. 3. m. 8 Pat. 30 H. 3. m. 3. 14 H. 3. The Statute of Ireland Pat. 5 E. 3. pars 1. m. 25. 11 E. 3. c. 2 3 4 5. 27 E. 3. c. 3 18. 13 E. 1. Stat. de M●rcat 1 H. 5. c. 8. 4 H. 5. c. 6. 1 H. 6. c. 3. 3 H. 7. c. 8. 1 H. 8. c. 5. ●32 H. 8. c. 4. 35 H. 8. c. 2. 32 H. 6. Statutes of Ireland c. 1. 8 E. 4. in Ireland c. 1. 10 H. 7. in Ireland c. 4 5. 22. 7 H. 8. in Ireland c. 1. 28 H. 8. in Ireland c. 2 3 5 6 7 8 13 15. 18 19. 33 H. 8. in Ireland c. 1. 1 H. 7. f. 3. Kelway f. 202. b. Cooks 7 Rep. of 22 23. Calvins case 1 In●tit f. 141. b. 4 Instit. f. 349 350 c. 3 Instit. p. 18 Mr. Saint Johns Argument at Law at Straffords attainder p. 53. to 64. And therefore Treasons there committed are more apt and proper to be tryed here within the letter and intention of this Law then Treasons done in France Spain or any parts else out of the Kings dominions where our Laws and Acts of Parliament are not obligatory 2. This Statute as I conceive was principally made to punish Treasons misprisions of Treasons and concealments of Treasons in Ireland where they were more frequently done and perpetrated than in any or all parts of the world out of this Realm of England as our Histories and the * Irish-Statutes record And the ●orid general Treason Insurrection and Rebellion in Ireland much like this for which the Prisonner is indicted mentioned in the Statute of Ireland 28 H. 8. c. 1. but 7 years before this Act with other frequent Treasons and Rebellions there were no doubt the chiefest ground of making this new Law And that which puts it out of all dispute is the Statute of 28 H. 8. made in the Parliament at Dublin in Ireland c. 7. which reciting the Statute of 26 H. 8. c. 13. made in England concerning Treasons and enacting as this of 35 H. 8. That if any of the Kings Subjects Denizens or others do commit or practise out of the limits of this Realm of England in any outward parts any such offences which by this Act are made or heretofore have been made Treason that then such Treason whatsoever it be that shall so happen to be done or commitshall be inquired and present●d by the oaths of 12 good lawfull men upon good and probable evidence and witness in such Shire and County of this Realm before such persons ●● it shall please the Kings Highness to appoint by commission under his great Seal in like manner and form as Treasons committed within this Realm have been used to be inquired of and presented that then upon every indictment and presentment founden and made of any such Treasons and certified into the KINGS BENCH like process and other circumstance shall be there had and sued against such offendors as if the same Treasons so presented had been lawfully found to be done and committed

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

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