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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

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. ● 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

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

3. chap. 8. 4 E. 4. chap. 1. 3 H. 7. chap. 8. 14 H. 4. Rastal Parceners 2. 27 E. 3. of the Staple chap. 1. 18 14 Eliz. chap. 5. 1 H. 7. ass 3. 3 H. 7. fol. 10. 2 R. 3. f. 12. and Cooks 7 Report Calvins Case f. 17 22 23. 4 Instit. p. 35. it being so resolved as to this purpose by all the Judges of England in Orourks and Sir John Parrets Cases cited in Calvins Case and adjudged in Mac-mahons Case tried at this Bar the last Term that this Act of 35 H. 8. ● 2. bindes those of Ireland for Treasons there committed makes them subject to a trial here whether Peers or Commoners as I have already proved 5ly It is unquestionable That every Commoner of Ireland hath as large as full an interest in Magna Charta the Laws and Priviledges of England and Ireland and as much right to be tried in Ireland for Treason there committed by an Irish Jury as any Peer in Ireland hath in or by them to be tried there by his Peers these Laws being no respecters of persons and every mans birth right alike of Commons as much as of Peers as the Laws and great Charter of England are Magna Charta being as largly made and as amply granted to the meanest Freeman as to the greatest Peers of England and Ireland as the Prologue and 9 14 15 19 21 22 26 27 29 Chapters thereof resolve Since then this Act of 35 H. 8. chap. 2. doth without all controversie as hath been resolved in the forecited Case deprive the Commoners of Ireland of a Trial in Ireland by Irish Commoners and subjects them to a trial by an English Jury here for Treasons there committed for which by the common Law the Customes of Ireland and Magna Charta before the Statute of 26 H. 8. and this Act of 35 H. 8. they could be no where tried but only in Ireland not in England as is collected from the Case of Sir Elias Ashburnam Tr. 18 E. 3. coram Rege Rot. 14. cited by Sir Edward Cook in his 4 Instit. p. 356. the principal case that can be objected against me which makes nothing to the purpose being long before these Statutes were made Therefore by the self same reason it shall take away the trial of Irish Peers in Ireland and England by Irish or English Peers for Treasons perpetrated by them in Ireland and subject them to a trial by an ordinary English Jury at this Bar or before Commissioners in any County of England as I have already proved which Jury here are in truth Peers to all Irish Peers being here no Peers at all but onely Commoners If it be objected That this Law of 35 H. 8. chap. 2. cannot abrogate Magna Charta all Acts and Iudgements against Magna Charta being declared voyd by 25 E. 1. ch. 1. 2 4. 28 E. 1. ch. 1. 42 E. 3. ch. 1. Therefore it shall not take away the tryal by Peerage from Irish Peers I answer 1. That you may by like reason object that it cannot take away a Tryal in Ireland by an Irish Jury from Irish Commoners seeing it cannot repeal Magna Charta and the Common-law But this objection is yielded and adjudged idle in case of an Irish Commoner therefore it is and must be so in case of an Irish Peer 2ly The objected Statutes do make void and null all Acts and Statutes made against Magna Charta before the Parliaments wherein they were made but they extend not at all to future real Parliaments and their Acts subsequent Parliaments having alwaies had power to control alter abrogate precedent Acts yea the very Common-law and Great Charter it self when inconvenient or defective as all our Books accord Therefore Sir Edward Cook in his 4 Institutes p. 42. resolves and proves at large by 11 R. 2. c. 3. 5 ro● Parl. n. 22. 48 49. 1 H. 4. c. 3. 2 H. 4. c. 22. 21 R. 2. c. ●6 1 H. 4. n. 48. 70. 144. 21 R. 2. n. 20 21. 36 37 85 86 89 90. that Acts yea and Oaths against the lawfull power of subsequent Parliaments that they shall not repeal such and such Laws though mischievous or unjust bind not at all and are merely idle For ●odem modo quo quid constituitur dissolvitur those who have power to make any Laws having as great as full a power to controll alter or repeal them when they see cause and necessity for it as you may read in Rastals and Poultons Abridgements of Statutes and the Statutes at large repealing former Acts and how often Magna Charta hath been altered supplied or * repealed in some particulars in and by our Parliaments since its making by subsequent Acts both by prescribing creating new imprisonments forfeitures corporal punishments fines executions treasons capital offences customs imposts not then known or different waies or places of tryal not then in use in Cases of forein Treasons and the like by a Jury in England not then usual but since confirmed by the Statutes of 26 H. 8. c. 13. 28 H. 8. c. 25. 33 H. 8. c. 27. 35 H. 8. c. 2. 5 6 E. 6. c. 11. contrary to or * different from Magna Charta and the Common law 2 E. 6. c. 24. is so well known to all Lawyers that I will not spend breath to prove it 3ly I answer that this Act of 35 H. 8. doth both alter and in some sort repeal Magna Charta and the Common-law as to the point and place of trying forein Treasons in England it self as to English Peers and Commoners to whom alone the great Charter was first granted they being not tryable in England by Iury or Peers for any forein treasons by the Common-law or great Charter Therefore a Fortiori it must both alter and repeal the Common-law and great Charter as to Irish Subjects for whom the great Charter was never originally made not yet directly confirmed to them by 10 H. 7. but only implicitly and doubtfully at most as I have proved 4ly I answer that this Act of 35 H. 8. doth no waies abrogate or alter Magna Charta in truth or reality but rather ratifie confirm it in the form and manner of this Tryal though not in the place For Magwire being only a Peer in Ireland but not in England Every Free-man of England that shall be impanneled to try him is in truth law his Peer here And this Act enacting that he shall be tryed not by Marshal-law or the Judges themselves but by good and lawfull men of the Shyre where the Kings Bench shall sit who are his equals and Peers in England and saving the Tryal by Peers to every Peer of this Realm after his indictment found by Jury This way and form of tryal by Jury in England being then and now the Law of the Land is no contradiction or repeal at all but a direct pursute and confirmation thereof according to its letter

perpetrated by an indifferent honest lawfull English Jury upon an endictment found by the grand Inquest than thus to kill behead such Malefactors in Ireland and seise both them and their Goods as Enemies and ransome them at pleasure without Tryal Jury or Endictment and not only to indemnifie but reward those that do it by Laws there made by the English and Irish themselves which will answer all Objections and wipe off the least shadow of Injustice in this Case and tryal The third Objection is this That if Irish Peers had been within this Law there being so many rebellions in Ireland since its enacting we should have had some Presidents of Irish Peers here tried by Jurie ere this But there is no such President extant therefore certainlie Irish Peers for Treasons perpetrated in Ireland are out of this Act To this I answer 1. That no Irish Peers have been tried by their Peers in Ireland for treasons since this Act ergo they are within i● 2. That this Argument is merely fallacious and non concludant for the reason why no Irish Peers have been tried here since this Law by vertue of it is not because they were not deemed within it but for other reasons 1. Because most of the Irish Peers who have been in actual rebellion since this Law were * either actually slain in the wars or fled the Kingdom or else were received into grace and pardoned before tryal upon their submissions or else attainted and executed by Act of Parliament or by Martial-law in Ireland And by these means onlie avoided their Trials here 2ly Because some Irish Rebels as great as Magwire or anie of their Peers in power and estate have been heretofore tried and executed for Treason in England by vertue of this Law though brought over hither from Ireland against their wills as Orourke and Sir John Parrot of old and Mac-Mahon the last Term and the Tryals of these three here are direct Presidents in point and good warrant by this very Act for the Tryal also of this Irish Peer as I have proved 3ly This Statute is not very antient yet still in as full force as ever and if this be the first President of an Irish Peer that came judicially in question here in England to be tryed upon it since its making it is no Argument he is out of this Law but rather an Inducement to make him a leading President to those rebellious Peers of that Nation who have been the Ring-leaders of the ordinary Commons there in this grand Rebellion there being no President Judgement nor foild season against it Yea ●ome Judgements in case of Irish Commons and many unanswerable reasons for it The fourth Objection is the opinion of the Book in Dyer f. 360. ●● forecited recited in Cromptons Jurisdiction of Courts f. 23. a. and Mr. St. Johns Argument at Law at Straffords Attainder p. 63. That an Irish Peer cannot be tryed here in England for Treason done in Ireland neither by his Peers nor by a Jury because he is no Subject of England To this I have * already given an Answer and shall here only adde 1. That the only reason given in the Book hath been since several times adjudged to be no reason at all nor Law by all the Judges of England a Subject of Ireland being a * Subject to the King of England in all places as is adjudged in Calvins Case and that Wrey disclaimed any such opinion delivered by him as is there reported Therefore the reason of this opinion being adjudged erroneous and no Law the opinion it self grounded on it must needs be so too The rather because the opinion there cited was upon a Case casually put and moved out of Court by way of discourse without study or argument and suddenly delivered only by Dyer and Gerrard since Wrey disclaimed it but not given upon any cause actually depending or debated and argued in Court 2ly That it is a full authority for me both because it determines there can be no Tryal of an Irish Peer by his Peers in England but only by a Jury and that in Ireland it self Peers are not used to be tryed by Peers but attainted by Act of Parliament Therefore an authority point-blank against the Prisoners plea The 5th Objection is Orourks Case which in Judge Andersons own Book of Reports is put thus Whether Orourk an Irish Subject and no Peer nor Baron of Ireland might be tryed by this Act here in England for Treasons committed in Ireland which words nient esteant un Peer ou Baron de Ireland in the putting of the Case seems to intimate that in that Case the opinion of the Judges was that an Irish Peer was not within this Act To which I shall return this brief Answer That this clause not being a Peer or Baron in Ireland in the putting of that Case was only a description of the quality of his person he being no Peer or Baron of that Realm not any point in or part of the Case there being not one syllable in the whole debate or Argument of it by way of admission or otherwise that an Irish Peer was not within this Act And in this very Case the Judges resolved the Book in Dyer to be no Law and Wrey disclaimed any such opinion of his therein reported as Sir Edward Cooks Institutes on Littleton fol. 261. b. records The 6th Objection is this intimated in an Order of the Lords House That this may much concern the Peers of England For this Law for trying forein Treasons is enacted in Ireland and so by colour of it English Peers may be sent over into Ireland to be tryed there by a Jury of Irish Commoners for Treasons done in England as well as Irish Peers sent thence to be tryed by ordinarie Juries here in England for Treasons committed in Ireland I answer 1. That there is no such Law extant in Ireland that I can fi●d among all their printed Statutes so as this is a vain surmise But 2ly if there were any such Law there yet England being the supreme Realm to Ireland may make Laws in the Parliament here to bind the Irish Peers and Commons but the Parliament in Ireland being a * subordinate Realm to England never yet did nor can make any Laws at all to bind any English Peers or Commons for things done in England untill the Rebels there shall be able to conquer England which I hope they never shall as we have conquer'd them Therefore we need not fear any such obliging Laws of theirs or the tryal of English Peers in Ireland So as this vain fancy is quite out of Dores and the Lords themselves upon conference with the Commons have been fully satisfied that this Case no waies concerneth the Peers of England whose Tryal by their Peers is by direct proviso saved to them in this Act and therefore cannot come in question or be taken from them by pretence of any such