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england_n	homage_n	king_n	scotland_n	5,122	5	9.5324	5	true

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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

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

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 de● 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 Canterbu●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 though● 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 quo● 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 ●●●dict Comiti●de vita et membris et obsidibus et vadiis et plegiis Teste me●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 Pa● 5 E.

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 con●ained be established confirmed acce●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 Treason● 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 Mac● Mahones case this last Michaelmas Term the P●l●o●e●● 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 sub●tane extrajudicial opinion of Dyer M. 19 20 Ell● 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 s●●●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 Glo●●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. ● 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 determ●●e● 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

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. ● 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 o● such Commissioners as the King shall appoint under the great Seal 3ly The Jury-men by whom they shall be t●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 ●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 pi●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 committ●● 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 punc●…e defi●ed and than is by a Jurie of Middlesex To all intents and purposes as if the Treasons for which