rot Parl. n. 57. 1 H. 4. rot Parl. n. 44. 2 H. 4. n. 60 89. 2 H. 5. c. 6. 20 H. 6. c. 9. 22 H. 8. c. â— 23 H. 8. c. 13. 26 H. 8. c. 13. 28H 8. c. 7 10 18. 31 H. 8. c. 8. 14. 32 H. 8. c. 4 35. 33 H. 8. c. 12. 20 21 23. 35 H. 8. c. 2 3. 1 E. 6. c. 12. 5. E. 6. c. 11. 1 Mar. c. 6. 1 2 Phil. Mar c. 10 11. 1 Eliz. c. 1. 6. 5 El. c. 1. 13 El. c. 1. 14 El. c. 1. 18 El. c. 1. 23 El. c. 1. 27 El. c. 2. 3 Jac. c. 2. the Pitition of right 3. Caroli with sundry other Statutes enact and Å¿ all our Law books resolve so that no mans life whatsoever can legally be hazarded or taken away for any real or pretended Treason or capital crime without a double Jury the verdicts of 24 sworn good honest men at the least or more or by a Grand Iury and 12 or more Peers of the Realm if an English Peer and in case of Forrai ners by a Jury of 6. English and 6. of their own Countrey-men if so many may be found fit to be retorned of a Jury to avoid partiality which seconded must be with the Judgement of one or more sworn Judges setting on the Tribunal of Justice Which treble Bulwork and grand fundament I security of all English Freemens and others lives Inheritances Families Estates against all unlawfull Conspiracies Practises Combinations subordinations of Witnesses machiavilian Policies and arbiâ—rary tyrannical Powers proceedings whatsoever especially in perilous treacherous times if once undermined subverted or interrupted by arbitrary Courts-Martial Committees or any other new erected Tribunals by what names or specious pretences whatsoever of publick safety danger or necessity what sad effects it would soon produce to the endangering yea losse of the Lives Inheritances Fortunes of the most innocent best-deserving Persons and real Patriots of their Countries Laws and Liberties through the power policy confederacy covetousnesse ambition reveng malice emulation suspition tyranny injustice partiality self-interests of suborned perjured Witnesses or despitefull powerfull Prosecutors Accusers and of unrighteous packed partial prae-ingaged Judges admitting no legal Pleas against their exorbitant Jurisdictions no legal challenges to their petsons nor appeals from their unjust sentences though capital without any clear testimony to prove them guilty and worthy of death by our known Laws all Lovers of their own Families Friends Neighbours Liberties Lives Estates or the publick safety may eafily resolve not only from sundry experiments and t Histories in former and late ages over-tedious to recite but by the memorable Presidents of innocent Nahoth recorded for this purpose in sacred Writ 1 King 21. and of the Pro Zechariah 2 Chron. 24. 20 21. 22. compared with that of Psal. 94. 20 21. shall the Throne of inquity have fellowship with thee which frameth mischief by a Law They gather themselves together against the Soul or Life of the Righteous and condemn the innocent Blood with Ezech. 22. 6 9 12 27. I say 59. 6 7. Behold the Princes of Israel every one were in thee to their power to shed blood In thee have they taken Gifts to shed blood Her Princes in the midest thereof are like Wolves ravening the prey To shed Blood and to destroy Souls that is the u lives of innocent men under a pretence of Law Justice for pretended crimes Treasons to get dishonest gain their wayes are wayes of iniquity the Att of VIOLENCE is in their hands their feet run to evil and they make hast to shed innocent blood their thoughts are thonghts of iniquity wasting and destruction are in their paths there is no Judgement or Justice in their goingâ— they have made them crooked paths Parallel'd with Jer. 22. 17. But thine eyes and thine heart are not but for thy covetousness and for to shed innocent blood and for oppression and violence to do it Such Monsters of Injustice rapine oppression violence against all Laws of God and Man do Kings Princes and great men degerate into even among Gods own people when they break down the Pales and Fences of publique Laws and Justice made for their Subjects preservation and let loose the reines to arbitrary goverment and lawless proceedings to shed their blood or confiscate their Estates supplant and ruine their posterity in a seeming way of Justice The consideration of which sacred Texts and Presidents should both caution and engage all future English Parliaments the whole Nation and every individual member thereof for ever to abandon and abominate such irregular Judicatures and extravagant proceedings and not to give the least countenance or incouragement thereunto especially after this memorable President of the Lord Magwire and our many years late contest in Parliament and bloody encounters in the field to maintain the fundamental Laws Privileges and good Customes of this Kingdome whereof the Tryal of men by a lawfull Indictment Jury and verdict of their Peers is the principal whereby not only the Supream authority but the peoples security of lives Lands Livings and Privileges both in general and particular are preserved and maintained and by abolishing or alteration of the which it is impossible but that present confusion will fall upon the whole state and frame of this Kingdome as King James himself and the whole Parliament long since resolved in the Act of 1 Iacob ch. 2. and without the full possession of which fundamental Rights Laws and liberties we can have little hopes as to humane Considerations to enjoy anie comfort of life or so much as life it self but at the pleasures of some men ruling méerite by will and power as the General Officers and Army themselves have long since published and declared to the Parliament and world in express words in their x Declaration and Representation humbly tendred to the Parliament concerning THE JUST FUNDAMENTAL RIGHTS LIBERTIES OF THEMSELVES THE KINGDOME Iune 14. 1657. which they may do well to remember and pursue In prosecution whereof in the Heads of Proposals agreed upon by his Excellency and the Councel of the Army to be tentred to the Commissioners of Parliament residing with the Army containing the particulars of THEIR DESIRES in pursuance of their former Declarations and Papers August 1. 1647. Proposal 10. they desired That the Rights of the Commons of England might be cleared as to A DUE EXEMPTION from any Iudgment Tryal or other Proceedings against them by the House of Peers without the concurring Judgement of the House of Commons As also FROM ANY OTHER JUDGEMENT SENTENCE OR PROCEEDING AGAINST THEM OTHER THAN BY THEIR EQUALS OR ACCORDING TO THE LAW OF THE LAND Which how inconsistent it is with all Military and summary proceedings in all new Courts Committees or Commissions since erected I refer to their own Consciences and Iudgements to resolve 5ly The Readers may hereby discern that Errors themselves in the Courts
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.
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
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
English possessions and thereupon with Banners displayed and great forces traytorously invaded the Kings dominions there besieged the City and Castle of Dublin murdered the Kings good Subjects who withstood them and resisted the Kings forces sent from hence c. for which they were all by this Act attainted of High Treafon The like general Rebellions have there broke forth sundry times both before and since that Act but none so generally dangerously bloodily as this for which the Prisoner at the Bar stands endicted The Treasons therefore in Ireland being commonly so frequent so general wherein most of the native Irish-Peers and some of the English extraction too were usually chief Actors there was very great reason policie and justice too why such a Law as this should be made to reach to Ireland and why in such cases as these Rebellions there being so universal and most of the Irish Nobility Conspiratours and parties in them that these Peers and the chiefest Conspiratours when surprized should be presently sent over from thence into England and tryed there for their Treasons 1. To secure their persons from escapes and rescues which might be there more easily procured especially when and where the Irish Rebells are Masters of the Field as the Statute of 17 H. 7. in Ireland c. 14. resolves 2ly To avoid a * fayler of Justice there when by reason of the many Irish Peers there out in actual Rebellion or by means of alliance of most other Peers to them or of the flight of other thence or the employment of them in service or places of trust or by reason of the interposition of the Rebels forces between them and the place of their Tryal chere a competent number of indifferent Irish Peers for a speedy Tryal cannot be assembled with safety or conveniency in Ireland to try a Rebellious Traytor by his Peers there which obvious defects are all supplyed by this Act 3ly To prevent all partiality and injustice in such Cases which might happen in Tryals by Peers in Ireland either by consanguinity or alliance of the Peer to be tryed to the Irish Peers who are to try him or by confederacy of the Tryers in the same Treason with the party tryed or through fear of mischief or revenge upon the Tryers Jury Witnesses Judges by the tryed Rebels Friends Kindred and Confederates in case he should be condemned by them and executed none being so vindictive and bloody in this kind as the Irish Upon all which weighty reasons there was special cause why both in justice policy and prudence all Irish Peers who by publick Rebellion commit High Treason in Ireland should be sent over and tryed here by ordinarie Juries to prevent the forenamed mischiefs and fayler of Justice and bring them to condign punishment Now in this case here in judgement at the Bar all these recited reasons hold For first most of the Irish Peers were in actual Rebellion when the Prisoner was sent over most of the English and Protestant Irish Peets there eimurthered or forced to flye thence or so dispersed and imployed that they could not assemble a competent number of indifferent Peers to any place with conveniency to try him in Ireland 2ly The enemies and Irish Rebels were then Masters of the field in most places the Prisoner in danger to be rescued by force from them or by treachery likely for to escape out of their hands and the times so troublesome as would admit no leasure for such a Tryal 3ly Most of the Irish were-allyed to Magwire or ingaged with him in the self-same Treason and Rebellion and so neither in Law Justice or Prudence fit or indifferent persons to pass upon his Tryal in this Case of most publick concernment 4ly The Judges Witnesses and Peers that should try him there would have been in extreme perill of their lives and of exemplary publick revenges from their Confederate-Rebels who threatned revenge as appears by Mac-Mahons Speech Magwires Confederate to the Justices upon his â—irst examination I am now said he in your hands and you may do with me what you please But I am sure within few daies I shall be revenged and by like words of revenge used by Owen Oneile in Flanders so soon as he heard Magwire was apprehended 5ly If he should now be sent back from hence into Ireland to be tryed the Rebels and his party are there so predominant that scarce any Witnesses nor Peers nor Judges either would or durst there to appear openlie against him or else such means would be made to delay or delude his Tryal and Execution that by some device or other there would questionless be a fayler of Justice against him Therefore for all these weighty reasons he may and ought by all rules of Policy Equity and Justice to be arraigned and tryed only at this Bar by vertue of this Act which so clearly extends unto him That so the blood of * above one hundred and fifty thousand innocent Protestants shed in Ireland in less than four months space by means of this Rebellion which cryes loud to Heaven and Earth for revenge against this great Contriver and Arch-promo of it may not go un-revenged in a way of publick Justice to our eternal infamie I have quite done with the second and main Question and proved an Irish Peer to be within the Statute as well as an Irish Commoner I shall now proceed to the last point arising from the manner of this Plea that he may be tryed by his Peers not expressing where or how and intimating that he would be so tryed here in England It is briefly this Admitting an Irish Peer to be tryable in England for a Treason committed by him in Ireland whether this doth not inevitably out him of his Tryal by Irish Peers and subjâ—ct him him to a Tryal at this Bar by an ordinary Jury as well as an Irish Commoner And I conceive without any scruple affirmatively that it doth for these undenyable Reasons 1. Because Irish Peers are Peers only in Ireland not in England and cease to be such in judgement of Law so soon as ever they arive in England both personally in themselves and relatively to others being here in judgement but mere Esquires not Lords and are to be sued as such not as Lords or Peers even as Peers of Scoland France or Spain are as is resolved and adjudged 11 E. 3. Fitzh. Brief 473. 8 R. 2. Process Fitzh. 224. 20 E. 4. 6. Brook Nosme de dignity 49 M. 19 20 Eliz. Dyer 360. b. Cooks 7 Rep. f. 15 16. Calvins case Co. 9 Rep. f. 117. the Lord Sanchers Case in point and Cooks 3 Instit. p. 30. The Prisoner then being no Peer in England it is impossible that he should be tryed in England by his Peers 2ly Because no such way of Tryal was ever yet heard of in any age of any Irish or other forein Peer tryed here in England either by English Peers or by his Irish or forein
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
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 iâ— 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 â—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. â—â— 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 fiâ—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
Rebels power Tumults in that Realm he could not conveniently undergo So I humbly pray on the behalf of the King Kingdome Parliament and our whole English Nation to all which he hath been such a capital Traytor and Enemy that this Plea of his may presently be over-ruled and himself brought to his speedy Tryal Iudgement and execution for his unparallel'd Treasons and the blood of those many thousands of innocent English Protestants shed in Ireland upon this occasion which cries for Justice and Execution against him without further delay The rather because nulli differemus Justiciam is one clause of that very Act of Magna Charta ca. 29. which he hath pleaded in bar of his Tryal of which I pray both he and the whole Kingdom may now enjoy the benefit by his undelayed Tryal and execution too in Case he shall be found guilty of the Treasons for which he stands indicted of which there is little doubt since so fully confessed by himself in a writing under his own hand and we are ready to make them good against him as we have already done against his Confederate Mac-Mahon by the Testimony of a clowd of honorable pregnant witnesses in case he shall deny it After two Arguments at the Bar on both sides of this Case Justice Bacon argued it himself and delivered his opinion and judgement against the Prisoners plea that though he be a Baron of Ireland yet he was triable for his Treason by a Middlesex Jury in the Kings Bench and outed of his Peerage by 35 H. 8. c. 2. Which Iudgement was approved by this Order of both Houses of Parliament Die Lunae 10 Febr. 1644. Ordered by the Lords and Commons in Parliament assembled That the said Houses do approve of the judgment given by Master Justice Bacon in over-ruling the Plea of the Lord Magwire and of the manner of the Tryal by the Indictment of High Treason in the Kings Bench And the Judge is hereby required to proceed speedily thereupon according to Law and Iustice John Brown Cler. Parl. Henry Elsing Cler. Parl. D. C. Upon which on Monday Febr. 10. 1644. he was brought from the Tower of London to the Kings Bench Bar there arraigned where putting himself upon his trial he challenged 23 of the Jury which appeared peremptorily Whereupon a Distring as was awarded to the Sheriff of Middlesex to retorn Quadragâ—nta Tales the next day of whom he challenged 12 more peremptorily And being tryed by twelve of the residue retorned against whom he had no legal exception nor challenge he was upon his own Confessions and pregnant evidence of 15 Witnesses Persons of Quality found guilty of the Treasons for which he was indicted and thereupon Febr. 11. was adjudged tobe drawn to Tyburn and there hanged by the Neck and cut down alive and then his Bowels to be taken out and there burnt before his Face his Head to be cut off and his body to be divided into four Quarters and then to be disposed as the Parliament shall appoint Which was accordingly executed the 20th of Febr. Even so let all such perfidious bloody Traytors perish TO fill up the vacant pages of this Sheet I shall annex this one Record and also one Irish Act being both very pertinent to my Argument Pat. 1 E. 1. m. 20. Hibernia Venerabili in Christo Patri eadem gratia Midden Episcopo Dilectis fidelibus suis Mauricio filio Mauricii Justiciario suo Hibern et Magistro Johanni de Saumford Escaetori suo Hibern salutem Cum deâ—uncto jam celebris memoriae Domino H. Rege paâ—re nostro cujus animae propicietur altissimus ad nos Regni Angliae gubernacuâ— et terrae Hibern Dominium perâ—ineant ob quod Praelati Comites Proâ—eres as Communitâ—s Regni nostri nobis tanquam Domino suo ligio et Regi fidelitatâ—s Juramentum omnia alia quae nobis rations Coronae dignitatis Regiae ab ipsis fieri praestari nobis in absentia nostra poterunt plenariè sine omissione aliqua prompto libenâ—i animo praestiter int Ac Archiepiscopi Episcopi Abbates Priores Comites Barones Milites libere tenentes ac tota Communi as terrae nostrae Hiberniae nobis tanquam * Regi Domino suo ligio consimile sacramentum fidelitatis praest are teneantur Dedimus vobis potestatem recipiendi nomine nostro fidelitatem ipsorum Ita tamen quod si vos omnes interesse nequiveritis tune duo vel unus â—estrum qui praesens fuerunt nichilominus plenariam habeat potestatem recâ—pâ—endi nomine nostrâ— fidelitatem ipsorum in forma praedictâ— Et ideo vobis mandamus quod fidelitatem praedictam nomine nostro recipiatis prout melius videbitis expedire In cujuâ— c. Dat. per manum W. de Merton Câ—nc apud Westm. VII die Decembris 33 H. 8. c. 1. made in Ireland An Act that the King and his Successors to be Kings of IRELAND FOrasmuch as the King our most gracious dread soveraign Lord his Graces mostnoble progenitors Kings of England have been Lords of this Land of Ireland having all manner kingly jurisdiction power preeminences and authority royal belonging or appertaining to the royal Estate and Majesty of a King by the name of Lord of Ireland where the Kings Majestie and his noble Progenitors justly and rightfully were and of right ought to be Kings of Ireland and so to be reputed taken named and called and for lack of naming the Kings Majesty and his noble Progenitors Kings of Ireland according to their said true and just Title Stile and Name therein hath been great occasion that the Irishmen and Inhabit ants within this Realm of Ireland have not been so obedient to the Kings Highness and his most noble Progenitors and to their Laws as they of right and according to their allegiance and bounden duties ought to have been Wherefore at the humble pursute petition and request of the Lords spiritual and temporal and other the Kings loving faithfull and obedient Subjects of this Land of Ireland and by their full assents Be it enacted ordained and esta blished by this present Parliamentâ— That the Kings Highnesse his Heirs and Successors Kings of England be alwaies Kings of this Land of Ireland and that his Majesty his heirs and Successors have the name stile title and honor of King of this Land of Ireland with all manner of honors preheminences prerogatives dignities and other things whatsoever they be to the Estate and Majesty of a KING appertaining or belonging and that his Majesty his Heirs and Successors be from henceforth named called accepted reputed and taken to be Kings of the Land of Ireland to have hold and enjoy the said stile title majesty and honors of the King of Ireland with all manner preheminence prerogative dignities and all other the premises unto the Kings Highnesse his Heirs and Successors for ever as united and knit to the Imperial Crown of
c. 8. 13 14 Eliz. c. 3. 1 2 Phil. Mar. c. 3. 1 Eliz. c. 6. * See Cooks 3 Instit. p. 31. * See 26 H â— c. 13. 1 E. 6. c. 11. * 1 H 7. 3. Co. 7. Rep. Calvins case f. 16 17 23. Cooks Instit. 1. p. 35 Mr. St. Johns Argument at Law at Straffords Attainder p. 61 62. * Mat. Parls An. 1230. Mr. Cambdens Ireland p. 114. to 140. The Annals of Ireland in Mr. Camb. Britan. p. 154 156 157 158 159 160 162 163 164 165 166 167 168 869 170 to 201. See 1 E. 3. rot parl. n. 4 5 6. 6 E. 3. n. 11. 6 E. 3. Parl. 2. n. 3. 7 R. 2. n. 4. 13 R. 2. n. 2. See p. â— * Upon which ground writs of Error lie in the Kings Bench in England to reverse erroneous judgments in the Courts and Parliaments of Ireland Cooks 4 Inst. p. 352. Mr. St. Johns Arment at Law against Strafford p. 58 61. * Dr. Jones others printed Relations concerning the Irish Rebellion Quest 3d. * See Dyer f. 31. 232 298 360. Cooks â— Rep. f. 23. 11 Rep. f. 65. * 21 H. 7. 7 Br Alienation 9. 30 E. 3. 17 Br. Alienation 23 30. * Seldens tit. of Hon. p. 837 840 841. * Cap. 29. See Cooks 2 inst. p. 48 49. * Page 202 to 307. * See my plea for the Lords and House of Peers p. 202 203 to 309. where this is largely proved p. 424. * 3 Instit. f. 30. * 1 El. c. 1. 6 * Par. 1 H. 3. m. 3. * King Hen. being then a Minor and under his Regiment * Mat. Paris Hist. Angl. p. 278. * Claus. 12 H. 3. pars 1. m. 8. * Rot. Pat. 30 H. 3. m. 3. Sir Iohn Davis Irish Rep. p. 37. Cooks 4 Instit. p. 350. 1 Instit. f. 141. b. Mr. St. Iohns Argument at Straffords Attainder p. 55. * Nota. * Mr. St. Iohns argument at Straffords Attainder p. 37 53. Here p. 2. * Rot. pat 8 E. 4. in Cancel Hiberniae Mr. Seldens titles of Honor Booke 2. c. 6. 〈…〉 841. Pat. 21 H. 8. pars 2. 8 Decemb. * Titles of Honor Book 2. c. 6 7. Object 1. Answ * Here p. 32 33 34. * Here p. 3 * Here p. 32 33 34. * See Cook ibid. * Co. 2 Instit. Proem. * Page 30. Object Answ * See Horns Mâ—râ—our of Justices p. 314 315. * See an exact Abrigement of the Records p. 372 379 380. Object 2. Argument 2. Answer * See an exact Abridgement p. 567 568. Cooks 4 Instit. p. 123 124. * Cambdens Ireland p. 111 120 121 199. * See Stamf. l. 3. c. 7. 7 H. 7. 12. Brook Challenge 217. Fitzh. Stathams and Brooks Abridgements and Ashes Table title Challenge * Cooks 3 Institutes p. 27. a See Fitzh. Brook Ash Title Jurors Tryal Enquest b 1 H. 4. 2. 27 H. 8. 22. 13 H. 8. 11 12. Brook Treason 29 33. 10 E. 4 6. Cooks 3 Inst. p. 28 29. 2 Inst. p. 49. c 2 Eliz. c. 1. 6. * Godwins Catalogue of Bishops p. 605 606 232 233. * Though Peers Object 3. * See the Annals of Ireland and Mr. Camb. in Ireland p. 121 to 200. Object 4. * Here p. 40 41. Answer * See here p. 32 to 42. Object 5. Answ Object 6. Answer * See Crokes Rep. p. 264 511 512. Object 7. Answer * See Hov. p. 545 546 550. Walsingham Hist. Angl. p. 48 to 56. Mat. Paris Hist. Ang. p. 417 433 666 667 29 E. 1. Roâ— Claus. dors 10. Claus. 33 E. 1. dors 13. scedula claus. 34 E. 1. dots 10. claus. 10 E. 3. dors 9. 1 Jac. c. 2. 3 lac c. 3. 4 lac 1. Object 8. Answ * Not â— The Star of Ireland prin-Dublin 1621. p. 183.