Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	king_n	lord_n	treason_n	2,059	5	9.0913	5	true

Text snippets containing the quad

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

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 Quadrag●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 de●uncto jam celebris memoriae Domino H. Rege pa●re nostro cujus animae propicietur altissimus ad nos Regni Angliae gubernacu● et terrae Hibern Dominium per●ineant ob quod Praelati Comites Pro●eres as Communit●s Regni nostri nobis tanquam Domino suo ligio et Regi fidelitat●s Juramentum omnia alia quae nobis rations Coronae dignitatis Regiae ab ipsis fieri praestari nobis in absentia nostra poterunt plenariè sine omissione aliqua prompto liben●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 ●estrum qui praesens fuerunt nichilominus plenariam habeat potestatem rec●p●endi nomine nostr● fidelitatem ipsorum in forma praedict● Et ideo vobis mandamus quod fidelitatem praedictam nomine nostro recipiatis prout melius videbitis expedire In cuju● c. Dat. per manum W. de Merton C●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 Parliament● 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

before had used or practised in that Realme and therefore the Prisoner shall be tried by an ordinary Jury at this Bar not by his Irish Peers because if he were in Ireland for ought appears yet to me he should not be tried by his Peers there and in both these points the Book in Dyer the only Authority which seems to be strongest against is for me the words whereof are these in English The grand Chancellor of Ireland moved this question to the Queens councel If an Earl or Lord of Ireland who commits Treason in Ireland by rebellion shall be arraigned and put to his trial in England for this offence by the Statutes of 26 H. 8. c. 13. 32 H. 8. c. 4. 35 H. 8. 2 or 3 E. 6. And it was held by Wrey Dyer and Gerrard Attorney General That he could not Mark now their reasons for he cannot have his trial here by his Peers which is a full resolution in point of my third Question agreeing with what I have endeavoured with Arguments to prove and is an unquestionable Truth which I submit to Then it follows Nor can he be tried here by any Jury of twelve mark the reason Not because he is a Peer of Ireland and therefore ought to be tried by his Peers and not by a Jury for that had been full against me and it is now the only knot in que●tion but because he is not a subject of England but of Ireland and therefore he shall be tried there which reason extending as well to an Irish Commoner as Peer hath been since adjudged directly false absurd and against the Law both in Orourks Case and in Sir John Parrets Case and since in Mac-mahons Case and Sir Ed. Cook informs us in his Institutes on Lit. f. 261 that Wray himself in Orourks Case where this Opinion of his was vouched did openly disclaim that ever he delivered any such opinion as this but ever held the contrary to it and so it is a misreport in this particular After which the Book concludes thus And it is said that the usage to wit in Ireland to attaint a Peer Is by Parliament and not by Peers which comes full in terminis to what I have last insisted on and I am certain cannot be disproved Wherefore this authority in Dyer as to all that is truth and Law in it is wholly for me in the reason of the Law and against me only in what hath been since adjudged to be no Law I shall close up all with a stronger Case and authoritie than this in question which will over-rule this case and that was in * Trinity Term An. 33 H. 8. in the Kings Bench Edward Lord Gray immediatly before having been Lord Deputie in Ireland was endicted arraigned and attainted of High Treason by an ordinary Jurie in the Kings Bench in England for letting divers Rebels out of the Castle of Dublin and discharging Irish hostages and pledges that had been given for the securing the peace of Ireland and for not punishing one who said the King was an Heretick whilest he was Lord Deputy in Ireland For these Treasons all acted and committed in Ireland through an English Peer he was tried by an ordinary Jury in England by the Statute of 26 H. 8. c. 13. ratified in Ireland by 28 H. 8. c. 7. forecited which secluded him from his tryal by Peers being not saved by these Acts. Therefore a Fortiori shall these Statutes and this of 35 H 8. c. 2. 5 E. 6. cap. 1. made since his judgement exclude this Irish Lord being no English Peer from any tryal by his Peers Finally the Prologue of this Statute coupled with the body thereof puts a period to this question beyond all doubt or dispute For as much as some doubts and questions have been moved that certain kinds of Treasons c. committed out of the Kings Majesties Realm of England cannot nor may by the Common laws of this Realm be inquired heard and determined within this his said Realm of England For a plain remedy order and declaration therein to be had and made be it enacted c. that all manner of Treasons c. committed by any person o● persons ●out of this Realm of England shall be from henceforth inquired of heard and determined by the Kings Iustices of his Bench c. by good and lawfull men of the same Shire where the said Bench shall sit and be kept in like manner and form to all intents and purposes as if such Treasons had been done within the same Shire where they shall be so inquired of heard and determined The sole scope end purpose then of the King and Parliament in this Act being to take away all doubts and questions formerly moved in point of Law touching the tryal of treasons done out of the Realm before the Kings Justices of his Bench and Commissioners in England by a Iury and to make and enact a plain remedy and declaration therein for the future in manner aforesaid I humbly apprehend there can be no doubt nor question now moved whether this Prisoner ought to be tryed by his Peers in Ireland or England for this his most horrid Treason committed out of the Realm of England since this Statute so clearly declares and resolves the contrary in most plaine and positive words The rather because the Kings Patent creating him Baron of Ineskellin under the great Seal of Ireland maketh him only a Peer in Ireland and gives him only a Place and Voyce among the Peers and Nobles of Ireland in the Parliaments of Ireland not in England as he sets forth in his own * Plea in precise terms as the Patent made by King Edward the 4th to Robert Bold created him Baron of Rathtauth in Ireland and constituted him Unum Dominum Baronem omnium singulorum Parliamentorum magnorum Conciliorum nostrorum in terra nostra Hiberniae tenendorum habendum tenendum una cum stilo titulo nomine honore loco et sessione inde sibi et haeredibus suis masculis imperpetuum And as King Henry 8. made Thomas Viscount Rochford by the self-same Patent both Earl of Wiltshire infra regnum nostrum Angliae and Earl of Ormond in terra et dominio nostro Hiberniae only with several clauses of investitures several Habendums and several Creation-monies for each Title and Kingdom And as the Patents of all other Irish Earls Viscounts Lords and Barons in Ireland create and make them Peers only in Ireland not in England as * learned Mr. Selden informs us and their very Patents resolve in terminis And therefore quite exclude the Prisoner and all other Peers of Ireland from any tryal by their Peers in England either by the Proviso or body of this Statute or their Patents which are point-blanck against it And now I hope I have fully made good the point in question with all the several branches of it That this Act extends to Treason committed in

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.

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

been accustomed heretofore that Irish or anie other forein Peers should be tried for anie Treasons here committed by English Irish or anie other forein Countrie Peers within the Realm of England Nay no one President of this kind was ever heard of and it is an impossible thing in point of Law as I have proved therefore no such trial by anie Peers can be once thought of or imagined for the Prisoner or anie other Peer of Ireland within the purview or proviso of this Act 5ly I shall adde further ex abundanti to put this case out of all question that I have made some cursorie search into most of the Irish Annals Histories Antiquities Statutes upon this occasion and I should have made a further inquisition had I enjoyed anie vacant hours to do it yet I cannot find so much as one President of anie Irish Peer tried in Ireland for Treason or anie other offence by his Peers before this Statute of 35 H. 8. and I believe the Prisoners Councel cannot as indeed they neither did nor could produce one example of such a trial there by Peers before this Law nor anie Act of Parliament in that Realm before this Statute concerning Treason which provides that Irish Peers shall be tried by their Peers there being no such clause or least hint thereof to be found in the Statutes of 18 H. 6. c. 2 3. ●● H. 7. c. 13. 13 H. 8. c. 1. 28 H. 8. c. 1 2 7. which make sundrie offences Treasons and extend to and mention Irish Lords and Rebels by name as well as Commons all and everie of these Acts leaving both the Irish Peers and Commoners to the self-same rrial by a Jury And since this Act I presume they cannot produce above one president and that a verie late one in case of Treason where an Irish Peer was tried by his Peers and it was the case of the L. Slane much about 20 years since there tried and acquitted by his Peers in Ireland as I am informed before which time it was then confessed by the Judges there they never heard or read of any one such tryal used in Ireland and since it we have heard of no other trial there by Peers to second it but onlie of one Noble Lord the Lord of Valentiae Vicount Norris there extrajudiciallie condemned by meet Martial-law in a Council of War even in times of peace by the Earl of Strafford An. dom 1635. but not executed nor tried by his Peers in a legal way all their Peers formerlie being there either attainted by Act of Parliament as is evident by the Irish Statutes of 28 H. 8. c. 1. 3 4 Ph. Ma. c. 2. 11 El. c. 1. 13 Eliz. c. 6 7. 27 Eliz. c. 1. 28 Eliz. c. 8 9. 11 Jac. c. 4. 2 H. 6. rot Parl. n. 8. or executed by Martial-law as soon as apprehended in the Wars or else slain in actual Rebellion or pardoned upon their submissions without anie trial for their Treasons by their Peers For Attainders of Irish Peers and other Traitors and Rebels by Act of Parliament in Ireland I find the Earl of Kildare with others attainted for a Treason and Rebellion much like this for which the Prisoner stands here indicted in a Parliament held at Dublin in Ireland 28 H. 8. c. 1. Since this in 11 Eliz. c. 1. Shan O Neale a bloodie desperate Rebel was attainted by Parliament after his death being hewn in pieces by the Scots and the name of Oneyle extinguished it being made High Treason for anie to assume that name And I find a Mac-Mahon and Magwire forfeiting Lands among other Rebels in that Act which largelie sets forth the Queens Title to Ireland 27 Eliz. ca. 1. James Eustace Viscount of Baltinglas was attainted of High Treason for a publique Rebellion against the Queen 28 Eliz. cap. 9. I find John Brown and near one hundred more Irish-men by name attainted of High Treason by this Act for an open Rebellion In 11 12 Iac. C. 4. I find Hugh Earl of Tyrone Jury Earl of Tirconell Caconaugh Magwire Mac-Mahon and above 20 more chief Irish Gentlemen attainted of High Treason by this Act for their open Rebellions But for a trial of any Irish Peer for anie Treason in Ireland by his Peers I can meet with no president as yet but that of the Lord Slane onlie and shall be glad to be informed of any other to parallel it Indeed in the printed Statute of 2 Eliz. c. 1. made in Ireland for restoring to the Crown the antient Jurisdiction over the State Ecclesiastical and Spiritual and abolishing all forein power repugnant to the same and in the Statute of 2 Elizabethae in Ireland cap. 6. intituled An. Act whereby certain offences are made High Treason I meet with these two clauses concerning the trial of Irish Peers for Treasons onlie within these Acts. And if it shall happen that anie Peer of this Realm shall fortune to be endicted of and for anie offence that is made Premunire or Treason by this Act that then the same Peer or Peers so being indicted shall be put to answer for everie such Indictment before such Peers of this Realm of English blood not Irish mark it as by the Lord Deputie Governor or Governors of this Realm shall be by Commission appointed under the Broad Seal and to have his and their trial by his and their Peers and to receive and have such like judgement upon the same trial of his or their Peers or making open confession of the same offence or offences as in other Cases of Treason and Premunire hath been used or is used in other Cases of High Treason and misprision of Treason Which later clauses As in other cases of Premunire and High Treason hath been used And as is used in other cases of High Treason or misprision of Treason relate only unto thosè words to receive and have like judgement upon trial and so onlie to the judgement and sentence given in these new Treasons and offences enacted by these Acts not to the manner of trial by Peers which is meerlie a new kind of trial never mentioned in any other Irish Acts before these and restrained onlie to the new Treasons and Premunires specified in these Acts in imitation of the * English Statutes made in the self-same Cases which provide a Tryal by Peers for our English Peers which was never heard of in any Acts of Parliament in Ireland till these and never practised that I read of in that Realm either before or since To clear this up more fully the Statute of 11 E. 3. c. 4. makes mention of Prelates Earls and Barons in Ireland as well as in England And the Statute of 4 H. 5. c. 6. prohibits that any one of the Irish Nation should be chosen to be an Arch-Bishop Abbot or Prior within Ireland because many of them against a former Act there made had been made Arch-bishops Bishops Abbots Priors wherby they became Peers of the

be admitted or granted in case of tryal by Peers it being the usual antient a tryal in all Cases between the King and ordinary Subjects between man and man Peers and Commoners both in all civil and criminal causes whatsoever it is and will be every way as just as beneficial to a Peer in point of Law as a Tryal by twelve Peers upon their Honours only b without oath And the exchange only of the form of Tryal by twelve indifferent English Gentlemen of quallity upon their oaths for twelve Irish Peers of English blood nominated and appointed only by the King or his c Lord Deputy of Ireland upon their Honours without oath in this case of necessity can be no injustice injury or prejudice to the Irish Peers in general nor yet to the Prisoner in particular The rather if we consider First That every Indictment by which an English or Irish Peer is or can be tryed must first be proved before a grand Jury of Commons as this very Statute prescribes and found by them upon Oath not by a Jurie of Peers which is a kind of preparatory trial of a Peer by Jury without which there can be no proper tryal by Peers as is resolved Cooks 3 Institutes p. 28 30 31 32. 1 H 4. 1. 2ly That in Cases of Appeal brought by a common person ●or murder rape robberie or the like and likewise in case of a Premunire against an English Peer where his life is not brought into question he shall not be tried by his Peers but by an ordinary Jury as other men Trial of Peers by Peers being onlie in cases of Indictments for Treasons or Felonies at the Kings sute and no other as is clear by the Statute of Magna Charta c. 29. Neither will we pass upon him or condemn him without the lawfull judgement of his Peers c. the words onlie of the King not of the Commons In this our Books are express in point all cited in Sir Edw. Cooks 2 Institutes on this verie Chapter of Magna Charta cap. 29. in his pleas of the Crown or 3 Instit. c. 2. p. 30 31. 20 Ed. 4. 6. b. Now this case in question concerning not onlie the King but the whole Kingdome of England and Ireland and those manie thousands of Common persons whose innocent blood hath been shed in Ireland by him and his Confederate Rebels crying out for vengeance and Justice against him without delay he may thereupon be justly tried by an ordinary Jurie of Commons as well as in Case of an Appeal of murder brought by a common person 3ly Peers of Parliament even of this Realm not by inherent Nobility and Birth right but only in right of their Baronies which they hold in auter Droit as Arch-Bishops Bishops Abbots Priors and the like shall not be tried by their Peers for treasons or felonies at the Kings sute but onlie by an ordinary Jurie as Archbishop Scroope of York Cramner Arch-bishop of Canterbury * Adam de Orlton or Tarlton Bishop of Hereford Mark Bishop of Carlile Fisher Bishop of Rochester and others were tried 3 Ed. 3. f. 6. Kelwaies Reports f. 184. Stamfords Pleas of the Crown f. 135. Cromptons Jurisdiction of Courts f. 12. 19. Hall● Chron 6 H. 4. f. 25. Coo. 3 Instit. f. 36. Now if these verie English Peers to whom Magna Charta was immediatelie granted by name of Arch-Bishops Bishops Abbots being the first persons mentioned in the Prologue and ch. 1. 29 of this Charter shall be outed of their peerage in these Cases of Indictment at the Kings sute though within the very letter of Magna Charta because they are no Peers of England by blood or birth-right but in right of their Churches then a fortiori Irish Peers shall be deprived of their Peerage by this special Act who are not within the letter or intent of Magna Charta never made for them but for English Noble blood And if it be neither injustice nor injurie nor inconvenience to deprive these Ecclesiastical English Peers of a trial by Peers in cases of Treason or felony at the Kings sute though within the letter of Magna Charta and to try them by an indifferent Jurie of Freeholders It cannot be reputed any injustice injury rejudice or inconvenience at all now to out this Irish Peer of his Peerage here where he is no native Peer for such an horrid Treason as this 4ly Irish Peers are no Peers at all in England upon which account and reason if they commit Treason herein they shall be tried by an ordinarie Jury Therefore to try them onlie by Freeholders no● by Peers in England can be no injurie nor dishonour to their Peerage unless it were in Ireland where they are Peers and yet have been seldome or never hitherto tried there by their Peers as I have proved 5ly The verie Statutes of Ireland it self made by the Peers and Commons thereof to prevent manie mischiefs by Theeves Murderers and Rebells in that Realm do deprive both the Lords Commons there of any legal trial at all both for their lives and estates too witness the Statutes of 28 H. 6. c. 1. 3 5 E. 4. c. 2. expose them to the judgement slaughter plunder of particular men in some cases authorizing all manner of men that find any theeves robbing breaking up houses by day or night or going or comming to rob or steal having no faithfull man of good name and fame in their company in English apparel to take and kill those * Theeves and cut off their heads without endictment or Jury and seise their Goods without any impeachment of the King his Heirs Officers or any other for which they are to receive a sum of mony from every Plow-land and person of estate within the Barony where they shall slay and behead such Theeves And 25 H. 6. c. 4 5. If any English men shall have any hair or beard upon his upper lip like the Irish it shall be lawfull for every man to take their Goods as Irish Enemies and to ransome them as Enemies And if any Irish Enemy received to the Kings allegiance shall afterwards rob spoyl and destroy the Kings Liege people it shall be lawfull for every Liege-man that may meet with him afterwards to do with him and his Goods and Chattels as to Enemies who were never Liege and to ransome them at their free will without any impeachment of the Law And Ch. 6. If any men except Knights Prelates shall wear gilded Bridle Pestrels or other harneys that it shall be lawfull to every man that will to take the said man his horse and harnesse and to possess the same as his own Goods without endictment or legal tryal All which would be monstrous in England Therfore it is much more legal and just and no injurie at all to try the Prisoner an Arch-Rebel in England in this time of war and combustion in Ireland for his Treasons there

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

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 ● 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. ● * 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 ● 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 M●r●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. Ro● 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 ● The Star of Ireland prin-Dublin 1621. p. 183.