Irish Commons else they should be in far better condition than English or Scotish Peers and quite exempted out of this Act. Now the same words that bring English-Peers within this Law must of necessity hook in Irish-Peers too there being no clause which exempts or includes the one more than the other 5ly The very letter intent and scope of this Act as appears by the body of it and likewise by the Statutes of 26 H. 8. c. 13. 5 6 E. 6. c. 11. to the same effect was to make all Treasons done or commiteed out of England by any person or persons whatsoever tryable in England either before the Justices in this Court or * before special Commissioners in some other Counties but to be still tryable within this Realm as the words All manner of Treasons hereafter to be done perpetrated or committed by any person or persons out of the Realm of England shall be from henceforth enquired of head and determined before the Kings Justices of his Bench c. clearly resolve in direct terms Therefore to make the Treasons of Irish-Peers committed in Ireland or elsewhere tryable here in England as well as the Treasons of English-Peers or Irish-Commoners And to send them back into Ireland to be there tryed by their Peers when once they are here in Prison and indicted in this Court by exempting them out of this Act contrary to the very letter and intent of the Law is to run point-blank against the very words and meaning of this Law and the Law-makers Therefore he must by this Act be tryed at this Bar and that by an ordinary Jury only as I shall prove anon 6ly The very scope and sole purport of this Act is not to make new Treasons or Traytors which were none before but to bring real Traytors only for Treasons formerly made or hereafter to be made and declared Treasons by the Laws and Statutes of this Realm to exemplary punishment in this Kingdome for the peace and preservation of the King Realm and the better execution of Justice the very life of Laws upon Delinquents only of the highest rank for the most transcendent crimes of High Treasons of misprision or concealments of Treasons not for Felonies or petit Treasons Which consideration must necessarily induce us for the common good to give it the largest fullest and most equitable constraction that may be Thus the Judges in former times have always interpreted it as appears by Dyer f. 132 298. Cookes 7. Rep. Calvins Case f. 23. a. his first Institut on Littleton f. 26. his 3 Instit. p. 24. and in Orourkes case wherein the Judges resolved 1. That the Statute of 1 Mar. Sess. 1. repealing all former Treasons but those within 25 E. 3. and of 1 2 Phil. and Mar. c. 10. enacting That all Tryals hereafter to be had for any Treason shall be had and used only according to the due course of the Common-law of this Realm and not otherwise exend not to the taking way of forem Treasons or their tryals by this Law And in Orourks case they extended it by equity beyond and in some sort against the letter of the Law it self for he standing mute and refusing his Tryal was thereupon condemned and executed for a Treason committed by him in Ireland though the words of the Statute are The Treason shall be enquired of heard and determined before the Justices of the Kings Bench by good and lawfull men of the same Shire where the said Bench shall sit and the Act speaks nothing at all of standing mute But this being a publique Law for the Common good to bring Traytors only to their Tryal and just punishment his refusal to put himself upon his Tryal was adjudged to be a determination and conviction of his Treasons within the Act else any Traytor by standing mute might evade and frustrate this good Law If then this Statute may thus be construed by equity and dilated beyond the words to one who stands mute for a Treason done in Ireland much more may it be extended to a treason by an Irish-Peer who is fully within the words and intent of it as I have already manifested And it would be a most pernicious gloss which should either elude or nullifie this beneficial publique Law 7ly It is clearly resolved in and by our Parliaments 13 E. 1. Proem. 13 E. 1. of Statute Merchants 21 E. 3. rot parl. n. 67. in the Statute of 5 H. 5. ch. 6. in divers of our * Law-books That Acts of Parliaments made in England wherein Ireland is either specially named or generally and necessarily included do bind those in Ireland both Commoners or Peers alike This therefore being such a Law extending and binding those in Ireland as hath been resolved in the forecited Cases it must certainly bind both the Peers and Commons of Ireland to a Tryal at this Bar for Treasons done in Ireland when the King and Kingdom deem it necessary or expedient to try them here in England 8ly The Proviso in this Act for tryal of Treasons done out of this Realm by Peers within the same extends only in positive terms to Peers of this Realm of England because they only are Peers within England and so only tryable by their Peers for forein Treasons within the same not to Peers of Ireland who are no Peers at all nor tryable by their Peers within this Realm of England Therefore this Proviso extending only to Peers of this Realm excludes all other forein Peers whether Irish or Scots from any tryal by their Peerâ— in England for Treasons acted out of it 9ly There is very great reason why Natural Irish Peers and Barons should be within the compass of this Law as well as Commoners and rather they than any other forein Peers because as our * Historians the Irish Annals Statutes and our Records do testifie ever since their conquest by K. Henry the 2d and submission to the Kings of England they have frequently almost every year in most Kings Reigns broken footh into private petit or general Rebellions and Insurrections against the English as I could instance in sundry particulars in which Rebellions I commonly find a Magwire a Mao-Mahon and Oneal in the van as Ring-leaders of all the rest as they were in this last Rebellion wherein most of the native Irish Peers and greatest septs have been deeply engaged as principal Conspiratours Among other Rebellions I find in Story and which is more authentick in the express Statute made in the Parliament at Dublin in Ireland anno 28 H. 8. c. 1. but 7 years before this Law That Gerald Fitz Gerald Earl of Kyldare the Earl of Desmond with divers other of the Irish Peers and Gentry conspiring together to extirpate the English and deprive the King of his Soveraignty in Ireland did send to the French King the Emperour and Bishop of Rome for ayd and assistance for taking the same Land out of the Kings and
meaning And so much in answer to this grand objection wherein I have been over tedious but shall recompence it with brevity in the remainder The second Objection a meer branch of the former is this That if Irish Peers should be tryable by an ordinary Jury within this Law for Treasons done in Ireland this might prejudice the whole Nobility of Ireland who by colour of this Act might be sent for out of Ireland and tryed here for Treasons Misprisions and concealments of Treasons there committed and so quite deprived of their birth-right of tryal by their Peers which would be of dangerous consequence I answer 1. That I have manifested that this tryal by Peers was never deemed claimed nor enjoyed in Ireland as a privilege by Irish Peers nor ever used or practised in that land before this Act but once claimed since and that in Ireland Therefore it cannot be intended that this Statute or the makers of it ever imagined to save this manner of Tryal by Peers only to Irish Peers which they never enjoyed nor so much as once claimed or possessed before the making of it Neither can it be any injury or injustice to deprive them of that now they never heretofore claimed used enjoyed as their privilege and birth-right being not indubitably setled on them by any Law that I have seen but only in some special Cases of Treason since 35 H. 8. wherof this is none by the late Acts of 2 El. z. c. 1. 6. when as this privilege is taken from them not by a bare strained exposition or implication but by this express Act of Parliament made long since for the Common good and safety of England and Ireland not yet repealed 2ly This Objection with as great or greater strength colour might be made for all the Commons of Ireland far more numerous and considerable than their Peers they being deprived by it of tryals by Irish Juries in their native Country than for Irish Peers alone which Tryal here against Irish Commons was never of late excepted against this Law having been so often adjudged to reach to them Therefore there is no colour to exempt Irish Peers out of it 3ly This pretended prejudice to Irish Peers in point of Tryal by their Peers is soly in cases of High Treasons or Misprision and concealments of it and no other the Statute extending to no crimes but these alone Therefore the mischief is not great in general and no Irish Peers I presume but such who have trayterous or disloyal hearts will deem it a disparagement or injustice to them to be secluded of a Tryal by their Peers only in these Cases of High Treason And if others who are professed Rebels and Traytors murmur at it as none else will we need not much regard it nor prefer their pretended privilege before our own Kings Kingdomes Religions yea Irelands safety and wellfare in bringing them to a speedy tryal and condign punishments for their Treasons here in England by vertue of this Law 3ly Even by the very Common law before this Act Treasons committed in Ireland by Peers or Commons were tryable before the Marshall of England in England it self as is evident by the Parliament Roll of 2 H. 6. â— 9. * Where Iohn Lord Talbot being the Kings Lieutenant in Ireland accused James Bottiler Earl of Ormond of certain Treasons there particularly recited by him committed in Ireland before John Duke of Bedford Constable of England in his Marshals Court Which accusations the King by the advice of his Parliament did discharge and abolish to appease the differences between them Upon which else he might have been proceeded against though an Irish Peer without any tryal by his Peers See Cooks 4 Instit p. 123 124. Therefore a fortiori this special Act of Parliament may subject Irish Peers to a tryal by a substantial English Jury in England for Treasons done in Ireland since tryable for them here before its making even in the Marshals Court 5ly This Statute doth not simply take away the tryal of all Treasons committed in Ireland from thence only it makes them all tryable here when the King State and Parliament shall see just cause or occasion for tryal of them here as now they do in these times of general rebellion there when the Rebels are so predominant and the times such that no safe fair or indifferent tryal of this Traytor can be there had or expected And seeing the Law and common reason will inform every man that the King and State will never be at the cost and trouble to send for Traytors and Witnesses out of Ireland to try them here but upon a most just occasion and urgent necessity to prevent either a faiter or delay of Justice in case of horrid Treasons and Rebellions And no Irish Peer who hath any loyalty in his heart or reason in his head will deem it a dishonor or prejudice to the whole Irish Peerage in general or the trayterous Peers sent hither to be tryed in particular to be outed of a tryal by Irish Peers in such Cases of necessity and expediency only it being better and safer for this Realm and Ireland too that these native Irish Peers who have been proved to break out into actual Rebellion in all ages as this Prisoners Ancestors have done as much or more than any his * Grandfather being the first man that broke forth in Tyrones Rebellion should be subject to tryals for the same by ordinary English Juries here and outed of their Peerage then that such Arch-Traytors and Rebels as the Prisoner and his Confederates are guilty of the effusion of many thousands of Protestants and English mens bloods should escape uncondemned or be executed by Martial law And our Law in this Case which concerns the safety of 2 Kingdoms at once will rather suffer a particular mischief especially to rebellious Peers than a general inconvenience to both Realms and all loyal Subjects in both 6ly Though the tryal of all English and Irish Peers by a legal indictment presentment and Jury of their Peers alone and not by Martial-law or Commissioners themselves alone be an essential fundamental Right and Privilege for the securitie of their lives and estates which our Parliaments in all ages have been very curious to preserve and not to alter yet the Tryal of Peers by Peers alone not by a Jury of other Freemen for the most part if rightly considered is rather a meer punctilio of honor than matter of real privilege or benefit to Peers and by intendment of Law and common experienc a fair and legal tryal by the oaths of 12 honest substantial indifferent English Gentlemen or Freeholders to whom the Prisoner may take all * sorts of lawfull challenges by Law which shall be allowed if there be any just cause of suspition of partiality injustice consanguinity c. besides his peremptory challenge of 35 Jurors without cause which challenges * Cook affirms shall not
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 â—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. Hallâ— 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 noâ— 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 Angliaeâ—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 Juniiâ— If Englishmen outlawed in England could not by the Law and Custome of Ireland be taken upon a Câ—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. â—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 Staâ—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
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
over that be accepted used and executed within the Land of Ireland in all points at all times requisite according to the tenor and affect of the same And that by authority aforesaid they and every of them be authorized approved and confirmed in the said Land of Ireland That before the time of the supposed Treasons King Charles by his Letters Patents under the great Seal of Ireland bearing date the last day of August in the 4th year of his Raign at Dublin in Ireland did create Brian Magwire Father of the said Connor Magwire Baron of Iniskellin in the County of Farmanagh in the said Realm and granted to him and the Heiâ—â—males of his body the title honor and dignity of the said Barony and to have a place and voice among the Peers and Nobles of Ireland in the Parliaments of that Realm By virtue whereof the said Brian was seised in his demesn as of Fee tayl of the said Barony and dyed seised thereof at Dublin 1 Feb. 12 Caroli before the supposed Treasons after whose death the said Barony discended to him as Heir in tail That by virtue of these Letters Patents before the said supposed Treasons committed he was one of the Barons Lords and Peers of Parliament in the Realm of Ireland and at the Parliament begun and held there the 16th day of March 16 Car. at Dublin and continued untill the 17th of August then next following and then adjourned till the 9th of November next ensuing and thence proroged to the 24 of February next following and from thence continued till the 24 of Iune Car. he was present as one of the Peers of the Realm of Ireland And further saith that on the 23 of October 17 Car. he was taken and arrested by certain Persons to him unknown at Dublin in Ireland and there committed to safe Custody for the Treasons pretended to be committed by him till afterwards he was on the 12 of Iune 18 Car. by certain Persons to him unknown brought in safe Custody against his Will to Westminster within the Realm of England and then and there committed to the Tower of London where he is yet detained And therefore prayeth that he may be tryed and judged by his Peers of the Realm of Ireland for the supposed Treasons in the Indictment To this plea of his Mr. Aske the Kings Attorney in this Court hath demurred in Law and the Prisoner hath joyned in demurrer And whether this Plea of the Prisoner as to his tryall by his Peers of the Realm of Ireland be good in Law is the sole question to be now argued This Case is of very great concernment and yet of greater expectation It concerns the whole Peerage of Ireland in some respects on the one hand and on the other the Iustice both of the King Parliament and Kingdome of England in bringing a desperate Rebell and Arch-Traytor to condigne punishment for the most horrid bloody Treason against the Kings Royal Crown and authority the Protestant Religion and the whole English Nation inhabiting Ireland devoted to destruction by this Traytor and his Confederates that ever was plotted or executed under the Sun The eyes of all our 3 Kingdomes highly concerned in and deeply suffering by this Treason but more especially the eyes and hearts of our adjoyning vigilant Parliameâ—t which hath specially recommended it to this Court and assigned my self among others Counsel in this Case are intentively fixed upon the final result and issue of it I wish my vacancy to study and abilitie to argue this publique Cause had been such as might have satisfied expectation and discharged the trust reposed in me but other publique services having much interrupted me therein I shall begin to argue it for the present with the best skill I may and so leave it to those learned Gentlemen of the Law if there shall be need of any further Arguments who are provided to argue after me to supply what is defective in this my proemiall Argument All matters of fact and form arising in this Plea have been already admitted true and sufficiently pleaded in Law by mutual consent and nothing but the meer matter in Law rests now to be debated which I conceive to be but one short single point For though the Prisoner pleads that there was a Parliament of which he was a Peer and Member continuing in Ireland by prorogation at the time of his apprehension and sending over into England Yet this Privilege of Parliament comes no wayes in question as to the point of his triall now only in issue as hath been falsly suggested to the Lords house and intimated in an Ordinance of theirs since revoked but relates only to his first apprehension which is not here in controversie ' Besides he pleads not that this Parliament is yet continuing and actually sitting in Ireland of which he ought to have * the privilege but that it was continued till the 24 of Iune 17 Car. which is 3 years since and so intended to be long since ended Nor pleads he that he ought to be or to have been tryed for this Treason in the Parliament of Ireland nor that his privilege of Parliament ought to extend to secure him from any apprehension or Indictment for high Treasou when the Treason is visible and reall as his is and not imaginary only in which Case of Treason no privilege of Parliament is to be admitted as hath been resolved 8 H. 6. rot Parl. n. 57. 31 H. 6. rot Parl. n. 25 26 27. Cooks 4. Instit. fo. 25. So as the matter of his privilege of Parliament is quite out of dores and the sole point in issue is but this Whether a Peer of Ireland committing high Treason in Ireland for which he is there apprehended and afterwards by order of Parliament here brought thence into England against his Will may be endicted and tryed for that Treason in this Court of Kings Bench by a Jury of Middlesex only not by his Peers of Ireland by virtue of the Statute of 35 Hen. 8. chap. 2. And under favour I conceive in some clearness affinmatively that he maâ— and shall be tryed here by an Ordinary Iury of Middlesex and outed of his Peerage by virtue of this Act The Question arising meerly upon the Act it self which is very short I shall first recite it and then draw my Arguments out of the very intention words and bowells of it FOrasmuch as some doubts and questions have been moved that certain kinds of Treasons done perpetrated or committed out of the Kings Majesties Realm of England and other his graces Dominions cannot ne may by the Common Laws of this Realm be enquired of heard and determined within this his said Realm of England for a plain remedy order and declaration therein to be had and made Be it enacted by Authority of this present Parliament that all manner of offences being already made or declared or hereafter to be made or declared by any the Laws and
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
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
Statutes of this Realm to be Treasons misprisions of Treasons or concealments of Treasons and done perpetrated or committed by any person or persons out of this Realm of England shall be from henceforth inquired of heard and determined before the Kings Iustices of his Bench for Pleas to be holden before himself by good and lawfull men of the same Shire where the said Bench shall sit and be kept or else before such Commissioners and in such Shire of the Realm as shall be assigned by the Kings Majesties Commission and by good and lawfull men of the same Shire in such manner and form to all intents and purposes as if such Treasons or Concealments of Treasons had been done perpetrated and committed within the same Shire where they shall be so inquired of heard and determined as is aforesaid Provided alwayes that if any the Peers of this Realm shall happen to be endicted of any such Treasons or other offences aforesaid by authority of this Act that then after such Indictment they shall have their Tryall by their Peers in such like manner as hath been heretofore accustomed From this Act I shall deduce several Arguments and conclusions to prove that the Prisoner at the Bar though a Peer of Ireland shall be tryed by an ordinary Iury of Middlesex here not by his Peers in or of Ireland for the Treasons committed in Ireland whereof he stands here indicted For my more methodical proceeding I shall divide the single point in controversie into these 3 subordinate Questions 1. Whether this Sâ—atute extends to Treasons committed in Ireland by Irish Commoners 2ly Whether it reacheth to Treasons in Ireland perpetrated by Irish Peers as well as by Irish Commons 3ly Admit it extends to Irish Peers as well as Commoners whether it doth not then inevitably out them of their Tryalls by Irish Peers and Subject both of them alike to a Tryal at this Bar by a Middlesex Iury For the first Whether this Act extends to Treasons committed in Ireland by Irish-Commoners There is but little doubt of it For first it is as clear as the Sun at Noon-day that this Act extends to all Treasons done or perpetracted in Ireland by Irish-Commoners for the main scope and intent of this Law being to make all manner of offences then made or declared or hereafter to be made or declared to be Treasons misprisions of Treasons or concealments of Treasons by any Laws or Statutes of this Realm done perpetracted or committed by any person or persons out of England inquirable or tryable within this Realm without any scruple or difficulty either in this Court or before such Commissioners in such Shire of this Realm as the King by his Commission shall assign the very sum and substance of this Act as the express letter thereof resolves the Realm of Ireland being out of this Realm of England and no part thereof and Treasons therein committed by Commoner being Treasons done and perpetrated out of this Realm of England as is clear by 20 H. 6. f. 8. a. b. â—9 H. 6. 53. b. 32 H. 6. 25. b. 2 R. 3. f. 12. 1 H. 7. f. 3. Plowden 368. b. Dyer f. 360. b. Cook 7. Report f. 22 23. Calvins case â—H 5. c. 8. 4 H. 5. c. 8. 4 H. 5. c. 6 Cooks 3 instit. p. 1â— 18. These treasons must certainly and most necessarily be both within the intent and words of this Law and so consequently tryable in this Court by an ordinary Jury of Middlesex without any scruple or difficulty The rather because Ireland though out of this Realm of England is vet part of the Kings dominions and a subordinate Kingdom united and annexed to the Crown of England governed by the Laws of England and bound by Acts of Parliament made in England in many Cases as is resolved and undeniably evidenced by Pat. 6. Iohan. in 6. n. 17. Rot. Pat. 8 Johan m. 1. Claus. 12. H. 3. m. 8 Pat. 30 H. 3. m. 3. 14 H. 3. The Statute of Ireland Pat. 5 E. 3. pars 1. m. 25. 11 E. 3. c. 2 3 4 5. 27 E. 3. c. 3 18. 13 E. 1. Stat. de Mâ—rcat 1 H. 5. c. 8. 4 H. 5. c. 6. 1 H. 6. c. 3. 3 H. 7. c. 8. 1 H. 8. c. 5. â—32 H. 8. c. 4. 35 H. 8. c. 2. 32 H. 6. Statutes of Ireland c. 1. 8 E. 4. in Ireland c. 1. 10 H. 7. in Ireland c. 4 5. 22. 7 H. 8. in Ireland c. 1. 28 H. 8. in Ireland c. 2 3 5 6 7 8 13 15. 18 19. 33 H. 8. in Ireland c. 1. 1 H. 7. f. 3. Kelway f. 202. b. Cooks 7 Rep. of 22 23. Calvins case 1 Inâ—tit f. 141. b. 4 Instit. f. 349 350 c. 3 Instit. p. 18 Mr. Saint Johns Argument at Law at Straffords attainder p. 53. to 64. And therefore Treasons there committed are more apt and proper to be tryed here within the letter and intention of this Law then Treasons done in France Spain or any parts else out of the Kings dominions where our Laws and Acts of Parliament are not obligatory 2. This Statute as I conceive was principally made to punish Treasons misprisions of Treasons and concealments of Treasons in Ireland where they were more frequently done and perpetrated than in any or all parts of the world out of this Realm of England as our Histories and the * Irish-Statutes record And the â—orid general Treason Insurrection and Rebellion in Ireland much like this for which the Prisonner is indicted mentioned in the Statute of Ireland 28 H. 8. c. 1. but 7 years before this Act with other frequent Treasons and Rebellions there were no doubt the chiefest ground of making this new Law And that which puts it out of all dispute is the Statute of 28 H. 8. made in the Parliament at Dublin in Ireland c. 7. which reciting the Statute of 26 H. 8. c. 13. made in England concerning Treasons and enacting as this of 35 H. 8. That if any of the Kings Subjects Denizens or others do commit or practise out of the limits of this Realm of England in any outward parts any such offences which by this Act are made or heretofore have been made Treason that then such Treason whatsoever it be that shall so happen to be done or commitshall be inquired and presentâ—d by the oaths of 12 good lawfull men upon good and probable evidence and witness in such Shire and County of this Realm before such persons â—â— it shall please the Kings Highness to appoint by commission under his great Seal in like manner and form as Treasons committed within this Realm have been used to be inquired of and presented that then upon every indictment and presentment founden and made of any such Treasons and certified into the KINGS BENCH like process and other circumstance shall be there had and sued against such offendors as if the same Treasons so presented had been lawfully found to be done and committed
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 queâ—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 oâ— persons â—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
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