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.

THE ARGVMENT OF WILLIAM PRYNNE of Lincolns-Inne, Esq Hill. 20 Car. Banc. Regis. IN THE Case of the Lord Cannor Magwire Baron of Ines∣kellin in Ireland (the chief contriver of the late Irish Rebellion and Massacre of the Pro∣testant English) against whom he was assigned Councell by both houses of Par∣liament.

COnnor Magwire, by the name of Connor* 1.1 Magwire of London Esquire, was in Mi∣chaelmas Tearm last, Indicted in this Court for several high Treasons commit∣ted by himself, together with Hugh Mac-Mahon and divers other Conspiratours and false Traytors against our Lord the King within the Realm of Ireland in partibus transmarinis, on the 23 day

of October 17 Caroli, Upon his Arraignment at this Bar, after not guilty pleaded, being demanded, how he would be tryed? he put in this special Plea, as to the particular manner of his Tryall only, under his Councels hand.

That by the Statute of Mag. Charta, it is enacted, That no freeman ought to be imprisoned &c. Nor will we passe upon him, but by the lawful Iudgement of his Peers, or by the Law of the Land. That after this in a Parliament held at Droghedah in the Kingdome of Ireland in the 10th. year of King Henry 7th. it was enacted: That all Statutes late made within the Realm of England concerning or belonging to the Common an a Publique weal of the same, from thenceforth should be deemed good, and effectual in Law: and 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 afore∣said they and every of them be authorized, approved, and con∣firmed in the said Land of Ireland: That before the time of the supposed Treasons, King Charles by his Letters Patents under the great Seal of Ireland, bearing date the last day of August, in the 4th. year of his Raign at Dublin in Ireland, did create Brian Magwire, Father of the said Connor Magwire, Baron of Iniskellin in the County of Farmanagh in the said Realm; and granted to him and the Hei•• ••males of his hody, 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 un∣till 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 pre∣sent 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 suppo∣sed 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 o∣ther, the Iustice both of the King, Parliament and King∣dome of England, in bringing a desperate Rebell and Arch-Traytor to condigne punishment, for the most hor∣rid, bloody Treason against the Kings Royal Crown and au∣thority, 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 King∣domes highly concerned in and deeply suffering by this Treason) but more especially the eyes and hearts of our adjoyning vigilant Parliame••t (which hath specially re∣commended 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 ha∣ving 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 pro∣emiall Argument.

All matters of fact and form arising in this Plea, have* 1.2 been already admitted true, and sufficiently pleaded in Law by mutual consent, and nothing but the meer mat∣ter 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 Parlia∣ment, of which he was a Peer and Member, continuing in Ireland by prorogation at the time of his apprehension and send∣ing 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 revo∣ked,) 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 Ire∣land, of which he ought to have * 1.3 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* 1.4 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 affin∣matively, that he ma•• and shall be tryed here by an Ordinary Iury of Middlesex, and outed of his Peerage, by virtue of this Act.

The Question arising meerly upon the Act it self, which is very short, I shall first recite it, and then draw my Arguments, out of the very intention, words and bowells of it.

FOrasmuch as some doubts, and questions have been* 2.1 moved, that certain kinds of Treasons done, perpe∣trated 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 de∣claration 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 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 Commissio∣ners, and in such Shire of the Realm, as shall be as∣signed 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 Trea∣sons, 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 Trea∣sons 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 S••atute extends to Treasons committed in Ireland, by Irish Commoners?

2ly. Whether it reacheth to Treasons in Ireland perpetra∣ted by Irish Peers, as well as by Irish Commons?

3ly. Admit it extends to Irish Peers as well as Commo∣ners, 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 com∣mitted* 2.2 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 perpe∣tracted 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 conceal∣ments 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 Com∣moner, being Treasons done and perpetrated out of this Realm of England; (as is clear by 20 H. 6. f. 8. a. b. ••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, •• H. 5. c. 8. 4 H. 5. c. 8. 4 H. 5. c. 6, Cooks 3 instit. p. 1••. 18.) These treasons must certain∣ly 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 do∣minions, and a subordinate Kingdom, united and annexed to the Crown of England, governed by the Laws of Eng∣land, 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 M••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. ••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. Kel∣way, f. 202. b. Cooks 7 Rep. of 22, 23. Calvins case. 1 In••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 con∣cealments 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 Histo∣ries and the * 2.3 Irish-Statutes record: And the ••orid gene∣ral Treason, Insurrection and Rebellion in Ireland (much like this for which the Prisonner is indicted) mentio∣ned in the Statute of Ireland, 28 H. 8. c. 1. but 7 years be∣fore this Act, with other frequent Treasons and Rebelli∣ons 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, what∣soever it be, that shall so happen to be done or commit∣shall be inquired and present••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 •••• 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 foun∣den and made of any such Treasons, and certified into the KINGS BENCH, like process and other circum∣stance shall be there had and sued against such offen∣dors, as if the same Treasons so presented had been law∣fully found to be done and committed within the li∣mits of this Realm, &c.

Addes this memorable clause thereto, Considering then this Statute made in the Realm of England, is most beneficial and expedient to have due execution within the Kings Land and Dominion

of IRELAND, especially in respect of the high re∣bellion here lately committed, that the odible infamy a∣gainst the King and Queen in the same Act expressed, and other offences, abuses, and abominations there mentioned, prin∣cipally have been promulged, pronounced, done and attempted within this said Land, Be it therefore established, ordained and enacted by authority of this present Parliament, that the aforesaid Statute and Ordinance, and e∣very thing and things therein con••ained, be established, confir∣med, acce••ted, deemed, iudged and taken for a good and right Law within the Kings Land and Dominion of IRELAND, and to be as good, effectual, and of the same strength and quality, effect, force and vertue to all intents and purposes within the said Land, as the same is or ought to be in the Realm of ENGLAND; and that the said Statute and Act made in ENGLAND, and every thing therein contained, shall have relation, and take effect within this Land of IRELAND a∣gainst all offendors contrary to the form thereof, &c. Now that Act of 26 H. 8. c. 13. with this of 35 H. 8. c. 2. being principally made and intended for the Trea∣sons done and committed in Ireland, as this Irish-Parlia∣ment resolves in terminis, and being most beneficial and expedient for that Realm; it wou'd be very illegal, yea ir∣rational, absurd, impolitick, and improvident to exclude Ireland out of this Law, where Treasons were most fre∣quent, most dangerous to out Kings and Realm, and to extend it only to other places out of the Realm, where Treasons were seldome done or perpetrated, and no∣thing so perilous to the King and Realm of England, as Treason••, Rebellions in Ireland have usually been in for∣mer and later ages.

3ly. It hath been adjudged by all the Judges of Eng∣land both in * 2.4 Orourks case, 33 Eliz. and in Sir John Parrets case 24 El. cited in Calvins case, Cooks 7 Report. f. 23 a. in his 1 Institutes on Littleton, f. 26. b. 3 Institut. p. 11, 24. and so was it agreed without any argument in Hugh Mac•• Mahones case this last Michaelmas Term

(the P••l••o••e•••• Confederate in this horrid Treason) that Treason committed in Ireland it self by an Irish Com¦moner, is tryable in this Court by this very Statute, contrary to the sub••tane extrajudicial opinion of Dyer, M. 19, & 20 Ell••. fol. 360.) resolved since to be no Law; Seing then it hath been thus frequently resolved here∣tofore, and in case of the Treasons now in question this very last Term without any scruple; That an Irish-Commoner committing Treason in Ireland, and brought over from thence hither against his will, is tryable in this Court by a Middlesex Jury; there is no doubt at all of the first question, but that this Statute extends to Treasons com∣mitted in Ireland by Irish Commoners, and the doubt (if there be any) will rest meerly in the second point, which I am already arrived at. Namely,

Whether this Act extends to Treasons perpetrated in Ire∣land* 2.5 by Irish-Peers, as well as by Irish Commoners? And under correction, I conceive with much clearness that it doth for the s••••••suing reasons.

1. From the generallity and universality of the Act it self, wherein I shall observe a four-fold universality, which supplies me with four undenyable arguments, to prove Irish Peers, within this Law, as well as Irish Commoners.

The first, is a universality of the Kinds of offences specifi∣ed in the Act, in these general Terms; All manner of offences being already mad: or declared, or here after to be made or declared by any the Laws or Statutes of this Realm, to be Treasons, misprisiion of Treasons, or concealment of Treasons, done or perpetrated out of this Realm of England, shall be enquired of by the Kings Iustices of his Bench &c. Now these general words All manner of offences, &c. must necessarily extend to all manner of Treasons perpe∣trated or committed out of this Realm by Peers as well ar Commoners; To the Treasons of the Lord Magwire, as well as to the Treasons of Mac Mahone Esq, they being the selfsame Treasons in substance, and a manner of Treasons specially made and declared by the Laws of this

Realm, since there are no restrictive words to confine these general clauses of Treasons only to Commoners, and no expresse exception for the offences or Treasons of Irish Peers to be found within the Statute; else there would be a repugnance and contradiction between the text and the Glo••••e, and this general should be turned into a specifi∣cal in respect of the Traitors offending. Therefore this general clause extending to all Treasons whatsoever done or perpetrated out of the Realm, must necessarily extend to the Treasons of all Irish Peers as well as Commons, and so both of them by the words and intention of this Law shall be triable in this Court.

The second is, a universality of time. All manner of offences already made or declared, or hereafter to be made or declared Treason &c. done perpetrated or committed, or here∣after to be done, perpetrated or committed, shall be en∣quired of by the Kings Iustices of the Bench, &c. which ex∣tends to all former Treasons done out of the Realm at a∣ny time before the making, and to all future Treasons since the passing of this Act: Now this universality of time extends as well to the Treasons of Irish Peers as Commoners, to the Treasons of Baron Magwire as well as of Mr. Mac-Mahone, both being alike Treasons commit∣ted after this Act.

The 3d. is. a * 2.6 universality of place, All manner of Trea∣sons done, perpetrated or committed out of this Realm of England: that is, in any place whatsoever out of the Realm of England, be it in Ireland, Scotland, France, Spain, Ger∣mane, Italie, Barbary, Turkie, the East or West Indies, as was resolved in Dr. Stories case, Hil. 13 Eliz. Dier 298 b. •• & 3. Phil. & Mar. Dier 131, 132. Now this extends ge∣nerally to all forein Treasons committed by Peers as well as Commons, and so to the Treason of the Prisoner at the Bar, it being done in Ireland, out of this Realm of England, and so fully within the Act.

The 4th. (which is fatal and unanswerable) is a univer∣sality of Persons, coupled together with all the 3 former generalities in these expresse words. All manner of of∣fences

made Treason &c. done, perpetrated or committed By any Person or Persons out of this Realm of England; shall be from henceforth inquired of, heard and determ••••e•• be∣fore the Kings Iustices of his Bench, &c. Now any Per∣son or Persons, being a universal expression, equivalent to all manner of Persons whatsoever, Collectively: or, to all and euery Person whatsoever, distributively, extends to Irish Peers as well as Commoners, yea to all Subjects of all Ranks whatsoever, within the compasse of this Law in regard of the manner of 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 excep∣tion 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, * 2.7 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, sub∣jects whatsoever, and except none, especially the great∣est, 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 Commo∣ners, 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 Trea∣sons, 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 per∣son or persons shall deprave or revile the most blessed Sacra∣ments, or the book of the Common prayer, &c. In the Statute of 1 Eliz. cap. 1. and also of 5 Eliz. cap. 1. If a∣ny 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 Sta∣tute 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 Je∣suites, Priests &c. In all these Acts (to pretermit * 2.8 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 with∣out dispute in all times, and so agreed by Sir Edward Cook, Institutes 3. p. 4, 5. That this word a man, ex∣tends 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 Sub∣jects: 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, be∣ing 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 de∣grees 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 with∣in 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 a∣way by this Act in case of Treason) as the Peers in Ire∣land have in their Peerage to be tryed there by their I∣rish-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 re∣spect of persons, and coyn a distinction not warranted by this Act) must be also tryed in the self-same man∣ner. 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, Ita∣ly, or Germany, he shall be tryed in this Court by an or∣dinary

Jury if Free-holders, and not by his Peers in Ireland, by vertue of this Act. Nay, if he commit Trea∣son in Ireland, and flye into England; he may and shall be tryed for that very Treason by an ordinary Jury at this Bar, * 2.9 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 Eng∣lish 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 commit∣ting Treason, shall be within it likewise, & so tryable here as well as 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 ex∣empts 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 Sta∣tutes 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 * 2.10 before special Commissioners in some other Counties; but to be still tryable within this Realm, as the words (All man∣ner of Treasons hereafter to be done, perpetrated, or commit∣ted 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: There∣fore 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 Trea∣sons formerly made, or hereafter to be made and de∣clared 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 tran∣scendent crimes of High Treasons, of misprision, or con∣cealments of Treasons, not for Felonies, or petit Trea∣sons: 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 Jud∣ges in former times have always interpreted it, as ap∣pears 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. re∣pealing all former Treasons, but those within 25 E. 3. and of 1 & 2 Phil. and Mar. c. 10. enacting, That all Try∣als hereafter to be had for any Treason, shall be had and u∣sed only according to the due course of the Common-law of this Realm, and not otherwise: exend not to the taking way of fo∣rem 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 en∣quired 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 con∣viction 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 e∣quity 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 al∣ready manifested: And it would be a most pernicious gloss which should either elude or nullifie this benefi∣cial 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 * 2.11 Law-books, That Acts of Parliaments made in England, wherein Ireland is either specially named or gene∣rally 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, ex∣tends 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 Peer••

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 * 2.12 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 gene∣ral Rebellions and Insurrections against the English (as I could instance in sundry particulars) in which Rebelli∣ons 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 * 2.13 express Statute made in the Parliament at Dublin in Ire∣land, anno 28 H. 8. c. 1. (but 7 years before this Law;) That Gerald Fitz Gerald Earl of Kyldare, the Earl of Des∣mond, with divers other of the Irish Peers and Gentry con∣spiring 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 English possessions; and thereupon with Banners displayed and great forces traytorously invaded the Kings dominions there, besieged the City and Castle of Dublin, murdered the Kings good Subjects, who withstood them, and resisted the Kings forces sent from hence, &c. for which they were all by this Act attainted of High Treafon. The like general Rebellions have there broke forth sundry times both be∣fore and since that Act; but none so generally, dangerously, bloodily, as this for which the Prisoner at the Bar stands endicted. The Treasons therefore in Ireland being com∣monly so frequent, so general, (wherein most of the na∣tive Irish-Peers, and some of the English extraction too) were usually chief Actors; there was very great reason,

policie and justice too, why such a Law as this should be made, to reach to Ireland, and why in such cases as these, (Rebellions there being so universal, and most of the I∣rish Nobility, Conspiratours, and parties in them) that these Peers and the chiefest Conspiratours when sur∣prized, should be presently sent over from thence into England and tryed there for their Treasons.

1. To secure their persons from escapes and rescues, which might be there more easily procured, especially when and where the Irish Rebells are Masters of the Field, as the Statute of 17 H. 7. in Ireland. c. 14. resolves.

2ly. To avoid a * 2.14 fayler of Justice there, when by reason of the many Irish Peers there out in actual Rebel∣lion, or by means of alliance of most other Peers to them, or of the flight of other thence, or the employ∣ment of them in service, or places of trust, or by rea∣son of the interposition of the Rebels forces between them and the place of their Tryal chere, a competent number of indifferent Irish Peers for a speedy Tryal cannot be assembled with safety or conveniency in Ire∣land to try a Rebellious Traytor by his Peers there; which obvious defects are all supplyed by this Act.

3ly. To prevent all partiality and injustice in such Cases, which might happen in Tryals by Peers in Ireland either by consanguinity or alliance of the Peer to be tryed, to the Irish Peers who are to try him, or by confederacy of the Tryers in the same Treason with the party tryed; or through fear of mischief or revenge upon the Tryers, Jury, Witnesses, Judges, by the tryed Re∣bels Friends, Kindred and Confederates, in case he should be condemned by them and executed (none being so vindictive and bloody in this kind as the Irish) Upon all which weighty reasons, there was special cause, why both in justice, policy, and prudence, all Irish Peers, who by publick Rebellion commit High Treason in Ire∣land, should be sent over and tryed here by ordinarie Ju∣ries, to prevent the forenamed mischiefs and fayler of Justice, and bring them to condign punishment. Now

in this case here in judgement at the Bar, all these recited reasons hold. For first, most of the Irish Peers were in actual Rebellion when the Prisoner was sent over: most of the English and Protestant Irish Peets there, ei∣murthered or forced to flye thence, or so dispersed and imployed, that they could not assemble a competent number of indifferent Peers to any place with conve∣niency to try him in Ireland. 2ly. The enemies and Irish Rebels were then Masters of the field in most places, the Prisoner in danger to be rescued by force from them, or by treachery likely for to escape out of their hands; and the times so troublesome, as would admit no lea∣sure for such a Tryal. 3ly. Most of the Irish were-allyed to Magwire, or ingaged with him in the self-same Trea∣son and Rebellion; and so neither in Law, Justice, or Prudence fit or indifferent persons to pass upon his Tryal in this Case of most publick concernment. 4ly. The Judges, Witnesses and Peers that should try him there, would have been in extreme perill of their lives, and of exemplary publick revenges from their Confederate-Rebels, who threatned revenge, as appears by Mac-Mahons Speech (Magwires Confederate) to the Justices upon his ••irst examination: I am now (said he) in your hands, and you may do with me what you please: But I am sure within few daies I shall be revenged: and by like words of revenge used by Owen Oneile in Flanders so soon as he heard Magwire was apprehended. 5ly. If he should now be sent back from hence into Ireland to be tryed, the Rebels and his party are there so predominant, that scarce any Witnesses, nor Peers, nor Judges either would or durst there to appear openlie against him; or else such means would be made to delay or delude his Tryal and Execution, that by some device or other, there would questionless be a fayler of Justice against him. There∣fore for all these weighty reasons, he may and ought by all rules of Policy, Equity, and Justice to be arraign∣ed and tryed only at this Bar by vertue of this Act, which so clearly extends unto him; That so the blood

of * 2.15 above one hundred and fifty thousand innocent Protestants shed in Ireland in less than four months space by means of this Rebellion, which cryes loud to Heaven and Earth for revenge against this great Contriver and Arch-promo of it, may not go un-revenged in a way of publick Ju∣stice to our eternal infamie. I have quite done with the second and main Question, and proved an Irish Peer to be within the Statute, as well as an Irish Com∣moner.

I shall now proceed to the last point, arising from the* 2.16 manner of this Plea, that he may be tryed by his Peers, not expressing, where or how, and intimating that he would be so tryed here in England. It is briefly this. Admitting an Irish Peer to be tryable in England for a Treason committed by him in Ireland, whether this doth not inevitably out him of his Tryal by Irish Peers, and subj••ct him him to a Tryal at this Bar by an ordinary Jury, as well as an Irish Commoner? And I conceive without any scruple, affirmatively; that it doth, for these undenyable Rea∣sons.

1. Because Irish Peers, are Peers only in Ireland, not in England, and cease to be such in judgement of Law so soon as ever they arive in England, both perso∣nally in themselves and relatively to others, being here in judgement but mere Esquires, not Lords, and are to be sued as such, not as Lords or Peers, even as Peers of Sco∣land, France, or Spain are, as is resolved and adjudged 11 E. 3. Fitzh. Brief 473. 8 R. 2. Process, Fitzh. 224. 20 E. 4. 6. Brook, Nosme de dignity, 49 M. 19 & 20 Eliz. Dyer 360. b. Cooks 7 Rep. f. 15, 16. Calvins case, Co. 9 Rep. f. 117. the Lord Sanchers Case in point, and Cooks 3 Instit. p. 30. The Prisoner then being no Peer in England, it is impossible that he should be tryed in Eng∣land by his Peers.

2ly. Because no such way of Tryal was ever yet heard of in any age, of any Irish or other forein Peer, tryed here in England, either by English Peers, or by his Irish or forein Peers; Therfore such a Trial shall not nor can be had or admitted now,

3ly. Because neither the Kings Bench, nor the Com∣missioners before whom the Statute limits these forein Treasons to be tryed, nor yet the High Steward of Eng∣land, (if any such should be created) have any power or jurisdiction to summon a Jury of Peers out of Ireland to appear before them here in England upon such a Tryal as this; neither are the Peers of Ireland bound by any Law to appear or attend as Peers on any such service or tryal here, being Peers, & bound to service as Peers (which their Patents express) only in Ireland, and no Peers here. There∣fore a Tryal by his Irish Peers here in England is an im∣possibility, as well as illegality.

4ly. Admit a Jury of Peers might be summoned and sent from thence, yet it would be a great delay of Ju∣stice, it requiring a long time to procure a full appea∣rance of Peers thence: yea, a betraying of Ireland to the Rebels at this instant, to send for so many Protestant in∣different Peers now from thence as might serve to try him here. Moreover, it would be an infinite expence, charge, trouble, besides the danger by Sea, to summon a Jury of Peers from thence; and if they failed to appear in England upon summons, as is probable they would, and lawfully might they being not bound to it by any Law and so no fine certain to be set upon them for not appearing, nor legal means of coercion to compell them to come over upon such a Tryal, there should be a fayler of Justice for want of such a Peerage; And therefore no such Tryal may or can be expected, which would delude and nul this Law.

5ly. This Statute directs the Tryal of forein Treasons in express terms, to be before the Judges in the Kings Bench, or the Commissioners appointed by the King in any County of this Realm. Now no Tryal by English or Irish Peers was ever heatd of either in the Kings Bench, or before such Commissioners, But it alwaies hath been, and ought to be either in the house of Peers in Parliament; or before the Lord High Steward of England, as all former Pre∣sidents accord, and 15, E. 3. c. 2. 1 H. 4. 1. 10 E. 4. 6.

b. 13 H▪ 8. 12. Brook Treason, 29, 33. Cooks 3 Institutes, c. 1. &. 2. p. 28, 29, 30. 4 E. 3. rot. Parl. n. 1. 50 E. 3. rot. Parl. n. 21 to 31. 34. 7 R. 2. n. 15. to 24. 10 R. 2. n. 6. to 18. 11, n. 2. n. 6, 7. 14 R. 2. n. 14. 21 R. 2. n. 12 to 17. & Placita Coronae coram dom. Rege in Parl. n. 1. to 20. 1 H. 4. Plac. Coronae in Parl. n. 1. to 11. Walsingham Hist. Ang. p. 402. 2 H. 4. n. 30. 31. 5 H. 4. rot. Parl. n. 12. resolve. Therefore no Tryal can be in this case by Peers either in this Court, or before Com∣missioners, by vertue of this Act or any other Law.

6ly. This Statute is introductive of a new way of trying forein Treasons, done out of this Realm by a Jury with∣in England, which by the rules of the Common law could neither inquire nor take notice of any Treasons or mat∣ters committed, perpetrated, or acted beyond the Seas, as is evident by the Prologue of this Act, the Statutes of 26 H. 8. c. 13. 5 E. 6. c. 11. M. 2 & 3 E. 1. Coram Rege Rot. 56. Hereford. M. 2 E. 2. Fitzh. Obligation 15. & Utlagary 18. Tr. 8 E. 2. Fitzh. Testament 6. 6 E. 3. f. 17. 18. 27 Ass. 43. 41 E. 3. 19. 48 E. 3. 2, 3. 20 H. 6. 28, 44. 15 E. 4. 14, 15. 20 E. 4. Perkins, sect. 121. 494. 737. Cook 4 Instit. c. 17. 1 Instit. ••. 74. Stamford l. 2. c. 14. Cook 2 Rep. 49 a. Long & Pecocks case, 5 Rep. f. 107. a. 3 Instit. f. 48, 49. Whereupon it altering the Common law in this particular, it outs all former doubts, & most punctually prescribes all the particulars and appur∣tenances belonging to the Tryal of them, from which there neither may nor can be any variation by Law.

First, it appoints the place where they shall be tryed.

1. In general, within this Realm of England.

2ly. In particular, either in the Kings Bench wherever it sits, on in such County as the King by his Commissions shall assign. 2ly. The Judges before whom the Tryal shall be are thus particularly described, The Justices of the Kings Bench, o•• such Commissioners as the King shall appoint under the great Seal.

3ly. The Jury-men by whom they shall be t••yed are thus defined in Terminis in the Act, By good and lawfull men (not Peers or Commons of Ireland) of the same

Shire where the said Bench of the King shall sit, if the Tryal shall be in the Kings Bench; And if before Commissioners assigned by the King in any shire of the Realm, then by the good and lawfull men of the same shire where the Commissio∣ners sit, which is doubled (••ike Pharohs dreams) to make it more certain: and likewise precisely enacted by the Statutes of 26 H. 8. c. 13. & 5, & 6 E. 6. c. 11. in pur∣suance of this Act.

4ly. The manner how the Tryal, shall be is thus punctual∣ly specified. In such manner and form to all intents and purposes as if such Treasons, &c. had been done, perpetra∣ted and committed within the same * 2.17 shire where they shall be so inquired, heard and determined, as is aforesaid; which last words (with the very like in the Sratutes of 26 H. 8. c. 13. & 5 E. 6. c. 11. extending to our case) put an end to the point in Question; For if the Lord Magwire now at the Bar had committed the Treasons for which he is now endicted in Westminster, there is no doubt nor scruple of it, but he should have been tryed by a Jury of Middlesex notwithstanding his Peerage in Ireland; and he could neither have pleaded nor demanded his Peer∣age, as is resolved expresliè in Calvins case, C. 7 Rep. f. 15, 16. and in the Lord Sanchiars Case. Cooks 9 Rep. f. 117. who was tryed condemned by an ordinary Jury, for sub∣orning Carliel to murther Turner with a pi••toll in England, though a Peer of Scotland, because he was here no Peer; and the forecited Books are express, that the same Law holds in case of a Peer of Ireland. Since then this Law ex∣preslie enacts, That the Tryal of all forein Treasons shall be by good and lawfull men of the same Shire where the Kings Bench shall sit in such manner and form, To all intents and purposes, as if the same Treasons had been com∣mitt•••• here in Middlesex where the Kings Bench sits. There neither may nor can be any other form of tryal for the Pri∣soner, nor in any other place, nor before any other Jud∣ges, nor by any other Jury, but such as this Statute hath punc•…•…e defi••ed; and than is by a Jurie of Middle∣sex, To all intents and purposes as if the Treasons

for which the Prisoner stands indicted had been plotted and executed in Middlesex. Therefore to admit him to a Tryal by Irish Peers, and not by good and lawfull men of Middlesex; or to send the Prisoner back to Ireland there to be tryed by his Peers, is to run quite counter and pointblanck against this unanswerable clause of the Statute, That he shall be tryed by good and lawfull men of the same Shire where the Kings Bench sits, to all intents and purposes as if the Treasons had been there committed. And had they been there committed actuallie, as they are le∣gallie by the express purview of this Law, it could never so much as be scrupled and made a quere; whether he should be tryed by his Irish Peers here? or sent over to be tryed in Ireland for Treasons acted there, after an Endict∣ment for them here found against him? In one word, Statutes which prescribe new forms of Trial in such a particular way as this Act doth, are like Letters of At∣torny, or Licenses of Alienation, * 2.18 they must be most strictly pursued, and not varied from in the least punctilio; as was resolved by all the Judges of England, Hill. 21 Jac. in the case of Penal laws, Co. 7 Rep. f. 36, 37. Therefore no other form of Trial ought to be admitted in this Case than what the Statute prescribes, and that is onlie by good and lawfull men of Middlesex, not by Irish Peers.

7ly. The Proviso in this Act puts a period to this Case.

Provided always, that if any the Peers of this Realm shall happen to be endicted of any such Treasons or other offences a∣foresaid, by authority of this Act, that then after such En∣dictment, they shall have their Tryal by their Peers, in such like manner as hath been heretofore accustomed.

From whence I shall observe these five particulars.

First, that Treasons committed by English Peers in fo∣rein parts, are tryable here in England, within the verie bodie and purview of this Law. Therefore by the self∣same reason, law, and justice, Treasons committed out of this Realm in Ireland even by Irish Peers, are triable in England by this Act, else Irish Peers should be quite

out of this Act, and in better condition than English or any Irish Commoners, who are clearly adjudged with∣in it.

2ly. That Tryal by Peers, is saved by this Proviso on∣lie to the Peers of this Realm, which both in the Prologue and body of this Act is expresly stiled this Realm of Eng∣land. But the Peers of Ireland are no * 2.19 Peers at all of this Realm of England, as is resolved in 11 Ed. 3. Brief 473. 20 E. 4. 4. Co. 7 Rep. f. 15, 16. & 9 Rep. Lord Sanchars case, f. 117. Co. 3 Instit. p. 30. and Dyer f. 360. b. There∣fore no waies within the compass, words, or reason of this Proviso, but clearly secluded out of it, and so not tryable by their Peers. And this Statute prescribing a new way of trial for forein Treasons, not triable here by Peers before, had excluded all English Peers from trial by their Peers, by the bodie of the Law, as some conceive, had it not been saved to them by this special Proviso: Therefore certainlie Irish Peers who are not provided for at all, and no Peers in England, must necessarilie be excluded from their Peerage by it upon their trial here.

3ly. The reason why this Law doth save the tryal by Peers to Peers of this Realm onlie and to no others (which as some conceived was not saved to them in cases of fo∣rein Treasons by the Statute of 26 H. 8. c. 13. as appears by the Lord Grayes case hereafter cited makes an end of the Case in Question, because Peers of the Realm of England are Peers in everie shire and Countie of England. Therefore by the great Charter of England, and all other Acts confirming it, and the Common law it self, they ought to be tried onlie by their Peers within all Counties and places of the Realm of England: But-Irish, Scotish, and fo∣rein Peers are no Peers in any Countie of England, as the forecited Books ••esolve. Now this Statute enacting, all forein Treasons to be triable not in Ireland or any o∣ther his Majesties Dominions, but in England only; it was necessarie and convenient by this special Proviso to save the Trial by Peers to all English Peers to be tryed for forein treasons only in England, according to * 2.20 Magna

Charta and the Common law, being their birthright, be∣cause they are actual Peers in all places of England, and may have English Peers enough at hand to trie them with∣out delay upon all occasions. But Irish and other Peers being no Peers at all in England, and it being a thing improper to trie them by English Peers being no real Peers to them, and a thing impossible to try them here by Irish or any other forein Peers, for the reasons former∣lie alleged, and this Statute confining the trials within it only to England; it had been a direct contradiction and absurditie to provide, that these forein Peers should be tried here by their forein Peers for Treasons, and not by an ordinarie Jury, because they are neither Peers themselves in England, nor others who should come hi∣ther from Ireland or other forein parts, who lose their forein Peerage, as soon as they set foot on English ground, with relation unto England, where their Peerage pre∣sentlie ceaseth.

4ly, The Statute is, That the trial for such Treasons, &c. shall be in such manner and form to all in••ents and purposes as if they had been committed in England. Now if English Peers commit Treason in England, they shall by the Sta∣tute of Magua Charta, cap. 29, (yea by King Johns Charter, and by the Common law long before, as Sir Ed∣mund Cook proves in his Commentary upon it; and I have at large demonstrated in my * 2.21 Plea for the Lords and House of Peers) be tried onlie by their Peers, and not by any ordinarie Jurie, by English but not Irish Peers, as I have formerlie proved. Therefore the ground of saving trial by Peers, to Peers of England by this Act is, an unanswerable argument to denie such a trial here to any Peers of Ireland by Irish or English Peers.

5ly. The last words of this Proviso determine the case in question without more dispute; Provided al∣waies, that if any Peers of this Realm happen to be indicted of any such Treasons aforesaid by authority of this Act they shall have such trial by their Peers, in such like manner as hath bean heretofore accustomed. It being alwaies the

Custome of England * 2.22 since Magna Charta, and long be∣fore, in cases of Treason at the Kings sute, to trie all Eng∣lish Peers in England only by their Peers, and such a privi∣lege as * 2.23 Sir Edward Cook holds, they cannot waive if they would, as it was adjudged in the Lord Dacres case, Pas. 28 H. 8. and since in the Earl of Castlehavens ease 7 Car. But on the other side it is most certain, that it hath never 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 imagi∣ned 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, Antiqui∣ties, 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 of∣fence, by his Peers, before this Statute of 35 H. 8. and I believe the Prisoners Councel cannot (as indeed they nei∣ther did nor could) produce one example of such a trial there, by Peers, before this Law, nor anie Act of Parlia∣ment in that Realm before this Statute concerning Trea∣son, 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 e∣verie of these Acts leaving both the Irish Peers and Com∣moners 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, e∣ven 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 attain∣ted by Act of Parliament, as is evident by the Irish Sta∣tutes 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 Re∣bellion (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 at∣tainted 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 Pre∣munire or Treason by this Act, that then the same Peer or Peers so being indicted, shall be put to answer for e∣verie 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 con∣fession of the same offence or offences, as in other Ca∣ses of Treason and Premunire hath been used, or is u∣sed 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 Premu∣nires

specified in these Acts, in imitation of the * 2.24 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 Sta∣tute 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 Parliament in the same Land, and brought with them Irish Servants to the Parlia∣ments and Counsels there holden, whereby the privities of the Englishmen within the same Land have been and be daily dis∣coverd within it to the Irish people Rebels to the King, to the great perill and mischief of the Kings lawfull liege people in the same Land. And the Statute of 10 H. 7. in Ireland c. 16. enacts, That the Spiritual and temporal Lords of the Land of Ireland, shall appear in every Parliament holden in that Land in their Parliament Robes, in like manner and form as the Lords of the Realm of England appear in the Par∣liaments holden within the said Realm, under pain of for∣feiting 100 s. to the King: which use of Robes they had there for penury omitted by the space of 20 or 24 years. But there is no mention of any Tryal by their Peers in these or any other English or Irish Statutes; but those forecited of 2 Eliz. c. 1. & 6. Yea the Statute of 25 H. 6. in Ireland c. 28 enacts, For that there is a Law e∣stablished, that every Lord that is called a Lord of the Parliament in all pleas personal as well as real, in which amerciaments do lye, shall be amerced 100 s. to the great im∣poverishment of the said Lords, for as much as their livings are diminished and wasted by war; That no Lord of Par∣liament shall be amerced from thence forward in the said pleas otherwise than other persons, notwithstanding any Law made before to the contrary. The amerciaments there∣fore

of Irish Lords and Commons being alike by this Law, it is very probable their tryals by Jurie were both alike, and that they were not tryed by their Peers.

Now the Prisoners councel have pleaded in his plea, that Magna Charta gives the tryal by Peers in Ireland; and no other Law but it: and that it was not ac∣cepted, received, confirmed, and used as a Law in Ireland till the Statute of 10 H. 7. and the words there∣of (if it be confirmed by that Act) are most clear in it, That all Statutes late made, &c. from henceforth be deem∣ed, accepted, usea, and executed within this Realm of Ireland in all points; And if it were made a Law there by the Statute 8 E. 4. c. 1. (which I rather believe) the words of that Act are, That from henceforth all other Statutes and Acts made by authority of Parliament in England, be ratified, confirmed, and adjudged by authority of this Parlia∣ment in their force and strength, from the sixth day of March. So as Magna Charta was not a general Law in force, use, acceptance, or execution in Ireland, at least amongst the Irish, till 8 E. 4. or 10 H. 7. as is evident by these Acts. Because I would leave nothing concealed or unanswered that might make for the prisoners advan∣tage, I must acknowledge, that King Henry the 3d. in the first year of his Reign sent a Roll of the liberties which his Father King Iohn and he had granted to this Realm of England unto Ireland, out of his special grace, by unani∣mous consent of all his Lieges, and confirmed the same to all his Spiritual and Temporal Lords and faithfull Sub∣jects there (for their fidelity to him and his Father) to them and their Heirs for ever, as a signal bedge of his favour, by this patent. * 2.25 Rex, Archiepiscopis, Episcopis, Abbatibus, Comitibus, Baronibus, Militibus, et libere te∣nentibus et omnibus fidelibus suis per Hiberniam con∣stitutis, Salutem. Fidelitatem vestram in Domino commen∣dantes, quam Domino patri nostro semper exhibuistis, et Nobis estis diebus nostris exhibiti; volumus, quod in sig∣num fidelitatis vestrae tàm prae••lare, ••am insigniter Liberta∣tibus Regno nostro Angliae a patre nostro et nobis con∣cessis,

de gratia nostra et dono in Regno nostro Hiberniae gaudiatis vos et vestri imperpetuum: Qu•••• distincte in Rotulum redactas, decommune consilio omnium fidelium nostrorum vobis mittimus, signatas si∣gillo Domini Gu••••onis Apostolicae sedis Legati, et fidelifsimi nostri Willielmi Marescalli * 2.26 Rectoris nostri et Regni nostri, quia sigillum nondum babuimus; easdem processu temporis majorum constlio proprio sigillo firmandas. Teste apud Gloverniam, 3 die Februari: he being * 2.27 c. ow∣ned but on the 28 of October before at Gloucester, where this Patent bears date.

After which King Henry having ratified the Great Charter of Liberties in England, in the 9th year of his reign (printed in all our Statutes Books, and in Cooks 2 Institutes) in the 12 year he commanded it to be publi∣shed openly in Ireland by his Writ, * 2.28

Rex dilecto et fideli suo R. Burgo. Iustic. suo Hiberniae, salutem. Mandamus vobis firmiter praecipientes, quatenus certo die & loco faciatis venire coram vobis Archiepiscopos, Episcopos, Abbates, Priores, Comites & Barones, Milites, et libere tenentes, & Ballivos singulorum Comitatuum▪ et coram eis publice legifaciati. Cartam Dom. Regis Johannis patris nostri cui sigillum suum appen••um est, quani fieri fecit jurari a Magnatibus Hiberniae, de legibus & con∣suetudinibus Angliae observandis in Hibernia. Et prae∣cipiatis eis ex parte nostra, quod leges illas et consue∣tudines in Carta praedicta contentas de caetero firmi∣ter teneant & observent. Hoc idem per singulos Co∣miratus Hiberniae clamari faciatis et teneri Prohibentes firmiter ex parte nostra, et super forisfacturam nostram, ne quis contra hoc mandatum nostrum venire prae∣sumat, eo excepto quod non de morte nec de catal∣lis Hibernensium occasione nichil stauatur ex parte nostra citra quindecem dies a die St. Michaelis anno r. n. 12.

super quo respectum de dedimus Magnatibus nostris Hi∣berniae, usque ad terminum praedictnm: Teste m••ipso apud Westm. 8 die Maii anno 12.

In Cooks 3 Instit. f. 141. b. 4 Instit. p. 3••9. b.

& in 18 H. 3. Rot, pat. m. 17. n. 21. There is man∣tion made of Consuetudines & Leges Reg••i nostri Angliae, quas bonae memoriae Dominus Johannis Rex pater noster de communi omnium de Hibernia consensu teneri statuit in terra illa. Teste Rege apud Winch. 28 die Octob.

In the 30th. year of Henry the third, all Laws and Cu∣stoms of England were established in Ireland by this * 2.29 Pa∣tent. Quia pro communi utilitate terrae Hiberniae, & pro uni∣tats terrarum Rex vul, et de Communi Consilio Reg∣nt provisum est, quod omnes Leges et consuetudines quae in regno Angliae tenentur in Hibernia teneantur, et eadem terra eisdem legibus subjaceat, et per easdem re∣gatur, sicut Johan▪ Rex cum ultimo esset in Hibernia statuit et strmiter mandavit: Ideo volumus, quod omnia Brevia de communi sure quae currunt in Anglia, similiter currant in Hibernia sub vovo sigillo nostro, &c. Teste meipso apud Woodstock, 19 die Septemb.

The Patent of King Iohn which this Patent mentions, is that of Rot. Pat. 6 Johan. Regis. m. 6. n. 17. never yet printed. Rex, &c. Justiciariis, Baronibus, Militibus, et omnibus fidelibus suis &c. sciatis quod dedimus potestatem Justiciariis nostris Hibernioe, quod brevia sua currant per terram nostram et potestatem Hiberniae, scilicet Breve de Recto, de feodo aimidiae Militis, et infra; et erit terminus de morte aut post transfretationem Henrici patris nostri de Hibernia in Angliam. Et Breve de Nova disseisina, et erit terminus post primam Coronationem nostram apud Cant. Et Breve de Fugitivis et Nativis, et ejus erit terminus post captionem Dublin. Et Breve de divisis fa∣ciendis inter duas villas, exceptis B••roniis: Et ideo vobis mandamus et firmiter praecipimus, quod haec it a fieri et firmi∣ter teneri * 2.30 per ••otam potest atem nostram Hiberniae faciatis. Teste meipso apud Westm. 2 Novemb.

In the 41 year of his Reign, Claus. 41 H. 3. m. 11. dors. I find this memorable writ, touching the confir∣mation and Customes of England setled in Ireland, by as∣sent of the Prelates and great men thereof: Rex Thesaurario et Baronibus de Scaccario Dublin salutem. Quia

de assensu et vosuntate Praesatorum & Magnatum terrae Hiberniae dudum fuit provisum et concessum, quod eisdem legibus uterentur in terra illa quibus homines reg∣ni nostri utuntur in regno illo; et quod eadem Brevia quoad terras & tenementa recuperanda currerent in ter∣ra illa, quae currunt in regno praedicto, sicut nostis: Et dicta provisio & concessio omnibus retroactis tempori∣bus fuerit obtenta & approbata; miramur quamplu∣rimum, quod sicut ex insinua••ione venerabilis patris Tho∣mae Lismor. Episcopi accepimus, emanare permisistis ex Cancellaria Edwardi filii nostri in Hibernia, contra con∣suetud inem optentam & formam Brevium in regno no∣stro ufitatam, Breve subscriptum contra praefatum Epis∣copum in hac verba. E. illustris Regis Angliae primo∣genitus Vic. Waterford salutem. Precipe Thomae Lismor. Episcopo, quod juste & sine dilatione reddat Waltero: Episcopo Waterford, Maneria de Archmordeglan, Kil∣mordri & Motha cum pertinentiis, quae clamat esse jus Ecclesiae suae, & in quae idem Episcopus non habet ingres∣sum nisi per Alanum quondam Lismor Episcopum cui Griffinus quondam Lismor. Episcopus illa demisit, qui in illa se intrusit post mortem Roberti quondam Lismor. Episcopi, qui inde injuste & sine judicio dissesuit Rober∣tum quondam Waterford. Episcopum, praedecessorem E∣piscopi post ultimum reditum, &c. Quia vero dictum Breve tam dissonum est, et contra leges & con∣suetudines in Regno nostro optentas, & formas brevium nostrorum ibidem approbatas, praesertim cum Breve in∣gressus non transeat tertiam personam, nec ratione intru∣sionis in terram aliquem post mortem alicujus competat actio alicui de terra, illa nisi illi cui per mortem illam jus debetur in eadem: Nec enim dicitur intrusor, qui jure haereditario, vel ratione Ecclesiae suae succedit praedecesso∣ri sui in hiis de quibus idem praedecessor fuit seisitus in Dominico suo ut de feodo die quo obiit: Vobis manda∣mus, quod si••dictum Breve a Cancellaria praedicta in for∣ma praedicta emanaverit, executionem ejusdem Brevis supersedeatis; revocantes sine dilatione quicquid per

idem Breve actum fuerit in Curia praefati filii nostri: Teste apud Wynd. 27 die Januar. Eodem modo scribitur Alano la Suche Justic. Hiberniae, & Waleranno de Wellesly, & sociis suis Justiciariis itinererantibus, ut supra.

In the 5th year of King Edward 3. rot. Pat. 5 E. 3. par∣te 1. memb. 25 It was enacted in a Parliament that year in England amongst other things. Quod una & eadem Lex fiat tam Hibernicis quam Anglicis, excepta servitute V••cagiorum penes Dominos suos, &c. by a Parliament then holden in Ireland.

Yet notwithstanding all these Patents, Charters, Acts, the benefit of the great Charter, and of the Liberties, Laws and Customs of England, extended not to all Ire∣land, and the Irish therein dwelling; but only to such parts of Ireland as were reduced and divided into Coun∣ties, and possessed by the English Colonies, and to the English men inhabiting in Ireland, and such Irish within the English Pale as lived in due subjection and obedi∣ence to the Kings of England, or were specially endenized by their Parents to them, not to the Irish Countries and Colonies which were not reduced into Counties, and under the obedience of the Kings of England, (amount∣ing to more than two third parts of Ireland in extent of Ground) who had no benefit of the Laws or Liberties of England; but by special Grants and Charters of in∣denization from the Kings of England, which some Septs of the Irish and others purchased from our Kings, as Sir John Davis proves at large in his Irish Reports, in the Case of Tanistry, fol. 37, 38, 39. and the Records there cited: To which I shall add these following Records not mentioned by him, fully evidencing this Truth. Claus. 37. H. 3. m. 15. Dors. Rex Justic. Hiberniae salutem. Monstravit nobis Mamorth Offerthierim, & Rothericus frater ejus, quod Antecessores sui & ipse, licet Hibernienses fuissent, semper tamen firmiter fuerunt ad fidem & servitium nostrum & praedecessorum nostrorum Regum Angliae, ad Conquestum una cum Anglicis faciendum super Hiberni∣enses. Et ideo vobis mandamns, quod si it a est, ••••••c non

permittas ipsos Mamorth & Rodericum repelli•••••• quin pos∣sint▪ terras vendicare in quibus jus habent, stcut quilibet Anglicus. Quia si ipsi & Antecessores sui sic se habu••∣runt cum Anglicis, quamvis Hibernienses, injustum est, licet Hibernienses sint, quod exceptione qua repelluntur Ibernen∣ses a vendicatione terrarum & aliis repellantur. T••ste. &c.

By this Record it is apparant, that all Irishmen but those whose Ancestors joyned with our Kings in the conquest of Ireland, and were loyal Subjects to our Kings, had no benefit of the Kings Writs and Laws to claim or recover Lands in Ireland, in 37 H. 3.

Hereupon divers native Irish men purchased several Patents from our Kings, granted out of special grace to enable themselves and their Posterity to enjoy the bene∣fit of the English Laws in Ireland, for which I shall cire these few ensuing Presidents instead of many of like nature. Pat 17. Johan. Reg. memb. 15. together with

Pat. 12. E. 1. m. 11. Pro diversis in Hibernia, quod uti possint Legibus Angliae in Hibernia. Rex omnibus ballivis & fidelibus suis Hiberniae ad quos, &c. salutem. Ʋo∣l••ntes Giraldo fil. Johannis Hibernico, gratiam facere spe∣cialem, concedimus pro nobis & Haeredibus no••tris, quod idem Geraldus & liberi sui quos legitime procreaverit, hanc habeant libertatem, quod ipsi de caete••o in Hibernia utantur legibus Anglicanis, & firmiter inhibemus, ne quis ••os contra hanc concessionem nostram vexet in aliquo, vel perturbet. In cujus &c. T. Rege apud Carnarvan, 30 die Maij, Consimiles literae habet Margeria de Lessan, Henricus de Lessan, Petrus de Lessan, Andreas de Lessan, Bene dictus fil. Johannis, Ardmagh, Willielmus Heuke, Hibernici. In cujus, &c. Teste ut supra.

Pat. 18. E. 1. m. 24. Rex omnibus Ballivis & fidelibus suis in Hibernia, ad quos, &c. salutem. Ʋolentes Isamaiae filiae Oragilig▪ & Matildae fil. Oragilig, Hibernicis, gra∣ciam facere specialem, concedimus pro nobis & haereaibus nostris, quod eadem Isamaia & Matilda ad totam vitam suam hanc habeant libertatem, videlicit, quod ipsae de caetero in Hi∣bernia

utantur legibus Anglicanis: & fi••miter inhi∣bemus, ne quis eas contra ••anc concessionem nostram vexet in aliquo vel perturbet: In cujus, &c. T. Rege apud Westm. 12 die Junii, per ipsum Regem.

Pat. 19. E. 1. m. 20. Rex omnibus ad quos, &c. salu∣tem. Sciatis quod de gratia nostra speciali, concessimus Willielmo filio Carmok. Clerico▪ quod ipse & omnes posteri sui imperpetuum Lege & consuetudine Anglicana utantur in terra nostra Hiberniae, i••a quod ipsi per alias leges & consuetudines, p••r nos & ministros nostros quoscunque de cae∣tero non deducantur contra voluntatem suam, sed quod ipsi, in vita sua & morte de caetero libertate gaudeant Anglicana, In cujus, &c. Teste Rege apud Ashermg. 22 die Jan.

The like Patent is granted Mauricio de Bre. Hibernico, Pat. 24. E. 1. m. 3. These Records, with Claus. 2. E. 3. m. 17. Rex dilecto & fideli suo Johanni Darcy, de Nevi∣en, Justiciario suo Hiberniae, salutem. Exparte quorun∣dam hominnm de Hibernia extitit supplicatum Ut per statu∣tum inde faciendum concedere velimus, quod omnes Hi∣bernici qui voluerint legibus utantur Anglicanis, it a quod necesse non habeant super has chartas aliquas a nobis im∣petrare. Nos igitur certior ari volentes, si sine alieno prae••••d••cio praemissis annuer ••valeamus, vobis mandamus▪ quod volunta¦tem magnatum terrae illius in proximo Parliamento ibi¦dem tenendo; super hoc cum ailigentia pers••rutari faciatis, & de eo quod inveneritis, una cum vestro consilio & ad visam••nto nos distincte & aperte cum celeritate qua potestis, certificetis, hoc breve nostrum nobis remittentes: which compared with Claus. 5. E. 3. part 1. m. 25. Pro hominibust••rrae Hiberniae de Lege ANGLIAE UTENDA in custodiis recuper andis, &c. are an unanswerable evidence beyond contradiction, That the great Charter, Liberties, Customs and Laws of Eng∣land, granted to those of Ireland by King John, Henry the third, Edward the first and third, extended only to the English Subjects inhabiting Ireland, and to such Irish who lived in English Counties in due subjection to the Kings of England, or were by special Charters of indeni∣zation enabled to enjoy the benefit of them; who were

but few in consideration of the rest of the Irish Nobility, Gentry and Commons, retaining their ancient Brehon Laws, and would not submit to the Laws of England, nor Government of our Kings, against whom they fre∣quently rebelled, being reputed rather Enemies than Rebels, and usually so stiled in the Statutes of Ireland, till the Statute of 33 H. 8. c. 9. as appears by the Statutes of 18 H. 6. c. 3. 25 H. 6. c. 4, 5. 28 H. 6. c. 1. 3 E. 4. c. 2. 5 E. 4. c. 6. 18 E. 4. c. 2. 10 H. 7. c. 9, 10, 17, 19. 28 H. 8. c. 11. & by Sir John Davis Irish Reports in the Case of Tanistry, fol. 39. the common Laws and Statutes of England being not universally received or e∣stablished throughout the whole Realm of Ireland, till after the Statutes of 3 and 4 Phil. and Mar. c. 3. 11 Eliz. c. 9. and King James his Proclamation in the third yeer of his reign: or at leastwise till the Statutes of 8 E. 4. c. 1. or 10 H. 7. c. 22. which established all the Statutes made in England concerning or belonging to the good of the same, only as to the Englishry, or English Pale and Counties, not to the Irishery, as the Statutes of 17 H. 7. c. 8, 9, 10, 11, 13, 17, 19. 35 H. 6. c. 3. 5 Ed. 4. c. 3, 4, 5. 13 H. 8. c. 3. 28 H. 8. c. 15. made in Ireland, with other Acts resolve, which the Lord Magwire confesseth in his Plea, and his Council cannot deny. Now the Lord Magwire being none of the English Pale, or Irish Sept, Liege Subjects to our Kings, but of the Irish∣ry, and professed Enemies to our Kings, as the Irish Annals and Statutes inform us; the Statute of Magna Charta, and the Laws, Liberties and Customs of England, granted to the English and loyal Irish Subjects in Ireland▪ and so this trial by Peers, could not extend to his ancestors till after the Statutes of 8 E. 4. or 10 H. 7. & of 35 H. 8. c. 1. yea after the Statutes of 3 and 4 Ph. and Ma. c. 3. and 11 Eliz. c. 9. for reducing the Irishry into Counties, and under the Laws and Statutes of England to which they were not formerly subject. And from these Pa∣tents of King John and Henry the third forecited, and the Statutes of 8 E 4. and 10 H. 7. till 35 H. 8. chap. 1.

No one president of any one Irish Peers trial by his Peers in Ireland in any case whatsoever, can be produced. Therefore certainly there was no such trial known or in use in Ireland, before 35 H. 8. nor any president of it since till one of late; and una Hirundo non facit Ver.

If then the Peers of Ireland before the making of this Act of 35 H. 8. were never actually tried by their Peers for any treason done in Ireland, for ought can be proved, and there be no express Act for any trial by Peers there, for any Treason, but only the Act of 2 Eliz. c. 1. and 6. and that only for special Treasons within those Laws, which are none of those for which the Prisoner stands here indicted; I may safely conclude, That this Law of 35 H. 8. never intended to preserve to Irish Peers a trial by their Peers in Ireland, which kinde of trial was never 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 Authoriry which seems to be strongest against, is for me) the words whereof are these in English. The grand Chancellor of Ireland moved this que∣stion to the Queens councel, If an Earl or Lord of Ireland, who commits Treason in Ireland by rebellion, shall be ar∣raigned 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 At∣torney General, That he could not. Mark now their rea∣sons; for he cannot have his trial here by his Peers. (which is a full resolution in point of my third Question, agree∣ing 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 O∣rourks Case, and in Sir John Parrets Case, and since in Mac-mahons Case: and Sir Ed. Cook informs us in his In∣stitutes on Lit. f. 261, that Wray himself in Orourks Case (where this Opinion of his was vouched) did openly dis∣claim, 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 * 2.31 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 at∣tainted 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 Ire∣land; 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 que∣stions have been moved, that certain kinds of Treasons &c. committed out of the Kings Majesties Realm of Eng∣land, 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•• per∣sons ••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 inqui∣red of, heard and determined. The sole scope, end, pur∣pose 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 Com∣missioners 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 con∣trary in most plaine and positive words. The rather, be∣cause 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 a∣mong* 2.32 the Peers and Nobles of Ireland, in the Parlia∣ments of Ireland, not in England, as he sets forth in his own * 2.33 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 Do∣minum & Baronem omnium & singulorum Parliamentorum

& magnorum Conciliorum nostrorum in terra nostra Hiber∣niae 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 * 2.34 Viscount Rochford by the self-same Patent both Earl of Wiltshire, infra regnum nostrum Angliae; and Earl of Or∣mond 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 * 2.35 learned Mr. Selden informs us, and their very Patents resolve in termi∣nis. 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 Ireland; Yea to Irish Peers as well as to Irish Commoners, and that there can be no tryal at all upon it here of an Irish Peer by Irish Peers, nor in any place else within England; and that only (as the Prisoners case is) by a Middlesex Jury. And so I have finished my assertive part.

The first and grand objection is, that which I meet* 2.36 with in the beginning of this Prisoners plea; The Statute of Magna Charta, c. 29. That no Freeman shall be ta∣ken or imprisoned or disseised of his Freehold, &c. nor will we pass upon ••or condemn him, but by the lawfull judgment of his Peers, or by the law of the land: which Law and Statute is among others, established for a Law in the Kingdom of Ireland, there to be put in ure at all times when need is, by the Statute made in the Parliament held at Droghedah in Ireland, in the 10th year of King H. 7. c. 22. and by vertue of these two Laws he ought to be tryed by his Peers in, or of Ireland, in this sute against him by and for the King.

To which I shall give these satisfactory Answers.

1. That the Statute of Magna Charta in its original* 2.37 creation and confirmation, was made, granted to the Arch∣bishops, Bishops, Abbots, Priors, Earls, Barons, Towns, and to all the Free-men of this our Realm of England, and to them only, to be kept in our Kingdom of England for ever, whence it is intituled, The great Charter of the Liberties of England, as the prologue of it resolves. The first Chapter thereof is peculiar to the Church of England, viz. That the Church of England shall be free and enjoy all her rights and liberties inviolable. We have also granted to our Free∣men of our Realm of England these liberties under-written, to have and to hold to them and their Heirs, of us and our heirs for ever: So cap. 12. The City of London shall have all her old Liberties and Customs, and all other Cities, Bo∣roughs, Towns, and the Barons of the Cinqueports, and all other ports shall have all their Liberties and their Cu∣stomes. Cap. 35. One measure of wine, &c. shall be through∣out our Realm. Ch. 32. All Merchants (if they were not openly prohibited before) shall have safe and sure con∣duct to depart out of England, to come into England, and to tarry in England, as well by Land as by water, &c. In Cap. 23.

All Weeres shall be utterly put down between Thames and Medway, and throughout all England: and the conclusion, C. 37. concerns the Realm of England, and Englishmen only.

Neither doth the* 2.38 Char∣ter of King John, nor that of the 11 of H, 3. nor 18 H. 3. m. 17. nu. 21. nor of 30 H. 3. nor yet of 13 E. 1. cited in Co. 4 In∣stitutes, p. 349, and 350. and in his Institut. on Littleton, f. 141. establish Mag. Char. at least in relation to all the Native Irish but English alone, it being made particu∣larly for the Realm of England and English men: and therefore the Prisoner pleads, it was setled there only as a Law to be received and put in use (in respect of the Irish then living only in the English pale and the Kings loyal Subjects, not of any Irish enemies in hostility) by the Statute of 10 H. 7. c. 22. but not before: and so

is Sir Ed. Cooks opinion in express terms in his 4 Institut. pag. 35••.

By which it is most clear, That from King Henry the se∣conds dayes, (who first subdued Ireland, An. 1171.) there were no trials in Ireland, of any English or Irish Peers Subjects to our Kings, for Treason by their Irish Peers by vertue of Magna Charta, till after the Statute of 10 H. 7. which was made but forty six yeers before the Statute of 35 H. 8. between which, and this later Law we read not of one trial of any Irish Peer for treason there by his Peers, nor yet since, that I can find (but only one of late by 2 El. c. 1, 6.) till this very day: By which it is most apparent, that this tryal by Peers in Ireland a privilege now inficted on) was never actually claimed or enjoyed by any Peer of Ireland, especially by those in antient emnity and rebellion against our Kings, stiled * 2.39 enemies in the Irish Statutes, and English Records before the Statute of 35 H. 8. and so it can be no prejudice nor injustice at all, nor breach of Magna Charta, to out the Prisoner of it.

2ly. It may be questioned upon very good Reasons, whether the Statute of 10 H. 7. ch. 22. doth consirm this Statute of Magna Charta in Ireland or not? at least as to Irish Peers, especially those of the old Irish Bloud (to whom it relates not, as I have proved in the point of trial by Peers,) and that upon these Grounds.

First, because the words of that Statute are not, That all Laws made in England shall be confirmed, received and executed in Ireland in all points: but, That all Statutes late made within the Realm of England, concerning or belonging to the Commonweal (not Peers) of the same, shall henceforth be deemed good and effectual in Law, and received & executed in this Realm of Ireland. Now Magna Charta, being no Law then late made within this Realm, but made at least 271 years before it, can hardly (without much straining of the words beyond their proper meaning) be brought within the compass of this Act, though Sir Ed. Cook in his fourth Institutes, pag. 351. informs us, That Hil. 10 Jac. it was resolved by the two chief Justices and chief Baron, that this

word LATE in this Act, hath the sence of BEFORE, and shall not be taken in its proper sence or meaning: so that the Act by this construction, against the sence of the words, extends to Magna Charta, and to all the Acts of Parlia∣ment made in England, not only late, but even long be∣fore; yea, many hundred yeers before this Act; which for my part (under the favour of those Reverend Judges who thus interpret it) I hold still disputeable, yea, erronious, and no Law at all, especially for these two Reasons.

1. Because if any Law introduced and confirmed Magna Charta and the other Laws of England in Ireland, it is the Statute of 8 E. 4. c. 1. which confirms the Sta∣tute made in England in the Parliament of 6 R. 2. ch. 6. concerning Rapes, of which there was some doubt made whether it extended to Ireland? and then concludes thus: In avoyding of all inconvenience that might happen, because of the ambiguity of the said Statute, Be it enacted, confirmed and ratified by authority of the said Parliament, that the said Statute be adjudged and approved in force and strength, and may be of force in this Land, from the 6th day of March last past; and that from henceforth, the said Act, and all other Statutes and Acts made by Authority of Parliament within the Realm of England, be ratified, confirmed and adjudged by Authority of this Parliament in their force and strength, from the said 6th day of March. So that this Law, if any at all, confirmed Magna Charta, and all the Statutes made by Authority of Parliament in England, to be in force and use in Ireland, (yet only as to the English & Irish Subjects under the Kings obedience, and none else, as I have proved,) and this Statute of 10 H. 7. which confirms only the Statutes lately made, must and doth in truth and reason relate only to the Laws made in England since that Statute of 8 E. 4. c. 1. not formerly there confirmed by that Act: so that the Prisoners Plea, That Magna Charta was confirmed by 10 H. 7. is but a meer mistake and a void Plea: neither are the Judges here bound to take notice of this Irish Act of 8 E. 4. c. 1. unless pleaded by

the Prisoner, being no Law of this Kingdom and not binding here.

2. Because the forementioned Charters of * 2.40 6 Joh. 12. and 30 H. 3. &c. confirming the use of the Laws of the Realm of England in Ireland, did not extend to settle Magna Charta there, (at least wise not as to the benefit of the natural Irish, but to the English and the Irish within the English Pale alone) as is agreed by Sir Ed. Cook, and in a manner resolved by this Act of 10 H. 7. as the words thereof, From henceforth be deemed good and effectual in the Law, and over that be used, accepted and executed within the Land of Ireland, in all points, at all times requisite, im∣port. And if those Charters extended not to Magna Charta, which are fuller then this Act, I doubt this Law will hardly do it.

3ly. Admit the Law of 10 H. 7. extends to Magna Charta in some particulars thereof formerly used in Ire∣land, yet it reacheth not to the trying of Irish Peers by their Peers now in question, for these ensuing Rea∣sons.

1. Because trial of Irish Peers, by their Peers in Ire∣land was never used nor heard of, nor is there any one in∣stance to be found before or since Magna Charta, till 10 H. 7. which there setled that great Charter for a Law, nor from 10 H. 7. till 35 H. 8. nor since that, but of late in one case only about twenty yeers since, till this instant. Now what Littleton notes of the Statute of Merton, * 2.41 Sect. 108.

That no action can be brought up∣on that Statute for a disparagement, for that since the making of it, it was never seen nor heard, that any such Action was brought upon it against the Guardian: and if any Action might have been brought upon this mat∣ter, it will be intended that sometime it would have been put in ure.

The like shall I say concerning Mag∣na Charta, and the trial of Irish Peers by their Peers in Ireland, That if the trying of Irish Peers by their Peers had been the common Law of Ireland, or if Magna Charta and 10 H. 7. had established it there for a Law, it

would some time or other have been there put in ••re, and some Peers there would have claimed and enjoyed this their priviledge in point of Trial: but since it was never yet in use there, for ought I finde, nor any one can prove, before 35 H. 8. I cannot deem it the common Law, nor Priviledge of the Peers of Ireland, but the pe∣culiar Priviledge of our English Peers, both by the com∣mon, Statute-Law, and great-Charter of England, and no trial of right incident to Irish Peers as it is to English. Therefore this kinde of Trial neither is confirmed to, nor intended to be conferred on Irish Peers by Magna Charta, which is but a confirmation only of our * 2.42 common Laws of England, and no introduction of any new Law here; and so should introduce no new Law there, but confirm the common Laws and Customes there formerly used and so the Tryal by Peers is not there setled in respect of the Irish Peers, by the Statute of 10 H. 7. Now that which principally confirms me in this opinion is the two special Acts of Parliament, made in Ireland in 2 Eliz. c. 1. & 6. * 2.43 already cited, which create a special form of tryal of Irish Peers, not by their Peers there of I∣rish blood, but by their Peers of that Realm of the English blood alone, only in the new Treasons and Premu∣nires specified in and created by those two Acts; but in no other Treasons: Which clauses had been merely nuga∣tory and superfluous had the Tryal of Irish Peers in Ire∣land by Irish Peers been the birth-right and known pri∣privilege of Irish Peers, either by the Common law there used, or by the Custome of Ireland, or by Mag∣na Charta, with this Act of 10 H. 7. confirming it; It therefore never being the intent of this Act, nor of Mag∣na Charta, to grant any new privilege or form of Tryal to Irish Peers, which they never formerly enjoyed, nei∣ther the one nor other will sufficiently support the Priso∣soners plea; nor indulge him any tryal here or there by his Peers of Ireland (at least of Irish blood) for so horrid a Treason as this; Which I hope is a satisfactory an∣swer to this objection, since Custome is the best Expositer of all

antient Laws, as Sir Edw. Cook declares in his Commentary on Littleton, sect. 108. f. 81. b.

4ly. Admit the Objection true, That Magna Charta extends to Ireland, by vertue of this Act of 10 H. 7. so far as to give Irish Peers in Ireland, (though not of the English Pale) a trial by their Peers, which they had not before its confirmation there; yet then I answer, That this Statute of 35 H. 8. ch. 2, upon which the Prisoner is arraigned, by making all Treasons done and perpetrated in Ireland, triable in England, when there is just occasion, (as now there is in this time of a universal horrid Rebel∣lion, and in sundry other forementioned respects) re∣peals this Clause of Magna Charta, and deprives the Prisoner of the benefit of his Peerage, if at all conferred on him by it, and the Act of 10 H. 7. Since it is most certain, that Statutes made in the Parliaments of Eng∣land, (being the supreme Kingdom and Court, to which Ireland & its Courts are subordinate, and whose erronious judgements in their High Courts and Parliaments there, were only reversible here in England in the Kings Bench and Parliament of England as is evident by Claus. 7. H. 3. par. 2. m. 10. and Claus. 29. E. 3. m. 12. 8 H. 6. rot. Parl. ••. 69. Cooks 4 Instit. p. 356. Mr. St. Johns Argument at Law at Straffords Attainder, p. 58, 61. K••ilway, f. 202. b. Br. Error, 127. Fitz. Nat. Bre. f. 24. Co. 7 Rep. f. 18. a Calvins Case) do oblige those of Ireland, not only before but ever since 10 H. 7. when Ireland is either particu∣larly named, or generally included, as is agreed by Rastals Abri••gement, title Ireland, 11 E. 3. chap. 2. and 10 E. 3. chap. 8. 4 E. 4. chap. 1. 3 H. 7. chap. 8. 14 H. 4. Rastal Parceners 2. 27 E. 3. of the Staple, chap. 1. 18 14 Eliz. chap. 5. 1 H. 7. ass. 3. 3 H. 7. fol. 10. 2 R. 3. f. 12. and Cooks 7 Report. Calvins Case, f. 17, 22, 23. 4 Instit. p. 35. it being so resolved as to this purpose by all the Judges of England in Orourks and Sir John Parrets Cases, cited in Calvins Case, and adjudged in Mac-mahons Case tried at this Bar the last Term, that this Act of 35 H. 8. ••. 2. bindes those of Ireland for Treasons there committed, &

makes them subject to a trial here, whether Peers or Commoners, as I have already proved.

5ly. It is unquestionable, That every Commoner of Ireland, hath as large, as full an interest in Magna Charta, the Laws and Priviledges of England and Ireland, and as much right to be tried in Ireland for Treason there com∣mitted by an Irish Jury, as any Peer in Ireland hath in or by them to be tried there by his Peers, these Laws being no respecters of persons, and every mans birth right alike, of Commons as much as of Peers, as the Laws and great Charter of England are; Magna Charta, being as larg∣ly made and as amply granted to the meanest Freeman as to the greatest Peers of England and Ireland, as the Pro∣logue and 9, 14, 15 19, 21, 22, 26, 27, 29▪ Chapters there∣of resolve.

Since then this Act of 35 H. 8. chap. 2. doth without all controversie (as hath been resolved in the forecited Case) deprive the Commoners of Ireland of a Trial in Ireland by Irish Commoners, and subjects them to a trial by an English Jury here for Treasons there committed; for which by the common Law, the Customes of Ireland and Magna Charta, before the Statute of 26 H. 8. and this Act of 35 H. 8. they could be no where tried but only in Ireland, not in England, as is collected from the Case of Sir Elias Ashburnam, Tr. 18 E. 3. coram Rege, Rot. 14. cited by Sir Edward Cook in his 4 Instit. p. 356. (the principal case that can be objected against me, which makes nothing to the purpose, being long before these Statutes were made:) Therefore by the self same reason it shall take away the trial of Irish Peers in Ireland and England by Irish or English Peers, for Treasons perpe∣trated by them in Ireland, and subject them to a trial by an ordinary English Jury at this Bar, or before Commis∣sioners in any County of England, as I have already proved; which Jury here are in truth Peers to all I∣rish Peers, being here no Peers at all, but onely Com∣moners.

If it be objected, That this Law of 35 H. 8. chap. 2.* 2.44

cannot abrogate Magna Charta; all Acts and Iudge∣ments against Magna Charta being declared voyd: by 25 E. 1. ch. 1. 2, 4. 28 E. 1. ch. 1. & 42 E. 3. ch. 1. Therefore it shall not take away the tryal by Peerage from Irish Peers.

I answer 1. That you may by like reason object, that* 2.45 it cannot take away a Tryal in Ireland by an Irish Jury from Irish Commoners, seeing it cannot repeal Magna Charta and the Common-law; But this objection is yielded, and adjudged idle in case of an Irish Commoner; therefore it is, and must be so in case of an Irish Peer.

2ly. The objected Statutes do make void and null all Acts and Statutes made against Magna Charta before the Parliaments wherein they were made; but they extend not at all to future real Parliaments and their Acts, sub∣sequent Parliaments having alwaies had power to control, alter, abrogate precedent Acts; yea the very Common∣law and Great Charter it self, when inconvenient or de∣fective, as all our Books accord: Therefore Sir Edward Cook in his 4 Institutes p. 42. resolves and proves at large, by 11 R. 2. c. 3. 5 ro••. Parl. n. 22. 48, 49. 1 H. 4. c. 3. 2 H. 4. c. 22. 21 R. 2. c. ••6. 1 H. 4. n. 48. 70. 144. 21 R. 2. n. 20, 21. 36, 37, 85, 86, 89, 90. that Acts (yea and Oaths) against the lawfull power of subsequent Parliaments, that they shall not repeal such and such Laws (though mischie∣vous or unjust) bind not at all, and are merely idle; For ••o∣dem modo quo quid constituitur, dissolvitur; those who have power to make any Laws, having as great, as full a power to controll, alter, or repeal them when they see cause and necessity for it as you may read in Rastals and Poultons Abridgements of Statutes, and the Statutes at large, repealing former Acts: and how often Magna Charta hath been altered, supplied, or * 2.46 repealed in some particulars, in and by our Parliaments since its making, by subsequent Acts both by prescribing creating new impri¦sonments, forfeitures, corporal punishments, fines, executions treasons, capital offences & customs, imposts, not then known, or different waies or places of tryal not then in use, in Ca∣ses

of forein Treasons and the like, by a Jury in England not then usual, but since confirmed by the Statutes of 26 H. 8. c. 13. 28 H. 8. c. 25. 33 H. 8. c. 27. 35 H. 8. c. 2. 5 & 6 E. 6. c. 11. contrary to, or * 2.47 different from Magna Charta, and the Common law, 2 E. 6. c. 24. is so well known to all Lawyers that I will not spend breath to prove it.

3ly. I answer, that this Act of 35 H. 8. doth both alter and in some sort repeal Magna Charta, and the Com∣mon-law, as to the point and place of trying forein Trea∣sons in England it self, as to English, Peers and Commo∣ners, to whom alone the great Charter was first granted, they being not tryable in England by Iury or Peers, for any forein treasons by the Common-law, or great Charter. Therefore a Fortiori it must both alter and repeal the Common-law and great Charter as to Irish Subjects, for whom the great Charter was never originally made, not yet directly confirmed to them by 10 H. 7. but only impli∣citly and doubtfully at most, as I have proved.

4ly. I answer, that this Act of 35 H. 8. doth no waies abrogate or alter Magna Charta in truth or reality, but rather ratifie & confirm it, in the form and manner of this Tryal, though not in the place. For Magwire being only a Peer in Ireland, but not in England; Every Free-man of England that shall be impanneled to try him, is in truth & law his Peer here: And this Act, enacting that he shall be tryed, not by Marshal-law, or the Judges themselves, but by good and lawfull men of the Shyre, where the Kings Bench shall sit, who are his equals and Peers in England, and saving the Tryal by Peers to every Peer of this Realm after his indictment found by Jury: This way and form of tryal by Jury in England being then and now the Law of the Land, is no contradiction or repeal at all, but a direct pursute and confirmation thereof, according to its letter & meaning. And so much in answer to this grand objecti∣on, wherein I have been over tedious, but shall recom∣pence it with brevity in the remainder.

The second Objection (a meer branch of the former)* 2.48 is this.

That if Irish Peers should be tryable by an ordinary Ju∣ry* 2.49 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* 2.50 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 inten∣ded 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 privi∣lege, 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 privi∣lege 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 ex∣cepted 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 Sta∣tute extending to no crimes, but these alone. There∣fore the mischief is not great in general; and no Irish Peers (I presume) but such who have trayterous or dis∣loyal hearts, will deem it a disparagement or injustice to them, to be secluded of a Tryal by their Peers only in these Cases of High Treason: And if others who are professed Rebels and Traytors murmur at it (as none else will) we need not much regard it, nor prefer their pretended privilege, before our own Kings, Kingdomes, Religions, yea Irelands safety and wellfare, in bringing them to a speedy tryal and condign punishments for their Treasons here in England by vertue of this Law.

3ly. Even by the very Common law before this Act, Treasons committed in Ireland by Peers or Commons, were tryable before the Marshall of England, in England it self, as is evident by the Parliament Roll of 2 H. 6. ••. 9. * 2.51 Where Iohn Lord Talbot, being the Kings Lieu∣tenant in Ireland, accused James Bottiler Earl of Ormond, of certain Treasons (there particularly recited) by him committed in Ireland, before John Duke of Bedford Con∣stable of England, in his Marshals Court; Which accusa∣tions the King, by the advice of his Parliament, did dis∣charge 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 be∣fore 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 re∣bellion 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 trou∣ble 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 hi∣ther 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 * 2.52 Grandfather being the first man that broke forth in Ty∣rones 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 mis∣chief, especially to rebellious Peers, than a general incon∣venience 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 e∣states, 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 pun∣ctilio of honor, than matter of real privilege or benefit to Peers; and by intendment of Law and common experi∣enc, a fair and legal tryal by the oaths of 12 honest, sub∣stantial, indifferent English Gentlemen or Freeholders,

to whom the Prisoner may take all * 2.53 sorts of lawfull challenges by Law, which shall be allowed, if there be any just cause of suspition of partiality, injustice, consan∣guinity, &c. besides his peremptory challenge of 35 Ju∣rors without cause (which challenges * 2.54 Cook affirms, shall not be admitted or granted in case of tryal by Peers) it being the usual antient a 2.55 tryal in all Cases between the King and ordinary Subjects, between man and man, Peers and Commoners, both in all civil and criminal cau∣ses whatsoever, it is and will be every way as just, as be∣neficial to a Peer in point of Law as a Tryal by twelve Peers, upon their Honours only, b 2.56 without oath. And the exchange only of the form of Tryal, by twelve indiffe∣rent English Gentlemen of quallity, upon their oaths, for twelve Irish Peers of English blood, nominated and ap∣pointed only by the King, or his c 2.57 Lord Deputy of Ire∣land, upon their Honours without oath, in this case of ne∣cessity, can be no injustice, injury, or prejudice to the I∣rish Peers in general, nor yet to the Prisoner in parti∣cular: 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 like∣wise 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 In∣dictments 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, with∣out 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 Insti∣tutes 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 concer∣ning 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 with∣out delay; he may thereupon be justly tried by an or¦dinary Jurie of Commons, as well as in Case of an Ap∣peal 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 Arch∣bishop Scroope of York, Cramner Arch-bishop of Canter∣bury, * 2.58 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 Eng∣lish

Noble blood. And if it be neither injustice, nor injurie, nor inconvenience, to deprive these Ecclesia∣stical English Peers of a trial by Peers in cases of Trea∣son or felony at the Kings sute though within the letter of Magna Charta, and to try them by an indifferent Ju∣rie of Freeholders; It cannot be reputed any inju∣stice, 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 * 2.59 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 Ene∣mies, 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 peo∣ple, 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 perpetrated, by an in∣different, honest, lawfull English Jury, upon an en∣dictment 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 rebel∣lions* 2.60 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; there∣fore certainlie Irish Peers for Treasons perpetrated in Ireland are out of this Act.

To this I answer, 1. That no Irish Peers have been tried by their Peers in Ireland for treasons since this Act; ergo they are within i••.

2. That this Argument is merely fallacious and non concludant: for the reason why no Irish Peers have been tried here since this Law by vertue of it, is not because they were not deemed within it, but for other reasons.

1. Because most of the Irish Peers▪ who have been in actual rebellion since this Law, were * 2.61 either actual∣ly slain in the wars, or fled the Kingdom, or else were re∣ceived 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 Mag∣wire, or anie of their Peers in power and estate, have been heretofore tried and executed for Treason in Eng∣land by vertue of this Law; though brought over hi∣ther 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 Argu∣ment 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 Rebelli∣on, there being no President, Judgement, nor foild season against it; Yea ••ome Judgements in case of Irish Commons, and many unanswerable reasons for it.

The fourth Objection is, the opinion of the Book in* 2.62 Dyer, f. 360. ••••. forecited, recited in Cromptons Juris∣diction of Courts, f. 23. a. and Mr. St. Johns Argu∣ment 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, be∣cause he is no Subject of England.

To this I have * 2.63 already given an Answer, and shall* 2.64 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 * 2.65 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 authori∣ty point-blank against the Prisoners plea.

The 5th Objection is Orourks Case; which in Judge* 2.66 Andersons own Book of Reports, is put thus, Whether Orourk an Irish Subject (and no Peer nor Baron of Ire∣land) 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 opi∣nion of the Judges was, that an Irish Peer was not with∣in this Act.

To which I shall return this brief Answer, That* 2.67 this clause, not being a Peer or Baron in Ireland, in the putting of that Case, was only a description of the quali∣ty 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 re∣ported, as Sir Edward Cooks Institutes on Littleton, fol. 261. b. records.

The 6th. Objection is this, (intimated in an Or∣der* 2.68 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* 2.69 Ireland, that I can fi••d, among all their printed Sta∣tutes, 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 * 2.70 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 Law e∣stablished in Ireland; Whereupon they have reven∣sed their Order, which seemed to give some colour for this Objection.

Pat. 48H. 3. pars. 1. m. 8. I find this memo∣rable 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 & impri∣sonatus; Nolumus quod fidelibus nostris Hiber∣niae aliquod praejudicium ex hoc in posterum grave∣tur. In cujus, &c. Teste Rege apud Turrim London.

26 die Junii••. If Englishmen outlaw∣ed in England could not by the Law and Custome of Ireland, be taken upon a C••pias Utlagatum in Ire∣land, 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* 2.71 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 Scot∣land 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* 2.72 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 * 2.73 Kings of it have often done homage to the Kings of England, in antient times, as their Soveraign Lords) was still an absolute inde∣pendant 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 Parlia∣ments of England, which never bound them hereto∣fore, 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 King∣doms * 2.74 & the solemn League and Covenant passed this Parl. here & in Scotland too, which do specially re∣serve 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 a∣gainst this vain pretence, and secured not only all Sco∣tish 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* 2.75 every Case of Treason or Felony new made by Sta∣tute, 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, be∣cause 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. Stam∣fords Pleas of the Crown f. 152, 153 & Cromp∣tons Iurisdiction of Courts f. ••9. Therefore the Try∣of Irish Peers by their Peers shall be likewise sa∣ved to them within this Act, though it be not expres∣sed, as well as the Tryal by Peers is to English Peeers by expresse Provisoe.

I answer, First, that this rule holds generallie* 2.76 true in all Cases of new Treasons and Felonies where the offences only are made capital, or pu∣nishable according to the antient, usual, and or∣dinarie 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 ad∣judged Felony, and that such order and form of Pro∣cess 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 in∣troduction at all of any New Treasons, but only an introduction of a new form and way of Tryal for Trea∣sons 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 or∣dinary Iury, except onlie in Case of our English Peers; Therfore this Statute comes not at all within the Ob∣jection, 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 cir∣cumstances 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 sufficient∣ly manifested, that this Plea of the Prisoner is in∣valid, and such as ought to be over-ruled in point of Law: And therefore as he hath been sent for o∣ver from Ireland by the wisdome and Justice of our Parliament, and by the Lords, Justices, and Coun∣cel there transmitted hither to receive a just, and spee∣dy Tryal at this Bar for his bloody Treasons, which there (in respect of the Rebels power, Tumults in that Realm) he could not conveniently undergo: So I humbly pray on the behalf of the King, King∣dome, 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, Iudge∣ment 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 with∣out

further delay. The rather, because nulli differe∣mus Justiciam, is one clause of that very Act of Mag∣na 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 undelay∣ed 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 delive∣red 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 judg∣ment 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 pe∣remptorily; 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 peremp∣torily: And being tryed by twelve of the residue re∣torned (against whom he had no legal exception nor challenge) he was upon his own Confessions and preg∣nant evidence of 15 Witnesses (Persons of Quali∣ty) found guilty of the Treasons, for which he was indicted; and thereupon Febr. 11. was adjudged to∣be 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 di∣sposed as the Parliament shall appoint: Which was ac∣cordingly executed the 20th. of Febr. Even so let all such perfidious bloody Traytors perish.

Notes

• * 1.1

  The Case and Plea of the Lord Mag∣wire.
• * 1.2

  What not in question.
• * 1.3

  See 3 E. 4. c. 1. in Ire∣land.
• * 1.4

  The Question
• * 2.1

  The Act of 35 H. 8. c. 2.
• * 2.2

  Question 1.
• * 2.3

  See the statutes of Ireland, 3 E. 2. c. 4. 18 H. 6. c. 2, 3. 25 H. 6. c. 4, 5. 28 H. 6. c. 1. 1 E. 4. c. 2. 5 E. 4. c. 6. 18 E. 4. c. 2. 10 H. 7. c. 6, 8, 9, 10, 13, 17, 19. 28 H. 8. c. 1, 3, 9, 11. 3 Phil. & Mar. c. 11. 1 Eliz. c. 6, 17. 27 Eliz. c. 1. 28 Eliz. c. 8, 9. 11 Jac. c. 4. and the Annals of Ireland.
• * 2.4

  See Mr. St. Iohns argu∣ment against Strafford, p. 52, 53.
• * 2.5

  Quest. 2d.
• * 2.6

  See Cooks 3 Instit. p. 34.
• * 2.7

  Acts 10. 3, 4. Rom. 2. 11. Eph. 6. 9. Col. 3. 25. 1 Pet. 1. 17.
• * 2.8

  See 25 H. 8. c. 3, 10, 13, 26 H. 8. c. 2. 32 H. 8. c. 4, 7, 9 13. 5 Eliz. cap. 9. 14, 15, 21, 22, 23. 8 Eliz. c. 2, 3, 4. 13 Eliz. c. 8. 13, 14 Eliz. c. 3. 1, & 2 Phil. & Mar. c. 3. 1 Eliz. c. 6.
• * 2.9

  See Cooks 3 Instit. p. 31.
• * 2.10

  See 26 H •• c. 13. 1 E. 6. c. 11.
• * 2.11

  1 H 7. 3. Co. 7. Rep. Cal∣vins case, f. 16, 17, 23. Cooks Instit. 1. p. 35 Mr. St. Johns Argu∣ment at Law at Straffords Attainder, p. 61, 62.
• * 2.12

  Mat. Parls An. 1230. Mr. Cambdens Ire∣land 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.
• * 2.13

  * 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. ••.
• * 2.14

  Upon which ground writs of Er∣ror lie in the Kings Bench in England, to reverse er∣roneous judg∣ments in the Courts and Parliaments of Ireland, Cooks 4 Inst. p. 352. Mr. St. Johns Ar∣ment at Law against Straf∣ford, p. 58, 61.
• * 2.15

  Dr. Jones others printed Relations concerning the Irish Re∣bellion.
• * 2.16

  Quest. 3d.
• * 2.17

  See Dyer f. 31. 232, 298, 360. Cooks •• Rep. f. 23. 11 Rep. f. 65.
• * 2.18

  21 H. 7. 7 Br Alienation 9. 30 E. 3. 17 Br. Alienation, 23 & 30.
• * 2.19

  Seldens tit. of Hon. p. 837, 840, 841.
• * 2.20

  Cap. 29. See Cooks 2 inst. p. 48, 49.
• * 2.21

  Page 202 to 307.
• * 2.22

  See my plea for the Lords and House of Peers. p. 202, 203 to 309. where this is largely pro∣ved, & p. 424.
• * 2.23

  3 Instit. f. 30.
• * 2.24

  1 El. c. 1. 6▪
• * 2.25

  Par. 1 H. 3. m. 3.
• * 2.26

  King Hen. being then a Minor and under his Re∣giment.
• * 2.27

  Mat. Paris Hist. Angl. p. 278.
• * 2.28

  Claus. 12 H. 3. pars 1. m. 8.
• * 2.29

  Rot. Pat. 30 H. 3. m. 3. Sir Iohn Da∣vis Irish Rep. p. 37. Cooks 4 Instit. p. 350. 1 Instit. f. 141. b. Mr. St. Iohns Ar∣gument at Straffords At∣tainder. p. 55.
• * 2.30

  Nota.
• * 2.31

  Mr. St. Iohns argument at Straffords At∣tainder, p. 37, 53.
• * 2.32

  Here p. 2.
• * 2.33

  Rot. pat. 8 E. 4. in Cancel. Hiberniae; Mr. Seldens titles of Honor. Booke 2. c. 6. 〈…〉〈…〉 841.
• * 2.34

  * Pat. 21 H. 8. pars 2. 8 Decemb.
• * 2.35

  Titles of Honor, Book 2. c. 6, 7.
• * 2.36

  Object. 1.
• * 2.37

  Answ.
• * 2.38

  Here p. 32, 33, 34.
• * 2.39

  Here p. 3▪
• * 2.40

  Here p. 32, 33, 34.
• * 2.41

  See Cook ibid.
• * 2.42

  Co. 2 Instit. Proem.
• * 2.43

  Page 30.
• * 2.44

  Object.
• * 2.45

  Answ.
• * 2.46

  See Horns M••r••our of Ju∣stices, p. 314, 315.
• * 2.47

  See an exact Abrigement of the Records p. 372, 379, 380.
• * 2.48

  Object. 2.
• * 2.49

  Argument 2.
• * 2.50

  Answer.
• * 2.51

  See an exact Abridgement p. 567, 568. Cooks 4 In∣stit. p. 123, 124.
• * 2.52

  Cambdens Ireland, p. 111, 120, 121, 199.
• * 2.53

  See Stamf. l. 3. c. 7. 7 H. 7. 12. Brook Challenge 217. Fitzh. Stathams and Brooks A∣bridgements, and Ashes Table, title Challenge,
• * 2.54

  Cooks 3 In∣stitutes, p. 27.
• a 2.55

  See Fitzh. Brook, Ash. Title Jurors, Tryal, En∣quest.
• b 2.56

  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 2.57

  2 Eliz. c. 1. & 6.
• * 2.58

  Godwins Catalogue of Bishops, p. 605, 606, 232, 233.
• * 2.59

  Though Peers.
• * 2.60

  Object. 3.
• * 2.61

  See the An∣nals of Ire∣land, and Mr. Camb. in Ire∣land, p. 121 to 200.
• * 2.62

  Object. 4.
• * 2.63

  Here p. 40, 41.
• * 2.64

  Answer.
• * 2.65

  See here p. 32, to 42.
• * 2.66

  Object. 5.
• * 2.67

  Answ.
• * 2.68

  Object. 6.
• * 2.69

  Answer.
• * 2.70

  See Crokes Rep. p. 264 511, 512.
• * 2.71

  Object. 7.
• * 2.72

  Answer.
• * 2.73

  See Hov. p. 545, 546, 550. Wal∣singham. Hist. Angl. p. 48 to 56. Mat. Pa∣ris 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.
• * 2.74

  * 1 Jac. c. 2. 3 lac. c. 3. 4 lac. 1.
• * 2.75

  Object. 8.
• * 2.76

  Answ.