The Subjection of All Traitors, Treatise
THE ARGVMENT OF WILLIAM PRYNNE of Lincolns-Inne, Eſq Hill. 20 Car. Banc. Regis. IN THE Caſe of the Lord Cannor Magwire Baron of Ineskellin in Ireland (the chief contriver of the late Iriſh Rebellion and Maſſacre of the Proteſtant Engliſh) againſt whom he was aſſigned Councell by both houſes of Parliament.
COnnor Magwire, by the name of ConnorThe Caſe and Plea of the Lord Magwire. Magwire of London Eſquire, was in Michaelmas Tearm laſt, Indicted in this Court for ſeveral high Treaſons committed by himſelf, together with Hugh Mac-Mahon and divers other Conſpiratours and falſe Traytors againſt our Lord the King within the Realm of Ireland in partibus tranſmarinis, on the 23 day of October 17 Caroli, Upon his Arraignment at this Bar, after not guilty pleaded, being demanded, how he would be tryed? he put in this ſpecial Plea, as to the particular manner of his Tryall only, under his Councels hand.
That by the Statute of Mag. Charta, it is enacted, That no freeman ought to be impriſoned &c. Nor will we paſſe upon him, but by the lawful Iudgement of his Peers, or by the Law of the Land. That after this in a Parliament held at Droghedah in the Kingdome of Ireland in the 10th. year of King Henry 7th. it was enacted: That all Statutes late made within the Realm of England concerning or belonging to the Common an a Publique weal of the ſame, from thenceforth ſhould be deemed good, and effectual in Law: and over that, be accepted, uſed and executed within the Land of Ireland in all points, at all times requiſite, according to the tenor and affect of the ſame. And that by authority aforeſaid they and every of them be authorized, approved, and confirmed in the ſaid Land of Ireland: That before the time of the ſuppoſed Treaſons, King Charles by his Letters Patents under the great Seal of Ireland, bearing date the laſt day of Auguſt, in the 4th. year of his Raign at Dublin in Ireland, did create Brian Magwire, Father of the ſaid Connor Magwire, Baron of Iniskellin in the County of Farmanagh in the ſaid Realm; and granted to him and the 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 untill the 17th. of Auguſt then next following, and then adjourned till the 9th. of November next enſuing, and thence proroged to the 24 of February next following, and from thence continued till the 24 of Iune Car. he was preſent as one of the Peers of the Realm of Ireland. And further ſaith, that on the 23 of October 17 Car. he was taken and arreſted by certain Perſons to him unknown at Dublin in Ireland, and there committed to ſafe Cuſtody for the Treaſons pretended to be committed by him, till afterwards he was on the 12 of Iune 18 Car. by certain Perſons to him unknown, brought in ſafe Cuſtody, againſt his Will, to Westminſter within the Realm of England, and then and there committed to the Tower of London, where he is yet detained. And therefore prayeth, that he may be tryed and judged by his Peers of the Realm of Ireland for the ſuppoſed Treaſons in the Indictment. To this plea of his, Mr. Aske the Kings Attorney in this Court hath demurred in Law, and the Priſoner hath joyned in demurrer: And whether this Plea of the Priſoner as to his tryall by his Peers of the Realm of Ireland, be good in Law? is the ſole queſtion to be now argued.
This Caſe is of very great concernment, and yet of greater expectation: It concerns the whole Peerage of Ireland in ſome reſpects, on the one hand; and on the other, the Iuſtice both of the King, Parliament and Kingdome of England, in bringing a deſperate Rebell and Arch-Traytor to condigne puniſhment, for the moſt horrid, bloody Treaſon againſt the Kings Royal Crown and authority, the Proteſtant Religion, and the whole Engliſh Nation inhabiting Ireland (devoted to deſtruction by this Traytor and his Confederates) that ever was plotted or executed under the Sun. The eyes of all our 3 Kingdomes highly concerned in and deeply ſuffering by this Treaſon) but more eſpecially the eyes and hearts of our adjoyning vigilant Parliame…t (which hath ſpecially recommended it to this Court and aſſigned my ſelf among others, Counſel in this Caſe) are intentively fixed upon the final reſult and iſſue of it. I wiſh my vacancy to ſtudy and abilitie to argue this publique Cauſe, had been ſuch as might have ſatisfied expectation, and diſcharged the truſt repoſed in me; but other publique ſervices having much interrupted me therein, I ſhall begin to argue it for the preſent with the beſt skill I may, and ſo leave it to thoſe learned Gentlemen of the Law (if there ſhall be need of any further Arguments) who are provided to argue after me, to ſupply what is defective in this my proemiall Argument.
All matters of fact and form ariſing in this Plea, haveWhat not in queſtion. been already admitted true, and ſufficiently pleaded in Law by mutual conſent, and nothing but the meer matter in Law reſts now to be debated, which I conceive to be but one ſhort ſingle point.
For though the Priſoner pleads, that there was a Parliament, of which he was a Peer and Member, continuing in Ireland by prorogation at the time of his apprehenſion and ſending over into England; Yet this Privilege of Parliament, comes no wayes in queſtion as to the point of his triall, now only in iſſue (as hath been falſly ſuggeſted to the Lords houſe and intimated in an Ordinance of theirs ſince revoked,) but relates only to his firſt apprehenſion, which is not here in controverſie' Beſides, he pleads not, that this Parliament is yet continuing and actually ſitting in Ireland, of which he ought to have *See 3 E. 4. c. 1. in Ireland.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 The QueſtionIreland, for which he is there apprehended, and afterwards by order of Parliament here, brought thence into England againſt his Will, may be endicted and tryed for that Treaſon in this Court of Kings Bench, by a Jury of Middleſex only; not by his Peers of Ireland; by virtue of the Statute of 35 Hen. 8. chap. 2.?
And under favour, I conceive in ſome clearneſs affinmatively, that he 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.