The Subjection of All Traitors, Treatise · Floating text 1 – Floating text 2

The Subjection of All Traitors · Treatise · Floating text 1 – Floating text 2

p. 5FOraſmuch as ſome doubts, and queſtions have beenThe Act of 35 H. 8. c. 2. moved, that certain kinds of Treaſons done, perpetrated or committed out of the Kings Majeſties Realm of England and other his graces Dominions, cannot, ne may by the Common Laws of this Realm be enquired of, heard and determined within this his ſaid Realm of England; for a plain remedy, order, and declaration therein to be had and made; Be it enacted by Authority of this preſent Parliament, that all manner of offences being already made or declared, or hereafter to be made or declared by any the Laws and Statutes of this Realm, to be Treaſons, miſpriſions of Treaſons, or concealments of Treaſons, and done, perpetrated or committed by any perſon, or perſons out of this Realm of England; ſhall be from henceforth, inquired of, heard and determined before the Kings Iuſtices of his Bench, for Pleas to be holden before himſelf; by good and lawfull men of the ſame Shire where the ſaid Bench ſhall ſit and be kept: or elſe before ſuch Commiſsioners, and in ſuch Shire of the Realm, as ſhall be aſſigned by the Kings Majeſties Commiſsion, and by good and lawfull men of the ſame Shire, in ſuch manner and form, to all intents and purpoſes, as if ſuch Treaſons, or Concealments of Treaſons, had been done, p. 6perpetrated and committed within the ſame Shire where they ſhall be ſo inquired of, heard and determined as is aforeſaid.

Provided alwayes, that if any the Peers of this Realm ſhall happen to be endicted of any ſuch Treaſons or other offences aforeſaid, by authority of this Act, that then after ſuch Indictment they ſhall have their Tryall by their Peers, in ſuch like manner as hath been heretofore accuſtomed.

From this Act I ſhall deduce ſeveral Arguments and concluſions to prove, that the Priſoner at the Bar, though a Peer of Ireland, ſhall be tryed by an ordinary Iury of Middleſex, here, not by his Peers in, or of Ireland, for the Treaſons committed in Ireland, whereof he ſtands here indicted.

For my more methodical proceeding, I ſhall divide the ſingle point in controverſie into theſe 3 ſubordinate Queſtions.

1. Whether this S…atute extends to Treaſons committed in Ireland, by Iriſh Commoners?

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

3ly. Admit it extends to Iriſh Peers as well as Commoners, whether it doth not then inevitably out them of their Tryalls by Iriſh Peers, and Subject both of them alike to a Tryal at this Bar, by a Middleſex Iury?

For the firſt, Whether this Act extends to Treaſons committed Queſtion 1.in Ireland by Iriſh-Commoners? There is but little doubt of it. For firſt, it is as clear as the Sun at Noonday, that this Act extends to all Treaſons done or perpetracted in Ireland by Iriſh-Commoners; for the main ſcope and intent of this Law being, to make all manner of offences then made or declared, or hereafter to be made or declared to be Treaſons, miſpriſions of Treaſons, or concealments of Treaſons, by any Laws or Statutes of this Realm, done perpetracted or committed by any perſon or perſons out of England, inquirable or tryable within this Realm, without p. 7any ſcruple or difficulty, either in this Court, or before ſuch Commiſsioners in ſuch Shire of this Realm, as the King by his Commiſsion ſhall aſsign (the very ſum and ſubſtance of this Act, as the expreſs letter thereof reſolves,) the Realm of Ireland, being out of this Realm of England, and no part thereof, and Treaſons therein committed by Commoner, being Treaſons done and perpetrated out of this Realm of England; (as is clear by 20 H. 6. f. 8. a. b. …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 certainly and moſt neceſſarily be both within the intent and words of this Law; and ſo conſequently tryable in this Court by an ordinary Jury of Middleſex, without any ſcruple or difficulty. The rather becauſe Ireland, though out of this Realm of England, is vet part of the Kings dominions, and a ſubordinate Kingdom, united and annexed to the Crown of England, governed by the Laws of England, and bound by Acts of Parliament made in England in many Caſes, as is reſolved and undeniably evidenced by Pat. 6. Iohan. in. 6. n. 17. Rot. Pat. 8 Johan. m. 1. Clauſ. 12. H. 3. m. 8, Pat. 30 H. 3. m. 3. 14 H. 3. The Statute of Ireland. Pat. 5 E. 3. pars 1. m. 25. 11 E. 3. c. 2, 3, 4, 5. 27 E. 3. c. 3, 18. 13 E. 1. Stat. de 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. Kelway, 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.

p. 82. This Statute (as I conceive) was principally made to puniſh Treaſons, miſpriſions of Treaſons, and concealments of Treaſons in Ireland, where they were more frequently done and perpetrated, than in any or all parts of the world out of this Realm of England, as our Hiſtories and the **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.Mark 11:1Jas 4Iriſh-Statutes record: And the …orid general Treaſon, Inſurrection and Rebellion in Ireland (much like this for which the Priſonner is indicted) mentioned in the Statute of Ireland, 28 H. 8. c. 1. but 7 years before this Act, with other frequent Treaſons and Rebellions there, were no doubt the chiefeſt ground of making this new Law. And that which puts it out of all diſpute is the Statute of 28 H. 8. made in the Parliament at Dublin in Ireland, c. 7. which reciting the Statute of 26 H. 8. c. 13. made in England concerning Treaſons, and enacting, (as this of 35 H. 8.) That if any of the Kings Subjects, Denizens, or others do commit or practiſe out of the limits of this Realm (of England) in any outward parts, any ſuch offences which by this Act are made, or heretofore have been made Treaſon, that then ſuch Treaſon, whatſoever it be, that ſhall ſo happen to be done or commitſhall be inquired and 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 founden and made of any ſuch Treaſons, and certified into the KINGS BENCH, like proceſs and other circumſtance ſhall be there had and ſued againſt ſuch offendors, as if the ſame Treaſons ſo preſented had been lawfully found to be done and committed within the limits 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 p. 9of IRELAND, eſpecially in reſpect of the high rebellion here lately committed, that the odible infamy againſt the King and Queen in the ſame Act expreſſed, and other offences, abuſes, and abominations there mentioned, principally 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 every thing and things therein con…ained, be eſtabliſhed, confirmed, 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 againſt 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 Treaſons done and committed in Ireland, as this Iriſh-Parliament reſolves in terminis, and being moſt beneficial and expedient for that Realm; it wou'd be very illegal, yea irrational, abſurd, impolitick, and improvident to exclude Ireland out of this Law, where Treaſons were moſt frequent, 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 nothing ſo perilous to the King and Realm of England, as Treaſon…, Rebellions in Ireland have uſually been in former and later ages.

3ly. It hath been adjudged by all the Judges of England both in **See Mr. St. Iohns argument againſt Strafford, p. 52, 53.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 p. 10(the P…l…o…e… Confederate in this horrid Treaſon) that Treaſon committed in Ireland it ſelf by an Iriſh Commoner, 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 heretofore, 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 committed 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 IrelandQueſt. 2d. 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 ſpecified 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 perpetrated 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 p. 11Realm, 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 ſpecifical 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 hereafter to be done, perpetrated or committed, ſhall be enquired of by the Kings Iustices of the Bench, &c. which extends to all former Treaſons done out of the Realm at any 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 committed after this Act.

The 3d. is. a **See Cooks 3 Inſtit. p. 34.univerſality of place, All manner of Treaſons 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, Germane, 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 generally 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 univerſality of Perſons, coupled together with all the 3 former generalities in theſe expreſſe words. All manner of offences p. 12made 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… before the Kings Iuſtices of his Bench, &c. Now any Perſon or Perſons, being a univerſal expreſſion, equivalent to all manner of Perſons whatſoever, Collectively: or, to all and eueryevery 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 exception of Peers, is undeniable.

Firſt becauſe a Peer is a Perſon, though of a higher rank or degree than an ordinary Commoner or Freeman; and one kind of perſon in Law; therefore within theſe words any perſon or perſons.

2ly. Becauſe general Laws made for the common good ſafety of the Realm, and puniſhment of the grand crime of High Treaſon, are like to Go himſelf, **Acts 10. 3, 4. Rom. 2. 11. Eph. 6. 9. Col. 3. 25. 1 Pet. 1. 17.Acts 10:3Acts 10:4Rom 2:11Eph 6:9Col 3:251 Pet 1:17No respectors of perſons, but bind and puniſh all alike. Therefore any perſon or perſons in ſuch a publick Law as this, made for the common good, ſafety, and puniſhment of the greateſt Treaſons, Evils, muſt neceſſarily include all perſons, ſubjects whatſoever, and except none, eſpecially the greateſt, whole examples and offences are commonly moſt dangerous and pernicious.

Thirdly in all publick Acts whatſoever; Theſe words any perſon or perſons, extend to Peers as well as Commoners, and I know no one Preſident to the contrary. To inſtance in ſome few Acts inſtead of many; In the Statutes of 26 H. 8. c. 13. & 5, & 6 E. 6. c. 11. concerning Treaſons, any perſon or perſons; or any of the Kings Subjects, Denizen, or others, that ſhall commit or practiſe Treaſon out of the limits of this Realm, in any outward parts; extend to Peers as well as Commons. Therefore in this Act of p. 13the ſame nature. So in the Statutes of 1 Ed. 6. c. 1. 2 & 3 E. 6. c. 1. 5 & 6 E. 6. c. 1. & 1 Eliz. c. 2. If any perſon or perſons ſhall deprave or revile the moſt bleſſed Sacraments, or the book of the Common prayer, &c. In the Statute of 1 Eliz. cap. 1. and alſo of 5 Eliz. cap. 1. If any perſon or perſons, &c. ſhall extoll, &c. the power of the Biſhop of Rome, or of his See, 13 Eliz. c. 1. If any perſon or perſons ſhall bring in, or put in ure any Bull from the Biſhop of Rome, Agnus Dei, Pictures, Croſſes, &c. In the Statute of 23 Eliz. c. 2. If any perſon or perſons ſhall with a malicious intent ſpeak any falſe or ſeditious news of the Queen, &c. In 27 Eliz. c. 2. If any perſon or perſons shall barbour or contribute any mony to the maintenance of any Jeſuites, Prieſts &c. In all theſe Acts (to pretermit **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.Mark 3:1many 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 Privyſeal, or his mony, &c. Yet it hath been reſolved without diſpute in all times, and ſo agreed by Sir Edward Cook, Inſtitutes 3. p. 4, 5. That this word a man, extends to both ſexes alike, including women as well as men, Peers as well as Commoners, Lords, as well as Peſants. yea all ranks, callings, conditions of men who are Subjects: and that this word man in the ſingular number only, extends to many men to any number of men committing any of theſe Treaſons joyntly, as well as to a ſingle man or Traytor, becauſe it is a general Law, made for the ſafety of the Kings perſon, and the Realm. Much more then muſt any perſon or perſons, in this Statute, being both in the ſingular and plural number, and in common acceptation a far more univerſal, general, and comprehenſive expreſsion than this of a man, in 25 E. 3. c. 2. extend equally to all ſorts, ſects, and degrees of men, as well as it, and ſo to Peers as much as p. 14it, and to Peers as well as to Commons, as it doth in the Statutes of 25 H. 8. c. 22. 26 H. 8. c. 13. 27 H. 8. c. 2. 33 H. 8. c. 12. & 20. 5 E. 6. c. 11. 1 Mar. c. 6. 1. & 2 Phil. & Mar. c. 9, to, 11. 5 Eliz. c. 1. 13 Eliz. c. 2. 18 Eliz. c. 1. 23 Eliz. c. 1. 27 Eliz. c. 2. 3 Jac. c. 4, concerning Treaſons.

2ly. My ſecond Argument to prove Iriſh Peers within this Statute, is, becauſe Iriſh-Commons are within its Verge even for Treaſons committed in Ireland, as hath been adjudged in the forecited caſes of Orourk, Sir John Parrot, and Mac-Mahone: For Laws and Law givers being no reſpectors of perſons, where the offences be the ſame, and there being no one clauſe, word, or ſyllable in this Statute extending to Iriſh-Commoners Treaſons, but which doth, may and ought by the ſelf ſame Juſtice, reaſon, equity to extend to the Treaſons of Iriſh-Peers, (this Statute making no diſtinction between the one and other, and the Commons of Ireland having as abſolute a right and Inheritance in their native Privilege of being tryed by their Peers in Ireland, (which yet is taken away by this Act in caſe of Treaſon) as the Peers in Ireland have in their Peerage to be tryed there by their Iriſh-Peers:) We muſt not, yea we cannot in point of Juſtice diſtinguiſh between the one and other, where the Law it ſelf makes no diſtinction: Therefore ſince the Iriſh Commoner is undoubtedly within the words and ſcope of this Act to be tryed at this Bar by a Middleſex-Jury, the Iriſh-Peer (unleſs we will judge with reſpect of perſons, and coyn a diſtinction not warranted by this Act) muſt be alſo tryed in the ſelf-ſame manner. The Law is the ſame, the crime is the ſame, both in Magwires and in Mac-Mahones caſes, therefore the Tryal and Judgement too muſt in law, reaſon be the ſame in both.

3ly. It will be granted me without diſpute, That if an Iriſh-Peer commit Treaſon in any forein parts out of England and Ireland, as in Spain, France, Flanders, Italy, or Germany, he ſhall be tryed in this Court by an ordinary p. 15Jury if Free-holders, and not by his Peers in Ireland, by vertue of this Act. Nay, if he commit Treaſon in Ireland, and flye into England; he may and ſhall be tryed for that very Treaſon by an ordinary Jury at this Bar, **See Cooks 3 Inſtit. p. 31.becauſe by flying his Country, and a legal tryal there, he hath outed himſelf of the benefit of his Peers. Therefore it extends to Iriſh-Peers, even for Treaſons done in Ireland, elſe they could not be tryable here in any of theſe Caſes, which are granted on all hands to be Law.

4ly. It is evident by the Proviſo in this Act, that Engliſh Peers committing any manner of Treaſons out of this Realm, are tryable for it in England by vertue of this Law, as well as Engliſh Commons, though they were not ſo by the Common-law. Therefore Iriſh Peers committing Treaſon, ſhall be within it likewiſe, & ſo tryable here as well as Iriſh Commons, elſe they ſhould be in far better condition than Engliſh or Scotiſh Peers, and quite exempted out of this Act. Now the ſame words that bring Engliſh-Peers within this Law, muſt of neceſsity hook in Iriſh-Peers too, there being no clauſe which exempts or includes the one more than the other.

5ly. The very letter, intent, and ſcope of this Act (as appears by the body of it, and likewiſe by the Statutes of 26 H. 8. c. 13. & 5, & 6 E. 6. c. 11. to the ſame effect) was, to make all Treaſons done or commiteed out of England by any perſon or perſons whatſoever, tryable in England, either before the Juſtices in this Court, or **See 26 H … c. 13. 1 E. 6. c. 11.before ſpecial Commiſsioners in ſome other Counties; but to be ſtill tryable within this Realm, as the words (All manner of Treaſons hereafter to be done, perpetrated, or committed by any perſon or perſons out of the Realm of England, ſhall be from henceforth enquired of, head, and determined before the Kings Juſtices of his Bench &c. ) clearly reſolve in direct terms: Therefore to make the Treaſons of Iriſh-Peers committed in Ireland or elſewhere tryable here in England, as well as the Treaſons of Engliſh-Peers, or Iriſh-Commoners. And to ſend them back into Ireland to be p. 16there tryed by their Peers, when once they are here in Priſon, and indicted in this Court, by exempting them out of this Act, contrary to the very letter and intent of the Law, is to run point-blank againſt the very words and meaning of this Law and the Law-makers: Therefore he muſt by this Act be tryed at this Bar, and that by an ordinary Jury only, as I ſhall prove anon.

6ly. The very ſcope and ſole purport of this Act is not to make new Treaſons or Traytors, which were none before, but to bring real Traytors only for Treaſons formerly made, or hereafter to be made and declared Treaſons by the Laws and Statutes of this Realm, to exemplary puniſhment in this Kingdome, for the peace and preſervation of the King, Realm, and the better execution of Juſtice (the very life of Laws) upon Delinquents only of the higheſt rank, for the moſt tranſcendent crimes of High Treaſons, of miſpriſion, or concealments of Treaſons, not for Felonies, or petit Treaſons: Which conſideration muſt neceſſarily induce us, for the common good, to give it the largeſt, fulleſt, and moſt equitable conſtraction that may be. Thus the Judges in former times have always interpreted it, as appears by Dyer, f. 132, 298. Cookes 7. Rep. Calvins Caſe, f. 23. a. his firſt Inſtitut. on Littleton, f. 26. his 3 Inſtit. p. 24. and in Orourkes caſe; wherein the Judges reſolved. 1. That the Statute of 1 Mar. Seſs. 1. repealing all former Treaſons, but thoſe within 25 E. 3. and of 1 & 2 Phil. and Mar. c. 10. enacting, That all Tryals hereafter to be had for any Treaſon, ſhall be had and uſed only according to the due courſe of the Common-law of this Realm, and not otherwiſe: exend not to the taking way of forem Treaſons or their tryals by this Law; And in Orourks caſe, they extended it by equity, beyond, and in ſome ſort againſt the letter of the Law it ſelf; for he ſtanding mute, and refuſing his Tryal, was thereupon condemned and executed for a Treaſon committed by him in Ireland, though the words of the Statute are, The Treaſon ſhall be enquired of, heard and determined before the Juſtices of the p. 17Kings Bench by good and lawfull men of the ſame Shire, where the ſaid Bench ſhall ſit; and the Act ſpeaks nothing at all of ſtanding mute. But this being a publique Law for the Common good, to bring Traytors only to their Tryal and juſt puniſhment, his refuſal to put himſelf upon his Tryal, was adjudged to be a determination and conviction of his Treaſons within the Act, elſe any Traytor by ſtanding mute might evade and fruſtrate this good Law. If then this Statute may thus be conſtrued by equity and dilated beyond the words to one who ſtands mute, for a Treaſon done in Ireland: much more may it be extended to a treaſon by an Iriſh-Peer, who is fully within the words and intent of it, as I have already manifeſted: And it would be a moſt pernicious gloſs which ſhould either elude or nullifie this beneficial publique Law.

7ly. It is clearly reſolved in and by our Parliaments, 13 E. 1. Proem. 13 E. 1. of Statute Merchants, 21 E. 3. rot. parl. n. 67. in the Statute of 5 H. 5. ch. 6. & in divers of our **1 H 7. 3. Co. 7. Rep. Calvins caſe, f. 16, 17, 23. Cooks Inſtit. 1. p. 35 Mr. St. Johns Argument at Law at Straffords Attainder, p. 61, 62.Law-books, That Acts of Parliaments made in England, wherein Ireland is either ſpecially named or generally and neceſſarily included, do bind thoſe in Ireland both Commoners or Peers alike. This therefore being ſuch a Law, extending and binding thoſe in Ireland as hath been reſolved in the forecited Caſes, it muſt certainly bind both the Peers and Commons of Ireland to a Tryal at this Bar for Treaſons done in Ireland, when the King and Kingdom deem it neceſſary or expedient to try them here in England.

8ly. The Proviſo in this Act for tryal of Treaſons done out of this Realm, by Peers within the ſame, extends only in poſitive terms to Peers of this Realm of England, becauſe they only are Peers within England, and ſo only tryable by their Peers, for forein Treaſons within the ſame, not to Peers of Ireland who are no Peers at all, nor tryable by their Peers within this Realm of England, Therefore this Proviſo extending only to Peers of this Realm, excludes all other forein Peers whether Iriſh or Scots, from any tryal by their Peer… p. 18in 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 **Mat. Parls An. 1230. Mr. Cambdens Ireland p. 114. to 140. The Annals of Ireland in Mr. Camb. Britan. p. 154, 156, 157, 158, 159, 160, 162, 163, 164, 165, 166, 167, 168, 869, 170 to 201.Hiſtorians, the Iriſh Annals, Statutes and our Records do teſtifie, ever ſince their conqueſt by K. Henry the 2d. and ſubmiſsion to the Kings of England, they have frequently (almoſt every year) in moſt Kings Reigns broken footh into private, petit, or general Rebellions and Inſurrections against the Engliſh (as I could inſtance in ſundry particulars) in which Rebellions I commonly find a Magwire, a Mao-Mahon, and Oneal, in the van, as Ring-leaders of all the rest, as they were in this laſt Rebellion, wherein moſt of the native Iriſh Peers and greateſt ſepts have been deeply engaged as principal Conſpiratours. Among other Rebellions I find in Story, and (which is more authentick) in the * 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. ….expreſs Statute made in the Parliament at Dublin in Ireland, anno 28 H. 8. c. 1. (but 7 years before this Law;) That Gerald Fitz Gerald Earl of Kyldare, the Earl of Deſmond, with divers other of the Iriſh Peers and Gentry conſpiring together, to extirpate the Engliſh, and deprive the King of his Soveraignty in Ireland, did ſend to the French King, the Emperour and Biſhop of Rome, for ayd and aſsiſtance for taking the ſame Land out of the Kings and Engliſh poſſeſsions; and thereupon with Banners diſplayed and great forces traytorouſly invaded the Kings dominions there, beſieged the City and Caſtle of Dublin, murdered the Kings good Subjects, who withſtood them, and reſiſted the Kings forces ſent from hence, &c. for which they were all by this Act attainted of High Treafon. The like general Rebellions have there broke forth ſundry times both before and ſince that Act; but none ſo generally, dangerouſly, bloodily, as this for which the Priſoner at the Bar ſtands endicted. The Treaſons therefore in Ireland being commonly ſo frequent, ſo general, (wherein moſt of the native Iriſh-Peers, and ſome of the Engliſh extraction too) were uſually chief Actors; there was very great reaſon, p. 19policie and juſtice too, why ſuch a Law as this ſhould be made, to reach to Ireland, and why in ſuch caſes as theſe, (Rebellions there being ſo univerſal, and moſt of the Iriſh Nobility, Conſpiratours, and parties in them) that theſe Peers and the chiefeſt Conſpiratours when ſurprized, ſhould be preſently ſent over from thence into England and tryed there for their Treaſons.

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

2ly. To avoid a **Upon which ground writs of Error lie in the Kings Bench in England, to reverſe erroneous judgments in the Courts and Parliaments of Ireland, Cooks 4 Inſt. p. 352. Mr. St. Johns Arment at Law againſt Strafford, p. 58, 61.fayler of Juſtice there, when by reaſon of the many Iriſh Peers there out in actual Rebellion, or by means of alliance of moſt other Peers to them, or of the flight of other thence, or the employment of them in ſervice, or places of truſt, or by reaſon of the interpoſition of the Rebels forces between them and the place of their Tryal chere, a competent number of indifferent Iriſh Peers for a ſpeedy Tryal cannot be aſſembled with ſafety or conveniency in Ireland to try a Rebellious Traytor by his Peers there; which obvious defects are all ſupplyed by this Act.

3ly. To prevent all partiality and injuſtice in ſuch Caſes, which might happen in Tryals by Peers in Ireland either by conſanguinity or alliance of the Peer to be tryed, to the Irish Peers who are to try him, or by confederacy of the Tryers in the ſame Treaſon with the party tryed; or through fear of miſchief or revenge upon the Tryers, Jury, Witneſſes, Judges, by the tryed Rebels Friends, Kindred and Confederates, in caſe he ſhould be condemned by them and executed (none being ſo vindictive and bloody in this kind as the Iriſh) Upon all which weighty reaſons, there was ſpecial cauſe, why both in juſtice, policy, and prudence, all Irish Peers, who by publick Rebellion commit High Treaſon in Ireland, ſhould be ſent over and tryed here by ordinarie Juries, to prevent the forenamed miſchiefs and fayler of Juſtice, and bring them to condign puniſhment. Now p. 20in this caſe here in judgement at the Bar, all theſe recited reaſons hold. For firſt, moſt of the Irish Peers were in actual Rebellion when the Priſoner was ſent over: moſt of the Engliſh and Proteſtant Irish Peets there, eimurthered or forced to flye thence, or ſo diſperſed and imployed, that they could not aſſemble a competent number of indifferent Peers to any place with conveniency to try him in Ireland. 2ly. The enemies and Irish Rebels were then Maſters of the field in moſt places, the Priſoner in danger to be reſcued by force from them, or by treachery likely for to eſcape out of their hands; and the times ſo troubleſome, as would admit no leaſure for ſuch a Tryal. 3ly. Moſt of the Iriſh were-allyed to Magwire, or ingaged with him in the ſelf-ſame Treaſon and Rebellion; and ſo neither in Law, Juſtice, or Prudence fit or indifferent perſons to paſs upon his Tryal in this Caſe of moſt publick concernment. 4ly. The Judges, Witneſſes and Peers that ſhould try him there, would have been in extreme perill of their lives, and of exemplary publick revenges from their Confederate-Rebels, who threatned revenge, as appears by Mac-Mahons Speech (Magwires Confederate) to the Juſtices upon his …irſt examination: I am now (ſaid he) in your hands, and you may do with me what you pleaſe: But I am ſure within few daies I ſhall be revenged: and by like words of revenge uſed by Owen Oneile in Flanders ſo ſoon as he heard Magwire was apprehended. 5ly. If he ſhould now be ſent back from hence into Ireland to be tryed, the Rebels and his party are there ſo predominant, that ſcarce any Witneſſes, nor Peers, nor Judges either would or durſt there to appear openlie againſt him; or elſe ſuch means would be made to delay or delude his Tryal and Execution, that by ſome device or other, there would queſtionleſs be a fayler of Juſtice againſt him. Therefore for all theſe weighty reaſons, he may and ought by all rules of Policy, Equity, and Juſtice to be arraigned and tryed only at this Bar by vertue of this Act, which ſo clearly extends unto him; That ſo the blood p. 21of **Dr. Jones others printed Relations concerning the Iriſh Rebellion.above one hundred and fifty thouſand innocent Proteſtants shed in Ireland in leſs than four months space by means of this Rebellion, which cryes loud to Heaven and Earth for revenge againſt this great Contriver and Arch-promo of it, may not go un-revenged in a way of publick Juſtice to our eternal infamie. I have quite done with the ſecond and main Queſtion, and proved an Irish Peer to be within the Statute, as well as an Irish Commoner.

I ſhall now proceed to the laſt point, ariſing from theQueſt. 3d. 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 Reaſons.

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

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

p. 223ly. Becauſe neither the Kings Bench, nor the Commiſsioners before whom the Statute limits theſe forein Treaſons to be tryed, nor yet the High Steward of England, (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. Therefore a Tryal by his Iriſh Peers here in England is an impoſſibility, 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 Juſtice, it requiring a long time to procure a full appearance of Peers thence: yea, a betraying of Ireland to the Rebels at this inſtant, to ſend for ſo many Proteſtant indifferent 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 Preſidents accord, and 15, E. 3. c. 2. 1 H. 4. 1. 10 E. 4. 6. p. 23b. 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 Commiſsioners, 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 within England, which by the rules of the Common law could neither inquire nor take notice of any Treaſons or matters 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 appurtenances 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 p. 24Shire 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 Commiſsioners 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 purſuance of this Act.

4ly. The manner how the Tryal, ſhall be is thus punctually ſpecified. In ſuch manner and form to all intents and purpoſes as if ſuch Treaſons, &c. had been done, perpetrated and committed within the ſame **See Dyer f. 31. 232, 298, 360. Cooks … Rep. f. 23. 11 Rep. f. 65.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 Peerage, 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 ſuborning 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 expreſlie 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 committ… here in Middleſex where the Kings Bench ſits. There neither may nor can be any other form of tryal for the Priſoner, nor in any other place, nor before any other Judges, nor by any other Jury, but ſuch as this Statute hath punc…e defi…ed; and than is by a Jurie of Middleſex, To all intents and purpoſes as if the Treaſons p. 25for 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 legallie 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 Endictment 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 Attorny, or Licenſes of Alienation, **21 H. 7. 7 Br Alienation 9. 30 E. 3. 17 Br. Alienation, 23 & 30.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 aforeſaid, by authority of this Act, that then after ſuch Endictment, 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 forein parts, are tryable here in England, within the verie bodie and purview of this Law. Therefore by the ſelfſame 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 p. 26out of this Act, and in better condition than Engliſh or any Iriſh Commoners, who are clearly adjudged within it.

2ly. That Tryal by Peers, is ſaved by this Proviſo onlie to the Peers of this Realm, which both in the Prologue and body of this Act is expreſly ſtiled this Realm of England. But the Peers of Ireland are no **Seldens tit. of Hon. p. 837, 840, 841.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. Therefore 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 forein 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 forein 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 other 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 **Cap. 29. See Cooks 2 inſt. p. 48, 49.Magna p. 27Charta and the Common law, being their birthright, becauſe they are actual Peers in all places of England, and may have Engliſh Peers enough at hand to trie them without 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 formerlie 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 hither 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 preſentlie 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 Statute of Magua Charta, cap. 29, (yea by King Johns Charter, and by the Common law long before, as Sir Edmund Cook proves in his Commentary upon it; and I have at large demonſtrated in my **Page 202 to 307.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 alwaies, 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 p. 28Cuſtome of England **See my plea for the Lords and Houſe of Peers. p. 202, 203 to 309. where this is largely proved, & p. 424.ſince Magna Charta, and long before, in caſes of Treaſon at the Kings ſute, to trie all English Peers in England only by their Peers, and ſuch a privilege as **3 Inſtit. f. 30.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 imagined for the Priſoner or anie other Peer of Ireland, within the purview or proviſo of this Act.

5ly. I ſhall adde further ex abundanti, to put this caſe out of all queſtion that I have made ſome curſorie ſearch into moſt of the Irish Annals, Hiſtories, Antiquities, Statutes, upon this occaſion and I ſhould have made a further inquiſition had I enjoyed anie vacant hours to do it) yet I cannot find ſo much as one Preſident of anie Irish Peer tried in Ireland for Treaſon, or anie other offence, by his Peers, before this Statute of 35 H. 8. and I believe the Priſoners Councel cannot (as indeed they neither did nor could) produce one example of ſuch a trial there, by Peers, before this Law, nor anie Act of Parliament in that Realm before this Statute concerning Treaſon, which provides, that Irish Peers, shall be tried by their Peers, there being no ſuch clauſe or leaſt hint thereof to be found in the Statutes of 18 H. 6. c. 2, 3. … H. 7. c. 13. 13 H. 8. c. 1. 28 H. 8. c. 1, 2, 7. which make ſundrie offences Treaſons, and extend to and mention Irish Lords and Rebels by name, as well as Commons: all and everie of theſe Acts leaving both the Irish Peers and Commoners to the ſelf-ſame rrial by a Jury. And ſince this Act I preſume they cannot produce above one preſident (and that a verie late one in caſe of Treaſon) where an p. 29Irish Peer was tried by his Peers, and it was the caſe of the L. Slane, much about 20 years ſince there tried and acquitted by his Peers in Ireland, as I am informed; before which time, it was then confeſſed by the Judges there they never heard or read of any one ſuch tryal uſed in Ireland; and ſince it we have heard of no other trial there by Peers, to ſecond it, but onlie of one Noble Lord (the Lord of Valentiae, Vicount Norris) there extrajudiciallie condemned by meet Martial-law in a Council of War, even in times of peace, by the Earl of Strafford An. dom. 1635. but not executed, nor tried by his Peers in a legal way: all their Peers formerlie being there either attainted by Act of Parliament, as is evident by the Irish Statutes of 28 H. 8. c. 1. 3 & 4 Ph. & Ma. c. 2. 11 El. c. 1. 13 Eliz. c. 6, 7. 27 Eliz. c. 1. 28 Eliz. c. 8, 9. 11 Jac. c. 4. 2 H. 6. rot. Parl. n. 8. or executed by Martial-law, as ſoon as apprehended in the Wars, or elſe ſlain in actual Rebellion, or pardoned upon their ſubmiſsions, without anie trial for their Treaſons by their Peers.

For Attainders of Irish Peers, and other Traitors and Rebels by Act of Parliament in Ireland; I find the Earl of Kildare with others attainted for a Treaſon and Rebellion (much like this for which the Priſoner ſtands here indicted) in a Parliament held at Dublin in Ireland, 28 H. 8. c. 1. Since this in 11 Eliz. c. 1. Shan O Neale, a bloodie deſperate Rebel, was attainted by Parliament after his death (being hewn in pieces by the Scots) and the name of Oneyle extinguiſhed, it being made High Treaſon for anie to aſſume that name; And I find a Mac-Mahon and Magwire forfeiting Lands among other Rebels in that Act, which largelie ſets forth the Queens Title to Ireland, 27 Eliz. ca. 1. James Euſtace, Viſcount of Baltinglas, was attainted of High Treaſon for a publique Rebellion againſt the Queen. 28 Eliz. cap. 9. I find John Brown and near one hundred more Iriſh-men by name attainted of High Treaſon by this Act for an open Rebellion. In 11 & 12 Iac. C. 4. I find Hugh Earl of Tyrone, Jury Earl of Tirconell, Caconaugh Magwire, Mac-Mahon, p. 30and above 20 more chief Irish Gentlemen, attainted of High Treaſon by this Act, for their open Rebellions. But for a trial of any Iriſh Peer for anie Treaſon in Ireland by his Peers, I can meet with no preſident as yet, but that of the Lord Slane onlie, and ſhall be glad to be informed of any other, to parallel it.

Indeed in the printed Statute of 2 Eliz. c. 1. made in Ireland, for reſtoring to the Crown the antient Juriſdiction over the State Eccleſiaſtical and Spiritual, and abolishing all forein power repugnant to the ſame; and in the Statute of 2 Elizabethae in Ireland cap. 6. intituled; An. Act whereby certain offences are made High Treaſon. I meet with theſe two clauſes concerning the trial of Irish Peers for Treaſons onlie within theſe Acts. And if it ſhall happen that anie Peer of this Realm ſhall fortune to be endicted of and for anie offence that is made Premunire or Treaſon by this Act, that then the ſame Peer or Peers ſo being indicted, ſhall be put to anſwer for everie ſuch Indictment before ſuch Peers of this Realm of English blood (not Irish mark it) as by the Lord Deputie, Governor or Governors of this Realm ſhall be by Commiſsion appointed under the Broad Seal, and to have his and their trial by his and their Peers; and to receive and have ſuch like judgement upon the ſame trial of his or their Peers, or making open confeſsion of the ſame offence or offences, as in other Caſes of Treaſon and Premunire hath been uſed, or is uſed in other Caſes of High Treaſon and miſpriſion of Treaſon; Which later clauſes, As in other caſes of Premunire and High Treaſon hath been uſed; And as is uſed in other caſes of High Treaſon, or miſpriſion of Treaſon, relate only unto thoſè words; to receive and have like judgement upon trial; and ſo onlie to the judgement and ſentence given in theſe new Treaſons and offences enacted by theſe Acts: not to the manner of trial by Peers, which is meerlie a new kind of trial never mentioned in any other Iriſh Acts before theſe, and reſtrained onlie to the new Treaſons and Premunires p. 31ſpecified in theſe Acts, in imitation of the **1 El. c. 1. 6▪Engliſh Statutes made in the ſelf-ſame Caſes; which provide, a Tryal by Peers for our English Peers; which was never heard of in any Acts of Parliament in Ireland till theſe, and never practiſed that I read of in that Realm, either before or ſince. To clear this up more fully, the Statute of 11 E. 3. c. 4. makes mention of Prelates, Earls, and Barons in Ireland, as well as in England: And the Statute of 4 H. 5. c. 6. prohibits, that any one of the Iriſh Nation should be choſen to be an Arch-Bishop, Abbot, or Prior within Ireland, becauſe many of them (againſt a former Act there made) had been made Arch-bishops, Bishops, Abbots, Priors, wherby they became Peers of the Parliament in the ſame Land, and brought with them Iriſh Servants to the Parliaments and Counſels there holden, whereby the privities of the Engliſhmen within the ſame Land have been and be daily diſcoverd 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 Parliaments holden within the ſaid Realm, under pain of forfeiting 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 established, 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 impoverishment of the ſaid Lords, for as much as their livings are diminished and waſted by war; That no Lord of Parliament shall be amerced from thence forward in the ſaid pleas otherwiſe than other perſons, notwithstanding any Law made before to the contrary. The amerciaments therefore p. 32of 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 accepted, received, confirmed, and uſed as a Law in Ireland till the Statute of 10 H. 7. and the words thereof (if it be confirmed by that Act) are moſt clear in it, That all Statutes late made, &c. from henceforth be deemed, 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 Parliament 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 advantage, 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 unanimous conſent of all his Lieges, and confirmed the ſame to all his Spiritual and Temporal Lords and faithfull Subjects 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. **Par. 1 H. 3. m. 3.Rex, Archiepiſcopis, Epiſcopis, Abbatibus, Comitibus, Baronibus, Militibus, et libere tenentibus et omnibus fidelibus ſuis per Hiberniam conſtitutis, Salutem. Fidelitatem veſtram in Domino commendantes, quam Domino patri noſtro ſemper exhibuiſtis, et Nobis eſtis diebus noſtris exhibiti; volumus, quod in ſignum fidelitatis veſtrae tàm prae…lare, …am inſigniter Libertatibus Regno noſtro Angliae a patre noſtro et nobis conceſsis, p. 33de 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 ſigillo Domini Gu…onis Apoſtolicae ſedis Legati, et fidelifsimi noſtri Willielmi Mareſcalli **King Hen. being then a Minor and under his Regiment.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 **Mat. Paris Hiſt. Angl. p. 278.c. owned 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 publiſhed openly in Ireland by his Writ, **Clauſ. 12 H. 3. pars 1. m. 8.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 & conſuetudinibus Angliae obſervandis in Hibernia. Et praecipiatis eis ex parte noſtra, quod leges illas et conſuetudines in Carta praedicta contentas de caetero firmiter teneant & obſervent. Hoc idem per ſingulos Comiratus Hiberniae clamari faciatis et teneri Prohibentes firmiter ex parte noſtra, et ſuper forisfacturam noſtram, ne quis contra hoc mandatum noſtrum venire praeſumat, eo excepto quod non de morte nec de catallis 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 Hiberniae, 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. p. 34& in 18 H. 3. Rot, pat. m. 17. n. 21. There is mantion 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 Cuſtoms of England were eſtabliſhed in Ireland by this **Rot. Pat. 30 H. 3. m. 3. Sir Iohn Davis Iriſh Rep. p. 37. Cooks 4 Inſtit. p. 350. 1 Inſtit. f. 141. b. Mr. St. Iohns Argument at Straffords Attainder. p. 55.Patent. Quia pro communi utilitate terrae Hiberniae, & pro unitats terrarum Rex vul, et de Communi Conſilio Regnt proviſum eſt, quod omnes Leges et conſuetudines quae in regno Angliae tenentur in Hibernia teneantur, et eadem terra eiſdem legibus ſubjaceat, et per eaſdem regatur, 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 faciendis inter duas villas, exceptis B…roniis: Et ideo vobis mandamus et firmiter praecipimus, quod haec it a fieri et firmiter teneri **Nota.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 confirmation and Cuſtomes of England ſetled in Ireland, by aſſent of the Prelates and great men thereof: Rex Theſaurario et Baronibus de Scaccario Dublin ſalutem. Quia p. 35de aſſenſu et voſuntate Praeſatorum & Magnatum terrae Hiberniae dudum fuit proviſum et conceſſum, quod eiſdem legibus uterentur in terra illa quibus homines regni noſtri utuntur in regno illo; et quod eadem Brevia quoad terras & tenementa recuperanda currerent in terra illa, quae currunt in regno praedicto, ſicut noſtis: Et dicta proviſio & conceſsio omnibus retroactis temporibus fuerit obtenta & approbata; miramur quamplurimum, quod ſicut ex inſinua…ione venerabilis patris Thomae Liſmor. Epiſcopi accepimus, emanare permiſiſtis ex Cancellaria Edwardi filii noſtri in Hibernia, contra conſuetud inem optentam & formam Brevium in regno noſtro ufitatam, Breve ſubſcriptum contra praefatum Epiſcopum in hac verba. E. illuſtris Regis Angliae primogenitus Vic. Waterford ſalutem. Precipe Thomae Liſmor. Epiſcopo, quod juſte & ſine dilatione reddat Waltero: Epiſcopo Waterford, Maneria de Archmordeglan, Kilmordri & Motha cum pertinentiis, quae clamat eſſe jus Eccleſiae ſuae, & in quae idem Epiſcopus non habet ingreſſum 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 Robertum quondam Waterford. Epiſcopum, praedeceſſorem Epiſcopi poſt ultimum reditum, &c. Quia vero dictum Breve tam diſſonum eſt, et contra leges & conſuetudines in Regno noſtro optentas, & formas brevium noſtrorum ibidem approbatas, praeſertim cum Breve ingreſſus non tranſeat tertiam perſonam, nec ratione intruſionis 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 praedeceſſori ſui in hiis de quibus idem praedeceſſor fuit ſeiſitus in Dominico ſuo ut de feodo die quo obiit: Vobis mandamus, quod ſi…dictum Breve a Cancellaria praedicta in forma praedicta emanaverit, executionem ejuſdem Brevis ſuperſedeatis; revocantes ſine dilatione quicquid per p. 36idem 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. parte 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 Ireland, and the Iriſh therein dwelling; but only to ſuch parts of Ireland as were reduced and divided into Counties, 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 obedience 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, (amounting 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 indenization 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 Hibernienſes. Et ideo vobis mandamns, quod ſi it a eſt, …c non p. 37permittas ipſos Mamorth & Rodericum repelli… quin poſſint▪ 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 Ibernenſes 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 benefit 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. Ʋol…ntes Giraldo fil. Johannis Hibernico, gratiam facere ſpecialem, 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, graciam facere ſpecialem, concedimus pro nobis & haereaibus noſtris, quod eadem Iſamaia & Matilda ad totam vitam ſuam hanc habeant libertatem, videlicit, quod ipſae de caetero in Hibernia p. 38utantur legibus Anglicanis: & fi…miter inhibemus, 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. ſalutem. 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 caetero 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 Nevien, Juſticiario ſuo Hiberniae, ſalutem. Exparte quorundam hominnm de Hibernia extitit ſupplicatum Ut per ſtatutum inde faciendum concedere velimus, quod omnes Hibernici qui voluerint legibus utantur Anglicanis, it a quod neceſſe non habeant ſuper has chartas aliquas a nobis impetrare. Nos igitur certior ari volentes, ſi ſine alieno prae…d…cio praemiſſis annuer …valeamus, vobis mandamus▪ quod voluntatem magnatum terrae illius in proximo Parliamento ibidem 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 England, 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 indenization enabled to enjoy the benefit of them; who were p. 39but 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 frequently 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 eſtabliſhed 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 Iriſhry, 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 Patents 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. p. 40No 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 queſtion to the Queens councel, If an Earl or Lord of Ireland, who commits Treaſon in Ireland by rebellion, ſhall be arraigned and put to his trial in England for this offence by the Statutes of 26 H. 8. c. 13. 32 H. 8. c. 4. 35 H. 8. 2 or 3 E. 6. And it was held by Wrey, Dyer and Gerrard Attorney General, That he could not. Mark now their reaſons; for he cannot have his trial here by his Peers. (which is a full reſolution in point of my third Queſtion, agreeing with what I have endeavoured with Arguments to prove, and is an unqueſtionable Truth, which I ſubmit to:) Then it follows, Nor can he be tried here by any Jury of twelve; (mark the reaſon, Not becauſe he is a Peer of Ireland, and therefore ought to be tried by his Peers, and not by a Jury; for that had been full againſt me, p. 41and it is now the only knot in que…tion) but becauſe he is not a ſubject of England, but of Ireland, and therefore he ſhall be tried there: which reaſon (extending as well to an Iriſh Commoner as Peer) hath been ſince adjudged directly falſe, abſurd, and againſt the Law, both in Orourks Caſe, and in Sir John Parrets Caſe, and ſince in Mac-mahons Caſe: and Sir Ed. Cook informs us in his Inſtitutes on Lit. f. 261, that Wray himſelf in Orourks Caſe (where this Opinion of his was vouched) did openly diſclaim, that ever he delivered any ſuch opinion as this, but ever held the contrary to it; and ſo it is a miſreport in this particular: After which the Book concludes thus, And it is ſaid, that the uſage (to wit in Ireland) to attaint a Peer, Is by Parliament and not by Peers; which comes full in terminis to what I have laſt inſiſted on, and I am certain cannot be diſproved. Wherefore this authority in Dyer, as to all that is truth and Law in it, is wholly for me in the reaſon of the Law; and againſt me only in what hath been ſince adjudged to be no Law. I ſhall cloſe up all with a ſtronger Caſe and authoritie than this in queſtion, which will over-rule this caſe, and that was in **Mr. St. Iohns argument at Straffords Attainder, p. 37, 53.Trinity Term An. 33 H. 8. in the Kings Bench. Edward Lord Gray immediatly before having been Lord Deputie in Ireland, was endicted, arraigned, and attainted of High Treaſon by an ordinary Jurie in the Kings Bench in England, for letting divers Rebels out of the Caſtle of Dublin, and diſcharging Iriſh hoſtages and pledges that had been given for the ſecuring the peace of Ireland; and for not punishing one who ſaid, the King was an Heretick, whileſt he was Lord Deputy in Ireland: For theſe Treaſons (all acted and committed in Ireland) through an Engliſh Peer, he was tried by an ordinary Jury in England by the Statute of 26 H. 8. c. 13. ratified in Ireland by 28 H. 8. c. 7. forecited; which ſecluded him from his tryal by Peers, being not ſaved by theſe Acts. Therefore a Fortiori ſhall theſe Statutes and this of 35 H 8. c. 2. & 5 E. 6. cap. 1. made ſince his judgement, exclude this Iriſh Lord being no English Peer, from any tryal by his Peers.

p. 42Finally, the Prologue of this Statute coupled with the body thereof puts a period to this queſtion beyond all doubt or diſpute. For as much as ſome doubts and queſtions have been moved, that certain kinds of Treaſons &c. committed out of the Kings Majesties Realm of England, cannot, nor may by the Common laws of this Realm be inquired, heard and determined within this his ſaid Realm of England. For a plain remedy, order, and declaration therein to be had and made, be it enacted, &c. that all manner of Treaſons, &c. committed by any perſon o… perſons …out of this Realm of England ſhall be from henceforth inquired of, heard, and determined by the Kings Iuſtices of his Bench, &c. by good and lawfull men of the ſame Shire, where the ſaid Bench ſhall ſit and be kept, in like manner and form to all intents and purpoſes as if ſuch Treaſons had been done within the ſame Shire, where they shall be ſo inquired of, heard and determined. The ſole ſcope, end, purpoſe then of the King and Parliament in this Act, being to take away all doubts and questions formerly moved in point of Law, touching the tryal of treaſons done out of the Realm, before the Kings Juſtices of his Bench and Commiſsioners in England by a Iury, and to make and enact a plain remedy and declaration therein for the future, in manner aforeſaid, I humbly apprehend, there can be no doubt nor question now moved; whether this Priſoner ought to be tryed by his Peers in Ireland or England for this his moſt horrid Treaſon committed out of the Realm of England, ſince this Statute ſo clearly declares and reſolves the contrary in moſt plaine and poſitive words. The rather, becauſe the Kings Patent creating him Baron of Ineskellin under the great Seal of Ireland, maketh him only a Peer in Ireland, and gives him only a Place and Voyce amongHere p. 2. the Peers and Nobles of Ireland, in the Parliaments of Ireland, not in England, as he ſets forth in his own **Rot. pat. 8 E. 4. in Cancel. Hiberniae; Mr. Seldens titles of Honor. Booke 2. c. 6. … 841.Plea in preciſe terms; as the Patent made by King Edward the 4th. to Robert Bold created him Baron of Rathtauth in Ireland, and conſtituted him, Unum Dominum & Baronem omnium & ſingulorum Parliamentorum p. 43& magnorum Conciliorum noſtrorum in terra noſtra Hiberniae tenendorum: habendum, tenendum una cum ſtilo, titulo, nomine, honore, loco et ſeſsione inde ſibi et haeredibus ſuis maſculis imperpetuum. And as King Henry 8. made Thomas * Pat. 21 H. 8. pars 2. 8 Decemb.Viſcount Rochford by the ſelf-ſame Patent both Earl of Wiltſhire, infra regnum noſtrum Angliae; and Earl of Ormond in terra et dominio noſtro Hiberniae only, with ſeveral clauſes of inveſtitures; ſeveral Habendums, and ſeveral Creation-monies for each Title and Kingdom: And as the Patents of all other Iriſh Earls, Viſcounts, Lords, and Barons in Ireland, create and make them Peers only in Ireland, not in England, as **Titles of Honor, Book 2. c. 6, 7.learned Mr. Selden informs us, and their very Patents reſolve in terminis. And therefore quite exclude the Priſoner and all other Peers of Ireland from any tryal by their Peers in England, either by the Proviſo or body of this Statute, or their Patents which are point-blanck againſt it.

And now, I hope, I have fully made good the point in queſtion, with all the ſeveral branches of it, That this Act extends to Treaſon committed in 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 meetObject. 1. with in the beginning of this Priſoners plea; The Statute of Magna Charta, c. 29. That no Freeman ſhall be taken or impriſoned or diſſeiſed of his Freehold, &c. nor will we paſs upon …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.

p. 44To which I ſhall give theſe ſatisfactory Anſwers.

1. That the Statute of Magna Charta in its originalAnſw. creation and confirmation, was made, granted to the Archbiſhops, Biſhops, Abbots, Priors, Earls, Barons, Towns, and to all the Free-men of this our Realm of England, and to them only, to be kept in our Kingdom of England for ever, whence it is intituled, The great Charter of the Liberties of England, as the prologue of it reſolves. The firſt Chapter thereof is peculiar to the Church of England, viz. That the Church of England shall be free and enjoy all her rights and liberties inviolable. We have alſo granted to our Freemen of our Realm of England theſe liberties under-written, to have and to hold to them and their Heirs, of us and our heirs for ever: So cap. 12. The City of London shall have all her old Liberties and Cuſtoms, and all other Cities, Boroughs, Towns, and the Barons of the Cinqueports, and all other ports ſhall have all their Liberties and their Cuſtomes. Cap. 35. One meaſure of wine, &c. shall be throughout our Realm. Ch. 32. All Merchants (if they were not openly prohibited before) ſhall have ſafe and ſure conduct to depart out of England, to come into England, and to tarry in England, as well by Land as by water, &c. In Cap. 23. All Weeres ſhall be utterly put down between Thames and Medway, and throughout all England: and the concluſion, C. 37. concerns the Realm of England, and Englishmen only. Neither doth the**Here p. 32, 33, 34. Charter of King John, nor that of the 11 of H, 3. nor 18 H. 3. m. 17. nu. 21. nor of 30 H. 3. nor yet of 13 E. 1. cited in Co. 4 Inſtitutes, p. 349, and 350. and in his Inſtitut. on Littleton, f. 141. eſtabliſh Mag. Char. at leaſt in relation to all the Native Irish but English alone, it being made particularly for the Realm of England and English men: and therefore the Priſoner pleads, it was ſetled there only as a Law to be received and put in uſe (in reſpect of the Irish then living only in the English pale and the Kings loyal Subjects, not of any Irish enemies in hoſtility) by the Statute of 10 H. 7. c. 22. but not before: and ſo p. 45is Sir Ed. Cooks opinion in expreſs terms in his 4 Inſtitut. pag. 35….

By which it is moſt clear, That from King Henry the ſeconds dayes, (who firſt ſubdued Ireland, An. 1171.) there were no trials in Ireland, of any Engliſh or Iriſh Peers Subjects to our Kings, for Treaſon by their Iriſh Peers by vertue of Magna Charta, till after the Statute of 10 H. 7. which was made but forty ſix yeers before the Statute of 35 H. 8. between which, and this later Law we read not of one trial of any Iriſh Peer for treaſon there by his Peers, nor yet ſince, that I can find (but only one of late by 2 El. c. 1, 6.) till this very day: By which it is moſt apparent, that this tryal by Peers in Ireland a privilege now inficted on) was never actually claimed or enjoyed by any Peer of Ireland, eſpecially by thoſe in antient emnity and rebellion againſt our Kings, ſtiled **Here p. 3▪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 p. 46word LATE in this Act, hath the ſence of BEFORE, and ſhall not be taken in its proper ſence or meaning: ſo that the Act by this conſtruction, againſt the ſence of the words, extends to Magna Charta, and to all the Acts of Parliament made in England, not only late, but even long before; yea, many hundred yeers before this Act; which for my part (under the favour of thoſe Reverend Judges who thus interpret it) I hold ſtill diſputeable, yea, erronious, and no Law at all, eſpecially for theſe two Reaſons.

1. Becauſe if any Law introduced and confirmed Magna Charta and the other Laws of England in Ireland, it is the Statute of 8 E. 4. c. 1. which confirms the Statute made in England in the Parliament of 6 R. 2. ch. 6. concerning Rapes, of which there was ſome doubt made whether it extended to Ireland? and then concludes thus: In avoyding of all inconvenience that might happen, becauſe of the ambiguity of the ſaid Statute, Be it enacted, confirmed and ratified by authority of the ſaid Parliament, that the ſaid Statute be adjudged and approved in force and ſtrength, and may be of force in this Land, from the 6th day of March laſt paſt; and that from henceforth, the ſaid Act, and all other Statutes and Acts made by Authority of Parliament within the Realm of England, be ratified, confirmed and adjudged by 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 p. 47the Priſoner, being no Law of this Kingdom and not binding here.

2. Becauſe the forementioned Charters of **Here p. 32, 33, 34.6 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, import. 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 Ireland, yet it reacheth not to the trying of Iriſh Peers by their Peers now in queſtion, for theſe enſuing Reaſons.

1. Becauſe trial of Iriſh Peers, by their Peers in Ireland was never uſed nor heard of, nor is there any one inſtance 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, **See Cook ibid.Sect. 108. That no action can be brought upon 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 matter, it will be intended that ſometime it would have been put in ure. The like ſhall I ſay concerning Magna 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 p. 48would 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 peculiar Priviledge of our Engliſh Peers, both by the common, 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 **Co. 2 Inſtit. Proem.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. **Page 30.already cited, which create a ſpecial form of tryal of Iriſh Peers, not by their Peers there of Irish blood, but by their Peers of that Realm of the English blood alone, only in the new Treaſons and Premunires ſpecified in and created by thoſe two Acts; but in no other Treaſons: Which clauſes had been merely nugatory and ſuperfluous had the Tryal of Irish Peers in Ireland by Irish Peers been the birth-right and known priprivilege of Irish Peers, either by the Common law there uſed, or by the Cuſtome of Ireland, or by Magna Charta, with this Act of 10 H. 7. confirming it; It therefore never being the intent of this Act, nor of Magna Charta, to grant any new privilege or form of Tryal to Irish Peers, which they never formerly enjoyed, neither the one nor other will ſufficiently ſupport the Priſoſoners 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 anſwer to this objection, ſince Cuſtome is the beſt Expoſiter of all p. 49antient 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 Rebellion, and in ſundry other forementioned reſpects) repeals 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 England, (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 particularly 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, & p. 50makes 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 committed 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 largly made and as amply granted to the meaneſt Freeman as to the greateſt Peers of England and Ireland, as the Prologue and 9, 14, 15 19, 21, 22, 26, 27, 29▪ Chapters thereof 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 perpetrated by them in Ireland, and ſubject them to a trial by an ordinary Engliſh Jury at this Bar, or before Commiſſioners in any County of England, as I have already proved; which Jury here are in truth Peers to all Iriſh Peers, being here no Peers at all, but onelyonly Commoners.

If it be objected, That this Law of 35 H. 8. chap. 2.Object. p. 51cannot abrogate Magna Charta; all Acts and Iudgements 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, thatAnſw. 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, ſubſequent Parliaments having alwaies had power to control, alter, abrogate precedent Acts; yea the very Commonlaw and Great Charter it ſelf, when inconvenient or defective, 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 miſchievous or unjuſt) bind not at all, and are merely idle; For …odem 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 **See Horns M…r…our of Juſtices, p. 314, 315.repealed in ſome particulars, in and by our Parliaments ſince its making, by ſubſequent Acts both by preſcribing creating new impriſonments, 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 Caſes p. 52of 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 **See an exact Abrigement of the Records p. 372, 379, 380.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 Common-law, as to the point and place of trying forein Treaſons in England it ſelf, as to Engliſh, Peers and Commoners, 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 implicitly 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 objection, wherein I have been over tedious, but ſhall recompence it with brevity in the remainder.

The ſecond Objection (a meer branch of the former)Object. 2. is this.

p. 53That if Irish Peers ſhould be tryable by an ordinary JuryArgument 2. 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 tryalAnſwer. by Peers was never deemed, claimed, nor enjoyed in Ireland, as a privilege by Iriſh Peers, nor ever uſed or practiſed in that land before this Act, & but once claimed ſince, and that in Ireland. Therefore it cannot be intended that this Statute or the makers of it ever imagined to ſave this manner of Tryal by Peers only to Irish Peers, which they never enjoyed, nor ſo much as once claimed or poſſeſſed before the making of it. Neither can it be any injury or injuſtice to deprive them of that now they never heretofore claimed, uſed, enjoyed, as their privilege, and birth-right, being not indubitably ſetled on them by any Law that I have ſeen; but only in ſome ſpecial Caſes of Treaſon ſince 35 H. 8. wherof this is none by the late Acts of 2 El. z. c. 1. & 6. when as this privilege is taken from them, not by a bare ſtrained expoſition, or implication, but by this expreſs Act of Parliament made long ſince for the Common good and ſafety of England and Ireland, not yet repealed.

2ly. This Objection with as great or greater ſtrength colour, might be made for all the Commons of Ireland (far more numerous and conſiderable than their Peers) they being deprived by it of tryals by Irish Juries in their native Country, than for Irish Peers alone; which Tryal here againſt Irish Commons was never of late excepted againſt, this Law having been ſo often adjudged to reach to them; Therefore there is no colour, to exempt Irish Peers out of it.

3ly. This pretended prejudice to Irish Peers in point of Tryal by their Peers, is ſoly in caſes of High Treaſons, p. 54or Miſpriſion and concealments of it, and no other, the Statute extending to no crimes, but theſe alone. Therefore the miſchief is not great in general; and no Irish Peers (I preſume) but ſuch who have trayterous or diſloyal hearts, will deem it a diſparagement or injuſtice to them, to be ſecluded of a Tryal by their Peers only in theſe Caſes of High Treaſon: And if others who are profeſſed Rebels and Traytors murmur at it (as none elſe will) we need not much regard it, nor prefer their pretended privilege, before our own Kings, Kingdomes, Religions, yea Irelands ſafety and wellfare, in bringing them to a ſpeedy tryal and condign puniſhments for their Treaſons here in England by vertue of this Law.

3ly. Even by the very Common law before this Act, Treaſons committed in Ireland by Peers or Commons, were tryable before the Marſhall of England, in England it ſelf, as is evident by the Parliament Roll of 2 H. 6. …. 9. **See an exact Abridgement p. 567, 568. Cooks 4 Inſtit. p. 123, 124.Where Iohn Lord Talbot, being the Kings Lieutenant in Ireland, accuſed James Bottiler Earl of Ormond, of certain Treaſons (there particularly recited) by him committed in Ireland, before John Duke of Bedford Conſtable of England, in his Marſhals Court; Which accuſations the King, by the advice of his Parliament, did diſcharge and aboliſh, to appeaſe the differences between them: Upon which elſe he might have been proceeded againſt, though an Iriſh Peer, without any tryal by his Peers (See Cooks 4 Inſtit, p. 123, 124.) Therefore a fortiori this ſpecial Act of Parliament may ſubject Iriſh Peers to a tryal by a ſubſtantial Engliſh Jury in England for Treaſons done in Ireland, ſince tryable for them here before its making even in the Marſhals Court.

5ly. This Statute doth not ſimply take away the tryal of all Treaſons committed in Ireland, from thence; only it makes them all tryable here, when the King▪ State and Parliament ſhall ſee juſt cauſe or occaſion for tryal of them here, as now they do in theſe times of general rebellion there, when the Rebels are ſo predominant, and the times ſuch, that no ſafe, fair, or indifferent tryal of this Traytor can be there had or expected. And ſeeing p. 55the Law and common reaſon will inform every man, that the King and State will never be at the coſt and trouble to ſend for Traytors and Witneſſes out of Ireland to try them here, but upon a moſt juſt occaſion and urgent neceſſity, to prevent either a faiter or delay of Juſtice in caſe of horrid Treaſons and Rebellions; And no Iriſh Peer who hath any loyalty in his heart, or reaſon in his head, will deem it a diſhonor, or prejudice to the whole Iriſh Peerage in general, or the trayterous Peers ſent hither to be tryed in particular, to be outed of a tryal by Iriſh Peers in ſuch Caſes of neceſsity, and expediency only; it being better and ſafer for this Realm and Ireland too, that theſe native Iriſh Peers, who have been proved to break out into actual Rebellion in all ages (as this Priſoners Anceſtors have done as much or more than any, his **Cambdens Ireland, p. 111, 120, 121, 199.Grandfather being the firſt man that broke forth in Tyrones Rebellion) ſhould be ſubject to tryals for the ſame by ordinary Engliſh Juries here, and outed of their Peerage, then that ſuch Arch-Traytors and Rebels as the Priſoner and his Confederates are, (guilty of the effuſion of many thouſands of Proteſtants and Engliſh mens bloods) ſhould eſcape uncondemned, or be executed by Martial law. And our Law in this Caſe, which concerns the ſafety of 2 Kingdoms at once, will rather ſuffer a particular miſchief, eſpecially to rebellious Peers, than a general inconvenience to both Realms, and all loyal Subjects in both.

6ly. Though the tryal of all Engliſh and Iriſh Peers by a legal indictment, preſentment, and Jury of their Peers alone, and not by Martial-law or Commiſsioners themſelves alone, be an eſſential fundamental Right and Privilege for the ſecuritie of their lives and eſtates, which our Parliaments in all ages have been very curious to preſerve, and not to alter; yet the Tryal of Peers by Peers alone (not by a Jury of other Freemen) for the moſt part (if rightly conſidered) is rather a meer punctilio of honor, than matter of real privilege or benefit to Peers; and by intendment of Law and common experienc, a fair and legal tryal by the oaths of 12 honeſt, ſubſtantial, indifferent Engliſh Gentlemen or Freeholders, p. 56to whom the Priſoner may take all **See Stamf. l. 3. c. 7. 7 H. 7. 12. Brook Challenge 217. Fitzh. Stathams and Brooks Abridgements, and Aſhes Table, title Challenge,ſorts of lawfull challenges by Law, which ſhall be allowed, if there be any juſt cauſe of ſuſpition of partiality, injuſtice, conſanguinity, &c. beſides his peremptory challenge of 35 Jurors without cauſe (which challenges **Cooks 3 Inſtitutes, p. 27.Cook affirms, ſhall not be admitted or granted in caſe of tryal by Peers) it being the uſual antient aaSee Fitzh. Brook, Aſh. Title Jurors, Tryal, Enqueſt.tryal in all Caſes between the King and ordinary Subjects, between man and man, Peers and Commoners, both in all civil and criminal cauſes whatſoever, it is and will be every way as juſt, as beneficial to a Peer in point of Law as a Tryal by twelve Peers, upon their Honours only, bb1 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.without oath. And the exchange only of the form of Tryal, by twelve indifferent Engliſh Gentlemen of quallity, upon their oaths, for twelve Iriſh Peers of Engliſh blood, nominated and appointed only by the King, or his cc2 Eliz. c. 1. & 6.Lord Deputy of Ireland, upon their Honours without oath, in this caſe of neceſſity, can be no injuſtice, injury, or prejudice to the Iriſh Peers in general, nor yet to the Priſoner in particular: The rather, if we conſider,

Firſt, That every Indictment by which an Engliſh or Iriſh Peer is or can be tryed, muſt firſt be proved before a grand Jury of Commons (as this very Statute preſcribes) and found by them upon Oath, not by a Jurie of Peers: which is a kind of preparatory trial of a Peer by Jury, without which there can be no proper tryal by Peers, as is reſolved Cooks 3 Inſtitutes, p. 28, 30, 31, 32. & 1 H 4. 1.

2ly. That in Caſes of Appeal brought by a common perſon …or murder, rape, robberie, or the like, and likewiſe in caſe of a Premunire againſt an Engliſh Peer, where his life is not brought into queſtion; he ſhall not be tried by his Peers, but by an ordinary Jury as other men; Trial of Peers by Peers being onlie in caſes of Indictments for Treaſons or Felonies at the Kings ſute, and no other, as is clear by the Statute of Magna Charta, c. 29. Neither will we paſs upon him, or condemn him, without the lawfull judgement of his Peers, &c. the words onlie p. 57of the King not of the Commons; In this our Books are expreſs in point, all cited in Sir Edw. Cooks 2 Inſtitutes on this verie Chapter of Magna Charta cap. 29. in his pleas of the Crown, or 3 Inſtit. c. 2. p. 30, 31. & 20 Ed. 4. 6. b. Now this caſe in queſtion concerning not onlie the King, but the whole Kingdome of England and Ireland, and thoſe manie thouſands of Common perſons whoſe innocent blood hath been, ſhed in Ireland by him and his Confederate Rebels crying out for vengeance and Juſtice againſt him without delay; he may thereupon be juſtly tried by an ordinary Jurie of Commons, as well as in Caſe of an Appeal of murder brought by a common perſon.

3ly. Peers of Parliament, even of this Realm, not by inherent Nobility and Birth right, but only in right of their Baronies, which they hold in auter Droit, as Arch-Biſhops, Bishops, Abbots, Priors and the like, ſhall not be tried by their Peers for treaſons or felonies at the Kings ſute, but onlie by an ordinary Jurie, as Archbishop Scroope of York, Cramner Arch-bishop of Canterbury, **Godwins Catalogue of Biſhops, p. 605, 606, 232, 233.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 birthright, but in right of their Churches, then a fortiori Iriſh Peers ſhall be deprived of their Peerage by this ſpecial Act, who are not within the letter or intent of Magna Charta, never made for them, but for Engliſh p. 58Noble blood. And if it be neither injuſtice, nor injurie, nor inconvenience, to deprive theſe Eccleſiaſtical English Peers of a trial by Peers in caſes of Treaſon or felony at the Kings ſute though within the letter of Magna Charta, and to try them by an indifferent Jurie of Freeholders; It cannot be reputed any injuſtice, injury, rejudice, or inconvenience at all now to out this Iriſh Peer of his Peerage here, where he is no native Peer, for ſuch an horrid Treaſon as this.

4ly. Iriſh Peers are no Peers at all in England, upon which account and reaſon if they commit Treaſon herein they ſhall be tried by an ordinarie Jury; Therefore to try them onlie by Freeholders, no… by Peers in England, can be no injurie nor diſhonour to their Peerage, unleſs it were in Ireland where they are Peers; and yet have been ſeldome or never hitherto tried there by their Peers, as I have proved.

5ly. The verie Statutes of Ireland it ſelf made by the Peers and Commons thereof to prevent manie miſchiefs by Theeves, Murderers, and Rebells in that Realm, do deprive both the Lords & Commons there of any legal trial at all both for their lives and eſtates too, witneſs the Statutes of 28 H. 6. c. 1. 3 & 5 E. 4. c. 2. & expoſe them to the judgement, ſlaughter, plunder of particular men in ſome caſes, authorizing all manner of men that find any theeves robbing, breaking up houſes, by day or night, or going or comming to rob or ſteal, having no faithfull man of good name and fame in their company, in Engliſh apparel, to take and kill thoſe **Though Peers.Theeves, and cut off their heads, (without endictment or Jury) and ſeiſe their Goods, without any impeachment of the King, his Heirs, Officers, or any other, for which they are to receive a ſum of mony from every Plow-land, and perſon of eſtate within the Barony where they shall ſlay and behead ſuch Theeves. And 25 H. 6. c. 4 & 5. If any English men shall have any hair or beard upon his upper lip like the Irish, it shall be lawfull for every man to take their Goods, as Irish Enemies, and to ranſome them as Enemies; And if any p. 59Irish Enemy received to the Kings allegiance shall afterwards rob, ſpoyl, and deſtroy the Kings Liege people, it shall be lawfull for every Liege-man that may meet with him afterwards, to do with him, and his Goods and Chattels as to Enemies who were never Liege, and to ranſome them at their free will, without any impeachment of the Law. And Ch. 6. If any men, except Knights & Prelates shall wear gilded Bridle, Peſtrels, or other harneys, that it shall be lawfull to every man that will, to take the ſaid man his horſe and harneſſe, and to poſſeſs the ſame as his own Goods, without endictment or legal tryal. All which would be monſtrous in England. Therfore it is much more legal and juſt, and no injurie at all to try the Priſoner, an Arch-Rebel in England, in this time of war and combuſtion in Ireland, for his Treaſons there perpetrated, by an indifferent, honeſt, lawfull English Jury, upon an endictment found by the grand Inqueſt, than thus to kill, behead ſuch Malefactors in Ireland, and ſeiſe both them and their Goods as Enemies, and ranſome them at pleaſure without Tryal, Jury, or Endictment, and not only to indemnifie but reward thoſe that do it, by Laws there made by the Engliſh, and Irish themſelves: which will anſwer all Objections, and wipe off the leaſt ſhadow of Injuſtice in this Caſe, and tryal.

The third Objection is this, That if Irish Peers had been within this Law, there being ſo many rebellionsObject. 3. in Ireland ſince its enacting, we should have had ſome Preſidents of Irish Peers here tried by Jurie, ere this; But there is no ſuch Preſident extant; therefore certainlie Irish Peers for Treaſons perpetrated in Ireland are out of this Act.

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

p. 601. Becauſe moſt of the Irish Peers▪ who have been in actual rebellion ſince this Law, were **See the Annals of Ireland, and Mr. Camb. in Ireland, p. 121 to 200.either actually ſlain in the wars, or fled the Kingdom, or elſe were received into grace, and pardoned before tryal upon their ſubmiſsions; or elſe attainted and executed by Act of Parliament, or by Martial-law in Ireland. And by theſe means onlie avoided their Trials here.

2ly. Becauſe ſome Irish Rebels, as great as Magwire, or anie of their Peers in power and eſtate, have been heretofore tried and executed for Treaſon in England by vertue of this Law; though brought over hither from Ireland againſt their wills; as Orourke and Sir John Parrot of old, and Mac-Mahon the laſt Term▪ and the Tryals of theſe three here are direct Preſidents in point, and good warrant by this very Act for the Tryal alſo of this Irish Peer, as I have proved.

3ly. This Statute is not very antient, yet ſtill in as full force as ever, and if this be the firſt Preſident of an Iriſh Peer that came judicially in queſtion here in England, to be tryed upon it ſince its making, it is no Argument he is out of this Law, but rather an Inducement to make him a leading Preſident to thoſe rebellious Peers of that Nation, who have been the Ring-leaders of the ordinary Commons there in this grand Rebellion, there being no Preſident, Judgement, nor foild seaſon againſt it; Yea …ome Judgements in caſe of Irish Commons, and many unanſwerable reaſons for it.

The fourth Objection is, the opinion of the Book inObject. 4. Dyer, f. 360. …. forecited, recited in Cromptons Juriſdiction of Courts, f. 23. a. and Mr. St. Johns Argument at Law at Straffords Attainder, p. 63. That an Irish Peer cannot be tryed here in England for Treaſon done in Ireland, neither by his Peers, nor by a Jury, becauſe he is no Subject of England.

To this I have **Here p. 40, 41.already given an Anſwer, and shallAnſwer. here only adde. 1. That the only reaſon given in p. 61the 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 **See here p. 32, to 42.Subject to the King of England in all places, as is adjudged in Calvins Caſe, and that Wrey diſclaimed any ſuch opinion delivered by him as is there reported. Therefore the reaſon of this opinion being adjudged erroneous and no Law, the opinion it ſelf grounded on it, muſt needs be ſo too. The rather, becauſe the opinion there cited was upon a Caſe caſually put and moved out of Court by way of diſcourſe, without ſtudy or argument, and ſuddenly delivered only by Dyer and Gerrard (ſince Wrey diſclaimed it) but not given upon any cauſe actually depending or debated and argued in Court. 2ly. That it is a full authority for me, both becauſe it determines, there can be no Tryal of an Iriſh Peer by his Peers in England but only by a Jury; and that in Ireland it ſelf, Peers are not uſed to be tryed by Peers, but attainted by Act of Parliament; Therefore an authority point-blank againſt the Priſoners plea.

The 5th Objection is Orourks Caſe; which in JudgeObject. 5. Anderſons own Book of Reports, is put thus, Whether Orourk an Iriſh Subject (and no Peer nor Baron of Ireland) might be tryed by this Act here in England, for Treaſons committed in Ireland? which words (nient esteant, un Peer ou Baron de Ireland) in the putting of the Caſe ſeems to intimate, that in that Caſe the opinion of the Judges was, that an Iriſh Peer was not within this Act.

To which I ſhall return this brief Anſwer, ThatAnſw. this clauſe, not being a Peer or Baron in Ireland, in the putting of that Caſe, was only a deſcription of the quality of his perſon, he being no Peer or Baron of that Realm, not any point in or part of the Caſe, there being not one ſyllable in the whole debate or Argument of it, by way of admiſsion or otherwiſe, that an Iriſh Peer was not within this Act; And in this very Caſe the p. 62Judges reſolved the Book in Dyer to be no Law, and Wrey diſclaimed any ſuch opinion of his therein reported, as Sir Edward Cooks Inſtitutes on Littleton, fol. 261. b. records.

The 6th. Objection is this, (intimated in an OrderObject. 6. 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 inAnſwer. Ireland, that I can fi…d, among all their printed Statutes, ſo as this is a vain ſurmiſe.

But 2ly. if there were any ſuch Law there, yet England being the ſupreme Realm to Ireland, may make Laws in the Parliament here to bind the Iriſh Peers and Commons, but the Parliament in Ireland being a **See Crokes Rep. p. 264 511, 512.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 eſtabliſhed in Ireland; Whereupon they have revenſed their Order, which ſeemed to give ſome colour for this Objection.

p. 63Pat. 48H. 3. pars. 1. m. 8. I find this memorable Record. Rex, &c. omnibus ſalutem. Cum ſecundum conſuetudinem hactenus in Hibernia obtentam, Utlagati in Regno noſtro Angliae pro Utlagatis in Hibernia haberi non conſueverunt, & Gregorius le Somner, ratione Utlagariae in ipſum promulgatae in Regno noſtro Angliae …uper captus fuit in Hibernia & in Angliam reductus & impriſonatus; Nolumus quod fidelibus noſtris Hiberniae aliquod praejudicium ex hoc in poſterum gravetur. In cujus, &c. Teſte Rege apud Turrim London. 26 die Junii…. If Engliſhmen outlawed in England could not by the Law and Cuſtome of Ireland, be taken upon a C…pias Utlagatum in Ireland, or reputed as out-lawed perſons there, as this Patent reſolves, much leſs can they there be tried for any Treaſons acted in England by colour of this Law, nor can our Engliſh Peers be there tried for Treaſons here by an Iriſh Jury.

A ſeventh Objection, which I have heard madeObject. 7. by ſome, is as vain and abſurd as the former, That if Iriſh Peers be within this Act for Treaſons done in Ireland, then by the ſame reaſon Peers in Scotland might be ſent for and brought into England, and there tryed by an ordinary Jury by vertue of this Law, for Treaſons done in Scotland; which would be a great prejudice to the Peers of Scotland, and the privileges of that Kingdome.

I anſwer, 1. That this Act extends not to anyAnſwer. 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 p. 64own Kings, and not of the Kings of England, and ſo it cannot extend to them.

2ly. Scotland, although the **See Hov. p. 545, 546, 550. Walſingham. Hiſt. Angl. p. 48 to 56. Mat. Paris Hiſt. Ang. p. 417, 433, 666, 667, 29 E. 1. Ro…. Clauſ. dorſ. 10. Clauſ. 33 E. 1. dorſ. 13. ſcedula clauſ. 34 E. 1. dotſ. 10. clauſ. 10 E. 3. dorſ. 9.Kings of it have often done homage to the Kings of England, in antient times, as their Soveraign Lords) was ſtill an abſolute independant Kingdom in this reſpect of being ſubject only to & governed by its own Parliaments, and Laws. But not ſubordinate to nor governed by the Laws or Parliaments of England, which never bound them heretofore, nor now, as they did and do Ireland; their Laws and Statutes and ours ſtill continuing different. Therefore this Act neither did nor could bind the Scots Peers or Commons in point of Tryal here for Treaſons committed in Scotland, as it binds the Iriſh (ſtill ſubject to our Laws and Parliaments) for Treaſons done in Ireland.

3ly. The very Acts of Pacification between both Kingdoms * 1 Jac. c. 2. 3 lac. c. 3. 4 lac. 1.Jas 2:3& the ſolemn League and Covenant paſſed this Parl. here & in Scotland too, which do ſpecially reſerve the Tryals of all Traytors and Delinquents of either Kingdom, to the Tryal and Judicatory only of their own Parliaments and Realms) have for ever provided againſt this vain pretence, and ſecured not only all Scotiſh Peers but Commoners too againſt any Tryals here by vertue of this Act for Treaſons done in Ireland; Therefore I ſhall give it no further Anſwer.

The laſt Objection I can think of is this, That inObject. 8. every Caſe of Treaſon or Felony new made by Statute, the Lords of Parliament in England ſhall have their Tryal by their Peers ſaved, not withſtanding the Statute provides not for it by expreſs words; ſo that proviſoes of Tryal by their Peers inſerted into them in ſuch Caſes, are but idle, and ex abundanti, becauſe it is provided for both by the Common law and by Magna Charta it ſelf, c. 29. and ſo was it adjudged in the caſe of the Lord Hungerford heretofore, p. 65and in the Earl of Caſtlehavens Caſe of late for Buggery, upon the Statute of 25 H. 8. c. 6. Stamfords Pleas of the Crown f. 152, 153 & Cromptons Iuriſdiction of Courts f. …9. Therefore the Tryof Iriſh Peers by their Peers ſhall be likewiſe ſaved to them within this Act, though it be not expreſſed, as well as the Tryal by Peers is to Engliſh Peeers by expreſſe Proviſoe.

I anſwer, Firſt, that this rule holds generallieAnſw. true in all Caſes of new Treaſons and Felonies where the offences only are made capital, or puniſhable according to the antient, uſual, and ordinarie proceedings of Law, and the manner of the Tryal of them left at large and not preciſelie limited how and by whom they ſhall be tryed; As they are in the objected Caſes upon the Statutes of 25 H. 8. c. 6. & 5 Eliz. cap. 17. concerning Buggery: where the words are, That this Vice ſhall be adjudged Felony, and that ſuch order and form of Proceſs shall thereupon be uſed againſt the Offenders, as in Caſes of Felony at the Common law, and that the Offenders being thereof convicted by verdict, confeſsion, or Outlawry, shall ſuffer pain of death, &c. which words without the leaſt contradiction, ſtand as well with Tryal of Peers who are guilty of it by their Peers alone, as of Commons by a Jury, they being both according to the order of our Common law, and a verdict by Peers is as properlie ſtiled a verdict in Law, as a verdict by Jurie, witneſſe 1 H. 4. 1. and Cooks 3 Inſtitut. ch. 2. p. 30. But in the Statute of 35 H. 8. there is no creation or introduction at all of any New Treaſons, but only an introduction of a new form and way of Tryal for Treaſons formerly made and declared ſuch, then done, or hereafter to be committed out of this Realm, and that new form of Tryal preciſely limited in all p. 66particulars, and eſpecially enacted to be by an ordinary Iury, except onlie in Caſe of our English Peers; Therfore this Statute comes not at all within the Objection, becauſe it particularlie defines the place where, the Judges before whom, the Juries by whom, with the whole form and manner how, ſuch forein Treaſons ſhall be tryed, with all other circumſtances of the Tryal, and expreſly preſcribes; That all but Engliſh Peers indicted for forein Treaſons, shall be tryed by good and lawfull men of the Shire where the Kings Bench or Commiſsioners ſit. Therefore to alter this form of Tryal preciſely preſcribed by this Statute, by introducing a new Tryal by Irish Peers, is to run quite croſs againſt, and elude, repeal this Sta…ute, as I have argued and proved at large.

I have now quite done with my Argument of this new untroden Caſe, and I hope therein ſufficiently manifeſted, that this Plea of the Priſoner is invalid, and ſuch as ought to be over-ruled in point of Law: And therefore as he hath been ſent for over from Ireland by the wiſdome and Juſtice of our Parliament, and by the Lords, Juſtices, and Councel there tranſmitted hither to receive a juſt, and ſpeedy Tryal at this Bar for his bloody Treaſons, which there (in reſpect of the Rebels power, Tumults in that Realm) he could not conveniently undergo: So I humbly pray on the behalf of the King, Kingdome, Parliament, and our whole English Nation, to all which he hath been ſuch a capital Traytor and Enemy, that this Plea of his may preſently be overruled, and himſelf brought to his ſpeedy Tryal, Iudgement and execution for his unparallel'd Treaſons, and the blood of thoſe many thouſands of innocent Engliſh Proteſtants ſhed in Ireland upon this occaſion, which cries for Juſtice and Execution againſt him without p. 67further delay. The rather, becauſe nulli differemus Juſticiam, is one clauſe of that very Act of Magna Charta, ca. 29. which he hath pleaded in bar of his Tryal, of which I pray both he and the whole Kingdom may now enjoy the benefit, by his undelayed Tryal and execution too, in Caſe he ſhall be found guilty of the Treaſons for which he ſtands indicted; of which there is little doubt, ſince ſo fully confeſſed by himſelf in a writing under his own hand, and we are ready to make them good againſt him, as we have already done againſt his Confederate Mac-Mahon, by the Teſtimony of a clowd of honorable pregnant witneſſes, in caſe he ſhall deny it.

After two Arguments at the Bar on both ſides of this Caſe, Juſtice Bacon argued it himſelf, and delivered his opinion and judgement againſt the Priſoners plea: that though he be a Baron of Ireland, yet he was triable for his Treaſon by a Middleſex Jury in the Kings Bench, and outed of his Peerage, by 35 H. 8. c. 2. Which Iudgement was approved by this Order of both Houſes of Parliament.

Die Lunae 10 Febr. 1644.

Ordered by the Lords and Commons in Parliament aſſembled, That the ſaid Houſes do approve of the judgment given by Maſter Juſtice Bacon, in over-ruling the Plea of the Lord Magwire, and of the manner of the Tryal by the Indictment of High Treaſon in the Kings Bench: And the Judge is hereby required to proceed ſpeedily thereupon according to Law and Iuſtice.

John Brown Cler. Parl. Henry Elſing Cler. Parl. D. C.

Upon which on Monday Febr. 10. 1644. he was brought from the Tower of London to the Kings Bench p. 68Bar, & there arraigned; where putting himſelf upon his trial he challenged 23 of the Jury which appeared peremptorily; Whereupon a Diſtring as was awarded to the Sheriff of Middleſex to retorn Quadrag…nta Tales the next day; of whom he challenged 12 more peremptorily: And being tryed by twelve of the reſidue retorned (againſt whom he had no legal exception nor challenge) he was upon his own Confeſsions and pregnant evidence of 15 Witneſſes (Perſons of Quality) found guilty of the Treaſons, for which he was indicted; and thereupon Febr. 11. was adjudged tobe drawn to Tyburn, and there hanged by the Neck, and cut down alive, and then his Bowels to be taken out, and there burnt before his Face, his Head to be cut off, and his body to be divided into four Quarters, and then to be diſpoſed as the Parliament ſhall appoint: Which was accordingly executed the 20th. of Febr. Even ſo let all ſuch perfidious bloody Traytors periſh.