the sheriffs are here by a charter, and that comes in from year to year; and there is no seal in order of execution.

Macg. I desire that some gentlemen of my own religion may have access to me, to confer with me; and some who are my fellow-prisoners in the Tower, to speak with me in my keeper's presence.

Judge. You must name somebody in particular.

Macg. I desire to confer with Mr. Walter Montague. [] [Belike he knew him to be a popish priest or jesuit.]

Judge. You must prepare yourself to die against Saturday next.

Macg. I desire a fortnight's time to prepare myself.

Judge. That is too long a space, and I cannot grant it; but you shall have convenient time.

Macg. I desire you that I may have three days notice at least to prepare myself. Judge. You shall have three days warning; but however delay no time to prepare yourself. Macg. I desire my execution may be altered, and not according to the judgment: and that I may not be hanged, and quartered.

Judge. This lies not in my power to grant : but here are some members of the house of commons in court, and you were best address yourself to them, that they may acquaint the house with your desires.

Judge. Well, if you have nothing to say for yourself, I am to pronounce sentence, as I am a minister of justice. You have been indicted here for several treasons contained in your indictment, as was here of late read unto you; and you have had a fair proceeding, and very deliberately for your indictment came in about Alhallowmas last, three weeks or a month before the end of the last term, three weeks at least. You then made a question, Whether you ought to be tried by your peers in Ireland, or a jury here? The court did so far deliberate in it, as to allow you counsel to plead with the best advantage you could: and afterwards, this term there have been two arguments at the bar on each side, where hath been said as much for you as can be. The court over-ruled that, and so you are tried by a jury; and you had the liberty to challenge them, and had all the advantages that the law will afford, and take all the exceptions you could. Truly for my part, I see that there is not any one of them for me, to sway the judgment: the treason and the offences that you are charged withal are very heinous, your crimes very impious; great destruction hath followed upon your plot, which the jury have found you guilty of. What a mighty cruel war and great devastation in that kingdom? Most horrid to speak or rehearse! It is fitter for you now to bethink yourself what your offences are, and prepare yourself for death, rather than seek to mask or put colours Sir John Clotworthy. My Lord, I have been upon those things which are so manifestly prov- your school-fellow heretofore, and I have found ed to all the world. And now you are found some ingenuity in you; and I have seen some guilty and therefore there is no contradiction letters of yours importing some remorse of couor gain-saying will avail you: you ought to re-science in you for this fact; and I should be pent, and pray to God to forgive that offence whereof you are guilty. The judgment that I am by the law to pronounce against you, is this: Connor Macguire, esq. you being found guilty of the treasons whereof you are indicted, your judgment is, That you shall be carried from hence to the place from whence you came, that is the Tower, and from thence to Tyburn, the place of execution; and there you shall be hanged by the neck, and cut down alive, your bowels taken out, and burnt before your face, your head to be cut off, your body to be divided into four quarters, and the head of your body to be set up and disposed of as the state shall appoint. And the Lord have mercy upon your soul.

After judgment pronounced, the king's counsel demanded of him whether he would have any ministers come to him, to prepare him for his end, and to advise him for the good of his soul. Macg. I desire none of them: but I desire I may be sent prisoner to Newgate.

Counsel. His reason is, because there are some popish priests there.

Judge. That cannot be your judgment is to return to the Tower; where you may have ministers, if you please, to return to advise you for your soul.

Macg. I shall desire the gentlemen of the house of commons, so many as are here, to move the house in my behalf, that I may have a fortnight's time to prepare myself, and that the manner of my execution may be changed.

glad to discern the like ingenuity in you still and shall move the house that you may have some ministers appointed to come to you; and likewise acquaint them with your other desires.

Then the prisoner departing from the bar, Mr. Prynn advising him to confer with some godly ministers for the good and comfort of his soul; he answered, That he would have none at all, unless he might have some Romish priests of his own religion.

To which Mr. Prynn replied, My lord, these Romish priests are the chief instruments who have advised you to plot and perpetrate those execrable treasons, for which you are now condemned, and have brought upon you that shameful judgment of a traitor, the execution whereof you even now so earnestly deprecated. Since then they have proved such evil destructive counsellors to you in your life, you have great reason to disclaim them with their bloody religion, and to seek out better advisers for you at your death, lest you eternally lose your soul as well as your life, for the blood of those many thousand innocents which have been shed by your means. To which he, pausing a little, answered, That he was resolved in his way. Whereupon another lawyer said, My lord, you were best to hear both sides. To which he

answered in an obstinate manner, I am settled on one side already, and therefore I desire not to confer with any other. And so departed through the hall towards the Tower, the people crowding and running about to behold his

fession, your case is desperate; had you any commission, or no?

To tell you my mind directly, for the killing I do not know that, but I think the Irish had a just cause for their war.

Sher. Was there any assault made upon you? Had you not entered into a covenant? Had you not engaged by oath yourself to the king? Marg. For Jesus Christ sake, I beseech you to give me a little time to prepare myself, Sher. Have pity upon your own soul. Macg. For God's sake have pity upon me, and let me say my prayers.

Sher. I say the like to you, in relation to your own soul; whether you think the massacre of so many thousand Protestants was a good act? For Jesus Christ's sake, have pity upon your own soul.

Macg. Pray let me have a little time to say my prayers.-All this while his eye was mostly upon his papers, mumbling over something out of them to himself. Whereupon one of the sheriff's demanded those papers of him, He flung them down; they were taken up and given to the sheriff. They asked him farther, Whether they were not some agreement with the recusants here in England? Whereunto he answered, I take it upon my death, I do not know that any man knew of it; and after some other such-like talk, the sheriff bidding him prepare for death, he said, I do beseech all the Catholics that are here to pray for me. I beseech God to have mercy upon my soul.— And so was executed.

The ARGUMENT of WILLIAM PRYNN, of Lincoln's Inn, esq. Hil. 20 Car. I. Banc. Regis, in the Case of the Lord CONNOR MACGUIRE, Baron of Ineskellin in Ireland, (the chief Contriver of the late Irish Rebellion and Massacre of the Protestant English) against whom he was assigned Counsel by both Houses of Parliament.

This Argument was published by Prynn him- Immediately after the Title Page, followed a self, in a Pamphlet having this Title:

The Subjection of all Traitors, Rebels, as well Peers, as Commons in Ireland, to the Laws, Statutes and Trials by Juries, of good and lawful Men of England, in the King's-Bench, at Westminster, for Treasons perpetrated by them in Ireland, or any foreign Country out of the Realm of England.

BEING

Preface or Dedication, which seems to merit insertion in this place. It illustrates the temper of its author, and the history of the time; and it furnishes an additional proof of Prynn's industry, learning, and sagacity:

TO THE

Ingenious Readers, especially Professors, Students of the Laws of England and Ireland.

HAVING lately published a much enlarged edition of my plea for the lords and house of peers, wherein the undoubted antient birthright of all English lords and barons to sit, vote, and judge in all parliaments of England, and their trial by their peers, is irrefragably vindicated by histories and records in all ages, and larger discoveries made of the proceedings and judicature in our parlaments in cases as well of commoners, as peers, than in all former treatises whatsoever; I apprehended it neither unseasonable, nor unprofitable to publish this argument at law, concerning the trial of Irish

An Argument at Law made in the Court of King's-Bench, Hil. 20 Caroli Regis, in the Case of Connor Macguire, an Irish Baron (a principal Contriver of the last Irish Rebellion): Fully proving, That Irish Peers, as well as Commons, may be lawfully tried in this Court in England, by the Statute of 35 H. 3. c. 2, for Treasons committed by them in Ireland, by a Middlesex Jury, and outed of a Trial by Irish Peers: Which was accordingly adjudged, and he thereupon tried, condemned, and executed as a Traitor. Wherein are comprised many other parti-peers for foreign treasons acted by them, made culars and notable Records, relating to the Laws, Peers, Statutes and Affairs of Ireland, not obvious in our Law Books, and worthy public knowledge.

By WM. PRYNN, esq.
A Bencher of Lincoln's Inn.

by me near 14 years past in the King's-bench court at Westminster, in the case of Connor Macguire an Irish baron, there indicted for high treason, in having a principal hand in the late bloody rebellion in Ireland; against whom I was, by special order, assigned counsel, among others, by the parliament then sitting; upon whose plea, and a demurrer thereunto, I first argued this new point io law, never for "Ye shall take no satisfaction for the life of ther an Irish peer, or commoner, committing inerly disputed, adjudged in open court; Whea murderer, which is guilty of death, but he treason in Ireland, sent over from thence into shall be surely put to death. So ye shall not England against his will, might be lawfully tried pollute the land wherein you are; for blood de-for it in the King's-bench at Westminster by a fileth the land, and the land cannot be cleansed of the blood that is shed therein, but by the

Numbers, xxxv. 31, 33.

blood of him that shed it."

London:

Printed by J. Leach, for the Author, 1658.

VOL. IV.

Middlesex jury, and oated of his trial by Irish peers, of his condition, by the statute of 35 H. 8, c. 2? After two solemn arguments at the bar, by myself, and serj. Rolls against, and Mr. Hales, and Mr. Twisden for the prisoner, and 2 Y

Mr. Justice Bacon's argument on the bench, his plea was over-ruled, adjudged against him; it be ing resolved, he might and ought to be tried only by a jury of Middlesex, not by his peers of Ireland: Whereupon he pleading, Not Guilty,to his indictment, was tried by a substantial jury, to whom he took both his peremptory and legal challenges, which the court allowed him of right, and after a very fair and full trial was found guilty by the jury, upon most pregnant evidence; and then condemned, executed as a traitor at Tyburn, as he well demerited.

The reasons inducing me to publish this argument were:

1. The near affinity and cognation it hath with my plea for the lords.

2. The novelty, rarity of the subject and points debated in it, not formerly discussed at large in our law-books.

3. The generality and public concernment thereof, extending to all Irish subjects, whether peers or commons, and so worthy their knowledge, perusal, and of all public officers in Ireland, especially lawyers.

|

243, Coke's 3 Inst. p. 52, 124, and accordingly declared by the commons house in their Remonstrance of the State of the Kingdom, (4) 15 Dec. 1641, and by the whole parliament, and most now in power, in the case of the lord Mount-Norris; whose trial and capital condemnation in a court martial in Ireland by martial law, in time of peace, without a lawful indictment and trial by his peers, in a sum mary way, by the earl of Strafford's power, then lord deputy of Ireland, was one of the principal charges, (b) evidences against him, to make good his general impeachment of HighTreason, for which he was condemned and be headed on Tower-hill for a traitor, by judg ment and act of parliament; Namely, That be had traitorously endeavoured to subvert the fundamental laws and government of the realm, and instead thereof to introduce an arbitrary and tyrannical government against law ; though this lord was not executed or put to death by that sentence against him; Which if executed, had been wilful murder both in his judges and executioners, as sir Edward Coke resolves in his 3 Institutes, p. 52, 124, printed by the house of commons special order; and king Alfred long before him, who hanged up no fewer than 44 of his justices in one year as murderers, for condemning and executing some of his subjects, without a sworn jury of 12 men; and others of them for offences not capital by the known laws, or without pregnant evidence: as Andrew Horn records in his Myrrour des Justices; ch. 5, p. 296, 297, 298; who thence infers; "Abusion est, de la commen ley, que justices et lour ministers que occient la gent per faux judgment, ne sont destruits al foer de autres homicides, que fit le roy Alfred, que fist pendre 44 justices en un an, tant come homicides pur four faux judgments," which others guilty of the like crimes (especially since these antient and Straffords, Canterburies, with the Ship-money-judges, late precedents, impeachments, sentences, to the prejudice of the subject's lives, estates,) may do well to ruminate upon.

4. The prevention of mis-reports of this case and argument, in this age, wherein many arguments at law, and reports of cases have been lately published by injudicious hands, mistaking, mangling, or misreciting the reasons, records, law-books cited both at bar and bench, and sometimes the cases, judgments theinselves; to the prejudice, seduction of young students of the law, and scandal of the law itself.

5. The importunity of some friends who formerly desired copies thereof from me, when I had no leisure to furnish them therewith.

6. The vindication, declaration both of the parliaments and King's-bench honourable, resplendent, equal, untainted justice against this arch-Irish-Traitor and rebel, and that in these particulars;

1st. In trying this notorious offender, guilty of the horridest, universallest treason and rebellion that ever brake forth in Ireland; and that in a time of open war both in Ireland and England, only by a legal indictment, and indiffe- 2dly, In assigning this arch-traitor such learnrent sworn jury of honest and lawful free-ed counsel as he desired, to advise and plead holders, according to the known laws and sta- for him in this case of high-treason in all mattutes of the realm; not in a court martial, or ters of law arising therein; which the parlia any other new-minted judicature, by an arbi- ment likewise allowed to Strafford and Cantertrary, summary, illegal or martial proceeding, bury, though impeached of high-treason: and without any lawful presentment, indictment or therefore cannot in point of justice (c) be trial by a sworn, impartial, able jury, resolved, denied to any other person or persons in like to be diametrically contrary to the fundacases, if desired. mental laws, customs, great charters, statutes 3dly, In admitting him free liberty to put in a of the realm, and inherent liberty of the sub-plea in writing to the manner of his trial, and to ject, especially in time of peace when all other the Jurisdiction of the King's Bench itself courts of justice are open, and of very dange- (though the highest court of justice (d) in all rous consequence, and thereupon especially England but the parliament, and having lawprohibited, enacted against: as you may read ful conusance of all sorts of treasons whatsoever) at leisure in the statute of 5 R. 2, parl. 1,ch. and not peremptorily over-ruling, rejecting it 5, rot. parl. n. 57, 2 R. 2, rot. parl. n. 57, 1 H. 4, rot. parl. n. 44, 2 H. 4, rot. parl. n. 89. The votes of the house of commons and lords against it, May 7, 1628, the Petition of Right, 3 Caroli, Mr. Cambden's Annals of qu, Elizabeth, p. 242,

(a) An exact Collection, p. 8.
(b) See Strafford's Impeachment and Trial.
(c) 2 Stamf. 1. 2. c. 63. 1. H. 7. f. 23.
(d) Coke's 4 Instit. c. 6.

forthwith, and giving Judgment against him pro confesso, or as (e) standing mute, for not submitting to its jurisdiction, and a trial by an ordinary Middlesex jury, being a matter of law and right; but permitting, yea ordering his plea upon a demurrer thereunto, to be pub-markable passages in our histories, and chiefest licly argued pro et contra at the bar by counsel, and then solemnly argued at the bench by the judge, before it was over-ruled, being a case of general concernment to satisfy him and all the world of the legality and justice of his trial. And then permitting him according to law, to plead not guilty, and put himself upon his trial by his country; not sentencing him to death for treason without any trial or good evidence produced to convict him.