treasons there perpetrated, by an indifferent, honest, lawful, English jury, upon an indictment found by the grand inquest, than thus to kill or behead such malefactors in Ireland, and seize both them and their goods as enemies, and ransom them at pleasure, without trial, jury, or indictment, and not only to indemnify 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 trial.

The third objection is this, That if Irish peers had been within this law, there being so many rebellions in Ireland since its enacting, we should have had some precedents of Irish peers here tried by jury ere this; but there is no such precedent extant; therefore certainly Irish peers, for treasons perpetrated in Ireland, are out of this act.

many mischiefs by thieves, murderers, and re-time of war and combustion in Ireland, for his' bels in that realm, do deprive both the lords and commons there of any legal trial at all both for their lives and estates too; witness the statutes 28 H. 6, c. 1. 3 et 5 E. 4, c. 12, and expose them to the judgment, slaughter, and plunder of particular men, in some cases, authorizing" all manner of men that find any thieves robbing, breaking up houses by day or night, or going or coming to rob or steal, having no faithful mun of good name and fame in their company, in English apparel, to take and kill those thieves, though peers, and cut off their heads, without indictment or jury, and seize their goods, without any impeachment of the king, his heirs, officers, or any other, for which they are to receive a sum of money from every plow-land and person of estate within the barony where they shall slay and behead such thieves." And 25 H. 6, c. 4, and 5. If any Englishman shall have any hair or beard upon his upper lip like the Irish, it shall be lawful for every man to take their goods, as Irish enemies, and to ransom them as ememies: and if any Lish enemies received to the king's allegiance, shall afterwards rob, spoil, and destroy the king's liege people, it shall be lawful for every liegeman that may meet with him afterwards, to do with him, and his goods and chattles, as to enemies who were never liege, and to ransom them at their free will, without any impeachment of the law." And ch. 6. "If any men, except knights and prelates, shall wear gilded bridle, peytrels, or other harness, that it shall be lawful to every man that will to take the said man, his horse and harness, and to possess the same as his own goods, without indictment or legal trial." All which would be monstrous in England. Therefore it is much more legal and just, and no injury at all, to try the prisoner, an arch-rebel, in England (1), in the

To this I answer, 1. That no Irish peers have been tried by their peers in Leland tor treasons since this act; ergo they are within it.

2. That this argument is merely fallacious, and non-concludant; for the reasons why no Irish peers have been tried here since this law by virtue of it, is not because they were not deemed within it, but for other reasons.

1. Because most of the Irish peers who have been in actual rebellion since this law, were (u) either actually slain in the wars, or tied the kingdom, or else were received into grace, and pardoned before trial upon their submissions; or else attainted and executed by act of parliament, or by martial law in Ireland. And by these means only avoided their trials here.

2. Because some Irish rebels, as great as Maguire, or any of their peers, in power and estate, have been heretofore thed and executed for treasons in England by virtue of this law, though brought over hither from eland against their wills; as Orourke and sir John Perret of old, and Mac-Mahon the last term; and the trials of these three here are direct precedents in point, and good warrant by this very act for the trial also of this Irish peer, as I have proved.

(1) Mr. Prynne in his preface to his argument says, I shall here insert one pertinent record, to manifest that the trying of Irish malefactors in England, the binding them to appear, the recording their defaults, and giv- 3. The statute is not very ancient, yet still ing judgment against them for not appearing in as full force as ever; and if this be the fir-t here for murders, robberies, and felonies, com- precedent of an Irish peer that came judicially mitted or acted by them in Ireland, is no no- in question here in England, to be tried upon velty (having omitted it in my argument), it it since its making, it is no argument he is out being in use in the ninth year of king John, as of this law, but rather an inducement to make this patent manifests. Rot. Pat. Ann. 9 Jo-him a leading precedent to those rebellious han. Reg. m. 4, n. 46. Rex. M. filio Henrici, Justiciario Hiberniæ, salutem. Mandamus vobis, quod deduci faciatis secundum judicium comitis Dublin, Galfredum de Marisco et alios qui rectati sunt de incendio, et roberia, et morte hominum, et aliis rectis quæ pertinent ad coronam nostram, unde eis dies datus est coram nobis in Anglia, a die sancti Michaelis ad 15 dies, ad quein non venerunt, nec pro se responsales miserunt, et absentiam suam 'die illo attornatis eis in defaltam. Et ipsos 'deduci faciatis secundum judicium prædicti comitis de vita et membris et obsidibus, et (u) See the Annals of Ireland, and Mr. vadiis, et plegiis. Teste meipso apud Theoukes- Cambden in Ireland, p. 121 to 200. bury, 12 die Novembris.'

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peers of that nation, who have been the ringleaders of the ordinary commons there in this grand rebellion, there being no precedent, judg ment, nor solid reasons against it; yea some judgments in case of Irish commons, and many unauswerable reasons, for it.

The fourth objection is, The opinion of the book in Dyer, f 360, 1, fore cited, recited in Compton's Jurisdiction of Courts, f. 23, a. and Mr. St. John's argument at law at Strafford's attainder, That an Irish peer cannot be tried

here in England for treason done in Ireland, neither by his peers nor by a jury; because he is no subject of England.

To this I have already given an answer, and shall here only add, 1. That the only reason given in the book hath been since several times adjudged to be no reason at all nor law by all the judges of England, a subject of Ireland being a subject of the king of England in all places, as is adjudged in Calvin's 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 itself 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. 2. That it is a full authority for me, both because it determines there can be no trial of an Irish peer by his peers in England but only by a jury; and that in Ireland itself peers are not used to be tried by peers, but attainted by act of parliament; therefore an authority point-blank against the prisoner's plea.

The fifth objection is, Orourk's case; which in Judge Anderson's own book of reports is put thus: Whether Orourk, an Irish subject, and no peer or baron of Ireland, might be tried 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, seem to intimate, that in that case the opinion of the judges was, That an Irish peer was not within this act.

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 (r) 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, until the rebels there shall be able to conquer England (which I hope they never shall) as we have conquered them. Therefore we need not fear any such obliging laws of theirs, or the trial of English peers in Ireland. So as this vain fancy is quite out of doors, and the lords themselves, upon conference with the commons, have been fully satisfied that this case no ways concerneth the peers of England, whose trial 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 reserved their order, which seemed to give some colour for this objection.

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Pat. 48 H. 3, pars 1. m.8. I find this memorable record: Rex, &c. omnibus salutem. 'Cum secundum consuetudinem hactenus in Hibernia obtentam, utlagati in regno nostru Angliæ pro utlagatis in Hibernia haberi non consueverunt, et Gregorius le Somner, ratione utlagariæ in ipsum promulgatæ in reguo nostro Angliæ, nuper captus fuit in Hibernia et in Angliam reductus et imprisonatus; nolu mus quod fidelibus nostris Hiberniæ aliquod 'præjudicium 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 custom of Ireland be taken upon a capius utlagatum in Ireland, or reputed as outlawed 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.

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To which I shall return this brief answer, That this clause, Not being a peer or baron in Ireland, in the putting of that case, was only a description of the quality of his person, he being no peer or baron of that realm, not any point A seventh objection, which I have heard in or part of the case, there being not one made by some, is as vain and absurd as the syllable in the whole debate or argument of it, former: That if Irish peers be within this act by way of admission, or otherwise, that an Irish for treasons done in Ireland, then by the same peer was not within this act: and in this very reason peers in Scotland might be sent for and case the judges resolved the book in Dyer to brought into England, and there tried by an orbe no law, and Wrey disclaimed any such opi- dinary jury by virtue of this law, for treasons nion of his therein reported, as Sir Edward done in Scotland; which would be a great preCoke's Institutions on Littleton, fol. 261. b.judice to the peers of Scotland, and the privileges of that kingdom.

record.

The sixth objection is this (intimated in an Order of the Lords House) That this may much concern the peers of England; for this law for trying foreign treasons is enacted in Ireland; and so, by colour of it, English peers may be sent over into Ireland, to be tried there by a jury of Irish commoners, for treasons done in England, as well as Irish peers sent thence to be tried by ordinary juries here in England for treasons committed in Ireland.

I answer, 1. That there is no such law extant in Ireland, that I can find, among all their printed statutes; so as this is a vain surmise.

But, 2. If there were any such law there,

I answer, 1. That this act extends not to any treasons of Scots lords or commons com mitted or acted in Scotland, and triable there, though it reach to Irish lords and Ireland.

1. Because this act was made long before the Union betwixt England and Scotland, by 1 Jac. c. 2. S Jac. c. 3. 4 Jac. c. 1. and 16 Caroli; whiles that Scotland was under the absolute and immediate power of its own kings, and not of the kings of England; and so it cannot extend to them.

(x) See Croke's Rep. p. 264, 511, 519.

2. Scotland, although the (y) kings of it have often done homage to the kings of England in ancient times (as their sovereign lords) was still an absolute, independent kingdom in this respect of being subject only to and 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 trial here for treasons committed in Scotland, as it binds the Irish (still subject to our laws and parliaments) for treasons done in Ireland.

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 trial 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 properly styled a verdict in law, as a verdict by jury; witness 1 H. 4, 1. and Coke's 3 Inst. c. 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 trial for treasons formerly made and declared as such, then done, or hereafter to be committed out of this realm, and that new form of trial, precisely li

3. The very acts of pacification (z) between both kingdoms, and the solemn league and covenant passed this parliament here and in Scot-mited in all particulars, and especially enacted land too (which do specially reserve the trials of all traitors and delinquents of their kingdom to their trial and judicatory only of their own parliaments and realms), have for ever provided against this vain pretence, and secured not only all Scottish peers, but commoners too, against any trials here by virtue of this act for treasons done in Scotland; therefore I shall give it no further answer.

The last objection I can think of is this: That in every case of treason or felony new made by statute, the lords of parliament in England shall have their trial by their peers saved, notwithstanding the statute provides not for it by express words: so that provisos of trial 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 itself, c. 29. and so was it adjudged in the case of the lord Hungerford heretofore, and in the earl of Castlehaven's case of late for buggery, upon the statute of 25 H. 8, c. 6. Stamford's Pleas of the Crown, f. 152, 153, and Crompton's Jurisdiction of Courts, f. 29. Therefore the trial of Irish peers by their peers shall be likewise saved to them within this act, though it be not expressed, as well as the trial by peers is to English peers by express proviso.

to be by an ordinary jury, except only in case of our English peers: therefore this statuto comes not at all within the objection, because it particularly defines the place where, the judge before whom, the juries by whom, with the whole form and manner how such foreign treasons shall be tried, with all other circumstances of the trial, and expressly prescribes, That all but English peers indicted for foreign treasons shall be tried by good and lawful men of the shire where the king's bench or commissioners sit. Therefore to alter this form of trial, precisely prescribed by this statute, by introducing a new trial by Irish peers, is to run quite cross against, elude, and repeal this statute, as I have argued and proved at large.

I have now quite done with my Argument of this new untrodden 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 wisdom and justice of our parliament, and by the lords, justices, and council there transmitted hither, to receive a just and speedy trial 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 I answer, first, That this rule holds generally king, kingdom, parliament, and our whole true in all cases of new treasons and felonies English nation, to all which he hath been such where the offences only are made capital, or a capital traitor and euemy, that this plea of punishable according to the ancient, usual, and his may presently be over-ruled, and himself ordinary proceedings of law, and the manner brought to his speedy trial, judgment, and exof the trial of them left at large, and not pre-ecution, for his unparalleled treasons, and the cisely limited how and by whom they shall be tried; as they are in the objected cases upon the statutes of 25 II. 8, c. 6. and 5 Eliz. c. 17. concerning buggery, where the words are, "That this vice shall be adjudged felony, and that such order and form of process shall

(y) See Hov. p. 545, 546, 550. Walsingham Hist. Ang p. 48 to 56. Mat. Paris Hist. Ang. p. 417, 433, 666, 607. 29 E. 1. Rot. Claus. dors. 10 claus. 33 E. 1. dors. 13. scedula claus. $1 E. 1. dors. 10 claus. 10 E. 3. dors. 9. (*) 1 Jac. c. 2. 3 Jac. c. 3. 4 Jac. 1.

blood of those many thousands of innocent English protestants shed in Ireland upon this occasion, which cries for justice and execution, against him without further delay; the rather, because nulli differemus justitiam is one clause of that very act of Magna Charta, ch. 29, which he hath pleaded in bar of his trial, of which I pray both he and the whole kingdom may now enjoy the benefit, by his undelayed trial 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 cloud of honourable, pregnant witnesses, in case he shall deny it.

mentum et omnia alia quæ nobis ratione corona et dignitatis regiæ ab ipsis fieri et præstari nobis, in absentia nostra, poterunt plenarie et sine omissione aliqua prompto et libenti animo præstiterint: ac archiepiscopi, episcopi, abAfter two Arguments at the bar on both sides bates, priores, comites, barones, milites, libere of this case, justice Bacon argued it himself, tenentes, ac tota communitas terræ nostræ and delivered his Opinion and Judgment against Hiberniæ nobis tanquam regi et domino suo the prisoner's Plea, that though he be a baronligio consimile sacramentum fidelitatis præstare of Ireland, yet he was triable for his treason by a Middlesex jury in the King's-Bench, and outed of his peerage, by 35 H. 8, c. 2. Which Judgment was approved by this Order of both houses of parliament:

Die Lunæ, 10 Februarii, 1645. "Ordered by the lords and commons in parliament assembled, That the said houses do approve of the judgment given by Mr. Justice Bacon, in over-ruling the plea of the lord Maguire, and of the manner of the trial by the indictment of high treason in the King'sBench: and the judge is hereby required to proceed speedily thereupon according to law and justice.-John Brown, Cler. Parl. Henry Elsing, Cler. Parl. D. C.”

Upon which, on Monday, Febr. 10, 1645, he was brought from the Tower of London to the King's-Bench bar, and there arraigned; where putting himself upon his trial, he challenged twenty-three of the jury, which appeared, peremptorily: whereupon a Distringas was awarded to the sheriff of Middlesex to return Quadraginta Tales the next day; of whom he challenged twelve more peremptorily and being tried by twelve of the residue returned (against whom he had no legal exception nor challenge), he was upon bis own confessions and pregnant evidence of fifteen witnesses, persons of quality, found guilty of the treasons for which he was indicted; and thereupon Feb. 11, was adjudged to be drawn to Tyburn, and there hanged by the neck, and cut down alive, and then his bowels to be taken out, and there burnt before his face, his head to be cut off, and his body to be divided into four quarters, and then to be disposed as the parliament shall appoint. Which was accordingly executed the 20th of February.

teneantur. Dedimus vobis potestatem recipiendi nomine nostro fidelitatem ipsorum. Its tamen quod si vos omnes interesse nequiveritis, tunc duo vel unus vestrum qui præsens fuerit nichilominus plenariam habeat potestatem recipiendi nomine nostro fidelitatem ipsorum in forma prædicta. Et ideo vobis mandamus, quod fidelitatem prædictam nomine nostro recipiatis, prout melius videbitis expedire. In cujus, &c. Dat. per manum W. de Merton Canc. apud Westm. 7, die Decembris."

33 H. 8, c. 1, made in Ireland*.

An Act that the King and his Successors shall be Kings of Ireland.

"Forasmuch as the king our most gracious dread sovereign lord, and his grace's most noble progenitors, kings of England, have been lords of this land of Ireland, having all manner of kingly jurisdiction, power, pre-eminences, and authority royal, belonging or appertaining to the royal estate and majesty of a king, by the name of lord of Ireland, where the king's majesty and his noble progenitors, justly and rightfully were, and of right ought to be, kings of Ireland, and so to be reputed, taken, named, and called, and for lack of naming the king's majesty and his noble progenitors kings of Ireland, according to their said true and just title, stile, and name, therein hath been great occasion that the Irishmen and inhabitants within this realm of Ireland, have not been so obedient to the king's highness and his most noble progenitors, and to their laws, as they of right and according to their allegiance and bounden duties ought to have been. Therefore, at the humble pursuit, petition, and request of the lords spiritual and temporal, and other the king's loving, faithful, and obedient subjects of this land of Ireland, and by their full assents, be it enacted, ordained, and es tablished by this present parliament, that the king's highness, his heirs and successors, kings of England, be always kings of this land of Ireland, and that his majesty, his heirs and Pat. 1, E. 1, m. 20, Hibernia. successors, have the name, stile, title, and honour of King of this land of Ireland, with all "Venerabili in Christo patri eadem gratia manner of honours, pre-eminences, prerogaMidden episcopo, et dilectis et fidelibus suis tives, dignities, and other things whatsoever Mauricio filio Mauricii justiciario suo Hibern. they be, to the estate and majesty of a king et Magistro Johanni de Saumford, esceatori suo appertaining and belonging: and that his maHiberu, salutem. Cum defuncto jam celebrisjesty, his heirs and successors, be from hence. memoriæ domino H. rege patre nostro (cujus animæ propicietur altissimus) ad nos regni Angliæ gubernacul, et terræ Hiberu. dominium pertineant, ob quod prælati, comites, et proceres, ac communitas regni nostri nobis tanquam domino suo ligio et regi fidelitatis jura

At the end of the Argument Mr. Prynne says thus:

To fill up the vacant pages of this sheet, I shall annex this one Record, and also one Irish act, being both very pertinent to my Argument.

forth named, called, accepted, reputed, and taken to be kings of the land of Ireland, to have, hold, and enjoy the said stile, title, ma

* The Stat, of Ireland printed at Dublin, 1621, p. 183.

jesty, and honours of the king of Ireland, with and every such offence shall be adjudged and all manner of pre-eminence, prerogative, dig-deemed high-treason, and the offenders, their nities, and all other the premisses, unto the aiders, counsellors, maintainers, and abettors king's highness, his heirs and successors for therein, and every of them, being lawfully conever, as united and knit to the imperial crown victed of any such offence, by presentment, of England. And be it further enacted by the verdict, confession, or proofs, according to the authority aforesaid, That on this side the first customs and laws of this said land of Ireland, day of July next coming, proclamation shall shall suffer pains of death, as in cases of highbe made in all shires within this land of Ire-treason, and also shall lose and forfeit unto the land, of the tenor and sentences of this act. king's highness, and to his heirs, kings of this And if any person and persons, of what estate, realm of Ireland, all such his manors, lands, dignity, or condition soever they or he be, sub-tenements, rents, reversions, annuities, and ject or resident within this land of Ireland, hereditaments, which they had in possession as after the said first day of July, by writing or owner, and were sole seized of in their own imprinting, or by any exterior act or deed, right, of, by, or in any title or means, or in any maliciously procure or do, or cause to be pro- other person or persons had to their use of any cured or done, any thing or things to the peril estate of inheritance, at the day of any such of the king's majesty's most royal person, or treason and offences by them committed and maliciously give occasion, by writing, deed, done. And that also every such offender shall print, or act, whereby the king's majesty, his lose and forfeit to the king's highness, and to heirs or successors, or any of them, might be his said heirs, as well all such estates of freedisturbed or interrupted of the crown of this hold, and interest for years, of lands and rents, realin of Ireland, or of the name, stile, or title as all the goods, chattels, and debts, which thereof, or by writing, deed, print, or act, pro- they or any of them had at the time of their cure or do, or cause to be procured or done, conviction or attainder, of, or for any such of any thing or things to the prejudice, slander, fence; saving alway to every person and perdisturbance, or derogation of the king's majes- sons, and bodies politic, their heirs, successors, ty, his heirs or successors, in, of, or for the and assigns, and to every of them, other than crown of this realm of Ireland, or in, of, or for such persons as shall be so convicted or atthe name, title, or stile thereof, whereby his tainted, their heirs and successors, and all majesty, his heirs or successors, or any of them, other claiming to their use, all such right, might be disturbed or interrupted in body, title, use, interest, possession, condition, rents, name, stile, or title of inheritance, of, in, or to fees, offices, annuities, commons, and profits, the crown of this land of Ireland, or of the which they or any of them shall happen to name, stile, title, or dignity of the same; that have, in, to, or upon any such manors, lands, then every such person and persons, of what tenements, rents, reversions, services, annuities, estate, degree, or condition they be, subject or and hereditaments, which so shall happen to resiants within the said land of Ireland, and be lost and forfeited, by reason and occasion of their aiders, counsellors, maintainers, and any of the treasons or offences above rehearsabettors therein, and every of them, for every ed, any time before the said treasons or of such offence, shall be adjudged high traitors, fences committed or done.

174. Proceedings upon a Charge for Breach of the Trust reposed in them by the Parliament, preferred against Mr. HOLLIS and Mr. WHITE LOCKE by the Lord Savile:* 21 CHARLES I. A. D. 1645. [Whitelocke's Mem. 6 Rushw. 177.]

ters and garrisons; and to betake himself to the king, or whither he pleaseth within one week; after which time, if he stay within the line of communication, or the Parliament's Quarters, he is to be taken and proceeded against, as one adhering to the enemy.

April 21. The earls of Holland, Thanet, Monmouth, Westmorland, and the lord Savile, took the oath appointed by the Parliament, for such as come in to them, before the Commissioners of the Great Seal.

March 31. The lord Savile, in regard he hath not given any satisfaction to the Parliament, for his coming from Oxford hither, but rather many grounds of suspicion, that he came July 2. Mr. Gourden, a member of the to do ill offices, was ordered speedily to depart House of Cominons, presented to them a Letthe city, and all other the Parliament's Quarter from the lord Savile, with a Paper inclosed in it, and desired, That they might be read, He had been created earl of Sussex by and after some debate they were read: The the king in the preceding year. Letter was expressing "his affections to the

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