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England, Ireland, Magna Carta, and the Common Law: The Case of Connor Lord Maguire, Second Baron of Enniskillen

Published online by Cambridge University Press:  10 January 2014

D. Alan Orr
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Extract

The treason trial of Connor Lord Maguire, second baron of Enniskillen, in February 1645 brought into focus competing conceptions of the constitutional relationship of England and Ireland. Maguire had been implicated in the plot to seize Dublin Castle on 23 October 1641 during the Irish revolt of that year and was tried in early 1645 before a Middlesex jury. The key issue of the trial was whether Maguire, as a peer of Ireland, having committed treasonable acts in Ireland and elsewhere and being brought “into England against his will, might be lawfully tryed … in the King's Bench at Westminster by a Middlesex Jury, and outed of his tryal by Irish Peers of his condition by the statute of 35 Henry VIII c. 2.” In the earl of Stafford's trial almost four years earlier, the defense had consistently assumed a position that will be termed Irish constitutional exceptionalism. Both Strafford and other apologists for his rule as Lord Deputy in Ireland during the 1630s adopted this constitutional stance in response to proceedings against them in both the English and Irish Parliaments during 1641. It held that while Magna Carta and the common law generally held sway in Ireland, because of circumstances unique to that particular kingdom, significant exceptions existed with regard to the legal rights and privileges these legal instruments conferred on the king's Irish subjects. In contrast, the case for Maguire rested on a view of the constitutional relationship of England and Ireland that emphasized a more closely shared heritage of legal privileges for both commoners and peers as guaranteed by Magna Carta and the common law—a position best characterized as constitutionalist.

Type
Research Article
Information
Journal of British Studies , Volume 39 , Issue 4 , October 2000 , pp. 389 - 421
Copyright
Copyright © North American Conference of British Studies 2000

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References

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49 It should be noted that a charge of high treason at common law held similar ramifications because the Great Statute of Treasons (1352) provided for the escheat of the accused traitor's lands held in fee simple to the crown.

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53 Prynne, Williamet al., The Whole Triall of Connor Lord Macguire, with the Perfect Copies of the Indictment, and All the Evidences against Him (London, 1645)Google Scholar, sig. Aa4r, p. 15; and Fitzpatrick, Brendan, Seventeenth Century Ireland: The War of Religions (Dublin, 1988), pp. 133–50Google Scholar.

54 A full narrative of this is in the official printed account of Prynne, Rolle, and Newdigate. See Black, Prynneet al., The Whole Triall, sig. B2r–C2v, pp. 3–10Google Scholar; see also BL, Sloane MS 3828, fols. 73v–74r; and BodL, Tanner MS 418, fols. 89–91. For Maguire's questioning of the Long Parliament's newly forged seal, see Harvard Law School Library (HLS), MS 113, fol. 221; and Prynne, et al., The Whole Triall, sig. E2v, p. 28Google Scholar. The creation of the new seal had been necessitated by the removal of the old one to Oxford; see Baillie, Stephen F., “The Courts of Westminster Hall during the Great Rebellion, 1640–1660,” Journal of Legal History 7 (1986): 26–29Google Scholar.

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81 The second part, containing Coke's commentaries on Magna Carta, was published in 1642, with the third part, concerning pleas of the crown, and the fourth part, dealing with the jurisdiction of the courts, both appearing shortly before Maguire's trial in 1644. Only the first volume, his commentaries on Littleton, appeared during his lifetime (1628).

82 This should not come as a surprise as the two men were prisoners together in the Tower of London during the late 1640s. See Orr, D. Alan, “John Lilburne and the Ancient Constitution, 1646–1649” (master's thesis, Queen's University, 1993), chap. 3Google Scholar.

83 IT, Petyt MS 511, vol. 23, fol. 120v: “It is as cleare yt a treason committed in I[reland] by and Irish subiect may be [by?] his or hers [peers?] in England by virtue of this Act though triable in Irl[and] and yt a com[m]oner of Irland brought prisoner ther against his will is triable her [heer?] for such a treason by this law, as was adiudged by a[ll] the iudges of England in Orourkes case; 33 Eliz[abeth]; as in S[i]r John Perrott 34 Eliz: contrary to the opinion of Dyer … 42 Eliz. f. 360:b resolved to be no law … now admitted resolved in the case of Hugh MacMahon, condemned for this very treason of w[hi]ch Maguire stands indicted.” I have used Prynne's own manuscript report in the Inner Temple Library in preference to his printed argument published in 1658 and other manuscript reports when attempting to characterize his position in the trial. For the trial of O'Rourke, , see The English Reports, vol. 123, Common Pleas I: Containing Benloe; Dalison; Anderson, vols. 1 and 2Google Scholar; Brownlow and Goldesbourough, vols. 1 and 2; Savile; Hutton; Bridgeman J. (London, 1912), p. 463Google Scholar; Stow, Iohn, The Annales, or Generall Chronicle of England, Begun First by Maister Iohn Stow and after Him Continued and Augmented with Matters Forreyn and Domestique, Auncient and Moderne, unto the Ende of This Present Yeare 1614 (London, 1615), sig. Sss2v–Sss3r, pp. 763–64Google Scholar. For the political background to the trials of both Perrott and O'Rourke, see Morgan, Hiram, “Extradition and Treason—Trial of a Gaelic Lord: The Case of Brian O'Rourke,” Irish Jurist 22 (1987): 285–301Google Scholar. For the trial of MacMahone, see Bodl., Tanner MS 418, fols. 5–16; although the first four leaves of this manuscript are missing, the account of MacMahone's trial is fairly complete.

84 IT, Petyt MS 511, vol. 23, fol. 117v.

85 Bodl., Tanner MS 418, fol. 40; this argument is repeated and developed at length in the printed version of Prynne's argument; see The Subjection of All Traytors, sig. G2v–G3v, pp. 28–30.

86 Bodl., Tanner MS 418, fol. 41: “But making inquiry I confesse I was informed that the Lord Slany was tryed by his Peeres But the truth of that I know not, however una hiuernuo non facit ver.”Prynne in his printed argument asserted that at Lord Slane's trial held “much about 20 years since,” the judges had confessed that “they never heard or read of any one such tryal used in Ireland” (Prynne, , The Subjection of All Traytors, sig. G 3r, p. 29Google Scholar). I quote here from Prynne's printed argument, the accuracy of which is confirmed by the independent manuscript account under the provenance of Sir Arthur Tumour (d. 1651) in the Harvard Law School, which noted of Lord Slane's trial “mes les Iudges disont qe ft vn nouell case” (HLS, MS 113, fol. 193).

87 Bodl., Tanner MS 418, fols. 31, 38, 42, 44, 48; IT, Petyt MS 511, vol. 23, fol. 119v.

88 Coke, 1 Reports, fol. 15a.

89 Coke, 9 Reports, fols. 117a–b.

90 For Coke's views on Scotland, see The Fourth Part of the Institutes, pp. 345–49.

91 Bodl, Tanner MS 418, fol. 42.

92 IT, Petyt MS 511, vol. 23, fol. 117v. See also Bodl., Tanner MS 418, fol. 43; and especially HLS, MS 113, fol. 195, which reads: “Mes es sans question qe M: Charta in cet point repeale” and that “M: Ch: in cet realm est change in mults particulars.”

93 IT, Petyt MS 511, vol. 23, fol. 119r. See also 117v: “So the Peerage of a Peere may as well be taken away by this Act, as the priviledge of a Comoner.”

94 Bodl., Tanner MS 418, fols. 35–36; HLS, MS 113, fols. 190–91. The appeal to necessity is brought out most strongly in these two manuscript accounts.

95 Bodl., Tanner MS 418, fol. 35; HLS, MS 113, fol. 191.

96 Bodl., Tanner MS 418, fol. 37.

97 I have relied extensively on Bodl., Tanner MS 418, in characterizing the arguments of Twysden, Rolle, and Hale. An account in the hands of Heneage Finch (BL, Sloane MS 3828) is obviously a much later transcription and has the disadvantage of conflating the argument of Prynne with that of Rolle and that of Twysden with that of Hale. This is unsurprising as, according to Bodl., Tanner MS 418, there is much repetition in the second arguments.

98 I assume that the citation “Inst 351” in Bodl., Tanner MS 418, fol. 49, means The Fourth Part of the Institutes, as this is the exact page of that volume on which Coke addresses the issue; see also Bodl., Tanner MS 418, fol. 53.

99 Coke, TheFourth Part of the Institutes, p. 351Google Scholar.

100 Bodl., Tanner MS 418, fol. 53.

101 Bodl., Tanner MS 418, fols. 52–53.

102 Bodl., Tanner MS 418, fol. 57. See also BL, Sloane MS 3828, fols. 66v, 68r; Coke, 11 Reports, fol. 61a. This case concerned the relationship of the several Elizabethan recusancy statutes to each other.

103 Bodl., Tanner MS 418, fols. 56–57.

104 Bodl., Tanner MS 418, fol. 60.

105 Bodl., Tanner MS 418, fol. 61; by the disputed passages I mean Coke, 7 Reports, fols. 17b–18a and 22b–23a.

106 Bodl., Tanner MS 418, fol. 65.

107 Bodl., Tanner MS 418, fol. 66.

108 BL, Sloane MS 3828, fol. 67r; while the arguments of Hale and Twysden are conflated into a single text in this report, there can be no doubt that this is Hale's argument. Both Bodl., Tanner MS 418, fol. 67, and HLS, MS 113, fol. 206, attribute the use of this precedent to Hale.

109 Bodl., Tanner MS 418, fol. 68; BL, Sloane MS 3828, fol. 67r.

110 Bodl., Tanner MS 418, fol. 68; HLS, MS 113, fols. 206–7.

111 Knafla, , ed., Law and Politics, p. 232Google Scholar; Bodl., Tanner MS 418, fol. 68; BL, Sloane MS 3828, fol. 67r.

112 Bodl., Tanner MS 418, fols. 68, 70; BL, Sloane MS 3828, fol. 67v.

113 Bodl., Tanner MS 418, fol. 70.

114 Bodl., Tanner MS 418, fol. 69.

115 Perceval-Maxwell, , Outbreak, pp. 164–65Google Scholar.

116 BL, Sloane MS 3828, fol. 67r; this is most likely Twysden's argument, as Bodl., Tanner MS 418, fol. 55, has Twysden citing “Davies rep. 29[39?],” and HLS, MS 113, fol. 200, has Twysden citing the Case of Tanistry as well.

117 Bodl., Tanner MS 418, fols. 76–77.

118 Dictionary of National Biography (DNB), 7:118–20Google Scholar, s.v. “Fitzgerald, Gerald, ninth Earl of Kildare (1487–1534).”

119 He was in fact not attainted until his son was in 1536. Silken Thomas was attainted in both the English and Irish Parliaments and executed as a commoner (DNB, 7:118–20). I have, however, found no mention in the sources relating to Maguire's trial or in the index to The Statutes of the Realm (London, 1963)Google Scholar of either an English bill of attainder or evidence that Thomas was executed as a commoner; see DNB, 7:149–50, s.v. “Fitzgerald, Thomas, Lord Offaly, tenth Earl of Kildare (1513–37).”

120 Bacon made use of the Stow in his decision and the defense counsels of Holinshed; for Bacon, see HLS, MS 113, fol. 212; and for the defense, see BL, Sloane MS 3828, fol. 70r.

121 Stow, , The Annales, sig. Bbb4v, p. 573Google Scholar; Kildare's five uncles were executed as commoners by hanging, drawing, and quartering.

122 Holinshed, Raphael, Holinshed's Chronicles: England, Scotland and Ireland, vol. 6, The Chronicles of Ireland (1965; reprint, New York, 1976), p. 304Google Scholar.

123 Bodl., Tanner MS 418, fol. 80; HLS, MS 113, fol. 212.

124 Bodl., Tanner MS 418, fols. 84–85; BL, Sloane MS 3828, fol. 72v.

125 Bacon cited Coke's The Fourth Part of the Institutes in support of this contention. The exact words of Coke, however, are: “Such Acts of Parliament as have been made in England since 10 Henry 7 wherin Ireland is not particularly named or generally included, extend not thereunto.” The assumption that Ireland was to be “generally included” in the words “out of the Realm of England” appears to be Bacon and the prosecution's interpretation. See Coke, , The Fourth Part of the Institutes, p. 351Google Scholar; Bodl., Tanner MS 418, fol. 77; see also BL, Sloane MS 3828, fol. 72r, which asserts that Bacon held that although an English peerage could “not be taken away by Generall words,” other foreign peerages (including Irish and Scottish) could.

126 Bodl., Tanner MS 418, fol. 85.

127 Ibid.; see also BL, Sloane 3828, fol. 72v.

128 BL, Sloane MS 3828, fol. 72v. Objections made on behalf of Sir George Ratcliffe, who had been sitting in the Irish House of Commons at the time of his removal by the Long Parliament, had received a similar response; see Journals of the House of Commons, 1547–1714 (London, 1742), 2:28Google Scholar.

129 73 Eng. Rep. 807 (K.B.).

130 Bodl, Tanner MS 418, fols. 82–83; see also HLS, MS 113, fol. 216: “Accordant al Calvins case, le allegiance de ascun subiect le roy, in Ireland England ou Scotland est eadem et nemy seuerable.”

131 Russell, , Fall, p. 55Google Scholar, and Causes, pp. 157–58.

132 I have been deeply influenced by Mackenny's, Richard survey study, Sixteenth Century Europe: Expansion and Conflict (New York, 1993)CrossRefGoogle Scholar.

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