¹ Prynne, William, The Subjection of All Traytors, Rebels, as Well Peers, as Commoners in Ireland, to the Laws, Statutes, and Trials by Juries of Good, and Lawfull Men of England, in the Kings Bench at Westminster, for Treasons Perpetrated by Them in Ireland, or Any Foreign Country out of the Realm of England. Being an Argument at Law Made in the Case of Connor Magwire, an Irish Baron (London, 1658)Google Scholar, sig. A2v. See also the following manuscript reports: Bodelian Library (Bodl.), Tanner MS 418, fol. 29; and Inner Temple Library (IT), Petyt, MS 511, vol. 23, fol. 120v.

² The definition offered here differs somewhat from that offered by Michael Perceval-Maxwell with respect to the parliamentary opposition in the Irish House of Lords in 1641. It is exemplified by both the arguments of Patrick Darcy in response to the Queries and by those of the prosecution in Strafford's impeachment. See Perceval-Maxwell, Michael, The Outbreak of the Irish Rebellion of 1641 (Montreal and Kingston, 1994), pp. 123–24Google Scholar.

³ The best account of Strafford's administration in Ireland remains, arguably, Kearney's, H. F.Strafford in Ireland, 1633–1641: A Study in Absolutism (Manchester, 1959)Google Scholar.

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⁵ The belief that England and Scotland were anciently one kingdom was something of a commonplace in the sixteenth century and was reiterated by Sir Edward Coke in his Institutes. See SirCoke, Edward, The Fourth Part of The Institutes of the Laws of England Concerning the Jurisdiction of Courts (London, 1644), p. 345Google Scholar.

⁶ Skinner, Quentin, The Foundations of Modern Political Thought, vol. 1, The Renaissance (Cambridge, 1978), pp. ix–xCrossRefGoogle Scholar, “The State,” in Political Innovation and Conceptual Change, ed. Ball, Terenceet al. (Cambridge, 1989), pp. 90–131Google Scholar, and Liberty before Liberalism (Cambridge, 1998), pp. 4–5Google Scholar. For a competing view, see Post, Gaines, Studies in Medieval Legal Thought: Public Law and the State (Princeton, 1964), pp. 241–309CrossRefGoogle Scholar.

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⁸ The term is borrowed here from Louis Hartz's The Liberal Tradition in America, with some modifications. Hartz's argument was that American liberalism could be distinguished from its European counterpart because it developed in an atmosphere completely free of a feudal past. It therefore did not come into conflict with feudal institutions, in particular that of a politically hegemonic landed aristocracy. This situation meant that a genuinely conservative political ideology could not develop because it lacked institutional norms that a feudal past provided. Because liberalism did not come into conflict with feudalism, socialism, the logical outcome of that conflict, failed to emerge. Postrevolutionary America was dominated by a liberal consensus characterized by an ideology of equality, inalienable rights, and social atomism that cut across regional as well as class lines. It is this author's contention that Hartz was probably more successful in explaining the failure of America to develop a genuine conservative ideology than in characterizing the nature of American liberalism. See Hartz, Louis, The Liberal Tradition in America, 2d ed. (1955; reprint, New York, 1991)Google Scholar.

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¹⁷ Sommerville has questioned not only the existence of a “commonlaw mind” or mentality but also its alleged ubiquity in early Stuart political thought and culture. See Sommerville, Johann P., “History and Theory: The Norman Conquest in Early Stuart Political Thought,” Political Studies 34 (1986): 249–61CrossRefGoogle Scholar, Politics and Ideology in England, 1603–1640 (London, 1986)Google Scholar, and his recent article “The Ancient Constitution Reassessed: The Common Law, the Court and the Languages of Politics in Early Modern England,” in The Stuart Court and Europe: Essays in Politics and Political Culture, ed. Smuts, Malcolm (Cambridge, 1996), pp. 39–64Google Scholar.

¹⁸ For the medieval background, see Edwards, R. Dudley, “‘Magna Carta Hiberniae,’” in Essays and Studies Presented to Professor Eoin MacNeill on the Occasion of His Seventieth Birthday, ed. Ryan, John (Dublin, 1940), pp. 307–18Google Scholar.

¹⁹ I have dealt with these issues in Orr, Alan, “Sovereignty, State and the Law of Treason in England, 1641–1649” (Ph.D. diss., Cambridge University, 1997), chap. 3Google Scholar.

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²² Ibid., p. 22.

²³ Tuck, Richard, Natural Rights Theories: Their Origin and Development (Cambridge, 1979), p. 83CrossRefGoogle Scholar.

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³¹ Ibid., p. 8.

³² Ibid., p. 108.

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⁴² Coke, 7 Reports, fol. 10a.

⁴³ Coke, 7 Reports, fols. 10a, 12a.

⁴⁴ Levack, Brian P., The Formation of the British State: England, Scotland and the Union, 1603–1707 (Oxford, 1987), p. 53Google Scholar.

⁴⁵ Coke, 7 Reports, fols. 2b–3a; see also Jones, , “Sir Edward Coke and Lawful Allegiance,” pp. 328–29Google Scholar.

⁴⁶ Russell, Conrad, The Causes of the English Civil War (Oxford, 1990), pp. 157–58Google Scholar.

⁴⁷ Knafla, Louis, ed., Law and Politics in Jacobean England: The Tracts of Lord Chancellor Ellesmere (Cambridge, 1977), pp. 244–45CrossRefGoogle Scholar.

⁴⁸ Russell, Causes, chap. 6.

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.

⁵⁰ Stone, Lawrence, The Crisis of the Aristocracy, 1558–1641, abridged ed. (Oxford, 1967), p. 52Google Scholar.

⁵¹ Ibid., p. 29.

⁵² Perceval-Maxwell, , Outbreak, p. 208Google Scholar.

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.

⁵⁵ BL, Sloane MS 3828, fol. 65r. Prynne's own account in the Inner Temple Library reads: “After he had pleaded Not guilty; he had pleaded yt hee is a Peer of Ireland so h[e] ought to be tried there by Peers of Peers and not by an Ordinary Iury” (IT, Petyt MS 511, vol. 23, fol. 120v). The statute usually referred to as Poyning's Law by historians is the Irish statute of 10 Henry VII, c. 4, entitled “An Act That No Parliament Be Holden in This Land until the Acts Be Certified into England”; however, counsels for both sides in Maguire's trial appear to have followed Coke's usage when referring to Poyning's Law as the statute of Poyning's Parliament 10 Henry VIII, c. 22. See Coke, , The Fourth Part of the Institutes, p. 351Google Scholar; Bodl., Tanner MS 418, fols. 41–42, 48–49; IT, Petyt MS 511, vol. 23, fol. 117v; BL, Sloane MS 3828, fols. 65r, 67v; and HLS, MS 113, fols. 187, 194, 198, 207.

⁵⁶ Bacon, not to be confused with his famous namesake, was at this time the only sitting judge in the King's Bench; see Black, , “The Courts and Judges of Westminster Hall,” pp. 28–29Google Scholar.

⁵⁷ Prynne, et al., The Whole Triall, sig. Aa 2v–Aa3r, pp. 12–13Google Scholar.

⁵⁸ Russell, Conrad, “The Theory of Treason in the Trial of Stafford,” English Historical Review 80 (1965): 46Google Scholar.

⁵⁹ Statutes at Large, 18 vols. (London, 1763–1800), 2:361Google Scholar (emphasis added; henceforth cited as SL).

⁶⁰ Coke, 7 Reports, fol. 23a.

⁶¹ Ibid., fol. 22b.

⁶² Coke, 7 Reports, fol. 23a.

⁶³ Coke, 7 Reports, fols. 17b–18a.

⁶⁴ Sommerville, , “History and Theory,” pp. 252–53Google Scholar.

⁶⁵ Hill, J. E. Christopher, “The Norman Yoke,” in his Puritanism and Revolution (London, 1958), pp. 50–122Google Scholar; also see Pocock, , Ancient Constitution, pp. 125–27, 318–21Google Scholar.

⁶⁶ Knafla, , ed., Law and Politics, p. 232Google Scholar.

⁶⁷ Davies, , Report of Cases, pp. 101, 109Google Scholar.

⁶⁸ Ball, W., ed., The Statutes at Large, Passed in the Parliaments Held in Ireland, (1786–1801), 1:56Google Scholar (henceforth cited as Irish Statutes).

⁶⁹ BL, Harl. MS 164, fol. 950r; Rushworth, , Tryal, p. 452Google Scholar.

⁷⁰ Coke, , The Fourth Part of the Institutes, p. 351Google Scholar.

⁷¹ Ibid.

⁷² The English Reports, vol. 73, King's Bench Division II: Containing Dyer Volumes 1, 2 and 3; Brook's New Cases; and Benloe (London, 1907), pp. 807–8Google Scholar; hereafter cited as 73 Eng. Rep. (K.B.).

⁷³ Crompton, Richard, L'Avthoritie et Ivrisdiction des Covrt de la Maiestie de la Roygne: Nouelmant collect et compose, per R. Crompton del milieu Temple Esquire, Apprentice del Ley (London, 1637), fol. 23aGoogle Scholar.

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⁷⁶ SirCoke, Edward, The Second Part of the Institutes of the Lawes of England: Containing the Exposition of Many Ancient and Other Statutes Whereof You May See the Particulars in a Table Following (London, 1642), p. 48Google Scholar.

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⁷⁹ Chartier, , Order of Books, pp. vii, xGoogle Scholar.

⁸⁰ This aspect of early modern legal argument has been explored by Fox, Adam in a recent article “Custom, Memory and the Authority of Writing,” in The Experience of Authority in Early Modern England, ed. Griffiths, Paul, Fox, Adam, and Hindle, Steve (London, 1996), pp. 89–116CrossRefGoogle Scholar.

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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