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Legal extradition has been around for ages – the Old Testament sets out the basic rule in Deuteronomy 19: 11-12:

But if any man hate his neighbour, and lie in wait for him, and rise up against him, and smite him mortally that he die, and fleeth into one of these cities: Then the elders of his city shall send and fetch him thence, and deliver him into the hand of the avenger of blood, that he may die.

As early as 1174 the English had mutually agreed an extradition process with the French, in the Treaty of Falaise, and occasionally practised the same with the Scots throughout the late medieval period.

Extradition always raises patriotic disputes about who has the better authority: Does it lie with the people who were sinned against or with the sinner’s own people? With the state where the offender resides, or the state where the offence was committed? And what is the authority of an aggrieved third state?

The latter scenario is very tricky – think Guantanamo Bay – so I want to talk about a Tudor case from 1591 that shows up the eternal controversy over rebellion and foreign authority.

Irish Rebel …

Three states: England, Scotland, Ireland – 1595

Sir Brian O’Rourke (1540-1591) was lord of west Breifne in the north of Ireland. He gained power by assassinating his brothers, and had a mixed relationship with the central authority of the English government at Dublin.

On the one hand, he expressed his loyalty by attending parliament in 1585, strutting about in black robes with his beautiful wife at his side. On the other hand, he was defiant of crown authority and, while paying tribute, refused to allow any judge or sheriff to encroach on his territory.

A colourful character. The English uniformally described him as “proud”, and when the Dublin government changed hands in 1587 all tolerance was discarded and the knives were out for O’Rourke. In 1588 he decided to assist the survivors of the Spanish Armada and by 1591 had fled to Scotland in the hope of raising an army to drive the English out of Breifne.

Aristocrats like O’Rourke may have ruled by law in their own territories, but the state was insisting on the rule of law, where the prince may impose himself on the subject only if the subject may impose himself on his prince. Sounds reasonable?

But this is Ireland, where theory and dreams are lost in a mind-boggling maze of allegiance. One must also take account of the rank hypocrisy of the English state in its dealings with the Irish. [Tricky subject – to find out more, read my Wikipedia biography of O’Rourke (most of what follows is taken from that article).]

Exile …

So we come to the fugitive O’Rourke in Scotland. He arrived in February with “six fair Irish hobbies and four great dogs to be presented to the king“, seeking asylum and the chance to recruit redshank mercenaries to fight in Ireland. In consultation with the English ambassador, King James VI denied him an audience, and Queen Elizabeth (relying on the Treaty of Berwick 1586) made a strong request for the delivery of O’Rourke into her custody.

The matter was put to the Scots privy council, which ordered – in the face of some objections – the arrest and delivery to English crown forces of the rebel Irish lord. Elizabeth’s councillors had held out the prospect of clemency for O’Rourke, and certain Scots councillors agreed to the extradition in the supposed expectation that his life would be spared.

O’Rourke was arrested in Glasgow, where the townsmen sought a stay on his delivery into custody, fearing for their Irish trade. The denial of their request caused an outcry, and the king’s officers were cursed as “knights of Elizabeth”, and the king himself was said to have been bought with English angels (a reference to the currency in which the king received his pension from England). Several of O’Rourke’s creditors feared that his debts would go unpaid, but the English ambassador later made a contribution of £47.

Extradition …

The extradition was sealed and O’Rourke was delivered “into the hand of the avenger of blood”. He was removed from Glasgow on the afternoon of April 3, 1591 in the midst of a riot. Two ships on the west coast were looted, and, after some crews had been killed by Irishmen in protest at O’Rourke’s treatment, guards had to be mounted on all vessels sailing to Ireland.

O’Rourke found himself in close custody in the Tower of London. But the case against him was not simple: there was a serious legal question over whether he could be tried in England for treason committed in Ireland. The judges delivered a mixed, preliminary opinion, that the trial could go ahead under the Treason Act 1543 (35 H8 c.2). Ironically the judges in Ireland had held in 1584 that the Act did not apply there.**

Meanwhile, articles had been framed at Dublin against O’Rourke and there was also an indictment laid by a jury in Sligo, near Breifne. These matters were transferred to England, where the grand jury of Middlesex found evidence of various offences of treason: the assistance to Armada survivors, the attempt to raise mercenaries in Scotland, and various armed raids O’Rourke had made into neighbouring territories in Ireland.

There was one further charge arising from an odd incident in 1589, referred to as the treason of the image – here’s the description from Cobbett’s State Trials *:

Sir Brien Ororke, a notable Traitor, and executed of late at Tyburn, about that time, in a Christmas, disposing himself to Villany, took down a Picture, and did write Elizabeth thereupon; and using the same in most contemptuous and despiteful manner, tied the same to a Horse-tail, and he with others dragged it in the dirt, and hacked it with Gallow-glass Axes, signifying how they would have used her Majesty if they had her in their power.

It has been suggested this was merely an ancient new year’s ritual, deliberately misconstrued for the sake of the trial. I don’t buy that.

Trial and Execution …

O’Rourke was arraigned on the 28th of October 1591 and the indictment was translated for him into Irish by a native speaker. One observer said he declined to plead, but the record states that a plea of not guilty was entered (probably at the direction of the court). The defendant was asked how he wished to be tried and answered that he would submit to trial by jury if he were given a week to examine the evidence, then allowed a good legal advocate, and only if the queen herself sat in judgment. The judge declined these requests and explained that the jury would try him anyway. O’Rourke responded, “If they thought good, let it be so“. The trial ended in conviction, and O’Rourke was sentenced to death.

On the 3rd of November 1591 O’Rourke was drawn to Tyburn. On the scaffold the Irish archbishop of Cashel sought the repentance of the condemned man’s sins. In response, O’Rourke abused the bishop with jibes over his uncertain faith and credit and dismissed him as a man of depraved life who had broken his vow by abjuring the rule of the Franciscans. O’Rourke was then hung, drawn and quartered.

In his essay on CustomsFrancis Bacon refers to an Irish rebel hanged at London, who requested that the sentence be carried out, not with a rope halter, but with a willow withe – a common instrument amongst the Irish. I reckon this refers to O’Rourke. It’s not clear if his wish was granted.

Conclusion …

That was the proud end of O’Rourke, and perhaps the beginning of a fresh legal concept of the British Empire. English crown authority had extended itself across borders, not just in the matter of extradition but in assuming the power within Britain to indict for offences committed “beyond the seas”. It happened at a time when the Scots king was the only real contender to succeed the heirless Elizabeth: twelve years later the crowns were unified and Britannia was on its way.

———

* The trial of John Perrot April 27, 1592 –  the original source in Google books (p.1593, column 2). Note: this is not an account of O’Rourke’s trial.

** For the Irish judicial decision see State Papers Ireland 63/111/12.i, dated 01 June 1584. There was a full examination by the English judiciary of the treason laws, including this Act, in the trial of Roger Casement, who assisted the Germans in the First World War. Casement was also Irish.

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