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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
cause_n	judge_n	law_n	matter_n	2,527	5	5.5457	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A50735	The speech of Sir Audley Mervyn, knight, His Majesties prime Serjeant at Law, and speaker of the House of Commons in Ireland delivered to His Grace James Duke of Ormond, Lord Lieutenant of Ireland, the 13 day of February, 1662, in the Presence-chamber in the castle of Dublin : containing the sum of affairs in Ireland, but more especially, the interest of adventurers and souldiers.	Mervyn, Audley, Sir, d. 1675.	1662 (1662)	Wing M1893; ESTC R904	35,291	43

dividing this Kingdom into thirty three Counties to give them all the alarm at once and to continue them on that duty when but one quarter is attaqued we shall out-bid the Winds uncertainty by a point that ever wandring within 32 points Every man comes with the Spirit of a Gamester fairly confident to win that is to have his business speedily heard the English are served with Process who must appear both Plaintiff and Defendant are drawn up with their troops of Witnesses a sort of Militia that must not run in arrears always ready to fight but uncertain when the Court will give the signal it will be charge and expence enough to both parties when it is confined to a particular County but without Priority the charge will encrease in proportion as 1. is to 33. As to the second part to post-pone the trial of the claim out in severall Counties to the time of the trial designed for the last County This will be a sole expedient to prevent surprizes in hearing no small fate to the English Defendant and of no prejudice to the Irish Claimant or if so it were de minimis which in so comprehensive a Settlement is not regarded For example If a man have but three Acres in the County of Dublin and a thousand pound per annum in the County of B. as much more in the County of C. which is set forth to several Adventurers and Souldiers when this priority of Counties and post-poning of trial to the last County is establisht and publisht all the Defendants are secure untill the tryal of the last County comes and then the several three Counties make an united defence whereas otherwise if he slip into his tryal for his three Acres in the County of Dublin and by a faint defence or otherwise he be adjudged innocent it is likely that Decree of once innocent shall be always innocent as to recover the remainder of his Estate in the other Counties that never had notice of his Tryal Next it were manifest injury to the King where the tryall may be when the first County or last County comes upon the Stage to take away the right of Election from his Majestie specially accompanied with a palpable loss and disadvantage It is yet the character of two great Generals That one cunct ando by delaying recovered the lost estate of the people The other Celerando by precipitation lost what was in possession Propos 14. That matter of fact cognizable by the Court of Claims be tryed by Jurors We do not well understand how by the Act any other way of tryall is allowed for in some cases lest there might be a mistake of what proof is intended it is particularly set down by Juries Next this Tryal by Juries is the ancient way and birth-right of the people State ●uper vias antiquas And though this Act had Enacted a tryal otherwise and onely in the affirmative it would not have excluded or barred this ancient way of tryall by the Common Law and which was before the Conquest Lamb verbo Centur. Besides it is the clear uncontroverted construction of the Law that Wheresoever a Statute mentions the word Proof the Law intends it of no other mannor of proof whatsoever then that by Juty The Court of Chancery how often doth it reconmend issues to the tryal of the Common Law Courts by Jury Matter of Law and matter of fact are divided to the first the Judges answer to the last the Jurors Upon any wrong done by the Court there lies remedy by Error for the Subject if by the Jurors then by attaint but as now the execution of this great Act stands admit the Court being Judges both of the Law and Fact will decree away my Estate Where is my remedy The highest Court of equity allows a Review Hob. 202 203. resolved by the Judges That to try causes that were naturally triable by the Common Law and by the Jury by a Chancery way would suddealy confound all Jurisdictions make all the Common Law and all the course of it needless and a handmaid to the Chancery It is further considerable that this will certainly bring great prejudice to his Majesties interest for Jurors may finde many things that the Court will not or is not bound to take notice of the finding whereof may vest the Estate in the King A verdict may finde matter of Record which was never given in evidence and so likewise matters of writings and other things not within the pleadings or ever given in evidence and nothing can more contribu●e to the just discovery of men and their demeanors in these troublesome times than by the knowledge of their neighbours Vicini vicinorum facta praesumutnur sctre And there is no reason that the English Interest having but one eye left them as to this point of discovery and that not yet recovered from the bloudshed should have that put out Sir if no other reason moved this would induce us Lest we cast a disrepute upon our ancint and known Laws that make this Island a Terra firma as if these ancient Courts were only Pleasure-boats in fair weather and could not ride it out in a storm Sir if we settle the Kingdom by any other means than by the experienced rules of those Lawes we may hastily bring our wounds to healing and skinning whilest a sanies and corruption lyes at the bottom which will break forth more incurable than at first Propos 15. That no person shall be admitted to prove his Innocency by any other Witnesses then such as have constantly lived in the English Quarters We must with your Grace's favour consider the issue again viz. Guilty or not Guilty of the Rebellion in Ireland if so no person that is Particeps criminis that is under the same guîlt ought to be admitted a witness against the King to prove the person upon his Tryal innocent Facinus quos inquinat aequat If a person be infamous if he be attainted of a false verdict or conspiracy at the suit of the King or convicted of perjury or of felony whereby they became infamous or regularly he that loseth Liberam legem cannot be a witness now if your Grace consider what hath been hinted formerly how the Rebellion in Ireland was maintained and owned by confoederacy association by their representatives in the General Assembly that were Homines generici as Divines term Adam when by his fall his posterity fell If your Grace reflect upon the spreading consequences of it that as it was voted by power and trust sent from all the Counties Cities and Burroughs within their power so it was tragically acted in every part of this Kingdom And lastly if your Grace cast your eye upon the mark and level in this case the Act of Settlement which upon these and other considerations have called it universal and almost National i● would seem but very just that such crimes should not be purged by persons guilty of the same which all under

that confoederacy by the Judgment of Law and that Act are These persoes have by their own industry lost Liberam legem their Estates are forfeited as well as if it were by Office or at tainder For What It is answered Upon the account of the Rebellion then certainly the witness must be Rectus in curia before he can make anothe so for Quicquid efficit tale est magis tale in a modus decimandi against one the rest of the Parishioners shall not be witnesses in defence of Common against a Commoner the rest shall not be witnesses Hob. 92. And yet the union and tie in these cases are not under such strict interest of association as amongst the confoederate Catholiques of Ireland It may be objected We make use of them against themselves It is easily answered It is but just and reasonale A Tarryer is the only creature to unkennel a Fox because he is got by a Fox and a Brache hound How is it possible for us to prove such a person to have been at such a battel to have contributed to their assistance to have sat in their General Assemblies but by persons frequent amongst them and of their own confoederacy and such a Witness is in Law a double Witness and the same reason urgeth the necessity of their proof by such as lived in our Quarters Besides it is known how the Law is in case of an Approver who though he confess the same Felony Stamf. pl. Cor. fol. 142. Who either by direction of the Court or at the prayer of the Felon himself is examined by the Coroner and his examinations taken upon Record for the good of the King and Commonwealth And Sir I suppose the Opinion is maintainable especially as the proceedings are if he or they that were in arms in Munster are not equally guilty of the bloud shed by the Army in Ulster they move by joynt Counsels from one publick stock of maintenance the victory of one is the victory of the other and consequently the bloud shed by one is the bloud shed by the other It is good Law that if a man received a man that is attainted of Felony by Outlary in the same County though he be ignorant of it yet he is accessary to the Felony because the Outlawry is matter of Record of whsch every one ought to take notice This were durus sermo a hard Law if when an open and universal Rebellion is maintained and the Kings Colours slying in the field and the Sword and other Ensigns of Royalty at home as notable matters of Record as an Outlawry upon Proclamations in the County-Court that persons should not take notice of it and then taking notice of it should relieve and abet the actors therein and instead of being punished as accessaries they shall triumph as witnesses to clear the principals if any accessaries were in Treason The reason of the Law why if 3. or 4. be in a room and but one gives the deadly stroke yet the other shall be accessaries is because the presence of the rest abated the courage of him that was killsd to make his own defence upon the same reason all the confoederate Catholiques are accessaries or principals If it had been understood by the Protestants in Ulster that this Rebellion had been only the attempt of Sir Philome or a Rabble as in publick papers the Irish have termed it so much bloud had not been so cheaply spilt but hearing it was universall and countenanc't by confoederacie of all that his Majesties Proclamations to lay down armes were contemned this abated their spirits and made way for dispair to dethrone resolution Propos 16. That when the Court doth give Judgment upon any cause that every respective Commissioner seriatim deliver his particular Judgment in open Court with the reasons thereof Sir It is among the ornaments of our Law that matters are very learnedly debated at the Bar and in Causes of difficulty solemnly argued by the Judges on the Bench In every leaf of our Year-Books and Modern Reports we may discern the Judges Opinions and their Reasons No doubt but Judicatures are under great temptations and a greater check cannot be upon the frailty of our Natures that they lie not under the protection of a concurrency As true it is that virtue hath been scandalized by an affi●●●y with vice so likewise it is true that vice gets a reputation by a commerce with virtue That Cato did look on was held to be a restraint to some spirits and no doubt but when so great an audience as attends that Court shall hear every particular Commissioners Judgment and the reasons of it whether it may prove as a means of caution to themselves yet surely it will give a great satisfaction to the persons concerned upon whose uninterested Judgment they may repose as well as upon their Councels argument Thus it was in the case of Ship-money And such is the solemnity of Judgments that they are en●red Consideratum est per Curiam if it be entred Videtur Curiae for the levity of it error will reverse it Propos 17. That where affidavit shall be made that one or more materia Witnesses being summoned before the Court refuse or neglect to come in that such cause be suspended This Proposal is the issue of Experience for we are certainly informed that divers persons who have formerly offered themselves as witnesses and that have declared their knowledg in order to prove the nocency of severall persons withdraw themselves some alledge they are under the censures of Excommunic●tions and Fulminations they are hard words but happily your Grace remembers them when not only your Grace but such as should give your Grace any relief or those that served under your Command have been involved in the same and perchance your Grace hath not forgot the operation of them It is said in Philosophy Actus activorum non sunt nisi in patiente bene praedisposito How receptive the complexion of the people hath been of such influences I shall pass by onely thus much I must observe if they were so powerful as to violate the Bonds of Allegiance to their lawful and merciful Soveraign they may without straining dissolve the Reciprocations of Common Equity amongst Subjects Estates rest upon Proofs and if Witnesses neither flectuntur prece aut pretio I mean their necessary and convenient expences tendred we must resort to the Law for its process If they will not mannage with a Snaffle perchance their Heads may be brought into a Rane with a Port-pit And upon Affedavit made it is but reasonable to suspend the Cause There is no priviledge in this case by Law to exempt them for giving Evidence in his Majesties behalf and for settlement of this Kingdom which is the adaequate Object of the Act There are no stronger or nearer Relations then Man and Wife that the Law in many respects esteems them as an Individuum Yet a Wife for the King may be brought to give

preserves all the part of the Act in summetry and proportion and I am sure this was the Judgement of the House upon passing the Act I shall shut up this point with that which should have had the preference even the consideration of his Majesties Revenue if the persons be held to the clause of their own Election they are to pay the same Rents the Adventurers and Souldiers pay by the Acre if otherwise their former Rents which are not considerable We know upon whose account it is that his Majesty is at that great charge to maintain an Army here it is but reasonable a round share of the charge should lie on them whilest the greatest Estates of the Irish in this Kingdom that are rationally qualified by this Act if they escape it the Protestants do beat the burthen and they scarce touch it with their little singer Propos 19. That the Officers before 49 and their Tenants shall be admitted Witnesses to give evidence for his Majesty in any causes whatsoever depending before the Court of Claims Sir We must remember again the Tryal viz. Guilty or not Guilty between the King and the party and that in matter of Treason which premised I might say no more to evince the lawfulness of any of his Majesties Subjects to give Evidence upon such a Tryal I shall admit that regularly no than shall be Witness in his own cause but this is to be understood cum grand salis It is said in our Law Judicis officium est ut res i●n tempor a rem quaerere quaesito tempore tu●us eris I have hinted before how difficult it is for proof to be made after so long a tract of time spent in War and in confusion since 41. till his Majesties happy Restoration● The Act saith the Witnesses have been slain and those few the Officiers serving before 49. whom Providence reserved when God impanne●s a Jury to enquire after bloud must be challenged The ways by which Evidence might have been had hath been by the power of the Sword drawn against the Law been obstructed and therefore it may bef●ll to such guilty persons Exceptions Frustra qui in legim peccat a lege petit auxillum Were an unlawful Assembly at this day in a riotous Posture the Justices and Sheriffs with the power of the County might resort to the place and view the force and record it but this was too dangerous an imployment for them when an Army of Horse and Foot could not undertake it without hazard and if few or no other Witnesses are left it were to impose too much irrationality on our Law that by the Rules of it Treason might pass with impunity to prevent which the Law hath recourse in extraordinary cases to extraordinary means It is a Maxim Quod remedio destituitur ipsa re valet si culpa absit and therefore the Law will allow an Avowry without Atturmnent where he hath no means to compel the Test to atturn 6 Co. 68. a. so where Impediments happen by the Act of God the Law judges according to the necessity If one be bound to repair a Bank of the Sea if he by negligence suffer the Waters to surround his Neighbours ground he is lyable to wast but if by violence of Tempest an Innundation happen he is excusable If the Heir at full age tender Livery and dyeth before he hath made homage the Law gives him the advantage of his Tender in the same way as if it had been accompanyed with all the solemn Circumstancies attending it If a Disseisor die seized the Disseisee being in Prison or beyond the Seas it is no discent Finch Nom. 17. Necessitas vincit communem legem and therefore if two Joynt-Tenants be of Land and to the Heirs of one of them they shall not joyn in a Writ of Right and yet they shall joyn in a Writ of Right of an Advowson For if they shall not joyn neither the one nor the other hath any remedy 5 Cr. 40. b. Illud quod alias licitum non est necessit as facit licitum necessit as inducit privilegium quod jure privatur And upon this ground was the Bishop of Salisburies Case judged of the grant of an Office with an Annuity contrary to the Statute 1 Eliz. But Sir was there ever greater necessity is not the settlement of the Kingdom in its critical hower is not the Banes publisht Now to give evidence or for ever after hold our peace Do not nocent persons pass in triumphant innocency whilest those stand by whose evidence if admitted would write the Letter of Condemnation on their fore-heads These were the men that broke through the Hoast to draw water to get evidence by marching into the enemies quarters daily encountring them and now the water must be spilt on the ground and they denied to say they ever did see them This is worse then to muzzel the mouth of the Oxe whilest he treads out the straw Persons in many cases may be examined where the consequence may be to obviate a p●nalty they may be subjected unto A Sheriff may be examined upon his own return A forraign Plea may be sworn An Infant levies a Fine and brings a Writ of Error to reverse it yet he may be examined Debt upon arrerages of accompt the Plaintiff may be sworn if there be any such accompt and by this he takes away the benefit of the Defendant to wage the Law The party rob'd upon the Statute of Hue and Cry shall be examined and so upon a forcible entry though the party may have restitution yet he may be examined In a Writ of Entry brought an Essoin was cast for the Defendant in the Kings Service in partibus transmarinus and the Essoiner was examined and sworn de veritate essoinae Dyer 154. I might proceed that licet iniquum est aliquem suae rei esse judicem yet in some cases one may be judge Master and Carver Lessor Covenants to repair the House if he do not and the Lessee doth it he may pay himself out of the Rent 12 H. 8.11 Taylors and Hostlers may detain the Garment and Horse till reasonable satisfaction be made It may be added how little those Officers serving his Majesty before 49. are subjected to those temptations upon which the Law in its rigour grounds it self to exclude interested persons from being Witnesses The bulk of that remote possibility of satisfaction is but gleanings and fragments their reward is that they know his Majesty hath an esteem of their services and sufferings joyn that with the worth of the persons being all Commissioned Officers and then who could without injury to the Law of charity judge them that to preserve those Oaths of Allegiance Supremacy they have sworn inviol●bly have put no rate upon their lives and fortunes and have not worshipt the Idols of the times though the Oven was seven times heated I say Who can judge nay think that for an acre of Land to be