AN ARGVMENT DELIVERED BY PATRICKE DARCY ESQVIRE By the expresse order of the House of Commons in the Parliament of IRELAND 9. Iunii 1641. Printed at Waterford by Thomas Bourke Printer to the Confederate Catholicks of Ireland 1643. 5. Iunii 1641. By the Commons House of IRELAND in Parliament assembled FOrasmuch as M. PATRICKE DARCY by a former order of this House was appointed Prolocutor at the Conference with the Lords touching the Questions propounded to the Iudges and their pretended answers to the same It is hereby ordered and the said M. DARCY is required to declare and set forth at the said Conference the manifold grievances and other causes and grounds that moved this House to present the said Questions to the Lords House to be propounded as aforesaid and to give particular reasons for every of the said Questions Copia vera Extract per Phil. Fern Cleric Parl. Com. AN ARGVMENT DELIVERED BY PATRICKE DARCY ESQVIRE By the expresse orders of the Commons-House of the Parliament of Ireland at a conference with a Comittee of the Lords House in the dyning roome of the Castle of Dublin 9. Die Iunij 1641. upon certaine Questions propounded to the Iudges of Ireland in full Parliament and upon the answers of the said Iudges to the said Questions And in the conclusion a declaration of the Commons House upon the said Questions THE QVESTIONS Questions VVherein the House of Commons humbly desired that the House of the Lords would be pleased to require the Iudges to deliuer their resolutions IN asmuch as the Subjects of this kingdome are free loyall and dutifull Subjects to his most Excellent Majesty their naturall Liege Lord King And to be governed only by the Common Lawes of England Statutes of force in this kingdome in the same manner forme as his Majesties Subjects of the Kingdome of England are and ought to be governed by the said Common Lawes and Statutes of force in that kingdome which of right the Subjects of this kingdome doe challenge and make their protestation to be their birth-right and best inheritance yet in asmuch as the unlawfull actions and proceedings of some of his Majesties Subjects Ministers of Iustice of late yeares introduced and practised in this kingdome did tend to the infringing and violation of the lawes liberties and freedome of the said Subjects of this kingdome contrary to his Majesties Royall and pious intentions Therfore the Knights Citizens and Burgesses in Parliament assembled not for any doubt or ambiguity which may be conceived or thought of for or concerning the premisses nor of the ensueing questions but for manifestation and declaration of a cleere truth and of the said Lawes and Statutes already planted and for many ages past setled in this kingdome The said Knights Citizens and Burgesses doe therefore pray the House of the Lords may bee pleased to command the Iudges of this kingdom forthwith to declare in writing their resolutions of and unto the ensuing Questions and subscribe to the same 1. Whether the Subjects of this kingdome be a free people and to be governed only by the Common Lawes of England and Statutes of force in this kingdome 2. Whether the Iudges of this Land doe take the oath of Iudges and if so whether under pretext of any Act of State Proclamation Writ Letter or Direction under the great or privie Seale or privie Signet or Letter or other Commandment from the Lord Lieutenant Lord Deputy Iustice Iustices or other Chiefe Governor or Governors of this kingdome they may hinder stay or delay the suite of any Subject or his Iudgment or execution thereupon if so in what Case and whether if they doe hinder stay or delay such Suite Iudgement or Execution thereupon what punishment doe they incurre for their deviation and transgression therein 3. Whether the Kings Majesties privie Councell either with the Chiefe Governor or Governors of this kingdome or without him or them be a place of Iudicature by the Common Lawes and wherein Causes betweene partie and partie for debts trespasses accompts possession or title of land or any of them may be heard and determined and of what Civill Causes they have Iurisdiction and by what law and of what force is their order or decree in such Cases or any of them 4. The like of the chiefe Governors alone 5. Whether grants of Monopolies be warranted by the Law and of what and in what cases and how and where and by whom are the pretended transgressors against such grants punishable and whether by fine mutillation of members imprisonment losse and forfeiture of goods or otherwise and which of them 6. In what Cases the Lord Lieutenant Lord Deputy or other Chiefe Governor or Governors of this kingdome and Councell may punish by fine imprisonment mutillation of members pillorie or otherwise and whether they may sentence any to such the same or the like punishment for infringing the Comands of or concerning any Proclamations or Monopolies and what punishment doe they incurre that vote for the same 7. Of what force is an Act of State or proclamation in this kingdome to bind the libertie goods possession or inheritance of the Natives thereof whether they or any of them can alter the Cōmon Law or the infringers of them loose their goods chattells or leases or forfeite the same by infringing any such Act of State Proclamation or both and what punishment doe the sworne Iudges of the Law that are Privy Councellors incurre that vote for such Acts and execution thereof 8. Are the Subjects of this kingdome subject to the Marshall law and whether any man in time of peace no enemy being in the field with Banners displaied can be sentenced to death if so by whom and in what Cases if not what punishment doe they incurre that in time of peace execute Marshall law 9. Whether voluntary oathes taken freely before Arbitrators for affirmance or disaffirmance of any thing or the true performance of any thing be punishable in the Castle Chamber or in any other Court and why and wherefore 10. Why and by what law or by what rule of policie is it that none is admitted to reducement of fines and other penaltie in the Castle Chamber or Councell-Table untill he confesse the offence for which he is censured when as Revera he might be innocent thereof though suborned prooffes or circumstance might induce a censure 11. Whether the Iudges of the Kings Bench or any other Iudges of Gaole delivery or of any other Court and by what law doe or can deny the copies of Indictments of Felony or Treason to the parties accused contrary to the lawes 12. What power hath the Barons of the Court of Exchequer to raise the respite of homage arbitrarily to what rate they please to what value they may raise it by what law they may distinguish betweene the respite of homage upon the diversitie of the true value of the fees when as Escuadge is the same for great and small fees
takes away the Kings prerogative for cutting woodes where he pleased many other cases there are upon this learning By this great Iustice and bounty of the Kings of England the Kings grew still greater and more permanent The people became free and wealthy no King so great as a King of rich free people If the Councell-table may retaine cognizance of causes coÌ„trary to the Law to so many Acts of Parliament why may they not avoyde all Acts of Parliament aswell This no man will affirme nor they intend My Lords two objections seeme to stand in my way First the multitude of presidents countenancing the cognizance of the Councell-board in the matter aforesaid some in ancient times and of late in great clusters throngs Secondly that in book Cases it appeares the Iudges of Law did take advice in their Iudgements with the Kings Counsell as 40 Ed. 3. fol. 34. 39. Ass placito primo 35. Edw. 3. fol. 35. 19. Edw. 3. fitz Iudgement 174. In answer to the first as for the multitude of presidents hinc illae lachrymae there is our griefe I find in our Bookes that presidents against Law doe never bind there is no downe right mischiefe But a president may be called upon to beare it up Iudicandum est legibus non exemplis Cooke 4. fol. 33. Mitâ—ons case Cooke 11. fol. 75. Magdalen Colledges case Cooke 4. fol. 94. Slades case multitudo errantium non parit errori patrocinium I answer to the second that in those yeare books of Edw. 3. It is true that the Iudges appealed to the Kings Councell for advice in law but who gave the Iudgment the Iudges and what Iudgement a legall Iudgement and no paper or arbitrary Iudgment If this objection were materiall I might answer further that the Councell here may bee understood the great Councell viz. the Parliament propter excellentiam vide Cooke 6. 19. 20. Gregories case By the stat of 4. Edw. cap. 3. 14. and 36. Edw. 3. c. 10. Rastall fol. 316. Parliaments were then to be held once a yeare the booke of 39. Edw. 3. fol. 35. in the case of a formedon may well warrant this explanation of those books the Bishops Abbots Earles and Barons mentioned in the said books may be well taken to be the Lords house which might sit by adjournements in those times of frequent Parliaments My Lords I kept you too long upon this Question I will be as short in the next And so I conclude the answer as to this point is no answer and whether the matters therein comprized be of dangerous consequence I submit to your Lordships If the Chiefe Governor and Councell of this kingdome cannot heare or determine the causes aforesaid surely the Chiefe Governor alone cannot doe it all I have said to the third I doe apply to this Question together with one president worthy your observation in 25. Edw. 1. Claus. m. 20. where I have an authenticke coppie viz. Claus. vicessimo quinto Eaw primi m. 20. Rex dilecto fideli suo Iohanni VVogan Iusticiario suo Hiberniae salutem cum intellexerimus quod vos comunia placita quae totis temporibus retroactis per brevia originalia de Cancellaria nostra Hiberniae placitari deberent consueverunt per billas petitiones vacuas jam de novo coram vobis deduci facitis etiam terminari per quod feodum sigilli nostri quo utimur in Hibernia fines pro breuibus dandis ad alia commoda quae nobis inde solent accrescere di versimode subtrabuntur in nostri incolarum partium illarum damnum non modicum gravamen nolentes igitur hujusmodi novitates fieri per quas nobis damna gravia poterunt evenire vobis mandamus quod si ita est tunc aliqua placita comunia quae per brevia originalia de Cancellaria nostra praedictâ— de jure consuetudine hucusque visitata habent terminari per petitiones billas coram vobis deduci placitari aut terminari de caetero nullatenus praesumatis per quod vobis imputari debeat aut possit novum incommodum in hac parte Teste Rege apud Shestoniam xxiij die Martij Convenit cum Recorda VVilliam Collet Your Lordships may see that in Edward the firsts time the King took notice First that the said petitions were void Secondly that his revenues were thereby impaired Thirdly that it was against the Custome of the land of Ireland Fourthly that it was to the grievance of the people of Ireland Fifthly he comanded Iohn VVogan then Chiefe Governor not to presume to deale in the like proceedings thereafter I marvaile not a little wherefore the Iudges in our time after so many acts of Parliament since 25. Edw. 1. should make any doubt or question to answer this cleerly My Lords I humbly desire not to be misconstrued in the debate of this Question my meaning is not to pry into his Majesties just prerogatives Qui enim majestatem scrutatur Principis corruet spelndore ejus the old saying in English is as good he that hewes a block above his head the chipps will fall into his eyes The Question warrants no such scrutinie I may not officiously search into it The Question is onely whether grants made of monopolies to a subject be good in law And whether by pretext of such grants the Kings free people may loose their goods by seisures or may be fined imprisoned pillored papered c. Those things have been done and acted in many cases where the Monopolites were Iudges and parties in which case if an act of Parliament did erect such a Iudicatorie it were void as against naturall Iustice Cooke 8. 118. a Doctor Bonhams case I speake to that thing that odious thing Monopolie which in law is detestable Cooke 11. 53. b. the Taylors of Ipswich case by which any subject is hindered to exercise his lawfull trade or lawfully to acquire his living and the Condition of a bond being to restraine any man from his trade the bond is void in law 2 Hen. 5. 5. b. In this case the Iudge Hull swoare par Dieu if hee who tooke this bond were present he would fine him to the King and commit him to prison by which case I observe that the consent of the partie cannot make it good That a Patent of any such Monopolies is a grievance against the Common wealth and consequently voyd in law the case was of Cards which is observable Cook 11. 85. 86. 87 c. Darcy Allens Case There is a Condition tacite or expresse in every grant of the Kings Ita quod patriamagis solito non gravetur vel oneretur vid. Fitz. N. br fol. 222. Cod. ad quod damnum This learning is so cleare as to Monopolies thus stated that I will dwell no longer upon them as I hope they may no longer reside among us The
or penaltie upon the libertie goods or lands of him that would bring an assize of Daren presentment for a prebendary I doe finde that a provision was made in haec verba Promissum est à Consilio Regis quod nullus de potestate Regis Franciae respondeat in Anglia antequam Anglici de jure suo in terra Regis Franciae c. Yet by that provision no forfeyture upon the lands or goods of him who sued a Frenchman in England at that time It is true that a Custome may bee contrary to the law and yet allowable because that it may have a lawfull commencement and continuall usage hath given it the force of a law Consuetudo ex certa rationabili causa vsitata privat communem legem but no proclamation or act of state may alter law For example sake at Common-law a Proclamation cannot make lands devisable which are not devisable by the law nor alter the course of descent The King by his Letters-patents cannot doe the same nor grant lands to bee ancient demesne at this day nor make lands to be descendible according the course of Gavelkind or Borrough English unlesse that the custome of the place doth warrant the same nor Gavelkind land to be descendible according the course of law à fortiori an act of state or proclamation which I hold to bee of lesse force then the Kings patent under the great Seale cannot doe it And in the case of Irish Gavelkind it is not the proclamation or act of state that did abolish or alter it but the very custome was held to be unreasonable and repugnant to law If an act of state bee made that none within the kingdome shall make Cards but Iohn at Stile this act is voyde for the King himselfe cannot grant a Patent under his great Seale to any one man for the sole feazance of Cards So it is of all proclamations or acts of state that are to the prejudice of Trafficke trade or Merchant affaires or for raysing of Monopolies or against the freedome and libertie of the subjects or the publicke good as I said before Also if proclamations or acts of state may alter the law or bind the libertie goods or lands of the subjects then will acts of Parliaments bee to no purpose which doe represent the whole body of the kingdome and are commonly for creating of good and wholesome lawes Therefore I conceive that all proclamations made against law are absolutely voyde and that the infringers thereof ought not to loose or forfeyte their liberty goods or lands And for the punishment of such Iudges that vote herein I referre to the sixt they deny to answer to this question This answer is generall and dangerous withall it is generall viz. they know no ordinary rule of law for it they ought to declare the law against it the right use of it here they commend and yet they doe not describe that right use therefore they commend two things the one the life of a subject to be left to Marshall law in time of peace the other they leave it likewise discretionary when they describe not the right use their last resort is to the Kings prerogative I have said before that Lawyers write the King can doe no wrong and sure I am our King meanes no wrong the Kings of England did never make use of their prerogative to the destruction of the subject nor to take away his life nor libertie but by lawfull meanes I conceive this advise should become the Iudges other advise they find not in their law Bookes The statute of Magna Charta cap. 29. and 5. Edw. 3. cap. 9. the petition of right the third of King Charles in full Parliament declared Tell them nay doe convince them that no man in time of peace can bee executed by Marshall law My Lords I could wish the Iudges had timely stood in the right opposition to the drawing of causes proper for the Kings Courts to an aliud examen the improper and unlawfull examen thereof on paper petitions whereby the Kings Iustice and Courts were most defrauded whereas an arbitrement being a principall meane to compose differences arising betweene neighbours and to settle amitie betweene them without expence of time or money was a course approved by law all our Bookes are full of this It is by consent of parties by arbitrators indifferently chosen bonds for performance thereof are not voyde in law and Iudgements given upon arbitrements and such bonds in our Bookes without question or contradiction to the lawfullnesse of an arbitrement or bond in proper Cases the principall good wrought by them was the hindering of suites debates at law therfore that exception fals of it selfe then I am to consider how far an Oath in the particular is punishable I will not speake of an Oath exacted or tendered that is not the question the question is of a voluntary Oath which the arbitrator cannot hinder I speake not to the commendation of any such Oath nor doe I approve of any Oath other then that which is taken before a Magistrate who derives his authoritie from the King the fountaine of Iustice but onely how farre this Oath is punishable by the late statute 10. Caroli fol. 109. a prophane Oath is punished by the payment of twelve pence no more vide stat of Marl. cap 23. 52. Hen. 3. viz. Nullus de caetero possit distringere liber ' tenentes suos c. nec jurare faciat libere tenentes suos contra voluntatem suam quia nullus facere potest sine praecepto Domini Regis which statute teacheth us that an exacted or compulsive Oath is by the Kings authority a voluntarie Oath is not reprehended 19. Edw. 4. 1. a. It was not reprehended in the case of an arbitrement this voluntarie Oath is punishable in the Star-chamber as the Iudges would affirme which I conceive to bee against the law First for that wee cannot learne any president in England for it It was but lately introduced here therefore the house of Commons is unsatisfied with the answer to this question in Boyton and Leonards case in the Star-chamber in Ireland Boyton was dismissed in a Case to this purpose about the yeare 1630. or 1631. It hath beene the late introduced course of the Castle-chamber and Councell-table not to admit the party censured to the reducement of his fine before hee acknowledged the justnesse of the sentence pronounced against him and that for divers reasons First the course of a Court being as ancient as the Court and standing with law is Curiae lex as appeareth by our bookes 2. Co. 16. b. Lanes case 17. Long 5. Edw. 4. 1. but if it be a course introduced de novo in mans memorie or a course that is against law it cannot be said to be lex Curiae for consuetudo licet sit magnae authoritatis nunquam tamen praejudicat manifestae veritati
and are proportionable by Parliament 13. Whether it be censurable in the Subjects of this kingdome to repaire unto England to appeale to his Majestie for redresse of injuries or for other lawfull occasions if so why and in what condition of persons and by what law 14. Whether Deanes or other dignitaries of Cathedrall Churches be properly and de mero jure Donative by the King and not Elective or Collative if so why by what law whether the confirmation of a Deane de facto of the Bishops grant be good valid in law or no if not by what law 15. Whether the issuing of Quo-warrantoes out of the Kings Bench or Exchequer against Burroughes that anciently and recently sent Burgesses to the Parliament to shew cause why they sent Burgesses to the Parliament be legall or if not what punishment ought to be inflicted upon those that are or hath been the occasioners procurers and Iudges of and in such Quo-warrantoes 16. By what law are Iurors that give verdict according to their conscience and are the sole Iudges of the fact censured in the Castle-Chamber in great fines and sometimes pillored with losse of eares boared through the tongue and marked sometimes in the forehead with a hot iron and other like infamous punishment 17. By what law are men censurable in the Castle-Chamber with the mutillation of members or any other brand of infamy and in what causes and what punishment in each case there is due without respect of the qualitie of the person or persons 18. Whether in the Censures in the Castle-Chamber regard be to be had to the words of the great Charter viz salvo contenemento c 19. Whether if one that steales a sheepe or commit any other felony after flyeth the course of Iustice or lyeth in woods or mountaines upon his keeping be a traytor if not whether a Proclamation can make him so 20. VVhether the testimony or evidence of Rebels Traytors protected theeves or other infamous persons be good evidence in law to bee pressed upon the tryalls of men for their lives or whether the Iudge or Iurors ought to be Iudge of the matter in fact 21. By what law are Fayres and Markets to be held in Capite when no other expresse tenure be mentioned in his Majesties Letter-Pattents or grants of the same Fayres and Markets although the rent or yearely summe be reserved thereout Copia vera Extract per Phil. Fern Cleric Parl. Com. THE ANSWER AND DECLARATION OF THE IVDGES Vnto the questions transmitted from the Honorable House of Commons unto the Lords Spirituall and Temporall in Parliament assembled whereunto they desired their Lordships to require the said Iudges answers in writing forthwith May 25. 1641. IN all humblenesse the said Iudges doe desire to represent unto your Lordships the great sence of griefe that they apprehend out of their feare that they are falne from that good opinion which they desire to retayne with your Lordships and the said house of Commons in that notwithstanding their humble petition and reasons to the contrary exhibited in writing and declared in this most honorable house your Lordships have over-ruled them and often commanded their answers unto the said Questions although they have informed your Lordships and still with assurance doe averre that no president in any age can be shewen that any Iudges before them were required or commanded to give answer in writing or otherwise unto such generall or so many questions in such a manner in Parliament or elsewhere unlesse it were in that time of King Richard the 2d which they humbly conceive is not to be drawne into example And therefore they yet humbly supplicate your Lordships so farre to tender their profession and places and their relation to his Majesties service as to take into your serious considerations the reasons that they have annexed to this their answer before their answer be entred or admitted among the Acts of this high Court and that if your Lordships in your wisdomes shall after thinke fit to give any Copies of their Answers that for their Iustification to the present and succeeding times your Lordships will be pleased to require the Clerke of this most honorable House that no Copies may be given of the said answers without the said reasons 2. Secondly the said Iudges humbly desire your Lordships to be pleased to be informed that the words in his Majesties writs by which they are commanded to attend in Parliament are that the said Iudges shal be present with the Lords-Iustices or other chiefe Governor and your Lordships at the said Parliament called Pro arduis urgentibus regni negotijs super dictis negotijs tractaturi consilium suum impensuri And they desire your Lordships to take into your consideration whether any advice may be required by your Lorpships from them but concerning such particular matters as are in treaty and agitation and judicially depending before your Lordships upon which your Lordships may give a judgement order or sentence to be recorded among the Records and Acts of this honorable House and whether they may be commanded by your Lordships to subscribe their hands unto any opinion or advice they shall give upon any matters in debate before your Lordships there and whether your Lordships can conceive any finall resolution upon the matters contayned in the said Questions 3. Thirdly although the said questions are but twenty two in number yet they say that they contayne at least fifty generall questions many of them of severall matters and of severall natures within the resolution of which most of the great affaires of this kingdome both for Church and Common-wealth for late yeares may be included and therefore the said Iudges do openly aforehand professe that if any particular that may have Relation to any of those questions shall hereafter come judicially before them and that eyther upon argument or debate which is the sive or fann of truth or discovery of any generall inconvenience to the King or Common-wealth in time which is the mother of truth or by further search or information in any particular they shall see cause or receive satisfaction for it they will not be concluded by any answer they now give to any of these generall questions but they will upon better ground and reason with their predecessors the Iudges in all ages with holy Fathers Councels and Parliaments retract and alter their opinion according to their conscience and knowledge and the matter and circumstances of the cause as it shall appeare in judgement before them it being most certayne that no generall case may be so put but a circumstance in the matter or manner may alter a resolution concerning the same 4. Fourthly the succeeding Iudges and age notwithstanding any answer given by the now Iudges may be of another opinion then the now Iudges are without disparagment to themselves or the now Iudges in regard that many particular circumstances in many particular cases may
Common-wealth And they say that the matter manner restrictions limitations reservations and other clauses contayned in such grants or licences and the Commissions or Proclamations thereupon and undue execution thereof and severall circumstances may make the same lawfull or unlawfull whereof they are not able to give any certayne resolution before some particular commes in judgement before them neyther are they otherwise able to answer the generall in the particulars of the said question of what in what cases how where and by whom or which of them wherein whosoever desireth further satisfaction he may please to have recourse unto the knowne cases of Monoplies Printed authorities and written Reports and unto the statute of 21. Ia. in England concerning Monopolies and the severall exceptions and limitations therein 6. To the sixt they say they can no otherwise answer then they have already in their answer to the third question for the reasons therein setforth 7. To the seventh they say that a Proclamation or act of State cannot alter the common-law and yet Proclamations are acts of his Majesties prerogative and are and alwayes have beene of great use and that the contemners of such of them as are not against the law are and by the constant practise of the Star-chamber in England have beene punished according the nature of the contempt and course of the said Court and although acts of State are not of force to bind the goods possessions or inheritance of the subject yet they have beene of great use for the setling of the estates of very many subjects in this kingdome as may appeare in the Report of the case of Irish gavelkind in Print And further to that question they cannot answer for the reasons in their answer unto the third question set forth 8. To the eight they say that they know no ordinary rule of law by which the subjects of this kingdome are made subject to Marshall-law in time of peace and that they find the use thereof in time of peace in England complayned off in the petition of right exhibited to his Majestie in the third yeare of his raigne And that they conceive the granting of authority and Commission for execution thereof is derived out of his Majesties Regall and prerogative power for suppressing of suddaine and great insolencies and insurrections among armies or multitudes of armed men lawfully or unlawfully convented together the right use wherof in all times hath beene found most necessary in this kingdome And further to that question they cannot answer for that as they conceive it doth concerne his Majesties Regall power and that the answering of the other part of the question doth properly belong to another profession whereof they have no Cognizance 9. To the ninth they say that as the taking of any Oath before any but such Iudges or persons as have power to give or demaund an Oath for decision of controversies is by most Divinâ— in most cases counted to be a rash Oath and so an offence against God within the third Commandement so the prescribing and demaunding of a set Oath by any that cannot derive power so to doe from the Crowne where the fountaine of Iustice under God doth reside is an offence against the law of the Land and as for voluntary and extra judiciall Oathes although freely taken before arbitrators or others they say as this kingdome is composed in many particulars as the nature consequence of the cause or the quality of the person who taketh or before whom the same is taken may concerne the Common-wealth or the members therof such taking of such Oathes or proceeding or grounding on such Oath in deciding of controversies according to the severall circumstances that may occurre therein or the prejudice it may introduce to the Common-wealth may be punishable by the Common-law or if it grow unto an height or generall inconvenience to the common-wealth or members thereof in the Castle-chamber For though such an Oath be voluntary yet in most cases it is received by him that doth intend to ground his Iudgment thereon and after the Oath is taken the arbitrator or he that intends to yeeld faith to the party that tooke the Oath doth examine him upon one or more questions upon the said Oath unto the answer whereof hee doth give faith and assent trusting on the said Oath And whereas Oathes by Gods institution were chiefly allowed to bee taken before lawfull Magistrates for ending of controversies yet common experience doth teach in this kingdome that oftentimes orders and acts grounded on such voluntary Oathes beget strife and suits and commonly such orders when they come to bee measured by rules of law or equitie in the Kings Courts become voyde after much expence of time and charge that we say nothing of that that thereby many causes proper to the Kings Courts are drawn ad aliud examen and thereby the Kings justice and Courts often defrauded and declined 10. To the tenth they say that they are not Iudges of rules of policie but of law and that they know no certayne rule of law concerning reducement of fines The same being matters of his Majesties own meere Grace after a man is censured for any offence And that they know no law that none shall be admitted to reducement of his fines or other penalties in the Courts in the question specified untill he confesse the fact for which he was censured But forasmuch as the admittance to a reducement after conviction for an offence is matter of Grace and not Iustice It hath beene the constant course of these Courts both here and in England for cleering of his Majesties justice where the partie will not goe about to cleere himselfe by reversall of the censure or decree not to admit him to that grace untill he hath confessed the justnesse of the sentence pronounced by the Court against him And that the rather for that commonly the ability and disabilitie of the partie doth not appeare in judgement before them but the nature and circumstances of the offence according to which they give sentence against him or them in terrorem after which when the partie shall make the weaknesse of his estate appeare or that the Court is otherwise ascerteyned that they doe of course proportion the censure or penaltie having regard to his estate 11. To the eleventh they say That neither the Iudges of the Kings Bench as they informe us that are of that Court or Iustices of Gaole delivery or of any other Court doe or can by any law they know deny the copies of Indictments of Felony or Treason to the partie only accused as by the said question is demanded 12. To the twelfth they say that where lands are holden of the King by the Knights service in Capite the tenant by the strict course of Law ought in person to doe his homage to the King and untill he hath done his homage the ancient course of the Exchequer hath beene yet is to issue
to receive no reward Sixtly to take no Fee of any other then the King Seventhly to commit such as breake the peace in the face of Iustice Eightly not to mantayne any suite Ninthly not to deny Iustice notwithstanding the Kings Letters or Commandements and in that Case to certifie the King of the truth Tenthly by reasonable wages to procure the profits of the Crowne Eleventhly if he be found in default in any the matters aforesaid to bee in the Kings mercie body Lands and goods The second reason principally moveth from the following particulars In the Kings Bench the Major-part of the Iudges denyed his Majesties writ of prohibition to the late Court called the high Commission in a cause meerely temporall The foure Courts of Iustice durst not proceede in any cause depending before the chiefe Governor or at the Counsell-board upon paper petitions or rather voyde petitions these paper-petitions being the oblique lines aforesaid grave Iudges of the law were commonly assistants and more commonly referrees in the proceedings upon these paper-petitions in what causes in all causes proper for the Cognizance of the common-Common-law and determinable by writs of right and petitions of right and so to the most inferior action the like of the Courts of equitie whether this be lawfully to serve the King and his people or whether the King was at losse by the non-prosecuting of the causes aforesaid in their proper orbes by originall writs which might afford the King a lawfull revenue and likewise by the losse of fines and amerciaments naturall to actions at the Common-law or whether the losse aforesaid was made knowne to his Majestie or who consented to the Kings damage therein or whether this be a denyall of justice to deferre it upon paper Orders or Commaunds be conformable to that Oath I will pretermit yet your Lordships may even in this mist discerne a cleere ground for the second question The motive which in part stirred the third and fourth questions was the infinity of Civill causes of all natures without exception of persons without limitation of time proceeded in ordered decreed and determined upon paper-petitions at Counsell-board by the chiefe Governor alone The Commons of this kingdome observing the Iudges of the law who were Counsellors of estate to have agreed and signed unto such Orders the Iudges of the foure Courts and Iustices of Assize in all the partes of the kingdome to bee referrees upon such proceedings wherby these new devises were become so notorious that as all men heavily groaned under them so no man could bee ignorant of them By the colour of Proclamations more more frequent and of the Orders and Acts of state at Counsell-board which were in a manner infinite and other proceedings mentioned in these questions these effects were produced First imprisonment close imprisonment of such numbers that a great defeate in a battle could hardly fill more gaoles and prisons then by these meanes were surcharged in Ireland Secondly by seizures made by crewes of Catchpoles and Caterpillers his Majesties Leige people lost their goods as if lost in a battaile nay worse without hope of ransome Thirdly possessions were altered and that so often and so many that more possessions were lost by these courses in a few yeares then in all the Courts of Iustice in Ireland in an age or two The fourth effect was this after liberty was taken away propertie altered and possession lost by the wayes aforesaid that was not sufficient the subject must be pillored papered stigmatized and the image of God so defaced with indignities that his life became a continuing death the worse of punishments in these feates were advising and concurring some grave and learned Iudges of the Land who were Counsellors of estate as by their signatures may appeare The house of Commons finding as yet no warrant of president nor countenance of example in the law of England to beare up the courses aforesaid have drawne the said Questions from the effects aforesaid My Lords the liberty estate in lands or goods the person of the subject nay his honor and spirit being invaded altered and debased in manner aforesaid there remayned yet one thing his Life See how this is brought into play nothing must escape were not the Gates of Ianus shut up was not the Kings peace universall in his three kingdomes when a Peere of this Realme a Counsellor of the Kings a great Officer of state was sentenced to be shot to death in a Court Marshall what the cause was what defence was permitted what time given and what losse sustayned I submit to your Lordships as therein most neerely concerned were not others actually executed by Marshall law at such time as the Kings Iustice in his Courts of law was not to be avoyded by any person whatsoever This was in part the ground of the eight question This question is plaine a late introduced practise here contrary to former use and no appearing president to warrant such prosecution for a voluntary Oath and the great benefit and quiet accrewed to his Majesties people by arbiterments conceived by consent of parties hath in part occasioned this question Heretofore this Confession was not required for the Iustnesse of the Iudgements was then able enough to beare them up and if the judgement in some Case had beene otherwise what force can the confession of a delinquent add to a Iudiciall act this is part of the reason for this question A complaint exhibited in the house of Commons touching the denyall of the Copy of a Record which the complaynant undertooke to Iustifie in part raised this question In King Iames his time by an order conceived in the Court of Exchequer upon great debate and warranted by ancient presidents the respite of homage was reduced to a certaintie viz. two shillings sixe pence sterling For a Mannor yearly and so for Townes and other portions of Land this course was alwayes held untill now of late the respite is arbitrarily raysed as appeares by the second remembrances certificate viz. I finde that anciently before the beginning of King Iames his raigne every Mannor payed three shillings foure pence Irish per annum every Towne-land twentie pence Irish per à nnum as a fine for respite of homage but cannot finde any order or warrant for it untill the fifth yeare of the said Kings raigne and there in Easter Terme 1607. I finde an order entred directing what homage every man should pay a Copy whereof you have already from mee the preamble of which orders sheweth that that matter had beene long depending in the Court undecided which induceth me to beleeve that there was no former president or order in it About three yeares after the freeholders of the Countie of Antrim as it should seeme finding this rate to be too heavy for them they petitioned to the Lord Chichester then Lord Deputy for reliefe therein I finde his Lordships opinion to the
sine licentia Domini Regis Fitz. Natur. br fol. 85 the words of this writ cleares the Common-law in the point it begins with a datum est nobis intelligi c. The King being informed that such person or persons in particular doe intend to goe whether ad partes exteras viz. foraigne Countries to what purpose to prosecute matters to the prejudice of the King his Crowne the King in such a case by his writ warrant or Command under the great Seale privie Seale privy Signet or by proclamation may command any subject not to depart the kingdome without the Kings licence this writ is worthy to be observed for the causes aforesaid therein expressed the writ extendeth only to particular person or persons not to all the subjects of the kingdome no man can affirme that England is pars extera as to us Ireland is annexed to the Crowne of England and governed by the lawes of England our question set forth the cause viz. to appeale to the King for Iustice or to goe to England for other lawfull causes whereas the said writ intends practises with foraigne Princes to the prejudice of the King and his Crowne At the Common-law if a subject in contempt of this Command went ad partes exteras his Lands and goods ought to be seized 2. 3. Philip Mary Dy. 128. b. and yet if the subject went to the parts beyond the Seas before any such speciall inhibition this was not punishable before the statute of 5. Rich. 2. cap. 2. as appeares 12. 13. Elizab. Dy. 296. a. So that before the inhibition the law was indifferent now the question is at Common-law whether the subject of Ireland having no Office can be hindered to appeale or goe to the King for Iustice The King is the fountaine of Iustice and as his power is great to command so the Scepter of his Iustice is as great nay the Scepter hath the priority if any be for at his Coronation his Scepter is on his right side his Sword on his left side to his Iustice he is sworne therefore if any writ Commandement or proclamation bee obtayned from him or published contrary to his Iustice it is not the act of the King but the act of him that misinformed him then will I adde the other words of the question viz. or other his lawfull occasions as I said before in the case of a writ of error in the Kings Bench of England or in the Parliament of England which are remedies given by the law therefore the Common-law doth not hinder any man to prosecute those remedies which are given to everie subject by the same A scire facias may be brought by the King in England to repeale a patent under the great Seale of Ireland of lands in Ireland 20. Henr. 6. fol. a. An exchange of lands in England for lands in Ireland is a good exchange in law 8. ass placit. 27. 10. Edw. 3. fol. 42. tempor Edw. 1. Fitz voucher 239. What law therefore can prohibit any subject for to attend this scire facias in England or to make use of his freehold got by exchange The law being thus then it was considered what alteration was wrought by one branch of the statute of 5 Rich. 2. cap. 2. by which the passage is stopped out of the kingdome Lords notable Marchants and the Kings souldiers excepted I conceive this statute doth not include Ireland I never heard any Irishman questioned upon this statute for going into England nor any Englishman for comming into Ireland untill the late proclamation by the statute 34. Edw. 3. c. 18. in England all persons which have their heritage or possessions in Ireland may come with their beasts corne c. to and fro paying the Kings dues The statute of 5. Rich. 2. did never intend by implication to avoyde the said expresse statute of Edw. 3. betweene the Kings two kingdomes being governed by one law in effect the same people the words of the statute of 5. Rich. 2. are observable the principall scope of it is against the exportation of Bullion in the later part there is a clause for licences to be had in particular Portes by which I conceive that the Customers of those Portes may grant a let passe in such Cases It is therefore to be considered whether that branch of the said statute of 5. Rich. 2. was received in Ireland I thinke it is cleare it was not for by the statute 10. Henr. 7. cap. 22. in Ireland all the generall statutes of England were received in Ireland with this qualification viz. such as were for the Common and publicke weale c. And surely it cannot be for the weale of this kingdome that the subjects here be stayed from obtayning of Iustice or following other lawfull causes in England The statute of 25. Henr. 6. cap. 2. in Ireland excuseth absentes by the Kings command and imposeth no other penaltie so that upon the whole matter this question is not answered For so much as they doe answer of this question the answer is good for there is no doubt to be made but Deaneries are some donative some elective and some may be presentative according to the respective foundations I will only speake of a Deane de facto if a Deane bee made a Bishop and hath a dispensation Decanatus dignitatem in commenda in the retinere the confirmation of such a Deane is good in law This was the case of Evans and Acough in the Kings Bench in England Ter. 3. Caroli where Doctor Thornbow Deane of Yorke was made Bishop of Limmericke with a dispensation to hold in the retinere after his patent and before consecration it was adjudged his confirmation was good and yet if a Deane be made a Bishop in any part of the world this is a Cession Co. 5. 102. a. VVindsors case Davis Rep. 42. 43. c. The Deane of Fernes his case 18. Elizab. Dy. 346. the confirmation of a meere Laicus being Deane is good though he be after deprived 10. Eliz. Dy. 273. 12. 13. Elizab. Dy. 293. although the Deane be after deprived by sentence declaratorie yet his precedent confirmations are good So I conceive that a Deane who hath stallum in Choro vocem in Capitulo during all the time of his life and never questioned and usually confirmed all Leases without interruption is good And to question all such acts 40. 50. 100. yeares after is without president especially in Ireland untill of late yeares and in this kingdome few or no foundations of Bishopricks or Deaneries can bee found upon any Record therefore I conceive the Iudges ought to answer this part of the question My Lords I know you cannot forget the grounds I layd before for this question nor the time nor the occasion of the issuing of Quo warrantoes nor what was done thereupon in the Court of Exchequer Now remayneth to consider of the answer
meane and mediocritie which regulated the power of that great Court in former times had not beene of late converted and strayned unto that excesse wee saw these questions had never beene stirred but many things being extended to their uttermost Spheare or I feare beyond the same enforce mee although unwillingly and slowly to looke upon our lawes and just rights The answer to the sixteenth viz. whether Iurors giving their verdicts according to their conscience may be punished in the Castle-chamber by fines excessive mutillation of members c. I finde in my Lord Barcklayes case placit. Com. 231. from the beginning the usuall tryall at Common-law was devided betweene the Iudges and the Iurors matters of fact were and are tryable by the Iurors and matters in law by the Iudges the antiquitie of this tryall appeares Glan fol. 100. b. in Henr. the seconds time Bracton 174. Briton fol. 130. a. Fortescue de laudibus legum Angliae fol 54. 55. So much being cleared they being Iurati ad dicendum veritatem are Iudges of the fact Co. 9. 13. a. Dowmans case 25. c. Strata Marcellas case and infinite other authorities they are so farre Iudges of the fact that although the partes bee estopped to averre the truth yet these Iudges of the fact shall not be so estopped because they are upon their Oath Co. 2. 4. b. Goddards case Co. 4. 53. a. Raw-hins case 1. Henr. 4. 6. a. c. They are so far Iudges of the fact that they are not to leave any part of the truth of the evidence to the Court Co. 1. 56. b. Chauncellor of Oxfords case nay they may finde releases and other things of their knowledge not given in evidence 8. ass plac 3. Co. 10. 95. b. Doctor Leyfields case what is done by Iudges shall not bee tryed by Iurors Co 9. Strata Marcellas case 30. Ergo è converso but if any doubt in law ariseth upon the evidence there is a proper remedie by bill of exception by the statute of VV. 2. cap. 30. which Co. 9 Dowmans case fol. 13. a. saith to be in affirmance of the ancient Common-law as to this point of law the Iudges of the law are Iudges of the validitie of the evidence but under favour not of the truth of the fact as it is set forth in the answer if the Iudges of the law doe erre in matter of law the party grieved hath his remedie by writ of error but hee is not punishable if practise or misdemeanor doe not appeare 2. Rich. 3. fol 9. 10. Fitz Natur. br 243. E. 27. ass 18. 4. Henr. 6. and other bookes by the same reason the Iudges of the fact if they goe according to their conscience as our question is stated if the Iury in this case goe contrary to their evidence the Common-law gives a full remedy by attainte wherein the judgement is â—ost heavie if the Iurors have done amisse as I said before to another question yet in this action the law gives credit to the verdict before it be falsified for if a judgement be given upon this verdict and after an attainte is brought no super sedeas can bee in this writ to hinder the partie who recovered from his execution 5. Henr. 7. 22. b. 33. Henr. 6. 21. otherwise in a writ of error Your Lordships therefore may see what faith is given to verdicts at common-Common-law I observe the notable case of 7. Henr. 4 41 b. where Gascoigne answereth the King that would give judgement contrary to his private knowledge As for the next part of these two questions it was the late height of punishments and the drawing of more causes to that Court then in former times moved this debate out of the statute of 3 Henr. 7. cap. 1. concerning this Court I make these observations first that the Iudges of that Court according their discretion may examen great offences secondly that they may punish according to the demerits of delinquents after the forme of the statute thereof made thirdly in like manner forme as they should or ought to be punished if they were convict by the due order of the Common-law For the first what discretion this is we finde in our books Co. 5. fol. 100. Rookes case discretion is to proceede within the bounds of law and reason at Common-law a Man in a Leete is fined but in ten groats for a light bloudshed in the Castle-chamber a Noble-man for an offer of a switch to a person inferior to him upon provocation perhaps given was fined in foure thousand pound committed to long imprisonment and low acknowledgements were imposed on him For the second and third observations if men of quality and ranke were pillored papered stigmatized and fined to their destruction in cases where if they had beene convicted by due order of law they could not be so punished by any law or statute I humbly offer to your Lordships sad and grave consideration And whether these courses be warranted by the said statute of 3. Henr. 7. cap. 1. or by any other law or statute of force in this Realme and if all Iurors bee brought to the Castle-chamber what shall become of that great and noble tryall by which all the matters of our law regularly are tryable And so I conclude that the answers to these two questions are not satisfactorie Whether in the Censures in the Castle-chamber regard be to be had to the words of the great Charter viz. salvo contenemento c. I conceive that in the Censures in the Castle-chamber regard is to bee had to the words of the great Charter viz. Salvo contenemento c although in the great Charter and in the statute of VVestminst 1. cap. 6. amerciamentum and misericordia are expressed and not fines or redemptio because a fine and an amerciament are in the old yeare bookes used promiscuously as Synonima for one and the same thing and therefore in 10. Edw. 3. fol. 9. 10. The Iurors of the Abbot of Ramseis Leete being sworne and refusing to present the articles of the Leete were amerced and there it is resolved because all did refuse to present all shall be amerced but when the same shal be imposed or affeared shall bee imposed severally upon each of them secundum quantitatem delicti salvo contenemento suo yet the summe there imposed was revera à fine and not an amerciament as an amerciament is now taken and here with agrees 4. Eliz. Dy. 211. b. in these words if the Iurors of a Leete refuse to present the articles of the Leete according to their Oath the Steward shall assesse a fine upon every of them and Godfries case 11. Rept ' fol. 42. b. 43. a. Secondly if by intendment of law as the law was conceived at the time of the making of the statutes of Magna Charta and VVestm. 1. fines and amerciaments had not beene or taken to be Synonyma the feazors of those acts would
with other proofes is not materiall for other proofe will doe the deede without this bad concurrence and so will a violent presumption as if two goe safe into a Roome one of them is found stabbed to death the other may suffer this presumption is inevitable the law of God the lawes and statutes of the Realme protect and preserve the life of man it were therefore hard to take away by circumstance such a reall and noble essence This concurrence marrs the evidence it helps it not If one gives false testimonie once by the ancient law his testimonie shall never be received againe Leges Canuti Regis Lamb Saxons lawss fol. 113. p. 34. much lesse where they are notorious ill doers this and the reason and ground of this question already opened will I hope give your Lordships satisfaction For this question I will state it without any tenure reserved by expresse words as the question is put whether the reservation of rent or Annuall summe will rayse this to bee a tenure in capite I conceive it will not for sundrie reasons First from the beginning there have beene Fayres and Markets and no president booke-case or Record to warrant the new opinion in this Case before Trinitie terme 1639. in the Court of wards Secondly the practise of that Court was alwayes before to the contrary in the same and the like Cases Thirdly it is a thing as the question is of new creation and never in esse before for this see the Bookes of 3. Henr. 7. 4. 12. Henr. 7. 19. 15. E. 4. 14. 46. E. 3. 12. 21. Henr. 6. 11. Stamford prerogative 8. Therefore there is no necessitie of a tenure thereof upon the Conquest it was necessarie that all lands should be held by some tenure for the defence of the kingdome 1. The statute of Quia emptores terrarum c. praerogativa Regis speake of Feoffator Feoffatores c. therefore a tenure I meane this tacite or implyed tenure was originally onely intended of Land 2. The King may reserve a tenure in all things not mainerable by expresse reservation or Covenant 44. Edw. 3. 45. Fitz. natur brevium 263. c. but that is not our Case 3. Heere it is left to construction of Law which is aequissimus Iudex and lookes upon the nature of things and therefore in Cases that include Land or where land may come in liew therof a tenure may be by implication as a mesnalty a reversion expectant upon an intayle the like 10. Edw. 44. a. 42. Edw 3. 7. Fitz. Grants 102. and divers other bookes 4. No tenure can be implyed by reason of a rent if the rent be not distreynable by some possibility of its owne nature upon the thing granted as appeares by 5. Henr. 7. 36. 33. Henr. 6. 35. 40. Ed. 3. 44. 1. Henr. 4. 1. 2. 3. Fitz-cessabit 17. 5. The distresse upon other land is the Kings meere prerogative like the case of Buts Co. 6. 25. a distresse may be for rent in other land by Covenant 6. This is no rent because it issueth not out of land 7. If the Patentee here had no land there can be no distresse in this case 8. This is a meere priviledge it issueth out of no lands and participates nothing of the nature of land all the cases of tenures in our bookes are eyther of land or things arising out of land or some way or other of the nature of land or that may result into land or that land by some possibilitie may result into it Therefore I humbly conceive that new opinion is not warranted by law or president These My Lords are in part the things which satisfied the house of Commons in all the matters aforesaid they are now left to the judgement and Iustice of your Lordships QVESTIONS PROPOVNDED IN PARLIAMENT AND Declarations of the Law thereupon in Parliament WHither the Subjects of this kingdome bee a free people and to be governed onely by the Common-lawes of England and statutes of force in this kingdome The subjects of this his Majesties kingdome of Ireland are a free people and to be governed onely according to the Common-law of England and Statutes made established by Parliament in this kingdome of Ireland and according to the lawfull customes used in the same VVhither the Iudges of this land doe take the Oath of Iudges and if so whether under pretext of any Act of State Proclamation writ letter or direction under the great or privie Seale or privie Signet or Letter or other Commandment from the Lord Lieutnant Lord Deputy Iustice or other chiefe Governor or Governors of this kingdome they may hinder stay or delay the suite of any subject or his Iudgement or execution thereupon if so in what cases and whether if they doe hinder stay or delay such suite judgement or execution thereupon what punishment doe they incurre for their deviation and transgression therein That Iudges in Ireland ought to take the Oath of the Iustices or Iudges declared and established in severall Parliaments of force in this kingdome and the said Iudges or any of them by colour or under pretext of any act of state or proclamation or under colour or pretext of any writ Letter or direction under the great Seale privie Seale or privie Signet from the Kings most Excellent Majestie or by colour or pretext of any Letter or Commandement from the chiefe Governor or Governors of this kingdome ought not to hinder or delay the suite of any subject or his judgement or execution thereupon and if any letters writs or commaunds come from his Majestie or any other or for any other cause to the Iustices or to other deputed to doe the law and right according to the usage of the Realme in disturbance of the law or of the execution of the same or of right to the parties the Iustices and other aforesaid ought to proceed and hold their Courts and processes where the pleas and matters bee depending before them as if no such letters writs or commaundments were come to them and in case any Iudge or Iudges Iustice or Iustices bee found in default therein he or they so found in default ought to incurre and undergoe due punishment according the law and the former declarations and provisions in Parliament in the case made and of force in this kingdome or as shall be ordered adjudged or declared in Parliament And the Barons of the Exchequer Iustices of assize and Goale-delivery if they be found in default as aforesaid it is hereby declared that they ought to undergoe the punishment aforesaid VVhether the Kings Majesties privie Councell eyther with the chiefe Governor or Governors of the kingdome or without him or them be a place of Iudicature by the common-Common-lawes and wherein causes betweene party and party for debts trespasses accompts possession or title of Lands or any of them and which of them may bee heard and determined and
processe of distringas out of the second remembrance Office to distrayne the tenants ad faciendum homagium or pro homagio suo respectuaÌ„do upon which processe the Shiriffes returneth issues And if the Tenant doe not therupon appeare and compound with the King to give a fine for respite of homage then the issues are forfeyted to the King for his contempt but if he appeare then the Court of Exchequer doth agree with him to respite his homage for a small fine wherein they regulate themselves under the rate expressed and set downe in England by vertue of a privie Scale in the 15. yeare of Queene Elizabeth whereby the rates are particularly set downe according to the yearely value of the Lands which rates are confirmed by act of Parliament in 1. Iacob Regis cap. 26. in England before which time there was not any such certayntie but the same rested in the discretion of the Court by the rule of Common-law and so it doth at this day in Ireland howbeit we conceive that the Court of Exchequer here doe well to regulate their discretions by those rates in England and rather to be under then to exceede the same which the Barons there doe as they doe informe us that are Iudges of the other Courts 13. To the 13. they say that they know no rule of Law or statute by which it should be ceÌ„surable in the subjects of this kingdome to repayre into England to appeale unto his Majesty for redresse of injuries or for other their lawfull occasions unles they be prohibited by his Majesties writ or proclamation or other his Command But they find that by the statute of 5. Rich. 2. the passage of the subject out of the Realme is prohibited without speciall licence excepting Noblemen others in the said statute specially excepted some inference to that purpose may be made upon the statute of 25. Hen 6 cap. 2. in this kingdome 14. To the 14. they say that some Deanries dignities not Deanes or dignitaries as the question propounds it are properly de mero jure donative by the King some Elective some Collative according to the first foundation usuage of such Churches they humbly desire that they may not be required to give any further answer to this question for that it may concerne many mens estates which may come judcially in question before them 15. To the 15. they say that they conceive that where priviledges are claymed by any body politicke or other the Kings Counsell may exhibite à quo-warranto to cause the parties clayming such priviledges to shew by what warrant they clayme the same that the Court cannot hinder the issuing of processe at the instance of the Kings Atturney or hinder the Kings Atturney to exhibite such informations But when the case shall upon the proceedings be brought to judgment then not before the Court is to take notice and give judgâ—ment upon the merite circuÌ„stances of the cause as upon due consideration shal be conceived to be according to law in which case the Iudges or the Kings Atturney as they conceive ought not to be punished by any ordinary rule of law or statute that they know But for the particular case of Quo-warranto for that it hath beene a great question in this present Parliament so concernes the highest Court of justice in this kingdome also concernes two other of his Majesties Courts of justice therin his Majesties prerogative in those Courts they say that they cannot safely deliver any opinion therein before it comes judicially before them and that they heare it argued and debated by learned Counsell on both sides 16. To the sixteenth they say that although the Iurors be sole Iudges of the matter of fact yet the Iudges of the Court are Iudges of the validitie of the evidence and of the matters of law arising out of the same wherein the Iury ought to be guided by them And if the Iury in any criminall cause betweene the King and party give their verdict contrary to cleere and apparent evidence delivered in Court they have beene constantly and still ought to be censured in the Star-chamber in England and Castle-chamber here for this misdemeanor in perverting the right course of justice in such fines and other punishment as the merites circumstances of the cause doth deserve according to the course of the said Courts for that their consciences ought to be directed by the evidence and not to bee misguided by their wills or affections And if the Iury know any matter of fact which may eyther better or blemish their evidence they may take advantage thereof but they ought to discover the same to the Iudges And they say that this proceeding in the Court of Castle-chamber is out of the same grounds that writs of attaint are against a Iury that gives a false verdict in a Court of Record at the Common-law betwixt partie and partie which false verdict being found by a Iury of twenty foure notwithstanding that the first Iurie were Iudges of the fact yet that infamous judgement was pronounced against the first Iury which is next or rather worse then judgment to death and did lay a perpetuall brand of perjury upon them for which reason it was anciently called the villanous judgement and they say that the law to direct the punishment for such offences is the course of the said Court which is a law as to that purpose the statute of 3. Henr. 7. cap. 1. and other statutes in force in this kingdome 17. To the seventeenth they say they can answer no otherwise then they have in their answer to the next precedent question 18. To the eighteenth they say that in a Legall construction the statute of Magna Charta in which the words Salvo contenemento are mentioned is only to be understood of amerciaments not of fines yet where great fines are imposed in terrorem upon the reducement of them regard is to be had to the abilitie of the persons 19. To the nineteenth they say that if one doth steale a sheepe or commit any other felony and after flyeth the course of justice or lyeth in woods or mountaynes upon his keeping yet doth he not thereby become a Traytor neyther doth a Proclamation make him so the chiefe use whereof in such a Case is to invite the partie so standing out to submit himselfe to justice or to forewarne others of the danger they may runne into by keeping him company or giving him mayntenance and reliefe whereby he may the rather submit to Iustice 20. To the twentieth they say that the testimony of Rebels or Traytors under protection of Theeves or other infamous persons is not to bee used or pressed as convincing evidence upon the tryall of any man for his life and so is his Majesties printed instructions as to persons condemned or under protectioÌ„ yet the testimony of such persons not condemned being fortified with other concurring
Court thus Recorded I know much of the petitioners Lands is waste and no part of it improved by any manner of husbandrie other then in grazing of Cattle and in sowing of little Oates And the proprietors of the Land to be for the most part very poore and needie and the two Children of Neale mac Hugh to be yet under age Wherefore I thinke it fit that the Court of Exchequer should consider thereof and rate the respite of homage accordingly for a time untill the Countie be better inhabited and these men made to understand that it is not an imposition but a lawfull duty and payment due to his Majestie This is my advise and opinion for the present xxx die April 1610. Arthur Chichester Vpon this the said Freeholders were admitted to pay but foure pence Irish every Twogh of Land it consisting of sixteene Towne-lands and according to this rate they still payed untill the yeare 1630. and then the Court taking notice of the unequalitie of it made this order 5. Febr. 1630. After this I finde that all his Majesties Tenants did conforme themselves to the said order of 1607. untill Easter Terme 1637. in which Terme this ensuing order was made which is the last that I can finde Recorded in my Office Henry VVarren I finde by the payments made in the late Queen Elizabeths time that the rates of homage payed was according to the said order of 1607. Henr. VVarren Divers were actually imprisoned and long kept in close restraint for none other cause then in dutifull manner be seeming termes to have made knowne their particular complaints to his sacred Majesty imprisonment of this kind was frequent therefore it is not improper to demaund by what law it was done Many have lost great estates and possessions by Orders of the Counsel-bord although the Deanes elected or actuall Deanes confirmed their estates if no donation from the Crown were found upon Record to the confirming Deane and this after that by verdict at the Common-law the Deanrie was found to be Elective this Question therefore is not improper After such time as this Parliament was agreed upon at Counsell-board to bee summoned some persons having prepared bloudy and destroying Bils to be past as lawes and intending to defeate by act of Parliament very many of his Majesties faithfull subjects of this kingdome of their estates and liberties and having obtayned some undue elections by threates or intreaties mistrusting that all should run cleere before them have caused twenty foure Corporations to bee seized upon the returne of the first summons in severall Quowarrantees procured by Sir Richard Osbalston late Atturney generall to shew cause why they sent Burgesses to the Parliament the said Corporations having formerly sent Burgesses to the Parliament even to the last Parliament by meanes whereof the said Corporations sent no Burgesses in the beginning of this Parliament from this act being done in a legall Court against the high Court of Parliament sprung this question which My Lords is of consequence if Parliaments be so as without question they are The faith which the Common-law giveth to verdicts the Iurors being Iudges of the fact the late usage of that great Court growing to the punishment of Iurors and others in greater numbers by heavier fines and more shamefull punishments without respect to estate age sex or qualitie then was or can be observed in all precedent times and the just sense thereof moved the house of Commons to propound these questions My Lords a poore fellow stole or was accused to have stolne a Sheepe feare or guilt or both brought him to the mountaynes another relieved him the reliever was executed as a Traytor and after the principall submits to tryall and judgment and was acquited this example My Lords I hope may warrant the question The testimony of such infamous persons have brought men of qualitie to their tryall for their lives and being acquited the Iurors being of very good ranke were heavily censured in the Castle-chamber aswell by fines surmounting their abilities as by most reprochfull punishments upon these acts the question is grounded There being no warrant in the Printed law or otherwise for ought yet appearing for to make this a Tenure in Capite the constant course of the Court of wards taking it to be no Tenure in capite since the erection of that Court untill Trinitie terme 1639. it was then and not before certified a tenure in capite by the then Atturney of that Court who said that the Iudges concurred with him in that opinion by which meanes Counsell did not then argue and the next terme after were denyed to be heard ne aliquid contra responsum prudentum this being done in the Court of wards the question did spring from thence The two and twentieth question was not yet agitated in the house of Commons nor brought thither therefore My Lords that may be deferred to a further conference By this which I have opened being the smaller part of those weighty reasons delivered unto mee by the house of Commons yet the best I can for the present remember I hope your Lordships are satisfied that those questions were not intrapping fayned or circumventing or phantazies as formerly I touched In the next place I will labour to give your Lordships a more cleere satisfaction that those questions grounded upon sufficient and apparant reasons and causes doe deserve cleare and satisfactorie answers and to remove all doubts The questions I will no more call Questions I will humbly style them Causes of weight and Consequence wherein the Lords and Commons of this Realme on the behalfe of themselves and their posteritie in after times are Plaintifes and only delinquents of an high nature are defendants in this high Court of Parliament It is not unworthy your Lordships consideration to whom the questions were put I answer unto the Iudges of the Land who are and sure I am ought to be first etate graves secondly eruditione praestantes thirdly usu rerum prudentes fourthly publica authoritate constituti The persons unto whom being thus qualified the place where is most considerable it is the high Court of Parliament the Iudges are called thither Circa ardua urgentia negotia regni of the whole kingdome what to doe Quod personaliter intersint cum Rege ac cum caeteris de consilio suo super dictis negotijs tractaturi consiliumque impensuri Therefore they are not called thither to bee ciphers in augurisme or tell clockes no those great causes are mentioned in their writ and upon that great Oath they are to give faithfull counsell and make direct answers to your Lordships in all things wherein ardua urgentia regni are concerned and whether that concernment doe comprehend the matters aforesaid I doe humbly offer to your Lordships great consideration most of the matters included in those questions are solemnely voted in both houses
as grievances as may appeare by the petition of Remonstrance the Iudges could not be ignorant of this and do take notice of the same in their preamble My Lords In the third place no man is more unwilling to discover the nakednesse of my Fathers if any be then I am yet the question being not whether the Arke should be rescued from the Philistines but whether it should be preserved against the negligence of some Ophni and Phines in their hands that have the custodie of it Therefore I must obey and as I am Commanded I will offer unto your Lordships how the preamble and answers of the Iudges might bee sufficient and wherein they are both defective and dangerous The Iudges in the first reason of their preamble insist much upon the want of president in this kinde onely one president in the raigne of King Richard the seconds time which they pray may not be drawne into example My Lords This reason requires a more cleere explanation which wee hope shall be demaunded in due time It urgeth us to this just protestation that before the best flower in his Majesties Royall garland should wither wee shall be ready to water the same with showers of our bloud even to the last drop in his Majesties service and with our lives and substance will mantayne the just prerogative of our gracious Lord King Charles and his posteritie whom wee pray God to flourish on earth over us and ours untill all flesh bee convoked before the last great Tribunall Yet My Lords that president might be spared by the Iudges of this no more for the present I will not exasperate had they pleased more naturall presidents might be stood upon and easily found and even in that ill remembred president if the Iudges in Richard the seconds time had made direct and lawfull answers they had escaped punishment and prevented many inconveniences which ensued My Lords if presidents be necessarie of many I will enumerate a few Deutronomy cap. 17 vers. 8. Si difficile ambiguum c. Almightie God directs us the way to truth Deutronom cap. 32. vers. 7. Interroga patrem tuum c. The Romanes sent to Greece for a declaration of their lawes in causes like to happen Tit. Liv. decad. 3. fol. 45. g. Lancelotus de Ecclesiasticis Constitutionibus tit. 3. Canonum alij sunt decreta Concjliorum alij statut ' îalij dicta sanctorum Rottoman de Iure Civili tit. 4. Praetorum dicta responsa prudentum which cannot bee without questions venerable Bede lib. 1. cap. 27. S. Augustine demaunded generall questions M. Sleiden super Eadmerum fol. 171. VVilliam the Conqueror did call to the Iudges to declare and compile Edgars lawes and S. Edwards lawes which were buried and forgotten by the interruption of the Danish governement In the time of King Henr. 3. certaine knights of Ireland desired resolutions in England concerning Coparcenerie and received resolutions according to the lawes of England and this in Parliament as appeares in the statute called statut de Hiber 14. Henr. 3. in the printed Booke Ordinationes factae de statut ' terr' Hiberniae at large in the Roll of 7. Edw. 2. parte prima memb. 3. 18. Rot ' Claus. anno 2. Edw. 3. membr. 17. Rex concedit quod ad primum Parliamentum omnes Hiberni qui volueâ—int legibus utantur Angliae sine Cartis inde fiendis Rot. Claus. anno 5. Edw. 3. parte prima membr. 25. The same law in Case of wardships Ordinationes pro Regimine Hiberniae 5. Edw. 3. Pat ' membr. 25. 35. Edw. 3. parte prima memb 9. which Consilium ought to bee understood of the Parliament as hereafter I will declare Ordinatio facta de ministris Regis in Hibernia Claus. 18. Edw. 3. parte secunda memb. 9. 17. ann. 20 Edw. 3. parte prima in dorso anno 25. Edward 3. membr. 30. My Lords I have not yet learned how Sillogismes can be made or answers Cathegoricall without propositions I am as ignorant after what manner Ordinances or reformation could bee made without questions or propositions It may be objected that the word Quere or Question is new that word was nothing strange in Edward the thirds time Rot. Parliament 21. Edw. 3. num 41. The Commons in Parliament prayed that it may be inquired how it comes to passe that the King hath no benefit of his land of Ireland considering hee had more there then any of his ancestors may it not be as lawfull to inquire in this Parliament wherefore the King is in debt and yet his people here gave him more supplies then to any of his ancestors or wherefore his lawes are not observed I find no difference In the printed yeare Booke 2. Rich. 3. fol. 9. the King propounded severall questions to the Iudges in the Star-chamber in Cases not then depending Their second reason is fully answered to the first and for more cleare satisfaction the words of the writ which bring them hither are viz. to give Counsell circa ardua urgentia negotia regni the matters now in agitation are maxime ardua maxime urgentia The yeare bookes of law doe prove Provisiones Ordinationes and no cause is said to bee depending f. N. B. 32. d. 39. Edw. 3. 7. b. Thorp The Lords being assembled can make Ordinances as strong as a statute by the opinion of that Iudge such Ordinances cannot be avoyded but in Parliament an act or statute may bee avoyded or repealed in Parliament Where they say that the Questions though in number but twenty two yet they include fifty two questions that all the affaires of Church Common-wealth may bee included in the resolution thereof and that they will not bee concluded by their answers to the same My Lords the house of Commons made the questions so many as they are for the more cleare explanation of their candid intentions and not for difficultie whereas they might reduce them to fewer but to the end the answers might be the more punctuall and satisfactorie unto positive points and knowne law and the custody of the law the great treasure of the Land being committed by his Sacred Majesty to their trust to the end they should declare how and after what manner they issued and dispensed that treasure and discharged that great trust and not to bee bound by their resolutions in Parliament For Iudges are and ought to bee bound by resolutions in Parliament and not Parliaments by them To their fourth reason what succeeding ages will doe we do well hope they will not do amisse that no occasion shall bee administred hereafter which may inforce the house of Commons to propound the like questions That by reason the Kings prerogative and the concernment of his other interests they cannot answer without his Majesties especiall direction considering the duties of their places and their Oathes My Lords It is
to this positive question the answer is too generall viz the Parliament is concerned therein and so are two other Courts of Iustice and likewise the Kings prerogative is interested therein wherefore they cannot answer till the matter come in debate and be argued before them The consideration of the Court of Parliament will much conduce to the clearing of this question Co. preface to the fourth Reporte the exposition of Lawes ordinarily belongeth to the Iudges but in maximis difficillimisque causis ad supremum Parliament ' Iudicium Cooke preface to the ninth Report describes that supreame Court in this manner si vetustatem spectes est antiquissima si dignitatem est honoratissima si jurisdictionem est capacissima of this enough the learning is too manifest that it is the Supreame Court nay the primitive of all other Courts to that Court belongs the making altering or regulating of lawes and the correction of all Courts and ministers Looke upon the members of it first the King is the head who is never so great nor so strong as in Parliament where he sits insconced with the hearts of his people the second are all the Lords Spirituall Temporall the third the knights Citizens Burgesses these three doe represent the whole Common-wealth Looke upon the causes for which they are called Circa ardua urgentia negotia Regni looke upon the priviledges of it if any member or members servant thereof bee questioned or any thing ordered against him in any other Court sitting the Parliament or within forty dayes before or after all the proceedings are voyde by the lawes and statutes of this Realme The not clearing of this question is against the Kings prerogative which is never in greater splendor or Majestie then in Parliament and against the whole Common-wealth therein concerned as aforesaid the King hath foure Councels the first is commune concilium which is this Councell secondly Magnum Concilium which is the Councell of his Lords thirdly the privie Councell for matters of estate fourthly the Iudges of his law Co. institut 110. a. Then by what law or use can the inferiour of these foure Councels question the first Supreame and mother Councell I know not the state of the question considered which is of Burroughs who anciently and recently sent to the Parliament by the same law that one member may bee questioned forty eight members may bee questioned as was done in our case in one day six such dayes may take away the whole house of Commons and consequently Parliaments especially as this case was for upon the returne of the first summons foure and twenty Corporations were seized the learning therefore is new that it should rest in the discretion of the Sheriffes who might make unfaithfull returnes and of three Barons in the Exchequer who have no infallibilitie to overthrow Parliaments the best Constitutions in the world Search hath beene made in the two bookes of Entries in old Natura brevium and in all the yeare bookes that are printed there is not one president that in any time ever so badde such à Quo-warranto was brought in Co. entries 527. a à Quo-warranto was brought against Christopher Helden and others to shew cause why they claymed such a Borrough c. which is nothing to our purpose the quo-warrantoes in the question and those which were in the Exchequer did admit them Borroughs and yet required them to shew cause why they sent Burgesses to the Parliament this is oppositum in objecto to admit them Burgesses and to question their power to send Burgesses which were formerly both anciently and recently so admitted in Parliament Master Littleton the first booke we reade cleares this question sectione 164. There are ancient Townes called Borroughs the most ancient Townes of England all Cities were Borroughs in the beginning and from them come Burgesses to the Parliament so that in effect if an ancient Borrough ergo they sent Burgesses to the Parliament all these ancient Townes in England did remayne of Record in the Exchequer 40. ass plac 27. In Ireland they doe remayne of Record in the Parliament Rolles the tryall of them is by the Record it selfe and not otherwise If a Towne send Burgesses once or twice it is Title enough to send ever after 11. Henr. 4. 2. So if a Peere called once by writ and once sitting as a Peere Co. institut fol. 9. b. hee is a Baron ever after In the foure ordinary Courts they have priviledge for the meanest of their members or servants why not the Parliament It was the custome of the ancient grave Iudges to consult with parliaments in causes of difficultie weight a parliament was then to be at hand they did not stay to advise with them in a point which concerned the parliament so neerely and which was of the greatest weight of any cause that ever was agitated in the kingdome In our books all the entries it is true and cleare that Quo-warrantoes are brought and ought to bee brought against such as clayme priviledges Franchises Royalties or the like flowers of the Crowne but to question Burgesses in this nature is to question the Kings prerogative in an high degree priviledges take from the King parliaments adde and give unto him greatnesse and profit in parliaments he sits essentially in other Courts not altogether so but by representation what greater disservice could bee done the King then to overthrow parliaments how shall Subsidies bee granted or the kingdome defended how shall ardua Regni be considered Oh the Barons of the Exchequer I wot will salve all these doubts I may not forget My Lords how the law of the land the whole Common-wealth is herein concerned and upon that I will offer a Case or two If a statute be made wherein the private interest of a subject or the generall interest of the Common-wealth be enacted the King by his Letters-patents cannot dispence with this statute Co. 8. 29. a. Princes case though they be with à non obstaute nor make any grant Non obstante of the Common-law therefore I conclude this question First that it is against the Kings prerogative to issue such à Quo-warranto as is here stated Secondly it is against the Common-wealth as destructive of parliaments and consequently of government Thirdly this is no priviledge but a service done to the King whole Common-wealth which cannot receive so much as a debate but in parliament Fourthly all the proceedings in the Excheqver touching this parliament were Coram non judice as was already voted in both houses as for the punishment we come not to urge your Lordships to punish other then with reference to that which I said before viz. the Oath These two questions have so neere a relation the one to the other meeting in the Center of the Castle-chamber that I will speake to them at once or as to one question My Lords if that golden
of what Civill causes they have jurisdiction and by what law and of what force is their order or decree in such cause or any of them That the Councell-table of this Realme eyther with the chiefe Governor or Governors is no Iudicatorie wherein any action reall personall popular or mixt or any suite in the nature of the said actions or any of them can or ought to bee commenced heard or determined and all proceedings at the Councell-table in any suite in the nature of any of the said actions are voyde especially causes particularly provided for by expresse acts of Parliament of force in this kingdome onely exempted The like of the chiefe Governor above The proceedings before the chiefe Governor or Governors alone in any action reall personall popular or mixt or in any suite in the nature of any of the said actions are Coram non Iudice and voyde VVhether grants of Monopolies be warranted by the law and of what and in what cases and how and where and by whome are the pretended transgressors against such grants punishable and whether by fine mutillation of members imprisonment losse and forfeyture of goods or otherwise and which of them All grants of Monopolies are contrary to the lawes of this Realme and therefore voyde and no subject of the said Realme ought to bee fined imprisoned or otherwise punished for exercising or using their lawfull liberty of a subject contrary to such grants In what cases the Lord Lieutenant Lord Deputie or other chiefe governor or governors of this kingdome and Councell may punish by fine imprisonment mutillation of members pillory or otherwise and whether they may sentence any to such the same or the like punishment for infringing the commaunds of or concerning any proclamation of and concerning Monopolies and what punishment doe they incurre that vote for the same The Lord Lieutenant Lord Deputy or other chiefe governor or governors and Councell of this Realme or any of them ought not to imprison any of his Majesties subjects but onely in Cases where the Common-lawes or statutes of the Realme doe enable and warrant them so to doe they ought not to fine or to censure any subjects in mutillation of members standing on the pillory or other shamefull punishment in any case at the Councell-table and no subject ought to be imprisoned fined or otherwise punished for infringing any commaunds or proclamation for the support or countenance of Monopolies And if in any case any person or persons shall bee committed by the commaund or warrant of the chiefe governor or governors and privie Councell of this Realme or any of them that in every such case every such person or persons so committed restrayned of his or their libertie or suffering imprisonment upon demaund or motion made by his or their Councell or other imployed by him or them for that purpose unto the Iudges of the Court of Kings-bench or Common-pleas in open Court shall without delay upon any pretence whatsoever for the ordinarie fees usually payed for the same have forthwith granted unto them or him a writ or writts of Habeas Corpus to be directed generally to all and every Sheriffe Gaoler-minister officer or other person in whose custody the party or parties so committed or restrayned shall be shall at the returne of the said writ or writs and according to the commaund thereof upon due and convenient notice thereof given unto him at the charge of the party or parties who requireth or procureth such writ or writs and upon securitie by his or their owne Bond or Bonds given to pay the charge of carrying backe the prisoner or prisoners if hee or they shall bee remanded by the Court to which he or they shal be brought as in like causes hath beene used such charges of bringing up and carrying backe the prisoner or prisoners to be alwayes ordered by the Court if any difference shall arise there about to bring or cause to be brought the body or bodies of the said partie or parties so committed or restrayned unto before the Iudges Iustices of the said Court from whence the same writ or writs shall issue in open Court shall then likewise certifie the true cause of such his or their detayner or imprisonment and thereupon the Court after such returne made and delivered in open Court shall proceed to examine and determine whether the cause of such commitment appearing upon the said returne be just and legall or not and shall thereupon doe what to justice shall appertayne eyther by delivering bayling or remanding the prisoner or prisoners Of what force is an act of state or proclamation in this kingdome to bind the libertie goods possessions or inheritance of the Natives thereof whether they or any of them can alter the Common law or the infringers of them loose their goods chattels or leases or forfeyte the same by infringing any such act of state proclamation or both and what punishment doe the sworne Iudges of the law that are privy Councellors incurre that vote for such acts and execution thereof An act of state or proclamation in this kingdom cannot bind the libertie inheritance possession or goods of the subjects of the said kingdome nor alter the Common-law and the infringers of any such act of state or proclamation ought not to forfeyte lands leases goods or chatels for the infringing of any such act of state or proclamation And the Iudges of the law who doe vote for such acts of state or proclamation are punishable as breakers and violaters of their Oathes of Iudges Are the subjects of this kingdome subject to the marshall law whether any man in time of peace no enemie being in the field with banner displaid can be sentenced to death if so by whom and in what causes if not what punishment doe they incurre that in time of peace execute marshall law No subject of this kingdome ought to bee sentenced to death or executed by Marshall-law in time of peace and if any subject be so sentenced or executed by marshall-law in time of peace the authors actors of any such sentence or execution are punishable by the law of the land for their so doing as doers of their owne wrong and contrarie to the said law of the land VVhether voluntary Oathes taken freely before arbitrators for affirmance or disaffirmance of any thing or for the true performance of any thing be punishable in the Castle-chamber or any other Court why or wherfore No man ought to bee punished in the Castle-chamber or in any other Court for taking a voluntary Oath before arbitrators for affirmance or disaffirmance of any thing or the true performance of any thing in civill causes nor are the arbitrators before whom such voluntary oathes shall be taken punishable VVhy and by what law or by what rule of policie is it that none is admitted to reducement of fines