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cause_n	law_n	nature_n	reason_n	3,046	5	5.4661	4	true

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

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

of his Majesty at a full Council my Justice I must afford to you all but my favour must be plac't upon my Protestant Subjects in sending over those Gentlemen that were of our own Countrey and Religion His Majesty warrantably judged that if difference were betwixt an Israelite and Egyptian Moses would lean to the Isr●elite His Majesty knew men of resolition might alter the Climate without changing sound Principles though even those may be indanger'd by a constant and familiar conversation with persons of different judgements and so we may in time forget to attest the fear of Abraham and learn to swear by the life of Pharaoh We consider the comprehensiveness of the Act their new beaten path of proceedings saepe viatoremnova nonvetus orbita fallit The mixture in Hotch pot of Law and equity so that they are both Jurors and Judges and the rsummainess of the proceedings they designe so that the Text many times may happen not to be the Rule but the Hower-Glass His Majesties other Courts shoot from a rest to a dead mark and sildom or never miss This Court runs and shoots at a flying mark and therefore it is admirable if it ever hit aright I say Sir We come not to criminate or to force a ball into the Dedan but if any brick-wall expressions happen that cannot be designed otherwise it is rather a force upon us Upon the whole the Knights Citizens and Burgesses upon the serious observations they have made of the proceedings of that Court have made this judgment That without some speedy Rules and Instructions be given to those Gentlemen as the line and plumm to direct the executive part of that great Act of Settlement that the Lands justly forfeited to His Majestie upon the account of that late horrid and unnaturall Rebellion in this Kingdom and by His Majestie freely granted to the English to improve and enrich which they have beggard themselves will be taken out of their possession and themselves wives and children exposed to mockery and misery and actual Rebels that yet survive or the Heirs and Blood of those that died actve in that Rebellion be restored to the same and this being all done under pretence of severe justice the Roman Catholicks of this Kingdom may get a reputation and credit to those pamphlets they have disperst through Europe That His Masties Protestant Subjects first fell upon and murthered them Sir the Commons cannot but be apprehensive of these coniequenses and therefore in this Instrument have drawn certain proposals by way of humble advice tendred to your Grace in the name of the Commons of this Kingdom They are not of the nature to impose any forraign sense upon the Act they arise out of the bowels of it they seek not to lay out a new way but only where some corners and destowers are to hang out lights and the greatest Courts of Judicature will put out snuffs when to read the Statute they may have a Parliament-light especially a light held by that Parliament that past the Act They have likewise their convoy to your Grace by a particular clause in the act requiring the Commissioners to give an account to your Grace and the Council of their proceedings to and follow such further directions as they shall from time to time receive from your Grace and Council persuant to the Act. I shall crave your Grace's leave and patience to read it in distinct Paragraphs and according to the commands of the House to hint some parts of their sense for the reasonableness of them Forasmuch as by the Act of Settlement there is a power vestd in His Grace the Lord Lieutenann and Councel to give further Directions and Rules from time to time to the Commissioners for executing the said Act and forasmuch as it evidently appears to the House of Commons That there is a necessity of several Rules and Directions to be given the said Commissioners therefore the following particulars are to be offered to the consideration of his Grace the Lord Lieutenant and Councell as the humble advice of the said House in order thereunto This though it sounds as a preamble or introduction and so may be lookt on as a Frontice-piece or Title-page by some yet by us is understood as an essential part of the structure If our distractions were doubled they could not divide us in our duty Nec natura aut Lex operantur per saltum you were not onely the nearest port but Statio bene fida carmis And though the night should grow dark and tempestuous upon us your care hath hitherto been as a Beacon upon a nigh Promontory not only burning upon the arrival of a Fleet such as this Addresse is but even to secure the least Fisher-boat the smallest and individual interest when it lays its course to you Suyreme Councils and General Assemblies have upon created or imaginary necessities gone to the Witch of Endor and having taken their observations from their own Ignes fatui instead of the Guards of Charles his Wain have arrived at Tyber instead of Thames Now Sir being in our right Port we shall break Bulk and the first Proposal is this 1. That the King be by the Court of Claims allowed to be Party as by Law he ought to be and that no cause be brought to Adjudication till the Attorny Gene rall have a fair Summons and be fully heard Your Grace might think us under some distemper to offer this for utrum nix sit alb a non est disputandum But if the Commissioners have declared in Court That His Majestie is not concerned and have before judgment given refused to admit evidence upon record offered by Mr. Attorny-General in His Majesties behalf pregnant with evidence to have proved the Nocency of the person and thereupon have declared the Nocent Innocent and in a breath blown down the Title of several Protestants and their respective Heirs their improvements and the like it is the Duty of Us sitting in Parliament judiciously having taken cognizance thereof to offer some Expedient against it Sir Innocent or Nocent is the Question which without any help of a Septuagint is translated at the Bart of the Kings-Bench Are you guilty of the general Rebellion of Ireland or not Stamf. pl. Cor. 1. I wonder if they will not infer this inter placita Coronae Then under what Title would they refer it If the Commissioners be pleased to consult their Oath prescribed by the Act it is thus Act. p. 59. YOu shall swear That you shall to the best of your skill truly and impartially administer Justice between his Majesty and the Subject and between party and parties in the place of a Commissioner for putting in execution His Majesties gracious Declaration and Instructions for the Settlement of Ireland according to an Act intituled An Act c. This Oath is framed in terminis according to the exigency of the subject matter cognizable in every Claim by the Commissioners for every Claim Guilty

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