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
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
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-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
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
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
proofe or apparant circumstances may be pressed upon any tryall and for discovering of their fellowes abetors or relievers as the circumstances may offer themselves in their examinations especially if before they confesse themselves guiltie of the offence in imitation of the approver at the Common-law whereof no certaine rule may be given And it neede not be made a question here whether the Iurors or Iudges ought to be Iudges of the matter of fact it being positively layd downe in the sixteenth question that they are And though their false verdict doth convince or not convince the prisoner yet they may be questioned and punished for a false verdict as in their answer to the sixteenth is already declared 21. To the twentie one they say that that question is now judicially depending and hath beene already solemnely argued in his Majesties Court of VVardes in which Court their assistance for declaration of the law therein is already required And therefore they humbly desire they may not be compelled to give any opinion touching that point untill it be resolved there 22. To the twentie two they say that they doe conceive that there is no matter of Law contayned in the said question yet for the further satisfaction of your Lordships they say that upon view of an Act of state bearing Date at his Majesties Castle of Dublin the twenty fourth of December 1636. grounded upon his Majesties Letters of the fift of Iuly then last past it appeared unto them that foure shillings in the pound as of his Majesties free gift and reward out of the first payment of the increase of rent reserved to his Majestie was allowed to the Iudges that were Commissioners and attended that service And we humbly conceive that the receiving of that foure shillings in the pound of his Majesties bountie stands well with the integrity of a Iudge and those Iudges did informe them that they did not avoyde any Letters-Patents upon the Commission of Defective Titles but received such to compound as submitted for the strengthning of their defective Patents and Titles and such as would stand upon the validity of their grants were left to the tryall at law And that the Compositions made after the said grants of the foure shillings in the pound were made according to rules and rates agreed upon by all the Commissioners before his Majesties said Letters or the said Act of State and not otherwise George Shurley Hu. Cressy VVilliam Hilton Edw. Bolton Iames Barry Sa. Mayars Iam. Donellan Copia vera Extract per Phil Percivall Mr DARCIES REPLY TO THE ANSWER OF THE IVDGES MY LORDS His Majesties most humble and faithfull subjects the Knights Citizens and Burgesses in Parliament assembled representing the whole Commons of this Realme calling to mind the late invasion made upon the Lawes and just rights have heretofore presented unto the Lords House certaine questions of great weight and moment to the end their Lordships might thereunto require the answer of the Iudges in writing which being long sithence accordingly commaunded by their Lordships the Iudges have of late delivered in a writing to the Lords House by them styled an Answer unto the said Questions which being sent to the Commons house to be taken into consideration and the same all the partes thereof being weighed in the ballance of the grave judgement and knowledge of the said house of Commons the said answer was upon question voted to be minus pondus habens and not to merit the name of an answer This my Lords being the occasion of this conference the house of Commons appointed me a feeble Organ to utter part of their sense of the style and manner of this writing and to declare part of those reasons which satisfied their judgements that the said writing was short and insufficient o utinam that were all My Lords the Iudges had divers Moneths time to answer plaine questions plaine I speake of those who would be plaine the house of Commons a few dayes onely to consider of that intricate writing My powers are weake and the infirmities of my body are visible both in part occasioned by an high hand I should therefore faint under the weight of this burden but that the taske is not great I doe represent to your Lordships by way of rehearseall onely some partes of those reasons and authorities which were gathered and ripened to my hands by the house of Commons My Lords in matters of importance the course hath beene ancient and not yet deserted to begin with Prologues or Exordiums the worke is not mine I will onely In nomine sanctissimae Trinitatis make my entrance upon the matter of this Conference which is a generall concernment a great concernment of the whole kingdome And to that purpose I will declare the causes and reasons which moved or rather inforced the house of Commons for to disgest and propound the said Questions and to make it appeare that none of them is Idea Platonica none of them circumventing and all depending now or of late To mantayne the preamble to Questions viz. That this Nation ought to bee governed by the Common-lawes of England that the great Charter and many other beneficiall statutes of England are here of force by reasoning or argumentation were to alter a foundation layd 460. yeares past and to shake a stately building thereon erected by the providence and industrie of all the ensuing times and ages This is so unanswerable a truth and a principle so cleere that it proveth all it needeth not to be proved or reasoned Reasons why the Questions were propounded The reason for the first was the late introduction of an arbitrary government in many cases by some Ministers of estate contrary to the lawes and statutes aforesaid a government contrary to the just freedome property of his Majesties people in their lives estates and liberties whereas the subjects governed by the lawes of England are and ought to be free subjects the late disuse therefore of those lawes in execution and the measure of justice being squared by the Lesbian line of uncertaintie as contrary to the lawes aforesaid as any oppositum is in objecto produced the first question and I hope not improperly The reason for the second in part ariseth out of the Oath of a Iudge 18. Edw. 3. to be found among the Printed statutes Polton fol. 144. and out of the statutes of 20. Edw. 3. cap. 1. 2. 3. Polton fol. 145. This Oath is comprehensive and extends to the Iudges the Barons of the Exchequer and Iustices of Gaole-delivery and their associats This great and sacred Oath contaynes severall branches First well lawfully to serve the King his people in the Office of a Iustice Secondly not to Counsell or consent unto any thing tending to the Kings damage or disinherison Thirdly to warne the King of his damage when hee knowes it Fourthly to doe equall Iustice to rich and poore c. without respect of persons Fiftly
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-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
No Freeman shall be taken imprisoned put off his freehold liberties free customes c. other then by the lawfull judgement of his Peeres as by the law of the land This great assurance in the 38. Chap. of the same statute was granted for the King and his successors to all his people and was confirmed in thirty Parliaments as I said before Cooke 8. the Princes Case by the statute of 5. Edw. 3. cap. 9. 25. Edw. 3. Cap. 4. 28. Edw. â— cap. â— 42. Edw. 3. cap. 1 â— The great Charter is againe confirmed and not onely so but proceedings contrary to the same before the King or his Counsell are declared voyde The King is to observe and mantayne the law the Iudge by his Oath 18. Edward â— is bound to doe right betweene the King and his people and that right strengthens the Kings prerogative presidents or practise contrary to so many statutes are of no use in many ages past encroachments were made upon these just liberties which were alwayes removed by Parliaments Yet I must confesse that of all antiquity some pleas have beene held in the Kings Royall house as in the Court held by the Marshall of the Kings houshold for things arising within the Verge Fleta lib. 2. cap. 2. but when that Court exceeds its due bounds declaratory statutes were alwayes made to meete them as mischiefes in the common-wealth when they medled with land or the like as appeares by the statute of Articule super Chartam 28. Edw. 1. 15. R. 2. cap. 12. all these statutes My Lords and many more to this purpose are undenyably of force in this kingdome and none of them can be with impunitie said to be obsolete or antiquated My Lords they raise another doubt viz that as the King may grant cognizance of pleas to Corporations or the like and therefore to the Councell-table if this neede an answer I will answer it thus that a grant of cognizance never was neyther can it be otherwise then to proceede per legem terrae or per judicium parium in the same manner as Courts doe proceede at Common-law and not upon paper petitions or summary hearings such cognizance was never granted the King is at losse by such proceedings he looseth fines upon originals he looseth amerciaments and fines incident to every judgement at Common-law as I said before I he subject undergoeth an inconvenience First the law will decline writs originall will by disuse be forgotten Clerks who should draw them discouraged to learne legall proceedings out of doores being the foundation of the law and in stead of regular and orderly proceeding rudenesse and barbarisme introduced the subject will loose the benefit of his attaynte and writ of error by which the law might relieve him against false verdicts or erroneous judgments he will loose the benefit of his warranty which might repaire a purchaser in case his acquired purchase were not good Whereas if a Iudge or Iuror doe wrong the remedy is at hand but against the Lord Deputy and Councell who will seeke for it therefore the countenance of this Iudicature in Common-pleas is against the Kings prerogative and the peoples just rights both which the Iudges ought to maintaine and likewise against the intent of your Lordships order My Lords as in England the said severall statutes were made to prevent the inconveniences aforesaid one good statute was made in Ireland 28. Henr. 6. cap. 2. Irish statut fol. 15. which directs matters of Interest to be determined in the Common-pleas matters of the Crowne in the Kings-bench matters of equity in the Chancery This law if there were no more regulates the proceedings in this kingdome The Iudges insist upon the words in the end of that statute viz. Saving the Kings prerogative My Lords this was stood upon at the late great tryall in England and easily answered for by the Common-law the King may by his prerogative sue in any of the foure Courts for his particular interest although it be contrary to the nature of that Court for he may sue à Quare impedit in the Kings Bench the like yet so as the said suite be bounded by the rules of law I will demaund a question whether the King may bring à Quare impedit in paper at the Councell-board the Kings now Atturney I am confident will answer me he cannot The word salvo or saving is in construction of law of a thing in esse or existente and no creative word 26. Ass pla 66. and cannot in the Kings Case be construed to overthrow the law nor many expresse and positive acts of Parliament My Lords in all humblenesse and dutie I will and must acknowledge his Majesties Sacred and lawfull prerogative whereof the King himselfe is the best expositor in his answer to the Petition of right Poltons stat fol. 1433. he declares that his prerogative is to defend the peoples libertie and the peoples libertie strenghtens the Kings prerogative the answer was a Kingly answer and More â—ajorum this is conformable to the great Charter and to all the statutes before recited The government of England being the best in the world was not onely Royall but also politicke some other princes like Cain Nemrod Esau and the like hunters of men subverted lawes The Kings of England maintayned them and did never assume the power to change or alter the lawes as appeares by Fortescue that grave and learned Lord Chancellor in King Henry the sixts time de laudibus legum Angliae cap. 9. fol. 25. and in the same Booke cap. 36. fol. 84. nor to take his peoples goods nor to lay taxe nor tallage upon them other then by their free consent in Parliament this appeares by the Booke Cases in 1â— Henr. 4. fol. 14. 15. 16. the great case of the Awlnage of London and in the Case of toll-travers and toll-through 14. Henr. 4. 9 37. Henr. 6. 27. 8. Henr. 6. 19 all agreeing nor to alter the nature of land as by converting land at Common-law to Gavelkind or Borrough English or e conuerso as to the estate otherwise as to the person of the King Ple. Com. the Lord Barclyes Case fol. 246. 247. Yet it is most true that the law of the land gives the King many naturall and great prerogatives farre beyond all other men as may appeare in the said Case fol. 243. but not to doe wrong to any subject Com. 246. The person of the King is too sacred to doe a wrong in the intention of Law if any wrongs bee done his ministerâ— are Authors and not the King And the Kings just prerogatives by the Kings Royall assent in Parliament were bounded limited and qualified by severall Acts of Parliament as if Tenant in cap. did alien at Common-law without licence this was a forfeyture of his estate Plo Com. case of mines fol. 332. the statutes of 2. Edw. 3. cap 14. makes this only finable the statute of Magna Charta cap. 21.