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
fall out that may alter the reason of the Lawes in such a case which could not be included or foreseene in a generall question or answer thereunto And therefore they desire your Lordships to consider of what use such answers may be to the present and future times 5. Fifthly many of the said questions as they are propounded as the said Iudges humbly conceive doe concerne his Majesty in a high degree in his Regall and prerogative power in his Government in his Revenue in the Iurisdiction of his Courts in his Martiall affaires and in his Ministers of State so that the said Iudges considering their Oathes the duty which by their places they owe unto his Majesty humbly conceive they may not with safety give answer thereunto without speciall licence from his Majesty and therefore they still humbly pray your Lordships as formerly they did not to presse any answers from them untill his Majesties princely pleasure therein be signified 6. Sixtly if the matters of these questions which ayme at some abuses of former times were reduced into Bils they conceive it were the speedy way to have such a reformation which might bind the present times and posteritie and in such proceeding they ought and would most cheerefully contribute their opinions best endevors but in such a course as they apprehend it which points at punishment they have reason to bee sparing in giving any opinion further then the duty of their places doth command from them 7. Seventhly although it may be conceived that the answering of such and so many generall questions by the now Iudges may contribute some helpe to the reformation now so much desired yet no man knoweth but this new president in propounding of such questions to Iudges in succeeding times as the Iudges frame constitution of the Common-wealth may be may fall out to bee most prejudiciall to the State and Common-wealth 8. Eightly most of the matters in severall of the said questions are already by your Lordships and the said house of Commons voted and represented to his Majesty for grievances and therefore no opinions of the Iudges under favour are needfull or to bee required thereunto unlesse the same shall come in further agitation and discussion in this honorable House 9. The Iudges opinions are not usually called upon in Parliament but when upon debate great and difficulte points in Law doe arise where this most honorable house doth thinke fit to command their opinions but no resolutions doe belong unto the said Iudges in Parliament but unto your Lordships Yet in the front and preamble of the said questions the resolution of the said questions by the Iudges is forthwith desired to be required by your Lordships in writing although the first question viz. Whether the subjects of this kingdome be a free people c. be positively resolved by the preamble to the said questions in which it is likewise declared that the said Iudges answers thereunto are not desired for any doubt or ambiguitie which may be conceived or thought of for or concerning the premisses nor of the said questions but for manifestation and declaration of a cleere truth and of the Lawes and Statutes already planted and setled in this kingdome And they say that it is impossible to make any manifestation or declaration of Law or statutes which may hold or be usefull upon such generall questions as most of these are namely By what Law in what cases of what and which of them of what power of what force how where by whom why wherefore what punishment by what rule of policy in what condition of persons in regard that the next succeeding Iudges may be of another opinion and that a circumstance may alter the reason of this Law in many particular cases which the wit of man is not able to forsee or give a generall rule in And they say that to give answers unto such questions as might give any satisfaction to your Lordships or to the honorable house of Commons would make up a great volume and require more time than your Lordships have afforded unto the said Iudges considering their great toyle in their Circuites the last short vacation their other imployments in the Common-wealth and their daily attendance on your Lordships in Parliament and the ordinary Courts of Iustice And yet least they might seeme to come any way short in performance of that duty which they confesse to be due unto your Lordships or be wanting in promoting or advancing the Common-wealth which they beleeve to be aymed at by the said questions though it may seeme to drawe damage or prejudice upon their particulars they doe in all humblenesse present unto your Lordships the ensuing answers unto the said questions which is as much as by their Oathes or in the duty they owe unto his Sacred Majesty before his princely pleasure bee therein signified they can answer thereunto 1. To the first they answer that the subjects of this kingdome are a free people and are for the generall to bee governed onely by the Common-lawes of England and statutes of force in this kingdome yet they say that as in England many statutes are growen obsolete and out of use and some particular ancient Lawes aswell in criminall as in Civill causes have beene changed by interpretation of the Iudges there as they found it most agreeable to the generall good of the Common-wealth and as the times did require it So our predecessors the Iudges of this kingdome as the necessitie of the times did move them did declare the law in some particular cases otherwise than the same is practised in England which the now Iudges cannot alter without apparent diminution of a great part of his Majesties standing revenue and opening a gap for the shaking and questioning of the estates of many of his Majesties subjects and the overthrowing of severall Iudgements Orders Decrees which depend thereupon For example If it be found by office of Record sufficient for forme that a man was killed in actuall rebellion and at the time of his death was seized of lands hereditaments goods or chattels by the constant declaration of Law and practise of former times here the Crown was intituled to such lands goods and chattels and many mens estates depend thereupon and yet the law is not so taken in England So if one or more commit Felony and then stand out upon his or their keeping and hee or they will not submit themselves to be tryed by the law but being in that state doe robbe or spoyle and terrifie his Majesties people wherby the countrie is disquieted this by the constant opinion of our predecessors in this kingdome hath beene adjudged a leavying of warre within the Statute 25. Edw. 3. and so consequently treason Also by the common received opinion practise in this kingdome the VVife is to have a third of all the goods chatels and credits of her husband the debts being payed although he dispose of all by his will
manifest that by their Oathes they are bound to interprete the lawes truely betweene the King and his people and betweene partie and partie and if in any Case granted it cannot be denyed when the Common-wealth desires a Declaration of the law in certaine points wherein they conceive their just liberties to have beene invaded least under colour of prerogative which the Parliament holds to be sacred some ministers may presume as of late they have endevored to destroy the peoples just liberties In the ordinarie Courts of Iustice the Iudges upon Oath are bound to afford the subject Iustice against the King and all others and are appointed by his Majesty for that purpose all writs are in his Majesties name in the Kings bench the pleas are styled Coram Rege Letters-patents and writs originall are Teste me ipso the King is therefore present in Parliament being the highest tribunall where in truely he sits in the exaltation of Royaltie and greatnesse Therefore the Commands of all his ordinary Courts are the commands of the King much more Commands in Parliament where his presence is more apparant and essentiall then in all other Courts of this kingdome It appeares copiously by the great Charter and by constant practise of all Parliaments since that time that all Courts and Iudges were regulated by Parliaments as for the Kings prerogative or revenue the Iudges cannot bee ignorant but the Parliament is and ever hath beene the best mantayner of his just prerogatives the best overseer of his revenue which if it fall short they onely are able and willing to supply It is true that the abuses of former times might be reformed for the future by Bils to bee past as statutes Yet that is away about and we may not loose the possession of our lawes and just liberties nor by new statutes admitt impunitie or give countenance to past offences statutes of this kind sufficient were already enacted and passed in former ages The declaration of a knowne law and the manifestation of wholesome statutes already established well may helpe the Common-wealth for the present but cannot in any probabilitie fall out hereafter to be prejudiciall to the state or Commonwealth and there is no president or example of any such prejudice It is confessed that most of the matters contayned in the Questions are alreadie voted for grievances in both houses and that very justly but how the law is therein remaynes yet to be declared as to this present Parliament which I hope in due time shall bee declared according to law and justice as in many Parliaments before the same or the like hath beene often done Where they doe againe insist upon the want of president and withall that in the preamble to the Questions the protestation cleares the law This word President strikes close unto us I have answered it before by presidents yet some more presidents I will offer as often as they speake the word president 7. 8. Elizabeth Dy. fol. 241. b. placit. 49. The Kings Atturney demanded the opinion of the Iudges 9. Elizab. Dy. 261. placit. 28 Casus Hiber where the Iudges of England signed their opinions to questions propounded by the Iudges of Ireland 11. Eliz. Dy. fol. 282. b plac 26. Casus Hiber 19. 20. Elizab. Dy. 360. The Case of arraignement of a Peere the like 13. CÃ roli by all the Iudges of England the Earle of Ormonds Case and yet in none of these Cases the matter was depending before them Notwithstanding the protestation may cleare the law yet in all precedent ages lawes cleare in themselves for their greater honor and countenance they have beene declared and enacted in Parliament The Law declared by Magna Charta was cleare before yet it was enacted 9. Henr. 3. and in thirty Parliaments since Cooke 8. 19. b. Primes Case the statute of praerog Regis And the statute of 25. Edw. 3. of treasons is declarative and so are many other statutes Adam eate the forbidden fruite Cain killed his brother God demaunded whether this was done yet he could not be ignorant of the fact The first article in the Civill and Canon law Courts is whether there is such a law all this is done for illustrations sake My Lords The ground of the Questions and the preamble to the writing styled an Answer kept me so long that I feare much to have trespassed upon your patience and yet the importance of the cause urgeth me to importune your Lordships favour a little further This Question is short and yet comprehensive that we are a free people is confessed to my hands to that part of the answer I doe not except the second part of the Question is whether wee are to be governed by the lawes of England and statutes of force in Ireland onely First though I need not prove it yet it is cleare we ought to bee so governed Matth. Paris historia maiori fol 121. Sir Iohn Davis discovery of Ireland fol. 100. King Henry the second held a Parliament at Lismore in Ireland in which Parliament Leges consuetudines Angliae fuerunt gratanter acceptae by the representative body of this whole Nation Magna Charta and other beneficiall statutes of England are here in the red Booke of the Exchequer in and since King Iohns time and so is Gervasius Tilberiensis of the Course and Officers of the Exchequer in the white booke of the Exchequer of Ireland leges consuetudines Angliae received in Ireland by Parliament otherwise this appeares 9. Iohn pat membr. 2. 1. Henr. 3. pat memb. 13. 10. Hen. 3. pat membr. 4. 12. Henr. 3. claus. membr. 8. by which words and by the constant practise of all ages since this kingdome was governed and ought to be so by the law of England as the law of the land which law as it was alwayes here received consists of three parts First the Common-law Secondly the generall customes of England Thirdly statutes here received The Common-law that is cleared already Customes as Tenant by the Curtesie Inne-keepers to be responsible for things within their houses or the like when we speake of a Custome in the law it must be intended a generall Custome over the Realme and no particular Custome And this appeares by the yeare bookes of 37. Henr. 6. fol. 5. 21. Henr. 7. 17. 18. Particular customes as Gavelkiâ—d Boreugh English-tenant right or the like are not to be intended when wee speake generally of Custome and these Customes are warranted by the Common-law of England being not contrary to the same but praeter legem so there may bee and are particular customes here praeter legem and yet not contrary to law as in many Corporations and Countries so the wives third of goods is good in England by the custome of many counties and places F. N. B. 122. 7. Edward 4. 21. 40. Edw. 3. 38. 17. Edw 2. f. detinue 58. Therefore it is not contrary to law that such a
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
from her And yet the constant practise is otherwise in England and other instances of that kind might be made so that the words onely must receive a benigne exposition before the first question can receive a generall answer in the affirmative Secondly many causes of great weight and consequence in this kingdome are to bee decreed and ordered by equitie in the proper Courts of equitie and in course of State at the Councell-board and by particular customes and contrary to law for which the Common-law and statutes of force in this kingdome give no remedie Thirdly there are severall other lawes of force in England and Ireland so farre as they have been received which though some would have to be part of the Common-law of England yet we find them particularly distinguished from it in our Printed Bookes in Parliament Rolles in England as Lex est consuetudo Parliamenti jura belli Ecclesiasticall or Canon law in certaine cases Civill law in some cases not onely in Ecclesiasticall Courts but in the Courts of Constable and Marshall and of the Admiralty and upon particular occasions in the other Courts lex Mercatoria c. 2. To the second They say that the Iudges of this kingdome doe take the Oath of Iudges which Oath is specified amongst the statutes in 18. Edw. 3. and is after explaned by the statute of 20. Edw. 3. and that they may not stay hinder or delay the suite of any subject or his judgement or execution thereupon otherwise then according to the law and course of the Court where they sit under pretence of any act of state proclamation writ letter or direction under the great or privy Seale or privie Signet or Letter or other Commandement from the Lord Lieutenant Lord Deputy Iustice Iustices or other chiefe Governor of this kingdome most of which doth appeare by their Oath expressed in the said statutes and the said statute of 2â— Edw. 3. cap. 8. and the statute of 28. Edw. 3. cap. 2. as to Barons of the Exchequer And that as they know no punishment due to Iudges for their deviations transgressions without other aggravation So they know no punishment layd downe by any law against them for their deviations and transgressions in hindering staying or delaying of Iustice contrary to their said Oath other then what is declared in their said Oath and the statute of 20. Edw. 3. 3. To the third they say that it is part of their said Oath as Iudges that they shall not counsell or assent to any thing that may turne to the damage or disherison of our Soveraigne Lord the Kings most Excellent Majestie by any manner of way or colour And that they shall give no advice or counsell to any man great or small in no cases wherein the King is a party And they shall doe and procure the profit of the King and his Crowne in all things where they may reasonably doe the same And that in the explanation of their said Oathes by the statute of 20. Edw. 3 cap. 1. It is declared that they shall give no counsell to great men nor small in case where the King is party or which doth or may touch the King in any point And as your Lordships have beene honorably pleased by an order of this honorable house bearing date the first of March Anno Dom. 1641. Annoque Regni Caroli decimo sexto to give way that they should not be compelled to answer any part of those questions which did concerne his Majesties prerogatives or were against their oathes so they humbly represent unto your Lordships that they conceive that the answering of the particulars of this question doth concerne both for that the Kings privie Counsell as the question tearmes it or the Councell-board is a Court of his Majesties high prerogative where all proceedings are before him and his Counsell or before his Governor who doth immediately to many purposes represent his Majesties person and the Counsell And where the great affaires of state concerning his Majesties honor government profit and of great persons and causes concerning the Common-wealth which may not conveniently be remedied by the ordinary rules of Common-law and many other causes have beene treated of and managed And as his Majesty is the fountayne of all Iustice with in his kingdomes and may grant Cognizance of pleas unto his subjects and Corporations and may by his Commission authorize whom he shall thinke fit to execute many branches of his authoritie so they humbly conceive it doth not stand with their Oathes or duties of their places who are but Iudges of the ordinary Courts of Iustice before his Majesties pleasure signified in that behalfe to search into the Commissions or instructions of the chiefe Governor and Counsell or to give any opinion concerning the limits jurisdiction orders decrees proceedings or members of that high Court and that the King hath a prerogative for the hearing some of the matters in this question specified before his chiefe Governor We beseech your Lordships to cast your eyes on the statute of 28. H. 6. cap. 2. in this kingdome where after mâ—â—ters are directed to be sent to the ordinary Courts yet the Kings prerogative is expressely saved notwithstanding all which his gracious Majesty for whom it is most proper hath of late beene pleased to limit the proceedings of that Board by his instructions in print 4. To the fourth they answer as to the Third 5. To the fift they say that generally all grants of Monopolies whereby trading manufacture or commerce is restrayned the profit which should goe to many hindred brought into a few hands are against law the liberty of the subject and the good of the Common-wealth though they carrie never so faire a pretence of reforming abuses and that the pretended transgressors against such grants are not at all punishable by any rule of law that they know of And yet they say that they conceive that his Majestie that is the head and father of the Common-wealth may restrayne the use and importation and exportation of certaine commodities or confine the same into a few hands for a time where there may be likelyhood of his Majesties profit which is the profit of the Common-wealth and no apparent prejudice to the Common-wealth doth appeare and that when time shall discover such prejudice then such restraints ought to cease So if a man by his owne invention at home or travell observation or charge abroade doth introduce a new profitable and usefull trade or profession into the Common-wealth in such cases his Majesty may lawfully grant licence the only making of such commoditie or teaching or using of such trade for a certayne time and the transgressors against such warrantable grants may be punished by payment of damages unto the Patentee in an ordinary course of Iustice or otherwise as the nature of the offence and matter doth deserve and as the consequence and importance of the matter may be to the King State or
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
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
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
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