Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	action_n	court_n	writ_n	3,097	5	9.3158	5	true

Text snippets containing the quad

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

or Not guilty of the Rebellion is one part and hath hitherto been first tryed by them and to this part the Oath provides in these words You shall truly administer Justice between his Majesty and the Subject Then admit the person be adjudged Innocent yet the English-Adventurer or Souldier in case such Innocent's Title to the Land be not good is in by the Act and then in the second place the Title comes in question and for this the Oath is suited viz. And betwixt party and party Regularly either by Office or Attainder forfeited-Lands are vested in the King and his Majesty being graciously pleased not to proceed by the severity of Attainder which reacheth life and corruption of bloud on the one hand nor the expence and delatoriness of Offices to be found not consisting with a Kingdome gasping for a Settlement was pleased to rest his Title upon a Tryal of Innocency So that exclude his Majesty to be party the Commissioners Judgments cuts both ways The Irish are turned out of their Inheritances upon the account of Treason and the King not party the English shall have their Lands and yet they were never legally settled in the King so that Treason will seem to be a crime not so much against the King as against the Subject Lands by the Act are vested in his Majesty so they be not the Lands of Innocent persons and Qualifications for the tryal of their Innocency are positive Lands are given to the Adventurers and Souldiers if they belong not to Innocents where rests the Freehold in the Innocent persons That is but conditional and contingent Is it in the Adventurer or Souldie that is but conditional and contingent Is it in the King it is there but conditional and contingent Why then it is in custodia legis to judge between these three persons the Innocent can never have it if it be judged for the King the English can never have it except it be judged for the King then to exclude the King is in construction of Law to exclude the English for the Commissioners Decree cannot give the Land to the English except the Act and Law warrant it but nothing by Law can pass from the King till it be first in him and there is no way by the Act to place it in the King but by the judgment of the Court betwixt the King and the pretending Innocent Courts of Justice ex Officio if a title upon the pleadings arise for the King are to take notice of it and improve it though the King be not party to the Action Hob. 126.127 The Court will award a Writ for the King where the Title appears for Him on the Verdict though the Issue find it not for him Hob. 118 119. And where Statutes are made to put things in an Ordinary form and authorize inferiour persons for the execution of it for the ease of Soveraign power or the ease of the Subject yet they shall never restrain the Soveraign power or Interest Dyer 225. part 35. Hob. 146. Besides this Act is a general Act as to this nay it is rather Statutum generalissimum It concerns the King in giving and taking which are relatives and the Honour and Justice of the King in performing really the intents of his Grants doth as truth concern Him and His People as doth His profit in enjoying and receiving Grants from them they are the words of a reverend Judge the Lord Hobbart whose spirit in the behalf and interest of the King I would propose as imitable and exemplary to the Commissioners I shall not ●e● a syllable of his own expression the Case is Sheffield versus Ratcliffe Hob 335. viz. I must profess that whensoever I have thought of this Case and advised upon it my self I have met with two strong affections Zeal and Indignation Zeal in behalf of the King to preserve the ancient right of the Crown against the invasions of Rebells and Traitors Indignation when I find Francis Bigod that sometimes brought a puissant Army into the Field to depose the King failing in that enterprise now to rise up in judgement against him that whom he could not by the Sword destroy he might supplant by the Law For though Ratcliff bear the name of this Case yet I see nothing but the Land of Francis Bigod his State his Right and Title his bloud his discent that maintain and defends it Therefore let it not seem strange that I am warm in this Case for Zeal and Indignation are fervent Passions And I do profess to give Prerogative to the right of the Crown in my care and vigilancy and it is nobile officium Judiciis debitum due by Oath and Office to watch for him who wakes for us Ne quid detrimenti Respublica capiat And if Charity begin at it self so ought Justice to do that the King who granteth Justice to all should not be wanting to himself c. Sir This needs not by an Application to be shaken together it mingles with the present purpose as water doth with water I shall onely observe that the breath of this Reverend Judge perfumes the presence Chamber whatsoever is contrary in the like Case is like the stench of Mare mortuum that stifles whatsoever approaches it This Francis Bigod was attainted and executed 28 H. 8. And this zealous expression was 13 Jacobi by computation something longer then from the 23 Octob. 41 to 1662. Bigod is resolved into his first dust and those dormitories have some priviledge De mortuis nil nisi bonum when the persons with whom the present Issue is to be joyned are living vivit imo vivit etiam in senatum venit The Queen 24. of her Raign granted the same Lands to Edmond Lord Sheffield and the Reverend Judge and the Court retreated not to the Objection made by our Commissioners That the King had parted with the Lands from himself and so in a manner qui potest capere capiat thereby to render that great Act of Settlement the Emanation of his Majesties Royal Bounty to be dispenc't by a Rule of Justice to seem rather like a muss of Apples or Nuts thrown in the Streets to invite Boys to scramble Before I leave this Point I shall crave leave to intimate to your Grace's remembrance for truly if I should seek in this Point to inform your judgment I were under an unpardonable guilt the opinion of his late Majesty of ever blessed memory how far he concerned himself and the dispensation of his Justice Exact Collection in order to the Settlement of this Kingdom interested In his Majesties Speech delivered to both Houses 14 Dec. 41. there is this expression But still seeing the slow proceedings therein and the daily disparities I have out of Ireland of the lamentable estate of my Protestant Subjects there I cannot but again earnestly recommend the dispatch of that expedition unto you for it is the chiefest business that at this time I take to heart and there cannot

the Fire in the pan but dies of the shot in the Body And since the Law praesupposeth every man of full age to know his title what shall this be accounted but a stratagem and those fortifications are hardly tenable when one standing upon the lines of defence may be short per derriere is certainly the Center of the Law and therefore it sayes Oportet ut res certa ducatur in judicium Bra. b. 2. 5 Co. 3.21 certa esse debet intentio narratio Unhappy was that Declaration in trespass quare clausum suum fregit pisces suos cepit which was judged vicious for not shewing the number or nature of the Fishes when Lands Tenements and Hereditaments that in the providence of the Law are more worthy then two Fishes that are sold for a farthing may be demanded and recovered under all the incertainties and disguises that may be But the readiest way to make Sampson to grinde is first to put out his eyes Propos 9. That where any person or persons have put in his or their Claim before the former or present Commissioners and after put in another Claim of a different Title the best Title for the King shall be taken Sir It is usual for Merchants to put off an old stuff under a new name and here is new stuff put off under an old name This by the Commissioners is called a Retraxit and if they please to make good the word as the Law understands it no exception will be taken for a Retraxit is 21 c. 4.38 8 H. 6.8 when the Plaintiff or Demandant comes in proper person into the Court where the Plea is and saith that he will not proceed any further in the same now this will be a bar to the Action for ever Qui semel actionem renunciaverit amplius repetere non potest but this Retraxit is much like the Retraxit of a Ram or Goat that retires to make his assault with a doubled strength Truly Sir We know not upon what clause in the Act this proceeding is warranted The proceedings before the former Commissioners are allowed true it is that some Commissions that issued from them for valuation of Lands in order to reprisal are suspended until a new valuation issue by the present Commissioners and then the best return for the Kings Service is to be made use of if it be objected those Cl●ims were put in upon the Declaration and Instructions which by the Act possibly may be altered It is easily answered either the Act hath given them a new title or it hath not if it ha●h given them a new title then they are in by the Act and not by any former title if it hath given them none then their old title is that they must rely on But admit an election be the Law is clear Noy 29. and so resolved that there is no election against the King Propos 10. That no Claimant claiming by Innocency shall be allowed to make any other Claim in case he shall be adjudged Nocent Sir We must crave your patience to consider this Case And first the Act of Settlement omitting other divisions divides the Irish into Innocents and Nocents and there is but one subject matter upon which both these distinctions have their prospects scilicet the recovery of their Estates I shall grant that election of Actions belongs to every Subject as his Birth-right Dep. 20.21 57. but likewise it must be granted that where he hath made his election prosecuted it and determined it he cannot have recourse to renew his election being not suspected but extinguished I speak this with this salvo that a person that by particular clause in an Act hath an Estate granted unto him he must take finally and sub modo as the Act appoints Br remitter 49. and hath no election to claim upon any former or other right The body of the Act is but consonant herein to the body of the Law that delights finem imponere litibus and hate●h all circuit of action If a man by his Deed granteth a Rent-charge and the Rent is arrear it is in the Grantees election to bring a Writ of Annuity or distrein Littl. Sect. 219. but he cannot make his election but once for if he recover in a Writ of Annuity he shall never after distrein or if he doth distrein and avow in a Court of R●cord he shall never after bring a Writ of Annuity because an Avowry in a Court of Record being in the nature of an Action is a determination of his election before a Judgment given à fortiori after Judgment given If a Wife be endowed ex assensu patris and the Husband dyeth the Wife hath election either to have her Dower at Common Law Dower 158. or ex assensu patris but if she bring a Writ of Dower at Common Law and Count albeit she recover not yet shall she claim her Dower ex assensu patris So if the Grantee bring an Assize or the Rent and makes his Plaint he shall never after bring a Writ of Annuity Nay when an Election is given to several persons 10 E. 4.17 1 Institut 145. there the first Election made by any of the parties shall stand A man by his own wrong may lose his Election as if a Feoffment be made of two Acres the one for Life and the other in Fee if the Feoffee maketh a Feoffment of both the Feoffor may enter into which of then he pleaseth because the Feoffee hath lost his Election 2 Co. 36.37 It is well known that where many times in one case the Law doth give a man several remedies that by the folly of his Election he may bar himself for ever 1 I●stit 27. a. b. 279. a. It s at the Election of the Issue in tail to enter or to allow himself out of possession and bring his Formedon it s at my election if one receives my Rent if I will charge him with a Disseizin and allow my self out of possession and bring an Assize or have an Action against him 1 Cro. 220. but I shall be bound up by that election to the advantages or disadvantages that accordingly attend it So it is in the Claimants election to claim by Innocency or Nocency but after Judgment given he shall be concluded Propos 11. That any person claiming as an innocent shall after proof of the title proceed to prove himself to have been faithful and loyal unto and never to have actod against his Royal Majesty or his Father before the Defendant shall urge any Crimination and that for defect of such proof of innocency the Claimant shall be adjudged Nocent The very letter of the Act rules this point page 17. of the Act. viz. That all innocent Papists being such as shall prove themselves to have been faithfull and loyal unto and never acted against our Royal Father or Our self c. The Evasion that this relates onely to innocent Papists of Convaught

will not hold except by some Philosophical Rule we may ascribe a particular malignity to the Climat of that Province it is also agreeable to the rule of Law Actori iucumbit onus Probandi they are the Plaintiffs and have Estates granted to them upon condition that they prove themselves innocent There is an Objection the Solution whereof will aboudantly clear this point The Objection is Stabilitur praesumptio donec probatur in contrarium and therefore every of them shall by Judgment of Law be presumed innocent I will grant this to be regularly true but Distinguenda sunttempora when the whole Kingdom is under the serenity and calm of peace and his Majesties Writs have their free course every man shall be presumed to be a loyal Subject for what appearance is there to the contrary But if a part of the Kingdom shall rise up in arms against their Soveraign and assume a contradistinct Government and in defence thereof maintain a War and which is worse a cessation with detention of his Majesties Forts and the inheritance of his Subjects Nisi this latter being an act of Judgement and deliberation and this by Oath of Association and by the strictest rules of confederacy Who is it that without the violation of charity and reason can Judge all or any of them innocent till by distinct and authentique proof they have separated that guilt from themselves which for so many years unto blood they espoused Upon this construction be pleased to heare the words of the Act for that is the Touch-stone of pure or adulterate Expositions viz. Whereas an unnatural Infurraction did breake forth against your Majestie 's Royal Father of over Blessed numory his Crown and Dignity in this your Majestics Kingdom of Ireland upon the 23 of October in the year of our Lord God 1641. and manifest it self by the murthers and destruction of many Thousands of your said Majestics good and Loyal Subjects which afterwards umversally spreading and diffusing it self over the whole Kingdom feetled into and became a formed and almost Nationall Rebellion c. The case being thus truly stated it is easy to discern both from the nature of proof being in the affirmative and the advantage that they are to receive by it That they must putify themselves according to the purification of the Law before they can be admitted to offer in the Temples of Justice And therefore the case will be much like as where a bargainer shall endeavour to avoid the bargain by reason of the non-enrollment within six months he must make manifest proof thereof or else it will be presumed that it was enrolled within the six months 4. Co 20. Sir if an innocent person will endeavour to avoid my present Estate upon surmise that he was not guilty of the Rebellion being a Roman confoederate Catholick under which Title the War was maintained he must prove his Innocency or else it shall be presumed he was one of them A. and B. Tenants in common of a Mannor A. purchaseth a Franktenement mixt with the demesne Lands which were not certainly known B. brings a Writ de Partitione facienda of the Mannor only It was held by the Justices That A. must prove the bounds of the Frank-tenement putchased For the Jury shall be discharged if in conscience they make Partition de tanto quanto praesumitur dignoscitur per praesumptiones verisim lia Dyer 266. So Sir the Irish Claimant coming under that violent Presumption of Nocency if he will not prove the bounds of his actings and conversation during that War the Jury if there were one or the Court as it is at present are discharged if they judg him nocent if upon proof allowed unto him he cannot clear himself of that presumption I say that violent presumption because the Act casts it upon him and Fortior est dispositio legis quam hominis Nay that Act to which he himself is a party so that every Irish Claimant that appears in the Court the Law supposeth him to plead thus I confess the Rebellion in Ireland was universally spread and became almost National yet whosoever is innocent amongst us and so can prove himself to be must have his Estate without a previous reprisal and not otherwise I am an innocent Pray Sir admitting that the King by no grant or engagement had dispos'd of this persons Estate would you not judge that Court very complemental that upon such allegation would judg him his Estate without any proof There is little of my Lord Hobart's zeal and indignation in that Court Besides Sir if this were an Imposition it is no other then what the natural Olive is subjected unto Those Officers that ever faithfully served his Majesty called the 49 men and then why should the wild Olive repine Before they can be admitted to state their Arrears they must prove in what Regiment Company Troop they served with a continuando during their service And nothing is more practicable In the Barony of Evishoan there are above two thousand Irish can bring hundreds of Protestants to witness their civil demeanor through the whole course of the distemper in this Kingdom Propos 12. That every Claimant doth summon the Owner or Defendant of the Land or upon Affidavit made that he or his dwelling cannot be found the Tenant and Attorney of the Defendant and after such summons notice be given of the day of hearing the said Cause by posting the name of the Claimant and List of Lands in the Court 30 days before the hearing in Leinster and 40 days in any of the other Provinces and that the Commissioners be desired to publish the Lists promised A true Regulation in this particular of Summons and Process of the Court is of great importance errors in this are like faults in our first decoction not to be remedied Notwithstanding the long experience and curious observations of the settled Courts of Justice in 21 Eliz. c. 3. which with us was Enacted 10 Car. c. 12. we were forced to have recourse to a Statute for the avoiding of secret Summons in real Actions Courts of Equity adhere close to their Process in Courts of Law they are fitted according to the Nature of the Actions to which they relate And it is apparant if this Point be not ascertained in a different way then as now it is used many persons will be as some already have been decreed out of their Estates unheard notwithstanding their greatest vigilancy to defend them Propos 13. That the Commissioners observe to proceed in the tryall of Claims of Innocents onely in the respective Counties according to the Priority heretofore published by themselves And where any such person claims in severall Counties that such person be not heard till the last County come to be adjudged according to the forementioned order of Priority wherein he is concerned That there be a Priority of Counties and that Priority positively to be observed is of absolute necessity It were very hard