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 â—eâ— 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 Clâ—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 haâ—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 hateâ—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 Râ—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 Iâ—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
of his Majesty at a full Council my Justice I must afford to you all but my favour must be plac't upon my Protestant Subjects in sending over those Gentlemen that were of our own Countrey and Religion His Majesty warrantably judged that if difference were betwixt an Israelite and Egyptian Moses would lean to the Isrâ—elite His Majesty knew men of resolition might alter the Climate without changing sound Principles though even those may be indanger'd by a constant and familiar conversation with persons of different judgements and so we may in time forget to attest the fear of Abraham and learn to swear by the life of Pharaoh We consider the comprehensiveness of the Act their new beaten path of proceedings saepe viatoremnova nonvetus orbita fallit The mixture in Hotch pot of Law and equity so that they are both Jurors and Judges and the rsummainess of the proceedings they designe so that the Text many times may happen not to be the Rule but the Hower-Glass His Majesties other Courts shoot from a rest to a dead mark and sildom or never miss This Court runs and shoots at a flying mark and therefore it is admirable if it ever hit aright I say Sir We come not to criminate or to force a ball into the Dedan but if any brick-wall expressions happen that cannot be designed otherwise it is rather a force upon us Upon the whole the Knights Citizens and Burgesses upon the serious observations they have made of the proceedings of that Court have made this judgment That without some speedy Rules and Instructions be given to those Gentlemen as the line and plumm to direct the executive part of that great Act of Settlement that the Lands justly forfeited to His Majestie upon the account of that late horrid and unnaturall Rebellion in this Kingdom and by His Majestie freely granted to the English to improve and enrich which they have beggard themselves will be taken out of their possession and themselves wives and children exposed to mockery and misery and actual Rebels that yet survive or the Heirs and Blood of those that died actve in that Rebellion be restored to the same and this being all done under pretence of severe justice the Roman Catholicks of this Kingdom may get a reputation and credit to those pamphlets they have disperst through Europe That His Masties Protestant Subjects first fell upon and murthered them Sir the Commons cannot but be apprehensive of these coniequenses and therefore in this Instrument have drawn certain proposals by way of humble advice tendred to your Grace in the name of the Commons of this Kingdom They are not of the nature to impose any forraign sense upon the Act they arise out of the bowels of it they seek not to lay out a new way but only where some corners and destowers are to hang out lights and the greatest Courts of Judicature will put out snuffs when to read the Statute they may have a Parliament-light especially a light held by that Parliament that past the Act They have likewise their convoy to your Grace by a particular clause in the act requiring the Commissioners to give an account to your Grace and the Council of their proceedings to and follow such further directions as they shall from time to time receive from your Grace and Council persuant to the Act. I shall crave your Grace's leave and patience to read it in distinct Paragraphs and according to the commands of the House to hint some parts of their sense for the reasonableness of them Forasmuch as by the Act of Settlement there is a power vestd in His Grace the Lord Lieutenann and Councel to give further Directions and Rules from time to time to the Commissioners for executing the said Act and forasmuch as it evidently appears to the House of Commons That there is a necessity of several Rules and Directions to be given the said Commissioners therefore the following particulars are to be offered to the consideration of his Grace the Lord Lieutenant and Councell as the humble advice of the said House in order thereunto This though it sounds as a preamble or introduction and so may be lookt on as a Frontice-piece or Title-page by some yet by us is understood as an essential part of the structure If our distractions were doubled they could not divide us in our duty Nec natura aut Lex operantur per saltum you were not onely the nearest port but Statio bene fida carmis And though the night should grow dark and tempestuous upon us your care hath hitherto been as a Beacon upon a nigh Promontory not only burning upon the arrival of a Fleet such as this Addresse is but even to secure the least Fisher-boat the smallest and individual interest when it lays its course to you Suyreme Councils and General Assemblies have upon created or imaginary necessities gone to the Witch of Endor and having taken their observations from their own Ignes fatui instead of the Guards of Charles his Wain have arrived at Tyber instead of Thames Now Sir being in our right Port we shall break Bulk and the first Proposal is this 1. That the King be by the Court of Claims allowed to be Party as by Law he ought to be and that no cause be brought to Adjudication till the Attorny Gene rall have a fair Summons and be fully heard Your Grace might think us under some distemper to offer this for utrum nix sit alb a non est disputandum But if the Commissioners have declared in Court That His Majestie is not concerned and have before judgment given refused to admit evidence upon record offered by Mr. Attorny-General in His Majesties behalf pregnant with evidence to have proved the Nocency of the person and thereupon have declared the Nocent Innocent and in a breath blown down the Title of several Protestants and their respective Heirs their improvements and the like it is the Duty of Us sitting in Parliament judiciously having taken cognizance thereof to offer some Expedient against it Sir Innocent or Nocent is the Question which without any help of a Septuagint is translated at the Bart of the Kings-Bench Are you guilty of the general Rebellion of Ireland or not Stamf. pl. Cor. 1. I wonder if they will not infer this inter placita Coronae Then under what Title would they refer it If the Commissioners be pleased to consult their Oath prescribed by the Act it is thus Act. p. 59. YOu shall swear That you shall to the best of your skill truly and impartially administer Justice between his Majesty and the Subject and between party and parties in the place of a Commissioner for putting in execution His Majesties gracious Declaration and Instructions for the Settlement of Ireland according to an Act intituled An Act c. This Oath is framed in terminis according to the exigency of the subject matter cognizable in every Claim by the Commissioners for every Claim Guilty
Clerk of the Parliament appointed or to be appointed for the Commons House c. And more directly Accompt of the Tryal p. 46. in the point upon the Tryal of Harrison the Regicide Mr. Jessop was produced to attest several Orders of the Commons House Mr. Jessop being Clerk of the House Propos 5. That the English Quarters be ascertained from time to time until his Graces recess in 1647. and that all Quarters not so ascortained be adjudged the Rebels Quarters Sir The Qualifications are the Soul and Spirit of the Act and amongst the Qualifications that of living and enjoying their Estates reall and personal in the Enemies Quarters is velut inter ignes Luna minores it is the Elixir of them and therefore till those be ascertained from time to time we are as in a Labyrinth without a Clue It is offered to be ascertained from time to time for the motion of War is Planetary and there were Ebb and Spring-Tides according to the success of the Armies This will much expedite time and abate the Alamode sin of Perjury it will answer much the Proceedings of the Common-Law where a Prohibition lyes when the Bounds of Parishes are in question when a question is Whether Lands be in ancient Demeasn it is tryed by the Books of Domesday 3 Cro. 228. 5 H. 5 10. Heb. 188. This is the Shibboleth to distinguish an Ephraimite from a Gileadite and the Bounds of the Brook Kidron warranted the Judgment against Shimei Propos 6. That where two or more persons have claimed one and the same Lâ—ands Tenements and Hereditaments by several Titles that such Persons Titles be tryed and ascertained before the said Commissioners proceed upon the tryall of innocency of any or eithâ—r of them Without this it will resemble some Games at Cards where the Protestant Defendant will assuredly have his Cards rust upon one hand or another for example three or four or more for that is usual claim the same Lands now their respective innocencies come first in tryal if three of four be judged nocent and one innocent by agreement to give it no other name amongst themselves the other Titles shall vest in him who obtaining his decree of innocency shall carry the Lands whereas re vera the Title was not in him and yet the Court according to this unreasonable Rule excusable as to the Judgment and the Protestants to the defence who cannot have cognizance of such privy and dormant Titles This Proposal answers but the Rule of enter-pleading in the Law wherein to give one instance of many Two several persons being found Heirs to Land by two several Offices in one County it is doubtful to the King 8 E. 4.6 to which of them he shall give Livery and therefore before Livery shaâ—l be made to either they shall interplead that is formerly tryed between themselves who is right heir Propos 7. That in all Claims the Titles to the Lands Tenements and Hereditaments be first tryed and that the Deeds of all Nocents be left in the hands of the Court there to remain What hath been offered to the last Proposal may in part serve to evince the conveniency if not necessity of this it hath its rise from a Maxim in our Law Frustra fit per plura quod sieri potest per pauciora for if it appear that the party hath no Title the labour of Tryal of innocency is saved 8 Co. 167. where it is probable Witnesses may strain the Point so far as to make themselves nocent before God to make another innocent before man and it is but consonant to the usual proceedings in Law that where it appears to the Court Cro Et 230. upon the Plaintiffs own shewing that he hath no Title though the Defendants Plea may be vicious yet he shall never have judgement Besides Sir it is to be observed That the Trial of innocency is by the Act of Settlement adopted into the place of an Office sound Stamfor 63 64.38 E. 3. 18. and so is in nature of traversing an Office in which case the Law is clear that none shall be received to traverse the title of the King without making a title to himself As to that part that desires the Writings of Nocent persons to be lest in the Court it cannot work a prejudice to them for the Lands being adjudged against them to what purpose will the Writings operate in their hands But Sir I correct my self they will have an operation and this puts me in minde of a plain but apposite similitude Sir in the North of Ireland the Irish have a custom in the Winter when milk is scarce to kill the Calf and reserve the Skin and stuffing it with straw they set it upon four wooden feet which they call a Puckâ—an and the Cow will be as fond of this as she was of the living Câ—lâ— she will low after it and lick it and give her milk down so it stand but by her Sir these Writings will have the operation of this Puckcan for wanting the Lands to which they relate they are but Skins stuffed with straw yet Sir they will low after them lick them over and over in their thoughts and teach their Children to read by them instead of Horn-books and if any venom be left they will give it down upon the sight of these Pitckan Writings and entail a memory of revenge though the Estate-tail be cut off Sir how little soever this may weigh yet in the Government of Rome when the Tarquins were put down not onely all moneys and Sculptures that might retain their memory were by publique sanctions decried but such Innocents as retained the name were forced to assume new ones The Israelites remembred the flesh-pots of Ægypt when Manna was before them but when they wanted water they murmured Propos 8. That where the Claimant claiming an Estate of Inheritance hath not set down his title certain in such case the Claimant shall be adjudged to claim in Fee-simple and not otherwise Sir To open this proposal matter of fact must be thus stated The Irish put in their claims generally under such expression That he is seized as of a Demeasn in Fee or Fee-tail or some other Estate of inheritance in use possession or remainder This hath been excepted against but it hath been over-ruled to be a very good form of pleading indeed it is Sir for one cause to take away all probable means where by the Protestant Defendant may maintain his Cause it indangers him not onely to loose his Land but first to loose his sence Those Presidents will inrich our Books of Entries as the German word Plunder did out English Dictionaries whilest it beggard our Nation Besides Sir to demand Oyer of any Deeds hath been over-ruled by the Court so that when according to the present proceedings We come to know the Title of the Irish Clymate We have no more time of defence then the Fowl hath that no sooner sees
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
that confoederacy by the Judgment of Law and that Act are These persoes have by their own industry lost Liberam legem their Estates are forfeited as well as if it were by Office or at tainder For What It is answered Upon the account of the Rebellion then certainly the witness must be Rectus in curia before he can make anothe so for Quicquid efficit tale est magis tale in a modus decimandi against one the rest of the Parishioners shall not be witnesses in defence of Common against a Commoner the rest shall not be witnesses Hob. 92. And yet the union and tie in these cases are not under such strict interest of association as amongst the confoederate Catholiques of Ireland It may be objected We make use of them against themselves It is easily answered It is but just and reasonale A Tarryer is the only creature to unkennel a Fox because he is got by a Fox and a Brache hound How is it possible for us to prove such a person to have been at such a battel to have contributed to their assistance to have sat in their General Assemblies but by persons frequent amongst them and of their own confoederacy and such a Witness is in Law a double Witness and the same reason urgeth the necessity of their proof by such as lived in our Quarters Besides it is known how the Law is in case of an Approver who though he confess the same Felony Stamf. pl. Cor. fol. 142. Who either by direction of the Court or at the prayer of the Felon himself is examined by the Coroner and his examinations taken upon Record for the good of the King and Commonwealth And Sir I suppose the Opinion is maintainable especially as the proceedings are if he or they that were in arms in Munster are not equally guilty of the bloud shed by the Army in Ulster they move by joynt Counsels from one publick stock of maintenance the victory of one is the victory of the other and consequently the bloud shed by one is the bloud shed by the other It is good Law that if a man received a man that is attainted of Felony by Outlary in the same County though he be ignorant of it yet he is accessary to the Felony because the Outlawry is matter of Record of whsch every one ought to take notice This were durus sermo a hard Law if when an open and universal Rebellion is maintained and the Kings Colours slying in the field and the Sword and other Ensigns of Royalty at home as notable matters of Record as an Outlawry upon Proclamations in the County-Court that persons should not take notice of it and then taking notice of it should relieve and abet the actors therein and instead of being punished as accessaries they shall triumph as witnesses to clear the principals if any accessaries were in Treason The reason of the Law why if 3. or 4. be in a room and but one gives the deadly stroke yet the other shall be accessaries is because the presence of the rest abated the courage of him that was killsd to make his own defence upon the same reason all the confoederate Catholiques are accessaries or principals If it had been understood by the Protestants in Ulster that this Rebellion had been only the attempt of Sir Philome or a Rabble as in publick papers the Irish have termed it so much bloud had not been so cheaply spilt but hearing it was universall and countenanc't by confoederacie of all that his Majesties Proclamations to lay down armes were contemned this abated their spirits and made way for dispair to dethrone resolution Propos 16. That when the Court doth give Judgment upon any cause that every respective Commissioner seriatim deliver his particular Judgment in open Court with the reasons thereof Sir It is among the ornaments of our Law that matters are very learnedly debated at the Bar and in Causes of difficulty solemnly argued by the Judges on the Bench In every leaf of our Year-Books and Modern Reports we may discern the Judges Opinions and their Reasons No doubt but Judicatures are under great temptations and a greater check cannot be upon the frailty of our Natures that they lie not under the protection of a concurrency As true it is that virtue hath been scandalized by an affiâ—â—â—y with vice so likewise it is true that vice gets a reputation by a commerce with virtue That Cato did look on was held to be a restraint to some spirits and no doubt but when so great an audience as attends that Court shall hear every particular Commissioners Judgment and the reasons of it whether it may prove as a means of caution to themselves yet surely it will give a great satisfaction to the persons concerned upon whose uninterested Judgment they may repose as well as upon their Councels argument Thus it was in the case of Ship-money And such is the solemnity of Judgments that they are enâ—red Consideratum est per Curiam if it be entred Videtur Curiae for the levity of it error will reverse it Propos 17. That where affidavit shall be made that one or more materia Witnesses being summoned before the Court refuse or neglect to come in that such cause be suspended This Proposal is the issue of Experience for we are certainly informed that divers persons who have formerly offered themselves as witnesses and that have declared their knowledg in order to prove the nocency of severall persons withdraw themselves some alledge they are under the censures of Excommunicâ—tions and Fulminations they are hard words but happily your Grace remembers them when not only your Grace but such as should give your Grace any relief or those that served under your Command have been involved in the same and perchance your Grace hath not forgot the operation of them It is said in Philosophy Actus activorum non sunt nisi in patiente bene praedisposito How receptive the complexion of the people hath been of such influences I shall pass by onely thus much I must observe if they were so powerful as to violate the Bonds of Allegiance to their lawful and merciful Soveraign they may without straining dissolve the Reciprocations of Common Equity amongst Subjects Estates rest upon Proofs and if Witnesses neither flectuntur prece aut pretio I mean their necessary and convenient expences tendred we must resort to the Law for its process If they will not mannage with a Snaffle perchance their Heads may be brought into a Rane with a Port-pit And upon Affedavit made it is but reasonable to suspend the Cause There is no priviledge in this case by Law to exempt them for giving Evidence in his Majesties behalf and for settlement of this Kingdom which is the adaequate Object of the Act There are no stronger or nearer Relations then Man and Wife that the Law in many respects esteems them as an Individuum Yet a Wife for the King may be brought to give