Selected quad for the lemma: judgement_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
judgement_n	king_n	parliament_n	treason_n	2,197	5	9.2136	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

pleased to consider the worthy Adventurers of England of which interest saith his late Majesty I am resolved to be very tender and I am fure Sir it concerns a Protestant Parliament to be tender of them Should our sins provoke God to visit us with so sharp a correction again as he did in 1641. with what considence could we expect supplies from England if former Adventurers bottomed upon so strong a security should after such so long so expensive solicitations be disappointed And Sir we are upon the precipices of this ruine when amongst all the persons that have been restored as Innocents we cannot understand of one neither can We say upon our own knowledge and we come from all parts of the Kingdom that any one of them from 1641. to Sep. 165 ever drew a Sword against the Irish in Rebellion or ever assisted the English forces in the prosecution of them And much of this ariseth the King being not made party by the vilifying of the Witnesses produc'd by the English the checking of the English Council at the Bar whilest the insolencies of the Irish Counsel are past over in silence the disrespect unto Depositions Evidences and the absolute rejecting of other matters of Record His Majesty we hope by your Grace and Council being thus stated in his right we come to the second Proposal his Evidence 2. That all Examinations and Depositions whatsoever taken for discovery of the Rebellion as proceedings of the Rebels and their Adherents as well during his late Majesties reign or in the time of the usurped Authority All Books Rolls and Writings remaining in any Offices belonging to the Court of Claims or in any of his Majesties Courts of Record as also the Books of Kilkenny be taken for good evidence in behalf of his Majesty to bar such person or persons of their Ianocency Sir We promise the King to be party and then this Proposal reacheth but to evidence concerning Guilty or not Guilty of the Rebellion in Ireland But in the general as to evidences and proofs We must take notice that the Law distinguisheth times and according to Emergencies suits and applyes its remedies This is the great design of the Statute-Law to alter and change the garments of the Law according as the dimensions of the Body Politique alter and change The Notoriety of this Rebellion no History can paralel to use his late Majesties words and yet to come to the proof of individual persons acting in it is no easie matter In the late Wars between France and Spain puissant and numerous Armies have been drawn into the field and yet how few individual persons by exact proof of the adverse party could be concluded to have ever been present at any of those battels Our Case differs not We were as distinct enemies as French and Spaniard the English under his Majesties Government the Irish under a Supreme Councel and general Assembly How can we witness without seeing how could we see without fighting during which Act Our spirits on both sides exercised not so much the reflect Act what We should do hereafter before the Judge as the direct Act What we were to do upon the place before our General Silent leges inter arma was never more truly applicable did our present condition bear analogy with Nets and Routs in time of peace the Law enabled us by means to maintain a distinct proof But Sir It is a true Maxim Quod remedio destituitur ipsa re valet si culpa absit and the Law where the subject matter in demand will not admit of proof 2 Bulstr. 310. will supply it denying to deliver the money the Law will conster it a sufficient proof to maintain a conversion of it And the great Act of Settlement had in its prospect these difficulties the Act words p. 4. are viz. And for asmuch as the Rapines Depraedations Massacres committed by the said Irish and Popish Rebels and Enemies are not onely well known to this present Parliament but are notorious to the whole World Notwithstanding the many Means and Artiffices which for many years together have been used to murther such Witnesses suppress such Evidences and also to Vitiate and Imbesil such Records and Testimonies as might prove the same against particular persons c. Thus your Grace observes the Judgment of King and Parliament that this is an extraordinary Case and it is not disagreeable to Law Novis injuriis emersis nova apponere remedia and We ought not to allow that imperfection in our Law living in the most glorious Constitution in the known World that Treason and Rebellion should pass with impunity because though the Law meets with these Enemies per se yet that it should suffer them to escape nay to triumph per accidens No Sir the Law will do much ne curia Domini Regis deficiat in justitia But Sir more particularly The Law betwixt party and party allows in many cases Examination to be taken in perpetuam rei memoriam If so it would be a hard consequence of his Majesties and Council fore-seeing the difficulty of proofs flagrante bello should authorize persons to receive Examinations that then might be had if afterwards no use should be made of them It is as true tha● Rex non praecipit inutilia as that Lex non praecipit inutilia Cro. Car. 69 70. It is a remarkable Case of Sir Randolph Crew ver George Vernon That Examinations of Witnesses taken by Commission after the death of K. James which Commission legally was determined yet should be allowed to be goods especially as the words of the Judges are in a Court of Equity where the proceedings are jure naturali and not according to the strict course of the Law And be pleased to observe their further Reason certified to his Majesty viz. Otherwise it would draw into question many tryals by verdicts of Nisi prius and Tryals and Attainders upon Goal-deliveries whereupon divers have been arraigned and executed since the Kings death so that your Grace may observe the prudence of the Law to obviate inconveniencies and therefore multa conceduntur per obliquum quae non conceduntur in directo Besides the Law requires not the attending of circumstances so praecise from matters given in evidence Kelway 166. as it doth from the same matters by way of pleading Br. Records 65. style 34. A man shall not plead a Record except it be in the same Court where it remains unless it be exemplified under the great Seal Heatiey 138. but otherwise it may be given in evidence A canceld Deed after testimony given of the matter of fact how it came to be c●nceld was read in evidence Proofs by deposition taken in the Exchequer in a former suit Lane 110. shall be allowed notwithstanding the parties are alive a fortiori depositions taken in the Kings case and between the same parties as in our case it is Hob. 109.110 But true it is where

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

Now Sir as to the point in hand viz. That the persons that are by peculiar name restored to their Estates under a praevious Reprisal can claim them no other way then the Act prescribes I shall humbly offer you the Judgment of the Sages of the Law in an instance or two Where a man hath Title to Land by an Estate-tail and afterwards the same Land is given to him by Parliament his Heir shall not be remitted for by the Act of Parliament all other Titles are for ever excluded for this is a Judgement of Parliament that the Estate shall onely remain in the same very way that it is given The same Law is where the King hath a Title in Tail and the Land is given to him by Parliament in Fee the Estate-tail is determined so that the Heir shall not avoid the Leases made by his Father for the Statute binds all for Titles and Estates B. Parliam 73. The Reason given here is for that it is a Judgment in Parliament and of what extensive power that is even to take the right hand of an Act 2 Institut 497. will instance Nay Sir the operation of a Statute casts it with that violence upon the party taking it that if it had given me the Estate of any p●rticular person by name saving the right of that party the saving had been flattering as we call it 1 Co. 47. a. b. It is said Though the Act be in nature of a Conveyance or Judgment the saving is repugnant as to him that makes the Conveyance or against whom the Judgement is given or from whom the Estate of the Land is to pass for though they be parties to the Act yet in Judgement of Law the Land shall move from him that is seized Plowden 49. it is there held where Lands are given by Statute it shall be interpreted the gift of the Ter-Tenant and the confirmation of all others that assent to the Act for if it should be adjudged the gift of another person the Parliament should do wrong to the Ter-Tenant to take away the Land and make another to give it Sir The application is easie and familiar to your Grace who well remembers the great Solicitations that was made to get into this Clause it was lookt on as the Ark for those who could not endure the Examen of Innocency and being nocent found themselves bound by the Act to be concluded by taking out of Lands in CONNAUGHT in compensation of their former Estates they very well understood that the Gate of Innocency had no flaming Sword over it to keep any from entring As great and powerful Provisions are made for such persons as Wisdom could contrive but the Law presupposeth every man knowing own Estate and condition best will not make an election to his prejudice but if he do and that election is executed by an Act of Parliament he is bound for ever Hob. 256. it is thus Note an Act of Parliament hath every mans consent as well present as to come and he may be an Authour of his own hurt also he must hold as the Act gives it having power to bind every mans right finally or Sub modo and therefore if any person by his application to the King when out of his Princely favour hath granted his Request though thereby he hath re-intrencht himself of a provision otherwise held out unto him he must lay his hand upon his mouth and own the inconvenience to arise from himself It hath been judged that License for alienation by Parliament takes away the Fine otherwise by Law due to the King The like in case of partition by Parliament between the Co-heirs of the Lord Latimer 1 Le. pl. 113. the reason is given there for that the Queen her self is party and principal Agent and therefore against her own Act she shall not claim the Fine And shall an Act attatch the Revenues of the Crown that are firmamentum belli ornamentum pacis and yet a private person avoid and make illusions a Statute for which himself hath been a suiter and to which upon the passing of it he hath personally given his vote Ecce mode mirum Sir Nothing is more favoured by our Law then a Remitter and even that upon construction of the Stat. 27 H. 8. that ancient priviledge of the Common Law is so over-ruled that the person taking by the Statute in most cases shall not be remitted and if a Statute by construction layes aside the indulgence of the Common Law in publick settlements à fortiori it will bind private Interests particularly exprest In the next place I must observe That all the clauses relating to these particular persons though they are in the affirmative yet being directory as to the form and manner of their restauration viz. That they shall be restored from the time that such Adventurers or Souldiers shall be reprized c. and viz. observing always the further cautions and provisions in our said Declaration expressed reserving to the said persons restauration pag. 38.12.19 Act they carry in them a negative for it is a Rule That all Statutes that limit a manner and form in execution of matters that were not so by the Rules of the Common Law though they be in the affirmative they are in substance the negative as if it had been exprest That it shall be done in the manner and form and no otherwise so it hath been adjudged upon West 2. c. 4. that gives Quod ei deferunt and that the Demandants may Vocare ad warrantum as si essent tenentes that is as much as if it had said Et nullo alio modo and so 11 H. 7. c. 20. where it is said he shall enter enjoy and possess the Land according to his title in them it shall be understood according to his title and in no other manner Plowd 113. Now to restore an Nocent that is one guilty of Rebellion to his former estate certainly will be granted it is not agreeable to Common Law why then when this Act particularly names some of them and that under the character of Nocent persons and presents the way order and means of their restauration not once but through the texture of the whole Act it must needs rationally follow that it is intended and no other way The Act saith You shall observe the Rules for their restauration what is the Rule it is this after a previous reprisal but if you take him out of this clause and put him upon Innocency then he is to be restored before a reprisal I humbly ask How is the Act answered that sayes Thus it shall be No saith the Court it shall be thus And by saying so a great part of the Act is made to signifie nothing nay tha● part of the Act upon which the Protestant Interest wholly depends for that being observed they are sure to have their penny or pennyworth the Estates they now enjoy or reprisal which by the plain and genuine construction

almost be any business that I can have more care of I might now take up some of your time in expressing my detestation of Rebellions in general and of this in particular To conclude I conjure you by all that is or can be dear to you and me that laying away all Disputes you go on chearfully and speedily for the reducing of Ireland In his Majestiees answer to a Petition of the Parliament his Majesty delivereth himself thus exact collect p. 34. We cannot but thank you for this care and your chearful ingagement for the suppression of that Rebellion upon the speedy effecting whereof The Glory of God in the Protestant Profession the safety of the Brittish there our Honour and that of this Nation so much depends all the Interests of this Kingdom being so involved in that business c. In his Majesties Declaration to all his loving Subjects publisht with the advice of his privy Council it is thus declared viz. And our hope is that not onely the Loyalty and good affections of all our loving Subjects will concur with us in the constant preserving a good understanding betwixt Us and our People but at this time their own and our Interest and lamentable condition of our poor Protestant Subjects in Ireland will invite them to a fair intelligence and unity amongst themselves that so we may with one heart intend the relieving and recovering that unhappy Kingdem where those barbarous Rebels practice such inhumanities and unheard of outrages upon our miserable People that no Christian ear can hear without horrour nor Story paralel And a few lines after follows these words viz. Whereas We acknowledge it a high Crime against Almighty God and inexcusable to our good Subjects of our three Kingdoms if we did not to the utmost imploy all our powers and faculties to the speediest and most effectual assistance and protection of that distressed People And we shall now conjure all our good Subjects of what degree soever by all the bonds of love duty and obedience that are precious to good men to joyn with us for the recovery of the Peace of that Kingdom c. In His Majesties Message sent by the Lord Chamberlain to the House of Peers it is thus said His Majesty being very sensible of the great miseries and distresses of His Subjects in the Kingdom of Ireland which do daily increase so fast and the bloud which hath been alreddy spilt by the barbarousness and cruelty of those Rebels crying out so loud c. And in his Proclamation of the 1. exact collect 34. of Jan. 41. inter caetera We have authorized our Justices of Ireland and other our chief Governour or Governours and General or Lieutenant General of our Army there and do hereby accordingly require and authorize them and every of them to prosecute the said Rebels and Traytors with Fire and Sword as persons who by their high Disloyalty against Us their lawful and undoubted King and Sovereign have made themselves unworthy of any Mercy or Favour c. In an answer of his Majesties are these words viz. His Majesty being more tender in that particular which hath reference to Ireland as being most assured that he hath been and is from his Soul resolved to discharge his duty which God will require at his hands for the relief of his poor Protestant Subjects there and the utter rooting out of that Rebellion Exact Collect. 72. Thus far this glorious Martyr and these are but few of many But Sir If any shall object To what purpose serves this A Rebellion is not disputed neither is there any that ever questioned His Majesties abhorrence of it I answer Though several Pamphlets swarm to fasten the rice of the Rebellion upon the Protestants and that we drew the first blood and much of the like stuff yet these places are not quoted to that purpose it is but to shew how unreasonably His Majesty is denied to be a party in discovering who were guilty of that Rebellion so horrid and odious to all Christians to use His Majesties words in another place Exact Collect. 71. when especially this very tryal of Innocency and Nocency is the onely way prescribed by the Act to vest the Lands in the King and is to supply the defect of Attainder and Offices to be found which must be in the Kings name or that any Commissioners can strain the Act and Qualifications to let Nocency be shrouded under Innocency and Treason to become merit Besides it is to be observed the Actors Abettors c. of the Rebellion in Ireland notwithstanding this jubilee of Indulgences under our gracious Sovereign stands yet unpardoned the punishment being left to the execution of this Act and shall the King be excluded in the tryal and not made party I shall say no more but certainly those that are of that opinion differ much in judgement from his late Majesty and his Majesty that now is who inherits his Fathers Vertues with his Throne Besides I shall put your Grace in minde that the Agents of the Roman confederate Catholicks of Ireland amongst other their desires in writing desired that his Majesties Council at Law might be at large and indifferent but it would not be granted I shall further offer the judgement of the Parliament in England Decemb 41. in their third Proposal to his Majesty viz. That you would be pleased to forbear to alienate any of the forfeitod and escheatod Lands in Ireland which shall accrew to your Crown Exact Collect. 2. by reason of this Rebellion that out of them the Crown may be better supported and some satisfaction made to your Subjects of this Kingdom for the great expences they are like to undergo in that War I do not infer that his Majesties necessities or Revenues must be supplied or setled by the confiscation of innocent persons Estates God forbid we should put that leavon into the Kings Treasury or such Mandrakes into the pot But Sir God sorbid on the other side that Nocents Nocents in so high a degree should for want of evidence that the Law allows in the Kings behalf should be made Innocents whereby his Majesties Revenue so considerately setled in this Kingdom should be reduced to nothing and so the Protection we enjoy by his Majesties Army for so is our condition in this Kingdom be dissolved and to compleat the misery the Protestant Families turnd out to the open Sky to entertain him whom upon the accompt of Rebellion his Sword had conquered It is further worthy of consideration that his Majesty is not onely concerned in his Revenue but by a strict decreeing of just forfeitures answers a debt his Majesty hath been pleased to take upon himself by his Letters from Breda to the Army here under the Command of the Duke of Albermarl The payment of that part of the Army in England drew vast Treasures whilest the forfeited Lands here by a due execution of the Act will discharge that debt Be

divided among them they would stoop to so sordid a crime as Perjury The Peers of the Realm upon this account pass upon tryals of blood only declaring their Judgments upon their Honour But surely cur case is plain and that they are not only lawful Witnesses but under strong Obligations if any person be indicted of Treason to give in evidence their knowledg in matter of fact Tenant for life and the Remainder over If Tenant for life be indicted for Treason he in the Remainder may be a witness though in that case when one goes to the bough the other goes to the plough Propos 20. Upon motion to the Court that any aged or impotent Person that can give evidence for his Majesty That their depositions be taken by Commission and lodged in the Court to be produc't in his Majesties behalf at the same shall require This is not denyed in the case of the Subject Commissioners to examine in perpetuam rei memoriam are frequent It is but reason to use all good Husbandry for the King and to pickle up such proofs as through age cannot keep long Thus may it please your Grace I have past by those several heads given me in charge by the House humbly to present to your Grace with the instance of some of those many reasons they had under their consideration The conclusion of the Instrument is this viz. These are the particulars which are presented to his Grace and Council as the result of the observations which have been hitherto made upon the late proceedings And that this House humbly desires his Grace that when time and experience shall suggest any thing of like moment with the above particulars his Grace and Council will be pleased to receive them And if any thing herein offered through the strai●ness of time be not sufficiently cleared his Grace and Council would be pleased to admit a Committee of the House of Commons to confer with a Committee of the Board upon the same and that in the interim if any cause to be heard by the Commissioners may receive prejudice under any of these Proposals being undetermined that the Commissioners being ascertained of the same may suspend the hearing of it till his Grace and Councils pleasure be further known It rests only to beg your Graces pardon if in discharging the trust reposed in me I have been enforced to use some words of Discrimination It is against the Inclination nay the Prayers of the House if the Subject matter could dispence with it to avoid them They know the compleat peace of the Kingdom rests not in cessation of Arms but in union of Hearts and they doubt not but under the prudent Administration of his Majesties Authority vested in your Grace we shall arrive to that happiness that it may be said Jam cuncti gens una sumus ah Sir and Sic simus in aevum We complain not of the want of a good Law for the settlement of this Nation upon sure and lasting foundations such that nothing but our sins can subvert If the spirits of all Kings living had been textacted they could not have contributed more to revive a gasping Kingdom than the wisdom of our Royal Soveraign blest with a Divine assistance hath in this Act of Settlement recorded to perfume and embalm his memory to all ages But Sir Corruptio optimi est pessima It is not the Sword but the hand that gives Protection or a Wound with respect to the efficient cause The Law saith All-hail-Protestants of Ireland but if the execution be dissonant we are crucified under a glorious Inscription of Mockery The execution of the Law is the soul of the Law the want of this hath transmitted this never-dying Truth to Posterity That Nulla est ta● misera servitus quam ubi jus est incertum vagum FINIS February 13. 1662. ORdered by the House nemine contradicente That Mr. Speaker having this day so faithfully delivered the sense of this House unto his Grace the Lord Lieutenant Do cause his Speech to be Printed and Published and that it be entred into the Journal of this House Philip Fernely Cler. Parl. I Do appoint Alderman William Bladen to Print my Speech And that none else presume to Print it without my Order AUDLEY MERVYN