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-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 Kings Plaintiff and the Defendant claims by Feoffment and to prove it duly executed desire some depositions taken at York might be allowed the Court refused it because the original of the depositions were gone so as the King must fight with weapons assigned him by his adversary Godbolt 439. so if the Plaintiff cannot find his witnesses to give testimony viva voce then he is as it were dead unto him and his depositions in an English Court betwixt the same parties may be read to the Jury It is further observable that in Tryals the Law allows evidence according to the necessity of the subject matter If the Lord distrain for Escuage and the Tenant pleads that he was with the King in Scotland it shall be tried by the Certificate of the Marshal of the Kings Host Littelt sect 102. If in avoydance of an Outlawry it is alledged he was at prison in Burdeaux it shall be tryed by the Certificate of the Major of Burdeux 1 Institut 74 Moor 451. The issue was upon full age and two Church Books were given in evidence But it may be objected That it would seem hard that Depositions taken by usurpâ—d Authority should be good I answer The same reason that warranted judicial proceedings in those times to be confirmed may allow these onely the reason is stronger in our case because the matter of fact hath been so shifted that the truth can appear no way To this I add That by the Act of Settlement they are allowed the words are these And whereas several of your Majesties Subjects by whom as Instruments the said rebels were totally subdued dyed in the time of your Majesties absence beyond Seas Act Settl p. 2. be pleased to observe this was in the time of the usurped Power for supply of the then pressing necessities and to prevent the further desolation of your Majesties Kingdom here necessitas vincit legem Enquire into the Authors Actors and Abettors of the said Rebellion and War and this was by Offices Examinations c. And after much deliberation amongst themselves and advice from others had thereupon did dispossess such of the said Irish Popish Rebels of their said Lands Tenements and Hereditaments as they found guilty of and to be engaged in the said Rebeltion or War and did withall distribute and set out the said Lands c. Your Grace may observe in this Clause here is the Guilt the Proof the Judgement and Execution concerning the Rebels Lands and the date of those proceedings is during his Majesties absence and yet this is laid as the Ground-work of that Clause which vests the Lands in the King for all the Characteristical Letters of forfeited Lands in the fourth and fifth pages of the Act of Settlement are the manner and ways of seising sequestrating distributing allotting c. of those Lands under that power for either that way must have been observed or otherwise the Irish being a consederated Body associated by Oaths establisht under a Democraty And lastly conquered by Arms must and of right might have been according to the Law of Nations condemned in gross It is to be feared the King will encounter many Deeds and Settlements and lewd Witnesses it is but reason he should defend himself by his own that are just And if out of Acts of Usurped Powers his Majesty setâ—les the peace of his Kingdoms it is but a part of Royal Chymistry out of poysonous Minerals to extract a Cordial Propos 3. That such Proclamations or any Act of State as have declared any person or persons and their Adherents Rebels before the Cessation in this Kingdom 1643. by his Majesties Authority shall be good Evidence in the Kings behalf against such person â—r persons to the Impeachment of their Innocency before his Majesties Commissioners for Execution of the Act of Settlement A Proclamation is part of the Kings Prerogative and obtains in cases of necessity the force of a Law and is therefore sometimes termed Lex temporis 11 H. 7.33 a If the King proclaim a Tilting to be held and one kills another in that Exercise this Proclamation shall be good by Pleading or Evidence to excuse the Felony The King by Proclamation may inhibit the Subject to go out of the Realm f. n. b. c. 85. c. and if the Subject doth against it it is a contempt and he shall be fined and since it is a Law to fine it will be good Evidence to justifie it It was no time for Sheriffs in the ordinary course or Law to make Proclamations in order to Outlaries when without an Army it was hazardous to march two miles from Dublin His Majesties Proclamation of the 1. Jan. 1641. invites them to lay down their Arms and forbear all further Acts of Hostility Col. 34 Pag. If this Proclamation from Mount-Geball will not take place that from Mount-Gerezzin must And we never yet received an instance that any embrac't those offer of mercy but though his Majesty hung out a white Flag they advanc't one of red I shall onely add this that it seems reasonable that if his Majesty by name declares J. S. to be a Traytor and to be prosecuted with Fire and Sword in such case if any good Subject should destroy the said J. S. he shall be indempnified by the Proclamation why then admit J.S. have escaped to this day I say if no intervenient Act of Grace from his Majesty obviate it this Proclamation may sorely impeach his innocency that might have warranted me to take away his life Propos 4. That where by any Order or Orders of the House of Commons since 1641. and before the first Sessions of this present Parliament any of their Members upon the account of the Rebellion have been adjudged to be rotten Members and fit to be cut off and have Ordered the Speaker of the said House to direct his Letter for the issuing out of Writs to supply their places That such Orders shall be allowed as good Evidence to bar such person or persons of their innocency It is first to be observed this extends no further then to the Members of their own House And your Grace may remember the Parliament fitting several Sessions after the Rebellion ahd reason to enquire what became of the far greater part of the House they found many English murthered the ways for travelling obstructed for such as survived or otherwise they were engaged in his Majesties service for defence of this Kingdom the Irish they expected after Order upon Order with their names publikely affixt whereupon they did conceive one or more Orders expressing the names of such persons who upon their own knowledge were ingaged in the Rebellion The House of Commons is a considerable Grand Jury it s a good Billa vera they return Their Orders are Records 4 Institut 23. and that appears also by 6 H. 8. c. 16. where the words are viz. And the same Licence be entred on Record in the Book of the
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
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 pâ—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 thaâ— 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
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
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
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