Selected quad for the lemma: land_n

Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
land_n	heir_n	part_n	tenement_n	1,627	5	10.4553	5	false

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

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 L●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 eith●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 sha●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 Puck●an and the Cow will be as fond of this as she was of the living C●l● 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

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 usurp●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 set●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 ●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 Cl●ims were put in upon the Declaration and Instructions which by the Act possibly may be altered It is easily answered either the Act hath given them a new title or it hath not if it ha●h given them a new title then they are in by the Act and not by any former title if it hath given them none then their old title is that they must rely on But admit an election be the Law is clear Noy 29. and so resolved that there is no election against the King Propos 10. That no Claimant claiming by Innocency shall be allowed to make any other Claim in case he shall be adjudged Nocent Sir We must crave your patience to consider this Case And first the Act of Settlement omitting other divisions divides the Irish into Innocents and Nocents and there is but one subject matter upon which both these distinctions have their prospects scilicet the recovery of their Estates I shall grant that election of Actions belongs to every Subject as his Birth-right Dep. 20.21 57. but likewise it must be granted that where he hath made his election prosecuted it and determined it he cannot have recourse to renew his election being not suspected but extinguished I speak this with this salvo that a person that by particular clause in an Act hath an Estate granted unto him he must take finally and sub modo as the Act appoints Br remitter 49. and hath no election to claim upon any former or other right The body of the Act is but consonant herein to the body of the Law that delights finem imponere litibus and hate●h all circuit of action If a man by his Deed granteth a Rent-charge and the Rent is arrear it is in the Grantees election to bring a Writ of Annuity or distrein Littl. Sect. 219. but he cannot make his election but once for if he recover in a Writ of Annuity he shall never after distrein or if he doth distrein and avow in a Court of R●cord he shall never after bring a Writ of Annuity because an Avowry in a Court of Record being in the nature of an Action is a determination of his election before a Judgment given à fortiori after Judgment given If a Wife be endowed ex assensu patris and the Husband dyeth the Wife hath election either to have her Dower at Common Law Dower 158. or ex assensu patris but if she bring a Writ of Dower at Common Law and Count albeit she recover not yet shall she claim her Dower ex assensu patris So if the Grantee bring an Assize or the Rent and makes his Plaint he shall never after bring a Writ of Annuity Nay when an Election is given to several persons 10 E. 4.17 1 Institut 145. there the first Election made by any of the parties shall stand A man by his own wrong may lose his Election as if a Feoffment be made of two Acres the one for Life and the other in Fee if the Feoffee maketh a Feoffment of both the Feoffor may enter into which of then he pleaseth because the Feoffee hath lost his Election 2 Co. 36.37 It is well known that where many times in one case the Law doth give a man several remedies that by the folly of his Election he may bar himself for ever 1 I●stit 27. a. b. 279. a. It s at the Election of the Issue in tail to enter or to allow himself out of possession and bring his Formedon it s at my election if one receives my Rent if I will charge him with a Disseizin and allow my self out of possession and bring an Assize or have an Action against him 1 Cro. 220. but I shall be bound up by that election to the advantages or disadvantages that accordingly attend it So it is in the Claimants election to claim by Innocency or Nocency but after Judgment given he shall be concluded Propos 11. That any person claiming as an innocent shall after proof of the title proceed to prove himself to have been faithful and loyal unto and never to have actod against his Royal Majesty or his Father before the Defendant shall urge any Crimination and that for defect of such proof of innocency the Claimant shall be adjudged Nocent The very letter of the Act rules this point page 17. of the Act. viz. That all innocent Papists being such as shall prove themselves to have been faithfull and loyal unto and never acted against our Royal Father or Our self c. The Evasion that this relates onely to innocent Papists of Convaught