Selected quad for the lemma: justice_n

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justice_n	court_n	majesty_n	sir_n	6,797	5	7.3094	4	true

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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

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 Isr●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

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

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

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 C R HONI SOIT QVI MAL Y PENSE DIEV ET MON DROIT Printed at DUBLIN And Reprinted at LONDON by J. Streater by Speciall Order 1662. The SPEECH of Sir AUDLEY MERVYN Knight His Majesties Prime Serjeant at Law and Speaker of the House of COMMONS in Ireland Delivered to JAMES Duke of ORMOND Lord Lieutenant of Ireland the 13 day of February 1662. in the Presence Chamber in the Castle of Dublin May it please your Grace ACcording to the ancient Priviledges of our House We have been humble Suitors for this Access into the Royal Presence and your private Spirit which knows not how to deny prevails so in your publick Capacity that even for this your Graces particular condiscention I am commanded by the Knights Citizens and Burgesses in Parliament assembled to present you their most Submissive acknowledgment And surely this present Solemnity of the House attending your Grace may carry the signification of a Hand in the Margent to point out something more then of ordinary observation This with us is as a sheet-Anchor which is never made ready but when we discern a cloud perchance it is yet no bigger than a mans Hand but by the best Judgment we can make of it it is like to over-cast the Horizon of this Kingdom This makes this Address of that Importance that the House thought not fit to entrust it to the bare expressions of a Speaker had he been of the greatest abilities therefore have they committed it to this Instrument that it might remain as a Record of their Endeavours that the hard Fate and Ruine of an English Interest in this Kingdome might not bear date under the best of Kings under so vigilant a Lord Lieutenant under the first and if not prevented like to be the last Protestant Parliament that ever sate in ●his Kingdome It would confound Astrologers to observe such Planets such masculine Planets ascending in Conjunction in the Houses of their Exaltation and yet this Kingdom not to be Planet-struck There is a time to speak and a time to hold our peace This this is the Critical time God calls us to it when Religion the establisht Religion is in danger to be undermined by casting the predominancy of temper upon a Popish Interest And believe it Sir whatsoever delusive Tenents have been broached a late the contrary hath been written in Letters of bloud not in his Majesties Kingdoms onely but wheresoever the Papal power was exalted That persons professing the Reformed Religion are but Tenants at Will for their Lives and For unes and through Centuries of Ages it appears That as their Fleeces grow they are shorn till a time of slaughter be appointed His Majesty He hath called us by his Writ to no other end but to offer up our humble Advice Nè quid detrimenti respublica capiat And if ever the advice of Subjects may be serviceable to their Prince this is the time when this poor miserable and unfortunate Kingdom fruitful by the bloud of English and plac't as a greedy grave to bury their treasure in from age to age is upon its new module It is now in its Mintage and our care must be that the Miter be not stampt instead of the Crown It is not long since the sale of this Kingdom was offered to the Miter as his Majesties Interest was prostituted to every Roman Catholick power so that it may be said of Ireland as Jugurtha said of Rome O venalem Hiberniam ●●ox perituram si modò emptorem invenerit Did I say his Majesty call'd Us May his Majesties days be long and prosperous Were we weltring in our bloud We must hold water whilest he washes his Hands in Innocency The Country calls Us and were they not assured We would speak for them doubtless but your Grace had heard them speak for themselves by their humble Petitions for the Alarum that Hannibal is at the Gates is hot throughout the Protestant Plantations We are his Majesties Great Council the grand Inquest of the Kingdom and We dare appeal to your Grace how We have spent our time We understand the usual proceedings in Parliaments to begin at Grievances and conclude with Supplies We have inverted the Order and applyed our selves hitherto in settling a constant Revenue for his Majesty and granting other Temporary ayds far above our abilities yet far less then what his Majesties goodness may challenge from us There hath been an imitable contention as I may say between the King and his Parliament here if it were possible for a Subjects to out-do such a King We would but 't is possible for a King and he hath out-done us and therefore vaeh illis Wo be to them that in this Conjunction would undo us both It must be therefore a forc't Put that presseth us on to this address and our moderation even in it will appear Cuncta prius tentanda It is in the body Politique as it is in the natural he brawny and fleshy members can admit a discontinuity of parts though not without pain yet without danger But the apple of the eye is so tender that the least dust is offensive to it We enjoy the benefit of many good and wholsom Laws But the Act of Settlement is the Law of Laws it is the Magra Charta Hiberniae this is the apple of the eye and must be Printed with this Motto Nemo me impune lacessit Our strength lies in this as Sampsons in his locks if those be cut we are as weak as others when the Philistins shall fall upon us in the execution of other Laws whether Mint and Cummin in this we fulfill the weightyer things of the Law Your Grace well remembers that strugling twins in the Womb of this Act never Prince that sat upon the Throne endured so many pongs and throws to give his Protestant Subjects a Birth and Life as CHARLES the Second did And We shall never forget the fainting expectations of the People for this Bill of Settlement when every ones Soul look't out at the Casements of his eyes as Sicera's mother with a Why are the wheels of his Charirt so long a coming But now Sir with as great a sorrow We behold the driving of the Chariot to belike the driving of Joh● the Son of Nemish that drove furiously We come not this day to reflect upon the Commissionrs for executing the said Act This House hath a great respect for that Court it had part of our breath to give it life and we are under the greatest obligations to admire his Majesties goodness and favour to his Protestants I shall neverforget the expression