Captaine Audley Marvin's SPEECH DELIVERED IN THE VPPER HOVSE TO THE LORDS IN PARLIAMENT 24. May 1641. Concerning the Iudicature of the High Court of PARLIAMENT DVBLIN ¶ Printed Anno Dom. 1641. CAPTAINE AVDLEY MARVYN'S SPEECH Delivered in the upper House to the LORDS 24. of May 1641. MY LORDS SUch was the well composed Module and Beauty of those Letters of Royall Grace and Favour which by a select Committee of both Houses were treated upon that to say you may be pleased to remember them were an Injurie especially since the Arguments of those severall Conferences were all sealed up with this wel-warranted opinion that every word in them ought to be writ in letters of gold ingraved in brasse that present and succeeding times might reade them with greedy eyes speaking in their own Dialect the Embleme of a most indulgent Prince the Characters of Iustice and Equitie and the Monumentall Records of unparallel'd goodnesse triumphing in his Majesties brest as in the Spheare of their proper activitie The Letter concerning the validitie of our Parliament and the second concerning the Graces are twins of a Royall birth joyned in conjugall bonds by His Majestie 〈◊〉 without a valid and effectuall Parliament to out Graces is not to call idlers that are piping and dancing in the Market to work in the vineyard but to call the labourers out of the vineyard to pipe and dance in the Market place or if you please almost as ill sutable as a Parliament without Iudicature These two Letters so wedded we have lodged in one sheet I meane included in one instrument which being ready to be presented in its own Dimensions I will not now epitomize In the third and last Letter demanding Presidents from the upper House of the Lords for their Iudicature His Majestie speakes Harmoniously to us though in a different key he is beautifull though his brow be not so smoothly limb'd in it as in the former for certainly it is an eminent policie in a Prince and an evident happinesse to government not to suffer poyson to lodge in his cares especially such a quick spreading and pestilentiall poyson as would eate out the Basis and foundation of Parliaments and putrifie those nerves and Ligatures by which His most Excellent Majestie and We his most loyall Subjects have ever been are and maugre their black and fatall suggestions shall be upostatically united May it please your Majestie Hic niger est hunc tu Romane Caveto My Lords I must in the name of the House of Commons intreate your patience whilst I present unto your Lordships a ruste-drawn Map of the Iurisdiction of this high Court of Parliament I shall imitate a Lands-cape sust shew it you remote and in its primitive times scare discernable whether Land or no Land whether a Parliament or no Parliament then we shall saile neerer untill we come within been befriended in the course of our Navigation by our sailes we shall split on our own Anchor I meane if in the computation of all times we have had a Parliament unquestionable in substance in forme in all necessary adjuncts and now even now when ecclipsed Iustice like the Sun imprisoned under a cloud breaks forth with lustre be concluded in defect of Iudicature I say the stars have had malignant aspects in this our horizon But first my Lords since in the strict words of the Letter the house of the Lords seemes onely interested we may be thought to make an inrode upon your Priviledges and to be pragmaticall without president though not without presumption Truely my Lords Anima est tota in toto tota in qualibet parte Iudicature is the Soule of this great compacted body and injoyes that diffusive property The times were when both Houses sate in one place and had one Speaker and since the power of Iudicature must be founded upon a preparatorie Impeachments and this preparatorie Impeachment must be framed by the Commons house we must justifie our selves not guilty of the title of fooles by the Wiseman to lay a foundation and never consider by what means the structure is to be finished nay excuse our selves from that generall remonstrance of a generall Grievance Extrajudiciall Proceedings Your Lordships are under his Majestie the Chiefe be pleased to admit us Members though the feet the health of these will much advantage the preservation of the whole Compound nay on the contrary the Gout is as mortall and dolorous as the Head-ach Besides my Lords our commenced proceedings against the parties impeached of high Treason though seasoned with much moderation and temper are of ripe age 〈…〉 in long coats which are now suspend-drawne into question the Commons of this Kingdome openly proclayme That to bee excessive vicious is to be secure and that facts of Treason are above the cognisance and Punishment of the Acts of Reason and the Lawes and Statutes of this Kingdome So my Lords it being out of dispute and yet desiring not to be misconstrued that we would make stakes with you in your own and proper Iudicature that we are deeply interested in this Particular I shall returne unto my first Proposition and survay this high Court of Parliament Parliament did I say From what radix Parler le ment the speech of the minde this must be attended with judgement and reason but I thinke we speake with none of these if we cannot maintaine our Iurisdiction This is its Etymologie which is warranted by the best Antiquarie of his time Vetusto nomine è Gallia mutato Parliamentum dicitur This high Court hath not beene confin'd to this individuall appellation but hath beene christned by severall god-fathers Majores nostri Anglo-saxones intitled it Prudentum Conventus Concilium Magnus Conventusr Succeeding Historiographers Commune Concilium Curia Altissima Generale placitum Curia magna Magnatum Conventus Commune totius regni Concilium Prasentia Regis Pralatorum procitumque Collectorum But certainely if they intended these flourishing titles to a Parliament without Iudicature they spoke of their riding to Parliament not sitting in it An unhappy Parliament like the Citie Myndas whose Gates were so wide that the City might runne out of them To allow these to be Synonimas of Parliament and to disallow Iudicature were but Iewish-like to say All haâ—le King of the Iewes and in the meane time Grucifie Neyther my Lords are these upstarted Titles or new bought Coates of Armes that this high Court blazons No my Lords they are venerable for their Antiquitie and of most ancient birth and extraction Mulmuccius of some called Donwallo did write two Bookes of the Lawes of the Brittons the one called Statuta Municipalia the other Leges Iudiciariae for so the same doe signifie in the Brittish tongue wherein he wrote the same which is asmuch to say as the Statute Law and Common Law which Bookes were written 441. yeares before the Incarnation of Christ and how should there be Statute Lawes without a Parliament King Alfred ordayned for a perpetuall
usage That twice in the yeare or oftner if need be they should assemble themselves at London to treate in Parliament of the Government of the people of God how they should keepe themselves from sinne should live in quiet and receive right by holy Lawes and Iudgements In the Heptarchy Parliaments had their continuance witnesse the stile of Parliaments in the time of Ina King of the West-saxons Ego Ina Dei gratia c. Congregatione Servorum Dei sollicitus de salute animarum vestrarum statu regni mei constitui rectum coniugium iusta iudicia pro stabilitate confirmatione populi mei benigna sedulitate celebrari nullo Aldermano vel alicui de toto regimine nostro liceat conscripta abolere iudicia so did Offa. King of the Mercians and Ethelbert King of Kent In the raigne of King Athelston his Acts of Parliament are stil'd thus Hac sunt judicia Exoniae quae sapientes consilio Ethelstani Regis instituerunt iterum apud Frefresham tertia vice apud ubi haec definita simul confirmata sunt Here I finde a Parliament summoned Consilio Regis Prorogu'd in those words Iterum tertia vice the Royall assent in the Words Confirmata sunt the dissolution Rex consilio sapientum c. King Etheldred Hoc est Consilium quod Etheldrus Rex omnes sapientes c. King Edmond cals it Conventâ—â—â— Sapientum Spit itualium Temporalium The Parliament of King Canutus at Winchester bore this Title Hac sunt statuta Canuti Regis Anglorum Danorum Norvegarum venerandoejus sapientum Consilio ad laudem gloriam Dei sui regulitatem commune commodum habita in sancto natali Domini apud Wintoniam Heere we begin to make Land and descrie a visible Title to a Parliament being in substance and forme neerely allyed unto the Presidents of these very times and though some will contest this word Parliament beares date but from the third yeare Edw. 1. yet me thinkes those words in the ninth yeare of Edw. 2. being the immediate Successor to Edw. the first might convince them viz. Sciatis quod cum dudum temporibus progentâ—orum nostrorum quondam regum Angliae in diversis Parliamentis suis c. which words Progenitorum had beene improper if that name had commenced in his fathers raigne In one word time out of minde this high Court and its Iudicatore hath flourished before the Conquest in the Conquest notwithstanding that silent leges inter arma and ever since the Conquest untill this present houre Me thinkes I appeare in your Lordships eyes as one drawing his Sword traversing his ground lying upon his guard there being-neyther offence nor opposition to draw him into this distemper Your Lordships may say What neede you waken so many sleepy Records to prove Parliaments have beene who is it of so desperate an opinion that offers it in question Truly my Lords I cannot name Him or Them but whosoever they were that instill'd this jealousie of Aristotle bids us not to dispute â—trum nix sit alba and the like visible and apparant truths but if any Man of an obdurate judgement would haue denied that there was Anima Rationalis then Aristotle must prove there is Homo and Anima Rationalis will bee drawne in by consequence Prove Homo prove a Parliament and Anima Rationalis which is Iudicature will be drawne in by consequence besides I am protected by the Verse Iudicis officium est ut res ita tempora rerum Quaerere Next I must offer unto your Lordships that which the Law hath a tender respect unto even the ends of Parliament Exitus acta probat These I finde thus to be capitulated by Sir Edward Cooke Primò ad subditos a delinquendo declinandos hoc est ut delicta tam bonis cautisque legibus tam debita earundem executione anticiparentur now if debita executio legum can be in Parliament inflicted upon delinquentes subditos without legall proceedings and tryall except they will say nothing and so be prest to death I leave it to be argued amongst children 2. Vt tuta tranquillaque sit vita hominum but certainly the life of man is not preserved by the impunity of offendors which must passe sublata judicatura 3. Vt sixis quibusdam sanctionibus sanctisque judicijs jus unicuique sieret but whether jus implyes not punishing malefactors aswell as relieving the oppressed Crudelitas parcens being more destructive to the Common-weale then Crudetitas puniens I leave it to be argued among children Fleta sayth a Parliament is called Terminare dubitationes judiciorum novis injurijs emersis nova constituere remedia unicuique prout meruerit justitiam retribuere apply this remedie Then our Parliament must have a short cut in triall We must condemne without hearing of any part for why should they heare if they have no power to determine Having thus farre analized a Parliament we must consider its Parentage and then prove our claime to Iudicature by the title of Coheire with the Parliament in England which his Majesties Progenitors have ever graciously confirmed unto us A Parliament then is a structure founded upon the common Lawes of England as is manifest in its proceedings upon many trials according to the course of the Common-Lawes It is the heire apparant to the common-Common-Law and parent of the Statute Law To make this position passe for touch I will give you the Test of that ancient and learned Author of the booke intituled Mirror de les Iustices in his owne words Hoc cum sit forum in hoc regno planè supremum pars est structurae jurium municipalium nonunquam secundum frequentem illum usitatum in lege communi ordinem processies habet My Lords since with your LOPS patience we are arrived unto this undeniable truth I will now open our title to the Common Lawes of England to the Statute Lawes of England before 10. H. 7. to the lawfull customes of England to the Courts of Iustice in England to the Writs Originall and Iudiciall of England and to the Presidents of England even from the high Court of Parliament unto the petty Constables office The first knowledge the printed Statute give us of Magna Charta is in 9. H. 3. yet we finde it inrolled in the red book of the Exchequer 3. King Iohn King Iohn in the 12. yeare of his raigne went into Ireland and there attended with the advise of grave and learned men in the Lawes whom he carryed with him de land should be governed by the Lawes of England I find in Rotulo Patentum 11. H. 3. thus written Rex c. Baronibus militibus omnibus libere tenentibus salutem Satis ut credimus vestra audivit discretio quod quando bonae memoriae Iohannes quondam Rex Angliae pater noster venit in Hiberniam ipse duxit secum viros discretos legisperitos quorum communi consilio ad instantiam Hibernensium
statuit praecipit leges Anglicanas in Hibernia ita quod leges easdem in scripturas redactas reliquit sub sigillo suo ad Scaccarium Dublin Shall I repeate the very words recorded Rot. Patent 18. H. 3. Rex c. Comitibus Baronibus militibus liberis hominibus omnibus alijs de terra Hyberniae Salutem Quia manifeste esse dinoscitur contra coronam dignitatem nostram consuetudines leges regni nostri Angliae quaâ— bonae memoriae Dominus Iohannes Rex Pater noster de communi ommium de Hybernia consensu teneri statuit in terra illa quod placita tencantur de curia Christianitatis de advocationibus Ecclesiarium Capellarum vel de Laico foedo vel de Catallis quae non sunt testamento vel matrimonio Vobis mandamus prohibentes quatenus hujusmodi placita in Curiae Christianitatis nulla tenus sequi praesonatis in manifestum dignitatis Coronae nostrae praejudicium Scituri pro certo quod si feceritis dedimus in mandatis Iudiciario nostro Hiberniae Statuta Curiae nostra in Anglia contra transgressiones hujus mandati nostri cum justitia procedat quod nostrum est exequatur Teste Rege apud Winchomb 28. Octob. an regni 18. My Lords I have read this Roll at large because I perceive a holy indignation in this Prince that the officers of this Kingdome would hold Pleas not sutable in every respect unto the Laws and Customes of England adjudging the practice to be in manifestum dignitatis coronae nostrae praejudicium Then observe the warning piece Vobis mandamus prohibentes c. then the punishment Scituri pro certo c. But the Iudges in those dayes were not so acute in case they had incurred it Yet the Sophisters of Law in this Kingdome may finde that King not unprovided with his answer for the words are Dedimus in mandatis c. Statuta Curiae nostrae in Anglia contra transgressiones c. So that then the Statutes and Rules of the Courts in England may be Presidents both for triall and punishment Rot. Pat. 30. H. 3. Rex c. prs communi utilitate terrae Hyberniae pro unitate terrarum provisum est quod omnes leges consuetudines quae in regno Angliae tenentur in Hybernia teneantur eadem terra eisdem legibus subjaceat ac per easdem regatur sicut Iob â—nâ—es Rex cum illic esset statuit firmiter mandavit Ideo volumus quod omnia brevia de communi jure quae currâ—nt in Anglia similiter currant in Hybernia sub novo sigillo Regis Here are the old Lawes and Writs differing in nothing but in a new Seale which I wonder none of our witty Informers take advantage to make it an essentiall difference 13. H. 1. Coram rege in longo placito I reade una eadem esse debet Lex tam in regno Angliae quam Hyberniae My Lords I will adde but this Quotation which I hapned upon this morning 2. Rich. 3. fol. 12. in Camera stellata Terra Hyberniae inter se habet Parliamentum omnimodas Curias prout in Anglia per idem Parliamentum sacit leges mutat leges illi de eadem terra non obligantur per Statuta in Anglia quia hi non habent milites Parliamenti Here is a Graunt of Parliament past unto us of this Kingdome with all his appurtenances rites and members as they were formerly or now held by the Subjects of England from or by his Majestie Pray my Lords why are these cleere records preserved to posteritie to raise or to confirme doubts That then their Parliaments are the very starres by which we must saile by their Presidents the meridian sun we must observe to find the Latitude of our proceeddings the last rehearsed rolls proclaime vouredly this name becomes it if one Iustice of Assize may heare and determine capitall offences and this Altissima Curia not have power of a grand Iury to him to finde Billa vera Yet aske this Iustice of Assize by what president in this Kingdome he adventures upon this service Aske of the Iustice of peace by what Presidents he takes notice of Presentments Indictments awards the alias the plures Capias and his Presidents must take shipping out of England Inquire of the Court of Chancery for its presidents of Equitie for the Presidents of Writs and judgements Inquire of the Kings Bench for a President in Ireland for a Wager of battaile in an appeale Inquire of the Courts of Common-pleas for their Presidents in any of their rules of Court Nay inquire of the pettie Constable by what President in Ireland he executes his office nay for the carrying of his painted staffe and they will returne but starved and hungry arguments except they ship their Presidents out of England But admit my Lords we had no interest in the Presidents of England were it not durus sermo that the long and well settled rites of Parliament should fall to the ground for want of a President which undoubtedly hath power in it selfe to make a President not repugnant to Law Who knowes not but in the former darke and Tragicall times that all or the most part of the Roles and Records of this Kingdome were kept in Breminghams Tower and that the end of them was the Antitype of the end of the world even a dissolution by fire some layd in horse loades in every corner of the streetes for dunghill-rakers to pick antiquities up Taylors to make measures of This Epidemicall consumption of our Records was a want of them though no fault in us then unborne should permit Treasons Rapines Murthers Disturbers of the King Kingdome and Common-weale not onely passe with impunitie but be established in the greatest places of Iudicature as if Treason were the square of the Law and Allegeance become Treason Praised be Almighty God this Kingdome is not so barren of the Professors of the Law but I see those persons in my eyes that can with more respect unto the dignitie of His Majesties Crowne with more regard unto his Majesties most Sacred and inviolable Oath with more content to the whole Kingdome personate the King amiable to his people in the dispensation of Iustice in the High Offices of the Iudges impeached Yet my Lords notwithstanding the Bonsires of our Rolles I will offer one President or two by which the ancient Iudicature of the Parliament in this Kingdome will appeare in triumphant colours In a Parliament held in this Kingdome in Hen. 5. time Richard O Heydan Bishop of Casshell was impeached in 30. Articles by Iohn Gese Bishop of Waterford 3. Articles were for counterfeiting the Kings Seale for counterfeiting the Kings Letters Patent for endeavouring to make himself King of Munster so that the Parliaments in this Kingdome have not been confined to triall of petty Larcenies and most properly should punish with the Sword committing the rod
to every pedantick Schoolemaster In another Parliament held in this Kingdome in the Edw. 2. Sir Arnold Poore was tried for killing the Lord Bonevaile and by sentence of that High Court was acquitted it being found it was done in his own defence My Lords the Treasons in this Kingdome formerly practised have been by hostile invasion for the most part and were struck dead by the plaine Letter of the Law the Parliaments were but rare and Infant-like and frighted with the clashing of Armes from one place to another and untill King IAMES of blessed memory sate at the Steerage of our weather-beaten Arke our Dove never brought in her Olive-branch so that there could hardly be time allowed for a solemne tryall if the occasion had beene offred The manner of those Treasons resemble the forcible taking of a mans purse upon the high-way these Treasons that wee shall have to sift are more like cut-pursing they smile in our faces whilst their hands dive into our pockets the event is one The losse of our Money and though they be taken napping they will swear they meant us no harme Latet Anguis in herba The first man that ever suffred for Treason if want of a President would excuse him might have begot Traytors to the third and fourth generation with impunitie My house hath taken fire I call for water to quench it I would suppose him mad that would advise me to let it burne to the ground because my neighbour would not quench his and therefore I want a President We will impute it unto the integritie of those times that have not fostred such unbounded spirits to attempt such crimes as might leave Presidents of this Nature It is my Lords Iustice that those who will renew Presidents of long buried crimes should renew or create Presidents of deserved tryall and punishment My Lords I have mustered some few Arguments in vindication of the Iudicature of the Parliament in this Kingdome they are valid enough for the intricacie of the question Where tacks will serve what needs ten-penny nayles A good face wants no band A valid Parliament wants no assertions for its Iurisdiction and such is this declaring the effectuall validitie thereof in an Emphaticall sense There is nothing now left my Lords but that as I have spent some time in scanning a Parliament with Iudicature since Contraria contrarijs opposita magis elucescunt we may cast a smiling eye upon that pretty silken bug-beare of State a Parliament without Iudicature Curia altissima must be Curia infima Curia magna must be Curia minina It will resemble a sword with guilt hilts and a blade made of a larth Whereas then all Courts were derived from it now all Courts may insult upon it My Lords I leave to your Lordships consideration the cloth of State which no man ought to name without reverence whether it will not esteeme it selfe in a deplorable and widdowed estate for the death of her onely consort IVDICATVRE Like the single Turtle it mournes whilst the Cushions of the Toulesale prick up their eares My Lords me thinks the Lyons roare the strings of the harps break and sound in discord the Flower deluces wither to be stretch'd out in a place sans Iudicature None sits under that Pavilion that beares the Sword in vaine The high priz'd tincture of your Lordships robes begins to fade the Ermins loose their complexion if they loose their Iudicature That wel-becomming title to a Nation PEERAGE begins to hang down its head and blush and curses the insluences in its nativitie if it should come to such an untimely end Your Speaker may study silence and report that to himselfe which he never read nor heard of A Parliament without IVDICATVRE The Right reverend Bishops may retire in to the Iudicature that happen to be discuss'd before this Tribunall though most venerable in their own Spheare sit like so many Plovers prick'd down for Stales with this Motto Videntur non sunt We of the House of Commons that were hitherto stiled Prudentum Conventus may Impeach with little wit and you remedy us with as little power imitating Baals priests cut and lance our selves contribute our Estates our Studies our lives for his Majesties ever prayed for happinesse Call and Call to their gods that could not helpe them Impeach and Impeach and demand Iustice from our titular Lords that can neither helpe themselves nor us My Lords the Common Law speaks our Parliament and its Indicature the Statute Lawes confirme it Presidents streng then it Reason even undeniable reason fortifies it what Magick is there then That the case is thus altered If it lyes in the degrees of the persons impeacht heare then the Statute of Marlebridge 52. H. 3. Provisum est concordatum concessum quod tam majores quam minores justitiam habeant recipiant in Curia Domini Regis Yet their offices may offer some things in consideration My Lords the late Lord Keeper in England will not come in to dispute this point afore the Parliament and Sir Robert Belknap one of the Iudges of the Common Pleas was put to banishment by the Parliament for subscribing an opinion against Law though forc'd by a dagger held to his brest and the rest of the Iudges that subscribed the same were put to death A reason I forgot that we may be excus'd for want of Presidents if there be any surviving The parties impeach'd have taken a course for that and by an order of the Chancery had them in their owne custody since their Impeachment since the Master of the Rolls death unto this present houre Poore David poore House of Commons must encounter Goliah nay Goliah Sauls Armor the Kings evidences nay Davids poore sling this I humbly present to your Lordships consideration My Lords England will not 〈◊〉 that we plead an equall interest in their Laws but reâ—â—y 〈◊〉 support us especially in parliamentary proceedings his Majestie will conceive the vanity of those that taking advantage of his princely mind involv'd in multiplicity of weighty affaires would raise such dangerous doubts Observe but one word in the Rotul Pat. 30. H. 3. Rex c. pro communi uâ—â—litate terrae hyberniae pro unitate terrarum provisum est quod omnes leges consuetudines You see the confirming and enacting of the Lawes and Customes of England to be of force in Ireland was pro utilitate terrae Hyberniae pro unitate terrarum the Union of Lawes being the best unitie of Kingdomes Those then that would tread under feet the wisedome 〈◊〉 â—hose times so fortunately commenced and continued may be judged as the Incondiaries of Nations and the plagiaries of Government My Lords out of what I have 〈◊〉 this infallible Maxime may be drawn of the High court of Parliament Si vetustatem spectes est antiquissima si dignitatem est honoratissima si Iurisdictionem est capacissima In the last place I present unto your Lord 〈◊〉 these three instruments being thrice severally read 〈…〉 debated and solemnly voted in our House 〈…〉 their perfection and maturitie by such proceedings in 〈◊〉 most honourable House as shall be sutable to your approved Iudgements FINIS