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 'tis possible for a King, and he hath out-done us, and therefore væh 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 Hiberniæ, 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 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, sæpe viatoremnova: nonvetus orbita fallit; The mixture in Hotch pot of Law and equity, [Page 4]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 [Page 6]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 Coronæ: 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 [Page 7]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 [Page 8] 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 [Page 9]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 (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 [Page 10]and cruelty of those Rebels crying out so loud, &c. And in his Pro­clamation of the 1. exact col­lect. 34. of Jan. 41. inter cætera; 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 [Page 11]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 pleased to con­sider the worthy Adventurers of England (of which interest, saith his late Majesty, I am resolved to be very tender) and I am fure, Sir, it concerns a Protestant Parliament to be tender of them: Should our sins provoke God to visit us with so sharp a correction again, as he did in 1641. with what considence could we expect supplies from England, if former Adventurers, bottomed upon so strong a security, should after such so long, so expensive solicitations, be disappointed. And Sir, we are upon the precipices of this ruine, when amongst all the persons that have been restored as Innocents, we cannot understand of one, neither [Page 12]can We say upon our own knowledge (and we come from all parts of the Kingdom) that any one of them, from 1641. to Sep. 165 — ever drew a Sword against the Irish in Rebellion, or ever assisted the English forces in the prosecution of them: And much of this ariseth, the King being not made party, by the vilifying of the Witnesses produc'd by the Eng­lish, the checking of the English Council at the Bar, whilest the insolen­cies of the Irish Counsel are past over in silence, the disrespect unto De­positions, Evidences, and the absolute rejecting of other matters of Re­cord, His Majesty we hope by your Grace and Council, being thus sta­ted in his right: we come to the second Proposal his Evidence.

2. That all Examinations and Depositions whatsoever, taken for discovery of the Rebellion, as proceedings of the Rebels and their Adherents, as well du­ring his late Majesties reign, or in the time of the usurped Authority. All Books, Rolls and Writings, remaining in any Offices belonging to the Court of Claims, or in any of his Majesties Courts of Record, as also the Books of Kilkenny, be taken for good evidence, in behalf of his Majesty, to bar such person or persons of their Ianocency.

Sir, We promise the King to be party, and then this Proposal reach­eth but to evidence concerning Guilty or not Guilty of the Rebellion in Ireland; But in the general, as to evidences and proofs. We must take notice that the Law distinguisheth times, and according to Emergen­cies, suits and applyes its remedies; This is the great design of the Statute-Law, to alter and change the garments of the Law, according as the dimensions of the Body Politique alter and change; The Notorie­ty of this Rebellion no History can paralel, (to use his late Majesties words) and yet to come to the proof of individual persons acting in it, is no easie matter. In the late Wars between France and Spain, puissant and numerous Armies have been drawn into the field, and yet how few indi­vidual persons by exact proof of the adverse party, could be concluded to have ever been present at any of those battels? Our Case differs not; We were as distinct enemies as French and Spaniard, the English under his Majesties Government, the Irish under a Supreme Councel, and general Assembly. How can we witness without seeing? how could we see with­out fighting? during which Act, Our spirits on both sides exercised not so much the reflect Act what We should do hereafter before the Judge, [Page 13]as the direct Act, What we were to do upon the place before our Gene­ral.

Silent leges inter arma, was never more truly applicable, did our pre­sent condition bear analogy with Nets and Routs in time of peace, the Law enabled us by means to maintain a distinct proof: But Sir, It is a true Maxim, Quod remedio destituitur, ipsa re valet si culpa absit. and the Law where the subject matter in demand will not ad­mit of proof, 2 Bulstr. 310. will supply it, denying to deliver the money, the Law will conster it a sufficient proof to maintain a conversion of it; And the great Act of Settlement had in its prospect these difficulties, the Act words (p. 4.) are viz. And for asmuch as the Rapines Deprædations & Massacres, committed by the said Irish and Popish Rebels and Enemies, are not onely well known to this present Parliament, but are notorious to the whole World, Notwithstanding the many Means and Artiffices, which for many years toge­ther have been used, to murther such Witnesses, suppress such Evidences, and also to Vitiate and Imbesil such Records and Testimonies as might prove the same against particular persons, &c. Thus your Grace observes the Judg­ment of King and Parliament, that this is an extraordinary Case, and it is not disagreeable to Law, Novis injuriis emersis nova apponere remedia, and We ought not to allow that imperfection in our Law (living in the most glorious Constitution in the known World,) that Treason and Rebellion should pass with impunity; because though the Law meets with these Enemies, per se, yet that it should suffer them to escape, nay, to triumph, per accidens; No Sir, the Law will do much, ne curia Domini Regis deficiat in justitia.

But Sir, more particularly; The Law betwixt party and party, allows in many cases, Examination to be taken, in perpetuam rei memoriam; If so, it would be a hard consequence of his Majesties and Council, fore-seeing the difficulty of proofs, flagrante bello, should authorize persons to receive Examinations that then might be had, if afterwards no use should be made of them; It is as true; tha [...] Rex non præcipit inutilia, as that Lex non præcipit inutilia; Cro. Car. 69, 70. It is a remarkable Case of Sir Randolph Crew (ver. George Vernon:) That Examinations of Witnesses taken by Commission, after the death of K. James, (which Commission le­gally was determined,) yet should be allowed to be goods especially (as the words of the Judges are) in a Court of Equity, where the proceed­ings are jure naturali, and not according to the strict course of the Law; And be pleased to observe their further Reason certified to his Majesty, [Page 14] (viz.) Otherwise it would draw into question many tryals by verdicts of Nisi prius, and Tryals and Attainders upon Goal-deliveries, where­upon divers have been arraigned and executed since the Kings death: so that your Grace may observe the prudence of the Law, to obviate incon­veniencies, and therefore multa conceduntur per obliquum quæ non conce­duntur in directo.

Besides, the Law requires not the attending of circumstances so præ­cise from matters given in evidence, Kelway 166. as it doth from the same matters by way of pleading; Br. Records 65. style 34. A man shall not plead a Record except it be in the same Court where it remains, unless it be ex­emplified under the great Seal, Heatiey 138. but otherwise, it may be given in evidence; A canceld Deed, (after testimony given of the matter of fact how it came to be c [...]nceld,) was read in evidence: Proofs by depo­sition taken in the Exchequer in a former suit, Lane 110. shall be allowed, notwithstanding the parties are alive: a fortiori, depositions taken in the Kings case, and between the same parties as in our case it is: Hob. 109.110. But true it is, where 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 [Page 15]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 ofthe 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 [Page 17]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, its 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 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 [Page 19]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 [Page 20]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 Fire in the pan, but dies of the shot in the Body.

And since the Law præsupposeth 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 [Page 21]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. Its at the Election of the Is­sue in tail, to enter, or to allow himself out of possession, and bring his Formedon: its 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, will not hold, except by some Philosophical Rule, we [Page 23]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 præsumptio, 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 [Page 24]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 præsumitur & dignoscitur per præsumptiones & 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 (dividing this King­dom into thirty three Counties) to give them all the alarm at once, and to continue them on that duty, when but one quarter is attaqued; we shall out-bid the Winds uncertainty by a point, that ever wandring within 32 points. Every man comes with the Spirit of a Gamester, fairly confident to win, that is, to have his business speedily heard; the English are served with Process, who must appear, both Plaintiff and Defendant are drawn up, with their troops of Witnesses (a sort of Mi­litia [Page 26]that must not run in arrears) always ready to fight, but uncertain when the Court will give the signal: it will be charge and expence enough to both parties, when it is confined to a particular County, but without Priority the charge will encrease in proportion, as 1. is to 33.

As to the second part, to post-pone, the trial of the claim out in severall Counties, to the time of the trial designed for the last County: This will be a sole expedient to prevent surprizes in hearing (no small fate to the English Defendant) and of no prejudice to the Irish Claimant; or if so, it were de minimis, which, in so comprehensive a Settlement is not re­garded: For example, If a man have but three Acres in the County of Dublin, and a thousand pound per annum in the County of B. as much more in the County of C. which is set forth to several Adventurers and Soul­diers, when this priority of Counties, and post-poning of trial to the last County is establisht and publisht, all the Defendants are secure, untill the tryal of the last County comes, and then the several three Counties make an united defence; whereas otherwise, if he slip into his tryal for his three Acres in the County of Dublin, and by a faint defence or otherwise, he be adjudged innocent, it is likely that Decree of once innocent, shall be always innocent as to recover the remainder of his Estate in the other Counties, that never had notice of his Tryal.

Next, it were manifest injury to the King, where the tryall may be, when the first County, or last County, comes upon the Stage, to take away the right of Election from his Majestie, specially accompanied with a palpable loss and disadvantage: It is yet the character of two great Generals, That one cunct ando, by delaying, recovered the lost estate of the people; The other Celerando, by precipitation, lost what was in possession.

Propos. 14. That matter of fact cognizable by the Court of Claims, be tryed by Jurors.

We do not well understand, how by the Act any other way of tryall is allowed; for in some cases, lest there might be a mistake of what proof is intended, it is particularly set down by Juries: Next, this Tryal by Juries, is the ancient way and birth-right of the people, State [...]uper vias antiquas: And though this Act had Enacted a tryal otherwise, [Page 27]and onely in the affirmative, it would not have excluded or barred this ancient way of tryall by the Common Law, and which was before the Conquest (Lamb, verbo. Centur.) Besides, it is the clear uncontrover­ted construction of the Law, that, Wheresoever a Statute mentions the word Proof, the Law intends it of no other mannor of proof whatsoever, then that by Juty. The Court of Chancery, how often doth it recon­mend issues to the tryal of the Common Law Courts by Jury. Matter of Law, and matter of fact are divided: to the first, the Judges answer; to the last the Jurors. Upon any wrong done by the Court, there lies re­medy by Error for the Subject; if by the Jurors, then by attaint; but as now the execution of this great Act stands, admit the Court being Judges both of the Law and Fact, will decree away my Estate, Where is my re­medy? The highest Court of equity allows a Review: Hob. 202, 203. resolved by the Judges, That to try causes that were naturally triable by the Common Law, and by the Jury, by a Chancery way, would sud­dealy confound all Jurisdictions, make all the Common Law, and all the course of it, needless, and a handmaid to the Chancery. It is further considerable, that this will certainly bring great prejudice to his Majesties interest; for Jurors may finde many things, that the Court will not, or is not bound to take notice of, the finding whereof may vest the Estate in the King: A verdict may finde matter of Record, which was never given in evidence; and so likewise matters of writings, and other things, not within the pleadings, or ever given in evidence; and nothing, can more contribu [...]e to the just discovery of men, and their demeanors in these troublesome times, than by the knowledge of their neighbours, Vi­cini vicinorum facta præsumutnur sctre: And there is no reason that the Eng­lish Interest having but one eye left them, as to this point of discovery, and that not yet recovered from the bloudshed, should have that put out: Sir, if no other reason moved, this would induce us, Lest we cast a disre­pute upon our ancint and known Laws, that make this Island a Terra fir­ma, as if these ancient Courts were only Pleasure-boats in fair weather, and could not ride it out in a storm: Sir, if we settle the Kingdom by any other means, than by the experienced rules of those Lawes, we may hastily bring our wounds to healing and skinning, whilest a sanies, and corruption lyes at the bottom, which will break forth more incurable than at first.

Propos. 15. That no person shall be admitted to prove his Innocency by any other Witnesses, then such as have constantly lived in the English Quarters.

We must with your Grace's favour consider the issue again, (viz.) Guilty or not Guilty of the Rebellion in Ireland; if so, no person that is Particeps criminis, that is under the same guîlt, ought to be admitted a witness against the King to prove the person upon his Tryal innocent, Facinus quos inquinat, æquat: If a person be infamous, if he be attainted of a false verdict, or conspiracy at the suit of the King, or convicted of perjury or of felony, whereby they became infamous, or regularly he that loseth Liberam legem, cannot be a witness; now if your Grace consider what hath been hinted formerly, how the Rebellion in Ireland was main­tained and owned by confoederacy, association, by their representatives in the General Assembly; that were Homines generici, as Divines term Ad­am, when by his fall his posterity fell: If your Grace reflect upon the spreading consequences of it, that as it was voted by power, and trust sent from all the Counties, Cities, and Burroughs, within their power, so it was tragically acted in every part of this Kingdom; And lastly, if your Grace cast your eye upon the mark, and level in this case, the Act of Set­tlement, which upon these and other considerations, have called it uni­versal, and almost National: i [...] would seem but very just that such crimes should not be purged by persons guilty of the same, which all under that confoederacy by the Judgment of Law and that Act, are; These persoes have by their own industry lost Liberam legem, their Estates are forfeited as well as if it were by Office or at tainder. For What? It is answered Upon the account of the Rebellion: then certainly the witness must be Rectus in curia, before he can make anothe so; for Quicquid efficit tale, est magis tale: in a modus decimandi, against one, the rest of the Parishioners shall not be witnesses; in defence of Common against a Commoner, the rest shall not be witnesses, Hob. 92. And yet the union and tie in these cases, are not under such strict interest of association, as amongst the con­foederate Catholiques of Ireland.

It may be objected, We make use of them against themselves: It is easily answered, It is but just and reasonale: A Tarryer is the only crea­ture to unkennel a Fox, because he is got by a Fox and a Brache hound; How is it possible for us to prove such a person to have been at such a bat­tel, to have contributed to their assistance, to have sat in their General As­semblies, [Page 29]but by persons frequent amongst them, and of their own confoe­deracy, and such a Witness is in Law a double Witness, and the same rea­son urgeth the necessity of their proof by such as lived in our Quarters: Besides, it is known how the Law is, in case of an Approver, who though he confess the same Felony, Stamf. pl. Cor. fol. 142. Who either by direction of the Court, or at the prayer of the Felon himself, is examined by the Coroner, and his examinations taken upon Record for the good of the King and Commonwealth. And Sir, I suppose the Opinion is maintainable, (especially as the proceedings are,) if he or they that were in arms in Munster, are not equally guilty of the bloud shed by the Army in Ulster: they move by joynt Counsels, from one publick stock of maintenance, the victory of one is the victory of the other, and con­sequently the bloud shed by one, is the bloud shed by the other: It is good Law, that if a man received a man that is attainted of Felony by Out­lary in the same County, though he be ignorant of it, yet he is acces­sary to the Felony, because the Outlawry is matter of Record, of whsch every one ought to take notice; This were durus sermo, a hard Law, if when an open and universal Rebellion is maintained, and the Kings Co­lours slying in the field, and the Sword, and other Ensigns of Royalty at home, (as notable matters of Record, as an Outlawry upon Proclama­tions in the County-Court,) that persons should not take notice of it, and then taking notice of it, should relieve and abet the actors therein, and instead of being punished as accessaries, they shall triumph, as witnes­ses to clear the principals, (if any accessaries, were in Treason,) The rea­son of the Law why if 3. or 4. be in a room, and but one gives the dead­ly stroke, yet the other shall be accessaries, is, because the presence of the rest abated the courage of him that was killsd to make his own defence: upon the same reason, all the confoederate Catholiques are accessaries or principals.

If it had been understood by the Protestants in Ulster, that this Re­bellion had been only the attempt of Sir Philome, or a Rabble, as in pub­lick papers the Irish have termed it, so much bloud had not been so cheaply spilt: but hearing it was universall, and countenanc't by confoederacie of all; that his Majesties Proclamations to lay down armes were contemned, this abated their spirits, and made way for dispair to dethrone resoluti­on.

Propos. 16. That when the Court doth give Judgment upon any cause, that every respective Commissioner seriatim, deliver his particular Judgment in open Court, with the reasons thereof.

Sir, It is among the ornaments of our Law, that matters are very learn­edly debated at the Bar, and in Causes of difficulty, solemnly argued by the Judges on the Bench; In every leaf of our Year-Books and Modern Reports, we may discern the Judges Opinions and their Reasons. No doubt but Judicatures are under great temptations, and a greater check cannot be upon the frailty of our Natures, that they lie not under the pro­tection of a concurrency: As true it is, that virtue hath been scandalized by an affi [...]y with vice, so likewise it is true, that vice gets a reputation by a commerce with virtue: That Cato did look on, was held to be a re­straint to some spirits; and no doubt but when so great an audience as at­tends that Court, shall hear every particular Commissioners Judgment, and the reasons of it, whether it may prove as a means of caution to them­selves, yet surely it will give a great satisfaction to the persons concerned, upon whose uninterested Judgment they may repose as well, as upon their Councels argument: Thus it was in the case of Ship-money. And such is the solemnity of Judgments, that they are en [...]red Consideratum est per Cu­riam; if it be entred Videtur Curiæ, for the levity of it, error will reverse it.

Propos. 17. That where affidavit shall be made, that one or more materia Witnesses being summoned before the Court, refuse or neglect to come in, that such cause be suspended.

This Proposal is the issue of Experience: for we are certainly inform­ed, that divers persons who have formerly offered themselves as witnes­ses, and that have declared their knowledg in order to prove the no­cency of severall persons, withdraw themselves some alledge they are under the censures of Excommunic [...]tions, and Fulminations, (they are hard words, but happily your Grace remembers them, when not only your Grace, but such as should give your Grace any relief, or those that served under your Command, have been involved in the same, and perchance your Grace hath not forgot the operation of them). It is said in Philosophy, Actus activorum non sunt nisi in patiente bene prædispo­sito. How receptive the complexion of the people hath been of such in­fluences, [Page 31]I shall pass by; onely thus much I must observe, if they were so powerful as to violate the Bonds of Allegiance, to their lawful and merci­ful Soveraign, they may without straining, dissolve the Reciprocations of Common Equity amongst Subjects: Estates rest upon Proofs, and if Wit­nesses neither flectuntur prece aut pretio, I mean their necessary and con­venient expences tendred: we must resort to the Law for its process; If they will not mannage with a Snaffle, perchance their Heads may be brought into a Rane with a Port-pit: And, upon Affedavit made, it is but reasonable to suspend the Cause: There is no priviledge in this case by Law, to exempt them for giving Evidence in his Majesties behalf, and for settlement of this Kingdom, which is the adæquate Object of the Act: There are no stronger or nearer Relations then Man and Wife, that the Law (in many respects) esteems them as an Individuum: Yet a Wife, for the King, may be brought to give Evidence against her own Husband: Pri­vilegium non valet contrarempublicam: A Master of a Ship, laden with Merchants Goods, may cast them over-boord; but if he be laden with Ammunition, Ordinance, &c. of the Kings, to relieve his Army or Garti­son, he cannot justifie to fling them over-board, though the Vestel and Ma­riners lives are at the stake, (Bacons ma. pag. 17.) But is not the set [...]lement of the Kingdom of more worth, (and that depends upon the faithful dis­charge of Evidence) then a particular Garrison.

Propos. 18. That where any person or persons provided for, to be restored by particular name to any Estate, that such person or persons shall not be admitted to claim the same, under, or by any other way or means, then is laid down in such Clause in the said Act, wherein he or they are so particularly named.

May it please your Grace, this humble Proposal is one of the Poles, upon which the Act of Settlement moves; and it hath its particular aspect upon the Clause, in page 21. of the Act, in which several persons are parti­cularly named; and afterwards it is said thus, viz.

We do hereby declare, That they and every of them, without being put to any further Proof, shall be restored to their former Estates according to the Rules and Directions, in the last fore-going Clause of this Our De­claration, concerning such as continued with Us, or served faithfully under Our Ensigns beyond the Seas. Now Sir, we have considered that fore-going Clause, VIZ. That such persons shall be restored to their former estate, a Reprize being first assigned, and legally set out of the remaining forfeited [Page 32]Lands undisposed of, to such Adventurer or Souldier, or other person before na­med, of equal value, worth, and purchase to the Estate, out of which such Ad­venturer or Souldier, or other person aforesaid, shall be soremoved. So that it appears clearly, none of these persons are intended by the Act to be resto­red without a prævius Reprisal first set out: And they are, as to the man­ner of their Restitution, placed in the Catalogue of those that served be­yond Seas under his Majesties Ensigns.

Though nothing can be clearer, yet Sir, be pleased to observe, how in order to the Design of this Clause, several other Clauses in the Act are particularly framed for the execution of it. In page 26 of the Declaration, where the Rules of Precedencies in restitution were set down, they are in­cluded in the provision made for such as served abroad, &c. or otherwise they were totally left out: But it was but reasonable, since their manner of Restitution was limited, according to the resti [...]ution of those that served abroad, that they should be included with them, and it had been meer sur­plusage to have men [...]ioned them.

Now Sir, to proceed, in page 37. of the Act, there is a particular Clause for the further making the former Clause practicable, viz. In the next place, you are to take care, that the Adventurers, Souldiers, or other persons, pos­sessed of any of the Estate or Estates of such persons, to whom We have by our said Declaration assigned a particular favour, and are in a distinct branch there­of by Name expressed, be Reprised, as in our said Declaration is expressed, and the said persons restored to their former Estates, from the time that such Ad­venturers or Souldiers shall be so Reprised.

And be pleased Sir to observe, least this intimation might not be dire­ctory enough, it concludes, observing always the former cautions and provisions in our said Declaration expressed, referring to the said persons restoration: that is, (pag. 20.) A prævious Reprisal being first set out. One might think here were a particular Act of Parliament from themselves, assertaining under what terms they were to enjoy their Estates. But in the perclose of the whole Act, pag. 118, 119. Provided also and be it further Enacted by the Authority aforesaid, That in case Reprtsals shall fall short, whereby persons mentioned and appointed in the said Declaration and this Act, to be restored with­out being put to any further proof. This is the Character (that denotes the same persons, cannot or shall not obtain or receive the full benefit inten­ded them) Sir, be pleased to observe, there was no other benefit intended them, then it shall and may be lawful for the Lord Lieutenant, or other chief Governour or Governours, and Council, for the time being, and they are hereby [Page 33]authorised to order, appoint, and make distribution amongst them, of the same sa­tisfaction or restitution allotted them, in such proportion and method as they shall judge most equal and just consideration being had, of the conditions and pretences of the several persons concerned: Nevertheless, according to the Rules and Di­rections of the Declaration concerning them in all other Points, and particularly of that of Prævius Reprise or Reprisals, which Order and appointment of theirs shall be final, and observed by the Commissioners appointed, or to be ap­pointed for the execution of this Act; any thing therein contained to the contrary in any wise notwithstanding. Thus Sir, your Grace sees how the Interest of these persons so named, is fenced and bounded throughout the Act; so that indeed, the final determination of their Interest cannot be adjudged; no, nor the Interest of any one of them assertained, till the value of Re­prisals appear before your Grace and Council, and then your Order shall be sinal, and directive to the Commissioners: And it closeth home with Any thing contained to the contrary notwithstanding.

Now though this be so, they are beginning to leap over the hedge, and putting in the strongest fore-mast, and wave all these Clauses, and put in their Claims upon the account of Innocency, upon which, they had once an election to have relyed upon, but now it is determined by this Clause: The reason that induceth them is plain; for if they should be judged In­nocents, then they are restored without any consideration of Reprisal: If they be judged nocent, then they will keep this Clause for a Retreat.

But Sir, I am commanded by the House of Commons, humbly to offer your Grace their Opinion, that this is contrary to the whole course and reason of Law in the general, and very illusory to the main Design of the Act; and in the opening this Point, I have command to be an humble Sui­tor to your Grace for your patience, his Majesties In [...]erest as to his Re­venue, and the Protestants Interest, being so highly concerned.

1. Sir, We presume it will be allowed, That an Act of Parliament binds all persons, for all persons are parties to it, 21 H. 7.4. nay, my Lord Cook, Institut. 4. p. 4. tells us, that multitudes are bound by an Act of Parlia­ment, which are not partie to the Elections of the Knights, Citizens, and Burgesses, as all that have no Freehold.

2. Freeholders in ancient Demeasn.

3. All Women, having Freehold, or no Freehold.

4. Men within age, &c. A fortiori, then those are bound by this Act, to [Page 34]which they themselves in person have given their assent. Now Sir, as to the point in hand, (viz. That the persons that are by peculiar name restored to their Estates, under a prævious Reprisal, can claim them no other way then the Act prescribes.) I shall humbly offer you the Judgment of the Sages of the Law in an instance or two: Where a man hath Title to Land by an Estate-tail; and afterwards the same Land is given to him by Parlia­ment, his Heir shall not be remitted, for by the Act of Parliament all other Titles are for ever excluded; for this is a Judgement of Parliament, that the Estate shall onely remain in the same very way that it is given: The same Law is, where the King hath a Title in Tail, and the Land is given to him by Parliament in Fee; the Estate-tail is determined, so that the Heir shall not avoid the Leases made by his Father; for the Statute binds all for Titles and Estates, B. Parliam. 73. The Reason given here, is, for that it is a Judgment in Parliament; and of what extensive power that is, even to take the right hand of an Act, 2 Institut. 497. will in­stance.

Nay Sir, the operation of a Statute casts it with that violence upon the party taking it, that if it had given me the Estate of any p [...]rticular per­son by name, saving the right of that party, the saving had been flattering (as we call it) 1 Co. 47. a. b. It is said, Though the Act be in nature of a Conveyance or Judgment, the saving is repugnant, as to him that makes the Conveyance, or against whom the Judgement is given, or from whom the Estate of the Land is to pass; for though they be parties to the Act, yet, in Judgement of Law, the Land shall move from him that is seized, (Plowden 49.) it is there held, where Lands are given by Statute, it shall be interpreted the gift of the Ter-Tenant, and the con­firmation of all others that assent to the Act; for if it should be adjudged the gift of another person, the Parliament should do wrong to the Ter-Te­nant, to take away the Land, and make another to give it.

Sir, The application is easie and familiar to your Grace, who well re­members the great Solicitations that was made to get into this Clause; it was lookt on as the Ark, for those who could not endure the Examen of Innocency; and being nocent, found themselves bound by the Act, to be concluded, by taking out of Lands in CONNAUGHT, in com­pensation of their former Estates; they very well understood, that the Gate of Innocency had no flaming Sword over it, to keep any from entring. As great and powerful Provisions are made for such persons, as Wisdom could contrive; but the Law presupposeth, every man knowing [Page 35]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, [Page 36] Quod ei deferunt, and that the Demandants may Vocare ad warrantum as si essent tenentes, that is as much as if it had said, Et nullo alio modo; and so 11 H. 7. c. 20. where it is said, he shall enter, enjoy and possess the Land, according to his title in them, it shall be understood, according to his title, and in no other manner, Plowd. 113. Now to restore an Nocent, that is, one guilty of Rebellion, to his former estate, certainly will be granted, it is not agreeable to Common Law, why then when this Act particularly names some of them, and that under the character of Nocent persons, and presents the way, order and means of their restauration, not once, but through the texture of the whole Act, it must needs rationally follow, that it is intended, and no other way. The Act saith, You shall observe the Rules for their restauration: what is the Rule? it is this, after a previous reprisal; but if you take him out of this clause, and put him upon Innocency, then he is to be restored before a reprisal: I humbly ask, How is the Act answered, that sayes, Thus it shall be: No, saith the Court, it shall be thus: And by saying so, a great part of the Act is made to signifie nothing (nay, tha [...] part of the Act upon which the Protestant Interest wholly depends, for that being observed, they are sure to have their penny, or pennyworth, the Estates they now enjoy, or reprisal which by the plain and genuine construction, preserves all the part of the Act in summetry and proportion; and I am sure this was the Judgement of the House, upon passing the Act: I shall shut up this point, with that which should have had the preference, even the consideration of his Majesties Revenue; if the persons be held to the clause of their own Election, they are to pay the same Rents the Adventurers and Souldiers pay by the A­cre; if otherwise, their former Rents, which are not considerable: We know upon whose account it is, that his Majesty is at that great charge to maintain an Army here, it is but reasonable a round share of the charge should lie on them; whilest the greatest Estates of the Irish in this King­dom, that are rationally qualified by this Act, if they escape it, the Pro­testants do beat the burthen, and they scarce touch it with their little singer.

Propos. 19. That the Officers before 49 and their Tenants, shall be admit­ted Witnesses to give evidence for his Majesty in any causes whatsoever, de­pending before the Court of Claims.

Sir, We must remember again the Tryal, (viz.) Guilty or not Guilty, between the King and the party, and that in matter of Treason, which [Page 37]premised, I might say no more to evince the lawfulness of any of his Ma­jesties Subjects, to give Evidence upon such a Tryal: I shall admit, that regularly no than shall be Witness in his own cause: but this is to be un­derstood cum grand salis; It is said in our Law, Judicis officium est ut res, i [...]n tempor a rem quærere, quæsito tempore, tu [...]us eris; I have hinted before how difficult it is for proof to be made, after so long a tract of time spent in War, and in confusion, since 41. till his Majesties happy Restoration [...] The Act, saith the Witnesses, have been slain, and those few, the Officiers serving before 49. whom Providence reserved, when God impanne [...]s a Jury to enquire after bloud, must be challenged: The ways by which Evi­dence might have been had, hath been by the power of the Sword drawn against, the Law been obstructed; and therefore it may bef [...]ll to such guilty persons Exceptions. Frustra qui in legim peccat a lege petit auxillum: Were an unlawful Assembly, at this day, in a riotous Posture, the Justices and Sheriffs, with the power of the County, might resort to the place, and view the force, and record it; but this was too dangerous an imployment for them, when an Army of Horse and Foot could not undertake it with­out hazard: and if few or no other Witnesses are left, it were to impose too much irrationality on our Law, that by the Rules of it Treason might pass with impunity: to prevent which, the Law hath recourse, in extra­ordinary cases, to extraordinary means: It is a Maxim, Quod remedio de­stituitur ipsa re valet si culpa absit: and therefore the Law will allow an Avowry without Atturmnent, where he hath no means to compel the Test to atturn, 6 Co. 68. a. so where Impediments happen by the Act of God, the Law judges according to the necessity. If one be bound to repair a Bank of the Sea, if he (by negligence) suffer the Waters to surround his Neighbours ground, he is lyable to wast; but if by violence of Tempest, an Innundation happen, he is excusable. If the Heir at full age tender Livery, and dyeth before he hath made homage, the Law gives him the advantage of his Tender in the same way, as if it had been accompanyed with all the solemn Circumstancies attending it: If a Disseisor die seized, the Disseisee being in Prison, or beyond the Seas, it is no discent, Finch Nom. 17. Necessitas vincit communem legem: and therefore, if two Joynt-Tenants be of Land, and to the Heirs of one of them, they shall not joyn in a Writ of Right and yet they shall joyn in a Writ of Right of an Advowson: For if they shall not joyn, neither the one nor the other hath any remedy, 5 Cr. 40. b. Illud quod alias licitum non est necessit as facit licitum & necessit as inducit privilegium quod jure privatur: And upon this ground was the [Page 38]Bishop of Salisburies Case judged of the grant of an Office, with an An­nuity contrary to the Statute, 1 Eliz.

But Sir, was there ever greater necessity, is not the settlement of the Kingdom in its critical hower, is not the Banes publisht, Now to give evidence, or for ever after hold our peace? Do not nocent persons pass in triumphant innocency, whilest those stand by, whose evidence, if ad­mitted, would write the Letter of Condemnation on their fore-heads? These were the men that broke through the Hoast to draw water, to get e­vidence, by marching into the enemies quarters daily encountring them, and now the water must be spilt on the ground, and they denied to say, they ever did see them: This is worse then to muzzel the mouth of the Oxe, whilest he treads out the straw; Persons in many cases may be ex­amined, where the consequence may be to obviate a p [...]nalty, they may be subjected unto; A Sheriff may be examined upon his own return. A for­raign Plea may be sworn; An Infant levies a Fine, and brings a Writ of Error to reverse it, yet he may be examined; Debt upon arrerages of ac­compt, the Plaintiff may be sworn if there be any such accompt, and by this he takes away the benefit of the Defendant to wage the Law: The party rob'd upon the Statute of Hue and Cry shall be examined, and so upon a forcible entry, though the party may have restitution, yet he may be examined; In a Writ of Entry brought, an Essoin was cast for the De­fendant in the Kings Service, in partibus transmarinus, and the Essoiner was examined and sworn de veritate essoinæ, Dyer 154.

I might proceed, that licet iniquum est aliquem suæ rei esse judicem, yet in some cases one may be judge, Master and Carver: Lessor Covenants to repair the House, if he do not, and the Lessee doth it, he may pay him­self out of the Rent, 12 H. 8.11. Taylors and Hostlers may detain the Garment and Horse, till reasonable satisfaction be made.

It may be added, how little those Officers serving his Majesty before 49. are subjected to those temptations, upon which the Law in its rigour grounds it self, to exclude interested persons from being Witnesses; The bulk of that remote possibility of satisfaction, is but gleanings and frag­ments, (their reward is, that they know his Majesty hath an esteem of their services and sufferings,) joyn that with the worth of the persons, be­ing all Commissioned Officers, and then who could without injury to the Law of charity judge them, that to preserve those Oaths of Allegiance & Supremacy they have sworn, inviol [...]bly have put no rate upon their lives and fortunes, and have not worshipt the Idols of the times, though the [Page 39]Oven was seven times heated, I say, Who can judge, nay think, that for an acre of Land to be divided among them, they would stoop to so sordid a crime as Perjury: The Peers of the Realm, upon this account, pass upon tryals of blood, only declaring their Judgments upon their Honour: But surely cur case is plain, and that they are not only lawful Witnesses, but under strong Obligations, if any person be indicted of Treason, to give in evidence, their knowledg in matter of fact, Tenant for life, and the Remainder over: If Tenant for life be indicted for Treason, he in the Remainder may be a witness, though in that case, when one goes to the bough, the other goes to the plough.

Propos. 20. Upon motion to the Court, that any aged or impotent Person that can give evidence for his Majesty, That their depositions be taken by Com­mission, and lodged in the Court, to be produc't in his Majesties behalf, at the same shall require.

This is not denyed in the case of the Subject; Commissioners to exa­mine, in perpetuam rei memoriam, are frequent; It is but reason to use all good Husbandry for the King, and to pickle up such proofs, as through age cannot keep long.

Thus may it please your Grace, I have past by those several heads given me in charge by the House, humbly to present to your Grace, with the instance of some of those many reasons they had under their consideration; The conclusion of the Instrument is this, viz. These are the particulars which are presented to his Grace and Council, as the result of the obser­vations which have been hitherto made upon the late proceedings; And that this House humbly desires his Grace, that when time and experience shall suggest any thing of like moment with the above particulars, his Grace and Council will be pleased to receive them: And if any thing herein offered, through the strai [...]ness of time, be not sufficiently cleared, his Grace and Council would be pleased to admit a Committee of the House of Commons, to confer with a Committee of the Board upon the same; and that, in the interim, if any cause to be heard by the Commis­sioners, may receive prejudice under any of these Proposals, being unde­termined, that the Commissioners being ascertained of the same, may suspend the hearing of it, till his Grace and Councils pleasure be further known.

It rests only to beg your Graces pardon, if in discharging the trust re­posed in me, I have been enforced to use some words of Discrimination, It is against the Inclination, nay, the Prayers of the House (if the Subject matter could dispence with it) to avoid them: They know, the compleat peace of the Kingdom, rests not in cessation of Arms, but in union of Hearts; and they doubt not, but under the prudent Administration of his Majesties Authority vested in your Grace, we shall arrive to that happi­ness, that it may be said, Jam cuncti gens una sumus; ah Sir, and Sic simus in ævum: We complain not of the want of a good Law, for the settlement of this Nation upon sure and lasting foundations, such that no­thing but our sins can subvert: If the spirits of all Kings living had been textacted, they could not have contributed more to revive a gasping Kingdom, than the wisdom of our Royal Soveraign, blest with a Divine assistance, hath in this Act of Settlement recorded, to perfume and em­balm his memory to all ages: But Sir, Corruptio optimi est pessima: It is not the Sword, but the hand that gives Protection, or a Wound, with respect to the efficient cause: The Law saith, All-hail-Protestants of Ireland; but if the execution be dissonant, we are crucified under a glorious In­scription of Mockery.

The execution of the Law, is the soul of the Law; the want of this hath transmitted this never-dying Truth to Posterity, That Nulla est ta [...] misera servitus, quam ubi jus est incertum & vagum.