Sixteene queres propounded by the Parliament of Ireland to the judges of the said kingdome. As also, another speech, made by Captaine Audley Mervin, to the House of Commons, concerning their priviledges, and their exorbitant grievances in that kingdome.

SIXTEENE QVAERFS, Propounded by the Parliament of Ireland, to the Judges of the ſaid Kingdome.

I. THat the Judges may ſet forth and declare, whether the Inhabitants of this kingdome be a free people, or whether they be to bee governed onely by the antient common lawes of England.

II. Whether the Judges of the Land doe take the Oath of Judges, and if ſo, whether under pretext of any Acts of State, Proclamation, Writ, Letter, or direction under the great or privie Seale, or privie Signet, or Letter, or other commandement from the Lord Lieutenant, Lord Deputie, Juſtice, Juſtices, or other chiefe Governor, or Governors of this Kingdome they may hinder, ſtay or delay the ſuite of any Subject, or his judgment, or execution thereupon, if ſo, in what caſes, and whether, if they doe hinder, ſtay or delay ſuch ſuite, judgement or execution, what puniſhment doe they incurre by the Law for their deviation and tranſgreſſion therein.

III. Whether the Kings Majeſties privie Counſell, either together, or with the chiefe Governor or Governors of this Kingdome, without him or them be a place of Judicature, by the common Lawes, where in caſe betweene party and party for Debts, Treſpaſſes, Accounts, Covenants, poſſeſſions, and title of Land, or any of them, and with them may be heard, and determined, and of what civill Cauſes they have juriſdiction, and by what Law, and of what force is their order or Decree, in ſuch caſes or any of them.

IV. The like of the chiefe Governors alone.

V. Whether Grant of Monopolies be warrantable by the Law, and of what, and in what Caſes, and how, and where, and by whom, are the Tranſgreſſors againſt ſuch Grantees puniſhable, and whether by Fine and mutilation of Members, impriſonment, loſſe, and forfeiture of goods, or otherwiſe, and which of them.

VI. Jn what Caſes the Lord Deputie, or other chiefe Governors of this Kingdome & Counſell, may puniſh by Fine, impriſonment, Mutilation of Members, Pillory, or otherwiſe, they may ſentence any to ſuch the ſame, or the like puniſhment, for infringening the commands of any Proclamation, or Monopolie, and what puniſhment doe they incurre, that do vote for the ſame.

VII. Of what force is an Act of ſtate or Proclamation in this Kingdome to bind the liberty, goods, poſſeſſions, or inheritance of the natives thereof, whether they or any of them can alter the common Law, or the infringers of them loſe their Goods, Chattels, or Leaſes, or forfeit the ſame by infringing any ſuch Act of State or Proclamation, or both, and what puniſhment doe the ſworne Judges of the Law, that are privie Counſellors, incurre that vote for ſuch Act and execution of it.

VIII. Whether the ſubjects of this Kingdome be ſubject to the Marſhall Law, and whether any man in time of peace, no enemy being in the fields, with diſplayed can be ſentēced to Death, if ſo, by whom, and in what caſes, if not, what puniſhment do they incurre that in time of peace, execute Marſhall Law.

IX. Whether voluntary Oathes taken freely before Arbitrators, or others for affirmance, or diſaffirmance of any thing, or for the true performance of any thing, be puniſhable in the Caſtle-Chamber, or in any other Court, and why and wherefore.

X. Why, and by what Law, and upon what Rule of policie is it, that none is admitted to reducement in the Caſtle-chamber, untill hee confeſſe the offence for which hee is cenſured, when as Revera he might be innocent therof, though ſubordined proofes or circumſtances, might induce him to be cenſured.

XI. Whether the Judges of the Kings Bench, and by what law, doe or can deny, the copies of Indictments, of Fellony, or Treaſon to the parties accuſed of Treaſon, contrary to the ſtatute of 42. Edw. 3.

XII. Whether the ſtatute of Baltinglaſe take from the Subjects, out-lawed for Treaſon, though erroniouſly, the benefit of his Writ of Error, and how, and by what meanes, that blind clauſe not warranted, by the body of that Act came to be inſerted, and by what Law is it countenanced to the diminution of the liberty of the ſubject.

XIII. What power have the Barons and the Court of Exchequer, to raiſe the reſpite of homage Arbitrarily to what value they pleaſe, and to what value they may raiſe it, and by what Law they may diſtinguiſh betweene reſpite of homage, upon the diverſities of the true value of the Fees, when as all Eſcuage is the ſame for great and ſmall Fees, and the apportionable by Parliament.

XIIII. Whether it's cenſurable in the ſubjects of this Kingdome, to repaire into England to appeale to his Majeſty for Redreſſe of Jnjuries, or for others their accuſers, if ſo, why, and in what condition of perſons, and by what Law.

XV. Whether Deanes and other Dignitaries of Cathedrall Churches, be properly de mero jure donative, by this King, or not elective or collative, if ſo, why, and by what Law, and whether the confirmation of a Deane de facto of the Biſhops Grantee be good, and valid in the Law, or no, if not, by what Law.

XVI. Whether the iſſuing of Quo Warranto's againſt Burroughes, that antiently, and recently ſent Burgeſſes to the Parliament, to ſhew cauſe why they ſent Burgeſſes to the Parliament be legall.

CAPTAINE AVDLEY MERVINS SPEECH to the Houſe of Commons in Ireland. Mr Speaker,

IT was equall care and policy in our Predeceſſours. Firſt to lay a foundation, and then by a continued induſtry to build and perfect ſo glorious a fabrique as the houſe of Cō mons lawfull ſummoned by the Kings writ repreſents it ſelfe unto us at this day. In which ſo elaborate and exquiſite a ſtructure being finiſhed and crowned with thoſe fruitfull and peace-ſpeaking events, may challenge by right the title of a Jubile.

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To ſo great a modell with neate and provident husbandry they intend no leſſe then ſutable furniture (which allowed pride) diſdaine to cloath it with any other, but with what by his Majeſties favour they had procured out of his owne ſtore; J meane thoſe great and large priviledges, which by ſeverall acts of royall favor have bin diſpenſed, annexed, nay hypoſtatically united, to the ſame Priviledges are the ſoule, by which we move the Sinues and Nerues, by which we are compacted, they are thē, by which we breath Priviledges for their birth allyed to the Kings Prerogative, for their antiquity ſacred, for their ſtrength ſo re-intrenched by cōmon law, fortified by ſtatutes, inſconſed by precedents of all times, that no man ever attempted their violation with impunity, ſo that now and then it may be truly ſaid, The Kings houſe is all glorious within. If we which are Heires to their lawes, is unto their lands, will ſtrive to make no addition to the rich invent •• ie of thoſe priviledges they have bequeathed▪ •• to us, yet with united ſpirits, let us all leaſt prevent the dilapidation; nay the diminution of the leaſt of them.

This preſent occaſion of debating Mr. Fitz-Gerralds petition exhibited to this honorable houſe, ſets before us bleſſings and curſings, and is the firſt leafe (as we may terme it) of the houſe of commons Almanack, not made to ſerve for one, but for many yeares, and calculated to ſerve indifferently for all latitudes, in which, our carriage makes this and all ſucceeding dayes but ſevill and working dayes, or otherwiſe imprints this day and our priviledges in a conſpicuous, plauſive rubrique to poſterity; whileſt the Palladium was in Troy, neither the power nor the long ſiege of the Grecians, could prevaile againſt it, whileſt Minoes purple lockes curled from their native roots, Creete was unvanquiſhed. The Morall of theſe (affictions) emphatically preach and teach us this Doctrine, that the ſafety, pregnancy, glory, and ſtrength of this houſe, is but only ſent us upon this condition, whileſt we keepe, preſerve, and defend our liberties, our rights, our priviledges unbetrayed, unſuppreſſed, and uncontrolled: if any more allyed to the corruptiōs of our own diſtempers, then challenging an intereſt in us by a legitimate birth, could involve this grave and great aſſembly, in ſuch epidemicall liturgie, as directly to ſnore, or at leſt to wink whileſt our priviledges cloathed in a purple robe of glory (like a word never to be recalled) eſcape from among us, I ſay if ungratefull, I ſhould cut off the inheritance of theſe immunities entailed vpon us, and confirmed is a monumentall portion vpon this younger brother of ſtate, this Houſe of Cōmons what can we expect, but that our Fathers Ghoſts apparetted with indignation, ſhould 〈◊〉 unto us with this or the liking branding phraſe. Moſt vngratefull and vnfortunate poſterity. O aetas parentum pejor Avis; better had it bin for you not to live then to out-live your owne infamie. If there had beene a neceſſity, you ſhould involve your ſelves in a general-guilt, the election ought to have beene of ſuch a one as might have dyed with your ſelves; but this like originall ſinne, binds your poſterity to ſigh for a redemption. Did we bequeath unto you thoſe faire ornaments to be ſtolne or ſnatched from you? Oh, where, where was your vigilancy and boldneſſe to preſent ſo diſaſterous and fatall a conſequence. Did wee with no better ſucceſſe of imitation by your labour, and even unto hoarſeneſſe contend in the Parliament held 39. Hen. 6. as Prophecying your weakeneſſe, leave you a record to build upon? Where we admitted and priviledged one Walter Clarke a Burgeſſe of Ch • pengham, though at that time in execution ad ſect. Reg. Did we for this purpoſe recommend unto you Ferrars caſe and our proceedings againſt the diſturbers of his right? Did wee for this purpoſe recommend unto you Belgraves caſe 43. of the Queene. Who notwithſtanding he procured his election in Wincheſter by colluſion, yet Mangre the great oppoſition raiſed by the Earle of Huntington upon the ſight of the Sheriffes returne (a ſufficient amerment to ſatisfie vs) we admitted and confirmed him in the protection of our houſe, did we for this purpoſe exemplifie unto you the caſe of Richard Chidder, 5. Henry 4. who being arreſted in his journey towards the Parliaments (where note that the date of the election is the date of the priviledge.) They are twins of one birth, wee ingraft him as a twig to be writh'd by our common roote, and quickly lopt off that ſo perilous authority wch would prunne our branches. Nay Mr. Speaker, our fellows labouring Parliament in England, with their hearty cōmendation have tranſmitted unto us a precedent from each houſe. The houſe of the Lords opening the gates of the Tower to prepare an entry to the cenſured Biſhop of Lincolne, and the houſe of Commons with like imitation & likeſucceſſe having performed the ſame in Sir Iohn Elliot and innumerable others. But now I will endeavour to allay the diſtempered ſpirits of our Fathers, whileſt with more patience and duty we attend the modeſt corrections of our indulgent King. And ſo exeunt Patres; and Intr. H. 8. in his owne perſon commending the reſolution and zeale of the houſe of Commons in preſerving the luſtre of their ownē Priviledges from being Eclipſed, alledging himſelfe to be intereſſed in them, ſince that hee and they, knit together, compleated one body, who in this out deſerved calamities, would not rather imitate us by ſcoſs, then qualifie our untimely repentance by abſence of our owne murdering wrongs. What may not E. 4. exprobrate unto us, who in the 3. yeare of his raigne, records his regall pleaſure to poſterity? That all Acts, Suites, judgments, cenſures & qui dicit omne excludit nullum, awarded againſt any Member of Parliament, ſhould be utterly void and fruſtrate, crowning the Act with an Emphaticall epiphonema and this act to endure for ever. And ſurely common reaſon is pregnant in the juſtification thereof. That where the publique ſervice and good is primarily intended, a ſuperſedeas muſt iſſue to private reſpects, ſince they cannot ſtād in competition, & inhabit our ſpheare: If their judgments are not yet calmed and ſetled, behold his Majeſty, that now is, cloathed in his royall Robes, and thus ſpeaking unto you from underneath his ſtate, Gentlemen, why ſtagger you thus, that are your ſelves the pillars of the commonweale, you are not upon breaking the Ice, nor bound upon the diſcovery of the unknowne world, each leafe reports your precedents that are like Maps that ſecure and expedite your fortunate Navigation. From mee you can expect no more ſatisfactiō, then what J have declared in the 3. yeare of my Raigne, in anſwer to the Petition of Right in Parliament, that J am intereſted in the maintaining of the Priviledges of this Houſe, being a maine pillar of the liberty of my Subject, the goods of one _____ being ſeiſed in my name, and for my uſe, for denying. Tonnage and pondage, they re-aſſumed, hee being at the time of that ſeiſure a Member of the Houſe, and whether J diſtaſted, ſure J am, J had no redreſſe. As for the tender care of my intereſt in the Fine of 10000 l. and that you admitted my Attorny generall to a favourable hearing in my behalfe, though againſt your ſelves (a Parliamentary cuſtome not to be written in ſmall Print) I thanke you Gentlemen, yet I thinke you know, as well as I, that theſe great ſounding Fines to me, have in their effects, but ſhort and little accounts, if there be 3. bags, the little one is mine: The 5000. l. dammages to the party (a ſumme equall) or more to the defendants eſtate) is as much as Magna Charta, by thoſe words of falvo contenem • nto, would warrant. Therefore my Judges, by dividing it, might have conſidered me ſomewhat, whereas now the old proverbe binds me, where there is nothing left, the King loſes his right.

Now Mr. Speaker, in a Parliamentary way, wee muſt withdraw and enter into our owne Spheare. Enter into a diſcuſſe of thoſe objections, that impugne Mr. Fitz-Gerralds election, admittance and priviledge of this Houſe.

The firſt that uſhers in the traine, is a ſentence cloathed in ſable, ſtanding on tip-toe, and with a ruſtie dagger thruſting at a ſtarre, I meane a ſentence ſpeaking error, a ſentence viſiting the third and fourth generation, a ſentence ſtriving to leap over the bounds of magna charta, thirty times confirmed, a ſentence awarded againſt a Judge of a higher Court, then from which it iſſued. The cauſe in queſtion is to nullifie this ſentence, which if hee appeare a perſon capable of his priviledge, mote ſua vivit, and then neither it, nor any thing derivatory, or collater all to it, may bee admitted againſt him by the rules of common, civill, or cannon Law, it being a maxime conſonant to them all. Non potes edduci ejuſdam rei excepie cujus petitur diſſolutio. Now to prove this ſentence void (Mr. Speaker) I being no profeſſour of the Law, yet a Diſciple of reaſon, and the body of the audient Subject to the like guilt: I will couch myſelſe in argumēts, quae probat & non probantur, leaving precedents and Booke-caſes to the learned long Robe: Then thus I argue. By the Stat. 3. E. 4. All judgemēts, cenſures, ſentences, &c. awarded againſt a member of Parliament are void, ſo was this government: ſome may ſay, the King is not here included, I ſay (qui dicit omne, excludit nullum) And experience, the mother of know ledge, teacheth the ſame in precedents afore rehearſed, and one J will adde for all, which is Trewman, 38. Hen. 8. who was in execution upon a writ of exigent after a Capias adſatis faciend. at the Kings ſuite, and yet priviledged, beſides, this is not at the Kings ſuite, for the King is intereſſed here but ſecondarily both in name and profit. Now I muſt make good my minor, that he is a member of this houſe: hee that was duly elected and truely returned, is a member of this houſe, ſo was he. Ergo, &c. My minor will be queſtioned, J confirme it thus, where the Kings writ for election is duely purſued, according to the moſt vſed and received forme, there ſuch an election is good, ſo was this. Ergo. Here (Mr. Speaker) falls the weight of their objection, which we will maſter, and anſwer with equall ſpeede, and firſt vellicat mihi aureum neſcio quis, and ſayes the writ is Burgenſide Burgo, but he is not Burgenſis de Burgo. Firſt I ſay quomodo conſtat, here is none to offer in proofe he is not ſo, beſide I offer it in Quaere, whether the election doth not ipſo facto make him a Burgeſſe, & in omni inſtanti, againe I ſay the writ is directive not poſitive. v.g. in a venire facias, the Sheriffe commanded to returne 12. yet if hee returne not 24. he ſhall be fined, in reſpect experience and practice proves, ſome of the 12. may be queſtioned and challenged: beſides the writ explains it ſelfe, the Knights muſt be Comitatus tui, but the Burgeſſes and Citizens dequalibit Civitate & Burgo, which can admit of no other cōſtruction, but theſe two Burgeſſes out of every Burrough (& not as Comitattus tui, is, which were then of every Burrough, and certainly the Law provided this with great reaſon as not doubting every Sheere could afford ▪ Knights, reſident, yet jealous, whether every burrough could provide 2. reſident Burgeſſes qualified with theſe neceſſary adjūcts, as could befit a member of ſo noble a place; Againe the writ commands duos milites, and yet exception was never takē upon retorning of Eſquires, ſo that the writ expounds it ſelfe, it is not literally to be taken. Next there is Thunder and Lightning ſhot out of the Statute, 33. H. 8 being a Stat. to regulate election, and abſolutely commanding every Knight and Burgeſſe to be reſident and have a certaine Fee-ſimple in every burrough and County, our of which they are elected; Here they ſuppoſe our Priviledge will cry quarter as ready to be murtherd by the Statute, but it is ominous ante victoriā canere. For firſt, we anſwer, that the diſuſe of a Statute antiquates a Statute, as is obſerved upon the Statute of Merton, and cuſtome applauded by fortunate experience hath in all Parliaments ever prevailed; a houſe of Commons would rather preſent Babell in it's confuſion, if the Tincker would ſpeake his Dialect, the Cobler his, and the Butcher conclude a greaſie Epilogue, then the writ were well purſued, theſe were J donei homines to take & give counſell de rebus arduis; but even to cut off the head of their owne argument by a Sword of their own, this Stat. of 33. H. 8. ſee mes by the preamble to be made in repeale of all former Statuts, by which, election not qualified with reſidencie, was made void, and ſo became a greevance to the Common-wealth, & therefore this Statute makes the election not obſerved ut ſupra, onely penall, ſo that there is nothing offered in objection, either from the writ or Statute to avoid this election. Now I have placed him & daily elected him, and then his priviledge growes by conſequence, but yet we have other objections minoris magnitudinis, & to repeate them is to confute them; Firſt ſay they every Libelleris, de jure, excōmunicated; J anſwer, every Libeller muſt be Scriptis; Pictis, or Cantilenis, our member is guilty of none of them, no, he is not termed, ſo neither in the cenſure, nor in any preſent proceeding. Another flouriſh is, that hee pleaded not his priviledge in the Caſtle-Chamber, in which very objection, they confeſſe him priviledged, and make themſelves guilty, that they would proceed againſt a knowne member of our Houſe. But ſee the Roman Spirit of Mr. Fitz-Gerald, who would rather undergoe the hazard of being a Starre-chamber Martyr, then to ſubmit our Priviledge to an extrajudiciall debate. It was in our honour hee did this, and for his eternall applauſe: ſome body ſayes the caſtle chamber will thinke it ſelfe injured, there being Lords of the houſe of parliament at & in the cenſure. As for the Lords, humanum eſt errare, but the Iudges are rather involved in theſe words Prameditata militia, for his election was the 11. of November ſitting the in Parliament; and his cenſure the 13. of December, ſo they had 22. or 23. dayes to repent of their ill-grounded reſolution, a greater affront never offered to the houſe of Commons, being comparative, as if the Recorder of the Tolſell ſhould ſentence the Lord chiefe Juſtice of Ireland a member of our houſe is a walking Record: & needs not to melt the Kings picture in his pocket. Others alledge, it was an election purchaſed by colluſion, but de non exiſtentibus & non apparentib. eadem eſt ratio. And ſince the end of his election is in it ſelfe and per-ſe, for the advancing of the publicke ſervice, as well as to prove a ſentence not then in rerum natura, both Law and charity in a benigne cōſtruction of theſe 2. ends will allow the more favourable. Another objection is whiſpered, that the entrance is not found in the Clerke of the Parliaments Role; This is no matter to the validity of his election, for his Priviledge commenced 40. dayes before the Parliament, therefore this and the like are to be judged of as accidentia quae poſsunt abeſſe & adeſſe ſine ſubjecti interitu. Truely (Mr. Speaker) my memory and lungs begin to prove Traitors to me; Another objection, if omitted, may be judged by theſe of what ſtrength and maturity they, even as by the coynage of a penny, one may judge of a ſhilling; What hinders then, ſince here is water but, that hee may be baptized? Here are no non obſtant's to be admitted in his new Pattent of Denization, the common law, the Statute law, the Canon, the Civill Law plead for his admittance, the writ of election, the exēplification of the Sheriffes returne, all preſidents of all ages, all reports plead for his admittance, our fore-Fathers Ghoſts, the preſent practice of Parliaments in England plead for his admittance, the Kings ſucceſſive commands, command and confirme his admittance; Away then Serjeant and with the hazarding power of our Mace touch the Marſhals gates, and (as if there were Divinity in it) they will open and bring us our Olive branch of peace wreſted from our ſtock, that with welcome Art we may ingraft him to be nouriſhed by a common roote. Thus the King ſhall receive the benefit of an able Subject, who is otherwiſe, Civiliter mortuus, we enjoy the participation of his labour, and poſterity both ours and this.

FINIS.