AN argument DELIVERED BY Patrick DARCY ESQVIRE, By the express order of the House of Commons in the Parliament of IRELAND, 9 Iunii, 1641.   royal blazon or coat of arms 
Printed at Waterford by Thomas Bourke, Printer to the Confederate Catholics of Ireland, 1643.   


5. Iunii, 1641.  
By the Commons House of IRELAND in Parliament assembled.  
FOrasmuch as M. Patrick DARCY, by a former order of this House, was appointed Prolocutor, at the Conference with the Lords, touching the Questions propounded to the judges, and their pretended answers to the same; It is hereby ordered, and the said M. DARCY is required, to declare and set forth, at the said Conference; the manifold grievances, and other causes and grounds that moved this House, to present the said Questions to the Lord's House, to be propounded as aforesaid, and to give particular reasons for every of the said Questions.  
Copia vera. Extract. per Phil. Fern. Cleric. Parl. Com.   

AN argument DELIVERED BY Patrick DARCY ESQVIRE, By the express orders of the Commons-House of the Parliament of Ireland; at a conference with a committee of the Lord's House, in the dining room of the Castle of Dublin, 9 Die junij 1641. upon certain Questions propounded to the judges of Ireland in full Parliament; and upon the answers of the said judges to the said Questions.  
And in the conclusion, a declaration of the Commons House upon the said Questions.  
THE questions.  
Questions, wherein the House of Commons humbly desired, that the House of the Lords would be pleased to require the judges to deliver their resolutions.  
IN as much as the Subjects of this kingdom, are free, loyal, and dutiful Subjects to his most Excellent Majesty their natural Liege, Lord & King; And to be governed only by the Common laws of England, & Statutes of force in this kingdom, in the same manner & form, as his majesty's Subjects of the kingdom of England, are and aught to be governed, by the said Common laws, and Statutes of force in that kingdom; which of right the Subjects of this kingdom do challenge, and make their protestation to be their birthright, and best inheritance; yet, in as much as the unlawful actions and proceedings of some of his majesty's Subjects, & Ministers of justice of late years, introduced and practised in this kingdom, did tend, to the infringing and violation of the laws, liberties, and freedom, of the said Subjects of this kingdom, contrary to his majesty's royal and pious intentions. Therefore the Knights, Citizens and Burgesses in Parliament assembled, not for any doubt, or ambiguity, which may be conceived, or thought of, for, or concerning the premises, nor of the ensueing questions, but for manifestation and declaration of a clear truth, and of the said laws and Statutes already planted, and for many ages past, settled in this kingdom. The said Knights, Citizens and Burgesses, do therefore pray the House of the Lords may be pleased to command the judges of this kingdom; forthwith, to declare in writing their resolutions of and unto the ensuing Questions, and subscribe to the same.  
1. Whether the Subjects of this kingdom be a free people, and to be governed, only, by the Common laws of England, and Statutes of force in this kingdom?  
2. Whether the judges of this Land do take the oath of judges, and if so, whether under pretext of any Act of State, Proclamation, Writ, Letter, or Direction, under the great, or privy seal, or privy Signet, or Letter, or other Commandment from the Lord Lieutenant, Lord Deputy, justice, justices, or other chief Governor, or Governors of this kingdom; they, may hinder, stay, or delay, the suit of any Subject, or his judgement, or execution thereupon; if so, in what Case, and whether, if they do hinder, stay or delay, such suit, judgement or Execution thereupon, what punishment do they incur for their deviation and transgression therein?  
3. Whether the King's majesty's privy council, either with the chief Governor, or Governors of this kingdom, or without him or them be a place of judicature, by the Common laws, and wherein; Causes between party and party, for debts, trespasses, accounts, possession, or title of land, or any of them may be heard and determined, and of what civil Causes they have jurisdiction, and by what law, and of what force is their order or decree in such Cases, or any of them?  
4. The like of the chief Governors alone.  
5. Whether grants of Monopolies be warranted by the Law, and of what, and in what cases, and how, and where, and by whom are the pretended transgressors against such grants punishable, and whether by fine, mutilation of members, imprisonment, loss and forfeiture of goods or otherwise, and which of them?  
6. In what Cases the Lord Lieutenant, Lord Deputy, or other chief Governor, or Governors, of this kingdom, and council; may punish by fine, imprisonment, mutilation of members, pillory, or otherwise, and whether they may sentence any to such, the same, or the like punishment for infringing the commands of, or concerning any Proclamations, or Monopolies, and what punishment do they incur that vote for the same?  
7. Of what force is an Act of State, or proclamation, in this kingdom, to bind the liberty, goods, possession, 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, Proclamation, or both, and what punishment do the sworn judges of the Law that are Privy councillors incur that vote, for such Acts, and execution thereof?  
8. Are the Subjects of this kingdom subject to the martial law, and whether any man in time of peace, no enemy being in the field with Banners displayed, can be sentenced to death, if so, by whom, and in what Cases, if not, what punishment do they incur, that in time of peace execute martial law?  
9 Whether voluntary oaths taken freely before Arbitrators for affirmance, or disaffirmance of any thing, or the true performance of any thing be punishable in the Castle Chamber, or in any other Court, and why, and wherefore?  
10. Why, and by what law, or by what rule of policy is it that none is admitted to reducement of fines, and other penalty in the Castle Chamber, or council-table, until he confess the offence for which he is censured, when as Revera he might be innocent thereof, though suborned proofs or circumstance might induce a censure?  
11. Whether the judges of the King's Bench, or any other judges of gaol delivery, or of any other Court, and by what law do, or can deny the copies of Indictments of Felony, or Treason, to the parties accused contrary to the laws?  
12. What power hath the Barons of the Court of Exchequer; to raise the respite of homage, arbitrarily, to what rate they please, to what value they may raise it, by what law they may distinguish between the respite of homage upon the diversity of the true value of the fees, when as Escuadge is the same, for great and small fees, and are proportionable by Parliament?  
13. Whether it be censurable in the Subjects of this kingdom, to repair unto England, to appeal to his majesty for redress of injuries, or for other lawful occasions, if so, why, and in what condition of persons, and by what law?  
14. Whether Deans or other dignitaries of cathedral Churches be properly, and de mero jure Donative by the King, and not Elective or Collative, if so, why & by what law, & whether the confirmation of a Dean de facto of the Bishops grant be good & valid in law or no, if not by what law?  
15. Whether the issuing of Quo-warrantoes out of the King's Bench, or Exchequer, against Burroughes that anciently and recently sent Burgesses to the Parliament, to show cause why they sent Burgesses to the Parliament, be legal, or if not, what punishment ought to be inflicted upon those, that are, or hath been the occasioners, procurers, and judges of, and in such Quo-warrantoes?  
16. By what law are jurors that give verdict according to their conscience, and are the sole judges, of the fact, censured in the Castle-Chamber, in great fines, and sometimes pillored with loss of ears, & boared through the tongue, and marked sometimes in the forehead, with a hot iron, and other like infamous punishment?  
17. By what law are men censurable in the Castle-Chamber, with the mutilation of members, or any other brand of infamy, and in what causes, and what punishment in each case there is due without respect of the quality of the person or persons?  
18. Whether in the Censures in the Castle-Chamber regard be to be had to the words of the great Charter (viz) salvo contenemento, & c?  
19 Whether if one that steals a sheep, or commit any other felony, & after flieth the course of justice, or lieth in woods or mountains upon his keeping, be a traitor, if not, whether a Proclamation can make him so?  
20. Whether the testimony or evidence of Rebels, traitors, protected thieves, or other infamous persons, be good evidence in law to be pressed upon the trials of men for their lives, or whether the judge or jurors ought to be judge of the matter in fact?  
21. By what law are fairs and Markets to be held in Capite, when no other express tenure be mentioned in his majesty's Letter-Pattents, or grants of the same fairs and Markets, although the rent or yearly sum be reserved thereout.  
Copia vera. Extract. per Phil. Fern. Cleric. Parl. Com.   

THE ANSWER AND DECLARATION OF THE judges, unto the questions transmitted from the honourable House of Commons unto the Lords spiritual and temporal in Parliament assembled, whereunto they desired their Lordships, to require the said judges answers in writing forthwith. May 25. 1641.  
IN all humbleness the said judges do desire, to represent unto your Lordships, the great sense of grief that they apprehend out of their fear, that they are fall'n from that good opinion, which they desire to retain with your Lordships and the said house of Commons in that (notwithstanding their humble petition and reasons to the contrary exhibited in writing, and declared in this most honourable house) your Lordships have overruled them, and often commanded their answers unto the said Questions, although they have informed your Lordships, and still with assurance do aver, that no precedent in any age can be shown that any judges before them were required or commanded to give answer in writing, or otherwise unto such general, or so many questions, in such a manner in Parliament, or elsewhere, unless it were in that time of King Richard the 2d which they humbly conceive, is not to be drawn into example. And therefore they yet humbly supplicate your Lordships so far, to tender their profession and places, and their relation, to his majesty's service, as to take into your serious considerations, the reasons that they have annexed to this their answer, before their answer be entered, or admitted, among the Acts of this high Court, and that if your Lordships in your wisdoms, shall after think fit to give any Copies of their Answers, that for their justification to the present and succeeding times your Lordships will be pleased to require the clerk of this most honourable House, that no Copies may be given of the said answers without the said reasons.  
2. Secondly the said judges humbly desire your Lordships to be pleased, to be informed, that the words in his majesty's writs, by which they are commanded to attend in Parliament, are, that the said judges shall be present with the Lords-Iustices or other chief Governor and your Lordships, at the said Parliament, called Pro arduis & urgentibus regni negotijs super dictis negotijs tractaturi & consilium suum impensuri: And they desire your Lordships to take into your consideration whether any advice may be required by your Lorpships, from them, but concerning such particular matters, as are in treaty and agitation and judicially depending before your Lordships, upon which your Lordships may give a judgement, order, or sentence, to be recorded among the Records and Acts of this honourable House, and whether they may be commanded by your Lordships, to subscribe their hands unto any opinion or advice they shall give upon any matters in debate before your Lordships there, and whether your Lordships can conceive any final resolution upon the matters contained in the said Questions.  
3. Thirdly, although the said questions are but twenty two in number, yet they say, that they contain at least fifty general questions, many of them of several matters, and of several natures, within the resolution of which most of the great affairs of this kingdom, both for Church and commonwealth, for late years may be included; and therefore the said judges do openly aforehand profess, that if any particular, that may have Relation to any of those questions shall hereafter come judicially before them, and that either upon argument or debate (which is the sive or fann of truth) or discovery of any general inconvenience, to the King or commonwealth in time (which is the mother of truth) or by further search or information, in any particular, they shall see cause, or receive satisfaction for it, they will not be concluded by any answer, they now give to any of these general questions: but they will upon better ground and reason with their predecessors the judges in all ages with holy Fathers, counsels, and Parliaments, retract, and alter their opinion according to their conscience and knowledge, and the matter and circumstances of the cause as it shall appear in judgement before them, it being most certain that no general case, may be so put, but a circumstance in the matter or manner may alter a resolution concerning the same.  
4. Fourthly, the succeeding judges, and age notwithstanding any answer given by the now judges, may be of another opinion than the now judges are, without disparagement to themselves, or the now judges, in regard that many particular circumstances, in many particular cases may fall out, that may alter the reason of the laws, in such a case; which could not be included or foreseen in a general question, or answer thereunto: And therefore they desire your Lordships to consider of what use such answers may be, to the present and future times.  
5. Fifthly, many of the said questions, as they are propounded (as the said judges humbly conceive) do concern his Majesty in a high degree, in his regal and prerogative power, in his Government, in his Revenue, in the jurisdiction of his Courts, in his martial affairs, and in his Ministers of State, so that the said judges considering their oaths, & the duty which by their places they owe unto his Majesty humbly conceive they may not with safety give answer thereunto, without special licence from his Majesty, and therefore they still humbly pray your Lordships (as formerly they did) not to press any answers from them until his majesty's princely pleasure, therein be signified.  
6. Sixtly, if the matters of these questions which aim at some abuses of former times, were reduced into bills, they conceive it were the speedy way to have such a reformation which might bind the present times, and posterity, and in such proceeding they ought and would most cheerfully contribute their opinions & best endeavours, but in such a course (as they apprehend it) which points at punishment they have reason to be sparing in giving any opinion further than the duty of their places doth command from them.  
7. Seventhly, although it may be conceived, that the answering of such and so many general questions, by the now judges may contribute some help to the reformation now so much desired, yet no man knoweth but this new precedent in propounding of such questions to judges in succeeding times (as the judges & frame & constitution of the commonwealth may be) may fall out to be most prejudicial to the State and commonwealth.  
8. Eightly, most of the matters in several of the said questions, are already by your Lordships and the said house of Commons voted and represented to his Majesty for grievances, and therefore no opinions of the judges, under favour are needful or to be required thereunto, unless the same shall come in further agitation and discussion in this honourable House.  
9 The judge's opinions are not usually called upon in Parliament, but when upon debate great and difficulty points in Law do arise, where, this most honourable house doth think fit to command their opinions, but no resolutions, do belong unto the said judges, in Parliament, but unto your Lordships; Yet in the front and preamble of the said questions, the resolution of the said questions by the judges, is forthwith desired, to be required by your Lordships in writing, although the first question, viz. Whether the subjects of this kingdom be a free people, &c. be positively, resolved by the preamble to the said questions, in which it is likewise declared that the said judges answers thereunto, are not desired for any doubt or ambiguity which may be conceived or thought of, for, or concerning the premises, nor of the said questions; but for manifestation and declaration of a clear truth, and of the laws and Statutes already planted and settled in this kingdom: And they say that it is impossible, to make any manifestation or declaration of Law, or statutes, which may hold or be useful, upon such general questions as most of these are, namely. By what Law? in what cases? of what? and which of them? of what power? of what force? how? where? by whom? why? wherefore? what punishment? by what rule of policy? in what condition of persons? in regard that the next succeeding judges may be of another opinion, and that a circumstance may alter the reason of this Law, in many particular cases, which the wit of man is not able to foresee, or give a general rule in. And they say that to give answers unto such questions as might give any satisfaction to your Lordships, or to the honourable house of Commons, would make up a great volume, and require more time than your Lordships have afforded unto the said judges, considering their great toil, in their circuits the last short vacation, their other employments in the commonwealth, and their daily attendance on your Lordships in Parliament, and the ordinary Courts of justice: And yet lest they might seem to come any way short in performance of that duty, which they confess to be due unto your Lordships, or be wanting in promoting or advancing the commonwealth, which they believe to be aimed at by the said questions, though it may seem to draw damage or prejudice upon their particulars, they do in all humbleness present unto your Lordships, the ensuing answers unto the said questions which is as much as by their oaths or in the duty they owe unto his Sacred Majesty (before his princely pleasure be therein signified) they can answer thereunto.  
1. To the first, they answer, that the subjects of this kingdom are a free people and are, for the general to be governed only by the common-laws of England and statutes of force in this kingdom, yet they say that as in England, many statutes are grown obsolete, and out of use, and some particular ancient laws (as well in criminal as in civil causes) have been changed by interpretation of the judges there, as they found it most agreeable to the general good of the commonwealth, and as the times did require it; So, our predecessors the judges of this kingdom as the necessity of the times did move them, did declare the law in some particular cases otherwise than the same is practised in England, which the now judges cannot alter, without apparent diminution of a great part of his majesty's standing revenue, and opening a gap for the shaking and questioning of the estates of many of his majesty's subjects, and the overthrowing of several judgements, Orders, Decrees, which depend thereupon. For example, If it be found by office of Record, sufficient for form that a man was killed in actual rebellion, and at the time of his death was seized of lands, hereditaments, goods, or chattels, by the constant declaration of Law, and practise of former times here, the Crown was entitled to such lands, goods, and chattels, and many men's estates depend thereupon, and yet the law is not so taken in England, So if one or more commit Felony, and then stand out upon his or their keeping, and he or they will not submit themselves to be tried by the law, but being in that state do rob or spoil and terrify his majesty's people, whereby the country is disquieted, this by the constant opinion of our predecessors in this kingdom hath been adjudged a levying of war within the Statute 25. Edw. 3. and so consequently treason. Also by the common received opinion & practice in this kingdom, the wife is to have a third of all the goods, chatels and credits of her husband (the debts being paid) although he dispose of all by his will from her: And yet the constant practice is otherwise in England, and other instances of that kind, might be made, so that the words (Only) must receive a benign exposition before the first question can receive a general answer, in the affirmative. Secondly, many causes of great weight and consequence in this kingdom, are to be decreed and ordered by equity in the proper Courts of equity, and in course of State at the council-board, and by particular customs, and contrary to law, for which the Common-law and statutes of force in this kingdom give no remedy. Thirdly, there are several other laws of force in England, and Ireland so far as they have been received, which though some would have to be part of the Common-law of England, yet we find them particularly distinguished from it in our Printed books in Parliament rolls in England, as Lex est consuetudo Parliamenti, jura belli, ecclesiastical or Canon law in certain cases, civil law in some cases not only in ecclesiastical Courts, but in the Courts of Constable and Martial, and of the Admiralty, and upon particular occasions, in the other Courts lex Mercatoria, &c.  
2. To the second, They say that the judges of this kingdom do take the Oath of judges, which Oath is specified amongst the statutes in 18. Edw. 3. and is after explained by the statute of 20. Edw. 3. and that they may not stay, hinder, or delay the suit of any subject, or his judgement, or execution thereupon (otherwise then according to the law and course of the Court, where they sit) under pretence of any act of state, proclamation, writ, letter, or direction under the great or privy seal, or privy Signet, or Letter, or other commandment from the Lord Lieutenant, Lord Deputy, justice, justices, or other chief Governor of this kingdom, most of which, doth appear by their Oath expressed in the said statutes, and the said statute of 2●. Edw. 3. cap. 8. and the statute of 28. Edw. 3. cap. 2. as to Barons of the Exchequer. And that as they know no punishment due to judges, for their deviations & transgressions, without other aggravation; So they know no punishment laid down by any law against them for their deviations and transgressions, in hindering staying, or delaying of justice, contrary to their said Oath, other than what is declared in their said Oath, and the statute of 20. Edw. 3.  
3. To the third, they say that it is part of their said Oath, as judges, that they shall not counsel or assent to any thing that may turn to the damage or disherison of our sovereign Lord the Kings most Excellent majesty, by any manner of way or colour. And that they shall give no advice or counsel to any man great or small in no cases, wherein the King is a party, And they shall do and procure the profit of the King and his crown, in all things where they may reasonably do the same; And that in the explanation of their said oaths, by the statute of 20. Edw. 3▪ cap. 1. It is declared that they shall give no counsel to great men, nor small, in case where the King is party, or which doth or may touch the King in any point. And as your Lordships have been honourably pleased by an order of this honourable house, bearing date the first of March Anno Dom. 1641. Annoque Regni Caroli decimo sexto to give way, that they should not be compelled to answer any part of those questions, which did concern his majesty's prerogatives or were against their oaths so they humbly represent unto your Lordships, that they conceive that the answering of the particulars of this question, doth concern both, for that the King's privy counsel as the question terms it, or the council-board, is a Court of his majesty's high prerogative, where all proceedings are before him, and his counsel, or before his Governor (who doth immediately, to many purposes represent his majesty's person) and the counsel. And where the great affairs of state concerning his majesty's honour, government, profit, and of great persons and causes concerning the commonwealth, which, may not conveniently be remedied by the ordinary rules of Common-law, and many other causes have been treated, of, and managed. And as his Majesty is the fountain of all justice, with in his kingdoms and may grant Cognizance of pleas unto his subjects, and Corporations, and may by his Commission authorise whom he shall think fit, to execute many branches of his authority, so they humbly conceive, it doth not stand with their oaths or duties of their places, who are but judges of the ordinary Courts of justice, before his majesty's pleasure signified in that behalf, to search into the Commissions or instructions of the chief Governor and counsel, or to give any opinion concerning the limits, jurisdiction, orders, decrees, proceedings, or members of that high Court, and that the King hath a prerogative for the hearing some of the matters in this question specified before his chief Governor; We beseech your Lordships to cast your eyes on the statute of 28. H. 6. cap. 2. in this kingdom, where after m●●ters are directed to be sent to the ordinary Courts, yet the King's prerogative is expressly saved, notwithstanding all which his gracious Majesty (for whom it is most proper) hath of late been pleased to limit the proceedings of that Board by his instructions in print.  
4. To the fourth, they answer as to the Third.  
5. To the fift they say that generally all grants of Monopolies, whereby trading, manufacture, or commerce is restrained, & the profit which should go to many hindered & brought into a few hands, are against law, the liberty of the subject and the good of the commonwealth, though they carry never so fair a pretence of reforming abuses, and that the pretended transgressors against such grants are not at all punishable by any rule of law, that they know of, And yet they say, that they conceive that his majesty, that is, the head and father of the commonwealth may restrain the use and importation and exportation of certain commodities, or confine the same into a few hands for a time where there may be likelihood of his majesty's profit, (which is the profit of the commonwealth,) and no apparent prejudice to the commonwealth doth appear, and that when time shall discover such prejudice, than such restraints ought to cease; So if a man by his own invention at home, or travel, observation, or charge abroad doth introduce a new profitable, and useful trade or profession into the commonwealth, in such cases his Majesty may lawfully grant & licence the only making of such commodity or teaching or using of such trade for a certain time, and the transgressors against such warrantable grants, may be punished by payment of damages unto the Patentee, in an ordinary course of justice, or otherwise, as the nature of the offence and matter doth deserve; and as the consequence and importance of the matter may be to the King, State, or commonwealth. And they say that the matter, manner, restrictions, limitations, reservations, and other clauses contained in such grants or licences, and the Commissions or Proclamations, thereupon and undue execution thereof, and several circumstances may make the same lawful or unlawful, whereof they are not able to give any certain resolution (before some particular comes in judgement before them) neither are they otherwise able to answer the general in the particulars of the said question, of what, in what cases, how, where, and by whom, or which of them, wherein whosoever desireth further satisfaction he may please to have recourse unto the known cases of Monoplies, Printed authorities, and written Reports, and unto the statute of 21. Ia. in England concerning Monopolies, and the several exceptions and limitations therein.  
6. To the sixt, they say they can no otherwise answer than they have already in their answer to the third question, for the reasons therein setforth.  
7. To the seventh, they say, that a Proclamation or act of State cannot alter the common-law, and yet Proclamations are acts of his majesty's prerogative, and are, and always have been of great use, and that the contemners of such of them as are not against the law, are and by the constant practice of the Star-chamber in England have been punished, according the nature of the contempt, and course of the said Court, and although acts of State, are not of force to bind the goods, possessions, or inheritance of the subject, yet they have been of great use for the settling of the estates of very many subjects in this kingdom, as may appear in the Report of the case of Irish gavelkind in Print. And further to that question they cannot answer for the reasons in their answer unto the third question set forth.  
8. To the eight, they say, that they know no ordinary rule of law, by which the subjects of this kingdom are made subject to marshal-law in time of peace, and that they find the use thereof in time of peace, in England, complained off, in the petition of right, exhibited to his majesty in the third year of his reign, And that they conceive the granting of authority and Commission for execution thereof, is derived out of his majesty's regal and prerogative power, for suppressing of sudden and great insolences and insurrections, among armies, or multitudes of armed men lawfully or unlawfully convented together, (the right use whereof in all times hath been found most necessary in this kingdom) And further to that question they cannot answer, for that as they conceive, it doth concern his majesty's regal power, and that the answering of the other part of the question doth properly belong to another profession, whereof they have no Cognizance.  
9 To the ninth they say, that as the taking of any Oath before any but such judges or persons as have power to give or demand an Oath, for decision of controversies, is by most Divin● in most cases counted to be a rash Oath, and so an offence against God, within the third commandment, so the prescribing and demanding of a set Oath by any that cannot derive power so to do from the crown (where the fountain of justice under God doth reside) is an offence against the law of the Land, and as for voluntary and extra judicial oaths, although freely taken before arbitrators or others, they say (as this kingdom is composed in many particulars, as the nature & consequence of the cause, or the quality of the person who taketh, or before whom the same is taken, may concern the commonwealth, or the members thereof) such taking of such oaths or proceeding or grounding on such Oath in deciding of controversies, according to the several circumstances, that may occur therein, or the prejudice, it may introduce to the commonwealth, may be punishable by the Common-law, or (if it grow unto an height or general inconvenience to the commonwealth or members thereof) in the Castle-chamber; For though such an Oath be voluntary, yet in most cases, it is received by him, that doth intend to ground his judgement thereon, and after the Oath is taken, the arbitrator, or he that intends to yield faith to the party, that took the Oath, doth examine him upon one or more questions, upon the said Oath, unto the answer whereof, he doth give faith and assent, trusting on the said Oath. And whereas oaths by God's institution were chiefly allowed to be taken before lawful Magistrates, for ending of controversies, yet common experience doth teach in this kingdom, that oftentimes orders and acts grounded on such voluntary oaths, beget strife, and suits; and commonly such orders when they come to be measured by rules of law, or equity in the King's Courts become void, after much expense of time, and charge that we say nothing of that, that thereby many causes proper to the King's Courts are drawn ad aliud examen, and thereby the King's justice and Courts often defrauded and declined.  
10. To the tenth, they say, that they are not judges of rules of policy, but of law, and that they know no certain rule of law, concerning reducement of fines. The same being matters of his Majesties own mere Grace, after a man is censured for any offence: And that they know no law, that none shall be admitted to reducement of his fines or other penalties in the Courts in the question specified, until he confess the fact for which he was censured. But forasmuch as the admittance to a reducement after conviction, for an offence, is matter of Grace and not justice; It hath been the constant course of these Courts both here and in England, for clearing of his majesty's justice (where the party will not go about to clear himself, by reversal of the censure or decree) not to admit him to that grace, until he hath confessed the justness, of the sentence pronounced by the Court against him. And that the rather for that commonly the ability and disability of the party doth not appear in judgement before them but the nature and circumstances of the offence, according to which, they give sentence against him or them, in terrorem after which, when the party shall make the weakness of his estate appear, or that the Court is otherwise ascerteyned, that they do of course proportion the censure, or penalty, having regard to his estate.  
11. To the eleventh, they say, That neither the judges of the King's Bench (as they inform us, that are of that Court) or justices of gaol delivery, or of any other Court, do or can by any law they know, deny the copies of Indictments, of Felony, or Treason, to the party only accused as by the said question is demanded.  
12. To the twelfth, they say, that where lands are holden of the King by the knight's service, in Capite, the tenant by the strict course of Law ought in person to do his homage to the King, and until he hath done his homage, the ancient course of the Exchequer hath been & yet is, to issue process of distringas out of the second remembrance Office, to distrain the tenants ad faciendum homagium or pro homagio suo respectuamdo, upon which process, the sheriffs returneth issues. And if the Tenant do not thereupon appear and compound with the King, to give a fine for respite of homage, than the issues are forfeited to the King for his contempt, but if he appear, than the Court of Exchequer doth agree with him to respite his homage for a small fine, wherein they regulate themselves▪ under the rate expressed and set down in England by virtue of a privy Scale in the 15. year of Queen Elizabeth, whereby the rates are particularly set down, according to the yearly value of the Lands, which rates are confirmed by act of Parliament in 1. Jacob. Regis cap. 26. in England, before which time there was not any such certainty, but the same rested in the discretion of the Court by the rule of Common-law, and so it doth at this day in Ireland, howbeit we conceive that the Court of Exchequer here do well to regulate their discretions by those rates in England, and rather to be under then to exceed the same, which the Barons there do, as they do inform us, that are judges of the other Courts.  
13. To the 13. they say, that they know no rule of Law or statute, by which it should be censurable, in the subjects of this kingdom to repair into England, to appeal unto his Majesty for redress of injuries, or for other their lawful occasions, unless they be prohibited by his majesty's writ, or proclamation or, other his Command. But they find that by the statute of 5. Rich. 2. the passage of the subject out of the realm, is prohibited without special licence, excepting Noblemen, & others in the said statute specially excepted, & some inference to that purpose may be made upon the statute of 25. Hen 6 cap. 2. in this kingdom.  
14. To the 14. they say, that some deaneries & dignities, not Deans or dignitaries (as the question propounds it) are properly, & de mero jure donative by the King, some Elective, & some Collative, according to the first foundation & usage of such Churches, & they humbly desire that they may not be required to give any further answer to this question; for that it may concern many men's estates which may come judcially in question before them  
15. To the 15. they say, that they conceive that where privileges are claimed by anybody politic, or other, the King's counsel may exhibit à quo-warranto to cause the parties claiming such privileges, to show by what warrant they claim the same, & that the Court cannot hinder the issuing of process at the instance of the King's attorney, or hinder the King's attorney to exhibit such informations. But when the case shall upon the proceedings be brought to judgement, then & not before the Court is to take notice and give judg●ment, upon the merit & circumstances of the cause, as upon due consideration shall be conceived to be according to law, in which case the judges or the King's attorney (as they conceive) ought not to be punished by any ordinary rule of law or statute that they know. But for the particular case of Quo-warranto for that it hath been a great question in this present Parliament, & so concerns the highest Court of justice in this kingdom, & also concerns two other of his majesty's Courts of justice, & therein his majesty's prerogative in those Courts, they say that they cannot safely deliver any opinion therein, before it comes judicially before them, and that they hear it argued and debated by learned counsel on both sides.  
16. To the sixteenth they say, that although the jurors be sole judges of the matter of fact, yet the judges of the Court are judges of the validity of the evidence, and of the matters of law arising out of the same, wherein the jury ought to be guided by them. And if the jury in any criminal cause between the King and party, give their verdict contrary to clear and apparent evidence delivered in Court, they have been constantly, and still ought to be censured in the Star-chamber in England, and Castle-chamber here, for this misdemeanour in perverting the right course of justice, in such fines and other punishment as the merits & circumstances of the cause doth deserve, according to the course of the said Courts, for that their consciences ought to be directed by the evidence, and not to be misguided by their wills or affections. And if the jury know any matter of fact, which may either better or blemish their evidence, they may take advantage thereof, but they ought to discover the same to the judges. And they say that this proceeding in the Court of Castle-chamber is out of the same grounds, that writs of attaint are against a jury that gives a false verdict, in a Court of Record at the Common-law betwixt party and party, which false verdict being found by a jury of twenty four, notwithstanding that the first jury were judges of the fact, yet that infamous judgement was pronounced against the first jury, which is next or rather worse than judgement to death, and did lay a perpetual brand of perjury upon them, for which reason it was anciently called the villainous judgement, and they say that the law to direct the punishment for such offences is the course of the said Court, which is a law as to that purpose, & the statute of 3. Henr. 7. cap. 1. and other statutes in force in this kingdom.  
17. To the seventeenth, they say, they can answer no otherwise, than they have in their answer to the next precedent question.  
18. To the eighteenth, they say, that in a legal construction the statute of Magna Charta in which the words Salvo contenemento are mentioned is only to be understood of amerciaments & not of fines, yet where great fines are imposed in terrorem upon the reducement of them regard is to be had to the ability of the persons.  
19 To the nineteenth, they say, that if one doth steal a sheep or commit any other felony, and after flieth the course of justice, or lieth in woods, or mountains upon his keeping, yet doth he not thereby become a traitor, neither doth a Proclamation make him so, the chief use whereof in such a Case is, to invite the party so standing out to submit himself to justice, or to forewarn others of the danger they may run into by keeping him company, or giving him maintenance, and relief whereby he may the rather submit to justice.  
20. To the twentieth, they say, that the testimony of Rebels, or traitors under protection of thieves, or other infamous persons is not to be used or pressed as convincing evidence upon the trial of any man for his life, and so is his majesty's printed instructions, as to persons condemned, or under protection, yet the testimony of such persons not condemned & being fortified with other concurring proof, or apparent circumstances may be pressed upon any trial, and for discovering of their fellows, abetors, or relievers as the circumstances may offer themselves in their examinations, especially if before they confess themselves guilty of the offence in imitation of the approver at the Common-law, whereof no certain rule may be given. And it need not be made a question here, whether the jurors or judges ought to be judges of the matter of fact, it being positively laid down in the sixteenth question that they are. And though their false verdict doth convince, or not convince the prisoner, yet they may be questioned, and punished for a false verdict, as in their answer to the sixteenth is already declared.  
21. To the twenty one, they say, that that question is now judicially depending, and hath been already solemnly argued in his majesty's Court of wards, in which Court their assistance for declaration of the law therein is already required. And therefore they humbly desire they may not be compelled to give any opinion touching that point until it be resolved there.  
22. To the twenty two, they say, that they do conceive, that there is no matter of Law contained in the said question, yet for the further satisfaction of your Lordships, they say that upon view of an Act of state, bearing Date at his majesty's Castle of Dublin the twenty fourth of December 1636. grounded upon his majesty's Letters of the fift of July then last past, it appeared unto them that four shillings in the pound, as of his majesty's free gift and reward, out of the first payment of the increase of rent reserved to his majesty, was allowed to the judges that were Commissioners and attended that service. And we humbly conceive that the receiving of that four shillings in the pound, of his majesty's bounty, stands well with the integrity of a judge, and those judges did inform them that they did not avoid any Letters-Patents upon the Commission of Defective Titles but received such to compound as submitted for the strengthening of their defective Patents and Titles, and such as would stand upon the validity of their grants were left to the trial at law. And that the Compositions made after the said grants of the four shillings in the pound were made according to rules and rates agreed upon by all the Commissioners before his majesty's said Letters or the said Act of State, and not otherwise.  


George Shurley.  
Hu. Cressy.  
William Hilton.  
Edw. Bolton.  
James Barry.  
Sa. Mayars.  
Iam. Donellan   Copia vera. Extract per Phil▪ percival.   

Mr Darcy's REPLY TO THE ANSWER OF THE judges.  
MY LORDS,  
His majesty's most humble and faithful subjects, the Knights, Citizens, and Burgesses in Parliament assembled representing the whole Commons of this realm calling to mind the late invasion made upon the laws and just rights, have heretofore presented unto the Lord's House certain questions of great weight and moment, to the end their Lordships might thereunto require the answer of the judges in writing, which being long sithence accordingly commanded by their Lordships, the judges have of late delivered in, a writing to the Lord's House by them styled, an Answer unto the said Questions, which being sent to the Commons house to be taken into consideration, and the same & all the parts thereof being weighed in the balance of the grave judgement, and knowledge of the said house of Commons, the said answer was upon question voted to be (minus pondus habens) and not to merit the name of an answer.  
This my Lords being the occasion of this conference, the house of Commons appointed me, a feeble Organ, to utter part of their sense of the style and manner of this writing, and to declare part of those reasons which satisfied their judgements; that, the said writing was short and insufficient (o utinam) that were all.  
My Lords, the judges had divers months' time to answer plain questions (Plain, I speak of those who would be plain) the house of Commons a few days only to consider of that intricate writing. My powers are weak, and the infirmities of my body are visible, both in part occasioned by an high hand, I should therefore faint under the weight of this burden; but that the task is not great, I do represent to your Lordships by way of rehearseall only some parts of those reasons and authorities which were gathered and ripened to my hands by the house of Commons.  
My Lords in matters of importance the course hath been ancient and not yet deserted, to begin with Prologues or Exordiums, the work is not mine I will only (In nomine sanctissimae Trinitatis) make my entrance upon the matter of this Conference which is a general concernment; a great concernment of the whole kingdom: And to that purpose I will declare the causes and reasons which moved or rather enforced the house of Commons, for to digest and propound the said Questions, and to make it appear that none of them is (Idea Platonica) none of them circumventing, and all depending now or of late.  
To maintain the preamble to Questions (viz.) 
Preamble to the questions.  That this Nation ought to be governed by the common-laws of England, that the great Charter and many other beneficial statutes of England are here of force, by reasoning or argumentation, were to alter a foundation laid 460. years past, and to shake a stately building thereon erected by the providence and industry of all the ensuing times and ages: This is so unanswerable a truth and a principle so clear, that it proveth all, it needeth not to be proved or reasoned.  
Reasons why the Questions were propounded.  
The reason for the first was, 
1. q. 1. rat.  the late introduction of an arbitrary government in many cases by some Ministers of estate contrary to the laws and statutes aforesaid, a government contrary to the just freedom & property of his majesty's people, in their lives, estates and liberties, whereas the subjects governed by the laws of England are and aught to be free subjects, the late disuse therefore of those laws in execution, and the measure of justice being squared by the Lesbian line of uncertainty, as contrary to the laws aforesaid, as any (oppositum is in objecto) produced the first question, and I hope not improperly.  
The reason for the second in part ariseth out of the Oath of a judge 18. Edw. 3. 
2. q. 2. rat.  to be found among the Printed statutes Polton fol. 144. and out of the statutes of 20. Edw. 3. cap. 1. 2. & 3. Polton fol. 145. This Oath is comprehensive and extends to the judges, the Barons of the Exchequer, and justices of gaol-delivery, and their associates.  
This great and sacred Oath contains several branches. First, well & lawfully to serve the King & his people in the Office of a justice. Secondly, not to counsel or consent unto any thing tending to the King's damage or disinherison. Thirdly, to warn the King of his damage when he knows it, Fourthly, to do equal justice to rich and poor, &c. without respect of persons. Fiftly, to receive no reward. Sixtly, to take no Fee of any other than the King. Seventhly, to commit such as break the peace in the face of justice. Eightly, not to maintain any suit. Ninthly, not to deny justice notwithstanding the King's Letters or commandments, and in that Case to certify the King of the truth. Tenthly, by reasonable wages to procure the profits of the crown. Eleventhly, if he be found in default, in any the matters aforesaid, to be in the King's mercy, body, Lands, and goods.  
The second reason principally moveth from the following particulars; In the King's Bench the Major-part of the judges denied his majesty's writ of prohibition to the late Court called the high Commission, in a cause merely temporal. The four Courts of justice durst not proceed in any cause depending before the chief Governor, or at the council-board upon paper petitions, or rather void petitions, these paper-petitions being the oblique lines aforesaid, grave judges of the law were commonly assistants, and more commonly referees in the proceedings upon these paper-petitions, in what causes? in all causes proper for the Cognizance of the Common-law, and determinable by writs of right, and petitions of right, and so to the most inferior action, the like of the Courts of equity, whether this be lawfully to serve the King and his people, or whether the King, was at loss by the non-prosecuting of the causes aforesaid in their proper orbs, by original writs, which might afford the King a lawful revenue, and likewise by the loss of fines, and amerciaments, natural to actions at the Common-law, or whether the loss aforesaid was made known to his majesty, or who consented to the King's damage therein, or whether this be a denial of justice? to defer it upon paper Orders or commands, be conformable to that Oath, I will pretermit; yet your Lordships may even in this mist discern a clear ground for the second question.  
The motive which in part stirred the third, 
3. & 4. q. 3. & 4. ratio.  and fourth questions, was the infinity of civil causes, of all natures without exception of persons, without limitation of time proceeded in, ordered, decreed, and determined upon paper-petitions at council-board, & by the chief Governor alone; The Commons of this kingdom observing the judges of the law who were Counsellors of estate, to have agreed and signed unto such Orders, the judges of the four Courts, and justices of Assize in all the parts of the kingdom to be referees upon such proceedings, whereby these new devices, were become so notorious, that as all men heavily groaned under them, so no man could be ignorant of them.  
By the colour of Proclamations more & more frequent, 
5. 6. 7. q. 5. 6. 7. rat.  and of the Orders, and Acts of state at council-board, which were in a manner infinite, and other proceedings mentioned in these questions, these effects were produced; First imprisonment, close imprisonment, of such numbers, that a great defeat in a battle could hardly fill more gaoles and prisons, then by these means were surcharged in Ireland, Secondly by seizures made by crews of Catchpoles and caterpillars, his majesty's liege people lost their goods, as if lost in a battle, nay worse without hope of ransom; Thirdly possessions were altered, and that so often, and so many, that more possessions were lost by these courses in a few years, then in all the Courts of justice in Ireland in an age or two; The fourth effect was this, after liberty was taken away, property altered, and possession lost, by the ways aforesaid, that was not sufficient, the subject must be pillored, papered, stigmatised, and the image of God so defaced with indignities, that his life became a continuing death the worse of punishments, in these feats were advising, and concurring some grave and learned judges of the Land, who were Counsellors of estate, as by their signatures may appear.  
The house of Commons finding as yet no warrant of precedent, nor countenance of example in the law of England, to bear up the courses aforesaid, have drawn the said Questions from the effects aforesaid.  
My Lords, 
8. q. 8. rat.  the liberty, estate in lands or goods, the person of the subject; nay his honour and spirit being invaded, altered, and debased in manner aforesaid, there remained yet one thing, his Life: See how this is brought into play, nothing must escape, were not the Gates of Janus shut up, was not the King's peace universal in his three kingdoms, when a peer of this realm, a Counsellor of the Kings, a great Officer of state was sentenced to be shot to death in a Court Martial, what the cause was, what defence was permitted, what time given, and what loss sustained? I submit to your Lordships, as therein most nearly concerned, were not others actually executed by martial law, at such time as the King's justice in his Courts of law, was not to be avoided by any person whatsoever. This was in part the ground of the eight question.  
This question is plain, 
9 q. 9 rat.  a late introduced practise here, contrary to former use, and no appearing precedent to warrant such prosecution for a voluntary Oath, and the great benefit, and quiet accrued to his majesty's people by arbiterments conceived by consent of parties, hath in part occasioned this question.  
Heretofore this Confession was not required, 
10. quest. 10. ratio.  for the justness of the judgements was then able enough to bear them up, and if the judgement in some Case had been otherwise, what force can the confession of a delinquent add to a judicial act, 
11. quest. 11. ratio.  this is part of the reason for this question.  
A complaint exhibited in the house of Commons touching the denial of the Copy of a Record, which the complainant undertook to justify, in part raised this question.  
In King James his time, 
12. q. 12. rat.  by an order conceived in the Court of Exchequer upon great debate, and warranted by ancient precedents the respite of homage was reduced to a certainty, viz. two shillings six pence sterling▪ For a manor yearly, and so for towns, and other portions of Land, this course was always held until now of late the respite is arbitrarily raised as appears by the second remembrances certificate, viz. I find that anciently before the beginning of King James his reign, 
The second remembrancers certificate.  every manor paid three shillings four pence Irish per annum, & every town-land, twenty pence Irish per ànnum, as a fine for respite of homage, 
1. Iunii, 1641.  but cannot find any order or warrant for it, until the fifth year of the said Kings reign, and there, in Easter term 1607. I find an order entered directing what homage every man should pay a Copy whereof you have already from me, the preamble of which orders showeth that, that matter had been long depending in the Court undecided, which induceth me, to believe that there was no former precedent or order in it. About three years after, the freeholders of the county of Antrim as it should seem, finding this rate to be too heavy for them, they petitioned to the Lord Chichester then Lord Deputy for relief therein, & I find his lordship's opinion to the Court thus Recorded.  

I know much of the petitioners. Lands is waste, and no part of it improved by any manner of husbandry, other than in grazing of Cattle, and in sowing of little oats. And the proprietors of the Land, to be for the most part very poor, and needy, and the two Children of Neale mac Hugh to be yet under age; Wherefore I think it fit that the Court of Exchequer should consider thereof, and rate the respite of homage accordingly for a time, until the county be better inhabited, and these men made to understand that it is not an imposition, but a lawful duty and payment due to his majesty. This is my advice and opinion for the present, xxx. die April. 1610.  
Arthur Chichester.   

Upon this the said Freeholders were admitted to pay but four pence Irish every Twogh of Land, it consisting of sixteen Towne-lands, and according to this rate they still paid until the year 1630. and then the Court taking notice of the unequality of it, made this order, 5. Febr. 1630.  
After this I find that all his majesty's Tenants did conform themselves to the said order of 1607. until Easter term 1637. in which term this ensuing order was made which is the last that I can find Recorded in my Office.  
Henry Warren.   

I find by the payments made in the late Queen Elizabeth's time that the rates of homage paid was according to the said order of 1607.  
Henr. Warren.   
Divers were actually imprisoned and long kept in close restraint, 
13 quest. 13. ratio.  for none other cause then in dutiful manner & be seeming terms to have made known their particular complaints to his sacred Majesty imprisonment of this kind was frequent, therefore it is not improper to demand by what law it was done.  
Many have lost great estates and possessions by Orders of the council-board, 
14. quest. 14. ratio.  although the Deans elected, or actual Deans confirmed their estates, if no donation from the Crown were found upon Record to the confirming Dean, and this after that by verdict at the Common-law the Deanrie was found to be Elective, this Question therefore is not improper.  
After such time as this Parliament was agreed upon at council-board to be summoned; 
15. q. 15. rat.  some persons having prepared bloody and destroying bills to be past as laws, and intending to defeat by act of Parliament very many of his majesty's faithful subjects of this kingdom of their estates and liberties, and having obtained some undue elections by threats or entreaties, & mistrusting that all should run clear before them, have caused twenty four Corporations to be seized, upon the return of the first summons in several Quowarrantees procured by Sir Richard Osbalston late attorney general to show cause why they sent Burgesses to the Parliament, the said Corporations having formerly sent Burgesses to the Parliament, even to the last Parliament, by means whereof the said Corporations sent no Burgesses in the beginning of this Parliament, from this act being done in a legal Court against the high Court of Parliament sprung this question, which My Lords is of consequence, if Parliaments be so as without question they are.  
The faith which the Common-law giveth to verdicts, 
16. quest. 16. ratio.  the jurors being judges of the fact, 
17. quest. 17. ratio.  the late usage of that great Court growing to the punishment of jurors, 
18. q. 18. rat.  and others in greater numbers by heavier fines, and more shameful punishments without respect to estate, age, sex or quality than was or can be observed in all precedent times, and the just sense thereof, moved the house of Commons to propound these questions.  
My Lords, 
19 quest. 19 rat.  a poor fellow stole or was accused to have stolen a sheep, fear, or guilt, or both brought him to the mountains, another relieved him, the reliever was executed as a traitor, and after the principal submits to trial and judgement, and was acquitted, this example My Lords I hope may warrant the question.  
The testimony of such infamous persons, 
20. que. 20. rat.  have brought men of quality to their trial, for their lives and being acquitted the jurors being of very good rank, were heavily censured in the Castle-chamber, as well by fines surmounting their abilities, as by most reproachful punishments, upon these acts, the question is grounded.  
There being no warrant in the Printed law, 
21. quest. 21. rat.  or otherwise for aught yet appearing for to make this a Tenure in Capite, the constant course of the Court of wards taking it to be no Tenure in capite, since the erection of that Court until Trinity term 1639. it was then and not before certified a tenure in capite by the than attorney of that Court, who said that the judges concurred with him in that opinion, by which means counsel did not then argue, and the next term after were denied to be heard, ne aliquid contra responsum prudentum this being done in the Court of wards, the question did spring from thence.  
The two and twentieth question was not yet agitated in the house of Commons nor brought thither, therefore My Lords that may be deferred to a further conference; By this which I have opened being the smaller part of those weighty reasons delivered unto me by the house of Commons, yet the best I can for the present remember, I hope your Lordships are satisfied that those questions were not entrapping, feigned, or circumventing, or fantasies, as formerly I touched.  
In the next place I will labour to give your Lordships a more clear satisfaction, that those questions grounded upon sufficient and apparent reasons, and causes do deserve clear and satisfactory answers, and to remove all doubts, The questions I will no more call Questions, I will humbly style them Causes of weight and Consequence, wherein the Lords and Commons of this realm on the behalf of themselves and their posterity in after times, are plaintiffs, and only delinquents of an high nature are defendants, in this high Court of Parliament. 
Hopperus de vera Iuris prudentia. pag. 118.  It is not unworthy your lordship's consideration; to whom the questions were put, I answer unto the judges of the Land, who are, and sure I am aught to be first etate graves, secondly, eruditione praestantes, thirdly, usu rerum prudentes, fourthly, publica authoritate constituti.  
The persons unto whom being thus qualified, the place where, is most considerable, it is the high Court of Parliament, the judges are called thither (Circa ardua & urgentia negotia regni) of the whole kingdom what to do (Quod personaliter intersint, 
Lord Chancel. Egerton de postnat. fol. 17.  cum Rege ac cum caeteris de consilio suo super dictis negotijs tractaturi consiliumque impensuri.) Therefore they are not called thither to be ciphers in augurism, or tell clocks, no, those great causes are mentioned in their writ, and upon that great Oath, they are to give faithful counsel and make direct answers to your Lordships in all things wherein (ardua & urgentia regni) are concerned, and whether? that concernment do comprehend the matters aforesaid. I do humbly offer to your lordship's great consideration most of the matters included in those questions are solemnly voted in both houses as grievances, as may appear by the petition of Remonstrance, the judges could not be ignorant of this, and do take notice of the same in their preamble.  
My Lords, In the third place no man is more unwilling to discover the nakedness of my Fathers, if any be, than I am, yet the question being not whether the ark should be rescued from the Philistines, but whether it should be preserved against the negligence of some Ophni and Phines in their hands that have the custody of it, Therefore I must obey, and as I am Commanded I will offer unto your Lordships, how the preamble and answers of the judges might be sufficient, and wherein they are both defective and dangerous.  
The judges in the first reason of their preamble, insist much upon the want of precedent in this kind, only one precedent in the reign of King Richard the seconds time, which they pray may not be drawn into example.  
My Lords, 
●. ratio.  This reason requires a more clear explanation which we hope shall be demanded in due time. It urgeth us to this just protestation, that before the best flower in his majesty's royal garland should wither, we shall be ready to water the same with showers of our blood, even to the last drop in his majesty's service, and with our lives and substance will maintain the just prerogative of our gracious Lord King Charles and his posterity, whom we pray God to flourish on earth over us and ours, until all flesh be convoked before the last great tribunal; Yet My Lords that precedent might be spared by the judges, of this no more for the present, I will not exasperate, had they pleased, more natural precedents might be stood upon, and easily found, and even in that ill remembered precedent; if the judges in Richard the seconds time had made direct and lawful answers, they had escaped punishment and prevented many inconveniences which ensued.  
My Lords, if precedents be necessary, of many I will enumerate a few, Deutronomy cap. 17 vers. 8. Si difficile & ambiguum, &c. almighty God directs us the way to truth, Deutronom. cap. 32. vers. 7. Interroga patrem tuum, &c. The Romans sent to Greece for a declaration of their laws, in causes like to happen, Tit. Liv. decad. 3. fol. 45. g. Lancelotus de Ecclesiasticis Constitutionibus tit. 3. Canonum alij sunt decreta Concjliorum, alij statut' Îalijs dicta sanctorum, Rottoman de Iure Civili tit. 4. Praetorum dicta & responsa prudentum, which cannot be without questions, venerable Bede lib. 1. cap. 27. S. Augustine demanded general questions; M. Sleiden super Eadmerum, fol. 171. William the Conqueror did call to the judges, to declare and compile Edgar's laws, and S. Edward's laws, which were buried, and forgotten, by the interruption of the Danish government.  
In the time of King Henr. 3. certain knights of Ireland, 
Poltons' stat. fol. 8.  desired resolutions in England concerning coparcenery and received resolutions according to the laws of England, and this in Parliament, as appears in the statute called statut. de Hiber. 14. Henr. 3. in the printed book.  
Ordinationes factae de statut' terr' Hiberniae at large in the Roll of 7. Edw. 2. 
Atchi. Tu●ris Lond.  parte prima, memb. 3. & 18. Rot' Claus. anno 2. Edw. 3. membr. 17. Rex concedit quod ad primum Parliamentum omnes Hiberni qui volue●int legibus utantur Angliae sine Cartis inde fiendis. Rot. Claus. anno 5. Edw. 3. parte prima membr. 25. The same law in Case of wardships.  
Ordinationes pro Regimine Hiberniae 5. Edw. 3. Pat' membr. 25. & 35. Edw. 3. parte prima, memb 9 which Consilium ought to be understood of the Parliament as hereafter I will declare.  
Ordinatio facta de ministris Regis in Hibernia Claus. 18. Edw. 3. parte secunda memb. 9 & 17. & ann. 20 Edw. 3. parte prima in dorso, & anno 25. Edward. 3. membr. 30.  
My Lords, I have not yet learned how syllogisms can be made, or answers Cathegoricall, without propositions. I am as ignorant after what manner Ordinances or reformation could be made without questions or propositions.  
It may be objected that the word Quere or Question is new, that word was nothing strange in Edward the thirds time, Rot. Parliament, 21. Edw. 3. num. 41.  
The Commons in Parliament prayed that it may be inquired how, 
Cambd. Anals Hibern.  it comes to pass that the King hath no benefit of his land of Ireland, considering he had more there then any of his ancestors, may it not be as lawful to inquire in this Parliament, wherefore the King is in debt, and yet his people here gave him more supplies then to any of his ancestors, or wherefore his laws are not observed, I find no difference.  
In the printed year book 2. Rich. 3. fol. 9 the King propounded several questions to the judges in the Star-chamber in Cases not then depending.  
Their second reason, 
2. ratio.  is fully answered to the first, and for more clear satisfaction, the words of the writ, which bring them hither, are viz. to give counsel circa ardua & urgentia negotia regni, the matters now in agitation are maxim ardua, maxime urgentia.  
The year books of law do prove Provisiones & Ordinationes, and no cause is said to be depending f. N. B. 32. d. 39 Edw. 3. 7. b. Thorp. The Lords being assembled can make Ordinances as strong as a statute, by the opinion of that judge such Ordinances cannot be avoided, but in Parliament, an act or statute may be avoided or repealed in Parliament.  
Where they say that the Questions though in number but twenty two, 
3. ratio.  yet they include fifty two questions, that all the affairs of Church & commonwealth may be included in the resolution thereof, and that they will not be concluded by their answers to the same.  
My Lords, the house of Commons made the questions so many as they are for the more clear explanation of their candid intentions, and not for difficulty, whereas they might reduce them to fewer, but to the end the answers might be the more punctual, and satisfactory unto positive points, and known law, and the custody of the law, the great treasure of the Land, being committed by his Sacred Majesty to their trust, to the end they should declare how? and after what manner, they issued and dispensed that treasure, and discharged that great trust? and not to be bound by their resolutions in Parliament; For judges are and aught to be bound by resolutions in Parliament, and not Parliaments by them.  
To their fourth reason, 
4. ratio.  what succeeding ages will do, we do well hope, they will not do amiss, that no occasion shall be administered hereafter which may enforce the house of Commons to propound the like questions.  
That by reason the King's prerogative and the concernment of his other interests they cannot answer without his majesty's especial direction, 
5. ratio.  considering the duties of their places and their oaths.  
My Lords, It is manifest that by their oaths they are bound to interpret the laws truly between the King and his people, and between party and party, and if in any Case granted, it cannot be denied when the commonwealth desires a Declaration of the law in certain points, wherein they conceive their just liberties to have been invaded, lest under colour of prerogative which the Parliament holds to be sacred, some ministers may presume (as of late they have endeavoured) to destroy the people's just liberties.  
In the ordinary Courts of justice, the judges upon Oath are bound to afford the subject justice against the King, and all others, and are appointed by his Majesty for that purpose, all writs are in his majesty's name in the King's bench, the pleas are styled Coram Rege, Letters-patents and writs original are Teste me ipso, the King is therefore present in Parliament, being the highest tribunal, where in truly he sits in the exaltation of royalty and greatness. Therefore the Commands of all his ordinary Courts are the commands of the King, much more Commands in Parliament, where his presence is more apparent and essential then in all other Courts of this kingdom.  
It appears copiously by the great Charter, and by constant practice of all Parliaments since that time, that all Courts and judges were regulated by Parliaments, as for the King's prerogative, or revenue, the judges cannot be ignorant, but the Parliament is and ever hath been the best mantayner of his just prerogatives, the best overseer of his revenue, which if it fall short, they only are able and willing to supply.  
It is true, 
6. ratio.  that the abuses of former times might be reformed for the future by bills to be past as statutes Yet that is away about, and we may not lose the possession of our laws, and just liberties nor by new statutes admit impunity, or give countenance to past offences, statutes of this kind sufficient were already enacted and passed in former ages.  
The declaration of a known law, 
7. ratio.  and the manifestation of wholesome statutes already established well may help the commonwealth, for the present, but cannot in any probability fall out hereafter to be prejudicial to the state or Commonwealth, and there is no precedent or example of any such prejudice.  
It is confessed that most of the matters contained in the Questions are already voted for grievances in both houses, 
8. ratio.  and that very justly, but how the law is therein, remains yet to be declared, as to this present Parliament, which I hope in due time shall be declared, according to law and justice, as in many Parliaments before the same or the like hath been often done.  
Where they do again insist upon the want of precedent, 
9 ratio.  and withal that in the preamble to the Questions, the protestation clears the law.  
This word precedent strikes close unto us, I have answered it before by precedents, yet some more precedents I will offer as often as they speak the word precedent 7. 8. Elizabeth Dy. fol. 241. b. placit. 49. The King's attorney demanded the opinion of the judges, 9 Elizab. Dy. 261. placit. 28, Casus Hiber. where the judges of England signed their opinions to questions propounded by the judges of Ireland, 11. Eliz. Dy. fol. 282. b, plac. 26. Casus Hiber. 19 & 20. Elizab. Dy. 360. The Case of arraignment of a peer, the like 13. Càroli by all the judges of England; the Earl of Ormond's Case, and yet in none of these Cases the matter was depending before them.  
Notwithstanding the protestation may clear the law, yet in all precedent ages, laws clear in themselves, for their greater honour and countenance, they have been declared and enacted in Parliament.  
The Law declared by Magna Charta was clear before, yet it was enacted 9 Henr. 3. and in thirty Parliaments since Cook 8. 19 b. Primes Case the statute of praerog. Regis. And the statute of 25. Edw. 3. of treasons, is declarative and so are many other statutes. 
Genes. c. 3. vers. 7. &c. 4. vers. 8.  Adam eat the forbidden fruit, Cain killed his brother, God demanded whether this was done, yet he could not be ignorant of the fact. The first article in the civil and Canon law Courts, is, whether there is such a law all this is done for illustrations sake.  
My Lords, The ground of the Questions, and the preamble to the writing styled an Answer, kept me so long, that I fear much to have trespassed upon your patience; and yet the importance of the cause urgeth me to importune your lordship's favour a little further.  
This Question is short and yet comprehensive, 
1. Quest.  that we are a free people, 
1. Answer  is confessed to my hands, to that part of the answer I do not except, the second part of the Question is, whether we are to be governed by the laws of England and statutes of force in Ireland only. First though I need not prove it, yet it is clear we ought to be so governed, Matth. Paris. historia maiori fol, 121. Sir John Davis discovery of Ireland fol. 100 King Henry the second held a Parliament at Lismore in Ireland, in which Parliament Leges & consuetudines Angliae fuerunt gratanter acceptae by the representative body of this whole Nation, Magna Charta and other beneficial statutes of England, are here in the red book of the Exchequer in, and since King John's time, and so is Gervasius Tilberiensis of the Course and Officers of the Exchequer, in the white book of the Exchequer of Ireland, leges & consuetudines Angliae received in Ireland by Parliament & otherwise this appears, 
Archi. Turris London.  9 John. pat membr. 2. 1. Henr. 3. pat. memb. 13. 10. Hen. 3. pat. membr. 4. 12. Henr. 3. claus. membr. 8. by which words, and by the constant practice of all ages since, this kingdom was governed, and aught to be so by the law of England, as the law of the land, which law as it was always here received, consists of three parts. First, the Common-law. Secondly, the general customs of England. Thirdly, statutes here received. The Common-law that is cleared already, customs as Tenant by the courtesy. innkeepers to be responsible for things within their houses, or the like when we speak of a custom in the law, it must be intended a general custom over the realm, and no particular custom. And this appears by the year books of 37. Henr. 6. fol. 5. 21. Henr. 7. 17. 18. Particular customs, as Gavelki●d, Boreugh, English-tenant right, or the like are not to be intended when we speak generally of custom, and these customs are warranted by the Common-law of England, being not contrary to the same, but praeter legem, so there may be and are particular customs here praeter legem, and yet not contrary to law, as in many Corporations and Countries, so the wives third of goods is good in England, by the custom of many counties and places, F. N. B. 122. 7. Edward. 4. 21. 40. Edw. 3. 38. 17. Edw 2. f. detinue 58. Therefore it is not contrary to law, that such a custom is here, over all the kingdom, And yet if any man ask the question; by what law we are governed, there is no proper answer, 
Stat. Hiberniae. 67. a.  other than by the law of England. And for the statutes of England general statutes were received in this kingdom, some at one time, some at another, and all general statutes by Poyning's Act, anno 10. Henr. 7. but no other statute, or new introducting law, until the same be first received and enacted in Parliament in this kingdom, and this may appear by two declarative statutes the one 10. Henr. 4. the other 29. of Henr. 6.  
The law of England as it is the best human law, so it is a noble and sociable law, and for the more clear discerning of the truth and equal administration of justice it refers many causes to their genuyn and natural proceedings as Maritime causes to the Court of Admiralty, Co. Institutes 260. 361. Stamford. 57 b. Co. 5. 106. 107, Constable's Case, and there the proceeding is by the civil law, Co 8 47. b. Matters beyond the Seas are determined in the Court of constable and marshal; cooks institutes 391. b. matters of Latin the law refers to Grammarians, Com. fol. 122. matters merely ecclesiastical to be tried and determined in the proper Courts Coke 7. 43 b 8. Co. 68 5. Co. 57 1. R. 3. 4. matters of merchandise to merchants, 34. Henr. 8. Die, 52 & 54. Many other cases upon this learning are to be found; Co. 9 fol. 30. 31. 32. Strat. Marclads case, Yet in all these and the like Cases the trial and determination thereof, are bounded and controlled by the rules of the Common-law, they are as Rivers which are necessary to run through the land, to help the inhabitants thereof, but if they overflow the banks, the banks are made higher and stronger to suppress their violent current, so in all the cases aforesaid, and the like. The Common-law hath limited the proceedings, if they exceed their bounds, witness the prohibitions in all our books, and the statutes of Provision and praemunire, and cases there upon in many ages, by which it is manifest that the supreme, and governing law, are the Common-law, Common-customes, and statutes of the realm, and the rest, but ministers and servants unto it, brevia remediana are only by the Common-law, mandatoria, may be in the said other cases, 7. Co. Calvins' case Dy. 176.  
So that the answer as to the words (in the general) is short and aught to be positive.  
As to the courts of equity they have been ancient in England, and the Courts of eqnity here, aught to be guided by the constant proceedings in England in ages past, I mean not, by this or that Chancellor but by that natural and just equity in the Courts here observed. This equity is of absolute necessity in many cases (ipsae etenim leges capiunt ut jure regantur) and therefore is included within the law of the Land, and not to be divided from it, as out of this writing it may be inferred.  
As to the case of killing in rebellion to operate an attainder, if this be no law in England it cannot be law here, vide Dame-hales case come. 263. a. 8. Edw. 3. 20. fitz Dower 106. crompton's jurisdiction fol. 84. a. by which it may be urged, that it is an attainder for that he prevented the judgement of law by fighting against the crown, and by his killing therein, which ensued his unlawful and traitorous act, but I observe to the contrary, the books of 7. Henr. 4. 32 b. & Cook. 4. 57 Saddler's case. I do confess that in England statutes may be obsolete as the statute of William Butler, by which the heir may have an action of wast, rastal 5. 21. all the books are contrary, and so is the statute of Merton of disparagement as to an action to be brought for the same, so are some antiquated laws, 40. Edw. 3. 42. 42. ass. 8. & 25. one present & aiding to murder was accessary, but now is principal 4. Hen. 7. 18. Com. 99 & 100 a Vicar could not anciently have an action against a Parson, 40. Edw. 3. 28. Finchden the law is now otherwise, and so of an entry upon a feoffee with warranty sit fol. 23. 24. in the case of disparagement, give the reason, because that those statutes and laws were never used, therefore obsolete, our case is nothing like, for life, liberty, and property being in debate, but an obsolete law is no law in force. Therefore the answer as to that is defective.  
As to the case of a felon upon his keeping and terrifying of the people, I conceive the answer is uncertain and dangerous, if such a felon raise an armed power against the crown and terrify that way no doubt this is treason within the statute of 25. Edw. 3. or the equity of it, and by the statute of 10. Hen. 7. cap. 13. in Ireland, statuto Hiberniae fol. 62. but if such terrifying be without raising arms, or by committing the same or the like felonies, it is no more than the case of purse-takers by force in the high ways of England, many a man was terrified thereby in salisbury-plain, and yet no treason; and if there be no statute here, which is not in England, to make it treason certainly it cannot be treason; since the Conquest, writ of error have been brought for to reverse judgements given in the King's Bench here, in the Court of King's Bench in England, no course here which is contrary to law, can alter the law of England, therefore, to what purpose is a declaration of judges here, contrary to the law there. This writ of error is a writ framed in the Register and appears by common experience. I will offer a notable case which I saw adjudged in the King's Bench in England, Pasc. 18. Jacobi for Stafford against Stafford in a writ of error for to reverse a judgement given in the King's Bench in Ireland when Sir William Jones was chief justice here, in an ejectione firm, for that in the declaration there was contained among other things ducentas acras Montani. Sir William Jones being in England, affirmed the course here, to have been so, and vouched many notable precedents, thereupon an order was conceived that Sir James Ley, Sir Humphrey Winch, and Sir John Denham knights, who were formerly chief justices here should certify the course, who made report that the course in Ireland was and ought to be, in writs original and judicial to be directed by the Register, in pleading to be guided by the books of entries, and thereupon the judgement was reversed, And the chief justice Montague said, that if they did not proceed in Ireland according to law, they should learn it, And so I conclude that the answer to the first Question, is insufficient.  
As touching the second Question, 
2. Quest.  which is concerning the Oath which this judges do take, the question is whether the judges of the land do take the Oath of judges? And if so, &c.  
The answer of the judges to the first part is, 
2. Answer.  that they confess they take the Oath of judges, which is specified amongst the statutes in 1●. Edw. 3. and 20. Edward. 3 as I said before, and that they may not stay, hinder, or delay the suit of any subject or his judgement or execution there upon, otherwise then according to the law and course of the Court, where they sit under pretence of any act of state, proclamation, writ, letter, or direction under the great seal, or privy seal, or privy Signet, or Letter, or other commandment from the Lord Lieutenant, Lord Deputy justice, justices or other, chief Governor of this kingdom, most of which doth appear by their Oath expressed, expressed in the said statutes, and the statute of 2. Edw. 3. c. 8. and the statute of 20. Edw. 3. as to the Barons of the Exchequer, and as they know no punishments due to the judges for their deviations and transgressions without other aggravation, so they know no punishment laid down by any law against them for their deviations and transgressions, in hindering, staying, or delaying of justice, contrary to their said Oath other then what is declared in their said Oath, and the statute of 20. Edw. 3.  
I conceive the answer is not a full and perfect answer to the Question. For where the Question is whether the judges under pretext of any act of state, proclamation, writ, Letter or direction under the great, or privy seal, or privy Signet, or Letter, or other commandment from the Lord Lieutenant, Lord deputy, justice, or justices, or other chief Governor or Governors of this kingdom, they may hinder, stay, or delay the suit of any subject, or his judgement, or execution thereupon; if so, in what cases, and whether, if they do hinder, stay, or delay such suit, judgement, or execution thereupon, what punishment do they incur for their deviations and transgressions therein.  
To this they answer, that they may not stay, hinder, or delay the suit of any subject, or his judgement, or execution thereupon otherwise then according to the law, & course of the Court, where they sit, under pretence of any act of state, proclamation, writ, letter, or direction, under the great or privy seal, or privy signet, or letter, or other commandment from the Lord Lieutenant, Lord Deputy, justice, or justices, or other chief Governor, or Governors of this kingdom, whereas they ought to have expressed the particular of this exception, for by that clause, it is supposed, or may be strongly employed, that in some cases they may hinder, stay, or delay the suit of any subject, or his judgement, or execution thereupon, under pretext of any act of state, proclamation, letter, or direction under the great or privy seal, or privy signet, or other commandment from the Lord Lieutenant, Lord Deputy, justice, justices, or other chief governor, or governors of this kingdom, which they ought to have expressly laid down, the question being if they may stay, hinder, or delay the suit of any subject upon any such pretext, then to set forth in what Cases, which ought to be particularly answered unto.  
In the next place the Question is, if they do stay, hinder, or delay such suit, judgement, or execution thereupon, then to set forth what punishment they do incur for their deviation, or transgression therein.  
Unto this they answer, they know no punishment due to the judges for their deviation, and transgressions without other aggravation,  
This I conceive is an implication, that there is a punishment where there is matter of aggravation, and therefore it ought to be expressed what matter of aggravation they intend the same to be.  
They further say, they know no punishment: laid down by any law against them, for their deviations or transgressions in hindering, staying or delaying of justice contrary to their Oath, other than what is declared in their said Oath, and the statute of ●0. Edw. 3.  
This I conceive not to be a full answer, in respect the punishment laid down in that Oath, is in a generality; viz. that the judges so offending contrary to their Oath, are to be at the Kings will of body lands and goods, which they should declare, and express how far that punishment extendeth in their bodies, lands, and goods.  
Whether imprisonment of their bodies, or in their lives, and whether in forfeiture of their lands goods, or how else?  
The breach of an Oath is a very high offence, and the higher it is, that the matter it doth concern is the greater, and therefore it is much, secundum subjectam materiam.  
It is to be considered to whom the oath of a judge is made, and what matter it doth concern.  
To the first the Oath is made to GOD, the King and to the commonwealth.  
For the matter, it is concerning the true and equal administration and distribution of justice to the people.  
If the judge do offend contrary to his Oath, he commits breach of the trust reposed in him by the King, besides the violation of his Oath. Look upon trust between Common persons. A man makes a Lease for years, the Lessee makes a scoffment, this is a forfeiture of his estate by the Common-law, 
5. Ed. 4. 2.  by reason of the breach of trust. Lessee for life in an action brought against him prays in aid of a stranger: this is a forfeiture of his estate.  
A quid Iuris clamat brought against Lessee for life, 
36. Hen. 6. 29.  he claims a fee, which is found against him, this is a forfeiture of his estate. So much for breach of trust.  
To come unto a false verdict given by a jury, 
14. Hen. 7. 13.  which is a breach of their Oath, they being sworn ad veritatem dicendam. For this false verdict an attaint lieth at Common law against the petit jury.  
The judgement at the Common-law in an attaint importeth eight grievous punishments. 1. Quod amittat liberam legem in perpetuum. 2. quod forisfaciat omnia bona & Catalla sua, 3. quod terrae & tenementa in manus Domini Regis capiantur, 4. quod uxores & liberi extradomus suas eijoiantur, 5. quod domus suae prostrentur, 6. quod arbores suae extirpentur, 7. quod prata sua arentur, 8 & quod corpora sua Carceri mancipentur. So odious is perjury in the eye of the Common-law. It followeth therefore that the breach of the Oath of a judge, materia considerata, in regard it tends to the subversion of justice, is an offence of an higher nature deserving a far greater punishment in his body, lands, and goods, as I conceive.  
This question is very short and as plain, 
3. quest.  it is no more than whether the council-table be a judicatory, 
3. answ.  in civil causes between subject and subject for lands, goods, or Chattels, and by what law. The answer is wholly ad aliud. But it is answered fully by the great Charter capit. 11. 9 Henr. 3. Communia placita non sequantur Curiam nostram, Common-pleas, which are the pleas in question shall not follow the King's Court, again cap. 29. No Freeman shall be taken, imprisoned, put off his freehold, liberties & free customs, &c. other then by the lawful judgement of his peers, as by the law of the land.  
This great assurance in the 38. Chap. of the same statute was granted for the King and his successors to all his people, and was confirmed in thirty Parliaments as I said before Cook. 8. the Prince's Case. by the statute of 5. Edw. 3. cap. 9 25. Edw. 3. Cap. 4. 28. Edw. ●; cap. ●. 42. Edw. 3. cap. 1 & ●.  
The great Charter is again confirmed, and not only so but proceedings contrary to the same, before the King or his counsel are declared void. The King is to observe and maintain the law, the judge by his Oath, 18. Edward. ●. is bound to do right between the King and his people, and that right strengthens the King's prerogative, precedents or practise contrary to so many statutes are of no use, in many ages past encroachments were made upon these just liberties, which were always removed by Parliaments. Yet I must confess that of all antiquity some pleas have been held in the King's royal house, as in the Court held by the marshal of the King's household for things arising within the Verge, Fleta, lib. 2. cap. 2. but when that Court exceeds its due bounds, declaratory statutes were always made to meet them as mischiefs in the commonwealth, when they meddled with land or the like, as appears by the statute of Articule super Chartam 28. Edw. 1. 15. R. 2. cap. 12. all these statutes My Lords, and many more to this purpose are undeniably of force in this kingdom, and none of them can be with impunity said to be obsolete or antiquated.  
My Lords, they raise another doubt, viz that as the King may grant cognizance of pleas to Corporations, or the like, and therefore to the council-table; if this need an answer, I will answer it thus, that a grant of cognizance never was, neither can it be otherwise, then to proceed per legem terrae, or per judicium parium, & in the same manner as Courts do proceed at Common-law, and not upon paper petitions, or summary hearings such cognizance was never granted, the King is at loss by such proceedings, he loseth fines upon originals, he loseth amerciaments, and fines incident to every judgement at Common-law, as I said before, I he subject undergoeth an inconvenience. First the law will decline, writs original will by disuse be forgotten, Clerks who should draw them discouraged to learn, legal proceedings out of doors being the foundation of the law, and in stead of regular and orderly proceeding, rudeness and barbarism introduced, the subject will lose the benefit of his attaint and writ of error; by which the law might relieve him against false verdicts or erroneous judgements he will lose the benefit of his warranty, which might repair a purchaser, in case his acquired purchase were not good. Whereas if a judge or juror do wrong, the remedy is at hand, but against the Lord Deputy and council, who will seek for it? therefore the countenance of this judicature in Common-pleas, is against the King's prerogative, and the people's just rights: both which the judges ought to maintain, and likewise against the intent of your lordship's order.  
My Lords, as in England, the said several statutes were made to prevent the inconveniences aforesaid, one good statute was made in Ireland, 28. Henr. 6. cap. 2. Irish statut. fol. 15. which directs matters of Interest to be determined in the Common-pleas, matters of the crown in the Kings-bench, matters of equity in the Chancery: This law, if there were no more, regulates the proceedings in this kingdom.  
The judges insist upon the words in the end of that statute, viz. Saving the King's prerogative. My Lords, this was stood upon at the late great trial in England, and easily answered, for by the Common-law, the King may by his prerogative, sue in any of the four Courts, for his particular interest, although it be contrary to the nature of that Court, for he may sue à Quare impedit in the King's Bench, & the like, yet so as the said suit be bounded by the rules of law, I will demand a question whether the King may bring à Quare impedit in paper, 
Sir Thomas Tempest Knight.  at the council-board, the Kings now attorney, I am confident will answer me, he cannot▪  
The word salvo or saving is in construction of law of a thing in esse or existente, and no creative word, 26. Ass. pla. 66. and cannot in the King's Case be construed to overthrow the law, nor many express, and positive acts of Parliament.  
My Lords, in all humbleness and duty I will and must acknowledge his majesty's Sacred and lawful prerogative, whereof the King himself is the best expositor, in his answer to the Petition of right, Poltons' stat. fol. 1433. he declares that his prerogative is to defend the people's liberty, and the people's liberty strenghtens the King's prerogative, the answer was a Kingly answer, and (More ●ajorum) this is conformable to the great Charter, and to all the statutes before recited. The government of England being the best in the world, was not only royal, but also politic, some other princes like Cain, Nemrod, Esau, and the like hunters of men, subverted laws; The Kings of England maintained them, and did never assume the power to change or alter the laws, as appears by Fortescue that grave and learned Lord Chancellor in King Henry the sixt's time de laudibus legum Angliae cap. 9 fol. 25. and in the same book cap. 36. fol. 84. nor to take his people's goods, nor to lay tax, nor tallage upon them, other than by their free consent in Parliament, this appears by the book Cases in 1●. Henr. 4. fol. 14. 15. 16. the great case of the Awlnage of London, and in the Case of toll-travers and toll-through 14. Henr. 4. 9 37. Henr. 6. 27. 8. Henr. 6. 19 all agreeing, nor to alter the nature of land as by converting land at Common-law to Gavelkind, or borough English or e conuerso; as to the estate, otherwise as to the person of the King Ple. Com. the Lord Barclyes Case fol. 246. 247. Yet it is most true that the law of the land gives the King many natural and great prerogatives, far beyond all other men, as may appear in the said Case fol. 243. but not to do wrong to any subject, Com. 246. The person of the King is too sacred to do a wrong in the intention of Law; if any wrongs be done his minister● are Authors and not the King; And the King's just prerogatives, by the King's royal assent in Parliament were bounded, limited and qualified, by several Acts of Parliament, as if Tenant in cap. did alien at Common-law without licence, this was a forfeiture of his estate Plo: Com. case of mines fol. 332. the statutes of 2. Edw. 3. cap▪ 14. makes this only finable, & the statute of Magna Charta cap. 21. takes away the King's prerogative, for cutting woods where he pleased: many other cases there are upon this learning.  
By this great justice and bounty of the Kings of England, the Kings grew still greater and more permanent.  
The people became free and wealthy, no King so great as a King of rich & free people. If the council-table may retain cognizance of causes contrary to the Law, & to so many Acts of Parliament, why may they not avoid all Acts of Parliament as well? This no man will affirm, nor they intend.  
My Lords, 
1. object.  two objections seem to stand in my way. First, the multitude of precedents countenancing the cognizance of the council-board in the matter aforesaid, some in ancient times, and of late in great clusters & throngs. 
2. object.  Secondly, that in book Cases it appears, the judges of Law did take advice in their judgements with the King's counsel, as 40 Ed. 3. fol. 34. 39 Ass. placito primo 35. Edw. 3. fol. 35. 19 Edw. 3. fitz. Judgement. 174.  
In answer to the first, 
1. Resp.  as for the multitude of precedents (hinc illae lachrymae) there is our grief, I find in our books that precedents against Law, do never bind, there is no down right mischief. But a precedent may be called upon, to bear it up; judicandum est legibus non exemplis, Cook, 4. fol. 33. Mit●ons case Cook 11. fol. 75. Magdalen colleges case Cook. 4. fol. 94. Slade's case, multitudo errantium non parit errori patrocinium.  
I answer to the second that in those year books of Edw. 3. It is true, 
2. Resp. ad 2. Object.  that the judges appealed to the King's council for advice in law, but who gave the judgement? the judges, and what judgement? a legal judgement, and no paper or arbitrary judgement.  
If this objection were material, I might answer further, that the council here may be understood, the great council (viz.) the Parliament (propter excellentiam) vide Cook, 6. 19 20. Gregory's case. By the stat. of 4. Edw. cap. 3. 14. and 36. Edw. 3. c. 10. rastal, fol. 316. Parliaments were then to be held once a year, the book of 39 Edw. 3. fol. 35. in the case of a formedon; may well warrant this explanation of those books, the Bishops, Abbots, Earls and Barons mentioned in the said books, may be well taken to be the Lord's house, which might sit by adjournements in those times of frequent Parliaments, My Lords, I kept you too long upon this Question, I will be as short in the next. And so I conclude the answer as to this point is no answer, and whether the matters therein comprised be of dangerous consequence I submit to your Lordships.  
If the chief Governor and council of this kingdom cannot hear or determine the causes aforesaid, 
4. Quest.  surely the chief Governor alone cannot do it, 
4 Answer  all I have said to the third I do apply to this Question, together with one precedent worthy your observation in 25. Edw. 1. Claus. m. 20. where I have an authentic copy (viz.) 
Archiv. Turris Londin.   

Claus. vicessimo quinto Eaw primi m. 20. 
De comunibus placitis per billas coram justiciariis Hiberniae nequaquam terminandis.   
Rex dilecto & fideli suo johanni Wogan. Justiciario suo Hiberniae salutem; cum intellexerimus quod vos comunia placita quae totis temporibus retroactis, per brevia originalia de Cancellaria nostra Hiberniae placitari, deberent, & consueverunt, per billas & petitiones vacuas jam de novo coram vobis deduci facitis, & etiam terminari, per quod, feodum sigilli nostri quo utimur in Hibernia, & fines pro brevibus dandis ad alia commoda quae nobis inde solent accrescere di versimode subtrabuntur, in nostri & incolarum partium, illarum, damnum non modicum, & gravamen. nolentes igitur hujusmodi novitates fieri per quas nobis damna gravia, poterunt evenire, vobis mandamus quod si ita est, tunc aliqua placita comunia, quae per brevia originalia de Cancellaria nostra praedict● de jure & consuetudine, hucusque visitata habent terminari per petitiones & billas coram vobis deduci, placitari, aut terminari de caetero nullatenus praesumatis, per quod vobis imputari debeat aut possit novum, incommodum, in hac parte.  
Teste Rege apud Shestoniam, twenty-three. die Martij.  
Convenit cum Recorda,  
William Collet.   
Your Lordships, may see that in Edward the first's time the King took notice, First, that the said petitions were void. Secondly, that his revenues were thereby impaired. Thirdly, that it was against the custom of the land of Ireland. Fourthly, that it was to the grievance of the people of Ireland. Fifthly, he commanded John Wogan, then chief Governor, not to presume to deal in the like proceedings thereafter; I marvel not a little, wherefore the judges in our time after so many acts of Parliament since 25. Edw. 1. should make any doubt or question to answer this clearly.  
My Lords, 
5. Quest.  I humbly desire not to be misconstrued in the debate of this Question, 
5. Answer  my meaning is not to pry into his majesty's just prerogatives. Qui enim majestatem scrutatur Principis, corruet spelndore ejus, the old saying in English is as good, he that hews a block above his head, the chips will fall into his eyes. The Question warrants no such scrutiny, I may not officiously search into it. The Question is only, whether grants made of monopolies to a subject be good in law, And whether by pretext of such grants the King's free people may lose their goods by seizures, or may be fined, imprisoned, pillored, & papered, &c. Those things have been done and acted in many cases, where the Monopolites were judges and parties, in which case if an act of Parliament did erect such a judicatory, it were void, as against natural justice, Cook 8. 118. a Doctor Bonham's case; I speak to that thing, that odious thing, monopoly, which in law is detestable cook 11. 53. b. the tailors of Ipswitch case, by which any subject is hindered to exercise his lawful trade, or lawfully to acquire his living, and the Condition of a bond being to restrain any man from his trade, the bond is void in law, 2 Hen. 5. 5. b.  
In this case the judge Hull swore (par Dieu) if he who took this bond, were present he would fine him to the King, and commit him to prison, by which case I observe, that the consent of the party cannot make it good; That a Patent of any such Monopolies is a grievance against the Common wealth, and consequently void in law, the case was of Cards which is observable Cook 11. 85. 86. 87 &c. & Darcy & Allen's Case There is a Condition tacite or express in every grant of the Kings, Ita quod patriamagis solito non gravetur vel oneretur, vid. Fitz. N. br. fol. 222. Cod. ad quod damnum. This learning is so clear as to Monopolies thus stated, that I will dwell no longer upon them, as I hope they may no longer reside among us. The answer is insufficient; as in the case of a new invention of manufactory or the like; in such cases a Patent may be good they say for certain years, whereas the years ought to be competent, ten thousand years are certain, but not competent, and they who offend are to give damage in an ordinary Court of justice to the Patentee, unto which they add (or otherwise) Oh, this arbitrary word) the like arbitrary advice of others (I fear) hath occasioned this Question. Where Monopolies were clearly void, punishments were inflicted upon. The honest man, and the Monopolist escaped, they answer nothing to the loss of goods, heavy fines, mutilation of members, the before recited statutes direct clear answers to these particulars.  
My Lords, the statute of Magna Charta cap. 30. (quod omnes Mercatores tam indigenae quam alienigenae) have free passage sine omnibus malis tolnetis, & consuetudinibus ex Anglia & in Anglia, nisiantea publicè prohibiti fuerunt, the subsequent statutes declaring many oppressions and grievances occasioned by restraints in trade and Commerce made trade free for victual and merchandises, and in them Nisi, &c. is omitted as the statute of 9 Edw. 3. c. 1. 25. Edw. 3. cap. 2. 2. Rich. 2. cap. 1. 11. Rich. 2. cap. 7. 16. Rich. 2. cap. 1. these statutes give double damage to the party and the offender to be imprisoned.  
The statute of 21. Jacob, c. 3. in England, against Monopolies, in the exception of new inventions limits the time to a reasonable number of years, viz. fourteen years or under, whether the heavy punishments aforesaid, can be in this case especially the private interest of a subject being therein only or mainly concerned, Magna Charta cap. 29. gives me a clear answer and satisfactory; Nullus liber homo capiatur, imprisonetur, disseifietur vel aliquo modo destruatur, &c. nisi per judicium parium & legem terrae, if this be law or a lawful statute as no doubt it is, the question is soon answered.  
My Lords, by this time you know, how the Innocent was actually punished, in these cases; Now it is time, and not improper to show how the Nocent aught to be punished, who took unlawful Monopolies, & seized the subjects goods by violence, imprisoned, fined, mutilated, and destroyed the King's people, and caused all the evils that depended thereupon; For that, my Lords, it is not within my charge, yet I hope it shall not remain unrepresented by the house of Commons, nor unremembered by your Lordships in due time.  
To this the judges answered nothing, 
6. Quest.  but with a reference to their answer to the third, 
6. Answer▪  whereas in truth this comprehends two matters besides of great weight and consideration, first whereas the third question concerneth the decision at council-board of matters of interest only, This question is of matters of punishment, in an extrajudicial way, secondly this question demands knowledge of the punishment due to such as vote for such extrajudicial punishments, to these main matters there is no answer at all.  
My Lords, the statutes and authorities before mentioned upon the third and fourth questions against the determination at council-board, or before the chief Governor in matters of interest, do clear this business, as to the punishments depending upon those interests, although not è converso. And as for such as voted, and acted therein if they besworne judges of the law, the before recited Oath of 18. Edw. 3. declares enough.  
His Majesty at his Coronation is bound by Oath to execute justice to his people according to the laws, this great trust the King commits to his judges, who take a great Oath to discharge this trust, if they fail therein. Sir William Thorp in Edward the 3. time for breaking this oath in poor things, was indicted thus. Quia praedictus willielmus Thorp habuit Sacramentum Domini Regis erga populum suum, ad custodiendum, illud fregit malitiosè, falsé & rebellitèr, quantum in ipso fuit, this extends to a judge only who took that Oath, & habuit leges terrae ad custodiendum.  
The trust between the King and his people is threefold; First as between sovereign and Subject, Secondly, as between a Father and his Children, under Pater Patriae; Thirdly, as between Husband and Wife, this trust is comprehensive of the whole body politic, And for any Magistrate or private person to advise, or contrive the breach of this trust in any part, is of all things in this world the most dangerous (vae homini illi.)  
First, 
7. Quest.  I do conceive that an act of state or Proclamation cannot alter the Common-law, 
7. Answer▪  nor restrain the old, nor introduce a new law, and that the same hath no power, or force to bind the goods lands, possessions, or inheritance of the subject, but that the infringing thereof is only a contempt, which may be punished in the person of the delinquent, where the Proclamation is consonant, and agreeable to the laws, and statutes of the kingdom, or for the public good, and not against law, and not otherwise punishable.  
I do conceive, that a Proclamation is a branch of the King's prerogative, and that the same is useful and necessary in some cases, where it is not against the law, wherein the public weal is interested, or concerned, but that any clause therein, containing forfeiture of the goods, lands, or inheritance of the subjects, is merely void; for otherwise this inconvenience will ensue, That Proclamations or acts of state, may be made in all cases, and in all matters to bind the liberty, goods, and lands of the subjects; and than the Courts of justice that have flourished for so many ages may be shut up, for want of use of the law, or execution thereof, and there is no case where an offence is committed against law, but the law will find out away to punish the delinquent.  
The King by his proclamation, 
Natura Br. fol. 85. in se brief de securitate inveniend. quod non se divertat ad partes extras pars extra cannot be intended the King's dominions.  may inhibit his subject that he shall not go beyond Sea out of this realm without his licence, and this without any writ, or other commandment to his subject. for perchance the King may not find his subject, or know where he is, And if the subject will go out of the King's realms contrary to this proclamation, this is a contempt, and he shall be fined to the King for the same, as saith Fitz-Herbert, that such a proclamation can prohibit the King's subjects to repair into England, for England is our Mother, and though the Sea divide us, that Sea is the Kings, and therefore it is not pars extra in this sense.  
It seems by the Lord chancellor Egertons argument upon the case of post nati, 
Fol. 12. & 13.  that a proclamation cannot bind the goods, lands, or inheritance of the subjects.  
A provision was made in haec verba, 
Natura Br. 32.  Promissum est coram Domino Rege Archiepiscopus, 
19 Hen. 3. fitz Her. Darien presentment 23.  Comitibus, & Baronibus quod nulla assis ultimae praesentationis de caetero capiatur de Ecclesiasticis praebendatis, nec de praebendis, but I do not find any forfeiture or penalty upon the liberty, goods, or lands of him that would bring an assize of Daren, presentment for a prebendary.  
I do find that a provision was made in haec verba Promissum est à Consilio Regis quod nullus de potestate Regis Franciae respondeat in Anglia antequam Anglici de jure suo in terra Regis Franciae, 
●. Hen. 3. fitz Her. Dower. 179.  &c. Yet by that provision no forfeiture upon the lands, or goods of him who sued a Frenchman in England at that time.  
It is true that a custom may be contrary to the law, 
35. Henr. 6, 26.  and yet allowable, because that it may have a lawful commencement, and continual usage hath given it the force of a law, Consuetudo ex certa rationabili causa usitata private communem legem, but no proclamation or act of state may alter law.  
For example sake, at Common-law a Proclamation cannot make lands devisable, which are not devisable by the law, nor alter the course of descent.  
The King by his Letters-patents cannot do the same, 
37. Hen. 6. 17. 49.  nor grant lands to be ancient demesne at this day, 
Edw. 3. 4.  nor make lands to be descendible according the course of Gavelkind or borough English, unless that the custom of the place doth warrant the same, nor Gavelkind land to be descendible according the course of law, à fortiori an act of state, or proclamation, which I hold to be of less force than the King's patent under the great seal cannot do it.  
And in the case of Irish Gavelkind, it is not the proclamation, or act of state, that did abolish, or alter it, but the very custom was held to be unreasonable and repugnant to law.  
If an act of state be made, 
11. Co. 86.  that none within the kingdom shall make Cards but John at style, this act is void, for the King himself, cannot grant a Patent under his great seal, to any one man for the sole feazance of Cards; So it is of all proclamations or acts of state, that are to the prejudice of traffic, trade or Merchant affairs, or for raising of Monopolies, or against the freedom and liberty of the subjects, or the public good, as I said before.  
Also if proclamations, or acts of state may alter the law, or bind the liberty, goods, or lands of the subjects, then will acts of Parliaments be to no purpose, which do represent the whole body of the kingdom, and are commonly for creating of good and wholesome laws.  
Therefore I conceive, that all proclamations made against law, are absolutely void, and that the infringers thereof ought not to lose, or forfeit their liberty, goods, or lands.  
And for the punishment of such judges that vote herein, I refer to the sixt, they deny to answer to this question.  
This answer is general and dangerous withal, 
8. Quest.  it is general, 
8. Answer▪  viz. they know no ordinary rule of law for it, they ought to declare the law against it, the right use of it here they commend, and yet they do not describe that right use, therefore they commend two things, the one the life of a subject to be left to martial law in time of peace, the other they leave it likewise discretionary when they describe not the right use, their last resort is to the King's prerogative.  
I have said before, that Lawyers write the King can do no wrong, and sure I am our King means no wrong, the Kings of England did never make use of their prerogative to the destruction of the subject, nor to take away his life nor liberty, but by lawful means. I conceive this advice should become the judges, other advise they find not in their law books; The statute of Magna Charta cap. 29. and 5. Edw. 3. cap. 9 the petition of right, the third of King Charles in full Parliament declared, Tell them, nay do convince them, that no man in time of peace can be executed by martial law. 
9 Quest. 9 Answer   
My Lords, I could wish the judges had timely stood in the right opposition to the drawing of causes proper for the King's Courts to an aliud examen, the improper and unlawful examen thereof on paper petitions, whereby the King's justice, and Courts were most defrauded, whereas an arbitrement being a principal mean to compose differences arising between neighbours, and to settle amity between them, without expense, of time or money was a course approved by law, all our books are full of this.  
It is by consent of parties by arbitrators indifferently chosen, bonds for performance thereof are not void in law, and judgements given upon arbitrements, and such bonds in our books without question or contradiction to the lawfulness of an arbitrement or bond in proper Cases, the principal good wrought by them, was the hindering of suits, & debates at law, therefore that exception falls of itself, than I am to consider, how far an Oath in the particular is punishable, I will not speak of an Oath exacted, or tendered, that is not the question, the question is of a voluntary Oath, which the arbitrator cannot hinder, I speak not to the commendation of any such Oath, nor do I approve of any Oath, other than that which is taken before a Magistrate, who derives his authority from the King, the fountain of justice, but only how far this Oath is punishable by the late statute, 10. Caroli fol. 109. a profane Oath is punished by the payment of twelve pence, & no more, vide stat. of: Marl. cap 23. 52. Hen. 3. viz. Nullus de caetero possit distringere liber' tenentes suos &c. nec jurare faciat libere tenentes suos contra voluntatem suam, quia nullus facere potest sine praecepto Domini Regis, which statute teacheth us, that an exacted or compulsive Oath, is by the King's authority, a voluntary Oath is not reprehended, 19 Edw. 4. 1. a. It was not reprehended in the case of an arbitrement, this voluntary Oath is punishable in the Star-chamber, as the judges would affirm, which I conceive to be against the law: First, for that we cannot learn any precedent in England for it, It was but lately introduced here, therefore the house of Commons is unsatisfied with the answer to this question, in Boyton and Leonar's case in the Star-chamber in Ireland, Boyton was dismissed in a Case to this purpose about the year 1630. or 1631.  
It hath been the late introduced course of the Castle-chamber, 
10. Quest.  and council-table not to admit the party censured to the reducement of his fine, 
10. Answ.  before he acknowledged the justness of the sentence pronounced against him, and that for divers reasons, First, the course of a Court being as ancient, as the Court, and standing with law is Curiae lex, as appeareth by our books, 2. Co. 16. b. Lanes case 17. Long 5. Edw. 4. 1. but if it be a course introduced de novo in man's memory, or a course that is against law, it cannot be said to be lex Curiae, for consuetudo licet sit magnae authoritatis nunquam tamen praejudicat manifestae veritati.  
Let us therefore examine the course alleged here, in both those points, and if it be found to fail in either of them it is to be rejected.  
As to the first, I cannot find or read any precedent of it until of late, and the usage of it for a few years cannot make it to be cursus Curiae which ought to be a custom used time beyond the memory of man.  
As to the second, it is confessed by the judges, that they know no law to warrant this course, let us see then whether it be against law, or standeth with the law, and I conceive it is against law for divers reasons.  
First, by the Common-law, if a judgement be given against a man after a verdict of twelve men, which is the chief and clear proof which the law looketh upon, or upon a demurrer after solemn argument he shall in the one case have an attainte against the jury, & in the other a writ of error to reverse the judgement; but in this case by the confession of the justness of the sentence all the means to reverse the sentence is taken away, and therefore contrary to law, and reason. Whereas by the Common-law, fines ought to be moderate secundum quantitatem delicti in reformationem & non in destructionem, of late times, the fines have been so high in destruction of the party in the Castle-chamber, as his whole family and himself, if he did pay the fine should be driven to beg, and without performance of the sentence he could not be admitted to reverse the sentence, in respect of all which, howbeit in his conscience he is not guilty, yet to gain his liberty, and save part of his estate, he is necessitated to acknowledge the justness of the sentence, so that the confession is extorted from him, and consequently is against law.  
Third reason if the fine were secundum quantitatem delicti, as it ought to be without danger of destruction, the reducement of the fine had not been so necessary: and therefore no just ground for this confession.  
Lastly, the confession of the party after sentence doth rather blemish the sentence then any way clear it, for the confession coming after the sentence, which ought to be just in itself can add nothing to it but draw suspicion upon it, and in that respect a confession is strained, the rack used by the course of the civil law in criminal causes, to clear the conscience of the judge to proceed to sentence, is intolerable in our Common-law.  
And therefore this course being an innovation against law, & without any reasonable ground; the said judges ought in their said answer to declare so much, to the end a course might be taken for abolishing the same.  
This answer I will not now draw into question, 
11. Quest.  I could wish the rest were answered no worse. 
11. Answ.   
What power have the Barons of the Court of Exchequer to raise the respite of homage arbitrarily, 
12. Quest.  &c. 
12. Answ.   
Unto this they answer, that until the King's Tenant by knight's service in capite hath done his homage, the ancient course of the Exchequer hath been, and still is, to issue process, to distrain the tenants ad faciendum homagium, or ad faciendum finem pro homagio suo respectuando, upon which process the sheriff returns issues, and if the tenant do not appear, and compound with the King to give a fine for respite of homage, than the issues are forfeited to the King. But if the King's tenant will appear, the Court of the Exchequer doth agree with him to respite his homage for a small fine.  
They say further, 
Vide 5.  that it resteth in the discretion of the Court by the rule of the Common-law to lay down a fine for respite of homage, 
Henr. 7. 9 a. prescription to impound Cattle until amends be done according to his will, not good.  according to the yearly value of the said lands, which I conceive to be very unreasonable and inconvenient, that it should lie in the power of any to assess a fine for respite of homage, such as to him shall be thought meet in discretion, for if so he may raise the fine to such a sum, as may exceed the very value of the lands. Neither hath the same been the ancient course, for it appears by several ancient Records, and by an Order of the Court of Exchequer made Termino pascae 1607. that there should be paid for respiting of homage for every township xx. d. Irish, and for every manor xxxx. d. Irish, and that such as hold several houses, acres, or parcels of land, which are not manors, nor township shall pay for every hundred and twenty Acres of Land, Meadow, and pasture, or of any of them xx. d. Irish, and no more, and according to that rate, and proportion if a greater, or lesser number of Acres, and for every house without ground iiij. d. Irish, 
This appears by several Records in Hen. 6. & Hen. 7▪ time in the second Remembrancers Office in Ireland. 24. Hen. 8▪ B Fealty▪ & homage 8.  and of Cottages, or farm houses which be upon the Lands, no fine to be paid for them solely alone.  
And I conceive where a man holdeth several parcels of land of the King by several homages, that in such case he is to pay but for one respite of homage only and no more, for that a man is to do homage but once, and consequently to pay for one respite of homage only.  
The late course in the Exchequer here hath been contrary, whereas in their answer they go in the Exchequer, according to the statute of primo Iacobi cap. 26. in England, under their favour they go clear contrary, for that statute was made in confirmation, and pursuance of former Orders in the Exchequer: Whereas the Barons here go directly contrary to the ancient course and Order of the Exchequer in this kingdom, more of this in my reason or ground for this question. So I conclude their answer to this is short.  
My Lords, 
13. Quest.  the question contains two points, First, 
13. Answ.  whether the subject of this kingdom is censurable for to repair into England, to appeal to his Majesty for redress of injuries, or for his lawful occasions; Secondly why, what condition of persons, and by what law?  
The first part of the judges their answer is positive and full, viz. They know no law or statute for such censure (nor I neither) and could wish they had stayed there. In the second part of their answer, they come with an if, viz. unless they be prohibited by his majesty's writ, proclamation, or command, and make mention of the statute of 5. Rich. 2. cap. 2. in England, and 25. Henr. 6. cap. 2. in Ireland, I will only speak to the second part of this answer.  
My Lords, the house of Commons in the discussion of this point took two things into consideration, First what the Common-law was in such cases; Secondly, what alteration was made of the Common-law by the statute of 5. Rich. 2. cap. 2. in England, and 25. Henr. 6. cap. 2. in Ireland, as to the subjects of Ireland. As for the first the Register hath a writ framed in the point, viz. the writ De securitate in venienda quod se non divertat ad partes extras sine licentia Domini Regis, Fitz. Natur. br. fol. 85 the words of this writ clears the Common-law in the point, it begins with a datum est nobis intelligi, &c. The King being informed that such person or persons in particular do intend to go, whether ad partes exteras, viz. foreign Countries, to what purpose, to prosecute matters to the prejudice of the King & his crown, the King in such a case by his writ, warrant, or Command under the great seal, privy seal, privy Signet or by proclamation, may command any subject not to depart the kingdom without the King's licence; this writ is worthy to be observed, for the causes aforesaid therein expressed, the writ extendeth only to particular person or persons, & not to all the subjects of the kingdom, no man can affirm that England is pars extera as to us, Ireland is annexed to the crown of England, and governed by the laws of England: our question set forth the cause, viz. to appeal to the King for justice, or to go to England, for other lawful causes, whereas the said writ intends practices with foreign Princes to the prejudice of the King and his crown; At the Common-law, if a subject in contempt of this Command went ad partes exteras, his Lands, and goods ought to be seized, 2. & 3. Philip. & Mary Dy. 128. b. and yet if the subject went to the parts beyond the Seas before any such special inhibition, this was not punishable before the statute of 5. Rich. 2. cap. 2. as appears, 12. & 13. Elizab. Dy. 296. a. So that before the inhibition, the law was indifferent, now the question is at Common-law, whether the subject of Ireland having no Office, can be hindered to appeal or go to the King for justice: The King is the fountain of justice, and as his power is great to command, so the sceptre of his justice is as great, nay the sceptre hath the priority, if any be, for at his Coronation, his sceptre is on his right side, & his Sword on his left side to his justice he is sworn, therefore if any writ, commandment or proclamation be obtained from him, or published contrary to his justice, it is not the act of the King, but the act of him that misinformed him, then will I add the other words of the question, viz. or other his lawful occasions, as I said before in the case of a writ of error in the King's Bench of England, or in the Parliament of England, which are remedies given by the law, therefore the Common-law doth not hinder any man to prosecute those remedies which are given to every subject by the same A scire facias may be brought by the King in England to repeal a patent under the great seal of Ireland of lands in Ireland, 20. Henr. 6. fol. a.  
An exchange of lands in England for lands in Ireland is a good exchange in law, 8. ass. placit. 27. 10. Edw. 3. fol. 42. tempor. Edw. 1. Fitz voucher 239. What law therefore can prohibit any subject for to attend this scire facias in England, or to make use of his freehold got by exchange.  
The law being thus, than it was considered, what alteration was wrought by one branch of the statute of 5 Rich. 2. cap. 2. by which the passage is stopped out of the kingdom (Lords, notable merchants, and the King's soldiers excepted) I conceive this statute doth not include Ireland, I never heard any Irishman questioned upon this statute for going into England, nor any Englishman for coming into Ireland until the late proclamation by the statute 34. Edw. 3. c. 18. in England, all persons which have their heritage or possessions in Ireland, may come with their beasts, corn, &c. to and fro, paying the King's dues. The statute of 5. Rich. 2. did never intend by implication to avoid the said express statute of Edw. 3. between the Kings two kingdoms, being governed by one law, & in effect the same people, the words of the statute of 5. Rich. 2. are observable, the principal scope of it is against the exportation of Bullion, in the later part there is a clause for licences to be had in particular ports, by which I conceive that the Customers of those ports may grant a let pass in such Cases.  
It is therefore to be considered, whether that branch of the said statute of 5. Rich. 2. was received in Ireland, I think it is clear it was not, for by the statute 10. Henr. 7. cap. 22. in Ireland, all the general statutes of England were received in Ireland with this qualification, viz. such as were for the Common and public weal, &c. And surely it cannot be for the weal of this kingdom, that the subjects here be stayed from obtaining of justice, or following other lawful causes in England.  
The statute of 25. Henr. 6. cap. 2. in Ireland, excuseth absentes by the King's command, and imposeth no other penalty; so that upon the whole matter, this question is not answered.  
For so much as they do answer of this question, 
14 Quest.  the answer is good, 
14. Answ.  for there is no doubt to be made but Deaneries are some donative, some elective, and some may be presentative according to the respective foundations.  
I will only speak of a Dean de facto, if a Deane be made a Bishop and hath a dispensation Decanatus dignitatem in commenda in the retinere, the confirmation of such a Deane is good in law. This was the case of Evans and Acough in the King's Bench in England Ter. 3. Caroli, where Doctor Thornbow Deane of York was made Bishop of Limmericke with a dispensation to hold in the retinere after his patent, and before consecration it was adjudged his confirmation was good; and yet if a Deane be made a Bishop in any part of the world, this is a session, Co. 5. 102. a. Windsor's case, Davis Rep. 42. 43. &c. 
Vide 2. & 3. Phil. & Ma 〈…〉 e 123. b.  The Dean of Fernes his case, & 18. Elizab. Dy. 346. the confirmation of a mere Laicus being Deane is good, though he be after deprived, 10. Eliz. Dy. 273. 12. & 13. Elizab. Dy. 293. although the Dean be after deprived by sentence declaratory, yet his precedent confirmations are good.  
So I conceive that a Dean, who hath stallum in Choro & vocem in Capitulo during all the time of his life, and never questioned, and usually confirmed all Leases without interruption is good; And to question all such acts, 40. 50. 100 years after, is without precedent especially in Ireland, until of late years, and in this kingdom few or no foundations of bishoprics or Deaneries can be found upon any Record, therefore I conceive the judges ought to answer this part of the question.  
My Lords, 
15. Quest.  I know you cannot forget the grounds I laid before for this question, 
15. Answ.  nor the time nor the occasion of the issuing of Quo warrantoes, nor what was done thereupon in the Court of Exchequer.  
Now remaineth to consider of the answer to this positive question, the answer is too general, viz the Parliament is concerned therein, and so are two other Courts of justice, and likewise the King's prerogative is interested therein, wherefore they cannot answer till the matter come in debate and be argued before them.  
The consideration of the Court of Parliament will much conduce to the clearing of this question, Co. preface to the fourth report, the exposition of laws ordinarily belongeth to the judges, but (in maximis difficillimisque causis ad supremum Parliament' Iudicium) Cook preface to the ninth Report, describes that supreme Court in this manner (si vetustatem spectes est antiquissima, si dignitatem, est honoratissima, si jurisdictionem, est capacissima) of this enough, the learning is too manifest, that it is the supreme Court, nay the primitive of all other Courts; to that Court belongs the making, altering or regulating of laws and the correction of all Courts and ministers. Look upon the members of it, 
Co. Inst. 109.  first the King is the head, who is never so great nor so strong, as in Parliament where he sits ensconced with the hearts of his people; the second are all the Lords spiritual & temporal▪ the third the knights, Citizens & Burgesses, these three do represent the whole commonwealth. Look upon the causes for which they are called (Circa ardua & urgentia negotia Regni) look upon the privileges of it, if any member or members servant thereof be questioned, or any thing ordered against him, in any other Court sitting the Parliament, 
Stat. Hib. 3. Edw. 4. cap. 1.  or within forty days before or after, all the proceedings are void by the laws and statutes of this realm, The not clearing of this question is against the King's prerogative, which is never in greater splendour or majesty then in Parliament, and against the whole commonwealth therein concerned as aforesaid, the King hath four counsels, the first is commune concilium, which is this council, secondly Magnum Concilium, which is the council of his Lords; thirdly the privy council for matters of estate; fourthly the judges of his law, Co. institut. 110. a.  
Then by what law or use can the inferior of these four counsels question the first supreme and mother council, I know not, the state of the question considered, which is of boroughs, who anciently and recently sent to the Parliament, by the same law, that one member may be questioned, forty eight members may be questioned as was done in our case in one day, six such days may take away the whole house of Commons, and consequently Parliaments, especially as this case was, for upon the return of the first summons four and twenty Corporations were seized, the learning therefore is new, that it should rest in the discretion of the sheriffs, who might make unfaithful returns, and of three Barons in the Exchequer, who have no infallibility, to overthrow Parliaments, the best Constitutions in the world. Search hath been made in the two books of Entries, in old Natura brevium, and in all the year books that are printed, there is not one precedent that in any time ever so bad, such à Quo-warranto was brought in, Co. entries 527. a à Quo-warranto was brought against Christopher Helden, and others to show cause, why they claimed such a borough, &c. which is nothing to our purpose, the quo-warrantoes in the question, and those which were in the Exchequer, did admit them Borroughs, and yet required them to show cause why they sent Burgesses to the Parliament, this is oppositum in objecto, to admit them Burgesses, and to question their power to send Burgesses, which were formerly, both anciently and recently so admitted in Parliament, Master Littleton, the first book we read clears this question, sectione 164. There are ancient towns called Borroughs, the most ancient towns of England, all Cities were Borroughs in the beginning, and from them come Burgesses to the Parliament, so that in effect if an ancient borough, ergo, they sent Burgesses to the Parliament; all these ancient towns in England, did remain of Record in the Exchequer, 40. ass. plac. 27. In Ireland they do remain of Record in the Parliament rolls, the trial of them is by the Record itself, and not otherwise; If a town send Burgesses once or twice, it is Title enough to send ever after, 11. Henr. 4. 2. So if a peer called once by writ, and once sitting as a peer, Co. institut. fol. 9 b. he is a Baron ever after.  
In the four ordinary Courts they have privilege for the meanest of their members, or servants, why not the Parliament. It was the custom of the ancient grave judges to consult with parliaments in causes of difficulty & weight, a parliament was then to be at hand, they did not stay to advise with them in a point which concerned the parliament, so nearly an which was of the greatest weight of any cause that ever was agitated in the kingdom: In our books, & all the entries it is true and clear, that Quo-warrantoes are brought and ought to be brought against such as claim privileges, Franchises, Royalties, or the like flowers of the crown: but to question Burgesses in this nature is to question the King's prerogative in an high degree; privileges take from the King, parliaments add, and give unto him greatness and profit, in parliaments he sits essentially, in other Courts not altogether so, but by representation, what greater disservice could be done the King, then to overthrow parliaments, how shall Subsidies be granted, or the kingdom defended, how shall ardua Regni be considered? Oh the Barons of the Exchequer, I wot will salve all these doubts.  
I may not forget My Lords, how the law of the land, & the whole commonwealth is herein concerned, and upon that I will offer a Case or two, If a statute be made wherein the private interest of a subject, or the general interest of the commonwealth be enacted, the King by his Letters-patents cannot dispense with this statute, Co. 8. 29. a. 
Co. 4. 34. Bozoons' case.  Princes case, though they be with à non obstaute, nor make any grant, Non obstante of the Common-law, therefore I conclude this question.  
First, that it is against the King's prerogative, to issue such à Quo-warranto, as is here stated. Secondly it is against the commonwealth, as destructive of parliaments, and consequently of government. Thirdly this is no privilege but a service done to the King & whole commonwealth, which cannot receive so much as a debate but in parliament. Fourthly all the proceedings in the Excheqver, touching this parliament were Coram non judice, as was already voted in both houses, as for the punishment, we come not to urge your Lordships to punish other then with reference to that which I said before, viz. the Oath.  
These two questions have so near a relation, 
16. Quest.  the one to the other meeting in the centre of the Castle-chamber, 
16. Answ.  that I will speak to them at once or as to one question. 
17: Quest.   
My Lords, 
1. Answ.  if that golden mean, and mediocrity which regulated the power of that great Court in former times had not been of late converted and strained unto that excess we saw, these questions had never been stirred, but many things being extended to their uttermost sphere, or I fear beyond the same enforce me, although unwillingly and slowly, to look upon our laws and just rights.  
The answer to the sixteenth, viz. whether jurors giving their verdicts according to their conscience, may be punished in the Castle-chamber by fines excessive, mutilation of members, &c.  
I find in my Lord Barcklayes case, placit. Com. 231. from the beginning, the usual trial at Common-law was divided between the judges and the jurors, matters of fact were and are tryable by the jurors, and matters in law by the judges, the antiquity of this trial appears, Glan. fol. 100 b. in Henr. the seconds time, Bracton 174. Briton, fol. 130. a. Fortescue, de laudibus legum Angliae, fol 54. & 55. So much being cleared they being, jurati ad dicendum veritatem, are judges of the fact, Co. 9 13. a. dowmans' case, & 25. &c. Strata Marcellas case, and infinite other authorities, they are so far judges of the fact, that although the parts be estopped to aver the truth, yet these judges of the fact shall not be so estopped, because they are upon their Oath, Co. 2. 4. b. Goddards case, Co. 4. 53. a. Raw-hins case, 1. Henr. 4. 6. a. &c. They are so far judges of the fact, that they are not to leave any part of the truth of the evidence to the Court, Co. 1. 56. b. chancellor of Oxford's case, nay they may find releases and other things of their knowledge not given in evidence, 8. ass. plac. 3. Co. 10. 95. b. Doctor Leyfields case, what is done by judges, shall not be tried by jurors, Co 9 Strata Marcellas case 30. Ergo è converso; but if any doubt in law ariseth upon the evidence, there is a proper remedy by bill of exception by the statute of W. 2. cap. 30. which Co. 9 dowmans' case, fol. 13. a. saith to be in affirmance of the ancient Common-law, as to this point of law, the judges of the law are judges of the validity of the evidence, but under favour not of the truth of the fact, as it is set forth in the answer; if the judges of the law do err in matter of law, the party grieved hath his remedy by writ of error, but he is not punishable if practice or misdemeanour do not appear, 2. Rich. 3. fol 9 10. Fitz Natur. br. 243. E. 27. ass. 18. 4. Henr. 6. and other books by the same reason the judges of the fact, if they go according to their conscience as our question is stated, if the jury in this case go contrary to their evidence, the Common-law gives a full remedy by attaint, wherein the judgement is ●ost heavy if the jurors have done amiss as I said before to another question, yet in this action the law gives credit to the verdict before it be falsified, for if a judgement be given upon this verdict and after an attaint is brought, no super sedeas can be in this writ to hinder the party who recovered from his execution, 5. Henr. 7. 22. b. 33. Henr. 6. 21. otherwise in a writ of error.  
Your Lordships therefore may see what faith is given to verdicts at Common-law, I observe the notable case of 7. Henr. 4 41 b. where Gascoigne answereth the King that would give judgement contrary to his private knowledge.  
As for the next part of these two questions, it was the late height of punishments, and the drawing of more causes to that Court, then in former times, moved this debate, out of the statute of 3 Henr. 7. cap. 1. concerning this Court. I make these observations, first, that the judges of that Court according their discretion may examen great offences, 
Verba Statut.  secondly, that they may punish according to the demerits of delinquents after the form of the statute thereof made, thirdly, in like manner & form as they should or aught to be punished if they were convict by the due order of the Common-law For the first, what discretion this is, we find in our books, Co. 5. fol. 100 Rooks case, discretion is to proceed within the bounds of law and reason, at Common-law a Man in a Leete is fined but in ten groats for a light bloodshed; in the Castle-chamber a nobleman for an offer of a switch to a person inferior to him, upon provocation perhaps given, was fined in four thousand pound, 
Lo. Visc. Clanmoris.  committed to long imprisonment, and low acknowledgements were imposed on him. For the second and third observations, if men of quality and rank were pillored, papered, stigmatised, and fined to their destruction, in cases where if they had been convicted by due order of law, they could not be so punished by any law or statute, I humbly offer to your lordship's sad and grave consideration.  
And whether these courses be warranted by the said statute of 3. Henr. 7. cap. 1. or by any other law or statute of force in this realm, and if all jurors be brought to the Castle-chamber, what shall become of that great and noble trial, by which all the matters of our law regularly are tryable; And so I conclude that the answers to these two questions are not satisfactory.  
Whether in the Censures in the Castle-chamber, 
18. Quest.  regard be to be had to the words of the great Charter, 
18. Answ.  viz. salvo contenemento, &c.  
I conceive that in the Censures in the Castle-chamber, regard is to be had to the words of the great Charter, viz. Salvo contenemento, etc although in the great Charter, and in the statute of Westminst. 1. cap. 6. amerciamentum and misericordia are expressed and not fines or redemptio, because a fine and an amerciament are in the old year books used promiscuously as synonimons, for one and the same thing, and therefore in 10. Edw. 3. fol. 9 & 10. The jurors of the Abbot of Ramseis Leete, being sworn, and refusing to present the articles of the Leete, were amerced and there it is resolved, because all did refuse to present, all shall be amerced, but when the same shall be imposed or affeared, shall be imposed severally upon each of them secundum quantitatem delicti salvo contenemento suo, yet the sum there imposed was revera à fine, and not an amerciament as an amerciament is now taken, and here with agrees, 4. Eliz. Dy. 211. b. in these words (if the jurors of a Leete refuse to present the articles of the Leete, according to their Oath, the Steward shall assess a fine upon every of them) and Godfries case, 11. Rept'. fol. 42. b. 43. a.  
Secondly if by intendment of law, as the law was conceived at the time of the making of the statutes of Magna Charta and Westm. 1. fines and amerciaments had not been or taken to be Synonyma, the feazors of those acts would not have so carefully provided remedy in case of amerciaments, which were always moderate, and wherein à moderata misericordia did lie for all men, ab enumeratione partium, viz. Comites & Barones non amercientur & miles & liber homo amercientur & salvo contenemento suo, mercator salva merchandiza sua, Villanus salvo wainagio, Clericus salvo Laico, Feoudo, &c. and have thought of no redress or moderation of fines, which are more grievous, and of late times infinitely swollen above amerciaments, for in 19 Edw. 4. fol. 9 and 21. Edw. 4. fol. 77. the amerciament of an Earl Baron, &c. is but five pounds, and of a Duke ten pounds, yet a Barons ancient fee or livelihood consisteth of four hundred marks land per annum, an Earls of four hundred pounds, a Dukes of eight hundred pounds per annum.  
Thirdly, amerciaments imposed upon those that have the administration of justice execution of the King's writs, for their Commission or Omission, contrary to their duty are out of the letter of Magna Charta, are indeed fines and to be imposed and taxed by the judges, yet are they called misericordiae, because great moderation and mercy must be used in taxing of them, Grisleyes' case, 8. Rep. fol. 48. a. b.  
Fourthly, in case fines be not within these words of Magna Charta, amercietur salvo contenemento, &c. yet ought they by law to be reasonable and not excessive, for every excess is against law, excessus in requalibet, jure reprobatur communi, as excessive distress is prohibited by the Common-law 41. Edw. 3. fol. 26. So is excessive and outrageous aid, as appears by the statute of Westm. 1. cap. 35. and by Glanv. l. 9 fol. 70. an assize lies for often distraining because it is excessive, and therefore against law an excessive fine, at the will of the Lord is an oppression of the people, 14. Henr. 4. fol. 9 If tenant in Dower have rich villains or tenants at will and she by excessive taxes or fines make them mendicants, it is waste in the eye of the law, 16. Henr. 3. Fitz. waste 135. Register' judiciale, fol. 25. If the fines of copyholders be uncertain, the Lord of the manor, cannot exact unreasonable and excessive fines, & the unreasonableness of the fines shall be determined by the judges having respect to the value of the copyhold, 4. Rep. fol. 27. b. The King before the making of Magna Charta had rationabile reliwm of noblemen and it was not reduced to any certainty, yet ought it to have been reasonable and not excessive, Co. institut. 83. b.  
They say that in a legal construction, the statute of Magna Charta, in which the words salvo contenemento are mentioned, is only to be understood of amerciaments and not of fines, yet where great fines are imposed in terrorem, upon the reducements of them, regard is to be had to the ability of the persons.  
Now whereas they allege that upon the reducements of fines, regard is to be had to the estate of persons, I humbly conceive that makes but little, either for the ease or security of the subject, or the providence or wisdom of the law, for that such reducements are not grounded upon any rule of law, but rest merely in the King's grace and bounty, which if the Prince should withdraw, and leave the subject to the law, in what case he is in, I leave it to your Lordships. If there be no rule in this case, it may rest in the arbitrary will of four or five persons in that Court to destroy any man, & in their will to reduce as they please, but never to reduce before confession of the sentence which is destructive, wherein perhaps there's no infallibility, Magna Charta, cap. 29. Nullus liber homo aliquo modo destruatur, & e. and so I conclude as to this answer.  
This answer as it is here is sufficient, 
19 Quest.  yet contrary to their answer; 
19 Answ.  to the first question upon the same point, and so contrary, that both are incompatible.  
My Lords, 
20. Quest.  I am come to the life of man, after that God concluded the work of the whole world saying to every particular & erant valde bona, 
20 Answ.  to make the work complete creavit hominem ad imaginem & similitudinem suam. 
Gen. cap. 1. v. 31.  Aristotle in his treatise de natura animalium saith that unum vivens est magis dignum; 
Gen cap. 1. v. 27.  which is man, that creature which alone is more perfect and noble than all the world besides. The Common-law of the land hath three darlings, life, liberty, and dower, the former recited statutes give protection to three things, to life, estate, and liberty, the life of man is the eldest Child admitted to the favour of the law, and the first and chief within the protection of these statutes, the other two are but ministers and servants unto it, the trial of this life by the law and statutes aforesaid is regularly judicium parium, to multiply cases upon so plain a learning, were but pass time, or wast time, your Lordships have other business of weight and consequence: the proof which taketh away this life with infamy, which corrupts the blood of him and his posterity, defeats the wife and innocent Children of their fame and substance, surely aught to be clear and convincing proof.  
The case of an approver is the only case we find in our law, where a person infamous may accuse another for his life, this accusation cannot take away the life of any man, otherwise then by a legal trial, viz. by a trial of jurors, who ought to have other good proof before they find a subject guilty, or by both, wherein the approver hazards his own life, which is sacred unto him by the law. This approver is not received in another felony, or treason than he himself is guilty of by confession, of the fact, nor for his relief, after he commits the crime confessed, Stamford pleas of the crown, fol. 142. 143. for notorious rebels or malefactors, I find not any book in law to give countenance unto such testimony. I find in the fourth article of the King's printed book of instructions, that such testimony shall not be pressed when any man stands upon trial of his life. The judges do answer well to one part, viz. that such testimony is not convincing, but they go further that the testimony of such persons, not condemned concurring with other proof or apparent circumstance may be pressed upon the trial of a man for his life; the said Article in the Instructions saith it shall not be pressed at all, no law warrants such pressure.  
It is quite different from the case of an approver, who confesseth himself guilty, and who is limited to the crime whereof he is guilty, a rebel is left at large to prove any crime, nay the relief of himself.  
The testimony mentioned in the question differs in all things from the approver, therefore they cannot be resembled; the concurrence of such testimony with other proofs is not material, for other proof will do the deed without this bad concurrence, and so will a violent presumption, as if two go safe into a room, one of them is found stabbed to death the other may suffer, this presumption is inevitable the law of God, the laws and statutes of the realm protect and preserve the life of man, it were therefore hard to take away by circumstance such a real and noble essence. This concurrence mars the evidence, it helps it not. If one gives false testimony once by the ancient law, his testimony shall never be received again, Leges Canuti Regis, Lamb. Saxons lawss, fol. 113. p. 34. much less where they are notorious ill doers, this and the reason and ground of this question already opened, will I hope give your lordship's satisfaction.  
For this question, 
21. Quest.  I will state it without any tenure reserved by express words as the question is put, 
21. Answ.  whether the reservation of rent, or annual sum will raise this to be a tenure in capite; I conceive it will not for sundry reasons. First from the beginning there have been fairs and Markets, and no precedent, bookcase, or Record, to warrant the new opinion in this Case before Trinity term 1639. in the Court of wards. Secondly the practice of that Court was always before to the contrary in the same, and the like Cases. Thirdly, it is a thing as the question is of new creation, and never in esse before, for this see the books of 3. Henr. 7. 4. 12. Henr. 7. 19 15. E. 4. 14. 46. E. 3. 12. 21. Henr. 6. 11. Stamford prerogative 8.  
Therefore there is no necessity of a tenure thereof; 
48. Edw. 3. 9 33.  
H. 6. 7. 8.  upon the Conquest it was necessary that all lands should be held by some tenure for the defence of the kingdom. 
Hen. 7. 12.   
1. The statute of Quia emptores terrarum, 
Co. 6. 6●  &c. praerogativa Regis speak of Feoffator, 
Co. 9 123.  Feoffatores, &c. therefore a tenure I mean this tacit or employed tenure was originally only intended of Land.  
2. The King may reserve a tenure in all things not mainerable by express reservation or Covenant, 44. Edw. 3. 45. Fitz. nature. brevium, 263. &c. but that is not our Case.  
3. Here it is left to construction of Law, which is aequissimus Iudex, and looks upon the nature of things, and therefore in Cases that include Land, or where land may come in lieu thereof, a tenure may be by implication, as a mesnalty a reversion expectant upon an entail & the like, 10. Edw. 44. a. 42. Edw 3. 7. Fitz. Grants, 102. and divers other books.  
4. No tenure can be employed by reason of a rent, if the rent be not distreynable by some possibility of its own nature upon the thing granted, as appears by 5. Henr. 7. 36. 33. Henr. 6. 35. 40. Ed. 3. 44. 1. Henr. 4. 1. 2. 3. Fitz-cessabit. 17.  
5. The distress upon other land is the King's mere prerogative like the case of butts Co. 6. 25. a distress may be for rent in other land by Covenant.  
6. This is no rent because it issueth not out of land.  
7. If the Patentee here had no land, there can be no distress in this case.  
8. This is a mere privilege, it issueth out of no lands, and participates nothing of the nature of land, all the cases of tenures in our books are either of land or things arising out of land, or some way or other of the nature of land, or that may result into land, or that land by some possibility may result into it; Therefore I humbly conceive that new opinion is not warranted by law or precedent.  
These My Lords, are in part the things, which satisfied the house of Commons in all the matters aforesaid, they are now left to the judgement and justice of your Lordships.   

Questions propounded IN PARLIAMENT AND Declarations of the Law thereupon in Parliament.  
WHither the Subjects of this kingdom be a free people, 
Question 1.  and to be governed only by the common-laws of England, and statutes of force in this kingdom.  
The subjects of this his majesty's kingdom of Ireland, 
Declaraon.  are a free people, and to be governed only according to the Common-law of England, and Statutes made & established by Parliament in this kingdom of Ireland, and according to the lawful customs used in the same.  
Wither the judges of this land do take the Oath of judges, 
Question 2.  and if so, whether under pretext of any Act of State, Proclamation, writ, letter or direction under the great or privy seal or privy Signet or Letter or other Commandment from the Lord Lieutnant, Lord Deputy, justice, or other chief Governor, or Governors of this kingdom, they may hinder, stay, or delay the suit of any subject, or his judgement or execution thereupon, if so, in what cases, and whether if they do hinder, stay or delay such suit, judgement or execution thereupon, what punishment do they incur for their deviation and transgression therein?  
That judges in Ireland ought to take the Oath of the justices or judges declared and established in several Parliaments of force in this kingdom and the said judges or any of them, 
Declaraon.  by colour, or under pretext of any act of state, or proclamation or under colour, or pretext of any writ, Letter, or direction under the great seal, privy seal, or privy Signet from the Kings most Excellent majesty, or by colour or pretext of any Letter or commandment from the chief Governor or Governors of this kingdom ought not to hinder or delay the suit of any subject, or his judgement, or execution thereupon and if any letters, writs, or commands come from his majesty or any other, or for any other cause to the justices, or to other deputed to do the law and right according to the usage of the realm in disturbance of the law, or of the execution of the same, or of right to the parties, the justices and other aforesaid aught to proceed, and hold their Courts, and processes where the pleas and matters be depending before them, as if no such letters, writs, or commaundments were come to them, and in case any judge, or judges, justice, or justices be found in default therein, he or they so found in default ought to incur and undergo due punishment according the law, and the former declarations and provisions in Parliament in the case made and of force in this kingdom, or as shall be ordered, adjudged, or declared in Parliament. And the Barons of the Exchequer, justices of assize, and goal-delivery if they be found in default as aforesaid, it is hereby declared that they ought to undergo the punishment aforesaid.  
Whether the King's majesty's privy council either with the chief Governor, 
Question 3.  or Governors of the kingdom, or without him or them, be a place of judicature, by the common-laws, and wherein causes between party, and party for debts, trespasses, accounts, possession, or title of Lands, or any of them, and which of them may be heard and determined, and of what civil causes they have jurisdiction, and by what law, and of what force is their order or decree, in such cause or any of them?  
That the council-table of this realm either with the chief Governor or Governors is no judicatory wherein any action real, 
Declaraon.  personal, popular, or mixed, or any suit in the nature of the said actions or any of them can or aught to be commenced, heard, or determined, and all proceedings at the council-table, in any suit in the nature of any of the said actions are void (especially causes particularly provided for) by express acts of Parliament of force in this kingdom only exempted.  
The like of the chief Governor above. 
Questio● 4.   
The proceedings before the chief Governor, 
Declaration.  or Governors alone in any action, real, personal, popular, or mixed, or in any suit in the nature of any of the said actions are Coram non Iudice and void.  
Whether grants of Monopolies be warranted by the law, 
Question 5.  and of what, and in what cases, and how and where, and by whom are the pretended transgressors against such grants punishable? and whether by fine, mutilation of members, imprisonment, loss and forfeiture of goods or otherwise and which of them?  
All grants of Monopolies are contrary to the 
Declaraon.  laws of this realm, and therefore void, and no subject of the said realm ought to be fined, imprisoned, or otherwise punished for exercising or using their lawful liberty of a subject, contrary to such grants.  
In what cases the Lord Lieutenant, 
Question 6.  Lord deputy, or other chief governor or governors of this kingdom and council may punish by fine, imprisonment, mutilation of members, pillory or otherwise, and whether they may sentence any to such, the same, or the like punishment for infringing the commands of or concerning any proclamation, of and concerning Monopolies, and what punishment do they incur that vote for the same?  
The Lord Lieutenant, 
Declaration.  Lord Deputy, or other chief governor or governors, and council of this realm, or any of them, ought not to imprison any of his majesty's subjects, but only in Cases where the common-laws or statutes of the realm do enable and warrant them so to do, & they ought not to fine, or to censure any subjects in mutilation of members, standing on the pillory, or other shameful punishment in any case, at the council-table, and no subject ought to be imprisoned, fined, or otherwise punished for infringing any commands, or proclamation for the support, or countenance of Monopolies: And if in any case, any person or persons shall be committed by the command or warrant of the chief governor, or governors and privy council of this realm, or any of them, that in every such case, every such person or persons so committed, restrained of his, or their liberty, or suffering imprisonment upon demand, or motion made by his or their council, or other employed by him or them for that purpose unto the judges of the Court of Kings-bench, or Common-pleas, in open Court, shall without delay upon any pretence whatsoever, for the ordinary fees usually paid for the same have forthwith granted unto them, or him a writ or writs of Habeas Corpus, to be directed generally to all, and every sheriff, Gaoler-minister, officer or other person, in whose custody the party or parties so committed or restrained shall be, shall at the return of the said writ, or writs, and according to the command thereof upon due and convenient notice thereof given, unto him at the charge of the party or parties who requireth or procureth such writ or writs, and upon security by his or their own Bond, or Bonds given to pay the charge of carrying back the prisoner, or prisoners, if he or they shall be remanded by the Court, to which he or they shall be brought, as in like causes hath been used, such charges of bringing up and carrying back the prisoner or prisoners to be always ordered by the Court, if any difference shall arise there about, to bring, or cause to be brought the body, or bodies of the said party, or parties so committed, or restrained unto & before the judges, & justices of the said Court from whence the same writ or writs shall issue in open Court, & shall then likewise certify, the true cause of such his, or their detainer, or imprisonment, & and thereupon the Court after such return made, and delivered in open Court, shall proceed to examine and determine, whether the cause of such commitment, appearing upon the said return be just and legal or not, and shall thereupon do what to justice shall appertain, either by delivering, bayling, or remanding the prisoner, or prisoners.  
Of what force is an act of state, 
Question 7.  or proclamation in this kingdom 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, proclamation or both, and what punishment do the sworn judges of the law, that are privy councillors, incur that vote for such acts and execution thereof?  
An act of state, 
Declaration.  or proclamation in this kingdom, cannot bind the liberty, inheritance, possession, or goods of the subjects of the said kingdom, nor alter the Common-law, and the infringers of any such act of state, or proclamation ought not to forfeit lands, leases, goods, or chatels for the infringing of any such act of state or proclamation. And the judges of the law who do vote for such acts of state, or proclamation are punishable, as breakers and violaters of their oaths of judges.  
Are the subjects of this kingdom, 
Question 8.  subject to the martial law, & whether any man in time of peace, no enemy being in the field, with banner displayed, can be sentenced to death, if so, by whom, and in what causes? if not, what punishment do they incur, that in time of peace execute martial law?  
No subject of this kingdom ought to be sentenced to death, 
Declaration.  or executed by marshal-law in time of peace, and if any subject be so sentenced, or executed by marshal-law, in time of peace, the authors & actors of any such sentence or execution, are punishable by the law of the land for their so doing, as doers of their own wrong, and contrary to the said law of the land.  
Whether voluntary oaths taken freely before arbitrators for affirmance, 
Question 9  or disaffirmance of any thing, or for the true performance of any thing be punishable in the Castle-chamber, or any other Court, & why or wherefore?  
No man ought to be punished in the Castle-chamber, 
Declaration.  or in any other Court, for taking a voluntary Oath before arbitrators for affirmance or disaffirmance of any thing, or the true performance of any thing in civil causes, nor are the arbitrators before whom such voluntary oaths shall be taken punishable.  
Why and by what law, 
Question 10.  or by what rule of policy is it that none is admitted to reducement of fines, and other penalty in the Castle-chamber or council-table until he confess the offence for which he is censured; when as revera he might be innocent thereof, though suborned proofs, or circumstance might induce a Censure?  
By the laws and statutes of the realm, 
Declaration.  no man is bound, or aught to be compelled to acknowledge the offence laid to his charge, or the justness of any censure past against him in the Castle-chamber, or at the council-table, nor aught to be detained in prison, or abridged of his liberty, or the reducement of his fine, stayed or delayed, until he do acknowledge such offence or the justness of such censure. And it is further declared that no such enforced or wrested confession, or acknowledgement can or aught to debar, or hinder any subject from his Bill of reversal, or review of any sentence or decree past, or conceived against him in the Castle-chamber, or in any other Court.  
Whether the judges of the Kings-bench, 
Question 11.  or any other judge of gaol-delivery, or of any other Court, and by what law, do or can deny the Copies of indictments of felony or treason, to the parties accused contrary to the law.  
The judges of the Kings-bench, 
Declaration.  or justices of gaol-delivery, or the judges of any other Court, ought not to deny Copies of indictments of felonies, or treason to the parties indicted.  
What power hath the Barons of the Court of Exchequer, 
Question 12.  to raise the respite of homage arbitrarily, to what rate they please, to what value they may raise it, by what law they may distinguish between the respite of homage upon the diversity of the true value of the Fees, when as Escuage is the same for great and small Fees and are proportionable by Parliament?  
The Barons of the Exchequer ought not to raise the respite of homage above the usual rates appearing in and by the course and precedents of that Court continued until the year of our Lord God, 
Declaration.  1637. and the raising thereof since that time was arbitrary and against the law, and the Barons of the Exchequer, ought not to distinguish between the respite of homage upon any diversity of the true values of the knights Fees.  
Whether it be censurable in the subjects of this kingdom to repair into England to appeal to his Majesty for redress of injuries, 
Question 13.  or for other lawful occasions; if so, why, & what condition of persons and by what law?  
The subjects of this kingdom may lawfully repair into England, 
Declaration.  to appeal to his Majesty for redress of injuries, or for other their lawful occasions; & for their so doing, ought not to be punished or questioned upon the statute of 5. of K. Rich. the 2. nor by any other law, or statute of force in this kingdom (eminent officers & ministers of state, Commanders & soldiers of his majesty's Army. The judges and ministers of his majesty's Courts of justice, and of his highness' Revenue and customs, whose attendance is necessary requisite, by the laws & statutes of the realm only excepted.)  
Whether Deans or other dignitaries of cathedral Churches be properly and de mero jure donative by the King, 
Question 14.  and not Elective or collative; if so, why, and by what law, and whether the Confirmation of a Dean de facto of the Bishops grant be good and vallid in law, or no? if not, by what law?  
Deaneries or other ecclesiastical dignities of this realm, 
Declaration.  are not de mero jure donative, but some are donative, and some elective, and some are collative, according to their respective foundations, and the confirmation of the Bishops grant by a Dean de facto having actually stallum in Choro, & vocem in Capitulo, together with the Chapter is good in law.  
Whether the issuing of Quo-warrantoes, 
Question 15.  out of the Kings-bench, or Exchequer against Borroughs, that anciently and recently sent Burgesses to the Parliament to show cause why they sent Burgesses to the Parliament, be legal? if not what punishment ought to be inflicted on those that are or hath been the occasioners, procurers, and judges of, and in such Quo-warrantoes?  
The issuing of Quo-warrantoes out of the Court of Kings-bench, 
Declaration.  Court of Exchequer, or any other Court against Boroughs, that anciently or recently sent Burgesses to the Parliament, to show cause why they sent Burgesses to the Parliament, and all the proceedings therein are, coram non Iudice, illegal and void, and the right of sending Burgesses to the Parliament is questionable in Parliament only, and the occasioners, procurers, and judges in such Quo-warrantoes and proceedings are punishable as in Parliament shall be thought consonant to law and justice.  
By what law are jurors, 
Question 16.  that give verdict according their conscience, and are the sole judges of the fact, censured in the Castle-chamber in great fines, and sometimes pillored with loss of ears, & boared through the tongue, and marked sometimes in the forehead with a hot Iron, and other like infamous punishment?  
Jurors are the sole judges of the matter in fact, 
Declaraon.  and they ought not for giving their verdict to be bound over to the Court of Castle-chamber, by the judge or judges, before whom the verdict was, or shall be given.  
By what law are men censurable in the Castle-chamber, 
Question 17.  with the mutilation of members, or any other brand of infamy, and in what cases, and what punishment in each case there is due, without respect of the quality of the person or persons?  
No man ought to be censured in the Castle-chamber, 
Declaraon.  in the mutilation of members, or any other brand of infamy, otherwise, or in other cases than is expressly limited by the statutes of this realm in such cases provided?  
Whether in the censures in the Castle-chamber, 
Question 18.  regard be to be had, to the words of the great Charter, viz. Salvo Contenemento, &c.  
In the censures of the Castle-chamber, 
Declaration.  especially regard aught to be had to the words of the great Charter, viz. Salvo Contenemento, &c.  
Whether if one that steals a sheep, 
Question 19  or commits any other felony, and after slieth the course of justice, or lieth in woods or mountains upon his keeping, be a traitor, if not, whether a proclamation can make him so.  
A Felon who flies the course of justice, 
Declaration.  & lieth in woods, mountains, or elsewhere upon his keeping is no traitor, and a proclamation cannot make him a traitor.  
Whether the testimony or evidence of Rebels, 
Question 20.  traitors, protected thieves, or other infamous persons be good evidence in law, to be pressed upon the trials of men for their lives, or whether the judges, or jurors ought to be judge of the matter in fact?  
The testimony of convicted, 
Declaration.  or protected Rebels, traitors, or felons, is no sufficient evidence in law upon the trial of any person for his life, and the credit of the testimony of persons accused or impeached, and not convicted of felony or treason, aught to be left to the jury who are sole judges of the truth, and validity of the said testimony.  
By what law are fairs and Markets to be held in Capite, 
Question 21.  when no other express tenure be mentioned, in his majesty's Letters-patents, or grants of the same fairs and Markets, although the rent or yearly sum be reserved thereout?  
The King grants Lands to be held in free and Common-soccage, 
Declaiation.  as of a Castle, or manor by Letters-patents under the great seal, and by the same Letters-patents, or by other Letters-patents, grants a fair and Market, reserving a yearly rent or sum without expressing any tenure as to the said fair or Market, the said fair or Market, is not held by knights-service in Capite or otherwise in Capite.  
Copia vera, Ex' per Phil: Fern: Cleric. Parl. Com.  
FINIS.    

Faults escaped.  
PAg. 9 l. 19 instead of causes read Cases, p. 40. l. 6. for the, read their, p. 44. l. 10. for wages, read ways, p. 56. l. 17. for best, read least, p. 57, lin, 18. for Rottoman, read Hotoman, ibid. l. 21. for Master Sleyden, say Selden, p 61. l. 3. & is omitted before that p. 63. l. 19 for strike, r. stick, p. 64. l. 14, for Primes case say Prince's case, p. 67, l, ultima for Strata Marclad, say Strata Marcelia. p. 68 l, vlt. for here, say there. p, 70, l, 1, for sit, say Litt. ibid. l, 2, for give say gives. p, 70, l, 22, for writ, say writs. p, 72, l, 1. for this, the, p, 7●, l, 23. for as say or. p, 86. for Willielmi Collet▪ say Willielmus Collet. p. 87, l, 12, for Monopolites, Monopolists. p, 88, l, 8, for Cod. say C. p, 93, l, 19, for promissum est, say provisum est, p, 94, l, 2, for promissum, say provisum p, 97, l, 21, for the say this. p, 109▪ l. 3, for Thornbow, say Thorn borrow, pag, 116. l. 7. for Placit. Com. say Plo. Com. ibid. l, 19▪ for parts say parties, p, 121, l, 7, non is omitted, p, 122, l, ultim, for relivuum, say relevium.