THE SPEECH OF Sir Audley Mervyn Knight; His Majesty's Prime Sergeant at Law, And Speaker of the House of Commons in Ireland.  
Delivered to His Grace JAMES Duke of Ormond, Lord Lieutenant of Ireland, the 13 day of February, 1662. in the Presence-Chamber in the Castle of Dublin.  
Containing the Sum of Affairs in Ireland; But more especially, the Interest of ADVENTURERS and SOLDIERS.   royal blazon or coat of arms 
C R  HONI SOIT QVI MAL Y PENSE DIEV ET MON DROIT 
Printed at DUBLIN; And Reprinted at LONDON by J. Streater, by Special Order, 1662.   

The SPEECH of Sir AUDLEY MERVYN Knight, His Majesty's Prime Sergeant at Law, and Speaker of the House of COMMONS in Ireland: Delivered to JAMES Duke of ORMOND, Lord Lieutenant of Ireland, the 13 day of February, 1662. in the Presence Chamber in the Castle of Dublin.  
May it please your Grace;  
ACcording to the ancient Privileges of our House, We have been humble Suitors for this Access into the Royal Presence: and your private Spirit which knows not how to deny, prevails so in your public Capacity, that even for this your Graces particular condescension, I am commanded by the Knights, Citizens, and Burgesses in Parliament assembled, to present you their most Submissive acknowledgement.  
And surely this present Solemnity of the House attending your Grace, may carry the signification of a Hand in the Margin, to point out something more than of ordinary observation.  
This, with us, is as a sheet-Anchor, which is never made ready but when we discern a cloud; perchance it is yet no bigger than a man's Hand, but by the best Judgement we can make of it, it is like to overcast the Horizon of this Kingdom; This makes this Address of that Importance, that the House thought not fit to entrust it to the bare expressions of a Speaker, (had he been of the greatest abilities,) therefore have they committed it to this Instrument, that it might remain as a Record of their Endeavours, that the hard Fate and Ruin of an English Interest in this Kingdom might not bear date under the best of Kings, under so vigilant a Lord Lieutenant, under the first (and if not prevented, like to be the last) Protestant Parliament that ever sat in ●his Kingdom.  
It would confound Astrologers to observe such Planets, such masculine Planets, ascending, in Conjunction, in the Houses of their Exaltation, and yet this Kingdom not to be Planetstruck.  
There is a time to speak, and a time to hold our peace; This, this, is the Critical time, God calls us to it, when Religion, the established Religion is in danger to be undermined, by casting the predominancy of temper upon a Popish Interest: And believe it Sir, whatsoever delusive Tenants have been broached a late, the contrary hath been written in Letters of blood, not in his Majesty's Kingdoms only, but wheresoever the Papal power was exalted; That persons professing the Reformed Religion, are but Tenants at Will for their Lives and For unes, and through Centuries of Ages it appears, That as their Fleeces grow they are shorn, till a time of slaughter be appointed.  
His Majesty, He hath called us by his Writ to no other end, but to offer up our humble Advice, Nè quid detrimenti respublica capiat; And if ever the advice of Subjects may be serviceable to their Prince, this is the time, when this poor, miserable, and unfortunate Kingdom, fruitful by the blood of English, and placed as a greedy grave to bury their treasure in from age to age, is upon its new module: It is now in its Mintage, and our care must be, that the Mitre be not stamped instead of the Crown; It is not long since the sale of this Kingdom was offered to the Mitre, as his Majesty's Interest was prostituted to every Roman Catholic power, so that it may be said of Ireland, as Jugurtha said of Rome, O venalem Hiberniam, ●●ox perituram si modò emptorem invenerit: Did I say his Majesty called Us? May his Majesty's days be long, and prosperous; Were we weltering in our blood, We must hold water whilst he washes his Hands in Innocency.  
The Country calls Us, and were they not assured We would speak for them, doubtless but your Grace had heard them speak for themselves by their humble Petitions, for the Alarm, that Hannibal is at the Gates, is hot throughout the Protestant Plantations; We are his Majesty's Great Council, the grand Inquest of the Kingdom, and We dare appeal to your Grace, how We have spent our time: We understand the usual proceed in Parliaments, to begin at Grievances, and conclude with Supplies; We have inverted the Order, and applied ourselves hitherto in settling a constant Revenue for his Majesty, and granting other Temporary aids far above our abilities, yet far less than what his Majesty's goodness may challenge from us: There hath been an imitable contention, as I may say, between the King and his Parliament here, if it were possible for a Subjects to outdo such a King, We would; but 'tis possible for a King, and he hath outdone us, and therefore vaeh illis, Woe be to them, that in this Conjunction would undo us both.  
It must be therefore a forced Put, that presseth us on to this address and our moderation even in it will appear; Cuncta prius tentanda.  
It is in the body Politic as it is in the natural; he brawny and fleshy members can admit a discontinuity of parts, though not without pain, yet without danger; But the apple of the eye is so tender, that the least dust is offensive to it: We enjoy the benefit of many good and wholesome Laws, But the Act of Settlement is the Law of Laws, it is the Magra Charta Hiberniae, this is the apple of the eye, and must be Printed with this Motto: Nemo me impune lacessit: Our strength lies in this, as sampson's in his locks; if those be cut, we are as weak as others, when the Philistines, shall fall upon us, in the execution of other Laws, whether Mint and Cummin, in this we fulfil the weightyer things of the Law.  
Your Grace well remembers that struggling twins in the Womb of this Act, never Prince that sat upon the Throne, endured so many pongs and throws, to give his Protestant Subjects a Birth and Life, as CHARLES the Second did: And We shall never forget the fainting expectations of the People for this Bill of Settlement, when every one's Soul looked out at the Casements of his eyes, as Sicera's mother, with a Why are the wheels of his Charirt so long a coming? But now Sir, with as great a sorrow We behold the driving of the Chariot to belike the driving of Joh● the Son of Nemish that drove furiously.  
We come not this day to reflect upon the Commissionrs for executing the said Act: This House hath a great respect for that Court, it had part of our, breath to give it life, and we are under the greatest obligations to admire his Majesty's goodness and favour to his Protestants, (I shall neverforget the expression of his Majesty at a full Council,) my Justice I must afford to you all, but my favour must be placed upon my Protestant Subjects, in sending over those Gentlemen, that were of our own Country and Religion: His Majesty warrantably judged, that if difference were betwixt an Israelite and Egyptian, Moses, would lean to the Isr●elite: His Majesty knew men of resolition might alter the Climate without changing sound Principles, though even those may be endangered by a constant and familiar conversation, with persons of different judgements: and so we may in time forget to attest the fear of Abraham, and learn to swear by the life of Pharaoh; We consider the comprehensiveness of the Act, their new beaten path of proceed, saepe viatoremnova: nonvetus orbita fallit; The mixture in Hotch pot of Law and equity, so that they are both Jurors and Judges, and the rsummainess of the proceed they design, so that the Text many times may happen not to be the Rule, but the Hower-Glass; His Majesties other Courts shoot from a rest to a dead mark, and seldom or never miss: This Court runs and shoots at a flying mark, and therefore it is admirable if it ever hit aright. I say Sir, We come not to criminate, or to force a ball into the Dedan, but if any brickwall expressions happen, that cannot be designed otherwise, it is rather a force upon us.  
Upon the whole, the Knights, Citizens, and Burgesses, upon the serious observations they have made of the proceed of that Court, have made this judgement, That without some speedy Rules and Instructions be given to those Gentlemen, as the line and plumm to direct the executive part of that great Act of Settlement, that the Lands justly forfeited to His Majesty, upon the account of that late horrid and unnatural Rebellion in this Kingdom, and by His Majesty freely granted to the English (to improve and enrich, which they have beggared themselves) will be taken out of their possession, and themselves, wives and children exposed to mockery and misery; and actual Rebels that yet survive, or the Heirs and Blood of those that died actve in that Rebellion, be restored to the same; and this being all done under pretence of severe justice, the Roman Catholics of this Kingdom, may get a reputation and credit to those pamphlets they have dispersed through Europe, That His Mastiffs Protestant Subjects first fell upon and murdered them. Sir, the Commons cannot but be apprehensive of these coniequenses, and therefore in this Instrument, have drawn certain proposals by way of humble advice tendered to your Grace, in the name of the Commons of this Kingdom: They are not of the nature to impose any foreign sense upon the Act, they arise out of the bowels of it; they seek not to lay out a new way, but only where some corners and destowers are, to hang out lights; and the greatest Courts of Judicature will put out snuffs, when to read the Statute, they may have a Parliament-light, especially a light held by that Parliament that past the Act: They have likewise their convoy to your Grace, by a particular clause in the act requiring the Commissioners to give an account to your Grace and the Council, of their proceed, to and follow such further directions as they shall from time to time receive from your Grace and Council persuant to the Act.  
I shall crave your Grace's leave and patience to read it in distinct Paragraphs, and according to the commands of the House, to hint some parts of their sense, for the reasonableness of them.  
Forasmuch as by the Act of Settlement, there is a power vestd in His Grace the Lord Lieutenann and Council, to give further Directions and Rules from time to time, to the Commissioners for executing the said Act; and forasmuch as it evidently appears to the House of Commons, That there is a necessity of several Rules and Directions to be given the said Commissioners, therefore the following particulars are to be offered to the consideration of his Grace the Lord Lieutenant and Council, as the humble advice of the said House in order thereunto.  
This, though it sounds as a preamble or introduction, and so may be looked on as a Fronticepiece or Title-page by some; yet by us is understood as an essential part of the structure: If our distractions were doubled, they could not divide us in our duty. Nec natura aut Lex operantur per saltum; you were not only the nearest port, but Statio bene fida carmis: And though the night should grow dark, and tempestuous upon us, your care hath hitherto been as a Beacon upon a nigh Promontory, not only burning upon the arrival of a Fleet (such as this Address is) but even to secure the least Fisherboat, the smallest and individual interest, when it lays its course to you: Suyreme Councils, and General Assemblies, have, upon created or imaginary necessities, gone to the Witch of Endor and having taken their observations from their own Ignes fatui, instead of the Guards of Charles his Wain, have arrived at Tiber instead of Thames: Now, Sir, being in our right Port, we shall break Bulk; and the first Proposal is this:  
1. That the King be by the Court of Claims allowed to be Party, as by Law he ought to be; and that no cause be brought to Adjudication, till the Attorney Gone rall have a fair Summons, and be fully heard.  
Your Grace might think us under some distemper to offer this; for utrum nix sit alb a, non est disputandum: But if the Commissioners have declared in Court, That His Majesty is not concerned, and have, before judgement given, refused to admit evidence upon record, offered by Mr. Attorney-general in His Majesty's behalf, pregnant with evidence to have proved the Nocency of the person, and thereupon have declared the Nocent, Innocent, and in a breath blown down the Title of several Protestants, and their respective Heirs, their improvements, and the like, it is the Duty of Us sitting in Parliament, judiciously having taken cognizance thereof, to offer some Expedient against it. Sir, Innocent, or Nocent, is the Question, which without any help of a Septuagint, is translated at the Bart of the Kings-Bench, Are you guilty of the general Rebellion of Ireland, or not? Stamf. pl. Cor. 1. I wonder if they will not infer this, inter placita Coronae: Then under what Title would they refer it? If the Commissioners be pleased to consult their Oath prescribed by the Act, it is thus: Act. p. 59  
YOu shall swear, That you shall to the best of your skill, truly and impartially administer Justice between his Majesty and the Subject, and between party and parties, in the place of a Commissioner, for putting in execution His Majesty's gracious Declaration and Instructions for the Settlement of Ireland, according to an Act entitled, An Act, etc.  
This Oath is framed in terminis, according to the exigency of the subject matter cognizable in every Claim by the Commissioners; for every Claim, Guilty, or Not guilty of the Rebellion, is one part, and hath hitherto been first tried by them; and to this part, the Oath provides in these words, You shall truly administer Justice between his Majesty and the Subject: Then admit the person be adjudged Innocent, yet the English-Adventurer or Soldier, in case such Innocent's Title to the Land be not good, is in by the Act; and then in the second place, the Title comes in question, and for this the Oath is suited, viz. And betwixt party and party.  
Regularly, either by Office or Attainder, forfeited-Lands are vested in the King, and his Majesty being graciously pleased not to proceed by the severity of Attainder, which reacheth life and corruption of blood on the one hand, nor the expense and delatoriness of Offices to be found, (not consisting with a Kingdom gasping for a Settlement.) was pleased to rest his Title upon a Trial of Innocency: So that, exclude his Majesty to be party, the Commissioners Judgements cuts both ways: The Irish are turned out of their Inheritances upon the account of Treason, and the King not party, the English shall have their Lands, and yet they were never legally settled in the King; so that Treason will seem to be a crime not so much against the King, as against the Subject; Lands by the Act, are vested in his Majesty, so they be not the Lands of Innocent persons, (and Qualifications for the trial of their Innocency are positive.) Lands are given to the Adventurers and Soldiers, if they belong not to Innocents', where rests the Freehold, in the Innocent persons? That is but conditional and contingent; Is it in the Adventurer or Souldie? that is but conditional and contingent; Is it in the King? it is there but conditional and contingent: Why then it is in custodia legis, to judge between these three persons; the Innocent can never have it if it be judged for the King, the English can never have it, except it be judged for the King: then to exclude the King is in construction of Law, to exclude the English; for the Commissioners Decree cannot give the Land to the English, except the Act and Law warrant it, but nothing by Law can pass from the King, till it be first in him, and there is no way by the Act to place it in the King, but by the judgement of the Court, betwixt the King and the pretending Innocent.  
Courts of Justice, ex Officio, if a title upon the plead arise for the King, are to take notice of it and improve it, though the King be not party to the Action. Hob. 126.127.  
The Court will award a Writ for the King where the Title appears for Him on the Verdict, though the Issue find it not for him. Hob. 118, 119.  
And where Statutes are made to put things in an Ordinary form, and authorise inferior persons for the execution of it for the ease of Sovereign power, or the ease of the Subject, yet they shall never restrain the Sovereign power or Interest. Dyer, 225. part 35. Hob. 146.  
Besides, this Act is a general Act as to this; nay, it is rather Statutum generalissimum. It concerns the King in giving and taking, which are relatives, and the Honour and Justice of the King in performing really the intents of his Grants doth as truth concern Him and His People, as doth His profit in enjoying and receiving Grants from them, (they are the words of a reverend Judge, the Lord Hobbart, whose spirit in the behalf and interest of the King; I would propose as imitable and exemplary to the Commissioners, I shall not ●e● a syllable of his own expression, (the Case is Sheffield versus Ratcliff. Hob, 335.) (viz.) I must profess, that whensoever I have thought of this Case, and advised upon it myself, I have met with two strong affections, Zeal and Indignation, Zeal in behalf of the King, to preserve the ancient right of the Crown, against the invasions of Rebels and Traitors; Indignation when I find Francis Bigod, that sometimes brought a puissant Army into the Field, to depose the King; failing in that enterprise, now to rise up in judgement against him: that whom he could not by the Sword destroy, he might supplant by the Law: For though Ratcliff bear the name of this Case, yet I see nothing, but the Land of Francis Bigod, his State, his Right, and Title, his blood, his descent that maintain and defends it: Therefore let it not seem strange, that I am warm in this Case, for Zeal and Indignation are fervent Passions: And I do profess, to give Prerogative to the right of the Crown in my care and vigilancy; and it is nobile officium Judiciis & debitum, due by Oath and Office to watch for him, who wakes for us, Ne quid detrimenti Respublica capiat: And if Charity begin at itself, so ought Justice to do, that the King, who granteth Justice to all, should not be wanting to himself, etc.  
Sir, This needs not by an Application to be shaken together, it mingles with the present purpose, as water doth with water; I shall only observe, that the breath of this Reverend Judge perfumes the presence Chamber: whatsoever is contrary in the like Case, is like the stench of Mare mortuum, that stifles whatsoever approaches it. This Francis Bigod was attainted and executed, 28 H. 8. And this zealous expression was 13 Jacobi, by computation something longer than from the 23 Octob. 41, to 1662. Bigod is resolved into his first dust, and those dormitories have some privilege, De mortuis nil nisi bonum, when the persons with whom the present Issue is to be joined, are living, vivit, imo vivit, etiam in senatum venit; The Queen 24. of her Reign, granted the same Lands to Edmond Lord Sheffield, and the Reverend Judge, and the Court retreated not to the Objection made by our Commissioners, That the King had parted with the Lands from himself, and so in a manner qui potest capere capiat, thereby to render that great Act of Settlement, the Emanation of his Majesty's Royal Bounty, to be dispensed by a Rule of Justice, to seem rather like a muss of Apples or Nuts thrown in the Streets, to invite Boys to scramble.  
Before I leave this Point, I shall crave leave to intimate to your Grace's remembrance, (for truly if I should seek in this Point to inform your judgement, I were under an unpardonable guilt,) the opinion of his late Majesty of ever blessed memory, how far he concerned himself, and the dispensation of his Justice, 
Exact Collection.  in order to the Settlement of this Kingdom interested: In his Majesty's Speech delivered to both Houses 14 Dec. 41. there is this expression; But still seeing the slow proceed therein, and the daily disparities I have out of Ireland, of the lamentable estate of my Protestant Subjects there, I cannot but again earnestly recommend the dispatch of that expedition unto you; for it is the chiefest business that at this time I take to heart, and there cannot (almost) be any business, that I can have more care of: I might now take up some of your time in expressing my detestation of Rebellions, in general, and of this in particular; To conclude, I conjure you by all that is, or can be dear to you and me, that laying away all Disputes, you go on cheerfully, and speedily, for the reducing of Ireland.  
In his Majestiees answer to a Petition of the Parliament, his Majesty delivereth himself thus: 
exact. collect. p. 34.  We cannot but thank you for this care, and your cheerful engagement for the suppression of that Rebellion, upon the speedy effecting whereof, The Glory of God in the Protestant Profession, the safety of the British there, our Honour, and that of this Nation, so much depends; all the Interests of this Kingdom, being so involved in that business, etc.  
In his Majesty's Declaration to all his loving Subjects, published with the advice of his privy Council, it is thus declared: viz. And our hope is, that not only the Loyalty and good affections of all our loving Subjects will concur with us in the constant preserving a good understanding betwixt Us and our People; but at this time, their own and our Interest, and lamentable condition of our poor Protestant Subjects in Ireland, will invite them to a fair intelligence and unity amongst themselves, that so we may with one heart intent the relieving and recovering that unhappy Kingdem, where those barbarous Rebels practise such inhumanities', and unheard of outrages, upon our miserable People, that no Christian ear can hear without horror, nor Story parallel; And a few lines after follows these words, (viz.) Whereas We acknowledge it a high Crime against Almighty God, and inexcusable to our good Subjects of our three Kingdoms, if we did not to the utmost employ all our powers and faculties to the speediest and most effectual assistance and protection of that distressed People: And we shall now conjure all our good Subjects, (of what degree soever) by all the bonds of love, duty, and obedience, that are precious to good men, to join with us for the recovery of the Peace of that Kingdom, etc.  
In His Majesty's Message, sent by the Lord Chamberlain to the House of Peers, it is thus said: His Majesty being very sensible of the great miseries and distresses of His Subjects in the Kingdom of Ireland, which do daily increase so fast, and the blood which hath been already spilt by the barbarousness and cruelty of those Rebels crying out so loud, etc. And in his Proclamation of the 1. 
exact collect. 34.  of Jan. 41. inter caetera; We have authorized our Justices of Ireland, and other our chief Governor or Governors and General, or Lieutenant General of our Army there, and do hereby accordingly, require and authorise them, and every of them, to prosecute the said Rebels and Traitors with Fire and Sword, as persons who by their high Disloyalty against Us their lawful and undoubted King and Sovereign, have made themselves unworthy of any Mercy or Favour, etc.  
In an answer of his Majesties, are these words, viz. His Majesty being more tender in that particular which hath reference to Ireland, as being most assured, that he hath been, and is from his Soul resolved, to discharge his duty (which God will require at his hands) for the relief of his poor Protestant Subjects there, and the utter rooting out of that Rebellion. Exact Collect. 72. Thus far this glorious Martyr; and these are but few of many.  
But Sir, If any shall object, To what purpose serves this? A Rebellion is not disputed, neither is there any that ever questioned His Majesty's abhorrence of it. I answer, Though several Pamphlets swarm, to fasten the rice of the Rebellion upon the Protestants, and that we drew the first blood, and much of the like stuff: yet these places are not quoted to that purpose, it is but to show how unreasonably His Majesty is denied to be a party in discovering who were guilty of that Rebellion, so horrid and odious to all Christians, to use His Majesty's words in another place, Exact Collect. 71. when especially this very trial of Innocency and Nocency, is the only way prescribed by the Act to vest the Lands in the King, and is to supply the defect of Attainder and Offices to be found, which must be in the King's name; or that any Commissioners can strain the Act and Qualifications, to let Nocency be shrouded under Innocency, and Treason to become merit. Besides, it is to be observed, the Actors, Abettors, etc. of the Rebellion in Ireland, notwithstanding this jubilee of Indulgences under our gracious Sovereign, stands yet unpardoned, the punishment being left to the execution of this Act; and shall the King be excluded in the trial, and not made party? I shall say no more, but certainly those that are of that opinion, differ much in judgement from his late Majesty, and his Majesty that now is, who inherits his Father's Virtues with his Throne: Besides, I shall put your Grace in mind, that the Agents of the Roman confederate Catholics of Ireland, amongst other their desires in writing, desired that his Majesty's Council at Law, might be at large, and indifferent; but it would not be granted.  
I shall further offer the judgement of the Parliament in England, Decemb. 41. in their third Proposal to his Majesty, viz. That you would be pleased to forbear to alienate any of the forfeitod and escheatod Lands in Ireland which shall accrue to your Crown, 
Exact Collect. 2.  by reason of this Rebellion, that out of them the Crown may be better supported, and some satisfaction made to your Subjects of this Kingdom, for the great expenses they are like to undergo in that War.  
I do not infer, that his Majesty's necessities or Revenues must be supplied or settled by the confiscation of innocent persons Estates; God forbidden we should put that leavon into the King's Treasury, or such Mandrakes into the pot: But Sir, God forbid on the other side, that Nocents, Nocents in so high a degree, should for want of evidence, that the Law allows in the King's behalf, should be made Innocents', whereby his Majesty's Revenue so considerately settled in this Kingdom, should be reduced to nothing; and so the Protection we enjoy by his Majesty's Army (for so is our condition in this Kingdom) be dissolved, and to complete the misery, the Protestant Families turned out to the open Sky, to entertain him, whom upon the account of Rebellion, his Sword had conquered. It is further worthy of consideration, that his Majesty is not only concerned in his Revenue, but by a strict decreeing of just forfeitures, answers a debt his Majesty hath been pleased to take upon himself, by his Letters from Breda, to the Army here under the Command of the Duke of Albermarl: The payment of that part of the Army in England, drew vast Treasures, whilst the forfeited Lands here, by a due execution of the Act, will discharge that debt: Be pleased to consider the worthy Adventurers of England (of which interest, saith his late Majesty, I am resolved to be very tender) and I am sure, Sir, it concerns a Protestant Parliament to be tender of them: Should our sins provoke God to visit us with so sharp a correction again, as he did in 1641. with what confidence could we expect supplies from England, if former Adventurers, bottomed upon so strong a security, should after such so long, so expensive solicitations, be disappointed. And Sir, we are upon the precipices of this ruin, when amongst all the persons that have been restored as Innocents', we cannot understand of one, neither can We say upon our own knowledge (and we come from all parts of the Kingdom) that any one of them, from 1641. to Sep. 165— ever drew a Sword against the Irish in Rebellion, or ever assisted the English forces in the prosecution of them: And much of this ariseth, the King being not made party, by the vilifying of the Witnesses produced by the English, the checking of the English Council at the Bar, whilst the insolences of the Irish Counsel are passed over in silence, the disrespect unto Depositions, Evidences, and the absolute rejecting of other matters of Record, His Majesty we hope by your Grace and Council, being thus stated in his right: we come to the second Proposal his Evidence.  
2. That all Examinations and Depositions whatsoever, taken for discovery of the Rebellion, as proceed of the Rebels and their Adherents, as well during his late Majesty's reign, or in the time of the usurped Authority. All Books, Rolls and Writings, remaining in any Offices belonging to the Court of Claims, or in any of his Majesty's Courts of Record, as also the Books of Kilkenny, be taken for good evidence, in behalf of his Majesty, to bar such person or persons of their janocency.  
Sir, We promise the King to be party, and then this Proposal reacheth but to evidence concerning Guilty or not Guilty of the Rebellion in Ireland; But in the general, as to evidences and proofs. We must take notice that the Law distinguisheth times, and according to Emergencies, suits and applies its remedies; This is the great design of the Statute-Law, to alter and change the garments of the Law, according as the dimensions of the Body Politic alter and change; The Notoriety of this Rebellion no History can parallel, (to use his late Majesty's words) and yet to come to the proof of individual persons acting in it, is no easy matter. In the late Wars between France and Spain, puissant and numerous Armies have been drawn into the field, and yet how few individual persons by exact proof of the adverse party, could be concluded to have ever been present at any of those battles? Our Case differs not; We were as distinct enemies as French and Spaniard, the English under his Majesty's Government, the Irish under a Supreme Council, and general Assembly. How can we witness without seeing? how could we see without fight? during which Act, Our spirits on both sides exercised not so much the reflect Act what We should do hereafter before the Judge, as the direct Act, What we were to do upon the place before our General.  
Silent leges inter arma, was never more truly applicable, did our present condition bear analogy with Nets and Routs in time of peace, the Law enabled us by means to maintain a distinct proof: But Sir, It is a true Maxim, Quod remedio destituitur, ipsa re valet si culpa absit. and the Law where the subject matter in demand will not admit of proof, 
2 Bulstr. 310.  will supply it, denying to deliver the money, the Law will construe it a sufficient proof to maintain a conversion of it; And the great Act of Settlement had in its prospect these difficulties, the Act words (p. 4.) are viz. And for as much as the Rapines Depraedations & Massacres, committed by the said Irish and Popish Rebels and Enemies, are not only well known to this present Parliament, but are notorious to the whole World, Notwithstanding the many Means and Artiffices, which for many years together have been used, to murder such Witnesses, suppress such Evidences, and also to Vitiate and Imbesil such Records and Testimonies as might prove the same against particular persons, etc. Thus your Grace observes the Judgement of King and Parliament, that this is an extraordinary Case, and it is not disagreeable to Law, Novis injuriis emersis nova apponere remedia, and We ought not to allow that imperfection in our Law (living in the most glorious Constitution in the known World,) that Treason and Rebellion should pass with impunity; because though the Law meets with these Enemies, per se, yet that it should suffer them to escape, nay, to triumph, per accidens; No Sir, the Law will do much, ne curia Domini Regis deficiat in justitia.  
But Sir, more particularly; The Law betwixt party and party, allows in many cases, Examination to be taken, in perpetuam rei memoriam; If so, it would be a hard consequence of his Majesties and Council, foreseeing the difficulty of proofs, flagrante bello, should authorise persons to receive Examinations that then might be had, if afterwards no use should be made of them; It is as true; tha● Rex non praecipit inutilia, as that Lex non praecipit inutilia; 
Cro. Car. 69, 70.  It is a remarkable Case of Sir Randolph Crew (ver. George Vernon:) That Examinations of Witnesses taken by Commission, after the death of K. James, (which Commission legally was determined,) yet should be allowed to be goods especially (as the words of the Judges are) in a Court of Equity, where the proceed are jure naturali, and not according to the strict course of the Law; And be pleased to observe their further Reason certified to his Majesty, (viz.) Otherwise it would draw into question many trials by verdicts of Nisi prius, and Trials and Attainders upon Goal-deliveries, whereupon divers have been arraigned and executed since the King's death: so that your Grace may observe the prudence of the Law, to obviate inconveniencies, and therefore multa conceduntur per obliquum quae non conceduntur in directo.  
Besides, the Law requires not the attending of circumstances so praecise from matters given in evidence, 
Kelway 166.  as it doth from the same matters by way of pleading; 
Br. Records 65. style 34.  A man shall not plead a Record except it be in the same Court where it remains, unless it be exemplified under the great Seal, 
Heatiey 138.  but otherwise, it may be given in evidence; A cancelled Deed, (after testimony given of the matter of fact how it came to be cancelled,) was read in evidence: Proofs by deposition taken in the Exchequer in a former suit, 
Lane 110.  shall be allowed, notwithstanding the parties are alive: a fortiori, depositions taken in the King's case, and between the same parties as in our case it is: 
Hob. 109.110.  But true it is, where the King's Plaintiff, and the Defendant claims by Feoffment, and to prove it duly executed, desire some depositions taken at York might be allowed, the Court refused it, because the original of the depositions were gone so, as the King must fight with weapons assigned him by his adversary; 
Godbolt 439.  so if the Plaintiff cannot find his witnesses to give testimony viva voce, than he is, as it were, dead unto him and his depositions in an English Court betwixt the same parties, may be read to the Jury.  
It is further observable, that in Trials the Law allows evidence, according to the necessity of the subject matter: If the Lord distrain for Escuage, and the Tenant pleads, that he was with the King in Scotland, it shall be tried by the Certificate of the Marshal of the King's Host: 
Littelt. sect. 102.  If in avoidance of an Outlawry, it is alleged he was at prison in Bordeaux, it shall be tried by the Certificate of the Major of Bordeaux: 
1 Institut. 74, Moor 451.  The issue was upon full age, and two Church Books were given in evidence.  
But it may be objected, That it would seem hard that Depositions taken by usurped Authority should be good. I answer, The same reason that warranted judicial proceed in those times to be confirmed, may allow these, only the reason is stronger in our case, because the matter of fact hath been so shifted, that the truth can appear no way: To this I add, That by the Act of Settlement they are allowed; the words are these, And whereas several of your Majesty's Subjects, by whom as Instruments, the said rebels were totally subdued, died in the time of your Majesty's absence beyond Seas, 
Act Settl. p. 2.  (be pleased to observe, this was in the time of the usurped Power) for supply of the then pressing necessities, and to prevent the further desolation of your Majesty's Kingdom (here necessitas vincit legem;) Inquire into the Authors, Actors, and Abettors of the said Rebellion and War, (and this was by Offices, Examinations, etc.) And after much deliberation amongst themselves, and advice from others had thereupon, did dispossess such of the said Irish Popish Rebels of their said Lands, Tenements, and Hereditaments, as they found guilty of, and to be engaged in the said Rebeltion or War, and did withal distribute and set out the said Lands, etc. Your Grace may observe in this Clause, here is the Gild, the Proof, the Judgement, and Execution, concerning the Rebels Lands, and the date of those proceed, is, during his Majesty's absence; and yet this is laid as the Groundwork of that Clause, which vests the Lands in the King: for all the Characteristical Letters of forfeited Lands, in the fourth and fifth pages of the Act of Settlement, are, the manner and ways of seizing, sequestrating, distributing, allotting, etc. of those Lands under that power: for either that way must have been observed, or otherwise, the Irish being a consederated Body associated by Oaths, established under a Democraty. And lastly, conquered by Arms, must, and of right might have been, according to the Law of Nations, condemned in gross; It is to be feared, the King will encounter many Deeds and Settlements, and lewd Witnesses, it is but reason he should defend himself by his own that are just: And if out of Acts of Usurped Powers, his Majesty settles the peace of his Kingdoms, it is but a part of Royal Chemistry; out of poisonous Minerals, to extract a Cordial.  
Propos. 3. That such Proclamations, or any Act of State as have declared any person or persons, and their Adherents, Rebels, before the Cessation in this Kingdom, 1643. by his Majesty's Authority, shall be good Evidence in the King's behalf, against such person ●r persons, to the Impeachment of their Innocency, before his Majesty's Commissioners, for Execution of the Act of Settlement.  
A Proclamation is part of the King's Prerogative, and obtains in cases of necessity, the force of a Law, and is therefore sometimes termed Lex temporis; 
11 H. 7.33. a  If the King proclaim a Tilting to be held, and one kills another in that Exercise, this Proclamation shall be good by Pleading, or Evidence, to excuse the Felony: The King, by Proclamation, may inhibit the Subject to go out of the Realm; 
f. n. b. c. 85. c.  and if the Subject doth against it, it is a contempt, and he shall be fined; and since it is a Law to fine, it will be good Evidence to justify it: It was no time for Sheriffs, in the ordinary course or Law, to make Proclamations, in order to Outlaries, when without an Army it was hazardous to march two miles from Dublin; His Majesty's Proclamation of the 1. Jan. 1641. invites them, to lay down their Arms, and forbear all further Acts of Hostility; 
Col. 34 Pag.  If this Proclamation from Mount-Geball will not take place, that from Mount-Gerezzin must. And we never yet received an instance, that any embraced those offer, of mercy; but though his Majesty hung out a white Flag, they advanced one of red. I shall only add this, that it seems reasonable, that if his Majesty by name declares J. S. to be a Traitor, and to be prosecuted with Fire and Sword; in such case, if any good Subject should destroy the said J. S. he shall be indemnified by the Proclamation, why then admit J.S. have escaped to this day, I say if no intervenient Act of Grace from his Majesty obviate it, this Proclamation may sorely impeach his innocency, that might have warranted me to take away his life.  
Propos. 4. That where by any Order or Orders of the House of Commons, since 1641. and before the first Sessions of this present Parliament, any of their Members, upon the account of the Rebellion, have been adjudged to be rotten Members, and fit to be cut off, and have Ordered the Speaker of the said House to direct his Letter for the issuing out of Writs to supply their places: That such Orders shall be allowed as good Evidence, to bar such person or persons of their innocency.  
It is first to be observed, this extends no further than to the Members of their own House: And your Grace may remember, the Parliament fitting several Sessions after the Rebellion, and reason to inquire what became of the far greater part of the House; they found many English murdered, the ways for travelling obstructed, for such as survived; or otherwise they were engaged in his Majesty's service, for defence of this Kingdom; the Irish they expected after Order upon Order, with their names publicly affixed, whereupon they did conceive one or more Orders, expressing the names of such persons, who upon their own knowledge, were engaged in the Rebellion. The House of Commons is a considerable Grand Jury, it's a good Billa vera they return: Their Orders are Records; 
4 Institut. 23.  and that appears also by 6 H. 8. c. 16. where the words are, viz. And the same Licence be entered on Record, in the Book of the Clerk of the Parliament appointed, or to be appointed for the Commons House, etc. And more directly, 
Account of the Trial, p. 46.  in the point upon the Trial of Harrison the Regicide, Mr. Jessop was produced to attest several Orders of the Commons House, Mr. Jessop being Clerk of the House.  
Propos. 5. That the English Quarters be ascertained from time to time, until his Grace's recess in 1647. and that all Quarters not so ascortained, be adjudged the Rebels Quarters.  
Sir, The Qualifications are the Soul and Spirit of the Act, and amongst the Qualifications, that of living and enjoying their Estates, real and personal, in the Enemy's Quarters, is velut inter ignes Luna minores, it is the Elixir of them; and therefore till those be ascertained, from time to time, we are as in a Labyrinth, without a Clue: It is offered to be ascertained from time to time, for the motion of War is Planetary; and there were Ebb and Spring-Tides, according to the success of the Armies. This will much expedite time, and abate the Alamode sin of Perjury: it will answer much the Proceed of the Common-Law, where a Prohibition lies, when the Bounds of Parishes are in question, when a question is, Whether Lands be in ancient Demeasn, it is tried by the Books of doomsday: 
3 Cro. 228. 5 H. 5, 10. Heb. 188.  This is the Shibboleth to distinguish an Ephraimite from a Gileadite; and the Bounds of the Brook Kidron, warranted the Judgement against Shimei.  
Propos. 6. That where two or more persons have claimed one and the same L●ands, Tenements, and Hereditaments, by several Titles, that such Persons Titles be tried and ascertained before the said Commissioners proceed upon the trial of innocency of any or either of them.  
Without this, it will resemble some Games at Cards, where the Protestant Defendant will assuredly have his Cards rust upon one hand or another; for example, three, or four, or more, (for that is usual) claim the same Lands; now their respective innocencies come first in trial; if three of four be judged nocent, and one innocent, by agreement (to give it no other name) amongst themselves, the other Titles shall vest in him, who obtaining his decree of innocency, shall carry the Lands, whereas re vera; the Title was not in him, and yet the Court (according to this unreasonable Rule) excusable, as to the Judgement, and the Protestants to the defence, who cannot have cognizance of such privy and dormant Titles: This Proposal answers but the Rule of enter-pleading in the Law, wherein to give one instance of many: Two several persons being found Heirs to Land, by two several Offices in one County; it is doubtful to the King, 
8 E. 4.6.  to which of them he shall give Livery; and therefore before Livery sha●l be made to either, they shall interplead, that is, formerly tried between themselves who is right heir.  
Propos. 7. That in all Claims, the Titles to the Lands, Tenements, and Hereditaments, be first tried; and that the Deeds of all Nocents be left in the hands of the Court, there to remain.  
What hath been offered to the last Proposal, may (in part) serve to evince the conveniency, if not necessity of this: it hath its rise from a Maxim in our Law, Frustra fit per plura, quod sieri potest per pauciora; for if it appear, that the party hath no Title, the labour of Trial of innocency is saved, 
8 Co. 167.  where it is probable, Witnesses may strain the Point so far, as to make themselves nocent before God, to make another innocent before man; and it is but consonant to the usual proceed in Law, that where it appears to the Court, 
Cro, Et 230.  upon the Plaintiffs own showing, that he hath no Title, though the Defendants Plea may be vicious, yet he shall never have judgement. Besides, Sir, it is to be observed, That the Trial of innocency is by the Act of Settlement adopted into the place of an Office sound, 
Stamfor. 63, 64.38 E. 3. 18.  and so is in nature of traversing an Office, in which case the Law is clear, that none shall be received to traverse the title of the King, without making a title to himself.  
As to that part that desires the Writings of Nocent persons to be lest in the Court, it cannot work a prejudice to them; for the Lands being adjudged against them, to what purpose will the Writings operate in their hands: But Sir, I correct myself, they will have an operation; and this puts me in mind of a plain, but apposite similitude: Sir, in the North of Ireland, the Irish have a custom in the Winter, when milk is scarce, to kill the Calf, and reserve the Skin; and stuffing it with straw, they set it upon four wooden feet, which they call a Puck●an, and the Cow will be as fond of this, as she was of the living C●l●, she will low after it, and lick it, and give her milk down, so it stand but by her: Sir, these Writings will have the operation of this Puckcan; for, wanting the Lands to which they relate, they are but Skins stuffed with straw; yet Sir, they will low after them, lick them over and over in their thoughts, and teach their Children to read by them, instead of Horn-books, and if any venom be left, they will give it down upon the sight of these Pitckan Writings, and entail a memory of revenge, though the Estate-tail be cut off: Sir, how little soever this may weigh, yet in the Government of Rome, when the Tarquins were put down, not only all moneys and Sculptures that might retain their memory, were by public sanctions decried, but such Innocents' as retained the name, were forced to assume new ones: The Israelites remembered the fleshpots of Ægypt, when Manna was before them; but when they wanted water, they murmured.  
Propos. 8. That where the Claimant claiming an Estate of Inheritance, hath not set down his title certain, in such case, the Claimant shall be adjudged to claim in Fee-simple, and not otherwise.  
Sir, To open this proposal; matter of fact must be thus stated, The Irish put in their claims generally under such expression;, That he is seized as of a Demeasn in Fee, or Fee-tail, or some other Estate of inheritance in use, possession, or remainder: This hath been excepted against, but it hath been overruled to be a very good form of pleading: indeed it is Sir, for one cause, to take away all probable means where by the Protestant Defendant, may maintain his Cause, it endangers him not only to lose his Land, but first to lose his sense; Those Precedents will enrich our Books of Entries, as the Germane word Plunder, did out English Dictionaries, whilst it beggared our Nation. Besides Sir, to demand Oyer of any Deeds, hath been overruled by the Court, so that when according to the present proceed, We come to know the Title of the Irish Climate: We have no more time of defence, than the Fowl hath, that no sooner sees the Fire in the pan, but dies of the shot in the Body.  
And since the Law praesupposeth every man of full age, to know his title, what shall this be accounted but a stratagem? and those fortifications are hardly tenable, when one standing upon the lines of defence, may be short per derriere, is certainly the Centre of the Law; and therefore it says, Oportet ut res certa ducatur in judicium: 
Bra. b. 2. 5 Co. 3.21.  certa esse debet intentio & narratio: Unhappy was that Declaration in trespass, quare clausum suum fregit & pisces suos cepit, which was judged vicious for not showing the number or nature of the Fishes, when Lands, Tenements, and Hereditaments that in the providence of the Law, are more worthy than two Fishes that are sold for a farthing, may be demanded and recovered under all the incertainties and disguises that may be; But the readiest way to make Samson to grind, is first to put out his eyes.  
Propos. 9 That where any person or persons, have put in his or their Claim, before the former or present Commissioners, and after put in another Claim of a different Title, the best Title for the King shall be taken.  
Sir, It is usual for Merchants to put off an old stuff under a new name and here is new stuff put off under an old name; This by the Commissioners is called a Retraxit, and if they please to make good the word as the Law understands it, no exception will be taken; for a Retraxit is, 
21 c. 4.38. 8 H. 6.8.  when the Plaintiff or Demandant comes in proper person into the Court, where the Plea is, and saith, that he will not proceed any further in the same: now this will be a bar to the Action for ever, Qui semel actionem renunciaverit, amplius repetere non potest; but this Retraxit is much like the Retraxit of a Ram or Goat, that retires to make his assault with a doubled strength; Truly Sir, We know not upon what clause in the Act this proceeding is warranted; The proceed before the former Commissioners are allowed, true it is, that some Commissions that issued from them for valuation of Lands, in order to reprisal, are suspended until a new valuation issue by the present Commissioners, and then the best return for the King's Service is to be made use of; if it be objected, those Claims were put in upon the Declaration and Instructions, which by the Act possibly may be altered; It is easily answered, either the Act hath given them a new title, or it hath not: if it ha●h given them a new title, than they are in by the Act, and not by any former title; if it hath given them none, than their old title is that they must rely on; But admit an election be, the Law is clear, 
Noy. 29.  and so resolved, that there is no election against the King.  
Propos. 10. That no Claimant claiming by Innocency, shall be allowed to make any other Claim, in case he shall be adjudged Nocent.  
Sir, We must crave your patience to consider this Case; And first, the Act of Settlement (omitting other divisions,) divides the Irish into Innocents' and Nocents, and there is but one subject matter, upon which, both these distinctions have their prospects, scilicet, the recovery of their Estates; I shall grant, that election of Actions belongs to every Subject as his Birthright; 
Dep. 20.21, 57  but likewise it must be granted, that where he hath made his election, prosecuted it, and determined it, he cannot have recourse to renew his election, being not suspected, but extinguished; I speak this with this salvo that a person that by particular clause in an Act, hath an Estate granted unto him, he must take finally and sub modo, as the Act appoints, 
Br remitter. 49.  and hath no election to claim upon any former or other right; The body of the Act is but consonant herein to the body of the Law that delights finem imponere litibus, and hates all circuit of action: If a man by his Deed granteth a Rent-charge, and the Rent is arrear, it is in the Grantees election to bring a Writ of Annuity or distrein; 
Littl. Sect. 219.  but he cannot make his election but once; for if he recover in a Writ of Annuity he shall never after distrein, or if he doth distrein, and avow in a Court of R●cord, he shall never after bring a Writ of Annuity, because an Avowry in a Court of Record, being in the nature of an Action, is a determination of his election, before a Judgement given; à fortiori, after Judgement given.  
If a Wife be endowed ex assensu patris, and the Husband dyeth, the Wife hath election either to have her Dower at Common Law, 
Dower 158.  or ex assensu patris; but if she bring a Writ of Dower at Common Law, and Count, albeit she recover not, yet shall she claim her Dower, ex assensu patris.  
So if the Grantee bring an Assize or the Rent, and makes his Plaint, he shall never after bring a Writ of Annuity: Nay, when an Election is given to several persons, 
10 E. 4.17. 1 Institut. 145.  there the first Election made by any of the parties shall stand.  
A man by his own wrong may lose his Election, as if a Feoffment be made of two Acres, the one for Life, and the other in Fee; if the Feoffee maketh a Feoffment of both, the Feoffor may enter into which of then he pleaseth, because the Feoffee hath lost his Election, 2 Co. 36.37.  
It is well known, that where many times in one case., the Law doth give a man several remedies, that by the folly of his Election, he may bar himself for ever, 1 I●stit. 27. a. b. 279. a. It's at the Election of the Issue in tail, to enter, or to allow himself out of possession, and bring his Formedon: it's at my election, if one receives my Rent, if I will charge him with a Disseizin, and allow myself out of possession, and bring an Assize, or have an Action against him. 1 Cro. 220. but I shall be bound up by that election, to the advantages, or disadvantages that accordingly attend it. So it is in the Claimants election, to claim by Innocency, or Nocency; but after Judgement given, he shall be concluded.  
Propos. 11. That any person claiming as an innocent, shall after proof of the title, proceed to prove himself to have been faithful, and loyal unto, and never to have actod against his Royal Majesty, or his Father, before the Defendant shall urge any Crimination, and that for defect of such proof of innocency, the Claimant shall be adjudged Nocent.  
The very letter of the Act rules this point (page 17. of the Act.) viz. That all innocent Papists, being such as shall prove themselves to have been faithful and loyal unto, and never acted against our Royal Father, or Ourselves, etc. The Evasion, that this relates only to innocent Papists of Convaught, will not hold, except by some Philosophical Rule, we may ascribe a particular malignity to the Climate of that Province: it is also agreeable to the rule of Law, Actori iucumbit onus Probandi, they are the Plaintiffs, and have Estates granted to them, upon condition that they prove themselves innocent: There is an Objection, the Solution whereof will aboudantly clear this point: The Objection, is, Stabilitur praesumptio, donec probatur in contrarium, and therefore every of them shall by Judgement of Law be presumed innocent. I will grant this to be regularly true, but Distinguenda sunttempora: when the whole Kingdom is under the serenity and calm of peace, and his Majesty's Writs have their free course, every man shall be presumed to be a loyal Subject: for what appearance is there to the contrary? But, if a part of the Kingdom shall rise up in arms against their Sovereign, and assume a contradistinct Government, and in defence thereof maintain a War, and, which is worse, a cessation, with detention of his Majesty's Forts, and the inheritance of his Subjects, Nisi— this latter being an act of Judgement and deliberation, and this by Oath of Association, and by the strictest rules of confederacy, Who is it, that without the violation of charity and reason, can Judge all or any of them innocent, till by distinct and authentic proof, they have separated that guilt from themselves, which for so many years unto blood they espoused? Upon this construction, be pleased to hear the words of the Act, for that is the Touchstone of pure or adulterate Expositions; viz.  
Whereas an unnatural Infurraction did break forth against your majesty's Royal Father of over Blessed numory, his Crown and Dignity, in this your Majestics Kingdom of Ireland, upon the 23 of October, in the year of our Lord God, 1641. and manifest itself by the murders and destruction of many Thousands of your said Majestics good and Loyal Subjects; which afterwards umversally spreading and diffusing itself over the whole Kingdom, feetled into, and became a form, and almost Nationall Rebellion, etc.  
The case being thus truly stated, it is easy to discern both from the nature of proof, being in the affirmative; and the advantage that they are to receive by it; That they must putify themselves according to the purification of the Law, before they can be admitted to offer in the Temples of Justice: And therefore the case will be much like, as where a bargainer shall endeavour to avoid the bargain, by reason of the non-enrollment within six months: he must make manifest proof thereof, or else it will be presumed that it was enroled within the six months. 4. Co, 20. Sir if an innocent person will endeavour to avoid my present Estate, upon surmise that he was not guilty of the Rebellion (being a Roman confoederate Catholic, under which Title the War was maintained,) he must prove his Innocency, or else it shall be presumed he was one of them.  
A. and B. Tenants in common of a Manor; A. purchaseth a Franktenement mixed with the demesne Lands which were not certainly known: B. brings a Writ de Partitione facienda, of the Manor only: It was held by the Justices, That A. must prove the bounds of the Franktenement putchased: For the Jury shall be discharged if in conscience they make Partition, de tanto quanto praesumitur & dignoscitur per praesumptiones & verisim lia, Dyer, 266. So, Sir, the Irish Claimant coming under that violent Presumption of Nocency, if he will not prove the bounds of his actings and conversation during that War, the Jury (if there were one) or the Court as it is at present, are discharged, if they judge him nocent, if upon proof allowed unto him he cannot clear himself of that presumption: I say [that violent presumption] because the Act casts it upon him, and Fortior est dispositio legis quam hominis: Nay, that Act to which he himself is a party: so that every Irish Claimant that appears in the Court, the Law supposeth him to plead thus; I confess the Rebellion in Ireland was universally spread, and became almost National, yet whosoever is innocent amongst us, and so can prove himself to be, must have his Estate without a previous reprisal, and not otherwise; I am an innocent. Pray Sir, admitting, that the King by no grant or engagement had disposed of this persons Estate, would you not judge that Court very complimental, that upon such allegation would judge him his Estate without any proof; There is little of my Lord Hobart's zeal and indignation in that Court.  
Besides Sir, if this were an Imposition, it is no other than what the natural Olive is subjected unto; Those Officers that ever faithfully served his Majesty, called the 49 men, and then why should the wild Olive repine? Before they can be admitted to state their Arrears, they must prove in what Regiment, Company, Troop they served, with a continuando during their service; And nothing is more practicable. In the Barony of Evishoan, there are above two thousand Irish can bring hundreds of Protestants to witness their civil demeanour, through the whole course of the distemper in this Kingdom.  
Propos. 12. That every Claimant doth summon the Owner or Defendant of the Land, or upon Affidavit made that he or his dwelling cannot be found, the Tenant and Attorney of the Defendant, and after such summons, notice be given of the day of hearing the said Cause, by posting the name of the Claimant, and List of Lands in the Court 30 days before the hearing in Leinster, and 40 days in any of the other Provinces, and that the Commissioners be desired to publish the Lists promised.  
A true Regulation in this particular of Summons and Process of the Court, is of great importance; errors in this, are like faults in our first, decoction not to be remedied: Notwithstanding the long experience, and curious observations of the settled Courts of Justice, in 21 Eliz. c. 3. which with us was Enacted 10 Car. c. 12. we were forced to have recourse to a Statute for the avoiding of secret Summons in real Actions: Courts of Equity adhere close to their Process; in Courts of Law they are fitted, according to the Nature of the Actions to which they relate: And it is apparent, if this Point be not ascertained in a different way then, as now it is used, many persons will be, as some already have been, decreed out of their Estates unheard, notwithstanding their greatest vigilancy to defend them.  
Propos. 13. That the Commissioners observe to proceed in the trial of Claims of Innocents', only in the respective Counties, according to the Priority heretofore published by themselves: And where any such person claims in several Counties, that such person be not heard, till the last County come to be adjudged, according to the forementioned order of Priority wherein he is concerned.  
That there be a Priority of Counties, and that Priority positively to be observed, is of absolute necessity: It were very hard (dividing this Kingdom into thirty three Counties) to give them all the alarm at once, and to continue them on that duty, when but one quarter is attaqued; we shall outbid the Wind's uncertainty by a point, that ever wand'ring within 32 points. Every man comes with the Spirit of a Gamester, fairly confident to win, that is, to have his business speedily heard; the English are served with Process, who must appear, both Plaintiff and Defendant are drawn up, with their troops of Witnesses (a sort of Militia that must not run in arrears) always ready to fight, but uncertain when the Court will give the signal: it will be charge and expense enough to both parties, when it is confined to a particular County, but without Priority the charge will increase in proportion, as 1. is to 33.  
As to the second part, to post-pone, the trial of the claim out in several Counties, to the time of the trial designed for the last County: This will be a sole expedient to prevent surprises in hearing (no small fate to the English Defendant) and of no prejudice to the Irish Claimant; or if so, it were de minimis, which, in so comprehensive a Settlement is not regarded: For example, If a man have but three Acres in the County of Dublin, and a thousand pound per annum in the County of B. as much more in the County of C. which is set forth to several Adventurers and Soldiers, when this priority of Counties, and postponing of trial to the last County is established and published, all the Defendants are secure, until the trial of the last County comes, and then the several three Counties make an united defence; whereas otherwise, if he slip into his trial for his three Acres in the County of Dublin, and by a faint defence or otherwise, he be adjudged innocent, it is likely that Decree of once innocent, shall be always innocent as to recover the remainder of his Estate in the other Counties, that never had notice of his Trial.  
Next, it were manifest injury to the King, where the trial may be, when the first County, or last County, comes upon the Stage, to take away the right of Election from his Majesty, specially accompanied with a palpable loss and disadvantage: It is yet the character of two great Generals, That one cunct ando, by delaying, recovered the lost estate of the people; The other Celerando, by precipitation, lost what was in possession.  
Propos. 14. That matter of fact cognizable by the Court of Claims, be tried by Jurors.  
We do not well understand, how by the Act any other way of trial is allowed; for in some cases, lest there might be a mistake of what proof is intended, it is particularly set down by Juries: Next, this Trial by Juries, is the ancient way and birthright of the people, State ●uper vias antiquas: And though this Act had Enacted a trial otherwise, and only in the affirmative, it would not have excluded or barred this ancient way of trial by the Common Law, and which was before the Conquest (Lamb, verbo. Centur.) Besides, it is the clear uncontroverted construction of the Law, that, Wheresoever a Statute mentions the word Proof, the Law intends it of no other manor of proof whatsoever, then that by Juty. The Court of Chancery, how often doth it reconmend issues to the trial of the Common Law Courts by Jury. Matter of Law, and matter of fact are divided: to the first, the Judges answer; to the last the Jurors. Upon any wrong done by the Court, there lies remedy by Error for the Subject; if by the Jurors, then by attaint; but as now the execution of this great Act stands, admit the Court being Judges both of the Law and Fact, will decree away my Estate, Where is my remedy? The highest Court of equity allows a Review: Hob. 202, 203. resolved by the Judges, That to try causes that were naturally triable by the Common Law, and by the Jury, by a Chancery way, would suddealy confound all Jurisdictions, make all the Common Law, and all the course of it, needless, and a handmaid to the Chancery. It is further considerable, that this will certainly bring great prejudice to his Majesty's interest; for Jurors may find many things, that the Court will not, or is not bound to take notice of, the finding whereof may vest the Estate in the King: A verdict may find matter of Record, which was never given in evidence; and so likewise matters of writings, and other things, not within the plead, or ever given in evidence; and nothing, can more contribute to the just discovery of men, and their demeanours in these troublesome times, than by the knowledge of their neighbours, Vicini vicinorum facta praesumutnur sctre: And there is no reason that the English Interest having but one eye left them, as to this point of discovery, and that not yet recovered from the bloodshed, should have that put out: Sir, if no other reason moved, this would induce us, Lest we cast a disrepute upon our ancint and known Laws, that make this Island a Terra firma, as if these ancient Courts were only Pleasure-boats in fair weather, and could not ride it out in a storm: Sir, if we settle the Kingdom by any other means, than by the experienced rules of those Laws, we may hastily bring our wounds to healing and skinning, whilst a sanies, and corruption lies at the bottom, which will break forth more incurable than at first.  
Propos. 15. That no person shall be admitted to prove his Innocency by any other Witnesses, than such as have constantly lived in the English Quarters.  
We must with your Grace's favour consider the issue again, (viz.) Guilty or not Guilty of the Rebellion in Ireland; if so, no person that is Particeps criminis, that is under the same guîlt, aught to be admitted a witness against the King to prove the person upon his Trial innocent, Facinus quos inquinat, aequat: If a person be infamous, if he be attainted of a false verdict, or conspiracy at the suit of the King, or convicted of perjury or of felony, whereby they became infamous, or regularly he that loseth Liberam legem, cannot be a witness; now if your Grace consider what hath been hinted formerly, how the Rebellion in Ireland was maintained and owned by confoederacy, association, by their representatives in the General Assembly; that were Homines generici, as Divines term Adam, when by his fall his posterity fell: If your Grace reflect upon the spreading consequences of it, that as it was voted by power, and trust sent from all the Counties, Cities, and Burroughs, within their power, so it was tragically acted in every part of this Kingdom; And lastly, if your Grace cast your eye upon the mark, and levelly in this case, the Act of Settlement, which upon these and other considerations, have called it universal, and almost National: i● would seem but very just that such crimes should not be purged by persons guilty of the same, which all under that confoederacy by the Judgement of Law and that Act, are; These persoes have by their own industry lost Liberam legem, their Estates are forfeited as well as if it were by Office or at tainder. For What? It is answered Upon the account of the Rebellion: then certainly the witness must be Rectus in curia, before he can make anothe so; for Quicquid efficit tale, est magis tale: in a modus decimandi, against one, the rest of the Parishioners shall not be witnesses; in defence of Common against a Commoner, the rest shall not be witnesses, Hob. 92. And yet the union and tie in these cases, are not under such strict interest of association, as amongst the confoederate Catholics of Ireland.  
It may be objected, We make use of them against themselves: It is easily answered, It is but just and reasonale: A Tarryer is the only creature to unkennel a Fox, because he is got by a Fox and a Brache hound; How is it possible for us to prove such a person to have been at such a battle, to have contributed to their assistance, to have sat in their General Assemblies, but by persons frequent amongst them, and of their own confoederacy, and such a Witness is in Law a double Witness, and the same reason urgeth the necessity of their proof by such as lived in our Quarters: Besides, it is known how the Law is, in case of an Approver, who though he confess the same Felony, Stamf. pl. Cor. fol. 142. Who either by direction of the Court, or at the prayer of the Felon himself, is examined by the Coroner, and his examinations taken upon Record for the good of the King and Commonwealth. And Sir, I suppose the Opinion is maintainable, (especially as the proceed are,) if he or they that were in arms in Munster, are not equally guilty of the blood shed by the Army in Ulster: they move by joint Counsels, from one public stock of maintenance, the victory of one is the victory of the other, and consequently the blood shed by one, is the blood shed by the other: It is good Law, that if a man received a man that is attainted of Felony by Outlary in the same County, though he be ignorant of it, yet he is accessary to the Felony, because the Outlawry is matter of Record, of whsch every one ought to take notice; This were durus sermo, a hard Law, if when an open and universal Rebellion is maintained, and the King's Colours flying in the field, and the Sword, and other Ensigns of Royalty at home, (as notable matters of Record, as an Outlawry upon Proclamations in the County-Court,) that persons should not take notice of it, and then taking notice of it, should relieve and abet the actors therein, and instead of being punished as accessaries, they shall triumph, as witnesses to clear the principals, (if any accessaries, were in Treason,) The reason of the Law why if 3. or 4. be in a room, and but one gives the deadly stroke, yet the other shall be accessaries, is, because the presence of the rest abated the courage of him that was killsd to make his own defence: upon the same reason, all the confoederate Catholics are accessaries or principals.  
If it had been understood by the Protestants in Ulster, that this Rebellion had been only the attempt of Sir Philome, or a Rabble, as in public papers the Irish have termed it, so much blood had not been so cheaply spilt: but hearing it was universal, and countenanced by confoederacie of all; that his Majesty's Proclamations to lay down arms were contemned, this abated their spirits, and made way for despair to dethrone resolution.  
Propos. 16. That when the Court doth give Judgement upon any cause, that every respective Commissioner seriatim, deliver his particular Judgement in open Court, with the reasons thereof.  
Sir, It is among the ornaments of our Law, that matters are very learnedly debated at the Bar, and in Causes of difficulty, solemnly argued by the Judges on the Bench; In every leaf of our Year-Books and Modern Reports, we may discern the Judge's Opinions and their Reasons. No doubt but Judicatures are under great temptations, and a greater check cannot be upon the frailty of our Natures, that they lie not under the protection of a concurrency: As true it is, that virtue hath been scandalised by an affi●●●y with vice, so likewise it is true, that vice gets a reputation by a commerce with virtue: That Cato did look on, was held to be a restraint to some spirits; and no doubt but when so great an audience as attends that Court, shall hear every particular Commissioners Judgement, and the reasons of it, whether it may prove as a means of caution to themselves, yet surely it will give a great satisfaction to the persons concerned, upon whose uninterested Judgement they may repose as well, as upon their Counsels argument: Thus it was in the case of Ship-money. And such is the solemnity of Judgements, that they are enured Consideratum est per Curiam; if it be entered Videtur Curiae, for the levity of it, error will reverse it.  
Propos. 17. That where affidavit shall be made, that one or more materia Witnesses being summoned before the Court, refuse or neglect to come in, that such cause be suspended.  
This Proposal is the issue of Experience: for we are certainly informed, that divers persons who have formerly offered themselves as witnesses, and that have declared their knowledge in order to prove the nocency of several persons, withdraw themselves some allege they are under the censures of Excommunications, and Fulminations, (they are hard words, but happily your Grace remembers them, when not only your Grace, but such as should give your Grace any relief, or those that served under your Command, have been involved in the same, and perchance your Grace hath not forgot the operation of them). It is said in Philosophy, Actus activorum non sunt nisi in patient bene praedisposito. How receptive the complexion of the people hath been of such influences, I shall pass by; only thus much I must observe, if they were so powerful as to violate the Bonds of Allegiance, to their lawful and merciful Sovereign, they may without straining, dissolve the Reciprocations of Common Equity amongst Subjects: Estates rest upon Proofs, and if Witnesses neither flectuntur prece aut pretio, I mean their necessary and convenient expenses tendered: we must resort to the Law for its process; If they will not manage with a Snaffle, perchance their Heads may be brought into a Rane with a Port-pit: And, upon Affedavit made, it is but reasonable to suspend the Cause: There is no privilege in this case by Law, to exempt them for giving Evidence in his Majesty's behalf, and for settlement of this Kingdom, which is the adequate Object of the Act: There are no stronger or nearer Relations than Man and Wife, that the Law (in many respects) esteems them as an Individuum: Yet a Wife, for the King, may be brought to give Evidence against her own Husband: Privilegium non valet contrarempublicam: A Master of a Ship, laden with Merchant's Goods, may cast them overboard; but if he be laden with Ammunition, Ordinance, etc. of the Kings, to relieve his Army or Gartison, he cannot justify to fling them overboard, though the Vestel and Mariners lives are at the stake, (Bacons ma. pag. 17.) But is not the settlement of the Kingdom of more worth, (and that depends upon the faithful discharge of Evidence) than a particular Garrison.  
Propos. 18. That where any person or persons provided for, to be restored by particular name to any Estate, that such person or persons shall not be admitted to claim the same, under, or by any other way or means, then is laid down in such Clause in the said Act, wherein he or they are so particularly named.  
May it please your Grace, this humble Proposal is one of the Poles, upon which the Act of Settlement moves; and it hath its particular aspect upon the Clause, in page 21. of the Act, in which several persons are particularly named; and afterwards it is said thus, viz.  
We do hereby declare, That they and every of them, without being put to any further Proof, shall be restored to their former Estates according to the Rules and Directions, in the last foregoing Clause of this Our Declaration, concerning such as continued with Us, or served faithfully under Our Ensigns beyond the Seas. Now Sir, we have considered that foregoing Clause, VIZ. That such persons shall be restored to their former estate, a Reprize being first assigned, and legally set out of the remaining forfeited Lands undisposed of, to such Adventurer or Soldier, or other person before named, of equal value, worth, and purchase to the Estate, out of which such Adventurer or Soldier, or other person aforesaid, shall be soremoved. So that it appears clearly, none of these persons are intended by the Act to be restored without a praevius Reprisal first set out: And they are, as to the manner of their Restitution, placed in the Catalogue of those that served beyond Seas under his Majesty's Ensigns.  
Though nothing can be clearer, yet Sir, be pleased to observe, how in order to the Design of this Clause, several other Clauses in the Act are particularly framed for the execution of it. In page 26 of the Declaration, where the Rules of Precedencies in restitution were set down, they are included in the provision made for such as served abroad, etc. or otherwise they were totally left out: But it was but reasonable, since their manner of Restitution was limited, according to the restitution of those that served abroad, that they should be included with them, and it had been mere surplusage to have mentioned them.  
Now Sir, to proceed, in page 37. of the Act, there is a particular Clause for the further making the former Clause practicable, viz. In the next place, you are to take care, that the Adventurers, Soldiers, or other persons, possessed of any of the Estate or Estates of such persons, to whom We have by our said Declaration assigned a particular favour, and are in a distinct branch thereof by Name expressed, be Reprised, as in our said Declaration is expressed, and the said persons restored to their former Estates, from the time that such Adventurers or Soldiers shall be so Reprised.  
And be pleased Sir to observe, lest this intimation might not be directory enough, it concludes, observing always the former cautions and provisions in our said Declaration expressed, referring to the said persons restoration: that is, (pag. 20.) A praevious Reprisal being first set out. One might think here were a particular Act of Parliament from themselves, assertaining under what terms they were to enjoy their Estates. But in the perclose of the whole Act, pag. 118, 119. Provided also and be it further Enacted by the Authority aforesaid, That in case Reprtsals shall fall short, whereby persons mentioned and appointed in the said Declaration and this Act, to be restored without being put to any further proof. This is the Character (that denotes the same persons, cannot or shall not obtain or receive the full benefit intended them) Sir, be pleased to observe, there was no other benefit intended them, than it shall and may be lawful for the Lord Lieutenant, or other chief Governor or Governors, and Council, for the time being, and they are hereby authorised to order, appoint, and make distribution amongst them, of the same satisfaction or restitution allotted them, in such proportion and method as they shall judge most equal and just consideration being had, of the conditions and pretences of the several persons concerned: Nevertheless, according to the Rules and Directions of the Declaration concerning them in all other Points, and particularly of that of Praevius Reprise or Reprisals, which Order and appointment of theirs shall be final, and observed by the Commissioners appointed, or to be appointed for the execution of this Act; any thing therein contained to the contrary in any wise notwithstanding. Thus Sir, your Grace sees how the Interest of these persons so named, is fenced and bounded throughout the Act; so that indeed, the final determination of their Interest cannot be adjudged; no, nor the Interest of any one of them ascertained, till the value of Reprisals appear before your Grace and Council, and then your Order shall be sinal, and directive to the Commissioners: And it closeth home with Any thing contained to the contrary notwithstanding.  
Now though this be so, they are beginning to leap over the hedge, and putting in the strongest foremast, and wave all these Clauses, and put in their Claims upon the account of Innocency, upon which, they had once an election to have relied upon, but now it is determined by this Clause: The reason that induceth them is plain; for if they should be judged Innocents', than they are restored without any consideration of Reprisal: If they be judged nocent, than they will keep this Clause for a Retreat.  
But Sir, I am commanded by the House of Commons, humbly to offer your Grace their Opinion, that this is contrary to the whole course and reason of Law in the general, and very illusory to the main Design of the Act; and in the opening this Point, I have command to be an humble Suitor to your Grace for your patience, his Majesty's In●erest as to his Revenue, and the Protestants Interest, being so highly concerned.  
1. Sir, We presume it will be allowed, That an Act of Parliament binds all persons, for all persons are parties to it, 21 H. 7.4. nay, my Lord Cook, Institut. 4. p. 4. tells us, that multitudes are bound by an Act of Parliament, which are not party to the Elections of the Knights, Citizens, and Burgesses, as all that have no Freehold.  
2. Freeholders in ancient Demeasn.  
3. All Women, having Freehold, or no Freehold.  
4. Men within age, etc. A fortiori, than those are bound by this Act, to which they themselves in person have given their assent. Now Sir, as to the point in hand, (viz. That the persons that are by peculiar name restored to their Estates, under a praevious Reprisal, can claim them no other way then the Act prescribes.) I shall humbly offer you the Judgement of the Sages of the Law in an instance or two: Where a man hath Title to Land by an Estate-tail; and afterwards the same Land is given to him by Parliament, his Heir shall not be remitted, for by the Act of Parliament all other Titles are for ever excluded; for this is a Judgement of Parliament, that the Estate shall only remain in the same very way that it is given: The same Law is, where the King hath a Title in Tail, and the Land is given to him by Parliament in Fee; the Estate-tail is determined, so that the Heir shall not avoid the Leases made by his Father; for the Statute binds all for Titles and Estates, B. Parliam. 73. The Reason given here, is, for that it is a Judgement in Parliament; and of what extensive power that is, even to take the right hand of an Act, 2 Institut. 497. will instance.  
Nay Sir, the operation of a Statute casts it with that violence upon the party taking it, that if it had given me the Estate of any particular person by name, saving the right of that party, the saving had been flattering (as we call it) 1 Co. 47. a. b. It is said, Though the Act be in nature of a Conveyance or Judgement, the saving is repugnant, as to him that makes the Conveyance, or against whom the Judgement is given, or from whom the Estate of the Land is to pass; for though they be parties to the Act, yet, in Judgement of Law, the Land shall move from him that is seized, (Plowden 49.) it is there held, where Lands are given by Statute, it shall be interpreted the gift of the Tertenant, and the confirmation of all others that assent to the Act; for if it should be adjudged the gift of another person, the Parliament should do wrong to the Tertenant, to take away the Land, and make another to give it.  
Sir, The application is easy and familiar to your Grace, who well remembers the great Solicitations that was made to get into this Clause; it was looked on as the Ark, for those who could not endure the Examen of Innocency; and being nocent, found themselves bound by the Act, to be concluded, by taking out of Lands in CONNAUGHT, in compensation of their former Estates; they very well understood, that the Gate of Innocency had no flaming Sword over it, to keep any from entering. As great and powerful Provisions are made for such persons, as Wisdom could contrive; but the Law presupposeth, every man knowing own Estate and condition best, will not make an election to his prejudice; but if he do, and that election is executed by an Act of Parliament, he is bound for ever, Hob. 256. it is thus.  
Note, an Act of Parliament hath every man's consent, as well present as to come, and he may be an Author of his own hurt; also he must hold as the Act gives it, having power to bind every man's right, finally or Sub modo; and therefore if any person by his application to the King, when out of his Princely favour, hath granted his Request, though thereby he hath re-intrencht himself of a provision otherwise held out unto him, he must lay his hand upon his mouth, and own the inconvenience to arise from himself; It hath been judged, that Licence for alienation by Parliament, takes away the Fine, otherwise by Law due to the King: The like in case of partition by Parliament between the Coheirs of the Lord Latimer, 1 Le. pl. 113. the reason is given there, for that the Queen herself is party and principal Agent, and therefore against her own Act, she shall not claim the Fine; And shall an Act attatch the Revenues of the Crown, that are firmamentum belli, & ornamentum pacis, and yet a private person avoid, and make illusions a Statute, for which himself hath been a suitor; and to which, upon the passing of it, he hath personally given his vote: Ecce mode mirum—  
Sir, Nothing is more favoured by our Law then a Remitter, and even that upon construction of the Stat. 27 H. 8. that ancient privilege of the Common Law is so overruled, that the person taking by the Statute, in most cases, shall not be remitted: and if a Statute by construction, lays aside the indulgence of the Common Law in public settlements à fortiori, it will bind private Interests particularly expressed.  
In the next place, I must observe, That all the clauses relating to these particular persons, though they are in the affirmative, yet being directory, as to the form and manner of their restauration, viz. That they shall be restored from the time that such Adventurers or Soldiers shall be reprized, etc. and viz. observing always the further cautions and provisions in our said Declaration expressed, reserving to the said persons restauration (pag. 38.12.19. Act) they carry in them a negative; for it is a Rule, That all Statutes that limit a manner and form in execution of matters that were not so by the Rules of the Common Law, though they be in the affirmative, they are in substance the negative, as if it had been expressed, That it shall be done in the manner and form, and no otherwise; so it hath been adjudged upon West. 2. c. 4. that gives, Quod ei deferunt, and that the Demandants may Vocare ad warrantum as si essent tenentes, that is as much as if it had said, Et nullo alio modo; and so 11 H. 7. c. 20. where it is said, he shall enter, enjoy and possess the Land, according to his title in them, it shall be understood, according to his title, and in no other manner, Plowd. 113. Now to restore an Nocent, that is, one guilty of Rebellion, to his former estate, certainly will be granted, it is not agreeable to Common Law, why then when this Act particularly names some of them, and that under the character of Nocent persons, and presents the way, order and means of their restauration, not once, but through the texture of the whole Act, it must needs rationally follow, that it is intended, and no other way. The Act saith, You shall observe the Rules for their restauration: what is the Rule? it is this, after a previous reprisal; but if you take him out of this clause, and put him upon Innocency, than he is to be restored before a reprisal: I humbly ask, How is the Act answered, that says, Thus it shall be: No, saith the Court, it shall be thus: And by saying so, a great part of the Act is made to signify nothing (nay, tha● part of the Act upon which the Protestant Interest wholly depends, for that being observed, they are sure to have their penny, or pennyworth, the Estates they now enjoy, or reprisal which by the plain and genuine construction, preserves all the part of the Act in symmetry and proportion; and I am sure this was the Judgement of the House, upon passing the Act: I shall shut up this point, with that which should have had the preference, even the consideration of his Majesty's Revenue; if the persons be held to the clause of their own Election, they are to pay the same Rents the Adventurers and Soldiers pay by the Acre; if otherwise, their former Rents, which are not considerable: We know upon whose account it is, that his Majesty is at that great charge to maintain an Army here, it is but reasonable a round share of the charge should lie on them; whilst the greatest Estates of the Irish in this Kingdom, that are rationally qualified by this Act, if they escape it, the Protestants do beat the burden, and they scarce touch it with their little singer.  
Propos. 19 That the Officers before 49 and their Tenants, shall be admitted Witnesses to give evidence for his Majesty in any causes whatsoever, depending before the Court of Claims.  
Sir, We must remember again the Trial, (viz.) Guilty or not Guilty, between the King and the party, and that in matter of Treason, which premised, I might say no more to evince the lawfulness of any of his Majesty's Subjects, to give Evidence upon such a Trial: I shall admit, that regularly no than shall be Witness in his own cause: but this is to be understood cum grand salis; It is said in our Law, Judicis officium est ut res, i●n tempor a rem quaerere, quaesito tempore, tu●us eris; I have hinted before how difficult it is for proof to be made, after so long a tract of time spent in War, and in confusion, since 41. till his Majesty's happy Restoration● The Act, saith the Witnesses, have been slain, and those few, the Officers serving before 49. whom Providence reserved, when God empanels a Jury to inquire after blood, must be challenged: The ways by which Evidence might have been had, hath been by the power of the Sword drawn against, the Law been obstructed; and therefore it may bef●ll to such guilty persons Exceptions. Frustra qui in legim peccat a lege petit auxillum: Were an unlawful Assembly, at this day, in a riotous Posture, the Justices and Sheriffs, with the power of the County, might resort to the place, and view the force, and record it; but this was too dangerous an employment for them, when an Army of Horse and Foot could not undertake it without hazard: and if few or no other Witnesses are left, it were to impose too much irrationality on our Law, that by the Rules of it Treason might pass with impunity: to prevent which, the Law hath recourse, in extraordinary cases, to extraordinary means: It is a Maxim, Quod remedio destituitur ipsa re valet si culpa absit: and therefore the Law will allow an Avowry without Atturmnent, where he hath no means to compel the Test to atturn, 6 Co. 68 a. so where Impediments happen by the Act of God, the Law judges according to the necessity. If one be bound to repair a Bank of the Sea, if he (by negligence) suffer the Waters to surround his Neighbour's ground, he is liable to waste; but if by violence of Tempest, an Innundation happen, he is excusable. If the Heir at full age tender Livery, and dyeth before he hath made homage, the Law gives him the advantage of his Tender in the same way, as if it had been accompanied with all the solemn circumstances attending it: If a Disseisor die seized, the Disseisee being in Prison, or beyond the Seas, it is no descent, Finch Nom. 17. Necessitas vincit communem legem: and therefore, if two joint-tenants be of Land, and to the Heirs of one of them, they shall not join in a Writ of Right and yet they shall join in a Writ of Right of an Advowson: For if they shall not join, neither the one nor the other hath any remedy, 5 Cr. 40. b. Illud quod alias licitum non est necessit as facit licitum & necessit as inducit privilegium quod jure privatur: And upon this ground was the Bishop of Salisburies' Case judged of the grant of an Office, with an Annuity contrary to the Statute, 1 Eliz.  
But Sir, was there ever greater necessity, is not the settlement of the Kingdom in its critical hour, is not the Banes published, Now to give evidence, or for ever after hold our peace? Do not nocent persons pass in triumphant innocency, whilst those stand by, whose evidence, if admitted, would write the Letter of Condemnation on their foreheads? These were the men that broke through the Host to draw water, to get evidence, by marching into the enemy's quarters daily encountering them, and now the water must be spilt on the ground, and they denied to say, they ever did see them: This is worse than to muzzel the mouth of the Ox, whilst he treads out the straw; Persons in many cases may be examined, where the consequence may be to obviate a penalty, they may be subjected unto; A Sheriff may be examined upon his own return. A foreign Plea may be sworn; An Infant levies a Fine, and brings a Writ of Error to reverse it, yet he may be examined; Debt upon arrearages of account, the Plaintiff may be sworn if there be any such account, and by this he takes away the benefit of the Defendant to wage the Law: The party robbed upon the Statute of Hue and Cry shall be examined, and so upon a forcible entry, though the party may have restitution, yet he may be examined; In a Writ of Entry brought, an Essoin was cast for the Defendant in the King's Service, in partibus transmarinus, and the Essoiner was examined and sworn de veritate essoinae, Dyer 154.  
I might proceed, that licet iniquum est aliquem suae rei esse judicem, yet in some cases one may be judge, Master and Carver: Lessor Covenants to repair the House, if he do not, and the Lessee doth it, he may pay himself out of the Rent, 12 H. 8.11. Tailors and Ostlers may detain the Garment and Horse, till reasonable satisfaction be made.  
It may be added, how little those Officers serving his Majesty before 49. are subjected to those temptations, upon which the Law in its rigour grounds itself, to exclude interested persons from being Witnesses; The bulk of that remote possibility of satisfaction, is but glean and fragments, (their reward is, that they know his Majesty hath an esteem of their services and sufferings,) join that with the worth of the persons, being all Commissioned Officers, and then who could without injury to the Law of charity judge them, that to preserve those Oaths of Allegiance & Supremacy they have sworn, inviolably have put no rate upon their lives and fortunes, and have not worshipped the Idols of the times, though the Oven was seven times heated, I say, Who can judge, nay think, that for an acre of Land to be divided among them, they would stoop to so sordid a crime as Perjury: The Peers of the Realm, upon this account, pass upon trials of blood, only declaring their Judgements upon their Honour: But surely cur case is plain, and that they are not only lawful Witnesses, but under strong Obligations, if any person be indicted of Treason, to give in evidence, their knowledge in matter of fact, Tenant for life, and the Remainder over: If Tenant for life be indicted for Treason, he in the Remainder may be a witness, though in that case, when one goes to the bough, the other goes to the plough.  
Propos. 20. Upon motion to the Court, that any aged or impotent Person that can give evidence for his Majesty, That their depositions be taken by Commission, and lodged in the Court, to be produced in his Majesty's behalf, at the same shall require.  
This is not denied in the case of the Subject; Commissioners to examine, in perpetuam rei memoriam, are frequent; It is but reason to use all good Husbandry for the King, and to pickle up such proofs, as through age cannot keep long.  
Thus may it please your Grace, I have passed by those several heads given me in charge by the House, humbly to present to your Grace, with the instance of some of those many reasons they had under their consideration; The conclusion of the Instrument is this, viz. These are the particulars which are presented to his Grace and Council, as the result of the observations which have been hitherto made upon the late proceed; And that this House humbly desires his Grace, that when time and experience shall suggest any thing of like moment with the above particulars, his Grace and Council will be pleased to receive them: And if any thing herein offered, through the straitness of time, be not sufficiently cleared, his Grace and Council would be pleased to admit a Committee of the House of Commons, to confer with a Committee of the Board upon the same; and that, in the interim, if any cause to be heard by the Commissioners, may receive prejudice under any of these Proposals, being undetermined, that the Commissioners being ascertained of the same, may suspend the hearing of it, till his Grace and Councils pleasure be further known.  
It rests only to beg your Grace's pardon, if in discharging the trust reposed in me, I have been enforced to use some words of Discrimination, It is against the Inclination, nay, the Prayers of the House (if the Subject matter could dispense with it) to avoid them: They know, the complete peace of the Kingdom, rests not in cessation of Arms, but in union of Hearts; and they doubt not, but under the prudent Administration of his Majesty's Authority vested in your Grace, we shall arrive to that happiness, that it may be said, Jam cuncti gens una sumus; ah Sir, and Sic simus in aevum: We complain not of the want of a good Law, for the settlement of this Nation upon sure and lasting foundations, such that nothing but our sins can subvert: If the spirits of all Kings living had been textacted, they could not have contributed more to revive a gasping Kingdom, than the wisdom of our Royal Sovereign, blest with a Divine assistance, hath in this Act of Settlement recorded, to perfume and embalm his memory to all ages: But Sir, Corruptio optimi est pessima: It is not the Sword, but the hand that gives Protection, or a Wound, with respect to the efficient cause: The Law saith, All-hail-Protestants of Ireland; but if the execution be dissonant, we are crucified under a glorious Inscription of Mockery.  
The execution of the Law, is the soul of the Law; the want of this hath transmitted this never-dying Truth to Posterity, That Nulla est ta● misera servitus, quam ubi jus est incertum & vagum.  
FINIS.   

February 13. 1662.  
ORdered by the House nemine contradicente, That Mr. Speaker having this day so faithfully delivered the sense of this House, unto his Grace the Lord Lieutenant: Do cause his Speech to be Printed and Published, and that it be entered into the Journal of this House.  
Philip Fernely, Cler. Parl.   

I Do appoint Alderman William Bladen to Print my Speech: And that none else presume to Print it without my Order.  
AUDLEY MERVYN.