SIXTEEN QVERES PROPOUNDED By the Parliament of Ireland to the Judges of the said Kingdom. AS ALSO, Another SPEECH, made by Captain Audley Mervin, to the House of Commons, concerning their Privileges, and their exorbitant grievances in that Kingdom.  
Printed in the Year; 1641.   

SIXTEEN QVAERFS, Propounded by the Parliament of Ireland, to the Judges of the said Kingdom.  
I. THat the Judges may set forth and declare, whether the Inhabitants of this kingdom be a free people, or whether they be to be governed only by the ancient common laws of England.  
II. Whether the Judges of the Land do take the Oath of Judges, and if so, whether under pretext of any Acts of State, Proclamation, Writ, Letter, or direction under the great or privy Seal, or privy Signet, or Letter, or other commandment from the Lord Lieutenant, Lord deputy, Justice, Justices, or other chief Governor, or Governors of this Kingdom they may hinder, stay or delay the suit of any Subject, or his judgement, or execution thereupon, if so, in what cases, and whether, if they do hinder, stay or delay such suit, judgement or execution, what punishment do they incur by the Law for their deviation and transgression therein.  
III. Whether the King's Majesties privy Counsel, either together, or with the chief Governor or Governors of this Kingdom, without him or them be a place of Judicature, by the common Laws, where in case between party and party for Debts, Trespasses, Accounts, Covenants, possessions, and title of Land, or any of them, and with them may be heard, and determined, and of what civil Causes they have jurisdiction, and by what Law, and of what force is their order or Decree, in such cases or any of them.  
iv The like of the chief Governors alone.  
V Whether Grant of Monopolies be warrantable by the Law, and of what, and in what Cases, and how, and where, and by whom, are the Transgressor's against such Grantees punishable, and whether by Fine and mutilation of Members, imprisonment, loss, and forfeiture of goods, or otherwise, and which of them.  
VI In what Cases the Lord deputy, or other chief Governors of this Kingdom & Counsel, may punish by Fine, imprisonment, Mutilation of Members, Pillory, or otherwise, they may sentence any to such the same, or the like punishment, for infringening the commands of any Proclamation, or Monopoly, and what punishment do they incur, that do vote for the same.  
VII. Of what force is an Act of state or Proclamation in this Kingdom to bind the liberty, goods, possessions, or inheritance of the natives thereof, whether they or any of them can alter the common Law, or the infringers of them lose their Goods, Chattels, or Leases, or forfeit the same by infringing any such Act of State or Proclamation, or both, and what punishment do the sworn Judges of the Law, that are privy Counsellors, incur that vote for such Act and execution of it.  
VIII. Whether the subjects of this Kingdom be subject to the Marshal Law, and whether any man in time of peace, no enemy being in the fields, with displayed can be sentemced to Death, if so, by whom, and in what cases, if not, what punishment do they incur that in time of peace, execute Martial Law.  
IX. Whether voluntary Oaths taken freely before Arbitrators, or others for affirmance, or disaffirmance of any thing, or for the true performance of any thing, be punishable in the Castle-Chamber, or in any other Court, and why and wherefore.  
X. Why, and by what Law, and upon what Rule of policy is it, that none is admitted to reducement in the Castle-chamber, until he confess the offence for which he is censured, when as Revera he might be innocent thereof, though subordined proofs or circumstances, might induce him to be censured.  
XI. Whether the Judges of the King's Bench, and by what law, do or can deny, the copies of Indictments, of Felony, or Treason to the parties accused of Treason, contrary to the statute of 42. Edw. 3.  
XII. Whether the statute of Baltinglase take from the Subjects, outlawed for Treason, though erroneously, the benefit of his Writ of Error, and how, and by what means, that blind clause not warranted, by the body of that Act came to be inserted, and by what Law is it countenanced to the diminution of the liberty of the subject.  
XIII. What power have the Barons and the Court of Exchequer, to raise the respite of homage Arbitrarily to what value they please, and to what value they may raise it, and by what Law they may distinguish between respite of homage, upon the diversities of the true value of the Fees, when as all Escuage is the same for great and small Fees, and the apportionable by Parliament.  
XIIII. Whether it's censurable in the subjects of this Kingdom, to repair into England to appeal to his Majesty for Redress of Jnjuries, or for others their accusers, if so, why, and in what condition of persons, and by what Law.  
XV. Whether Deans and other Dignitaries of Cathedral Churches, be properly the mero jure donative, by this King, or not elective or collative, if so, why, and by what Law, and whether the confirmation of a Dean de facto of the Bishops Grantee be good, and valid in the Law, or no, if not, by what Law.  
XVI. Whether the issuing of Quo Warrantoes against Burroughes, that anciently, and recently sent Burgesses to the Parliament, to show cause why they sent Burgesses to the Parliament be legal.   

CAPTAIN AUDLEY MERVINS SPEECH to the House of Commons in Ireland.  
Mr Speaker,  
IT was equal care and policy in our Predecessors. First to lay a foundation, and then by a continued industry to build and perfect so glorious a fabric as the house of Commons lawful summoned by the King's writ represents itself unto us at this day. In which so elaborate and exquisite a structure being finished and crowned with those fruitful and peace-speaking events, may challenge by right the title of a Jubilee.  
To so great a model with neat and provident husbandry they intent no less than suitable furniture (which allowed pride) disdain to  it with any other, but with what by his Majesty's favour they had procured out of his own store; I mean those great and large privileges, which by several acts of royal favour have been dispensed, annexed, nay hypostatically united, to the same Privileges are the soul, by which we move the Sinews and Nerves, by which we are compacted, they are then, by which we breathe Privileges for their birth allied to the King's Prerogative, for their antiquity sacred, for their strength so reintrenched by common law, fortified by statutes, insconsed by precedents of all times, that no man ever attempted their violation with impunity, so that now and then it may be truly said, The King's house is all glorious within. If we which are Heirs to their laws, is unto their lands, will strive to make no addition to the rich invent ●●ie of those privileges they have bequeathed▪ ●●to us, yet with united spirits, let us all least prevent the dilapidation; nay the diminution of the least of them.  
This present occasion of debating Mr. Fitz-Gerralds petition exhibited to this honourable house, sets before us blessings and curse, and is the first leaf (as we may term it) of the house of commons Almanac, not made to serve for one, but for many years, and calculated to serve indifferently for all latitudes, in which, our carriage makes this and all succeeding days but seville and working days, or otherwise imprints this day and our privileges in a conspicuous, plausive rubrique to posterity; whilst the Palladium was in Troy, neither the power nor the long siege of the Grecians, could prevail against it, whilst Minoes' purple locks curled from their native roots, Crete was unvanquished. The Moral of these (afflictions) emphatically preach and teach us this Doctrine, that the safety, pregnancy, glory, and strength of this house, is but only sent us upon this condition, whilst we keep, preserve, and defend our liberties, our rights, our privileges unbetrayed, unsuppressed, and uncontrolled: if any more allied to the corruptions of our own distempers, then challenging an interest in us by a legitimate birth, could involve this grave and great assembly, in such epidemical liturgy, as directly to snore, or at  to wink whilst our privileges clothed in a purple robe of glory (like a word never to be recalled) escape from among us, I say if ungrateful, I should cut off the inheritance of these immunities entailed upon us, and confirmed is a monumental portion upon this younger brother of state, this House of Commons what can we expect, but that our Father's Ghosts apparetted with indignation, should 〈◊〉 unto us with this or the liking branding phrase. Most ungrateful and unfortunate posterity. O aetas parentum pejor Avis; better had it been for you not to live then to outlive your own infamy. If there had been a necessity, you should involve yourselves in a general-guilt, the election ought to have been of such a one as might have died with yourselves; but this like original sin, binds your posterity to sigh for a redemption. Did we bequeath unto you those fair ornaments to be stolen or snatched from you? Oh, where, where was your vigilancy and boldness to present so disastrous and fatal a consequence. Did we with no better success of imitation by your labour, and even unto hoarseness contend in the Parliament held 39 Hen. 6. as Prophesying your weakness, leave you a record to build upon? Where we admitted and privileged one Walter Clarke a Burgess of Ch●pengham, though at that time in execution ad sect. Reg. Did we for this purpose recommend unto you Ferrars case and our proceed against the disturbers of his right? Did we for this purpose recommend unto you Belgraves case 43. of the Queen. Who notwithstanding he procured his election in Winchester by collusion, yet Mangre the great opposition raised by the Earl of Huntingdon upon the sight of the Sheriff's return (a sufficient amerment to satisfy us) we admitted and confirmed him in the protection of our house, did we for this purpose exemplify unto you the case of Richard Chidder, 5. Henry 4. who being arrested in his journey towards the Parliaments (where note that the date of the election is the date of the privilege.) They are twins of one birth, we engraft him as a twig to be writhed by our common root, and quickly lopped off that so perilous authority which would prunne our branches. Nay Mr. Speaker, our fellows labouring Parliament in England, with their hearty commendation have transmitted unto us a precedent from each house. The house of the Lords opening the gates of the Tower to prepare an entry to the censured Bishop of Lincoln, and the house of Commons with like imitation & likesuccesse having performed the same in Sir john eliot and innumerable others. But now I will endeavour to allay the distempered spirits of our Fathers, whilst with more patience and duty we attend the modest corrections of our indulgent King. And so exeunt Patres; and Intr. H. 8. in his own person commending the resolution and zeal of the house of Commons in preserving the lustre of their ownen Privileges from being Eclipsed, alleging himself to be interessed in them, since that he and they, knit together, completed one body, who in this out deserved calamities, would not rather imitate us by scoss, then qualify our untimely repentance by absence of our own murdering wrongs. What may not E. 4. exprobrate unto us, who in the 3. year of his reign, records his regal pleasure to posterity? That all Acts, Suits, judgements, censures & qui dicit omne excludit nullum, awarded against any Member of Parliament, should be utterly void and frustrate, crowning the Act with an Emphatical epiphonema and this act to endure for ever. And surely common reason is pregnant in the justification thereof. That where the public service and good is primarily intended, a supersedeas must issue to private respects, since they cannot stand in competition, & inhabit our sphere: If their judgements are not yet calmed and settled, behold his Majesty, that now is, clothed in his royal Robes, and thus speaking unto you from underneath his state, gentlemans, why stagger you thus, that are yourselves the pillars of the commonweal, you are not upon breaking the Ice, nor bound upon the discovery of the unknown world, each leaf reports your precedents that are like Maps that secure and expedite your fortunate Navigation. From me you can expect no more satisfaction, than what I have declared in the 3. year of my Reign, in answer to the Petition of Right in Parliament, that I am interested in the maintaining of the Privileges of this House, being a main pillar of the liberty of my Subject, the goods of one _____ being seized in my name, and for my use, for denying. Tonnage and pondage, they re-assumed, he being at the time of that seizure a Member of the House, and whether I distasted, sure I am, I had no redress. As for the tender care of my interest in the Fine of 10000 l. and that you admitted my Attorney general to a favourable hearing in my behalf, though against yourselves (a Parliamentary custom not to be written in small Print) I thank you Gentlemen, yet I think you know, as well as I, that these great sounding Fines to me, have in their effects, but short and little accounts, if there be 3. bags, the little one is mine: The 5000. l. damages to the party (a sum equal) or more to the defendants estate) is as much as Magna Charta, by those words of falvo contenem●nto, would warrant. Therefore my Judges, by dividing it, might have considered me somewhat, whereas now the old proverb binds me, where there is nothing left, the King loses his right.  
Now Mr. Speaker, in a Parliamentary way, we must withdraw and enter into our own Sphere. Enter into a discuss of those objections, that impugn Mr. Fitz-Gerralds election, admittance and privilege of this House.  
The first that ushers in the train, is a sentence clothed in sable, standing on tiptoe, and with a rusty dagger thrusting at a star, I mean a sentence speaking error, a sentence visiting the third and fourth generation, a sentence striving to leap over the bounds of magna charta, thirty times confirmed, a sentence awarded against a Judge of a higher Court, then from which it issued. The cause in question is to nullify this sentence, which if he appear a person capable of his privilege, mote sua vivit, and then neither it, nor any thing derivatory, or collater all to it, may be admitted against him by the rules of common, civil, or cannon Law, it being a maxim consonant to them all. Non potes edduci ejusdam rei excepie cujus petitur dissolutio. Now to prove this sentence void (Mr. Speaker) I being no professor of the Law, yet a Disciple of reason, and the body of the audient Subject to the like guilt: I will couch myselse in arguments, quae probat & non probantur, leaving precedents and Bookcases to the learned long Robe: Then thus I argue. By the Stat. 3. E. 4. All judgements, censures, sentences, etc. awarded against a member of Parliament are void, so was this government: some may say, the King is not here included, I say (qui dicit omne, excludit nullum) And experience, the mother of know ledge, teacheth the same in precedents afore rehearsed, and one I will add for all, which is Trewman, 38. Hen. 8. who was in execution upon a writ of exigent after a Capias adsatis faciend. at the King's suit, and yet privileged, besides, this is not at the King's suit, for the King is interessed here but secondarily both in name and profit. Now I must make good my minor, that he is a member of this house: he that was duly elected and truly returned, is a member of this house, so was he. Ergo, etc. My minor will be questioned, I confirm it thus, where the Kings writ for election is duly pursued, according to the most used and received form, there such an election is good, so was this. Ergo. Here (Mr. Speaker) falls the weight of their objection, which we will master, and answer with equal speed, and first vellicat mihi aureum nescio quis, and says the writ is Burgenside Burgo, but he is not Burgensis de Burgo. First I say quomodo constat, here is none to offer in proof he is not so, beside I offer it in Quaere, whether the election doth not ipso facto make him a Burgess, & in omni instanti, again I say the writ is directive not positive. u.g. in a venire facias, the Sheriff commanded to return 12. yet if he return not 24. he shall be fined, in respect experience and practice proves, some of the 12. may be questioned and challenged: besides the writ explains itself, the Knights must be Comitatus tui, but the Burgesses and Citizens dequalibit Civitate & Burgo, which can admit of no other construction, but these two Burgesses out of every Burrow (& not as Comitattus tui, is, which were then of every Burrow, and certainly the Law provided this with great reason as not doubting every Shear could afford▪ Knights, resident, yet jealous, whether every burrow could provide 2. resident Burgesses qualified with these necessary adjuncts, as could befit a member of so noble a place; Again the writ commands duos milites, and yet exception was never taken upon returning of Esquires, so that the writ expounds itself, it is not literally to be taken. Next there is Thunder and Lightning shot out of the Statute, 33. H. 8 being a Stat. to regulate election, and absolutely commanding every Knight and Burgess to be resident and have a certain Fee-simple in every burrow and County, our of which they are elected; Here they suppose our Privilege will cry quarter as ready to be murdered by the Statute, but it is ominous ante victoriam canere. For first, we answer, that the disuse of a Statute antiquates a Statute, as is observed upon the Statute of Merton, and custom applauded by fortunate experience hath in all Parliaments ever prevailed; a house of Commons would rather present Babel in its confusion, if the Tinker would speak his Dialect, the Cobbler his, and the Butcher conclude a greasy Epilogue, than the writ were well pursued, these were I donei homines to take & give counsel de rebus arduis; but even to cut off the head of their own argument by a Sword of their own, this Stat. of 33. H. 8. see mes by the preamble to be made in repeal of all former Statutes, by which, election not qualified with residency, was made void, and so became a greevance to the Commonwealth, & therefore this Statute makes the election not observed ut supra, only penal, so that there is nothing offered in objection, either from the writ or Statute to avoid this election. Now I have placed him & daily elected him, and then his privilege grows by consequence, but yet we have other objections minoris magnitudinis, & to repeat them is to confute them; First say they every Libelleris, de jure, excommunicated; I answer, every Libeler must be Scriptis; Pictis, or Cantilenis, our member is guilty of none of them, no, he is not termed, so neither in the censure, nor in any present proceeding. Another flourish is, that he pleaded not his privilege in the Castle-Chamber, in which very objection, they confess him privileged, and make themselves guilty, that they would proceed against a known member of our House. But see the Roman Spirit of Mr. Fitz-Gerald, who would rather undergo the hazard of being a Star-chamber Martyr, then to submit our Privilege to an extrajudicial debate. It was in our honour he did this, and for his eternal applause: some body says the castle chamber will think itself injured, there being Lords of the house of parliament at & in the censure. As for the Lords, humanum est errare, but the judges are rather involved in these words Prameditata militia, for his election was the 11. of November sitting the in Parliament; and his censure the 13. of December, so they had 22. or 23. days to repent of their ill-grounded resolution, a greater affront never offered to the house of Commons, being comparative, as if the Recorder of the Tolsell should sentence the Lord chief Justice of Ireland a member of our house is a walking Record: & needs not to melt the King's picture in his pocket. Others allege, it was an election purchased by collusion, but de non existentibus & non apparentib. eadem est ratio. And since the end of his election is in itself and pierce, for the advancing of the public service, as well as to prove a sentence not then in rerum natura, both Law and charity in a benign construction of these 2. ends will allow the more favourable. Another objection is whispered, that the entrance is not found in the Clerk of the Parliaments Role; This is no matter to the validity of his election, for his Privilege commenced 40. days before the Parliament, therefore this and the like are to be judged of as accidentia quae possunt abesse & adesse sine subjecti interitu. Truly (Mr. Speaker) my memory and lungs begin to prove Traitors to me; Another objection, if omitted, may be judged by these of what strength and maturity they, even as by the coinage of a penny, one may judge of a shilling; What hinders then, since here is water but, that he may be baptised? Here are not non obstant's to be admitted in his new Patent of Denization, the common law, the Statute law, the Canon, the Civil Law plead for his admittance, the writ of election, the exemplification of the Sheriff's return, all precedents of all ages, all reports plead for his admittance, our forefather's Ghosts, the present practice of Parliaments in England plead for his admittance, the King's successive commands, command and confirm his admittance; Away then Sergeant and with the hazarding power of our Mace touch the Marshal's gates, and (as if there were Divinity in it) they will open and bring us our Olive branch of peace wrested from our stock, that with welcome Art we may engraft him to be nourished by a common root. Thus the King shall receive the benefit of an able Subject, who is otherwise, Civiliter mortuus, we enjoy the participation of his labour, and posterity both ours and this.  
FINIS.