Captain Audley Marvin's SPEECH: DELIVERED IN THE UPPER HOUSE TO THE LORDS IN PARLIAMENT. 24. May, 1641. Concerning the judicature of the High Court of PARLIAMENT. DUBLIN. ¶ Printed Anno Dom. 1641. CAPTAIN AUDLEY MARVYN'S SPEECH: Delivered in the upper House to the LORDS, 24. of May, 1641. MY LORDS, SUch was the well composed Module and Beauty of those Letters of Royal Grace and Favour, which by a select Committee of both Houses were treated upon, that to say, you may be pleased to remember them, were an Injury, especially since the Arguments of those several Conferences were all sealed up with this wel-warranted opinion, that every word in them aught to be writ in letters of gold, ingraved in brass, that present and succeeding times might read them with greedy eyes, speaking in their own Dialect, the Emblem of a most indulgent Prince, the Characters of justice and Equity, and the Monumental Records of unparallelled goodness, triumphing in his Majesty's breast, as in the Sphere of their proper activity. The Letter concerning the validity of our Parliament, and the second concerning the Graces are twins of a Royal birth, joined in conjugal bonds by His Majesty. 〈◊〉 without a valid and effectual Parliament to out Graces is not to call idlers, that are piping and dancing in the Market, to work in the vineyard, but to call the labourers out of the vineyard, to pipe and dance in the Market place; or if you please almost as ill suitable as a Parliament without judicature. These two Letters so wedded, we have lodged in one sheet, I mean, included in one instrument, which being ready to be presented in its own Dimensions, I will not now epitomise. In the third and last Letter, demanding Precedents from the upper House of the Lords for their judicature, His Majesty speaks Harmoniously to us, though in a different key; he is beautiful, though his brow be not so smoothly limbed in it as in the former: for certainly, it is an eminent policy in a Prince, and an evident happiness to government, not to suffer poison to lodge in his cares, especially such a quick spreading and pestilential poison, as would eat out the Basis and foundation of Parliaments, and putrify those nerves and Ligatures, by which, His most Excellent Majesty, and We his most loyal Subjects have ever been, are, and (maugre their black and fatal suggestions) shall be upostatically united. May it please your Majesty. Hic niger est hunc tu, Roman Caveto. My Lords, I must in the name of the House of Commons entreat your patience, whilst I present unto your Lordships, a ruste-drawn Map of the jurisdiction of this high Court of Parliament. I shall imitate a Lands-cape; sust, show it you remote, and in its primitive times, scare discernible whether Land, or no Land; whether a Parliament, or no Parliament; then we shall sail nearer, until we come within been befriended in the course of our Navigation by our sails, we shall split on our own Anchor. I mean, if in the computation of all times we have had a Parliament unquestionable in substance, in form, in all necessary adjuncts, and now, even now, when eclipsed justice, like the Sun imprisoned under a cloud breaks forth with lustre, be concluded in defect of judicature, I say the stars have had malignant aspects in this our horizon. But first (my Lords) since in the strict words of the Letter, the house of the Lords seems only interested, we may be thought to make an inroad upon your Privileges, and to be pragmatical without precedent, though not without presumption. Truly (my Lords) Anima est tota in toto, & tota in qualibet parte. judicature is the Soul of this great compacted body, and enjoys that diffusive property. The times were, when both Houses sat in one place, and had one Speaker, and since the power of judicature must be founded upon a preparatory Impeachments, and this preparatory Impeachment must be framed by the Commons house, we must justify ourselves not guilty of the title of fools by the Wiseman, to lay a foundation and never consider by what means the structure is to be finished; nay, excuse ourselves from that general remonstrance of a general Grievance, extrajudicial Proceed. Your Lordships are under his Majesty the Chief, be pleased to admit us Members, though the feet; the health of these will much advantage the preservation of the whole Compound; nay, on the contrary, the Gout is as mortal and dolorous as the Headache. Besides (my Lords) our commenced proceed against the parties impeached of high Treason, though seasoned with much moderation and temper, are of ripe age, 〈…〉 in long coats, which are now suspend-drawne into question the Commons of this Kingdom openly proclaim, That to be excessive vicious is to be secure, and that facts of Treason, are above the cognisance, and Punishment of the Acts of Reason, and the Laws and Statutes of this Kingdom. So (my Lords) it being out of dispute, (and yet desiring not to be misconstrued, that we would make stakes with you in your own and proper judicature) that we are deeply interested in this Particular, I shall return unto my first Proposition, and survey this high Court of Parliament; Parliament did I say? From what radix? Parlour le ment, the speech of the mind; this must be attended with judgement and reason, but I think, we speak with none of these, if we cannot maintain our jurisdiction? This is its Etymology, which is warranted by the best Antiquary of his time, Vetusto nomine, è Gallia mutato Parliamentum dicitur. This high Court hath not been confined to this individual appellation, but hath been christened by several godfathers. Majores nostri Anglosaxones entitled it. Prudentum Conventus, Concilium, Magnus Conventusr. Succeeding Historiographers, Commune Concilium, Curia Altissima, Generale placitum, Curia magna, Magnatum Conventus, Commune totius regni Concilium. Prasentia Regis, Pralatorum, procitumque Collectorum. But certainly, if they intended these flourishing titles to a Parliament without judicature, they spoke of their riding to Parliament, not sitting in it. An unhappy Parliament: like the City Myndas, whose Gates were so wide, that the City might run out of them. To allow these to be Synonimas of Parliament, and to disallow judicature, were but jewish-like, to say, All ha●le King of the jews, and in the mean time, Grucifie Neither (my Lords) are these upstarted Titles, or new bought Coats of Arms, that this high Court blazons. No (my Lords) they are venerable for their Antiquity, and of most ancient birth, and extraction. Mulmuccius, of some called Donwallo, did write two Books of the Laws of the Britons, the one called Statuta Municipalia, the other, Leges judiciariae, for so the same do signify in the British tongue, wherein he wrote the same, which is as much to say, as the Statute Law and Common Law, which Books were written 441. years before the Incarnation of Christ, and how should there be Statute Laws without a Parliament. King Alfred ordained for a perpetual usage, That twice in the year, or oftener if need be, they should assemble themselves at London, to treat in Parliament of the Government of the people of God, how they should keep themselves from sin, should live in quiet, and receive right by holy Laws and judgements. In the Heptarchy, Parliaments had their continuance, witness the stile of Parliaments in the time of Ina King of the Westsaxons. Ego Ina Dei gratia, etc. Congregatione Servorum Dei sollicitus, de salute animarum vestrarum & statu regni mei, constitui rectum coniugium & iusta iudicia pro stabilitate & confirmatione populi mei benigna sedulitate celebrari, & nullo Aldermano, vel alicui de toto regimine nostro liceat conscripta abolere iudicia, so did Offa. King of the Mercians, and Ethelbert King of Kent. In the reign of King Athelston his Acts of Parliament are styled thus. Hac sunt judicia Exoniae quae sapientes consilio Ethelstani Regis instituerunt, & iterum apud Frefresham, & tertia vice apud— ubi haec definita simul, & confirmata sunt. Here I find a Parliament summoned, Consilio Regis, Prorogued in those words Iterum, & tertia vice, the Royal assent in the Words Confirmata sunt, the dissolution. Rex consilio sapientum; etc. King Etheldred. Hoc est Consilium quod Etheldrus Rex & omnes sapientes, etc. King Edmond calls it Convent●●● Sapientum, Spit itualium & Temporalium. The Parliament of King Canutus at Winchester bore this Title. Hac sunt statuta Canuti Regis, Anglorum, Danorum, Norvegarum, venerandoejus sapientum Consilio, ad laudem & gloriam Dei, & sui regulitatem, & commune commodum habita in sancto natali Domini apud Wintoniam. Hear we begin to make Land, and descry a visible Title to a Parliament, being in substance and form nearly allied unto the Precedents of these very times; and though some will contest this word (Parliament bears date but from the third year Edw. 1. yet (me thinks) those words in the ninth year of Edw. 2. being the immediate Successor to Edw. the first might convince them, viz. Sciatis quod cum dudum temporibus progent●orum nostrorum quondam regum Angliae in diversis Parliamentis suis, etc. which words (Progenitorum) had been improper, if that name had commenced in his father's reign. In one word, time out of mind, this high Court, and its judicatore hath flourished before the Conquest, in the Conquest (notwithstanding that silent leges inter arma) and ever since the Conquest until this present hour. Me thinks, I appear in your Lordship's eyes as one drawing his Sword, traversing his ground, lying upon his guard, there being-neyther offence, nor opposition to draw him into this distemper. Your Lordships may say, What need you waken so many sleepy Records to prove Parliaments have been? who is it of so desperate an opinion, that offers it in question? Truly (my Lords) I cannot name Him, or Them; but whosoever they were that instilled this jealousy of Aristotle bids us not to dispute, ●trum nix sit alba, and the like visible and apparent truths, but if any Man of an obdurate judgement would have denied that there was Anima Rationalis, then Aristotle must prove there is Homo and Anima Rationalis will be drawn in by consequence. Prove Homo, prove a Parliament, and Anima Rationalis, which is judicature, will be drawn in by consequence: besides I am protected by the Verse. judicis officium est ut res, ita tempora rerum Quaerere Next I must offer unto your Lordships that which the Law hath a tender respect unto, even the ends of Parliament Exitus acta probat These I find thus to be capitulated by Sir Edward Cook, Primò, ad subditos a delinquendo declinandos, hoc est, ut delicta tam bonis cautisque legibus, tam debita earundem executione anticiparentur; now, if debita executio legum can be in Parliament inflicted upon delinquentes subditos, without legal proceed and trial, (except they will say nothing, and so be pressed to death) I leave it to be argued amongst children. 2. tuta tranquillaque sit vita hominum, but certainly the life of man is not preserved by the impunity of offenders, which must pass, sublata judicatura. 3. sixis quibusdam sanctionibus, sanctisque judicijs jus unicuique sieret; but whether jus implies not punishing malefactors, aswell as relieving the oppressed, (Crudelitas parcens, being more destructive to the Commonweal, than Crudetitas puniens) I leave it to be argued among children. Fleta saith a Parliament is called, Terminare dubitationes, judiciorum, novis injurijs emersis, nova constituere remedia, unicuique prout meruerit justitiam retribuere. apply this remedy. Then our Parliament must have a short cut in trial. We must condemn without hearing of any part, for why should they hear, if they have no power to determine. Having thus fare analized a Parliament, we must consider its Parentage, and then prove our claim to judicature by the title of Coheir with the Parliament in England, which his Majesty's Progenitors have ever graciously confirmed unto us. A Parliament than is a structure founded upon the common Laws of England, as is manifest in its proceed upon many trials according to the course of the Common-Lawes. It is the heir apparent to the Common-Law, and parent of the Statute Law. To make this position pass for touch, I will give you the Test of that ancient and learned Author of the book entitled, Mirror de les justices, in his own words. Hoc cum sit forum in hoc regno planè supremum, pars est structurae jurium municipalium, & nonunquam secundum frequentem illum, & usitatum in lege communi ordinem processies habet. My Lords; since with your LORDSHIP'S. patience we are arrived unto this undeniable truth, I will now open our title to the Common Laws of England, to the Statute Laws of England before 10. H. 7. to the lawful customs of England, to the Courts of justice in England, to the Writs Original and judicial of England, and to the Precedents of England, even from the high Court of Parliament, unto the petty Constable's office. The first knowledge the printed Statute give us of Magna Charta, is in 9 H. 3. yet we find it enrolled in the red book of the Exchequer. 3. King john. King john in the 12. year of his reign went into Ireland, and there attended with the advice of grave, and learned men in the Laws (whom he carried with him) the land should be governed by the Laws of England. I find in Rotulo Patentum 11. H. 3. thus written. Rex, etc. Baronibus militibus, & omnibus libere tenentibus salutem. Satis ut credimus vestra audivit discretio, quod quando bonae memoriae johannes quondam Rex Angliae pater noster venit in Hiberniam, ipse duxit secum viros discretos, & legisperitos quorum communi consilio, & ad instantiam Hibernensium statuit & praecipit leges Anglicanas in Hibernia ita quod leges easdem in scripturas redactas reliquit sub sigillo suo ad Scaccarium Dublin. Shall I repeat the very words recorded, Rot. Patent. 18. H. 3. Rex, etc. Comitibus, Baronibus, militibus, & liberis hominibus, & omnibus alijs de terra Hyberniae Salutem. Quia manifeste esse dinoscitur contra coronam & dignitatem nostram, & consuetudines & leges regni nostri Angliae qua● bonae memoriae Dominus Iohannes Rex, Pater noster, de communi ommium de Hybernia consensu teneri statuit in terra illa, quod placita tencantur de curia Christianitatis, de advocationibus Ecclesiarium, & Capellarum, vel de Laico foedo, vel de Catallis quae non sunt testamento, vel matrimonio. Vobis mandamus prohibentes quatenus hujusmodi placita in Curiae Christianitatis nulla tenus sequi praesonatis in manifestum dignitatis, & Coronae nostrae praejudicium. Scituri pro certo quod si feceritis, dedimus in mandatis Iudiciario nostro Hiberniae, Statuta Curiae nostra in Anglia contra transgressiones hujus mandati nostri cum justitia procedat, & quod nostrum est exequatur. Teste Rege apud Winchomb. 28. Octob. an. regni 18. My Lords, I have read this Roll at large, because I perceive a holy indignation in this Prince, that the officers of this Kingdom would hold Pleas not suitable in every respect unto the Laws, and Customs of England, adjudging the practice to be in manifestum dignitatis & coronae nostrae praejudicium. Then observe the warning piece, Vobis mandamus prohibentes, etc. then the punishment, Scituri pro certo. etc. But the judges in those days were not so acute in case they had incurred it. Yet the Sophisters of Law in this Kingdom may find that King not unprovided with his answer; for the words are Dedimus in mandatis, etc. Statuta Curiae nostrae in Anglia contra transgressiones, etc. So that then the Statutes and Rules of the Courts in England, may be Precedents both for trial and punishment. Rot. Pat. 30. H. 3. Rex, etc. prs communi utilitate terrae Hyberniae & pro unitate terrarum, provisum est quod omnes leges & consuetudines quae in regno Angliae tenentur, in Hybernia teneantur, & eadem terra eisdem legibus subjaceat ac per easdem regatur sicut Iob ●n●es Rex cum illic esset, statuit, & firmiter mandavit. Ideo volumus quod omnia brevia de communi jure, quae curr●nt in Anglia similiter currant in Hybernia sub novo sigillo Regis: Here are the old Laws and Writs, differing in nothing but in a new Seal; which I wonder none of our witty Informers take advantage to make it an essential difference. 13. H. 1. Coram rege in longo placito, I read una & eadem esse debet Lex tam in regno Angliae, quam Hyberniae. My Lords, I will add but this Quotation (which I happened upon this morning) 2. Rich. 3. fol. 12. in Camera stellata. Terra Hyberniae inter se habet Parliamentum, & omnimodas Curias prout in Anglia & per idem Parliamentum sacit leges, & mutat leges, & illi de eadem terra non obligantur per Statuta in Anglia, quia hi non habent milites Parliamenti. Here is a Grant of Parliament passed unto us of this Kingdom with all his appurtenances, rites, and members, as they were formerly; or now held by the Subjects of England from or by his Majesty. Pray (my Lords) why are these clear records preserved to posterity? to raise, or to confirm doubts? That then their Parliaments are the very stars by which we must sail by; their Precedents, the meridian sun we must observe to find the Latitude of our proceeddings, the last rehearsed rolls proclaim vouredly this name becomes it, if one justice of Assize may hear, and determine capital offences, and this Altissima Curia, not have power of a grand jury to him to find Billa vera. Yet ask this justice of Assize by what precedent in this Kingdom he adventures upon this service. Ask of the justice of peace, by what Precedents he takes notice of Presentments, Indictments, awards the alias, the plures Capias, and his Precedents must take shipping out of England. Inquire of the Court of Chancery for its precedents of Equity, for the Precedents of Writs and judgements. Inquire of the King's Bench for a Precedent in Ireland, for a Wager of battle in an appeal. Inquire of the Courts of Common-pleas for their Precedents in any of their rules of Court; Nay inquire of the petty. Constable by what Precedent in Ireland he executes his office, nay, for the carrying of his painted staff, and they will return but starved and hungry arguments, except they ship their Precedents out of England. But admit (my Lords) we had no interest in the Precedents of England, were it not durus sermo, that the long and well settled rites of Parliament should fall to the ground for want of a Precedent, which undoubtedly hath power in itself to make a Precedent not repugnant to Law. Who knows not but in the former dark and Tragical times, that all, or the most part of the Rolls, and Records of this Kingdom were kept in Breminghams' Tower, and that the end of them was the Antitype of the end of the world, even a dissolution by fire; some laid in horse loads in every corner of the streets for dunghill-rakers to pick antiquities up, & Tailors to make measures of. This Epidemical consumption of our Records was a want of them (though no fault in us then unborn) should permit Treasons, Rapines, Murders, Disturbers of the King, Kingdom, and Commonweal, not only pass with impunity, but be established in the greatest places of judicature, as if Treason were the square of the Law, and Allegiance become Treason. Praised be Almighty God, this Kingdom is not so barren of the Professors of the Law, but I see those persons in my eyes, that can with more respect unto the dignity of His Majesty's Crown, with more regard unto his Majesty's most Sacred and inviolable Oath, with more content to the whole Kingdom, personate the King, amiable to his people in the dispensation of justice in the High Offices of the judges impeached. Yet (my Lords) notwithstanding the Bonsires' of our Rolls, I will offer one Precedent or two, by which the ancient judicature of the Parliament in this Kingdom will appear in triumphant colours. In a Parliament held in this Kingdom in Hen. 5. time Richard O Heydan Bishop of Casshell was impeached in 30. Articles by john Gese Bishop of Waterford, 3. Articles were for counterfeiting the King's Seal, for counterfeiting the King's Letters Patent, for endeavouring to make himself King of Munster, so that the Parliaments in this Kingdom have not been confined to trial of petty Larcenies, and most properly should punish with the Sword, committing the rod to every pedantic Schoolmaster. In another Parliament held in this Kingdom in the Edw. 2. Sir Arnold Poor was tried for killing the Lord Bonevaile, and by sentence of that High Court was acquitted, it being found it was done in his own defence. My Lords, the Treasons in this Kingdom formerly practised have been by hostile invasion for the most part, and were struck dead by the plain Letter of the Law; the Parliaments were but rare and Infantlike, and frighted with the clashing of Arms from one place to another, and until King JAMES of blessed memory sat at the Steerage of our weatherbeaten Ark, our Dove never brought in her Olive-branch, so that there could hardly be time allowed for a solemn trial, if the occasion had been offered. The manner of those Treasons resemble the forcible taking of a man's purse upon the highway: these Treasons that we shall have to sift, are more like cut-pursing, they smile in our faces, whilst their hands dive into our pockets: the event is one, The loss of our Money, and though they be taken napping, they will swear they meant us no harm. — Latet Anguis in herba. The first man that ever suffered for Treason, if want of a Precedent would excuse him, might have begot Traitors to the third and fourth generation with impunity. My house hath taken fire, I call for water to quench it, I would suppose him mad, that would advise me to let it burn to the ground, because my neighbour would not quench his; and therefore I want a Precedent. We will impute it unto the integrity of those times that have not fostered such unbounded spirits to attempt such crimes, as might leave Precedents of this Nature. It is (my Lords) justice that those who will renew Precedents of long buried crimes, should renew or create Precedents of deserved trial, and punishment. My Lords, I have mustered some few Arguments in vindication of the judicature of the Parliament in this Kingdom, they are valid enough for the intricacy of the question: Where tacks will serve, what needs tenpenny nails. A good face wants no band. A valid Parliament wants no assertions for its jurisdiction, and such is this declaring the effectual validity thereof in an Emphatical sense. There is nothing now left (my Lords) but that as I have spent some time in scanning a Parliament with judicature, since Contraria, contrarijs opposita magis elucescunt, we may cast a smiling eye upon that pretty silken bugbear of State, a Parliament without judicature. Curia altissima, must be Curia infima; Curia magna must be Curia minina. It will resemble a sword with guilt hilts, and a blade made of a larth. Whereas then all Courts were derived from it, now all Courts may insult upon it. My Lords, I leave to your Lordship's consideration the cloth of State, (which no man ought to name without reverence) whether it will not esteem itself in a deplorable, and widowed estate for the death of her only consort, JUDICATURE. Like the single Turtle it mourns, whilst the Cushions of the Toulesale prick up their ears. My Lords, me thinks, the Lions roar, the strings of the harps break and sound in discord, the Flower deluces whither to be stretched out, in a place sans judicature. None sits under that Pavilion that bears the Sword in vain. The high prized tincture of your Lordship's robes gins to fade, the Ermines lose their complexion, if they lose their judicature. That wel-becomming title to a Nation, PEERAGE, gins to hang down its head, and blush, and curses the insluences in its nativity, if it should come to such an untimely end. Your Speaker may study silence, and report that to himself which he never read, nor heard of. A Parliament without JUDICATURE. The Right reverend Bishops may retire in to the judicature, that happen to be discussed before this Tribunal (though most venerable in their own Sphere) sit like so many Plovers pricked down for Stales, with this Motto, Videntur, & non sunt. We of the House of Commons, that were hitherto styled Prudentum Conventus, may Impeach with little wit, and you remedy us with as little power, imitating Baal's priests, cut and lance ourselves, contribute our Estates, our Studies, our lives for his Majesties ever prayed for happiness, Call and Call to their gods that could not help them, Impeach and Impeach, and demand justice from our titular Lords, that can neither help themselves nor us. My Lords, the Common Law speaks our Parliament and its Indicature, the Statute Laws confirm it. Precedents strengthen it. Reason, even undeniable reason fortifies it, what Magic is there then, That the case is thus altered. If it lies in the degrees of the persons impeached, hear then the Statute of Marlebridge, 52. H. 3. Provisum est concordatum & concessum, quod tam majores, quam minores justitiam habeant, & recipiant in Curia Domini Regis. Yet their offices may offer some things in consideration. My Lords, the late Lord Keeper in England will not come in to dispute this point afore the Parliament, and Sir Robert Belknap, one of the judges of the Common Pleas, was put to banishment by the Parliament for subscribing an opinion against Law, though forced by a dagger held to his breast; and the rest of the judges that subscribed the same were put to death. A reason I forgot that we may be excused for want of Precedents, if there be any surviving. The parties impeached have taken a course for that, and by an order of the Chancery had them in their own custody, since their Impeachment, since the Master of the Rolls death unto this present hour. Poor David, poor House of Commons, must encounter Goliath, nay Goliath, saul's Armour, the King's evidences, nay Davids poor sling; this I humbly present to your Lordship's consideration. My Lords, England will not 〈◊〉 that we plead an equal interest in their Laws, but re●●y 〈◊〉 support us, especially in parliamentary proceed his Majesty will conceive the vanity of those, that taking advantage of his princely mind, involved in multiplicity of weighty affairs would raise such dangerous doubts. Observe but one word in the Rotul. Pat. 30. H. 3. Rex, etc. pro communi u●●litate terrae hyberniae & pro unitate terrarum provisum est quod omnes leges, & consuetudines. You see the confirming and enacting of the Laws and Customs of England to be of force in Ireland, was, pro utilitate terrae Hyberniae, & pro unitate terrarum, the Union of Laws being the best unity of Kingdoms. Those than that would tread under feet the wisdom 〈◊〉 ●hose times so fortunately commenced, and continued may be judged as the Incondiaries of Nations, and the plagiaries of Government. My Lords, out of what I have 〈◊〉 this infallible Maxim may be drawn of the High court of Parliament. Si vetustatem spectes est antiquissima, si dignitatem est honoratissima, si jurisdictionem est capacissima. In the last place, I present unto your Lord 〈◊〉 these three instruments, being thrice severally read 〈…〉 debated, and solemnly voted in our House 〈…〉 their perfection, and maturity by such proceed in 〈◊〉 most honourable House, as shall be suitable to your approved judgements. FINIS.