An argument delivered by Patrick Darcy, esquire by the expresse order of the House of Commons in the Parliament of Ireland, 9 iunii, 1641.

THE ANSWER AND DECLARATION OF THE IVDGES, Vnto the questions transmitted from the Honorable House of Commons unto the Lords Spirituall and Temporall in Parliament assembled, whereun∣to they desired their Lordships, to require the said Iudges answers in writing forthwith. May 25. 1641.

IN all humblenesse the said Iudges doe desire, to represent unto your Lordships, the great sence of griefe that they apprehend out of their feare, that they are falne from that good opinion, which they desire to retayne with your Lordships and

the said house of Commons in that (notwithstan∣ding their humble petition and reasons to the contrary exhibited in writing, and declared in this most honorable house) your Lordships have over-ruled them, and often commanded their an∣swers unto the said Questions, although they have informed your Lordships, and still with assurance doe averre, that no president in any age can be shewen that any Iudges before them were requi∣red or commanded to give answer in writing, or otherwise unto such generall, or so many questions, in such a manner in Parliament, or elsewhere, un∣lesse it were in that time of King Richard the 2^d. which they humbly conceive, is not to be drawne into example. And therefore they yet humbly supplicate your Lordships so farre, to tender their profession and places, and their relation, to his Ma∣jesties service, as to take into your serious conside∣rations, the reasons that they have annexed to this their answer, before their answer be en∣tred, or admitted, among the Acts of this high Court, and that if your Lordships in your wis∣domes, shall after thinke fit to give any Copies of their Answers, that for their Iustification to the present and succeeding times your Lord∣ships will be pleased to require the Clerke of this most honorable House, that no Copies

may be given of the said answers without the said reasons.

2. Secondly the said Iudges humbly desire your Lordships to be pleased, to be informed, that the words in his Majesties writs, by which they are commanded to attend in Parliament, are, that the said Iudges shalbe present with the Lords-Iustices or other chiefe Governor and your Lordships, at the said Parliament, called Pro arduis & urgentibus regni negotijs super dictis negotijs tractaturi & consili∣um suum impensuri: And they desire your Lordships to take into your consideration whether any ad∣vice may be required by your Lorpships, from them, but concerning such particular matters, as are in treaty and agitation and judicially depen∣ding before your Lordships, upon which your Lordships may give a judgement, order, or sen∣tence, to be recorded among the Records and Acts of this honorable House, and whether they may be commanded by your Lordships, to subscribe their hands unto any opinion or advice they shall give upon any matters in debate before your Lordships there, and whether your Lordships can conceive any finall resolution upon the matters contayned in the said Questions.

3. Thirdly, although the said questions are

but twenty two in number, yet they say, that they contayne at least fifty generall questions, many of them of severall matters, and of severall natures, within the resolution of which most of the great affaires of this kingdome, both for Church and Common-wealth, for late yeares may be included; and therefore the said Iudges do openly aforehand professe, that if any particular, that may have Re∣lation to any of those questions shall hereafter come judicially before them, and that eyther up∣on argument or debate (which is the sive or fann of truth) or discovery of any generall inconve∣nience, to the King or Common-wealth in time (which is the mother of truth) or by further search or information, in any particular, they shall see cause, or receive satisfaction for it, they will not be concluded by any answer, they now give to any of these generall questions: but they will upon bet∣ter ground and reason with their predecessors the Iudges in all ages with holy Fathers, Councels, and Parliaments, retract, and alter their opinion according to their conscience and knowledge, and the matter and circumstances of the cause as it shall appeare in judgement before them, it being most certayne that no generall case, may be so put, but a circumstance in the matter or manner may

alter a resolution concerning the same.

4. Fourthly, the succeeding Iudges, and age notwithstanding any answer given by the now Iudges, may be of another opinion then the now Iudges are, without disparagment to themselves, or the now Iudges, in regard that many particu∣lar circumstances, in many particular cases may fall out, that may alter the reason of the Lawes, in such a case; which could not be included or fore∣seene in a generall question, or answer thereunto: And therefore they desire your Lordships to con∣sider of what use such answers may be, to the pre∣sent and future times.

5. Fifthly, many of the said questions, as they are propounded (as the said Iudges humbly con∣ceive) doe concerne his Majesty in a high degree, in his Regall and prerogative power, in his Go∣vernment, in his Revenue, in the Iurisdiction of his Courts, in his Martiall affaires, and in his Mi∣nisters of State, so that the said Iudges conside∣ring their Oathes, & the duty which by their pla∣ces they owe unto his Majesty humbly conceive they may not with safety give answer thereunto, without speciall licence from his Majesty, and therefore they still humbly pray your Lordships (as formerly they did) not to presse any answers

from them untill his Majesties princely pleasure, therein be signified.

6. Sixtly, if the matters of these questions which ayme at some abuses of former times, were reduced into Bils, they conceive it were the speedy way to have such a reformation which might bind the present times, and posteritie, and in such pro∣ceeding they ought and would most cheerefully contribute their opinions & best endevors, but in such a course (as they apprehend it) which points at punishment they have reason to bee sparing in giving any opinion further then the duty of their places doth command from them.

7. Seventhly, although it may be conceived, that the answering of such and so many generall questions, by the now Iudges may contribute some helpe to the reformation now so much desired, yet no man knoweth but this new president in pro∣pounding of such questions to Iudges in succee∣ding times (as the Iudges & frame & constitution of the Common-wealth may be) may fall out to bee most prejudiciall to the State and Common-wealth.

8. Eightly, most of the matters in severall of the said questions, are already by your Lord∣ships and the said house of Commons voted and

represented to his Majesty for grievances, and therefore no opinions of the Iudges, under favour are needfull or to bee required thereunto, unlesse the same shall come in further agitation and dis∣cussion in this honorable House.

9. The Iudges opinions are not usually cal∣led upon in Parliament, but when upon debate great and difficulte points in Law doe arise, where, this most honorable house doth thinke fit to com∣mand their opinions, but no resolutions, doe be∣long unto the said Iudges, in Parliament, but unto your Lordships; Yet in the front and preamble of the said questions, the resolution of the said que∣stions by the Iudges, is forthwith desired, to be re∣quired by your Lordships in writing, although the first question, viz. Whether the subjects of this kingdome be a free people, &c. be positively, re∣solved by the preamble to the said questions, in which it is likewise declared that the said Iudges answers thereunto, are not desired for any doubt or ambiguitie which may be conceived or thought of, for, or concerning the premisses, nor of the said questions; but for manifestation and declara∣tion of a cleere truth, and of the Lawes and Sta∣tutes already planted and setled in this kingdome: And they say that it is impossible, to make any

manifestation or declaration of Law, or statutes, which may hold or be usefull, upon such generall questions as most of these are, namely. By what Law? in what cases? of what? and which of them? of what power? of what force? how? where? by whom? why? wherefore? what punishment? by what rule of policy? in what condition of persons? in regard that the next succeeding Iudges may be of another opinion, and that a circumstance may alter the reason of this Law, in many particular cases, which the wit of man is not able to forsee, or give a generall rule in. And they say that to give answers unto such questions as might give any sa∣tisfaction to your Lordships, or to the honorable house of Commons, would make up a great vo∣lume, and require more time than your Lordships have afforded unto the said Iudges, considering their great toyle, in their Circuites the last short vacation, their other imployments in the Com∣mon-wealth, and their daily attendance on your Lordships in Parliament, and the ordinary Courts of Iustice: And yet least they might seeme to come any way short in performance of that duty, which they confesse to be due unto your Lordships, or be wanting in promoting or advancing the Com∣mon-wealth, which they beleeve to be aymed at by

the said questions, though it may seeme to drawe damage or prejudice upon their particulars, they doe in all humblenesse present unto your Lord∣ships, the ensuing answers unto the said questions which is as much as by their Oathes or in the duty they owe unto his Sacred Majesty (before his princely pleasure bee therein signified) they can answer thereunto.

1. To the first, they answer, that the subjects of this kingdome are a free people and are, for the generall to bee governed onely by the Common-lawes of England and statutes of force in this king∣dome, yet they say that as in England, many sta∣tutes are growen obsolete, and out of use, and some particular ancient Lawes (aswell in criminall as in Civill causes) have beene changed by interpreta∣tion of the Iudges there, as they found it most agreeable to the generall good of the Common-wealth, and as the times did require it; So, our pre∣decessors the Iudges of this kingdome as the ne∣cessitie of the times did move them, did declare the law in some particular cases otherwise than the same is practised in England, which the now Iudges cannot alter, without apparent diminution of a great part of his Majesties standing revenue, and opening a gap for the shaking and questioning of

the estates of many of his Majesties subjects, and the overthrowing of severall Iudgements, Orders, Decrees, which depend thereupon. For example, If it be found by office of Record, sufficient for forme that a man was killed in actuall rebellion, and at the time of his death was seized of lands, hereditaments, goods, or chattels, by the con∣stant declaration of Law, and practise of former times here, the Crown was intituled to such lands, goods, and chattels, and many mens estates de∣pend thereupon, and yet the law is not so taken in England, So if one or more commit Felony, and then stand out upon his or their keeping, and hee or they will not submit themselves to be tryed by the law, but being in that state doe robbe or spoyle and terrifie his Majesties people, wherby the coun∣trie is disquieted, this by the constant opinion of our predecessors in this kingdome hath beene ad∣judged a leavying of warre within the Statute 25. Edw. 3. and so consequently treason. Also by the common received opinion & practise in this king∣dome, the VVife is to have a third of all the goods, chatels and credits of her husband (the debts be∣ing payed) although he dispose of all by his will from her: And yet the constant practise is other∣wise in England, and other instances of that kind,

might be made, so that the words (onely) must receive a benigne exposition before the first que∣stion can receive a generall answer, in the affirma∣tive. Secondly, many causes of great weight and consequence in this kingdome, are to bee decreed and ordered by equitie in the proper Courts of equitie, and in course of State at the Councell-board, and by particular customes, and con∣trary to law, for which the Common-law and sta∣tutes of force in this kingdome give no remedie. Thirdly, there are severall other lawes of force in England, and Ireland so farre as they have been re∣ceived, which though some would have to be part of the Common-law of England, yet we find them particularly distinguished from it in our Printed Bookes in Parliament Rolles in England, as Lex est consuetudo Parliamenti, jura belli, Ecclesiasticall or Canon law in certaine cases, Civill law in some ca∣ses not onely in Ecclesiasticall Courts, but in the Courts of Constable and Marshall, and of the Ad∣miralty, and upon particular occasions, in the other Courts lex Mercatoria, &c.

2. To the second, They say that the Iudges of this kingdome doe take the Oath of Iudges, which Oath is specified amongst the statutes in 18. Edw. 3. and is after explaned by the statute of

20. Edw. 3. and that they may not stay, hinder, or delay the suite of any subject, or his judgement, or execution thereupon (otherwise then according to the law and course of the Court, where they sit) under pretence of any act of state, proclamation, writ, letter, or direction under the great or privy Seale, or privie Signet, or Letter, or other Com∣mandement from the Lord Lieutenant, Lord De∣puty, Iustice, Iustices, or other chiefe Governor of this kingdome, most of which, doth appeare by their Oath expressed in the said statutes, and the said statute of 2••. Edw. 3. cap. 8. and the statute of 28. Edw. 3. cap. 2. as to Barons of the Exchequer. And that as they know no punishment due to Iudges, for their deviations & transgressions, with∣out other aggravation; So they know no punish∣ment layd downe by any law against them for their deviations and transgressions, in hindering staying, or delaying of Iustice, contrary to their said Oath, other then what is declared in their said Oath, and the statute of 20. Edw. 3.

3. To the third, they say that it is part of their said Oath, as Iudges, that they shall not coun∣sell or assent to any thing that may turne to the damage or disherison of our Soveraigne Lord the Kings most Excellent Majestie, by any manner of

way or colour. And that they shall give no ad∣vice or counsell to any man great or small in no ca∣ses, wherein the King is a party, And they shall doe and procure the profit of the King and his Crowne, in all things where they may reasonably doe the same; And that in the explanation of their said Oathes, by the statute of 20. Edw. 3▪ cap. 1. It is declared that they shall give no counsell to great men, nor small, in case where the King is party, or which doth or may touch the King in any point. And as your Lordships have beene honorably pleased by an order of this honorable house, bearing date the first of March Anno Dom. 1641. Anno{que} Regni Caroli decimo sexto to give way, that they should not be compelled to answer any part of those questions, which did concerne his Majesties prerogatives or were against their oathes so they humbly represent unto your Lordships, that they conceive that the answering of the par∣ticulars of this question, doth concerne both, for that the Kings privie Counsell as the question tearmes it, or the Councell-board, is a Court of his Majesties high prerogative, where all procee∣dings are before him, and his Counsell, or before his Governor (who doth immediately, to many purposes represent his Majesties person) and the

Counsell. And where the great affaires of state concerning his Majesties honor, government, pro∣fit, and of great persons and causes concerning the Common-wealth, which, may not conveniently be remedied by the ordinary rules of Common-law, and many other causes have beene treated, of, and managed. And as his Majesty is the fountayne of all Iustice, with in his kingdomes and may grant Cognizance of pleas unto his subjects, and Cor∣porations, and may by his Commission authorize whom he shall thinke fit, to execute many bran∣ches of his authoritie, so they humbly conceive, it doth not stand with their Oathes or duties of their places, who are but Iudges of the ordinary Courts of Iustice, before his Majesties pleasure signified in that behalfe, to search into the Commissions or instructions of the chiefe Governor and Counsell, or to give any opinion concerning the limits, juris∣diction, orders, decrees, proceedings, or members of that high Court, and that the King hath a pre∣rogative for the hearing some of the matters in this question specified before his chiefe Governor; We beseech your Lordships to cast your eyes on the statute of 28. H. 6. cap. 2. in this kingdome, where after m••••ters are directed to be sent to the ordina∣ry Courts, yet the Kings prerogative is expressely

saved, notwithstanding all which his gracious Ma∣jesty (for whom it is most proper) hath of late beene pleased to limit the proceedings of that Board by his instructions in print.

4. To the fourth, they answer as to the Third.

5. To the fift they say that generally all grants of Monopolies, whereby trading, manufacture, or commerce is restrayned, & the profit which should goe to many hindred & brought into a few hands, are against law, the liberty of the subject and the good of the Common-wealth, though they carrie never so faire a pretence of reforming abuses, and that the pretended transgressors against such grants are not at all punishable by any rule of law, that they know of, And yet they say, that they conceive that his Majestie, that is, the head and father of the Common-wealth may restrayne the use and importation and exportation of certaine commodities, or confine the same into a few hands for a time where there may be likelyhood of his Majesties profit, (which is the profit of the Com∣mon-wealth,) and no apparent prejudice to the Common-wealth doth appeare, and that when time shall discover such prejudice, then such re∣straints ought to cease; So if a man by his owne invention at home, or travell, observation, or

charge abroade doth introduce a new profitable, and usefull trade or profession into the Common-wealth, in such cases his Majesty may lawfully grant & licence the only making of such commo∣ditie or teaching or using of such trade for a cer∣tayne time, and the transgressors against such war∣rantable grants, may be punished by payment of damages unto the Patentee, in an ordinary course of Iustice, or otherwise, as the nature of the offence and matter doth deserve; and as the consequence and importance of the matter may be to the King, State, or Common-wealth. And they say that the matter, manner, restrictions, limitations, reserva∣tions, and other clauses contayned in such grants or licences, and the Commissions or Proclamati∣ons, thereupon and undue execution thereof, and severall circumstances may make the same lawfull or unlawfull, whereof they are not able to give any certayne resolution (before some particular com∣mes in judgement before them) neyther are they otherwise able to answer the generall in the parti∣culars of the said question, of what, in what cases, how, where, and by whom, or which of them, wherein whosoever desireth further satisfaction he may please to have recourse unto the knowne ca∣ses of Monoplies, Printed authorities, and written

Reports, and unto the statute of 21. Ia. in England concerning Monopolies, and the severall exceptions and limitations therein.

6. To the sixt, they say they can no other∣wise answer then they have already in their answer to the third question, for the reasons therein set∣forth.

7. To the seventh, they say, that a Proclama∣tion or act of State cannot alter the common-law, and yet Proclamations are acts of his Majesties prerogative, and are, and alwayes have beene of great use, and that the contemners of such of them as are not against the law, are and by the constant practise of the Star-chamber in England have beene punished, according the nature of the contempt, and course of the said Court, and although acts of State, are not of force to bind the goods, possessi∣ons, or inheritance of the subject, yet they have beene of great use for the setling of the estates of very many subjects in this kingdome, as may ap∣peare in the Report of the case of Irish gavelkind in Print. And further to that question they can∣not answer for the reasons in their answer unto the third question set forth.

8. To the eight, they say, that they know no ordinary rule of law, by which the subjects of this

kingdome are made subject to Marshall-law in time of peace, and that they find the use thereof in time of peace, in England, complayned off, in the petition of right, exhibited to his Majestie in the third yeare of his raigne, And that they conceive the granting of authority and Commission for execution thereof, is derived out of his Majesties Regall and prerogative power, for suppressing of suddaine and great insolencies and insurrections, among armies, or multitudes of armed men law∣fully or unlawfully convented together, (the right use wherof in all times hath beene found most ne∣cessary in this kingdome) And further to that que∣stion they cannot answer, for that as they con∣ceive, it doth concerne his Majesties Regall power, and that the answering of the other part of the question doth properly belong to another profes∣sion, whereof they have no Cognizance.

9. To the ninth they say, that as the taking of any Oath before any but such Iudges or persons as have power to give or demaund an Oath, for de∣cision of controversies, is by most Divin•• in most cases counted to be a rash Oath, and so an offence against God, within the third Commandement, so the prescribing and demaunding of a set Oath by any that cannot derive power so to doe from the

Crowne (where the fountaine of Iustice under God doth reside) is an offence against the law of the Land, and as for voluntary and extra judiciall Oathes, although freely taken before arbitrators or others, they say (as this kingdome is composed in many particulars, as the nature & consequence of the cause, or the quality of the person who ta∣keth, or before whom the same is taken, may con∣cerne the Common-wealth, or the members ther∣of) such taking of such Oathes or proceeding or grounding on such Oath in deciding of contro∣versies, according to the severall circumstances, that may occurre therein, or the prejudice, it may introduce to the Common-wealth, may be punish∣able by the Common-law, or (if it grow unto an height or generall inconvenience to the common-wealth or members thereof) in the Castle-cham∣ber; For though such an Oath be voluntary, yet in most cases, it is received by him, that doth in∣tend to ground his Iudgment thereon, and after the Oath is taken, the arbitrator, or he that intends to yeeld faith to the party, that tooke the Oath, doth examine him upon one or more questions, upon the said Oath, unto the answer whereof, hee doth give faith and assent, trusting on the said Oath. And whereas Oathes by Gods institution

were chiefly allowed to bee taken before lawfull Magistrates, for ending of controversies, yet com∣mon experience doth teach in this kingdome, that oftentimes orders and acts grounded on such vo∣luntary Oathes, beget strife, and suits; and com∣monly such orders when they come to bee measu∣red by rules of law, or equitie in the Kings Courts become voyde, after much expence of time, and charge that we say nothing of that, that thereby many causes proper to the Kings Courts are drawn ad aliud examen, and thereby the Kings justice and Courts often defrauded and declined.

10. To the tenth, they say, that they are not Iudges of rules of policie, but of law, and that they know no certayne rule of law, concerning reducement of fines. The same being matters of his Majesties own meere Grace, after a man is cen∣sured for any offence: And that they know no law, that none shall be admitted to reducement of his fines or other penalties in the Courts in the que∣stion specified, untill he confesse the fact for which he was censured. But forasmuch as the admit∣tance to a reducement after conviction, for an offence, is matter of Grace and not Iustice; It hath beene the constant course of these Courts both here and in England, for cleering of his Majesties ju∣stice

(where the partie will not goe about to cleere himselfe, by reversall of the censure or decree) not to admit him to that grace, untill he hath confes∣sed the justnesse, of the sentence pronounced by the Court against him. And that the rather for that commonly the ability and disabilitie of the partie doth not appeare in judgement before them but the nature and circumstances of the offence, according to which, they give sentence against him or them, in terrorem after which, when the partie shall make the weaknesse of his estate appeare, or that the Court is otherwise ascerteyned, that they doe of course proportion the censure, or penaltie, having regard to his estate.

11. To the eleventh, they say, That neither the Iudges of the Kings Bench (as they informe us, that are of that Court) or Iustices of Gaole de∣livery, or of any other Court, doe or can by any law they know, deny the copies of Indictments, of Felony, or Treason, to the partie only accused as by the said question is demanded.

12. To the twelfth, they say, that where lands are holden of the King by the Knights service, in Capite, the tenant by the strict course of Law ought in person to doe his homage to the King, and untill he hath done his homage, the ancient

course of the Exchequer hath beene & yet is, to is∣sue processe of distringas out of the second remem∣brance Office, to distrayne the tenants ad faciendum homagium or pro homagio suo respectuādo, upon which processe, the Shiriffes returneth issues. And if the Tenant doe not therupon appeare and compound with the King, to give a fine for respite of homage, then the issues are forfeyted to the King for his contempt, but if he appeare, then the Court of Ex∣chequer doth agree with him to respite his ho∣mage for a small fine, wherein they regulate them∣selves▪ under the rate expressed and set downe in England by vertue of a privie Scale in the 15. yeare of Queene Elizabeth, whereby the rates are parti∣cularly set downe, according to the yearely value of the Lands, which rates are confirmed by act of Parliament in 1. Iacob. Regis cap. 26. in England, be∣fore which time there was not any such certayntie, but the same rested in the discretion of the Court by the rule of Common-law, and so it doth at this day in Ireland, howbeit we conceive that the Court of Exchequer here doe well to regulate their dis∣cretions by those rates in England, and rather to be under then to exceede the same, which the Barons there doe, as they doe informe us, that are Iudges of the other Courts.

13. To the 13. they say, that they know no rule of Law or statute, by which it should be cēsurable, in the subjects of this kingdome to repayre into England, to appeale unto his Majesty for redresse of injuries, or for other their lawfull occasions, unles they be prohibited by his Majesties writ, or procla∣mation or, other his Command. But they find that by the statute of 5. Rich. 2. the passage of the subject out of the Realme, is prohibited without speciall li∣cence, excepting Noblemen, & others in the said statute specially excepted, & some inference to that purpose may be made upon the statute of 25. Hen 6 cap. 2. in this kingdome.

14. To the 14. they say, that some Deanries & dignities, not Deanes or dignitaries (as the question propounds it) are properly, & de mero jure donative by the King, some Elective, & some Collative, ac∣cording to the first foundation & usuage of such Churches, & they humbly desire that they may not be required to give any further answer to this que∣stion; for that it may concerne many mens estates which may come judcially in question before them

15. To the 15. they say, that they conceive that where priviledges are claymed by any body poli∣ticke, or other, the Kings Counsell may exhibite à quo-warranto to cause the parties clayming such

priviledges, to shew by what warrant they clayme the same, & that the Court cannot hinder the issu∣ing of processe at the instance of the Kings Attur∣ney, or hinder the Kings Atturney to exhibite such informations. But when the case shall upon the proceedings be brought to judgment, then & not before the Court is to take notice and give judg••∣ment, upon the merite & circūstances of the cause, as upon due consideration shalbe conceived to be according to law, in which case the Iudges or the Kings Atturney (as they conceive) ought not to be punished by any ordinary rule of law or statute that they know. But for the particular case of Quo-warranto for that it hath beene a great question in this present Parliament, & so concernes the high∣est Court of justice in this kingdome, & also con∣cernes two other of his Majesties Courts of justice, & therin his Majesties prerogative in those Courts, they say that they cannot safely deliver any opini∣on therein, before it comes judicially before them, and that they heare it argued and debated by lear∣ned Counsell on both sides.

16. To the sixteenth they say, that although the Iurors be sole Iudges of the matter of fact, yet the Iudges of the Court are Iudges of the validitie of the evidence, and of the matters of law arising out

of the same, wherein the Iury ought to be guided by them. And if the Iury in any criminall cause betweene the King and party, give their ver∣dict contrary to cleere and apparent evidence de∣livered in Court, they have beene constantly, and still ought to be censured in the Star-chamber in England, and Castle-chamber here, for this misde∣meanor in perverting the right course of justice, in such fines and other punishment as the merites & circumstances of the cause doth deserve, according to the course of the said Courts, for that their con∣sciences ought to be directed by the evidence, and not to bee misguided by their wills or affections. And if the Iury know any matter of fact, which may eyther better or blemish their evidence, they may take advantage thereof, but they ought to discover the same to the Iudges. And they say that this proceeding in the Court of Castle-chamber is out of the same grounds, that writs of attaint are against a Iury that gives a false verdict, in a Court of Record at the Common-law betwixt partie and partie, which false verdict being found by a Iury of twenty foure, notwithstanding that the first Iurie were Iudges of the fact, yet that infamous judge∣ment was pronounced against the first Iury, which is next or rather worse then judgment to death, and

did lay a perpetuall brand of perjury upon them, for which reason it was anciently called the villa∣nous judgement, and they say that the law to direct the punishment for such offences is the course of the said Court, which is a law as to that purpose, & the statute of 3. Henr. 7. cap. 1. and other statutes in force in this kingdome.

17. To the seventeenth, they say, they can an∣swer no otherwise, then they have in their answer to the next precedent question.

18. To the eighteenth, they say, that in a Legall construction the statute of Magna Charta in which the words Salvo contenemento are mentioned is only to be understood of amerciaments & not of fines, yet where great fines are imposed in terrorem upon the reducement of them regard is to be had to the abilitie of the persons.

19. To the nineteenth, they say, that if one doth steale a sheepe or commit any other selony, and af∣ter flyeth the course of justice, or lyeth in woods, or mountaynes upon his keeping, yet doth he not thereby become a Traytor, neyther doth a Procla∣mation make him so, the chiefe use whereof in such a Case is, to invite the partie so standing out to sub∣mit himselfe to justice, or to forewarne others of the danger they may runne into by keeping him

company, or giving him mayntenance, and reliefe whereby he may the rather submit to Iustice.

20. To the twentieth, they say, that the testimo∣ny of Rebels, or Traytors under protection of Theeves, or other infamous persons is not to bee used or pressed as convincing evidence upon the tryall of any man for his life, and so is his Majesties printed instructions, as to persons condemned, or under protectiō, yet the testimony of such persons not condemned & being fortified with other con∣curring proofe, or apparant circumstances may be pressed upon any tryall, and for discovering of their fellowes, abetors, or relievers as the circum∣stances may offer themselves in their examinati∣ons, especially if before they confesse themselves guiltie of the offence in imitation of the approver at the Common-law, whereof no certaine rule may be given. And it neede not be made a que∣stion here, whether the Iurors or Iudges ought to be Iudges of the matter of fact, it being positively layd downe in the sixteenth question that they are. And though their false verdict doth convince, or not convince the prisoner, yet they may be que∣stioned, and punished for a false verdict, as in their answer to the sixteenth is already decla∣red.

21. To the twentie one, they say, that that que∣stion is now judicially depending, and hath beene already solemnely argued in his Majesties Court of VVardes, in which Court their assistance for de∣claration of the law therein is already required. And therefore they humbly desire they may not be compelled to give any opinion touching that point untill it be resolved there.

22. To the twentie two, they say, that they doe conceive, that there is no matter of Law contay∣ned in the said question, yet for the further satis∣faction of your Lordships, they say that upon view of an Act of state, bearing Date at his Ma∣jesties Castle of Dublin the twenty fourth of Decem∣ber 1636. grounded upon his Majesties Letters of the fift of Iuly then last past, it appeared unto them that foure shillings in the pound, as of his Maje∣sties free gift and reward, out of the first payment of the increase of rent reserved to his Majestie, was allowed to the Iudges that were Commissio∣ners and attended that service. And we humbly conceive that the receiving of that foure shillings in the pound, of his Majesties bountie, stands well with the integrity of a Iudge, and those Iudges did informe them that they did not avoyde any Let∣ters-Patents upon the Commission of Defective

Titles but received such to compound as submit∣ted for the strengthning of their defective Patents and Titles, and such as would stand upon the va∣lidity of their grants were left to the tryall at law. And that the Compositions made after the said grants of the foure shillings in the pound were made according to rules and rates agreed upon by all the Commissioners before his Majesties said Letters or the said Act of State, and not otherwise.

• George Shurley.
• Hu. Cressy.
• VVilliam Hilton.
• Edw. Bolton.
• Iames Barry.
• Sa. Mayars.
• Iam. Donellan

Copia vera. Extract per Phil▪ Percivall.