an Irish man will say perhaps these lawes were made in England and that the Irish Nation gaue no particular consent therevnto onely there was an implicite consent wrapt and folded vp in generall tearmes giuen in the statute of â—0 Henr. 7. cap. 22. whereby all statutes made in England are establisht and made of force in Ireland Assuredly though the first Parliament held in Ireland was after the first lawe against Prouisors made in England yet haue there beene as many particular lawes made in Ireland against Prouisions Citations Bulls and Breâ—ues of the Court of Rome as are to bee found in all the Parliament Rolls in England What will you say if in the selfe same Parliament of 10. Henr 7. cap. 5. a speciall lawe were made enacting authorising and confirming in this Realme all the statutes of England made against Prouisors if before this the like lawe were made 32. Henr. 6. cap 4. and againe 28 Henr. 6 cap. 30 the like And before that the like lawe were made 40. Edw. 3 cap. 13. in the famous Parliament of Kilkenny If a statute of the same nature were made 7. Edw 4. cap 2. and a seuerer lawe then all these 16. Edw 4 cap. 4. That such as purchase any Bulls of Prouision in the Court of Rome as soone as they haue published or executed the same to the hurt of any incumbent should bee adiudged traytors which Act if it bee not repealed by the statute of Queene Mary may terrifie Maister Lalor more then all the Actes which are before remembred But let vs ascend yet higher to see when the Popes vsurpation which caused all these complaints began in England with what successe it was continued and by what degrees it rose to that heigth that it weiny ouer topp't the Crowne whereby it will appeare whether hee had gained a title by prescription by a long and quiet possession before the making of these lawes When the Pope began first to vsurpe vpon theliberties of the Crowne of England The first encrochment of the Bishop of Rome vppon the liberties of the Crowne of England was made in the time of King William the Conquâ—ror For before that time the Popes writt did not runne in England his Bulls of excommunication and prouision came not thither no citation no appeales were made from thence to the Court of Rome Our Archbishops did not purchase their Palls there neither had the Pope the inuestiture of any of our Bishopricks A comparison of the spirituall Monarchy of y t Church with the teÌ„porall Monarchies of the world For it is to bee obserued that as vnder the Temporall Monarchie of Rome Brittany was one of the last Prouinces that was wonne and one of the first that was lost againe So vnder this spirituall Monarchy of the Pope of Rome England was one of the last countries of Christendome that receaued his yoke and was againe one of the first that did reiect and cast it of And truely as in this so in diuers other points the course of this spirituall Monarchy of the Pope may bee aptlie compared with the course of the temporall Monarchies of the world For as the temporall Monarchies were first raised by intrusion vppon other Princes and Common-weales so did this spirituall Prince as they now 〈◊〉 him growe to his greatnes by vsurping vppon other States and Churches As the temporall Monarchies following the course of the Sunne did rise in the East and settle in the West so did the Hierarchie or gouernment of the Church Of the foure temporall Monarchies the first two were in Asia the later two in Europe but the Romane Monarchy did surpasse and suppresse them all So were there foure great Patriarches or Ecclesiasticall Hierarchies two in the East and two in the West but the Romane Patriarch exalted himselfe and vsurped a Supremacie aboue them all And as the rising of the Romane Empyre was most opposed by the State of Carthage in Affrica amula Romae Carthago So the Councell of Carthage and the Affrican Bishops did first forbid appeales to Rome and opposed the Supremacie of the Pope And doth not Daniels image whose head was of gold and legges and feete of iron and clay represent this spirituall Monarchy as wâ—ll as the temporall whereas the first Bishops of Rome were golden Priests though they had but wooden Chalices and that the Popes of later times haue beene sor the most part worldly and earthly minded And as the Northern Nations first reuolted from the Romane Monarchy and at last brake it in peeces haue not the North and Northwest Nations first fallen away from the Papacie and are they not like in the end to bring it to ruine The Pope had no iurisdiction in England in the time of the Brittons But to returne to our purpose The Bishop of Rome before the first Norman Conquest had no iurisdiction in the Realme of England neither in the time of the Brittons nor in the time of the Saxons Eleutherius the Pope within lesse the 200. yeares after Christ writes to Lucius the Brittish King and calls him Gods vicar within his kingdome which title hee would not haue giuen to that King if himselfe vnder pretence of being Gods Vicar generall in earth had claimed iurisdiction ouer all Christian kingdomes Pelâ—gius the Moncke of Bangor about the yeare 400. being cited to Rome refused to appeare vppon the Popes citation affirming that Brittany was neither within his Dioces nor his prouince After that about the yeare 600. Augustine the Moncke was sent by Gregory the great into England to conuert the Saxons to Christian Religion the Brittish Bishops then remayning in Wales regarded not his Commission nor his doctrine as not owing any dutie nor hauing any dependancie on the Court of Rome but still retained their ceremonies and traditions which they receaued from the East Church vppon the first plantation of the faith in that Iland being diuers and contrarie to those of the Church of Rome which Augustine did endeaunor to impose vppon them The like doth Beda write of the Irish priests and Bishops For in the yeare 660 hee reporteth that a conuocation of the Cleargie being called by King Oswif there rose a disputation betweene Colman one of our Irish Saints then present in that Synod and Wâ—lfrid a Saxon priest touching the obseruation of Easter wherein the Brittish and Irish Churches did then differ from the Church of Rome Colman for the celebration of Easter vsed in Ireland affirmed it was the same quod beatus Euangelista â—oannes discipulus specialiter â Domino dilectus in omnibus quibus praerat Ecclesijs celebrasse legitur On the other part Wilsrid alleaged that all the Churches of Christendome did then celebrate Easter after the Romane manner except the Churches of the Brittons and Picts qui contra totum orbem said hee stulto labore pugnant Wherevnto Colman replied Miror quarâ— stultum laborem appellas in quo tanti Apoâ—â—oli qui super pectus Domini
LE PRIMER REport des Cases Matters en Ley resolues adiudges en les Courts del Roy en Ireland Collect et digest per S r. Iohn Dauys Chiualer Atturney Generall del Roy en cest Realme Liber librum aperit DVBLIN Printed by Iohn Franckton Printer to the Kings most excellent Maiestie Anno. 1615. TO THE RIGHT HONORABLE MY SINGVLAR GOOD LORD THOMAS LORD ELLESMERE LORD CHAVNcellor of England KIng Henry the Second my most honorable good Lord was the first King of England after the Norman Conquest that was styled Lord of Ireland Yet are there no recordes of that kings time remaining whereby it may appeare that he established any forme of Civill gouernment in this land But it is manifest by many recordes and stories that his sonne King Iohn made the first division of Counties in Ireland published the lawes of England and commaunded the due execution thereof in all those countries which he had made erected the Courts of Iustice made the Standard of Irish moneys equall with the English Breefely hee did order settle the government heere in all pointes according to the Modell of the common-wealth of England And to that end when himselfe in person came over into Ireland the second time which was in the twelfth yeare of his raigne he brought with him many learned persons in the lawe and other Officers ministers of all sorts to put the English lawes in execution whereof there is a notable record in the Tower of London 11. Henr. 3. Patent Membr 3. agreeing with that which is related by Matth. Paris histor magn sol 220 b. After which time the recordes of all legall Actes proceedings namely the Piperolls containing the charge of the revenue both Certaine casuall the Plearolls containing as well Common pleas as pleas of the Crowne Parliament Rolls Charters Patents Commissions Inquisitions were made vp in good forme in euery kings time till the later end of the raigne of King Henry VI when by reason of the dissension of the two Royall houses the state of England neglecting the gouernment of this Realme the Clarks and Officers grewe also negligent in the execution of theire severall places And though many of those auncient recordes haue beene embezeled many haue perished by carlesse keeping yet divers of all sortes doe yet remaine as faire authentique as any I haue seene in England Howbeit during all the time that the lawes of England haue had theire course in Ireland which is nowe full foure hundred yeares there hath not beene any Report made published of any Case in lawe argued or adiudged in this Kingdome but all the arguments reasons of the iudgements resolutions giuen in the Courts of Ireland haue hitherto beene vtterly lost buried in oblivion Which seemeth to me the more straunge because there haue beene within this Realme in euery age since the raigne of King Iohn men sufficienly learned in the lawes who haue deriued theire learning out of the fountaines of lawe in England the Innes of Court there being the most florishing honorable Academy of gentlemen that euer was established in any nation for the study learning of the Municipall lawes thereof And therefore they might haue beene induced to imitate the learned men of England who from the Norman Conquest downewards did continually preseiue the memory of such notable cases as did from time to time arise where argued and ruled in the Courts of Iustice in England by reducing the same into bookes of Reports which may bee called not improperly the Annalles of the lawe For albeit our Reports at large which are published in Print doe beginn with the raigne of king Edw. III. And the broken Cases of elder times which are scattered in the Abridgements are not found higher then the time of king Henry III. yet assuredly there were other Reports digested in yeares Tearmes as auncient as the time of king William the Conqueror as appeareth by that which Chaucer writteth of the Seriaunt at lawe In Termes had hee Cases and Doomes all That fro that time of King William were fall Neither doth Glanuill or Bracton disaffirme this antiquity of the Reports of the lawe in that they affirme that the lawe of England was Ius non scriptum in theire times as your Lordship hath noted in that most learned graue prudent speech of yours touching the Postnati of Scotland For indeede those Reports are but Comments or interpretations vppon the Text of the Common lawe which Text was neuer originally written but hath euer bin preserued in the memory of men though no mans memory can reach to the originall thereof For the Common lawe of England is nothing else but the Common custome of the Realme And a custome which hath obtained the force of a lawe is alwayes said to bee Ius non scriptum for it cannot bee made or created either by Charter or by Parliament which are actes reduced to writting are alwayes matter of Record but being onely matter of fact and consisting in vse practise it can bee recorded and registred no where but in the memory of the people For a Custome taketh beginning groweth to perfection in this manner When a reasonable act once done is found to bee good beneficiall to the people agreeable to theîre nature disposition then do they vse it practise it againe agaîne so by often iteration multiplication of the act it becometh a Custome being continued without interruption time out of minde it obtaineth the force of a lawe And this Custumary lawe is the most perfect most excellent and without comparison the best to make preserue a commonwealth for the written lawes which are made either by the edicts of Princes or by Counselles of estate are imposed vppon the subiect before any Triall or Probation made whether the same bee fitt agreeable to the nature disposition of the people or whether they will breed any inconvenience or no. But a Custome doth neuer become a lawe to binde the people vntill it hath bin tried approued time out of minde during all which time there did thereby arise no inconuenience for if it had beene found inconuenient at any time it had beene vsed no longer but had beene interrupted consequently it had lost the vertue force of a lawe Therefore as the lawe of nature which the schoolmen call Ius commune which is also Ius non scriptum being written only in the hart of man is better then all the written lawes in the worlde to make men honest happy in this life if they would obserue the rules thereof So the custumary lawe of England which wee do likewise call Ius commune as comming neerest to the lawe of Nature which is the roote touchstone of all good lawes which is also Ius non scriptum written onely in the memory of man for euery custome though it tooke beginning beyond the memory of
any liuing man yet it is continued preserued in the memory of men liuing doth farre excell our written lawes namely our Statutes or Actes of Parliament which is manifest in this that when our Parliaments haue altered or changed any fundamentall pointes of the Common lawe those alterations haue beene found by experience to bee so inconuenient for the commonwealth as that the common lawe hath in effect beene restored againe in the same points by other Actes of Parliament in suceedîng ages And as our Custumary vnwritten lawe doth excell our Parliament lawes which are written so for the gouernment of the Common-weale of England which is as well instituted established as any Common-weale in Christendome Our natiue Common lawe is farre more apt agreeable then the Ciuill or Canon lawe or any other written lawe in the worlde besides howsoeuer some of our owne Countrimen who are Ciues in aliena Republica hospites in sua may perâ—â—ppes affirme the contrary But certaine it is That the greate and wise-men of England in the Parliament of Merton did not preferre a Forreine lawe before theire owne when motion being made by the Clergie that Children borne before Marriage might be adiudged legitumate They all made aunswere with one voice Nolumus Leges Angliae mutari And againe in II. R. 2. when a newe course of proceeding in Criminall Causes according to the forme of the Ciuill lawe was propounded in that vnruly Parliament Aunswere was made by all the Estates That the Realme of England neither had bin in former times nor hereafter should bee Ruled and gouerned by the Ciuill law Rot Parliam II. R. 2. in Archiv Turris And heere I may obserue for the Honour of our Nation and of our Auncestors who haue founded this Common-weale wherein wee liue and enioy so many felicities That England hauing had a good and happie Genius from the beginning hath bin enhabited alwaies with a vertuous wise people who euer embraced honest and good Customes full of Reason and conveniencie which being confirmed by common vse practise and continued time out of minde became the common lawe of the Land And though this lawe bee the peculiar inuention of this Nation and deliuered ouer from age to age by Tradition for the common lawe of England is a Tradition learned by Tradition as well as by Bookes yet may wee truly say That no humaine lawe written or vnwritten hath more certainty in the Rules and Maximes more coherence in the parts thereof or more harmony of reason in it nay wee may confidently averr that it doth excell all other lawes in vpholding a free Monarchie which is the most excellent forme of gouernment exalting the prerogatiue Royall and being very tender and watchfull to preserue it and yet maintaining withall the ingenuous liberty of the subiect Breefely it is â—o framed and sitted to the nature disposition of this people as wee may properly say it is connaturall to the Nation so as it cannot possibly bee ruled by any other lawe This lawe therefore doth demonstrate the strength of witt and reason and selfe sufficiencie which hath beene alwayes in the people of this land which haue made theire owne lawes out of their wisdome experience like a silke worme that formeth all her webb out of her selfe onely not begging or borrowing a forme of a common-weale either from Rome or from Greece as all other nations of Europe haue done but hauing sufficient prouision of lawe Iustice within the land haue no neede Iustitiam iudicium aâ— alienigenis emendicare as King Iohn wrote most nobly to Pope Innocent the third Matth Parishistor magn pag 215. En populus sapiens intelligens gens magna As it is said of Gods chosen people 4. Deuter. Neither could any one man euer vaunt that like Minos Solon or Lycurgus he was the first Lawegiuer to our Nation for neither did the King make his owne prerogatiue nor the Iudges make the Rules or Maximes of the lawe nor the common subiect prescribe and limitt the liberties which he enioyeth by the lawe but as it is said of euery Art or Science which is brought to perfection Per varios vsus artem experientia fecit so may it properly bee said of our lawe Per varios vsus legem experientia fecit Long experience many trialles of what was best for the common good did make the Common lawe But vppon what reason then doth Polidor Virgill other writers affirme that King William the Conqueror was our Lawegiuer caused all our lawes to bee written in French Assuredly the Norman Conqueror found the auncient lawes of England so honorable profitable both for the Prince people as that he thought it not fitt to make any alteration in the fundamentall pointes or substance thereof the change that was made was but in formulis iuris he altered some legall formes of proceeding to honor his owne language for a marke of Conquest withall he caused the pleading of diuers Actions to be made entred in French sett forth his publique Ordinances Acts of Counsell in the same tongue which forme of pleading in French continued till 36. Edw. 3. when in regard that the French tongue begann to growe out of vse which for many yeares after the Norman Conquest was as common as the English among the Gentry of England it was ordained by Parliament that all pleas should bee pleaded debated Iudged in the English tongue entred enrolled in Latine And as for our statutes or Acts of Parliament the billes were for the most part exhibited in French passed and enrolled in the same language euen till the time of King H. 7. And so are they printed in Rastalles first Abridgment of statutes published in the yeare 1559. But after the begining of King Henry 7. his raigne wee finde all our Acts of Parliament recorded in English Onely our Reports of the Cases resolutions and Iudgments in the lawe whereof our bookes of the lawe do consist haue euer vntill this day beene penned published in that mixt kinde of speech which wee call the lawe French differing indeede not a litle from the French tongue as it is now refined and spoken in Fraunce as well by reason of the words of Art and forme called the Tearmes of the lawe as for that wee doe still retaine many other old wordes Phrases of speech which were vsed foure hundred yeares since are now become obsolete out of vse among them but are growne by long continuall vse so apt so naturall so proper for the matter subiect of these Reports as no other language is significant enough to expresse the same but onely this lawe french wherein they are written And this is the true onely cause why our Reports other books of the lawe for the most part are not sett forth in English Latine or the moderne french for that the proper peculiar phrase of the common
n'oseront appeller leyes Ne committerent crimen laesae Maiestatis in Principes come Marsil Pat. ad bien observe libr. Defensor Pacis part 2. cap. 23. que dit auxi la que ceux Canons entant que sont fait per le Pape neque sunt humanae leges neque diuinae sed documenta quaedam narrationes Uncor quant il perceavoit que ceux Canons fueront receave allow vse en part per severall nations il compile eux en volumes appell eux Ius Canonicum ordaine que serront lyes expound en publik Schooles Universities come l'Imperiall ley fuit lie expound commaund que serront obey per touts Christians sur paine de excommunication contend sovent foits de metter eux en execution per coactive power assume sur luy de interpreter abrogater dispenser ove ceux leyes en touts les Realmes de Christendome a son pleasure i sint que les Canonists ascribont a luy cest prerogative Papa in omn bus pure positiuis in quibusdam ad ius diuinum pertinentibus dispensare potest quia dicitur omnia iura habere in scrinio pectoris sui quantum ad interpretationem dispensationem libr. 6. de Const cap. licet Pur le temps Anno. 25. Ed. 1. Simon vn Moigne de Walden commenâ—â—oit de lier le Canon ley en le University de Cambridge vid. Stow Walsingham en meime l'Au le Manusc libr. 6. Decretal en le Library Noui Coll. Oxon. ad cest inscription in fronte Anno Domini 1298. que fuit l'An 26. Edw. 1. 19. Nouembr in Ecclesia fratrum Praedicator Oxon. fuit facta publicatio lib. 6. Decretal per que appiert quant le Canon ley fuit introduce en Engleterre Mes le Irisdiction que le Pape per colour de ceo claimoit en Engleterre fuit vn meer vsurpation a quel les Royes D'engleterre de temps en temps fesoent opposition iusques al temps del Henr. 8. Et certes le Idgment del Parliament expresse en le Preamble de cest Statut de faculties est notable a cest purpose Ou est recite que l'Evesque de Rome ad deceave abuse les subiects del Corone D'engleterre Pretending and persuading to them that hee had full power to dispense with all humane lawes vses customes of all Realmes in all causes which bee called Spirituall which matter hath beene vsurped and practised by him and his predecessors for many yeares to the great derogation of the Imperiall Crowne of England For whereas the said Realme of England recognising no superior vnder God but the King hath beene yet is free from subiection to any mans lawes but onely to such as haue beene deuised made and ordained within this Realme for the wealth of the same or to such other as by sufferaÌ„ce of the King his progenitors the people of this Realme haue taken at their free libertie by their owne consent to bee vsed among them haue bound themselues by long vse custome to the obseruance of the same not as to the obseruance of the lawes of any forein Prince Potentate or Prelate but as to the accustomed auncient lawes of this Realme originally established as lawes of the same by the said sufferance consent custome not otherwise it standeth with naturall equity good reason that all such humane lawes made within this Realme or induced into this Realme by the said sufferance consent custome should bee dispensed with abrogated amplified or diminished by the King his Parliament or by such persons as the King Parliament should authorise c. vid. 21. H. 7. 4 a. ou est dit que certeine priests fueront deprive de lour benefices per Act de Parliament en temps R. 2. Per que fuit conclude que le Roy D'engleterre nemi le Pape devant le fesans de cest Statute de faculties puissoit de iure dispenser ove l'Ecclesiasticall ley en cest auters cases Car coment que plusors de nostre Ecclesiasticall leyes ont estre primerment devise en le Court de Rome vncor ceux esteant establish confirme en cest realme per acceptance vsage sont ore devenus English leyes ne serront amplius repute Romish Canons ou Constitutions Come Rebuffus parlant de regula Cancellariae Romanae de verisimili notitia haec regula dit il vbique in regno FraÌ„ciae est recepta est lex Regni effecta obseruatur tanquam lex regni non tanquam Papae regula Papa eam reuocare non potest Et pur ceo l'Ecclesiasticall ley que ordaine que quant home est create en Evesque que touts ses inferior benefices serront void est soventfoits dit en le Case del Evesque de S. Dauids 11. Henr. 4. destre l'auncient ley D'engleterre Et 29. Edw. 3. 44. a. en le Case del Praebend de Oxgate est dit que le constitution que ouste pluralities comenceoit en le Court de Rome vncor vn Esglise fuit adiudge void en Banke le Roy pur cel cause Per que appiert que depuis que cest Constitution fuit receave allow en Engleterre ceo fuit devenus ley D'engleterre vid. statutum de Bigamis cap. 5. ou le Roy son Counsell en Parliament declaroâ—t coment vn Canon fait en le Counsell de Lions serroit interpret expound De Bigamis quos Dominus Papa in Concilio suo Lugdunensi omni priuilegio suo Clericali priuauit per constitutionem inde editam vnde quidam Praelati illos qui effecti fuerunt Bigami ante praedictam constitutionem quando de felonia rectati fuerunt tanquam Clericos elegerunt sibi deliberandos concordatum est declaratum coram Rege Consilio quod constitutio ista intelligenda sit quod siue effecti fuerint Bigami ante praedictam constitutionem siue post de caetero non liberentur Praelatis sed fiat de ijs iustitia sicut de laicis Uncor touts les Ecclesiasticall leyes D'engleterre ne fueront dirive apprompt del Court de Rome Car long temps devant que le Canon ley fuit authorise publiâ—â— que fuit depuis le Norman Conquest come devant est moÌ„stre les auncient Royes D'engleterre viz. Edgar Athelstan Alfred Edw. le Confessor auters ont ove l'advise de lour Clergy deins le Realme fait divers ordinances pur le government del Esglise D'engleterre depuis le Conquest divers Provinciall Synodes ont estre tenus plusors constitutions on t estre fait en ambideux Realmes D'engleterre Ireland touts queux sont part de nostre Ecclesiasticall leyes a cest iour vid. le Chart. de William le Conquerour dat Anno Domini 1066. irrot 2. R. 2. enteries Charters in Archiu Turris London pro Decano
that are to bee decided by the lawe Besides it must bee a worke of singular Iudgement to apply the groundes and rules of the lawe which are fixt certeine to all humaine acts accidents which are in perpetuall motion mutation And therefore wee may truly say for the honor of our lawe notwithstanding that vulgar imputation of incerteinty that the Iudgement reason of it is more certeine then of any other humane lawe in the world As well because the groundes of our common lawe haue from the beginning beene laid with such deepe wisdome policie prouidence as that they doe prouide for meete with almost all cases that can possibly fall out in our common-wealth as also because those groundes are so plaine so cleare as that the professors of our lawe haue not thought it needefull to make so many glosses interpretations therevppon as other lawes are perplexed confounded withall which glosses as one doth well obserue do encrease doubt and ignorance in all Arts and Sciences And therefore the Ciuilians themselues confesse that their lawe is a sea full of waues the Text whereof being digested into so many volumes so many Doctors interpreting the Text twise as many more Commenting vppon their interpretations so glosse vppon glosse booke vppon booke euery Doctors opinion being a good authority fitt to bee cited vouched among them must needes breed distraction of opinions vncerteinty in that lawe The like may bee said of the Canon lawe albeit the Text thereof bee scarce foure hundred yeares old But of the professors of our lawe who euer yet hath made any glosse or interpretation vppon our Master Litleton though into that litle booke of his he hath reduced the principall groundes of the common lawe with exceeding great Iudgement authority with singular Method order yet if hee had beene an author in the Ciuill or Canon lawe I dare say there had beene by this time so many Comments glosses made vppon him as the bookes written vppon this booke onely would haue beene more in number then all the volumes of our lawe at this day But the learned men in our lawe haue euer thought that Littleton being a learned reuerend Iudge wrote with a purpose to bee vnderstoode that therefore an other man specially if he were of lesse learning then hee could hardly expresse him better then he hath expressed himselfe And therefore his booke hath euer beene readâ— of our yongest students without any Commentary or interpretation at all But for all this it is obiected that our later Iudgements doe many times crosse contradict the former directly in one the same pointe of lawe which is a manifest argument of incerteinty in the lawe Assuredly there are very few precedents of such contrary Iudgements scarce two in one age And yet if the reasons of the later Iudgements did appeare of record wee should finde them grounded vppon mischeefes inconueniencies arising since the former Iudgements or vppon other weighty considerations respecting the good of the common-wealth in generall Otherwise there are no Iudges in any State or Kingdome vnder the Sunne that do more reuerence the opinions Iudgements of their predecessors then the Iudges of England haue euer done as your Lordship for their honor hath obserued in that most worthy speech of the Postnati wherein among other thinges your Lordsâ—ip doth noate the memorable saying of Askue 37. Henr. 6 fol. 22. Such a Charter hath beene allowed in the time of our predecessors who were as sage learned as wee bee of Markham 4. Edw. 4. fol. 41. It is good sayeth hee for vs to do as it hath beene vsed in former time not to keepe one way one day for one partie another day the contrary for th' other partie the former precedents are enough for vs to followe But on the other side let vs heare what a learned Canonist Lodoâ—icus Gomez in regula de Triennali possessore cap. 5. is bold to say Non est inconueniens sayeth he iudicium esse vno tempore iustum postea eius contrarium iustius hoc malum videtur imponi mortalibus in pâ—nam vt corum opiniones secundum varietatem temporum senescant intermoriantur aliaeque â—iuersae vel priorihus contrariae renascantur deinde pubescant Talis enim est humani iuris disciplina vt nulla in â—a opinio â—odem statu diú stare possit Dies dâ—â—i â—ructat verbum nox noctâ— indicat scientiam And againe Opiniones hominum â—orum corpora sequuntur quae cum tempore vetaraâ—â—unt pereunt sâ—â—ut rerum omnium ita quoque opinionum est quaedam vicissitudo And in another place Stilus hodiernâ—s propter maâ—orem temporum experientiam videtur magis iure fundatus ideo solet dicâ— quod moderni sunt sicut Culices in capite Elephantis quae vident priora posteriora quanto juniores tanto perspicatiores And thus much may suffice to bee spoken to remoue that scandall of vncerteinty which ignorance doth vnworthily cast vppon the common lawe 2 But if the reason ludgement of our lawe be so litle subiect to vncerteinty how cometh it to passe that the proceedings of our laws are so much subiect to delay for this is another vulgar obiection against our lawe the professors thereof But who are they that make this obiection haue they themselues beene engaged in any suites of importance haue they passed through the Courts of Iustice either in course of lawe or in course of equity if they haue not they speake but by hearesay then their testimony in this behalf is of litle credit If they haue had any long depending suites of their owne then let them examine whither their owne spleene wilfulnesse or the corruption of some needy sollicitors who picke their liuing out of the busines they followe are loath to quench the fur that maketh them warme haue not rather drawne their causes to an extraordinary length then the ordinary proces of lawe or the aduise of learned Counsell For such as are learned Counsellors indeede are like good Pilots who though their skill bee best tried in a long difficult voiage do rather desire faire weather a speedy arriuall with their passengers in the hauen But the troth is it is the stomack or malice of such clients as will not stick to say that they will spend all they are worth to haue their will of their aduersaries therefore will not bee satisfied with any Iudgement or decree that doth produce prolong suites in lawe who when their learned Counsell indeede do refuse to nourish that peccant humor in them doe seeke out discarded impostors or Idolls of whome there is an opinion among light ignorant people of extraordinary cunning sleight in carying of busines with aduantage in curing of foild desperate causes These men giue them counsell according to their owne
lastly they pray and require the King by way of Iustice to examine all the Lords in Parliament what they thought of these manifest wrongs and vsurpations and whether they would stand with the King in desence of his Royall liberties or no which the King did according to their petition and the Lords Spirituall and Temporall did all answere that these vsurpations of the Bishop of Rome were against the liberties of the Crowne and that they were all bound by their alleageance to stand with the King and to mantaine his honor and prerogatiue And therevppon it was enacted with a full consent of the three Estates that such as should purchase in the Court of Rome or elsewhere any Bulls or Processes or other things which might touch the King in his Crowne and dignitie Royall and such as should bring them into the Realme and such as should receaue them publish them or execute them they their Notaries Proctors Mantainors and Counsellors should bee all out of the Kings protection their lands and goods forfeited to the King their bodies attached if they might bee sound or else processe of Praemunire facias to bee awarded against them Vppon these motiues and with this affection and zeale of the people was the statute of 16. Rich 2 made wherevppon wee haue framed our inditement Now let vs looke higher and see whether the former lawes made by King Edw 3. and King Edw. 1. against the vsurpation of the Bishop of Rome were not grounded vppon the like cause and reason The effect of the statut of 38. Edw. 3 cap. 1. The statute of 38. Edw. 3. cap. 1. expressing the mischiefes that did arise by Bâ—â—eues of citation which drewe the bodies of the people and by Bulls of prouision and reseruation of Ecclesiasticall benefices which drewe the wealth of the Realme to the Court of Rome doth declare that by these meanes the auncient lawes customes and franchises of the Realme were consounded the Crowne of our Soueraigne Lord the King deminished and his person falsely defamed the Treasure and riches of the land carried away the Subiects of the Realme molested and impouerished the benefices of holy Church wasted and distroyed Diuine seruice Hospitalitie Almesdeeds and other workes of Charitie neglected The statute of 27. Ed. 3. cap. 1. Againe 27 Edw 3 cap. 1. vppon the greeuous and clamorous complaint for that phrase is there vsed of the great men and Commons touching Citations and Prouisions it is enacted that the offendors shall forfeit their lands goods and Chattels and their bodies bee imprisoned and ransomed at the Kings will The statute of 25 Ed. 3. reciting the statute of 25. Ed. 1 But in the statute of 25. Edw. 3. wherein the first lawe against Prouisors made 25. Edw. 1. is recited there is a larger declaration of these inconueniences then in the two last Actes before mentioned For there all the Commons of the Realme doe greuously complaine that where the holy Church of England was first founded in estate of Prelacio by the Kings and Nobilitie of that Realme and by them endowed with great possessions and reuenewes in lands rents and Aduowsons to the end the people might bee informed in Religion Hospitality might bee kept and other works of Charitie might bee exercised within the Realme And whereas the King and other founders of the said Prelacies were the rightfull Patrons and Adowees thereof and vppon avoydance of such Ecclesiasticall promotions had power to aduance therevnto their kinsemen friends and other learned men of the birth of that Realme which being so aduanced became able and worthy persons to serue the King in Counsell and other places in the Common-weale The Bishop of Rome vsurping the Seigniory of such possessions and benefices did giue and graunt the same to Aliens which did neuer dwell in England and to Cardinals which might not dwell there as if hee were rightfull Patron of those benefices whereas by the lawe of England hee neuer had right to the Patronage thereof whereby in short time all the spirituall promotions in the Realme would bee ingrossed into the hands of Strangers Canonicall Elections of Prelats would be abolished workes of Charity would cease the founders true PatroÌ„s of Churches would be disenherited the Kings Counsell would bee weak'ned the whole kingdome impouerished the lawes rights of the Realme destroyed Vppon this complaint it was resolued in Parliament that these oppressions greeuances should not be suffted in any manner thereore it was enacted that the King his Subiects should thenceforth enioy thei rights of Patronage that free elections of Archbishops Bishops and other Prelates electiue should bee made according to the auncient graunts of the Kings progenitors other founders that no Bulls of Prouision should be put in execution but that the Prouisors should be attached fined ransomed at the Kings will withall imprisoned till they had renounced the benefits of their Bulls satisfied the partie greeued and giuen suerties not to committ the like offence againe These lawes made by such as did professe the Romish Religion Nowe Maister Lalor what thinke you of these things did you beleeue that such lawes as these had beene made against the Pope 200. 250. 300. yeares since was King Henr. 8. the first Prince that opposed the Popes vsurped authority were our Protestants the first Subiects that euer complained of the Court of Rome of what Religion thinke you were the propoundors and enactors of these lawes were they good Catholikes or good Subiects or what were they You will not say they were Protestants for you will not admitt the reformed Religion to bee so auncient as those times neither can you say they were vndutiefull for they stroue to vpohold their liege Lords Soueraignety Doubtelesse the people in those daies did generally embrace the vulgar errours and superstitions of the Romish Church and in that respect were Papists as well as you but they had not learned the newe doctrine of the Popes Supremacie and transcendent authority ouer Kings They did not beleeue hee had power to depose Princes and discharge Subiects of their alleageance to abrogate the fundamentall lawes of kingdomes and to impose his Canons as binding lawes vppon all nations without their consents they thought it a good point of Religion to bee good Subiects to honor their King to loue their country and to mantaine the lawes and liberties thereof howsoeuer in other points they did eâ—re and were mislead with the Church of Rome So as now Maister Lalor you haue no excuse no euasion but your conscience must condemne you as well as the lawe since the lawemakers in all ages and all religious Papists and Protestants doe condemne you vnlesse you thinke your selfe wifer then all the Bishops that were then in England or all the Iudges who in those daies were learned in the Ciuill and Canon lawes as well as in the Common lawes of England Lawes against Proâ—isors made in Ireland But you being
hart because they sooth them in their litigious humor howbeit in the end when they haue wearied wasted themselues they finde how weake those wiles craftie courses are learne of Esope that that one onely plaine way which the Cart had to escape from the dogges was better safer then those hundred trickes of euasion whereof the Fox did vaunt before he was taken and they finde withall the saying of Cicero true ignoratio iuris litigiosa est potius quam scientia Besides this malignant vnquiet disposition of many Clients there is another cause why suites are not brought so soone to an end as perhappes they were in former ages namely the multitude of causes now depending in euery Court of â—ustice euery of which causes must haue conuenient time allowed as well to prepare it make it ripe to be heard or tried as for the triall hearing it selfe And the true cause of the multitude of causes doth proceed from this that the comodities of the earth being more improued there is more wealth consequently there are more contracts reall personall then there were in former ages Besides there is more luxury excesse in the world which breedeth vnthryftes banckruptes bad debtors more coueteousnesse more malice which begetteth force fraud oppression extortion breath of the peace breach of trust Out of these fountaînes innumerable suites do spring which make the Courts of Iustice so to swell and hence it is that our statute lawes since Henr. 8. his time do make vp so greate a volume hence it is that the professors of the lawe are growne withall to so greate a number for where there is magna messis there must bee of necessity operarij multi Indeed if wee all liu'd according to the lawe of nature wee should neede fewe lawes fewer lawiers Do as thou wouldest bee done vnto were a rule sufficient to rule vs all euery mans conscience would supplie both the place of an Aduocate a Iudge then wee should suffer no costs of suite nor delay of proces And againe if wee were a poore a naked people as many nations in America bee wee should easily agree to bee iudged by the next man wee meete so make a short end of euerie controuersie When the people of Rome were litle better then Sheepards heardsmen all their lawes were contained in ten or twelue Iuory tables But when they became Lordes of all the world what a world of bookes were there written of the Roman ciuill lawe The like wee see in euery common-wealth when it once beginnes to flourish to growe rich mighty the people growe proud withall their pride makes them contentious litigious so as there is neede of many lawes to bridle them many Officers to execute those lawes many Lawyers to interpret those lawes all litle enough as when a bodie growes full grosse it needes more Physicke then when it was leane And yet though our suites and causes bee very many our Courts of Iustice but a fewe whereby it must needs come to passe that euerie particular busines mouing in his turne must haue the slower motion yet if wee compare our legall proceedings with the proces of other Kingdomes common-weales specially of France wee shall finde that according to the vsuaâ—l clause in diuers writts wee haue indeede plenam celerem iustitiam though the breefest Iustice bee not alwayes best that our causes for the most parte beîng orderly pursued may come to their Period in a yeare with the course of the Sunne when there are many processes in foreine countries that seeme to be gouerned by Saturne which planet doth fearce finnish his course in the space of thirty yeares as Bodin doth testifie of his owne country that their were more suites in lawe depending in France then in all Europe besides that many of those causes were an hundred yeare old as that of the countie of Rais saieth hee which suite hath beene so well entertained in all the Chambers of Iustice as albeit the parties that began it are long since deade yet the suit it selfe is still aliue Besides wee haue not so many Appeales nor so many reuiewes of causes as the Ciuill Canon lawes do admitt neither haue wee at this day so many delaies by Essoines viewes vouchers protections as were in vse in former ages when titles of land were tried onely in actions Reall which are now growne almost out of vse a more speedy course of triall inuented by mâ—xt personall actions Lastly there is no Nation in the world I speake it for the honor of our Nation of our land that hath a course of Iustice so speedy withall so commodious easie for the subiect as our trialles by Assise nisi prius are For what Kingdome is there vnder the Sunne wherein euery halfe yeare the publike Iustice doth make her progresse into euery part thereof as it doth in the kingdomes of England Ireland whereby it commeth to passe that whereas the people of other contries do trauell farr to seeke Iustice in their fixt setled Courts as it were at fountaines or Cesternes the streames of Iustice are deriued vnto our people brought by conduit pipes or quilles euen home as it were to their owne doores And thus much I thought fitt to obserue for the clearing of that vniust imputation of long vnnecessary delaies in our legal proceedings 3 But there is yet another exception against the professors of our lawe namely that wittingly willingly they take vppon them the defence of many bad causes knowing the same to bee vniust when they are first consulted with retained And this is obiected by such as presume to censure our Profession in this manner In euery cause betweene partie partie say they there is a right there is a wrong yet neither the one partie nor the other did euer want a Counsellor to maintaine his cause This may bee true for the most part yet in truth the learned Counsell whose fortune it is to light on the wrong side may be free from imputation of any blame For when doth the right or wrong in euery cause appeare when is that distinguished made manifest can it bee discouered vppon the first Commencement of the suite before it bee knowne what can bee alleaged proued by either partie Assueredly it cannot therefore the Counsellor when he is first retained cannot possibly Iudge of the cause whether it bee iust or vniust because be heares onely one part of the matter and that also he receaues by information from his Client who doth euer put the case with the best aduantage for himselfe But when the parties haue pleaded are at issue when they haue examined witnesses in course of equity or bee descended to a triall in course of lawe after publication hearing in thâ—one cause full euidence deliuered
in the other then the learned Counsell of eîther side may perhappes discerne the right from the wrong not before But then are the causes come to their Catastrophe the Counsellors Act their last part And yet vntill then the true state of the cause on both sides could not possibly bee discouered If then the causes that are prosecuted do for the most part hang in a doubtfull ballance vntill the hearing or triall thereof for if a cause bee vndoubtedly apparantly naught on the one side no man is so vnwise as to followe it to the end with the expence of money hazard of his credit how can it bee iustly said that the Counsellor against whose Client a decree or verdict doth passe hath wittingly defended an vniust cause when hee wist not how the ballance would incline vntill hee had made his vttermost defence howbeit if any of our Counsellors do either in the prosecution of their Clients causes giue sinister craftie Counsell or vppon the hearing or triall thereof make an ouer bold defence of any dishonest action our Iudges are so tender iealous of the honor of our profession as they lay a noate of Infamy vppon such persons so as they seldome or neuer after are permitted to rise to any higher degree in the lawe or any Office of trust in the common-wealth Whereby it commeth to passe that no men of any other calling or profession whatsoeuer are more carefull to preserue their good name reputation stand more precisely vppon their good behauiour then the learned professors of the common lawe And as our Iudges do discountenance bad Counsellors so doth our lawe abhorre the defence maintenance of bad causes more then any other lawe in the world besides For by what other lawe is vnlawfull maintenance champertie or buying of titles so seuerely punished By what othet lawe doth the plaintife pro falso clamore or vniust vexation or the defendant for pleading a false plea pay an amercement or fine to the publike Iustice And this is one cause among others why our lawe doth not allowe Counsell vnto such as are indicted of Treason Murder Rape or other capitall crimes So as neuer any Professor of the lawe of England hath beene knowne to defend for the matter of fact any Traytor Murderer Rauisher or Theefe being indicted prosecuted at the suite of the King Turpe reos empta miseros defendere lingua saieth the Poet therefore it is an honor vnto our lawe that it doth not suffer the Professors thereof to dishonor themselues as the Aduocats Orators in other countries do by defending such offendors For example whereof wee haue extant diuers Orations of Cicero one pro C. Rabirio perduellionis reo another pro Roscio Amerino who was accused of Parricide another pro Milone who was accused of Murder But good Lawyers haue not with vs that libertie which good Physitians haue For a good Physitian may lawfully vndertake the cure of a foule and desperate disease but a good Lawyer cannot honestly vndertake the defence of a foule desperate cause But if hee fortune to bee engaged in a cause which seeming honest in the beginning doth in the proceeding appeare to bee vniust he followeth the good Counsell of the Schooleman Thom. Aquinas 22. quaest 71. art 3. Aduocatus si in principio credidit causam iustam esse quae postea in processu appareat esse iniusta non debet eam prodere vt scilicet alteram partem iuuet reuelando causae suae secretas Potest tamen debet causam deserere vel eum cuius causam agit inducere ad cedendum siue ad componendum sine aduersarij da nno And thus I conceaue that the most common colourable exceptions which are taken against our lawe Lawyers may bee answered cleared by the plaine reasons demonstrations before expressed So as our Profession may stand bee iustified in all pointes against Ignorance Enuie ill-contented suitors who like cholerick Chesse-plaiers when they haue had a mate giuen them could finde in their harts to cast both the Chessebord Chessemen into the fier These vulgar errors being thus reuersed so as wee may truly say that there is no such vncerteinty in the rules of the lawe no such delay in the proceedings no such preuarication or corruption in the Professors thereof as it is by some vniustly pretended why may wee not proceed further affirme confidently that the profession of the lawe is to bee preferred before all other humane professions sciences as being most noble for the matter subiect thereof most necessary for the common continuall vse thereof most meritorious for the good effectes it doth produce in the common wealth For what is the matter subiect of our Profession but Iustice the Lady Queene of all morall vertues and what are our Professors of the lawe but her Counsellors her Secretaries her Interpretors her Seruants againe what is the King himselfe but the cleare fountaine of Iustice what are the Professors of the lawe but conduit pipes deriuing conueying the streames of his Iustice vnto all the subiects of his seuerall kingdomes so as if Iustice bee rightly resembled to the Sunne in the firmament in that shee spreadeth her light vertue vnto all creatures how can shee but communicate part of her goodnesse glory vnto that science that is her handmaid and waites vppon her And if Kings bee Gods schollers as Homer writeth that the rules of Iustice bee their principall lesson if God doe honor Kings with his owne name Dixi quod dij estis as a more diuine Poet then Homer singeth specially for that they sitt vppon Gods owne seate when they minister Iustice vnto the people do not Kings againe highly honor those persons whose subordinate ministrie seruice they vse in performing that principall part of their kingly office Vndoubtedly touching the aduancement of such persons Solomon the King speaketh that they shall stand before Kings God will sett them saieth Dauid with Princes euen with the Princes of his people Neither is this Profession ennobled in regard of the dignity of her imploiment onely but shee is to bee honored so much the more for the necessity continuall vse of her seruice in the common-weale For if wee must honor the Physitian propter necessitatem as the wise man prescribeth much more must wee honor for the same cause the professors ministers of the lawe For neither do all men at any time nor any one man at all times stand in neede of the Physition for they that are in health which are the greatest number of men non egent medico saieth the greate Physition of our soules our onely Aduocate which is in heauen But all men at all times in all places do stand in neede of Iustice of lawe which is the rule of Iustice of the interpreters ministers of the lawe which giue