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
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
earth his Maiestie in his infallible Iudgement wisedome confirmed this honorable Office vnto your Lordship not onely with a fulnesse of grace to your selse but with an augmentation of honor to your posterity For what encrease of honor can the Lord Chauncellor receaue in his owne person being that in England which Ioseph was in Egypt the second person of the Realme in the administration of all Ciuill affaires being made as it were cheefe Steward of his masters house the cheefe dispenser of his bounty Iustice by the deliuery custodie of the great Seale which may properly bee called the key of the Kingdome Being the Sole Iudge of that high Court which is Sedes misericordie therefore exalted aboue all seates of Iustice where hee hath Potestatem absolutam as well as regulatam in binding loosing the proceedings of the lawe in deciding of causes by the rules of his owne conscience Breefely what can there bee more done to the man whom the King will honor Is hee not ad latus Principis to attend him Is hee not Auricularius Principis to aduise him Doth not the King make him a conduit of his wisedome when hee vseth his voice tongue to declare his Roiall pleasure And doth he not make him an Organ of his goodnesse when hee trusteth him with his mercy conscience in sweetening the bitter waters of Summum ius in mittigating the rigour of the lawe vnto his people In a word doth he not represent reuerentiam Principis in the power authority of his Office And do not the people feare honor the King euen in the grauity dignity of his person And are not all these honors made more honorable exceedingly raised in true estimation value when the same are enioyed in a most famouâ— flourishing common-wealth do proceede as Sunne beames from the most religious learned wise the most renowned excellent King of the world If then the greatest honors do of right belong to the greatest vertues for what is honor but a reflection reward of vertue how vertuous a person must he bee with what giftes graces with what abilities ornaments both of art nature must hee bee endowed who can worthily supply that great honorable Office Assuredly besides the naturall faculties powers of his mind which hee ought to haue in great perfection besides the outward comelinesse dignity of his person for Gratior est pulchro veniens 〈◊〉 corpore virtus Sapientia hominis lucet in vulâ—ueius saieth Solomon he must bee furnished withall learning that hath any relation to the publike good Diuinity Lawe Policie Morality specially Eloquence to impart communicate all the rest Hee must withall haue a long vniuersall experience in all the affaires of the common-wealth he must be accomplished absolute in all points of Grauity Constancy Wisedome Temperance Courage Iustice Piety Integrity all other vertues fitt for Magistracy gouernment yet so as the same bee seasoned tempered with affability gentlenesse humanity courtesie howbeit without descending or diminishing of himselfe but still retaining his dignity state honor Breefely hee must bee a person of such vertue worthinesse as his life may bee a Censure his example a Mirror for all other Magistrates These are the excellencies perfections wherewith that great Officer must bee qualified adorned And this Idaea haue I conceaued of him not out of mine owne imagination or weake discourse of reason but out of an humble obseruation of your Lordship in whom not onely those abilities vertues before expressed but many other graces ornaments do shine so brightly as the weakest Iudgement may collect out of the same a most exquisite Patterne of a most excellent Chauncellor But perhappes it would bee thought more comely for mee to pronounce this of your Lordship to others collaterally then to speake it to your Lordship of your selfe directly though what can I declare in this kinde to others but that which the world hath long since knowne acknowledged yet is there no man liuing whom it may better become then my selfe to praise honor your Lordship euery way whose fauor hath beene as it were a good Angell vnto mee to whom I stand bound for so many benefits as that which might carry a shewe of adulation in another must needes bee thought but Duty gratitude in mee Howbeit besides my particular obligation there is no Professor of the lawe that is not obliged to do your Lordship all honor for the honor you haue done to the Profession of the lawe whereof your Lordship hath beene during all your time a principall light ornament And nowe my most honorable good Lord my deuotion to the Profession of the lawe to your Lordship the most noble Patron of the Professors thereof hauing enlarged this discourse beyond the measure limitts of an Epistle therefore I giue it the name of a Preface it remaineth that I present vnto your Lordship the â—ude collection of a fewe selected Cases which since the beginning of his Maiesties Raigne haue beene argued resolued adiudged in this Realme of Ireland These are the first fruites of my labor in this kinde of learning are therefore a due proper oblation to your Lordship for that my studie haue yealded the better fruite being cherished by the Sunne-beames of your Lordships fauor This is also the first Report of Cases arising in Ireland ruled in the Courts of Iustice there that euer was made published to the world since the lawes of England were first established in this kingdome Lastly I haue made choise of such speciall Cases as are either proper for this kingdome onely or else doe conteine for the most part points of learning not common or at least not largely debated in our bookes of the lawe But for as much as Natura incipit ab imperfectis as the Schooleman saieth Therefore these weake imperfect beginnings do seeke your Lordships protection till time shall giue them more strength reputation In the meane time if your Lordships Iudgement shall allowe the publication heereof I shall haue the lesse cause to doubt the censure of any other specially of my Maisters of the lawe in England if any of these bookes happen to come to their handes to whom I may truly make this protestation that these Cases being resolued adiudged in the Courts of Iustice in Ireland are not collected published by mee to encrease the number of the bookes of lawe in England or to interrupt the better studies of the Students there by reading of this collection but principally for the vse and benefitt of our practisers heere in Ireland and to moue and incite others in this Kingdome by this first example which doth onely open shew them the way to performe the like seruice heereafter to posterity Neither haue I besought your Lordships patronage for these Cases of Ireland