conscience he could not lawfully take vpon him the said office He hath also acknowledged our Souerainge Lord King Iames to be his lawfull Chiefe and Supreame Gouernour in all causes as well Ecclesiasticall as Ciuill and that hee is in conscience bound to obey him in all the said causes and so forth as it is conteined in his acknowledgment or confession before set downe which being shewed foorth by the Atturney generall the court caused it to be publikly read and therevppon demanded of Lalor if that were not his free and voluntarie confession signed with his owne hand and confirmed by his oath before the Lord deputie and Counsell He was not a little abashed at the publishing of this acknowledgment confession in the hearing of so many principall gentelmen to whome hee had preached a contrary doctrine therefore said he the shewing foorth of this confession is altogether impertinent and besides the matter Howbeit he could not deny but that he made it and signed it and swore it as it was testified by the Lord deputy and the rest Then was it demanded of him whither since the making of this confession he had not protested to diuers of his friends that he had not acknowledged the Kings supremacie in Ecclesiasticall causes his aunswer was that indeede he had said to some of his frends who visited him iâ— the Castle of Dublin that he had not confessed or acknowledged that the King was his Supreame Gouernour in spirituall causes for that the trueth is in the confession there is no mention made of spirituall causes but of Ecclesiasticall This is a subtile euasion indeede said the Atturney generall I pray you what difference doe you make betweene Ecclesiasticall causes and spirituall causes This question said Lalor is sudden and vnexpected at this time and therfore you shall doe well to take another day to dispute this point Nay said the Atturney generall we can neuer speake of it in a better time or fitter place and therefore though you that beare so reuerend a title and hold the reputation of so great a Clearke require a further time yet shall you heare that wee laymen that serue his Maiestie and by the dutie of our places are to maintaine the iurisdiction of the Crowne are neuer so vnprouided but that we can say somewhat touching the nature and difference of these causes When the distinction of Ecclesiasticall and spirituall causes from Ciuill and temporall causes begaÌ„ in the world First then let vs see when this distinction of Ecclesiasticall or spirituall causes from Ciuill and temporall causes did first begin in point of iurisdiction Assuredly for the space of three hundred yeares after Christ this distinction was not knowen or heard of in the Christian world For the causes of Testaments of Matrimony of Bastardy and Adultery and the rest which are called Ecclesiasticall or spirituall causes were meerely ciuill determined by the rules of the ciuill lawe and subiect onely to the iurisdiction of the Ciuill Magistrate as all Ciuillians will testifie with mee But after that the Emperours had receaued the Christian faith out of a zeale and desire they had to grace and honor the learned and godly Bishops of that time they were pleased to single out certaine speciall causes wherein they graunted iurisdiction vnto the Bishops namely in cases of Tieths because they were paid to men of the Church In causes of Matrimony because mariages were for the most part solemnized in the Church In causes Testamentary because testaments were many times made in extremis when Churchmen were present giuing spirituall comfort to the testator and therefore they were thought the fittest persons to take the probates of such testaments Howbeit these Bishops did not proceed in these causes according to the Canons and decrees of the Church for the Canon lawe was not then hatched or dream't of but according to the rules of the Imperiall law as the Ciuill magistrate did proceed in other causes neither did the Emperours in giuing this iurisdiction vnto them giue away their owne Supreme and absolute power to correct and punish these iudges as well as others if they performed not their seuerall duties This then is most certaine that the primitiue iurisdiction in all these causes was in the Ciuill magistrate and so in right it remaineth at this day and though it be deriued from him it remaineth in him as in a fountaine For euery Christian monarch as well as the godly Kings of Iuda is custos vtriusque tabulâ— coÌ„sequently hath power to punish not onely Treason Murder Theft and all manner of force fraude but incest adultery vsury periury simony sorcery idolatry blasphemy neither are these causes in respect of their owne quality and vature to bee distinguished one from another by the names of Spirituall or Temporall For why is adultery a spirituall cause rather then murther when they are both offences a like against the second table or idolatry rather then periury being both offences likewise against the first table And indeede if wee consider the natures of these causes it will seeme somewhat absurd that they are distinguished by the name of spirituall teÌ„porall for to speake properly that which is opposed to spirituall should be tearmed carnall And that which is opposed to temporall should be called eternall And therefore if things were called by their proper names adultery should not be called a spirituall offence but a carnall But shall I expresse plainely and breefely why these causes were first denominated some spirituall or Ecclesiasticall and others temporall and ciuill Truely they were so called not from the nature of the causes as I said before but from the quality of the persons whome the Prince had made iudges in those causes The Cleargie did study spirituall things and did professe to liue secundum spiritum and were called spirituall men and therefore they called the causes wherein Princes had giuen them iurisdiction spirituall causes after their owne name and qualitie But because the Lay magistrates were said to intend the things of this world which are temporall and transitory the Cleargie called them secular or temporall men and the causes wherein they were iudges temporall causes This distinction began first in the Court of Rome where the Cleargie hauing by this iurisdiction gotten great wealth their wealth begott pride their pride begott ingratitude towards Princes who first gaue them their iurisdiction then according to the nature of all vngratefull persons they went about to extinguish the memory of the benefit for whereas their iurisdiction was first deriued from Caesar in the execution whereof they were Caesars iudges so as both their Courts and causes ought still to haue borne Caesars image and superscription as belonging vnto Caesar They blotted Caesars name out of the style of their Courts and called them Courts Christian as if the Courts holden by other magistrates had beene in comparison but Courts of Ethnickes and the causes which in their nature were meerely Ciuill they called Spirituall and Ecclesiasticall So as if the Emperour should challenge his Courts and causes againe and say Reddite Caesarâ— quaesunt Caesaris they would all cry out on the contrarie part and say date Deo quaesunt Dei our courts beare the name and title of Christ the superscription of Caesar is quite worne out and not to be found vppon them And this point of their policy is worth the obseruing that when they found their iurisdiction in matrimoniall causes to be the most sweete and gainefull of all other for of Matrimony they made matter of money indeede to the end that Caesar might neuer resume so rich a perquisite of their spirituall iurisdiction they reduced Matrimony into the nuÌ„ber of the seuen Sacraments After which time it had beene sacriledge if the ciuill magistrate had intermedled with the least matter that had relation to Matrimony or any dependancy there vppon So then yet appeareth that all causes whereof Eccicsiasticall or spirituall persons haue cognisans or iurisdiction by the graunts or permission of Princes are called Ecclesiasticall or spirituall causes And as all their courts are called spirituall courts so all causes determinable in those courts are called spirituall causes And therefore where Maister Lalor hath acknowledged the Kings Maiestie to be Supreame gouernour in all Ecclesiasticall causes he hath therein acknowledged the Kings supremacy in all spirituall causes wherein he hath but reÌ„dered to Caesar but that which is Caesars and hath giuen vnto his Maiestie no more then all the Bishops of England haue yeelded to his predecessors not onely in this later age but also in former times both before and since the Conquest as hath beene before at large expressed Heere the daie being farre spent the Court demaunded of the prisoner if hee had any more to say for himselfe his answere was that he did willingly renounce his office of Vicar generall And did humbly craue his Maiesties grace and pardon And to that end he desired the Court to moue the Lord Deputie to bee fauorable vnto him Then the â—ury departed from the Barre and returning within halfe an houre found the prisoner guilty of the contempts whereof he was indicted Where vppon the Sollicitor generall moued the Court to proceed to iudgement And Sir Dominicke Sarsfield knight one of the Iustices of his Maiesties chiefe place gaue iudgement according to the forme of the statute where vppon the indictment was framed Printed at Dublin by Iohn Franckton printer to the Kings most excellent Maiesty for Ireland Anoo 1615.
de Seignior Deputy fuit register enter les Acts del Counsell mes la cest prouision fuit ad a ceo que si ascun de les meere Irish ad possesse enioy ascun portion de terre per cest custome de Irish Gauelkind devant le commencement del Raigne de nostre Seignior le Roy que ore est que il ne serroit disturbe en son possession mes serroit continew establish en ceo Mes que apres le commencement de sa Maiesties Raigne touts tiels terres serront adiudge de discender ales heires per la common ley lerront dehors en avant possesse enioy accordant Mich. 9. Iacobi En le Court de Castlechamber Le course del Triall de Legitimation Bastardy VN information fuit exhibit en le Castle Chamber envers le Evesque de K. C. B. auters queux per practise combination enter eux per vndue course de proceeding out endeavour de prover le dit C. B. que fuit tout temps devant reputed vn bastard desire le legitimate fitz heire de G. B. esquier al deherison defamation del E. B. que fuit la sole file heire del dit G. B. Et sur le Dier de cest cause le Case appieroit destre tiel Environ 26. ans devant le bill exhibit le dit G. B. ad issue le dit C. B. sur le corps d'un Irrois Damosel la quel durant la vie de G. B. ne fuit repute sa feme mes sa concubine le dit C. B. pur tout le temps avantdit fuit solement accept pur le naturall fitz de G. B. Mes nemi pur legimate Apres ceo viz. 16. ans depuis la naissance de C. B. sa Mere esteant en pleine vie G. B. prist al femme vn dame de bonne estate reputation ove l'assent de ses Amâ—es ad issue per luy la dit E. B. morust Apres la mort del dit G. B. C. B. son reputed fitz ne sa Mere que est vncor en vie â—e parlont riens per le space de 9. ans mes ore tard ils ont practise combine ove le dit Evesque de K. esteant de lour consanguinity ove plusors auters de prover le legitimation del dit C. B. per vn irregular vndue course al entent de bastardise desenherit le dit E. B. Accordant a quel practise combination l'Evesque sans ascun suit comence ou moue en ascun temporall Court del Roy ou ascun breefe direct a luy de certifier Bastardy ou legitimation en cest Case que plus est sans ascun â—â—bell exhibit en son Ecclesiasticall Court touchant cest matter de son teste demesne privatement nemi conuocatis conuocandis 9. ans apres le mort del dit G B. prist dispositious de plusors â—esmoignes a prover que le dit G. B. 29. ans devant ad loialment marry prist al feme la dit Irrois Damosell Mere del dit C. B. Et que le dit C. B. fuit le legitimate fitz heire del dit G. B. Et ceux depositions issint prises le dit Evesque causast destre engrosse reduce en forme de vn solemne Act aâ—ant mise son signature Seale a cest Instrument deliver ceo al C. B. que publish ceo per colour de cest Instrument ou Act declare luy mesome destre le fitz heire legitimate del dit G. B. c. Et pur cest practise misdemeanor le dit Evesque de K. auters fueront censure sur ceo ceux pointes fueront resolve 1 Coment que touts Matrimoniall causes on t estre de long temps determinable en les Ecclesiasticall Courtes sont ore properment deins le Irisdiction conusans del Clergie vncor ab initio non fuit sic car â—ibien causes de Matrimony que causes Testamentary sneront Ciuill causes apperteignont al Irisdiction de Ciuill Magistrate come est bien conus al touts Civilians tantque les Christian Emperours Royes pur fair honor al Prelates del Clergy ont graunt ou allowe al â—ux coâ—â—sans Irisdiction en ceux Cases Et pur ceo le Roy l'engleterre que est toutsfoits de droit fuit le fountaine de tout Istice Irisdiction en touts causes ciâ—ien Ecclesiasticall que Ciuill deins ses Dominions coment que il allowe les Prelates del Esglise de exerciser lour severall Irisdictions en ceux causes queur properment appierteignont a lour conusans vncor per les rules del common ley il ad superintendency sur lour proceedings ove power de direction quant coment ils proceederont de restraint correction sils ne proceederont duement en plusors Cases come est manifest per les breefes de severall natures direct al Evesques per queux le Roy commaund eux de certifier Bastardie Excommunication Profession accouplement en loiall Matrimony de admitter Clarkes de cautione admittenda c. Et auxi per les breefes de Prohibition Consultation Attachment sur Prohibition 2 Fuit resolve que le question de Bastardy ou legitimacy doent estre primerment moue en le temporall Court del Roy issue sur ceo do et estre ioyne la donques do et estre transmitt al Ecclesiasticall Court per breefe del Roy destre examine trie la sur ceo l'Evesque faira certificate al Court del Roy a quel certificate esteant fait en tiel due manner la ley done tiel creditt que tout le monde serra lie estoppe per ceo Mes d'auter part si ascun Suit a prover Bastardie oâ— legitimacy soit primerment comence en l'Ecclesiasticall Court devant que ascun question soit moue de tiel matter en le temporall Court del Roy prohibition gist de restraine tiel suit si soit accompaine ove practise fraud come en cest case ceo est vn misdemeanor pâ—nishable en le Starchamber A cest purpose le Case de Corbett fuit mise 22 Edw. 4. fitz Consultation 6. Sir Robert Corbett ad issue 2. fitz Robert Roger Robert le fitz esteant deins le age de 14. ans prist al femme Matild ove quel a son pleine age il cohabit cogniti reputati sunt pro viro vxore palam Uncor apres Robert le fitz demitt de luy la dit Matild viuant la dit Matild espouse vn Lettice aiant issue per Lettice vn fitz morust apres que mort Lettice preach declare overtment que el fuit la loiall semme de Robert que son fitz fuit mulier legitimate Sur que Roger le puisne fitz del Sir Robert Corbett commence suit en le spirituall Court a reverser les espousels enter
dit Et cest nosme ou title de honor fuit ab initio accompaine ove vn honorable Office Car cesty que fuit Comes ad vnterritory assigne a luy pur garder governer que fuit appell Comitatus Cest title ne commenceoit destre frequent tanque le declination del Roman Impire cestascavoir en le temps del Charlemaine que ordaine institute divers countees in Germany Italy Fraunce done a eux non solement vn absolute commaund in Martiall affaires deins lour severall territories mes auxi ordinary Iurisdiction in Ciuill Criminall causes pur ceo est dit en le Imperiall law Quod Comes est iudex ordinarius Graue en Dutch signifie vn Idge cybien que vn Earle Mes ceux Countees ne fueront touts de equall degree car fueront de 2. sorts viz. Comites simplices Comites Palatini ou del primer second order Car coment que Comites simplices avoient tiel commaund Irisdiction come avant est monstre vncor Comites Palatini fueront de plus hault Ranck avoent divers Royall Francheses priviledges que ne fueront graunts al simple countees Cest nosme office de Countee fuit introduce en Engletere hors del Cermany per les Saxons long temps devant le Norman Conquest Mittons Case 4. Cooke 34. le Record de Domeâ—day prove ceo que fait mention de severall countyes en Engleterre Mes le primer county Palatine viz. le County Palatine de Chester fuit erect en temps de Will. le Conqueror Cambden 464. Pur le nosme del Countee en nostre ley certes ceo est le plus auncient nosme de dignity honor devant le teÌ„ps del Edw. 3. fuit le sole nosme de dignity honor en Engleterre Car le nosme title de Duke Marques Vicount sont de puisne temps Car le primer Duke fuit create en temps Edw. 3. le primer Marques en temps R. 2. le primer Viscount en temps Henr. 6. le nosme ou title de Baron nest nosme de dignity ne addition 8. Henr. 6. 10. a. le Seignior Louels Case Mes Countee est parcell del nosme del substance del nosme si soit omitt en breefe le breefe abatera 39. Edw. 3. 35. le Case del Gilbert Vmfreuill Countee de Angus 14. Edw. 3. Breefe 278. le Case de Hugh de Audelay Countee de Glocester Et cest title de Countee est instar cognominis ne besoigne de vser auter surnosme come si action soit port vers Io. Countee de Oxford sans auter surnosme est sufficient 7. Henr. 6. 27. 12. Edw. 3. Breefe 454. Auxi cest title nest merge ou confounded per title de Duke car si Countee soit fait Duke pendant le breefe ceo ne abatera le breefe Come ou le Countee de Lancaster fuit fait Duke de Lancaster 25. Edw. 3. 39. breefe 409. issint ou action fuit port vers countee de Richmound il plead que il fuit Duke de Brittaine non allocatur 11. Edw. 3. Br. 473. Pur l'office del simple ou Ordinary Countee per nostre ley il avoit custodiam comitatus authority de raiser posse comitatus a suppresser rebellions riotts c. que fuit vn Martiall commaund il avoit auxi Iurisdiction in ciuill criminall causes a cest entent il avoit 2. Courts 1. son Turne ou view pur criminall causes 2. le county court pur civill causes Le primer fuit le Court del Roy car pleas del Corone ne poent estre tenus en ascun Court forsque en Court del Roy le second fuit le Court del couÌ„tee mesme pur ceo est appell le County Court mes pur ceo que il fuit auxi immediate officer al Court del Roy pur fair execution del breefes del Roy le Comes ou counted mesme comitabatur Principem fuit pur le plus part attendant sur luy ou en son Counsell du en ses guerres le Roy fesoit vn Lientenant ou Deputy a luy come Fineux dit 12. Henr. 7. 17. b. cestascavoir le Vicount que ore execute mesme l'office en touts points Et est destre note que en touts counties que sont simple counties subiect al ordinary Irisdiction del Courts del Roy le Roy mesme fait le Vicount mes deins counties Palatine ou le countee ad iura regalia le countee mesme nemi le Roy fait le Vicount 12. Henr. 7. 17. 18. 4. Cooke 33. Mittons case 22. Edw. 4. 22. Et tout ceo fuit note sur l'Originall del countee in generall sur le nosme office del Ordinary countee PUr l'originall nosme prerogatiue del Countee Palatine que fuit vn extraordinarie couÌ„tee 1. fuit noate observe que fuit appell Palatinus vel Comes Palatij pur ceo que il fuit theife officer CouÌ„sellor en le Pallace del Emperour est dit que il ne fuit solement companion del person del Prince mes comes curarum Par extans curis solo diademate dispar pur cest reason le Prince communcate a luy plusors de ses Roiall prerogatives 2. fuit observe que cest honor de couÌ„ty Palatine fuit primerment institute per l'Emperour apres que le Empire fuit translate al Germany Et pur ceo les Doctors del Imperiall ley teignont Quod solus Princeps qui est Monarcha Imperator in regno suo ex plenitudine potestatis potest creare Comitem Palatinum Baldus titul Rescript 6. de precibus Imperatori offerendis FUit auxi resolve que accordant a cest rule le Roy del Engleterre poet bien creater vn countee Palatine car il est Monarcha Imperator in regno suo come est apparant per plusors recordes Idgementes en Parliament En le Preface del Seignior Cooke al quart part de ses Reports vn auncient Charter del Roy Edgar que rerire le stile del Roy est tiel Ego Edgarus Anglorum Basileus omnium Insularum Oceani quae Brittaniam circumiacent cunctarumque nationum quae infra eam includuntur Imperator Dominus c. Et a cest entent Matth. Paris in historia maiori fol. 17. a. dit que quant vn difference surdoit perenter le Roy William Rufus Anselme Archevesque de Canterbury touchant le Irisdiction del Pape en Engleterre Rex Willielmus allegauit quod spectabat ad officium Imperatoris quem vellet Papam eligere ob candem rationem quod nullus Archiepiscopus vel Episcopus regni sui Curiae Romanae vel Papae subesset praecipuè cum ipse omnes libertates haberet in regno suo quas Imperator vindicabat in Imperio Per l'estatute de 28. Henr. 8.
change en cest point per reason quant il est endow a luy ses successors perpetualment Et ceo fuit le substance des arguments ex vtraque parte fait en cest Case Car nul Idgement est vncor 〈◊〉 one en ceo I Atturney generall Bolton Recorder de Dublin Oliuer Eustace â—e Ciuilian suero â—t a Counsell le oâ—e Clark del Roy William Talbot â—ames Briuer Iohn Haly Doctor del Ciuil ley ove les defendants Hill 4. Iacobi The Case of Praemunire or The Conuiction and Attainder of Robert Lalor Priest being endited vppon the statute of 16. Rich. 2. cap 5. Of what quality credit Robert Lalor was THis Robert Lalor being a Natiue of this Kingdome receaued his Orders of priesthood aboue 30 years since at the haÌ„ds of one Richard Brady to whome the Pope had giuen the title of Bishop of Kilmore in Vâ—ster for the space of twenty yeares together his authority and credit was not 〈◊〉 within the Prouince of Leinster Hee had also made his name knowen in the Court of Rome held intelligence with the Cardinall who was Protector of this nation by meanes whereof hee obtained the title and iurisdiction of Vicar generall of the Sea Apostolike within the Archbyshopricke of Dublin and the Pyshopricks of Kildare and Fernes This pretended iurisdiction extending welny ouer all the Prouince of â—einster hee exercised boldly and securely many yeares together vntill the proclamation was published whereby all Iesuites and Priests ordained by forreine authority were commaunded to depart out of this kingdome by a certaine time prefixed After which time hee began to lurke to change his name howbeit at last he was apprehended in Dublin and committed to prison in the Castle there His apprehension and first examsnation Vppon his first examination taken by the Lord Deputie himselfe hee acknowledged that hee was a Priest and ordained by a popish Titulari Bishop that hee had accepted the title and Office of the Popes Vicar generall in the. 3. Dioceses before named and had exercised spirituall iurisdiction in foro conscientia and in sundry other points hee maintained and iusti fied the Popes authority onely hee said hee was of opinion that the Pope had no power to excommunicate or depose his Maiestie because the King is not of the Popes Religion His first in â—â—…ment conuiction The next terme after hee was indicted vppon the statute of 2. Eliz. enacted in this Realme against such as should wilfullie and aduisedly maintaine and vphould the iurisdiction of any foreine Prince or Prelat in any Causes Ecclesiasticall or Ciuill within this Realme By which statute the first offence of that kind is punished with losse of goods and one yeares imprisonment the second offence incurreth the penaltie of the Praemunire And the third offence is made high Treason Vppon this Indictment hee was arrained conuicted and condemned and so rested in prison during the next two Tearmes without any further question His second examination He then made peticion vnto the Lord Deputie to be set at libertie wherevppon his Lordship caused him to be examined by Sir Olliuer Seint Iohn Sir Iames Fullerton Sit Iefferie Fenton the Atturney Solicitor generall At first he made some euasiue and indirect aunsweres but at last voluntarily and freely he made this ensuing acknowledgement or confession which being set downe in writing word for word as hee made it was aduisedly read by him and subscribed with his owne hand and with the hands of those who tooke his examination and afterwards hee confirmed it by his oath before the Lord Deputie and Connsell The confession or acknowledgement of Robert Lalor Priest made the 22. of December 1606. His confession or acknowledgement FIrst hee doth acknowledge that hee is not a lawfull Vicar generall in the Dioceses of Dublin Kildare and Fernes and thinketh in his conscience that hee cannot lawfully take vppon him the said Office Item hee doth acknowledge our Soueraigne Lord King Iames that now is to bee his lawfull cheefe and Supreme gouernour in all causes as well Ecclesiasticall as Ciuill and that hee â—is bound in conscience to obey him in all the said causes and that neither the Pope nor any other forreine Prelate Prince or Potentate hath any power to controll the King in any cause Ecclesiasticall or Ciuill within this kingdome or any of his Maiesties Dominions Item he doth in his conscience beleeue that all Bishops ordained and made by the Kings authority within any of his Dominions are lawfull Bishops and that no Bishop made by the Pope or by any authority deriued from the Pope within the Kings Dominions hath any power or authority to impugne disanull or controll any Act done by any Bishop made by his Maiesties authority as aforesaid Item he professeth himselfe willing and ready to obey the King as a good and obedient Subiect ought to doe in all his lawfull commaundements either concerning his function of priesthood or any other duty belonging to a good subiect After this confession made the State heere had no purpose to proceed against him seuerely either for his contempt of the proclamation or offence against the law So as hee had more liberty then before and many of his friends had accesse vnto him who telling him what thy heard of his confession hee protested vnto them that hee had onely acknowledged the Kings Ciuill and Temporall power without any confession or admittance of his authority in spirituall causes This being reported vnto the Lord Deputie by sundry gentlemen who gaue faith vnto what hee said his Lordship thought sitt that since hee had incurred the paine of Praemunire by exercising Episcopall iurisdiction as Vicar generall to the Pope that hee should bee attainted of that offence as well to make him an example to others of his profession for almost in euerie Dioces of this kingdome there is a Titulary Bishop ordained by the Pope as also that at the time of his triall a iust occasion might bee taken to publish the confession and acknowledgment which hee had voluntarily made signed and confirmed by oath before the Lord Deputie and Counsell who haue likewise subscribed their names as witnesles thereof The inditement of Lalor vpon the statut of 16 Rich. 2. Heerevppon in Hillary Tearme 4 Iacobi an inditement was framed against him in the Kings Bench vppon the statute of 16. Rich. 2. cap. 5. containing these seuerall points 1 That he had receaued a Bull or Breefe purchased or procured in the Court of Rome which Bull or Breeue did touch or concerne the Kings Crowne and dignitie Royall conteining a Commission of Authoritie from the Pope of Rome vnto Richard Brady and Dauid Magragh to constitute a Vicar generall for the Sea of Rome by the name of the Sea Apostolike in the seuerall Dioceses of Dublin Kildare and Fernes within this Kingdome of Ireland 2 That by pretext or collour of that Bull or
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
lawe cannot bee so well exprest nor any case in lawe bee so succinctly sensibly whithall so fully reported as in this speech which is in deede mixte compounded of all these three languages Which reason hath not beene well vnderstood by those who obiect it as a fault to the Professors of our lawe that forsooth they write their Reports and bookes of the lawe in a straunge vnknowne tongue which none can vnderstand but themselues to the end that the people being keept in ignorance of the lawe may the more admire their skill knowledge esteeme value it at a higher price As Cicero in his first booke de Oratore doth testifie that the like conceite was held of the first Professors of the Ciuill lawe Quia veteres illi qui huic scientiae praesuerunt obtinendae atque augendae potentiae suae causa pervulgari artem suam noâ—uerunt And Cesar speaking of the Druides who were Iudges and interpreters of the lawe among the auncient Brittaines doth report of them that though they spent twenty yeares in the study of those lawes Non existimabant fas esse â—a literis mandare But the weaknes of this obiection against the Authors of our lawe bookes will easily appeare if wee consider how easie the Lawe french is to bee learned in somuch that the meanest witt that euer came to the study of the lawe doth come to vnderstand it almost perfectly within ten dayes without a Reader So as wee doe not seale or locke vp the mysteries of our lawe in Hieroglyphickes or in a darke language that cannot bee vnderstood But wee expresse the Cases arguments Iudgements of the lawe in a forme of speech so plaine so significant and in a tongue so soone learned by any man that can speake English and vnderstand Latine as I dare say there is no rationall science in the world hauing so many wordes Tearmes of art and forme that is so clearely deliuered in any language And I may truely say withall that if the bookes of our lawe were all translated into English they would not bee better nay they would not bee so well vnderstood by the students thereof as in this proper peculiar language wherein they are now written And as this obiection touching the speech or language wherein our Reports are penned doth arise out of ignorance of the cause thereof as is before declared so are there other vulgar imputations cast vppon the lawe lawiers which may bee as easily cleared as hauing indeede no other ground but the meere misvnderstanding of such as are strangers to the profession namely 1. that there is much vncerteinty in the reasons Iudgements of the lawe 2. that there are extreame vnnecessary delayes in the proceedings of the lawe 〈◊〉 that many bad and dishonest causes are wittingly defended by the professors of the lawe But Sapientia iustificatur à filijs suis 1 Therefore first touching the incerteinty of the lawe Certeine it is that lawe is nothing but a rule of reason humaine reason is Lesbia regula pliable euery way or like a cupp with two eares as the French proueâ—b is which may bee taken vp on either side as well with the left hand as with the right so as not onely the knowledge of the lawe but all other rationall sciences that are subiect to Argument discourse must needes bee subiect to vncerteinty to error therefore vppon Iudgements giuen in our Ordinary Courts of Iustice the lawe doth admitt allow writts of error to bee brought without any touch or dishonor to the Iudges though there Iudgements bee reuersed for error in point of lawe Howbeit there is no art or science that standeth vppon discourse of reason that hath her Rules Maximes so certeine infallible so little subiect to diuers interpretation as the common lawe of England as it is obserued by the Lord cheefe Iustice Cooke in his Preface to the second part of his Reports that in all his time there haue not beene moued in the Courts of Iustice in England two questâ—ons touching the right of discents or escheats or the like fundamentall points of the common lawe So certaine sure without question are the principles grounds thereof But whence then doe so many debates controuersis arise wherevppon doe wee plead contend so much in the Courts of Iustice it there bee so few doubtes vncerteinties in lawe doubtlesse this question is soone resolued by one plaine common distinction In all the causes that are controuerted there is either Quastio Iuris or quaestio facti But for one cause wherein a question of lawe doth arise that is indeede with the debating there are a thousand causes at least wherein the fact is onely in question wherein if the truth of the fact were knowne the lawe were cleere without question So as the pleading contention in Westminster hall the rest of the Courts of Iustice in both realmes is for the most parte touching matters of fact In the Chauncery whether there bee Trust or no trust Fraud or no fraud In the Starchamber whither a Riotâ— or no riott Forgery or no forgery Perâ—uâ—y or no periuâ—y and the like matters of fact come onely in question in all other Courts which proceed to the hearing determining of causes by examination of witnesses And in the Coâ—â—â—â— of lawe where the triall is by Iurors are there not a thousand issues ioyned vppon matters of fact for one demurrer that is ioyned vppon a point in lawe when all these issues are tried either at the Barre or at the Aâ—sâ—sses how many hundreds of generall verdictes are there giuen which determine matters in fact for one speciall verdict whereuppon doe result questions in lawe And againe of all the questions in lawe which doe arise vppon demurrers or speciall verdicts or which are moued in arrest of Iudgment how many of them are there ouer ruled vppon the first opening or putting of the Case and how few of them are there that are malleable or can endure the hammer so as they come to bee solemnely argued at the Barre and at the Bench As for the Eschequer-chamber cases which are of such difficultie as that they drawe an assembly of all the Iudges of the lawe for the resolution thereof they are so rare as scarce twise in a yeare are those Iudges drawne out of there proper Courtes to deliuer theire opinions vppon those doubtfull pointes So as it is to bee ascribed to the greate learning wisdome grauity constancie of our Iudges to the certeinty excellent harmony of reason in our lawe that there are no more diuersities of opinion among the Iudges or doubtfull questions in the lawe then there are For if the Rules Maximes of the lawe were a thousand times as many as they bee indeede yet would they carry no proportion with the infinite diuersitie of mens actions of other accidents which make the cases
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
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
causes that come in question either quaestio facti or questio Iuris must first bee decided before a man can receaue the benefitt of the lawe for as the wise man saieth Deus fecit hominem rectum sed ipse miscuit se infinitis quaestionibus what a meritorious worke is it to resolue these troublesome questions which arise in the Ciuill life of man either by laying open the truth of the fact or by clearing the doubtfull point in lawe that speedie equall Iustice may bee done vnto all euery one may haue enioy his owne in peace how often would the truth bee concealed suppressed How oft would fraud ly hid vndiscouered How many times would wrong escape passe vnpunished but for the wisdome diligence of the Professors of the lawe Doth not this profession euery day comfort such as are greeued counsell such as are perplexed releeue such as are circumuented preuent the ruine of the improuident saue the innocent support the impotent take the Pray out of the mouth of the oppressor protect the Orphan the widowe the stranger Is shee not Oculus caeco pes claudo as Iob speaketh Doth shee not withall many times stretch forth brachium saculare in defence of the Church true Religion All which are workes of mercy of singular merit Againe doth shee not register keepe in memory â—he best Antiquities of our Nation Doth shee not preserue our auncient Customes forme of gouernment wherein the wisedome of our Auncestors doth shine farr aboue the policie of other kingdomes Are not the Recordes of her actes proceedings so precious as they are kept in the Kinges Treasury like Iewelles of the Crowne reputed a principall part of the Roiall treasure Lastly is not a worthie Prosessor of the lawe a starr in the firmament of the common-wealth Is he not Lux in tenebris wheresoeuer hee dwelleth Is not his house as it were an Oracle not onely to a Towne or Citty but to a whole country round about him So as hee may truly say of the people that seeke his counsell as Apollo Pithius spoke in Ennius of such as resorted vnto his Temple Suarum rerum incerti quos ego ope mea Ex incertis Certos compotesque consilij Deâ—itto ne res temere tractent turbidas Therefore one of the Romaine Emperors doth not without cause giue this honorable testimony of the Professors of the lawe Aduocati qui dirimunt ambigua facta causarum suaeque desensionis viribus tam publicis in rebus quam in priuatis lapsa erigunt satigata reficiunt non minus humanâ— generi prouident quam si praelijs atque vulneribus patriam parentesque saluarent neque enim solos nostro Imperio militare credimus qui gladijs elypeis Thoracibus nituntur sed etiam aduocatos Militant namque causarum Patroni qui laborantium spem vitam posteros defendunt For if it bee a worthie deede as doubtlesse it is for a man to defend his freindes or country with his right hand his sword onely what an excellent seruice is it to defend them with his speech his reason wisedome wherein the excellency of man doth principally consist Therefore both the Schooleman the Politike do preferr Iustice before Fortitude the Statute of 31. Henr. 8. cap. 10. which ranketh the great Officers of the kingdome in their due places doth place the Constable Marshall beneath the Chauncellor in all assemblies of Counsell For Ille semel saieth Cicero speaking of the Martiall man Hic semper proderit Reipublicae meaning the learned man of the long robe And in very troth as the common-wealth is much beholding to the Profession of the lawe so are the Professors of the lawe not a litle beholding to the common-wealth For if they procure preserue her peace her plenty doth not shee requite them againe with riches with honor Doth shee not aduance them to her cheefe Benches Offices trust them with the liuelyhoode liues of all her people Neither do our learned men of the lawe growe to good estates in the common-wealth by any illiberall meanes as enuy sometime suggesteth but in a most ingenous worthie manner For the fees or rewardes which they receaue are not of the nature of wages or pay or that which wee call salery or hire which are indeede duties certeine growe due by contract for labour or seruice but that which is giuen to a learned Counsellor is called honorarium not merces being indeede a gift which giueth honor as well to the Taker as to the giuer neither is it certeine or contracted for for no price or rate can bee sett vppon Counsell which is vnualuable inestimable so as it is more or lesse according to circumstances namely the ability of the Client the worthinesse of the Counsellor the weightynesse of the cause the custome of â—he Country Breefely it is a gift of such a nature giuen taken vppon such tearmes as albeit the able Client may not neglect to giue it without noate of ingratitude for it is but a gratuity or token of thankefullnesse yet the worthie Counsellor may not demaund it without doing wrong to his reputation according vnto that morall rule Multa honestè accipi possunt quae tamen honesté peti non possunt Lastly it is an infallible argument that the estates of such as rise by the lawe are builded vppon the foundation of vertue in that Gods blessing is so manifestly vppon them not onely in raising but in preseruing their houses posterities whereof there are examples not a fewe those not obscure in euery shire of England of the English Pale in this kingdome of Ireland If then our common lawe of England bee cleare from those vulgar imputations which ignorance doth conceaue enuy report thereof if the Profession or science of the lawe bee more noble more necessary more meritorious then any other temporall Art or Science if the dignity of this profession do accordingly dignifie all the Professors thereof which are qualified with learning and vertue fitt for so worthy a Calling for such as are ignorant or dishonest as they are to receiue no grace by the Profession so the profession is to suffer no disgrace by them how highly is that person honored whose true merit hath aduaunced him to the most transcendent place of honor that can possibly bee attained by that Profession This is that great place or Office which your Lordship most worthily holdeth long may you hold the same vnder his Maiestie which though it bee the highest pinnacle of honor that any secular person of the long Robe can in re or spe aspire to vnder any Monarch yet was it giuen vnto your Lordship nec expetenti nec expectanti by the wisest most renowned Queene that euer raigned in Europe who leauing her Crowne together with the faithfull seruants thereof vnto the wisest Iustest King vppon
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
discontinuance destroy ceo Nihil tam conueniens est naturali aequitati quam vnumquodque dissolui eo ligamine quo ligatum est 4 Custome que se exalt sur le prerogative del Roy ceo est void auxi envers le Roy. Car prescription de temps fait custome mes nullum tempus occurrit Regi 49. Edw. 3. 3. en le Case de Whit Tawers le custome de London de fair Corporations est tenus void Car le Roy soâ—ement poet ceo fair pur son prerogative 35. H. 6. 26. a. custome de London de retainer biens mise en mortage tantque satisfaction soit fait del money sur eux apprompt ne extend al Iwels del Roy. Et si home ad Toll ou wreck ou Stray per prescription ceo ne extend al biens del Roy. Issint prescription d'aver sanctuary pur treason ou d'aver Catalla felonum c. est void vers le Roy pur ceo que tiâ—l priviledge exaltat se in praerogatiuam regis 1. Henr. 7. 23. b. PEr ceux rules de customes en generall cest particular custome de Tanistry fuit examine Et primerment fuit resolve que cest custome fuit vnreasonable voyd ab initio Car est encounter le commonwealth va en destruction de ceo tout ousterment Car commonwealth ne poet estoier sans certeine ownorship de terre ou si le droit d'enheritance de les terres ne rest en nulluy Car si homes navoent tiel estate en lour terres que lour issues ou prochem cosins de lour sang poent enherit issint que ils scavoent en certein pur quel person ils travaylent defraudont lour ames de pleasure come Solomon dit ils ne violent vnques improuer lour terre a le melieur vse profitt ne edifier measons de ascun valew ne doner civil education a lour infants mes aiant respect al present temps tant solement serront tout ousterment careles de lour posterity Et ceo est le veray cause del Barbarisme desolation que fuit en touts les Irish contries ou cest custome de Tanistry fuit en vse Auxi ceo ad estre graund cause de les continuall felonies treasons committ per les Irish en temps paravant Car quant ils scavoent que lour femmes ne serroâ—t endowes ne lour islues enheritable de lour terres ils committoent teils crimes ove greinder audacâ—ty car pur affection a lour femmes enfants hemmes plus escâ—noent a fair ascun felonies come Litt. dit 196. b. Pur que cest custome que lessa l'enheritance destre en Abetance le freehold auxi apres le mort de chescun tenant est vnreasonable va en destruction del common wealth Et pur ceo nostre ley que est le melior ley de monnde pur fair preserver vn commonwealth coment que ceo suffer le fee simple en ascun Case desire en Abeiance pur vn peu de temps vncor ne voet vnques suffer ie freehold destre en suspens mes abhorre le suspension de freehold come natura abhorret vacuum Et pur cest reason si leas pur ans soit fait le remainder al droit heires de I. S. le limitation de remainder est void Et si tenant del Roy morust sans heire ou si donee del Roy en taile morust sans issue la terre immediatment eâ—t en possession del Roy sans office pur avoider cest absurdity 9. Henr. 7. 2. b. pur cest reason 6. Edw. 6. Dier 71. Terre ne poet estre appendant al Office pur vie mes al office d'enheritance tantum car si serroit appendant al office pur vie ensuerroit graund inconvenience come est la dit viz. le franktenement serroit en suspens apres le mort del officer tantque novel officer soit fait ou create si l'office ne discend al vn heire ou al vn home que ad perpetuall succession per le common ley Et cest le plus apt case en la ley destre resemble al case en question Car per le custome de Tanistry le plus eigne plus digne home ne vient eins come heire car heire est tout â—oâ—ts le plus prochein de sang mes come vn successor vncore pur ceo que nest encorporate per le common ley come vn person ou prehend 40. Edw. 3. 27. ne vient eins en course de perpetuall succession mes come officer pur vie tantum per election mes tantque election fait le franktenement del terre fuit en suspens le fee simple enheritance fuit touts foits en Abeiance issint fuit nul fee simple in actu al ascun temps contrary al principle del common ley que de chescun terre il y ad fee simple Litt. 144. b. Cest custome est auxi vnreasonable pur auter reason viz. pur ceo que cest custome come est trove per le speciall verdict que la terre descendra Seniori dignissimo viro c. appiert plainement d'aver commencement per le vsurpation Tyranny deceux que fuerout plus potent enter eux Come plusors customes dont mention est fait devant adiudge en nostre liâ—errs destre voyd en ley commenceont per oppression extortion de Seigniors Car le auncient Brehon ley fuit que teil terre irroit al plus eigne del Sept que fuit le veray Tanist appell en Latin Secundus esteant successor apparant mes pur ceo que le pluis eigne ne fuit tout foits le plus active ou n'avoit le greinder number des followers vn auter plus powerfull person per faction fort main intrudoit sur le pluis eigne procuroit luy mesme destre elect come esteant pluis digne Et coment que cest custome ad estre vse de temps dont memory ne Court viz. de estiet vn teil oue sort pluis digne en 〈◊〉 del people vncore ceo fuit malveyes en le commencement malveys en le continuance car fuit la cause de graund effussion de sang mults auters mischeefes 3 Auxi le negatiue part de cest custome est vnreasonable que tout ousterment exclude les files d'enheriter estate de fee simple Car le Tanist sil ad ascun estate d'enheritance ad fee simple car nad ascun particular estate en taile limitt a luy les heires males de son corps est encounter le nature de fee simple d'excluder le heire female si le heire male faile Et pur ceo si feoffment soit fait al I. S. ses heires prouiso que ses files ne enheriteront ceo est voyd prouiso Et si terre soit done al I. S. ses heires males il ad fee simple
Breeue hee was constituted Vicar generall of the Sea of Rome and tooke vppon him the stile and title of vicar generall in the said seuerall dioceses 3 That hee did exercise Ecclesiasticall Iurisdiction as Vicar generall of the Sea of Rome by instituting diuers persons to benefices with cure of soules by graunting dispensations in causes Matrimoniall by pronouncing sentences of diuorce betwene diuers married persons and by doing all other actes and things pertayning to Episcopall iurisdiction within the said seuerall Dioceses against our Souerainge Lord the King his Crowne and dignitie Royall and in contempt of his Maiestie and disherison of his Crowne and contrary to the forme and effect of the statute c. To this inditement Lalor pleaded not guiltie and when the issue was to bee tried the name and reputation of the man and the nature of the cause drewe all the principall gentlemen both of the Pale and Prouinces that were in towne to the hearing of the matter At what time a substantiall lury of the Cittie of Dublin being sworne for the triall and the points of the Inditement being opened and set forth by the Kings Seriant the Atturney generall thought it not impertinent but very necessary before hee descended to the perticular enidence against the prisoner to informe and satisfie the hearers in two points Why Lalor was indited vppon the old statute of 16 R. 2. 1 What reason moued vs to grounde this inditement vppon the olde statute of 16 Richard 2. rather then vppon some other later lawe made since the time of King Henr. 8. 2 What were the true causes of the making of this lawe of 16. Rich. and other former lawes against Prouisors and such as did appeale to the Court of Rome in those times when both the Prince and people of England did for the most part acknowledge the Pope to be the thirteenth Apostle and only oracle in matters of Religion and did followe his doctrine in most of those points wherein wee now dissent from him 1 For the first poynt wee did purposely forbeare to proceede against him vppon any latter law to the end that such as were igâ—onorant might bee enformed that long before King Henr 8. was borne diuers lawes were made against the vsurpatâ—on of the Bishop of Rome vppon the rights of of the Crowne of England welny as sharpe and as seuere as any statutes which haue beene made in later times and that therefore wee made choyse to proceede vppon a lawe made more then 200. yeares past when the King the Lords and Commons which made the lawes and the Iudges which did interpret the lawes did for the most part follow the same opinions in Religion which were taught and held in the Court of Rome the treâ— causeof making the stattute of 〈◊〉 R 2 other statuts against pouisors 2 For the second poynt the causes that moued and almost enforced the English nation to make this and other statutes of the same nature were of the greatest importance that could possible arise in any state For these lawes were made to vphold and maintaine the Soueraingtie of the King the liberty of the people the common lawe and the common-weale which otherwise had beene vndermined and viterly ruined by the vsurpation of the Bishop of Rome For albeit the Kings of England were absolute Emperours within their Dominions and had vnder them as learned a Prelacie and Cleargie as valiant and prudent a Nobility as free and wealthy a Commonalty as any was then in Christendome yet if wee looke into the stories and records of these two Imperiall kingdomes wee shall finde that if these lawes of Prouision and Praemunire had not beene made they had lost the name of Imperiall and of Kingdomes too and had beene long since made Tributary Prouinces to the Bishop of Rome or rather part of S. Peters patrimony in demesne Our Kings had had their Scepters wrested out of their hands their Crownes spurned of from their heads their neckstrod vppon they had beene made Laquaies or footmen to the Bishop of Rome as some of the Emperours and French Kings were our Prelats had beene made his chaplaines and Clearks our Nobilitie his vassals and seruants our Commons his slaues and villaines if these Acts of manu-mission had not freed them In a word before the making of these Lawes the flourishing Crowne and Common-wealth of England was in extreame danger to haue beene brought into most miserable seruitude and slauery vnder collour of religion and deuotion to the Sea of Rome And this was not onely seene and felt by the King and much repined at and protested against by the Nobility but the Commons the generall multitude of the Subiects did exclame and crie out vppon it The statuts of praemunire made at praier of the commoÌ„s For the Commons of England may bee an example vnto all other Subiects in the world in this that they haue euer beene tender and sensible of the wrongs and dishonors offred vnto their Kings and haue euer contended to vphold and maintaine their honor and Soueraigntie And their faith and loyaltie hath beene generally such though euery age hath brought forth some particular monsters of disloyaltie as no pretence of zeale or religion cold euer withdrawe the greater part of the Subiects to submitt themselues to a foreine yoke no not when Popery was in her height and exaltation whereof this Act and diuers other of the same kinde are cleare and manifest testimonies For this Act of 16. Richard 2. was made at the prayer of the Commons which prayer they make not for themselues neither shew they their owne selfe loue therein as in other Bills which containe their greeuances but their loue and zeale to the King and his Crowne When after the Norman Conquest they importuned their Kings for the great Charter they sought their owne liberties and in other bills preferred commonly by the Commons against Shiriffs Escheators Purueyors or the like they seeke their owne profit and ease but heere their petition is to the King to make a lawe for the defence and maintenance of his owne honor The effect of the statut of 16. R. 2. cap. 5. They complaine that by Bulls and processes from Rome the King is depriued of that iurisdiction which belongeth of right to his Imperiall Crowne that the King doth loose the seruice and counsell of his Prelats and learned men by translations made by the Bishop of Rome That the Kings lawes are defeated at his will the Treasure of the Realme is exhausted and exported to enrich his Court and that by those meanes the Crowne of England which hath euer beene free and subiect vnto none but immediatly vnto God should be submitted vnto the Bishop of Rome to the vtter destruction of the King and the whole Realme which God defend say they and therevppon out of their exceeding zeale and feruencie they offer to liue and die with the king in defence of the liberties of the Crowne And