were a foolish presumption if a lapidary should undertake to state the value and lustre of a Jewel that is lockt up before he opens the Cabinet It is also necessary that those that study the law should be first called to the barr before they be admitted to plead and make the law their profession as wel â—or trying of their abilities as that they take the Oaths of supremacie and allegiance as all Protestant Lawyers do to witness their loyalty unto the King and his Government For how can the King trust him to practise the Law under 〈…〉 〈…〉 James 〈…〉 Knight 〈◊〉 second Baron of his Majesties him in his Courts to be conversant amongst his Records to have that opportunity by frequent discourse with his people to seduce them from their religion and obedience I say how can the King trust such men that will not acknowledge him to be the supream Head and Governour of his Kingdomes aswell in thâ— Church as in the state And Piety is the greatest Policy of all the rest And there is another statute in Ireland which if I understand it aright takes away that objection or scruple of conscience rather why they are so nice to take the Oaths of Supremacy and Allegiance as they are penned in the statut which commands the taking of them and which all Protestant Lawyers I say do take before they be admitted to the Barr. It is the Statute of 28. of H. 8. ca. 13. here in Ireland by which it is enacted and ordained that all and every ecclestastical Judge Ordinary Chancellor commissary Official Vicar general and other ecclesiastical Officer and Minister Stat. 28. H. 8. cap. 13. here in Ireland of what dignity preheminence or degree soever they shall be And all and every temporal Judge Justice Mayor Bailiff Sheriff under Sheriff Escheator Alderman Jurate Constable Headburrough Bursholder and every lay Officer and Minister to be made neated elected or admitted within this land of what estate order degree or condition soever he shall be from and after the said first day of Novemb. mentioned in the said statute shall before he take upon him the execution of the said Office make take and receive a corporal Oath upon the Evangelists before such person or persons as have or shall have authority to admit him that â—e from thence forth shall utterly renounce refuse relinquish and forsake the Bishop of Rome and his Authority power and Jurisdiction and that he shall never consent or agrée that the Bishop of Rome shall practise exercise or have any manner of authority jurisdiction or power within this land but that he shall resist the same at all times to the uttermost of his power And from thenceforth he shall accept repute and take the Kings Majesty to be only supream head in earth of the Church of England and of Ireland and that to his cunning wit and uttermost of his power and without fraud guile and other undue means he shall observe kéep maintain and defend the whole effects and contents of all and singular Acts and statutes made and to be made within this land in extirpation and extinguishment of the Bishop of Rome and his authority and all other Acts and Statutes made and to â—e made in reformation and corroboration of the Kings power and supream head in earth of the Church of England and of Ireland and this he shall do against all manner of persons of what estate dignity degree or condition they be and in no wise do attempt nor to his power suffer to be done or attempted directly or indirectly any thing or things privily or apertly to the let hinderance damage or derogation thereof or of any part thereof by any manner of meanes or for any manner of pretence And in case any Oath be made or hath béen made by him or any person or per-persons in maintainance defence or favour of the Bishop of Rome or his Authority or Jurisdiction or power he repute the same as vain and annihilate so help him God and all Saints and the holy Evangelists Cowels interpreter word office and Minshaw upon the word office And the word Office Minister do certainly comprehend and intend all those Irish that now practise the Law For the word officium doth signifie the function by virtue whereof a man hath some imployment in the affairs of another as the King or of any other common person and therefore should take this Oath they at least that are admitted to practise the Law And this Act of Parliament was made also in the time of Popery and by all the Sages of this Kingdome of Ireland by the Lords Spiritual and Temporal and Commons of the land all Papists whereby this question is clearly determined that the King is supream head of the Church And why should they more scruple to confess it now then they did then when their own Popish Bishops and Clergy Piers and Commons asserted it And Acts of Parliament are Established with such gravity sapience and universal consent of all the Realme and for the advancement of the weal publique that they ought to be maintained and supported For as Fortescue Fortescue ai cap. 18. Cok. 10. R. 138. case of Chester Wills ad idem saies of the statutes of England so may we of our Irish statutes Quod Hiberniae Statuta non principis voluntate sed totius regni assensu conduntur quo populi laesuram illa efficere nequeant vel non eorum commodum procurare prudentia enim et sapientia ipsa esse reâ—erta putandum est dum non unius aut centum solum consultorum virorum prudentia sed plus quam Trecentorum electorum hominum qualem numero olim Senatus Romanorum regebatur edita â—â—nt And Acts of Parliament made by King Lords and commons of Parliament are as well of the laws of Ireland and therefore to be expounded by the Judges of the Laws of Ireland although the Acts concern ecclesiastical and spiritual jurisdiction That the Judges of Ireland â—â— in England do take place and precedencie one before another as they are sworn one before another Then for a close of all I shall make it to appear That it hath béen the constant usage and custom here in Ireland as in England That the Judges of Ireland as in England do take their Precedencies one before another as they are first sworn Judges one before another and according to the Course and manner of England The case of tenures upon the commission of defective titles argued by all the Judges of Ireland and printed 1637. By my Lord chief Justice of the Kings Bench in Ireland that now is And for this I shall cite you a printed Case in the point The Case of Tenures upon the commission of defective titles Some of the Judges now being Judges then and can witness it viva voce if néed be The Case was this King James by Commission under the great Seal dated the second day
thereof he pleaseth My own Cose in Lincolns Inn. Lincolns Inn ad concilium ibid tent 11. die Febr. An. R. Jac. c. 20. And I shall conclude this point with a case of mine own Vpon reading a certificate that Jerom Alexander Gent. was admitted in the society of Furnivals Inn the first day of July 1609. and during his abode demeaned himself well and performed exercises of learuing and being now a fellow of this house was at this Councel called to the Barr. Albeit he was not seven years compleat of this society Saving to all his Antients their Antiquity and is to be published in Easter Term next He first paying all duties to the house and chappel Ro. Ayre C N. L. Mr. Justice Brown now one of the Judges of the common Bench in England and my self being both admitted of the house of Lincolns Inn upon one day and at one time yet because I had been a student three or four years in Furnivals Inn before had the favour of the house to be called to the Barr one year before him so by taking of that degree should have been his Antient and taken Precedency before him Albeit re vera he were my Antient in the house before But in the order of my call there is a Saving to all my Antients their antiquity and by this saving I lost my Precedency to him and upon this only reason that the Barrester which presented him to the Bench at the same time was antient to the Barrester that presented me and yet both presented together at one instant of time This is directly in the point So as that by a saving I once lost my Precedency so now I hope by a saving to preserve my right of Precedency it being my due and just to have it Then as to Sir William Ashtons second question Whether the right of Precedency belonged at first to me as antient to Sir Willam in the Inns of Court Or to Sir William Ashton either in being second Justice of the Kings Bench or as having his Majesties Letter of a Prior date And I shall clearly proove that the right of Precedency did clearly belong to me at first 1. Notwithstanding that Sit William Ashton was made second Justice of the Kings Bench. 2 And notwithstanding that his Letter is of a Prior date The first question The second in order to be debated Then first We must look to the rock from whence we are hewen to the Inns of Court in England and see what is usually in such Cases done there and then consider what is to be done and is usually done here in Ireland in a Case of this nature Of the Inns of Court and Inns of Chancery in England Then in England we know there are four Inns of Court and eight Inns of Chancery two Inns of Chancery appropriate to every Inns of Court Where that all those that profess the Law under the degrees of Serjeants for they Four Inns of Court eight Inns of Chancery in England have two Inns belonging to themselves apart where the Judges and Serjeants do only lodge but all aswel those in places Judicial as Ministerial have their breedings there at first And antiently every one that intended the practise of the Law was first admitted of one of the Inns of Chancery and began his studies there where by converse with Officers Attourneys and Clerks belonging to the Courts of Law they gained much knowledge and experience in the practique part of the Law which made their studies much more easie and made them much the better to understand the Theory of it in their books and fitted them much the better for the practise of it afterwards Nor was it time lost to study there not only for the reasons aforesaid but of great benefit and advantage also For that every Inns of Court having two of the Inns of Chancery appropriate to it they usually sent them Readers from amongst themseves Barresters at Law to read the law to them in those Inns before whom they performed exercises of learning argued the readers case at the barr in Every Judge was first a student of some one of the Inns of Court then a Barrester then a Bencher then a Reader then a Serjeant at Law then a Judge in the house And then every Inns of Court also sent two students of the most antient under the barr for to argue likewise the readers case there in the said Inns of chancery And in this way antiently were all our famous Judges of England bred and whose judgments we now reverence as Presidents for imitation And then when after they came from thence to the Inns of court they had some of that time allowed them which they had spent in the Inns of chancery in their studies for promotion unto the Barr. Then every Judge in England was first a student in some one of the four Inns of Court and after seven years study was by the Benchers who are the Govenours Carys Case in Noys Rep. 107. of those houses called to the Barr and admitted to practise as a councelor at Law then was a Bencher then a Reader then a Serjeant then a Judge And in England no man can be admitted for to practise as a Lawyer before he hath been called to the Barr. For in Noy's Reports in Carys case it is there delivered for Law that by the course of the common Law a man may not give The Inns of Court no bodyes politique councel or advice until he hath béen called to the barr no though he hath Letters pattents enabling him to do so as fully as if he had béen called to the Barr. The study of the Law a noble study And though the Inns of court be no Bodyes Politique incorporate by letters pattents to plead and be impleaded by any name yet by the common law of England which are the common customs of the land they have gained such a The study of the Law qualifies men for other imployments both at home and abroad though they make it not their profession power to themselves that within their several societies they have the power of an order and Government to promote the noble study of the law in the best way they shall think fit And therefore the more noble because almost all the Nobility and Gentry of the land for the most part have their education there as it were an Vniversity or school of all commendable qualities requisite for Noblemen and Gentlmen where those that will not make it their profession yet do exercise themselves in They have degrees given in 〈◊〉 And in no other Country in the world for the Laws of the land all kind of other studies and pastimes which are fit for Noblemen and Genlemen to recreate themselves withal And therefore for the endowment of virtue Noblemen and Gentlemen will place their children in those Inns of court though they desire not to have them practise the law but
then if his Majestie should have declared his pleasure at several times in one day to make several Judges of his several Courts This doth confer nothing upon the person de facto but is if a matter in fieri to be done for notwithstanding that they are not Judges till they are made so uppon record by his Majesties Letters Pattents under his great Seal which is a record and then the Lord Chancellors his swearing them to perform that duty and office with which the King have intrusted them so the Kings pleasure first signified makes nothing at all for to make a man a Judge nor doth it add any force or strength unto Sir William Ashtons demand Crooks 2. par R. 1. For this purpose the Case in Crooks second Reports doth put it to be so and is a stronger Case then this of Sir William Ashtons Where eleven Serjeants were called by Writ in the life time of Quéen Elizabeth and before the return of the Writ the Quéen dyes and King James succéeds and afterwards new Writs do issue to call them in the reign of King James returnable at a day certain and afterwards other Writs issue of a later The Letters gives nothing of Precedency in respect of the date one before another for the teste of a Serjeants Writ one before another gives no right of Precedency in taking the degree teste To call three more viz. Snigg Shurley and Hutton returnable at the same time with the other eleven all come to the Bar together to take their Oaths according to their Seniorities notwithstanding the several testes of their Writs one before another And Sir John Crook whom I knew afterwards a Judge in the Kings Bench being one of that call who having formerly been Speaker in the house of Commons in Parliament And therefore had Precedency before all Councellors at the Bar and would therefore have béen senior of all that call of Serjeants which was much laboured for him at Court yet being puisne to five of them was sworn after them according to his seniority Whereby it appears that it was not the prior Teste of the Writs nor his priviledge of having been Speaker of the house of Commons that gained any thing of priority one before another But their seniorities one before another as they stood unsworn which settled them in their Precedency one before another as they stood in their degrees one before another And this is a stronger case then Sir William Ashtons In as much as a Writ which is an essential part of the call is more towards the degree then his Majesties pleasure barely signified by his Letters Objection that albeit it may be so in England yet not in Ireland But then it may be objected that albeit this may be granted to be the order and rule in England yet it is not so in Ireland For here are no Inns of Court here are no degrees taken of Barresters Benchers and serjeants at Law Nor are the Judges here made from amongst that order of serjeants at Law but of such whom the King pleaseth to nominate and appoint for that service And then Sir William Ashton being appointed first to be a Judge of the Kings Bench ought to take place of me as declared after him to be a Judge in the Common Bench. The same common Law that governs England also Ireland is governed by it King H. 2. 18. That the Common Law of England is the same Common Law by which Ireland is also governed Introduced by King John in the twelfth year of his reign Although the conquest of Ireland was made before by King Henry the second in the eighteen year of his reign who was father to King John And placed many Britains here and granted the City of Dublin to the men of Bristol to inhabite and then returned into England and afterwards in the twenty third Cooks instit 141. 7. R. 22. in Calvins case Roâ—â— Parl. 11. H. 3. memb 3. year of his reign by Parliament he constituted his sonne John who was afterwards King of England to be King of Ireland and granted to him and his heirs the whole Kingdome And in the twenty sixt year of his reign he sent King John into Ireland with a great train of young gallants He being then but twelve years of age who used the Irish with such disdain and derision that the Irish took occasion thereat to revolt from him and his government so that he shortly after returned back into England without doing any remarkable thing But notwithstanding his creation to be King yet during the life of H. 2. R. 1. He was stiled in his several Charters by the name of Dominus Hiberniae and not King until after the death of King R. 1. As apears by several Charters by him granted to the City of Dublin in the first whereof being without date He is â—â—â—led Johannes filius domini Regis Angliae dominus Hiberniae And in the second bearing date at London the 15. of May in the year of the reign of King R. 1. He is stiled Johannes dominus Hiberniae comes Mortoniae And in a third Charter granted to the City of Dublin bearing date at Upton the 7 of February in the 2. year of his reign He is stiled Johannes dei gratia Rex Angliae dominus Hiberniae dux Normandiae Aquintaniae comes Andegaviae Then afterwards in the twelfth year of his reign he came again into Ireland and brought along with him many learned men in the Law and other Officers and Ministers of all sorts and established the form of Civil Government to be according to the Laws of England So that he not only introduced the Law but we may conceive settled Judges which in the History goes by the names of learned men And ministerial Officers The common law being the same the same rules of making Judges and officers in the courts of Law must be the same of all sorts in the Courts of Law such as are in England Which forms of Government have ever since continued in this Kingdome to this day This being thus it follows that the same Rules and Orders of procéeding in making Judges and other Officers and procéedings in the Courts of Law should be the same as well in Ireland as in England And we see and know by experience and common practise That all the Courts of Law and the Officers are the like in name and power And all of them have and take the same Places and Precedences one before another here as there The antient usages and customs of the land is the common law of the land as 't is said in Combes case in Cooks 9. R. That which is used per totam Angliam is the common law For the custom of the land is the law of Combes Case 9. R. 75. b. the land Therefore in my Lord Dyer where 't is sald quod habetur talis What the common law of England and Ireland