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
is 34. H. 8. Brooks Cases foll 57. P. 225. consuetudo interjuratores per totam Angliam c. This is said to be the common law And so all these customs and usages of making Barresters Benchers Serjeants and Judges and their taking of their Precedencies one before another as is aforesaid This Lex teâ—e is the common law of the land And is a matter of civil right and order neither against Justice nor the Common Wealth 22. H. 6. 21. 34. H. 8. Dyer 54. nor is it to the prejudice of any man and therefore reasonable and to prevent disorder and confusion and therefore necessary and convenient And then Consuetudo ex rationabili causa usitata And so just And if we shall well weigh and consult the statute of 33. H. 8. 3. here in Ireland Stat. 33. H. 8. 3. We shall find that it was the judgment of that Parliament that it should be so which is but a declaration of the common law before For that statute sayes And provides thus viz. Provided alwayes and be it Enacted by Authority aforesaid that no person or persons that now is or hereafter shal be within this Realm except the Party The Proviso Planitiffe or Demandant Tenantor Defendant shall be admitted or allowed as a pleader in any of the Kings fower principal Courts within this His gracious Realme in any case or matter whatsoever it be or yet to make or exhibite to or in any of the said fower Courts any declaration or bills plea in barr replication or rejoynder or to give evidence to any Jury unless it be for the Kings Majesty or to argue any matter in law or yet to do or minister any other thing or things in any of the said fower Courts which customarily have béen used to be done by one learned or taken to be learned in the Kings laws but such person and persons as hath or shall be at one time or several times by the space of _____ years compleat at the least demurrant and reâ—â—ant in one of the Inns of court within the Realm of England studying practising and indeavouring themselves the best they can to come to the true knowledge and jvdgment of the said laws upon pain of one hundred shillings to every person or persons offending contrary to the Proviso last before specified or any thing therein contained Now upon this statute I do observe First That it was made in a time of Popery When all Lawyers then were Papists and had liberty to plead in England and Ireland And yet it was not thought fit that any man should practise the law that had not studied to make himself able for the exercise of the same profession And therefore the statute calls them that should be thus admitted to plead men learned in the laws and men cannot be learned in the laws without studying the laws Secondly Because they had no Inns of court in Ireland Though by the introduction of the common law into England it is conceived they had the liberty of erecting Inns of court and Inns of chancery as in England yet wanting the means to do it for to avoid barbarisme and nescience or ignorance in the practise of the Law They make this statute to compel those that should profess the Law in Ireland to run the course of their studies in the Inns of Court first in England and therefore are in England to be called to the barr before they plead And this shews likewise that they are two distinct Kingdomes though governed by the like Laws And that it was something doubtful before this Law was made whether a Barrester of England might practise here in Ireland without leave and licence of the State Thirdly That howsoever this blank for the years of their studies how many they shall be happens to be in this statute yet certainly it cannot be intended a lesser number of years then seven years which are the number of years that men usually study the Laws in England before they be called to the Barr and then all Lawyers were Papists and yet could not practise the Law as a Councellor without first being called to the Barr. And then again the word compleatly immediatly following the blank doth insinuate the same thing According to the rules and orders of those Inns of Court where they were to compleat their studies And it is but reasonable and just that a man should spend so many years for to acquire the understanding and knowledge of so honorable a Science and profession when as an Apprentice to every trade and Mechanical occupation is by the Law tyed to serve seven years before he can be made free to exercise his trade or occupation And Laws are called Libertates quia liberos facit because they make a man Cokes 8 R. 129 130. in case upon the sâ—at of 5 Eliz. of Apprentices cap. 4. free too though in another sence And Sir Edward Cook in the Case upon the statute of 5. Eliz. Concerning Apprentices to be first bound to serve seven years and then first to be approved of by the Masters of those companies under which they serve before they can be admitted to use their trades He highly commends Coke li. 6. 19. this Law saying that as this course begets skill in the exercise of trades so it were prejudicial to the Kingdome if such should be permitted to use trades in which they have no skill or understanding In respect of the dangers which they themselves run also and may incur otherwise For be that will take upon him to use a trade in which he hath no Fitz. Na. br 9. imperitia est maxima mechanicorum poena quoslibet quaerit inqualibet arte peritos Coke 11. R. 54. skill the Law provides him a punishment as in Fitz Herberts Natura Brev. where an action of the Case was brought against a smith for pricking of a horse For men ought to be skilful before they undertake such faculties And Scientia we say non habet inimicum praeter ignorantem Ignorance is the greatest enemie to science For these are like blind men shooting at a Crow if they kill her it is by chance They are like ignes fatui commonly leading men out of the way whiles they shine bright in their eyes The proverb is true in this also Money makes this man But as 't is said of the Nightingale he is Vox praeterea nihil a sound and nothing else And 't is against the rule of the common Law for one tradesman to take up anothers trade in which he never served And 't is observable also that Barresters are called Apprentices to the Law Barresters at Law called Apprentices because they serve as Apprentices seven years before they attain the Barr. And much rather it ought to be so as the study of the Law is far more difficult then it can be for a man to learn a mechanical trade and occupation And how can a blind man judge of colours It
England and Ireland have constantly and continually used to swear the Judges to exercise their Offices according to that Oath prescribed by the Statute of 18. E. 3. Before they enter upon the execution of their places So that Albeit it be the Letters Pattents which makes him a Judge yet without this ceremony of first swearing him to be faithful to his trust c. He cannot take upon him the execution of that Office The King is Fons Justitiae and as Kitchin sayes at first did justice to his people in his own person As Moses did in the time of the old Law until Jethro The King is Fons Justitiae Kitchin advised him to depute Judges under him for lesser matters to ease him ofso great a burthen Thus our Kings of England and Ireland of their Prerogative Royal have the The King have the sole nomination and appointment of his Judges sole denomination and appointment of their Judges Whose Offices being granted to them by Letters Pattents under the Great Seal Yet the Lord Chancellor delivers them to them and not before they have taken the Oaths of Judges as a Feoffment in Fee without livery and Seizin takes no effect So this Oath is as a Livery and Seizin to give them possession of their places A feoffment in fee without livery seizin takes no effect The Lord Chancellor may perform this office as he pleases yet most regularly 't is done in that Court where the party is made a Judge The Lord Chancellor sitting there in person and calling the party before him advertising him of the Kings favour and pleasure causes the Letters Pattents to be read then The manner how Judges ars ussually sworn gives him the Oath then admonisheth him concerning his trust how he ought to be faithful in that and how to carry himself then sets him in his seate and there leaves him My Lord Chancellor of England too is the prime Agent in making of Serjeants The Lord Chancellor of England a prime agent in making of Serjeants at Law at Law out of which the Judges there are still chosen by the King and there he cannot be a Judge that is not first a Serjeant Fortescue 120. Fortescue some times Lord Chancellor of England describes the manner of calling of Serjants in those daies The Lord chief Justice of the common Bench by the councel and assent of all the rest of the Judges have used to chose seven or eight of the discréetest persons that Fortescue de laudibus legum Angliae 117. have most profited in the study of the Laws to be called Serjeants presenting their names unto the Lord Chancellor in writing who by vertue of the Kings writ which he issueth he chargeth every of the persons elect to be before the King at a day by him assigned to take upon him the state and degrée of a Serjeant The manner of calling of Serjeants at Law under a penalty in the Writ mentioned at which day the Lord Chancellor swears them c and so invests them in their degrees of Serjeants And afterwards they are presented at the Common Bench bar unto the Judges in their Fortescue supra 120. Brook 1. par R. 84 party coloured robes Where they are admitted to plead and none but Serjeants Thus the Lord Chancellor hath the sole power by antient usage and custom which is the Law of the land investing every Serjeant and every Judge in taking The Lord Chancellors have the power of order in these cases their degrees and places According to their Seniorities as they are in their degrees one before another Neither in any Country in the world is there any special degree given in the Laws of the same lands but only in the Realme of England Then my Lord Chancellor having made this saving in the Case to preserve Fortescue 120. my right of Precedency I shall in the next place indeavour to proove that it is No degrees given in the law of the same land but in England â—aliâ— and of force to preserve it to me A Saving is the preserving of a right from being lost by an act which otherwise would destroy it And therefore Savings are most frequent in Acts of Parliament to preserve mens rights that they be not lost Which to pass without a Saving were A Saving what it is otherwise extinguished Several kinds of rights Cook 1. Instit 345. Now there are several kinds of Right As. 1 Jus recuperandi 2 Jus intrandi 3 Jus habendi 4 Jus retinendi 5 Jus percipiendi 6 Jus possedendi So that this worâ—â— Right is of a large extent and in a Saving doth include Plow Com. 487. b. 488. a. every one of these Rights And more And as it is said in that Case that it stands with reason and justice that that Right shouldbe alwaies preserved to him to whom it doth belong And therefore this word Saving saith Plowden extendeth to preserve unto a man everything that is his It is a general word and shall in the Saving be extended to that thing which a man pretends right unto or in which he hath an estate Thus in Fiâ—eâ— the right of the Land includeth and passeth the state of the Land Cooks Instit 1. 345. esse jus Stat. West 2. 3. jus summum As cognovâ—t tenementum Praed esse Jus ipsins B. And so in the Statute of West 2. ca. 3. The Statute saith defendere Jus suum which is Statum suum Then the Case of my Lord Dyer concerning the Deanary of the Cathedral Dyer 10. Eliz. 273. Church of Wells which was first surrendred and afterwards extinct by Act Parliament Saving to all strangers their rights c. and this adjudged a preserving of all the rights of strangers whatsoever that had any estates made them by the Deane or Chapter before Then in Pophams Reports Pophams Rep. 16. there is a Case to this effect viz. The Town of Gloster made a County with a Saving that the Justices c. may sit there That King R. 3. by his Letters Pattents doth grant to the Burgesses of Gloster and unto their successors that the Town of Gloster shall be a County of it self several and distinct from the County of Gloster Saving to the King His Heirs and Successors that the Justices of Assize and Gaol Delivery and Justices of the Peace of the said County may at all times enter into the said Town and hold and kéep the Assizes and Sessions there for the said county And it was adjudged by all the Justices that this was a good saving whereby the Judges of Assizes and Justices of the Peace might enter into the Town and kéep the Assizes and Sessions there for the County at large For as the King by his Letters Patents may make a County and except this from any County so in the making of it he may except and save to himself what part of the jurisdiction and priviledge
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
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
for the better qualifying of them for other imployments both The Seniority goes according to the admittance both in the house and abroad at home and abroad They have degrees given them also as in the Vniversities and not degrées only but also a state no less solemn then theirs And as in the Vniversities he that is first matriculated and so received into the fellowship of the Vniversity hath the Precedency of all that come after him So it is in the Inns of court All students take their places according to their admittances into those societies whereof they are made members Which is done by the several Benchers of those houses to whom they are presented And as this admittance and the receiving thereof gives us Precedency in the house at all méetings and exercises within the house so it doth abroad As at all readings in the Inns of chancery whether two from every of the four houses are sent to argue the Readers case There every man takes his seniority according as he hath béen admitted in any of the Inns of court without distinction The degree of the bar gives seniority to all that slip their time And when they take their Degrée of the Barr still they continue their seniorities unless it happens as often it doth that some do slip their time and do not take their degrée till afterwards and then he looses his antiquity to all that have taken their degrees before him for the Degrees gives the seniority The same rule is holden as to calling to the Bench. The same rule is holden as concerning those that are called to the Bench. He that is first called hath his seniority accordingly The same rule is concerning Serjeants at Law when called The manner shewed herein before The same order is observed concerning the call of Serjeants all are sworn according to their Seniorities And as a Barrester at Law cannot regularly be called till he be seven years standing a student So no man can be made a Serjeant at Law till he be sixtéen Fortescue 120. years a student in some one of the said four Inns of Court and a Barrester and hath been a reader in the house whereof he hath béen a member To be a double reader how ment Some will have it that he must be double Reader before he be made Serjeant But that may be ment of reading in the Inns of Chancery and then in the Inns of court as commonly all did heretofore that were made serjeants and yet that is no certain rule For now serjeants are commonly called that have but read in the Inns of court alone some have béen called that have not read at all as Sir Thomas Heatley who was made puisâ—e to all that call of serjeants though he were senior to many of them that were called with him which 2 Par. Crook Rep. 671. proves that reading in an Inns of court is necessary to precede the calling and degrée of a serjeant at law Some call them serjeants of the Quoife And that procéeds from this You may observe them to wear a white Quoif of silk it Fortescue de laudibus legum Angliae 120. and 121. should be in token or sign that all are thus graduate which is the principal and chief insignment of habite with which Serjeants at law in their creation are decked and neither the Justice nor yet the serjeant shall ever put off the Quoife no not in the Kings presence though he be in talk with him Fortescue ibid. What a Judge is But a Judge is no degree in the Law saith Fortescue but an office only and a room of authority for to continue during the Kings pleasure And in England he cannot be a Judge unless he be made aserjeant at Law first Order and precedency amongst the Judges And we shall find order and Precedency amongst them also Both in England and Ireland The Lord chief Justice of the Kings Bench takes his place before the Lord chief Justice of the Common Bench and the Lord chief Justice of the Common Bench before the Lord chief Barron and the Lord chief Barron before all the puisne Judges of every the Courts of Law and then the puisne Judges of all the Courts one before another as they are sworn one before another See 2 par Crooks R. 170 par 24. Judge Fosters case Swearing first gives the Seniority Sir Thomas Foster Serjeant was sworn a Justice of the common Bench. And Sir Edward Heron being an antienter Serjeant then he was sworn one of the Barrons of the Exchequer and because Serjeant Heron was sworn after See Crooks 2. Rep. 197. the other and though both in one day yet he lost his antiquity to Foster for that reason only No Saving no Precedency But there was neither any demand of Precedency nor any Saving in that Case as in this case of mine for I did all things in order to preserve my right And am therefore confident I shall not loose it The next is Sir George Crooks own case who in Michaelmas Tearm 4. Sir George Crooks own Case in his 1. Rep. 127. Caroli Being then a Judge in the Court of common Pleas was removed into the court of Kings Bench and before his removal Justice Yelverton then a fellow Judge with him in the same Court. And Sir Thomas Trevor and Vernon being then Barrons of the Exchequer were his puisnes who pretended that by his removal and his taking the Oath de novo in the Kings Bench he had lost his Precedency to them and therefore claimed the place of him But it was ruled by all the Judges for Sir George Crook but upon this reason that albeit he were new sworn yet he never ceased to be a Judge And therefore his swearing de novo in another Court did not loose him his Precedency which he had before First By all which it doth appear that all students of any of the Inns of Court in England have Precedency one before another as they are admitted in time one before another And secondly That all Barresters Benchers and Serjeants at Law have Precedency one before another as they are called to those degrées one before another Thirdly That an puisne Judges take their Seniorities as they are sworn one before another Fourthly That all Barresters Benchers Serjeants and Judges when more come at one time to be sworn together each is sworn according to his Seniority which he hath before others at the time of his swearing His Majesties Letter of a prior date doth give Sir William Ashton no right of Precedency before me at all The next thing that is confiderable in this Case is what his Majesties Letter of a prior date doth opperate to give to Sir William Ashton precedency before me His Majesties Letter imports no more but his Majesties pleasure thereby signified and direction given to make him a Judge So is only an act of choise and of no more effect