LE PRIMER REport des Cases Matters en Ley resolues adiudges en les Courts del Roy en Ireland Collect et digest per S r. Iohn Dauys Chiualer Atturney Generall del Roy en cest Realme Liber librum aperit DVBLIN Printed by Iohn Franckton Printer to the Kings most excellent Maiestie Anno. 1615. TO THE RIGHT HONORABLE MY SINGVLAR GOOD LORD THOMAS LORD ELLESMERE LORD CHAVNcellor of England KIng Henry the Second my most honorable good Lord was the first King of England after the Norman Conquest that was styled Lord of Ireland Yet are there no recordes of that kings time remaining whereby it may appeare that he established any forme of Civill gouernment in this land But it is manifest by many recordes and stories that his sonne King Iohn made the first division of Counties in Ireland published the lawes of England and commaunded the due execution thereof in all those countries which he had made erected the Courts of Iustice made the Standard of Irish moneys equall with the English Breefely hee did order settle the government heere in all pointes according to the Modell of the common-wealth of England And to that end when himselfe in person came over into Ireland the second time which was in the twelfth yeare of his raigne he brought with him many learned persons in the lawe and other Officers ministers of all sorts to put the English lawes in execution whereof there is a notable record in the Tower of London 11. Henr. 3. Patent Membr 3. agreeing with that which is related by Matth. Paris histor magn sol 220 b. After which time the recordes of all legall Actes proceedings namely the Piperolls containing the charge of the revenue both Certaine casuall the Plearolls containing as well Common pleas as pleas of the Crowne Parliament Rolls Charters Patents Commissions Inquisitions were made vp in good forme in euery kings time till the later end of the raigne of King Henry VI when by reason of the dissension of the two Royall houses the state of England neglecting the gouernment of this Realme the Clarks and Officers grewe also negligent in the execution of theire severall places And though many of those auncient recordes haue beene embezeled many haue perished by carlesse keeping yet divers of all sortes doe yet remaine as faire authentique as any I haue seene in England Howbeit during all the time that the lawes of England haue had theire course in Ireland which is nowe full foure hundred yeares there hath not beene any Report made published of any Case in lawe argued or adiudged in this Kingdome but all the arguments reasons of the iudgements resolutions giuen in the Courts of Ireland haue hitherto beene vtterly lost buried in oblivion Which seemeth to me the more straunge because there haue beene within this Realme in euery age since the raigne of King Iohn men sufficienly learned in the lawes who haue deriued theire learning out of the fountaines of lawe in England the Innes of Court there being the most florishing honorable Academy of gentlemen that euer was established in any nation for the study learning of the Municipall lawes thereof And therefore they might haue beene induced to imitate the learned men of England who from the Norman Conquest downewards did continually preseiue the memory of such notable cases as did from time to time arise where argued and ruled in the Courts of Iustice in England by reducing the same into bookes of Reports which may bee called not improperly the Annalles of the lawe For albeit our Reports at large which are published in Print doe beginn with the raigne of king Edw. III. And the broken Cases of elder times which are scattered in the Abridgements are not found higher then the time of king Henry III. yet assuredly there were other Reports digested in yeares Tearmes as auncient as the time of king William the Conqueror as appeareth by that which Chaucer writteth of the Seriaunt at lawe In Termes had hee Cases and Doomes all That fro that time of King William were fall Neither doth Glanuill or Bracton disaffirme this antiquity of the Reports of the lawe in that they affirme that the lawe of England was Ius non scriptum in theire times as your Lordship hath noted in that most learned graue prudent speech of yours touching the Postnati of Scotland For indeede those Reports are but Comments or interpretations vppon the Text of the Common lawe which Text was neuer originally written but hath euer bin preserued in the memory of men though no mans memory can reach to the originall thereof For the Common lawe of England is nothing else but the Common custome of the Realme And a custome which hath obtained the force of a lawe is alwayes said to bee Ius non scriptum for it cannot bee made or created either by Charter or by Parliament which are actes reduced to writting are alwayes matter of Record but being onely matter of fact and consisting in vse practise it can bee recorded and registred no where but in the memory of the people For a Custome taketh beginning groweth to perfection in this manner When a reasonable act once done is found to bee good beneficiall to the people agreeable to theîre nature disposition then do they vse it practise it againe agaîne so by often iteration multiplication of the act it becometh a Custome being continued without interruption time out of minde it obtaineth the force of a lawe And this Custumary lawe is the most perfect most excellent and without comparison the best to make preserue a commonwealth for the written lawes which are made either by the edicts of Princes or by Counselles of estate are imposed vppon the subiect before any Triall or Probation made whether the same bee fitt agreeable to the nature disposition of the people or whether they will breed any inconvenience or no. But a Custome doth neuer become a lawe to binde the people vntill it hath bin tried approued time out of minde during all which time there did thereby arise no inconuenience for if it had beene found inconuenient at any time it had beene vsed no longer but had beene interrupted consequently it had lost the vertue force of a lawe Therefore as the lawe of nature which the schoolmen call Ius commune which is also Ius non scriptum being written only in the hart of man is better then all the written lawes in the worlde to make men honest happy in this life if they would obserue the rules thereof So the custumary lawe of England which wee do likewise call Ius commune as comming neerest to the lawe of Nature which is the roote touchstone of all good lawes which is also Ius non scriptum written onely in the memory of man for euery custome though it tooke beginning beyond the memory of
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
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.