of March in the fourth year of his reign did authorise certain Commissioners to grant the Mannour of Dale by Letters Pattents under the great Seal of Ireland to A. and his heirs and there is no direction given in the said Commission touching the Tenure to be reserved To prove this by testimony There are Letters Pattents by colour of the said Commission passed unto A. and his heirs to hold by Knights service as of his Majesties castle of Dublin See Baron Dungans Certificate heretofore a Judge of the Kings Bench in Ireland which follows in hac verba The question was whether the said Letters Pattents be void in the whole or only as to the tenure Which Case was argued by the councel of the Lord Dillon in the first place which was Mr. Nicholas Plunket then by Serjeant Catlyn for the King And after by John Pollexfen for the Lord Dillon and then by Osbaldeston Attourney General for the King At the request of Sir Jerom Alexander Knight second Justice of his Majesties Court of common Pleas. I do certifie That concerning the Precedency of the Judges here in Ireland I know that when Hugh Cressey Esq deceased was second Justice of his Majesties Court of Kings Bench in Ireland That Sir Samuel Mayart Knight deceased being then second Justice of his Majesties Court of Common Pleas took Precedency of him as being the antienter Judge And I have often heard and sometimes observed that the second and third Judges of the Courts of Justice here in Ireland took their Precedency in order as they were first sworn Judges And I do know that Sir James Barry Knight then second Baron of his Majesties Court of Exchequer and now Lord Baron of Santrey and Lord Chief Justice of his Majestices Court of chief place took Precedency before Sir William Ryves Knight one of the Justices of the Kings Bench Being sworn second Baron of the Exchequer before he was made one of the Justices of the Kings Bench. And afterwards when Sir William Ryves dyed and I became of course second Justice of the Kings Bench Baron William Hilton then puisne Baron of his Majesties Court of Exchequer claymed Precedency before me as senior Judge and at that time some of the Judges inclined to his Precedency as he was a Senior Judge All which I shall be ready to testifie upon occasion And because it was a Case of great weight and importance it was delivered unto the Judges and they were required by the Lord Deputy and Councel to conferre and consider of it and to return unto them their resolution concerning it but they upon private conference among themselves did not agree in opinion and therefore it was thought necessary for publique satisfaction that it should be argued solemnly by them all And thereupon in Trinity Tearm 1637. the Case was argued accordingly And in that Book is set down all the Judges names that argued it and the order of their Precedency one before another and as in all Cases of Arguments by the Judges the puisne Judge begins first and so it procéeds to the Lord Chief Justice of the Kings Bench last and so it was done in this Case Sir William Ryves that was then puisne Judge of the Kings Bench. He began and argued first Then Sir James Barry now Lord of Santrey and Lord chief Justice of his Majesties Court of Kings Bench but then second Baron of his Majesties Court of Exchequer and second Judge to Sir William Ryves he argued next Then Hugh Cressey Esq one of the Judges of the Court of chief place in that place which Sir William Ashton now enjoyeth He argued next and after him upon another day appointed for the Case Sir Samuel Mayart one of the Judges of the common Pleas and then sitting in that place which I now enjoy Argued next then Sir Richard Bolton chief Baron argued next then Sir Gerard Lowther chief Justice of the common Pleas and then Sir George Shurley chief Justice of the Court of chief place By which the order of Precedency of the Judges in this Kingdome one before another doth appear to be the very same as in England according as they are first sworn Judges and my Predecessor being Senior Judge to Sir Williams Ashtons Predecessor had the place of him Vpon all which matter I conclude First That the right of Precedency belonged unto me at first as we stood unsworn as antient unto Sir William Ashton in the Inns of Court in England and that the same order is to be observed here in Ireland in asmuch as by the Stat. of 33. of H. 8. 3. here in Ireland No man can give advice as a Councellor at Law that hath not been first admitted of an Inns of Court in England And the common Law of England and Ireland which establisheth the Inns of Court in England being the same Secondly That the Courts of law in England nor in Ireland give no Precedency to the Judges at all Thirdly That Sir William Ashtons Letter of a prior date to mine gives him no advantage or benefit at all in the Case Fourthly and lastly That the saving to me of my right of Precedency upon the swearing of Sir William Ashton in the first place bath saved to me my right of Precedency And therefore I ought to be established in it accordingly Thomas Dongan Dated at my Chamber in the Inns this 3. day of January 1661. Jerom Alexander
THE CASE BETWEEN Sir Jerom Alexander Knight second Justice of His Majesties Court of Common Pleas in Ireland And Sir William Ashton Knight second Justice of His Majesties Court of Kings Bench in Ireland CONCERNING PRECEDENCY THE CASE as Sir William Ashton puts it is viz. Sir William Ashton hath a Letter from his Majesty to the Lords Justices Letter dated 3. Novemb. 1660. of Ireland to pass Letters Patents under the great Seal to make him second Justice of the Kings Bench there Dated the 3 Novem. 1660. Sir Jerom Alexander hath a like Letter to make him second Justice of the Court of Common Pleas in Ireland Dated 30 Novemb. 1660. Several Letters Pattents pass to each accordingly both Dated the 19 of Letter dated 30. Novemb. 1660. January 1660. Both Letters Pattents are presented to the Lord Chancellor at the same time Both Letters Patents dated 30. Jan. 1660. both being in place Sir Jerom Alexander demands Precedency and to be first sworn as Antient to Sir William Ashton in the Inns of Court in England and an utter Barrester before him Sir William Ashton demands Precedency and to be first sworn as he was made second Justice of the Court of Kings Bench as having a Precedency before the Court of Common Pleas and as his Letter from the King was of a prior date The Lord Chancellor inquires of the Officers of the Courts then attending his Lordship what the practise therein had formerly been and being informed by them Mr. Patrick Tallant one of whom was the most eminent Attorney in the Court of Common Pleas that the Precedency had alwaies been given formerly to the second Justice of the Kings Bench. Thereupon ordered Sir William Ashton to be first sworn with a salvo Jure to Sir Jerom Alexander if any he had The first question is to whom the right of Precedency belonged at first To Sir Jerom Alexander as antient to Sir William Ashton in the Inns of Court or to Sir William Ashton either in respect of being second Justice of the Kings Bench or as having his Majesties Letter of a Prior date The second question is whether Sir William Ashton being de facto first sworn ought not to have the Precedency as Senior Judge notwithstanding the Salvo Jure to Sir Jerom Alexander WILLIAM ASHTON The Argument for Precedency by Sir Jerom Alexander First I shall agree it to be the Case in all things but in this one thing only which is matter of Fact and resteth in Proof And I do affirm that it was not all the Officers of the Courts there present that did affirm that the Precedency had alwaies béen formerly given to the second See Mr. Tallants testimony under his hand of the 20 of Decem. 1661. in haec verba When the Right Honorable the Lord Chancelor demanded of me who should be first sworn Sir Jer. Alexander or Sir William Ashton I repaired down the stairs to enquire of those whom I conceived better to give an account of that matter then myself And meeting below the stairs with Coll. William Knight I put the question unto him Who answered me that the second Judge of the Kings Bench was alwaies sworn before the second Judge of the Common Pleas. And thereupon I came up again and informed his Lordship the same Pa. Tallant Justice of the Kings Bench nor is it so but the contrary But my Lord Chancellor directed Mr. Tallant who is that Eminent officer of the Court of Common Pleas mentioned by Sir William Ashton in the draught of his Case to inquire how the practise had formerly béen And he méeting with one Collonel Knight inquired of him who told him so and upon that single discourse with Collonel Knight without any conference had with any other of the Officers there present and without any knowledge that he had thereof himself Mr. Tallant returns my Lord Chancellor that answer And thereupon my Lord swears Sir William Ashton first with a Salvo Jure to me Now albeit this makes nothing for Sir William Ashton in the Case When I shall make the contrary to appear Yet I cannot admit of it because it is not the truth And therefore if my Lord Chancellor shall not upon hearing what we can say for ourselves be pleased to determine the difference but shall think fit to transmit it for England I shall humbly desire those words may be left out and the Ease made no otherwise then as it was and that Mr. Tallant may be called to declare his testimony to this relation in the Case But if in the Course of my Argument I make the contrary to appear all that allegation of Sir William Ashtons will be out of doors and fall of itself without any more ado So I shall proceed to argue the points of his Case And shall begin to argue his second point first as most material For if the Salvo Jure to me shall operate nothing we are at an end The first point will never come in question For if Sir William Ashton being de facto first sworn therefore ought to have the Precedency as Senior Judge Notwithstanding the Salvo Jure to me Then the controversie is at an end Therefore I shall indeavour in the first place to probe that this Salvo Jure doth séeme to me my right of Precedency Notwithstanding that de facto Sir William Ashton was first sworn As this Case is And howsoever Sir William Ashton have made this a question in the Case Yet I presume he is so much a Gentleman and so conscientions of his waies that if he shall be satisfied that the right of Precedency did belong to me to be first sworn as we stood unsworn that he will not take advantage of his own wrong and kéep that right from me which he should so gain by a false suggestion But I doubt not but to make it clearly to appear 1 First that the Salvo Jure in the Case have secured unto me what right of Precedency I had to be first sworn as we stood unsworn 2 Secondly That the right of Precedency to be first sworn did properly belong to me as we stood unsworn Notwithstanding his being made second Judge of the Kings Bench And notwithstanding the Prior date of his letter My Lord Chancellor the proper Judge of this controversie And first I conceive that Sir William Ashton will not deny but that my Lord Chancellor is the proper Judge of this controversie and so have power of doing right unto us both This is so undeniable a truth as it néeds no other proof but aconstant usage and custom as through all England so throughout all Ireland which is the Common Law For those customs and usages which are used and accostomed Per totam Angliam per totam Hiberniam are the Common Laws of England and Ireland Then the usual practise and course in these Cases have béen That the Lords The Judges Oath settled by the Stat. of 18. E. 3. Chancellors of
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