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
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
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