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
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