an Irish man will say perhaps these lawes were made in England and that the Irish Nation gaue no particular consent therevnto onely there was an implicite consent wrapt and folded vp in generall tearmes giuen in the statute of â—0 Henr. 7. cap. 22. whereby all statutes made in England are establisht and made of force in Ireland Assuredly though the first Parliament held in Ireland was after the first lawe against Prouisors made in England yet haue there beene as many particular lawes made in Ireland against Prouisions Citations Bulls and Breâ—ues of the Court of Rome as are to bee found in all the Parliament Rolls in England What will you say if in the selfe same Parliament of 10. Henr 7. cap. 5. a speciall lawe were made enacting authorising and confirming in this Realme all the statutes of England made against Prouisors if before this the like lawe were made 32. Henr. 6. cap 4. and againe 28 Henr. 6 cap. 30 the like And before that the like lawe were made 40. Edw. 3 cap. 13. in the famous Parliament of Kilkenny If a statute of the same nature were made 7. Edw 4. cap 2. and a seuerer lawe then all these 16. Edw 4 cap. 4. That such as purchase any Bulls of Prouision in the Court of Rome as soone as they haue published or executed the same to the hurt of any incumbent should bee adiudged traytors which Act if it bee not repealed by the statute of Queene Mary may terrifie Maister Lalor more then all the Actes which are before remembred But let vs ascend yet higher to see when the Popes vsurpation which caused all these complaints began in England with what successe it was continued and by what degrees it rose to that heigth that it weiny ouer topp't the Crowne whereby it will appeare whether hee had gained a title by prescription by a long and quiet possession before the making of these lawes When the Pope began first to vsurpe vpon theliberties of the Crowne of England The first encrochment of the Bishop of Rome vppon the liberties of the Crowne of England was made in the time of King William the Conquâ—ror For before that time the Popes writt did not runne in England his Bulls of excommunication and prouision came not thither no citation no appeales were made from thence to the Court of Rome Our Archbishops did not purchase their Palls there neither had the Pope the inuestiture of any of our Bishopricks A comparison of the spirituall Monarchy of y t Church with the teÌ„porall Monarchies of the world For it is to bee obserued that as vnder the Temporall Monarchie of Rome Brittany was one of the last Prouinces that was wonne and one of the first that was lost againe So vnder this spirituall Monarchy of the Pope of Rome England was one of the last countries of Christendome that receaued his yoke and was againe one of the first that did reiect and cast it of And truely as in this so in diuers other points the course of this spirituall Monarchy of the Pope may bee aptlie compared with the course of the temporall Monarchies of the world For as the temporall Monarchies were first raised by intrusion vppon other Princes and Common-weales so did this spirituall Prince as they now 〈◊〉 him growe to his greatnes by vsurping vppon other States and Churches As the temporall Monarchies following the course of the Sunne did rise in the East and settle in the West so did the Hierarchie or gouernment of the Church Of the foure temporall Monarchies the first two were in Asia the later two in Europe but the Romane Monarchy did surpasse and suppresse them all So were there foure great Patriarches or Ecclesiasticall Hierarchies two in the East and two in the West but the Romane Patriarch exalted himselfe and vsurped a Supremacie aboue them all And as the rising of the Romane Empyre was most opposed by the State of Carthage in Affrica amula Romae Carthago So the Councell of Carthage and the Affrican Bishops did first forbid appeales to Rome and opposed the Supremacie of the Pope And doth not Daniels image whose head was of gold and legges and feete of iron and clay represent this spirituall Monarchy as wâ—ll as the temporall whereas the first Bishops of Rome were golden Priests though they had but wooden Chalices and that the Popes of later times haue beene sor the most part worldly and earthly minded And as the Northern Nations first reuolted from the Romane Monarchy and at last brake it in peeces haue not the North and Northwest Nations first fallen away from the Papacie and are they not like in the end to bring it to ruine The Pope had no iurisdiction in England in the time of the Brittons But to returne to our purpose The Bishop of Rome before the first Norman Conquest had no iurisdiction in the Realme of England neither in the time of the Brittons nor in the time of the Saxons Eleutherius the Pope within lesse the 200. yeares after Christ writes to Lucius the Brittish King and calls him Gods vicar within his kingdome which title hee would not haue giuen to that King if himselfe vnder pretence of being Gods Vicar generall in earth had claimed iurisdiction ouer all Christian kingdomes Pelâ—gius the Moncke of Bangor about the yeare 400. being cited to Rome refused to appeare vppon the Popes citation affirming that Brittany was neither within his Dioces nor his prouince After that about the yeare 600. Augustine the Moncke was sent by Gregory the great into England to conuert the Saxons to Christian Religion the Brittish Bishops then remayning in Wales regarded not his Commission nor his doctrine as not owing any dutie nor hauing any dependancie on the Court of Rome but still retained their ceremonies and traditions which they receaued from the East Church vppon the first plantation of the faith in that Iland being diuers and contrarie to those of the Church of Rome which Augustine did endeaunor to impose vppon them The like doth Beda write of the Irish priests and Bishops For in the yeare 660 hee reporteth that a conuocation of the Cleargie being called by King Oswif there rose a disputation betweene Colman one of our Irish Saints then present in that Synod and Wâ—lfrid a Saxon priest touching the obseruation of Easter wherein the Brittish and Irish Churches did then differ from the Church of Rome Colman for the celebration of Easter vsed in Ireland affirmed it was the same quod beatus Euangelista â—oannes discipulus specialiter â Domino dilectus in omnibus quibus praerat Ecclesijs celebrasse legitur On the other part Wilsrid alleaged that all the Churches of Christendome did then celebrate Easter after the Romane manner except the Churches of the Brittons and Picts qui contra totum orbem said hee stulto labore pugnant Wherevnto Colman replied Miror quarâ— stultum laborem appellas in quo tanti Apoâ—â—oli qui super pectus Domini
any liuing man yet it is continued preserued in the memory of men liuing doth farre excell our written lawes namely our Statutes or Actes of Parliament which is manifest in this that when our Parliaments haue altered or changed any fundamentall pointes of the Common lawe those alterations haue beene found by experience to bee so inconuenient for the commonwealth as that the common lawe hath in effect beene restored againe in the same points by other Actes of Parliament in suceedîng ages And as our Custumary vnwritten lawe doth excell our Parliament lawes which are written so for the gouernment of the Common-weale of England which is as well instituted established as any Common-weale in Christendome Our natiue Common lawe is farre more apt agreeable then the Ciuill or Canon lawe or any other written lawe in the worlde besides howsoeuer some of our owne Countrimen who are Ciues in aliena Republica hospites in sua may perâ—â—ppes affirme the contrary But certaine it is That the greate and wise-men of England in the Parliament of Merton did not preferre a Forreine lawe before theire owne when motion being made by the Clergie that Children borne before Marriage might be adiudged legitumate They all made aunswere with one voice Nolumus Leges Angliae mutari And againe in II. R. 2. when a newe course of proceeding in Criminall Causes according to the forme of the Ciuill lawe was propounded in that vnruly Parliament Aunswere was made by all the Estates That the Realme of England neither had bin in former times nor hereafter should bee Ruled and gouerned by the Ciuill law Rot Parliam II. R. 2. in Archiv Turris And heere I may obserue for the Honour of our Nation and of our Auncestors who haue founded this Common-weale wherein wee liue and enioy so many felicities That England hauing had a good and happie Genius from the beginning hath bin enhabited alwaies with a vertuous wise people who euer embraced honest and good Customes full of Reason and conveniencie which being confirmed by common vse practise and continued time out of minde became the common lawe of the Land And though this lawe bee the peculiar inuention of this Nation and deliuered ouer from age to age by Tradition for the common lawe of England is a Tradition learned by Tradition as well as by Bookes yet may wee truly say That no humaine lawe written or vnwritten hath more certainty in the Rules and Maximes more coherence in the parts thereof or more harmony of reason in it nay wee may confidently averr that it doth excell all other lawes in vpholding a free Monarchie which is the most excellent forme of gouernment exalting the prerogatiue Royall and being very tender and watchfull to preserue it and yet maintaining withall the ingenuous liberty of the subiect Breefely it is â—o framed and sitted to the nature disposition of this people as wee may properly say it is connaturall to the Nation so as it cannot possibly bee ruled by any other lawe This lawe therefore doth demonstrate the strength of witt and reason and selfe sufficiencie which hath beene alwayes in the people of this land which haue made theire owne lawes out of their wisdome experience like a silke worme that formeth all her webb out of her selfe onely not begging or borrowing a forme of a common-weale either from Rome or from Greece as all other nations of Europe haue done but hauing sufficient prouision of lawe Iustice within the land haue no neede Iustitiam iudicium aâ— alienigenis emendicare as King Iohn wrote most nobly to Pope Innocent the third Matth Parishistor magn pag 215. En populus sapiens intelligens gens magna As it is said of Gods chosen people 4. Deuter. Neither could any one man euer vaunt that like Minos Solon or Lycurgus he was the first Lawegiuer to our Nation for neither did the King make his owne prerogatiue nor the Iudges make the Rules or Maximes of the lawe nor the common subiect prescribe and limitt the liberties which he enioyeth by the lawe but as it is said of euery Art or Science which is brought to perfection Per varios vsus artem experientia fecit so may it properly bee said of our lawe Per varios vsus legem experientia fecit Long experience many trialles of what was best for the common good did make the Common lawe But vppon what reason then doth Polidor Virgill other writers affirme that King William the Conqueror was our Lawegiuer caused all our lawes to bee written in French Assuredly the Norman Conqueror found the auncient lawes of England so honorable profitable both for the Prince people as that he thought it not fitt to make any alteration in the fundamentall pointes or substance thereof the change that was made was but in formulis iuris he altered some legall formes of proceeding to honor his owne language for a marke of Conquest withall he caused the pleading of diuers Actions to be made entred in French sett forth his publique Ordinances Acts of Counsell in the same tongue which forme of pleading in French continued till 36. Edw. 3. when in regard that the French tongue begann to growe out of vse which for many yeares after the Norman Conquest was as common as the English among the Gentry of England it was ordained by Parliament that all pleas should bee pleaded debated Iudged in the English tongue entred enrolled in Latine And as for our statutes or Acts of Parliament the billes were for the most part exhibited in French passed and enrolled in the same language euen till the time of King H. 7. And so are they printed in Rastalles first Abridgment of statutes published in the yeare 1559. But after the begining of King Henry 7. his raigne wee finde all our Acts of Parliament recorded in English Onely our Reports of the Cases resolutions and Iudgments in the lawe whereof our bookes of the lawe do consist haue euer vntill this day beene penned published in that mixt kinde of speech which wee call the lawe French differing indeede not a litle from the French tongue as it is now refined and spoken in Fraunce as well by reason of the words of Art and forme called the Tearmes of the lawe as for that wee doe still retaine many other old wordes Phrases of speech which were vsed foure hundred yeares since are now become obsolete out of vse among them but are growne by long continuall vse so apt so naturall so proper for the matter subiect of these Reports as no other language is significant enough to expresse the same but onely this lawe french wherein they are written And this is the true onely cause why our Reports other books of the lawe for the most part are not sett forth in English Latine or the moderne french for that the proper peculiar phrase of the common
cap. 2. enact en cest Realme est declare que les Royes de Engleterre are lawfull Kinges and Emperours of the said Realme of England and of this land of Ireland Issint per l'act de 16. R. 2. cap. 5. communement appell le Statute de Praemunire est auxi declare That the Crowne of England hath euer bin so free as that it hath bin subiect to none but immediatly vnto God per le Statute de 25. H. 8. enact en Engleterre establish en cest Realme 28. Henr. 8. cap. 20. ou est recite que les Realmes d'Engleterre de Ireland recognising no Superior vnder God but onely the King haue bin and yet are free from subiection to any mans lawes but onely to such as haue bin made and ordained within the faid Realmes c. Darrainment la Corone D'engleterre en plusors auters acts de Parliament est appell Imperiall Crowne la Corone de Ireland est appendant a ceo 28. Henr. 8. cap. 20. vnite knitt al Imperiall Corone D'engleterre 33. H. 1. cap. 1. Car coment que Brittany fuit vnfoits subiect al Empyre de Rome que Ireland ne fuit vnques vncor ceo fuit abandon tout ousterment relinquish per le Emperour de Rome Anno Domini 428. quant ceo fuit apres reduce al Monarchy tiel Monarcha fuit vncor est vn absolute Emperour accordant a ceo que Cassaneus in Catologo gloriae Mundi dit Reges absoluti habent Imperium dici possunt Imperatores Et il cite le text 1. Regum cap. 8. Hoc erit ius Regis qui imperaturus est vobis auxi il dit Rex Angliae est absolutus Monarcha in Regno suo Et pur ceo le Roy D'engleterre esteant vn Emperout deins ses Dominions poet accordant al rule avantdit creare Comitem Palatinum Et sicome le Roy D'engleterre ad absolute power de creater countee Palatine issint il ad create plusors countees Palatines en ambideux Realmes 1. En Engleterre le countee Palatine de Chester suit create en temps del Williain le Conquerour Camden fol. 464. Et Matth. Paris histor magn 406. appell le countee de Chester Comes Palatiâ— 2. le county Palatine de Durham qui statim á tempore conquestus comitatus Palatinus iudicatus est Camden fol. 600. Mes le common opinion est que R. 1. create l'Evesque Pudsey le primer countee Palatine de Durham 3. le county Palatine de Lancaster que fuit erect en temps Edw. 3. Plow Comment 215. b. Et ceux 3. counties tantsolement ont estre counties Palatines en Engleterre Lar Ely coment que fuit vn liberty d'aver conusans de touts causes secular graunt per le Roy Edgar appell Saint Etheldreds liberty ne fuit vnques county Palatine les Seigniors Marchers sur les Marches de Gales coment que ils avoent Roiall Seigniories en lour severall Territories 19. Henr. 6. 12. 152. 11. Henr. 4. 40. vncor nul d'eux avoit touts les priviledges del countee Palatine En Ireland 3. Palatinates fueront create en temps H. 2. le primer en Leinster que fuit graunt al county Strongbow per tout cest Province le second en Meth graunt al Sir Hugh de Lacy l'eigne le 3. en Vlster graunt al Sir Hugh de Lacy le puisne Mes apres quant William le Marshall D'engleterre aiant marrie le file heire de Strongbow ad issue 5. fitz 5. files le 5. sitz esteant morts sans issue le Seigniory de Leinster discendoit a les 5. files sur partition fait enter eux chescun ad entire county allott a luy viz. le county de Catherlogh fuit allott al eigne le couÌ„ty de Wexford al second le county de Kilkenny al tierce le county de Kildare al quart le Territory de Leix que est ore le Queenes county al cinquesme sur ceo chescun de eux ad vn severall county Palatine touts les liberties prerogatives en sa severall purparty come Strongbow le Marshall avoent en l'entier Seigniory de Leinster Come si 3. parceners sont d'un Mannor queux font partition chescun d'eux avera Mannor court Baron deins sa purparty 26. Henr. 8. 4. Ily avoit auxi certeyn Roiall liberty deins le county de Kerry Desmond graunt per Edw. 1. al Thomas fitz Anthony autiel en county de Typperary graunt al countee de Ormound per Edw. 3. que solement continue a cest iour ou touts les auters sont resume ou extinguish AUxi chescun countee Palatine create per le Roy D'engleterre est Seignior del vn entier county ad en ceo iura regalia quae iura regalia consistont en 2. principall points viz. en Royall iurisdiction en Royall Seigniory Per reason de son Royall iurisdiction il ad touts les hault Courts Officers de Iustice que le Roy ad per reason de son Royall Seigniory il ad touts les Royall seruices Royall Escheats que le Roy ad pur ceo cest county est meerement disioine seperate del Lorone come est dit en le Case del Dutchy Plow 215. b. Issint que nul breefe del Roy courge la forsque breefe de Error que esteaÌ„t le dernier ressort appeall est solement except hors de touts lour Charters 15. Eliz. Diet. 321. 345. 34. Henr. 6. 42. Issint en Ireland que est realme aperluy erroneous Idgement done en le cheefe place la serra revers en Banke le Roy en Engleterre Et Bracton lib. 3. titul de Corona cap. 8. dit que Comites Palatini regalem habent potestatem in omnibus saluo Dominio domino Regi sicut Principi Le Royall iurisdiction de countee Palatine appâ—eâ—t en lâ— Charter del Edw. 3. graunt per authority de Parliament per que le Palatinate de Lancaster est erect ou le Roy graunt al Iohn de G. Duke de Lancaster quod habeat infra comitatum Lancastriae Cancellariam suam ac breuia sua sub sigillo suo pro officio Cancellariae deputando consignanda Iustitiarios suos tam ad placita Coronae quam ad quaecunque alia placita communem legem tangentia tenend ac cognitiones corundem quascunque executiones per breuia sua ministros suos ibidem faciend quaecunque alia libertates iura regalia ad comitatum Palatinum pertinentia adeò liberé intogré sicut Comes Cestriae infra â—undem comitatum Cestriae dignoscitur obtinere c. Lest Charter de Lancaster ad relation al Roiall liberties del county Palatine de Chester que avoit mesme les Courts iurisdiction coment que le Charter del Wil. le Conquerour que fait Hugh Lupus le primer countee de Chester soit generall viz. d'aver
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
causes that come in question either quaestio facti or questio Iuris must first bee decided before a man can receaue the benefitt of the lawe for as the wise man saieth Deus fecit hominem rectum sed ipse miscuit se infinitis quaestionibus what a meritorious worke is it to resolue these troublesome questions which arise in the Ciuill life of man either by laying open the truth of the fact or by clearing the doubtfull point in lawe that speedie equall Iustice may bee done vnto all euery one may haue enioy his owne in peace how often would the truth bee concealed suppressed How oft would fraud ly hid vndiscouered How many times would wrong escape passe vnpunished but for the wisdome diligence of the Professors of the lawe Doth not this profession euery day comfort such as are greeued counsell such as are perplexed releeue such as are circumuented preuent the ruine of the improuident saue the innocent support the impotent take the Pray out of the mouth of the oppressor protect the Orphan the widowe the stranger Is shee not Oculus caeco pes claudo as Iob speaketh Doth shee not withall many times stretch forth brachium saculare in defence of the Church true Religion All which are workes of mercy of singular merit Againe doth shee not register keepe in memory â—he best Antiquities of our Nation Doth shee not preserue our auncient Customes forme of gouernment wherein the wisedome of our Auncestors doth shine farr aboue the policie of other kingdomes Are not the Recordes of her actes proceedings so precious as they are kept in the Kinges Treasury like Iewelles of the Crowne reputed a principall part of the Roiall treasure Lastly is not a worthie Prosessor of the lawe a starr in the firmament of the common-wealth Is he not Lux in tenebris wheresoeuer hee dwelleth Is not his house as it were an Oracle not onely to a Towne or Citty but to a whole country round about him So as hee may truly say of the people that seeke his counsell as Apollo Pithius spoke in Ennius of such as resorted vnto his Temple Suarum rerum incerti quos ego ope mea Ex incertis Certos compotesque consilij Deâ—itto ne res temere tractent turbidas Therefore one of the Romaine Emperors doth not without cause giue this honorable testimony of the Professors of the lawe Aduocati qui dirimunt ambigua facta causarum suaeque desensionis viribus tam publicis in rebus quam in priuatis lapsa erigunt satigata reficiunt non minus humanâ— generi prouident quam si praelijs atque vulneribus patriam parentesque saluarent neque enim solos nostro Imperio militare credimus qui gladijs elypeis Thoracibus nituntur sed etiam aduocatos Militant namque causarum Patroni qui laborantium spem vitam posteros defendunt For if it bee a worthie deede as doubtlesse it is for a man to defend his freindes or country with his right hand his sword onely what an excellent seruice is it to defend them with his speech his reason wisedome wherein the excellency of man doth principally consist Therefore both the Schooleman the Politike do preferr Iustice before Fortitude the Statute of 31. Henr. 8. cap. 10. which ranketh the great Officers of the kingdome in their due places doth place the Constable Marshall beneath the Chauncellor in all assemblies of Counsell For Ille semel saieth Cicero speaking of the Martiall man Hic semper proderit Reipublicae meaning the learned man of the long robe And in very troth as the common-wealth is much beholding to the Profession of the lawe so are the Professors of the lawe not a litle beholding to the common-wealth For if they procure preserue her peace her plenty doth not shee requite them againe with riches with honor Doth shee not aduance them to her cheefe Benches Offices trust them with the liuelyhoode liues of all her people Neither do our learned men of the lawe growe to good estates in the common-wealth by any illiberall meanes as enuy sometime suggesteth but in a most ingenous worthie manner For the fees or rewardes which they receaue are not of the nature of wages or pay or that which wee call salery or hire which are indeede duties certeine growe due by contract for labour or seruice but that which is giuen to a learned Counsellor is called honorarium not merces being indeede a gift which giueth honor as well to the Taker as to the giuer neither is it certeine or contracted for for no price or rate can bee sett vppon Counsell which is vnualuable inestimable so as it is more or lesse according to circumstances namely the ability of the Client the worthinesse of the Counsellor the weightynesse of the cause the custome of â—he Country Breefely it is a gift of such a nature giuen taken vppon such tearmes as albeit the able Client may not neglect to giue it without noate of ingratitude for it is but a gratuity or token of thankefullnesse yet the worthie Counsellor may not demaund it without doing wrong to his reputation according vnto that morall rule Multa honestè accipi possunt quae tamen honesté peti non possunt Lastly it is an infallible argument that the estates of such as rise by the lawe are builded vppon the foundation of vertue in that Gods blessing is so manifestly vppon them not onely in raising but in preseruing their houses posterities whereof there are examples not a fewe those not obscure in euery shire of England of the English Pale in this kingdome of Ireland If then our common lawe of England bee cleare from those vulgar imputations which ignorance doth conceaue enuy report thereof if the Profession or science of the lawe bee more noble more necessary more meritorious then any other temporall Art or Science if the dignity of this profession do accordingly dignifie all the Professors thereof which are qualified with learning and vertue fitt for so worthy a Calling for such as are ignorant or dishonest as they are to receiue no grace by the Profession so the profession is to suffer no disgrace by them how highly is that person honored whose true merit hath aduaunced him to the most transcendent place of honor that can possibly bee attained by that Profession This is that great place or Office which your Lordship most worthily holdeth long may you hold the same vnder his Maiestie which though it bee the highest pinnacle of honor that any secular person of the long Robe can in re or spe aspire to vnder any Monarch yet was it giuen vnto your Lordship nec expetenti nec expectanti by the wisest most renowned Queene that euer raigned in Europe who leauing her Crowne together with the faithfull seruants thereof vnto the wisest Iustest King vppon
earth his Maiestie in his infallible Iudgement wisedome confirmed this honorable Office vnto your Lordship not onely with a fulnesse of grace to your selse but with an augmentation of honor to your posterity For what encrease of honor can the Lord Chauncellor receaue in his owne person being that in England which Ioseph was in Egypt the second person of the Realme in the administration of all Ciuill affaires being made as it were cheefe Steward of his masters house the cheefe dispenser of his bounty Iustice by the deliuery custodie of the great Seale which may properly bee called the key of the Kingdome Being the Sole Iudge of that high Court which is Sedes misericordie therefore exalted aboue all seates of Iustice where hee hath Potestatem absolutam as well as regulatam in binding loosing the proceedings of the lawe in deciding of causes by the rules of his owne conscience Breefely what can there bee more done to the man whom the King will honor Is hee not ad latus Principis to attend him Is hee not Auricularius Principis to aduise him Doth not the King make him a conduit of his wisedome when hee vseth his voice tongue to declare his Roiall pleasure And doth he not make him an Organ of his goodnesse when hee trusteth him with his mercy conscience in sweetening the bitter waters of Summum ius in mittigating the rigour of the lawe vnto his people In a word doth he not represent reuerentiam Principis in the power authority of his Office And do not the people feare honor the King euen in the grauity dignity of his person And are not all these honors made more honorable exceedingly raised in true estimation value when the same are enioyed in a most famouâ— flourishing common-wealth do proceede as Sunne beames from the most religious learned wise the most renowned excellent King of the world If then the greatest honors do of right belong to the greatest vertues for what is honor but a reflection reward of vertue how vertuous a person must he bee with what giftes graces with what abilities ornaments both of art nature must hee bee endowed who can worthily supply that great honorable Office Assuredly besides the naturall faculties powers of his mind which hee ought to haue in great perfection besides the outward comelinesse dignity of his person for Gratior est pulchro veniens 〈◊〉 corpore virtus Sapientia hominis lucet in vulâ—ueius saieth Solomon he must bee furnished withall learning that hath any relation to the publike good Diuinity Lawe Policie Morality specially Eloquence to impart communicate all the rest Hee must withall haue a long vniuersall experience in all the affaires of the common-wealth he must be accomplished absolute in all points of Grauity Constancy Wisedome Temperance Courage Iustice Piety Integrity all other vertues fitt for Magistracy gouernment yet so as the same bee seasoned tempered with affability gentlenesse humanity courtesie howbeit without descending or diminishing of himselfe but still retaining his dignity state honor Breefely hee must bee a person of such vertue worthinesse as his life may bee a Censure his example a Mirror for all other Magistrates These are the excellencies perfections wherewith that great Officer must bee qualified adorned And this Idaea haue I conceaued of him not out of mine owne imagination or weake discourse of reason but out of an humble obseruation of your Lordship in whom not onely those abilities vertues before expressed but many other graces ornaments do shine so brightly as the weakest Iudgement may collect out of the same a most exquisite Patterne of a most excellent Chauncellor But perhappes it would bee thought more comely for mee to pronounce this of your Lordship to others collaterally then to speake it to your Lordship of your selfe directly though what can I declare in this kinde to others but that which the world hath long since knowne acknowledged yet is there no man liuing whom it may better become then my selfe to praise honor your Lordship euery way whose fauor hath beene as it were a good Angell vnto mee to whom I stand bound for so many benefits as that which might carry a shewe of adulation in another must needes bee thought but Duty gratitude in mee Howbeit besides my particular obligation there is no Professor of the lawe that is not obliged to do your Lordship all honor for the honor you haue done to the Profession of the lawe whereof your Lordship hath beene during all your time a principall light ornament And nowe my most honorable good Lord my deuotion to the Profession of the lawe to your Lordship the most noble Patron of the Professors thereof hauing enlarged this discourse beyond the measure limitts of an Epistle therefore I giue it the name of a Preface it remaineth that I present vnto your Lordship the â—ude collection of a fewe selected Cases which since the beginning of his Maiesties Raigne haue beene argued resolued adiudged in this Realme of Ireland These are the first fruites of my labor in this kinde of learning are therefore a due proper oblation to your Lordship for that my studie haue yealded the better fruite being cherished by the Sunne-beames of your Lordships fauor This is also the first Report of Cases arising in Ireland ruled in the Courts of Iustice there that euer was made published to the world since the lawes of England were first established in this kingdome Lastly I haue made choise of such speciall Cases as are either proper for this kingdome onely or else doe conteine for the most part points of learning not common or at least not largely debated in our bookes of the lawe But for as much as Natura incipit ab imperfectis as the Schooleman saieth Therefore these weake imperfect beginnings do seeke your Lordships protection till time shall giue them more strength reputation In the meane time if your Lordships Iudgement shall allowe the publication heereof I shall haue the lesse cause to doubt the censure of any other specially of my Maisters of the lawe in England if any of these bookes happen to come to their handes to whom I may truly make this protestation that these Cases being resolued adiudged in the Courts of Iustice in Ireland are not collected published by mee to encrease the number of the bookes of lawe in England or to interrupt the better studies of the Students there by reading of this collection but principally for the vse and benefitt of our practisers heere in Ireland and to moue and incite others in this Kingdome by this first example which doth onely open shew them the way to performe the like seruice heereafter to posterity Neither haue I besought your Lordships patronage for these Cases of Ireland
artificiale come Aristotle dit Ethycorum libr. 5. Et auxi Politicorum primo il dit a cest effect que money fuit primerment signe imprinte ove certeine charecter al entent que le people acceptera ceo sur credit del Prince ou state que publish ceo sans examination ou triall del Pois ou Purity Et a cest entent Molineus ad cest rule Q. 99. De Iure non refert siue plus siue minus argenti insit modo publica proba legitima moneta sit Et Baldus l. singulari dit in pecunia potius attenditur vsus cursus quam materia Et Seneca lib. 5. de beneficijs aes alienum habere dicitur qui aureos debet qui corium forma publica percussum Et fuit dit que le Roy ad mesme le prerogative a doner valewe al base mettall per son Impression ou Charecter come il ad a doner estimation al vn meane person per imparting le Charecter del honor a luy Sic fiet viro quem Rex honorare desiderat Et issint fuit conclude que apres que les Esterlings per commaundment del Roy del Engleterre ont fait cest pure English money que á nomine opificum fuit appell Esterlinge ou sterling money le standard de quel money ad estre touts foits le plus fixt vnmoueable standard de money en tout le mounde que ad estre grand honor al nostre nation car en touts auters Realmes states les Standardes de lour monies sont plus vnsteddy variable Touts monies coigne per l'authority del Roy D'engleterre aiant son Charecter impression non solement en Engleterre mes auxi en Scotland Ireland ont estre sterlinge monies issint appell repute accept per toutes gents soit le matter de ceo mixt ou pure Et ceo appiert per l'Ordinance que est appell statutum de moneta magnum per quel touts monies sont prohibit forsque le money del Engleterre de Ireland de Escosse que fuit properment le sterling money Et pur ceo Freherus libro de re Nummaria vbi enumerat varias variarum gentium monetas Sterlingi inquit habentur in Angliâ Scotiâ Hybernia Et Bodin libr. 6. de Republica cap. 3. parlant del money de Scotland en Escosse dit il sont deux Livers fort differentes l'un de Esterlinges l'autre vsagere Et certes le vsuall Scottish liver est semble al French liver le Liver de Esterlings currant la est celle D'engleterre Et que base ou Mixt Money poet estre currant pur sterling appiert per le dit Case de Pollards Dier 82. b. ou est dit Quod currebat quaedam moneta in Anglia loco sterlingi quae vocabatur Pollardes scilicet duo Pollardi pro vno sterlingo 5 FUit resolve que coment que cest Mixt Money suit fait destre currant deins cest Realme de Ireland solement vncor ceo poet estre bien dit Currant loyall money D'engleterre pur 2. causes 1. pur ceo que cest Realme est forsque member del Imperiall Corone D'engleterre ceo appiert 3. Henr. 7. fol. 10. a. ou question fuit propound a les Istices per Hobart Atturney generall Si quis sciens monetam ad similitudinem monetae Regis Angliae contrafactam talem monetam in Angliam extra Hyberniam deferat si sit proditio necne dixerunt quod Hybernia est quasi membrum Angliae ibidem legibus Angliae vtuntur authoritate Regia faciunt monetam Et a cest entent est recite en le statute de faculties enact en cest Realme 28. Henr. 8. cap. 19. That this the Kings land of Ireland is a member appendant and rightfully belonging to the Imperiall Crowne of the Realme of England and vnited to the same Et en l'Act de 33. Henr. 8. cap. 1. per que le stile title del Roy de Ireland fuit done al Henr 8. ses heires successors est ouster enact que le Roy enioyera cest stile title touts auters Royall preheminences prerogatives dignities As vnited and annexed to the Imperiall Crowne of the Realme of England 2 Est appell loyall money D'engleterre en respect del lieu de Coinage que fuit en Engleterre viz. En le Tower de London Car coment que en auncient temps le Roy avoit plusors Mints en cest Realme sicome il avoit en Engleterre vncor depuis le commencement del raigne de la Roigne Elizabeth touts les Mints ont estre reduce al vn lieu viz. al Tower de London Et â—eo fuit fait sur von reason de state pur avoider falsification des monies Et pur ceo devant le Norman Conquest touts monies fueront coigne en Monasteries Car fuit presume que en tielx measons nul falsity ou corruption serroit â—rove ceo agree ove le prudence del Romaine state que navoit forsque vn Minte pur tout Italy Et ceo fuit en le Temple de Iuno al Rome que pur cest cause fuit appell Iuno moneta a cest entent l'Emperour Charle Maine fesoit vn ley en ceux parolx viz. De falsis monetis quia in diuersis locis contra Iustitiam fiunt volumus vt in nullo alio loco moneta nisi in Palatio nostro fiat Choppinus de Domanio Franciae fol. 217. a. vncor en 28. Edw. 1. cest prudent Roy pur le facility d'eschaunge causast plusors Mintes desire establish en seuerall villes de Engleterre vn en le Tower de London ove 30. furnasses auter al Canterbury ove 8. furnasses auter al Kingston super Hull ove 4. furnasses auter al Newcastle sur Tine ove 2. furnasses auter al Bristow ove 4. furnasses auter al Excester ove 2. furnasses Tractat. de moneta Angliae fait en temps Edw. 1. que â—eo trove en le Library de Sir Robert Cotton que fuit le liver de Seignior Burleigh iadis Graund Treasurer D'engleterre vid. auxi les Close-rolls 29. Edw. 1. in Turri London ceo appiert auxi per l'inscription de divers auncient Coines sur queux sont expresse les nosmes des Cytties ou fueront coined accordant al verse fait en temps Edw. 1. prise per Stow hors de Robert le Brun vn auncient M. S. Edward did smite round penny halfepenny farthing donques ensuist On the kinges side was his head and his name written On the Crosse side the Citty where it was smitten Et mesme cest Roy aiant establish vn Mint al Dublin ove 4. furnasses aiant constitute Alexander Norman de Luik maister des monies la come appiert en plusors Recordes in Archivis Castri Dublini apres viz. 32. Ed. 1. quant il avoit alter le forme del
Breeue hee was constituted Vicar generall of the Sea of Rome and tooke vppon him the stile and title of vicar generall in the said seuerall dioceses 3 That hee did exercise Ecclesiasticall Iurisdiction as Vicar generall of the Sea of Rome by instituting diuers persons to benefices with cure of soules by graunting dispensations in causes Matrimoniall by pronouncing sentences of diuorce betwene diuers married persons and by doing all other actes and things pertayning to Episcopall iurisdiction within the said seuerall Dioceses against our Souerainge Lord the King his Crowne and dignitie Royall and in contempt of his Maiestie and disherison of his Crowne and contrary to the forme and effect of the statute c. To this inditement Lalor pleaded not guiltie and when the issue was to bee tried the name and reputation of the man and the nature of the cause drewe all the principall gentlemen both of the Pale and Prouinces that were in towne to the hearing of the matter At what time a substantiall lury of the Cittie of Dublin being sworne for the triall and the points of the Inditement being opened and set forth by the Kings Seriant the Atturney generall thought it not impertinent but very necessary before hee descended to the perticular enidence against the prisoner to informe and satisfie the hearers in two points Why Lalor was indited vppon the old statute of 16 R. 2. 1 What reason moued vs to grounde this inditement vppon the olde statute of 16 Richard 2. rather then vppon some other later lawe made since the time of King Henr. 8. 2 What were the true causes of the making of this lawe of 16. Rich. and other former lawes against Prouisors and such as did appeale to the Court of Rome in those times when both the Prince and people of England did for the most part acknowledge the Pope to be the thirteenth Apostle and only oracle in matters of Religion and did followe his doctrine in most of those points wherein wee now dissent from him 1 For the first poynt wee did purposely forbeare to proceede against him vppon any latter law to the end that such as were igâ—onorant might bee enformed that long before King Henr 8. was borne diuers lawes were made against the vsurpatâ—on of the Bishop of Rome vppon the rights of of the Crowne of England welny as sharpe and as seuere as any statutes which haue beene made in later times and that therefore wee made choyse to proceede vppon a lawe made more then 200. yeares past when the King the Lords and Commons which made the lawes and the Iudges which did interpret the lawes did for the most part follow the same opinions in Religion which were taught and held in the Court of Rome the treâ— causeof making the stattute of 〈◊〉 R 2 other statuts against pouisors 2 For the second poynt the causes that moued and almost enforced the English nation to make this and other statutes of the same nature were of the greatest importance that could possible arise in any state For these lawes were made to vphold and maintaine the Soueraingtie of the King the liberty of the people the common lawe and the common-weale which otherwise had beene vndermined and viterly ruined by the vsurpation of the Bishop of Rome For albeit the Kings of England were absolute Emperours within their Dominions and had vnder them as learned a Prelacie and Cleargie as valiant and prudent a Nobility as free and wealthy a Commonalty as any was then in Christendome yet if wee looke into the stories and records of these two Imperiall kingdomes wee shall finde that if these lawes of Prouision and Praemunire had not beene made they had lost the name of Imperiall and of Kingdomes too and had beene long since made Tributary Prouinces to the Bishop of Rome or rather part of S. Peters patrimony in demesne Our Kings had had their Scepters wrested out of their hands their Crownes spurned of from their heads their neckstrod vppon they had beene made Laquaies or footmen to the Bishop of Rome as some of the Emperours and French Kings were our Prelats had beene made his chaplaines and Clearks our Nobilitie his vassals and seruants our Commons his slaues and villaines if these Acts of manu-mission had not freed them In a word before the making of these Lawes the flourishing Crowne and Common-wealth of England was in extreame danger to haue beene brought into most miserable seruitude and slauery vnder collour of religion and deuotion to the Sea of Rome And this was not onely seene and felt by the King and much repined at and protested against by the Nobility but the Commons the generall multitude of the Subiects did exclame and crie out vppon it The statuts of praemunire made at praier of the commoÌ„s For the Commons of England may bee an example vnto all other Subiects in the world in this that they haue euer beene tender and sensible of the wrongs and dishonors offred vnto their Kings and haue euer contended to vphold and maintaine their honor and Soueraigntie And their faith and loyaltie hath beene generally such though euery age hath brought forth some particular monsters of disloyaltie as no pretence of zeale or religion cold euer withdrawe the greater part of the Subiects to submitt themselues to a foreine yoke no not when Popery was in her height and exaltation whereof this Act and diuers other of the same kinde are cleare and manifest testimonies For this Act of 16. Richard 2. was made at the prayer of the Commons which prayer they make not for themselues neither shew they their owne selfe loue therein as in other Bills which containe their greeuances but their loue and zeale to the King and his Crowne When after the Norman Conquest they importuned their Kings for the great Charter they sought their owne liberties and in other bills preferred commonly by the Commons against Shiriffs Escheators Purueyors or the like they seeke their owne profit and ease but heere their petition is to the King to make a lawe for the defence and maintenance of his owne honor The effect of the statut of 16. R. 2. cap. 5. They complaine that by Bulls and processes from Rome the King is depriued of that iurisdiction which belongeth of right to his Imperiall Crowne that the King doth loose the seruice and counsell of his Prelats and learned men by translations made by the Bishop of Rome That the Kings lawes are defeated at his will the Treasure of the Realme is exhausted and exported to enrich his Court and that by those meanes the Crowne of England which hath euer beene free and subiect vnto none but immediatly vnto God should be submitted vnto the Bishop of Rome to the vtter destruction of the King and the whole Realme which God defend say they and therevppon out of their exceeding zeale and feruencie they offer to liue and die with the king in defence of the liberties of the Crowne And
lastly they pray and require the King by way of Iustice to examine all the Lords in Parliament what they thought of these manifest wrongs and vsurpations and whether they would stand with the King in desence of his Royall liberties or no which the King did according to their petition and the Lords Spirituall and Temporall did all answere that these vsurpations of the Bishop of Rome were against the liberties of the Crowne and that they were all bound by their alleageance to stand with the King and to mantaine his honor and prerogatiue And therevppon it was enacted with a full consent of the three Estates that such as should purchase in the Court of Rome or elsewhere any Bulls or Processes or other things which might touch the King in his Crowne and dignitie Royall and such as should bring them into the Realme and such as should receaue them publish them or execute them they their Notaries Proctors Mantainors and Counsellors should bee all out of the Kings protection their lands and goods forfeited to the King their bodies attached if they might bee sound or else processe of Praemunire facias to bee awarded against them Vppon these motiues and with this affection and zeale of the people was the statute of 16. Rich 2 made wherevppon wee haue framed our inditement Now let vs looke higher and see whether the former lawes made by King Edw 3. and King Edw. 1. against the vsurpation of the Bishop of Rome were not grounded vppon the like cause and reason The effect of the statut of 38. Edw. 3 cap. 1. The statute of 38. Edw. 3. cap. 1. expressing the mischiefes that did arise by Bâ—â—eues of citation which drewe the bodies of the people and by Bulls of prouision and reseruation of Ecclesiasticall benefices which drewe the wealth of the Realme to the Court of Rome doth declare that by these meanes the auncient lawes customes and franchises of the Realme were consounded the Crowne of our Soueraigne Lord the King deminished and his person falsely defamed the Treasure and riches of the land carried away the Subiects of the Realme molested and impouerished the benefices of holy Church wasted and distroyed Diuine seruice Hospitalitie Almesdeeds and other workes of Charitie neglected The statute of 27. Ed. 3. cap. 1. Againe 27 Edw 3 cap. 1. vppon the greeuous and clamorous complaint for that phrase is there vsed of the great men and Commons touching Citations and Prouisions it is enacted that the offendors shall forfeit their lands goods and Chattels and their bodies bee imprisoned and ransomed at the Kings will The statute of 25 Ed. 3. reciting the statute of 25. Ed. 1 But in the statute of 25. Edw. 3. wherein the first lawe against Prouisors made 25. Edw. 1. is recited there is a larger declaration of these inconueniences then in the two last Actes before mentioned For there all the Commons of the Realme doe greuously complaine that where the holy Church of England was first founded in estate of Prelacio by the Kings and Nobilitie of that Realme and by them endowed with great possessions and reuenewes in lands rents and Aduowsons to the end the people might bee informed in Religion Hospitality might bee kept and other works of Charitie might bee exercised within the Realme And whereas the King and other founders of the said Prelacies were the rightfull Patrons and Adowees thereof and vppon avoydance of such Ecclesiasticall promotions had power to aduance therevnto their kinsemen friends and other learned men of the birth of that Realme which being so aduanced became able and worthy persons to serue the King in Counsell and other places in the Common-weale The Bishop of Rome vsurping the Seigniory of such possessions and benefices did giue and graunt the same to Aliens which did neuer dwell in England and to Cardinals which might not dwell there as if hee were rightfull Patron of those benefices whereas by the lawe of England hee neuer had right to the Patronage thereof whereby in short time all the spirituall promotions in the Realme would bee ingrossed into the hands of Strangers Canonicall Elections of Prelats would be abolished workes of Charity would cease the founders true PatroÌ„s of Churches would be disenherited the Kings Counsell would bee weak'ned the whole kingdome impouerished the lawes rights of the Realme destroyed Vppon this complaint it was resolued in Parliament that these oppressions greeuances should not be suffted in any manner thereore it was enacted that the King his Subiects should thenceforth enioy thei rights of Patronage that free elections of Archbishops Bishops and other Prelates electiue should bee made according to the auncient graunts of the Kings progenitors other founders that no Bulls of Prouision should be put in execution but that the Prouisors should be attached fined ransomed at the Kings will withall imprisoned till they had renounced the benefits of their Bulls satisfied the partie greeued and giuen suerties not to committ the like offence againe These lawes made by such as did professe the Romish Religion Nowe Maister Lalor what thinke you of these things did you beleeue that such lawes as these had beene made against the Pope 200. 250. 300. yeares since was King Henr. 8. the first Prince that opposed the Popes vsurped authority were our Protestants the first Subiects that euer complained of the Court of Rome of what Religion thinke you were the propoundors and enactors of these lawes were they good Catholikes or good Subiects or what were they You will not say they were Protestants for you will not admitt the reformed Religion to bee so auncient as those times neither can you say they were vndutiefull for they stroue to vpohold their liege Lords Soueraignety Doubtelesse the people in those daies did generally embrace the vulgar errours and superstitions of the Romish Church and in that respect were Papists as well as you but they had not learned the newe doctrine of the Popes Supremacie and transcendent authority ouer Kings They did not beleeue hee had power to depose Princes and discharge Subiects of their alleageance to abrogate the fundamentall lawes of kingdomes and to impose his Canons as binding lawes vppon all nations without their consents they thought it a good point of Religion to bee good Subiects to honor their King to loue their country and to mantaine the lawes and liberties thereof howsoeuer in other points they did eâ—re and were mislead with the Church of Rome So as now Maister Lalor you haue no excuse no euasion but your conscience must condemne you as well as the lawe since the lawemakers in all ages and all religious Papists and Protestants doe condemne you vnlesse you thinke your selfe wifer then all the Bishops that were then in England or all the Iudges who in those daies were learned in the Ciuill and Canon lawes as well as in the Common lawes of England Lawes against Proâ—isors made in Ireland But you being
recumbere dignus suit exempla sectamur Nunquid reuerendissimum patrem nostrum Columbam eius successores viros à Deo dilectos diuâ—nis pagâ—â—â—s contraria sapuisse aut egisse credendum est In this disputation or dialogue two things may bee obserued first that at this time the authority of the Bishop of Rome was of no estimation in these Ilands next that the Primitiue Churches of Briâ—tany and Ireland were instituted according to the forme and discipline of the East Churches and not of the West and planted by the disciples of Iohn and not of Peter Thus much for the time of the Brittons The Pope had no iurisdiction in England in the time of the Saxons For the Saxons though King Ina gaue the Peter pence to the Pope partly as Almes and partly in recompence of a house erected in Rome for entertainment of English pilgrimes yet it is certaine that Alfred and Athelstane Edgar and Edmund Canutus and Edward the Consessor and diuers other Kings of the Saxon race did giue all the Bishopricks in England Per annulum baculum without any other ceremony as the Emperour and the French King and other Christian Princes were wont to doe They made also seuerall lawes for the gouernment of the Church Among others Saint Edward begins his lawes with his protestation that it is his Princely charge Vt populum Domini super omnia sanctam Ecclesiam regat guberâ—et And King Edgar in his Oration to his English Cleargie Egâ— saieth hee Constantini vos Petri gladium habetis iungamus dextras gladium gladio copulemus vt ciâ—ciantur extra Castra leprosi purgetur sanctuarium Domini So as the Kings of England with their owne Cleargie did gouerne the Church and therein sought no ayd of the Court of Rome And the troth is that though the Pope had then long hands yet hee did extend them so farre as England bycause they were full of businesse neerer home in drawing the Emperour and the French King vnder his yoke The first vsurpatioÌ„ of the Pope vpon the crowne began in the time of king William the CoÌ„querour But vppon the conquest made by the Norman hee apprehended the first occasion to vsurpe vppon the liberties of the Crowne of England For the Conquâ—rour came in with the Popes Banner and vnder it wonne the battaile which gott him the garland and therefore the Pope presumed hee might boldly plucke some flowers from it being partly gained by his countenance and blessing Heerevppon hee sent two Legates into England which were admitted and receaued by the Conquerour With them hee called a Synod of the Clergie and deposed old Stigand Archbishop of Canterbury bycause he had not purchased his Pal in the Court of Rome hee displaced many Bishops and Abbots to place his Normans in their Romes By sending Legates into England And amongst the the rest it is to bee noted that the King hauing earnestly moued Wolstan Bishop of Worcester being then very aged to giue vp his staffe his answere was that hee would giue vp his staffe onely to him of whome hee first receaued the same Inter Epist Lanfr Archiepiscopi Cant. M. S. in Archiâ— Robert Coâ—â—on Eq. Aur. And so the old man went to Sanit Edwards Tombe and there offred vp his staffe and Ring with these words Of thee O holy Edward I receaued my staffe and my Ring and to thee I doe now surrender the same againe which pâ—oues that before the Norman Conquest the King did inuest his Bishops per annulum baculum as I said before In the time of William Ruffus the Pope atteÌ„pted to draw appeales to Rome but prâ—uailed not Thus wee see by the admission of the Popes Legates the first step or entrie made into his vsurped iurisdiction in England Albeit the King still retained the absolute power of inuesting Bishops and seemed onely to vse the aduise and assistance of the Legates in Ecclesiasticall matters for that no decâ—ee passed or was put in execution without his Royall assent therevnto Besides how farre forth hee submitted himselfe to the Pope it appeareth by a short Epistle which hee wrote to Gregory the. 7. in this forme Excellentissimo sanctae Ecclesiae Pastori Gregâ—rio gratia Dei anglorum Rex Dux Normannorum Willielmus salutem cum Aâ—…icitia Hubertus Legatus tâ—us Religiose Pater ad me veâ—iens ex tua parte me admonuit vt tibi successoribus tuis fidâ—lâ—tatem facerem de pecunia quam antecessores mei ad Romanâ—â— Ecclesiam â—â—â—…ere solebant melius cogiâ—arem Vnum admisi alterum non admisâ— fidelitatem facere nolui nec volo quia â—â—c ego promisi ncc antecessores â—â—os antecessoribus tuis id secrsse comperio Pecuâ—ia tribus ferè annis in Gallijs me agente negligentur collecta est nunc vâ—ro diâ—ina misericordia me in Regnum meum reuersâ— quod Collectum est per praefatum Legatum mittetur quod reliquum est per Legatos Lanâ—ranci Archichiscopi â—â—delis nostri cum opportunum fuerit transmittetur c. But in the time of his next successor King William Rufus they attempted to passe one degree farther that is to drawe appeales to the Court of Rome For Anselme being made Archbishop of Cauterbury and being at some difference with the King besought his leaue to goe to Rome vnder pretence of fetching his Pall. The King knowing hee would appeale to the Pope denied him leaue to goe and withall told him that none of his Bishops ought to bee subiect to the Pope but the Pope himselfe ought to bee subiect to the Emperour and that the King of England had the same absolute liberties in his Dominions as the Emperour had in the Empyre And that it was an auncient custome and lawe in England vsed time out of minde before the Conquest that none might appeale to the Pope without the Kings leaue and that hee that breaketh this lawe or custome doth violate the Crowne and dignitie Royall and hee that violates my Crowne saieth hee is mine enemie and a traytor How answere you this quoth the King Christ himselfe answeres you saith the Archbishop Tu es Petrus super hanc petram c. Wherewith the King was nothing satisfied And therevppon Anselme departing out of the Realme without licence the King seised his temporalities and became so exasperate and implacable towards the Bishop as hee kept him in perpetuall exile during his Raigne albeit great intercession were made for his returne as well by the Pope as the King of France In the time of king HeÌ„ry the first the Pope vsurpeth the donation of Bishopricks c. In the time of the next King Henr 1. though hee were a learned and a prudent Prince yet they sought to gaine a further point vppon him and to plucke a flower from his Crowne of greater value namely the patronage and donation of Bishoprickes and all other benefices Ecclesiasticall For Anselme being reuok't
sixteenth yeare of his Raigne graunted this priuiledge to the Church of England in these words viz. Quod qualiscunque consuetudo temporibus praedecessorum â—ostrorum hactenus in Ecclesia Anglicana fuerit obsâ—râ—â—tâ— quidquid iuris nâ—bis hactenus vindicauerimus de caetero in vniuersis singulis Ecclesijs Monasterijs Cathedralibus Conuentualibus totius regni Angliae liberae sint in perpetuum electiones quorumcumque Praelatorum maâ—orum minorum When Câ—â—â—nicall election began first in England Salua nobis haerâ—dibus nostris custodia Ecclesiarum Monasteriorum vacantium quae â—d nos pertinent Promittimus etiam quod nec impediemus nec impediri permittemus per ministros nostros nec procurabimus quin in vniuâ—rsis singulis Monasterijs Ecclesijs postquaÌ„ vacaucrint praelaturae quemâ—â—que voluerint liberé sibi praeficiaÌ„â— electores Pastorum petita tamen à nobis prius haeredibus nostris licentia eligendi quam non denegabimus nec differemus Et similiter post celebratam electionem nosler requiratur assensus quem non denegabimus nisi aduersus â—andem rationale proposuerimus legitimè probauerimus propter quod non debemus consentire c. But to returne to the cause of his great quarell with the Pope The Sea of Canterbury being voyd the Monkes of Canterbury sudenly and secretly without the Kings licence elected one Reignold their Subprior to be Archbishop who immediatly posted away to be confirmed by the Pope But when hee came there the Pope reiected him bycause he came not recommended from the King Here vppon the Monkes made suite to the King to nominate some fitt person to whose election they might proceed The King commends Iohn Gray Bishop of Nâ—rwich his principall Counsellor who was afterward Lord Iustice of this kingdome who with a full consent was elected by them and afterwards admitted and fully inuested by the King These two elections bred such a controuersie as none might determine but the Pope who gaue a short rule in the Case for he pronounced both elections void and caused some of the Monkes of Canterbury who were theÌ„ present in the Court of Rome to proceed to the election of Stephan Langton lately made Cardinall at the motion and suite of the french King who being so elected was forthwith confirmed and consecrated by the Pope recommended to the King of England with a flattering letter and a present of foure Rings set with precious stones which were of great value estimation in those daies King Iohns round and Kingly letter to the Pope Howbeit the King more esteeming this Iewell of the Crowne namely the patronage of Bishoprickes returned a round and Kingly answere to the Pope that inconsideratly rashly he had cassed and made void the election of the Bishop of Norwich and had caused one Langton a man to him vnknowen and bred vp and nourish't amongst his mortall enemies to be coÌ„secrated Archbishop without any due forme of election and without his Roiall assent which was most of all requisite by the auncient lawes and customes of his Realme That he merueiled much that the Pope himself the whole Court of Rome did not consider what a precious account they ought to make of the King of Englands friendship in regard that his one kingdome did yeeld them more profit and reuenew then all the other countries on this side the Alpes To conclude he would maintaine the liberties of his Crowne to the death he would restraine all his subiects from going to Rome And since the Archbishops Bishops and other Prelates within his dominions were as learned and religious as any other in Christendome his subiects should bee iudged by them in Ecclesiasticall matters and should not need to runn out of their owne countrey to beg Iustice at the hands of strangers The Pope curseth the King interdicteth the realme But what followed vppon this The Pope after a sharpe replie sendeth forth a Bull of malediction against the King and of interdiction against the Realme whereby all the Churches in England were shut vp the priests and religious persons were forbidden to vse any Liturgies or diuine seruice to marry to bury or to performe any Christian duety among the people This put the King into such a rage that he on the other part seised the temporalties of all Bishops and Abbots and confiscated the goods of all the Cleargie Then doeth the Pope by a solemne sentence at Rome depose the King and by a Bull sent into England dischargeth his subiects of their allegeance and by a legate sent to the King of France gaue the kingdome of England to him and his successors for euer These things brought such confusion and miserie to all estates and degrees of people in England as the King became odious to all his subiects as well to the Laytie as to the Cleargie For as the Bishops and religious people cursed him abroad so the Barons tooke armes against him at home till with much bloudshed they forced him by graunting the great Charter to restore King Edwards lawes containing the aunâ—ient liberties of the subiects of England The Pope being a spectator of this Tragedy and seeing the King in so weake and desperate estate sent a Legate to comfort him and to make a reasonable motion vnto him to witt that hee should surrender and giue vp his Crowne and kingdome to the Pope which should bee regraunted vnto him againe to hold in Feefarme and vassallage of the Church of Rome And that therevppon the Pope would blesse him and his Realme againe and curse his rebells and enemies in such sort as he should be better establisht in his kingdome then he was before King Iohn sendeth his crowne to the Pope became his farmer In a word this motion was presently embraced by that miserable King so as with his owne hands hee gaue vp the Crowne to the Popes legate and by an instrument or Charter sealed with a Bull or seale of gold he graunted to God and and the Church of Rome the Apostles Peter and Paule and to Pope Innocent the third and his successors the whole kingdome of England and the whole kingdome of Ireland and tooke backe an estate thereof by an instrument sealed with Lead yeelding yearely to the Church of Rome ouer and aboue the Peter pence a thousand markes sterling viz. seuen hundred markes for England and three hundred markes for Ireland with a flattering sauing of all his liberties and Royalties The Pope had no sooner gotten this conueyance though it were void in law but he excommunicateth the Barons and repeales the great Charter affirming that it contained liberties too great for his subiects calls the King his vassall and these kingdomes Saint Peters patrimony graunts a generall Bull of Prouision for the bestowing of all Ecclesiasticall benefices takes vppon him to be absolute and immediate Lord of all And thus vnder colour of exercising iurisdiction within these kingdomes the Pope
a high contempt against the Crowne to bring in Bulls of Prouision or breeses of citation and accordingly the law was so declared in Parliament 25. Edw. 1. which was the first statute made against Prouisors the execution of which law during the life of King Edw. 1. did welny abolish the vsurped iurisdiction of the Court of Rome and did reuiue and restore againe the auncient and absolute Soueraigntie of the King and Crowne of England His successor King Edw. 2. being but a weake Prince the Pope attempted to vsurpe vppon him againe but the Peeres and people withstood his vsurpation E. 2. suffereth the pope to vsurpâ— againe And when that vnhappy King was to bee deposed among many articles framed against him by his enemies this was one of the most heynous that he had giuen allowance to the Popes Bulls Againe during the minority of King Edw. 3. and after that in the heat of the warres in France the Pope sent many Breefes and Bulls into England and at last presumed so farre as that he gaue an Italian the title of a Cardinall in England and withall by his Bull gaue him power to bestow all Ecclesiasticall promotions as they should fall void from time to time E. 3. resisteth the vsur pation of the pope This moued the King and Nobility to write to the Pope to this effect wee our auncestors haue richly indowed the Church of England and haue founded Abbeyes other religious houses for the instruction of our people for maintenance of hospitality and for the aduancement of our countrymen and kinsmen Now you prouide and place strangers in our benefices that come not to keepe residence there vppon and if they come vnderstand not our language and some of them are subiects to our mortall enemies by reason whereof our people are not instructed hospitalitie is not kept our schollers are vnpreferred the treasure of the Realme is exported The Pope returneth answere that the Emperour had lately submitted himselfe to the Church of Rome in all points and was become the Popes great friend and in menacing manner aduised the King of England to doe the like The King replies that if the Emperour and french King both should take his part he was ready to giue battaile to both in defence of the liberties of his Crowne Herevppon the seuerall statutes against prouisors besore recited were put in execution so seuerely as the King and his subiects enioyed their right of patronage cleerely and their exemption of clarkes tooke no place at all for that the Abbot of Waltham and Bishop of Winchester were both attainted of high contempts and the Bishop of Ely of a capitall offence as appeareth in the Records of this Kings raigne King Rich. 2. Yet during the nonage of Richard 2. they began once againe to encroach vppon the crowne by sending Legates and Bulls and breefes into England whereof the people were so sensible and impatient as that at their speciall prayer this law of 16. Rich. 2. Wherevppon our indictment is framed was enacted being more sharpe and penall then all the sormer statutes against prouisors And yet against this King as against Edw. 2. it was obiected at the time of his depriuation that he had allowed the popes bulls to the enthralling of the Crowne Aster this in the weake time of King Henr. 6. they made one attempt more to reuiue their vsurped iurisdiction by this policy The Commons had denied the King a Subsidy when he stood in great want of monyes The Archbishop of Canterbury the rest of the Bishops offered the King a large suppâ—â—e of his wants if hee would consent that all the lawes against prouisors and specially this law of 16 Rich. 2. might be repealed But Hâ—â—frey Duke of â—â—â—câ—ster who had lately before cast the popes Bull into the siâ—e did likewise cause this motion to be reiected So as by speciall prouidence these lawes haue stood in force euen till this day in both these kingdomes The euideÌ„ce against Lalor Then the Atturney generall descended to the euidence whereby hee proued fully all the partes of the indictement First it was proued by Lalors owne confession vppon seuerall examinations taken besore the Lord Deputie and Lord Chauncellor and others that he had accepted the office and title of Vicar generall in the Dioceses of Dublin Kildare and Fernes by vertue of the popes Bull. Secondly it appeared by the copies of sundry letters found among his papers at his apprehension that he styled himselfe the popes Vicar in this forme Robertus Dublinien Kildaren Fernen Dâ—oâ—â—s Vicarius Apostolicus Thirdly there were produced the copies of diuers Acts and Instruments written for the most part with Laâ—ors owne hand some of institutions of popish priests to benefices others of dispensations with mariage within the degrees others of diuorces others of dispensation for non payment of Tâ—ethes Whereby it was manifestly proued that he did execute the popes Bull in vsurping and exercising Episcopall iuâ—â—sdiction as Vicar generall of the Sea Apostolike within the Dioceses before named To this euidence he made a threefold answere first that he was no suitor for the office of Vicar generall but it was imposed on him and hee accepted it virtute obediâ—ntiae onely to obey his Superiors next that he did exercise the office of Vicar generall in foro conscientiae tantum and not in foro iudicij And lastly that those copies of institutions dispensations and diuorces were many of them written with his mans hand as precedents of such acts and instruments without his priuity or direction Herevppon Sir Iames Ley chiefe Iustice told him that hee could not well say that hee accepted that vnlawfull office virtute obedientiae for there was no vertue in that obedience that he ow'd an obedience to the lawe to the King who is the true Superior and Soueraigne ouer all his subiects and hath no Peere within his dominions and that the Superiors whome he meant and intended were but vsurpers vppon the Kings iurisdiction and therefore this excuse did aggrauate his contempt in that it appeared he had vowed obedience to those who were apparant enemies to the King and his Crowne And though it were manifest that he exercised iurâ—sdiction in foro iudicij for euery institution is a iudgement and so is euerie sentence of diuorce yet were his offence nothing diminished if he had executed his office of Vicar generall in foro conscientiae tantum for the court of mans conscience is the highest tribunall and wherein the power of the keyes is exercised in the highst degree Lalors confession publikly read Herevnto the Atturney generall tooke occasion to add thus much that Lalor had committed these high offences not only against the lawe but against his owne conscience and that he was already condemned in â—oro conscintiae For that he vppon his second examination had voluntarily acknowledged himselfe not to be a lawfull Vicar generall that he thought in his
in respect of my selfe onely but also in regard of that relation which your Lordshâ—p hath vnto this kingdome For albeit pour Lordship bee Lord Chauncellor of England yet the great Sealâ— which you keepe there is also of force power within this Realme Neither can wee forgett without ingratitude that your Lorship in that high place of Counsell which you hold in England is vppon all occasions watchfull carefull of the publike good welfare of Ireland Nowe therefore the onely wise God who hath giuen vnto your Lordship those blessings which wisedome hath in store for them that loue her Longitudo dierum in dextra â—ius in sinistra â—ius diuitiae gloria preserue your Lordship for many yeares in health and honor that you may long continue a prudent and principall Counsellor vnto your Soueraigne a louing prouident father vnto your country a comfort and countenance to your particular freindes and all others who pertake of your honorable fauors among which I remaine Most bound most deuoted to do your Lordship all humble seruice Io Dauys Trin. 2. Iacobi en â—â—eschecquer Le Case de Proxies ENter le Roy Sir Ambrose Forth Doctor del ciuil Ley un des Maisters del Chauncery le case fuit tiel L'Evesque de Meth devantle dissolution des Monasteries avoit vn Proxie de xv 〈◊〉 iiii d. payable annualment hors del coÌ„maundâ—y de Kells en le county de Meth parcell del possessions del Hospital de Saint Iohn de Ierusalem en Ireland vn auter Proxie de xx s. paiable annualmeÌ„t hors del impropriate Rectory de Trevet en mesme le countie parcell del possessions del Abbey de Thomascourt en le countie de Dublin Anno 33. Henr. 8. le dit Hospitall de S. Iohn de Ierusalem le dit Abbey de Thomascourt fueront suppresse dissolâ—e touts les possessions des ambideux ditz measons fueront â—est en le actual real possession del Corone per act del Parliament Mes en mesme le act est vn expresse Saving de Proxies aâ— touts Evesques lour successors Apres ceo l'Evesque de Meth son Clergie car cest evesquery â—ad Deane Chapter per fait enroll dat 16. Martij 36. H. 8 graunt les Proxies aâ—antdit enter auters al Roy Henr. 8. ses heires successors le dit Roy esteant al temps del graunt puis en actuall possession del dit coÌ„maundry Rectory hors de queux les ditz Proxies fueront payable Puis la Ronne Elizabeth per ses letters pateÌ„ts dat 1. Novembris en l'an 33. de sa raigne demise le dit commaundry et Rectory al Doctor Forth rendant rent saâ—s ascun reseruation des Proxies Et si ore il serra charge oâ—e les dits Proxies les arrerages d'yceux encurrues depuis le comencemeÌ„t de son leas fuit le question Et fuit adiudge que il serroit charge Et 3. points fueroÌ„t move debate en l'argumeÌ„t de cest Case 1 Si les Proxies fueront tout ousterment extinct per le suppression dissolution des dits religious measons de S. Iohn de IerusaleÌ„ de Thomascourt nient obstant le dit Saving deins l'act de Dissolution 2 Si l'Evesque puissoit graunter les Proxies al Roy. 3 Si les Proxies fueront extinct en maines del Roy per l'Unity de possession PUr le Primer point fuit obiect per le counsel del Sir Ambrose Forth que les Proxies fueront extinct per le suppression dissolution de les religious measons pur ceo que le VisitatioÌ„ de les religious measons fuit la sole cause de paymeÌ„t des Proxies Et cessante causa cessat effectus Car les religious persons esteant deraigne disperse ne fueront apres ceo subiect al visitation donques quant le visitation cease le Proxie esteant solement vn Exhibition doneal visitor purses travayling charges cessera auxi Car Procuratio come les Canonists define ceo est exhibitio sumptuum necessariorum facta praelatis qui diocoeses peragrando Ecclesias subiectas visitant Uncore ils agreeont que le Visitation ne cessa immediatement per le surrender ouper l'act de ParliameÌ„t que done les religious measons lour possessioÌ„s al Corone car per ceo lour Corporations ne fueront dissolve come est tenus en le case de Deane Chapter de Norwich en le 3. part des Reports de le Seignior Coke 15. Ass p. 8. 32. H. 8 Br. Corporations 78. mes quant les religious persons fueront deraigne avoent relinquish lour habit rule order pur queux ils fueront visitable adonques le Corporation fuit ousterment dissolve sur ceo le visitation cessa Et ils reseinblont le proxie due pur Visitation al Annuity pro Consilio ou pro Servitio impeÌ„dendo si le counsell ou le service soit withdraw le Annuity est determin issint si Rent charge soit graunt pur vn chimin stopp le chimin le Rent charge serra auxi stopp 9. Edw. 4. 19. 15. Edw. 4. 2. 21. Edw. 3. 7. 45. Ed. 3. 8. Dier 6. H. 8. 2. 6. Ed. 6. 76. issint ou Corody est graunt pur certein service destre fait omission del service determin le Corody 20. Edw. 4. fol. vltimo Fuit auxi dit que cest duty ne fuit annuall mes coÌ„tingent payable tantsolement sur chescun Visitation come Escuage sur chescum iourney roiall ou come Aide pur â—le marier on pur fair fitz chivaler en queux darrain cases si avowry soit fait pur l'ayde est bon plea en barr d'avowry a dire que l'avowant nad teil fitz ou â—ile en vie al temps del Ayde levie N. N. Br. 82. g. Et pur le Saving ils diont que ceo fuit vn Flattring Saving que ne poer preserver les proxies en esse queux la Ley ad extinguish come est tenus 14. Eliz. Dier 313. que les Tenures del Obitou Chauntry terres tenus del subiects sont extinct per lact del 1 E. 6. ment obstant le Saving en le dit act propter absurditatem issint les Proxies icy serront extinct propter absurditateÌ„ Car come est absurd que le Roy serra subiect al attendance en respect de Tenute issint est absurd que le Roy serra subiect al visitation ou al ascun duty en respect de ceo De mesme le nature sont plusors Savings mise en Walsinghams case Plow Com. 563. queux soâ—t la appell Flattring Savings PUr le second point fuit obiect que l'Evesque ne puissoit graunter les proxies al Roy pur 2. reasons l'uâ— deduce del person del Roy l'auter del person del Evesque 1. pur le Roy admitt que il â—uit capable de teil spirituall office come destre Visitor des religious persons vncor il navera