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
adiudged high treason to bring in Bulls of Excommunication whereby the Realme should bee cursed 7 That no decree should bee brought from the Pope to bee executed in England vppon paine of imprisonment and confiscation of goods To these and other Constitutions of the like nature made at Claringdon all the rest of the Bishops and great men did subscribe and bound themselues by oath to obserue the same absolutly onely the Archbishop would not subscribe and sweare but with a Sauing saluosuo ordine bonore sancte Ecclesiâ— yet at last hee was content to make the like absolute subscription and oath as the rest had done but presently hee repented and to shewe his repentance suspended himselfe from celebrating Masse till he had receaued absolution from the Pope Then he began to maintaine and iustifie the exemption of Clarkes againe whereat the Kings displeasure was kindled a new and then the Archbishop once againe promised absolute obedience to the Kings lawes See the ficklenes mutability of your constant Martyr The King to bind fast this slippery Proteus called a Parliament of the Bishops and Barons and sending for the Roll of those lawes required all the Bishops to set their seales therevnto They all assented but the Archbishop who protested he would not set his seale nor giue allowance to those lawes The King being highly offended with his rebellious demeanor required the Barons in Parliament to giue Iudgement of him who being his subiect would not be ruled by his lawes Cito facite mihi iustitiam de illo qui homo meus ligeus est stare Iuri in Curia mearecusat Wherevppon the Barons proceeding against him being ready to condemne him I prohibit you quoth the Archbishop in the name of Almighty God to proceed against mee for I haue appealed to the Pope and so departed in contempt of that high Court Omnibus clamantibus saith Houenden quo progrederis proditor expecta audi iudicium tuum After this he lurked secretly neere the Sea shore and changing his apparell and name like a Iesuit of these times he tooke shipping with a purpose to flie to Rome but his passage being hindred by contrary windes hee was summoned to a Parliament at Northampton where he made default wilfully for which contempt his temporalties were seised and his body being attacht he was charged with so great an account to the King as that he was found in arreare thirty thousand markes and committed to prison whence hee found meanes to escape shortly after and to passe out of the Realme to Rome Hee was no sooner gone but the King sends writts to all the Shiriffs in England to attach the bodies of all such as made any appeales to the Court of Rome herevppon many messages and letters passing to froe all the suffragans of Canterbury ioyne in a letter to the Pope wherein they condemne the fugitiue Archbishop and iustifie the Kings proceedings Vppon this the Pope sends two Legates to the King being then in Normandy to mediate for the Archbishop They with the mediation of the French King preuailed so farre with King Henry as that he was pleased to accept his submission once againe and promised the King of France that if he would be obedient to his lawes he should enioy as ample liberties as any Archbishop of Canterbury euer had and so sent him into England with recommendation vnto the young King his Sonne then lately Crowned who hearing of his comming commaunded him to forbeare to come to his presence vntill he had absolued the Archbishop of Yorke others whome he had excommunicated for performing their duties at his Coronation The Archbishop returned answere that they had done him wrong in vsurping his office yet if they would take a solmne oath to become obedient to the Popes commaundement in all things concerning the Church he would absolute them The Bishops vnderstanding this protested they would neuer take that oath vnlesse the King willed them so to doe King Henry the father being hereof aduertised into France did rise into great passion and choler and in the hearing of some of his seruants vttered words to this effect Will no man reueng mee of mine enemies Wherevppon the foure Gentlemen named in the storyes of that time passed into England and first mouing the Archbishop to absolue the Bishops whome he had excommunicated for performing their duties at the young Kings Coronation and receauing a peremptory answere of deniall from the Archbishop they laid violent hands vppon him and slew him for which the King was faine not onely to suffer corporall pennance but in token of his humiliation to kisse the knee of the Popes Legate And this is the abridgement of Beckets troubles or rather treasons for which he was celebrated for so famous a Martyr Foure points of iurisdiction vsurped vppon the crowne of England by the Pope before the raigne of K. Iohn And thus you see by what degrees the Court of Rome did within the space of one hundred and odd yeares vsurpe vppon the Crowne of England foure points of Iurisdiction viz. First sending of Legats into England SecoÌ„dly drawing of appeales to the Court of Rome Thirdly donation of bishopricks and other Ecclesiasticall benefices and fourthly exemption of Clarkes from the secular power And you see withall how our Kings and Parliaments haue from time to time opposed and withstood this vniust vsurpation Now then the Bishop of Rome hauing claimed and welny recouered full and sole iurisdiction in all causes Ecclesiasticall and ouer all persons Ecclesiasticall with power to dispose of all Ecclesiasticall benefices in England whereby he had vppon the matter made an absolute conquest of more then halfe the kingdome for euerie one that could read the Psalme of Miserere was a Clarke the Cleargie possessed the moytie of all temporall possessions There remained now nothing to make him owner and proprietor of all but to geâ—â— a surrender of the Crowne and to make the King his Farmer and the people his Villaines which he fully accomplisht and brought to passe in the times of King Iohn and of Henr. 3. The cause of the quarrell betweene K. Iohn the Pope The quarrell betweene the Pope and King Iohn which wrested the Sceptor out of his hand and in the end brake his heart began about the election of the Archbishop of Canterbury I call it election and not donation or inuestiture for the manner of inuesting of Bishops by the Staffe and Ring after the time of King Henr. 1. was not any more vsed but by the Kings licence they were Canonically elected and being elected the King gaue his Roiall assent to their election and by restitution of their temporalties did fully inuest them And though this course of election began to be in vse in the time of Rich. 1. and Henr. 2. Yet I finde it not confirmed by any Constitution or Charter before the time of King Iohn who by his Charter dated the fifteenth of Ianuary in the sixteenth yeare of his Raigne graunted this priuiledge to the Church of England in
by degrees gott the very kingdomes themselues And so would hee doe at this day if the King would giue way to his iurisdiction In the time of King H. 3 the Pope conuerteth the whole profits of both realmes to his owne vse But what vse did the Pope make of this graunt and surrender of the Crowne vnto him what did hee gaine by it if our Kings retained the profits of their kingdomes to their owne vse Indeed wee doe not finde that the Feefarme of a thousand markes was euer payd but that it is all runn in arreare till this present day For the troth is the Court of Rome did scorne to accept so poore a reuenew as a thousand markes per annum out of two kingdomes But after the death of King Iohn during all the raigne of Henr 3 his Sonne the Pope did not claime a Seâ—gniory or a rent out of England and Ireland but did endeauour to conuert all the profits of both lands to his owne vse as if hee had beene â—â—â—sed of all in demeâ—ne For whosoeuer will read Matth. Paris his story of the time of King Henr. 3. will say these things spoken of before were but the beginnings of euils For the exactions and oppressions of the Court of Rome were so continnuall and intolerable as that poore Monke who liued in those times though otherwise hee adored the Pope doth call England Baalams asse loaden beaten and enforced to speake doth call the Court of Rome Charybdis and barathrum auaritiae the Popes Collectors Harpies and the Pope himselfe a stepfather and the Church of Rome a stepmother Hee sheweth that two third parts of the land being then in the hands of Churchmen the entier profits thereof were exported to enrich the Pope and the Court of Rome which was done for the most part by these two waies and meanes First by conâ—erring the best Ecclesiasticall benefices vppon Italians and other strangers 〈◊〉 entan that Court whose farmers and factors in England tooke the prosits turned them into money and returned the money to Rome Secondly by imposing continuall taxes and tallages worse then Irish â—uttings being sometimes the tenth sometimes the fifteenth sometimes the third sometimes the moytie of all the goods both of the Cleagie and Laytie vnder colour of maintaining the Popes holy warres against the Emperour and the Greeke Church who were then said to bee in rebellion against their Lady and mistresse the Church of Rome Besides for the speedy leuying and safe returne of these monyes the Pope had his Lumbards and other Italian Bankers and vsurers resident in London and other parts of the Realme who offered to lend and disburse the moneys taxed and returne the same by exchange to Rome taking such penall bands the forme whereof is set downe in Matth. Paris and such excessiue vsury as the poore religious houses were faine to sell their Chalices and Copes and the rest of the cleargie and laâ—ty had their backes bowed and their estates broken vnder the burthen Besides the Pope tooke for perquisits and casualties the goods of all clarkes that died intestate the goods of all vsurers and all goods giuen to charitable vses Moreouer he had a swarme of Friers the first corruptors of religion in England who perswaded the nobility and gentry to put on the signe of the Crosse and to vow themselues to the holy warres which they had no sooner done but they were againe perswaded to receaue dispensations of their vowes and to giue money for the same to the church of Rome I omitt diuers other policies then vsed by the Popes collectors to exhaust the wealth of the Realme which they affirmed they might take with as good a conscience as the Hebrewes tooke the Iewells of the Egiptians Breefely whereas the King had scarce meanes to maintaine his Roâ—all famely they receaued out of England seuenty thousand pounds sterling at least yearely which amounteth to two hundred and ten thousand pounds sterling of the moneys currant at this day Besides they exported sixe thousand markes out of Ireland at one time which the Emperour Fredericke intercepted Lastly the King himselfe was so much deiected as at a Royall feast hee placed the Popes legate in his owne Chaire of Estate himselfe sitting on his right hand and the Bishop of Yorke on his left non sine multorum obliquantibus oculis saieth Matth. Paris Thus we see the effect of the Popes pretended iurisdiction within the dominions of the King of England Wee see to what calamity and seruitude it then reduced both the Prince and people Was it not therefore high time to meet and oppose those inconueniences Assuredly if King Edward 1. who was the Sonne and heire of Heâ—r 3. had enherited the weaknes of his father and had not resisted this vsurpation and insolencie of the Court of Rome the Pope had beene proprietor of both these Ilands and there had beene no King of England at this day King Edw. 1. opposeth the Popes â—surpation But King Edward 1. may well be styled vindex Anglicae libertatis the Moses that deliuered his people from slauerie and oppression and as he was a braue and victorious Prince so was he the best Pâ—ter patriae that euer raigned in England since the Norman Conquest till the Coronation of our gracious Soueraigne At the time of the death of his fathet hee was absent in the warre of the holy land being a principall commaunder of the Christian armie there so as he returned not before the second yeare of his raigne But he was no sooner returned and crowned but the first worke he did was to shake of the yoke of the Bishop of Rome For the Pope hauing then summoned a generall Counsell before he would licence his Bishops to repaire vnto it he tooke of them a solemne oath that they should not receaue the Popes blessing Againe the Pope forbidds the King to warre against Scotland the King regards not his prohibition he demaunds the first fruits of Ecclesiasticall liuings the King forbidds the payment thereof vnto him The Pope sendeth forth a generall Bull prohibiting the cleargie to pay subsidies or tributes to temporall Princes A tenth was graunted to the King in Parliament the cleargie refused to pay it the King seiseth their temporalties for their contempt and gott payment notwithstanding the Popes Bull. After this he made the statute of Morâ—main whereby hee brake the Popes chiefe nett which within an age or two more would haue drawen to the Church all the temporall possessions of the kingdome c. Againe one of the Kings subiects brought a Bull of excoÌ„munication against another the King coÌ„maundeth he should be executed as a traytor according to the auncient law But because that law had not of long time beene put in execution the Chauncellor Treasurer kneeld before the King and obtained grace for him so as he was onely banished out of the Realme And as he iudged it treason to bring in Bulls of excommunication so he held it
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