lawe cannot bee so well exprest nor any case in lawe bee so succinctly sensibly whithall so fully reported as in this speech which is in deede mixte compounded of all these three languages Which reason hath not beene well vnderstood by those who obiect it as a fault to the Professors of our lawe that forsooth they write their Reports and bookes of the lawe in a straunge vnknowne tongue which none can vnderstand but themselues to the end that the people being keept in ignorance of the lawe may the more admire their skill knowledge esteeme value it at a higher price As Cicero in his first booke de Oratore doth testifie that the like conceite was held of the first Professors of the Ciuill lawe Quia veteres illi qui huic scientiae praesuerunt obtinendae atque augendae potentiae suae causa pervulgari artem suam noâ—uerunt And Cesar speaking of the Druides who were Iudges and interpreters of the lawe among the auncient Brittaines doth report of them that though they spent twenty yeares in the study of those lawes Non existimabant fas esse â—a literis mandare But the weaknes of this obiection against the Authors of our lawe bookes will easily appeare if wee consider how easie the Lawe french is to bee learned in somuch that the meanest witt that euer came to the study of the lawe doth come to vnderstand it almost perfectly within ten dayes without a Reader So as wee doe not seale or locke vp the mysteries of our lawe in Hieroglyphickes or in a darke language that cannot bee vnderstood But wee expresse the Cases arguments Iudgements of the lawe in a forme of speech so plaine so significant and in a tongue so soone learned by any man that can speake English and vnderstand Latine as I dare say there is no rationall science in the world hauing so many wordes Tearmes of art and forme that is so clearely deliuered in any language And I may truely say withall that if the bookes of our lawe were all translated into English they would not bee better nay they would not bee so well vnderstood by the students thereof as in this proper peculiar language wherein they are now written And as this obiection touching the speech or language wherein our Reports are penned doth arise out of ignorance of the cause thereof as is before declared so are there other vulgar imputations cast vppon the lawe lawiers which may bee as easily cleared as hauing indeede no other ground but the meere misvnderstanding of such as are strangers to the profession namely 1. that there is much vncerteinty in the reasons Iudgements of the lawe 2. that there are extreame vnnecessary delayes in the proceedings of the lawe 〈◊〉 that many bad and dishonest causes are wittingly defended by the professors of the lawe But Sapientia iustificatur à filijs suis 1 Therefore first touching the incerteinty of the lawe Certeine it is that lawe is nothing but a rule of reason humaine reason is Lesbia regula pliable euery way or like a cupp with two eares as the French proueâ—b is which may bee taken vp on either side as well with the left hand as with the right so as not onely the knowledge of the lawe but all other rationall sciences that are subiect to Argument discourse must needes bee subiect to vncerteinty to error therefore vppon Iudgements giuen in our Ordinary Courts of Iustice the lawe doth admitt allow writts of error to bee brought without any touch or dishonor to the Iudges though there Iudgements bee reuersed for error in point of lawe Howbeit there is no art or science that standeth vppon discourse of reason that hath her Rules Maximes so certeine infallible so little subiect to diuers interpretation as the common lawe of England as it is obserued by the Lord cheefe Iustice Cooke in his Preface to the second part of his Reports that in all his time there haue not beene moued in the Courts of Iustice in England two questâ—ons touching the right of discents or escheats or the like fundamentall points of the common lawe So certaine sure without question are the principles grounds thereof But whence then doe so many debates controuersis arise wherevppon doe wee plead contend so much in the Courts of Iustice it there bee so few doubtes vncerteinties in lawe doubtlesse this question is soone resolued by one plaine common distinction In all the causes that are controuerted there is either Quastio Iuris or quaestio facti But for one cause wherein a question of lawe doth arise that is indeede with the debating there are a thousand causes at least wherein the fact is onely in question wherein if the truth of the fact were knowne the lawe were cleere without question So as the pleading contention in Westminster hall the rest of the Courts of Iustice in both realmes is for the most parte touching matters of fact In the Chauncery whether there bee Trust or no trust Fraud or no fraud In the Starchamber whither a Riotâ— or no riott Forgery or no forgery Perâ—uâ—y or no periuâ—y and the like matters of fact come onely in question in all other Courts which proceed to the hearing determining of causes by examination of witnesses And in the Coâ—â—â—â— of lawe where the triall is by Iurors are there not a thousand issues ioyned vppon matters of fact for one demurrer that is ioyned vppon a point in lawe when all these issues are tried either at the Barre or at the Aâ—sâ—sses how many hundreds of generall verdictes are there giuen which determine matters in fact for one speciall verdict whereuppon doe result questions in lawe And againe of all the questions in lawe which doe arise vppon demurrers or speciall verdicts or which are moued in arrest of Iudgment how many of them are there ouer ruled vppon the first opening or putting of the Case and how few of them are there that are malleable or can endure the hammer so as they come to bee solemnely argued at the Barre and at the Bench As for the Eschequer-chamber cases which are of such difficultie as that they drawe an assembly of all the Iudges of the lawe for the resolution thereof they are so rare as scarce twise in a yeare are those Iudges drawne out of there proper Courtes to deliuer theire opinions vppon those doubtfull pointes So as it is to bee ascribed to the greate learning wisdome grauity constancie of our Iudges to the certeinty excellent harmony of reason in our lawe that there are no more diuersities of opinion among the Iudges or doubtfull questions in the lawe then there are For if the Rules Maximes of the lawe were a thousand times as many as they bee indeede yet would they carry no proportion with the infinite diuersitie of mens actions of other accidents which make the cases
in the other then the learned Counsell of eîther side may perhappes discerne the right from the wrong not before But then are the causes come to their Catastrophe the Counsellors Act their last part And yet vntill then the true state of the cause on both sides could not possibly bee discouered If then the causes that are prosecuted do for the most part hang in a doubtfull ballance vntill the hearing or triall thereof for if a cause bee vndoubtedly apparantly naught on the one side no man is so vnwise as to followe it to the end with the expence of money hazard of his credit how can it bee iustly said that the Counsellor against whose Client a decree or verdict doth passe hath wittingly defended an vniust cause when hee wist not how the ballance would incline vntill hee had made his vttermost defence howbeit if any of our Counsellors do either in the prosecution of their Clients causes giue sinister craftie Counsell or vppon the hearing or triall thereof make an ouer bold defence of any dishonest action our Iudges are so tender iealous of the honor of our profession as they lay a noate of Infamy vppon such persons so as they seldome or neuer after are permitted to rise to any higher degree in the lawe or any Office of trust in the common-wealth Whereby it commeth to passe that no men of any other calling or profession whatsoeuer are more carefull to preserue their good name reputation stand more precisely vppon their good behauiour then the learned professors of the common lawe And as our Iudges do discountenance bad Counsellors so doth our lawe abhorre the defence maintenance of bad causes more then any other lawe in the world besides For by what other lawe is vnlawfull maintenance champertie or buying of titles so seuerely punished By what othet lawe doth the plaintife pro falso clamore or vniust vexation or the defendant for pleading a false plea pay an amercement or fine to the publike Iustice And this is one cause among others why our lawe doth not allowe Counsell vnto such as are indicted of Treason Murder Rape or other capitall crimes So as neuer any Professor of the lawe of England hath beene knowne to defend for the matter of fact any Traytor Murderer Rauisher or Theefe being indicted prosecuted at the suite of the King Turpe reos empta miseros defendere lingua saieth the Poet therefore it is an honor vnto our lawe that it doth not suffer the Professors thereof to dishonor themselues as the Aduocats Orators in other countries do by defending such offendors For example whereof wee haue extant diuers Orations of Cicero one pro C. Rabirio perduellionis reo another pro Roscio Amerino who was accused of Parricide another pro Milone who was accused of Murder But good Lawyers haue not with vs that libertie which good Physitians haue For a good Physitian may lawfully vndertake the cure of a foule and desperate disease but a good Lawyer cannot honestly vndertake the defence of a foule desperate cause But if hee fortune to bee engaged in a cause which seeming honest in the beginning doth in the proceeding appeare to bee vniust he followeth the good Counsell of the Schooleman Thom. Aquinas 22. quaest 71. art 3. Aduocatus si in principio credidit causam iustam esse quae postea in processu appareat esse iniusta non debet eam prodere vt scilicet alteram partem iuuet reuelando causae suae secretas Potest tamen debet causam deserere vel eum cuius causam agit inducere ad cedendum siue ad componendum sine aduersarij da nno And thus I conceaue that the most common colourable exceptions which are taken against our lawe Lawyers may bee answered cleared by the plaine reasons demonstrations before expressed So as our Profession may stand bee iustified in all pointes against Ignorance Enuie ill-contented suitors who like cholerick Chesse-plaiers when they haue had a mate giuen them could finde in their harts to cast both the Chessebord Chessemen into the fier These vulgar errors being thus reuersed so as wee may truly say that there is no such vncerteinty in the rules of the lawe no such delay in the proceedings no such preuarication or corruption in the Professors thereof as it is by some vniustly pretended why may wee not proceed further affirme confidently that the profession of the lawe is to bee preferred before all other humane professions sciences as being most noble for the matter subiect thereof most necessary for the common continuall vse thereof most meritorious for the good effectes it doth produce in the common wealth For what is the matter subiect of our Profession but Iustice the Lady Queene of all morall vertues and what are our Professors of the lawe but her Counsellors her Secretaries her Interpretors her Seruants againe what is the King himselfe but the cleare fountaine of Iustice what are the Professors of the lawe but conduit pipes deriuing conueying the streames of his Iustice vnto all the subiects of his seuerall kingdomes so as if Iustice bee rightly resembled to the Sunne in the firmament in that shee spreadeth her light vertue vnto all creatures how can shee but communicate part of her goodnesse glory vnto that science that is her handmaid and waites vppon her And if Kings bee Gods schollers as Homer writeth that the rules of Iustice bee their principall lesson if God doe honor Kings with his owne name Dixi quod dij estis as a more diuine Poet then Homer singeth specially for that they sitt vppon Gods owne seate when they minister Iustice vnto the people do not Kings againe highly honor those persons whose subordinate ministrie seruice they vse in performing that principall part of their kingly office Vndoubtedly touching the aduancement of such persons Solomon the King speaketh that they shall stand before Kings God will sett them saieth Dauid with Princes euen with the Princes of his people Neither is this Profession ennobled in regard of the dignity of her imploiment onely but shee is to bee honored so much the more for the necessity continuall vse of her seruice in the common-weale For if wee must honor the Physitian propter necessitatem as the wise man prescribeth much more must wee honor for the same cause the professors ministers of the lawe For neither do all men at any time nor any one man at all times stand in neede of the Physition for they that are in health which are the greatest number of men non egent medico saieth the greate Physition of our soules our onely Aduocate which is in heauen But all men at all times in all places do stand in neede of Iustice of lawe which is the rule of Iustice of the interpreters ministers of the lawe which giue
life motion vnto Iustice For do not all persons stand in neede of Iustice when without her rule the Prince himselfe knowes not how to rule nor his people how to obey When without her support the noble man cannot vphold his honor nor the common subiect hold his liberty When without her safegard the rich man cannot bee free from spoile nor the poore man from oppression Breefely when without her no man liuing bee hee vertuous or vicious can enioy his life nor any thing that makes his life delightfull For the couetous man cannot encrease his profitt nor the sensuall man enioy his pleasure but vnder the shadowe of her wings Againe is not Iustice needefull at all times when wee can neither trauell safely by day nor sleepe securely by night with out her protection when if such a lawe were made indeede as was propounded by a wicked Emperor That all lawes should cease for foure twenty houres that short cessation would bee suffitient to giue opportunity to wicked men to make a greater combustion in the whole world then that which happened when the Chariot of the Sunne did want a guide but halfe a day as it is liuely expressed in the fable of Phaëton Lastly is not iustice necessary in all places when wee cannot without perill make a voiage by Sea vnlesse shee wafte vs nor a iourney by land vnlesse shee conuoy vs when wee should bee opprest by force in the country if shee not defend vs vndone by fraud in the Citty if shee did not releeue vs When shee encloseth euery mans garden feild makes euery mans cottage his Castle of defence So as wee haue not such an vniuersall continuall vse neither of the light of the Sunne nor of fier water as wee haue of the light heate comfort of iustice for a man may remaine aliue some howres without the vse of those common benefitts but a common-wealth wherein each priuate mans weale consisteth cannot stand continue one minute of an houre if Iustice which is her soule bee departed from her If therefore Iustice the lawe which is but a Rule or lesson of Iustice bee so necessary for all persons times places as no family no Citty no common-wealth no Kingdome can stand without the support thereof how needefull is the seruice of learned men in the lawe without which Iustice it selfe cannot possibly stand for Iustitia periret saieth the President Cassanaeus si dâ—esset qui iustitiam allegaret For if no man did study the reason of the lawe if no man kept in memory the rules of the lawe if no man knewe the forme of pleading or the course of proceeding in the lawe what would become of the publike Iustice in a short time or how should the benefitt of the lawe bee deriued communicated vnto the people for as in a naturall bodie the reasonable soule cannot vse or transmitt any of her powers but by speciall Organs of the same body disposed fitted by nature for euerie function as the eie to see the eare to heare the tongue to speake the like of the rest so in the body politike of a common wealth the lawe which is the soule thereof produceth no effect or operation at all but by such of her ministers as by art experience are enabled qualified for her seruice For lex est iustitia inanimata saieth the schoolman Lex est mutus magistratus saieth Cicero the lawe of it selfe is dumbe speakes not but by the tongue of a learned eloquent Lawyer shee is deafe heareth no complaints but by the eare of a graue patient Iudge shee is blinde seeth no enormities but by the eie of a watchfull diligent Officer Againe the lawe is nothing else but a Rule that is made to measure the actions of men But a Rule is dead measures nothing vnlesse the hand of the Architect doe apply it It is indeede an excellent Instrument to make harmony concord in the common-wealth but the best Lute that euer was made could neuer make musicke of it selfe alone without the learned hand of the Luteplaier Therefore though Iuppiter as Protagoras in Plato telleth vs did first inuent giue the lawe yet was Mercury sent with that heauenly guift to deliuer it euer vnto mankinde So as it is manifest that without the ministry of these Mercuries of these interpretors of the lawe namely the learned Professors thereof there can bee no vse or application of the lawe consequently the lawe or Iustice it selfe cannot consist without them But as the estimation price of this Profession is exceedingly raised by the necessary vniuersall vse thereof so doe her great merits to the common-wealth deserue a farr greater exaltation of honor For first the common-wealth is indebted vnto the lawe for all her temporall blessings felicities whatsoeuer For all our peace plenty ciuility morall honestie dependeth vppon the lawe That wee enioy our liues our wiues our children our lands our goodes our good names or whatsoeuer is sweete deare vnto vs wee are beholding to the lawe for it Quid sunt regna nisi latrocinia sine iustitia saieth Sainct Augustine without Iustice the land would bee full of theeues the Sea full of Pirats the Commons would rise against the Nobility the Nobility against the Crowne wee should not knowe what were our owne what another mans what wee should haue from our Auncestors what wee should leaue to our Children Maios haereditas venit vnicuique nostrum à Iure legibus quam á parentibus saieth Cicero in a word there would bee nothing certeine nothing sure no contracts no commerce no conuersation among men but all Kingdomes states would bee brought to confusion all humane society would bee dissolued But on the other side the lawe is a fortresse for the weake to retire vnto a Sanctuary for the oppressed to fly vnto it restraineth the boldnesse of the insolent it tieth with Manacles the handes of the potent like Orpheus harpe or Noahes Arke it charmeth the fiercenes of the Lion the Tiger so as the poore lambe may ly in safety by them If then the lawe it selfe doth merit so highly of all mankinde in generall for that it is the fountaine of all these benefitts what do the Professors of the lawe deserue which drawe these benefitts out of that fountaine deriue the same vnto euery particuler person Nam si non habes quo haurias puteus altus est as the woman of Samaria saieth of Iacobs well in the Gospell how canst thou refresh thy selfe with the water of that well Si veritas sit in profundo demersa as Democritus was wont to say if humane actions bee so carried in cloudes as it is hard to finde what is true what is false when the truth of the fact is found it is many times as hard to distinguish what is iust what is vniust if in all
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
that are to bee decided by the lawe Besides it must bee a worke of singular Iudgement to apply the groundes and rules of the lawe which are fixt certeine to all humaine acts accidents which are in perpetuall motion mutation And therefore wee may truly say for the honor of our lawe notwithstanding that vulgar imputation of incerteinty that the Iudgement reason of it is more certeine then of any other humane lawe in the world As well because the groundes of our common lawe haue from the beginning beene laid with such deepe wisdome policie prouidence as that they doe prouide for meete with almost all cases that can possibly fall out in our common-wealth as also because those groundes are so plaine so cleare as that the professors of our lawe haue not thought it needefull to make so many glosses interpretations therevppon as other lawes are perplexed confounded withall which glosses as one doth well obserue do encrease doubt and ignorance in all Arts and Sciences And therefore the Ciuilians themselues confesse that their lawe is a sea full of waues the Text whereof being digested into so many volumes so many Doctors interpreting the Text twise as many more Commenting vppon their interpretations so glosse vppon glosse booke vppon booke euery Doctors opinion being a good authority fitt to bee cited vouched among them must needes breed distraction of opinions vncerteinty in that lawe The like may bee said of the Canon lawe albeit the Text thereof bee scarce foure hundred yeares old But of the professors of our lawe who euer yet hath made any glosse or interpretation vppon our Master Litleton though into that litle booke of his he hath reduced the principall groundes of the common lawe with exceeding great Iudgement authority with singular Method order yet if hee had beene an author in the Ciuill or Canon lawe I dare say there had beene by this time so many Comments glosses made vppon him as the bookes written vppon this booke onely would haue beene more in number then all the volumes of our lawe at this day But the learned men in our lawe haue euer thought that Littleton being a learned reuerend Iudge wrote with a purpose to bee vnderstoode that therefore an other man specially if he were of lesse learning then hee could hardly expresse him better then he hath expressed himselfe And therefore his booke hath euer beene readâ— of our yongest students without any Commentary or interpretation at all But for all this it is obiected that our later Iudgements doe many times crosse contradict the former directly in one the same pointe of lawe which is a manifest argument of incerteinty in the lawe Assuredly there are very few precedents of such contrary Iudgements scarce two in one age And yet if the reasons of the later Iudgements did appeare of record wee should finde them grounded vppon mischeefes inconueniencies arising since the former Iudgements or vppon other weighty considerations respecting the good of the common-wealth in generall Otherwise there are no Iudges in any State or Kingdome vnder the Sunne that do more reuerence the opinions Iudgements of their predecessors then the Iudges of England haue euer done as your Lordship for their honor hath obserued in that most worthy speech of the Postnati wherein among other thinges your Lordsâ—ip doth noate the memorable saying of Askue 37. Henr. 6 fol. 22. Such a Charter hath beene allowed in the time of our predecessors who were as sage learned as wee bee of Markham 4. Edw. 4. fol. 41. It is good sayeth hee for vs to do as it hath beene vsed in former time not to keepe one way one day for one partie another day the contrary for th' other partie the former precedents are enough for vs to followe But on the other side let vs heare what a learned Canonist Lodoâ—icus Gomez in regula de Triennali possessore cap. 5. is bold to say Non est inconueniens sayeth he iudicium esse vno tempore iustum postea eius contrarium iustius hoc malum videtur imponi mortalibus in pâ—nam vt corum opiniones secundum varietatem temporum senescant intermoriantur aliaeque â—iuersae vel priorihus contrariae renascantur deinde pubescant Talis enim est humani iuris disciplina vt nulla in â—a opinio â—odem statu diú stare possit Dies dâ—â—i â—ructat verbum nox noctâ— indicat scientiam And againe Opiniones hominum â—orum corpora sequuntur quae cum tempore vetaraâ—â—unt pereunt sâ—â—ut rerum omnium ita quoque opinionum est quaedam vicissitudo And in another place Stilus hodiernâ—s propter maâ—orem temporum experientiam videtur magis iure fundatus ideo solet dicâ— quod moderni sunt sicut Culices in capite Elephantis quae vident priora posteriora quanto juniores tanto perspicatiores And thus much may suffice to bee spoken to remoue that scandall of vncerteinty which ignorance doth vnworthily cast vppon the common lawe 2 But if the reason ludgement of our lawe be so litle subiect to vncerteinty how cometh it to passe that the proceedings of our laws are so much subiect to delay for this is another vulgar obiection against our lawe the professors thereof But who are they that make this obiection haue they themselues beene engaged in any suites of importance haue they passed through the Courts of Iustice either in course of lawe or in course of equity if they haue not they speake but by hearesay then their testimony in this behalf is of litle credit If they haue had any long depending suites of their owne then let them examine whither their owne spleene wilfulnesse or the corruption of some needy sollicitors who picke their liuing out of the busines they followe are loath to quench the fur that maketh them warme haue not rather drawne their causes to an extraordinary length then the ordinary proces of lawe or the aduise of learned Counsell For such as are learned Counsellors indeede are like good Pilots who though their skill bee best tried in a long difficult voiage do rather desire faire weather a speedy arriuall with their passengers in the hauen But the troth is it is the stomack or malice of such clients as will not stick to say that they will spend all they are worth to haue their will of their aduersaries therefore will not bee satisfied with any Iudgement or decree that doth produce prolong suites in lawe who when their learned Counsell indeede do refuse to nourish that peccant humor in them doe seeke out discarded impostors or Idolls of whome there is an opinion among light ignorant people of extraordinary cunning sleight in carying of busines with aduantage in curing of foild desperate causes These men giue them counsell according to their owne
hart because they sooth them in their litigious humor howbeit in the end when they haue wearied wasted themselues they finde how weake those wiles craftie courses are learne of Esope that that one onely plaine way which the Cart had to escape from the dogges was better safer then those hundred trickes of euasion whereof the Fox did vaunt before he was taken and they finde withall the saying of Cicero true ignoratio iuris litigiosa est potius quam scientia Besides this malignant vnquiet disposition of many Clients there is another cause why suites are not brought so soone to an end as perhappes they were in former ages namely the multitude of causes now depending in euery Court of â—ustice euery of which causes must haue conuenient time allowed as well to prepare it make it ripe to be heard or tried as for the triall hearing it selfe And the true cause of the multitude of causes doth proceed from this that the comodities of the earth being more improued there is more wealth consequently there are more contracts reall personall then there were in former ages Besides there is more luxury excesse in the world which breedeth vnthryftes banckruptes bad debtors more coueteousnesse more malice which begetteth force fraud oppression extortion breath of the peace breach of trust Out of these fountaînes innumerable suites do spring which make the Courts of Iustice so to swell and hence it is that our statute lawes since Henr. 8. his time do make vp so greate a volume hence it is that the professors of the lawe are growne withall to so greate a number for where there is magna messis there must bee of necessity operarij multi Indeed if wee all liu'd according to the lawe of nature wee should neede fewe lawes fewer lawiers Do as thou wouldest bee done vnto were a rule sufficient to rule vs all euery mans conscience would supplie both the place of an Aduocate a Iudge then wee should suffer no costs of suite nor delay of proces And againe if wee were a poore a naked people as many nations in America bee wee should easily agree to bee iudged by the next man wee meete so make a short end of euerie controuersie When the people of Rome were litle better then Sheepards heardsmen all their lawes were contained in ten or twelue Iuory tables But when they became Lordes of all the world what a world of bookes were there written of the Roman ciuill lawe The like wee see in euery common-wealth when it once beginnes to flourish to growe rich mighty the people growe proud withall their pride makes them contentious litigious so as there is neede of many lawes to bridle them many Officers to execute those lawes many Lawyers to interpret those lawes all litle enough as when a bodie growes full grosse it needes more Physicke then when it was leane And yet though our suites and causes bee very many our Courts of Iustice but a fewe whereby it must needs come to passe that euerie particular busines mouing in his turne must haue the slower motion yet if wee compare our legall proceedings with the proces of other Kingdomes common-weales specially of France wee shall finde that according to the vsuaâ—l clause in diuers writts wee haue indeede plenam celerem iustitiam though the breefest Iustice bee not alwayes best that our causes for the most parte beîng orderly pursued may come to their Period in a yeare with the course of the Sunne when there are many processes in foreine countries that seeme to be gouerned by Saturne which planet doth fearce finnish his course in the space of thirty yeares as Bodin doth testifie of his owne country that their were more suites in lawe depending in France then in all Europe besides that many of those causes were an hundred yeare old as that of the countie of Rais saieth hee which suite hath beene so well entertained in all the Chambers of Iustice as albeit the parties that began it are long since deade yet the suit it selfe is still aliue Besides wee haue not so many Appeales nor so many reuiewes of causes as the Ciuill Canon lawes do admitt neither haue wee at this day so many delaies by Essoines viewes vouchers protections as were in vse in former ages when titles of land were tried onely in actions Reall which are now growne almost out of vse a more speedy course of triall inuented by mâ—xt personall actions Lastly there is no Nation in the world I speake it for the honor of our Nation of our land that hath a course of Iustice so speedy withall so commodious easie for the subiect as our trialles by Assise nisi prius are For what Kingdome is there vnder the Sunne wherein euery halfe yeare the publike Iustice doth make her progresse into euery part thereof as it doth in the kingdomes of England Ireland whereby it commeth to passe that whereas the people of other contries do trauell farr to seeke Iustice in their fixt setled Courts as it were at fountaines or Cesternes the streames of Iustice are deriued vnto our people brought by conduit pipes or quilles euen home as it were to their owne doores And thus much I thought fitt to obserue for the clearing of that vniust imputation of long vnnecessary delaies in our legal proceedings 3 But there is yet another exception against the professors of our lawe namely that wittingly willingly they take vppon them the defence of many bad causes knowing the same to bee vniust when they are first consulted with retained And this is obiected by such as presume to censure our Profession in this manner In euery cause betweene partie partie say they there is a right there is a wrong yet neither the one partie nor the other did euer want a Counsellor to maintaine his cause This may bee true for the most part yet in truth the learned Counsell whose fortune it is to light on the wrong side may be free from imputation of any blame For when doth the right or wrong in euery cause appeare when is that distinguished made manifest can it bee discouered vppon the first Commencement of the suite before it bee knowne what can bee alleaged proued by either partie Assueredly it cannot therefore the Counsellor when he is first retained cannot possibly Iudge of the cause whether it bee iust or vniust because be heares onely one part of the matter and that also he receaues by information from his Client who doth euer put the case with the best aduantage for himselfe But when the parties haue pleaded are at issue when they haue examined witnesses in course of equity or bee descended to a triall in course of lawe after publication hearing in thâ—one cause full euidence deliuered
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
enfeoffe vn Fagan que enfeoffe Brien mac Owen lessor del plaintife Et est darrainement trove que Art Okieffe Eleanor sa feme deviont que apres lour mort Manus Okieffe enter enfeoffe Cahir O callaghan le defendant que enter eiect le lessee del Brien mac Owen sur tout cest matter les Irors priont l'advise del Court c. Sur que vn maine question surdoit viz. si le title del heire al common Ley que le defendant ad ou le title del Tanist que estate le lessor del plaintife ad serra preferre come cest Case est Et en le discussing de cest question 3. principall pointes fueront move argue 1 Si le dit custome de Tanistry soit voide ou nemi en luy mesme ou auterment abolish per le Introduction del common ley D'engleterre 2 Admitt que soit bon custome nient abolish per le common ley si soit discontinue destroy per le feoffment que create limitt estate taile en la terre solonque le course del common ley issint que ne serra reduce al course de Tanistry quant le estate taile est determine 3 Si Conoghor O callaghan que enter come Tanist apres le estate taile determine ad gaine melieur estate per son sâ—rrender al Roigne Elizabeth le regraunt fait aluy per letters patents 1 QUant al primer point fuit obiect per le Counsell del plaintife que le dit custome de Tanistry come est trove est bon per les rules del common Ley. Car 3. choses doent concurre pur fair bon custome Antiquity Continuance Reason Et est expressment trove que cest custome est auncient devant temps de memory continuall de temps dont memorie ne Court pur ceo si soit reasonable auxi ceo ad touts qualities de bon custome Et certes cest custome que done la terre al pluis eigne pluis digne home del sang surnosme del cesty que morust seisie est fort reasonable en cest Realme pur ceo que il poet mieux manure la terre defender ceo que vn enfant ou feme Et le continuance de terre en le sang surnosme est bon reason consideration de raiser vse Plow Comment fol. 305. Baintons case ou le dignitie del heire male est expresse en plusors Cases pur que cest custome ne fault reason pur defence de ceo Lit. libr. 1. fol. 17. a. mise cest rule cestascavoir que en divers Seignories divers Mannors sont plusors divers customes quant a prender Tenements quant a pleader quant al auters choses tout ceo que nest pas encounter reason poet bien estre admitt allowe Et coment que cest custome serroit repugnant al rule del common ley ceo ne prove ceo destre vnreasonable car les customes de Borough English de Gavelkinde sont contrarie al common ley en le point de discent de inheritance vncor sont approve come reasonable customes issint le custome del turning le plow sur headland d'un auter de drier nettes sur auter terre 21. Edw. 4. 50. 8. Edw. 4. 19. Issint que feffment ove garranty fait per temant en taile ne serra discontinuance ceo est contrary al rule del Ley vncor bon custome 30. Ass p. 47. Et plusors Cases fueront mise a cest entent Et sicome cest custome nest voide pur fault de reason issint nest voide pur fault de certenty Car la terre descendera al pluis eigne pluis digne le pluis eigne poet estre certeinment conus mes le pluis digne semble destre vncerteine car que serra Idge de ceo certes la Ley que est tout foites certeine infallible en sa Idgement Et la Ley dirra que le pluis eigne est le pluis digne cibien en cest Case come en auter Cases de cest nature Et pur ceo Litt. dit en le Case de 3. freres si le mulnes purchase terres morust saus issue le eigne frere avera la terre per discent pur ceo que le eigne est pluis digne de sang Et en le chapter de Remitter il dit lon home ad 2. titles a terres Tenements viz. vn plus auncient auter plus darraine la Ley adiudgera luy eins per force del pluis eigne title pur ceo que le pluis eigne title est le plus sure title le plus digne title vid. Plow Comment 259. a. Mes admitt que l'affirmatiue part del custome viz. que la terre descendera al pluis eigne pluis digne home c. serroit voide vncor le negatiue part del custome viz. que les files ne serront inveritable cest bon car sont plusors bon customes en le negatiue enconter les expresse Maximes rules del common ley Come que feme navera dower ou el ad receave part des deniers pur le sale del terre 20. Ed. 3. Br. customes 53. Et le custome en Kent que le Seignior navera terre per Elcheat The father to the bough and the sonne to the plowe Et le custome de que Kitchin parle fol. 149. b. que si home marrie widowe el navera dower Et donque si cest part del cuâ—â—ome soit bon IdgemeÌ„t serra done encounter le defendant pur ceo que il derive son title del file que est heire generall al common Ley. Et cest custome nest abolish per l'Introduction del common ley pur divers reasons 1 Pur ceo que est reasonable custome agreeable al rules del common ley come devant est monstre sur cest reason est resolve 21. Eliz. Dier 363. que le custome de vill de Denbigh in Gales que vn feme covert ovesque sa Baron poet alien sa terre per surrender examination en Court la ceo liera la feme ses heires come fine nest toll per le statue de 27. Henr. 8. coment que cest act introduce le common ley en Gales come appiert per le title de ceo For lawes and Iustice to be ministred in Wales in like force as in the Realme of England 2 Comâ—nt que le Brehon ley que fuit le common ley del Irisbrie devant le Conquest soit abolish per establishment del common ley d'engleterre que fuit iustment fait solonque la ley del nations nient obstant que ceo fuit vn Christian kingdome come appiert en Caluins Case en le 7. part de les Reports de le Seignior Cooke 17. b. vncor les particular customes poent estoier come le custome de Gavelkinde in Kent auters customes en auter
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