THE CASE, as Sir William Ashton puts it, is, viz.

Sir William Ashton hath a Letter from his Majesty to the Lords Justi­ces Letter dated 3. Novemb. 1660. of Ireland to pass Letters Patents under the great Seal, to make him second Justice of the Kings Bench there. Dated the 3 Novem. 1660.

Sir Jerom Alexander hath a like Letter to make him second Justice of the Court of Common Pleas in Ireland. Dated 30 Novemb. 1660.

Several Letters Pattents pass to each accordingly, both Dated, the 19 of Letter dated 30. Novemb. 1660. January 1660.

Both Letters Pattents are presented to the Lord Chancellor, at the same time, Both Letters Patents dated 30. Jan. 1660. both being in place.

Sir Jerom Alexander demands Precedency, and to be first sworn, as Antient to Sir William Ashton in the Inns of Court in England, and an utter Barrester before him.

Sir William Ashton demands Precedency, and to be first sworn, as he was made second Justice of the Court of Kings Bench: as having a Precedency before the Court of Common Pleas, and as his Letter from the King, was of a prior date.

The Lord Chancellor inquires of the Officers of the Courts then attending his Lordship what the practise therein had formerly been, and being informed by them Mr.▪ Patrick Tallant. (one of whom was the most eminent Attorney in the Court of Common Pleas) that the Precedency had alwaies been given formerly to the second Justice of the Kings Bench. Thereupon ordered Sir William Ashton to be first sworn with a salvo Jure to Sir Jerom Alexander if any he had.

The first question is to whom the right of Precedency belonged at first: To Sir Jerom Alexander, as antient to Sir William Ashton in the Inns of Court; or to Sir William Ashton, either in respect of being second Justice of the Kings Bench; or as having his Majesties Letter of a Prior date.

The second question is: whether Sir William Ashton being (de facto) first sworn ought not to have the Precedency as Senior Judge, notwithstan­ding the (Salvo Jure) to Sir Jerom Alexander.

WILLIAM ASHTON. The Argument for Precedency by Sir Jerom Alexander.

First, I shall agree it to be the Case in all things, but in this one thing only, which is matter of Fact and resteth in Proof.

And I do affirm, that it was not all the Officers of the Courts there present [Page 2] that did affirm, that the Precedency had alwaies béen formerly given, to the second See Mr. Tal­lants testimony un­der his hand, of the 20 of Decem. 1661. in haec ver­ba. When the Right Honorable the Lord Chance­lor demanded of me who should be first sworn, Sir Jer. Alexander, or Sir William Ashton, I repaired down the stairs to en­quire of those whom I conceived better to give an account of that matter then myself. And meeting below the stairs with Coll. Wil­liam Knight; I put the question unto him. Who answered me, that the second Judge of the Kings Bench was al­waies sworn be­fore the second Judge of the Com­mon Pleas. And thereupon I came up again, and in­formed his Lord­ship the same. Pa. Tallant. Justice of the Kings Bench (nor is it so, but the contrary.) But my Lord Chan­cellor directed Mr. Tallant (who is that Eminent officer of the Court of Common Pleas, mentioned by Sir William Ashton in the draught of his Case) to inquire how the practise had formerly béen: And he méeting with one Collonel Knight; inquired of him, who told him so; and upon that single discourse with Collonel Knight, without any conference had with any other of the Officers there pre­sent; and without any knowledge that he had thereof himself: Mr. Tallant re­turns my Lord Chancellor that answer. And thereupon my Lord swears Sir William Ashton first, with a Salvo Jure to me.

Now albeit this makes nothing for Sir William Ashton in the Case. When I shall make the contrary to appear. Yet I cannot admit of it: because it is not the truth.

And therefore if my Lord Chancellor shall not; upon hearing what we can say for ourselves, be pleased to determine the difference, but shall think fit to transmit it for England, I shall humbly desire those words may be left out, and the Ease made no otherwise, then as it was: and that Mr. Tallant may be called to declare his testimony to this relation in the Case.

But if in the Course of my Argument, I make the contrary to appear; all that allegation of Sir William Ashtons, will be out of doors: and fall of itself without any more ado.

So I shall proceed to argue the points of his Case. And shall begin to argue his second point first, as most material.

For if the Salvo Jure to me, shall operate nothing, we are at an end. The first point will never come in question.

For if Sir William Ashton being (de facto) first sworn, therefore ought to have the Precedency as Senior Judge: Notwithstanding the Salvo Jure to me. Then the controversie is at an end.

Therefore I shall indeavour in the first place to probe that this (Salvo Jure) doth séeme to me my right of Precedency: Notwithstanding that (de facto) Sir William Ashton was first sworn. As this Case is.

And howsoever Sir William Ashton have made this a question in the Case. Yet I presume he is so much a Gentleman, and so conscientions of his waies, that if he shall be satisfied; that the right of Precedency did belong to me to be first sworn, as we stood unsworn; that he will not take advantage of his own wrong, and kéep that right from me, which he should so gain by a false suggestion.

But I doubt not but to make it clearly to appear.

1 First that the Salvo Jure in the Case, have secured unto me, what right of Precedency I had to be first sworn; (as we stood unsworn.)

2 Secondly That the right of Precedency to be first sworn did properly belong to me; as we stood unsworn. Notwithstanding his being made second Judge of the Kings Bench: And notwithstanding the Prior date of his letter. My Lord Chan­cellor the proper Judge of this con­troversie.

And first I conceive that Sir William Ashton will not deny, but that my Lord Chancellor is the proper. Judge of this controversie, and so have power of doing right unto us both. This is so undeniable a truth, as it néeds no other proof, but aconstant usage and custom as through all England, so throughout all Ire­land; which is the Common Law. For those customs and usages, which are used and accostomed: Per totam Angliam, & per totam Hiberniam, are the Common Laws of England and Ireland.

Then the usual practise, and course in these Cases have béen; That the Lords The Judges Oath settled by the Stat. of 18. E. 3. Chancellors of England and Ireland have constantly, and continually used to swear the Judges to exercise their Offices; according to that Oath prescribed by the Statute of 18. E. 3. Before they enter upon the execution of their places,

So that, Albeit it be the Letters Pattents which makes him a Judge; yet without this ceremony of first swearing him to be faithful to his trust, &c. He cannot take upon him the execution of that Office.

The King is Fons Justitiae; and as Kitchin sayes, at first did justice to his people in his own person. As Moses did; in the time of the old Law, until Jethro The King is Fons Justitiae. Kitchin. advised him, to depute Judges under him for lesser matters, to ease him ofso great a burthen.

[Page 3]Thus our Kings of England and Ireland of their Prerogative Royal, have the The King have the sole nomina­tion and ap­pointment of his Judges sole denomination, and appointment of their Judges. Whose Offices being granted to them by Letters Pattents under the Great Seal: Yet the Lord Chancellor delivers them to them, and not before they have taken the Oaths of Judges as a Feoffment in Fee without livery and Seizin, takes no effect. So this Oath is as a Livery and Seizin, to give them possession of their places. A feoffment in fee without livery & seizin, takes no effect.

The Lord Chancellor may perform this office as he pleases; yet most regular­ly, 'tis done in that Court, where the party is made a Judge: The Lord Chan­cellor sitting there in person, and calling the party before him, & advertising him of the Kings favour and pleasure; causes the Letters Pattents to be read, then The manner how Judges ars ussually sworn. gives him the Oath, then admonisheth him concerning his trust; how he ought to be faithful in that, and how to carry himself; then sets him in his seate, and there leaves him.

My Lord Chancellor of England too, is the prime Agent in making of Serje­ants The Lord Chancellor of England a prime agent in making of Ser­jeants at Law. at Law; out of which the Judges there are still chosen by the King, and there he cannot be a Judge, that is not first a Serjeant. Fortescue. 120.

Fortescue some times Lord Chancellor of England, describes the manner of calling of Serjants in those daies.

The Lord chief Justice of the common Bench, by the councel and assent of all the rest of the Judges, have used to chose seven or eight of the discréetest persons, that Fortescue de laudibus le­gum Angliae 117. have most profited in the study of the Laws, to be called Serjeants, presenting their names unto the Lord Chancellor in writing; who by vertue of the Kings writ, which he issueth, he chargeth every of the persons elect, to be before the King, at a day by him assigned, to take upon him the state and degrée of a Serjeant, The manner of calling of Ser­jeants at Law. under a penalty in the Writ mentioned; at which day the Lord Chancellor swears them, &c and so invests them in their degrees of Serjeants. And after­wards they are presented at the Common Bench bar unto the Judges, in their Fortescue supra. 120. Brook 1. par. R. 84 party coloured robes. Where they are admitted to plead; and none but Serjeants.

Thus the Lord Chancellor hath the sole power by antient usage and custom; which is the Law of the land investing every Serjeant, and every Judge in taking The Lord Chancellors have the power of order in these cases. their degrees and places. According to their Seniorities, as they are in their degrees one before another.

Neither in any Country in the world, is there any special degree given in the Laws of the same lands; but only in the Realme of England.

Then my Lord Chancellor having made this saving in the Case, to preserve Fortescue 120. my right of Precedency. I shall in the next place indeavour to proove that it is No degrees given in the law of the same land but in England. [...]ali [...], and of force to preserve it to me.

A Saving, is the preserving of a right from being lost; by an act, which otherwise would destroy it.

And therefore Savings, are most frequent in Acts of Parliament, to pre­serve mens rights, that they be not lost; Which to pass without a Saving were A Saving what it is. otherwise extinguished.

Several kinds of rights. Cook. 1. Instit. 345. Now there are several kinds of Right, As.

• 1 Jus, recuperandi.
• 2 Jus, intrandi.
• 3 Jus habendi.
• 4 Jus retinendi.
• 5 Jus percipiendi.
• 6 Jus possedendi.

So that this wor [...] Right, is of a large extent, and in a (Saving) doth include Plow. Com. 487. b. 488. a. every one of these Rights, And more.

And as it is said in that Case, that it stands with reason and justice; that that Right shouldbe alwaies preserved to him, to whom it doth belong. And therefore this word (Saving) saith Plowden, extendeth to preserve unto a man, everything that is his. It is a general word, and shall in the Saving be extended to that thing which a man pretends right unto; or in which he hath an estate.

Thus in Fi [...]e [...], the right of the Land includeth, and passeth the state of the Land. Cooks Instit. 1. 345. esse jus. Stat. West. 2. 3. jus summum. As & cognov [...]t tenementum Praed. esse (Jus ipsins B.)

And so in the Statute of West. 2. ca. 3. The Statute saith defendere Jus su­um; which is Statum suum.

Then the Case of my Lord Dyer, concerning the Deanary of the Cathedral Dyer. 10. Eliz. 273. Church of Wells, which was first surrendred, and afterwards extinct by Act [Page 4] Parliament (Saving) to all strangers, their rights, &c. and this adjudged a pre­serving of all the rights of strangers, whatsoever, that had any estates made them by the Deane or Chapter before.

Then in Pophams Reports, Pophams Rep. 16. there is a Case to this effect, viz.

The Town of Gloster made a County with a Saving, that the Justices &c. may sit there.That King R. 3. by his Letters Pattents, doth grant to the Burgesses of Glo­ster, and unto their successors, that the Town of Gloster shall be a County of it self; several and distinct, from the County of Gloster (Saving to the King His Heirs and Successors; that the Justices of Assize and Gaol Delivery; and Justi­ces of the Peace of the said County, may at all times enter into the said Town, and hold and kéep the Assizes and Sessions there, for the said county. And it was adjudged by all the Justices, that this was a good saving; whereby the Judges of Assizes, and Justices of the Peace, might enter into the Town, and kéep the Assizes and Sessions there, for the County at large.

For as the King by his Letters Patents may make a County, and except this from any County; so in the making of it, he may except, and save to himself, what part of the jurisdiction and priviledge thereof he pleaseth.

My own Cose in Lincolns Inn. Lincolns Inn ad concilium ibid tent. 11. die Febr. An. R. Jac. &c. 20.And I shall conclude this point with a case of mine own.

Ʋpon reading a certificate that Jerom Alexander Gent. was admit­ted in the society of Furnivals Inn, the first day of Ju­ly, 1609. and du­ring his abode, demeaned himself well, and perfor­med exercises of learuing; and being now a fel­low of this house, was at this Coun­cel called to the Barr. Albeit he was not seven years compleat of this society. Sa­ving to all his Antients their Antiquity; and is to be published in Easter Term next. He first paying all duties to the house and chappel. Ro. Ayre. C N. L.Mr. Justice Brown, now one of the Judges of the common Bench in England, and my self, being both admitted of the house of Lincolns Inn, upon one day, and at one time; yet because I had been a student three or four years in Furnivals Inn before; had the favour of the house to be called to the Barr one year before him, so by taking of that degree; should have been his Antient, and taken Precedency before him. Albeit re vera, he were my Antient in the house before. But in the order of my call, there is a (Saving) to all my Antients their antiquity; and by this saving I lost my Precedency to him: and upon this only reason; that the Barrester which presented him to the Bench, at the same time, was antient to the Barrester that presented me; and yet both presented together at one instant of time.

This is directly in the point. So as that by a saving I once lost my Prece­dency: so now I hope by a saving to preserve my right of Precedency; it being my due, and just to have it.

Then as to Sir William Ashtons second question. Whether the right of Pre­cedency belonged at first to me, as antient to Sir Willam in the Inns of Court. Or to Sir William Ashton, either in being second Justice of the Kings Bench; or as having his Majesties Letter of a Prior date.

And I shall clearly proove that the right of Precedency, did clearly belong to me at first.

1. Notwithstanding that Sit William Ashton was made second Justice of the Kings Bench.

2 And notwithstanding that his Letter is of a Prior date.

The first questi­on. The second in order to be deba­ted, Then first, We must look to the rock from whence we are hewen; to the Inns of Court in England, and see what is usually▪ in such Cases done there; and then consider what is to be done, and is usually done here in Ireland, in a Case of this nature.

Of the Inns of Court, and Inns of Chancery in England▪ Then in England, we know there are four Inns of Court, and eight Inns of Chancery; two Inns of Chancery appropriate to every Inns of Court. Where that all those that profess the Law (under the degrees of Serjeants; for they Four Inns of Court, eight Inns of Chancery in Eng­land. have two Inns belonging to themselves apart, where the Judges and Serjeants do only lodge) but all, aswel those in places Judicial as Ministerial, have their breedings there at first.

And antiently, every one that intended the practise of the Law, was first ad­mitted of one of the Inns of Chancery; and began his studies there, where by converse with Officers, Attourneys, and Clerks belonging to the Courts of Law, they gained much knowledge and experience, in the practique part of the Law, which made their studies much more easie, and made them much the better to un­derstand the Theory of it, in their books, and fitted them much the better for the practise of it afterwards.

Nor was it time lost to study there; not only for the reasons aforesaid. but of great benefit and advantage also, For that every Inns of Court, having two of the Inns of Chancery appropriate to it, they usually sent them Readers from amongst [Page 5] themseves Barresters at Law to read the law to them, in those Inns; before whom they performed exercises of learning, argued the readers case at the barr in Every Judge was first a student of some one of the Inns of Court, then a Barrester, then a Bencher, then a Reader, then a Serjeant at Law, then a Judge. in the house. And then every Inns of Court also sent two students, of the most an­tient, under the barr; for to argue likewise the readers case, there in the said Inns of chancery. And in this way, antiently were all our famous Judges of England bred; and whose judgments we now reverence. as Presidents for imi­tation. And then, when after they came from thence to the Inns of court; they had some of that time allowed them which they had spent in the Inns of chancery, in their studies for promotion unto the Barr.

Then every Judge in England, was first a student in some one of the four Inns of Court, and after seven years study, was by the Benchers, who are the Gove­nours Carys Case in Noys Rep. 107. of those houses; called to the Barr, and admitted to practise as a counce­lor at Law; then was a Bencher, then a Reader, then a Serjeant, then a Judge.

And in England, no man can be admitted for to practise as a Lawyer, before he hath been called to the Barr. For in Noy's Reports, in Carys case? it is there delivered for Law, that by the course of the common Law, a man may not give The Inns of Court no bodyes politique. councel or advice, until he hath béen called to the barr; no, though he hath Let­ters pattents, enabling him to do so, as fully as if he had béen called to the Barr.

The study of the Law a noble study. And though the Inns of court be no Bodyes Politique, incorporate by letters pattents to plead, and be impleaded by any name; yet by the common law of England, which are the common customs of the land; they have gained such a The study of the Law qualifies men for other im­ployments both at home and abroad though they make, it not their pro­fession. power to themselves, that within their several societies, they have the power of an order and Government, to promote the noble study of the law, in the best way they shall think fit.

And therefore the more noble; because almost all the Nobility and Gentry of the land, for the most part have their education there; as it were an Vniversity or school of all commendable qualities, requisite for Noblemen and Gentlmen; where those that will not make it their profession, yet do exercise themselves, in They have de­grees given in [...]. And in no other Country in the world for the Laws of the land. all kind of other studies, and pastimes, which are fit for Noblemen and Genlemen to recreate themselves withal.

And therefore, for the endowment of virtue; Noblemen and Gentlemen will place their children in those Inns of court; though they desire not to have them pra­ctise the law, but for the better qualifying of them, for other imployments, both The Seniority goes according to the admittance both in the house and abroad. at home and abroad.

They have degrees given them also, as in the Vniversities; and not degrées only, but also a state no less solemn, then theirs.

And as in the Vniversities, he that is first matriculated, and so received into the fellowship of the Vniversity, hath the Precedency of all that come after him. So it is in the Inns of court. All students take their places according to their admittances into those societies, whereof they are made members: Which is done by the several Benchers of those houses, to whom they are presen­ted.

And as this admittance, and the receiving thereof, gives us Precedency in the house, at all méetings and exercises within the house, so it doth abroad. As at all readings in the▪ Inns of chancery, whether two from every of the four hou­ses are sent to argue the Readers case: There every man takes his seniority, accor­ding as he hath béen admitted, in any of the Inns of court without distincti­on. The degree of the bar gives seni­ority to all that slip their time.

And when they take their Degrée of the Barr, still they continue their seniori­ties; unless it happens (as often it doth) that some do slip their time, and do not take their degrée till afterwards, and then he looses his antiquity to all that have taken their degrees before him; for the Degrees gives the seniority.

The same rule is holden as to calling to the Bench.The same rule is holden, as concerning those that are called to the Bench. He that is first called, hath his seniority accordingly. The same rule is concerning Ser­jeants at Law, when called. The manner shewed herein before.The same order is obser­ved concerning the call of Serjeants, all are sworn according to their Seniori­ties.

And as a Barrester at Law, cannot regularly be called, till he be seven years standing a student: So no man can be made a Serjeant at Law, till he be sixtéen Fortescue 120. [Page 6] years a student in some one of the said four Inns of Court, and a Barrester, and hath been a reader in the house whereof he hath béen a member.

To be a double reader how ment. Some will have it, that he must be double Reader, before he be made Serje­ant. But that may be ment of reading in the Inns of Chancery, and then in the Inns of court, as commonly all did heretofore that were made serjeants; and yet that is no certain rule. For now serjeants are commonly called that have but read in the Inns of court alone; some have béen called that have not read at all, as Sir Thomas Heatley, who was made puis [...]e, to all that call of serje­ants, though he were senior to many of them that were called with him, which 2 Par. Crook. Rep. 671. proves that reading in an Inns of court is necessary to precede the calling and de­grée of a serjeant at law. Some call them serjeants of the Quoife. And that procéeds from this: You may observe them to wear a white Quoif of silk; it Fortescue de laudibus legum Angliae 120. and 121. should be in token or sign, that all are thus graduate, which is the principal and chief insignment of habite with which Serjeants at law, in their creation are decked; and neither the Justice, nor yet the serjeant shall ever put off the Quoife▪ no not in the Kings presence, though he be in talk with him. Fortescue ibid. What a Judge is.

But a Judge is no degree in the Law, saith Fortescue; but an office only, and a room of authority, for to continue during the Kings pleasure. And in England he cannot be a Judge, unless he be made aserjeant at Law first. Order and pre­cedency amongst the Judges.

And we shall find order and Precedency amongst them also: Both in England and Ireland.

The Lord chief Justice of the Kings Bench, takes his place before the Lord chief Justice of the Common Bench; and the Lord chief Justice of the Common Bench, before the Lord chief Barron; and the Lord chief Barron before all the puisne Judges of every the Courts of Law; and then the puisne Judges of all the Courts, one before another, as they are sworn one before another. See 2 par. Crooks R. 170 par. 24.

Judge Fosters case. Swearing first gives the Se­niority. Sir Thomas Foster Serjeant, was sworn a Justice of the common Bench. And Sir Edward Heron being an antienter Serjeant then he, was sworn one of the Barrons of the Exchequer; and because Serjeant Heron was sworn after See Crooks 2. Rep. 197. the other, and though both in one day, yet he lost his antiquity to Foster, for that reason only.

No Saving no Precedency. But there was neither any demand of Precedency, nor any Saving in that Case, as in this case of mine; for I did all things in order to preserve my right And am therefore confident▪ I shall not loose it.

The next is, Sir George Crooks own case; who in Michaelmas Tearm 4. Sir George Crooks own Case in his 1. Rep. 127. Caroli. Being then a Judge in the Court of common Pleas, was removed into the court of Kings Bench; and before his removal, Justice Yelverton, then a fellow Judge with him in the same Court. And Sir Thomas Trevor and Vernon, being then Barrons of the Exchequer, were his puisnes; who pretended, that by his removal, and his taking the Oath de novo in the Kings Bench; he had lost his Precedency to them, and therefore claimed the place of him. But it was ru­led by all the Judges for Sir George Crook: but upon this reason, that albeit he were new sworn; yet he never ceased to be a Judge. And therefore his swearing de novo in another Court, did not loose him his Precedency which he had before.

First, By all which it doth appear, that all students of any of the Inns of Court in England, have Precedency one before another, as they are admitted in time one before another.

And secondly, That all Barresters, Benchers, and Serjeants at Law, have Precedency one before another; as they are called to those degrées one before another.

Thirdly, That an puisne Judges take their Seniorities, as they are sworn one before another.

Fourthly, That all Barresters, Benchers, Serjeants and Judges, when more come at one time to be sworn together, each is sworn according to his Seni­ority which he hath before others at the time of his swearing. His Majesties Letter of a prior date doth give Sir William Ash­ton no right of Precedency before me at all.

The next thing that is confiderable in this Case is, what his Majesties Letter of a prior date doth opperate to give to Sir William Ashton precedency before me.

His Majesties Letter imports no more, but his Majesties pleasure thereby sig­nified, [Page 7] and direction given to make him a Judge: So is only an act of choise, and of no more effect, then if his Majestie should have declared his pleasure, at several times in one day, to make several Judges of his several Courts. This doth con­fer nothing upon the person de facto; but is if a matter in fieri, to be done, for notwithstanding that; they are not Judges, till they are made so uppon record, by his Majesties Letters Pattents under his great Seal, which is a record; and then the Lord Chancellors his swearing them to perform that duty and office, with which the King have intrusted them; so the Kings pleasure first signified, makes nothing at all for to make a man a Judge, nor doth it add any force or strength unto Sir William Ashtons demand. Crooks 2. par. R. 1.

For this purpose; the Case in Crooks second Reports, doth put it to be so, and is a stronger Case, then this of Sir William Ashtons.

Where eleven Serjeants were called by Writ, in the life time of Quéen Eliza­beth, and before the return of the Writ, the Quéen dyes, and King James suc­céeds; and afterwards new Writs do issue, to call them in the reign of King James, returnable at a day certain; and afterwards other Writs issue of a later The Letters gives nothing of Precedency, in respect of the date one before another for the teste of a Serjeants Writ one before another gives no right of Precedency in ta­king the degree. teste. To call three more, viz. Snigg, Shurley, and Hutton, returnable at the same time with the other eleven; all come to the Bar together to take their Oaths, according to their Seniorities; notwithstanding the several testes of their Writs one before another.

And Sir John Crook, whom I knew afterwards a Judge in the Kings Bench, being one of that call, who having formerly been Speaker in the house of Com­mons in Parliament: And therefore had Precedency before all Councellors at the Bar; and would therefore have béen senior, of all that call of Serjeants, which was much laboured for him at Court; yet being puisne to five of them, was sworn after them, according to his seniority.

Whereby it appears, that it was not the prior Teste of the Writs, nor his pri­viledge of having been Speaker of the house of Commons, that gained any thing of priority one before another. But their seniorities one before another, as they stood unsworn; which settled them in their Precedency one before another; as they stood in their degrees one before another. And this is a stronger case then Sir William Ashtons: In as much as a Writ which is an essential part of the call, is more towards the degree, then his Majesties pleasure barely signified by his Let­ters. Objection, that albeit it may be so in England, yet not in Ireland.

But then it may be objected; that albeit this may be granted to be the order and rule in England; yet it is not so in Ireland. For here are no Inns of Court, here are no degrees taken of Barresters, Benchers and serjeants at Law; Nor are the Judges here made from amongst that order of serjeants at Law; but of such whom the King pleaseth to nominate, and appoint for that service. And then Sir William Ashton being appointed first to be a Judge of the Kings Bench, ought to take place of me; as declared after him to be a Judge in the Common Bench. The same com­mon Law that governs England also Ireland is go­verned by it. King H. 2. 18.

That the Common Law of England is the same Common Law by which Ire­land is also governed: Introduced by King John in the twelfth year of his reign. Although the conquest of Ireland, was made before, by King Henry the second, in the eighteen year of his reign, who was father to King John. And placed many Britains here; and granted the City of Dublin▪ to the men of Bristol, to inhabite, and then returned into England; and afterwards, in the twenty third Cooks instit. 141. 7. R. 22. in Calvins case, Ro [...]. Parl. 11. H. 3. memb. 3. year of his reign, by Parliament he constituted his sonne John (who was after­wards King of England) to be King of Ireland, and granted to him and his heirs, the whole Kingdome. And in the twenty sixt year of his reign, he sent King John into Ireland, with a great train of young gallants. He being then but twelve years of age; who used the Irish with such disdain, and derision, that the Irish took occasion thereat to revolt from him and his government, so that he shortly after returned back into England, without doing any remarkable thing. But notwithstanding his creation to be King; yet during the life of H. 2. & R. 1. He was stiled in his several Charters, by the name of Dominus Hiberniae, (and not King) until after the death of King R. 1. As apears by several Charters by him, gran­ted to the City of Dublin; in the first whereof being without date. He is [...]led, Johannes filius domini Regis Angliae, & dominus Hiberniae. And in the second, [Page 8] bearing date at London▪ the 15. of May; in the year of the reign of King▪ R. 1. He is stiled Johannes dominus Hiberniae comes Mortoniae. And in a third Charter granted to the City of Dublin, bearing date at Upton the 7 of February in the 2. year of his reign. He is stiled, Johannes dei gratia Rex Angliae, dominus Hiberniae, dux Normandiae, & Aquintaniae, comes Andegaviae.

Then afterwards, in the twelfth year of his reign, he came again into Ireland, and brought along with him many learned men in the Law, and other Officers and Ministers of all sorts; and established the form of Civil Government, to be according to the Laws of England.

So that he not only introduced the Law; but we may conceive, settled Judges (which in the History goes by the names of learned men.) And ministerial Offi­cers The common law being the same, the same rules of making Judges and offi­cers in the courts of Law must be the same. of all sorts, in the Courts of Law; such as are in England. Which forms of Government, have ever since continued in this Kingdome to this day.

This being thus; it follows; that the same Rules and Orders of procéeding, in making Judges and other Officers; and procéedings in the Courts of Law should be the same, as well in Ireland, as in England.

And we see, and know by experience and common practise: That all the Courts of Law; and the Officers, are the like in name and power: And all of them have, and take the same Places, and Precedences, one before another; here, as there. The antient usages and customs of the land, is the common law of the land; as 'tis said in Combes case, in Cooks. 9. R. That which is used, per totam Angliam, is the common law. For the custom of the land, is the law of Combes Case 9. R. 75. b. the land. Therefore in my Lord Dyer, where 'tis sald, quod habetur talis What the com­mon law of Eng­land and Ireland is. 34. H. 8. Brooks Cases foll. 57. P. 225. consuetudo interjuratores per totam Angliam, &c. This is said to be the common law. And so all these customs and usages of making Barresters, Benchers, Serjeants, and Judges; and their taking of their Precedencies one before ano­ther, as is aforesaid. This Lex te [...]e, is the common law of the land. And is a matter of civil right and order; neither against Justice, nor the Common Wealth; 22. H. 6. 21. 34. H. 8. Dyer 54. nor is it to the prejudice of any man, and therefore reasonable; and to prevent disorder and confusion, and therefore necessary and convenient. And then, Con­suetudo, ex rationabili causa usitata. And so just.

And if we shall well weigh, and consult the statute of 33. H. 8. 3. here in Ire­land. Stat. 33. H. 8. 3. We shall find that it was the judgment of that Parliament, that it should be so, which is but a declaration of the common law before. For that statute sayes. And provides thus. viz.

Provided alwayes, and be it Enacted by Authority aforesaid, that no person, or persons, that now is, or hereafter shal be within this Realm; except the Par­ty, The Proviso. Planitiffe, or Demandant, Tenantor Defendant, shall be admitted, or allowed as a pleader in any of the Kings fower principal Courts, within this His gracious Realme, in any case or matter whatsoever it be; or yet to make or exhibite, to or in any of the said fower Courts, any declaration or bills, plea in barr, repli­cation, or rejoynder; or to give evidence to any Jury, unless it be for the Kings Majesty, or to argue any matter in law; or yet to do, or minister any other thing or things, in any of the said fower Courts, which customarily have béen used to be done, by one learned, or taken to be learned in the Kings laws; but such per­son and persons, as hath, or shall be at one time, or several times, by the space of [...] years, compleat at the least demurrant and re [...]ant in one of the Inns of court, within the Realm of England, studying, practising, and indeavouring themselves the best they can, to come to the true knowledge and jvdgment of the said laws; upon pain of one hundred shillings to every person, or persons offending contrary to the Proviso last before specified, or any thing therein contained.

Now upon this statute I do observe.

First, That it was made in a time of Popery. When all Lawyers then were Papists; and had liberty to plead in England and Ireland, And yet it was not thought fit, that any man should practise the law, that had not studied to make himself able for the exercise of the same profession. And therefore the statute calls them, that should be thus admitted to plead, men learned in the laws; and men cannot be learned in the laws, without studying the laws.

Secondly, Because they had no Inns of court in Ireland. Though by the introduction of the common law into England, it is conceived they had the li­berty [Page 9] of erecting Inns of court, and Inns of chancery as in England; yet wanting the means to do it; for to avoid barbarisme and nescience, or ignorance in the practise of the Law: They make this statute to compel those that should profess the Law in Ireland, to run the course of their studies in the Inns of Court, first in England; and therefore are in England to be called to the barr before they plead. And this shews likewise that they are two distinct Kingdomes, though governed by the like Laws. And that it was something doubtful before this Law was made; whether a Barrester of England might practise here in Ireland, with­out leave and licence of the State.

Thirdly, That howsoever this blank—for the years of their studies how many they shall be; happens to be in this statute; yet certainly it cannot be intended a lesser number of years then seven years; which are the number of years that men usually study the Laws in England, before they be called to the Barr; and then all Lawyers were Papists, and yet could not practise the Law as a Councel­lor, without first being called to the Barr. And then again, the word (compleat­ly) immediatly following the blank, doth insinuate the same thing: According to the rules and orders of those Inns of Court, where they were to compleat their studies.

And it is but reasonable and just, that a man should spend so many years for to acquire the understanding, and knowledge of so honorable a Science and pro­fession; when as an Apprentice to every trade, and Mechanical occupation, is by the Law tyed to serve seven years, before he can be made free to exercise his trade or occupation.

And Laws are called, Libertates, quia liberos facit, because they make a man Cokes 8 R. 129, 130. in case upon the s [...]at. of 5 Eliz. of Apprentices, cap. 4. free too, though in another sence. And Sir Edward Cook, in the Case upon the statute of 5. Eliz. Concerning Apprentices to be first bound to serve seven years, and then first to be approved of by the Masters of those companies, under which they serve, before they can be admitted to use their trades. He highly commends Coke li. 6. 19. this Law, saying; that as this course begets skill in the exercise of trades; so it were prejudicial to the Kingdome, if such should be permitted to use trades, in which they have no skill or understanding.

In respect of the dangers, which they themselves run also, and may incur otherwise. For be that will take upon him to use a trade in which he hath no Fitz. Na. br. 9. imperitia est maxima mechani­corum poena & quoslibet quaerit inqualibet arte pe­ritos. Coke 11. R. 54. skill, the Law provides him a punishment. as in Fitz Herberts Natura Brev. where an action of the Case was brought against a smith, for pricking of a horse. For men ought to be skilful, before they undertake such faculties.

And Scientia, we say non habet inimicum praeter ignorantem: Ignorance, is the greatest enemie to science. For these, are like blind men shooting at a Crow, if they kill her, it is by chance: They are like ignes fatui, commonly leading men out of the way; whiles they shine bright in their eyes. The proverb is true in this also. Money makes this man. But as 'tis said of the Nightingale; he is Vox & praeterea nihil; a sound and nothing else.

And 'tis against the rule of the common Law, for one tradesman to take up anothers trade, in which he never served.

And 'tis observable also, that Barresters are called Apprentices to the Law; Barresters at Law called Apprentices because they serve as Apprentices seven years, before they attain the Barr.

And much rather it ought to be so, as the study of the Law is far more diffi­cult, then it can be for a man to learn a mechanical trade and occupation. And how can a blind man judge of colours? It were a foolish presumption, if a lapida­ry should undertake to state the value and lustre of a Jewel that is lockt up, before he opens the Cabinet.

It is also necessary, that those that study the law, should be first called to the barr, before they be admitted to plead, and make the law their profession; as wel [...]or trying of their abilities, as that they take the Oaths of supremacie and alle­giance; as all Protestant Lawyers do, to witness their loyalty unto the King, and his Government. For how can the King trust him, to practise the Law un­der [...] [...] James [...] Knight, [...] second Baron of his Majesties him, in his Courts, to be conversant amongst his Records; to have that op­portunity by frequent discourse with his people, to seduce them from their religi­on and obedience; I say; how can the King trust such men, that will not acknow­ledge him to be the supream Head and Governour of his Kingdomes, aswell in th [...] [Page 10] Church, as in the state. And Piety is the greatest Policy, of all the rest.

And there is another statute in Ireland, which if I understand it aright, takes away that objection, or scruple of conscience rather; why they are so nice to take the Oaths of Supremacy and Allegiance, as they are penned in the statut which commands the taking of them: and which all Protestant Lawyers, I say do take before they be admitted to the Barr.

It is the Statute of 28. of H. 8. ca. 13. here in Ireland; by which it is enacted, and ordained; that all and every ecclestastical Judge, Ordinary, Chancellor, com­missary, Official, Vicar general, and other ecclesiastical Officer and Minister, Stat. 28. H. 8. cap. 13. here in Ireland. of what dignity, preheminence, or degree soever they shall be. And all and every temporal Judge, Justice, Mayor, Bailiff, Sheriff, under Sheriff, Escheator, Al­derman, Jurate, Constable, Headburrough, Bursholder, and every lay Officer and Minister, to be made, neated, elected, or admitted within this land; of what estate, order, degree, or condition soever he shall be, from and after the said first day of Novemb. (mentioned in the said statute) shall before he take upon him the execution of the said Office; make, take, and receive a corporal Oath upon the Evangelists, before such person, or persons, as have, or shall have authority to ad­mit him, that [...]e from thence forth, shall utterly renounce, refuse, relinquish, and forsake, the Bishop of Rome, and his Authority, power, and Jurisdiction; and that he shall never consent, or agrée, that the Bishop of Rome shall practise, ex­ercise, or have any manner of authority, jurisdiction or power within this land; but that he shall resist the same; at all times, to the uttermost of his power. And from thenceforth he shall accept, repute, and take, the Kings Majesty to be only supream head in earth, of the Church of England, and of Ireland; and that to his cunning, wit, and uttermost of his power, and without fraud, guile, and other undue means; he shall observe, kéep, maintain, and defend the whole effects, and contents of all, and singular Acts and statutes made, and to be made within this land, in extirpation and extinguishment of the Bishop of Rome, and his au­thority; and all other Acts and Statutes, made and to [...]e made, in reformation and corroboration of the Kings power, and supream head in earth, of the Church of England and of Ireland; and this he shall do against all manner of persons, of what estate, dignity, degree, or condition they be, and in no wise do attempt, nor to his power suffer to be done or attempted, directly or indirectly, any thing or things, privily or apertly, to the let, hinderance, damage, or derogation thereof; or of any part thereof, by any manner of meanes, or for any manner of pretence. And in case any Oath be made, or hath béen made by him, or any person or per­persons, in maintainance, defence, or favour of the Bishop of Rome, or his Au­thority, or Jurisdiction or power, he repute the same as vain and annihilate, so help him God and all Saints, and the holy Evangelists. Cowels inter­preter word office, and Minshaw up­on the word office.

And the word Office, & Minister do certainly comprehend, and intend all those Irish that now practise the Law. For the word officium, doth signifie the function by virtue whereof a man hath some imployment, in the affairs of another; as the King, or of any other common person: and therefore should take this Oath; they at least, that are admitted to practise the Law. And this Act of Parliament was made also in the time of Popery, and by all the Sages of this Kingdome of Ire­land, by the Lords Spiritual and Temporal, and Commons of the land all Pa­pists; whereby this question is clearly determined, that the King is supream head of the Church. And why should they more scruple to confess it now, then they did then, when their own Popish Bishops and Clergy, Piers and Com­mons asserted it. And Acts of Parliament are Established with such gravity, sapience, and universal consent of all the Realme, and for the advancement of the weal publique, that they ought to be maintained and supported. For as Forte­scue Fortescue ai. cap. 18. Cok. 10. R. 138. case of Chester Wills, ad idem saies of the statutes of England, so may we of our Irish statutes; Quod Hi­berniae Statuta non principis voluntate, sed totius regni assensu conduntur, quo populi laesuram illa efficere nequeant, vel non eorum commodum procurare; prudentia enim et sapientia ipsa esse re [...]erta putandum est dum non unius, aut centum solum consultorum virorum prudentia, sed plus quam Trecentorum e­lectorum hominum, qualem numero olim Senatus Romanorum regebatur edita [...]nt. And Acts of Parliament made by King, Lords, and commons of Parlia­ment, are as well of the laws of Ireland; and therefore to be expounded by the [Page 11] Judges of the Laws of Ireland; although the Acts concern ecclesiastical and spi­ritual jurisdiction. That the Judges of Ireland, [...] in England, do take place and prece­dencie one before another as they are sworn one be­fore another.

Then for a close of all; I shall make it to appear. That it hath béen the constant usage and custom here in Ireland as in England. That the Judges of Ire­land as in England, do take their Precedencies one before another, as they are first sworn Judges one before another; and according to the Course and manner of England.

The case of te­nures upon the commission of de­fective titles ar­gued by all the Judges of Ireland and printed 1637. By my Lord chief Justice of the Kings Bench in Ireland that now is. And for this. I shall cite you a printed Case in the point. The Case of Tenures upon the commission of defective titles. Some of the Judges now, being Jud­ges then; and can witness it viva voce, if néed be.

The Case was this.

King James by Commission under the great Seal, dated the second day of March in the fourth year of his reign, did authorise certain Commissioners to grant the Mannour of Dale by Letters Pattents, under the great Seal of Ireland to A. and his heirs; and there is no direction given in the said Commission, touching the Tenure to be reserved.

To prove this by testimony.There are Letters Pattents by colour of the said Commission, passed unto A. and his heirs to hold by Knights service, as of his Majesties castle of Dublin.

See Baron Dungans Certifi­cate; heretofore a Judge of the Kings Bench in Ireland, which follows in hac verba. The question was, whether the said Letters Pattents be void in the whole, or only as to the tenure.

Which Case was argued by the councel of the Lord Dillon, in the first place, which was Mr. Nicholas Plunket, then by Serjeant Catlyn, for the King. And after by John Pollexfen, for the Lord Dillon; and then by Osbaldeston At­tourney General for the King.

At the request of Sir Jerom Alex­ander Knight. se­cond Justice of his Majesties Court of common Pleas. I do certifie, That concerning the Precedency of the Judges here in Ireland. I know that when Hugh Cressey Esq. de­ceased, was second Justice of his Ma­jesties Court of Kings Bench in Ireland; That Sir Samuel May­art Knight, de­ceased, being then second Justice of his Majesties Court of Common Pleas, took Precedency of him, as being the antienter Judge. And I have often heard, and sometimes ob­served: that the second and third Judges of the Courts of Justice here in Ireland, took their Prece­dency in order, as they were first sworn Judges. And I do know that Sir James Barry Knight, then second Baron of his Majesties Court of Ex­chequer; and now Lord Baron of Santrey, and Lord Chief Justice of his Majestices Court of chief place, took Precedency before Sir William Ryves Knight, one of the Justices of the Kings Bench: Being sworn second Ba­ron of the Exchequer, before he was made one of the Justices of the Kings Bench. And afterwards when▪ Sir Wil­liam Ryves dyed, and I became of course second Justice of the Kings Bench; Baron William Hilton then puisne Baron of his Majesties Court of Exchequer, claymed Precedency before me, as senior Judge; and at that time some of the Judges, inclined to his Precedency, as he was a Senior Judge. All which I shall be ready to testifie upon occasi­on. And because it was a Case of great weight and importance, it was delivered unto the Judges, and they were required by the Lord Deputy and Councel, to conferre and consider of it, and to return unto them their resolution concer­ning it; but they (upon private conference among themselves) did not agree in opinion; and therefore it was thought necessary for publique satisfaction, that it should be argued solemnly by them all: And thereupon in Trinity Tearm 1637. the Case was argued accordingly. And in that Book is set down all the Judges names that argued it, and the order of their Precedency one before another: and as in all Cases of Arguments by the Judges, the puisne Judge begins first; and so it procéeds to the Lord Chief Justice of the Kings Bench last, and so it was done in this Case.

Sir William Ryves, that was then puisne Judge of the Kings Bench. He began and argued first. Then Sir James Barry now Lord of Santrey, and Lord chief Justice of his Majesties Court of Kings Bench; but then second Baron of his Majesties Court of Exchequer; and second Judge to Sir William Ryves; he argued next. Then Hugh Cressey Esq one of the Judges of the Court of chief place, in that place which Sir William Ashton now enjoyeth: He argued next; and after him; upon another day appointed for the Case: Sir Samuel Mayart one of the Judges of the common Pleas, and then sitting in that place, which I now enjoy, Argued next, then Sir Richard Bolton chief Baron argued next, then Sir Gerard Lowther, chief Justice of the common Pleas; and then Sir George Shurley, chief Justice of the Court of chief place.

By which the order of Precedency of the Judges in this Kingdome, one before another; doth appear to be the very same as in England, according as they are first sworn Judges; and my Predecessor being Senior Judge to Sir Williams Ashtons Predecessor had the place of him.

Vpon all which matter I conclude.

First, That the right of Precedency belonged unto me at first, as we stood un­sworn; as antient unto Sir William Ashton in the Inns of Court in England; and that the same order is to be observed here in Ireland; in asmuch as by the Stat. of 33. of H. 8. 3. here in Ireland: No man can give advice as a Coun­cellor at Law, that hath not been first admitted of an Inns of Court in England. And the common Law of England and Ireland, which establisheth the Inns of Court in England, being the same.

Secondly, That the Courts of law in England, nor in Ireland, give no Pre­cedency to the Judges at all.

[Page 12]Thirdly, That Sir William Ashtons Letter of a prior date to mine, gives him no advantage or benefit at all, in the Case.

Fourthly, and lastly, That the saving to me of my right of Precedency, upon the swearing of Sir William Ashton, in the first place bath saved to me my right of Precedency. And therefore I ought to be established in it accordingly.