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

Sir William Aſhton hath a Letter from his Majeſty to the Lords JuſticesLetter 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 ofLetter 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 themMr.▪ 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 that did affirm, that the Precedency had alwaies béen formerly given, to the ſecondSee 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 LordsThe 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.

Thus our Kings of England and Ireland of their Prerogative Royal, have theThe 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 SerjeantsThe 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.

So that this wor •• Right, is of a large extent, and in a (Saving) doth includePlow. 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 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.

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 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 inEvery 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 GovenoursCarys 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 giveThe 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. 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, which2 Par. Crook. Rep. 671. proves that reading in an Inns of court is neceſſary to precede the calling and degrée of a ſerjeant at law. Some call them ſerjeants of the Quoife. And that procéeds from this: You may obſerve them to wear a white Quoif of ſilk; it Forteſcue de laudibus legum Angliae 120. and 121. ſhould be in token or ſign, that all are thus graduate, which is the principal and chief inſignment of habite with which Serjeants at law, in their creation are decked; and neither the Juſtice, nor yet the ſerjeant ſhall ever put off the Quoife▪ no not in the Kings preſence, though he be in talk with him. Forteſcue ibid. What a Judge is.

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

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

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

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

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

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

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

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

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

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

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

His Majeſties Letter imports no more, but his Majeſties pleaſure thereby ſignified, and direction given to make him a Judge: So is only an act of choiſe, and of no more effect, 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 laterThe 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 thirdCooks 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, 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 OfficersThe 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 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 noFitz. 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 • 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 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.

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.