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Published online by Cambridge University Press: 21 December 2009
Acknowledgements 193
Abbreviations 195
Introduction 197
Darcy Family Tree 226
Network of Galway legal families 227
An Argument, by Patrick Darcy 229
Tables of Statutes & Named Cases 310
Index 317
page 204 note 1 ‘Here lies the sole support of a suffering homeland’; the source quoted leaves some doubt as to whether this was the epitaph, simply stating that ‘la voix publique des Catholiques lui avait destiné cette épitaphe…’ This information is to be found in the Bibliothèque Nationale, Collection Chain, Généalogies Classées, vol. 8Google Scholar, f 14v; the collection is compiled from material used to verify noble birth for access to office in the service of the King of France. It is a sad irony that one of the most illustrious members of the Darcy family, great-great-grandson of the seventeenth-century lawyer and also named Patrick (1725–79), chose to spend his life in exile. Elected to the Académie des Sciences at the age of 24, he was acclaimed by the French as one of the most brilliant mathematicians of his day. I am grateful to Father Liam Swords, chaplain of the Irish College in Paris, for calling to my attention the fortunes of the Darcys in France. See also DNB.
page 205 note 2 Lismore Papers, ed. A.B. Grosart, First series, iv. 123–4Google Scholar; quoted in O'Malley thesis, p.55.
page 205 note 3 Sheffield City Library; Strafford mss. (Wentworth-Woodhouse papers), vol. 9, f 101.
page 205 note 4 Strafford's Letters and Despatches, ii, ed. W. Knowler, Dublin, 1740, 98.
page 206 note 5 Propositions humbly tendered to his Majesty, by Sir Roger O'Shaughnesy, Knight, Patrick Darcy and Richard Martin, Esqrs. Agents etc., Clarendon S.P., vol. 1, ed. E. Ogle, Oxford, 1872, pp. 262–3Google Scholar. This section of the introduction relies heavily on the thesis of L. O'Malley.
page 206 note 6 O'Malley, L., ‘Patrick Darcy, Galway Lawyer and Politician’, in Galway: Town & Gown 1484–1984, ed. Cearbhaill, Diarmuid, Galway, 1984. p.97.Google Scholar
page 206 note 7 Strafford mss., vol. 15, Laud to Wentworth (27 November 1635).
page 206 note 8 Strafford mss., vol.9; Strafford Letters and Despatches, vol. 1Google Scholar; The Works of Archbishop Laud, ed. Bliss, J., Oxford, 1860, vii, Letters.Google Scholar
page 207 note 9 Cal. S.P. Dom., Charles i, 1636–7, ed. Bruce, J., London, 1866–1867Google Scholar; P. Darcy to secretary Windebank, 2 May 1636.
page 207 note 10 Lismore Papers, iv, 190Google Scholar; also quoted by O'Malley, p.72.
page 207 note 11 Strafford's Act of Attainder, (voted in English Parliament, May 1641), includes the passage: ‘for having by his own authority commanded the laying and setting of soldiers upon His Majesty's subjects in Ireland, against their consents, to compel them to obey his unlawful summons and orders, made upon paper petitions in causes between party and party’ (Gardiner, S.R., The Constitutional Documents of the Puritan Revolution, 1623–60, Oxford, 1906, p. 157).Google Scholar
page 210 note 12 Journals of the House of Commons in Ireland (JHCI, Dublin, 1753)Google Scholar, passim, for the years concerned.
page 211 note 13 JHCI, 366.Google Scholar
page 211 note 14 Ibid.
page 212 note 15 Ibid., p.395.
page 212 note 16 JHCI, pp. 397–404.Google Scholar
page 216 note 17 His Majesty's Directions for Ordering and Settling the Courts within his Kingdom of Ireland (Dublin, 1622)Google Scholar, eds. G.J. Hand and V.W. Treadwell, Analecta Hibernica, 26 (1970), 190.Google Scholar
page 217 note 18 Cal.S.P. Ireland, 1633–47 (London, 1901), p.297.Google Scholar
page 217 note 19 A Declaration setting forth How and by What means, the laws and statutes of England, from tone to time, came to be of force in Ireland (probably Waterford, 1643)Google Scholar, reprinted in W. Harris, Hibernica, Part 2, Two treatises Relating to Ireland (Dublin, 1770), pp.9–45Google Scholar. The passage quoted is on p.15. One of several passages reproduced in their entirety by William Molyneux in his The Case of Ireland's Being Bound by Acts of Parliament in England, Stated (Dublin, 1698)Google Scholar, this particular passage can be found in Molyneux, pp.51–3 (edition of J. O'Hanlon, P.P., M.R.I.A., Dublin, 1892). It is here that Molyneux attributes the original reflexions on the missing statutes to Sir Richard Bolton, considered by Darcy and his contemporaries to have been the real culprit in the matter.
page 220 note 20 Molyneux, p.55 and passim.
page 221 note 21 English Reports, vol. 77, 1388.Google Scholar
page 222 note 22 The information on the judges' careers is drawn from Ball, F. Elrington, The Judges in Ireland, 1221–1921, 2 vols (London, 1926)Google Scholar; further material is to be found at note 40 to the Argument.
page 222 note 23 Kearney, H., Strafford in Ireland: 1633–41: a study in Absolutism (Manchester, 1959). p.100.Google Scholar
page 224 note 24 Dreyfus, J., Type Specimens and Facsimiles (London, 1963)Google Scholar. See also Sessions, William K., The First Printers in Waterford, Cork and Kilkenny, pre–1700 (York, 1990).Google Scholar
page 230 note 1 The timetable of events in the Irish Parliament is presented in the Introduction (p. 210); 5 June corresponds to the date originally agreed for the joint meeting of Lords and Commons committees, which eventually took place on 7 June; the date of 9 June printed on the title page is not inaccurate, but simply gives the completion date of Darcy's presentation. See JHCI, 1, 306–423Google Scholar (13 Feb.—10 June 1641).
page 230 note 2 The authentification of the Clerk to the Commons, Philip Ferneley, is a reminder that the preceding text, ‘Forasmuch as…’, is an extract from the Commons' Record.
page 231 note 3 The declaration of the Commons consisted of a vote on each of the queries re-phrased in affirmative form; the queries were approved unanimously in their adapted form on 26 July 1641. Since this re-phrased form of the queries was originally published in the 1643 edition, these preliminary remarks constitute a table of contents rather than a chronology.
page 231 note 4 The language of the preamble, like the text of the queries, is couched in terms already employed in the Irish House of Commons as early as November 1640, when the M.P.s drafted a Petition of Remonstrance addressed to the King (JHCI, 1, 279–82).Google Scholar
page 232 note 5 It quickly becomes evident that there is a strategy at work in the queries: the questions bear on matters to which the answers are already known. Some features appear to be borrowed from the English Petition of Right (1628, see note 13), but others indicate a relationship to some of the articles for the Act of Attainder of Strafford (voted in English Parliament, May 1641), see Gardiner, , CD, 157.Google Scholar
page 232 note 6 Like several other queries, this one echoes a section of the earlier Petition of Remonstrance of November 1640 (JHCI, 1, 279–82Google Scholar); query 3 corresponds to articles 2 and 3 of the earlier remonstrance. See also HMD, paragraph 1 ‘Causes to be heard at the Councell Table’, 190. The terms of this query (originally voted in February 1640) are, in turn, echoed in Strafford's Act of Attainder.
page 233 note 7 Article 7 of the Petition of Remonstrance also complained of the abuse of monopolies; as late as May 1641, Darcy had spoken vigorously in the Commons against the monopoly of the tallow trade, held by Messrs Little and Carpenter. Darcy would also have been familiar with the rousing attacks of Coke against monopolies (see Case of Monopolies).
page 233 note 8 The language used here is that of Parliament rather than of any one man. In the articles of impeachment of the Lord Chancellor and the Lord Chief Justice of Common Pleas presented to the Commons in March 1641 (see Introduction, p. 208Google Scholar), it had been alleged that ‘many thousands of His Majesty's liege people of this Kingdom have been ruined in their goods, lands, liberties, and lives; and many of them, being of good quality and reputation have been utterly defamed by pillory, mutilation of members, and other infamous punishments’ (JHCI, i, 357).Google Scholar
page 233 note 9 Legislation by proclamation had already been challenged in Ireland in 1606, at the time of the Report on Irish Gavelkind which Sir John Davies had instigated. This is one of the many examples of the influence of Sir Edward Coke in the English House of Commons, asserting parliamentary privilege at the cost of the royal prerogative. The exchanges between Coke and Lord Chancellor Egerton on this question would have been studied at the ‘moots’ of the Inns of Court when Darcy was a student there. See Egerton, 's The Speech of the Lord Chancellor of England, in the Eschequer Chamber, touching the Post-Nati (London, 1608)Google Scholar, quoted by Knafla, Louis A., Law and Politics in Jacobean England (Cambridge, 1977), 209.CrossRefGoogle Scholar
page 233 note 10 A query which, more obviously than others, indicates prior knowledge of the answer. The baas for the question was the summary sentencing to death of Lord Mountnorris at Dublin Castle in December 1635, on the orders of Wentworth; it was strongly presumed at the time that Wentworth abused his authority in this way simply to appropriate Mountnorris's share of the tax farm.
page 234 note 11 See HMD, article 2: Oathes in causes betwixt partie and partie, not to be adminstred [sic] at the Councell table. The Council table and Castle Chamber are synonyms for prerogative courts (such as Star Chamber), which were obviously open to the interference of executive authority.
page 234 note 12 As Darcy will show in a closely argued passage (pp. 291–2), there is no law which can sanction the retroactive justification of executive interference in the course of justice. The term Reaera is more easily comprehensible as re vera.
page 234 note 13 The claim that a person should know on what grounds he/she is being charged or arrested, relates to clause 4 of the earlier remonstrance which complained that the King's subjects were ‘denied princely graces and a statute of limitations’. The question is also linked to the issue of habeas corpus; this had been raised in England in the Petition of Right, 3 Car.I c.1 (1628), Gardiner, CD, 67–8. Our Table of Statutes shows that the Petition of Right was quoted explicitly a number of times by Darcy.
page 234 note 14 See T.F.T. Plucknett, A Concise History of the Common Low, 5th Edition, Boston, 1956, P-533. This also echoes concerns expressed in clause 14 of the Petition of Remonstrance, ‘that by the powerfulness of some Ministers of State in the kingdom, Parliament hath not its natural freedom.’
page 234 note 15 This query emanates directly from the aftermath of the Portumna hearing of August 1635, when the Galway landowners sent a delegation to England to defend their interests (see Introduction, p.205Google Scholar). Clause 12 of the Petition of Remonstrance also evoked ‘the great and just fears at a proclamation published in this kingdom in anno domini 1635, prohibiting men of quality or estates for to depart this Kingdom into England, without the Lord Deputy's licence.’
page 235 note 16 Under certain articles of plantation, Anglican church appointees, bishops or deans, could create freeholds and fee-farms on their lands to the detriment of original landowners. Since diocesan grants had usually to be confirmed by the incumbent of the deanery concerned, the mode of nomination of deans was put under scrutiny. De mero jure > ‘in the strict interpretation of the law’. Patrick Darcy himself sat on a parliamentary committee in 1635, when member for Navan, ‘to consider a Bill for the preservation of the inheritance of the rights and profits of lands belonging to the church and persons ecclesiastical’ (JHCI, 1, 169).Google Scholar
page 235 note 17 The fear of interference and election-rigging had also been present in clause 13 of the Petition of Remonstrance, with concern expressed about the ‘Attorney-General querying ancient boroughs’ rights to send members to Parliament' (JHCI, 1, 282).Google Scholar
page 235 note 18 The query maintains the thrust of the preceding one, with a challenge to the legal authority of prerogative courts such as Castle Chamber (similar in its functions to the English Star Chamber).
page 235 note 19 The fining (censuring) of people beyond their means was restricted in Magna Carta, c.xiv, by the clause salvo contenemento, ‘saving to him his countenance’; SR, i, 116.Google Scholar
page 236 note 20 Article XL of HMD had already specified in 1622 that ‘the accusations or testimony of condemned persons or under protection, be not used as a convincing evidence; and if opened yet not pressed upon men legally acquitted, or that stand upon tryall of their lives’, 208.
page 236 note 21 ‘Tenere in capite’, to hold of the King in chief, therefore tenure ‘in capite’ was the holding of land, or specified privileges, of the King subject to a levy. This query challenges the rent levied on fairs and markets held by landowners whose title did not specify such obligations. The resolution finally voted by the Commons on 26 July 1641, was that the said ‘fair or market is not held by knight-service in capite’ (JHCI, i, 501–2).Google Scholar
page 236 note 22 The authentication of Philip Ferneley, Clerk of the Commons, shows this is an extract from the record of the Commons debate of 16 February 1641 (JHCI, 1, 306–8Google Scholar). The final vote of approval on the queries as affirmative proposals did not take place until 26 July, ibid., 501–2.
page 237 note 23 Sir Richard Blake, who was to become Speaker of the Confederate assembly, was a member of the circle of Galway lawyers who were educated at the Middle Temple and related to Patrick Darcy (see Network of Legal Families, p.227).Google Scholar
page 237 note 24 The image of the tares and the good corn comes from Matthew, xiii, 36Google Scholar. The spelling of ‘query’ has been standardised from the occasional, semi-technical use of the Latin ‘quaeres’.
page 238 note 25 The central metaphor in Blake's self-consciously eloquent speech was one used by Lord Coke and published nearly forty years earlier: ‘Methinks that oftentimes, when I ride by the way, I see the effects of justice rightly resembled when I behold a river with a silver current. Bounded in her equal course, with what just proportion she doth disperse her streams, without bewraying any little rage of intemperate violence! But if the passage of that stream be stopped, then how like a raging sea she overflows her banks!’ (Coke, Edward, The Lord Coke his Speech and Charge, Norwich, 1607Google Scholar; quoted by Drinker-Bowen, Catherine, The Lion and the Throne, London, 1957, p.258).Google Scholar
page 238 note 26 As indicated in the Introduction, the deadline stipulated by the House of Lords to the judges was 24 May; the date given here is presumably the occasion of the first reading of the answer in the Lords. The House of Commons did not hear the answer until 28 May. The queries, it will be remembered, were originally drafted and approved in February; on that occasion, Ormond's biographer reported that ‘it was an hardship on the judges to require than to give a sudden and hasty resolution in matters of such delicacy and moment, and they themselves desired time to answer till the next term; which the Archbishop of Dublin, and the lords Ormond, Moore, and Inchiquin insisted on, as highly reasonable and fitting.’ Ormond went further, and moved that it might be added to the order ‘that they may not answer any thing that may trench on the King's prerogative, or that may not stand with the duties of their places’ Carte, i, 253. The delay of die judges in answering, from February to May, may thus be attributed, in part at least, to the intervention of Ormond.
page 239 note 27 This general disclaimer of any legal significance in their enforced response constitutes a preamble to eight more points made in protest by the judges before diey addressed themselves to the substantive issues raised in the queries. Their expressed desire to avoid any parallel with the reign of Richard II can be attributed to a distaste for the role of the magistrature in the bloody assizes following the Peasants' Revolt, and also to the punitive interference in legal procedure by Richard II; his reign was marked by a long legal debate on the royal prerogative, and by the King's attempt to secure the subjugation of the magistrature to his needs.
Points lettered b—i in the general preamble of the judges are numbered 2–9 in the original text; the adjustment is made to avoid confusion with the original, substantive questions (numbered 1–21).
page 240 note 28 In quoting the terms of the royal writs which require their presence at Parliament, ‘to examine and concern themselves with the most important and urgent matters for discussion in the King's business’, the judges suggest that it is only in answer to a punctual and specific need that they should be required to offer judgement.
page 240 note 29 There are, in fact, only twenty-one queries printed in the text; the twenty-second had been raised verbally at the Lords on the matter of fees for legal commissioners; the judges' final answer is in response to this question.
page 241 note 30 As the judges rightly point out, severed of the queries had already been incorporated in the Petition of Remonstrance submitted to the King in November 1640; their argument is thus that these matters are now sub judice.
page 243 note 31 It is suggested that subjects of Ireland are not a free people governed only by the common laws of England. The laws themselves are in many cases different and, so their argument runs, ‘many causes of great weight and consequence’ in Ireland are decided by local custom which is, astonishingly, declared to be ‘contrary to law’ and ‘without remedy’. The twenty-five clauses of 25 Edw.III, Ireland (1351), are a vigorous, far-sighted body of legislation which anticipate the more positive aspects of 40 Edw.III (the Statute of Kilkenny, 1366); see Berry, , ESI, 375–97Google Scholar. They appear to be placed out of context by the judges; it is presumably to the English statute of 25 Edw.III that they advert.
page 244 note 32 The references in SR, 1, 303–6Google Scholar, differ slightly from the judges' version: there is no related statute under 18 Edw.III; the oath of the judges is found, with qualifying comment, in 20 Edw.III, c.1–5; for 28 Edw.III, c.2, read c.3. The answer given by the judges remains evasive, because they do not declare precisely what punishment, if any, is prescribed by the statutes of 20 Edw.III for failure to observe the oath. Darcy will provide this information in his reply (see notes 44 & 45).
page 245 note 33 The legislation of 28 Hen.VI, recte c.6, Ireland (1450), was a major piece of legislation emanating from the Parliament of Drogheda under the lieutenancy of Richard, duke of York; at the conclusion of its sweeping proposals there is included, in legal French, the formula ‘Save la progatyff le Roy’ Berry, , Statutes Henry VI, 179–249Google Scholar). This is not a substantial basis for the argument developed here. The argument in defence of Castle Chamber and conciliar justice is equally weak; the assault on prerogative courts had already begun in England, and the Long Parliament was to abolish Star Chamber in 1641.
page 246 note 34 21 Jac., c.3 (1623–4), An Act Concerning Monopolies and Dispensations with Penall Lowes and the Forfeyture thereof (SR, 4, part 2, 1212–14Google Scholar). A certain number of exceptions were declared, but the statute is much more clear than the judges' statement: ‘Validity of all monopolies and of all such grants & etc. shall be tried by the common law’ (p.1212).
page 247 * convented
page 248 note 35 Distringas is the first word of the writ served by the sheriff, ‘thou shall distrain’. The Remembrance Office was a debt-collecting branch of the Court of Exchequer; the distraint in question is to render homage (ad faciendum homagium) by paying the levy required.
page 249 note 36 I have been unable to identify the statute of 5 Rich.II quoted by the judges; 25 Hen.VI, recte 7, relates to passage between ports of Ireland.
page 249 note 37 The answer is a pragmatic acknowledgement that there is no one law governing the nomination to deaneries. Appointment may therefore be: i) donative, in the gift of the King, ii) elective, by election from the diocese, iii) collative, in the gift of the patron ordinary, who may be the bishop. The material concerns of landowners involved in such decisions were undoubtedly a further incentive to provide a broad answer.
page 251 note 38 cf. note 19.
page 252 note 39 This is the twenty-second question mentioned by the judges in their opening remarks, see note 29; it bears upon an increase approved by the judges for the Commissioners for Defective Titles. As joint Clerk of the Commission for Defective Titles (among a number of other posts he held) and also clerk to the judges' commission, Sir Philip Perceval may have felt vulnerable to charges of conflict of interest. Since there was general dissatisfaction with the commission's administration of sequestered lands, the increase of remuneration for the commissioners may well have been construed as a further incentive to find defective titles.
page 252 note 40 In addition to the professional careers of the seven judges, Ball, F.E.'s The Judges in Ireland 1221–1921 (London, 1926)Google Scholar, offers considerably more information about them. Shurley was educated at Cambridge University and the Middle Temple; he resided at Young's Castle while in Dublin, and left Ireland in 1646. Edward Bolton, son of the Lord Chancellor, was knighted in 1636; he studied at Lincoln's Inn, took up residence at Lissen Hall, near Dublin, and was buried at St Bride's. Mayart, an Englishman of Flemish extraction, was educated at Oxford and the Middle Temple; knighted in 1631, he lived at Oxmantown, Dublin, and was the author of the treatise written in answer to Darcy's Declaration. Cressy was educated at Furnival's and Lincoln's Inn. Although active in suppressing recusancy under Strafford, his son Hugh Paulinus joined the Benedictine order and became a servant of Queen Catherine of Braganza. Barry was the son of a former mayor of Dublin; he was educated at Trinity College, Dublin, and Lincoln's Inn, taking up residence at Santry Court and finally buried as Lord Santry in Christ Church cathedral. Donnellan was the son of the Archbishop of Tuam and, like Barry, was educated at Trinity College, Dublin, and Lincoln's Inn, and also buried at Christ Church. Hilton was educated at the King's Inns, Dublin, and Gray's Inn; he became Keeper of the Great Seal on the death of Sir Richard Bolton in 1648, and was buried at St Werburgh's, Dublin.
page 252 note 41 The Crown clerk, Sir Philip Perceval, was born at Tickenham, Somerset, and succeeded his father as registrar of the Irish Court of Wards; the Dictionary of National Biography also indicates that between 1625 and 1641, he became Keeper of Records in the Bermingham Tower, Clerk of the Crown to the Irish courts of King's Bench and Common Pleas, Keeper of the Rolls, joint Collector of Customs, monopolist (with Sir James Ware) for the granting of licences for the sale of ale and brandy, joint Clerk of the Commission for Defective Titles, and Commissary-General of Victuals for the King's Army in Ireland. It is hardly surprising to learn that in 1641 he was reputed to be fabulously wealthy, with 62,502 Irish acres (99,000 English acres) of Irish land in addition to his estates in England. Through his son John the family became Earls of Egmont.
page 254 * ‘depending’
page 254 † ‘Destate’
page 254 note 42 The anniversary implicit in this remark is presumably that of the naming of Prince John as Lord of Ireland, Dominus Hiberniae, in 1177; the first Irish Parliament was held in 1264. The evocation of the 460 years is also to be found in parliamentary debate in May 1641 (JHCI, 1, 383).Google Scholar
page 254 note 43 A Lesbian rule is a pliant principle of judgement which makes clear decisions difficult to reach; the term was used for a mason's rule, made of lead to bend around the curves of a moulding (OED). So the clarity of English law was confused by the Lesbian line of execution in Ireland.
page 255 * ‘depending’
page 255 † ‘be’
page 255 note 44 Ferdinando Pulton, A Collection of Sundry Statutes, frequent in use…' (London, 1632), fo 144: ‘The Oath of the Justices being made Anno 18.Edw.3 & Anno Domini, 1344’. This stipulates penalties for breach of oath. Darcy has corrected the judges' reference to 20 Edw.III from c.8 to c.1–3.
page 256 * ‘estate’
page 256 † ‘worse’
page 256 note 45 The oath of the judges reproduced in SR (pp. 303–6), under 20 Edw.III, stipulates that ‘And in case ye be found from henceforth in default of any of the points aforesaid, ye shall be at the King's will, of Body, Land and Goods, thereof to be done as shall please him (as God you help and all Saints).’ Darcy's summary of penalties incurred for failure to observe the oath is thus accurate. The Courts of High Commission were created to enforce the religious policies of the state; they operated by letters-patent without any recognized judicial procedure. Any deferring by the judges to such courts would have been a source of some concern, and also in breach of 28 Edw.III c.3, which the judges themselves mentioned. Its precise terms are: ‘that no man of what Estate or condition that he be, shall be put out of Land or tenement, nor taken, nor imprisoned, nor disinherited, nor put to death, without bang brought in Answer by due process of the law.’
page 257 * ‘estate’
page 257 note 46 The substance of the complaints in his general summary of queries 5, 6, and 7 is also to be found in clauses 2, 3, 5, and 15 of the Petition of Remonstrance of November 1640.
page 257 note 47 See note 10. Darcy was in England with Richard Martin and Sir Roger O'Shaughnessy at the time of the sentencing to death of Lord Mountnorris in December 1635.
page 257 note 48 See note 11.
page 257 note 49 All legal courts are courts of record, in which a record of charges brought must be preserved.
page 258 * ‘depending’
page 258 note 50 The remembrancer was a debt-collecting official of the Court of Exchequer. The date of the second remembrancer's certificate (1 June 1641), indicates that there was very little time for this issue to be discussed in the Commons' committee before inclusion in the dossier.
page 259 * ‘if’
page 259 † ‘were’
page 259 note 51 Arthur, Lord Chichester (1563–1625); Lord Deputy of Ireland, 1604–14, Sir Arthur Chichester was created Baron Chichester of Belfast in 1613. Twogh = tuath, ancient Gaelic unit of land, comparable to, and as variable in area as, the parish, see Hogan, James, ‘The Tricha Cét and related land measures’, Proceedings of the Royal Irish Academy, 38c (1928), 148–234Google Scholar. I am grateful to my colleague Proinsias NíChatháin for indicating this reference. Henry Warren has not been identified.
page 260 note 52 The boroughs of Newcastle, Naas, Power, Bannow, Taghmon, Cloghmyne, and Atherdee were initially prevented from returning M.P.s by the Attorney-General's quo warrantoes; the Speaker of the House of Commons, Maurice Eustace, intervened with a letter dated 6 October 1640, to the Lord Chancellor, Sir Richard Bolton, to ask why ‘the Lord Chancellor made stay of writs to be issued from the High Court of Chancery for the return of M.P.s’ (JHCI, 1, 265Google Scholar). It will be recalled that Patrick Darcy was M.P. for Bannow. Sir Richard Osbaldstone, educated at Gray's Inn, succeeded Sir William Rives as Attorney-General of Ireland in December 1636; he was succeeded on his death in 1640 by Sir Thomas Tempest.
page 261 note 53 For the twenty-second question, see note 39. It is at this point that Darcy completes his introductory summary of the reasons for presenting the queries; he now turns to a more argumentative and abrasive interrogation of the judges' preamble.
page 261 note 54 Joachim Hoppers (1523–76), Dutch statesman and jurist, was Privy Councillor to Philip II, Chancellor of the Netherlands, and author of Seduardus, swe de vera jurisprudentia (Antwerp, 1590)Google Scholar; the criteria he recommends for a judge are a serious disposition, great learning, long experience, and to be established by authority of the state. The argument suggested is that men of such stature should consider it to be their proper place to serve as advisors to Parliament.
page 261 note 55 Having identified and quoted the judges' own sources (note 32), Darcy expands his citation of Lord Egerton to correct them and to exploit the reference to his advantage. Egerton's text was as follows: ‘their oath doth bind them as much in the Court of Parliament, as in their proper Courts: for, that is the Supreme Court of all; and they are called thither'by the King's writ, not to sit as Tell-clockes, or idle hearers: but quod personaliter interstitis nobiscum, ac cum cœteris de Consilio nostro super dictis negotiis tractaturi, vestrumq.; Consilium impensun: And those Negotia be Ardua et urgentia negotia Regni & etc. And their oath, amongst other things, is, That they shall counsell the King truely in his businesse.’ (The Speech of the Lard Chancellor of England, in the Eschequer Chamber, touching the Post-Nati, London, 1608, fo 17Google Scholar; quoted by Louis Knafla, Law and Politics in Jacobean England, 210Google Scholar). The Petition of Remonstrance, also known as the Remonstrance of Grievances, of November 1640, can be found in the JHCI, i, 279–82.Google Scholar
page 262 * ‘Ophni’ and ‘Phines’
page 262 note 56 Hophni and Phinehas, priests of Shiloh, and the unworthy sons of Eli, make their entrance in 1 Samuel.i.4; their exit comes in 1 Samuel.iv.2, when the Philistines kill them and capture the Ark. Darcy's allusion is very thinly veiled, and also appears to cast him in the role of the new Samuel. I am grateful to my colleague Professor Kevin Cathcart, of the Department of Near Eastern Languages, University College, Dublin, for pointing out that the original spelling of ‘Opimi’ and ‘Phines’ comes from the Vulgate and Douai versions of the Bible.
page 263 * Lancelotus;
page 263† Hotoman.
page 263 note 57 Titus Livius (Livy, 59/64 B.C.-A.D. 17), Roman historian of whose 140 volumes, 35 survive; Book III, chapters 31–2, relates how the Romans sent a delegation to Athens to consult the Solonian code of laws. Giampaolo Lancelloti (1511–1591)Google Scholar, Italian jurist and compiler of much-edited version of canon law, Institutiones juris canonici (Rome, 1555)Google Scholar, known as the Tribonian of Perugia. François Hotman (1524–1589), French humanist scholar and jurist, also a Calvinist polemicist; the work referred to is probably Partitimes juris civilis elementariae (1560). Venerable Bede (672/3–735), reference is made to the first book of his Historia ecclesiastica gentis Anglorum. John Seiden (1584–1654), a legal historian and leading figure in English historical research in the seventeenth century. Editor of the work of Eadmer (c.1060–1128) the biographer of St.Anselm and the Canterbury community (Historia novorum in Anglia, c.1115). The title of Selden's edition, Historia novorum, sive sui sœculi, libri VI, ex bibl. cottoniana ed. Io. Seldmus et notas adjecit et spicilegium (London, 1623)Google Scholar, was abbreviated to super Eadmerum. The inventory of sources which Darcy will continue to unwrap should be seen as a strategic answer to his serious concern about the dilapidation of the Irish legal archive.
page 264 note 58 In no sequence of references is Darcy's concern to verify the Irish legal archive so evident. Quoting initially from his Pulton's Statutes, which seems always to be by his side, he goes on to quote directly from sources in the Tower of London. While some of his references no longer correspond to those of current editions of the archives consulted, it is essential to remember that he was compiling his material at a time when contemporary editions of statutes were highly suspect (see Introduction, p.217Google Scholar). His notes on sources were presumably several years old, dating from student days, at the time of the Argument, allowing further room for error.
Coparcenary: co-partnership, joint share of a heritage. 14 Hen.III, Statutum Hiberniae, recte 20 Hen.III (1236), Close Rolls, m.4d (SR, 1, 5Google Scholar; Berry, , ESI, 30Google Scholar). One of Darcy's most careful readers, William Molyneux, summarizes this statute as follows: ‘Henry III in this certificate or rescript, which is called Statutum Hiberniae, merely informs the Justice what the law and custom was in England, viz, [….] that the foresaid customs that be used within our realm of England in this case, be proclaimed throughout our Dominion of Ireland’ (TCIS, 64)Google Scholar.
Ordinationes factae de Statu Hiberniae, 7 Edw.II, Patent Rolls, part 1, m.3 & 18, recte, 17 Edw.II (SR, i, 193); Darcy's error is clearly derived from his source, since the footnote in the modern edition of SR explains that in the original copies the statute was attributed to 17 Edw.I; this also explains Molyneux's error on the same point.
2 Edw.III (1328), Close Rolls, m.17 (CCA, 1327–30, 1, 312Google Scholar), ‘that all Irishmen wishing to use the English laws may do so, and that it shall not be necessary for them to sue out of charters for this purpose.’
5 Edw.III (1331), Close Rolls, part 1, m.25 (CCR, 1330–3, 2, 203–4Google Scholar), on a dispute of homage relating to wardships, because the custom was contrary to the laws of England, ‘the King therefore orders the justiciary to cause the law and custom of the King's realm, and not the custom aforesaid, to be observed henceforth before him.’
Ordinationes pro Regimine Hiberniae, 5 Edw.III (1331), Patent Rolls, m.25 (CPR, 1330–4, 1, 84Google Scholar), Mandate to the justiciary, chancellor and treasurer of Ireland, to observe certain articles prepared in the last Parliament for the amendment of the estate of that law, which are set out in the patent.’
35 Edw.III, part 1, m.9; the precise location of this reference causes some difficulty. Of the options available, see 35 Edw.III (1360), Memoranda Roll of the Exchequer (Ireland), on the accountability of the King's officers and officials (Berry, , ESI, 423–9Google Scholar); also 35 Edw.III, Close Roll, m.40 (Rymer's Fodera, vol.III, part 2, 605, and ESI, 420–1Google Scholar, ‘Pro clericis de natione Hibernicana’, ‘The King to his justiciar and chancellor of Ireland […] and because it is not just, nor was it nor is it our intention, that clerks of the Irish race who have continuously and unswervingly remained in fealty and obedience to us […] should be reckoned as of the condition of our Irish enemies.’
The native Irish were therefore to be considered eligible for office and ecclesiastical benefice in Ireland.
Ordinatio facta de Ministris Regis in Hibernia;, this is not be found in 18 Edw.III, but 31 Edw.III (1357): An Ordinance made for the estate of the land of Ireland (SR, 1, 357–64Google Scholar), the editors' note indicates that in the original archives, the Ordinatio of 1357 was found in the documents of 17–18 Rich.II (1394–5). The Ordinatio is a comprehensive review of English legislation and administration in Ireland.
20 Edw.III (1351), the reference is incomplete, therefore difficult to identify; it may be intended as a reference to 20 Edw.III, Close Rolls, part 1, m.120, which is an ordinance regulating the conduct of the King's justices, terminating in the text of their oath (SR, 1, 305–6).Google Scholar
25 Edw.III (1351), Memoranda Roll of the Exchequer (Ireland), m.13f; see note 31. Anticipating the Statute of Kilkenny (40 Edw.III, 1366), the twenty-five clauses of 25 Edw.III are a fundamental set of statutes for constitutional historians; among the clauses is the introduction of English law, replacing the Brehon law, for everyone in Ireland (Berry, , ESI, 375–9).Google Scholar
page 265 * ‘depending’
page 265 † ‘pending’.
page 265 ‡ F.N.B.
page 265 note 59 21 Edw.III, no 41; the reference has not been found, but the substance corresponds to 16 Edw.III (1342), in Red Book of the Exchequer, fo 13–20 (ESI, 332–64Google Scholar). William Camden, Britannia, (London, 1637)Google Scholar; the Annals of Ireland appear at the end of Camden's work. The subjects' concern for the debts of the King can also be found in England from the reign of James I, in the Petition of Right (1628)Google Scholar under Charles I, as well as in article 11 of the Remonstrance of Grievances of the Irish House of Commons in 1641.
page 265 note 60 Fitzherbert, Anthony, La Nouvel Natura Brevium (London, 1609)Google Scholar, cap. 17, ‘Assise de Damine presentment’, p-32d, ‘qd’ nulla assisa ultime presentationis de celero capiatur…’
page 266 note 61 Coram Rege, in the presence of the King; Teste me ipso witnessed by me [the King].
page 267 * depending
page 267 note 62 These references are all drawn from the reports of Sir James Dyer (1512–82), one of the most important early legal commentators:
7–8 Eliz, Dyer, 241b: 2Dyer 241b, Brooke otherwise Cobham's Case, in piracies, the defendant Standing mute shall have judgement of peine forte et dure. Chief baron and the justice of King's Bench consulted (ER, King's Bench Division, vol. 73, 534).
9 Eliz, Dyer, 261: 3Dyer261b, Casus Hiberniae (ER, ibid., 580); also Pigot's Case, 11CoRep.26b. Both cases involve disputed tenure and possession in Ireland referred to the Lords Justices.
11 Eliz. Dyer, 282b: 3Dyer282, the Archbishop of Dublin us Bruerton, on the temporary surrender of the lease of Deanery and Chapter of St Patrick's Cathedral. Judges of Ireland refer to King's Bench (ER, op.cit., 633)Google Scholar.
19–20 Eliz. Dyer, 360: 3Dyer360, treason committed in Ireland by an Irish peer cannot be tried in England. Referred to the judges of England, who ruled that ‘he [unnamed] cannot have his trial here by his peers’
13 Carol: the reference is not precise enough for accurate location.
The Earl of Ormond's Case: there are three cases to which this reference could apply. First, the attainder brought against the Earl of Ormond by Edward IV following his support of Henry VI at the Battle of Towton (1461); the attainder was removed, and titles restored, by Henry VII. The second possibility concerns the revocation by an Act of the Irish Parliament in 1499 of the Act of Resumption as it applied, under Poynings' Law, to the lands of Thomas Butler, Earl of Ormond. The final application possible, and the closest in time to Darcy, was the confirmation by the Irish Parliament in 1641 of the 1537 restoration of Butler titles; divested of their title of Earls of Ormond in 1527 by Henry VIII, in favour of a distant cousin (Sir Thomas Bullen, father of Ann Boleyn), the house of Ormond had their titles restored in 1537.
page 268 note 63 9 Hen.3, too imprecise to locate, but presumably a confirmation of Magna Carta as, for example, 10 Hen.III (1226), Patent Roll, m.4: ‘the law and customs of our land of England to be kept in our land of Ireland, “as the lord King John enjoined them to be kept”’ (ESI, 21)Google Scholar.
Coke 8, 19b, Prime's Case: SCoRep.19b (1606–7). This was a case in which royal prerogative was closely challenged in Parliament on the succession of the Duchy of Cornwall. The issue developed on the premature death of Prince Henry, the older brother of Charles I; Coke argued that the succession fell only to the King's eldest son, and that it could not pass to a younger son without the charter being changed by Act of Parliament.
25 Eaw.3,5. c.1–2: offers an extended definition of treason (Statutes of the Realm, pp.319–20)Google Scholar.
Genesis.iii.T. ‘Then the eyes of both of them were opened and they discovered that they were naked’. Genesis.iv.8: ‘While they were there, Cain attacked his brother Abel and murdered him’.
page 269 note 64 Darcy reaches a major turning point in his presentation. He has completed his reply to the judges' preamble and now turns to a detailed defence of the queries.
page 269 note 65 In response to the temporizing of the judges on this matter (see note 31), a full answer was required; “the statutes of force in Ireland only’ are the declarative laws of the English Parliament from King John to the present, followed by the introductive statutes which, in each case, were ratified by the Irish Parliament (see Introduction, pp.219).Google Scholar
page 269 note 66 Matthew Paris, Historia major a Guilelmo conquestore ad ultimum annum Henrici III (London, 1571)Google Scholar: see also Matthaei Parisiensis, Monachi Sancti Albani, Historia Anglorum, sive ut Vulgo Dicitur Historia Minor, ed. SirMadden, Frederic, 1 (London, 1866), 371Google Scholar, ‘Sed rex pater, antequam ab Hibernia rediret, apud Lissemor concilium congregami, ubi leges Angliae ab omnibus sunt gratanter acceptae’.
SirDavies, John, Discovery of the true causes why Ireland was never entirely subdued (London, 1612)Google Scholar. Sir John Davies (1569–1626) was Attorney-General in Ireland (1606–19), having been Solicitor-General (1603–6). See also Pawlisch, Hans, Sir John Davies and the Conquest of Ireland: a study in legal imperialism (Cambridge, 1985)CrossRefGoogle Scholar.
Leges et consuetudines Angliae fuerunt gratanter acceptae: ‘where English law and custom were freely accepted’ (extract from Matthew Paris above; duplicated by Molyneux, TCIS, 27Google Scholar). Red Book of the Exchequer (Liber ruber scacarii), destroyed by fire in the Irish Four Courts, Dublin, 1922; Gervasius Tilberiensis, author of a twelfth-century treatise on the fall of empire, Otia Imperialia, is an inexplicable inclusion at this point; White Book of the Exchequer (Liber Albus of the Corporation of Dublin). Both collections of these important early statutes have been reproduced in part in ESI.
page 270 * ‘F.N.B.’
page 270 note 67 9. John (1207), Patent Roll, m.2f (ESI, 4Google Scholar: ‘Irish robbers to be dealt with according to the law of England’.
1 Hen.III (1216), Patent Roll, m.13, Magna Charta Hibemiae (Red Book of the Exchequer in Ireland, fo 69–73 m ESI, 5–19Google Scholar); as Molyneux expanded on it, ‘King Henry the Third came to the Crown the nineteenth day of October 1216, and in November following he granted to Ireland a Magna Charta, dated at Bristol in November, the first year of his reign. ‘Tis prefaced that […] he makes the following grant to Ireland; and then goes on exactly agreeable to the Magna Charta which he granted to England’ (TCIS, 38)Google Scholar.
10 Hen.III, Patent Rolls, m.4; see under 9 Hen.III, note 63.
12 Hen.III (1228), Close Rolls, m.8 (ESI, 23–4), ‘King John's charter as to observance of English laws and customs in Ireland to be observed’.
The note in the margin indicates that the above documents were verified at source in the Tower of London.
Year Books, 37 Hen.VI, fo 5; 21 Hen.VII, fo 17–18.
Fitzherbert, Natura Brevium cap.57 ‘Rationibile parte bonorum’, p.122Google Scholar.
Year Books, 7 Edw.IV, fo 21; 40 Edw.III, fo 38; 17 Edw.II, fo 58.
The general point emerging out of these references is that, even though local custom can vary, that variation (including Irish custom) is itself inscribed in the code of English common law. The concept of a tripartite legal system (common law, custom, and statute) comes direcdy from Coke: ‘Consuetude is one of the main triangles of the laws of England, those laws being divided into Common Law, Statute Law and Custom’, ColInst, fo 110v
page 270 note 68 10 Hen. VII, Poynings' Act (1494–5): An Act that no Parliament be holden in this land [Ireland] untill the Acts be first certified into England' (Bolton, Statutes of Ireland, Dublin, 1621)Google Scholar; a facsimile copy can be found in Facsimiles of the national manuscripts of Ireland, ed. Gilbert, J.T., vol. 3, plate 53 (London, 1879)Google Scholar.
10 Hen.IV (1408–9), summarized by Molyneux as follows: ‘And in the 10th of Henry the Fourth, it was enacted in this kingdom of Ireland, that the statutes made in England should not be of force in this kingdom, unless they were allow'd and published in this kingdom by Parliament’ (TCIS, 51)Google Scholar.
29 Hen. VI (1450), following the train indicated by Darcy, Molyneux continues from above ‘and the like statute was made again in the 29th of Henry the Sixth’. See also same statute, c.2 ‘Also it is ordained and agreed that the land of Ireland have and enjoy all its liberties and franchises, good usages and customs, as have been used heretofore.’ ESI, 251).Google Scholar
Developing the implications of the two statutes above, Darcy later called attention in his Declaration to the number of Irish statutes of this period which had disappeared (see Introduction, p.219Google Scholar, for this and introducane and declarative laws).
page 271 note 69 Courts of Admiralty, originally specialised in laws of commerce, trade and the sea; this jurisdiction was transferred to the High Court in 1873 with Selborne's Judicature Act (England). At the time of writing, Darcy would have known only of the first volume of Coke's Institutes (on Littleton, 1628), known as ColInst., or CoLitt., fo 260, Section 439, Of Continual Claim, ‘and yet altum mare is out of the jurisdiction of the common law, and within the jurisdiction of the High Admiral’; fo 361 appears to be a mistaken reference since it deals with the distinction between sained and false cases.
Stamford, SirStanford, William, Les Plees del Coron (London, 1567)Google Scholar; Cap.5, p-57v, on the functions of ‘le Graund Master, ou Seignior Stuard del Hostiel le Roy solement’.
5CoRep.106–7, Constable's Case: a case brought by Sir Henry Constable, Easter Term 43 Eliz., to defend royal (Admiralty) claim against trespass on flotsam, jetsam, and lagan and on land between high and low water mark (ER, vol. 77, 218–20)Google Scholar.
8CoRep.47b, Webb's Case; in the case of John Webb, brought in defence of his claim to income from his office of the King's Tennis plays in Westminster, it was argued that ‘Assise lies of the office of the Register of the Admiralty, which the plaintiff had for life. Note that, although the proceedings in that court be according to Civil law, yet the offices are determinable by the Common Law (ER, vol.77, 544)Google Scholar.
Court of Constable and Marshall, CoLitt, fo 391v; the court tried cases of treason, crimes committed overseas, and matters touching war.
Plowden, Commentaries, fo 122, the case of Buckley vs Rice Thomas, ‘And in order to understand it truly, being a Latin word, we ought to follow the steps of our predecessors, Judges of the law, who, when they were in doubt about the meaning of any Latin words, enquired how those that were skilled in the study thereof took them, and pursued their construction’ (ER, vol.75, 189).
Matters ecclesiastical; 7CoRep43b, Kenn's Case, if a marriage is below legal age ‘the ecclesiastical judge is judge as well of the assent as of the first contract, and what shall be a sufficient assent or not (ER, vol. 77, 476); 8CoRep.68, ‘an excommunication must be certified by a bishop’ (ER, vol.77, 577Google Scholar); 5CoRep.57, tenure of the manor of Tedcote in Devon, disputed against the Bishop of Exeter, ‘that for calling a man heretic, no action on the case lies in our law, for those of the common law cannot determine what is heresy’ (ER, ibid., 142).
34 Hen. VIII, Dyer 52–4, ‘the King cannot dispense with future acts of Parliament, though he may with things in future whereof he hath the inheritance’ (ER, 73, 114).
Strata Marcella's Case, 9CoRep.30–2; ‘In some cases, as in general bastardy, excommengement, loyalty of matrimony, profession and divers other matters shall be tried by the certificate of the bishop’ (ER, 77, 777).
For the topos of the law as a nutrient stream contained within its banks, see note 25.
Statutes of Provision and Premunire; these statutes governed and defined the proper jurisdiction of courts in England; in the case of prœmunire, the restriction of jurisdiction applied to papal and ecclesiastical courts in particular.
Calvin's Case, 7CoRep.1–28. At the conclusion of this long and complex case ascertaining the right of a Scots-born Scot (Robert Calvin) to inherit in England, Coke opined that ‘it appeareth that jurisprudentia legis communis Angliae est scientia socialis et copiosa’ (ER, 77, 410).
Dyer, 176, ‘If a juror reside within the plaintiff's leet, it is a principal challenge, although no tenure, for he is within the distress’ (ER, 73, 387).
page 273 * ‘fitz.Dower’
page 273 † ‘sit’, included in original Faults Escaped as correction to ‘Lit’.
page 273 note 70 The general observations on equity entail the equity of the Chancellor, which is a native growth, and equity of the courts, which is more concerned with technical appraisal and correction.
ipsae et enim leges capiunt ut jure regantur, ‘for those same laws govern so that we may be governed by law.
Dame Hole's Case, Plowden Comm. 263a, ‘those that fly from the law, or that by their acts refuse to be tried by the law, shall forfeit their goods and chattles’ (English Reports, vol. 75, 404Google Scholar); see also 8CoRep.172a.
Fitzherbert, Dower, 106Google Scholar; this appears to be a faulty reference, corresponding neither to the Graund Abridgement nor to the Natura Brevium; the section on Dower in the latter work begins at p. 47, the page quoted deals with Attaint.
Cromptan's Jurisdiction f°; 84a; Crompton, Richard, L'Authoritie et Jurisdiction des Courts de la Roygne (London, 1594), p. 84Google Scholar.
4CoRep 57Google Scholar; in the case of the commonalty of Saddlers, Coke's summary mentions that ‘this Act [34 E.3, c.14] extends only where the King was entitled by office only’ (English Reports, vol. 76, 1017).Google Scholar
Statute of William Butler, I have been unable to trace this obsolete statute, but f° 521 of Rastell, William's A Collection in English of the Statutes now in Force… (London, 1608)Google Scholar does indeed deal with actions of waste.
Statute of Merton, 20 Hen.3, c.6(1235–): ‘And as touching Lords, who have married those that they have in ward to villeins or others, as burgesses, where they be disparaged, if any such heir be under the age of 14 years, and of such age that he cannot consent […], the Lord shall lose his wardship’ (Statutes of the Realm, 1, 3Google Scholar; Early Statutes of Ireland, p.28Google Scholar). 4 Hen. 7.f° 18, Year Book, see below.
Plowden, , Commentary, 99–100Google Scholar; in a general discussion of the identity of principals and accessories on charges of murder, Plowden quotes, in fact, 7 Hen. 4 and not 4 Hen. 7. sit fol. 13, 24; this otherwise incomprehensible reference is, in fact, one of the Faults escaped of the 1643 edition which were not corrected in the edition of 1764. The text is meant to read ‘Lit. fol. …’, as an abbreviation for Littleton, Tenures f° 13, 24. The section quoted deals with fee simple, CoLitt., ff° 1–18v.
page 274 note 71 25 Edw.III, statute 5, c.2(1350–1); a declaration of what offences shall be adjudged treason (SR, 1, 319Google Scholar). 10 Hen. VII, this is Poynings' Act (1494–5).
Pasc. 18 Jacob, Stafford vs Stafford, recte, MacDonnogh (ER, 81, 997Google Scholar), Palmer 100: Briefe d'Errar hors d'Ireland per un Stafford vers MacDonnogh sur Judgement render la in un ejectione firmæ in Banke le Roy la. The appeal, at which Darcy himself was present, concerned the sale of 200 acres of mountain land, ducentas acras Montani, to the plaintiff when he had wanted bogland (‘et ne dit centum acras Bogge’). Jones, the English magistrate who had presided, argued in defence of his procedure that everyone knew that mountainous land was common in Ireland, ‘montaine terre est conuse in Ireland’, and that there was no case for appeal. Scrutiny of the procedure, and consultation with Sir William Parsons, the Surveyor of Ireland, confirmed that the register of deeds was normally used in Ireland, as in England in such transactions, but that it had not been used in this case. The judgement of the English magistrates in Ireland was thus reversed by King's Bench in London; Darcy attaches considerable importance to the judgement of Chief Justice Montague.
Sir William Jones (1566–1640), educated at Oxford and Lincoln's Inn, was sent to Ireland as Chief Justice of King's Bench in 1617 and knighted; he returned to England in 1620 to become a justice for Common Pleas, and subsequently on King's Bench (1624).
Sir James Ley (1552–1629), educated at Oxford and Lincoln's Inn, M.P. for Westbury (1597), was sent to Ireland as Chief Justice of King's Bench in 1603 and knighted; Commissioner for Plantations in Ulster in 1608, he returned to England in 1609, becoming M.P. for Bath (1609) and Chief Justice of King's Bench (England) in 1622, elevated to peerage as Earl of Marlborough in 1626.
Sir Humphrey Winch (1555–1625), educated at Cambridge and Lincoln's Inn, M.P. for Bedford (1593), was sent to Ireland as Chief Baron of Exchequer in 1606 and knighted; returned to England in 1610.
Sir John Denham (?–1639), educated at Furnival's and Lincoln's Inn, succeeded Sir Humphrey Winch as Chief Baron of Exchequer in Ireland in 1609 and was knighted; became Chief Justice of King's Bench in 1612, and returned to England as Baron of Exchequer in 1617, also serving as advisor to Court on Irish affairs (1616–19).
page 276 note 72 18 Edw.III, and 20 Edw.III, these statutes have already been encountered in notes 32 and 44.
2 Edw.III, C.8, Statute of Northampton, ‘It is accorded and established, that it shall not be commanded by the Great Seal nor the Little seal to disturb or delay common Right; and though such commandments do come, the Justices shall not leave to do right in any point’ (SR, 1, 259Google Scholar). Darcy is substantially correct in his summary of the judges' responsibilities here and in preceding statutes; it is a major correction for the judges.
page 277 note 73 36 Hen.VI, c.29 (1458), this corresponds to the statute passed at the Parliament of Dublin; article 29 grants livery of the manor of Roche, Co. Louth, to Richard Bellew (ESI, 555).Google Scholar
page 277 note 74 ad veritatam dicendam, having been sworn to speak the truth; quod amittat liberam legam in perpetuum, the loss in perpetuity of freeman's privileges; quod forisfacuit omnia bona & Catalla sua. the confiscation of all goods and chattels; quod terrae et tenementa in manus Domini Regis capiuntur, lands and property to be held by the King; quod uxores & liberi extra domus suas eijciantur, his wife and children be expelled from their home; quod domus suae prostrentur, expulsion from his home; quod arbores suae extirpentur, his trees to be uprooted; quod prata sua arentur, fields to be ploughed up; quod corpora sua Carceri mancipentur, whose person be yielded to imprisonment.
page 278 note 75 9 Hen.III, c.11, clauses of Magna Carta (SR, 1, 23)Google Scholar.
5 Edw.III, c.9 (1331), ‘that no man from henceforth shall be attached by any accusation, nor forejudged of life or limb, nor his Lands, Tenements, Goods, nor Chattels seised into the King's Hands against the form of the Great Charter, and the law of the Land’ (SR, 1, 267)Google Scholar; 25 Edw.III, C.4 (1350–1), this is presumably a reference to statute 4 of the Statute of Provisors of Benefices (ibid., 1, 316–8): 28 Edw.III, cap.3 (1354), ‘that none shall be condemned without process of law’ (ibid., 1, 345); 42 Edw.III, caps, 1 & 3 (1368); this statute provides confirmation of the charters and that ‘none shall be put to answer without due process of law’ (ibid., 1, 388).
page 278 note 76 18 Edw.III is quoted from Pulton in note 44; its successor, 20 Edw.III, is quoted just as frequently in the same context.
Fleta, Book 2, cap.2 (1368): ‘De placitis aule regis’ (Of pleas of the King's Hall), eds. Richardson and Sayles, Selden Society, vol.72 (London, 1953), pp. 110–3.
Articuli super Chartam, 28 Edw.II (1300), recte, Articuli super Cartas; confirmation of the Statutes of Liberty, with punishments introduced to enforce certain articles (SR, 1, 136–41Google Scholar); 15 Rich.II, cap.12 (1391–2): ‘None shall be compelled to answer the private courts for matters determinable by the law of the Land’ (ibid., 2, 82).
page 279 note 77 per legem terrae or per judicium parium, by the law of the land or the justice of his peers; these phrases are quotations from Magna Carta, c.29 (see note 88). On paper petitions, see Strafford's Attainder, notes 5 & 6.
page 279 note 78 28 Hen.6, cap.2, recte,6 (Ireland, 1449–50), an abridgement of the proceedings of the Dublin Parliament of the same year; the Irish statute, f° 15, offers clear, statutory division of responsibilities of law courts. Matters of personal interest go to Common Pleas; affairs concerning the Crown go to King's Bench; matters of equity were to be dealt with in Chancery. The fourth court, Exchequer, had provisions outlined in the statutes and ordinances of the Parliament at Drogheda in 1450, also 28 Hen.VI (Statutes of Henry VI, 169–73 & 189Google Scholar, respectively).
page 279 note 79 The ‘late great trial in England’ was presumably that of Strafford, executed less than a month previously.
page 280 * ‘nor’
page 280 note 80 Sir Thomas Tempest became Attorney-General to Ireland in October 1640, in succession to Sir Richard Osbaldstone.
quare impedit, ‘a writ issued in cases of disputed presentation to a benefice, requiring the defendant to state why the plaintiff should be hindered from making the presentation’ (OED).
page 281 note 81 For salvo contenemento, see note 19.
Pulton's Statutes, f° 1433, quoting the King in person on 7 June 1628, ‘And I assure you, my Maxime is that the People's Liberty strengthens the King's prerogative…’
John Fortescue, de Laudibus Angliae, cap. 9, f° 25, and cap.36, f° 84, Mulcaster's translation (London, 1599), ‘A King, whose governement is politicke, cannot change the Laws of his realme’ and ‘Neither doth the kinge there, eyther by himself, or by his servants and officers, levie upon his subjects […], or alter their Laws […] without the expresse consente and agreement of his whole royalme in his Parliament’.
Case of the Awlnage of London (Year Book of 13 Hen.IV, f° 14–16), a notable case recorded in the Year Book.
Case of toll-travers and toll-through (Year Books of 14 Hen.IV, f° 9; 37 Hen.VI, f° 27; 8 Hen.VI, f° 19), a notable Year Book case.
Lord Barclye's Case (Plowden, , Commentaries, f° 246–7Google Scholar, ‘for the King cannot do any wrong, nor will his prerogative be any warrant to him to do injury to another’ (1Plo.246, ER, 75, 355–7)Google Scholar.
Case of Mines, ‘the King may assign dower to the wife, for this belongs to his prerogative: so that though he has discharged himself of the land, he has not discharged himself of things of prerogative in the land’ (1Plo.310–516, ER, 75, 503–4)Google Scholar.
2 Edw. III, c.14; the precise terms of this statute have not been traced.
Magna Charta, cap. 21, on the King's prerogatives; Carta de Foresta deals more explicitly with the matter in hand.
page 281 note 82 Year Books, 40 Edw.III, f° 34; 39Ass., placito primo, 35 Edw.III, P 35.
Fitzherbert, , Judgement, p.174Google Scholar, Natura Brevium, loc. cit., ‘Et per le statute de Articuli sup. chartas cap. 12, le vĩe ne doit faire excessive distr. pur det le Roy.’
page 282 note 83 judicandum est legibus non exemplis, judging is from laws and not from examples.
Mitton's Case, 4CoRep.33, ‘so the custody of the gaols of counties is inseparable from the sheriff; and therefore if the King grants the custody of such gaol to another, it is void’ (ER, 76, 966)Google Scholar.
Magdalen College's Case, 11CoRep.75, ‘the King may sue in what court he pleases, and of this prerogative he is not barred by the general purview of the Act of Magna Charta, cap. 11 et sic de cæteris’ (ER, 77, 1248)Google Scholar.
Slades's Case, 4.CoRep.94, ‘it is to be observed that two or three, or such small number of precedents, do not make a law against the generality of precedents in such case’ (ibid., 76, 1076).
page 282 * see footnote 84
page 282 note 84 Gregory's Case, 6CoRep. 19–20, after judgement was given against exercising of a trade at Ludlow, at the court of Ludlow, error was found, ‘because although Ludlow be a Court of Record, yet it is not such a court as is intended by the statute, for several reasons: The Courts intended by the statute, propter excellentiam, are the four Courts of Record at Westminster, which are General Courts of Record’ (ibid., 77, 283).
4 Edw., cap.3,14, an impossible reference to trace without knowing to which King Edward allusion is being made.
Rastell, f° 316, necte, f° 323, ‘A Parliament shall be holden every yeere once, or more often if it need be’.
39 Edw.3, f° 35, a formedon is ‘a writ of right formerly used for claiming entailed property’ (OED).
page 284 note 85 25 Edw.i (1297), Close Rolls, m.20 recte, m.18 (CCR., 1296–1302, 22): ‘To John Wogan, justiciary of Ireland. Whereas the King understands that the justiciary now causes common pleas, which in all times past have been wont and ought to be pleaded by original writs of the Chancery of Ireland, to be dealt with (deduci) and determined before him by bills and blank petitions, whereby the fee of the King's seal in use in Ireland and the fines for giving writs and (ad) profits that used to accrue to the King thence are withdrawn in divers ways, to the no small damage of the King and of the inhabitants of those parts: the King, being unwilling dial such innovations be practised, orders the justiciary not to presume to cause such common pleas to be dealt with or determined before him by petitions and bills hereafter by means whereof the King's loss of profit (incommodum) ought to be imputed to the justiciary. 23 March, Shaftesbury.’
Note that the date and place of the instruction have been adjusted in the translated record; I am grateful to my colleague, Dr Michael Haren of the Dept. of Medieval History, University College, Dublin, for bringing this reference to my attention. John Wogan was Justiciary (an earlier version of Lord Deputy) of Ireland from 1295 to 1308. This record, of which Darcy is at pains to indicate that he has a copy in his possession, was in die circumstances a brilliantly apposite piece of evidence to produce; paper petitions figured in the charges laid against Stratford (see notes 5 & 67), and Darcy happened to have in his possession a copy of a document banning such procedures 350 years previously. He had obviously been reflecting on the matter and gathering relevant material for some time beforehand.
page 284 note 86 Qui enim majestatem scrutator Principis, corruet splendore eius, ‘For whoever wishes to examine the dignity of the sovereign, may be destroyed by his magnificence’; Darcy offers a more humorous version.
Dr Bonham's Case, 8CoRep.118a, ‘censors cannot be judges, ministers, and parties; judges to give sentence or judgement, ministers to make summons […] And it appears in many of our books that in many cases the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void’ (ER, 77, 652)Google Scholar.
Ipswich Tailors’ Case, 11CoR.ep.53b, ‘Resolved 1. At Common law, no man could be prohibited from working at any lawful trade. 2. The Corporation of the Tailors of Ipswich cannot by any ordinance made by them prohibit anyone from exercising his trade…’ (ER, 77, 1218)Google Scholar.
The Case of Cards (Monopolies), 11CoRep.85–7, ‘Darcy vs Allen resolved: A grant by the Crown of the sole making of cards within the realm is void. A dispensation or licence to have the sole importation and merchandizing of cards, without any limitation or stint, is against law, notwithstanding 3Edw.4 which imposes a forfeiture upon their importation’ (ER, 77, 1260).Google Scholar
page 285 note 87 Ita quod patria magis solito non gravetur vel oneretur, in the Case of Monopolies above, Coke quotes Fitzherbert and adds ‘Illa quod patria per donationem illam magis solito non oneretur seu gravetur (therefore every grant made in grievance or prejudice of the subject is void)’; Fitzherbert, Natura brevium, pp.221v–226v, c. 140, Briefe de Ad Quod dampnum, offers corroboration in less explicit form. A printing error at this point was one of the original Faults escaped of the 1643 edition.
page 286 note 88 Magna Charta, cap.30, ‘quod omnes Mercatores tam indigenae quam alienigenae’, all merchants, whether native or foreign’; ‘sine omnibus mails tolnetis, & consuetudinibus ex Anglia et in Anglia, nisi antea publice prohibiti fuerent’, without prejudice, and within and without the custom of England, unless they were previously prohibited.
9 Edw.III, c.1, recte, statute 1 c.1 (1335), SR, 1, 269–71Google Scholar); 25 Edw.III, cap.2 (1351), statutum p. hiis qui nati sunt in partitus transmarinis [for those born in foreign parts], ibid., 1, 310. The following statute (25 Edw.III, 2.c.7) has further recommendations relative to the point, ibid.,313. 2 Rich.II, c.1 (1378), reiteration of foregoing statutes, ibid., 2,6. 16 Rich.II, c.1 (1392–3), reiteration of above and preceding statutes. Darcy is undoubtedly well briefed on the matter of monopolies and free movement in trade; this is probably due to the time spent in England in 1635–6 during which he prepared a paper for the King on customs revenue (see Introduction, p.12Google Scholar).
21 Jacob.I, C.3 (1623–4): An Act concerning Monopolies and dispensations with Penall Lowes and the forfeyture thereof (SR, 4Google Scholar, part 1, 1212–4).
Magna Charta, cap.29, Nullus liber homo… No free man may be seized, imprisoned, expropriated, nor by any other means reduced, unless by the justice of his peers and the law of the land.
page 287 note 89 A number of the preceding and following examples are drawn from Egerton's The Speech of the Lord Chancellor of England, in the Exchequer Chamber, touching the Post-Nati (cf. note 9); mention is made in Egerton's text, f° 14–15, of the Justice William Thorp who failed to respect his oath (13 Edw.III); justice of oyer & terminer in Somerset, he is indicted in Darcy's quotation, for ‘maliciously, falsely and rebelliously breaking the oath of the Lord King to his people’, but there is no information as to what exactly he did or what his sentence was.
* ‘Darien’
page 288 note 90 Fitzherbert, Natura Brevium, p.85, the marginal note is the title of chapter 45 in the Natura Brevium, under the general heading ‘Suertie de non aler ouster le mere.’
page 288 note 91 Case of the Post-Nati, f°12–13, taken from the speech mentioned above in note 9, where Egerton quotes ‘a learned gentleman of the lower house’ who said that ‘Proclamations can neither make nor declare Lowes’. Egerton's view was slightly different, and it does not fully support the claim made here by Darcy.
page 288 note 92 Fitzherbert, , Natura Brevium, 32Google Scholar, see note 60; Darcy has abbreviated Fitzherbert's text in his quotation.
Darrein presentment, a reference also taken from Egerton; the term means a case of last resort in the law of tenure. Plucknett quotes the example of the assize being asked to say ‘whether the plaintiff was the last patron in time of peace who presented a parson to the church in dispute’ (A Concise History of the Common Law, p.360).Google Scholar
page 289 note 93 Fitzherbert, , dower, p.179Google Scholar, also taken from Egerton; the quotation, which does not come from Fitzherbert at the passage indicated, shows that no subject of the French King is subject to English law in precedence to his own oath in France.
page 289 note 94 35 Hen. VI, cap.26 (1456–7), the quotation from the statute states that ‘from the use of custom and certain reasonable causes, the common law is drawn’. An illustrative case is to be found under the same statute in the Statutes of Henry VI, p.475: ‘It is granted and ordained by authority of said parliament, that the said act or ordinance made against the said Richard [Tame, gentleman] be repealed, revoked, annulled, made of no effect and held for nothing in law, and cancelled’.
page 289 note 95 37 Hen. VI, c.27; 49 Edw.III, c.4, passages from the Year Books which support Darcy's interpretation of custom, 11CoRip.86, another reference to the Case of Monopolies, see note 86.
page 289 note 96 The sixth question asked what sanctions would be incurred by the Lord Lieutenant, Lord Deputy, or other Chief Governor, if they were found to have enforced decisions not sanctioned by law.
page 290 * ‘and’
page 290 note 97 This is a roll-call of the Statutes of Liberty, all of which have been already quoted by Darcy: ‘that the King can do no wrong’, comes from Plowden, Lord Berkeley's Case, note 81; Magna Carta, c.29, ‘Nullus liber homo capiatur…. see note 88; 5 Edw.III, c.9, is a confirmation of Magna Carta, see note 75; the Petition of Right, which is an assertion of parliamentary prerogative master-minded by Coke, has already been invoked several times by Darcy, sometimes disingenuously as proof of the King's great bounty.
page 291 note 98 aliud examen, other forms of scrutiny. Statute of Marlborough, 52 Hen.III, c.23, recte, 22 (1267), translated as ‘None from henceforth may distrain his freeholders to answer for their freeholds […] nor shall cause his freeholders to swear against their wills; for no Man may do that without the King's commandment’ (SR, 1, 24)Google Scholar.
Boyton and Leonard's Case; Darcy's own information is imprecise and it has not been possible to find further reference to this case.
page 291 note 99 Lane's Case, 2CoRep.16b, ‘for the course of every court is as a law, of which the common law takes notice, without alleging it in pleading’ (ER, 76, 423)Google Scholar.
5 Edw.IV, 1, 17Long, The text from the Year Book states that ‘custom [precedent] is allowed if it is of great authority, but never to the detriment of the establishment of truth’.
page 293 * ‘d’
page 293 note 100 in capite, see the definition in note 21.
The second remembrancer, see note 35; a debt-collecting agent of the Exchequer.
24 Hen. VIII; B. Fealty and homage, 8, untraced.
I Jacob., cap.26 (1603–04), ‘An Acte for the continuance and due observation of certaine orders for the Exchequer, first set downe and established by vertue of a Privie Seals from the late Queene Elizabeth’ (SR, 4Google Scholar, part 2, 1052).
page 294 note 101 5 Rich.II, cap.2, recte, statute 1, cap.2 (1381–2), ‘None shall depart the realm without the King's licence’ (SR, 1, 18)Google Scholar; this underpins the point made in Fitzherbert's Natura Brevium, p.85Google Scholar (already quoted at note 90).
25 Hen. VI, cap.2 (Ireland), 1447, ‘that the land of Ireland have and enjoy all its liberties and franchises, good usages and customs, as have been reasonably used heretofore’ (Statutes of Henry VI, 55Google Scholar). There is no immediately evident connection between this and the preceding statute, but it seems to be Darcy's purpose to develop the evidence for the islands of Britain and Ireland as an integrated whole within which freedom of movement, as well as equality before the law, are legitimate expectations.
page 295 * ‘Fitzvoucher’
page 295 note 102 2 & 3 Philip & May, Dyer, 128b; in Mansell and Herbert's Case, it was confirmed that ‘if a subject refuse to return into the kingdom upon the King's mandate, his lands and goods shall be seized for the King's use’ (ER, 73, 280)Google Scholar.
5 Rich.II, cap.2; as above, note 101.
12 & 13 Eliz., Dyer, 296a; in Mannocke's Case, it was affirmed that ‘departing the realm for the sake of living out of due obedience to the laws, is no offence, unless there has been express restraint by writ or proclamation’ (ER, 73, 664).Google Scholar
scire facias, a scire facias is ‘a judicial writ served by a sheriff requiring the party concerned to show cause why a patent such as a charter should not be revoked’ (OED).
20 Hen. VI, f°a, this reference is incomplete, thus not traceable.
Year Book, 8ass., placit 27, 10 Edw.III, f°42.Fitzherbert, voucher, p. 239Google Scholar, Natura Brevium, cap. 149, ‘Supersedeas', voucher in Court baron’; ‘voucher’ is ‘the summoning of a person to court to warrant the title to property’ (OED).
page 296 note 103 5 Rich.II, cap.2, see note 101 above. 34 Edw.III, c.18 (1360–1), ‘English landowners in Ireland may import and export from and to England’ (SR, 1, 368Google Scholar). Once more, the idea of ‘one law, one people’ is implicit behind the details of free movement and trade, as in notes 88 & 101.
page 297 note 104 Commenda in the retinere refers to the specific recommendation (from the King) that a bishop may, after his nomination, hold a benefice of a Deanery previously granted.
Windsor's Case, 5CoRep.102a; in the case of a disputed benefice ‘if two have title to present by turns, and one presents a parson, who is admitted, instituted, & etc., and afterwards is deprived, he shall not present again, but it shall serve his turn, for it was but voidable’ (ER, 77, 213)Google Scholar.
Dean of Ferns, I have been unable to trace further details of this case.
18 Eliz., Dyer,346, Bacon vs the Bishop of Carlisle and Another, ‘if the incumbent be deprived for not subscribing the articles, the ordinary must give personal notice to the patron’ (ER, 73, 778)Google Scholar.
10 Eliz., Dyer, 273, in Walrond vs Pollard, ‘the deanery of Wells is a spiritual and not a temporal promotion, nor is it donative, therefore leases made by the dean need not the confirmation of the King, nor even of the Bishop…’ (ER, 73, 610Google Scholar). See also note 37.
12 & 13 Eliz., Dyer, 293Google Scholar, in Bedinfield vs the Archbishop of Canterbury, ‘tho’ the presenter to the church be a mere layman, still if admitted, instituted and inducted, there must be a sentence of nullity before any other presentation, and the ordinary must give notice to the patron of such sentence before any lapse can incur’ (ER, 73, 657Google Scholar); the recommendations of one who is incumbent de facto rather than de jure are therefore to stand.
page 297 note 105 The court of Parliament being the principal one concerned here, the others being King's Bench and Exchequer. See also notes 17, 52, 78.
page 298 * ‘estate’
page 298 * ‘who’
page 298 note 106 Coke, preface to the Fourth Report (1604), ‘maximis difficilimisque causis ad supremum Parliament’ judicium’, ‘The expounding of Lawes doth ordinarily belong to the reverende judges, and Sages of the Realme: And in case of greatest difficultie and importance, to the high Court of Parliament’, no page number.
CoLitt., f° 109, The First Part of the Laws of England, or a Commentary upon Littleton (1628), Section 164, ‘Of tenure in Burgage’, ‘Parliament is the highest and most honourable and absolute Court of Justice of England’.
Statutum Hiberniae, 20 Hen.III, see note 58; 3 Edw. IV, cap. 1 (1463), recte, cap. XLVII: ‘the privilege of every Parliament and Great Council within the land of Ireland is that no officer of said Parliament should be impleaded, vexed or troubled’ within forty days of sitting, Statute Rolls of the Parliament of Ireland. First to the twelfth year of the Reign of King Edward the Fourth, ed. Berry, H.F. (Dublin, 1914), 41–265Google Scholar.
CoLitt., f° 110a.
page 299 note 107 In appreciation of the arguments reviewed here, it should be remembered that Darcy's own seat of Bannow was jeopardized in 1640 by the Attorney-General's quo warrantoes, note 52.
Coke, Entries, A Booke of Entries: Containing perfect and approved Presidents of Courts, Declarations, Informations, Plants, Inditements, Barres, Replications, Rejoinders, Pleadings, Processes, Continuances, Essaims, Issues, Defaults, Departures in Despite of the Court, Demurrers, Trialls, Judgements, Executions, and all other Matters and Proceedings [… & etc] (London, 1614), f° 527a, a case of quo warranta against Christopher Helden.
11 Hen.IV, C.2, recte, 1 (1409–10); this statute refers back to 7 Hen.IV, c.15, but it does not go beyond description of procedure for election, appearing not to say quite what Darcy attributes to it (SR, 2, 162)Google Scholar.
CoLitt., f° 9b, Section 3, ‘Of fee simple’, ‘for when a man is called to the Upper House of Parliament by Writ he is a Baron and hath inheritance therein without the word (heirs)’.
page 300 note 108 Prince's Case, 8CoRep.29a; see note 63.
Bozoon's Case, 4CoRep, 3, recte, Bozoun's Case, 4CoRep, 34b; ‘when the Queen by the common law cannot in any manner make a grant, there a non obstante of the common law will not, against the reason of the common law, make the grant good’ (ER, 76, 972Google Scholar). Coram non judice, not before a proper court.
On the sanctions incurred by judges for not respecting their oath, see note 45.
page 301 note 109 Lord Berkeley's Case, see note 81.
Glanvill, f° 100b, Tractatus de Legibus et Consuetudinibus Regni Angliae qui Glanvilla vocatur, 1187–9; there being only 54 folio sheets in this text, the reference is taken to mean f° 50a, ‘Sumone per bonos sumonitores duodecim liberas et legales homines’ (summon by good summoners twelve free and lawful men); ed. G.D.G. Hall (London, 1965), p. 165.
Bracton, f° 174, Henrici de Bracton, De Legibus Angliae, 1569; Cap. XII, Cui fieri debet querela’ (To whom complaint ought to be made); ed. Sir Travers Twiss, 6 vols., Rolls series (London, 1878–83), iii, 103.
Britton, f° 130a, Britton, John T.P., Britton (London, 1540; O.U.P., 1865)Google Scholar.
Fortescue, De Laudibus legum angliae, pp. 54–5Google Scholar, c.25, ‘How jurours must be chosen and sworne’.
Dowman's Case, 9CoRep.13a, ‘that in all pleas, as well of the Crown as in Common Pleas […] the jury may find the special matter, which is pertinent, and tends only to the issue joined upon which, being doubtful to them in law, they may pray the opinion of the Court’ (ER, 77, 750)Google Scholar.
Strata Marcella's Case, see note 69.
Goddard's Case, 2CoRep.4b, ‘for though a party to a deed cannot aver that it was delivered before the day on which it bears date, yet the jury are not estopped to say the truth’ (ER, 76, 396)Google Scholar.
Rawlyns's Case, 4CoRep.53a, ‘that estoppels conclude the parties to say the truth, but cannot conclude the jurors because they are sworn ad veritatem de super praemissis dicendam’ (ibid., 76, 1011).
Chancellor of Oxford's Case, 1, recte, 10CoRep.56b, ‘and although the jury have found circumstances and presumptions to incite the jury to find fraud, yet it is but evidence to the jury, and not any matter upon which the Court could adjudge fraud; and the office of jurors is to adjudge upon their evidence concerning matter of fact, and thereupon to give their verdict, and not to leave matter of evidence to the Court to adjudge’ (ER, 77, 1011).Google Scholar
page 302 * ‘Fitz Natur, br.’
page 302 note 110 Dr Leyfield's Case, 10CoRep.95b, recte, 88a, ‘but when the law creates the estate, the deed doth not belong to him, nor ever was in his power then shall he not shew it as in the said case of guardian in chivalry’ (ER, 77, 1069)Google Scholar.
Strata Marcella's Case, see note 69.
W.II, c.30, see note below, Dowman's Case.
Dowman's Case, 9CoRep, 13a (see also note 109), ‘and therefore the law will not compel neither the jurors, who have not knowledge of the law, to take upon the knowledge of points in the law, either in cases which concern life or member, or inheritances, freehold, goods, or chattels, but leave them to the consideration of the judges; nor the Justices of Assise nor any other judges, be it in Pleas of the Crown or Common Pleas, to give their opinion of questions and doubts in law upon the sudden […] And therefore it was resolved that the said Act of W.2, c.30 was but affirmance of the common law’ (ER, 77, 750–1)Google Scholar.
Fitzherbert, , Natura Brevium, p. 243Google Scholar, c.52, ‘Brief de Certiorari’, ‘Pour remouer ass. en bank le Roy’, super sedeas, a writ commanding the stay of legal proceedings.
page 302 note 111 7Hen.4, f° 41b, this particular Year Book has, with the details of the case, remained inaccessible.
‘the late height of punishments’ is a reference to the severity of Strafford's administration; ‘this court’, alluded to a little later, is the Castle Chamber.
page 303 note 112 3 Hen. VII, cap.1 (1487), ‘An Acte giving the Court of Star chamber authority to punnyshe dyvers Mysdemeanors’ (SR, 2, 509Google Scholar); a specific reference was made in these statutes to murderers, a far worse category of offender than Darcy had alluded to in the Dublin Castle Chamber. Verba statut., quoting from the statute.
Rooke's Case, 5CoRep.100, ‘for the statute of 6Hen.6, cap.5, on which the commission of sewers is formed and specified, has precise words in the said commission, that no person of any estate or commission shall be spared. And if the law should be otherwise, inconvenience might follow’ (ER, 77, 209)Google Scholar.
Lord Viscount Clanmorris, another Galway man; Thomas Bourke, recorded as in the Irish House of Lords in 1634, was related to die Clanricardes and went to jail with Patrick Darcy in 1636 in the wake of the Portumna hearings. The particular incident alluded to here is another episode about which no details have been discovered.
page 304 note 113 salvo contenemento, a clause from Magna Carta, see note 19.
Statute of Westminster 1, cap.6 (1275), ‘Amerciaments shall be reasonable’ (Extract from the Red Book of the Exchequer, Dublin, SR, 1, 26)Google Scholar.
Abbot of Ramsey's leet see Cartularium Monasterii de Rameseia, ed. Hart & Lyons, 3 vols, Rolls series (London, 1884–93).
4 Eliz., Dyer, 211b, ‘A leet jury refusing to present according to their oaths, the steward may set a fine upon them. Or if it be a jury or homage of copyholders in a court baron, it is a forfeiture of their tenures’ (ER, 73, 467)Google Scholar.
Godfrey's Case, 11CoRep42a–43, ‘Two of the jury of a leet refused to make a presentment that they paid 10s for the certainty of leet; the steward imposed a fine of £6 upon them, and the lord distrained for the fine, and pro certo letae […] Resolved — the fine imposed upon the jurors jointly is not lawfully imposed; it ought to have been severally assessed’ (ER, 77, 1199).Google Scholar
page 304 note 114 ab enumeratione…, penalties were not equal, but proportionate; Earls and Barons were not amerced, the soldier and the freeman were amerced salvo contenemento (according to their station), the merchant according to his merchandize, the villein according to his serfdom, the clerk according to his lay or feudal condition.
19 Edw.IV, f° 9Google Scholar; 21 Edw.IV, f° 77Google Scholar, Year Book references for evidence of inflation of amerciaments.
Griesley's Case, 8CoRep.48a–b, recte, 38a–b, ‘for a fine is always imposed and assessed by the Court, but an amercement which is called in Latin misericordia, is assessed by the country. And this word (afferer) is as much as to say ponere in certitudinem seu taxare to assess or tax, and the afferance is as much as to say assessment or taxation’ (ER, 77, 532–3Google Scholar).
page 305 * ‘Fitz.’
page 305 note 115 excessus in re qualibet, jure reprobatur communi, excess in whatever thing is condemned by common law.
Statute of Westminster cap.35, see note 113. ‘Excess of jurisdiction in franchises’ (SR, 1, 35Google Scholar). Glanvill 1.9, f 70, see note 109. The reference here is to f 35v, ‘Breve de summonenda magna assisa inter dominum et vassallum’ (The writ for summoning the Grand assize between Lord and Vassal), ed.Hall, p. 111.
Fitzherbert, , Natura Brevium, p. 135Google Scholar; Darcy's purpose is not clear here. There is no reference to ‘wast’ at the quoted passage (which deals with the guarantees of the Great Charters); ‘wast’ is to be found at pp. 55–59v. Register Judiciale, untraced.
4CoRep.27b, in Hobart & Hammond's Case, ‘The non-payment of an unreasonable fine, where the custom is uncertain, is no forfeiture of a copyhold. Whether a fine be reasonable or not shall be determined by the justices either upon demurrer, or upon evidence to a jury, or confession or proof of the yearly value’ (ER, 76, 942–3Google Scholar).
rationabile relevium, > relevy, ‘a payment, varying in value and kind, according to rank and tenure, made to the overlord by the heir of a feudal tenant on taking up possession of vacant estate’ (OED); CoLitt, f 83v, ‘Of Knight's Service’, ‘Before the making of the statute of Magna Charta, the King had rationibile relevium of Noblemen and it was not reduced to any certainty’. Spelt ‘relivium’ in the 1643 edition, and signalled as a Fault escaped, this is another correction which the 1764 edition ignored.
page 306 note 116 Magna Carta, cap. 28, see note 88.
page 306 note 117 Genesis.i.31, ‘and God saw all that he had made, and it was very good. Evening came, and morning came, a sixth day’; Genesis, i.27, ‘So God created man in his own image; in the image of God he created him’.
Aristotle, De natura animalium; this is probably an allusion to De historia animalium; in the absence of a specific reference, and given the generality of the idea proposed, one may suppose that the quotation has a basis in Aristode's work.
judicium parium, the justice of equals; a quotation from Magna Carta, see notes 88 and 97.
page 307 note 118 Stamford, , Pleas of the Crown, pp. 142–3Google Scholar, Sir William Stanford, ‘Des queux offences home approuvera’; see note 69.
Unless Darcy is quoting from an unidentified source, ‘the fourth article of the King's printed book of instructions’, should be the fortieth; HMD, Article XL, ‘Against the testimony of persons condemned or in protection’ eds. Hand & Treadwell, 208.
page 307 note 119 Lambarde, , Saxons laws, f 113, p.34Google Scholar; Darcy has vulgarized the title of William Lambarde's APXAIONOMIA, sive De prisas Anglorum Legibus Libri (London, 1568)Google Scholar. The reference is to p.34 of Leges Canuti Regis, which is on f 116v of the 1644 edition of Lambarde, ‘De falsi testimonio accusato’.
page 308 note 120 Stamford, Prerogative 8; SirStanford, William, An Exposicion of the Kinge's Prerogative; collected out of the great abridgement of Justice Fitzherbert (London, 1567)Google Scholar; as the final cluster of Year Book cases on this page will indicate, this work is a selective compendium of the statutes gathered together in Fitzherbert's three-volume summary of the Year Books, entitled La Ground Abridgement (London, 1565).Google Scholar
page 309 note 121 6CaRep.6b, in Wheeler's Case, ‘If the King grants lands in fee, and reserves nothing, the patentee should hold by knight's service in capite. The same law, if the King grants lands by express words absque aliquo iude reddendo; or if he grants lands without any reservation, the tenure should be of the King by knight's service for the incertainty, and so it is held in 33 Hen. 6,7a’ (ER, 77, 262–3)Google Scholar.
9CoRep.123, in Anthony Lowe's Case, ‘And the King cannot by his charter alter the law, but it shall be expounded as near the King's intent as may be, and that is to extinguish all services, but that only which is an inseparable incident to every tenure, and that is fealty, for that the King may do by the law, and id Rex potest de jure potest. Vide 8 Hen.7, casu ultimo. And as to the cases which have been put out of the book in 33 Hen.6, they were agreed affirmed for good law’ (ER, 77, 910Google Scholar). Fitzhefbert, , Natura brevium, p. 263Google Scholar, c.170, ‘Briefe de Dote Assignanda’.
Fitzherbert, , Grants, p.102Google Scholar; the 1609 edition of Natura Brevium (which is not in-folio) offers no corresponding information at this reference, and ‘grants’ are found at pp. 152–5.
Fitzherbert, , cessabit, p.17Google Scholar, recte, ‘Briefe de cessavit’ to be found in Fitzherbert, pp. 208–10. Butts Case, 6CoRep.25, recte, 7CoRep.23a, ‘If a man seised of Black-acre in fee, and also possessed of White-acre for years, by his deed grants a rent out of both to A to have and perceive to him for the term of his life, with clause of distress in both; A may distrain in White-acre, for rent arrere; and resolved, […]: If the manor of D, out of which the rent is granted, be recovered by eigne title, all the rent is extinct; but if the manor of S, in which the distress is limited be evicted, the whole rent remains’ (ER, 77, 446)Google Scholar.
It U appropriate that the last word should be with Sir Edward Coke to whose example Darcy's work owes so much. Here ends Darcy's argument in defence of the queries, refuting the objections raised by the judges. The editions of 1643 and 1764 do not, however, end here; they include in a final section a reformulation of the twenty-one queries in affirmative form, as they were voted and approved, nullo contradicente, at the Irish House of Commons on 26 July 1641.