636 / 736
arguments before judgment was delivered (justice
was very slow indeed in those days). In the
Case
"The Dean and Chapter of Ferns (de capitulariter
congregatis)
he appeared for the plaintiff, together
with Sir Richard Bolton, then Recorder of Dublin
and later Lord Chancellor of Ireland. Because
this case was of some interest, concerning the
proper conduct of its affairs by a corporation, a
summary may be given.
Underlying
the
facts was
the
tendency of
Elizabethan bishops to advance the interests of
their families at
the expense of
the Church.
Evidently, Hugh Alien, bishop of Ferns from 1582
to 1599, had made a lease of
the manor of
Fethard-on-Sea to a kinsman, the defendant in
the eventual case. Alien's two immediate success
ors were short-lived, but the third, Thomas Ram
(1605-34), decided to try to regain the manor for
the Church.
The obvious procedural device in
those days was to have the title brought into court
by granting a lease to, in effect, a man of straw,
who was then 'ejected' by the lessee in possession
and became the plaintiff in the action. It was
the task of Davies and Bolton to prove that the
lease by Bishop Alien was either wholly invalid
or had taken effect merely for Alien's life. Both
the canon law and the common law held that a
Bishop, without the consent of his Dean and
Chapter, could give no interest in the lands of his
see not terminable upon his own death. If Davies
and Bolton could show that the 'confirmation' of
the Dean and Chapter, though sealed with their
common seal, was invalid they would have won
the case.
Their first line of attack, a challenge to the law
fulness of the appointment of the then Dean
(based on grounds we need not consider), failed
It was, however, common ground that the chapter
consisted of the Dean and ten others, that the
attendance at the meeting to authorise the con
firmation consisted of a proxy on behalf of the
Dean and three of the other canons, and that three
other canons later separately subscribed to the
confirmation. It was ably argued by the Solicitor-
General, appearing for the defendant, that the
substance of consent to a corporate act of the
Chapter was what mattered, any lack of uni
formity in time and place being cured by the
ultimate affixing of the common seal
'which
united their several assents and made them into
a single joint assent'. But the arguments of Davies
and Bolton that the appointment of a proxy by
the Dean for such a matter was invalid, that a
majority of the membership of the chapter, being
a corporation of a fixed number of members, was
necessary for the authorisation of the use of the
common seal, and that the chapter had to assemble
formally to act as a corporation, were all upheld.
In the wonderful Law French of the day, 'auxy le
consent del major part del Chapter doet estre
done al un temps et nemy scatteringly et al several!
jours'
In his long
Preface Dedicatory
to the Lord
Chancellor of England, Ellesmere, Davies had
vigorously defended Law French:
'And I may
truly say withall, that if the Books of our Law
were all translated into English, they would not
be better, nay, they would not be so well under
stood by the Students thereof, as in this proper
and peculiar Language therein they are now
written'. (But both the Preface and the highly
propagandist report of the
Case of Premunire
appeared in English ....). The
Preface
is most
memorable for the enunciation of Davies's view of
the barrister's fee, which swayed later writers,
most notably Sir William Blackstone.
'For the
Fees or Rewards which they receive are not of the
nature of Wages or Pay, or that which we call
Salary or Hire, which are indeed duties certain,
and grow due by contract for labour of service;
but that which is given to a learned Counsellor is
called
honorarium,
and not
merces
.
. .' To quote
a recent writer, Blackstone and later authorities
'accepted this florid passage as genuine history'.
Its impact endured.
Thus, by his mid-forties, Sir John Davies had
completed a varied output in poetry and prose
and had played a major role on the Irish legal
scene. But in 1619, when he was fifty, he left
Ireland. Why, is not altogether clear; but there had
been a change in the office of Deputy in 1616
and Davies may not have got on so well with
the new man, St John, as with the old, Chichester.
Back in England, Sir John retained a concern
with Irish government as one of a group of stand
ing commissioners for Irish affairs. In this capacity
he was concerned with the work of a committee
of inquiry into the civil, legal and ecclesiastical
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