The Gazette 1967/71

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 176

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