THE SPEECH OF THE LORD CHANCELLOR OF England in the Eschequer Chamber touching the Post-nati LONDON Printed for the Societie of Stationers An. 1609. The Printer to the curteous Reader THrough great haste the common Spoiler of most serious Labours Hillary Terme being halfe spent ere this Booke could come forth the word Non in the 45. page and 15. line of all the Bookes of the first Impression was left out which altered the Sentence to a cleane contrary Sence Therefore in those first imprinted Bookes for Quod lego non credo reade quod non lego non credo according to the correction of that place in these Bookes of the second Impression ⧠To the louing Readers BEfore I presumed to speake in the Eschequer Chamber in R. C. Case which is now commonly called the Case of Post-nati I considered mine age and infirmities and how long I had discontinued from such Legall Exercises I might hereupon haue iustly challenged the priuiledge of silence But greater and weightier Reasons ouer-ruled mee and enforced mee to waiue the benefit of that priuiledge For looking into the nature of the Question then in hand and examining the Circumstaunces I found the Case to bee rare and the Matter of great import and consequence as being a speciall and principall part of the blessed and happy Vnion of great Britaine I heard many learned and iudicious Arguments made by the reuerend Iudges and finding that they did not all concurre in Opinion though the number was indeede so few of them that differed that in Greeke it woulde not make a plurall number and that some things were by them omitted which seemed to mee to be both pertinent to the Matter and necessary to bee knowne and more proper and fit to bee spoken by me respecting the place I hould than by them that did wholy binde themselues to the forme and rule of legall Argument and Discourse I thought that I coulde not in duetie sit as a dumbe and idle Hearer onelie The Cause being iudicially depending in the high Court of Chancerie where I was to iudge of it according to Lawe following the rule of mine owne Conscience and the measure of mine owne vnderstanding and not to bee swayed vvith the vveight of other mens opinions I considered also that althogh Silentij tutum proemium is often true in humane policie yet sometime there is Crimen Reticentiae and therefore the Prophet said Vae mihi quia tacui And Chrysostome obserueth that Tribus modis in veritatem peccatur 1. Veritatem prae timore tacendo 2. Veritatem in mendatium Commutando 3. Veritatem non defendendo Remembring this my Conscience tould me that howsoeâ—â—â— Silence might in this Case â—â—â—e excused mee of the second but I could not haue escaped by â—â—â—ence from offending in the first last And if Festus thoght it not reason to send a prisoner without shewing the Causes which were layed against him I might haue beene worthily â—ustly censured if vpon other mens arguments and as it vvere â—…implicita I should haue pronounced my iudgement and sentence in so great a Cause without declaring the grounds â—â—d reasons vvhereupon I stood â—â—us Duetie and Necessitie â—â—r ratio sapienti necessitas were the causes that induced mee to speake in this rare and weightie cause and the force of truth moued mee to speake that which I did speake without respect of pleasing or displeasing any And so hauing the warrant of a sincere conscience which is truly said to be veluti Comes Testis Iâ—dex actionum I haue in the Chancerie iudged and decreed the Case for R. C. And the like Iudgement is also giuen by the Iudges of the Kings Bench in the Assise depending in that Court The decree and iudgement being thus passed diuerse vnperfect Reports and seuerall patches and pieces of my Speech haue bin put in writing dispersed into many hands and some offred to the Presse The Kings M ie hauing knowledge thereof misliked it thereupon coÌ„manded me to deliuer to him in writing the whole discourse of that which I said in that Cause Thus I was put to an vnexpected new labour to reuiew my scribled brokeÌ„ papers Out of which according to the charge imposed vpon me I gathered all which I had before spoken so set it downe faithfully plainly and as neare as I could in the same words I vttered it it pleased his sacred M ie to take some view of it taking occasion thereby to remember the diligence of the L. chiefe Iustice of the common place for the summary report he had published of the Iudges Arguments he gaue mee in charge to cause this to be likevvise put in Print to preuent the Printing of such mistaken and vnperfect reports of it as vvere alreadie scattered abroad Whatsoeuer it is it vvas first conceiued spokeÌ„ out of conscience duty and is now published in humble obedience to my most gracious Soueraigne And so I offer and commend it to your good acceptance and fauourable interpretation T. Ellesmere Canc. ⧠Post-nati MY Lords mine age mine infirmitie and indisposition of health my decaie and weakenesse of memorie and Desuetudo and long discontinuance from this maner of Legall exercise aboue foureteene yeeres haue bereaued mee of the meanes and helpes that should inhable me to speake in so great a Case I feare therefore that it will be deemed presumption if not worse that I aduenture to speake heerein at all specially after so many learned and iudicious Arguments of so many graue learned and reuerend Iudges To say the same that hath beene saied must needes be vnpleasaunt wearisome and loathsome to the hearers and not to say the same is to speake little to the purpose for what more can bee saied than hath beene Yet for that the Case is depending in Chancerie and adiourned hither for difficultie in Law there I must giue iudgement according to the Law Whether the Complainant bee inhabled by Lawe to maintaine his suit in that Court or not I holde it more fitting to deliuer the reasons of my iudgement heere where others haue beene heard than there before a few which haue not heard that which hath beene so learnedly argued and largely debated heere And therefore the Case standing thus I will speake what I thinke And I must say as one of the graue Iudges saied I can tell no newes But some old things which I haue read and obserued I will remember but I can not diuine or prophesie de futuris I leaue that as Iustice Yeluerton did I am free and at libertie Nullius addictus iurare in verba Magistri and therefore I will speake ingenuously and freely In the arguing of this Case some things which are of great weight with mee haue in mine opinion beene passed ouer too lightly and some other thinges which seeme to me but light haue beene ouerweighed as I thinke Halfe an howers time longer or shorter I meane not to striue for and
a le plaintife but it is not so now In auncient time one present aiding comforting and assisting to a murder was taken to bee no principall but an accessorie as it appeareth M. 40. Edw. 3. fol. 42. 40. li. Ass p. 8. p. 25. But now in that case hee is iudged a principall And so it was ruled by all the Iustices M. 4. H. 7. 18. and so Plowden affirmeth the Lawe to be in his Commentaries fol. 99. 100. In ciuile causes in auncient time the Lawe was houlden That hee in Remainder in Taile could not haue an action of Waste nor bee receiued vpon default of tenant for life But afterwards the Lawe was often iudged otherwise and so is the common experience and practise at this day In Anno 40. Ed. 3. 28. Fynchden chiefe Iustice of the common place saith that in ancient time the Vicar could not haue an Action against the Parson But hee saieth the contrarie is vsed at this day which is the better In ancient time a Disseisee could not enter vpon the feoffee of the Disseisor for sauing of the warranty but for many yeeres the Lawe hath beene houlden otherwise and so the common practise yet remaineth By this Rule it is also that words are taken and construed sometimes by Extension sometimes by Restriction sometimes by Implication sometimes a Disiunctiue for a Copulatiue a Copulatiue for a Disiunctiue the present tense for the future the future for the present sometimes by equity out of the reach of the wordes sometime words take in a contrary sence sometime figuratiuely as Continens pro contento and many other like And of all these examples be infinite as well in the ciuile lawe as common lawe And oftentimes the reuerend Iudges haue had a graue regarde in their proceeding that before they would resolue or giue iudgement in such new Cases they desired to consult with the Kings priuie Counsell as appeareth in diuerse Cases in King Edward the third his time R. VV. assaulted Adam Brabson in presence of the Iustices of Assise at VVinchester for which A. B. complained by Bill before the said Iustices alledging this offence to bee in despite of the King and his Iustices to his dammage of an hundred pounds R. VV. pleaded Not guiltie and was found guiltie and dammages taxed to tenne pounds Thereupon the Iudges awarded him to prison in the Sherifes keeping And for the Fine and that which should be further done for the King for the assault done in the presence of the Iudges they would haue the aduise of the Kings Counsell For in a like case because R. C. did strike a Iurour at VVestminster which passed in an Enquest against one of his friends It was adiudged by all the Counsell that his right hand should be cut off and his lands and goods forfeited to the King These be the words in the Booke In this case I note three things 1. The Iudges consulted with the Counsell 2. They haue a like case before when the Counsell was also consulted with viz. Anno 19. E. 3. and yet they would not proceede in this case before they had againe consulted with the Counsell 3. That before Anno 19. Edw. 3. there was no like case nor precedent for such a Iudgement And therefore the Iudges would not of themselues pronounce that heauy iudgement before they had conferred with the Counsell touching the same And after they had the opinion and aduise of the Kings Counsell they proceeded to that Iudgement Thomas Vghtred Knight brought a Forme-done against a poore man and his wife They came and yeelded to the Demaundant which seemed suspitious to the Court whereupon they examined the Matter and staied Iudgement because it was suspitious And Thorpe saide that in the like Case of Giles Blacket it was spoken of in Parliament And wee were commaunded that when any like Case should come we should not go to iudgement without good aduise Wherefore sue to the Counsell and as they will haue vs to doe wee will and otherwise not in this Case Greene and Thorpe were sent by the Iudges to the Kings Counsel where there were 24. Bishops and Earles to demand of them whether by the Statute 14. Ed. 3. ca. 6. a word may be amended in a Writ aswel as a letter or a sillable for the statute speakes but of a letter or a sillable it was answered That it may well be amended For there cannot be a Word without a Sillable and that it was a nice question of so sage men Thus Arbitria Iudicum and Responsa prudentum haue beene receiued allowed and reuerenced in all times as Positiue Lawe and so it must be still For otherwise much mischiefe and great inconuenience will ensue for new Cases happen euery day No lawe euer was or euer can be made that can prouide remedie for all future cases or cōprehend all circumstances of humane actions which Iudges are to determine Therfore when such happen and complaint is made what shall Iudges doe Shall they giue no remedie to the partie grieued Shall they stay for a Parliament Interim patitur iustus They must therefore follow Dictamen rationis and so giue speedie iustice And in many matters of materiall circumstauces they must guide themselues by discretion As in iudging vpon Presumptions To discerne which be Presumptiones temerariae which Probabiles which violentae So for Time what is a conuenient Time and what not So for Waste what is Waste punishable and what not So for Tenders of money what is a conuenient place for tender of mony and what not and what is a lawfull Tender and what not So for Disparagement what is a disparagement and what not And so of other the like cases which are infinite If it be said for so some haue said That if this be thus then the common Lawe of England is vncerten and so the rule of Iustice by which the people are gouerned is too pliable and too weake and vncerten By the same reason it may be said That all the Lawes of all Nations are vncerten For in the Ciuile Lawe which is taken to be the most vniuersall and generall Lawe in the world they hould the same rule and order in all cases which be out of the direct words of the Lawe and such cases be infinite For as I saide new cases spring euery day as malice and fraude increaseth And since the Roman Impire beganne most of their Lawes bee either Edicta Principum or Arbitria Iudicum or Responsa prudentum And in their Iudgements they are guided by Arrests and former Iudgements as may appeare in the Books of many that haue collected such Arrests And they attribute so much to such former Iudgements That as Prysot equalleth them to a Positiue Lawe so they hould that Sententia facit Ius res iudicata pro veritate accipitur legis interpretatio legis vim obtinet Nay which is more vncerten sometimes they
29. treating of the Court called The Shirifes Turne out of which the Leete seemeth to be extracted For whatsoeuer is not presented in the Leete may bee presented and punished in the Shirifs Turne And M Kitchin citeth Britton in this point for the Leete and alleadgeth also the statute of Marlebridge cap. 10. to the same purpose And at this day the view of Francke-pleges and the putting in of Francke-pleges and the Decennarij are but bare names of things past the vse and substance is obsolete and gone And as it was saide few in this place haue put in such Pleges or taken that Oath and yet I trust wee are good subiects and beare true faith and allegeance But this hath beene so fully answered and cleered by the Lord chiefe Baron and the Lord Coke chiefe Iustice of the Common pleas as I doe wrong to spend time in it But touching the seuerall Lawes I say that seuerall lawes can make no difference in matter of Soueraigntie and in the bond of Allegeance and obedience to one King And so it concludeth nothing for the point in question Normandy and Aquitany had seuerall lawes differing from the lawes of England so had Fraunce in King Edward the 3. and Henry the 6. his time Ireland before king Iohns time continued their auncient Lawes and so for the most part haue done euer since Gernesey and Iersey haue yet at this day seuerall lawes which for the most part were the auncient Lawes and Customes of Normandie Wales had in many things yet haue seuerall Lawes so for the County Palatine of Chester also Yet these neuer were nor must not be cantelled and cut off from their allegeance and obedience to the King nor the Kings subiects borne there be incapable of lands and inheritaunce in England for vvhere there is but one Soueraigne all his subiects borne in all his Dominions bee borne Ad fidem Regis and are bound to him by one bond of Faith and Allegeance And in that one is not greater nor lesser than an other nor one to bee preferred before another but all to bee obedient alike and to be ruled alike yet vnder seuerall Lavves and Customes And as Saint Gregorie sayeth of the Church In vna fide nihil officit Ecclesiae sanctae diuersa consuetudo So I will conclude for this point That diuersitie of Lavves and Customes makes no breach of that vnitie of obedience faith and allegeance which all liege subiects owe to their liege King and Soueraigne Lord. And as none of them can be Aliens to the king so none of them can bee Aliens or Strangers in any of his kingdomes or dominions nor Aliens or strangers one to another no more than a Kentishman to a Cheshire-man or è contra And therefore all that haue bin borne in any of the kinges dominions since hee was King of England are capable and inheritable in all his Dominions without exception And as to the other parte of the Obiection that there will be defect of triall for things done in Scotland cannot bee tried in England I say that that maketh little to our present Question whether Post-nati in Scotland be Aliens in England and not capable of landes in England but it trencheth to cast some aspersion vpon the common lawe of England That it is not sufficient to giue iustice to the Kinges subiectes for lacke of sufficient meanes of triall of questions of fact but to this baron Altham gaue so full an aunsweare as more cannot bee saied And so hee did both cleare the doubt and did vphould the sufficiencie of the lawe of England in that behalfe And it seemeth strange that this should now bee found out to bee obiected against Scotland since it vvas neuer heeretofore obiected for France Normandie Aquitany nor is at this day for Ireland Gernesey and Iersey c. whereas all stand vpon the same reason for the point of triall But the wisedome of the lawe of England hath beene such as there neuer failed certen rules for triall of all questions in fact and those were fitted and adapted to the Matter which was to bee tried And therefore whosoeuer doth diligently obserue it hee shall finde in the course and practise of the lawes of England aboue twenty seuerall formes of trialls as by Battell by Iurie and that in diuerse kindes by Wager of Lawe by Proofes by Examination by Inspection by Certificates of diuerse kindes and by manie other wayes And lest there should bee any defect in that behalfe the Law hath prouided seuerall formes of Ioyning of issues and in that hath speciall regard of things done out of the Realme as euerie Student may see in the Bookes of Reports Thus I haue passed these foure Obiections and therefore for this part I conclude That if Argumentum à simili were euer good and concludent in Lawe my Lords the Iudges haue prooued this Case by so many plaine and direct Examples and like Cases and by so manie strong arguments solide reasons drawne out of Booke Cases out of Statutes out of the true rules and forme of pleading and out of ancient Records and Precedents some produced by M. Atturney and many moe remembred by the Iudges as no one thing can bee more plainely exemplified nor appeare more like to an other than this Case is to those Cases which they haue remembred But if examples and arguments à simili doe faile then it remaineth Recurrere ad Rationem and what reason that ought to bee and how to bee vnderstoode is to be considered for it is said that Lex est ratio summa iubens ea quae facienda sunt prohibens contraria So it must be the depth of reason not the light and shallow distempered reasons of common Discoursers walking in Powles or at Ordinaries in their feasting and drinking drowned with drincke or blowne away with a whiffe of Tobacco Lucretius noteth that in many there is Rationis egestas And saint Gregory saith Qui in factis Dei rationem non videt infirmitatem suam considerans cur non videat rationem videt For although Reason and Knowledge bee infinite yet no man can haue more of it than hee is capable of Euery man must receiue it and keepe it in his owne vessell he cannot borrow his neighbours braine-pan to put it in And therefore it is not without cause that one of the grauest and best learned Lawyers of our age and a priuie Counsellor to one of the greatest Monarches of Europe describeth those that should bee Interpreters of Lawes by foure speciall qualities That is 1. AEtate graues 2. Eruditione praestantes 3. Vsu rerum prudentes 4. Publica authoritate constituti So there must be grauitie there must be learning there must be experience and there must be authoritie and if any one of these want they are not to be allowed to be Interpreters of the Lawe How all these Qualities concurre in these reuerend Iudges whom wee haue heard in this present Case I
will spare to speake vvhat I thinke For Chrysostome teacheth mee Qui laudatur infacie flagellatur in corde In seeking out this depth of Reason the same Author giueth a caution which is this Vitium quod in hoc genere fugi debet est ne si Rationē non inuenias mox legem sine ratione esse clames And in 36. H. 6. Fortescue saieth the same in effect which is thus We haue many Courses and Formes which bee houlden for Lawe and haue beene houlden and vsed because of Reason and notwithstanding the reason be not ready in memory yet by study and labour a man may finde it Now when wee come to examine by reason whether Post-nati in Scotland shall be disabled as Aliens or shall be capable of lands in England as naturall borne subiects there wee are first to consider vvhat is the reason whie Aliens in the Dominions and vnder the obedience of other forraine Princes are nor capable of landes in England And surely the true reason is that which was noted by baron Altham and hath since beene ofte remembred viz. The danger that might thereby come to the king and the common-weale Specially by drawing hither too great multitudes of them for so the Treasure of the Realme might bee transported by them into other forraine Kingdomes and Countries whereby it might bee vsed against the King and to the preiudice of the State And besides they might vnder-hand practise Sedition and Rebellion in the kingdome and cause many other daungers and inconueniences but that reason cannot serue against Post-nati in Scotland now that there is but one King of both the kingdomes no more than it can serue against those that are borne in Ireland or Gernesey or Iersey and therefore in reason they are as capable of landes in England as the kings subiects of Ireland and Gernesey and Iersey are Against this there haue also beene many Obiections made and Reasons deuised that seeme witty and haue some shew of probability to proue that Post-nati in Scotland are Aliens and ought not in reason to bee capable of landes in England videlicet 1. That England and Scotland were two ancient seuerall kingdomes vnder seuerall kings and seuerall crownes 2. That they continue yet seueral kingdomes 3. That they haue yet seuerall Lawes seuerall Seales seuerall Crownes and seuerall Kings For it is said though king Iames be king of both and hath but one naturall body yet in iudgement of Law he is in respect of his two seuerall kingdomes as two seuerall kings and the subiects of ech seuerall kingdome are bound to him by distinct allegeance according to the seuerall Lawes of the kingdome where they were borne And all this is grounded vpon this rule or fiction in Lawe Quando duo iura concurrunt in vna persona aequum est ac si essent in diuersis And vpon this ground is this new form of pleading deuised which the Defendants haue vsed in this Case such as cannot be found in any Record euer to haue beene pleaded before and may as well serue against the Kinges subiectes of Ireland as against the Post-nati of Scotland And sithence in former times the like forme of pleading vvas neuer seene against any of the Kings of Englandes subiects which were borne in any of his dominions out of England as in Normandie or Aquitanie or in France I meane such part of it as was in the Kinges possession and in subiection and obedience to him and not in that parte of France which his enemies helde it may be probably inferred That it was then generally houlden that neither such a forme of pleading nor the Matter it selfe was sufficient in Lavve to disable anie such Plaintife for against French-men that vvere not vnder the Kings obedience wee finde it often pleaded And as those that were not subiects to the King nor borne vnder his obedience did then presume to bring suites and actions in England So it can not bee thought but that the king hauing then so large and ample Dominions beyond the Seas as Normandy and Aquitany and many other partes of France some of his subiects borne there had cause to haue and did bring the like suites in England And sithence no such Plea is found to haue beene then vsed against them it can not in Lawe and Reason bee now allowed against the Post-nati in Scotland For I may say as Ascue saied in 37. H. 6. Our Predecessors were as sage and learned as we be And I see not but that in this Case a good Argument may bee reasonably deduced from the Negatiue as it was in the Case reported by the great learned and most graue and reuerend Iudge sir Iames Dyer chiefe Iustice of the Common pleas Anno 23. Elizab. The Question there was Whether an erroneous iudgement giuen in Rie which is a member of the Cinqueportes might bee reuersed in the kinges Bench or Common place at Westminster And it was thus resolued Sed pro eo quod nullū tale breue in Registro nec in aliquibus Praecedentibus curiarum praedictarū inueniri potuerat dominus Cancellarius Bromley per opinionem Capitalium Iusticiariorum vtriusque Banci denegauit tale breue concedere And so Iustice Fenners argument houldeth well viz. There is in this Case no lawe to exclude the Complainant Ergo hee is a liege and a naturall borne subiect But the forme of pleading in the time of king Ed. 1. in Cobledickes case which was cited out of Hengam and the Booke shewed heere by the Lord chiefe Iustice Coke is so direct and plaine for this our Question as nothing can be more plaine and therefore I thinke it not amisse to report it againe That Case was in effect and substaunce thus A woman brought a Writte of Ayel against Roger Cobledicke and declared of the seisin of Roger her Grand-father and conueied the discent to Gilbert her father and from him to the Demaundant as his daughter and heire The Tenant pleaded that the Demaundant was a French-woman and not of the ligeance nor of the fidelitie of England and demaunded iudgement if shee ought to haue the action against him This plea vvas houlden to bee insufficient and thereupon the tenant amended his plea and pleaded further That the Demaundant was not of the ligeance of England nor of the fidelitie of the King and demaunded iudgement c. And against that plea none exception was taken but thereupon the Demaundant prayed licence to depart from her Writ By this it appeareth plainely that the first plea alleadging that she was a French-woman and not of the ligeance nor of the fidelitie of England was insufficient and so declared by Berreford the chiefe Iustice For there can bee no fidelitie nor allegeance due to England respecting the land and soile without a Soueraigne and King But the second Plea alledging that shee was not of the ligeance of England nor of the fidelitie of the King was good and sufficient For to the King fidelitie and