Question was debated in a solemne Conference betweene both the Houses of Parliament at seuerall times and at great length and with much libertie Nothing was omitted that Wit or Art could inuent to obiect against this opinion And that was done by men of great learning and singular iudgement in the Common Lawe and Ciuile Lawe and by some other Gentlemen of the Common House of rare gifts for their learning knowledge elocution and experience At this Conference the Iudges were present who after they had heard all that was or could be said did confirme their former opinions which they had before deliuered in the higher House Three of the chiefe of them declaring their reasons and all the rest sauing one alone concurring in the same So here was now a generall resolution by all the Iudges of the Realme one excepted and that deliuered not priuately but in Parliament which without more adoe had beene sufficient to haue decided and determined this Question Touching the Proclamation it was discreetely and modestly saied by a learned Gentleman of the lower House That it was of great respect and much to bee regarded but yet it was not binding nor concluding for Proclamations can neither make nor declare Lawes And besides that this Proclamation was not grounded vpon any resolution of the reuerend Iudges but vpon the opinion of some skilfull in the Lawes of this Land Of the strength of Proclamations being made by the King by the aduise of his Counsell and Iudges I will not discourse yet I will admonish those that bee learned and studious in the Lawes and by their profession are to giue counsell and to direct themselues and others to take heede that they doe not contemne or lightly regard such Proclamations And to induce them thereunto I desire them to looke vpon and consider aduisedly these few Proclamations Prouisions or Ordinaunces which I will point out vnto them and of what validitie and force they haue beene houlden to bee in construction of Lawe albeit they be neither Statutes nor Acts of Parliament M. 4. H. 3. in Dower the defendant pleaded Quod petens est de potestate Regis Franciae residens in Francia Et prouisum est à Consilio Regis quod nullus de potestate Regis Franciae respondeatur in Anglia antequam Angli respondeantur de iure suo in Francia This the Plaintifes Atturney could not denie and thereupon the iudgement was Ideo sine die Anno 20. Hen. 3. certaine Prouisions and Ordinaunces were made which were called Prouisiones Merton where the King assembled his Archbishops Bishops Earles and Barons for the Coronation of the King and his wife Queene Elenor and the words be Prouisum est in curia Dom. Regis apud Merton corā Willihelmo Cantuariensi Archiepiscopo Coepiscopis Suffraganeis suis Et coram maiori parte Comitum Baronum Angliae ibidem existentium pro Coronatione ipsius Domini Regis Helionorae Reginae pro qua omnes vocati fuerunt Cum tractatum esset de communi vtilitate Regni super articulis subscriptis Ita prouisum fuit concessum tam a praedictis Archiepiscopis Episcopis Comitibus Baronibus alijs De viduis primò c. Fitzherbert citeth a Prouision made Anno 19. H. 3. in these words Et prouisum fuit coram Domino Rege Archiepiscopis Episcopis Comitibus Baronibus Quod nulla Assisa vltimae praesentationis de caetero capiatur de Ecclesiis Praebendatis nec de Praebendis This Prouision was alowed and continued for Lawe vntill W. 2. Anno 13. Edw. 1. ca. 5. which prouides the contrary by expresse words Anno 6. Ed. 1. the King and his Iudges made certaine Explanations of the Statute of Gloucester which are called Explanationes statuti Glocestriae And these be the words Postmodum per Dominum Regem Iusticiarios suos factae sunt quaedam Explanationes quorundam articulorum superius positorum Which Explanations haue euer since beene receiued as a Law There is a Proclamation by King Ed. 3. bearing Teste at Westminster Anno 15. Edw. 3. And Iudge Thorpes opinion Pa. 39. Ed. 3. 7. both which I will now forbeare to report and wish the Students to reade the same in the printed Bookes where they shall see both the effect and the reason and the cause thereof They are worth their reading and may informe and direct them what iudgement to make of Proclamations Touching the opinion of the Iudges some haue obiected yet modestly and I suppose according to their conscience and vnderstanding That there is not like regarde to be had of Iudges opinions giuen in Parliament as ought to bee of their iudgements in their proper Courts and Seates of Iustice for in those places their Oath bindeth them but not so in the other 1. To this I answere The reuerence and woorthinesse of the men is such as is not to bee quarrelled and doubted of if there were no Oathe at all For if men of so great and eminent places feare not God and his iudgements euen out of a religious conscience which is Fraenum ante peccatum flagrum post peccatum it may be doubted that the externall ceremonie of adding a Booke will little auaile 2 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 Kings Writ not to sit as Tell-clockes or idle hearers but quòd personalitèr intersitis nobiscum ac cum caeteris de Consilio nostro super dictis negotijs tractaturi vestrumque Consilium impensuri And those Negotia be Ardua vrgentia negotia Regni c. And their Oath amongest other things is That they shall counsell the King truely in his businesse 3 This Exception may serue against the Iudges as well in Cases when they sit and giue iudgement as Iustices of Assises Nisi prius Oyer and Terminer and Gaole Deliuerie as in this Case of Parliament for there they haue none other Oath but their generall Oath 4 It becomes vs to esteeme of Iudges now as our forefathers esteemed them in times past for as they succeede them in Time and Place I thanke God and the King I haue neither cause to feare any for displeasure nor to flatter any for fauour wherefore I will neither be afraid nor abashed to speake what I thinke I say therefore that as our Iudges now succeed the former Iudges in Time and Place so they succeede them and are not inferior to them in Wisedome Learning Integritie and all other iudicious and religious Vertues Then let vs see what the wisedome of Parliaments in times past attributed to the Iudges opinions declared in Parliament Of which there bee many Examples but I will trouble you but with two or three I wil not remember Richard the seconds time of which some of our Chroniclers doe talke idely and vnderstand little
where power and might of some potent persons oppressed iustice and faithfull Iudges for expounding the Law soundly and truely The first that I will remember is this In the Parliament 28. H. 6. 16. Ianuarij the Commons made suite That W. de la Poole Duke of Suffolke should bee committed to prison for many treasons and other hainous crimes committed by him The Lordes in Parliament were in doubt what answer to giue they demaunded the opinion of the Iudges Their opinion was That hee ought not to bee committed And their reason was for that the Commons did not charge him with anie particular offence but with generall slaunders and reports And therefore because the Specialties were not shewed hee was not to bee committed This opinion was allowed And thereupon 28. Ianuarij the Commons exhibited certaine speciall Articles against him viz. That hee conspired with the French King to inuade the Realme c. And thereupon hee was committed to the Tower 2 In the Parliament Anno 31. H. 6. in the vacation the Parliament being continued by prorogation Thomas Thorpe the Speaker was condemned in a thousand pounds dammages in an action of Trespasse brought against him by the Duke of Yorke and was committed to prison in Execution for the same After when the Parliament was re-assembled the Commons made suite to the King and the Lords to haue Thorpe the Speaker deliuered for the good exploite of the Parliament whereupon the Duke of Yorkes Counsell declared the whole Case at large The Lords demaunded the opinion of the Iudges whether in that Case Thorpe ought to bee deliuered out of prison by Priuiledge of Parliament The Iudges made this aunswere That they ought not to determine the Priuiledge of that high Court of Parliament But for the declaration of proceeding in lower Coutts in cases where Writtes of Supersedeas for the priuiledge of the Parliament be brought vnto them They aunswered That if any person that is a Member of the Parliament bee arrested in such cases as bee not for treason or felonie or for suretie of Peace or condemnation had before the Parliament it is vsed that such persons be released and may make Atturney so as they may haue their freedome and libertie freely to intend the Parliament Hereupon it was concluded That Thorpe should still remaine in prison according to the Lawe Notwithstanding the priuiledge of Parliament and that hee was the â—peaker Which resolution was declared to the Commons by Walter Moyle one of the Kings Serieants at Lawe And then the Commons were commaunded in the Kings name by the Bishop of Lincolne in the absence of the Archbishop of Canterbury then Chauncellor to choose another Speaker 3 In the Parliament An. 7. H. 8. a Question was moued Whether spirituall persons might bee conuented before temporall Iudges for criminall causes There sir Iohn Fineux and the other Iudges deliuered their opinion that they might and ought to bee so And their opinion was allowed and maintained by the King and the Lords And D. Standish who before had houlden the same opinion was deliuered from the Bishops And it is worth the noting what wordes passed in that Case betweene the Archbishop of Canterbury and that worthy Iudge Fineux 4 If a Writ of Errour bee brought in Parliament vpon a Iudgement giuen in the Kings Bench the Lords of the higher House alone without the Commons are to examine the Errours But that is by the aduise and Counsell of the Iudges who are to informe them what the Lawe is and so to direct them in their iudgement And if the iudgement bee reuersed then commaundement is to bee giuen to the Lord Chancellour to doe Execution accordingly And so it was in Anno 17. R. 2. in a Writte of Errour brought in Parliament by the Deane and Chapiter of Lichfield against the Prior and Couent of New-port-Panell as appeareth by the Record But if the iudgement bee affirmed then the Court of the Kings Bench are to proceede to execution of the Iudgement as it appeareth in Flowerdewes Case P. 1. H. 7. fol. 19. But it is to bee noted that in all such Writtes of Errour the Lords are to proceede according to the Lawe and for their iudgement therein they are informed and guided by the Iudges and doe not follow their owne opinions or discretions otherwise This extrauagant Discourse touching Proclamations and Iudges opinions deliuered in Parliament and how they ought to bee regarded I haue thought materiall and necessarie both in respect of the time wherein wee liue and the Matter which we haue in hand And these bee thinges which I thinke haue beene too lightly passed ouer But if you condemne it as impertinent I must then confesse I haue presumed too much vpon your patience I pray you beare with mee it is but my labour lost and a little time mis-spent if it seeme so vnto you You are wont to pardon greater faultes Call it either a Passe-time or Waste-time as pleaseth you Now to returne to the Case we haue in hand The generall Question hauing had this passage by Proclamation by Commission and by debating in Parliament remaineth yet without coÌ„clusion or iudgement And as euerie man abounds in his owne sence so euery one is left to his owne opinion Specially those that were not satisfied with the graue Resolution of the Iudges in Parliament which although some may tearme and accompt as bare opinions I must alwayes valew and esteeme as a reall and absolute iudgement Now I say this generall Question is reduced to two particular Cases and is iudicially depending in two the highest Courts of Iustice in this Realme and that is by one Complainant against seuerall Defendants for the freehoulde and inheritance of seuerall parcells of Land and as M. Solicitor said well is a Case not fained nor surmised but a true Case betweene true parties And being Quaestio iuris non facti is by both these Courts adiourned hither to bee decided and determined by all the Iudges of England as the rarenesse of the Case and the weight and importaunce of it both for the present and the future doth require And the Case being of this nature and qualitie it is not amisse to obserue the proceeding in it for it is woorth the obseruing and not to bee forgotten The Defendants counsell men of great learning and in their profession inferiour to none of their qualitie and degree men conuersant and well exercised in the Question and such as in the great conference in parliament most of them were specially selected choseÌ„ for so they wel deserued as most sufficient able and fit as well for Learning and Knowledge as for all other giftes of Witte and Nature to handle so great and rare a Question And although it hath pleased them of their good discretion to vse the paines but of a few in the debating and arguing of the Case at the Barre yet no doubt that was done vpon mature deliberation and conference with all the residue
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