England so much as to suffer an imputation to bee cast vpon them That they or the Common lawe doe not attribute as great power and authoritie to their Soueraignes the kinges of England as the Romane lawes did to their Emperours For Bracton the chiefe Iustice in the time of king Henry the third hath these direct wordes De Chartis Regijs factis regum non debent nec possunt Iusticiarij nec priuatae personae disputare Nec etiam si in illa dubitatio oriatur possunt eam interpretari Et in dubijs obscuris vel si aliqua dictio duos contineat intellectus domini Regis erit expectanda interpretatio voluntas Cum eius sit interpretari cuius est condere And Britton in the time of king Ed. 1. writeth as much in effect So as now if this question seem difficult that neither direct law nor Examples Precedents nor application of like cases nor discourse of reason nor the graue opinion of the learned and reuerend Iudges can resolue it here is a true and certen Rule how both by the Ciuile Lawe and the ancient Common lawe of England it may and ought to be decided That is by sentence of the most religious learned and iudicious king that euer this kingdome or Iland had But this Case is so cleare as this needeth not at all And in this I would not be mis-vnderstoode as though I spake of making of new Lawes or of altering the Lawes now standing I meane not so but I speake only of interpretation of the Lawe in new questions and doubts as now in this present case neither doe I meane hereby to derogate any thing from the high court of Parliament farre be it from my thought It is the great Councell of the kingdome wherein euery subiect hath interest And to speake of the constitution or forme of it or how or when it was first begunne is for busie Questionists It ought to bee obeyed and reuerenced but not disputed and it is at this time impertinent to this Question But certen it is it hath beene the wisedome of the Kinges of this Realme to reserue in themselues that supreame power to call their Nobles Clergie commons together when they sawe great and vrgent Causes and by that great Councell to make Edicts and Statutes for the weale of their people and safetie of the Kingdome and State as in Anno 10. Edw. 3. the Assembly at Nottingham for the great wars in France And in Anno 20. H. 3. Prouisiones Merton which I remembred before There haue beene made some Obiections of inconueniencie as for bearing of Scot and Lot and such other charges and some out of frugalitie that the king shall lose his profit of making Denizens and such like These are so light as I leaue them to the winde They are neither fit for Parliament nor Councell nor Court Another argument and reason against the Post-nati hath beene lately made out of diffidence and mistrust that they will come into England sans number and so as it were to surcharge our Common and that this may be in secula seculorum I know not well what this meanes The Nation is ancient noble and famous they haue many honourable and woorthie Noble men and Gentlemen and many wise and worthie men of all degrees and qualities they haue lands and faire possessions in Scotland Is it therefore to bee supposed or can it in reason bee imagined that such multitude sans number will leaue their natiue soile and all transport themselues hither Hath the Irish done so Or those of Wales or of the Isles of Man Gernesey and Iersey Whie should we then suspect it now more for Scotland Nay doe you suppose that the Kinge of England will euer suffer so great a parte of his Dominions and so great and famous a Kingdome as Scotland is to be dispeopled It is a doubt imagined without any foundation or ground of reason But if it were to bee doubted the twelue Iudges that haue concurred in opinion and that late worthy Iudge Popham had as great cause to feare it as any others They are wise they are learned they haue faire possessions and good estates They haue posteritie to care for as others haue Yet admit it bee a matter worth the doubting of what is that to the yoong Post-nati that are not like in many yeares to come hither in such number Shall we vpon this causlesse feare depriue them of their lawfull Birth-right Haue wee seene in these fiue yeeres past anie moe of them than this one alone that haue gotten any Lands in England And this little that he hath is so small and poore a portion that his purchase is not great and therefore no iust cause of offence to any Nay if you looke vpon the Ante-nati you shall find no such confluence hither but some few and very few in respect of that great and populous kingdome that haue done long and worthie seruice to his Maiestie haue and still doe attend him which I trust no man mislikes For there can bee none so simple or childish if they haue but common sense as to thinke that his Maiesty should haue come hither alone amongst vs and haue left behinde him in Scotland and as it were caste off all his ould and worthie Seruants And if these Noble and worthie Gentlemen of Scotland I meane the Ante-nati be louingly and brotherly entertained amongst vs with mutuall loue beneuolence that so we may coalescere be vnited together by marriage and otherwise as in some particular cases wee see it already happily begunne no doubt God will blesse this Vnion of both these Nations and make them and the King and great Britaine to be famous through the world and feared redoubted of our enemies and of all that wish vs ill For Vis vnita fortior concordia multos facit vnum But what may follow vpon such arguments of diffidence and suspition which seeme but to hinder Vnion and to breede discord and dissention I will not speake Let euery wise man consider it well For Humana consilia castigantur vbi coelestibus se praeferunt And remember Saint Paules caution Si inuicem mordetis videte ne ab inuicem consumamini And for the resemblance that hath bin made of this Case of Post-nati but indeed for the Vnion of both Kingdomes with the houswifes cutting of her cloth by a threede I will say but this That if shee cut her peece of cloth in length aswell as in breadth all the threeds will bee cutte and the cloth marred And this cutting in this our Case is to cutte all aswell in length as in breadth euen through all the Kinges Dominions and so will rent asunder the whole frame of the Vnion and cut in peeces all the threeds of Allegeance But now I wil aske this question How long shall this suspition and doubt continue Shall there bee a dis-vnion for euer If it bee saied No but
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
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
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