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
And whatsoeuer the Spirites the Learning the Wisedome and Knowledge of all the others vpon long study could affoorde was put into the mouth of those few to serue as Organs and Instruments to deliuer it vnto vs which they haue so well and sufficiently performed that they deserue great praise and commendation For in my poore opinion the witte of man could not deuise to say more touching this Question in Lawe than they haue saied And whatsoeuer hath beene sithence spoken for that part it is for the Matter but the same in substance which the counsell at the Barre did deliuer though it hath beene varied in forme and amplified with other wordes and phrases and furnished with shew of some other strained Cases and authorities The handling of it by the learned and reuerend Iudges hath beene such as it may appeare to the world that euerie one hath spoken his owne heart and conscience and hath laboured by long studie to search out the Lawe and the true reason of the Lawe in this rare Case and so they haue spoken as Coram Deo Angelis None with desire to seeme popular for nothing ought to bee tam populare quam veritas None to seeme to be Time-seruers or Men pleasers for the King whome vnder God they serue being Pater patriae and soueraigne head of both these great vnited Kingdomes is to them both like as the head of a naturall body is to all the Members of the same and is not nor can not bee partiall more to one than to an other Hee deliteth in truth and desireth it and without truth hee can not bee pleased Hee ruleth by his Lawe and commaundeth his Iudges to minister to all his Subiects Lawe and Iustice sincerely and truely and equally and indifferently without any partiall respect It was neuer seene but that in all rare and difficult Cases there haue beene diuersitie of Opinions but yet without breach of Charitie which is the Bond of Vnitie So it hath happened in this Case The Case hath beene argued at large by foureteene learned Iudges twelue of them haue concurred in iudgement but vpon seuerall reasons for as many wayes may leade to one end of the iourney so diuerse and seuerall reasons may conduce to one true and certaine conclusion And here I may not omit the woorthie memorie of the late graue and reuerend Iudge Sir Iohn Popham chiefe Iustice of the Kings Bench deceased a man of great wisedome and of singular learning and iudgement in the Lawe who was absolutely of the same opinion as he often declared as well in open Parliament as otherwise The Apostle Thomas doubted of the Resurrection of our Sauiour Iesus Christ when all the rest of the Apostles did firmly beleeue it But that his doubting confirmed in the whole Church the Faith of the Resurrection The two woorthy and learned Iudges that haue doubted in this Case as they beare his Name so I doubt not but their doubting hath giuen occasion to cleare the doubt in others and so to confirme in both the Kingdomes both for the Present and the Future the truth of the iudgement in this Case Thus my Lords haue you hitherto nothing from mee but Amen to that which all the Iudges sauing two haue saied and much more you cannot expect from mee Yet since I must giue iudgement in this Case and I saied in the beginning that I would render the reasons of my iudgement for that is the course of argument I must houlde I will now deliuer vnto you what are the speciall and principall reasons that first haue induced mee and still mooue mee to houlde the opinion that I doe And as I goe I will indeuour to cleere some doubts and questions that partly in the conference in Parliament and partly otherwise I haue heard made not onely touching this Case it selfe but also touching the forme and manner how it is to be decided and iudged The Case is rare and new as it hath beene often saied it was neuer decided Terminis terminantibus It was neuer iudged by any Statute Lawe which is a positiue Lawe nor by iudgement of the Iudges of the common Lawe Now the first Question is as some would haue it How it is to be iudged and by what Lawe and haue wished that it might haue stayed vntill the Parliament and so bee decided by Parliament They that make this doubt I will let them demurre and die in their doubts For the Case beeing adiourned hither before all the Iudges of England is now to be iudged by them according to the common Lawe of England and not tarrie for a Parliament For it is no transcendent Question but that the common Lawe can and ought to rule it and ouer-rule it as Iustice Williams said well But then this Question produceth another That is What is the Common Lawe of England Whether it be Ius scriptum or non scriptum and such other like niceties For wee haue in this Age so many Questionists and Quo modo and Quare are so common in most mens mouthes that they leaue neither Religion nor Lawe nor King nor Counsell nor Policie nor Gouernment out of question And the end they haue in this Question What is the Common Lawe is to shake and weaken the ground and principles of all gouernement And in this particular Question of the Law of England to ouerthrow that Law whereby this Realme hath many hundred yeares beene gouerned in all honour and happinesse or at least to cast an aspersion vpon it as though it were weake and vncertaine I will therefore declare mine opinion in this point plainely and confidently as I thinke in my conscience and as I finde to be sufficiently warranted by ancient Writers and good authorities voide of all exception The common Law of England is grounded vpon the Law of God and extendes it selfe to the originall Lawe of Nature and the vniuersall Lawe of Nations When it respects the Church it is called Lex Ecclesiae Anglicanae as Magna Charta ca. 1. Ecclesia Anglicana habeat omnia sua iura integra illaesa When it respects the Crowne and the King it is sometimes called Lex Coronae as in Stat. 25. Edw. 3. cap. 1. Lex Coronae Angliae est semper fuit c. And it is sometimes called Lex Regia as in Registro fo 61. Ad iura Regia spectat And Ad conseruationem iurium Coronae nostrae ad iura Regia ne depereant c. When it respectes the common subiects it is called Lex Terrae as in Magna Charta ca. 29. Nisi per legale iudicium parium vel per legem Terrae Yet in all these Cases whether it respectes the Church the Crowne or the Subiects it is comprehended vnder this generall tearme The common Lawes of England Which although they bee for a great parte thereof reduced into writing yet they are not originally Leges scriptae This I first learned of the late Lord Treasurer
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