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
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
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
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
Burleigh whose Honourable memorie England can neuer forget and hearing it from him I indeuored by my priuate studie to satisfie my selfe thorowlie in it And whosoeuer shall well consider the Lawes of England which were before the Conquest whereof wee haue some Remnants and Patches or since the Conquest vntill Magna Charta Anno 9. H. 3. will make little doubt of it In H. 2. time Glanuile writeth thus Leges Anglicanas licèt non scriptas leges appellari non videtur absurdum And in Hen. 3. time Bracton writeth thus Cùm autem ferè in omnibus Regionibus vtantur legibus iure scripto sola Anglia vsa est in suis finibus iure non scripto consuetudine in ea quidem ex non scripto Ius venit quod vsus comprobauit But I may not agree with Bracton that Sola Anglia vsa est iure non scripto For I find that the grauest and the greatest learned Writers of the Ciuile Lawe both auncient and of this our time doe hould the same opinion touching the Ciuile Lawe it selfe for thus they write Ex non scripto Ius venit quod vsus approbauit And thus Ius Ciuile dictum ex non scripto natum est And Ius non scriptum dicitur Consuetudo non quod scripto perpetuò careat hoc enim falsum est Nam Consuetudines in memoriam constantiorem reducuntur in Scripturam vt caetera quoque quae sine scriptura perficiuntur Sed non scriptum ius est id est quòd à scriptura vis eius non coepit nec pendeat So hereby it may appeare how in this wee concurre with the Ciuile Lawe But hereupon these Questionists moue an other Question viz. If the common Lawe be not written how then shall it be knowen To this I aunswer It is the common custome of the Realme as Bracton saieth Ius venit quod vsus comprobauit And it standeth vpon two maine pillers principall parts by which it is to bee learned and knowen The first is certaine knowne principles and Maximes and ancieut Customes against which there neuer hath beene nor ought to bee any dispute As in Cases of Subiects an estate in Fee-simple for life for yeeres Dower Curtesie c. In Cases of the Crowne the Female to inherite the Eldest sole to bee preferred No respect of Halfe Blood No tenant in Dower or by the Courtesie of the Crowne No disabilitie of the Kings person by infancie c. The second is where there be no such Principles then former iudgements giuen in like Cases And these be but Arbitria Iudicum Responsa Prudentum receiued allowed and put in practise and execution by the Kings authoritie Of these Bracton speaketh Ego H. de Bracton animum erexi ad vetera Iudicia iustorum perscrutanda facta ipsorum Consilia Responsa in vnam summam redigendo compilaui And before the Conquest King Ethelbert caused a Booke to bee made which was called Decreta Iudiciorum And king Alured did the like as master Lambard a iudicious and learned obseruer of Antiquities doth remember Of these also the Iudges speake H. 33. H. 6. Moyle fo 8. We rule the Law according to the auncient course Ashton fol. 9. All our Lawe is guided by Vse and by Statute And Prysot saieth fol. 9. There cannot be a positiue Law but such as was iudged or made by Statute Wherein I note also that hee equalleth a Iudgement with a Statute In 36. H. 6. fol. 25. Fortescue reasoneth thus The Lawe is as I haue said and so hath beene alwaies since the Lawe beganne In 37. H. 6. f. 22. Ascue reasons thus Such a Charter hath bin allowable in the time of our Predecessours which were as sage and learned as we be In H. 4. Edw. 4. fol. 41. Markham reasoneth thus It is good for vs to doe as it hath bin vsed before this time and not to keepe one way one day for one party and another day the contrary for the other party And so the former Precedents be sufficient for vs to follow And iudgement was giuen accordingly And in the former Case 36. H. 6. Fortescue saith further Wee haue many Courses and Formes which be houlden for Lawe Also euerie one of these foure principall Courts The Chauncery Kings Bench Common-plees and Eschequer haue in many things seuerall courses and formes which are obserued for Law and that not onely in that proper Court but also in all Courtes through the Realme whereof many Examples bee remembred in the Case of the Mines in Plowdens Commentaries The third But if there be no such former Iudgements nor direct Examples or Precedents then this Rule hath a further extention which is this There is a Rule in the common Lawe that in nouo casu nouum remedium est apponēdum Et concordent Clerici de Breue faciendo ita quod nullus recedat à Cancellaria sine remedio For the Chācery is properly Officina Iustitiae AEquitatis where all original writs which in ancient times were the Grounds of all Suites are deuised and framed And these Clerici were graue and auncient men skilfull long experienced in the course of the Chancerie and called Clerici de prima forma And of late time Magistri Cancellariae who in new and strange cases besides their owne knowledge and experience had oftentimes conference with the graue Iudges for the deuising and framing of new Writtes when neede required And this I take to bee the same which is in the Statute W. 2. cap. 24. Et quotiescunque de caetero euenerit in Cancellaria quod in vno casu reperitur breue in consimili casu cadēte sub eodem iure simili indigente remedio non reperitur Concordent Clerici de Cancellaria in breui faciendo vel atterminent querentes in proximum Parliamentum Et scribantur casus in quibus concordare non possunt referant eos ad proximum parliamentum Et de consensu Iurisperitorum fiat Breue ne contingat de caetero quòd Curia Regis deficiat conquerentibus in Iusticia perquirenda Wherein I note these three thinges First The Clerkes are to agree and if they agree that is an end and standes for Lawe and then no referrement to the Parliament Second If the Clerks agree not and so the Case be referred to the Parliament Then De Consensu Iurisperitorum fiat Breue So Consensus Iurisperitorum is the Rule and not the multitude of vulgar opinions The third is That Iustice faile not them which complaine Which will often faile if you stay vntill a Parliament For Parliaments are not to be called for the wrong of a few priuate Subiects but for the great and vrgent affaires of the King and the Realme I finde also a like Rule in the Ciuile Lawe Vbi non est directa lex standum est arbitrio Iudicis vel producēdum ad similia And another saith De
similibus ad similia iudicium argumentatio recipiuntur 4 Besides these there is an other generall and certaine Rule in the Ciuile Lawe which I reserue to the last parte of that which I meane to speake in this Matter So leauing that vnto a more proper place I will hereupon conclude That if there bee no former Iudgements nor Examples nor Precedents to bee found then Concordia Clericorum Arbitrium Iudicum is to seeke out the true and solide reason and thereupon to ground their Iudgements in all new Cases For it was truely saide by a learned Gentleman of the lower House Deficiente lege recurrendum est ad consuetudinem Deficiente consuetudine recurrendum ad rationem And so from the Iudges we shall haue Responsa prudentum to decide all such new Cases and Questions And according to this Rule all such new doubts and questions haue beene resolued and decided by the graue Iudges in former times But here before I proceede further I am to make a suite which is this That whatsoeuer I haue spoken or shall happen to speake of the Ciuile Lawe or whatsoeuer I shall cite out of any Writer of that Lawe I pray fauour my Masters that professe it I acknowledge that Lawe to be auncient and generall in many parts of the world and I reuerence the professors of it as men of great learning wisedome and iudgement I professe it not I haue learned little of it but in that little I haue found that in the reall and essentiall partes of Iustice the Ciuile and common Lawe doe in many things concurre though they differ much in the forme and manner of proceeding And that which I shall haue occasion to produce of that Lawe will bee to shew how the common Law and Ciuile doe agree in one reason and iudgement in those things which I shall speake of Yet I must take libertie to say That neither in Spaine nor in France those two great Monarchies it is not generally receiued nor allowed as a concluding and binding Law They take there the reason of it onelie as a directiō to their proceeding iudgement But to produce or alleadge it as a concluding or binding Law was no lesse than Capitis poena This I make not of my selfe for besides common practise and experience I haue an honest and substantiall witnesse Master Adam Blacwood a Scottishman a man of singular learning in the Ciuile Lawe who defendeth in like manner the Lawes of Scotland as appeareth in his learned Booke intituled Pro Regibus Apologia written by him against a seditious Dialogue or Libell made by George Buchanan De iure regni apud Scotos where he tells him Aliud Sceptrum aliud Plectrum But it is not amisse to recite his owne words which are thus Philippus cognomento Pulcher cùm Lutetiae supremae iurisdictionis curiam institueret eam Romano iure solutam esse declarauit in eamque sententiam vetus extat eius Curiae decretum ne causarum patroni Romanarum Legum auctoritatem patriae legibus opponant Sed cùm illae bono aequo niti videntur probabilem vtilitatis publicae causam continere nos earum vtimur haud imperio sed ratione cui omnes homines naturae praescripto subijciuntur Quin etsi quid aduersus rationem legum Romanarum perperà m ac temerè iudicatum est id earum multis poenis haud aestimatur sed vel Principis vel superioris magistratus arbitratu Nam cùm in publici muneris partem admittimur conceptis verbis inauguramur solemni sacramento regiarum municipialium legum atque morum obseruationem nulla Romani iuris mentione spondemus Apud Hispanos capitis poenam ijs indictam legimus qui Romanarum legum auctoritatem vel in foro laudarent vel in puluere scholastico profiter entur Sed si quid occurreret patrijs legibus ac moribus indefinitum quod iudicanti religionem adferret vnicum erat eximendo scrupulo regis consulendi remedium Alaricus Tolosae regnans idem Gothis imperauit vt si quis aduersus ipsius leges Ciuile Romanorum ius citaret temerè factum morte lueretur Now to returne to that which I haue touched before I say that when there is no direct Lawe nor precise Example we must Recurrere ad rationē ad responsa prudentum For although Quod non lego non credo may bee a true and certaine rule in Diuinitie yet for interpretation of Lawes it is not alwaies so For wee must distinguish betweene fidem moralem and fidem diuinam or else wee shall consound many things in the ciuile and politike gouernement of Kingdomes and States For the first Precedent which wee haue now had no precedent when it began But as Tacitus saith Quae nunc vetustissima creduntur noua fuerunt quod hodie exemplis tuemur inter exempla futurum est And to those that hould that nothing is to bee done but by former Examples Horace speaketh thus O imitatores seruum pecus And Cicero saith Non exempla maiorum quaerenda sed confilium est eorum à quibus exempla nata sunt explicandum Thus hath Iustice beene duely administred in England and thereby the Kings haue ruled the people haue beene gouerned and the Kingdome hath flourished for many hundred yeeres and then no such busie Questionists moued any quarrell against it Thus haue all doubts growing vpon Magna Charta and Charta de Foresta made in King Henry the thirds time and vpon the Statutes of Westmin 1. Westm. 2. Westm. 3. and many other Statutes made in Ed. 1. time And vpon Praerogatiua Regis and many other Statutes made in Ed. 2. time beene from time to time expounded and so of later times the Statutes of Fines of Vses of Willes and many moe Thus also haue all Doubts and Cases whereof there was no Statute or Positiue Lawe beene alwaies expounded for such are most of the cases which wee haue in our Yeere-Bookes and Bookes of Reports which are in effect nothing but Responsa prudentum as Iustice Crooke did truely say Vpon this reason it is that some lawes as well Statute Lawe as common Law are obsolete and worne out of vse for all humane lawes are but Leges temporis And the wisedome of the Iudges found them to bee vnmeete for the time they liued in although very good and necessarie for the time wherein they were made And therefore it is saide Leges humanae nascuntur vigent moriuntur habent ortum statum occasum By this Rule also and vpon this reason it is that oftentimes auncient Lawes are changed by interpretation of the Iudges as well in Cases criminall as ciuile In criminall cases the Law was Voluntas reputabitur pro facto but it is not so now sauing in treason onely In an appeale of Maime Britton fol. 48. saith Soit le Iudgement que il perde autiel member come il auer tolle
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
relie vpon Doctours opinions deliuered in their Prelections and Treatises And when they finde them varying and differing one from another as sometimes they doe then they preferre that which is Communior opinio And so in good reason they may For Pluralitas idem sentientium semper superat quia faciliùs inuenitur quod à pluribus quaeritur But to conclude this point I would aske of these Nouelists what they would haue done in Sibill Belknappes case if they had liued in Henry the fourths time Sir Robert Belknappe that reuerend and learned Iudge of whome sundrie noble and worthy persons and some now of great eminent place in England are descended was banished out of the Realme Relegatus in vasconiam not for any desert or offence of his but by the might of his potent enemies and malice of the time The Lady his wife continued in England she was wronged she brought a Writ in her owne Name alone not naming her Husband Exception was taken against it because her husband was liuing and it was adiudged good and shee recouered and the Iudge Markeham said Ecce modo mirū quòd foemina fert breue regis Non nominando virum coniunctū robore legis Here was a rare and a new case yet it was not deferred vntill a Parliament it was iudged and her wrong was righted by the common Law of England and that Ex arbitrio Iudicum ex responsis prudentum and yet it was counted Mirum with an Ecce Now to apply this to R. Caluines case his case is rare and new so was that There is no direct Law for him in precise and expresse tearmes There was neuer iudgement before touching any borne in Scotland since King Iames beganne his happie raigne in England Hee is the first that is brought in question So there was no direct Lawe for Sibill Belknap to sue in her owne name without her husband who was then liuing nay rather there was direct Lawe against it yet by the Lawe of England shee had iudgement to recouer with an Ecce modo mirum So by the lawe of England iudgement ought to bee giuen for Robert Caluine but not with an Ecce modo mirum but vpon strong Arguments deduced à similibus and ex dictamine rationis But before I come to those arguments I wil vse a few words more touching some Rules which I haue read for the interpretation of lawes There is a graue and learned Writer in the Ciuile Lawe that setteth downe foure waies formes of interpretation of lawes that is first Interpretatio historica secondly Etymologica thirdly Analogica fourthly Practica In the Argument of this Case all these formes haue beene vsed and largely handled and the two first be those that seeme but light to me and therefore in mine opinion haue beene too much stoode vpon and ouer-weighed For the Historicall interpretation it is alwaies darke obscure and vncerten of what kingdome countrey or place soeuer you speake I doe alwaies and onely except the diuine Histories written in the Bible Liuy saith In tanta rerum vetustate multi temporis errores implicantur Saint Augustine speaking of the supposed Bookes of Henoch saieth Libri isti ob nimiam antiquitatem reijciuntur Wherefore for this parte let this suffice whether in the beginning there were one or seuerall Kingdomes in great Britaine or one or seuerall Monarches and Kings of these two great famous Kingdomes in great Britaine The King our Soueraigne is lawfully and lineally descended of the first great Monarchs and Kings of both the Kingdomes and that by so long a continued line of lawfull discent as therein he exceedeth all the Kings that the world now knoweth and therefore to inquire further of Historicall knowledge in this Case I hould it needelesse For the Etymologicall interpretation there hath beene very much saied euen as much as Wit and Art could deuise There haue beene alleadged manie Definitions Descriptions Distinctions Differences Diuisions Subdiuisions Allusion of wordes Extension of wordes Construction of words and nothing left vnsearched to finde what is Ligeantia Allegiantia Fides Obedientia Subiectio Subditi And who bee Aborigines Indigenae Alienigenae Aduenticij Denizati c. And much of this hath beene drawne out of some Writers of the Ciuile Lawe amongst whome the Etymologicall interpretation of the words Ligeus and Ligeantia is as vncerten and doubtfull as it is with our common Lawyers And so vpon any of these there cannot be any certen Rule found for Iudges to iudge by especially in new and rare Cases As for Definition Vlpian teacheth vs Omnis definitio in iure Ciuili est periculosa and it is said that Definitio est duplex Propria quae constat ex genere differentia Impropria quae descriptio vocatur est quaelibet rei designatio So Definition and Description are often confounded and both vncerten Then since both be vncerten and dangerous I will leaue both and seeke a more certen Rule to iudge by As for Etymologie of words I agree with him which saieth It is Leuis fallax plerumque ridicula It is a Pedant Grammarians fault Marcus Varro and others haue beene noted for it And if you examine the Examples which some doe bring you will perceiue how ridiculous and vaine it is So this Rule will not serue to finde out that which wee seeke for These bee but Tendiculae verborum Aucupationes syllabarum as one calleth them It may haue some vse and serue a turne in Schooles but it is too light for iudgements in Lawe and for the seates of Iustice Aquinas setteth downe a more certen Rule In vocibus videndum non tà m à quo quà m ad quid sumantur And words should be taken Sensu currenti for Vse Custome is the best Expositor both of Lawes and Wordes Quem penes arbitrium ius norma loquendi Wherefore of the many and diuerse distinctions diuisions and subdiuisions that haue beene made in this Case I will say no more but Confusum est quicquid in puluerem sectum est and will conclude with Bishop Iuel A man may wander and misse his way in Mists of Distinctions Then leauing these Historicall and Etymologicall interpretations and these curious and subtile Distinctions and Diuisions I say Ligeantia or Allegiantia vnderstood Sensu currenti is vinculum fidei obedientiae as Iustice Daniel said well And hee that is borne in any of the Kings Dominions and vnder the Kings obedience is the Kings liege subiect and borne Ad fidem Regis for that is the proper and ancient word which the lawe of England hath vsed Ad fidem Regis Angliae Ad fidem Regis Franciae and therefore hee cannot bee a Stranger or Alien to the King or in any of his Kingdomes and by consequence is inhabled to haue lands in England and to sue and be sued in any Reall action for the same And Ligeantia hath
vntill the Lawes and Customes of both Kingdomes bee made one and the same then I aske how and when shall that be done And it may bee that the Constitutions of the Countries bee such as there can hardely in all things bee such an absolute and perfect reconciling or vniting of Lawes as is fancied Is it yet so betweene England and VVales or betweene Kent and Cornewall or betweene many other parts of this Kingdome I say no and I speake it confidently and truely it is not so nor well can be so Therefore let England and Scotland be in like degree now as England and VVales were for many hundred yeeres and in many things are yet still and yet let Vnion and Loue increase amongst vs euen in secula seculorum Let vs not be such as Saint Bernard noteth Amant quod non decet timent quod non oportet dolent vanè gaudent vaniùs And let vs no longer make question whether seuerall Lawes and Customes bee markes of seperation and dis-vnion or of seuerall Allegeances for certainely they are not One other Reason remaines against these Post-nati and that is out of a prouident foresight or as it were a prophesying What if a seperation of these Kingdomes fall hereafter Of this I can say but Absit omen It is Potentia remota as Iustice VVilliams saied and I trust in God Remotissima And I will euer pray to God that it neuer fall so vntill the King of all Kinges resume all Scepters and Kingdomes into his owne hands And let vs take heede of sinnes of Ingratitude and Disobedience and remember that Adam and Eue were punished Non propter pomum sed propter vetitum And for such Prophets let the Prophet Ezechiel ca. 13. answer them Vae Prophaetis insipientibus qui sequuntur spiritum suum nihil vident And the Prophet Esay speaketh to all such with an other Vae Vae illis qui dispergunt Now then as M. Solicitor beganne with seeking out the truth so I will conclude with Esdras words Magna est Veritas praeualet And with this further Eatenus rationandum donec veritas inueniatur Cùm inuenta est veritas figendum ibi Iudicium Et in victoria veritatis soli veritatis inimici pereunt The Conclusion THus I haue heere deliuered my concurrence in opinion with my Lordes the Iudges and the reasons that induce and satisfie my conscience That Ro. Caluine and all the Post-nati in Scotland are in Reason and by the Common Lawe of England naturall borne subiects within the allegeance of the King of England and inhabled to purchase and haue free-hould and inheritance of lands in England and to bring reall actions for the same in England For if they haue not this benefit by this blessed and happie Vnion then are they in no better case in England than the king of Spaines subiects borne in Spaine c. And so by this Vnion they haue gotten nothing What they haue lost Iustice Yeluerton did well note And therefore I must giue Iudgement in the Chancerie That the Defendants there ought to make direct answer to Ro. Caluines Bill for the Lands and Euidences for which he complaines T. Ellesmere Canc. The Case The proceeding in the generall Case of Post-nati Stat. 1. Iac. 19. Mart. 1603 The Proclamation 2. Iacobi 20. Octobr. 1604. The Commissioners authorized by Parliament did begin 20. Octob. and did continue vntill 6. Decemb. 2. Iacobi The resolution of the Cōmissioners The Iudges opinion in Parliament The force and strength of the Kings proclamations Fitzh Dower 17◠Fitzherbert Nat. Br. 32. Anno 6. Ed. 1. Explan stat Gloucestr A Proclamation 15. Ed. 3. How the Iudges opinion deliuered in parliament ought to be regarded Obiect Respons Writs of Errour sued in parliament The processe and forme of proceeding in the Case of R. C. now in question How this Case is to be iudged and by what Law What is the common Law of England whether it be Ius scriptum Questionists The ground of the Common Law The common Law is not originally Lex scripta How the common Law of England may be knowne Obiect Respons Maximes and Principles Responsa prudentum Lambard in explicatione verbi Hyde Anno 36. H. 6. In nouo casu nouum remedium St. W. 2. ca. 24. Anno 13. Ed. 1. Vbi non est directa Lex c. Rex solus iudicat c. A request to the professors of the Ciuile Lawe Blacwood ca. 10 Recurrend ad Rationem c. Quod non lego non credo Exposition of Statutes Exposition of Lawes Lawes obsolete Lawes changed Construction of words Iudges consulted with the priuie Counsell 39. E. 3 li. As p. 1. M. 19. Ed. 3. Iudgemēt 174 M. 39. Ed. 3. 35 M. 40. Ed. 3. 34 Iudges to be directed by reason and discretion Obiect That the common Lawe is vncerten Respons M. 2. H. 4. 7. Note foure formes of interpretation of Lawes Historica Fergus Inas Etymologica Ligeantia sensu currenti est vinculum fidei c. Analogica Practica sic ad similia Ireland Obiect 1. Respons France Normandy and Aquitany Obiect 2. Respons The Crowne and great seale of England Obiect 3. Respons Seueral Laws Obiect 4. Respons Lambard in explicatione verbi Centuria Defect of Triall Recurrend ad Rationem Hopperus de vera Iuris prudentia pag. 118 Hopperus ibid. pag. 119. Obiections P. 23. Elizab. Dyer 376. Stat. 14. Ed. 3. That the Realme of England shall not be subiect to France A dangerous distinction betweene the King and the Crowne Absurdities in this dangerous distinctiō Rex solus iudicat c. Prou. ca. 8. Cod. li. 1. Tit. 14 le 1. Ibidem le 12. Obiect of Inconueniencie and frugalitie Obiect vpon diffidence Ante-nati A Question how long this suspition and dis-vnion shall continue Bernard Obiection vpon Diuination Respons