Page images


now stands, as native English."*

Calvin's case.

But the Commons denied

this opinion to be law, and refused to abide by it.

Thereupon, to have a regular judicial decision, the Chancellor directed a friendly suit to be instituted in his own Court; and hence arose CALVIN'S CASE, or the famous "Case of the Postnati." A piece of land, in the county of Middlesex, was purchased in the name of Robert Calvin, a minor, born in Scotland since the accession of James to the Crown of England, and a bill in Chancery was filed by his guardian, complaining that the deeds were improperly detained from him by one who held them as his trustee. The defendant pleaded that the plaintiff was an alien,-showing his birth in Scotland since the King's accession. There was a demurrer to the plea. At the same time, an action claiming the land was brought in the Court of King's Bench, to which a similar plea was pleaded. Both suits, on account of the importance and alleged difficulty of the question which they raised, were adjourned into the Exchequer Chamber before the Lord Chancellor and all the Judges. Two of them, Walmesley and Foster, Justices of the Common Pleas, had the firmness, at the risk of being dismissed from their offices, to hold that “if a King of England should hold foreign dominions not in right of the crown of England, those foreign dominions must ever form separate states, the subjects of each standing in the same relation to each other as if they had still separate sovereigns, without acquiring new rights, and without the rights they before enjoyed being prejudiced." Such, I apprehend, would be the opinion of all constitutional lawyers at the present day. The arguments on the other side rest chiefly on the notion of England being an absolute monarchy, so that when it was joined under one Prince to another such kingdom, the inhabitants of both owed him a common allegiance, and, for purposes of empire, formed one state, though the ancient municipal laws of each might remain. No attempt was made to show that Scotland was under feudal subjection to England, and the reasoning employed would have applied equally to the inhabitants of all the countries under the dominion of Philip II. if he had had a son by Queen Mary.

1 Parl. Hist. 1078.




The Lord Chancellor delivered a very long and elaborate judgment, in which, it must be confessed, he shows much. more anxiety to please the King than to cultivate his own re- Judgment putation. As a fair specimen, I will transcribe his answer to of Lord the objection that this was a question which ought to be settled in parliament, as there was no known law to solve it. "I would aske of the novelists what they would have done in Sibbel Belknappe's case if they had lived in Henry the Fourth's time? Sir Robert Belknappe, that revered and learned Judge, was banished out of the realm, relegatus in Vasconiam. The lady, his wife, continued in England; she was wronged; she brought a writ in her own name alone, not naming her husband. Exception was taken against it, because her husband was living, and it was adjudged good, and she recovered; and the Judge Markham said,

Ecce modo mirum quod fœmina fert breve regis
Non nominando virum conjunctum robore legis.'

"Here was a rare and a new case; yet it was not deferred until a parliament; it was adjudged; and her wrong was righted by the common law of England; and that ex arbitrio judicum et ex responsis prudentum, and yet it was accounted mirum with an ecce! "Now, to apply this to R. Calvine's case. His case is rare and new: so was that. There is no direct law for him in precise and expresse tearmes; there was never judgement before touching any born in Scotland since King James beganne his happie raigne in England; hee is the first that is brought in question: so there was no direct law for Sibbell Belknappe to sue in her owne name without her husband, who was then living; nay, rather, there was direct law against it. Yet by the lawe of England, shee had judgement to recover with an ecce modo mirum: so by the lawe of England judgement ought to be given for Robert Calvine, but not with an ecce modo mirum, but upon strong arguments deduced à similibus and ex dictamine rationis."

But the Chancellor, no doubt, chiefly piqued himself upon the passage where he combats the apprehension of a Scottish invasion. "Another argument and reason against the Post


Two dis

senting Judges.

Aid for

nati hath been 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 means. The nation is ancient, noble, and famous; they have many honourable and worthie noblemen and gentlemen, and many wise and worthie men of all degrees and qualities: they have lands and fair possessions in Scotland. Is it therefore to be supposed, or can it in reason be imagined, that such multitude sans number will leave their native soile, and all transport themselves hither? Hath the Irish done so, or those of Wales, or of the Isles of Man, Guernsey, and Jersey? Whie should we then suspect it now more for Scotland?"

The dissentient Judges were treated with great scorn, the Lord Chancellor saying that "they did not amount to the plural number in Greek;"- and what the legislature had refused was obtained by this judge-made law*; - but the project of a legislative union was so much prejudiced by the partiality displayed for the Scots, that the King was obliged to drop it, and it was not revived till the reign of Queen Anne, the last of the Stuarts.

In 1612 Lord Ellesmere was employed in assisting the King to institute the new order of hereditary knighthood, whereby a sum of 200,000l. was raised, two hundred Baronets being made at the price of 1000l. a piece.†

[ocr errors]

The Chancellor was next occupied with a matter in which knighting he had the old law on his side, but which involved him in the King's eldest son. much trouble, and gave rise to much petty vexation. The King, by the feudal constitutions, was entitled to an aid from his military tenants to knight his eldest son, to marry his eldest

* A question arose while I was Attorney General, whether a person born in Hanover during the reign of George III. was to be considered an alien? Happily no doubt can exist as to Hanoverian Postnati since the accession of Queen Victoria. See Moore's Rep. 790. Lord Coke's Rep. Part vii. 2 St. Tr. 559. The only colour of argument in favour of the Postnati was that persons born at Calais or Guernsey and Jersey, and even in Normandy and Aquitaine, were considered natural born subjects; but all these places were, however inaccurately, soon considered as belonging to the Crown of England, and so loose were the notions on such subjects prevailing in early times, that Norman barons will be found, as such, sitting in the English parliament.

† Egert. Pap. 449.



daughter, and to redeem his own person should he fall into captivity. This had not been put in force in England for many ages; but Prince Henry having reached his 15th year, and being about to be knighted, it was revived as an expedient to fill the Exchequer without calling a parliament. The mode of proceeding was so little known, that the Chancellor was obliged to have many consultations on the subject with the Judges and the officers of the Exchequer. At last, a writ of Privy Seal was directed to him, commanding him to issue commissions into all the counties of England for assessing the aid; and under these commissions, inquiries were made into the tenure of all lands, and their ancient and present value. These led to a negotiation for giving up entirely "wardship" and the other burthensome incidents of tenure by "knights' service," which would have been most advantageous for all parties; but the Chancellor discouraged it, and this improvement was not accomplished till the reign of Charles II. Before any considerable sum had been collected Death of on this occasion, Prince Henry died, to the unspeakable grief Henry. of the nation, for he had given more earnest of great qualities than any of his race; but the event was probably favourable to our liberties; for if he had survived, and shown the genius for war of which he had given manifestation, such battles as Edge Hill, Newbury, and Naseby, would probably have had a different result, and the Long Parliament would have been the last that would ever have assembled in England.


The King did not venture to resort again to an aid from Feb. 1613. his military tenants, when he married his daughter Elizabeth to the Elector Palatine; but he was obliged to submit to the disagreeable necessity of calling a parliament, a step never taken during the Stuart reigns, except for the purpose of obtaining money.†

* Egert. Pap. 435.

In contemplation of the meeting of parliament, the Lord Chancellor wrote a paper respecting the various subjects to be discussed. I will give as a specimen what he proposes "to equal exportation and importation," and the friends of "Protection" must not be too severe upon his political economy.

"Another thinge of greatest importance ys the contynuall and excessive importation of foreyn superfluous and vayne wares and merchandizes, farre exceeding the exportation of the rych and royal commodities of this kyngedome, by which the realme ys daylye more and more impoverished and wasted, and yf it


April 5.
A parlia-



speech in

House of


On the first day of the session, the King himself delivered a long oration; and the Chancellor's functions, in declaring the causes of the summons, were entirely superseded, - he being merely allowed to go through the forms respecting the choice of a Speaker. The royal eloquence, however, produced very little impression on the Commons; and, instead of voting a supply, they complained to the Lords of a speech. complain of which (as reported by common fame) had been made by the Bishop of Lincoln, reflecting upon them, and questioning their right to withhold a supply.* Lord Ellesmere was the adviser of the Lords in this controversy with the other House, and certainly showed that he had very undefined notions on the subject of privilege. Having ascertained, by a question he put to the messengers of the Commons, that they merely made a verbal complaint against the Bishop of Lincoln without following it up with any written charge, — instead of standing upon the freedom of debate claimed by each House, and the exclusive right of each House to judge of its own proceedings, he recommended a conciliatory answer to the Commons, "that although common fame was not a sufficient ground to proceed upon, nevertheless they would give to the Commons all good satisfaction in this business."

The Commons sent another verbal message, insisting that common fame was sufficient, and repeating the substance of the words which the Bishop was supposed to have spoken;


desiring the Lords, if these words were not spoken so to signify it to the House, otherwise that the Lords would do as they had promised." "The Bishop made a solemn protestation, on his salvation, that he did not speak any thing

be not remedyed in tyme, the state can not longer subsyste. This requireth great consideration, care, and industrye of men skylfull in the trade of merchandize, but such as feare God and love the Kynge and common weale, and wylle not preferre theyre private gayne for the present before the Kinges welfare and the publicke state of the realme. Yf this pointe for equallinge the exportation and importation be not effectually and spedilye dealte in, whatsoever else shall be attempted for abatinge our supplye wyll be to little purpose, for this is a consumynge canker."- Egerton MSS.

This is the Bishop who, according to Waller's story, being asked by King James whether he could not take his subjects' money without all this formality of parliament, replied, “ God forbid you should not, for you are the breath of our nostrils;" which led to Bishop Andrew's witty answer when the same question was put to him, "Why then I think your Majesty may lawfully take my brother Neale's money, for he offers it."

« PreviousContinue »