sometimes a more large Extension For hee that is an Alien borne out of the kings Dominions vnder the obedience of another king if hee dwell in England and be protected by the king and his Lawes hee oweth to the king the duetie of Allegeance and so hee is Ligatus Regi and Ligeus Regis and if hee commit treason the Indictment shall bee contra ligeantiae suae debitum as it was in Shirley the French-mans Case yet is hee not the Kings subiect for hee was not borne Ad fidem Regis But this is not that Ligeance which wee must finde For in a true and lawfull subiect there must bee Subiectio fides obedientia and those cannot bee seuered no more than true Faith and Charitie in a true Christian And hee that hath these three à natiuitate is Ligeus Regis and can not bee a Stranger or Alien to the King or in his Kingdomes And that it is so may be proued by the Rule of the other two interpretations of Lawe That is Analogica Practica King Iames hath now the Kingdomes of England Scotland and Ireland and the Isles of Gernsey and Iersey by discent all these bee his Dominions and vnder his subiection and obedience King Henry the second had England and Normandy by discent from his mother Mawd the Empresse and Aniow and Maine by discent from his father Geffery Plantagenet and Ireland by conquest Henry the third had England and Ireland by discent from his Grand-father Henry the second and Aquitany by discent from his Grand-Mother Queene Elenor wife to King Henry the second and daughter to the duke of Aquitany Edward the first had all the same by discent and parte of Scotland by Conquest Edward the second and Edward the third had all the same by discent also and besides Edward the third claimed all France by discent from his mother Queene Isabell and had the most part of it in possession and so had Henry the fift and Henry the sixt also Now if in these kings times subiectes borne in those Countries being then vnder their obedience vvere no Aliens but capable of landes in England And if at this time subiects borne in Irelād or Gernsey and Iersey be no Aliens but capable of lands in England then by an Analogicall interpretation why should not subiectes borne in Scotland be at this time in like degree For in proportion and in likenesse and conueniencie there can bee no difference at all But whether the subiects borne in those Countries in the time of those kings vvere then capable of lands in England as naturall subiects or were deemed Aliens is the Question and therein Interpretatio practica is to bee considered and so the Case is brought to be examined per similia And in Diuinitie Praxis sanctorum est interpres praeceptorum Now then the Question is Whether the kings Subiects of England and Scotland that be Post-nati may be resembled to the Kings subiects of Ireland and the Isles of Gernesey c. as now they bee and to the subiectes of Normandie Aniow and Gascoyne and parte of Scotland in former times when the same were the Dominions and vnder the obedience of the King of England for I speake alwaies and would be vnderstoode of kingdomes and dominions in possession and vnder obedience and not of those whereunto the King hath right but hath no possession or obedience I houlde that in all points materiall concerning this Question they are alike though not in all things for then it were Idem and not Simile and this can not bee better vnderstoode than by examining the Obiections to the contrary which in substance may bee reduced to foure in number First for Ireland it was gotten by Conquest and the Conquerour may impose what Lawes hee will vpon them But it is otherwise of kingdomes comming by discent This is a conceipted difference and lacks the foundation of Reason and hath not the true parts of a difference for those that are borue in Ireland and those that are borne in Scotland are all alike for their birth within the Kings Dominions and are borne vnder the like subiection and obedience to the King and haue the like bond Nay euen the same bond of Allegiance That is they are borne Ad fidem Regis Besides where it is said The Conquerour may impose what Lawes hee will Then consider how it was in the Interim before King Iohn gaue lawes to Ireland Nay which is more I aske whether the Conquerour of Ireland can giue new lawes to England and make Irish men to bee as naturall borne subiectes in England if their birth-right doe not giue it them which before the Conquest they were not for that is properly the Question But if any difference bee the Case of descent is the stronger For as Iustice Yeluerton saide that is by an vndoubted Title made by lawe the other by a doubtfull Title wonne by the Sword But leaue Ireland gotten by Conquest vvhat say you to the great kingdome of France which Edward the third had first in right by lawfull descent and after in possession by triumphant Conquest and vvhich Henry the sixt held after in possession by descent Was euer doubt made Whether the subiects borne there so long as it vvas in subiection and obedience to the King vvere capable of landes in England I vvill now turne the Case and aske an other Question If King Iames our Soueraigne had first beene King of England by lavvfull descent as novv hee is and after Scotland had descended vnto him should not the Subiects of Scotland I speake still of Post-nati haue beene iudged as Naturall subiects in England as those of France were in Edward the thirds time Then he hauing now both kingdomes by lineall true and lavvfull descent it can make no difference touching the capacitie of Subiects vvhich kingdome descended to him first and vvhich second but both are to him alike And it is cleere Post-nati in England are now capable and inheritable in Scotland though some haue made a causelesse and needelesse doubt of it and so on the other side those of Scotland are in England It is said Normandie and Aquitanie were no monarchies or kingdomes but dukedomes or seigniories in France and holden of the Crowne of France and therefore not to bee resembled to Scotland which is an ancient and absolute kingdome This Obiection reacheth not to the reason of our Question For bee they kingdomes bee they Seigniories yet the subiectes borne there were borne out of the kingdome of England and so in that respect Aliens But in that they were borne within the kings dominions and vnder his subiection and obedience they were no Aliens but liege and naturall borne subiectes to the King and so capable and inheritable in England I say besides the Dukes of Normandie and Aquitany were absolute Princes and had soueraigne power in those countries although they did not beare the name of kings as at
this time the Duke of Sauoy the duke of Florence the Duke and State of Venice and of late the great Duke of Russia the Duke of Burgundy the Archduke of Austria c. So the difference in Stile and Name makes no difference in Soueraignty For king Henry the eight had as absolute soueraignetie in Ireland vvhen his Stile was Lord of Ireland as when hee changed his Stile and was called King of Ireland And to say That the tenure of the Crowne of Fraunce should giue any priuiledge to them of Normandie and Aquitanie in England is a strange conceipt It might rather bee obiected against them But as I saied before they were borne within the kings Dominions and vnder his obeisance and therefore as subiects borne in England And if men may beleeue some auncient Stories Aquitany and Normandy had sometimes kings and were kingdoms of themselues and not depending nor subiect to the Crowne of France and the kingdome of France was then a small portion of Gallia and but a little one in comparison of that which it is at this day And some say that there were foure and tvventie kings in Gaule But as the kings of France increased in povver and strength they subdued their neighbor-Princes and so that kingdome grew to that greatnesse that novv it is at euen as the Heptarchie in England was dissolued and made an intire kingdome when one of the kings mightier than the rest subdued his neighbors It is saied further that Normandy and Aquitany vvere subiects to the Crovvne of England and to the great Seale of England but so is not Scotland Ergo c. This standeth not wel with that which was obiected before That they were but Seigniories houlden of the Crowne of Fraunce And it is true that before Edward the thirds time those Kings of England that held those great Seigniories did acknowledge that they held the same of the Crowne of Fraunce But these Obiections be light and not worth the time that hath beene spent about them The Soueraignetie is in the person of the King the Crowne is but an Ensigne of Soueraignety the Inuesture and Coronation are but Ceremonies of honour and maiestie the King is an absolute and perfect king before he be crowned and without those Ceremonies The Seale is to be altered and changed at the will and pleasure of the King hee may haue one hee may haue many as pleaseth him The King did vse Queene Elizabeths Seale for diuerse moneths after his comming into England Queene Elizabeth vsed king Philips queene Maries Seale for a time and queene Marie vsed king Edwards seale And all that vvas so done was well and lawfully done Many things were done by auncient kings of England before the Conquest by their signature and signe manuell without anie seale at all and some such since the Conquest also as Graunts made by Maude the Empresse to Albericke de Vere and others The King may by his great seale commaund all his subiectes that bee vnder his obedience wheresoeuer they bee in the world So he did in Normandie so he did in Aquitany so hee did in that part of Scotland that he had in possession And in 24. Edw. 1. his Iudges kept ordinary Courts of iustice there and I haue seene the Records of Placita Exercitus Regis apud Edinburgh Apud Roxburgh Apud S. Iohns-towne c. in Scotia So hee may commaund his subiects if they be in France Spaine Rome or Turkie or the Indies And for seuerall seales the Earle of Chester had a speciall seale for that his auncient County Palatine The Duke of Lancaster had a speciall seale for his new Countie Palatine And after when these Counties came to the kinges possession the Kinges continued seuerall seales in them both for the administration of iustice but as subordinate to the great Seale of England And I make little doubt but if the King shall now commaund any of his subiects of Scotland vnder his great seale of England they will as they ought duetifully obey him As in king Edward the 1. Edward the 2. and Edward the 3. times they commanded many of the Lordes of that parte of Scotland which then was vnder their obedience I finde that in 13. Edw. 2. quarto die Iunij the King Constituit Adomarū de Valentia comitem Pēbrochiae Custodem Regni sui ac locum suum tenentē quamdiu Rex in partibus transmarinis morā fecerit And the next day viz. Die Iouis quinto die Iunij Rex ordinauit quod magnum Sigillum suum remaneret clausum in liquo loco securo dum Rex esset in partibus transmarinis Et ordinauit quoddam aliud paruum Sigillum interim pro regimine Regni ad breuia c. Consignanda sub Teste Adomari de Valentia Comitis Pembroch Nota heere was a petty Seale pro regimine Regni wherein are comprised Commissions for Iustice Mandatoria ad breuia consignanda which is for Remedialia as they are termed It is saide that Scotland hath Lawes that are proper for that kingdome that they are not subiect to the lawes of England and so è contra And lastly it was saide that in England euery person was within the iurisdiction of some Leete and at the age of twelue yeares euery one is to bee sworne in the Leete to bee Foiall and Loiall to the King of England That is to the Lawes of England for so hee vnderstoode Loiall But Post-nati in Scotland can not be so and that they haue an other forme of oathe in Scotland Ergo c. For this last parte of the Oathe in the Leete the Lord chiefe Baron did cleere it so plainely as more needes not to be said This is Legalis ligeantia It is not Alta ligeantia by birth which is that which we haue now in question The Historicall discourse that hath bin made of Leetes of Law dayes of Decenna Decennarij of the Tenne-mens Tale and the Oathe of all Male children of twelue yeeres c. taken at the Leete is no newes indeede it is very olde Master Lambard hath it all and more too at large in Explicatione verborum in the word Centuria It vvas before the Conquest But it maketh no hing to this naturall Allegeance and subiection of birth it is not Alta ligeantia by birth-right it is but Legalis ligeantia by Policie And Fitzherbert calleth it Swearing to the Lawe And if that were the onely Bond and Marke of Allegeance many are out of it and so at libertie As children vnder twelue yeeres yet sometimes they may commit treason and felony where Malitia supplet aetatem So women of all sortes yet they may bee shrewd and daungerous traitours and if they bee women nobly borne or widowes that were wiues to noble men they shall be tried per pares Also Noble men of all sortes who are neither bound to attend the Leete nor to take that Oathe as appeereth by Britton cap.
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
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