Reason this subtile but absurd and dangerous distinction ought not to be allowed This Bond of Allegeance whereof wee dispute is Vinculum fidei it bindeth the soule and conscience of euery subiect seuerally and respectiuely to be faithfull and obedient to the King and as a Soule or Conscience cannot bee framed by Policie so Faith and Allegeance cannot bee framed by Policie nor put into a politike bodie An oath must be sworne by a naturall bodie homage and fealtie must be done by a naturall bodie a politike body cannot doe it Now then since there is but one king and soueraigne to whome this faith and allegeance is due by all his subiects of England and Scotland can any humane policie diuide this one King and make him two kings Can cor Regis Angliae be in manu Domini and cor Regis Scotiae not so Can there bee warres betweene the King of England and the king of Scotland or betweene the kingdome of England and the kingdome of Scotland so long as there is but one king Can the king of England now send an army roial into Scotland against the king of Scotland Can there bee any Letters of Marke or Reprisall now graunted by the king of England against the subiects of the king of Scotland Can there bee any Protections now Quia profecturus in exercitu Iacobi Regis Angliae in Scotiam Nay shortly Can any man bee a true subiect to King Iames as King of England and a traitor or rebell to king Iames as king of Scotland Shall a foote breadth or an inch breadth of ground make a difference of birth-right of subiects borne vnder one king Nay where there are not any certen bounds or limites knowne at all but an imaginarie partition wall by a conceipted fiction in Lawe It is enough to propound these and such like Questions whereof many more might be remembred they carry a sufficient and plaine answeare in themselues Magis docet qui prudentèr interrogat As the King nor his heart cannot bee diuided for hee is one entire King ouer all his subiectes in which soeuer of his Kingdomes or Dominions they vvere borne so hee must not bee serued nor obeyed by halues hee must haue intire and perfect obedience of his subiects for Ligentia as Baron Heron saied well must haue foure qualities It must bee 1. Pura simplex 2. Integra solida 3. Vniuersalis non localis 4. Permanens continua illaesa Diuide a mans heart and you lose both parts of it and make no heart at all so hee that is not an intire subiect but halfe faced is no subiect at all and hee that is borne an intire and perfect subiect ought by Reason and Lawe to haue all the freedomes priuiledges and benefites pertaining to his Birth-right in all the Kinges Dominions and such are all the Post-nati in England and Scotland And the inconuenience of this imaginary locall allegeance hath beene so lately and so fully declared by the Lorde chiefe Iustice Coke as more needes not bee saied in it In some speciall Cases there sometime may bee a king of subiects without land in possession as Iustice Fenner noted in the gouernement which Moses had ouer the people of Israel in the wildernesse and as in the Case which sir Iohn Popham the late Lord chiefe Iustice did put in the Parliament If a King and his subiects bee driuen out of his kingdome by his enemies yet notwithstanding hee continueth still King ouer those subiects and they are still bound vnto him by their bond of allegeance wheresoeuer hee and they bee But there can not bee a King of land without subiects For that were but Imperium in belluas and Rex subditi sunt relatiua I saied there was an other generall rule for expounding of Lawes which I reserued to bee last spoken of I will now but touch it for I will not stand to examine by humane reasons whether Kings were before Lawes or Lawes before Kinges nor how Kings were first ordained nor whether the kings or the people did first make Lawes nor the seuerall constitutions and frames of states and common-weales nor what Plato or Aristotle haue written of this argmment They were men of singuler learning and wisedome but wee must consider the time and the countrie in which they liued and in all their great learning they lacked the true learning of the knowledge of God They were borne and liued in Greece and in popular States they were enemies or at least mislikers of all Monarchies yet one of them disdained not to bee a seruant or mercenarie hireling to a Monarch They accompted all the world barbarous but their owne Countrey of Greece their opinions therefore are no Cannons to giue Lawes to kinges and kingdomes no more than sir Thomas Moores Vtopia or such Pamphlets as wee haue at euerie Marte I beleeue him that saieth Per me Reges regnant Principes iusta decernunt And I make no doubt but that as God ordained kings and hath giuen Lawes to kings themselues so hee hath authorized and giuen power to Kings to giue Lawes to their subiects and so kings did first make lawes and then ruled by their lawes and altered and changed their Lawes from time to time as they sawe occasion for the good of themselues and their subiects And this power they haue from God almighty For as Saint Augustine saieth In hoc Reges Deo seruiunt sicut eis Diuinitùs praecipitur in quantum sunt Reges si in suo Regno bona iubeant mala prohibeant non solum quae pertinent ad humanam societatem verumetiam quae ad diuinam religionem And I hould Thomas Aquinas his opinion to be good Rex solutus à Legibus quòad vim coactiuam subditus est legibus quòad vim directiuam propria voluntate And for this opinion there is a stronger authoritie euen from God himselfe in Ecclesiastes ca. 8. ver 2. Ego os Regis obseruo Et praecepta iuramenti Dei ver 4. Sermo illius potestate plenus est Nec dicere ei quisquam potest quare ita facis Now beeing led a little from the Common Lawe to the Ciuile Lawe I finde in the ciuile Lawe a direct Text warranting that generall Rule which I reserued to this place which is this Inter aequitatem iusque interpositam interpretationem nobis solis licet oportet inspicere And another like Text in these words Sententia Principis Ius dubium declarans Ius facit quòad omnes And some graue and notable Writers in the ciuile Lawe say Rex est lex animata Some say Rex est lex loquens Some others say Interpretantur legem consuetudo Princeps Another saieth Rex solus iudicat de causa à iure non definita And as I may not forget Saint Augustines words which are these Generale pactum est societatis humanae regibus suis obtemperare So I may not wrong the Iudges of the common Lawe of
England so much as to suffer an imputation to bee cast vpon them That they or the Common lawe doe not attribute as great power and authoritie to their Soueraignes the kinges of England as the Romane lawes did to their Emperours For Bracton the chiefe Iustice in the time of king Henry the third hath these direct wordes De Chartis Regijs factis regum non debent nec possunt Iusticiarij nec priuatae personae disputare Nec etiam si in illa dubitatio oriatur possunt eam interpretari Et in dubijs obscuris vel si aliqua dictio duos contineat intellectus domini Regis erit expectanda interpretatio voluntas Cum eius sit interpretari cuius est condere And Britton in the time of king Ed. 1. writeth as much in effect So as now if this question seem difficult that neither direct law nor Examples Precedents nor application of like cases nor discourse of reason nor the graue opinion of the learned and reuerend Iudges can resolue it here is a true and certen Rule how both by the Ciuile Lawe and the ancient Common lawe of England it may and ought to be decided That is by sentence of the most religious learned and iudicious king that euer this kingdome or Iland had But this Case is so cleare as this needeth not at all And in this I would not be mis-vnderstoode as though I spake of making of new Lawes or of altering the Lawes now standing I meane not so but I speake only of interpretation of the Lawe in new questions and doubts as now in this present case neither doe I meane hereby to derogate any thing from the high court of Parliament farre be it from my thought It is the great Councell of the kingdome wherein euery subiect hath interest And to speake of the constitution or forme of it or how or when it was first begunne is for busie Questionists It ought to bee obeyed and reuerenced but not disputed and it is at this time impertinent to this Question But certen it is it hath beene the wisedome of the Kinges of this Realme to reserue in themselues that supreame power to call their Nobles Clergie commons together when they sawe great and vrgent Causes and by that great Councell to make Edicts and Statutes for the weale of their people and safetie of the Kingdome and State as in Anno 10. Edw. 3. the Assembly at Nottingham for the great wars in France And in Anno 20. H. 3. Prouisiones Merton which I remembred before There haue beene made some Obiections of inconueniencie as for bearing of Scot and Lot and such other charges and some out of frugalitie that the king shall lose his profit of making Denizens and such like These are so light as I leaue them to the winde They are neither fit for Parliament nor Councell nor Court Another argument and reason against the Post-nati hath beene lately made out of diffidence and mistrust that they will come into England sans number and so as it were to surcharge our Common and that this may be in secula seculorum I know not well what this meanes The Nation is ancient noble and famous they haue many honourable and woorthie Noble men and Gentlemen and many wise and worthie men of all degrees and qualities they haue lands and faire possessions in Scotland Is it therefore to bee supposed or can it in reason bee imagined that such multitude sans number will leaue their natiue soile and all transport themselues hither Hath the Irish done so Or those of Wales or of the Isles of Man Gernesey and Iersey Whie should we then suspect it now more for Scotland Nay doe you suppose that the Kinge of England will euer suffer so great a parte of his Dominions and so great and famous a Kingdome as Scotland is to be dispeopled It is a doubt imagined without any foundation or ground of reason But if it were to bee doubted the twelue Iudges that haue concurred in opinion and that late worthy Iudge Popham had as great cause to feare it as any others They are wise they are learned they haue faire possessions and good estates They haue posteritie to care for as others haue Yet admit it bee a matter worth the doubting of what is that to the yoong Post-nati that are not like in many yeares to come hither in such number Shall we vpon this causlesse feare depriue them of their lawfull Birth-right Haue wee seene in these fiue yeeres past anie moe of them than this one alone that haue gotten any Lands in England And this little that he hath is so small and poore a portion that his purchase is not great and therefore no iust cause of offence to any Nay if you looke vpon the Ante-nati you shall find no such confluence hither but some few and very few in respect of that great and populous kingdome that haue done long and worthie seruice to his Maiestie haue and still doe attend him which I trust no man mislikes For there can bee none so simple or childish if they haue but common sense as to thinke that his Maiesty should haue come hither alone amongst vs and haue left behinde him in Scotland and as it were caste off all his ould and worthie Seruants And if these Noble and worthie Gentlemen of Scotland I meane the Ante-nati be louingly and brotherly entertained amongst vs with mutuall loue beneuolence that so we may coalescere be vnited together by marriage and otherwise as in some particular cases wee see it already happily begunne no doubt God will blesse this Vnion of both these Nations and make them and the King and great Britaine to be famous through the world and feared redoubted of our enemies and of all that wish vs ill For Vis vnita fortior concordia multos facit vnum But what may follow vpon such arguments of diffidence and suspition which seeme but to hinder Vnion and to breede discord and dissention I will not speake Let euery wise man consider it well For Humana consilia castigantur vbi coelestibus se praeferunt And remember Saint Paules caution Si inuicem mordetis videte ne ab inuicem consumamini And for the resemblance that hath bin made of this Case of Post-nati but indeed for the Vnion of both Kingdomes with the houswifes cutting of her cloth by a threede I will say but this That if shee cut her peece of cloth in length aswell as in breadth all the threeds will bee cutte and the cloth marred And this cutting in this our Case is to cutte all aswell in length as in breadth euen through all the Kinges Dominions and so will rent asunder the whole frame of the Vnion and cut in peeces all the threeds of Allegeance But now I wil aske this question How long shall this suspition and doubt continue Shall there bee a dis-vnion for euer If it bee saied No but
therefore I will presume on your patience and assume to my selfe such conuenient time as others haue done And yet I will husband time as well as I can I will not be abashed to strengthen my weake memory with helpe of some scribled papers as others haue done for I accompt it a point of wisedome to followe wise mens Examples Other Exordium Insinuation Protestation or Preface for the Matter it selfe either to prepare attentiue and beneuolent auditors or to stirre offence or mislike against either partie I meane not to vse it is fit for Oratours I neuer professed the Art I had neuer skill in it And it is not Decorum for Iudges that ought to respect the Matter and not the humours of the Hearers The Exordium the Ciuilians vse in their Sentences I like well In Dei nomine Amen Deo primitùs inuocato other Exordium I care not for The Case now depending in Chauncerie which is adiourned hither is thus Robert Caluine sonne and heire apparant of Iames L. Caluine of Colcrosse in the realme of Scotland an Infant of three yeares of age borne in the saied Realme of Scotland maketh title by his Bill to a Messuage and Garden with th'appurtenaunces in the parish of Saint Buttolph without Bishops-gate in the citie of London and complaineth against Iohn Bingley and Richard Griffin for detaining the Euidences concerning the same Messuage and Lands and taking the profits thereof The Defendants pleade that the Plaintife is an Alien and that in the third yeere of his Maiesties raigne of England and in the nine and thirtieth yere of his Maiesties raigne of Scotland hee was borne in the Realme of Scotland within the ligeance of his said Maiestie of his Realme of Scotland and out of the ligeance of our soueraigne Lord the King of his Realme of England And the Defendants say further That at the time of the birth of the Complainant and long before and euer sithence the saied Kingdome of Scotland was and still is ruled and gouerned by the proper Lawes and Statutes of the said Kingdome of Scotland and not by the Lawes and Statutes of this Realme of England And therfore the Defendants demaund iudgement Whether the Complainant ought to bee answered to his said Bill or shall be receiued to prosecute the said suite against the Defendants being for and concerning the title of Inheritance and euidence touching the same Heereupon the Complainant hath demurred in Law This is the speciall Case now depending in the Chancerie in which and touching all like Cases in generall mine opinion is and since the question was first mooued hath beene That these Post-nati are not Aliens to the King nor to his Kingdome of England but by their Birth-right are liege subiects to the King and capable of estates of Inheritance and freehould of Landes in England and may haue and maintaine as wel Reall as Personall actions for the same And that therefore the now Complainant Robert Caluine ought to bee answered This opinion I did first conceiue vpon those rules and reasons in Lawe as well the Common Law of England as the Ciuile law which heereafter in the course of my Speech I will remember And in this opinion I haue beene since confirmed by many great and weighty reasons First in the Statute made in the first yeare of his Maiesties raigne of England authorizing the Treatie betweene the Commissioners for both the Kingdomes it is said as Iustice Warburton noted well That both the famous ancient Realmes of England and Scotland are now vnited in allegeance and loyall subiection in his royall person to his Maiestie and his posteritie for euer Heere wee haue the Iudgement of the Parliament that there is a Vnitie in allegeance to one Royall person And therefore I see not how wee may out of imaginarie conceipts and by subtile distinctions straine our wittes to frame seuerall allegeances to one and the same Royall person contrary to so plaine a declaration made by Parliament Next followeth his Maiesties Proclamation 20. Octobris 1604. by which hee assumed to himselfe the Name and Stile of King of great Britaine In which Proclamation among many other weighty reasons this is added for one We haue receiued from those that be skilful in the Lawes of the Land That immediatly vpon our succession diuerse of our auncient Lawes of this Realme are ipso facto expired as namely that of Escuage and of the naturalization of the Subiects This was not done sodainely nor lightly but vpon graue and serious deliberation and aduise And therefore seemeth to mee to be a matter of great importaunce and not to be lightly regarded The same twentieth of October these Commissioners beganne their Treatie Of the graue and iudicious Course which they held in debating of the Matter then propounded I will forbeare to speake But for this point of Naturalization now in question their resolution in the end was thus That it shall bee propounded to both the Parliaments at the next Sessions that an Act be made containing a declaration as followeth That all the Subiects of both the Realmes borne since the decease of Elizabeth the late Qu. of England of happie memory and all that shal be borne hereafter vnder the obedience of his Maiestie and his royall Progeny are by the common Lawes of both the Realmes and shall be for euer inhabled to obtaine succeede inherite and possesse all Lands Goods and Chattels c. as fully and amply as the Subiects of either Realme respectiuely might haue done or may doe in any sort within the Kingdome where they were borne This after long debating and graue and deliberate consideration was in the end the resolution of the greater part of the Commissioners not one openly gainesaying it And diuerse of the principall Iudges of the Realme were present at all times when the point was debated And herein I note the wise and iudicious forme of that resolution which was not to propound to the Parliament the making of a new Lawe but a declaration of the common Lawes of both the Realmes in this question Now if wee consider who these Commissioners were what Lords of the higher House and what persons of the common House selected of all degrees most eminent for their learning and iudgement as well in Ciuile and Common Law as in knowledge and experience other waies beeing assisted by the graue Iudges of the Realme If this I say be well considered then this Resolution must be accompted and esteemed as a matter of great and weighty importance and much to be regarded in the deciding of this question According to this Act of the Commissioners the Case was propounded in the next Session of Parliament In the higher House the Iudges were required to deliuer their opinions There were then eleauen Iudges present whereof tenne did with one vniforme consent affirme the Lawe to be That the Post-nati were not Aliens but naturall Subiects one onely dissenting After this the
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
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