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.
29. treating of the Court called The Shirifes Turne out of which the Leete seemeth to be extracted For whatsoeuer is not presented in the Leete may bee presented and punished in the Shirifs Turne And M Kitchin citeth Britton in this point for the Leete and alleadgeth also the statute of Marlebridge cap. 10. to the same purpose And at this day the view of Francke-pleges and the putting in of Francke-pleges and the Decennarij are but bare names of things past the vse and substance is obsolete and gone And as it was saide few in this place haue put in such Pleges or taken that Oath and yet I trust wee are good subiects and beare true faith and allegeance But this hath beene so fully answered and cleered by the Lord chiefe Baron and the Lord Coke chiefe Iustice of the Common pleas as I doe wrong to spend time in it But touching the seuerall Lawes I say that seuerall lawes can make no difference in matter of Soueraigntie and in the bond of Allegeance and obedience to one King And so it concludeth nothing for the point in question Normandy and Aquitany had seuerall lawes differing from the lawes of England so had Fraunce in King Edward the 3. and Henry the 6. his time Ireland before king Iohns time continued their auncient Lawes and so for the most part haue done euer since Gernesey and Iersey haue yet at this day seuerall lawes which for the most part were the auncient Lawes and Customes of Normandie Wales had in many things yet haue seuerall Lawes so for the County Palatine of Chester also Yet these neuer were nor must not be cantelled and cut off from their allegeance and obedience to the King nor the Kings subiects borne there be incapable of lands and inheritaunce in England for vvhere there is but one Soueraigne all his subiects borne in all his Dominions bee borne Ad fidem Regis and are bound to him by one bond of Faith and Allegeance And in that one is not greater nor lesser than an other nor one to bee preferred before another but all to bee obedient alike and to be ruled alike yet vnder seuerall Lavves and Customes And as Saint Gregorie sayeth of the Church In vna fide nihil officit Ecclesiae sanctae diuersa consuetudo So I will conclude for this point That diuersitie of Lavves and Customes makes no breach of that vnitie of obedience faith and allegeance which all liege subiects owe to their liege King and Soueraigne Lord. And as none of them can be Aliens to the king so none of them can bee Aliens or Strangers in any of his kingdomes or dominions nor Aliens or strangers one to another no more than a Kentishman to a Cheshire-man or è contra And therefore all that haue bin borne in any of the kinges dominions since hee was King of England are capable and inheritable in all his Dominions without exception And as to the other parte of the Obiection that there will be defect of triall for things done in Scotland cannot bee tried in England I say that that maketh little to our present Question whether Post-nati in Scotland be Aliens in England and not capable of landes in England but it trencheth to cast some aspersion vpon the common lawe of England That it is not sufficient to giue iustice to the Kinges subiectes for lacke of sufficient meanes of triall of questions of fact but to this baron Altham gaue so full an aunsweare as more cannot bee saied And so hee did both cleare the doubt and did vphould the sufficiencie of the lawe of England in that behalfe And it seemeth strange that this should now bee found out to bee obiected against Scotland since it vvas neuer heeretofore obiected for France Normandie Aquitany nor is at this day for Ireland Gernesey and Iersey c. whereas all stand vpon the same reason for the point of triall But the wisedome of the lawe of England hath beene such as there neuer failed certen rules for triall of all questions in fact and those were fitted and adapted to the Matter which was to bee tried And therefore whosoeuer doth diligently obserue it hee shall finde in the course and practise of the lawes of England aboue twenty seuerall formes of trialls as by Battell by Iurie and that in diuerse kindes by Wager of Lawe by Proofes by Examination by Inspection by Certificates of diuerse kindes and by manie other wayes And lest there should bee any defect in that behalfe the Law hath prouided seuerall formes of Ioyning of issues and in that hath speciall regard of things done out of the Realme as euerie Student may see in the Bookes of Reports Thus I haue passed these foure Obiections and therefore for this part I conclude That if Argumentum à simili were euer good and concludent in Lawe my Lords the Iudges haue prooued this Case by so many plaine and direct Examples and like Cases and by so manie strong arguments solide reasons drawne out of Booke Cases out of Statutes out of the true rules and forme of pleading and out of ancient Records and Precedents some produced by M. Atturney and many moe remembred by the Iudges as no one thing can bee more plainely exemplified nor appeare more like to an other than this Case is to those Cases which they haue remembred But if examples and arguments à simili doe faile then it remaineth Recurrere ad Rationem and what reason that ought to bee and how to bee vnderstoode is to be considered for it is said that Lex est ratio summa iubens ea quae facienda sunt prohibens contraria So it must be the depth of reason not the light and shallow distempered reasons of common Discoursers walking in Powles or at Ordinaries in their feasting and drinking drowned with drincke or blowne away with a whiffe of Tobacco Lucretius noteth that in many there is Rationis egestas And saint Gregory saith Qui in factis Dei rationem non videt infirmitatem suam considerans cur non videat rationem videt For although Reason and Knowledge bee infinite yet no man can haue more of it than hee is capable of Euery man must receiue it and keepe it in his owne vessell he cannot borrow his neighbours braine-pan to put it in And therefore it is not without cause that one of the grauest and best learned Lawyers of our age and a priuie Counsellor to one of the greatest Monarches of Europe describeth those that should bee Interpreters of Lawes by foure speciall qualities That is 1. AEtate graues 2. Eruditione praestantes 3. Vsu rerum prudentes 4. Publica authoritate constituti So there must be grauitie there must be learning there must be experience and there must be authoritie and if any one of these want they are not to be allowed to be Interpreters of the Lawe How all these Qualities concurre in these reuerend Iudges whom wee haue heard in this present Case I
allegeance is due and therefore since shee failed in that she was not to be answered and thereupon she praied licence to departe from her Writte and so she left her suite Now for the reasons which haue beene drawne and strained out of the statute An. 14. Edw. 3. if they bee well examined they serue little for this point which we haue in hand It is to be considered at what time and vpon what occasion that Statute was made King Edw. the third being right heire to the Crowne and Kingdome of Fraunce by descent from his Mother and hauing spent many yeeres for the recouering of the same resolued to take vpon him the Name and Stile of King of France being aduised thereunto by them of Flaunders Hereupon he did take the Stile of King of Fraunce and altered his Seale and his Armes and after a while placed the Armes of France before the ancient Armes of England as they are borne at this day This gaue occasion for the making of this statute for some people Ascun gentes saith the statute seeing this change and considering the large and ample extent and the magnificence of that great Kingdome beganne to doubt that the king would make his Imperiall seate there and conceiued thereby that the kingdome of England being the lesser should bee in subiection of the king and kingdome of France being the greater and to bee gouerned and ruled by a Vice-Roy or Deputy as they saw Ireland was And though in the Kings Stile England was placed before France yet they sawe the Armes of France marshalled before the Armes of England though at the first bearing thereof some say it was not so To cleere this doubt and to take away this feare from the Subiects of England was this Statute made as doth plainely appeare by the wordes of the statute it selfe Now if you will make an apt and proper application of that Case then betweene England and Fraunce to this our Case now betweene Scotland and England it must be thus 1. Edw. 3. then king of England being the lesser had afterwardes the kingdome of France being the greater by descent and tooke the Stile of King of France King Iames king of Scotland beeing the lesser hath afterward the kingdome of England being the greater by descent and taketh the Stile of King of England 2. King Ed. 3. altered his Seale and his Armes and placed the Armes of Fraunce before the Armes of England King Iames hath changed his Seale and his Armes in England and hath placed the Armes of England before the Armes of Scotland 3. It was then doubted that King Edw. 3. would remoue his Court out of England the lesser and keepe his Imperiall seate and state in France the greater King Iames hath indeede remooued his Court out of Scotland the lesser and doth in his royall person with the Queene and Prince and all his Children keepe his Imperiall seate in England the greater 4. In al these the cases agree but yet one difference there is and that is in the Stile For king Ed. 3. in his Stile placed England the lesser being his ancient kingdome before France the greater being newly descended vnto him But King Iames in his Stile placeth England the greater though newly descended vnto him before Scotland the lesser being his ancient kingdome 5. Now this being thus perhappes Scotland might out of this Example haue conceiued the like doubt against England as England did then against France But as there was then no doubt made whether the kings subiects borne in England should be capable of lands in France so out of this statute and vpon this example no doubt can bee inferred whether the kings subiects now borne in Scotland shall be capable of lands in England But all these Obiections and the ground whereupon they are framed viz. Quando duo iura c. haue beene so thorowly and profoundly examined and so learnedly and fully answered and cleered by the Iudges as I make no doubt but all wise and indifferent hearers be well satisfied therein And if there bee any so possessed with a preiudicate opinion against Trueth and Reason that will say in their owne heartes licèt persuaseris non persuadebis so either Serpent-like stop their eares or else wilfully absent themselues because they would not heare the weaknesse and absurdities of their owne conceipts laied open and confuted If there bee any such I say as I trust there bee but few and yet I feare there bee some I would they had learned of Tertullian That Veritas docendo suadet non suadendo docet And I wish that they bee not found among the number of those to whome Saint Paul saieth Si quis ignorat ignoret And Saint Iohn in the Apocalips Qui sordidus est sordescat adhuc And I will exhort with Saint Paul Qui tenet teneat and not wauer or doubt by such weake arguments and obiections But in this new learning there is one part of it so strange and of so daungerous consequent as I may not let it passe viz. That the king is as a king diuided in himselfe and so as two kings of two seuerall kingdomes and that there be seuerall allegeances and seuerall subiections due vnto him respectiuely in regarde of his seuerall kingdomes the one not participating with the other This is a daungerous distinction betweene the King and the Crowne and betweene the King and the kingdome It reacheth too farre I wish euery good subiect to beware of it It was neuer taught but either by traitours as in Spencers Bill in Edward the seconds time which Baron Snig and the Lord chiefe Baron and Lord Coke remembred or by treasonable Papists as Harding in his Confutation of the Apologie maintaineth that Kings haue their authority by the positiue Lawe of Nations and haue no more power than the People hath of whome they take their temporall iurisdiction and so Ficlerus Simanca and others of that crew Or by seditious Sectaries and Puritans as Buchannon De Iure Regni apud Scotos Penry Knox and such like For by these and those that are their followers and of their Faction there is in their Pamphlets too much such traiterous seede sowne But leauing this I will adde a little more to prooue that in reason Robert Caluine and other like Post-nati in Scotland ought by Lawe to be capable of landes in England and for that I wil remember one rule more which is certen and faileth not and ought to bee obserued in all Interpretation of Lawes and that is Ne quid absurdum ne quid illusorium admittatur But vpon this subtle and dangerous Distinction of Faith and Allegeance due to the King and of Faith and Allegeance due to the Crowne and to the Kingdome which is the onely Basis and fundamentall maine reason to disable the Plaintife and all Post-nati there follow too many grosse and fowle absurdities whereof I will touch some few and so conclude that in Lawe and
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