Liegeance and Obedience of the King of England are Aliens born in respect of the time of their birth The time of his birth is chiefly to be considered for he cannot be a Subject born of one Kingdom that was born under the Liegeance of a King of another Kingdom albeit afterwards one Kingdom descend to the King of the other Therefore Ramsey being not under the Liegeance of the King of England at the time of his birth must still continue an Alien though he were naturalized in Ireland Notwithstanding all this it may be urg'd A person naturalized in England is the same as if he had been born in England and a person naturalized in Ireland is the same as if he had been born in Ireland But a person born in Ireland is the same as if he had been Obj. 1 born or naturalized in England Therefore a person naturalized in Ireland is the same as if he had been born or naturalized in England This seems subtile and concluding Answ For Answer I say That the same Syllogism may be made of a person naturalized in Scotland after the Vnion viz. A person naturalized in England is the same with a person born in England and a person naturalized in Scotland after the Vnion is the same with a person born in Scotland after the Vnion But a person born in Scotland after the Union is the same with a person born or naturalized in England Therefore a person naturalized in Scotland after the Union is the same with a person born or naturalized in England Yet it is agreed That a person naturalized in Scotland since the Union is no other than an Alien in England Therefore the same Conclusion should be made of one naturalized in Ireland To differ these two Cases it may be said That the naturalizing Obj. 2 of a person in Scotland can never appear to England because we cannot write to Scotland to certifie the Act of Naturalizing as we may to Ireland out of the Chancery and as was done in the present Case in question as by the Record appears This is a difference but not to the purpose and then it is the same as no difference For I will ask by way of Supposition Admit an Act of Parliament were made in England for clearing all Questions of this kind That all persons inheritable in any Dominion whatsoever whereof the King of England was King whether naturalized or Subjects born should be no Aliens in England it were then evident by the Law That a naturalized Subject of Scotland were no Alien in England yet the same Question would then remain as now doth How he should appear to be naturalized because the Chancery could not write to Scotland as it can to Ireland to certifie the Act of Naturalizing Answ 1 The fallacy of the Syllogism consists in this It is true that a person naturalized in Ireland is the same with a person born in Ireland that is by the Law of Ireland But when you assume That a person born in Ireland is the same with a person born or naturalized in England that is not by the Law of Ireland but by the Law of England And then the Syllogism will have four terms in it and conclude nothing Answ 2.3 But to answer the difference taken there are many things whereof the Kings Courts sometimes ought to be certified which cannot be certified by Certiorari or any other ordinary Writ 42 E. 3. f. 2. b. An Act of Parliament of Scotland may be evidence as a Sentence of Divorce or Deprivation and Forraign Laws for raising or abasing Mony or Customes upon accompt between Merchants but not as Records In the Case of the Lord Beaumond 42 E. 3. a Question grew Whether one born in Ross in Scotland were within the Kings Liegeance because part of Scotland then was and part not in his Liegeance the Court knew not how to proceed until Thorpe gave this Rule That doubtless the King had a Roll what parts of Scotland were in his Liegeance what not upon the Treaty or Conclusion made that therefore they must address themselves to the King to have that certified The like may now happen of Virginia Surenam or other places part of which are in the Kings Liegeance part not So the King hath or may have Rolls of all naturalized Subjects and upon petition to him where the occasions require it may cause the matter in his name to be certified The like may happen upon emergent Questions upon Leagues or Treaties to which there is no common access but by the Kings permission For illustration a feign'd Case is as good as a Case in fact Suppose a Law in Ireland 5 El. c. 4. f. 957 like that of 5. of the Queen That no man should set up Shop in Dublin unless he had serv'd as an Apprentice to the Trade for Seven years and suppose a Law in England That whosoever had served Seven years as an Apprentice in Dublin might set up Shop in London If by a particular Act of Parliament in Ireland J. S. be enabled to set up Shop in Dublin as if he had serv'd an Apprentiship for Seven years by this fiction he is enabled in Ireland to set up but not in London unless he have really served for Seven years as the Law in England requires Considerations That an Act of Parliament of Ireland should so operate as to effect a thing which could not by the Laws of England be done without an Act of Parliament in England regularly seems so strange that it is suppos'd an Act of Parliament of England did first impower the doing of it though it be not extant by an Act of Parliament The Argument then is 1. A man is naturalized in Ireland and thereby no Alien in England which could not lawfully be done without an Act of Parliament in England to impower the doing it Which in effect is to say a thing was done which could not lawfully be done without an Act of Parliament to warrant it Ergo it being done there was an Act of Parliament to warrant it 2. This Supposition seems rather true because other things relating to Ireland and admitted to be Law could not be but by Act of Parliament in England yet no such Act is extant that is that a Writ of Error lies in the Kings Bench to reverse a Judgment given in the Kings Bench in Ireland 3. That this must be by Act of Parliament not by Common Lew because such a Writ did not lye in Wales or Calais at Common Law to reverse an Error there Still the Argument is no better then before Some things are of known Law through many successions of Ages which could not commence without an Act of Parliament which is not extant Therefore a thing wholly new not warranted by any Testimony of former time because it cannot be lawful without an Act of Parliament must be suppos'd without other proof to be lawful by an Act of Parliament If the lawfulness of any
thing be in question suppose the Laws of Ireland were made the Laws of England by Act of Parliament here only Two were material to this Question 1. That a Postnatus of a Forraign Dominion of the Kings should be no Alien the Law is so in Ireland 2. That persons naturalized in England are naturalized for all the Dominions belonging to England if the Law were so in Ireland it follows not That one naturalized there must be naturalized in England thereby for England is not a Dominion belonging to Ireland but è contrario Fitz. Assise pla 382.18 E. 2 A Writ of Error lies to reverse a Iudgment in any Dominions belonging to England Breve Domini Regis non currit in Wallia is not to be intended of a Writ of Error but of such Writs as related to Tryals by Juries those never did run in Forraign Dominions that most commonly were governed by different Laws Error of a Judgment in Assize of Gower's Land in B. R. 18 E. 2. 21. H. 7. f. 31. b. A Writ of Non molestando issued out of the Chancery to the Mayor of Calais retornable in the Kings Bench and by the whole Court agreed That there are divers Presidents of Writs of Error to reverse Iudgments given in Calais though it was Objected They were governed by the Civil Law 7. Rep. f. 20. a. Calvins Case And Sir Edward Coke cites a Case of a Writ directed to the Mayor of Burdeaux a Town in Gascoigny and takes the difference between Mandatory Writs which issued to all the Dominions and Writs of ordinary remedy relating to Tryals in the Kingdom 7 Rep. Calvins Case f. 18. a. And speaking of Ireland among other things he saith That albeit no Reservation were in King John's Charter yet by Judgment of Law a Writ of Error did lye in the Kings Bench of England of an Erroneous Judgment in the Kings Bench in Ireland A Writ of Error lies not therefore to reverse a Iudgment in Ireland by Special Act of Parliament for it lies at Common Law to reverse Iudgments in any Inferior Dominions and if it did not Inferior and Provincial Governments as Ireland is might make what Laws they pleas'd for Iudgments are Laws when not to be revers'd Pla. Parl. 21 E. 1. f. 152 157. Magdulph appeal'd from the Court and Iudgment of the King of Scots before King Edward the First Ut Superiori Domino Scotiae And by the Case in 2 R. 3. f. 12. all the Iudges there agree 2 R. 3. f. 12. assembled in the Exchequer Chamber That a Writ of Error lay to reverse Iudgments in Ireland and that Ireland was subject as Calais Gascoigne and Guyen who were therefore subject as Ireland And therefore a Writ of Error would there lye as in Ireland Another Objection subtile enough is That if naturalizing Obj. 3 in Ireland which makes a man as born there shall not make him likewise as born that is no Alien in England That then naturalizing in England should not make a man no Alien in Ireland especially without naming Ireland and the same may be said That one denizen'd in England should not be so in Ireland Answ The Inference is not right in form nor true The Answer is The people of England now do and always did consist of Native Persons Naturaliz'd Persons and Denizen'd Persons and no people of what consistence soever they be can be Aliens to that they have conquer'd by Arms or otherwise subjected to themselves for it is a contradiction to be a stranger to that which is a mans own and against common reason and publique practise Therefore neither Natives or Persons Naturaliz'd or denizen'd of England or their Successors can ever be Aliens in Ireland which they conquer'd and subjected And though this is De Jure Belli Gentium observe what is said and truly by Sir Edward Coke in Calvin's Case in pursuance of other things said concerning Ireland In the Conquest of a Christian Kingdom 7. Rep. Calvins C. f. 18. a. as well those that served in Warr at the Conquest as those that remain'd at home for the Safety and Peace of their Country and other the Kings Subjects as well Antenati as Postnati are capable of Lands in the Kingdom or Country conquer'd and may maintain any real Action and have the like Priviledges there as they may have in England Another Objection hath been That if a person naturaliz'd in Obj. 4 Ireland and so the Kings natural Subject shall be an Alien here then if such person commit Treason beyond the Seas where no local Liegeance is to the King he cannot be tryed here for Treason contra ligeantiae suae debitum 26 H. 8. c. 13. 33 H. 8. c. 23. 35 H. 8. c. 2. Treason by an Irish man in Ireland or elsewhere may be tryed in England by those Statutes 33 El. Andersons Rep. f. 262. b. Orurks Case Calvins Case f. 23. a. by the Statute of 26 H. 8. or 35 H. 8. or any other Statute to that purpose 1. To that I answer That his Tryal must be as it would have been before those Laws made or as if those stood now repeal'd 2. His Tryal shall be in such case as the Tryal of a person naturalized in Scotland after the Union who is the Kings Subject but an Alien in England Ireland Though Ireland have its own Parliament yet is it not absolute sui juris for if it were England had no power over it and it were as free after Conquest and Subjection by England as before That it is a conquer'd Kingdom is not doubted but admitted in Calvin's Case several times And by an Act of Parliament of Ireland Stat. Hib. 11 12. 13 Jac. c. 5. appears in express words Whereas in former times after the Conquest of this Realm by his Majesties most Royal Progenitors Kings of England c. What things the Parliament of Ireland cannot do 1. It cannot Alien it self or any part of it self from being under the Dominion of England nor change its Subjection 2. It cannot make it self not subject to the Laws of and subordinate to the Parliament of England 3. It cannot change the Law of having Judgments there given revers'd for Error in England and others might be named 4. It cannot dispose the Crown of Ireland to the King of Englands second Son or any other but to the King of England Laws made in the Parliament of England binding Ireland A Law concerning the Homage of Parceners 14 H. 3. called Statutum Hiberniae A Statute at Nottingham 17 E. 1. called Ordinatio pro Statu Hiberniae Laws for Ireland made by E. 3. Pat. Rol. 5 E. 3. pars 1. m. 29. pla Parl. f. 586 per advisamentum Concilii nostri in ultimo Parliamento nostro apud Westm tento An Act that no Arch-bishop Bishop or Prior should be chosen 4 H. 5. c. 6. who were Irish nor come to Parliaments with Irish Attendants The late Acts
Mothers But if a fiction could make a natural Subject he hath two natural Princes one where he was born and the other where naturalized 3. If one naturalized in Ireland should in law make him naturally born there then one naturalized in Scotland after the Vnion should make him naturally born there consequently inheritable in England which is not contended 4. A naturalized person in a Dominion belonging to England is both the King 's Subject when he is King of England and inheritable in that his Dominion when naturaliz'd So the Antenati of Scotland are the King of England's Subjects when he is King of England and inheritable in that Dominion of his yet cannot inherit in England and being his Subjects before doth not make them less his Subjects when King of England Or if it did Nicholas Ramsey before he was naturalized in Ireland and became there a Subject to the King of England was a Subject in Scotland of the Kings There are four ways by which men born out of England may inherit in England besides by the Statute of Edward the Third De Natis ultra Mare 1. If they be born in any Dominion of the Kings when he is actually King of England 2. If they be made inheritable by Act of Parliament in England as by naturalization there 3. If they be born Subjects to a Prince holding his Kingdom or Territories as Homager and Liegeman to the King of England Calvins Case f. 21. b. during the time of his being Homager So the Welch were inheritable in England before 12 Ed. 1. though Subjects to the Princes of Wales who were Homagers to the King of England So were the Scotch in Edward the First 's time during the King of Scotlands Homage to him and to other Kings of England as long as it continued And that is the reason of the Case in 14. of Eliz. in the Lord Dyer Dyer 14 Eliz. f. 304. pl. 51. where a Scotch-man being arraign'd for a Rape of a Girl under Seven years of Age and praying his Tryal per medietatem Linguae because he was a Scot born it was denied him by the Opinion of the Iudges of both Benches for that among other reasons a Scot was never accounted an Alien here but rather a Subject So are the words of the Book But they did not consider that the Homage was determined then as it was consider'd after in Calvin's Case when only the Postnati of Scotland were admitted inheritable in England Vpon the same ground one Magdulph Subject to the King of Scots appeal'd from his Iudgment to Edward the First Pl. Parl. 21 E. 1. f. 152. 157. ut Superiori Domino Scotiae But this is to be understood where such Prince is Homager Subjectionis and not only Infeodationis for another King may hold of the King of England an Island or other Territory by Tenure and not be his Subject 4. If the King of England enter with his Army hostilly the Territories of another Prince and any be born within the places possessed by the Kings Army and consequently within his Protection such person is a Subject born to the King of England if from Parents Subjects and not Hostile 5 Eliz. Dyer f. 224. pl. 29. So was it resolved by the Iustices 5 Eliz. That one born in Tourney in France and conquered by Henry the Eighth being a Bastard between persons that were of the King's liegeance was enabled to purchase and implead within the Realm and was the same as if a French-man and French-woman should come into England and have a Son born there The like law if he had been born of French Parents in Tourney for it was part of the Dominions belonging to England pro tempore as Calice was Those under the King's Power as King of England in another Prince his Dominions are under his Laws Fleta l. 2. c. 3. 14 E. 1. King Edward the First being at Paris 14 E. 1. one Ingelram de Nogent stole silver Dishes in the King's House there and after dispute about his Tryal with the King of France and his Council he was convicted before the Steward of the King of England's House and executed though the Felony was done in France in Aliero Regno Fleta l. 2. c. 3. 12 E. 1. So Edmund de Murdak brought an Appeal in Gascoigne coram Seneschallo Hospitii Regis Angliae against one William de Lesnes of Robbery done to him 12 E. 1. infra metas Hospitii Regis infra quas invenit ipsum And the Defendant non potuit appellum illud per exceptionem alterius Regni declinare 1. Regularly who once was an Alien to England cannot be inheritable there but by Act of Parliament which is Common Experience But Ramsey was an Alien to England being Antenatus of Scotland and therefore cannot inherit here but by Act of Parliament If it be said there is an Exception to that viz. unless he be naturalized in Ireland that Exception must be well prov'd not suppos'd For the Question being Whether one naturalized in Ireland do thereby become as a Native of England must not be resolv'd by saying That he doth become as a Native of England otherwise it is prov'd only by begging the Question 2. The being no Alien in England belongs not to any made the King of Englands Subject by Act of Law when he is King of England but to such as are born so Natural legitimation respecteth actual Obedience to the Soveraign at the time of the birth Calvins Case f. 27. for the Antenati remain Aliens because they were born when there were several Kings of the several Kingdoms not because they are not by act of law afterwards become Subjects to the King of England by the Union of the Crowns But he that is naturaliz'd in Scotland or Ireland is not a Subject born to the King of England but made by a subsequent Act in law 3. And chiefly the manner of subjection of a Stranger naturaliz'd in Scotland or Ireland doth exactly agree with that of the Antenatus and not of the Postnatus For 1. The Antenatus was another Prince his Subject before he was the King of Englands 2. The Antenatus might have been an Enemy to England by a war between the several Kings before the Vnion So a Stranger naturalized in Scotland or Ireland was the natural Subject of some other Prince necessarily before he was naturaliz'd and then might have been an Enemy to the King of England by a war between his natural Soveraign and the King of England before he was naturalized But the Postnatus was never subject to any before he was the King of Englands nor ever in possibility of being an enemy to England both which are the properties of subjection in the native English Subject and is the reason why the Postnatus in England is as the Natives of England No fiction of Law can make a man a Natural Subject that is not for a Natural Subject and a Natural Prince are
eas in omnibus sequantur In cujus c. T. R. apud Wadestocks ix die Septembris Out of the Close Rolls of King Henry the Third his Time Clause 1 H. 3. dorso 14. The Kings thanks to G. de Mariscis Justice of Ireland The King signifies that himself and other his Lieges of Ireland should enjoy the Liberties which he had granted to his Lieges of England and that he will grant and confirm the same to them Clause 3. H. 3. m. 8. part 2. The King writes singly to Nicholas Son of Leonard Steward of Meth and to Nicholas de Verdenz and to Walter Purcell Steward of Lagenia and to Thomas the son of Adam and to the King of Connage and to Richard de Burgh and to J. Saint John Treasurer and to the other Barons of the Exchequer of Dublin That they be intendant and answerable to H. Lord Arch-bishop of Dublin as to the Lord the King's Keeper and Bailiff of the Kingdome of Ireland as the King had writ concerning the same matter to G. de Mariscis Justice of Ireland Clause 5. H. 3. m. 14. The King writes to his Justice of Ireland That whereas there is but a single Justice itinerant in Ireland which is said to be dissonant from the more approved custome in England for Reasons there specified two more Justices should be associated to him the one a Knight the other a Clerk and to make their Circuits together according to the Custome of the Kingdom of England Witness c. The Close Roll. 5 H. 3. m. 6. Dorso The King makes a Recital That though he had covenanted with Geoffrey de Mariscis That all Fines and other Profits of Ireland should be paid unto the Treasure and to other Bailiffs of the Kings Exchequer of Dublin yet he receiv'd all in his own Chamber and therefore is removed by the King from his Office Whereupon the King by advise of his Council of England establisheth that H. Arch-bishop of Ireland be Keeper of that Land till further order And writes to Thomas the son of Anthony to be answerable and intendant to him After the same manner it is written to sundry Irish Kings and Nobles there specially nominated Clause 7. H. 3. m. 9. The King writes to the Arch-bishop of Dublin his Justice of Ireland to reverse a Judgment there given in a Case concerning Lands in Dalkera between Geoffrey de Mariscis and Eve his wife Plaintiffs and Reignald Talbott Tenant By the Record of the same Plea returned into England the Judgment is reversed upon these two Errors The first because upon Reignald's shewing the Charter of King John the King's Father concerning the same Land in regard thereof desiring peace it was denyed him The second Because the Seisin was adjudged to the said Geoffrey and Eve because Reynald calling us to warranty had us not to warranty at the day set him by the Court which was a thing impossible for either Geoffrey or the Court themselves to do our Court not being above us to summon us or compel us against our will Therefore the King writes to the Justice of Ireland to re-seise Reynald because he was disseised by Erroneous Judgment Clause 28. H. 3. m. 7. The King writes to M. Donenald King of Tirchonill to aid him against the King of Scots Witness c. The like Letters to other Kings and Nobles of Ireland Clause 40. E. 3. m. 12. Dorso The King takes notice of an illegal proceeding to Judgment in Ireland Ordered to send the Record and Process into England It was objected by one of my Brothers That Ireland received not the Laws of England by Act of Parliament of England but at the Common Law by King John's Charter If his meaning be that the Fact was so I agree it but if he mean they could not receive them by Act of Parliament of England as my Brother Maynard did conjecturally inferr for his purpose then I deny my Brothers Assertion for doubtless they might have received them by Act of Parliament And I must clear my Brother Maynard from any mention of an Union as was discoursed of England and Ireland Nor was it at all to his purpose If any Union other than that of a Provincial Government under England had been Ireland had made no Laws more than Wales but England had made them for Ireland as it doth for Wales As for the Judgment Obj. One of my Brothers made a Question Whether George Ramsey the younger Brother inheriting John Earl of Holdernes before the naturalization of Nicholas Whether Nicholas as elder Brother being naturalized should have it from him Doubtless he should if his Naturalizing were good He saith the Plaintiff cannot have Iudgment because a third person by this Verdict hath the Title Answ If a Title appear for the King the Court ex Officio ought to give Iudgment for him though no party But if a man have a prior Possession and another enters upon him without Title I conceive the priority of Possession is a good Title against such an Entry equally when a Title appears for a third that is no party as if no Title appear'd for a third But who is this third party For any thing appears in the Verdict George Ramsey died before the Earl 2. It appears not that his Son John or the Defendant his Grand-child were born within the Kings Liegeance Patient appears to be born at Kingston and so the Daughters of Robert by the Verdict The Acts of Ireland except all Land whereof Office was found before the Act to entitle the King but that is in Ireland for the Act extends not to England If Nicholas have Title it is by the Law of England as a consequent of Naturalization So it may be for the Act of 7 Jac. cap. 2. he that is Naturalized in England since the Act must receive the Sacrament but if no Alien by consequent then he must no more receive the Sacrament than a Postnatus of Scotland Obj. Ireland is a distinct Kingdom from England and therefore cannot make any Law Obligative to England Answ That is no adequate Reason for by that Reason England being a distinct Kingdom should make no Law to bind Ireland which is not so England can naturalize if it please nominally a person in Ireland and not in England But he recover'd by saying That Ireland was subordinate to England and therefore could not make a Law Obligatory to England True for every Law is coactive and it is a contradiction that the Inferior which is civilly the lesser power should compel the Superior which is greater power Secondly He said England and Ireland were two distinct Kingdoms and no otherwise united than because they had one Soveraign Had this been said of Scotland and England it had been right for they are both absolute Kingdoms and each of them Sui Juris But Ireland far otherwise For it is a Dominion belonging to the Crown of England and follows that it cannot be separate from it but by
under such unlawful marriage should be illegitimate And if any such marriages were in any the Kings Dominions without Separation that there should be a separation from the Bonds of such unlawful marriage Now we must observe the Act of 1 2 Phil. Mar. c. 8. doth not repeal this Act entirely of 28 H. 8. c. 7. but repeals only one Clause of it the words of which Clause of Repeal are before cited and manifest this second Clause of the Act of 28 H. 8. and not the first to be the Clause intended to be repeal'd For there was no reason to repeal the Clause declaratory of marriages prohibited by Gods Law which the Church of Rome always acknowledged nor do the words of Repeal import any thing concerning marriages within degrees prohibited by Gods Law But as the time then was there was reason to repeal a Clause enacting all Separations of such marriages with which the Pope had dispenc'd should remain good against his Authority and that such marriages with which he had dispenc'd not yet separated should be separate And the words of the Clause of Repeal manifest the second Clause to be intended viz. All that part of the Act made in the said Eight and twentieth year of King Henry the Eighth which concerneth a prohibition to marry within the degrees expressed in the said Act shall be repeal'd c. As it is true That if a marriage be declared by Act of Parliament to be against Gods Law we must admit it to be so for by a Law that is by an Act of Parliament it is so declared By the same reason if by a lawful Canon a marriage be declared to be against Gods Law we must admit it to be so for a lawful Canon is the Law of the Kingdom as well as an Act of Parliament And whatever is the Law of the Kingdom is as much the Law as any thing else that is so for what is Law doth not suscipere magis aut minus But by a lawful Canon of this Kingdom which is enough and not only so but by a Canon warranted by Act of Parliament the marriage in question is declared to be prohibited by Gods Law therefore we must admit it to be so In a Synod or Convocation holden at London in the year 1603. for the Province of Canterbury by the Kings Writ and with the Kings Licence under the Great Seal of England to treat consult and agree of such Canons and Constitutions Ecclesiastick as should be there thought fit Several Canons were concluded and agreed To which King James gave his Royal Assent and Approbation and by his Letters Patents ratified and confirmed them according to the form of the Statute made in 25 H. 8. c. 19. and commanded the due observance of them Among which the Ninety ninth Canon is No person shall marry within the degrees prohibited by Gods Law and expressed in a Table set forth by Authority in the year of our Lord 1563. and all marriages so made and contracted shall be adjudged incestuous and unlawful and the aforesaid Table shall be in every Church publickly set up and fixed at the charge of the Parish Which is the same as No person shall marry within the degrees prohibited by Gods Law and which degrees are expressed in the Table c. For to the Question What is expressed in the Table there can be no Answer but the degrees prohibited by Gods Law But by this Table this marriage in question is expressed to be in a degree prohibited by Gods Law therefore it must be admitted to be so Another consequent is this That by this Canon and consequently by the Law of this Kingdom All marriages prohibited by that Table are declared to be within the degrees prohibited by Gods Law Note That any marriage unlawful by holy Scripture is declared here to be against Gods Law Judicially no otherwise than because by the Law of the Land the Scripture it self is declared and approved to be the Law of God for the Scripture cannot judge it self to be Scripture without some Judicature Therefore by the sixth Canon tempore Ed. 6. at a Convocation in London Anno 1552. the Authority of the Old Testament was declared Can. 1552. At a Convocation of both Provinces in London Anno 1562. the Canonical and Apocryphal Books of the Old Testament were particularly enumerated Can. 1563. and the Books of the New declared Canonical as Receiv'd By the seventh Canon the Authority of the Old Testament Declared By the Act it is said That the Clergy of this Kingdom nor any of them shall henceforth enact promulgate or execute any Canons Constitutions or Ordinances Provincial by whatsoever name or names they may be called in their Convocations in time coming which shall always be assembled by Authority of the Kings Writ unless the same Clergy may have the Kings most Royal Assent and Licence to make promulge and execute such Canons Constitutions and Ordinances Provincial c. The Chief Justice delivered the Resolution of the Court And accordingly a Consultation was granted In Camera Scaccarii Edward Thomas Plaintiff Thomas Sorrell Defendant THE Plaintiff by Information in the Kings Bench tam pro Domino Rege quam pro seipso demands of the Defendant Four hundred and fifty pounds for selling Wine in the Parish of Stepney in the County of Middlesex by Retail Ninety several times between the Tenth day of June the Seventeenth of the King and the Two and twentieth day of May the Eighteenth of the King to several persons without licence contrary to the Statute of 12 Car. 2. whereby he forfeited Five pounds for every several offence which amounts to Four hundred and fifty pounds The Defendant pleads Nil debet and therefore puts himself upon the Country The Iury find That as to all the Debt except Fifty pounds the Defendant owes nothing And as to the Fifty pounds they find the Statute of 7 E. 6. c. 5. concerning retailing of Wines prout in the Statute They find Letters Patents under the Great Seal dated 2 Febr. 9 Jac. _____ prout in the Letters Patents whereby King James incorporated the Company of Vintners in the City of London by the Name of Master Warden Freemen and Commonalty of the Mystery of Vintners in the said City and thereby among other things granted for him his Heirs and Successors to the said Master Warden and Freemen of the said Company and their Successors that they might always after within the said City and Suburbs of the same and within three Miles from the Walls or Gates thereof and in all and every other City and Sea-ports called Port-towns within the Kingdom of England and in all other Cities and Towns known by the name of Thorough-fare-towns where Posts were set and laid between Dover and London and between London and Barwick where any of the Freemen of the said Mystery did or should happen to dwell and keep a Wine Tavern and by themselves or servants sell Wine by
Wine for that Objection reaches to Dispensations with single Persons as well as Corporations 2. The reason why the King cannot dispense in the Cases of Answ 2 buying Offices and Simoniacal Presentations is because the persons were made incapable to hold them and a person incapable is as a dead person and no person at all as to that wherein he is incapable For persons entred in Religion and dead in Law were not to all purposes dead but to such wherein they were incapable to take or give 3. A Member of the House of Commons is by 7 Jac. persona Answ 3 inhabilis and not to be permitted to enter the House before the Oath taken A particular Action is given by 2 H. 4. for such Suit in the Admiralty and such Licence gives the Admiralty a Iurisdiction against Law 4 5 P. M. Dyer 159. Domingo Belatta's Case A third Objection was That this general Dispensation answers Obj. 3 not the end and intention of the Act of 7 E. 6. but seems to frustrate and null that Law wholly And though the King can dispense with penal Laws yet not in such manner as to annihilate and make them void If this Objection held good in fact it is a material one Answ 1 but the Act of 7 E. 6. intended not that no Wine should be sold nor that it should be with great restraint sold but not so loosly as every man might sell it And since it is admitted that the Act of 7 E. 6. restrains not the King's power to licence selling Wine which perhaps was more a Question than this in hand it is clear the King may licence as if the Act had absolutely prohibited selling Wine and left it to the King to licence as he thought fit not abrogating the Law And if so The end of the Act being only that every man should not Answ 2 sell Wine that would as they might when the Act was made and not to restrain convenient numbers to sell for the Kingdoms use The King could not better answer the end of the Act than to restrain the sellers to Freemen of London To the Corporation of Vintners men bred up in the Trade Answ 3 and serving Apprentiships in it And that such should be licenc'd without restraint is most agreeable to the Laws of the Kingdom which permits not persons who had served Seven years to have a way of livelyhood to be hindred from exercising their Trades in any Town or part of the Kingdom Taylors of Ipswich C. Report 11. as was resolved in the Taylors of Ipswich Case in the Eleventh Report And therefore the King had well complyed with the ends of the Law had he licenced such to sell in any part of the Kingdom which he did not but confined them to Towns Obj. 4 It hath been said to the Case of Licences to Corporations for purchasing in Mortmain That the Laws against Mortmain are not penal because they may be dispens'd with without a Non obstante and so cannot penal Laws be Answ 1 It is durus sermo that those Laws are not penal which give the forfeiture of the Land 2. By the Statute of 1 H. 4. c. 6. and 4 H. 4. c. 4. the King is restrained in some Cases from granting as he might at the Common Law Therefore without a Non obstante of those Laws it cannot appear that the King would have granted it if he had been appris'd of those restraining Laws Therefore a Non obstante in such Case is requisite But when a man might by the Common Law purchase without licence as in the Case of Mortmain before the prohibiting Statutes or might Export or Import a prohibited Commodity before restraint by Statute a Licence ex specialia gratia is sufficient without a Non obstante For by petitioning for a Licence the King is sufficiently informed the Law permits not the thing without a Licence which is all the use of a Non obstante This enough appears by the Case in Dyer 269. where a Licence ex speciali gratia is good without issuing any Ad quod damnum in the Case of Mortmain 3. The Writ of Ad quod damnum in that Case which regularly issues informs the King better than a Non obstante would do Obj. 5 Next it hath been said in the Case of Mortmain the King dispenseth only with his own Right and concludes not the mean Lords It is true for the King in no case can dispense but with his own Right and not with anothers Answer hath been offered to the President of Waterford by Obj. 6 which the King dispens'd with the Offence of not bringing the Staple Merchandise from Ireland to Calais being so penal which was an Offence by 10 H. 6. c. and 14 H. 6. c. to the universal hurt of the Kingdom and therefore much greater than selling of Wine contrary to the Statute of 7 E. 6. c. but that was as hath been said Because those Merchants were to pay Custome to the King which was his Inheritance and with which he could dispense Answ This put together sounds thus The Merchants of Waterford were to pay Customes to the King for their Staple Merchandise for which he might dispense if he would but never did for any thing appears The Merchants of Waterford were upon penalties to bring their Staple Merchandise to Calais with which the King could not dispense had no Customes been due from them yet he did dispense with them for that which he could not viz. bringing their Goods to Calais because he did not dispense with them for that which he could viz. their Customes there is no Inference nor Coherence in this Answer But it also appears by the Statute 27 E. 3. c. 11. of the Staple for the reason therein given that the Merchants of Ireland were to pay their Customes in Ireland and to bring their Cockets of their payments there to the Staple lest otherwise they might be doubly charg'd Therefore the Customes which were paid in Ireland before the Goods brought to the Staple was no cause for dispensing with the Corporation of Waterford for not bringing their Merchandise to the Staple according to the penal Laws for that purpose The Licence of Edward the Third pleaded by the men of Waterford was perhaps after the Statute of 27 E. 3. when they were not to pay their Customes at the Staple but however the Licences by them pleaded 1 H. 7. by Henry the Sixth and Edward the Fourth were long after they were to pay their Customes in Ireland and not at the Staple I must say as my Brother Atkins observed before That in this Case the Plaintiffs Council argue against the Kings Prerogative for the extent of his Prerogative is the extent of his Power and the extent of his Power is to do what he hath will to do according to that ut summae potestatis Regis est posse quantum velit sic magnitudinis est velle quantum potest if therefore the King have a will
of the Court if the name of the County be familiar to them as those of Wales are but not those of Ireland We must then look higher and search for surer Premisses than those late Awards of the Courts at Westminster to determine this Question And first it must be agreed That when Wales was a Kingdom or Territory governed by its own Laws and the people subject to a Prince peculiar to themselves immediately and not to the Crown of England no Process of any nature could issue thither from the Courts of England more than to any other Forreign Dominion that is not of the Dominion of England In which Assertion I neither do nor need affirm any thing Whether Wales were held from the Crown of England by Feodal Right or not and what sort of Liegeance the Princes of Wales and from what time did owe to the King of England For whatever that was yet Wales was governed by its own Laws and not bound by any Law made in England to bind them more than Scotland was when yet the King of Scotland did homage to the King of England for that very Kingdom of Scotland I begin then with the time that Wales came to be of the Dominion of the Crown of England and was obliged to such Laws as the Parliament of England would enact purposely to bind it This was not before the entire submission of Wales de alto basso as the words of the Statute of Rutland are to King E. 1. which a little in time preceded the making of those Laws for Wales called the Statute of Rutland Whether it was really a Statute by Parliament or concession of the King by his Charter for the future Government of Wales is not material for so at least it appears to be But by what transaction soever either of voluntary submission or partly by force of Arms it was effected it is evident that from that time Wales became absolutely of the Dominion of the Kingdom of England and not only of the Empire of the King of England as it might possibly have been for now Scotland is The words of the Statute of Rutland are Divina Providentia quae in sui dispositione non fallitur inter alia suae dispensationis munera quibus Nos Regnum Nostrum Angliae decorari dignata est terram Walliae cum incolis suis prius nobis jure feodali subjectam jam sui gratia in proprietatis nostrae Domin obstaculis quibuscunque cessantibus totaliter cum integritate convertir coronae regni praed tanquam partem corporis ejusdem annexit univit So as from this time it being of the Dominions of the English the Parliaments of England might make Courts to bind it but it was not immediately necessary it should but its former Laws excepting in point of Soveraignty might still obtain or such other as E. 1. should constitute to whom they had submitted and accordingly their Laws after their Submission were partly their Old Laws and partly New ordained by him Preamble Stat. Walliae Leges Consuetudines partium illarum hactenus usitatas coram nobis proceribus Regni nostri fecimus recitari quibus diligenter auditis plenius intellectis quasdam illarum de consilio procerum praedictorum delevimus quasdam permisimus quasdam correximus etiam quasdam alias adjiciendas faciendas decrevimus eas de caetero in terris Nostris in partibus illis perpetua firmitate teneri Observari volumus in forma subscripta Then follow the Ordinances appointing Writs Original and Judicial in many things varying from those of England and a particular manner of proceeding and a particular Justiciar to administer Justice and particular Chancery out of which the Writs for those parts were to issue So as though Wales became of the Dominion of England from that time yet the Courts of England had nothing to do with Administration of Justice there in other manners than now they have with the Western Islands Barbadoes St. Christophers Mevis New England which are of the Dominions of England and so is Ireland the Isles of Garnsey and Jersey at present all which may be bound by Laws made respectively for them by an English Parliament but all or most of them at present by Laws appointed and made by the King's Letters Patents and the King's Writs Original or Judicial from the Courts of Westminster go not there so anciently were Gascoign Guyen and Calais of the Dominions of England but governed by the Customes and Laws used there and out of the Jurisdiction of the Kings Courts And it is observable That these Territories of France were not held by the Crown of England by that right it had to all France as is much mistaken and particularly by Sir Edward Coke in Calvin's Case For those Territories by an Act and Conclusion of Peace made by E. 3. with the French which was ratified by the Parliaments of both Kingdoms those Territories were then annexed thereby to the Dominion of the Crown of England whereof I had a fair and ancient Copy from Mr. Selden but lost it by the fire And that Gascoign Guyen 2 R. 3. f. 12. and Calais were of the Dominions of England and Ireland appears by the Book 2 R. 3. f. 12. But to all Dominions of Acquisition to the Crown of England some Writs out of the King's Chancery have constantly run Sir Edward Coke in Calvin's Case Calvin's Case 7. Rep. f. 20. calleth them Brevia mandatoria non remedialia distinguishing Writs into Brevia mandatoria remedialia Brevia mandatoria non remedialia The first sort he saith never issue into Dominions belonging to England but not parts of it the other do More intelligibly it may be said That Writs in order to the particular Rights and Properties of the Subject which he calls Brevia mandatoria remedialia for this Writ is a Mandate issue not to Dominions that are no part of England but belonging to it For surely as they have their particular Laws so consequently they must have their particular Mandates or Writs in order to them And though their Laws should by accident be the same with those of England as hath happened to Ireland some times and now to Wales yet the Administration of them is not necessarily by and under the Jurisdiction of the Courts of England Brevia mandatoria non remedialia are Writs that concern not the particular Rights or Properties of the Subjects but the Government and Superintendency of the King Ne quid Respublica capiat detrimenti such are Writs for safe Conduct and protection Writs for Apprehension of persons in his Dominions of England and withdrawing to avoid the Law into other of his Dominions as he instances in such Writs to the Dominions of Gascoign viz. to the Major of Bourdeaux there to certifie concerning a person Outlaw'd in England if he were in Servitio Regis there of like nature are the Writs of
ipso facto but after six Months after notice of such deprivation given by the Ordinary to the Patron By these Clauses immediately upon not reading the Articles according to the Statute the Incumbent is depriv'd ipso facto And the Patron may presently upon such Deprivation present if he will and his Clerk ought to be admitted and instituted but if he do not no lapse incurrs until after six months after notice of the Deprivation given to the Patron by the Ordinary who is to supply the Cure until the Patron present Another Clause of the Statute is No person shall hereafter be admitted to any Benefice with Cure except he then be of the Age of Three and twenty years at the least and a Deacon and shall first have subscribed the said Articles in the presence of the Ordinary c. And relative to this Clause there is a third That all Admissions to Benefices Institutions and Inductions of any person contrary to any provision of this Act shall be utterly void in Law as if they never were Now though the Church of Wringlington became void immediately of what value soever it were by admission and institution of the Defendant into the Church of Elme by the ancient Canon Law receiv'd in this Kingdom which is the Law of the Kingdom in such Cases if the Patron pleas'd to present And for that the Patron accordingly did within a month after the Defendants Admission and Institution into the Rectory of Elme present his Clerk Hugh Ivy to the Church of Wringlington who was thereto Admitted Instituted and Inducted within that time which was a month before the Defendant was depriv'd for not reading the Articles in the Church of Elme Whereby any Interest the Defendant had to Wringlington was wholly avoided as the Case is Yet if the Church of Wringlington had been under value and the Patron had not presented to it his Clerk before Higden's Deprivation of the Church of Elme he might not have still continued Parson of Wringlington as if never Admitted Instituted or Inducted to the Rectory of Elme But if he had not subscribed the Articles before the Ordinary upon his Admission and Institution to the Rectory of Elme he had never been Incumbent of Elme and consequently never accepted a second Benefice to disable him of holding the first And so it is resolv'd in the last Case of the Lord Dyer 23 of the Queen where a man having a Living with Cure under value accepted another under value also having no Qualification or Dispensation and was Admitted Instituted and Inducted into the Second but never subscribed the Articles before the Ordinary as the Statute of 13. requires Vpon question whether the first Living vacavit per mortem of him or not the Court resolv'd That the first Living became vacant by his death and not by accepting the second because he was never Incumbent of the second for not subscribing the Articles before the Ordinary whereby his Admission Institution and Induction into the second Living became void as if they had never been This Case was urg'd at the Barr for the Defendant as if his not reading the Articles within two months after his Induction into Elme had still as in the Lord Dyers Case left him Incumbent of the first Living But that was mistaken for not subscribing the Articles made that he never was Incumbent of the second Living and consequently then there was no cause to lose the first But the Defendant having subscribed the Articles upon his Admission and Institution was perfect Incumbent pro tempore of the second Living and thereby lost the first and afterwards lost the second for not reading the Articles within two months after his Induction so as he was compleat Incumbent by Admission Institution and Induction of the second Living full two months before he lost it It was upon this Clause of the Statute smartly urg'd by my Brother Baldwyn That if the Statute makes the Defendants Admission Institution and Induction to the second Living void as if they had never been For what reason doth he not still retain his first The Answer is as before 1. That his not retaining the first is no effect nor consequent of his losing the second But the first was lost because he accepted a second and the right Patron thereupon presented to the first so as he lost the first whilst he was and for being lawful Incumbent of the second And therefore could be no effect nor consequent at all proceeding from his loss of the second by not reading the Articles after more than if he had lost the second by Deprivation for Heresie or other cause 2. The Clause of 13. is not That all Admissions Institutions and Inductions to Benefices where any person is depriv'd by virtue of that Act shall be void as if they never were for so should the Clause have been to warrant the Objection made at the Barr. But the Clause is That all Admissions Institutions and Inductions made contrary to any provision of the Act shall be void as if they never were But Higden's Admission Institution and Induction to the Church of Elme was not contrary to any provision of the Act but every way legal but had he not subscribed the Articles before the Ordinary then his Admission Institution and Induction had been contrary to the provision of the Act and so void as if they never were The Chief Justice delivered the Opinion of the Court and Judgment was given for the Plaintiff Bushell's Case THE King 's Writ of Habeas Corpus Dat. 9 die Novembris 22 Car. 2. issued out of this Court directed to the then Sheriffs of London to have the Body of Edward Bushell by them detained in Prison together with the day and cause of his Caption and Detention on Friday then next following before this Court to do and receive as the Court should consider as also to have then the said Writ in Court Of which Writ Patient Ward and Dannet Foorth then Sheriffs of London made the Retorn following annex'd to the said Writ That at the Kings Court of a Session of Oyer and Terminer held for the City of London at Justice Hall in the Old Baily London in the Parish of St. Sepulchres in Farringdon Ward without London on Wednesday 31 die August 22 Car. 2. before Sir Samuel Sterling then Mayor of London and divers other his Majesties Justices by virtue of his Majesties Letters Patents under the Great Seal of England to them any four or more of them directed to enquire hear and determine according to the tenor of the said Letters Patents the Offences therein specified And amongst others the Offences of unlawful Congregating and Assemblies within the limits appointed by the said Commission within the said City as well within Liberties as without Edward Bushel the Prisoner at the Barr was committed to the Goal of Newgate to be there safely kept under the Custody of John Smith Knight and James Edwards then Sheriffs of the said City
Whether the Temporal Courts of the King can take Conizance in general that it is not an Incestuous marriage by the Act of 32 H. 8. and consequently prohibit the questioning of it in the Ecclesiastical Courts Because the words of that Act are That no marriage shall be impeached Gods Law except without the Levitical Degrees and therefore within the meaning of that Act Some marriages might be impeach'd according to Gods Law though such marriage were out of the Levitical Degrees whereof this may be one As to the first Question The marriage of Harrison and Jane Resp 1 his wife is a lawful marriage by the Act of 32 H. 8. cap. 38. As to the Second I hold the Judges of the Temporal Courts Resp 2 have by that and other Acts of Parliament full Conizance of marriages within or without the Levitical Degrees As to the Third I hold that as the Law stands at this time Resp 3 the Kings Temporal Courts at Westminster have full Conizance what marriages are incestuous or not according to the Law of the Kingdom and may prohibit the Ecclesiastick Courts from questioning marriages as Incestuous which the said Courts in their Iudgment shall conceive not to be so Yet I shall agree the Ecclesiastick Courts may proceed in order to Divorcement and punishment concerning divers marriages and the Kings Courts at Westminster ought not to prohibit them though such marriages be wholly without the Levitical Degrees I shall begin in some measure first to clear the Second Question viz. Whether the Kings Temporal Courts have any Conizance of the Subject matter namely what marriages are within or without the Levitical Degrees Questions of that nature being as must be confessed regularly to be decided by the Law Divine whereof the Ecclesiastick Courts have generally the Conizance For it were improper for us to resolve a Question in a Law when it was left to an after Inquiry whether we had any Conizance of or skill in that Law by which the Question was to be determined There was a time when the Temporal Courts had no Conizance of lawful or unlawful marriages so was there a time when the Ecclesiastical Courts had no Conizance of matters Testamentary and probat of Wills Hensloes C. 9. Rep. but the Law-making power of the Kingdom gave them that which they had not before and the same hath given the Temporal Courts this now which they had not in former times By Conizance in this sense I intend Jurisdiction and Judicial Power as far as it extends concerning the lawfulness of marriages which an Act of Parliament hath given them Notwithstanding it will be said They want knowledge or skill in the Law by which it must be determined what are or are not the Levitical Degrees for they are not studied in that Divine Law they want skill in the Original in which it was written and in the History by which it is to be interpreted As specious as this seems it is a very empty Objection for no man is supposed necessarily ignorant of a Law which he is bound to observe It is irrational to suppose men necessarily ignorant of those Laws for breach of which they are to be punisht and therefore no Canon of Divine or Human Law ought to be supposed unknown to them who must be punisht for transgressing them We are obliged not to marry in the prohibited Degrees not to be Heretical or the like therefore we are supposed to know both Nor is it an Exception to disable a man of having any Church Dignity whatever that he is not knowing in the Hebrew or Greek Tongue All States receive the Scriptures in that Language wherein the several States think fit to publish them for common use and it is but very lately that the Christian Churches have become knowing in the Original Tongues wherein the Scriptures were written which is not a knowledge of obligation and required in all or any but acknowledged accidental and enjoy'd by some If it were enacted by Parliament That matters of Inheritance of Theft and Murther should be determined in the Courts of Westminster according to the Laws of Moses this Objection would not stand in the way no more can it in this particular concerning Incestuous marriages The Laws of one people have frequently been transferred over and become the Laws of another As those of the Twelve Tables from Greece to Rome in like manner those Laws of the Rhodians for Maritime Affairs made the Law of the Romans the Laws of England into Ireland and many such might be instanced As another lymn of this Objection it is said This Act 13 H. 8. seems rather a directing Act how the Courts Ecclesiastical should proceed touching marriages out of the Levitical Degrees than an Act impowering the Temporal Courts to prohibit their proceeding When the King's Laws prohibit any thing to be done there are regular ways to punish the Offender As for common Offences by Indictment or Information Erronious Judgments are remedied by Writs of Error or Appeal Incroaching Jurisdiction by Courts where no Writ of Error lies is corrected by the King's Writs of Prohibitions It is most proper for the King to hinder the violating of his Laws by impeaching of marriages which the Law will not have impeach'd by incroaching Iurisdiction as to hinder them from impeaching or drawing into question Contracts for Lands or other things whereof they have not Conizance And the King hath never otherwise remedied that fault against his Laws but by his Prohibitions out of his Courts of Iustice Nor is it consonant to Law or common Reason That they who offend by incroaching Jurisdiction against Law should be the redress allowed by Law only against such incroachment which were to provide against doing wrong by him who doth it By the Act no person of what estate or condition soever Rep. 1 2. p.m. but that was Rep. again 1 El. c. 1. is to be admitted to any of the Spiriual Courts and to any Process Plea or Allegation contrary to the Act. This Act therefore never intended the Ecclesiastick Courts should have any Judicial power to determine or judge what marriages were within or without the Levitical Degrees contrary or not contrary to the Act when it admits not any Process Plea or Allegation in a Spiritual Court contrary to the Act. For it is impossible that Court should have Conizance to determine the lawfulness or unlawfulness of a marriage which is forbid to admit Process Plea or Allegation against such marriage if it be lawful 1. This marriage not prohibited in the 18. of Leviticus nor the same degree with any there prohibited 2. If marriages neither prohibited in terminis in Leviticus nor being in the same degree with a marriage there prohibited should be unlawful there would be no stop or terminus of unlawful marriages 3. The 20. of Leviticus prohibits no other marriages than the 18. of Leviticus doth but appoints the punishments which the Eighteenth doth not 4. Not now to
Relatives and if an Act of Naturalization should thereby make a man a natural Subject the same Subject would have two natural Soveraigns one when he was born the other when naturalized which he can never have more then two Natural Fathers or two Natural Mothers except the Soveraigns be subordinate the Inferior holding his Kingdome as Liege Homager from the Superiour And perhaps in the Case of Severing the Kingdoms Calvins Case 27. as Sir Edward Coke saith Nor can an Act of Parliament in one place take away the natural subjection due to another Prince for want of power And the Law of England being That an Antenatus shall not inherit because an Alien without an Act of Parliament making him none The fiction of an Act in another Kingdom to which England never consented shall not alter the law here because he is made in Ireland as if born there If there were an Act of Parliament in England That persons naturalized in Ireland or Scotland should be no Aliens in England no man thinks that thereby Scotland or Ireland could naturalize a man in terminis in England But a man naturalized there would by consequent be naturalized in England because the law of England did warrant that consequent But to say That a man naturalized in Ireland is not directly naturalized in England but by consequent when the question is Whether one naturalized in Ireland be thereby naturalized in England is to beg for a proof that which is the question Therefore it must be first proved That there is a Law of England to warrant that consequent Inconveniences The Law of England is That no Alien can be naturalized but by Act of Parliament with the assent of the whole Nation 1. Now if this naturalization in Ireland should be effectual for England then a whole Nation should become Natives in England without Act of Parliament of what Country Religion or Manners soever they be by an Act of Ireland 2. If the Parliament of England should refuse to naturalize a number of men or Nation as dangerous or incommodious to the Kingdom yet they might be naturalized whether the Houses of Parliament would or not by an Act of Ireland 3. By this invention the King may naturalize in England without an Act of Parliament as well as he may Denizen for if the Parliament of Ireland enact That the King by Letters Patents shall naturalize in Ireland then they so naturalized in Ireland by Patent will be naturalized in England by consequent so they may enact the Deputy or Council of Ireland to naturalize 4. If an Alien hath Issue an Alien Son and the Father be denizen'd in England and after hath a Son born in England the Law hath been taken That the youngest Son shall inherit the Fathers Land Co. Litr. f. 8. a. Doct Stud. l. 1. Cr. 17 Jac. f. 539. Godfrey Dixons C. So is Sir Edward Coke Litr. f. 8. a. and other Books yet if the elder be naturaliz'd in Ireland the Estate which the youngest hath by the Law of England will be plucked from him Having thus opened the Inconveniences consequent to this Irish Naturalization the next is That Judges must judge according as the Law is not as it ought to be But then the Premisses must be clear out of the established Law and the Conclusion well deduc'd before great Inconveniences be admitted for Law But if Inconveniences necessarily follow out of the Law only the Parliament can cure them 1. I shall begin with the admitted Doctrine of Calvin's Case By that Case He that is born a Subject of the King of England in another Dominion than England is no Alien in England So the Scots born when the King of Scots was King of England are no Aliens those born before in Scotland are Therefore Nicholas Ramsey who is not born the Kings Subject of Ireland must be an Alien in England whose Law by the Rule of that Case makes only Subjects born and not made of another Dominion not to be Aliens in England 2. It is agreed to my hand That an Alien naturalized at this day in Scotland remains an Alien in England notwithstanding 3. By the Doctrine of Calvin's Case a natural born Subject to the Kings person of a Forraign Dominion is not priviledg'd in England from being an Alien else the Antenati of Scotland were priviledg'd for they are natural born Subjects to the Kings person as well as the Postnati 4. It stands not with the Resolution of that Case That the natural born Subjects of the Dominions belonging to the Crown of England qua such should be no Aliens in England which was the principal matter to have been discuss'd but was not in Calvin's Case and chiefly concerns the point in question The Case relied on to justifie the Iudgment in Calvins Case are several Authorities That the King of England's Subjects formerly were never accounted Aliens in England though they were all out of the Realm of England and many within the Realm of France But all these are admitted in that Case as most of them were Dominions belonging to the Crown of England and if so Of Normandy Brittain Aquitain Anjou Gascoigne Guien Calais Jersey and Gernsey Isle of Man Berwick and other Parts of Scotland Ireland Tourney c. What Inference could be made for the Resolution of Calvin's Case That because the Kings natural Subjects of Dominions belonging to the Crown of England as these did were no Aliens in England Therefore that Subjects of a Dominion not belonging to the Crown as the Postnati of Scotland are should be no Aliens in England Non sequitur Therefore it is for other reason then because natural Subjects of Dominions belonging to the Crown of England they were no Aliens by the meaning of that Resolution And the Adequate Reason being found out why they are not Aliens will determine the point in question 1. It was not because they were natural Subjects to him that was King of England for then the Antenati of Scotland would be no Aliens they being natural Subjects to him that is King of England as well as the Postnati 2. It was not because they were natural Subjects of Dominions belonging to the Crown of England for then the Postnati would be Aliens in England for they are not Subjects of a Dominion belonging to the Crown of England 3. It remains then the Reason can be no other but because they were born under the same Liegeance with the Subjects of England which is the direct reason of that Resolution in Calvins Case Calvins Case f. 18. b. a. The words are The time of the birth is of the essence of a Subject born for he cannot be a Subject to the King of England that is to be no Alien unless at the time of his birth he was under the Liegeance and Obedience of the King that is of England And that is the reason that Antenati in Scotland for that at the time of their birth they were not under the
Act of Parliament of England no more than Wales Gernsey Jersey Barwick the English Plantations all which are Dominions belonging to the Realm of England though not within the Territorial Dominion or Realm of England but follow it and are a part of its Royalty Thirdly That distinct Kingdoms cannot be united but by mutual Acts of Parliament True if they be Kingdoms sui Juris and independent upon each other as England and Scotland cannot be united but by reciprocal Acts of Parliament So upon the Peace made after Edward the Third's war with France Gascoign Guien Calais were united and annext to the Crown of England by the Parliaments of both Nations which is a secret piece of Story and mistaken by Sir Edward Coke who took it as a part of the Conquest of France and by no other Title But Wales after the Conquest of it by Edward the First was annext to England Jure Proprietatis 12 Ed. 1. by the Statute of Ruthland only and after more really by 27 H. 8. 34. but at first received Laws from England as Ireland did but not proceeded by Writs out of the English Chancery but had a Chancery of his own as Ireland hath was not bound by the Laws of England unnamed until 27 H. 8. no more than Ireland now is Ireland in nothing differs from it but in having a Parliament Gratiâ Regis subject to the Parliament of England it might have had so if the King pleas'd but it was annext to England None doubts Ireland as conquer'd as it and as much subject to the Parliament of England if it please The Court was divided viz. The Chief Justice and Tyrrell for the Plaintiff Wylde and Archer for the Defendant Trin. 25 Car. II. C. B. Rot. 1488. Thomas Hill and Sarah his Wife are Plaintiffs Thomas Good Surrogat of Sir Timothy Baldwyn Knight Doctor of Laws and Official of the Reverend Father in God Herbert Bishop of Hereford is Defendant In a Prohibition THE Plaintiffs who prosecute as well for the King as themselves set forth That all Pleas and Civil Transactions and the Exposition and Construction of all Statutes and all Penalties for the breach of them pertain only to the King and his Crown Then set forth the time of making the Act of 32 H. 8. c. 38. and the Act it self at large and that thereby it was enacted That from the time limited by the Act no Reservation or Prohibition Gods Law excepted should trouble or impeach any marriage without the Levitical Degrees And that no person shall be admitted after the time limited by the Act in any the Spiritual Courts within this Kingdom to any Process Plea or Allegation contrary to the Act. They set forth That after the making of the said Act and the time thereby limited the Plaintiffs being lawful persons to contract marriage and not prohibited by Gods Law and being persons without the Levitical Degrees the Twentieth day of September in the Four and twentieth year of the King at Lemster in the County of Hereford contracted matrimony in the face of the Church and the same consummated and solemninized with carnal knowledge and fruit of Children at Lemster aforesaid That by reason thereof the said Marriage is good and lawful and ought not to be null'd in Court Christian That notwithstanding the Defendant praemissorum non ignarus fraudulently intending to grieve and oppress the Plaintiffs unduly draws them into question before him in the Court Christian for an unlawful marriage as made within the Degrees prohibited by Gods Laws and there falso caute subdole libelling and supposing that whereas by the Laws and Canons Ecclesiastical of this Kingdom it is ordained That none should contract matrimony within the Degrees prohibited by Gods Law and expressed in a certain Table set forth by Publique Authority Anno 1563. and that all marriages so contracted should be esteemed incestuous and unlawful and therefore should be dissolved as void from the beginning And also That whereas by a certain Act of Parliament made and published in the Eight and twentieth year of King Henry the Eighth It is enacted That no person or persons subject or residing within the Realm of England or within the Kings Dominions should marry within the Degrees recited in the said Act upon any pretence whatsoever And That whereas the said Thomas Hill had taken to wife one Elizabeth Clark and for several years cohabited with her as man and wife and had carnal kdowledge of her He the said Thomas notwithstanding after the death of the said Elizabeth had married with and took to wife the said Sarah being the natural and lawful Sister of the said Elizabeth against the form of the said last mentioned Statute and them the said Thomas and Sarah had caus'd unjustly to appear before him in Court Christian to Answer touching the Premisses although the said marriage be lawful and according to Gods Law and without the Levitical Degrees And That although the Plaintiffs have for their discharge in the said Court Christian pleaded the said first recited Act yet the Defendant refuseth to admit the same but proceeds against them as for an incestuous marriage against the form of the Statute And that notwithstanding he was served with the Kings Writ of Prohibition to desist in that behalf in contempt of the King and to the Plaintiffs damage of One hundred pounds The Defendant denies any prosecution of the Plaintiffs contrary to the Kings Writ of Prohibition and thereupon Issue is joyn'd and demurrs upon the matter of the Declaration and prays a Consultation and the Plaintiffs joyn in Demurrer In the Argument upon Harrisons Case I said and still say That if granting Prohibitions to the Spiritual Courts in Cases of Matrimony were res integra now I saw no reason why we should grant them in any Case The matter being wholly of Ecclesiastick Conizance my Reasons were and are 1. Because in all times some marriages were lawful and others prohibited by Divine and Ecclesiastick Laws or Canons yet the Temporal Courts could not prohibit the impeaching of any marriage how lawful soever nor take notice of it 2. If by Act of Parliament anciently all marriages not prohibited by Gods Law or Canons of the Church had been declared lawful the Temporal Courts thereby had no power to prohibit the questioning of any marriage more than before for it had said no more than what the Law was and did say before such Act. So had it been enacted That all marriages should be lawful not prohibited by the Levitical Law the Church had retain'd the judging which were against the Levitical Law as they did when the unlawfulness was not confin'd only to the Levitical Law And the Question now concerning what are the Levitical Degrees whereof we assume the Conizance is but the same as the question would be concerning what marriages were prohibited in the Eighteenth of Leviticus For though such Acts of Parliaments had been yet they had given no new Iurisdiction or
Courts upon the insufficiency of the Return only and not for priviledge 154 5. Where a man is brought by Habeas Corpus and upon the Return it appears that he was imprisoned illegally though there is no cause of priviledge for him in the Court yet he shall not be remanded to his unlawful Imprisonment 156 6. The Kings Bench may bayl if they please in all Cases but the Common Bench must remand if the cause of the imprisonment returned is just 157 Heir 1. Children shall inherit their Ancestors without limitation in the right ascending Line and are not inherited by them 244 2. In the collateral Lines of Uncle and Nephew the Uncle as well inherits the Nephew as the Nephew the Uncle ibid. 3. The Heir shall never be disinherited by an Estate given by Implication in a Will if such Implication be only constructive and possible but nor a necessary Implication viz. such an Implication that the Devisee must have the thing devised or none else can have it 262 263 268 4. He that is priviledged by the Law of England to inherit there must be a Subject of the Kings 268 5. The four several ways that a man born out of England may inherit in England 281 6. How long the Heir shall continue in Ward upon the Devise of his Father and a full Exposition of the Statute of 12 Car. 2. 178 7. The Heir of the Conizee of a Fine only shall take nothing by Discent 41 Husband and Wife See Baron Feme  Imprisonment See Title Habeas Corpus  Incest 1. INcest was formerly of Spiritual Conuzance 212 2. The primitive Christian Church could punish incestuous marriages no other way than only by forbidding them communion with them 313 3. The Judges have now full conuzance of what Marriages are incestuous and what not 207 209 210 4. Among the Hebrews there was no Divorce for Incest but the Marriage was void and the Incest punished as in persons unmarried ibid. Incumbent 1. One Incumbent may sue a Writ of Spoliation against the other where the Patrons right comes in question 24 2. If an Incumbent with Cure take another Benefice with Cure the first is void and the Patron may present 21 3. A Bishop may be an Incumbent after Consecration 24 4. The Kings Confirmation of the Commendam transfers no right into the Incumbent 26 5. Where the Incumbent doth not read the Articles according to the Statute he stands ipso facto deprived 131 132 6. And if he had not subscribed the Articles he had been never Incumbent 133 Infant 1. Where the Gardianship of an Infant is devised since the Statute of 12 Car. 2. what passes thereby together with a full Exposition of that Statute from 177 to 186 2. He is capable at Seventeen years of Age of taking Administration in his own name 93 Institution and Induction 1. By Induction into the Rectory the Parson is seised of all the possessions belonging to his Rectory 198 2. Institution and Induction is a good Title until a better appears 7 8 3. Where after Institution and Induction the party inducted may bring his Ejectment and shall not be put to his Quare Impedit 129 130 131 Iointenants 1. There can be no Jointenants in Occupancy 189 2. They may release or confirm to each other and thereupon those priviledges which did belong to both shall pass to one of them 45 Ireland See Alien Error 1. Ireland is a conquer'd Kingdom and appears so by the express words of an Act of Parliament there 292 2. Though Ireland hath its own Parliament yet it is not absolute sui Juris ibid. 3. What things the Parliament of Ireland cannot do ibid. 4. When Ireland received the Laws of England 293 298 5. What Laws made in the Parliament of England are binding in Ireland 293 Issue 1. No Issue can be joyned of matter in Law 143 Iudges of Iustices 1. Where the Law is known and clear although it is unequitable and inconvenient yet Judges must adjudge it as it is 37 285 2. But where it is doubtful and not clear there they must Interpret it to be as is most consonant to equity 38 3. Defects in the Law can only be remedied in Parliament 38 285 4. Judges must judge according as the Law is not as it ought to be but if inconveniences necessarily follow out of the Law the Parliament only can cure them 285 5. An Opinion given in Court if not necessary to the Judgment given upon Record is no Judicial Opinion no more than a gratis dictum 382 6. But an Opinion though erroneous concluding to the Judgment is a Judicial Opinion because delivered under the Sanction of the Judges Oath upon deliberation which assures it is or was when delivered the Opinion of the Deliverer 382 7. When the King hath constituted any man a Judge his Ability Parts and Fitness for the place are not to be reflected upon or censured by any other person being allowed by the King who only is to judge of the fitness of his Ministers 138 8. We must not upon supposition only admit Judges deficient in their Office for so they should never do right Nor on the other side must we admit them unerring in their places for so they should never do any thing wrong 139 9. Judges have in all Ages been complained of and punished for giving dishonest and corrupt judgments 139 10. A Judge cannot Fine and Imprison a Jury for giving a Verdict contrary to his Directions 146 147 148 149 11. Judges ought not to abate Writs ex officio 95 97 12. The Judges direction to the Jury ought to be upon Supposition and not Positive viz. if you find the Fact thus then it is for the Plaintiff if you find it thus then for the Defendant 144 13. The Judge can never direct what the Law is in any controverted matter until he first knows the Fact 147 Iudgment See Error 1. A Judgment is the Act of the Court and compulsory to the Defendant 94 95 2. Where the Plaintiff makes it appear to the Court that the Defendants Title is not good but doth not set forth a good Title for himself the Court shall never give Judgment for him 60 3. An ill Declaration will not avoid the Judgment it only makes it erroneous 93 94 4. An erroneous Judgment is a good barr for an Executor in an Action brought against him 94 5. A Judgment given in England ought not to be executed in Wales 398 6. In a Quare Impedit where the Bishop disclaims and the Parson loseth by Default there shall go a Writ to the Bishop Non obstante Reclamatione to remove the Incumbent but with a Cessat Executio until the Plea is determined between the Plaintiff and Patron 6 Iurisdiction See Courts Prohibition 1. When the Question is of a Jurisdiction in a Dominion belonging to England how to be determined 418 2. Where ever a Debt grows due yet the Debtor is indebted to the Creditor
Heirs is expresly forbidden by the Statute de Donis 374 Right See Title Action 1. Where there can be presumed to be no remedy there is no right 38 Seisin 1. THe profits of all and every part of the Land are the Esplees of the Land and prove the Seisin of the whole Land 255 2. In an Entry sur Disseisin or other Action where Esplees are to be alledged the profits of a Mine will not serve 254 Spoliation 1. The Writ of Spoliation lyes for one Incumbent against the other where the Patrons right comes in question 24 Statute See Recognizance 1. A Recognizance taken before the Chief Justice of the Common Pleas in the nature of a Statute Staple 102 Statutes in general 1. Where an Act of Parliament is dubious long usage is a just medium to expound it by and the meaning of things spoken and written must be as hath been constantly received by common acceptation 169 2. But where usage is against the obvious meaning of an Act by the vulgar and common acceptation of words then it is rather an oppression then exposition of the Act 170 3. When an Act of Parliament alters the Common Law the meaning shall not be strained beyond the words except in cases of publick utility when the end of the Act appears to be larger than the words themselves 179 4. Secular Judges are most conizant in Acts of Parliament 213 5. When the words of a Statute extend not to an inconvenience rarely happening but doth to those which often happen it is good reason not to strain the words further than they will reach by saying it is casus omissus and that the Law intended quae frequentius accidunt 373 6. But where the words of a Law do extend to an inconvenience seldom happening there it shall extend to it as well as if it happens more frequently 373 7. An Act of Parliament which generally prohibits a thing upon a penalty which is popular or only given to the King may be inconvenient to diverse particular persons in respect of person place time c. For this cause the Law hath given power to the King to dispense with particular persons 347 8. Whatsoever is declared by an Act of Parliament to be against Law we must admit it so for by a Law viz. by Act of Parliament it is so declared 327 9. Where the Kings Grant is void in its creation a saving of that Grant in an Act of Parliament shall not aid it 332 10. How an Act of Parliament may be proved there hath been such an Act where the Roll is lost 162 163 404 405 407 11. An Act of Parliament in Ireland cannot effect a thing which could not be done without an Act of Parliament in England 289 12. Distinct Kingdoms cannot be united but by mutual Acts of Parliament 300 13. A repealed Act of Parliament is of no more effect than if it had never been made 325 Statutes 1. Merton cap. 4. The Statute of Merton which gave the owner of the Soyl power to approve Common did not consider whether the Lord was equally bound to pasture with his Tenants or not but it considered that the Lord should approve his own Ground so as the Commoners had sufficient 256 257 2. The inconveniences before the making of the Statute and the several remedies that were provided by it 257 1. Westm 1. 3 E. 1. The Antiquae Custumae upon Woolls Woolfells and Leather were granted to E. 1. by Parliament and therefore they are not by the Common Law 162 163 1. Westm 1. cap. 38. Attaints in Pleas real were granted by this Statute 146 1. Westm 2. cap. 24. The Quare Ejecit infra terminum is given by this Statute for the recovery of the Term against the Feoffee for an Ejectment lay not against him he coming to the Land by Feoffment 127 Statute of Glocester 1. Restrained warranties from binding as at Common Law 366 377 2. Before this Statute all Warranties which descended to the Heirs of the Warrantors were barrs to them except they were Warranties which commenced by Disseisin 366 3. The reason why the warranty of Tenant in Tayl with assets binds the right of the Estate Tayl is in no respect from the Statute de Donis but by the equity of the Statute of Glocester by which the Warranty of the Tenant per Curtesie barrs not the Heir for his Mothers Land if his Father leaves not assets to descend 365 4. If this Statute had not been made the lineal Warranty of Tenant in Tayl had no more bound the right of the Estate Tayl by the Statute de Donis with assets descending than it doth without assets ibid. Westm 2. De Donis 1. All Issues in Tayl within this Statute are to claim by the Writ purposely formed there for them which is a Formedon in the Descender 369 2. it intended not to restrain the alienation of any Estates but such as were Fee-simples at the Common Law 370 3. This Statute intended not to preserve the Estate for the Issue or the Reversion for the Donor absolutely against all Warranties but against the alienation with or without Warranty of the Donee and Tenant in Tayl only 369 4. Therefore if Tenant for life alien with Warranty which descended upon the Reversioner that was not restrained by the Statute but left at the Common Law 370 5. By this Statute the Warranty of Tenant in Tayl will not barr the Donor or his Heir of the Reversion ibid. 6. The Donee in Tayl is hereby expresly restrained from all power of alienation whereby the Lands entayled may not revert to the Donor for want of issue in Tayl 371 7. See a further Exposition upon this Statute from fol. 371 to 393 1. Wales Statute de Rutland 12 E. 1. after the Conquest of it by Edward the First was annext to England Jure proprietatis and received Laws from England as Ireland did Vide postea 9 17 18. and had a Chancery of their own and was not bound by the Law of England until 27 H. 8. 300 301 399 400 2. Although Wales became of the Dominion of England from that time yet the Courts of England had nothing to do with the Administration of Justice there in other manner than now they have with the Barbadoes Jersey c. all which are of the Dominions of England and may be bound by Laws made respectively for them by an English Parliament 400 See for a further Exposition 401 402 c. Acton Burnell 13 E. 1. 1. Recognizances for Debt were taken before this Statute by the Chancellor two Chief Justices and Justices Itinerants neither are they hindred by this Statute from taking them as they did before 102 28 E. 3. c. 2. concerning Wales 1. Tryals and Writs in England for Lands in Wales were only for Lordships Marchers and not for Lands within the Principality of Wales Vide ante 7. pòstea 17 18. for the Lordships and Marchers were of the Dominion of England and held of