will spare to speake vvhat I thinke For Chrysostome teacheth mee Qui laudatur infacie flagellatur in corde In seeking out this depth of Reason the same Author giueth a caution which is this Vitium quod in hoc genere fugi debet est ne si Rationē non inuenias mox legem sine ratione esse clames And in 36. H. 6. Fortescue saieth the same in effect which is thus We haue many Courses and Formes which bee houlden for Lawe and haue beene houlden and vsed because of Reason and notwithstanding the reason be not ready in memory yet by study and labour a man may finde it Now when wee come to examine by reason whether Post-nati in Scotland shall be disabled as Aliens or shall be capable of lands in England as naturall borne subiects there wee are first to consider vvhat is the reason whie Aliens in the Dominions and vnder the obedience of other forraine Princes are nor capable of landes in England And surely the true reason is that which was noted by baron Altham and hath since beene ofte remembred viz. The danger that might thereby come to the king and the common-weale Specially by drawing hither too great multitudes of them for so the Treasure of the Realme might bee transported by them into other forraine Kingdomes and Countries whereby it might bee vsed against the King and to the preiudice of the State And besides they might vnder-hand practise Sedition and Rebellion in the kingdome and cause many other daungers and inconueniences but that reason cannot serue against Post-nati in Scotland now that there is but one King of both the kingdomes no more than it can serue against those that are borne in Ireland or Gernesey or Iersey and therefore in reason they are as capable of landes in England as the kings subiects of Ireland and Gernesey and Iersey are Against this there haue also beene many Obiections made and Reasons deuised that seeme witty and haue some shew of probability to proue that Post-nati in Scotland are Aliens and ought not in reason to bee capable of landes in England videlicet 1. That England and Scotland were two ancient seuerall kingdomes vnder seuerall kings and seuerall crownes 2. That they continue yet seueral kingdomes 3. That they haue yet seuerall Lawes seuerall Seales seuerall Crownes and seuerall Kings For it is said though king Iames be king of both and hath but one naturall body yet in iudgement of Law he is in respect of his two seuerall kingdomes as two seuerall kings and the subiects of ech seuerall kingdome are bound to him by distinct allegeance according to the seuerall Lawes of the kingdome where they were borne And all this is grounded vpon this rule or fiction in Lawe Quando duo iura concurrunt in vna persona aequum est ac si essent in diuersis And vpon this ground is this new form of pleading deuised which the Defendants haue vsed in this Case such as cannot be found in any Record euer to haue beene pleaded before and may as well serue against the Kinges subiectes of Ireland as against the Post-nati of Scotland And sithence in former times the like forme of pleading vvas neuer seene against any of the Kings of Englandes subiects which were borne in any of his dominions out of England as in Normandie or Aquitanie or in France I meane such part of it as was in the Kinges possession and in subiection and obedience to him and not in that parte of France which his enemies helde it may be probably inferred That it was then generally houlden that neither such a forme of pleading nor the Matter it selfe was sufficient in Lavve to disable anie such Plaintife for against French-men that vvere not vnder the Kings obedience wee finde it often pleaded And as those that were not subiects to the King nor borne vnder his obedience did then presume to bring suites and actions in England So it can not bee thought but that the king hauing then so large and ample Dominions beyond the Seas as Normandy and Aquitany and many other partes of France some of his subiects borne there had cause to haue and did bring the like suites in England And sithence no such Plea is found to haue beene then vsed against them it can not in Lawe and Reason bee now allowed against the Post-nati in Scotland For I may say as Ascue saied in 37. H. 6. Our Predecessors were as sage and learned as we be And I see not but that in this Case a good Argument may bee reasonably deduced from the Negatiue as it was in the Case reported by the great learned and most graue and reuerend Iudge sir Iames Dyer chiefe Iustice of the Common pleas Anno 23. Elizab. The Question there was Whether an erroneous iudgement giuen in Rie which is a member of the Cinqueportes might bee reuersed in the kinges Bench or Common place at Westminster And it was thus resolued Sed pro eo quod nullū tale breue in Registro nec in aliquibus Praecedentibus curiarum praedictarū inueniri potuerat dominus Cancellarius Bromley per opinionem Capitalium Iusticiariorum vtriusque Banci denegauit tale breue concedere And so Iustice Fenners argument houldeth well viz. There is in this Case no lawe to exclude the Complainant Ergo hee is a liege and a naturall borne subiect But the forme of pleading in the time of king Ed. 1. in Cobledickes case which was cited out of Hengam and the Booke shewed heere by the Lord chiefe Iustice Coke is so direct and plaine for this our Question as nothing can be more plaine and therefore I thinke it not amisse to report it againe That Case was in effect and substaunce thus A woman brought a Writte of Ayel against Roger Cobledicke and declared of the seisin of Roger her Grand-father and conueied the discent to Gilbert her father and from him to the Demaundant as his daughter and heire The Tenant pleaded that the Demaundant was a French-woman and not of the ligeance nor of the fidelitie of England and demaunded iudgement if shee ought to haue the action against him This plea vvas houlden to bee insufficient and thereupon the tenant amended his plea and pleaded further That the Demaundant was not of the ligeance of England nor of the fidelitie of the King and demaunded iudgement c. And against that plea none exception was taken but thereupon the Demaundant prayed licence to depart from her Writ By this it appeareth plainely that the first plea alleadging that she was a French-woman and not of the ligeance nor of the fidelitie of England was insufficient and so declared by Berreford the chiefe Iustice For there can bee no fidelitie nor allegeance due to England respecting the land and soile without a Soueraigne and King But the second Plea alledging that shee was not of the ligeance of England nor of the fidelitie of the King was good and sufficient For to the King fidelitie and
Question was debated in a solemne Conference betweene both the Houses of Parliament at seuerall times and at great length and with much libertie Nothing was omitted that Wit or Art could inuent to obiect against this opinion And that was done by men of great learning and singular iudgement in the Common Lawe and Ciuile Lawe and by some other Gentlemen of the Common House of rare gifts for their learning knowledge elocution and experience At this Conference the Iudges were present who after they had heard all that was or could be said did confirme their former opinions which they had before deliuered in the higher House Three of the chiefe of them declaring their reasons and all the rest sauing one alone concurring in the same So here was now a generall resolution by all the Iudges of the Realme one excepted and that deliuered not priuately but in Parliament which without more adoe had beene sufficient to haue decided and determined this Question Touching the Proclamation it was discreetely and modestly saied by a learned Gentleman of the lower House That it was of great respect and much to bee regarded but yet it was not binding nor concluding for Proclamations can neither make nor declare Lawes And besides that this Proclamation was not grounded vpon any resolution of the reuerend Iudges but vpon the opinion of some skilfull in the Lawes of this Land Of the strength of Proclamations being made by the King by the aduise of his Counsell and Iudges I will not discourse yet I will admonish those that bee learned and studious in the Lawes and by their profession are to giue counsell and to direct themselues and others to take heede that they doe not contemne or lightly regard such Proclamations And to induce them thereunto I desire them to looke vpon and consider aduisedly these few Proclamations Prouisions or Ordinaunces which I will point out vnto them and of what validitie and force they haue beene houlden to bee in construction of Lawe albeit they be neither Statutes nor Acts of Parliament M. 4. H. 3. in Dower the defendant pleaded Quod petens est de potestate Regis Franciae residens in Francia Et prouisum est à Consilio Regis quod nullus de potestate Regis Franciae respondeatur in Anglia antequam Angli respondeantur de iure suo in Francia This the Plaintifes Atturney could not denie and thereupon the iudgement was Ideo sine die Anno 20. Hen. 3. certaine Prouisions and Ordinaunces were made which were called Prouisiones Merton where the King assembled his Archbishops Bishops Earles and Barons for the Coronation of the King and his wife Queene Elenor and the words be Prouisum est in curia Dom. Regis apud Merton corā Willihelmo Cantuariensi Archiepiscopo Coepiscopis Suffraganeis suis Et coram maiori parte Comitum Baronum Angliae ibidem existentium pro Coronatione ipsius Domini Regis Helionorae Reginae pro qua omnes vocati fuerunt Cum tractatum esset de communi vtilitate Regni super articulis subscriptis Ita prouisum fuit concessum tam a praedictis Archiepiscopis Episcopis Comitibus Baronibus alijs De viduis primò c. Fitzherbert citeth a Prouision made Anno 19. H. 3. in these words Et prouisum fuit coram Domino Rege Archiepiscopis Episcopis Comitibus Baronibus Quod nulla Assisa vltimae praesentationis de caetero capiatur de Ecclesiis Praebendatis nec de Praebendis This Prouision was alowed and continued for Lawe vntill W. 2. Anno 13. Edw. 1. ca. 5. which prouides the contrary by expresse words Anno 6. Ed. 1. the King and his Iudges made certaine Explanations of the Statute of Gloucester which are called Explanationes statuti Glocestriae And these be the words Postmodum per Dominum Regem Iusticiarios suos factae sunt quaedam Explanationes quorundam articulorum superius positorum Which Explanations haue euer since beene receiued as a Law There is a Proclamation by King Ed. 3. bearing Teste at Westminster Anno 15. Edw. 3. And Iudge Thorpes opinion Pa. 39. Ed. 3. 7. both which I will now forbeare to report and wish the Students to reade the same in the printed Bookes where they shall see both the effect and the reason and the cause thereof They are worth their reading and may informe and direct them what iudgement to make of Proclamations Touching the opinion of the Iudges some haue obiected yet modestly and I suppose according to their conscience and vnderstanding That there is not like regarde to be had of Iudges opinions giuen in Parliament as ought to bee of their iudgements in their proper Courts and Seates of Iustice for in those places their Oath bindeth them but not so in the other 1. To this I answere The reuerence and woorthinesse of the men is such as is not to bee quarrelled and doubted of if there were no Oathe at all For if men of so great and eminent places feare not God and his iudgements euen out of a religious conscience which is Fraenum ante peccatum flagrum post peccatum it may be doubted that the externall ceremonie of adding a Booke will little auaile 2 Their Oath doth bind them as much in the Court of Parliament as in their proper Courts for that is the supreme Court of all and they are called thither by the Kings Writ not to sit as Tell-clockes or idle hearers but quòd personalitèr intersitis nobiscum ac cum caeteris de Consilio nostro super dictis negotijs tractaturi vestrumque Consilium impensuri And those Negotia be Ardua vrgentia negotia Regni c. And their Oath amongest other things is That they shall counsell the King truely in his businesse 3 This Exception may serue against the Iudges as well in Cases when they sit and giue iudgement as Iustices of Assises Nisi prius Oyer and Terminer and Gaole Deliuerie as in this Case of Parliament for there they haue none other Oath but their generall Oath 4 It becomes vs to esteeme of Iudges now as our forefathers esteemed them in times past for as they succeede them in Time and Place I thanke God and the King I haue neither cause to feare any for displeasure nor to flatter any for fauour wherefore I will neither be afraid nor abashed to speake what I thinke I say therefore that as our Iudges now succeed the former Iudges in Time and Place so they succeede them and are not inferior to them in Wisedome Learning Integritie and all other iudicious and religious Vertues Then let vs see what the wisedome of Parliaments in times past attributed to the Iudges opinions declared in Parliament Of which there bee many Examples but I will trouble you but with two or three I wil not remember Richard the seconds time of which some of our Chroniclers doe talke idely and vnderstand little
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
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
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
Reason this subtile but absurd and dangerous distinction ought not to be allowed This Bond of Allegeance whereof wee dispute is Vinculum fidei it bindeth the soule and conscience of euery subiect seuerally and respectiuely to be faithfull and obedient to the King and as a Soule or Conscience cannot bee framed by Policie so Faith and Allegeance cannot bee framed by Policie nor put into a politike bodie An oath must be sworne by a naturall bodie homage and fealtie must be done by a naturall bodie a politike body cannot doe it Now then since there is but one king and soueraigne to whome this faith and allegeance is due by all his subiects of England and Scotland can any humane policie diuide this one King and make him two kings Can cor Regis Angliae be in manu Domini and cor Regis Scotiae not so Can there bee warres betweene the King of England and the king of Scotland or betweene the kingdome of England and the kingdome of Scotland so long as there is but one king Can the king of England now send an army roial into Scotland against the king of Scotland Can there bee any Letters of Marke or Reprisall now graunted by the king of England against the subiects of the king of Scotland Can there bee any Protections now Quia profecturus in exercitu Iacobi Regis Angliae in Scotiam Nay shortly Can any man bee a true subiect to King Iames as King of England and a traitor or rebell to king Iames as king of Scotland Shall a foote breadth or an inch breadth of ground make a difference of birth-right of subiects borne vnder one king Nay where there are not any certen bounds or limites knowne at all but an imaginarie partition wall by a conceipted fiction in Lawe It is enough to propound these and such like Questions whereof many more might be remembred they carry a sufficient and plaine answeare in themselues Magis docet qui prudentèr interrogat As the King nor his heart cannot bee diuided for hee is one entire King ouer all his subiectes in which soeuer of his Kingdomes or Dominions they vvere borne so hee must not bee serued nor obeyed by halues hee must haue intire and perfect obedience of his subiects for Ligentia as Baron Heron saied well must haue foure qualities It must bee 1. Pura simplex 2. Integra solida 3. Vniuersalis non localis 4. Permanens continua illaesa Diuide a mans heart and you lose both parts of it and make no heart at all so hee that is not an intire subiect but halfe faced is no subiect at all and hee that is borne an intire and perfect subiect ought by Reason and Lawe to haue all the freedomes priuiledges and benefites pertaining to his Birth-right in all the Kinges Dominions and such are all the Post-nati in England and Scotland And the inconuenience of this imaginary locall allegeance hath beene so lately and so fully declared by the Lorde chiefe Iustice Coke as more needes not bee saied in it In some speciall Cases there sometime may bee a king of subiects without land in possession as Iustice Fenner noted in the gouernement which Moses had ouer the people of Israel in the wildernesse and as in the Case which sir Iohn Popham the late Lord chiefe Iustice did put in the Parliament If a King and his subiects bee driuen out of his kingdome by his enemies yet notwithstanding hee continueth still King ouer those subiects and they are still bound vnto him by their bond of allegeance wheresoeuer hee and they bee But there can not bee a King of land without subiects For that were but Imperium in belluas and Rex subditi sunt relatiua I saied there was an other generall rule for expounding of Lawes which I reserued to bee last spoken of I will now but touch it for I will not stand to examine by humane reasons whether Kings were before Lawes or Lawes before Kinges nor how Kings were first ordained nor whether the kings or the people did first make Lawes nor the seuerall constitutions and frames of states and common-weales nor what Plato or Aristotle haue written of this argmment They were men of singuler learning and wisedome but wee must consider the time and the countrie in which they liued and in all their great learning they lacked the true learning of the knowledge of God They were borne and liued in Greece and in popular States they were enemies or at least mislikers of all Monarchies yet one of them disdained not to bee a seruant or mercenarie hireling to a Monarch They accompted all the world barbarous but their owne Countrey of Greece their opinions therefore are no Cannons to giue Lawes to kinges and kingdomes no more than sir Thomas Moores Vtopia or such Pamphlets as wee haue at euerie Marte I beleeue him that saieth Per me Reges regnant Principes iusta decernunt And I make no doubt but that as God ordained kings and hath giuen Lawes to kings themselues so hee hath authorized and giuen power to Kings to giue Lawes to their subiects and so kings did first make lawes and then ruled by their lawes and altered and changed their Lawes from time to time as they sawe occasion for the good of themselues and their subiects And this power they haue from God almighty For as Saint Augustine saieth In hoc Reges Deo seruiunt sicut eis Diuinitùs praecipitur in quantum sunt Reges si in suo Regno bona iubeant mala prohibeant non solum quae pertinent ad humanam societatem verumetiam quae ad diuinam religionem And I hould Thomas Aquinas his opinion to be good Rex solutus à Legibus quòad vim coactiuam subditus est legibus quòad vim directiuam propria voluntate And for this opinion there is a stronger authoritie euen from God himselfe in Ecclesiastes ca. 8. ver 2. Ego os Regis obseruo Et praecepta iuramenti Dei ver 4. Sermo illius potestate plenus est Nec dicere ei quisquam potest quare ita facis Now beeing led a little from the Common Lawe to the Ciuile Lawe I finde in the ciuile Lawe a direct Text warranting that generall Rule which I reserued to this place which is this Inter aequitatem iusque interpositam interpretationem nobis solis licet oportet inspicere And another like Text in these words Sententia Principis Ius dubium declarans Ius facit quòad omnes And some graue and notable Writers in the ciuile Lawe say Rex est lex animata Some say Rex est lex loquens Some others say Interpretantur legem consuetudo Princeps Another saieth Rex solus iudicat de causa à iure non definita And as I may not forget Saint Augustines words which are these Generale pactum est societatis humanae regibus suis obtemperare So I may not wrong the Iudges of the common Lawe of
vntill the Lawes and Customes of both Kingdomes bee made one and the same then I aske how and when shall that be done And it may bee that the Constitutions of the Countries bee such as there can hardely in all things bee such an absolute and perfect reconciling or vniting of Lawes as is fancied Is it yet so betweene England and VVales or betweene Kent and Cornewall or betweene many other parts of this Kingdome I say no and I speake it confidently and truely it is not so nor well can be so Therefore let England and Scotland be in like degree now as England and VVales were for many hundred yeeres and in many things are yet still and yet let Vnion and Loue increase amongst vs euen in secula seculorum Let vs not be such as Saint Bernard noteth Amant quod non decet timent quod non oportet dolent vanè gaudent vaniùs And let vs no longer make question whether seuerall Lawes and Customes bee markes of seperation and dis-vnion or of seuerall Allegeances for certainely they are not One other Reason remaines against these Post-nati and that is out of a prouident foresight or as it were a prophesying What if a seperation of these Kingdomes fall hereafter Of this I can say but Absit omen It is Potentia remota as Iustice VVilliams saied and I trust in God Remotissima And I will euer pray to God that it neuer fall so vntill the King of all Kinges resume all Scepters and Kingdomes into his owne hands And let vs take heede of sinnes of Ingratitude and Disobedience and remember that Adam and Eue were punished Non propter pomum sed propter vetitum And for such Prophets let the Prophet Ezechiel ca. 13. answer them Vae Prophaetis insipientibus qui sequuntur spiritum suum nihil vident And the Prophet Esay speaketh to all such with an other Vae Vae illis qui dispergunt Now then as M. Solicitor beganne with seeking out the truth so I will conclude with Esdras words Magna est Veritas praeualet And with this further Eatenus rationandum donec veritas inueniatur Cùm inuenta est veritas figendum ibi Iudicium Et in victoria veritatis soli veritatis inimici pereunt The Conclusion THus I haue heere deliuered my concurrence in opinion with my Lordes the Iudges and the reasons that induce and satisfie my conscience That Ro. Caluine and all the Post-nati in Scotland are in Reason and by the Common Lawe of England naturall borne subiects within the allegeance of the King of England and inhabled to purchase and haue free-hould and inheritance of lands in England and to bring reall actions for the same in England For if they haue not this benefit by this blessed and happie Vnion then are they in no better case in England than the king of Spaines subiects borne in Spaine c. And so by this Vnion they haue gotten nothing What they haue lost Iustice Yeluerton did well note And therefore I must giue Iudgement in the Chancerie That the Defendants there ought to make direct answer to Ro. Caluines Bill for the Lands and Euidences for which he complaines T. Ellesmere Canc. The Case The proceeding in the generall Case of Post-nati Stat. 1. Iac. 19. Mart. 1603 The Proclamation 2. Iacobi 20. Octobr. 1604. The Commissioners authorized by Parliament did begin 20. Octob. and did continue vntill 6. Decemb. 2. Iacobi The resolution of the Cōmissioners The Iudges opinion in Parliament The force and strength of the Kings proclamations Fitzh Dower 17◠Fitzherbert Nat. Br. 32. Anno 6. Ed. 1. Explan stat Gloucestr A Proclamation 15. Ed. 3. How the Iudges opinion deliuered in parliament ought to be regarded Obiect Respons Writs of Errour sued in parliament The processe and forme of proceeding in the Case of R. C. now in question How this Case is to be iudged and by what Law What is the common Law of England whether it be Ius scriptum Questionists The ground of the Common Law The common Law is not originally Lex scripta How the common Law of England may be knowne Obiect Respons Maximes and Principles Responsa prudentum Lambard in explicatione verbi Hyde Anno 36. H. 6. In nouo casu nouum remedium St. W. 2. ca. 24. Anno 13. Ed. 1. Vbi non est directa Lex c. Rex solus iudicat c. A request to the professors of the Ciuile Lawe Blacwood ca. 10 Recurrend ad Rationem c. Quod non lego non credo Exposition of Statutes Exposition of Lawes Lawes obsolete Lawes changed Construction of words Iudges consulted with the priuie Counsell 39. E. 3 li. As p. 1. M. 19. Ed. 3. Iudgemēt 174 M. 39. Ed. 3. 35 M. 40. Ed. 3. 34 Iudges to be directed by reason and discretion Obiect That the common Lawe is vncerten Respons M. 2. H. 4. 7. Note foure formes of interpretation of Lawes Historica Fergus Inas Etymologica Ligeantia sensu currenti est vinculum fidei c. Analogica Practica sic ad similia Ireland Obiect 1. Respons France Normandy and Aquitany Obiect 2. Respons The Crowne and great seale of England Obiect 3. Respons Seueral Laws Obiect 4. Respons Lambard in explicatione verbi Centuria Defect of Triall Recurrend ad Rationem Hopperus de vera Iuris prudentia pag. 118 Hopperus ibid. pag. 119. Obiections P. 23. Elizab. Dyer 376. Stat. 14. Ed. 3. That the Realme of England shall not be subiect to France A dangerous distinction betweene the King and the Crowne Absurdities in this dangerous distinctiō Rex solus iudicat c. Prou. ca. 8. Cod. li. 1. Tit. 14 le 1. Ibidem le 12. Obiect of Inconueniencie and frugalitie Obiect vpon diffidence Ante-nati A Question how long this suspition and dis-vnion shall continue Bernard Obiection vpon Diuination Respons
relie vpon Doctours opinions deliuered in their Prelections and Treatises And when they finde them varying and differing one from another as sometimes they doe then they preferre that which is Communior opinio And so in good reason they may For Pluralitas idem sentientium semper superat quia faciliùs inuenitur quod à pluribus quaeritur But to conclude this point I would aske of these Nouelists what they would haue done in Sibill Belknappes case if they had liued in Henry the fourths time Sir Robert Belknappe that reuerend and learned Iudge of whome sundrie noble and worthy persons and some now of great eminent place in England are descended was banished out of the Realme Relegatus in vasconiam not for any desert or offence of his but by the might of his potent enemies and malice of the time The Lady his wife continued in England she was wronged she brought a Writ in her owne Name alone not naming her Husband Exception was taken against it because her husband was liuing and it was adiudged good and shee recouered and the Iudge Markeham said Ecce modo mirū quòd foemina fert breue regis Non nominando virum coniunctū robore legis Here was a rare and a new case yet it was not deferred vntill a Parliament it was iudged and her wrong was righted by the common Law of England and that Ex arbitrio Iudicum ex responsis prudentum and yet it was counted Mirum with an Ecce Now to apply this to R. Caluines case his case is rare and new so was that There is no direct Law for him in precise and expresse tearmes There was neuer iudgement before touching any borne in Scotland since King Iames beganne his happie raigne in England Hee is the first that is brought in question So there was no direct Lawe for Sibill Belknap to sue in her owne name without her husband who was then liuing nay rather there was direct Lawe against it yet by the Lawe of England shee had iudgement to recouer with an Ecce modo mirum So by the lawe of England iudgement ought to bee giuen for Robert Caluine but not with an Ecce modo mirum but vpon strong Arguments deduced à similibus and ex dictamine rationis But before I come to those arguments I wil vse a few words more touching some Rules which I haue read for the interpretation of lawes There is a graue and learned Writer in the Ciuile Lawe that setteth downe foure waies formes of interpretation of lawes that is first Interpretatio historica secondly Etymologica thirdly Analogica fourthly Practica In the Argument of this Case all these formes haue beene vsed and largely handled and the two first be those that seeme but light to me and therefore in mine opinion haue beene too much stoode vpon and ouer-weighed For the Historicall interpretation it is alwaies darke obscure and vncerten of what kingdome countrey or place soeuer you speake I doe alwaies and onely except the diuine Histories written in the Bible Liuy saith In tanta rerum vetustate multi temporis errores implicantur Saint Augustine speaking of the supposed Bookes of Henoch saieth Libri isti ob nimiam antiquitatem reijciuntur Wherefore for this parte let this suffice whether in the beginning there were one or seuerall Kingdomes in great Britaine or one or seuerall Monarches and Kings of these two great famous Kingdomes in great Britaine The King our Soueraigne is lawfully and lineally descended of the first great Monarchs and Kings of both the Kingdomes and that by so long a continued line of lawfull discent as therein he exceedeth all the Kings that the world now knoweth and therefore to inquire further of Historicall knowledge in this Case I hould it needelesse For the Etymologicall interpretation there hath beene very much saied euen as much as Wit and Art could deuise There haue beene alleadged manie Definitions Descriptions Distinctions Differences Diuisions Subdiuisions Allusion of wordes Extension of wordes Construction of words and nothing left vnsearched to finde what is Ligeantia Allegiantia Fides Obedientia Subiectio Subditi And who bee Aborigines Indigenae Alienigenae Aduenticij Denizati c. And much of this hath beene drawne out of some Writers of the Ciuile Lawe amongst whome the Etymologicall interpretation of the words Ligeus and Ligeantia is as vncerten and doubtfull as it is with our common Lawyers And so vpon any of these there cannot be any certen Rule found for Iudges to iudge by especially in new and rare Cases As for Definition Vlpian teacheth vs Omnis definitio in iure Ciuili est periculosa and it is said that Definitio est duplex Propria quae constat ex genere differentia Impropria quae descriptio vocatur est quaelibet rei designatio So Definition and Description are often confounded and both vncerten Then since both be vncerten and dangerous I will leaue both and seeke a more certen Rule to iudge by As for Etymologie of words I agree with him which saieth It is Leuis fallax plerumque ridicula It is a Pedant Grammarians fault Marcus Varro and others haue beene noted for it And if you examine the Examples which some doe bring you will perceiue how ridiculous and vaine it is So this Rule will not serue to finde out that which wee seeke for These bee but Tendiculae verborum Aucupationes syllabarum as one calleth them It may haue some vse and serue a turne in Schooles but it is too light for iudgements in Lawe and for the seates of Iustice Aquinas setteth downe a more certen Rule In vocibus videndum non tà m à quo quà m ad quid sumantur And words should be taken Sensu currenti for Vse Custome is the best Expositor both of Lawes and Wordes Quem penes arbitrium ius norma loquendi Wherefore of the many and diuerse distinctions diuisions and subdiuisions that haue beene made in this Case I will say no more but Confusum est quicquid in puluerem sectum est and will conclude with Bishop Iuel A man may wander and misse his way in Mists of Distinctions Then leauing these Historicall and Etymologicall interpretations and these curious and subtile Distinctions and Diuisions I say Ligeantia or Allegiantia vnderstood Sensu currenti is vinculum fidei obedientiae as Iustice Daniel said well And hee that is borne in any of the Kings Dominions and vnder the Kings obedience is the Kings liege subiect and borne Ad fidem Regis for that is the proper and ancient word which the lawe of England hath vsed Ad fidem Regis Angliae Ad fidem Regis Franciae and therefore hee cannot bee a Stranger or Alien to the King or in any of his Kingdomes and by consequence is inhabled to haue lands in England and to sue and be sued in any Reall action for the same And Ligeantia hath