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
where power and might of some potent persons oppressed iustice and faithfull Iudges for expounding the Law soundly and truely The first that I will remember is this In the Parliament 28. H. 6. 16. Ianuarij the Commons made suite That W. de la Poole Duke of Suffolke should bee committed to prison for many treasons and other hainous crimes committed by him The Lordes in Parliament were in doubt what answer to giue they demaunded the opinion of the Iudges Their opinion was That hee ought not to bee committed And their reason was for that the Commons did not charge him with anie particular offence but with generall slaunders and reports And therefore because the Specialties were not shewed hee was not to bee committed This opinion was allowed And thereupon 28. Ianuarij the Commons exhibited certaine speciall Articles against him viz. That hee conspired with the French King to inuade the Realme c. And thereupon hee was committed to the Tower 2 In the Parliament Anno 31. H. 6. in the vacation the Parliament being continued by prorogation Thomas Thorpe the Speaker was condemned in a thousand pounds dammages in an action of Trespasse brought against him by the Duke of Yorke and was committed to prison in Execution for the same After when the Parliament was re-assembled the Commons made suite to the King and the Lords to haue Thorpe the Speaker deliuered for the good exploite of the Parliament whereupon the Duke of Yorkes Counsell declared the whole Case at large The Lords demaunded the opinion of the Iudges whether in that Case Thorpe ought to bee deliuered out of prison by Priuiledge of Parliament The Iudges made this aunswere That they ought not to determine the Priuiledge of that high Court of Parliament But for the declaration of proceeding in lower Coutts in cases where Writtes of Supersedeas for the priuiledge of the Parliament be brought vnto them They aunswered That if any person that is a Member of the Parliament bee arrested in such cases as bee not for treason or felonie or for suretie of Peace or condemnation had before the Parliament it is vsed that such persons be released and may make Atturney so as they may haue their freedome and libertie freely to intend the Parliament Hereupon it was concluded That Thorpe should still remaine in prison according to the Lawe Notwithstanding the priuiledge of Parliament and that hee was the â—peaker Which resolution was declared to the Commons by Walter Moyle one of the Kings Serieants at Lawe And then the Commons were commaunded in the Kings name by the Bishop of Lincolne in the absence of the Archbishop of Canterbury then Chauncellor to choose another Speaker 3 In the Parliament An. 7. H. 8. a Question was moued Whether spirituall persons might bee conuented before temporall Iudges for criminall causes There sir Iohn Fineux and the other Iudges deliuered their opinion that they might and ought to bee so And their opinion was allowed and maintained by the King and the Lords And D. Standish who before had houlden the same opinion was deliuered from the Bishops And it is worth the noting what wordes passed in that Case betweene the Archbishop of Canterbury and that worthy Iudge Fineux 4 If a Writ of Errour bee brought in Parliament vpon a Iudgement giuen in the Kings Bench the Lords of the higher House alone without the Commons are to examine the Errours But that is by the aduise and Counsell of the Iudges who are to informe them what the Lawe is and so to direct them in their iudgement And if the iudgement bee reuersed then commaundement is to bee giuen to the Lord Chancellour to doe Execution accordingly And so it was in Anno 17. R. 2. in a Writte of Errour brought in Parliament by the Deane and Chapiter of Lichfield against the Prior and Couent of New-port-Panell as appeareth by the Record But if the iudgement bee affirmed then the Court of the Kings Bench are to proceede to execution of the Iudgement as it appeareth in Flowerdewes Case P. 1. H. 7. fol. 19. But it is to bee noted that in all such Writtes of Errour the Lords are to proceede according to the Lawe and for their iudgement therein they are informed and guided by the Iudges and doe not follow their owne opinions or discretions otherwise This extrauagant Discourse touching Proclamations and Iudges opinions deliuered in Parliament and how they ought to bee regarded I haue thought materiall and necessarie both in respect of the time wherein wee liue and the Matter which we haue in hand And these bee thinges which I thinke haue beene too lightly passed ouer But if you condemne it as impertinent I must then confesse I haue presumed too much vpon your patience I pray you beare with mee it is but my labour lost and a little time mis-spent if it seeme so vnto you You are wont to pardon greater faultes Call it either a Passe-time or Waste-time as pleaseth you Now to returne to the Case we haue in hand The generall Question hauing had this passage by Proclamation by Commission and by debating in Parliament remaineth yet without coÌ„clusion or iudgement And as euerie man abounds in his owne sence so euery one is left to his owne opinion Specially those that were not satisfied with the graue Resolution of the Iudges in Parliament which although some may tearme and accompt as bare opinions I must alwayes valew and esteeme as a reall and absolute iudgement Now I say this generall Question is reduced to two particular Cases and is iudicially depending in two the highest Courts of Iustice in this Realme and that is by one Complainant against seuerall Defendants for the freehoulde and inheritance of seuerall parcells of Land and as M. Solicitor said well is a Case not fained nor surmised but a true Case betweene true parties And being Quaestio iuris non facti is by both these Courts adiourned hither to bee decided and determined by all the Iudges of England as the rarenesse of the Case and the weight and importaunce of it both for the present and the future doth require And the Case being of this nature and qualitie it is not amisse to obserue the proceeding in it for it is woorth the obseruing and not to bee forgotten The Defendants counsell men of great learning and in their profession inferiour to none of their qualitie and degree men conuersant and well exercised in the Question and such as in the great conference in parliament most of them were specially selected choseÌ„ for so they wel deserued as most sufficient able and fit as well for Learning and Knowledge as for all other giftes of Witte and Nature to handle so great and rare a Question And although it hath pleased them of their good discretion to vse the paines but of a few in the debating and arguing of the Case at the Barre yet no doubt that was done vpon mature deliberation and conference with all the residue
England so much as to suffer an imputation to bee cast vpon them That they or the Common lawe doe not attribute as great power and authoritie to their Soueraignes the kinges of England as the Romane lawes did to their Emperours For Bracton the chiefe Iustice in the time of king Henry the third hath these direct wordes De Chartis Regijs factis regum non debent nec possunt Iusticiarij nec priuatae personae disputare Nec etiam si in illa dubitatio oriatur possunt eam interpretari Et in dubijs obscuris vel si aliqua dictio duos contineat intellectus domini Regis erit expectanda interpretatio voluntas Cum eius sit interpretari cuius est condere And Britton in the time of king Ed. 1. writeth as much in effect So as now if this question seem difficult that neither direct law nor Examples Precedents nor application of like cases nor discourse of reason nor the graue opinion of the learned and reuerend Iudges can resolue it here is a true and certen Rule how both by the Ciuile Lawe and the ancient Common lawe of England it may and ought to be decided That is by sentence of the most religious learned and iudicious king that euer this kingdome or Iland had But this Case is so cleare as this needeth not at all And in this I would not be mis-vnderstoode as though I spake of making of new Lawes or of altering the Lawes now standing I meane not so but I speake only of interpretation of the Lawe in new questions and doubts as now in this present case neither doe I meane hereby to derogate any thing from the high court of Parliament farre be it from my thought It is the great Councell of the kingdome wherein euery subiect hath interest And to speake of the constitution or forme of it or how or when it was first begunne is for busie Questionists It ought to bee obeyed and reuerenced but not disputed and it is at this time impertinent to this Question But certen it is it hath beene the wisedome of the Kinges of this Realme to reserue in themselues that supreame power to call their Nobles Clergie commons together when they sawe great and vrgent Causes and by that great Councell to make Edicts and Statutes for the weale of their people and safetie of the Kingdome and State as in Anno 10. Edw. 3. the Assembly at Nottingham for the great wars in France And in Anno 20. H. 3. Prouisiones Merton which I remembred before There haue beene made some Obiections of inconueniencie as for bearing of Scot and Lot and such other charges and some out of frugalitie that the king shall lose his profit of making Denizens and such like These are so light as I leaue them to the winde They are neither fit for Parliament nor Councell nor Court Another argument and reason against the Post-nati hath beene lately made out of diffidence and mistrust that they will come into England sans number and so as it were to surcharge our Common and that this may be in secula seculorum I know not well what this meanes The Nation is ancient noble and famous they haue many honourable and woorthie Noble men and Gentlemen and many wise and worthie men of all degrees and qualities they haue lands and faire possessions in Scotland Is it therefore to bee supposed or can it in reason bee imagined that such multitude sans number will leaue their natiue soile and all transport themselues hither Hath the Irish done so Or those of Wales or of the Isles of Man Gernesey and Iersey Whie should we then suspect it now more for Scotland Nay doe you suppose that the Kinge of England will euer suffer so great a parte of his Dominions and so great and famous a Kingdome as Scotland is to be dispeopled It is a doubt imagined without any foundation or ground of reason But if it were to bee doubted the twelue Iudges that haue concurred in opinion and that late worthy Iudge Popham had as great cause to feare it as any others They are wise they are learned they haue faire possessions and good estates They haue posteritie to care for as others haue Yet admit it bee a matter worth the doubting of what is that to the yoong Post-nati that are not like in many yeares to come hither in such number Shall we vpon this causlesse feare depriue them of their lawfull Birth-right Haue wee seene in these fiue yeeres past anie moe of them than this one alone that haue gotten any Lands in England And this little that he hath is so small and poore a portion that his purchase is not great and therefore no iust cause of offence to any Nay if you looke vpon the Ante-nati you shall find no such confluence hither but some few and very few in respect of that great and populous kingdome that haue done long and worthie seruice to his Maiestie haue and still doe attend him which I trust no man mislikes For there can bee none so simple or childish if they haue but common sense as to thinke that his Maiesty should haue come hither alone amongst vs and haue left behinde him in Scotland and as it were caste off all his ould and worthie Seruants And if these Noble and worthie Gentlemen of Scotland I meane the Ante-nati be louingly and brotherly entertained amongst vs with mutuall loue beneuolence that so we may coalescere be vnited together by marriage and otherwise as in some particular cases wee see it already happily begunne no doubt God will blesse this Vnion of both these Nations and make them and the King and great Britaine to be famous through the world and feared redoubted of our enemies and of all that wish vs ill For Vis vnita fortior concordia multos facit vnum But what may follow vpon such arguments of diffidence and suspition which seeme but to hinder Vnion and to breede discord and dissention I will not speake Let euery wise man consider it well For Humana consilia castigantur vbi coelestibus se praeferunt And remember Saint Paules caution Si inuicem mordetis videte ne ab inuicem consumamini And for the resemblance that hath bin made of this Case of Post-nati but indeed for the Vnion of both Kingdomes with the houswifes cutting of her cloth by a threede I will say but this That if shee cut her peece of cloth in length aswell as in breadth all the threeds will bee cutte and the cloth marred And this cutting in this our Case is to cutte all aswell in length as in breadth euen through all the Kinges Dominions and so will rent asunder the whole frame of the Vnion and cut in peeces all the threeds of Allegeance But now I wil aske this question How long shall this suspition and doubt continue Shall there bee a dis-vnion for euer If it bee saied No but