sometimes a more large Extension For hee that is an Alien borne out of the kings Dominions vnder the obedience of another king if hee dwell in England and be protected by the king and his Lawes hee oweth to the king the duetie of Allegeance and so hee is Ligatus Regi and Ligeus Regis and if hee commit treason the Indictment shall bee contra ligeantiae suae debitum as it was in Shirley the French-mans Case yet is hee not the Kings subiect for hee was not borne Ad fidem Regis But this is not that Ligeance which wee must finde For in a true and lawfull subiect there must bee Subiectio fides obedientia and those cannot bee seuered no more than true Faith and Charitie in a true Christian And hee that hath these three à natiuitate is Ligeus Regis and can not bee a Stranger or Alien to the King or in his Kingdomes And that it is so may be proued by the Rule of the other two interpretations of Lawe That is Analogica Practica King Iames hath now the Kingdomes of England Scotland and Ireland and the Isles of Gernsey and Iersey by discent all these bee his Dominions and vnder his subiection and obedience King Henry the second had England and Normandy by discent from his mother Mawd the Empresse and Aniow and Maine by discent from his father Geffery Plantagenet and Ireland by conquest Henry the third had England and Ireland by discent from his Grand-father Henry the second and Aquitany by discent from his Grand-Mother Queene Elenor wife to King Henry the second and daughter to the duke of Aquitany Edward the first had all the same by discent and parte of Scotland by Conquest Edward the second and Edward the third had all the same by discent also and besides Edward the third claimed all France by discent from his mother Queene Isabell and had the most part of it in possession and so had Henry the fift and Henry the sixt also Now if in these kings times subiectes borne in those Countries being then vnder their obedience vvere no Aliens but capable of landes in England And if at this time subiects borne in Irelād or Gernsey and Iersey be no Aliens but capable of lands in England then by an Analogicall interpretation why should not subiectes borne in Scotland be at this time in like degree For in proportion and in likenesse and conueniencie there can bee no difference at all But whether the subiects borne in those Countries in the time of those kings vvere then capable of lands in England as naturall subiects or were deemed Aliens is the Question and therein Interpretatio practica is to bee considered and so the Case is brought to be examined per similia And in Diuinitie Praxis sanctorum est interpres praeceptorum Now then the Question is Whether the kings Subiects of England and Scotland that be Post-nati may be resembled to the Kings subiects of Ireland and the Isles of Gernesey c. as now they bee and to the subiectes of Normandie Aniow and Gascoyne and parte of Scotland in former times when the same were the Dominions and vnder the obedience of the King of England for I speake alwaies and would be vnderstoode of kingdomes and dominions in possession and vnder obedience and not of those whereunto the King hath right but hath no possession or obedience I houlde that in all points materiall concerning this Question they are alike though not in all things for then it were Idem and not Simile and this can not bee better vnderstoode than by examining the Obiections to the contrary which in substance may bee reduced to foure in number First for Ireland it was gotten by Conquest and the Conquerour may impose what Lawes hee will vpon them But it is otherwise of kingdomes comming by discent This is a conceipted difference and lacks the foundation of Reason and hath not the true parts of a difference for those that are borue in Ireland and those that are borne in Scotland are all alike for their birth within the Kings Dominions and are borne vnder the like subiection and obedience to the King and haue the like bond Nay euen the same bond of Allegiance That is they are borne Ad fidem Regis Besides where it is said The Conquerour may impose what Lawes hee will Then consider how it was in the Interim before King Iohn gaue lawes to Ireland Nay which is more I aske whether the Conquerour of Ireland can giue new lawes to England and make Irish men to bee as naturall borne subiectes in England if their birth-right doe not giue it them which before the Conquest they were not for that is properly the Question But if any difference bee the Case of descent is the stronger For as Iustice Yeluerton saide that is by an vndoubted Title made by lawe the other by a doubtfull Title wonne by the Sword But leaue Ireland gotten by Conquest vvhat say you to the great kingdome of France which Edward the third had first in right by lawfull descent and after in possession by triumphant Conquest and vvhich Henry the sixt held after in possession by descent Was euer doubt made Whether the subiects borne there so long as it vvas in subiection and obedience to the King vvere capable of landes in England I vvill now turne the Case and aske an other Question If King Iames our Soueraigne had first beene King of England by lavvfull descent as novv hee is and after Scotland had descended vnto him should not the Subiects of Scotland I speake still of Post-nati haue beene iudged as Naturall subiects in England as those of France were in Edward the thirds time Then he hauing now both kingdomes by lineall true and lavvfull descent it can make no difference touching the capacitie of Subiects vvhich kingdome descended to him first and vvhich second but both are to him alike And it is cleere Post-nati in England are now capable and inheritable in Scotland though some haue made a causelesse and needelesse doubt of it and so on the other side those of Scotland are in England It is said Normandie and Aquitanie were no monarchies or kingdomes but dukedomes or seigniories in France and holden of the Crowne of France and therefore not to bee resembled to Scotland which is an ancient and absolute kingdome This Obiection reacheth not to the reason of our Question For bee they kingdomes bee they Seigniories yet the subiectes borne there were borne out of the kingdome of England and so in that respect Aliens But in that they were borne within the kings dominions and vnder his subiection and obedience they were no Aliens but liege and naturall borne subiectes to the King and so capable and inheritable in England I say besides the Dukes of Normandie and Aquitany were absolute Princes and had soueraigne power in those countries although they did not beare the name of kings as at
this time the Duke of Sauoy the duke of Florence the Duke and State of Venice and of late the great Duke of Russia the Duke of Burgundy the Archduke of Austria c. So the difference in Stile and Name makes no difference in Soueraignty For king Henry the eight had as absolute soueraignetie in Ireland vvhen his Stile was Lord of Ireland as when hee changed his Stile and was called King of Ireland And to say That the tenure of the Crowne of Fraunce should giue any priuiledge to them of Normandie and Aquitanie in England is a strange conceipt It might rather bee obiected against them But as I saied before they were borne within the kings Dominions and vnder his obeisance and therefore as subiects borne in England And if men may beleeue some auncient Stories Aquitany and Normandy had sometimes kings and were kingdoms of themselues and not depending nor subiect to the Crowne of France and the kingdome of France was then a small portion of Gallia and but a little one in comparison of that which it is at this day And some say that there were foure and tvventie kings in Gaule But as the kings of France increased in povver and strength they subdued their neighbor-Princes and so that kingdome grew to that greatnesse that novv it is at euen as the Heptarchie in England was dissolued and made an intire kingdome when one of the kings mightier than the rest subdued his neighbors It is saied further that Normandy and Aquitany vvere subiects to the Crovvne of England and to the great Seale of England but so is not Scotland Ergo c. This standeth not wel with that which was obiected before That they were but Seigniories houlden of the Crowne of Fraunce And it is true that before Edward the thirds time those Kings of England that held those great Seigniories did acknowledge that they held the same of the Crowne of Fraunce But these Obiections be light and not worth the time that hath beene spent about them The Soueraignetie is in the person of the King the Crowne is but an Ensigne of Soueraignety the Inuesture and Coronation are but Ceremonies of honour and maiestie the King is an absolute and perfect king before he be crowned and without those Ceremonies The Seale is to be altered and changed at the will and pleasure of the King hee may haue one hee may haue many as pleaseth him The King did vse Queene Elizabeths Seale for diuerse moneths after his comming into England Queene Elizabeth vsed king Philips queene Maries Seale for a time and queene Marie vsed king Edwards seale And all that vvas so done was well and lawfully done Many things were done by auncient kings of England before the Conquest by their signature and signe manuell without anie seale at all and some such since the Conquest also as Graunts made by Maude the Empresse to Albericke de Vere and others The King may by his great seale commaund all his subiectes that bee vnder his obedience wheresoeuer they bee in the world So he did in Normandie so he did in Aquitany so hee did in that part of Scotland that he had in possession And in 24. Edw. 1. his Iudges kept ordinary Courts of iustice there and I haue seene the Records of Placita Exercitus Regis apud Edinburgh Apud Roxburgh Apud S. Iohns-towne c. in Scotia So hee may commaund his subiects if they be in France Spaine Rome or Turkie or the Indies And for seuerall seales the Earle of Chester had a speciall seale for that his auncient County Palatine The Duke of Lancaster had a speciall seale for his new Countie Palatine And after when these Counties came to the kinges possession the Kinges continued seuerall seales in them both for the administration of iustice but as subordinate to the great Seale of England And I make little doubt but if the King shall now commaund any of his subiects of Scotland vnder his great seale of England they will as they ought duetifully obey him As in king Edward the 1. Edward the 2. and Edward the 3. times they commanded many of the Lordes of that parte of Scotland which then was vnder their obedience I finde that in 13. Edw. 2. quarto die Iunij the King Constituit Adomarū de Valentia comitem Pēbrochiae Custodem Regni sui ac locum suum tenentē quamdiu Rex in partibus transmarinis morā fecerit And the next day viz. Die Iouis quinto die Iunij Rex ordinauit quod magnum Sigillum suum remaneret clausum in liquo loco securo dum Rex esset in partibus transmarinis Et ordinauit quoddam aliud paruum Sigillum interim pro regimine Regni ad breuia c. Consignanda sub Teste Adomari de Valentia Comitis Pembroch Nota heere was a petty Seale pro regimine Regni wherein are comprised Commissions for Iustice Mandatoria ad breuia consignanda which is for Remedialia as they are termed It is saide that Scotland hath Lawes that are proper for that kingdome that they are not subiect to the lawes of England and so è contra And lastly it was saide that in England euery person was within the iurisdiction of some Leete and at the age of twelue yeares euery one is to bee sworne in the Leete to bee Foiall and Loiall to the King of England That is to the Lawes of England for so hee vnderstoode Loiall But Post-nati in Scotland can not be so and that they haue an other forme of oathe in Scotland Ergo c. For this last parte of the Oathe in the Leete the Lord chiefe Baron did cleere it so plainely as more needes not to be said This is Legalis ligeantia It is not Alta ligeantia by birth which is that which we haue now in question The Historicall discourse that hath bin made of Leetes of Law dayes of Decenna Decennarij of the Tenne-mens Tale and the Oathe of all Male children of twelue yeeres c. taken at the Leete is no newes indeede it is very olde Master Lambard hath it all and more too at large in Explicatione verborum in the word Centuria It vvas before the Conquest But it maketh no hing to this naturall Allegeance and subiection of birth it is not Alta ligeantia by birth-right it is but Legalis ligeantia by Policie And Fitzherbert calleth it Swearing to the Lawe And if that were the onely Bond and Marke of Allegeance many are out of it and so at libertie As children vnder twelue yeeres yet sometimes they may commit treason and felony where Malitia supplet aetatem So women of all sortes yet they may bee shrewd and daungerous traitours and if they bee women nobly borne or widowes that were wiues to noble men they shall be tried per pares Also Noble men of all sortes who are neither bound to attend the Leete nor to take that Oathe as appeereth by Britton cap.
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
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