justifie the killing of another to save his Masters life if he cannot otherwise escape But if one being drunk commits a crime though he hath not properly and immediately the free exercise of his will yet the Law reputes him voluntarius Daemon and he is not at all the less excusable by our Law 1 Inst 247. 4 li. Beverleys Case and by the Philosophers Rule such a one doth ignorans not per ignorantiam agere and is therein so far from being excused that he is therefore to be doubly punished Now to assume that whereby the Earls Councel would excuse him viz. His Oath and Commission renders him the less excusable because both are strong Arguments of a free and full consent for who can imagine them of Scotland to be such mean Statists as to think that Oath equally obliging which was compulsive to the same if freely taken or that that General should be trusted with a Commission over all their Forces both by Sea and Land as his Commission runs whose heart as well as hand had not imbraced it and truly they that have heard his Letters read to Sir Marmaduke Langdale wherein he prays for the increase of the distractions at London and for his friends at Colchester would not judge him an unwilling instrument but one exceeding rather then falling short in executing his Commission Lastly Necessity of obedience may excuse in privatis but never in publicis If a Feme covert together with her husband commit an act which in another would amount to felony yet in her it shall not because sub potestate viri 27 Ass p. 40. but otherwise the Law is in point of Treason so is the judgement of my Lord Verulam Nes valet privilegium saith he contra rem-publicam And as to the case of an Ambassador urged on the other side and in particular of the Bishop of Ross in the days of Queen Elizabeth I answer first The priviledges of those who are entertained as Ambassadors are very great and not to be made presidents or assum'd by any other whence Proregis Dedecus redundat in regem and therefore before 25 Ed. 3. it was Treason to kil an Ambassador 22 Ass p. 48. and from hence might arise that priviledge shewed to the Bishop of Ross Secondly It appears to be rather an Act of Grace then of Justice that that Bishop was freed because he was set at liberty after a long imprisonment which if not lyable to the censure of the Law he should not at all in Justice have endured Also by the judgement of my Lord Bacon cited by the learned Doctor on the other side in point of conspiracy against the State even an Ambassador is not priviledged yet of this Bishop learned Cambden saith in his Eliz. Fuit liberatus que rebellioni clam faces subjecerat all which were Arguments of Grace and therefore that case will be no president for this wherein also conspiracies and correspondencies with many of this Nation have been proved and are otherwise notorious And for that inevitable labyrinth out of which the Earl of Cambridge cannot extricate himself but that whether obey or not obey he is under a mischief he may for that thank himself volenti non fit injuria this is like the plague of an Erroneous Conscience which whether obeyed or not proves a tormentor to its subject Secondly The second part of the Earls Plea is That he is no Englishman notwithstanding the Naturalization of his Father which in effect is as much as to say and so it hath been insisted on He is by birth a Scots man and by consequence an Alien to and not tryable as a Traytor by the Laws of England Concerning the handling of which question it being that whereupon the validity of the other two doth in my judgement principally depend I shall first answer the material Objections which I conceive made by the Councel on the other side before I offer any thing positively to assert the invalidity of this part of the Plea Obj. It hath been said The proof is not clear for the Earl of Cambridge his being a Postnatus viz. One born after King James his Access to the Crown of England and that being but a non liquet in favorem vitae the most favorable construction is to be taken for the Prisoner First Answ I deny that the proof amounts to no more in this particular then a non liquet for there is one positive witness that speaks directly to the Earls birth after King James his coming to the Crown of England another speaks to the Earls own confession of being about two or three and forty years of age which speaks him born since that time and a third speaks to the common report of his being born since and if the proof were but semiplena probatia yet as Bracton saith That amounts to a presumption and saith he Presumptioni stabitur donec probetur in contrerium especially when the Earl himself who should have proved the contrary for the making good his Plea hath offered nothing against it and being asked never absolutely denyed it Secondly I do agree that what the Jewish Expositors observe in the Exposition of their Laws which sounded in favor is to be observed in our Law in those things which we usually say the Law favors viz. Favores sunt ampliandi and that strict Expositions are onely for penal Rules according to that of the Civilians Constitutio penalis non excedit casum yet we shall finde that where the penalty of a penal Law is against one or few persons and the benefit redounds to the generality in that case even a penal Statute shall be taken largely against the Offendor so the Rule is put Plow Com. 36. Plats Case where it is resolved though the Statute of 1 R. 2. c. 12. give an Action of escape against the Garden of the Fleet yet for the reason abovesaid it is though a penal Law by a benign interpretation to extend to the Sheriff of London and in like maner if there were any latitude in Cases of Treason and Murther as there is not yet to extend it on the behalf of the Prisoners might prove to many thousands Crudelis miserecordia Thirdly Adde to this that the Law of England is so tender of the Publique Weal that though in other Cases it may seem to insist too much upon formalities yet herein it will dispence sometimes with its most certain Rules Hence it is that if one pass over anothers Land without his consent to fetch a Falcon or the like he may be punished as a Trespasser but not so if to hunt or kill a Fox or an Otter which instances I suppose not unsuitable to the Prisoner because these are Creatures contra bonum Publicum which reason the Book gives of the Law in that Case 12 H. 8.10 for the same reason no man shall be punished as a Trespasser for erecting Bulwarks on anothers Land Dyer 36. Maleverers Case And hence certainly was the
be said nevertheless as it is in Calvins Case by a community of properties that it was due to the natural capacity also viz. As it ought ever to be accompanied with the politique thence it was but just in the Parliament notwithstanding the Kings Personal Command and Opposition against them yet to permit the taking of the Oath of Allegiance and not to abolish it till after his death it being ad Legem Ligatio yet the person was so necessary that without it it had been ridiculous to administer it in the form it was in which case majus dignum trabit ad se minus and hence it was that capital crimes committed in one Kings time might be proceeded against after the death of that King 3 Ed. 3. Fitz. Reattachment 18. Bro. Corone 178. If the King had purchased Land to him and his Heirs though the word Successors the word of his politique capacity had not been mentioned yet he was feised thereof in jure Coronae 43 Ed. 3.20 And if Land had been given to the King and another and their Heirs they had for the same reason been Tenants in Common and not Joynt-Tenants Com. 239. for the same reason And though many of those persons who have been Kings have often oppressed in stead of preserved their Subjects yet still that which Bracton hath said upon the same ground remains true of the Regal Power Non aliud Rex potest quam quod de jure potest his Office still being Ex Officio as 2 Li. Coo. Wisemans Case saith and Fitz. na bre 113. out of the Register to provide for the preservation of his People and if any other construction should be made then it must have followed in the Kings Personal absence minority or disability the Kingdom must either have been but weakly or not at all govern'd from all which it may be inferr'd That the Obligation and Allegiance which was owing to the King did include that which Savo sens◠was the Kingdoms also It remains now that somewhat be spoken for the further invalidating of this part of the Plea wherein I shall First prove That one born in Scotland after the Union of the Crowns cannot be to any purpose considered as an Alien to England Secondly That though the Earl of Cambridge had been born before the Union yet he had not been an Alien to England partly from a National consideration but more principally from personal considerations viz. first By reason of his Local Allegiance both in Scotland and England Secondly Ligeantiâ acquisitâ and that by the Naturalization of his Father or his own Denization Thirdly That though he had been an Alien yet as this case is upon the proofs he will prove tryable for Treason by the Laws of this Kingdom Before I speak of any of these I might touch upon that part which layeth Murther to the charge of this Earl it having been fully proved That several persons by name amongst many others were slain and murthered by the Scotish Army and to make him punishable for this Crime there is no need of denization it being an offence in it self against the Law of God and Nations and we trust requisite to be an ingredient to it as is required in Treason Hence we finde Rape punishable in England committed by a Scot 13 Eliz. Dyer 304. and Murther done by the Lord Zanchar of the same Nation 9 Li. Coo. 116. where we finde him indicted by the Name of Robert Creighton Esq which together with the express Authority of 11 E. 3. Fitz. bre 473. are by the way sufficient warrants for our charging the Prisoner by the Name of James Earl of Cambridge without mentioning his Dukedom as he hath often intimated we should have done And if the Earl should say He kill'd not these persons himself his Councel can soon tell him That 's not material the Law being That if divers persons come to do an unlawful act and one commit a Murther or Treason it s so in all 1 Mar. Dyer 38. 13 H. 4.13 19 Ed. 2 Fitz. Cor. 433. But the truth is I shall not rely upon this being not willing so high an offence should pass under any other name then that of Treason therefore I pass to those aforementioned considerations which will evince his Crime to be no less then Treason 1. As to the first of these there being so much said in the Argument of Calvins Case I shall omit the citing of any thing particularly from thence and select something from the Statutes made shortly after the Union It s agreed by all Historians That these two Kingdoms were anciently but one Divisos orbe Britannos sabducta Britannia mundo thence it s observable That in the Preface of 1 Jac. cap. 1. by the access of the King of Scotland to this Kingdom the Parliament speaking of the Union correct themselves in these words or rather a reuniting of these two Nations though anciently but one if so this reunion amounted to no less then as it were a National remitter of the ancient Union For the settlement of this Union Commissioners were chosen to compose some differences betwixt the Nations and to consider what was fit and necessary to be done for the Commonweal of both Kingdoms 1 Jac. cap. 2. These Commissioners consult long about it and because they could not perfect it within the time prefixt an Act passeth for longer time 3 Jac. cap. 3. At length the work is finisht by the Statute of 4 Jaco cap. 1. by which all Statutes that express or imply any strangeness of the one Nation to the other are repealed and moreover it doth Enact and say That if there had appeared any other Statutes of this Realm of England wherein any thing is Ordained Enacted and Established expresly and by name against the Scotish as Enemies or Scotland as an Enemy Countrey to the King of this Realm or the State of the same we should for so much of them as concerneth Scottish men or Scotland have utterly abrogated and adnulled the same seeing all Enmity and Hostility of former times between the two Kingdoms and People is now happily taken away So the Statute After which it seems as strange that any born in Scotland after and during the continuance of that Union should make themselves strangers to England as if natural born English men should have made the same allegation In the aforesaid Statute of 4 Jac. 1. there is a clause That no Scotishman coming into England to prosecute the Law against any Englishman offending in Scotland is to be arrested here except for Treason and Murther and in the latter end of the Act amongst other things it is Enacted That if any Englishman should commit Treason or other Crimes in Scotland and come into England he should not upon his apprehension here be sent into Scotland to have his Tryal there but be tryed where he is taken but the Statute of 7 Jac. c. 1. which was the year after the resolution in
ere this had been a Field of Blood Of this unnatural and unchristian Army thus totally by a power from Heaven routed habemus ducem we have here present the principal Author and Actor against whom the pillaged depopulated counties the blood of many innocents many of his own Countreymen both at home and now in forreign parts and God himself by the strange and speedy delivery of him into your hands after his escape from Windsor coming himself sooner then possibly he could have done if sent for immediately after the former execution do all unanimously call for a just sentence and the same do I in the Name of the People of England The Charge being read against the said Earl containing matter of High Treason for his invatling this Nation in an Hostile maner and levying actual War therein he thereunto put in this ensuing Plea The Plea of Iames Earl of Cambridge whereby as he alleaged he was not to be tryed for Treason within this Kingdom 1. THat he was imployed by the Parliament of the Kingdom of Scotland not to invade this Kingdom but for the ends they have declared sent to the Parliament of the Kingdom of England 2. That he is no Englishman notwithstanding the Naturalization of his Father 3. That he is a Prisoner of War rendred upon Articles by Major General Lambert and that those Capitulations were made before his Rendition with Major General Lamberts Commissioners THE ARGUMENT of Mr. Steel On the behalf of the COMMON-VVEALTH Touching the matter of Law in the CASE of the Earl of CAMBRIDGE My Lord THe Councel for the Earl of Cambridge have framed their Arguments upon the fact as they conceive it proved and also by admittance of the contrary in some points I shall use the same method first Arguing from the fact as I conceive it stated by the proofs produced and then by admittance of the contrary that though the fact should be as they would have it that yet the Law will fall out to be against them The Charge being read to the Prisoner he hath thereunto put in his Plea consisting of three parts the truth and validity whereof hath been denyed on the behalf of the Commonwealth First The first part of his Plea was That he was imployed by the Parliament of the Kingdom of Scotland not to invade this Kingdom but for the ends declared by them The improvement made of this part of the Plea is That the Earl was but a Servant in this Expedition and under the Authority and command of another and tyed under Oathes and penalties to give obedience if he had disobeyed he had been liable to punishment therefore it were hard for him to be punished for obeying also That he hath not exceeded his Commission besides the Parliament of England in their Declaration of the 17 of February last lay the blame of this Invasion upon the Parliament of Scotland And lastly That the Earls case is not unlike that of an Ambassador who is not to be blamed for acting against a State if he have it in mandatis as in the case of the Bishop of Ross in the Reign of Queen Eliz. By endeavor to give satisfaction to all which I shall dispatch what I have to say upon this first part of the Plea I shall admit it proved that he had that Commission and Authority mentioned and also that the rule is generally true That a man is not to be punished for an act which he doth by the necessity of obedience because he hath nor solutum arbitrium which is required to denominate actions either blame-worthy or excusable but I shall easily prove that this Rule is capable of restrictions both by the Rules of Law and Reason and if we observe the distinctions aright which determine this question we shall still finde the Earl of Cambridge within that part which renders him inexcusable First The first difference is where the Action is lawful and where unlawful which is commanded If it be lawful a Superior command may dispence with some circumstances but if unlawful the Servant obeying is not the less to be blamed I never held that Law of Ina the Saxon King to be warrantable Divinity Servus si quid operis patrarit die Dominico ex precepto Domini sui Eiber esto if the precept it self were unjust Now for the Action in question wherein this Earl was engaged it is not defended by his own Councel the dispute being onely de modo whether he be to be punished as an Enemy or as Traytor though if this Argument held he were neither way to be punished and therefore certainly the necessity of his obedience is no mitigation for his Crime and if it should Empson and Dudley with all their Monopolizing Successors had been unjustly censured who always have had Patents and Commissions from Authority to plead And so also all that catalogue of former Traytors who have hatched their Treasons and Designs against this State in Forreign parts and have ever had the Pope or Forreign Princes to put a stamp of Authority and command upon them must by this Argument be in some measure justified It was never expected from any under command to write himself more a servant then us◠ad aras those being the Hercules's pillars whereon a non plus ultra is written and therefore who ever exceeds those bounds he will finde it to be at his peril Secondly The second difference is where the instrument is inanimatum and where an Active living instrument of the first it is truly said Instrumenti nulla vis all being therein attributed to the principal efficient but otherwise of the other From hence the Statute of 1 2. Phil. and Ma. ca. 10. did justly repeal the Statute of 33 H. 8. c. 20. which had punished a man for Treason though he became non compos mentis before the execution and no less justly did 25 Ed. 3. de proditionibus by the word Imagination alter in the like point that Law which was in use till then concerning such a persons committing the act of Treason such an one being no better then quasi inanimatus But who can affirm this Earl to be other then an active and vigorous instrument non modo vivit sed in senatum venit being a chief Member of that Parliament under whose command he would shelter himself and by that means is a Master rather then a Servant and so met with by that Declaration of the Parliament of this Kingdom of which he would have made an Argument for himself Thirdly Where there is necessitas culpabilis the Law will not excuse as it will where there is no crime in contracting the necessity Those who in former times gave victuals and provision to Sir John Oldcastle were not punished as Traytors because they did it say our Records Pro timore Mortis recesserunt quam citò potuerunt 3 Inst 10. and upon this reason seems that opinion of Tremayle to be grounded in 21 H. 7.39 That a Servant may
reason of that ancient Law That Capital Offenders who had transgressed against the Law had Lupina Capita and might therefore by the Justice of Lex talionis arteperire suâ wherein the Law followed Naturae ordinem The rules of nature are most constant yet for the preservation of the whole it will sometimes contradict it self as to prevent a vacuum and the like what an inversion do we see of natures most constant and ordinary Rules Do not they then in this prove somewhat unnatural and imbrace a cloud in stead of substance that fear not to omit the weightiest things of the Law rather then in cases of invincible necessity dispence with some formalities Obj. But though the Earl of Cambridge were a Postnatus yet he is quasi Ligeus acquisitus unto England and if so as his Allegiance began with an Act of the Nation so it might determine by an Act of the same Power to wit by Command from the Parliament of Scotland First Answ The strength of this Objection if admitted would as I conceive by a new invented distinction overthrow the learned and solemn resolution of all the Judges and Chancellor of England 6 Jac. in Calvins Case wherein all Allegiances that the wits of men could imagine are enumerated and they are but four viz. Ligeantia Naturalis Acquisita Localis and Legalis and by the Judgement of that Case Robert Calvin Son and Heir to James Lord Calvin of Colcross in Scotland born three years after King James his access to the Crown as also all other so born were adjudged Subjects of this Kingdom of England Ligeantiâ Naturali by the best and highest Allegiance without any quasi at all in the same kinde and to all intents and purposes that any natural born Englishman was Secondly The Objection seems to me not onely to be against the Judgement of this Case but against reason also for what acquisition is there by the party or what contributes he to it whether he be born in this or that time or place the conceit that there is any act of the party 's in this as there must be to make a quasi Ligeus acquisitus seems to savor of the Pythagorean Metempsucosis or that opinion of Plato who held a pre-existence of Souls which after came into the bodies tanquam in ergastula Obj. It is inconsistent to have two natural Allegiances to two several Kingdoms as it is impossible to have two Fathers in which Case major relatio trahet ad se minorem and in that case the Earl is rather to be reputed a Subject of Scotland where he was born then of England First Answ It is indeed inconsistent that the same person should in two several Kingdoms have two original Allegiances in a physical acceptation to wit to be so born yet by construction of Law he that is born in Scotland may have an Allegiance to England equivalent with the other thus Calvin by the resolution of that Case was Scotus patriâ and Anglus privilegio And thus without any contradiction it was ever held for Law That the Natives of Gascoign and Aquitain and those other countreys which were Geographically out of England were yet in construction of Law equally Denizens and Subjects of England with those born here in regard of one Allegiance and Protection wherein they were equally involved 27 Ass Pl. 48. Secondly No Allegiance which gains the name of alta Naturalis Ligeantia can by the Common Law of England be devested though otherwise it may be by the Civil Laws there being no magis and minus that its capable of which the Objection would suppose and the truth is The resolution of Calvins Case answers all the suppositions of any future contingencies and positively resolves That this Allegiance cannot possibly be lost by any matter ex post facto no not by difference of discents and Governments 7 Li. 27. and what is agreed to be inherent to a natural born Englishman belongs also to a Postnatus non potest patriam in quo natus est exuere nec Ligeantiae Debitum ejurare 1 Inst 129. Thirdly And for the inconsistences of Allegiancies that the objection seems to insinuate in the case of Competition between the Kingdoms Bracton hath met with that supposal long since Li. de exeptionibus 427. speaking of one that is ad fidem utrinsque Regis si contingat guerram accidere inter Regna putting the case of one born in France and Indenized in England Remaneat personaliter cum eo cui Ligeantiam fecerit faciat servitium debitum ei cum quo non steterit in personâ Obj. Though the Earl of Cambridge were a Postnatus yet as this Case is it makes him not to differ from an Alien because the Kingdoms of England and Scotland were at the time of this Invasion divided and there were then several Administrations of their powers from whence a double Allegiance is to be considered Regis Regni First Ans If we look upon the judicial powers of the Kingdoms in a Legal consideration even at the time mentioned in the Objection besides the Union of the Kingdoms made by force of 1 Jac. cap. 1. we shall finde as strong Stipulations and Engagements by Treaties confirmed by Parliament and otherwise betwixt the Nations as were possibly to be made none of which were repealed at the time of this expedition and so far from that that the Earl himself hath often at the Bar profest That neither his coming nor Commission were against the Parliament or Kingdom of England How then were the powers of these Nations so legally or judicially different Secondly The Union of the Laws and Governments of these Nations was a thing desired and endeavored by some as may appear by the latter part of the Statute of 4 Jac. cap. 1. but it was not effected therefore the distinction of the Kingdoms was taken into consideration in Calvins Case where Regna was one of the Nomina operativa and granted That though the Kingdoms Laws and Nobilities of the Nations of England and Scotland were several and distinct yet the Allegiance of all born in either Nation after the union was one and the same and the pleading of that case which best denotes the Law demonstrates this That such distinction of the Kingdoms was under consideration for the pleading was That Calvin was born extra Ligeantiam Regni Regis Angliae and infra Ligeantiam Regni Regis Scotia and the learned Chancellor of that time saith in his Postnati that the judgement was That neither Calvin nor any other Postnati were Aliens to the King or Kingdom of England Thirdly It is agreed on the other side That there was always one Ligeantia Regis and therefore even thence I do infer that there was also one Ligeantia Regni because that Allegiance which was due to the King was certainly due to him in his politique capacity though not to that onely or divided in the Subject from his natural capacity however it may
Calvins Case repealed that clause of 4 Jac. 1. last mentioned as to all offences but Treason leaving the offendors in that kinde to be tryed in the Kingdom where they were apprehended and though the Statute speak onely of English yet the like Act was to pass in Scotland in case any of that Nation committed Treason here else neither was to be binding to the Nations 2. In the next place somewhat may be said from a National Consideration to prove the Earl no alien here though born before the Union not that my purpose is to endeavor the revival of that ancient homage done formerly by that Kingdom to this it is not worth the mentioning in comparison of that love and those engagements which have been betwixt us Gens una summus was heretofore said of us and if it may be I wish Sic simus in aevum but because somewhat hath been on the other side cited from the stories of Bruce and Baliol in the days of Edward 1. and for that I finde both Law and History afford some matter for this Argument I hold it my duty not to be altogether silent in what passed in those times and since I will not insist up-those several Appeals made by Magdolphus and others of the Scotish Nation to Ed. 1. contra custodes Scotiae and against the Kings of Scotland themselves all Arguments of allegiance then acknowledged from that Kingdom to this But to instance in some Presidents neerer to this in question Simon Frysel in 34 Ed. 1. anno 1306. a Native of Scotland came in an hostile manner from that Kingdom to invade this and being apprehended here he was condemned as a Traytor the words of Math. West 456. concerning him are That he was a turri Londinensi per plateas distractus ut proditor In the same year of Ed. 1. William Wallis the Commander in chief of the Scotish Forces and a Native of that Nation also as the Prisoner was came into this Kingdom and being apprehended was saith Walfingham fol. 61. Londonias usque ductus judicialitèr condemnatus trahitur suspenditur ultimò decollatur though he pleaded as our Historians tell us what this Earl doth That he was a Subject of Scotland and not of this Kingdom and therfore ought not to be tried here for Treason In 42 Ed. 3.3 in the Lord Beaumonts case when it was replyed that the party objected against to be an Alien was a Scots man the plea is no longer insisted upon A protection quia profecturus lies not into a Country that is within the allegiance and protection of England 7 H. 4.14 yet we shall finde the only reason given wherefore it was granted into Scotland was because of the Wars that were then betwixt the Nations 7 Ed. 4.27 After the ceasing of which Wars it may be collected by the book a protection would have lien no more thither then it would have lien into Wales or Ireland In 13 14. Eliz. Dyer 304. one was arraigned for a Rape at the return of the venire facias to try him he pleaded that he was a Scots man and desired a medictate linguae which manner of Tryal is granted to Aliens by the Statutes of 27 28 Ed. 3. but by the judgment of the Judges of both Benches it was denyed him for this reason amongst others because saith the Book a Scots man was never here reputed for an Alien but rather a Subject Object Whereas it hath been said This was because the Statutes of 27 28 Ed. 3. were made when Scots men were generally reputed Subjects to this Kingdom Ans I answer That the Book gives no such reason Secondly To affirm this is to suppose the Iudges by such a Forreign conceipt to go against the express provision of two Acts of Parliament and the constant practise in pursuance thereof In the same year of 13 Eliz. in the case of the Duke of Norfolk the evidence of the Bishop of Ross a Scots man was offered against the Duke by the Councel for the Commonwealth which the Duke opposed from the judgment of Bracton That a Forreigners testimony was not in that case to be received but Cataline chief Justice though he says nothing to Bractons opinion touching exterorum testimonium yet he gives the rule of the Court that the testimony was to be received Cambdens Eliz. 214. After this time also the Queen of Scots was tryed in this Kingdom though not upon the Statute of 25. Ed. 3. yet upon the Statute of 27. Eliz. cap. 2. then in force And though in the proceedings of that business Commissioners of both Nations met and that the Scots Commissioners did protest that though they did joyn with our Commissioners yet they did thereby make no acknowledgment that they were other then a Forreign Nation to this yet the English men protested against that Protestation as we finde in the history of that Queen 3. But to pass from this National to a more Personal Consideration and from thence though he were an Antenatus to prove the Earl liable to punishment for Treason against this State and that by a local allegiance both in Scotland and England wherein it must be granted as a principle and cannot be denyed but that if an Alien come into this Nation and there abide and commit that act which would always be Treason in an English Subject it is by the Law Treason in him during that abode because he oweth localem ligeantiam and the indictment against him shall say Contra ligeantiae suae debitum 7. li. Calvins Case Thus in 36 Eliz. 2. the Portugals here in England joyn in an Act of Treason with Doctor Loper and it was adjudged Treason in all Thus this Earl though he had been born before the Union yet he lived in Scotland after the Union and at the very time of this Invasion whereby he became a Subject at least locali ligeanti◠So in England also not onely by his former residence here which he will say perhaps was avoyded by his removal hence but by his late coming in he became Ligens here locali Ligeantiâ because he came from a Kingdom then by his own confession in amity with this This was the case of Sherley a Frenchman 4 Mar. who came from France then in amity with England and being taken levying War in an hostile manner was indicted and executed as a Traytor Dyer 144. and as the book puts it 7. li. Calvins Case if he had had issue here that issue should have inherited 4. In the next place I shall prove the Earl of Cambridge though he had been an antenatus to be a Subject of England Ligeantiâ acquisitâ and that by the naturalization of his Father or by his own denization but first as to the naturalization of his Father 1. The Act of Parliament hath been read and proved whereby the Father of this Earl by the name of James Marquess of Hamilton Earl of Cambridge in 21 Jac. was naturalized to be to all intents
and purposes a Subect of this Nation as if he had been here born with a further clause that his heirs might inherit and purchase any Lands Tenements c. By which Act it clearly appear that this Earl is naturalized also For 1. Though in the case of a denization there may need the word Heir to extend it to them because it goes as it is limited it may be for life in tayl or upon condition 9 Ed. 4.7 yet its repugnant to suppose that in point of a naturalization because he that is born in England as by relation this makes him without any other expressions conveys the right to his heirs Hence Naturalization is never temporanea though data 1. Jnst 129.2 Here are not wanting words neither that reach to the heirs if necessary for the Act is That his Heirs may inherit and purchase c. And in pursuance hereof its notorious that this Earl hath done both But we shall finde that oftentimes no more goes to express a Naturalization then this No other expression is used to import the priviledg of being English to them that are born of English Parents beyond Sea but onely that they may have and freely bear the inheritance within the same allegiance as other inheritors 25 Ed. 3. de natis ultra Mare And in 3 H. 6.55 Hall and his wise brought a Writ of Dover the Tenant pleaded that the Feme was an alien the Demandants reply that the Feme in the time of H. 4. was inabled by Act of Parliament to purchase Lands Tenements c. with which Reply the Defendants Counsel rested satisfied as if the Replication expressed it sufficiently that she was naturalized and thereupon demanded view Object But it hath been objected That this Act can have no other effect then if the now Earls Father had been born in England and though he were a Native English-man yet having issue this Earl by a Native Scots-woman in Scotland the issue thereby remains an Alien though his Father were Naturalized or born in England 1 Ans I shall easily grant both that this Earl was so born in Scotland and that the Naturalization amounts to no more then if the old Earl had been born in England but do deny the inference drawn from thence That therfore the now Earl must be an Alien For though in former times some Controversie hath been touching this question viz. Whether the issue of an English man going out of the Kingdom born of an alien woman shall be a Subject of England or no Yet I take the Law to be clear at this day that such issue is a Subject of England By the common Law if Father and Mother both English have issue beyond sea that issue is English 1 R. 3.4 the Statute of 25 Ed. 3. de natis ultra mare being declarative of the common Law 42 Ed. 3. cap. 10. and if the reason and practice of the Law be examined we shall finde it to be the same where the father only is English for these Reasons First Because at this day any person may go from this Kingdom to another without license though he be neither Nobleman Merchant or Soldier except some restraint by a ne exeat regnum Proclamation or other Act of State be against him so is it resolved 12 13 Eliz. Dyer 296. And though all except persons so qualified were restrained by 5 R. 2. cap. 2. yet that Statute is repealed by the Statute of 4 Jac. c. 1. made principally in reference to Scotland Therefore however the Law may be as to such as go when prohibited or who stay beyond Sea when commanded to return yet as to all others at this day and always as to Noblemen as the father of this Earl was upon whom no restraint was ever put by Common or Statute Law certainly the Law is otherwise especially when the removal is to a Country in amity as Scotland was Secondly Partus sequitur semen by the Common Law therefore in 4 Ed. 4.25 Statham villenage 9. if a free man marry a wife and have issue that issue is free but otherwise if the man had been villain and the woman free Thirdly The woman alien by the marriage is indenized and the issue then must needs partake of the priviledg and it appears by 26 Ed. 1. rot Parl. 1. that when Edmond the brother of Ed. 1. who marryed the Queen of Navar dyed all the Judges resolved she should be ened and what though she should not as in other cases it hath been doubted Yet that hinders not but during coverture she was endenized and that 's enough to endenize the issue If a wife marry a free man it is and hath been a doubt whether this be a perpetual infranchisement to the woman after the death of her Baron but it never was doubted but that both her self during coverture and her issue ever after were infranchised Lit. sect 187. 1 Instit 136. And for express authority in the point in hand besides the ancient authority of Abridg. Ass 39. tit Bastard 7. and Bro. Denizen 21. it was the Judgment of all the Judges of England 2 Ca. in the Dutchy Chamber betwixt the King and Eaton usually called Stephensons Case the Record whereof is ready to be produced where Judg Yelverton and Harvey then Judges Assistants to that Court declared it to be their judgments as also of all the other Judges That the two Sons of Stephenson born beyond Sea upon the body of an Alien were Denizens Object I observed but one book cited for maintenance of the contrary opinion and that was 26 H. 6. where indeed it is 22 H. 6.38 Ans Which Authority is against not for that opinion for which it is cited for in an Action there brought the Defendant pleads that the Plaintiffs ancestor in the time of H. 4. went beyond Sea without Licence and there bad issue the Plaintiff upon this plea Arderne the Plaintiffs Councel demurs but saith the book Prisot the Defendants Councel durst not demur Secondly If the book were as it is supposed yet it makes nothing against the Law at this day because by the Book it appears that the Plaintiffs ancestor went beyond Sea in the time of H. 4. without licence which being after R. 2. there was a restraint upon him except by licence or qualified as that Statute of R. 2. requires which Restraint is now abrogated as is before said and the Inhabitants of England as is suitable to all Islanders may travel at pleasure except especially forbidden and so whatever the Law was then it s otherwise now mutataratione legis mutatur lex Object What if the present Earl did himself endeavor or as he saith was advised notwithstanding the Naturalization of of his Father to procure himself to be Naturalized or indenized Ans Yet that could be but in majorem cautâ—lam as some savings have been inserted into Acts of Parliament themselves not for necessity but for satisfaction of the Lay Gent. as our books express it
1. li. Câ—â— 24. Plow Com. 379. upon the Statute of 5 Ed. 6. and even in that case of Stephenson though the Iudges assistants delivered what was their own opinions and of the rest of the Iudges yet if making the party a Denizen would end the controversie they did advise it Fifthly Besides this purchase of his Fathers the Earl hath himself contributed to his own Denization not so much by inheriting his Fathers dignity and purchasing and enjoying himself Lands in England that being rather an evidence of what he formerly was then making him what he was not before but by the Writ of summons sent to this Earl himself 15 Car. The Record whereof hath been read commanding him ex fide ligeantia suâ— to appear in Parliament as a Peer of this Realm who accordingly did appear and acted in this Parliament being chosen of several Committees in the Lords House to consider of many things of great concernment some whereof were for the strength of the Nation as hath been fully proved by the Records of the Lords House all which actions are so inconsistent with his being an alien and would be such a solecism in State to admit an alien to be invested amongst others with a judicial power that rather then it should be admitted all this layd together will I conceive amount to at least a Denization I will not say that the granting of every office or the being employed in any transaction which concerns the Law or Government of the Kingdom will make an Alien a Denizen the books of 9 Ed. 4.1 and 14 H. 4.19 forbid me to say so but it 's another thing to have a judicial power in Parliament and to sit by virtue of such summons in the Parliament of England The Lord De-la Ware was disabled to sit in the House of Peers during his life but he dying and a Writ of Summons coming to his Son he was by vertue thereof enabled not onely to sit but to enjoy that place which his Ancestors formerly had done 11 li. Coo. 1. and in 39. Ed. 3.29 Umfravil Earl of Angos ought to be named Earl in the Writ against him because by that name he was summoned to the Parliament and for not naming him so the Writ abated A Denization is a kinde of a National Manumission Now as there is in Law an express infranchisement of a Villain and an infranchisement in Law Lit. sect 205. So it may be said of Denizations And amongst other Manumissions by Act in Law I finde in Britton fol. 79. 82. if a Villain were made a Knight this did make him free rations dignitatis and did not make the conferring of that dignity to be a voyd act paralel whereunto is the case in hand Sixthly The last thing I shall insist upon touching this second part of the plea is to make it appear that though the Earl had been born before the Union and an Alien that yet there are other circumstances in this case yet remaining which will clearly make this Act of his to amount to no less then Treason viz. His coming from a Kingdom in amity with this and his marching in hither with English Traytors That he marcht in and held correspondency with Sir Marmaduke Langdale and his son and with Sir Thomas Glenham and divers others hath been fully proved And that that Kingdom was then in amity with this besides the National Treaties and Engagements unrepealed it appears as well by the Earls own confessions at the Bar as by the words of the Scotish Declaration made upon this expedition read at the Earls own request which what ever it be doth yet conclude this Earl and all his party from alledging the contrary for their advantage it having been often reiterated by him and also therein said That this expedition was neither against the Parliament nor People of England besides that it is no sleight matter to make Nations in amity to become open Enemies in a legal construction which we are now upon as appears by the book of 19 Ed. 4.6 Now that these Circumstances will make this Act reach to Treason appears by these Authorities of Law In the days of Queen Mary France and England were in amity Sherley a French Native during that amity joyns himself with some English Traytors Sherley is apprehended and indicted as a Traytor contra ligeantiae suae debitum 4 Mar. Dyer 144. which is confirmed for good Law likewise 7 li. in Calvins Case by all the Judges with which agrees Brook Treason 32. and Crompton Jurisdiction of Courts 72. and Mr Justice Dallisons Reports 3 4. Mar. All which Authorities agree in this difference That if Alien Enemies joyn with English Rebels and be apprehended the Aliens shall be tryed by Martial Law or ransom'd but if Alien amies so joyn its Treason in all and 't is observable that the case is put cautelously in H. 4. and so abridg'd by Broâ— Treason 1. That where Alien Enemies joyn with English the Aliens shall be tryed by Martial Law and the English as Traytors Object The Objection hath been made and so far it seems the Law is agreed That if Aliens fight under the banner of English that this may be Treason in all but not if the English fight under the command of Aliens which is alledged to be the case in hand Ans First I cannot safely admit that which the objection takes for granted that the English were the Auxiliaries and the Scots the principals in this act when I finde it in the proof offered by the Earl himself that he came in by the invitation of their friends in England and when I remember what was designed and produced in the South of England before and at the same time with this expedition 2. But admit it to be otherwise yet if this difference were material then it should follow likewise That if Alien enemies did fight under an English Command it should be Treason in all but it is not so 3. The Law makes no such difference nay the very objection seems to be made and answered 4. Mar. Dyer 144. for the book saith that though Sherley were an Alien yet hoc non refort tempore pacis inter Anglos et Galles the weight is layd upon tempus pacic onely 4. The true reason of the Law in one case is the same in both which I conceive to be from the detestation of conspiring with an inward secret enemy and from the trust the Law reposeth in such as are of a Country in amity There is no Treason but where there is a Trust hence anciently Treason in its genuine and original acceptation was onely and properly amongst allyes and friends who mutually did repose confidence in each other as may be seen in the Mirror f. 30. and 201. And that a greater trust was placed in Aliens amies then in others appears in that our Law allows not onely Traffique and Commerce with them but also allows them to be to some purposes Denizens namely as to the