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.
therefore I will presume on your patience and assume to my selfe such conuenient time as others haue done And yet I will husband time as well as I can I will not be abashed to strengthen my weake memory with helpe of some scribled papers as others haue done for I accompt it a point of wisedome to followe wise mens Examples Other Exordium Insinuation Protestation or Preface for the Matter it selfe either to prepare attentiue and beneuolent auditors or to stirre offence or mislike against either partie I meane not to vse it is fit for Oratours I neuer professed the Art I had neuer skill in it And it is not Decorum for Iudges that ought to respect the Matter and not the humours of the Hearers The Exordium the Ciuilians vse in their Sentences I like well In Dei nomine Amen Deo primitùs inuocato other Exordium I care not for The Case now depending in Chauncerie which is adiourned hither is thus Robert Caluine sonne and heire apparant of Iames L. Caluine of Colcrosse in the realme of Scotland an Infant of three yeares of age borne in the saied Realme of Scotland maketh title by his Bill to a Messuage and Garden with th'appurtenaunces in the parish of Saint Buttolph without Bishops-gate in the citie of London and complaineth against Iohn Bingley and Richard Griffin for detaining the Euidences concerning the same Messuage and Lands and taking the profits thereof The Defendants pleade that the Plaintife is an Alien and that in the third yeere of his Maiesties raigne of England and in the nine and thirtieth yere of his Maiesties raigne of Scotland hee was borne in the Realme of Scotland within the ligeance of his said Maiestie of his Realme of Scotland and out of the ligeance of our soueraigne Lord the King of his Realme of England And the Defendants say further That at the time of the birth of the Complainant and long before and euer sithence the saied Kingdome of Scotland was and still is ruled and gouerned by the proper Lawes and Statutes of the said Kingdome of Scotland and not by the Lawes and Statutes of this Realme of England And therfore the Defendants demaund iudgement Whether the Complainant ought to bee answered to his said Bill or shall be receiued to prosecute the said suite against the Defendants being for and concerning the title of Inheritance and euidence touching the same Heereupon the Complainant hath demurred in Law This is the speciall Case now depending in the Chancerie in which and touching all like Cases in generall mine opinion is and since the question was first mooued hath beene That these Post-nati are not Aliens to the King nor to his Kingdome of England but by their Birth-right are liege subiects to the King and capable of estates of Inheritance and freehould of Landes in England and may haue and maintaine as wel Reall as Personall actions for the same And that therefore the now Complainant Robert Caluine ought to bee answered This opinion I did first conceiue vpon those rules and reasons in Lawe as well the Common Law of England as the Ciuile law which heereafter in the course of my Speech I will remember And in this opinion I haue beene since confirmed by many great and weighty reasons First in the Statute made in the first yeare of his Maiesties raigne of England authorizing the Treatie betweene the Commissioners for both the Kingdomes it is said as Iustice Warburton noted well That both the famous ancient Realmes of England and Scotland are now vnited in allegeance and loyall subiection in his royall person to his Maiestie and his posteritie for euer Heere wee haue the Iudgement of the Parliament that there is a Vnitie in allegeance to one Royall person And therefore I see not how wee may out of imaginarie conceipts and by subtile distinctions straine our wittes to frame seuerall allegeances to one and the same Royall person contrary to so plaine a declaration made by Parliament Next followeth his Maiesties Proclamation 20. Octobris 1604. by which hee assumed to himselfe the Name and Stile of King of great Britaine In which Proclamation among many other weighty reasons this is added for one We haue receiued from those that be skilful in the Lawes of the Land That immediatly vpon our succession diuerse of our auncient Lawes of this Realme are ipso facto expired as namely that of Escuage and of the naturalization of the Subiects This was not done sodainely nor lightly but vpon graue and serious deliberation and aduise And therefore seemeth to mee to be a matter of great importaunce and not to be lightly regarded The same twentieth of October these Commissioners beganne their Treatie Of the graue and iudicious Course which they held in debating of the Matter then propounded I will forbeare to speake But for this point of Naturalization now in question their resolution in the end was thus That it shall bee propounded to both the Parliaments at the next Sessions that an Act be made containing a declaration as followeth That all the Subiects of both the Realmes borne since the decease of Elizabeth the late Qu. of England of happie memory and all that shal be borne hereafter vnder the obedience of his Maiestie and his royall Progeny are by the common Lawes of both the Realmes and shall be for euer inhabled to obtaine succeede inherite and possesse all Lands Goods and Chattels c. as fully and amply as the Subiects of either Realme respectiuely might haue done or may doe in any sort within the Kingdome where they were borne This after long debating and graue and deliberate consideration was in the end the resolution of the greater part of the Commissioners not one openly gainesaying it And diuerse of the principall Iudges of the Realme were present at all times when the point was debated And herein I note the wise and iudicious forme of that resolution which was not to propound to the Parliament the making of a new Lawe but a declaration of the common Lawes of both the Realmes in this question Now if wee consider who these Commissioners were what Lords of the higher House and what persons of the common House selected of all degrees most eminent for their learning and iudgement as well in Ciuile and Common Law as in knowledge and experience other waies beeing assisted by the graue Iudges of the Realme If this I say be well considered then this Resolution must be accompted and esteemed as a matter of great and weighty importance and much to be regarded in the deciding of this question According to this Act of the Commissioners the Case was propounded in the next Session of Parliament In the higher House the Iudges were required to deliuer their opinions There were then eleauen Iudges present whereof tenne did with one vniforme consent affirme the Lawe to be That the Post-nati were not Aliens but naturall Subiects one onely dissenting After this the