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Word A	Word B	Word C	Word D	Occurrence	Frequency Band	MI	MI Band	Prominent
england_n	king_n	time_n	year_n	19,963	5	5.0438	4	true

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ID	Title	Author	Corrected Date of Publication (TCP Date of Publication)	STC	Words	Pages
A93849	Duke Hamilton Earl of Cambridge his case, spoken to, and argued on the behalf of the Commonwealth, before the High Court of Justice. By Mr. Steel of Grays-Inn.	Steele, William, d. 1680.	1649 (1649)	Wing S5395; Thomason E558_3; ESTC R203635	24,055	43

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

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

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