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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A69269 The speech of the Lord Chancellor of England, in the Eschequer Chamber, touching the post-nati Egerton, Thomas, Sir, 1540?-1617. 1609 (1609) STC 7540.5; ESTC S100270 40,281 132

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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.
Reason this subtile but absurd and dangerous distinction ought not to be allowed This Bond of Allegeance whereof wee dispute is Vinculum fidei it bindeth the soule and conscience of euery subiect seuerally and respectiuely to be faithfull and obedient to the King and as a Soule or Conscience cannot bee framed by Policie so Faith and Allegeance cannot bee framed by Policie nor put into a politike bodie An oath must be sworne by a naturall bodie homage and fealtie must be done by a naturall bodie a politike body cannot doe it Now then since there is but one king and soueraigne to whome this faith and allegeance is due by all his subiects of England and Scotland can any humane policie diuide this one King and make him two kings Can cor Regis Angliae be in manu Domini and cor Regis Scotiae not so Can there bee warres betweene the King of England and the king of Scotland or betweene the kingdome of England and the kingdome of Scotland so long as there is but one king Can the king of England now send an army roial into Scotland against the king of Scotland Can there bee any Letters of Marke or Reprisall now graunted by the king of England against the subiects of the king of Scotland Can there bee any Protections now Quia profecturus in exercitu Iacobi Regis Angliae in Scotiam Nay shortly Can any man bee a true subiect to King Iames as King of England and a traitor or rebell to king Iames as king of Scotland Shall a foote breadth or an inch breadth of ground make a difference of birth-right of subiects borne vnder one king Nay where there are not any certen bounds or limites knowne at all but an imaginarie partition wall by a conceipted fiction in Lawe It is enough to propound these and such like Questions whereof many more might be remembred they carry a sufficient and plaine answeare in themselues Magis docet qui prudentèr interrogat As the King nor his heart cannot bee diuided for hee is one entire King ouer all his subiectes in which soeuer of his Kingdomes or Dominions they vvere borne so hee must not bee serued nor obeyed by halues hee must haue intire and perfect obedience of his subiects for Ligentia as Baron Heron saied well must haue foure qualities It must bee 1. Pura simplex 2. Integra solida 3. Vniuersalis non localis 4. Permanens continua illaesa Diuide a mans heart and you lose both parts of it and make no heart at all so hee that is not an intire subiect but halfe faced is no subiect at all and hee that is borne an intire and perfect subiect ought by Reason and Lawe to haue all the freedomes priuiledges and benefites pertaining to his Birth-right in all the Kinges Dominions and such are all the Post-nati in England and Scotland And the inconuenience of this imaginary locall allegeance hath beene so lately and so fully declared by the Lorde chiefe Iustice Coke as more needes not bee saied in it In some speciall Cases there sometime may bee a king of subiects without land in possession as Iustice Fenner noted in the gouernement which Moses had ouer the people of Israel in the wildernesse and as in the Case which sir Iohn Popham the late Lord chiefe Iustice did put in the Parliament If a King and his subiects bee driuen out of his kingdome by his enemies yet notwithstanding hee continueth still King ouer those subiects and they are still bound vnto him by their bond of allegeance wheresoeuer hee and they bee But there can not bee a King of land without subiects For that were but Imperium in belluas and Rex subditi sunt relatiua I saied there was an other generall rule for expounding of Lawes which I reserued to bee last spoken of I will now but touch it for I will not stand to examine by humane reasons whether Kings were before Lawes or Lawes before Kinges nor how Kings were first ordained nor whether the kings or the people did first make Lawes nor the seuerall constitutions and frames of states and common-weales nor what Plato or Aristotle haue written of this argmment They were men of singuler learning and wisedome but wee must consider the time and the countrie in which they liued and in all their great learning they lacked the true learning of the knowledge of God They were borne and liued in Greece and in popular States they were enemies or at least mislikers of all Monarchies yet one of them disdained not to bee a seruant or mercenarie hireling to a Monarch They accompted all the world barbarous but their owne Countrey of Greece their opinions therefore are no Cannons to giue Lawes to kinges and kingdomes no more than sir Thomas Moores Vtopia or such Pamphlets as wee haue at euerie Marte I beleeue him that saieth Per me Reges regnant Principes iusta decernunt And I make no doubt but that as God ordained kings and hath giuen Lawes to kings themselues so hee hath authorized and giuen power to Kings to giue Lawes to their subiects and so kings did first make lawes and then ruled by their lawes and altered and changed their Lawes from time to time as they sawe occasion for the good of themselues and their subiects And this power they haue from God almighty For as Saint Augustine saieth In hoc Reges Deo seruiunt sicut eis Diuinitùs praecipitur in quantum sunt Reges si in suo Regno bona iubeant mala prohibeant non solum quae pertinent ad humanam societatem verumetiam quae ad diuinam religionem And I hould Thomas Aquinas his opinion to be good Rex solutus à Legibus quòad vim coactiuam subditus est legibus quòad vim directiuam propria voluntate And for this opinion there is a stronger authoritie euen from God himselfe in Ecclesiastes ca. 8. ver 2. Ego os Regis obseruo Et praecepta iuramenti Dei ver 4. Sermo illius potestate plenus est Nec dicere ei quisquam potest quare ita facis Now beeing led a little from the Common Lawe to the Ciuile Lawe I finde in the ciuile Lawe a direct Text warranting that generall Rule which I reserued to this place which is this Inter aequitatem iusque interpositam interpretationem nobis solis licet oportet inspicere And another like Text in these words Sententia Principis Ius dubium declarans Ius facit quòad omnes And some graue and notable Writers in the ciuile Lawe say Rex est lex animata Some say Rex est lex loquens Some others say Interpretantur legem consuetudo Princeps Another saieth Rex solus iudicat de causa à iure non definita And as I may not forget Saint Augustines words which are these Generale pactum est societatis humanae regibus suis obtemperare So I may not wrong the Iudges of the common Lawe of