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ID Title Author Corrected Date of Publication (TCP Date of Publication) STC Words Pages
A02874 A treatise of vnion of the two realmes of England and Scotland. By I.H. Hayward, John, Sir, 1564?-1627. 1604 (1604) STC 13011; ESTC S103946 38,053 64

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diuers victories they changed name and called themselues Franci which in the Germane language signifieth free men Whereto agreeth that which Tacitus saith in describing their first victorie against the Romanes They are honored with great fame through Germanie and Gallia for authors of libertie These French in course and compasse of time seated themselues in Gallia and gaue name to the kingdome of that place But after the death of Clodoueus the first this kingdome of France was deuided among his foure sonnes whereupon new titles were erected Childebert being King of Paris Clodomir of Orleans Clotair of Soissons and Theodoric a bastard being King of Metz. After the death of Clotharius the like deuision was made among his sons none of them being entituled King of France Both these diuisions were vnited againe by right of blood whereupon these particular titles did cease and were changed into the auncient and generall name of France In Italy Aeneas hauing attained a state by mariage and collecting diuers people into one Liuie saith He ioyned them in one law and called them by one name Latines Afterward when the Romanes and the Sabines did knit together into one people it was vnder one common name Quirites The countrie of Spaine by meanes of diuers conquests of the Gothes Vandals and Moores was devided into many seuerall kingdomes not one of them bearing the name of Spaine These being vnited againe part by conquest and part by inheritance Charles the fifth comprehended them all vnder the auncient and generall name of Spaine I omit the Agarens who changed their name and would be called Saracens as bearing themselues descended from Sara the free-woman and not from the bond-woman Hagar I omit the Heluetians who now by confederation are called Suitzers which name was occasioned by the little village Suitz for that the inhabitants thereof were the first attempters of popular libertie I omit many other both voluntarie and casuall changes of name and will conclude this matter with one example of our owne nation When Egbert King of the West-Saxons had brought the Heptarchie of the Saxons vnder one scepter he changed not the names of the subdued kingdomes onely he respected not that he was possessed of the kingdomes of West-Saxons and of Sussex by right of blood whereof the first had continued in the progenic of Cerdicius from whom he was descended about 300. yeares the other had been annexed thereto almost 200 yeares before but changed the names as well of them as of the rest into one common name of England So that if we free our minds from rashnesse and dulnesse the two plagues of iudging right if wee esteeme these and the like proceedings by their naked nature and not by apparances onely and shifts we shall cleerely discerne that it is so farre from wanting example that there is scarce any example to the contrarie that diuers people haue perfectly and for long continuance combined together whether by conquest confederation or right of blood but it hath been vnder one common name But howsoeuer the tried truth doth stand it cannot be made so plainely to appeare but an itching tongue may rub against it To men fearefull or suspicious all fancies and coniectures seeme matters of truth and words doe easily slide into minds that are enclined to beleeue CHAP. XIII Of certaine obiections concerning matters of state inward or matters of law BVt because wee haue eares as well as tongues and the lightest reasons will seeme to weigh greatly if nothing bee put in the ballance against them let vs consider what other obiections are made against this Vnion of name and whether they be worthie either of yeelding or of answering It is said that this alteration of name will ineuitably and infallibly draw on an erection of a new kingdome or state and a dissolution and extinguishment of the old and that no explanation limitation or reseruation can cleere or auoyde that inconueniencie but it will be full of repugnancie or ambiguitie and subiect to much varietie and danger of construction That diuers speciall and seuerall confusions incongruities and mischiefes will necessarily and incidently follow in the present time As in sommoning of Parliaments and recitall of the acts of Parliament In the seales of the kingdome In the great offices of the kingdome In the lawes customes liberties and priuileges of the kingdome In the residence and holding of such courtes as follow the Kings person which by the generalitie of name may be held in Scotland In the seuerall and reciproque oathes the one of his Maiestie at his coronation which is neuer iterated the other in the oathes of alleageance homage or obedience made and renued from time to time by the subiects All which acts instruments and formes of gouernment with a multitude of other formes of records writs pleadings and instruments of a meaner nature runne now in the name of England and vpon the change would bee drawne into incertaintie and question In truth this is much if there bee much truth in it But for my part I wil not take vpon me either to determine or dispute what the law of the realme is cōcerning either this generall point of erection of a new state by alteration of name or the particular inconueniences which for the present will ensue referring my selfe herein to the learned Iudges and professors of the same Yet vnder the fauour and leaue of their iudgements I will propound only two or three doubts which will serue much to the cleering of this question protesting therewith that I beare herein rather a desire to be satisfied than a purpose to contend The first is how wee may bee assured that by the common lawes of England the change of name doth infallibly inferre an erection of a new kingdom and a dissolution of the old For the Common law is commonly taken for the common custome of the realme and therefore in making proofe thereof we vsually heare alleaged either Iudgements and presidents in cases of the same nature or else arguments drawne from cases somewhat like But this case in question hath not hitherto been thus determined by the common lawes of England because the name of a kingdome hath not bin changed since our common lawes were therein planted Or if it were changed by King Henry the second and by King Iohn who stiled themselues Kings of Britaine then was it without dissolution of the state As for arguments à similibus I doe not see of what force they can be in case of the Crowne because by the lawes of this realme the Crowne is not touched much lesse ruled and ordred either by generall termes or by implication neither doth any act concerne the same if expresse mention be not thereof made Againe if the change of name doth infallibly inferre the erection of a new kingdome it seemeth that the King hath power by vertue of his Proclamation to dissolue the whole state and erect a new Lastly the little alteration which ensued the
change of title we haue an eui●ent example in the countrie of Bohemia For when that forme of election of the Germaine Emperor was established which is yet in vse the Duke of Bohemia had authoritie to giue his voyce in case the other sixe Electors should be equally deuided Afterward the Duke was aduanced to the title of a King which was held no such alteration in that state that his priuiledg should be thereby either renewed or lost The greatest doubt is concerning change in forme of gouernment because vpon change in forme the substance is alwaies esteemed diuers But this is not true in accidentall formes it is true in that thing onely whereof the substantiall forme doth perish When the Kings were expelled out of Rome the Monarchicall forme of that gouernment did change and thereupon the Monarchicall Empire of Rome did cease but the Empire of Rome did not therefore cease The Romane Empire did alwaies remaine although the gouernment thereof was sometimes regal sometimes popular and sometimes mixt although the soueraigntie was transferred from Kings to Consuls and from Consuls to Emperors and although these Emperours did hold sometimes by succession and sometimes by election and that sometimes of the souldiers and sometimes of the Senate and now of the seuen Electors The forme of gouernment which was accidentall did change but the substantiall forme of Empire did remaine But then doth a kingdome or Empire dissolue when it loseth the libertie and then is a state newly erected when it beginneth to bee held free either from subiection or dependancie vpon any other Of the first Vlpian speaketh Seruitutem mortalitati comparamus We compare seruitude vnto death Of the second Modestinus Eo die incipit statum habere cum manumittitur State and libertie begin together So did all those kingdomes and common-wealths cease saith Decianus which were oppressed by the armes of the Romanes and so were those states newlie erected which could free themselues from that subiection And in truth by no other meanes a state can bee said to perish or cease according to the law of Nations but either by yeelding it selfe into subiection or else by being possessed with the power and armes of externall enemies But this faileth againe in three cases First when any part is retained free For that kingdome or Empire ceaseth not whereof any parcell is held at libertie because the least part of a kingdome either for hope of restitution or for some other fauourable respect doth conserue both the name and right of the whole euen as the right of a Colledge or of an Vniuersitie may be retained in one although in one it cannot be erected Another is if a kingdome be ouerrunne and spoyled by enemies but they depart againe not holding the same in their possession and power For this is as if a field should be surrounded with waters which in short time falling away leaueth it in the same condition and state as it was before And so the riuers Niger and Tigris doe remaine the same although they run many miles vnder ground The third is when the Victorer pretendeth title to the state and intendeth onely to reigne as King CHAP. XV. Of other obiections which concerne honour and reputation NOw the last sort of obiections which concerne honour and reputation are full of very emptie easinesse and seeme to serue rather for shew than for strength to supplie number but nothing at all to encrease weight These are that by this change the glorie and good acceptance of the English name and nation will be in forreine parts obscured that no worldly thing is deerer to men than their name as we see in great families that men disinherit their daughters to continue their name much more in states where the name hath been famous and honourable that the contracted name of Britaine will bring into obliuion the names of England and Scotland that whereas England in the stile is now placed before Scotland in the name of Britaine that degree of prioritie and precedence will bee lost and that the change of name will be harsh in the popular opinion and vnpleasing to the countrey Of all these obiections the more I think the lesse I know what to thinke For as I can suspect nothing lesse than want of iudgement in those that cast these inconueniences so doe they appeare vnto me neither so certaine nor of such qualitie that for auoyding of them wee should omit an aduantage both present and of great consequence and weight Although the 7. kingdomes of the Saxons were comprised vnder the name of England yet their seuerall names do still are still like to remaine and can we imagine that the names of England and of Scotland both more famous and of longer continuance will suddenly be either worne out or obscured Cannot the name be altered but it must also be forgotten Or can wee account the name of Britaine either so new or so harsh which hath continued to bee the name generally of the whole Iland but more specially of the parts of England and Wales euer since before the inuasion of the Romanes Or shall we contend for generall precedence with them with whom we intend or at least pretend desire to be one Can prioritie and vnitie stand together Some I grant vpon fond affection to their name haue disinherited their daughters but they were neuer allowed therein by any well grounded opinion S. Augustine saith If any man disinheriteth his daughter and maketh another his heire let him seeke what Counsailer he can he shall neuer be aduised thereto by Augustine Assuredly I feare that it is with vs as with some good women who are often sick forsooth but in faith they cannot well tell where Our fancies runne that something will be amisse but neither can it be well discerned by others neither is it fully perhaps resolued by our selues Things of greatest suretie breede many doubts in mindes that are determined to beleeue the contrary whereas in matters of this nature all points are not alwaies cast into question which may possibly happen for that many inconueniences are in imagination onely many are either dissolued by time or by industrie auoided much lesse are we bound to listen vnto those who confounding feare with discretion or else couering some corrupt conceit vnder the name of foresight and preuention doe stretch their thoughts beyond probabilitie and make all doubtfull accidents as if they were certaine Agendo audendoque res Romana creuit non his segnibus consilijs quae timidi cauta vocant By doing and by daring saith Liuie the affaires of Rome tooke encrease not by these dull and heauie counsailes which timorous men doe terme warie A wit too curious in casting of doubts for the most part hurteth and hee that omitteth an opportunitie present vpon supposed dangers if they be not both certaine and also neere shall neuer aduance his owne aduantage King Henry the seuenth aimed at