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
will spare to speake vvhat I thinke For Chrysostome teacheth mee Qui laudatur infacie flagellatur in corde In seeking out this depth of Reason the same Author giueth a caution which is this Vitium quod in hoc genere fugi debet est ne si Rationē non inuenias mox legem sine ratione esse clames And in 36. H. 6. Fortescue saieth the same in effect which is thus We haue many Courses and Formes which bee houlden for Lawe and haue beene houlden and vsed because of Reason and notwithstanding the reason be not ready in memory yet by study and labour a man may finde it Now when wee come to examine by reason whether Post-nati in Scotland shall be disabled as Aliens or shall be capable of lands in England as naturall borne subiects there wee are first to consider vvhat is the reason whie Aliens in the Dominions and vnder the obedience of other forraine Princes are nor capable of landes in England And surely the true reason is that which was noted by baron Altham and hath since beene ofte remembred viz. The danger that might thereby come to the king and the common-weale Specially by drawing hither too great multitudes of them for so the Treasure of the Realme might bee transported by them into other forraine Kingdomes and Countries whereby it might bee vsed against the King and to the preiudice of the State And besides they might vnder-hand practise Sedition and Rebellion in the kingdome and cause many other daungers and inconueniences but that reason cannot serue against Post-nati in Scotland now that there is but one King of both the kingdomes no more than it can serue against those that are borne in Ireland or Gernesey or Iersey and therefore in reason they are as capable of landes in England as the kings subiects of Ireland and Gernesey and Iersey are Against this there haue also beene many Obiections made and Reasons deuised that seeme witty and haue some shew of probability to proue that Post-nati in Scotland are Aliens and ought not in reason to bee capable of landes in England videlicet 1. That England and Scotland were two ancient seuerall kingdomes vnder seuerall kings and seuerall crownes 2. That they continue yet seueral kingdomes 3. That they haue yet seuerall Lawes seuerall Seales seuerall Crownes and seuerall Kings For it is said though king Iames be king of both and hath but one naturall body yet in iudgement of Law he is in respect of his two seuerall kingdomes as two seuerall kings and the subiects of ech seuerall kingdome are bound to him by distinct allegeance according to the seuerall Lawes of the kingdome where they were borne And all this is grounded vpon this rule or fiction in Lawe Quando duo iura concurrunt in vna persona aequum est ac si essent in diuersis And vpon this ground is this new form of pleading deuised which the Defendants haue vsed in this Case such as cannot be found in any Record euer to haue beene pleaded before and may as well serue against the Kinges subiectes of Ireland as against the Post-nati of Scotland And sithence in former times the like forme of pleading vvas neuer seene against any of the Kings of Englandes subiects which were borne in any of his dominions out of England as in Normandie or Aquitanie or in France I meane such part of it as was in the Kinges possession and in subiection and obedience to him and not in that parte of France which his enemies helde it may be probably inferred That it was then generally houlden that neither such a forme of pleading nor the Matter it selfe was sufficient in Lavve to disable anie such Plaintife for against French-men that vvere not vnder the Kings obedience wee finde it often pleaded And as those that were not subiects to the King nor borne vnder his obedience did then presume to bring suites and actions in England So it can not bee thought but that the king hauing then so large and ample Dominions beyond the Seas as Normandy and Aquitany and many other partes of France some of his subiects borne there had cause to haue and did bring the like suites in England And sithence no such Plea is found to haue beene then vsed against them it can not in Lawe and Reason bee now allowed against the Post-nati in Scotland For I may say as Ascue saied in 37. H. 6. Our Predecessors were as sage and learned as we be And I see not but that in this Case a good Argument may bee reasonably deduced from the Negatiue as it was in the Case reported by the great learned and most graue and reuerend Iudge sir Iames Dyer chiefe Iustice of the Common pleas Anno 23. Elizab. The Question there was Whether an erroneous iudgement giuen in Rie which is a member of the Cinqueportes might bee reuersed in the kinges Bench or Common place at Westminster And it was thus resolued Sed pro eo quod nullū tale breue in Registro nec in aliquibus Praecedentibus curiarum praedictarū inueniri potuerat dominus Cancellarius Bromley per opinionem Capitalium Iusticiariorum vtriusque Banci denegauit tale breue concedere And so Iustice Fenners argument houldeth well viz. There is in this Case no lawe to exclude the Complainant Ergo hee is a liege and a naturall borne subiect But the forme of pleading in the time of king Ed. 1. in Cobledickes case which was cited out of Hengam and the Booke shewed heere by the Lord chiefe Iustice Coke is so direct and plaine for this our Question as nothing can be more plaine and therefore I thinke it not amisse to report it againe That Case was in effect and substaunce thus A woman brought a Writte of Ayel against Roger Cobledicke and declared of the seisin of Roger her Grand-father and conueied the discent to Gilbert her father and from him to the Demaundant as his daughter and heire The Tenant pleaded that the Demaundant was a French-woman and not of the ligeance nor of the fidelitie of England and demaunded iudgement if shee ought to haue the action against him This plea vvas houlden to bee insufficient and thereupon the tenant amended his plea and pleaded further That the Demaundant was not of the ligeance of England nor of the fidelitie of the King and demaunded iudgement c. And against that plea none exception was taken but thereupon the Demaundant prayed licence to depart from her Writ By this it appeareth plainely that the first plea alleadging that she was a French-woman and not of the ligeance nor of the fidelitie of England was insufficient and so declared by Berreford the chiefe Iustice For there can bee no fidelitie nor allegeance due to England respecting the land and soile without a Soueraigne and King But the second Plea alledging that shee was not of the ligeance of England nor of the fidelitie of the King was good and sufficient For to the King fidelitie and
allegeance is due and therefore since shee failed in that she was not to be answered and thereupon she praied licence to departe from her Writte and so she left her suite Now for the reasons which haue beene drawne and strained out of the statute An. 14. Edw. 3. if they bee well examined they serue little for this point which we haue in hand It is to be considered at what time and vpon what occasion that Statute was made King Edw. the third being right heire to the Crowne and Kingdome of Fraunce by descent from his Mother and hauing spent many yeeres for the recouering of the same resolued to take vpon him the Name and Stile of King of France being aduised thereunto by them of Flaunders Hereupon he did take the Stile of King of Fraunce and altered his Seale and his Armes and after a while placed the Armes of France before the ancient Armes of England as they are borne at this day This gaue occasion for the making of this statute for some people Ascun gentes saith the statute seeing this change and considering the large and ample extent and the magnificence of that great Kingdome beganne to doubt that the king would make his Imperiall seate there and conceiued thereby that the kingdome of England being the lesser should bee in subiection of the king and kingdome of France being the greater and to bee gouerned and ruled by a Vice-Roy or Deputy as they saw Ireland was And though in the Kings Stile England was placed before France yet they sawe the Armes of France marshalled before the Armes of England though at the first bearing thereof some say it was not so To cleere this doubt and to take away this feare from the Subiects of England was this Statute made as doth plainely appeare by the wordes of the statute it selfe Now if you will make an apt and proper application of that Case then betweene England and Fraunce to this our Case now betweene Scotland and England it must be thus 1. Edw. 3. then king of England being the lesser had afterwardes the kingdome of France being the greater by descent and tooke the Stile of King of France King Iames king of Scotland beeing the lesser hath afterward the kingdome of England being the greater by descent and taketh the Stile of King of England 2. King Ed. 3. altered his Seale and his Armes and placed the Armes of Fraunce before the Armes of England King Iames hath changed his Seale and his Armes in England and hath placed the Armes of England before the Armes of Scotland 3. It was then doubted that King Edw. 3. would remoue his Court out of England the lesser and keepe his Imperiall seate and state in France the greater King Iames hath indeede remooued his Court out of Scotland the lesser and doth in his royall person with the Queene and Prince and all his Children keepe his Imperiall seate in England the greater 4. In al these the cases agree but yet one difference there is and that is in the Stile For king Ed. 3. in his Stile placed England the lesser being his ancient kingdome before France the greater being newly descended vnto him But King Iames in his Stile placeth England the greater though newly descended vnto him before Scotland the lesser being his ancient kingdome 5. Now this being thus perhappes Scotland might out of this Example haue conceiued the like doubt against England as England did then against France But as there was then no doubt made whether the kings subiects borne in England should be capable of lands in France so out of this statute and vpon this example no doubt can bee inferred whether the kings subiects now borne in Scotland shall be capable of lands in England But all these Obiections and the ground whereupon they are framed viz. Quando duo iura c. haue beene so thorowly and profoundly examined and so learnedly and fully answered and cleered by the Iudges as I make no doubt but all wise and indifferent hearers be well satisfied therein And if there bee any so possessed with a preiudicate opinion against Trueth and Reason that will say in their owne heartes licèt persuaseris non persuadebis so either Serpent-like stop their eares or else wilfully absent themselues because they would not heare the weaknesse and absurdities of their owne conceipts laied open and confuted If there bee any such I say as I trust there bee but few and yet I feare there bee some I would they had learned of Tertullian That Veritas docendo suadet non suadendo docet And I wish that they bee not found among the number of those to whome Saint Paul saieth Si quis ignorat ignoret And Saint Iohn in the Apocalips Qui sordidus est sordescat adhuc And I will exhort with Saint Paul Qui tenet teneat and not wauer or doubt by such weake arguments and obiections But in this new learning there is one part of it so strange and of so daungerous consequent as I may not let it passe viz. That the king is as a king diuided in himselfe and so as two kings of two seuerall kingdomes and that there be seuerall allegeances and seuerall subiections due vnto him respectiuely in regarde of his seuerall kingdomes the one not participating with the other This is a daungerous distinction betweene the King and the Crowne and betweene the King and the kingdome It reacheth too farre I wish euery good subiect to beware of it It was neuer taught but either by traitours as in Spencers Bill in Edward the seconds time which Baron Snig and the Lord chiefe Baron and Lord Coke remembred or by treasonable Papists as Harding in his Confutation of the Apologie maintaineth that Kings haue their authority by the positiue Lawe of Nations and haue no more power than the People hath of whome they take their temporall iurisdiction and so Ficlerus Simanca and others of that crew Or by seditious Sectaries and Puritans as Buchannon De Iure Regni apud Scotos Penry Knox and such like For by these and those that are their followers and of their Faction there is in their Pamphlets too much such traiterous seede sowne But leauing this I will adde a little more to prooue that in reason Robert Caluine and other like Post-nati in Scotland ought by Lawe to be capable of landes in England and for that I wil remember one rule more which is certen and faileth not and ought to bee obserued in all Interpretation of Lawes and that is Ne quid absurdum ne quid illusorium admittatur But vpon this subtle and dangerous Distinction of Faith and Allegeance due to the King and of Faith and Allegeance due to the Crowne and to the Kingdome which is the onely Basis and fundamentall maine reason to disable the Plaintife and all Post-nati there follow too many grosse and fowle absurdities whereof I will touch some few and so conclude that in Lawe and
England so much as to suffer an imputation to bee cast vpon them That they or the Common lawe doe not attribute as great power and authoritie to their Soueraignes the kinges of England as the Romane lawes did to their Emperours For Bracton the chiefe Iustice in the time of king Henry the third hath these direct wordes De Chartis Regijs factis regum non debent nec possunt Iusticiarij nec priuatae personae disputare Nec etiam si in illa dubitatio oriatur possunt eam interpretari Et in dubijs obscuris vel si aliqua dictio duos contineat intellectus domini Regis erit expectanda interpretatio voluntas Cum eius sit interpretari cuius est condere And Britton in the time of king Ed. 1. writeth as much in effect So as now if this question seem difficult that neither direct law nor Examples Precedents nor application of like cases nor discourse of reason nor the graue opinion of the learned and reuerend Iudges can resolue it here is a true and certen Rule how both by the Ciuile Lawe and the ancient Common lawe of England it may and ought to be decided That is by sentence of the most religious learned and iudicious king that euer this kingdome or Iland had But this Case is so cleare as this needeth not at all And in this I would not be mis-vnderstoode as though I spake of making of new Lawes or of altering the Lawes now standing I meane not so but I speake only of interpretation of the Lawe in new questions and doubts as now in this present case neither doe I meane hereby to derogate any thing from the high court of Parliament farre be it from my thought It is the great Councell of the kingdome wherein euery subiect hath interest And to speake of the constitution or forme of it or how or when it was first begunne is for busie Questionists It ought to bee obeyed and reuerenced but not disputed and it is at this time impertinent to this Question But certen it is it hath beene the wisedome of the Kinges of this Realme to reserue in themselues that supreame power to call their Nobles Clergie commons together when they sawe great and vrgent Causes and by that great Councell to make Edicts and Statutes for the weale of their people and safetie of the Kingdome and State as in Anno 10. Edw. 3. the Assembly at Nottingham for the great wars in France And in Anno 20. H. 3. Prouisiones Merton which I remembred before There haue beene made some Obiections of inconueniencie as for bearing of Scot and Lot and such other charges and some out of frugalitie that the king shall lose his profit of making Denizens and such like These are so light as I leaue them to the winde They are neither fit for Parliament nor Councell nor Court Another argument and reason against the Post-nati hath beene lately made out of diffidence and mistrust that they will come into England sans number and so as it were to surcharge our Common and that this may be in secula seculorum I know not well what this meanes The Nation is ancient noble and famous they haue many honourable and woorthie Noble men and Gentlemen and many wise and worthie men of all degrees and qualities they haue lands and faire possessions in Scotland Is it therefore to bee supposed or can it in reason bee imagined that such multitude sans number will leaue their natiue soile and all transport themselues hither Hath the Irish done so Or those of Wales or of the Isles of Man Gernesey and Iersey Whie should we then suspect it now more for Scotland Nay doe you suppose that the Kinge of England will euer suffer so great a parte of his Dominions and so great and famous a Kingdome as Scotland is to be dispeopled It is a doubt imagined without any foundation or ground of reason But if it were to bee doubted the twelue Iudges that haue concurred in opinion and that late worthy Iudge Popham had as great cause to feare it as any others They are wise they are learned they haue faire possessions and good estates They haue posteritie to care for as others haue Yet admit it bee a matter worth the doubting of what is that to the yoong Post-nati that are not like in many yeares to come hither in such number Shall we vpon this causlesse feare depriue them of their lawfull Birth-right Haue wee seene in these fiue yeeres past anie moe of them than this one alone that haue gotten any Lands in England And this little that he hath is so small and poore a portion that his purchase is not great and therefore no iust cause of offence to any Nay if you looke vpon the Ante-nati you shall find no such confluence hither but some few and very few in respect of that great and populous kingdome that haue done long and worthie seruice to his Maiestie haue and still doe attend him which I trust no man mislikes For there can bee none so simple or childish if they haue but common sense as to thinke that his Maiesty should haue come hither alone amongst vs and haue left behinde him in Scotland and as it were caste off all his ould and worthie Seruants And if these Noble and worthie Gentlemen of Scotland I meane the Ante-nati be louingly and brotherly entertained amongst vs with mutuall loue beneuolence that so we may coalescere be vnited together by marriage and otherwise as in some particular cases wee see it already happily begunne no doubt God will blesse this Vnion of both these Nations and make them and the King and great Britaine to be famous through the world and feared redoubted of our enemies and of all that wish vs ill For Vis vnita fortior concordia multos facit vnum But what may follow vpon such arguments of diffidence and suspition which seeme but to hinder Vnion and to breede discord and dissention I will not speake Let euery wise man consider it well For Humana consilia castigantur vbi coelestibus se praeferunt And remember Saint Paules caution Si inuicem mordetis videte ne ab inuicem consumamini And for the resemblance that hath bin made of this Case of Post-nati but indeed for the Vnion of both Kingdomes with the houswifes cutting of her cloth by a threede I will say but this That if shee cut her peece of cloth in length aswell as in breadth all the threeds will bee cutte and the cloth marred And this cutting in this our Case is to cutte all aswell in length as in breadth euen through all the Kinges Dominions and so will rent asunder the whole frame of the Vnion and cut in peeces all the threeds of Allegeance But now I wil aske this question How long shall this suspition and doubt continue Shall there bee a dis-vnion for euer If it bee saied No but