MY Lords, mine age, mine infirmitie, and in­disposition of health, my decaie and weake­nesse of memorie, and Desuetudo, and long dis­continuance from this maner of Legall ex­ercise (aboue foureteene yeeres) haue be­reaued mee of the meanes and helpes that should inhable me to speake in so great a Case.

[Page 2] I feare therefore, that it will be deem­ed presumption (if not worse) that I ad­uenture to speake heerein at all; specially after so many learned and iudicious Ar­guments of so many graue, learned, and reuerend Iudges.

To say the same that hath beene saied, must needes be vnpleasaunt, wearisome, and loathsome to the hearers; and not to say the same, is to speake little to the pur­pose: for, what more can bee saied than hath beene?

Yet, for that the Case is depending in Chancerie, and adiourned hither for dif­ficultie in Law, & there I must giue iudge­ment according to the Law, Whether the Complainant bee inhabled, by Lawe, to maintaine his suit in that Court, or not: I holde it more fitting to deliuer the reasons of my iudgement heere, where others haue beene heard, than there, before a few, which haue not heard that which hath beene so learnedly argued, and large­ly debated heere.

[Page 3] And therefore the Case standing thus, I will speake what I thinke: And I must say as one of the graue Iudges saied, I can tell no newes; But some old things which I haue read and obserued, I will remem­ber; but I can not diuine, or prophesie de futuris, I leaue that as Iustice Yeluerton did.

I am free, and at libertie Nullius addictus iurare in verba Magistri, and therefore I will speake ingenuously and freely.

In the arguing of this Case, some things which are of great weight with mee, haue (in mine opinion) beene passed ouer too lightly; and some other thinges which seeme to me but light, haue beene ouer­weighed, as I thinke.

Halfe an howers time longer or shorter I meane not to striue for, and 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 [Page 4] 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,The Case. is thus.

Robert Caluine, sonne and heire apparant of Iames L. Caluine of Colcrosse in the realme [Page 5] 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 [Page 6] 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 [Page 7] 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,The procee­ding in the ge­nerall Case of Post-nati. in the Statute made in the first yeare of his Maiesties raigne of England, authorizing the Treatie betweene the Commissioners for both the Kingdomes,Stat. 1. Iac. it is said (as Iustice Warburton noted well) That both the famous & ancient Realmes of England and Scotland, 19. Mart. 1603 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 [Page 8] 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. The Procla­mation, 2. Iacobi 20. Octobr. 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.

[Page 9] The same twentieth of October,The Commis­sioners autho­rized by Parli­ament, did be­gin 20. Octob. and did conti­nue vntill 6. Decemb. 2. Iacobi. 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,The resoluti­on of the Cō ­missioners. 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 shalbe 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. [Page 10] 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 [Page 11] great and weighty importance, and much to be regarded in the deciding of this que­stion.

According to this Act of the Commis­sioners,The Iudges opinion in Parliament. 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 Question was debated in a solemne Conference be­tweene both the Houses of Parliament at seuerall times, and at great length, and with much libertie: Nothing was omit­ted that Wit or Art could inuent to ob­iect against this opinion; And that was done by men of great learning, and sin­gular iudgement in the Common Lawe, and Ciuile Lawe; and by some other Gen­tlemen of the Common House, of rare [Page 12] gifts for their learning knowledge, elocu­tion and experience.

At this Conference the Iudges were present; who, after they had heard all that was, or could be said, did confirme their former opinions, which they had before deliuered in the higher House: Three of the chiefe of them declaring their reasons, and all the rest (sauing one alone) concurring in the same. So, here was now a generall resolution by all the Iudges of the Realme (one excepted) and that deliuered, not priuately, but in Parliament; which without more adoe had beene sufficient to haue decided and determined this Question.

Touching the Proclamation,The force and strength of the Kings procla­mations. it was dis­creetely and modestly saied by a learned Gentleman of the lower House. That it was of great respect, and much to bee re­garded; but yet it was not binding, nor concluding: for, Proclamations can nei­ther make, nor declare Lawes: And be­sides, [Page 13] that this Proclamation was not grounded vpon any resolution of the re­uerend Iudges; but vpon the opinion of some skilfull in the Lawes of this Land.

Of the strength of Proclamations, be­ing made by the King, by the aduise of his Counsell and Iudges, I will not dis­course; yet I will admonish those that bee learned and studious in the Lawes, and by their profession are to giue coun­sell, and to direct themselues, and others, to take heede that they doe not contemne, or lightly regard such Proclamations.

And to induce them thereunto, I de­sire them to looke vpon, and consider ad­uisedly these few Proclamations, Prouisi­ons, or Ordinaunces, which I will point out vnto them; and of what validitie and force they haue beene houlden to bee in construction of Lawe, albeit they be nei­ther Statutes, nor Acts of Parliament.

M. 4. H. 3. in Dower,Fitzh. Dower. 17 [...]. the defendant plea­ded, Quod petens est de potestate Regis Fran­ciae, & residens in Francia; Et prouisum est [Page 14] à Consilio Regis, quod nullus de potestate Regis Franciae respondeatur in Anglia antequam An­gli respondeantur de iure suo in Francia. This the Plaintifes Atturney could not denie; and thereupon the iudgement was, Ideo sine die.

Anno 20. Hen. 3. certaine Prouisions and Ordinaunces were made which were cal­led Prouisiones Merton, where the King as­sembled his Archbishops, Bishops, Earles, and Barons for the Coronation of the King, and his wife Queene Elenor; and the words be, Prouisum est in curia Dom. Re­gis apud Merton corā Willihelmo Cantuari­ensi Archiepiscopo, & Coepiscopis, Suffragane­is suis; Et coram maiori parte Comitum & Baronum Angliae ibidem existentium pro Coro­natione ipsius Domini Regis & Helionorae Re­ginae, pro qua omnes vocati fuerunt: Cum tractatum esset de communi vtilitate Regni super articulis subscriptis. Ita prouisum fuit & concessum, tam a praedictis Archiepiscopis, Episcopis, Comitibus, & Baronibus, & alijs. De viduis primò &c.

[Page 15] Fitzherbert citeth a Prouision made An­no 19. H. 3.Fitzherbert Nat. Br. 32. in these words, Et prouisum fuit coram Domino Rege, Archiepiscopis, Episco­pis, Comitibus, & Baronibus, Quod nulla As­sisa vltimae praesentationis de caetero capiatur de Ecclesiis, Praebendatis nec de Praebendis. This Prouision was alowed and continued for Lawe, vntill W. 2. Anno 13. Edw. 1. ca. 5. which prouides the contrary by expresse words.

Anno 6. Ed. 1. Anno 6. Ed. 1. the King and his Iudges made certaine Explanations of the Sta­tute of Gloucester, Explan. stat. which are called, Expla­nationes statuti Glocestriae: Gloucestr. And these be the words. Postmodum per Dominum Regem & Iusticiarios suos factae sunt quaedam Explana­tiones quorundam articulorum superius posi­torum. Which Explanations haue euer since beene receiued as a Law.

There is a Proclamation by King Ed. 3. A Proclama­tion. 15. Ed. 3. bearing Teste at Westminster Anno 15. Edw. 3. And Iudge Thorpes opinion Pa. 39. Ed. 3. 7. both which I will now forbeare to report, and wish the Students to reade the same [Page 16] in the printed Bookes, where they shall see both the effect, and the reason, and the cause thereof; They are worth their rea­ding, and may informe and direct them what iudgement to make of Proclamati­ons.

Touching the opinion of the Iudges,How the Iud­ges opinion deliuered in parliament ought to be regarded. some haue obiected (yet modestly, and I suppose, according to their conscience and vnderstanding) That there is not like regarde to be had of Iudges opinions giuen in Parliament,Obiect. as ought to bee of their iudgements in their proper Courts and Seates of Iustice: for, in those places their Oath bindeth them; but not so in the other.

1. To this I answere:Respons. The reuerence, and woorthinesse of the men is such, as is not to bee quarrelled and doubted of, if there were no Oathe at all: For, if men of so great and eminent places feare not God and his iudgements, euen out of a [Page 17] religious conscience, which is Fraenum an­te peccatum, & flagrum post peccatum, it may be doubted that the externall ceremonie of adding a Booke will little auaile.

2 Their Oath doth bind them as much in the Court of Parliament, as in their pro­per Courts: for, that is the supreme Court of all; and they are called thither by the Kings Writ, not to sit as Tell-clockes, or idle hearers; but, quòd personalitèr intersitis nobiscum, ac cum caeteris de Consilio nostro su­per dictis negotijs tractaturi, vestrum (que) Consi­lium impensuri: And those Negotia be Ar­dua & vrgentia negotia Regni &c. And their Oath, amongest other things, is, That they shall counsell the King truely in his businesse.

3 This Exception may serue against the Iudges, as well in Cases when they sit and giue iudgement, as Iustices of Assises, Nisi prius, Oyer and Terminer, and Gaole Deliuerie, as in this Case of Parliament: for, there they haue none other Oath but their generall Oath.

[Page 18] 4 It becomes vs to esteeme of Iudges now, as our forefathers esteemed them in times past; for, as they succeede them in Time and Place (I thanke God, and the King, I haue neither cause to feare any for displeasure, nor to flatter any for fauour: wherefore I will neither be afraid, nor a­bashed to speake what I thinke:) I say therefore, that as our Iudges now succeed the former Iudges, in Time and Place; so they succeede them, and are not inferior to them in Wisedome, Learning, Integritie, and all other iudicious and religious Ver­tues.

Then let vs see what the wisedome of Parliaments in times past attributed to the Iudges opinions declared in Parlia­ment; Of which there bee many Exam­ples; but I will trouble you but with two or three.

I wil not remember Richard the seconds time (of which some of our Chroniclers doe talke idely, and vnderstand little) where power and might of some potent [Page 19] persons oppressed iustice, and faithfull Iudges, for expounding the Law sound­ly, and truely. The first that I will re­member, is this.

In the Parliament 28. H. 6. 16. Ianuarij, the Commons made suite, That W. de la Poole Duke of Suffolke should bee commit­ted to prison for many treasons and o­ther hainous crimes committed by him. The Lordes in Parliament were in doubt what answer to giue; they demaunded the opinion of the Iudges: Their opinion was, That hee ought not to bee commit­ted; And their reason was, for that the Commons did not charge him with anie particular offence, but with generall slaunders and reports; And therefore be­cause the Specialties were not shewed, hee was not to bee committed. This opinion was allowed; And thereupon 28. Ianuarij, the Commons exhibited certaine speciall Articles against him, viz. That hee con­spired with the French King to inuade [Page 20] the Realme &c. And thereupon hee was committed to the Tower.

2 In the Parliament Anno 31. H. 6. in the vacation (the Parliament being conti­nued by prorogation) Thomas Thorpe the Speaker was condemned in a thousand pounds dammages in an action of Tres­passe, brought against him by the Duke of Yorke, and was committed to prison in Execution for the same. After, when the Parliament was re-assembled, the Com­mons made suite to the King and the Lords, to haue Thorpe the Speaker deli­uered, for the good exploite of the Parli­ament; whereupon the Duke of Yorkes Counsell declared the whole Case at large. The Lords demaunded the opi­nion of the Iudges, whether, in that Case, Thorpe ought to bee deliuered out of pri­son by Priuiledge of Parliament: The Iudges made this aunswere, That they ought not to determine the Priuiledge of that high Court of Parliament; But for [Page 21] the declaration of proceeding in lower Coutts, in cases where Writtes of Super­sedeas for the priuiledge of the Parliament be brought vnto them, They aunswered: That if any person that is a Member of the Parliament bee arrested in such cases as bee not for treason or felonie, or for suretie of Peace, or condemnation had before the Parliament, it is vsed that such persons be released; and may make At­turney, so as they may haue their free­dome and libertie, freely to intend the Parliament. Hereupon it was concluded, That Thorpe should still remaine in pri­son according to the Lawe, Notwithstan­ding the priuiledge of Parliament, and that hee was the [...]peaker. Which resolu­tion was declared to the Commons by Walter Moyle, one of the Kings Serieants at Lawe. And then the Commons were commaunded in the Kings name, by the Bishop of Lincolne (in the absence of the Archbishop of Canterbury then Chauncel­lor) to choose another Speaker.

[Page 22] 3 In the Parliament An. 7. H. 8. a Que­stion was moued, Whether spirituall per­sons might bee conuented before tempo­rall Iudges for criminall causes; There sir Iohn Fineux and the other Iudges deliue­red their opinion, that they might and ought to bee so. And their opinion was allowed, and maintained by the King and the Lords: And D. Standish, who before had houlden the same opinion, was deli­uered from the Bishops. And it is worth the noting, what wordes passed in that Case betweene the Archbishop of Canter­bury, and that worthy Iudge Fineux.

4 If a Writ of Errour bee brought in Parliament vpon a Iudgement giuen in the Kings Bench,Writs of Er­rour sued in parliament. the Lords of the high­er House alone (without the Commons) are to examine the Errours; But that is by the aduise and Counsell of the Iudges, who are to informe them what the Lawe is, and so to direct them in their iudge­ment. And if the iudgement bee reuersed, [Page 23] then commaundement is to bee giuen to the Lord Chancellour to doe Execution accordingly. And so it was in Anno 17. R. 2. in a Writte of Errour brought in Parlia­ment by the Deane and Chapiter of Lich­field, against the Prior and Couent of New-port-Panell, as appeareth by the Record. But if the iudgement bee affirmed, then the Court of the Kings Bench are to pro­ceede to execution of the Iudgement, as it appeareth in Flowerdewes Case P. 1. H. 7. fol. 19. But it is to bee noted, that in all such Writtes of Errour, the Lords are to proceede according to the Lawe; and for their iudgement therein they are infor­med and guided by the Iudges, and doe not follow their owne opinions or discre­tions otherwise.

This extrauagant Discourse touching Proclamations, and Iudges opinions de­liuered in Parliament, and how they ought to bee regarded, I haue thought materiall and necessarie, both in respect [Page 24] of the time wherein wee liue, and the Mat­ter which we haue in hand: And these bee thinges which I thinke haue beene too lightly passed ouer: But if you condemne it as impertinent, I must then confesse I haue presumed too much vpon your pati­ence; I pray you beare with mee, it is but my labour lost, and a little time mis-spent, if it seeme so vnto you: You are wont to pardon greater faultes; Call it either a Passe-time, or Waste-time, as pleaseth you. Now, to returne to the Case we haue in hand.

The generall Question hauing had this passage (by Proclamation,The processe and forme of proceeding in the Case of R. C. now in que­stion. by Com­mission, and by debating in Parliament) remaineth yet without cōclusion or iudge­ment: And as euerie man abounds in his owne sence, so euery one is left to his owne opinion; Specially those that were not satisfied with the graue Resolution of the Iudges in Parliament, which (al­though some may tearme and accompt [Page 25] as bare opinions) I must alwayes valew, and esteeme as a reall and absolute iudge­ment. Now, I say, this generall Questi­on is reduced to two particular Cases, and is iudicially depending in two the highest Courts of Iustice in this Realme; and that is by one Complainant against seuerall Defendants for the freehoulde and inhe­ritance of seuerall parcells of Land: and (as M. Solicitor said well) is a Case, not fained, nor surmised, but a true Case be­tweene true parties: And being Quaestio iuris, non facti, is by both these Courts adiourned hither to bee decided, and de­termined by all the Iudges of England, as the rarenesse of the Case, and the weight and importaunce of it, both for the pre­sent and the future doth require.

And the Case being of this nature and qualitie, it is not amisse to obserue the proceeding in it: for, it is woorth the ob­seruing, and not to bee forgotten. The Defendants counsell, men of great learn­ing, and in their profession inferiour to [Page 26] none of their qualitie and degree, men conuersant and well exercised in the Que­stion, and such as in the great conference in parliament, most of them were specially selected & chosē (for so they wel deserued) as most sufficient, able, and fit, as well for Learning and Knowledge, as for all other giftes of Witte and Nature, to handle so great and rare a Question. And although it hath pleased them of their good discre­tion to vse the paines but of a few in the debating and arguing of the Case at the Barre: yet no doubt that was done vpon mature deliberation and conference with all the residue: And whatsoeuer the Spi­rites, the Learning, the Wisedome, and Knowledge of all the others, vpon long study could affoorde, was put into the mouth of those few to serue as Organs and Instruments to deliuer it vnto vs; which they haue so well and sufficiently performed, that they deserue great praise and commendation: For, in my poore opinion, the witte of man could not de­uise [Page 27] to say more touching this Question in Lawe than they haue saied. And what­soeuer hath beene sithence spoken for that part, it is for the Matter but the same in substance, which the counsell at the Barre did deliuer; though it hath beene vari­ed in forme, and amplified with other wordes and phrases, and furnished with shew of some other strained Cases and au­thorities.

The handling of it by the learned and reuerend Iudges, hath beene such, as it may appeare to the world, that euerie one hath spoken his owne heart and con­science; and hath laboured by long stu­die to search out the Lawe and the true rea­son of the Lawe in this rare Case; and so they haue spoken, as Coram Deo & Angelis: None, with desire to seeme popular; for nothing ought to bee tam populare quam veritas: None to seeme to be Time-seruers, or Men pleasers; for the King (whome vnder God they serue) being Pater patriae, and soueraigne head of both these great [Page 28] vnited Kingdomes, is to them both, like as the head of a naturall body is to all the Members of the same, and is not, nor can not bee partiall more to one than to an o­ther. Hee deliteth in truth, and desireth it; and without truth hee can not bee pleased. Hee ruleth by his Lawe, and commaundeth his Iudges to minister to all his Subiects Lawe and Iustice sincerely, and truely; and equally and indifferent­ly, without any partiall respect.

It was neuer seene, but that in all rare and difficult Cases, there haue beene di­uersitie of Opinions; but yet without breach of Charitie, which is the Bond of Vnitie. So it hath happened in this Case. The Case hath beene argued at large by foureteene learned Iudges; twelue of them haue concurred in iudge­ment, but vpon seuerall reasons: for, as many wayes may leade to one end of the iourney; so diuerse and seuerall reasons may conduce to one true and certaine conclusion.

[Page 29] And here I may not omit the woorthie memorie of the late graue and reuerend Iudge, Sir Iohn Popham, chiefe Iustice of the Kings Bench deceased (a man of great wisedome, and of singular learning and iudgement in the Lawe) who was abso­lutely of the same opinion, as he often de­clared, as well in open Parliament, as o­therwise.

The Apostle Thomas doubted of the Resurrection of our Sauiour Iesus Christ, when all the rest of the Apostles did firm­ly beleeue it: But that his doubting con­firmed, in the whole Church, the Faith of the Resurrection.

The two woorthy and learned Iudges that haue doubted in this Case, as they beare his Name, so I doubt not but their doubting hath giuen occasion to cleare the doubt in others; and so to confirme in both the Kingdomes, both for the Present and the Future, the truth of the iudgement in this Case.

[Page 30] Thus, my Lords, haue you hitherto no­thing from mee but Amen, to that which all the Iudges (sauing two) haue saied; and much more you cannot expect from mee: Yet, since I must giue iudgement in this Case; and I saied in the beginning, that I would render the reasons of my iudge­ment: (for that is the course of argument I must houlde) I will now deliuer vnto you, what are the speciall and principall reasons that first haue induced mee, and still mooue mee to houlde the opinion that I doe: And as I goe, I will indeuour to cleere some doubts and questions, that partly in the conference in Parliament, and partly otherwise, I haue heard made; not onely touching this Case it selfe, but also touching the forme and manner how it is to be decided and iudged.

The Case is rare,How this Case is to be iud­ged, and by what Law. and new (as it hath beene often saied) it was neuer decided Terminis terminantibus; It was neuer iud­ged by any Statute Lawe, which is a po­sitiue [Page 31] Lawe; nor by iudgement of the Iud­ges of the common Lawe.

Now, the first Question is (as some would haue it) How it is to be iudged, and by what Lawe; and haue wished that it might haue stayed vntill the Parlia­ment, and so bee decided by Parliament. They that make this doubt, I will let them demurre, and die in their doubts: For, the Case beeing adiourned hither before all the Iudges of England, is now to be iud­ged by them according to the common Lawe of England; and not tarrie for a Par­liament: For, it is no transcendent Que­stion, but that the common Lawe can and ought to rule it, and ouer-rule it, as Iustice Williams said well.

But then this Question produceth an­other;What is the common Law of England: & whether it be Ius scriptum That is, What is the Common Lawe of England; Whether it be Ius scrip­tum, or non scriptum; and such other like niceties: For, wee haue in this Age so many Questionists;Questionists and Quo modo and Quare, are so common in most mens [Page 32] mouthes, that they leaue neither Religi­on, nor Lawe, nor King nor Counsell, nor Policie, nor Gouernment out of que­stion.

And the end they haue in this Questi­on, What is the Common Lawe? is to shake and weaken the ground and princi­ples of all gouernement: And in this par­ticular Question of the Law of England, to ouerthrow that Law whereby this Realme hath many hundred yeares beene gouer­ned in all honour and happinesse: or at least to cast an aspersion vpon it, as though it were weake and vncertaine. I will therefore declare mine opinion in this point plainely and confidently, as I thinke in my conscience, and as I finde to be sufficiently warranted by ancient Wri­ters, and good authorities voide of all ex­ception.

The common Law of England is groun­ded vpon the Law of God,The ground of the Com­mon Law. and extendes it selfe to the originall Lawe of Nature, and the vniuersall Lawe of Nations.

[Page 33] When it respects the Church, it is called Lex Ecclesiae Anglicanae, as Magna Charta ca. 1. Ecclesia Anglicana habeat omnia sua iura integra & illaesa.

When it respects the Crowne, and the King, it is sometimes called Lex Coronae, as in Stat. 25. Edw. 3. cap. 1. Lex Coronae An­gliae est & semper fuit &c. And it is some­times called Lex Regia, as in Registro fo 61. Ad iura Regia spectat: And, Ad conseruatio­nem iurium Coronae nostrae, & ad iura Regia ne depereant &c.

When it respectes the common sub­iects, it is called, Lex Terrae; as in Magna Charta ca. 29. Nisi per legale iudicium parium, vel per legem Terrae.

Yet,The common Law is not o­riginally Lex scripta. in all these Cases, whether it re­spectes the Church, the Crowne, or the Subiects, it is comprehended vnder this generall tearme; The common Lawes of England: Which although they bee for a great parte thereof reduced into writing; yet they are not originally Leges scriptae.

This I first learned of the late Lord Trea­surer [Page 34] Burleigh (whose Honourable me­morie England can neuer forget) and hea­ring it from him, I indeuored by my pri­uate studie to satisfie my selfe thorowlie in it. And, whosoeuer shall well consi­der the Lawes of England, which were be­fore the Conquest (whereof wee haue some Remnants and Patches) or since the Conquest vntill Magna Charta, Anno 9. H. 3. will make little doubt of it.

In H. 2. time Glanuile writeth thus; Le­ges Anglicanas licèt non scriptas, leges appella­ri non videtur absurdum.

And in Hen. 3. time Bracton writeth thus; Cùm autem ferè in omnibus Regionibus vtantur legibus & iure scripto, sola Anglia v­sa est in suis finibus iure non scripto & consue­tudine; in ea quidem, ex non scripto Ius venit quod vsus comprobauit.

But I may not agree with Bracton, that Sola Anglia vsa est iure non scripto: For I find that the grauest, and the greatest learned Writers of the Ciuile Lawe, both auncient [Page 35] and of this our time, doe hould the same opinion, touching the Ciuile Lawe it selfe, for thus they write: Ex non scripto Ius ve­nit quod vsus approbauit. And thus; Ius Ci­uile dictum ex non scripto natum est. And; Ius non scriptum dicitur Consuetudo, non quod scripto perpetuò careat, hoc enim falsum est. Nam & Consuetudines in memoriam constan­tiorem reducuntur in Scripturam, vt caetera quo (que) quae sine scriptura perficiuntur: Sed non scriptum ius est: id est, quòd à scriptura vis e­ius non coepit nec pendeat. So, hereby it may appeare how in this wee concurre with the Ciuile Lawe.

But hereupon these Questionists moue an other Question,How the common Law of England may be knowne. viz. If the common Lawe be not written,Obiect. how then shall it be knowen?

To this I aunswer;Respons. It is the common custome of the Realme (as Bracton saieth, Ius venit quod vsus comprobauit:) And it [Page 36] standeth vpon two maine pillers & prin­cipall parts, by which it is to bee learned and knowen.

The first is,Maximes and Principles. certaine knowne princi­ples and Maximes, and ancieut Customes, against which there neuer hath beene, nor ought to bee any dispute. As in Cases of Subiects; an estate in Fee-simple, for life, for yeeres, Dower, Curtesie &c.

In Cases of the Crowne, the Female to inherite: the Eldest sole to bee preferred: No respect of Halfe Blood: No tenant in Dower, or by the Courtesie of the Crowne: No disabilitie of the Kings per­son by infancie &c.

The second is,Responsa pru­dentum. where there be no such Principles, then, former iudgements gi­uen in like Cases: And these be but Arbi­tria Iudicum, & Responsa Prudentum, recei­ued, allowed, and put in practise and ex­ecution by the Kings authoritie.

[Page 37] Of these Bracton speaketh; Ego H. de Bracton animum erexi ad vetera Iudicia iu­storum perscrutanda; facta ipsorum, Consilia, & Responsa in vnam summam redigendo com­pilaui.

And before the Conquest, King Ethel­bert caused a Booke to bee made, which was called Decreta Iudiciorum: And king Alured did the like,Lambard in ex­plicatione verbi Hyde. as master Lambard a iu­dicious and learned obseruer of Antiqui­ties, doth remember.

Of these also the Iudges speake H. 33. H. 6. Moyle, fo. 8. We rule the Law according to the auncient course. Ashton, fol. 9. All our Lawe is guided by Vse, and by Statute. And Prysot saieth, fol. 9. There cannot be a positiue Law, but such as was iudged or made by Sta­tute. Wherein I note also that hee equal­leth a Iudgement with a Statute.

In 36. H. 6. fol. 25. Fortescue reasoneth thus; The Lawe is as I haue said, and so hath beene alwaies since the Lawe beganne.

In 37. H. 6. f. 22. Ascue reasons thus; Such a Charter hath bin allowable in the time of our [Page 38] Predecessours, which were as sage and lear­ned as we be.

In H. 4. Edw. 4. fol. 41. Markham reaso­neth thus; It is good for vs to doe as it hath bin vsed before this time, and not to keepe one way one day for one party, and another day the contrary for the other party: And so the former Precedents be sufficient for vs to follow: And iudgement was giuen accordingly.

And in the former Case 36. H. 6. Anno 36. H. 6. For­tescue saith further; Wee haue many Courses and Formes which be houlden for Lawe.

Also euerie one of these foure princi­pall Courts, The Chauncery, Kings Bench, Common-plees, and Eschequer, haue in many things seuerall courses and formes which are obserued for Law, and that not onely in that proper Court, but also in all Courtes through the Realme; whereof many Examples bee remembred in the Case of the Mines in Plowdens Commenta­ries.

The third:In nouo casu no­uum remedium. But if there be no such for­mer [Page 39] Iudgements, nor direct Examples or Precedents, then this Rule hath a further extention, which is this.

There is a Rule in the common Lawe, that in nouo casu nouum remedium est apponē ­dum. Et concordent Clerici de Breue faciendo, ita quod nullus recedat à Cancellaria sine reme­dio. For the Chācery is properly Officina Iu­stitiae & AEquitatis; where all original writs (which in ancient times were the Grounds of all Suites) are deuised and framed. And these Clerici were graue and auncient men; skilfull, & long experienced in the course of the Chancerie; and called Clerici de prima forma: And of late time Magistri Cancella­riae; who in new and strange cases, besides their owne knowledge and experience, had oftentimes conference with the graue Iudges for the deuising and framing of new Writtes when neede required. And this I take to bee the same which is in the Statute W. 2. cap. 24.St. W. 2. ca. 24. Et quotiescun (que) de cae­tero euenerit in Cancellaria,Anno 13. Ed. 1. quod in vno casu [Page 40] reperitur breue, & in consimili casu, cadēte sub eodem iure & simili indigente remedio, non re­peritur, Concordent Clerici de Cancellaria in breui faciendo, vel atterminent querentes in proximum Parliamentum: Et scribantur casus in quibus concordare non possunt, & referant eos ad proximum parliamentum: Et de con­sensu Iurisperitorum fiat Breue, ne contingat de caetero, quòd Curia Regis deficiat conque­rentibus in Iusticia perquirenda.

Wherein I note these three thinges: First, The Clerkes are to agree; and if they agree, that is an end, and standes for Lawe, and then no referrement to the Parliament. Second, If the Clerks agree not, and so the Case be referred to the Par­liament; Then De Consensu Iurisperitorum fiat Breue: So Consensus Iurisperitorum is the Rule, and not the multitude of vulgar opi­nions. The third is, That Iustice faile not them which complaine: Which will of­ten faile, if you stay vntill a Parliament: For Parliaments are not to be called for the wrong of a few priuate Subiects: but for [Page 41] the great and vrgent affaires of the King and the Realme.

I finde also a like Rule in the Ciuile Lawe; Vbi non est di­recta Lex &c. Vbi non est directa lex standum est ar­bitrio Iudicis, vel producēdum ad similia. And another saith, De similibus ad similia iudici­um & argumentatio recipiuntur.

4 Besides these,Rex solus iudi­cat, &c. there is an other generall and certaine Rule in the Ciuile Lawe, which I reserue to the last parte of that which I meane to speake in this Mat­ter.

So, leauing that vnto a more proper place, I will hereupon conclude, That if there bee no former Iudgements, nor Examples, nor Precedents to bee found, then Concordia Clericorum, & Arbitrium Iu­dicum is to seeke out the true and solide reason; and thereupon to ground their Iudgements in all new Cases: For it was truely saide by a learned Gentleman of the lower House, Deficiente lege recurrendum est ad consuetudinem: Deficiente consuetudine re­currendum [Page 42] ad rationem. And so from the Iudges we shall haue Responsa prudentum to decide all such new Cases and Questions. And according to this Rule, all such new doubts and questions haue beene resolued and decided by the graue Iudges in former times.

But here,A request to the professors of the Ciuile Lawe. before I proceede further, I am to make a suite, which is this:

That whatsoeuer I haue spoken, or shall happen to speake of the Ciuile Lawe; or whatsoeuer I shall cite out of any Wri­ter of that Lawe, I pray fauour my Ma­sters that professe it. I acknowledge that Lawe to be auncient and generall in many parts of the world; and I reuerence the professors of it, as men of great learning, wisedome, and iudgement. I professe it not; I haue learned little of it; but in that little I haue found that in the reall and es­sentiall partes of Iustice, the Ciuile and common Lawe doe in many things con­curre, though they differ much in the [Page 43] forme and manner of proceeding. And that which I shall haue occasion to pro­duce of that Lawe, will bee to shew how the common Law and Ciuile doe agree in one reason and iudgement in those things which I shall speake of.

Yet I must take libertie to say, That neither in Spaine, nor in France (those two great Monarchies) it is not generally recei­ued nor allowed as a concluding and bin­ding Law.

They take there the reason of it onelie as a directiō to their proceeding & iudge­ment: But to produce or alleadge it as a concluding or binding Law, was no lesse than Capitis poena.

This I make not of my selfe; for, be­sides common practise and experience, I haue an honest and substantiall witnesse, Master Adam Blacwood a Scottishman, Blacwood ca. 10 a man of singular learning in the Ciuile Lawe, who defendeth in like manner the Lawes of Scotland, as appeareth in his learned Booke intituled, Pro Regibus Apo­logia, [Page 44] written by him against a seditious Dialogue or Libell made by George Bucha­nan, De iure regni apud Scotos, where he tells him, Aliud Sceptrum, aliud Plectrum. But it is not amisse to recite his owne words, which are thus; Philippus cognomento Pulcher, cùm Lutetiae supremae iurisdictionis curiam institu­eret, eam Romano iure solutam esse declarauit in eam (que) sententiam vetus extat eius Curiae de­cretum, ne causarum patroni Romanarum Le­gum auctoritatem patriae legibus opponant. Sed cùm illae bono & aequo niti videntur & proba­bilem vtilitatis publicae causam continere, nos earum vtimur haud imperio, sed ratione cui omnes homines naturae praescripto subijciuntur. Quin etsi quid aduersus rationem legum Ro­manarum perperàm ac temerè iudicatum est, id earum multis poenis haud aestimatur, sed vel Principis, vel superioris magistratus arbitra­tu. Nam cùm in publici muneris partem admit­timur, & conceptis verbis inauguramur, so­lemni sacramento regiarum & municipialium legum at (que) morum obseruationem, nulla Roma­ni iuris mentione, spondemus. Apud Hispanos [Page 45] capitis poenam ijs indictam legimus qui Roma­narum legum auctoritatem vel in foro lauda­rent, vel in puluere scholastico profiter entur. Sed si quid occurreret patrijs legibus ac mori­bus indefinitum quod iudicanti religionem ad­ferret, vnicum erat eximendo scrupulo regis consulendi remedium. Alaricus Tolosae regnans, idem Gothis imperauit, vt si quis aduersus ip­sius leges, Ciuile Romanorum ius citaret, te­merè factum morte lueretur.

Now to returne to that which I haue touched before,Recurrend▪ ad Rationem &c. I say, that when there is no direct Lawe, nor precise Example, we must Recurrere ad rationē, Quod non lego non credo. & ad responsa prudentum: For, although Quod non lego, non credo, may bee a true and certaine rule in Diuinitie; yet for interpretation of Lawes, it is not alwaies so: For wee must distin­guish betweene fidem moralem, and fidem diuinam, or else wee shall consound many things in the ciuile and politike gouerne­ment of Kingdomes and States. For, the first Precedent which wee haue now, had no precedent when it began; But as Taci­tus [...] [Page 44] [...] [Page 45] [Page 46] saith, Quae nunc vetustissima creduntur noua fuerunt, & quod hodie exemplis tuemur, inter exempla futurum est. And to those that hould, that nothing is to bee done but by former Examples, Horace speaketh thus; O imitatores seruum pecus: And Cicero saith, Non exempla maiorum quaerenda, sed confilium est eorum à quibus exempla nata sunt explicandum.

Thus hath Iustice beene duely admini­stred in England, and thereby the Kings haue ruled, the people haue beene gouer­ned, and the Kingdome hath flourished for many hundred yeeres; and then no such busie Questionists moued any quar­rell against it.

Thus haue all doubts growing vpon Magna Charta, Exposition of Statutes. and Charta de Foresta, made in King Henry the thirds time, and vpon the Statutes of Westmin. 1. Westm. 2. Westm. 3. and many other Statutes made in Ed. 1. time: And vpon Praerogatiua Re­gis, and many other Statutes made in Ed. 2. time, beene from time to time ex­pounded; [Page 47] and so of later times, the Sta­tutes of Fines, of Vses, of Willes, and ma­ny moe.

Thus also haue all Doubts and Cases,Exposition of Lawes. whereof there was no Statute or Positiue Lawe, beene alwaies expounded: for such are most of the cases which wee haue in our Yeere-Bookes, and Bookes of Re­ports, which are in effect nothing but Re­sponsa prudentum, as Iustice Crooke did true­ly say.

Vpon this reason it is,Lawes ob­solete. that some lawes, as well Statute Lawe, as common Law, are obsolete and worne out of vse: for, all hu­mane lawes are but Leges temporis: And the wisedome of the Iudges found them to bee vnmeete for the time they liued in, although very good and necessarie for the time wherein they were made. And there­fore it is saide, Leges humanae nascuntur, vi­gent, & moriuntur, & habent ortum, statum, & occasum.

By this Rule also,Lawes chan­ged. and vpon this reason it is, that oftentimes auncient Lawes are [Page 48] changed by interpretation of the Iudges, as well in Cases criminall as ciuile.

In criminall cases the Law was Voluntas reputabitur pro facto; but it is not so now, sauing in treason onely.

In an appeale of Maime Britton fol. 48. saith, Soit le Iudgement, que il perde autiel member, come il auer tolle a le plaintife; but it is not so now.

In auncient time, one present, aiding, comforting, and assisting to a murder, was taken to bee no principall, but an ac­cessorie, as it appeareth M. 40. Edw. 3. fol. 42. & 40. li. Ass. p. 8. & p. 25. But now in that case hee is iudged a principall. And so it was ruled by all the Iustices M. 4. H. 7. 18. and so Plowden affirmeth the Lawe to be, in his Commentaries fol. 99. & 100.

In ciuile causes in auncient time, the Lawe was houlden, That hee in Remain­der in Taile could not haue an action of Waste, nor bee receiued vpon default of tenant for life: But afterwards, the Lawe was often iudged otherwise; and so is [Page 49] the common experience and practise at this day.

In Anno 40. Ed. 3. 28. Fynchden, chiefe Iustice of the common place, saith, that in ancient time the Vicar could not haue an Action against the Parson; But hee saieth the contrarie is vsed at this day, which is the better.

In ancient time a Disseisee could not enter vpon the feoffee of the Disseisor, for sauing of the warranty; but for many yeeres the Lawe hath beene houlden o­therwise, and so the common practise yet remaineth.

By this Rule it is also,Construction of words. that words are taken and construed, sometimes by Ex­tension; sometimes by Restriction; some­times by Implication; sometimes a Disiun­ctiue for a Copulatiue; a Copulatiue for a Disiunctiue; the present tense for the fu­ture; the future for the present; sometimes by equity out of the reach of the wordes; sometime words take in a contrary sence; sometime figuratiuely, as Continens pro con­tento, [Page 50] and many other like: And of all these, examples be infinite, as well in the ciuile lawe as common lawe:

And oftentimes the reuerend Iudges haue had a graue regarde in their procee­ding,Iudges con­sulted with the priuie Counsell. that before they would resolue, or giue iudgement in such new Cases, they desired to consult with the Kings priuie Counsell; as appeareth in diuerse Cases in King Edward the third his time.

R. VV. assaulted Adam Brabson in pre­sence of the Iustices of Assise at VVinche­ster, 39. E. 3 li. As. p. 1. for which A. B. complained by Bill before the said Iustices, alledging this offence to bee in despite of the King and his Iustices, to his dammage of an hun­dred pounds. R. VV. pleaded, Not guil­tie; and was found guiltie, and damma­ges taxed to tenne pounds. Thereupon the Iudges awarded him to prison in the Sherifes keeping. And for the Fine, and that which should be further done for the King; for the assault done in the presence of the Iudges, they would haue the ad­uise [Page 51] of the Kings Counsell:M. 19. Ed. 3. Iudgemēt 174 For in a like case, because R. C. did strike a Iurour at VVestminster, which passed in an Enquest against one of his friends; It was adiud­ged by all the Counsell, that his right hand should be cut off; and his lands and goods forfeited to the King. These be the words in the Booke.

In this case I note three things.

• 1. The Iudges consulted with the Counsell.
• 2. They haue a like case before when the Counsell was also consulted with, viz. Anno 19. E. 3. and yet they would not proceede in this case before they had againe consulted with the Counsell.
• 3. That before Anno 19. Edw. 3. there was no like case nor precedent for such a Iudgement; And therefore the Iudges would not of themselues pronounce that heauy iudgement before they had con­ferred with the Counsell touching the same. And after they had the opinion [Page 52] and aduise of the Kings Counsell, they proceeded to that Iudgement.

Thomas Vghtred Knight brought a Forme-done against a poore man and his wife;M. 39. Ed. 3. 35 They came and yeelded to the De­maundant, which seemed suspitious to the Court: whereupon they examined the Matter, and staied Iudgement, be­cause it was suspitious. And Thorpe saide, that in the like Case of Giles Blacket it was spoken of in Parliament: And wee were commaunded, that when any like Case should come, we should not go to iudge­ment without good aduise. Wherefore sue to the Counsell, and as they will haue vs to doe, wee will; and otherwise not, in this Case.

Greene and Thorpe were sent by the Iudges to the Kings Counsel (where there were 24. Bishops and Earles) to demand of them,M. 40. Ed. 3. 34 whether by the Statute 14. Ed. 3. ca. 6. a word may be amended in a Writ, [Page 53] aswel as a letter or a sillable: for, the statute speakes but of a letter or a sillable; & it was answered, That it may well be amended: For, there cannot be a Word without a Sillable; and that it was a nice question of so sage men.

Thus Arbitria Iudicum, and Responsa prudentum haue beene receiued, allowed, and reuerenced in all times as Positiue Lawe; and so it must be still; For, other­wise much mischiefe and great inconue­nience will ensue: for new Cases happen euery day: No lawe euer was, or euer can be made that can prouide remedie for all future cases; or cōprehend all circumstan­ces of humane actions which Iudges are to determine: Therfore, when such hap­pen, and complaint is made; what shall Iudges doe? Shall they giue no remedie to the partie grieued? Shall they stay for a Parliament?Iudges to be directed by reason and discretion. Interim patitur iustus. They must therefore follow Dictamen rationis; and so giue speedie iustice. And in ma­ny [Page 54] matters of materiall circumstauces they must guide themselues by discreti­on.

As in iudging vpon Presumptions; To discerne which be Presumptiones temerariae, which Probabiles, which violentae.

So for Time; what is a conuenient Time, and what not.

So for Waste; what is Waste punish­able, and what not.

So for Tenders of money; what is a conuenient place for tender of mony, and what not: and what is a lawfull Tender, and what not.

So for Disparagement; what is a dis­paragement, and what not: And so of other the like cases, which are infinite.

If it be said (for so some haue said) That if this be thus,Obiect. then the common Lawe of England is vncerten;That the common Lawe is vncerten. and so the rule of Iu­stice, by which the people are gouerned, is too pliable, and too weake, and vncer­ten.

[Page 55] By the same reason it may be said,Respons. That all the Lawes of all Nations are vncerten: For, in the Ciuile Lawe, which is taken to be the most vniuersall and generall Lawe in the world, they hould the same rule and order in all cases which be out of the direct words of the Lawe; and such ca­ses be infinite: For, as I saide, new cases spring euery day as malice and fraude in­creaseth. And since the Roman Impire beganne, most of their Lawes bee either Edicta Principum, or Arbitria Iudicum, or Re­sponsa prudentum. And in their Iudgements they are guided by Arrests and former Iudgements, as may appeare in the Books of many that haue collected such Arrests. And they attribute so much to such for­mer Iudgements, That as Prysot equal­leth them to a Positiue Lawe, so they hould, that Sententia facit Ius, & res iudicata pro veritate accipitur, & legis interpretatio legis vim obtinet.

Nay (which is more vncerten) some­times they relie vpon Doctours opinions [Page 56] deliuered in their Prelections and Treati­ses. And when they finde them varying, and differing one from another (as some­times they doe) then they preferre that which is Communior opinio: And so in good reason they may: For, Pluralitas idem sen­tientium, semper superat; quia faciliùs inuenitur quod à pluribus quaeritur.

But to conclude this point, I would aske of these Nouelists, what they would haue done in Sibill Belknappes case; if they had liued in Henry the fourths time?

Sir Robert Belknappe, M. 2. H. 4. 7. that reuerend and learned Iudge, of whome sundrie noble and worthy persons, and some now of great & eminent place in England are des­cended, was banished out of the Realme, (Relegatus in vasconiam,) not for any desert or offence of his, but by the might of his potent enemies, and malice of the time. The Lady his wife continued in England; she was wronged; she brought a Writ in her owne Name alone, not naming her Husband. Exception was taken against [Page 57] it, because her husband was liuing; and it was adiudged good, and shee recouered: and the Iudge Markeham said;

Here was a rare and a new case, yet it was not deferred vntill a Parliament: it was iudged, and her wrong was righted by the common Law of England, and that Ex arbitrio Iudicum, & ex responsis pruden­tum; and yet it was counted Mirum with an Ecce.

Now to apply this to R. Caluines case: his case is rare and new, so was that: There is no direct Law for him in precise and ex­presse tearmes: There was neuer iudge­ment before touching any borne in Scot­land, since King Iames beganne his happie raigne in England: Hee is the first that is brought in question: So there was no direct Lawe for Sibill Belknap to sue in her owne name without her husband, who [Page 58] was then liuing: nay rather there was di­rect Lawe against it; yet by the Lawe of England shee had iudgement to recouer with an Ecce modo mirum: So by the lawe of England iudgement ought to bee giuen for Robert Caluine, but not with an Ecce mo­do mirum; but vpon strong Arguments deduced à similibus, and ex dictamine rati­onis.

But before I come to those arguments, I wil vse a few words more touching some Rules which I haue read for the interpre­tation of lawes.

There is a graue and learned Writer in the Ciuile Lawe that setteth downe foure waies & formes of interpretation of lawes:Note foure formes of in­terpretation of Lawes. that is, first, Interpretatio historica; second­ly, Etymologica; thirdly, Analogica; fourth­ly, Practica.

In the Argument of this Case all these formes haue beene vsed, and largely hand­led: and the two first be those that seeme but light to me, and therefore in mine o­pinion [Page 59] haue beene too much stoode vpon, and ouer-weighed.

For the Historicall interpretation,Historica. it is alwaies darke, obscure, and vncerten, of what kingdome, countrey, or place soeuer you speake; I doe alwaies and onely ex­cept the diuine Histories written in the Bible.

Liuy saith, In tanta rerum vetustate multi temporis errores implicantur.

Saint Augustine speaking of the suppo­sed Bookes of Henoch saieth, Libri isti ob nimiam antiquitatem reijciuntur.

Wherefore, for this parte let this suf­fice, whether in the beginning there were one or seuerall Kingdomes in great Bri­taine; or one or seuerall Monarches and Kings of these two great & famous King­domes in great Britaine. The King our So­ueraigne is lawfully and lineally descen­ded of the first great Monarchs and Kings of both the Kingdomes;Fergus. and that by so long a continued line of lawfull discent,Inas. as [Page 60] therein he exceedeth all the Kings that the world now knoweth; and therefore to in­quire further of Historicall knowledge in this Case, I hould it needelesse.

For the Etymologicall interpretation,Etymologica there hath beene very much saied, euen as much as Wit and Art could deuise: There haue beene alleadged manie Definitions, Descriptions, Distinctions, Differences, Diuisions, Subdiuisions, Allusion of wordes, Extension of wordes, Constru­ction of words; and nothing left vnsear­ched to finde what is Ligeantia, Allegiantia, Fides, Obedientia, Subiectio, Subditi; And who bee Aborigines, Indigenae, Alienigenae, Aduenticij, Denizati, &c. And much of this hath beene drawne out of some Writers of the Ciuile Lawe; amongst whome the Etymologicall interpretation of the words Ligeus, and Ligeantia, is as vncerten and doubtfull, as it is with our common Lawyers; And so vpon any of these there cannot be any certen Rule found for Iud­ges [Page 61] to iudge by, especially in new and rare Cases.

As for Definition, Vlpian teacheth vs, Omnis definitio in iure Ciuili est periculosa: and it is said, that Definitio est duplex: Propria, quae constat ex genere, & differentia: Impro­pria, quae & descriptio vocatur, & est quaeli­bet rei designatio: So Definition and De­scription are often confounded, and both vncerten. Then, since both be vncerten and dangerous, I will leaue both, and seeke a more certen Rule to iudge by.

As for Etymologie of words, I agree with him which saieth, It is Leuis & fal­lax, & plerumque ridicula. It is a Pedant Grammarians fault. Marcus Varro and others haue beene noted for it. And if you examine the Examples which some doe bring, you will perceiue how ridiculous and vaine it is. So this Rule will not serue to finde out that which wee seeke for: These bee but Tendiculae verborum, & Aucupationes syllabarum as one calleth them: It may haue some vse, and [Page 62] serue a turne in Schooles, but it is too light for iudgements in Lawe, and for the seates of Iustice.

Aquinas setteth downe a more certen Rule, In vocibus videndum, non tàm à quo, quàm ad quid sumantur. And words should be taken Sensu currenti: for Vse & Custome is the best Expositor both of Lawes and Wordes, Quem penes arbitrium & ius & norma loquendi.

Wherefore, of the many and diuerse distinctions, diuisions, and subdiuisions, that haue beene made in this Case, I will say no more but, Confusum est quicquid in puluerem sectum est: and will conclude with Bishop Iuel; A man may wander and misse his way in Mists of Distinctions.

Then leauing these Historicall and E­tymologicall interpretations,Ligeantia sensu currenti est vin­culum fidei &c. and these curious and subtile Distinctions and Di­uisions, I say, Ligeantia, or Allegiantia vnder­stood Sensu currenti, is vinculum fidei & o­bedientiae, as Iustice Daniel said well. And [Page 63] hee that is borne in any of the Kings Do­minions, and vnder the Kings obedience, is the Kings liege subiect, and borne Ad fidem Regis (for that is the proper and an­cient word which the lawe of England hath vsed; Ad fidem Regis Angliae, Ad fidem Regis Franciae) and therefore hee cannot bee a Stranger or Alien to the King, or in any of his Kingdomes; and by consequence, is inhabled to haue lands in England, and to sue, and be sued in any Reall action for the same.

And Ligeantia hath 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 [Page 64] 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. 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 [Page 65] 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? [Page 66] 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;Practica: & sic ad similia. 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 [Page 67] 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, Ireland. it was gotten by Con­quest,Obiect. 1. 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,Respons. 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 [Page 68] 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;France. vvhat say you to the great kingdome of [Page 69] 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, [Page 70] 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,Normandy and Aquitany. Normandie and Aquitanie were no monarchies or kingdomes,Obiect. 2. 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:Respons. 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.

[Page 71] 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.

[Page 72] 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,The Crowne and great seale of England. that Normandy and A­quitany vvere subiects to the Crovvne of England; Obiect. 3. and to the great Seale of England; but so is not Scotland: Ergo &c.

This standeth not wel with that whichRespons. [Page 73] 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 [Page 74] 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 [Page 75] 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 [Page 76] 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,Seueral Laws. that Scotland hath Lawes that are proper for that kingdome,Obiect. 4. & 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.

[Page 77] For this last parte,Respons. 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,Lambard in ex­plicatione verbi Centuria. 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 [Page 78] 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. 29. treating of the Court called The Shirifes Turne, out of which the Leete see­meth to be extracted: For, whatsoeuer is not presented in the Leete may bee presen­ted and punished in the Shirifs Turne. And M Kitchin citeth Britton in this point for the Leete; and alleadgeth also the statute of Marlebridge cap. 10. to the same pur­pose.

And at this day the view of Francke-pleges, and the putting in of Francke-ple­ges, and the Decennarij, are but bare names of things past, the vse and substance is obso­lete and gone.

[Page 79] And, as it was saide, few in this place haue put in such Pleges, or taken that Oath, and yet I trust wee are good sub­iects, and beare true faith and allege­ance.

But this hath beene so fully answered and cleered by the Lord chiefe Baron, and the Lord Coke, chiefe Iustice of the Com­mon pleas, as I doe wrong to spend time in it.

But touching the seuerall Lawes; I say, that seuerall lawes can make no difference in matter of Soueraigntie; and in the bond of Allegeance and obedience to one King: And so it concludeth nothing for the point in question.

Normandy and Aquitany had seuerall lawes differing from the lawes of England: so had Fraunce in King Edward the 3. and Henry the 6. his time.

Ireland, before king Iohns time continu­ed their auncient Lawes, and so, for the most part, haue done euer since.

Gernesey and Iersey haue yet at this day [Page 80] seuerall lawes, which, for the most part, were the auncient Lawes and Customes of Normandie.

Wales had, & in many things yet haue seuerall Lawes: so for the County Palatine of Chester also.

Yet these neuer were, nor must not be cantelled and cut off from their allegeance and obedience to the King; nor the Kings subiects borne there be incapable of lands and inheritaunce in England: for vvhere there is but one Soueraigne, all his subiects borne in all his Dominions bee borne Ad fidem Regis; and are bound to him by one bond of Faith and Allegeance: And in that, one is not greater nor lesser than an other: nor one to bee preferred before another: but all to bee obedient alike; and to be ru­led alike; yet vnder seuerall Lavves and Customes. And as Saint Gregorie sayeth of the Church, In vna fide nihil officit Ecclesiae sanctae diuersa consuetudo. So I will conclude for this point, That diuersi­tie of Lavves and Customes makes no [Page 81] breach of that vnitie of obedience, faith, and allegeance which all liege subiects owe to their liege King and Soueraigne Lord. And as none of them can be Aliens to the king, so none of them can bee Ali­ens or Strangers in any of his kingdomes or dominions; nor Aliens or strangers one to another, no more than a Kentish­man, to a Cheshire-man; or è contra.

And therefore all that haue bin borne in any of the kinges dominions since hee was King of England, are capable and inhe­ritable in all his Dominions without ex­ception.

And as to the other parte of the Obie­ction,Defect of Triall. that there will be defect of triall; for, things done in Scotland, cannot bee tried in England; I say, that that maketh little to our present Question, whether Post-nati in Scotland, be Aliens in England, and not capable of landes in England: but it trencheth to▪ cast some aspersion vp­on the common lawe of England; That [Page 82] it is not sufficient to giue iustice to the Kinges subiectes for lacke of sufficient meanes of triall of questions of fact: but to this baron Altham gaue so full an aun­sweare, as more cannot bee saied: And so hee did both cleare the doubt, and did vphould the sufficiencie of the lawe of England in that behalfe. And it seemeth strange, that this should now bee found out to bee obiected against Scotland, since it vvas neuer heeretofore obiected for France, Normandie, Aquitany, nor is at this day for Ireland, Gernesey, and Iersey, &c. whereas all stand vpon the same reason for the point of triall. But the wisedome of the lawe of England hath beene such, as there neuer failed certen rules for triall of all questions in fact; and those were fit­ted and adapted to the Matter which was to bee tried. And therefore, whosoeuer doth diligently obserue it, hee shall finde in the course and practise of the lawes of England aboue twenty seuerall formes of trialls: as by Battell; by Iurie, and that [Page 83] in diuerse kindes; by Wager of Lawe; by Proofes; by Examination; by Inspection; by Certificates of diuerse kindes; and by manie other wayes: And lest there should bee any defect in that behalfe, the Law hath prouided seuerall formes of Ioyning of issues; and in that, hath speciall regard of things done out of the Realme, as eue­rie Student may see in the Bookes of Re­ports.

Thus I haue passed these foure Obie­ctions, and therefore for this part I con­clude, That if Argumentum à simili were e­uer good and concludent in Lawe, my Lords the Iudges haue prooued this Case by so many plaine and direct Examples, and like Cases; and by so manie strong arguments & solide reasons drawne out of Booke Cases, out of Statutes, out of the true rules and forme of pleading, and out of ancient Records and Precedents, some produced by M. Atturney, and ma­ny moe remembred by the Iudges, as no [Page 84] one thing can bee more plainely exempli­fied, nor appeare more like to an other, than this Case is to those Cases which they haue remembred.

But if examples and arguments à simili doe faile,Recurrend ad Rationem. then it remaineth Recurrere ad Rationem; and what reason that ought to bee, and how to bee vnderstoode, is to be considered: for, it is said, that Lex est ratio summa, iubens ea quae facienda sunt, & prohibens contraria. So it must be the depth of reason, not the light and shallow dis­tempered reasons of common Discour­sers walking in Powles, or at Ordinaries, in their feasting and drinking, drowned with drincke, or blowne away with a whiffe of Tobacco. Lucretius noteth, that in many there is Rationis egestas: And saint Gregory saith, Qui in factis Dei rationem non videt, infirmitatem suam considerans cur non videat, rationem videt: For, although Reason and Knowledge bee infinite, yet no man can haue more of it than hee is capable of: Euery man must receiue it, and keepe it [Page 85] in his owne vessell; he cannot borrow his neighbours braine-pan to put it in. And therefore it is not without cause,Hopperus de vera Iuris pru­dentia pag. 118 that one of the grauest and best learned Lawyers of our age, and a priuie Counsellor to one of the greatest Monarches of Europe, de­scribeth those that should bee Interpre­ters of Lawes by foure speciall qualities, That is, 1. AEtate graues, 2. Eruditione prae­stantes; 3. Vsu rerum prudentes, 4. Publica authoritate constituti: So, there must be gra­uitie, there must be learning, there must be experience, and there must be authori­tie: and if any one of these want, they are not to be allowed to be Interpreters of the Lawe.

How all these Qualities concurre in these reuerend Iudges, whom wee haue heard in this present Case, I will spare to speake vvhat I thinke: For, Chrysostome teacheth mee, Qui laudatur infacie, flagel­latur in corde.

In seeking out this depth of Reason, [Page 86] the same Author giueth a caution,Hopperus ibid. pag. 119.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 [Page 87] 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,Obiections. 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 [Page 88] 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 [Page 89] 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, [Page 90] 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,P. 23. Elizab. Dyer. 376. 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; [Page 91] 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; [Page 92] 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 [Page 93] 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,Stat. 14. Ed. 3. for the reasons which haue beene drawne and strained out of the statute An. 14. Edw. 3. That the Realme of England shall not be subiect to France. 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 [Page 94] 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, [Page 95] 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 [Page 96] 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.

[Page 97] 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 [Page 98] 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,A dangerous distinction be­tweene the King and the Crowne. 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 [Page 99] 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 [Page 100] their Pamphlets too much such traiterous seede sowne.

But leauing this,Absurdities in this dange­rous distinctiō 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 Reason this subtile, but absurd and dangerous distinction, ought not to be allowed.

[Page 101] 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 [Page 102] 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 [Page 103] 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.

[Page 104] 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,Rex solus iudi­cat &c. 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 [Page 105] whether the kings, or the people did first make Lawes; nor the seuerall constituti­ons and frames of states and common­weales; 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,Prou. ca. 8. Per me Re­ges regnant, & Principes iusta decernunt; And [Page 106] 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 [Page 107] 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,Cod. li. 1. Tit. 14 le. 1. which is this; Inter aequitatem ius­que interpositam interpretationem nobis solis & licet & oportet inspicere.

And another like Text in these words,Ibidem le. 12. 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 England so much as to [Page 108] 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, [Page 109] 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.

[Page 110] 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,Obiect. of Inconuenien­cie and fruga­litie. 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 outObiect. vpon diffidence. [Page 111] 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. [Page 112] 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,Ante-nati. if you looke vpon the Ante-nati, you shall find no such confluence hither, but some few (and very few in respect [Page 113] 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 [Page 114] 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; [Page 115] and cut in peeces all the threeds of Allegeance.

But now I wil aske this question:A Question, how long this suspition and dis-vnion shall continue? How long shall this suspition and doubt conti­nue? Shall there bee a dis-vnion for euer? If it bee saied, No, but vntill the Lawes, and Customes of both Kingdomes bee made one and the same: then I aske; how, and when shall that be done? And it may bee, that the Constitutions of the Coun­tries bee such as there can hardely in all things bee such an absolute and perfect reconciling or vniting of Lawes as is fan­cied. Is it yet so betweene England and VVales? or betweene Kent and Cornewall? or betweene many other parts of this Kingdome? I say no; and I speake it con­fidently, and truely it is not so, nor well can be so. Therefore let England and Scot­land be in like degree now, as England and VVales were for many hundred yeeres, and in many things are yet still; and yet let Vnion and Loue increase amongst vs, [Page 116] euen in secula seculorum. Let vs not be such as Saint Bernard noteth,Bernard. Amant quod non decet, timent quod non oportet, dolent vanè, gaudent vaniùs. And let vs no longer make question, whether seuerall Lawes and Customes bee markes of seperation and dis-vnion, or of seuerall Allegeances; for certainely they are not.

One other Reason remaines against these Post-nati, Obiection vp­on Diuination and that is out of a proui­dent foresight, or as it were a prophesy­ing: What if a seperation of these King­domes fall hereafter?

Of this I can say but Absit omen. Respons. It is Potentia remota (as Iustice VVilliams saied) and I trust in God Remotissima: And I will euer pray to God that it neuer fall so, vn­till the King of all Kinges resume all Scep­ters and Kingdomes into his owne hands. And let vs take heede of sinnes of Ingra­titude and Disobedience; and remember, that Adam and Eue were punished, Non [Page 117] propter pomum, sed propter vetitum. And for such Prophets, let the Prophet Ezechiel ca. 13. answer them, Vae Prophaetis insipienti­bus qui sequuntur spiritum suum, & nihil vi­dent. And the Prophet Esay speaketh to all such with an other Vae, Vae illis qui di­spergunt.

Now then, as M. Solicitor beganne with seeking out the truth; so I will con­clude with Esdras words, Magna est Veritas & praeualet: And with this further, Eatenus rationandum donec veritas inueniatur: Cùm in­uenta est veritas, figendum ibi Iudicium: Et in victoria veritatis, soli veritatis inimici pereunt.