But hereupon these questionists moue an other question, viz. If the common lawe be not written, how then shall it be knowen?-To this I answer; it is the common custome of the realme, as Bracton saieth, ius venit quod vsus 'comprobauit:' and it standeth vpon two maine pillers and principall parts, by which it is to bee learned and knowen.-1. The first is, certaine knowse principles and maxims, and ancient 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 respecte of halfe blood: no tenant in dower, or by the courtesie of the crowne; no disabilitie of the king's person by infancie, &c.-2. The second is, where there be no such principles, then, former judgements giuen in like cases: and these be but arbitria indicum, et responsa 'prudentum,' received, allowed, and put in practise and execution by the king's authoritie. Of these Bracton speaketh; ego II. de Bracton animum erexi ad vetera iudicia ius'torum perscrutanda; facta ipsorum, consilia, 'et responsa in vnam summani redigendo compilaui.'

.

And before the Conquest, king Ethelbert caused a booke to bee made, which was called Decreta Iudiciorum: and king Alured did the

3. The third: but if there be no such for mer 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 apponendum. Et concordent clerici de breue faciendo, ila quod nullus recedut à Cancellaria sine remedio : for the Chancery is properly officina iustitiæ et aquitatis; 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, and long experienced in the course of the Chancerie; and called clerici de prima forma:' and of late time magistri Cancellariæ;' who in new and strange cases, besides their owne knowledge and experience, had oftentimes conference with the graue iudges for the deuising and training 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, cap. 24, anno 13 Ed. 1.] Et quotiescunque de ca'tero euenerit in Cancellaria, quod in vno casu reperitur breue, et in consimili casu, cadente sub eodem iure et simili indigente remedio, non reperitur, concordent clerici de Can'cellaria in breui faciendo, vel atterminent quereptes in proximum parliamentum : et scribantur casus in quibus concordare non possunt, et referant cos ad proximum parlialike, as master Lambard, a iudicious andimentum : et de consensu iurisperitorum fiat learned obseruer of antiquities, doth remember.breue, ne contingat de cætero, quòd curia re[Lambard in explicatione verbi Hyde.]-Of gis deficiat conquerentibus in iusticia perquithese also the judges speake H. 33, II. 6, renda.' 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 judged or made 'by statute.' Wherein I note also that hee equalleth a judgement with a statute.-In 36 H. 6, fol. 25, Fortescue reasoneth thus; the lawe is as I haue saide, 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 prede'cessours, which were as sage and learned as 'wee bee.'-In H. 4, Edw. 4, fol. 41, Markham reasoneth thus; it is good for vs to doe I finde also a like rule in the ciuile lawe; as it hath bin vsed before this time, and not vbi non est directa lex standum est arbitrio to keepe one way one day for one party, and iudicis, vel producendum ad similia.' And another day the contrary for the other party: another saith, de similibus ad similia judiciand so the former precedents be sufficient forum et argumentatio recipiuntur.' ' vs to follow :' and judgement was giuen accordingly. And in the former case 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 Chancery, King's Bench, Common-Plees, and Eschequer, baue 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 be remembred in the case of the Mines in Plowden's Commentaries,

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 clerkes 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 the great and vrgent affaires of the king and the realme.

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4. Besides these, there is another 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 vato a more proper place, I will hereupon conclude, that if there bee no former judgements, nor examples, nor precedents to bee found, then

concordia clericorum, et arbitrium iudicum' is to seeke out the true and solide reason; and thereupon to ground their judgements in all new cases: for it was truely saide by a learned gentleman of the lower house, 'deficiente lege ' recurrendum est ad consuetudinein: deficiente

consuetudine recurrendum ad rationem.' And so from the indges 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 indges in former

times.

manarum legum auctoritatem vel in foro laudarent, vel in puluere scholastico profiterentur. Sed si quid occurreret patrijs legibus ac moribus indefinitum quod iudicanti religion'em adferret, vnicum erat eximend scrupulo regis consulendi remedium. Alaricus Tolosa regnans, idem Gothis imperauit, vt si quis adBut here, before I proceede further, I am to uersus ipsius leges ciuile Romanorum ius cimake a suite, which is this :-That whatsoeuertaret, temerè factum morte lueretur.' I haue spoken, or shall happen to speake of the ciuile lawe; or whatsoeuer I shall cite out of any writer of that law, I pray fauor of 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 judgement. I professe it not; I have 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 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 onlie as a direction to their proceeding and judgement: but to produce or alleadge it as a concluding or binding law, was no lesse than capitis pæna.

This I make not of my selfe; for, besides common practice and experience, I haue an honest and substantial witnesse, master Adam Blacwood a Scottishman, a man of singular learning in the ciuile lawe, who defendeth in like manner the lawes of Scotland, [Blacwood cap. 10.] as appeareth in his learned booke intituled, Pro Regibus Apologia, 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, cum Lutetiæ supremæ iurisdic'tionis curiam institueret, eam Romano iufe 'solutam esse declarauit: in eamq, sententiam ' vetus extat eius curiæ decretum, ne causarum 'patroni Romanarum legum auctoritatem patriæ legibus opponant. Sed cum illæ bono et æquo niti videntur et probabilem vtilitatis publicæ causam continere, nos carum vtimur haud imperio, sed ratione, cui omnes homines naturæ præscripto subijciuntur. Quin etsi quid aduersus rationem legum Romanarum 'perperam ac temerè iudicatum est, id earum multis poenis haud æstimatur, sed vel princi'pis, vel superioris magistratus arbitratu. Nam cùm in publici muneris partem admittimur, ' et conceptis verbis inauguramur, solemni sa'cramento regiarum et municipialium legum atq. morum obseruationem, nulla Romani iuris mentione, spondemus. Apud Hispanos capitis pœnam ijs indictam legimus, qui Ro

VOL. II.

Now to returne to that which I haue touched before, I say, that when there is no direct lawe, nor precise example, we must recurrere ad rationem, et ad responsa prudentum: for, althoughquod 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 confound 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 saith, quæ nunc vetustissima creduntur noua fuerunt; et quod hodie exemplis tuemur, in

ter 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 quærenda, sed consilium est eorum à quibus exempla nata sunt explicandum.'

Thus hath iustice becne duely administred in England, and thereby the kings haue ruled, the people haue becne gouerned, and the kingdome hath flourished for many hundred yecres; and then no such busie questionis:s inoued any quarrell against it. Thus haue all doubts growing vpon Magna Charta, 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 Edw. 1. time: and vpon Prærogatiua Regis, and many other statutes made in Ed. 2. time, beene from time to time expounded; and so of later times, the statutes of fines, of vses, of willes, and many more.--Thus also haue all doubts and cases, 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, 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 humanæ nascuntur, 'vigent, et moriuntur, et habent ortum, statum, et occasum.'

By this rule also, and vpon this reason it is, that oftentimes auncient lawes are changed by interpretation of the iudges, as well in cases criminall as ciuile.-In criminall cases the law was voluntas reputabilur pro facto; but it is

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Greene and Thorpe were sent by the iudges to the kings counsel [M. 40 Ed. 3, 34.] (where By this rule it is also, that words are taken there were 24 bishops and earles) to demand and construed, sometimes by extension; some-them, whether by the statute 14 E. 3, ca. times by restriction; sometimes by implication; sometimes a disjunctiue for a copulatiue; a copulatiue for a disjunctine; the present tense for the future; the future for the present; sometimes by equity out of the reach of the wordes; sometime words taken in a contrary sence; sometime figuratiuely, as continens pro contento, and many other like: and of all these, examples be infinite, as well in the ciuile lawe as common lawe.

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then liuing; nay rather there was direct lawe against it. Yet by the lawe of England shee had audgement to recouer with an ecce modo mirum: so by the lawe of England judgement 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 have read for the interpretation of lawes.There is a graue and learned writer in the ciuile law that setteth downe fouse wares and formes of interpretation of lawes: that is, first, interpretatio historica; secondly, etymologica; third

this be thus, then the common lawe of England is vncerten; and so the rule of iustice, by which the people are gouerned, is too pliable, and too weake, and vncerten.-By the same reason it may be said, that all the lawes of all nations are vncerten: for, in the ciuile lawe, which is taken to be the most vniuersall and general 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 sprung euery day, as malice and fraude increaseth. And since the Roman empire beganne, most of their laws bee either edicta principum, or arbitria iudicum, or responsa prudentum. And in their judgements they are guided by arrests and former iudge-ly, analogica; fourthly, practica.-In the arguments, 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, et res iudicata pro veritate accipitur, et legis interpre'tatio legis vim obtinet.'-Nay (which is more vncerten) sometimes they relie vpon doctours opinions 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 quæri' tur.'

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

Sir Robert Belknappe, that reuerend and learned iudge, [M. 2. H. 4, 7.] of whom sundrie noble and worthy persons, and some now of great and eminent place in England, are descended, was banished out of the realme, (relegatus in Vasconiam) not for any desert or of fence 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 it, because her husband was liuing; and it was adiudged good, and shee recovered; and the iudge Markeham said;

'Ecce modo mirum quòd fœmina fert brue regis, 'Non nominando virum coniunctum robore legis.' Here was a rare and a new case, yet it was not deferred vntill a parliament: it was judged, and her wrong was righted by the common law of England, and that ex arbitrio iudicum, et '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 was

ment of this case all these formes haue beene vsed, and largely handled: and the two first be those that se me but light to me, and therefore in mine opinion haue beene too much stoode vpon, and ouerweighed.

For the historicall interpretation, it is alwaies darke, obscure, and vncerten, of what kingdome, countrey, or place soener you speake; I due 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 senerall kingdomes in Great Britaine; or one or seueral monarches and kings of these two great and famous kingdomes in Great Britaine. The kin our soueraigne is lawfully and lineally descended of the first great monarchs and kings of both the kingdomes; [Fergus, Inas.] and that by so long a continued line of lawfull discent, as 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 needlesse.

For the etymologicall interpretation, there hath beene very much saied, euen as much as wit and art could devise. There haue beene alleadged manie definitions, descriptions, distinctions, differences, diuisions, subdiuisions, allusion of wordes, extension of wordes, construction of wordes; and nothing left vnsearched to finde what is ligeantia, allegiantia, fides, obedientia, subiectio, subditi; and who hee aborigines, indigene, alienigena, aduenticij, denizati, &c. And much of this hath beene drawne out of some writers of the ciuile lawe; amongst whome the etymological interpretation of the words ligeus, and ligcantia, 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 judges to iudge by, especially in new and rare cases.

As for definition, Vlpian teacheth us, omnis definitio in iure ciuili est periculosa:' and it is said, that definitio est duplex: propria, quæ constat ex genere, et differentia: impropria, quæ et descriptio vocatur, et est quælibet 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 judge by.

As for etymologie of words, I agree with him which saieth, it is leuis et fallax, et 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 tendiculæ verborum, et aucupationes 'syllabarum,' as one calieth them: it may baue some vse, and serue a turne in schooles, but it is too light for judgements in lawe, and for the seates of iustice.-Aquinas setteth downe a more certen rule, in vocibus videndum, non tàm à quo, quam ad quid sumantur.' And words should be taken sensu currenti: for vse and custome is the best expositor both of lawes and wordes, quem penes arbitrium et ius et 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 puluerum sectum est:' and will conclude with bishop Juel; a man may wander and misse < his way in mists of distinctions.'

land, Scotland, and Ireland, and the isles of Gernsey and Tersey by discent; all these bee his dominions, and vnder his subiection and obedience.-King Henry 2, had England and Normandy by discent from his mother Maud the empresse; and Aniow and Maine by discent from his father, G. Plantagenet; and Ireland by conquest.--Henry 3, had England and Ireland by discent from his grandfather Henry 2; and Aquitany by discent from his grand-mother queene Elenor, wife to king Hen. 2, and daughter to the duke of Aquitany.-Edw. 1 had all the same by discent; and parte of Scotland by conquest.-Edw. 2 and Edw. 3 had all the same by discent also: and besides, Edw. 3. claimed all France by discent from his mother queene Isabeli, and had the most part of it in possession; and so had Henry 5 and Henry 6 also.

Now if in these kings times, subiectes borne in those countries, being then vnder their obedience, were no aliens but capable of landes in England: and if at this time subiects borne in Ireland, 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? 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 were then capable of lands in England as naturall subiects; or were deemed aliens, is the question: and therein inter etatio practica is to bee considered; and so the case is brought to be examined per similia. And in diuinitie 'praxis

Then leauing these historicall and etymologicall interpretations, and these curious and subtile distinctions and diuisions, I say, ligeantia, or allegiantia, vnderstood sensu currenti, is vinculum fidei et obedientia, as iustice Daniel said well. And 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 sanctorum est interpres præceptorum.'-Now which the lawe of England hath vsed; ad fi- then the question is, whether the kings subiects dem regis Angliæ, ad fidem regis Francia)' and of England and Scotland, that be Post-nati, therefore hee cannot bee a stranger or alien to may be resembled to the kings subiects of Irethe king, or in any of his kingdomes; and land, and the isles of Gernesey, &c. as now by consequence, is inhabled to have lands in they bee; and to the subiectes of Normandie, England, and to sue, and be sued in any reall Aniow, and Gascoyne, and parte of Scotland action for the same.-And ligeantia hath some-in former times, when the same were the times 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 ligeantiæ suæ debitum,' as it was in Shirley the Frenchmans case: yet is hee not the kings subiect: for, hee was not borne ad fidem regis.' But, this is not that ligeance which wee must finde: for, in a true and lawful subiect, there must bee subiectio, fides, et obedientia; and those cannot bee seuered, no more than true faith and charitie in a true Christian. And bee that hath these three à natiuitate, is ligeus regis, and cannot 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, et practica.

King James hath now the kingdomes of Eng

dominions, and vnder the obedience of the king of England; for I speake alwaies, and would be vnderstoode of kingdomes and 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 be reduced to foure in number.

First for Ireland, it was gotten by conquest, 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, and lacks the foundation of reason, and hath not the true parts of a difference: for those that are borne in Ireland, and those that are borne in Scotland, are all alike for their birth within the kings dominions, and are borne vnder the like subiection and obedi