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both the kingdomes, no more than it can serve rend iudge sir Iames Dyer, chiefe iustice of the against those that are borne in Ireland, or Common Pleas, anno 23 Elizab The question Gernesey, or lersey: and therefore in reason there, was, whether an erroneous judgement they are as capable of landes in England, as giuen in Rie, which is a member of the cinquethe kings subiects of Ireland, and Gernesey, portes, might bec reuersed in the Kings Bench, and Iersey are.
or Common Place at Westminster; and it was Against this, there have also beene many thus resolued ; 'sed pro eo quod nulluin tale obiections made, and reasons deuised, that breue in Registro, nec in aliquibus præceseeme witty, and baue some shew of proba- dentibus curiarum prædictarum inueniri pobility to proue, that Post-nati in Scotland are tuerat, dominus cancellarius Bromley per aliens, and ought not in reason to bee capable opinionem capitalium iusticiariorum vtriusque of landes in England, videlicet.--1. That Eng-banci denegauit tale breue concedere.' And land and Scotland were two ancient seuerall so justice Fenners argument houldeth well, viz. kingdomes vnder seuerall kings, and seuerall there is in this case no lawe to exclude the crownes.-2. That they continue yet seuerall complaioant, ergo hee is a liege and a naturall kingdomes.—3. That they haue yet seuerall borne subiect. laues, seuerall seales, seuerall crownes, and But the forme of pleading in the time of seuerall kings : for, it is said, though king king Ed, 1. in Cobledickes case, which was Iames be king of both, and bath but one na-cited out of Hengham, (and the booke shewed turall body, yet in iudgement of law, he is in beere by the lord chiefe iustice Coke) is so respect of bis two seuerall kingdomes, as two direct and plaine for this our question, as seuerall kings, and the subiects of each seuerall nothing can be more plaine: and therefore I kingdome are bound to him by distinct alle thinke it not amisse to report it againe.- That geance, according to the seuerall lawes of the case was in effect and substaunce, thus :—A kingdome where they were borne.—And all woman brought a writte of ayel against Roger this is grounded vpon this rule or fiction in Cobledicke, and declared of the seisin of Roger lawe : * quando duo iura concurrunt in vna her grand-father, and conueied the discent to • persona, æquuin est acsi essent in diuersis.' Gilbert her father; and from him to the de
And vpon this ground is this new form of maundant, as bis daughter and heire. The pleading deuised, which the defendants haue tenant pleaded, that the demaundant was a vsed in this case, such as cannot be found in French-woman, and not of the ligcance nor of any record, euer to haue beene pleaded before; the fidelitie of England; and demaunded iudgeand may as well serue against the kinges sub-ment if shee ought to haue the action against jects of Ireland, as against the Postnati of Scot-bim. This plea was houlden to bee insuffiland. And sithence in former times the like cient ; and thereupon the tenant amended his forme of pleading was never seene against any plea, and pleaded further, that the demaundof the kings of Englandes subiects, which were ant was not of the ligeance of Englan:), nor of Lorne in any of his dominions out of England, the fidelitie of the king; and demaunded iudgeas in Normandie or Acquitanie, or in France ment, &c. And against that plea none excep(I meane such part of it as was in the kingestion was taken, but thereupon the demaundant possession, and in subiection and obedience to prayed licence to depart from her writ. By this him, and not in that parte of France which his it appeareth plainely, that the first plea, alenemies helde) it may be probably inferred, leadging that she was a French:-woman, and Dat it was then generally houlden, that neither not of the ligeance, nor of the fidelitie of Engsuch a forine of pleading, nor the matter itselle land, was insufficient (and so declared by Berrewas suficient in lawe to disable anie such plain- ford the chiefe iustice); for, there can bee no tife : for, against French-men that were not fidelitie nor allegeance due to England, resvnder the kings obedience wee finde it often pecting the land and soile without a soueraigne pleaded. And as those that were not subiects and king. But the second plea, alledging, that to the king, nor borne vnder his obedience, did shee was not of the ligeance of England, nor then presume to bring suites and actions in of the fidelitie of the king, was good and suffiEngland; so it can not bee thought, but that cient: for, to the king fidelitie and allegeance the king hauing then so large and ample do- is due ; and therefore, since shee failed in that, minions beyond the seas, as Normandy and she was not to be answered : and thereupon Aquitany, and many other parts of France, she praied licence to departe from her writte, soine of his subiects borne there, had cause to and so she left her suite. haue, and did bring the like suites in England. Now, for the reasons which baue beene And sithence no such plea is found to haue drawne and strained out of the statute an. 14 beene then vsed against them, it can not in lawe Edw. 3. If they bee well examined, they serue and reason bee now allowed against the Post- little for this point which we have in hand. It nati in Scotland : for, I inay say as Ascue saied is to be considered, at what time, and vpon in 37 H. 6. Our predecessors were as sage what occasion that statute was made. King and learned as we be.'
Edward the third being right heire to the crowne And I see not, but that in this case a good and hingdome of Fraunce hy descent from his arguinent may bec reasonably deduced from mother, and hauing spent niany yeeres for the the negative, as it was in the case reported by recovering of the same, resolued to take vpon the groat learned, and most graue and reue- him the name and stile of king of France; le
ing aduised thereunto by them of Flaunders, no doubt can bee iuferred, whether the kings Hereupon he did take the stile of king of subiects now borne in Scotland, shall be capaFraunce; and altered his seale and his armes; ble of lands in England. and afier a while, placed the armes of France But, all these obiections, and the ground before the ancient armes of England, as they whereupon they are framed, viz. quando duo are borne at this day. This gaue occasion for iura, sc. have beene so thorowly and profoundthe making of this statute : for some people ly examined, and so learnedly and fully an(uscum gentes, saith the statute) seeing this swered and cleered by the iudges, as. I make change, and considering the large and ample no doubt but all wise and indifferent hearers be extent, and the magnificence of that great well satisfied therein. And it there be any so kingdome, beganne to doubt that the king' possessed with a preiudicate opinion against would make his imperiall seate there ; and con- | trueth, and reason, that will say in their owne ceived thereby, that the kingdome of England, heartes, ' licèt persuaseris non persuadebis ;' being the lesser, should bee in subiection of the and so, either serpent-like stop their eares, or king and kingdome of France, being the greater, else wilfully absent themselues, because they and to bee gouerned and ruled by a vice-roy, would not heare the weaknesse and absurdities or deputy, as they saw Ireland was. And of their owne conceipts laied open and conthough in the kings sile, England was placed futed: if there bee any such I say (as I trust before France, yet they sawe the armes of there bee but few, and yet I feare there bee France urarshalled before the armes o Eny- some) I would they had learned of Tertullian, land; though at the first bearing thereof some that . vcritas docendu suadet, non suadendo say it was not so.-To cleere this doubt, and docet.' And I wish that they bee not found to take away this feare from the subiects of among the number of those to whome St. Paul England, was this statute made, as doth saietli, si quis ignorat, ignoret :' and St. John plainely appeare by the wordes of the statute in the Apocalips, ' qui sordidus est, sordescat itselfe.
* adhuc.' And I will exhort with St. Paul: Now if you will make an apt and proper ap- qui tenet, teneat,' and not wauer or doubt by plication of that case then betweene England such weake arguments and obiections. and Fraunce, to this our case now, betweene But in this new learning, there is one part of Scotland and England, it must be thus : it so strange, and of so daungerous consequent, 1 Edw. 3, then king of England (being the lesser) as I may not let it passe, viz. that the king is as had afterwardes the kingdoine of France (being a king divided in himselfe: and so as two kings the greater) by descent, and tooke the stile of of two severall kingdomes; and that there be king of France. King Iaines king of Scotland seuerall allegeances, and seuerall subiections (beeing the lesser) hah alterward the king- due vnto hiin respectively in regarde of his dome of England (being the greater) by descent, severall kingdomes, the one not participating and taketh the stile of king of England. with the other.
2. King Ed. 3, altered his seale, and his This is a daungerous distinction betweene armes, and placed the arines of Fraunce before the king and the crowne, and betweene the the armes of England.----King James bath king and the kingdome: it reacheth too farre; changed his seale, and his armes in England, I wishi euery good subiect to beware of it. It and hath placed the armes of England before was neuer taught, but either by traitours, as in the armes of Scotland.
Spencers bill in Edward the seconds time 3. It was then doubted, that king Edw. 3 (which baron Snig, and the lord chiefe baron, would remoue bis court out of England, the and lorde Coke remembred) or by treasonable lesser, and keepe his imperiall seate and state papists, as Harding in bis confutation of the in France, the greater.—King lames hath in-apologie maintaineth, that kings haue their audeede renooued his court out of Scotland, the thority by the positiue lawe of nations, and hane lesser, and doth in his royall person (with the no more power, than the people hath, of whome queene and prince, and all his children) keepe they take their temporall iurisdiction; and so liis imperiall seate in England, the greater. Eiclerus Siinanca, and others of that crew. Or
4. In al these the cases agree; but yet one by seditious Sectaries and Puritans, as Buchandifference there is, and that is in the stile : for nan de Iure Regni apud Scotos, Penry, Knox, king Ed. 3, in bis stile placed England, the and such like. For, by these, and those that lesser, being his ancieni kingdome, before are their followers, and of their faction, there is France, the greater, being newly descended into in their pamphleis 100 much such traiterous him. But king Iames in his stile placeth Eng- seede sowne.—But leauing this, I will adde a laird, the greater, though newly descended vnto little more, to proove, that in reason Robert him, before Scotland, the lesser, being bis an- Caluine, and other like Post-nati in Scotland, cient kingdome.
ought by lawe to be capable of landes in Enga 5. Now, this being thus; perhappes Scotland land: and for that, I wil remember one rule might out of this example haue conceiued the more which is certen and faileth not, and ought like doubt against England, as England did then to bee obscrucd in all interpretation of lawes; against France: but as there was then no and that is, * ne quid absurdum, ne quid illudoube made, whether the kings subiects bornesorium admittatur.' in England sbould be capable of lands in France; But, vpon this subtile and dangerous disso, out of this statute, and ypon this example tinction of faith and allegeance due to the king, VOL. II.
and of faith and allegeance due to the crowne, oati in England :1d Scotland. And the inconand to the kingdome (u hich is the onely basis uenience of this imaginary locall allereance und fundamentall mine reason to disable the birth beene so lately, and so fully declared by plaintife, and all Post-nati) there follow too the lorde chete justice Coke, as more needes Juany grosse, and tonle absurdities, whereof I not bee suied in it. In some speciall cases vill touch some few, and so conclude, that in there sometime may bee a king of subjects lawe and reason this subtile, but absurd and without land in possession, as iustice Fenner dangerous distinction, ought not to be allowed. voted in the governement which Moses had
- This bond of allegeance, whereotwee dispute, ouer the people of Israel in the wildernesse; is vinculum fidei; it bindeth the soule und and as in the case which sir Iohn Popham the couscience of every subiect senerally and respec- late lord chiete instice did put in the parliaciuely, io be faithfull and obedient to the king : ment. Il a king and his subjects bee driuen and is a soule or conscience cunot bee framed out of his kingdome by his eneinies, yet notby policie; so faith and allegeance cannot bee withstanding lite continueth still king ouer Tramed by policie, nor put into a politike bodie. those subjects, and they are still bound unto An qatlı must be sworne by a naturail budie; him ly their bund of allegeance, wheresoeuer lomage and fealtie nust be done by a naturall he and they bee. But there can not tee a bodie, a politike body cannot doc it.
king of land without subiects: for, that were Now then, since there is but one king, and but • imperium in belluas,' and 'rex et subsolleraigne, lo whome this faith and allegeance • diri sunt relatiua.' is due by all his subiects of England and Scot I saied there was an other generall vule for land, can any humane policie diuide this one expounding of lawes, which I reserued to bee king, and inake him two kings? Canócor regis last spoken of. I will now but touch it; for, [
Anglia' bejn manu Domini,' and cor regis will not stand to examine by bumane reasons • Scotia' not so? Can there bee warres be- whether kings were before lawes, or lawes betweene the king of England and the king of fore kinges; nor how kings were first ordainScotland, or betweene the kingdone of Eng-ed: nor whether the kings or the people did land and the kingdome of Scotland, so long as first make lawes; nor the several constilutions .there is but one king? Can the king of England and frames of states and common-weales: nor now send an army ruial into Scotland against what Plato or Aristotle have written of this the king of Scotland? Can there bee any letters arguirent. They were men of singular learnof marke or reprisall now graunted by ihe king ing and wisedome; but wee must consider the of England, against the subiects of the king of time, and the countrie, in which they liued, Scotland? Can there bee any protections now, and in all their great learning they lacked the ; quia profecturus in exerciiu Iacobi regis An true learning of the knowledge of God. They
gliæ iu Scotiain?' Nay shortly, can any man were borne and lived in Greece, and in popular bee a true subiect to king laines as king of states: they were enemies, or at least mislikers Eogland, and a traitor or rebell to king lames of all monarchies; yet one of thein disdained as king of Scotland? Shall a foote breadth, or not to bee a seruant or mercenarie hireling to an inch breadth of ground, make a difterence a monarch. They accompted all the world ot, birth-right of subiects borne vnder one king; barbarous, but their owne countrey of Greece : nay, where there are not any certen bounds or their opinions therefore are no canons to give limites knowne at all, but an imaginarie parti lawes to kinyes and kingdomes, no more than tion wall, by a conccipted fiction in lane? It is sir Thomas Moores V'topia, or such pamphlets enough to propound these and such lihe ques as wee have at euerie marte. tions, whereofmany more might be remembred: I beleeue him that saieth, “per me reges they carry a sutħcient and plaine ausu eure in regnant, et principes iusta decernunt;' [P:011. themselues : ' magis docet qui prudenter in c. 3.) and I inake no doubt, but that as God' • terrogat.'
ordained kings, and hath giuen lawes to kings As the king nor his heart cannot bee diuided, themselues, so hee hath authorized and gwen for he is one entire king ouer all his subiectes, poner to kings 10 giue lawes to their subiects; in which soever ot bis kingdomes or dominions and so kinys did first make lawes, and then they were borne, so hee must not bee serue d ruled by their lawes, and altered and changed nor obeyed by halues ; he must haue intire and their lanes from time to time, as they sawe perfect obedience of his subjects : forligien- occasion, for the goot of themselves, and their
tin' (as baron Heroa saied well) must haue subjects - And this power they have from God foure qualities; it must bee' 1. pura et sim- Almighty; for, as saint Augustine saieth in
plex: 2. integra et solida : S. vniuersalis non huc reges Deo seruiunt sicut eis diuinicus * localis: 4. permanens, conuima, et illæsa.' pracipitur, in quantum sunt reyes, si in suo Diuide a man's heart, ard you lose both parts legno bona iubeant, mala prohibeant, non soof it, and make no heart at all; so he that is 'lum quæ pertinent ad bumanam societatem, not an intire subiect, but balto faced, is no • verumetiam quæ ad diuinam religionem.' sabiect at all: and hee, that is loro an intire And I bould Thomas Aquinas bis opinion to and perfect subieet, ought by reason and lawe be good, sex solutus a legibus quoad vim coto haue all the freedomes, priuileties, and beacuum, subditus est legibus qnoad sim direcbetiles pertaining to bjs birtla-right in all the ruuum propria voluntate.' And for Ibis opikioges dominions: and such are all the Post niou there is a stronger au boritie, euen tror
God himself in Ecclesiastes, c. 8. ver. 2. ego forme of ir, or how, or when it was first be* os regis obseruo; et praecepta joramenti Dei : ginne, is for busie questivnists: it ought to bee and ver. 4. 'sermo ilius potestate plenus est : obeyed and reuerenced, but not disputer; and
nec dicere ei quisquain potest, quare ila ta it is at this time impertinent to this question.o cias?'
But certen it is, it bath beene die wisdome Now being led a little from the comnon of the kinges of this realm to reserue in themlaw to the ciuile lawe, I hnde in the ciule lawe selues that supreame power to call their no[Cod. 1. li. tit. 14, le. 1.] a direct text, war bles, clergie, and cominons tugether, when they ranting that generall rule which I reserued to sawe great and vrgent causes; aud by that this place, which is this ; • inter equitatem jus- great counsell to make edicts and statuies for
que interpositam interpretationem nobis solis the weale of their people, and safetie of the • et licet et oportet inspicere.'
kingdome and state, as in anno 10 Edw. 3, the And another like text (ibidem le. 12.) in assembly at Nottingham for the great was in these words, 'sententia principis ius dubium France: and in anno 20 II. 3, Prouisiones • declarans, ius facit quoad omnes.' And some Merton, which I remembred before. graue and notable writers in the ciuile lawe There bave beene made some obicctions of say, "rex est lex aniinata :' some say,' rex est inconueniencie, as för bearing of scot and lot, ' lex loquens:' some others say, 'interpretan- and such other charges; and some out of fru
tur legem consuetudo et princeps :' another galitie, that the king shall lose his profit of sieth, rex solus iudicat de causà iure non de- making denizens, audi such like. Thee are so • finita.'
light as I lenue theni to the winde; they are And as I may not forget saint Augustines neither fit for parliament, nor councell, nor. words, which are these ; 'generale pactum est
societatis humanæ regibus suis obreni perare :' Another argument and reason agaii st the so I may not wrong the iudges of the common Postnati hath beene lately made out of dittilawe of England so much as to suffer an im- dence and mistrust, that they will come into putation to bee cast vpou them, that they, or England sans number, and so as it were to surthe common lawe doe not attribute is great charge our common; and that this may be in power and authoritie to their soueraignes the secula seculorum. I know not well what this hinges of England, as the Romane lawes did
The nation is ancient, noble, and to their emperours: (a) for, Bracton, the chiefe famous; they have many houourable and wooriustice in the time of king lienry the 3rd, hath thic noblemen and gentlemen, and many wie these direct wordes, de chartis regijs et factis and worthie men of all degrees and qualities; * regum, non debent, nec possunt iusticiari they have lands and faire possessions in Scoi
nec priuatæ personæ disputare. Nec etiar, land. Is it therefore to bee supposed, or can • si in illa dubitatio oriatur, possunt eain inter- it in reason bee imagined, that such multitude - pretari. Et in dubijs et obscuris, vel si aliqua suns number will leave their natiue soile, and
dictio duos contineat intellectus, domini regis all transport theinselues hither? Ilatli the Irish * erit expectanda interpretatio et voluntas; 1 done so, or those of Wales, or of the isles of
cum eius sit interpretari cuius est condere. Man, Gernesey, and lersey? Wie should we And Britton in the time of king Ed. 1, writeth then suspect it now more for Scotland ? as much in effect.
Nay, itoe you suppose that the kinge of Eng. So as now if this question seem difficult, that I land will euer suiter so great a parte of his doneither direct law, nor examples and prece-minions, and so great and famous a kingdome dents, nor application of like cases, nor dis as Scotland is to be dispeopled? It is a doubt course of reason, nor the graue opinion of imagined without any tiumdition or ground of the learned and reuerend iudges, can resolue
But if it were to bee doubid, the it, here is a true and certen rule, how both by twelue iudges that haue concurred in opinion, the ciuile lawe, and the ancient common lawe and that late worthy iudge Popham, had as of England it may and ought to be decided: great cause to teare it as any others. They that is, by sentence of the inost religious, learn are wise; they are learned ; They have faire ed, and iudicious king that euer this kingdome possessions and good c-tates; they hane posor island had.—But this case is so cleare as teritie to care for as others baue.--Yet, adthis necdeth not at all.-And in this I would mit it bee a matter worth the doubting oi, not be mis-vnderstoode, as though I spake of what is that to the young Postnati that are making of new lawes, or of altering the lawes not like in many yeares to cope hither in such now standing; I meane not so, but I speake number? Sholl we vpon this causlesse feare deonly of interpretation of the lawe in new ques- prive them of their law full birth-right? Ilaue tions and doubts, as now in this present case : wee seene in these fine veeres past anie more neither doe I mean hereby to derogate any
of them than this one alone that haue gotten thing from the high court of parliament; (farre any lands in England? And this little that he be it from my thought) it is the great councell bath is so small and poore a portion, that his of the kingdome, wherein every subiect hath purchase is not great, and therefore no iust interest. And to speake of the constitution or cause of offence to any.
Nay, if you looke rpon the Antenati, you (u) This language is surely very unguarded. I shall iind no such confluence hither, but some Editor.
tow (and very few in respect of that great and
populous kingdome) that have donc long and many hundred yeeres, and in many things are worthie seruice to his maiestie, haue, and still yet still; and yet let voion and loue increase doe attend him, which I trust no man mislikes: amongst vs, even in secula seculorum. Let vs for, there can bee none so simple, or childish not be such as St. Bernard noteth,' amant quod (if they haue but cominon sense) as to thinke non decet, tinient quod non oportet, doleut that his maiesty should haue come hither alone vanè, gaudent vaniùs." And let vs no longer amongst ys, and haue left behinde him in Scot- make question, whether seuerall lawes and cusland, and as it were caste off, all his ould and touies bee markes of seperation and dis-vnion, worthie seruants.
or of seuerall ailegeances; for certainely they And if these noble and worthic gentlemen of are not. Scotland, I meane the Antenati, be louingly One other reason remaines ageinst these Postand brotherly entertained amongst vs, with nati, and that is out of a prouident foresight, or muti: all loue and beneuolence, that so we may as it were a prophesying: what if a seperation conlescere, and be vnited together, by marriage, of these kingdomes fåll hereafter ? and otherwise (as in some particular cases wee Of this I can say but absit omen.
It is polensee it already happily begunne) no doubt God tia remola (as iustice Williams saied) and I trust will blesse this vnion of both these nations, and in God remoiissima : and I will ever pray to inake them, and the king, and Great Britvine God that it neuer fall so, vntill the king of all to be famous through the world; and feared kinges resume ail scepters and kingdomes into and redoubted of our enemies, and of all that his owne hands. And let vs take heede of sinnes wish vs ill: for, ' vis vnita fortior, et concordia of ingratitude and disobedience; and remem. multos facit vnum.' But what may follow ber, that Adam and Eue were punished,' non vpon such arguments of diffidence and suspic propter pomum, sed propter vetitum.' And tion, which seeme but to hinder vnion, and to for such prophets, let the prophet Ezechiel, ca. breede discord and dissention, I will not speake. 13. answer them,' væ prophætis insipientibus, Let euery wise man consider it well: for, - hu qui sequuntur spiritum suum, et nihil vident." • mana consilia castigantur vbi coelestibus se And the prophet Esay speaketh to all such with præferunt.' And remember St. Paules cau an other væ, · væ illis qui dispergunt.' tion, 'si inuicem mordetis, videte ne ab inuicem Now then, as M. Solicitor beganne with seek'consumamini.'
ing out the truth; so I will concluile with EsAnd for the resemblance that hath bin made dras words,' magna est veritas et præualet : of this case of Postnati, but indeed for the and with this further, eatenus rationandum vnion of both kingdomes, with the houswifes donec veritas inueniatur : cùm inuenta est vecutting of her cloth by a threede, I will say but ritas, figendum ibi iudicium: et in victoria vethis, that if shee cut her peece of cloth in length ritatis, soli veritatis inimici pereunt.' aswell as in breadth, all the threads will be
The Conclusion. cutie, and the cloth marred. And this cutting in this our case, is, to cutte all aswell in length Thus I haue beere deliuered iny concurrence as in breadth, euen through all the kinges do- in opinion with my lordes the iudges, and the minions; and so will rent asunder the whole reasons that induce and satisfie my conscience, fraine of the vnion, and cut in peeces all the that Ro. Caluine, and all the Post-nati in Scotthreeds of allegeance.
laud, are in reason, and by the common lawe of But now I will aske this question : how long England, naturall-borne sub ects within the alshall this suspition and doubt continue ? Shall legeance of the king of England; and inbabled there bee a dis-ynion for euer? If it be saied, no, to purchase and haue free-hould and inheritance but votill the lawes and customes of both king- of lands in England; and to bring reall actions domes bee made ove and the same: theo I aske; for the same in England. how, and when that shall be done? and it may For, if they haue not this benefit by this blessbee, that the constitutions of the countries heeed and happie vnion, then are they io no berter such as there can burdely in all things bee such case in England, than the king of Spaines suban absolite and perfect reconciling or vniting of iects borne in Spaine, &c. And so by this vnion Ilives as is fancied. Is it yet so betweene Eng- they have gotten nothing: what they haue lost land and Wales, or bei weenc Kent and Corne- iustice Yelverton did well note. wall, or betweene many other parts of this king And therefore I must giue iudgement in the dome? Is say no; and I speake it confidently Chancerie, that the defendants there ought to and truely, it is not so, nor well can be so make direct answer to No. Caluines bill for the Therefore let England and Scotind be iu like lands and euidences for which he complaines. degree now, as England and Wales were for
T. ELLESYERE, Canc.