ence 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 laws 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 Irishmen to bee as naturall borne subiectes in England (if their birth-right doe not give 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 Yelverton 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; what say you to the great kingdome of France; which Edward 3 had first in right by lawfull descent, and after in possession by triumphant conquest; and which Henry 6 held after in possession by descent? Was euer doubt made, whether the subiects borne there, so long as it was in subiection and obedience to the king, were capable of landes in England?

name makes no difference in soueraignty: for, king Henry 8 had as absolute soueraigne in Ireland, when 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. 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 24 kings in Gaule: but as the kings of France increased in power and strength, they subdued their neighbor-princes, and so that kingdome grew to that greatnesse that now 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, that Normandy and Aquitany were subiects to the crowne of England; and to the great seale of England: but so is not Scotland: ergo, &c.-This standeth not wel with that which was obiected before; that they were but seigniories houlden of the crowne of France. 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 France.— 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 soveraignety; the inuesture and coronation are but cercmo

I will now turne the case, and aske another question; if king Iames our soueraigne had first beene king of England by lawfull descent (as now hee is) and after Scotland had descended vnto him, should not the subiects of Scotland (I speak still of Post-nati) haue beene judged as naturall subiects in England, as those of France were in Edward 3's time?-Then, he hauing now both kingdomes by lineall, true, aad lawfull descent, it can make no difference touching the capacitie of subiects, which kingdome descended to him first, and which second; but both to him alike. And it is cleere, Postnati 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 Eng-nies of honour, and maiestie; the king is an land.

It is said, Normandie and Aquitania were no monarchies or kingdomes, 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: for, bee they kingdomes, be they seigniories, yet the subiectes borne there were borne out of the kingedome 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 natural borne subiectes to the king; and so capable and inheritable in England. I say besides, the dukes of Normandie and Aquitauy 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

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, he may haue many, as pleaseth him. The king did vse queene Elizabeth seale, for diuerse moneths after his comming into England; queene Elizabeth vsed king Philip & queene Maries seale for a time; and queene Marie vsed king Edwards seale. And all that was 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 Alberick de Vere, and others.--The king may by his great seale commaund all his subjects 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 justice there: and I have seene the records of placita exerci

men, they shall be tried per pures.-Also noble men of all sortes, who are neither bound to attend the leete, nor to take that oath, as appeereth by Britton cap. 29, treating of the court called the shirifes turne,' out of which

tus regis apud Edinburgh, apud Roxburgh, apud | tie. As, children vnder twelue yeeres; yet S. Iohns-towne, &c. in Scotia. So hee may sometimes they may commit treason and felocommaund his subjects, if they be in France, ny; where, malitia supplet atatem. So women Spaine, Rome, or Turkie, or the Indies. And of all sortes; yet they may be shrewd and for seueral seales the earle of Chester had a daungerous traitours; and if they bee women nospeciall seale for that his auncient county pala-bly borne, or widows that were wiues to noble tine. The duke of Lancaster had a speciali seale 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.—the leete seemeth to be extracted: for, whatsoAnd 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 1st, Edward the 2nd, and Edward the 3rd times, they commanded many of the lords of that parte of Scotland which then was vnder their obedience.—I finde, that in 13 Edw, 2nd quarto die Iunij, the king constituit Adomarum de Valentia comitem Pembrochiæ 'custodem regni sui; ac locum suum tenentem quamdiu rex in partibus transmarinis moram 'fecerit.' And the next day, viz. die Iouis quinto die Iunij, rex ordinauit, quod magnum sigillum suum remaneret clausum in aliquo loco securo, dum rex esset in partibus transmarinis: et ordinauit quoddam aliud paruum sigillum interim pro regimine regni, ad breuia, &c. consignanda, sub teste Adomari de Va'lentia comitis Pembroch.' Nota, heere was a petty seale pro regimine regni, wherein are comprised commissions for iustice, mandatoria, et ad breuia consignanda; which is for remedialia, as they are termed.

It is saide, that Scotland hath lawes that are proper for that kingdome, and that they are not subiect to the lawes of England, and so è con- | tra.—And lastly it was saide, that in England euery person was within the iurisdiction of some leete, and at the age of twelve years euery one is to bee sworn in the leete to bee foiall and loiall to the king of England; that is, to the lawes of England (for so hee vnderstood loiall): but Post-nati in Scotland can not be so; and that they haue another forme of oathe in Scotland: ergo, &c.

For this laste parte, of the oathe in the leete, the lord chief baron did cleere it so plainely, as more needs not to be said. This is legalis ligeantia, it is not alta ligeantia by birth, which is that which we haue now in question.

euer is not presented in the leete may be presented and punished in the shirifs turne.' And M. Kitchin citeth Britton in this point for the lecte; and allcadgeth 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.-And as it was saide, few in this place baue put in such pleges, or taken that oath, and yet I trust we 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 allegiance and obedience to one king: aud so it concludeth nothing for the point in question.— Normandy and Aquittany bad seuerall lawes differing from the lawes of England: so had Fraunce in king Edw. the 3, and Hen. 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 seuerall lawes, which, for the most part, were the auncient lawes and customes of Norinandie.-Wales had, and 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 inheri taunce in England: for where there is but one souereigne, all his subiects borne in all his dominions bee borne ad fidem regis; and are The historicall discourse that bath bin made bound to him by one bond of faith and allegeof leetes, of law-dayes, of decenna, decennarij, ance: and in that, one is not greater nor lesser of the tenne-mens tale, and the oath of all male than an other: nor one to bee preferred before children of twelue yeeres, &c. taken at the another, but all to bee obedient alike; and to leete, is no newes indeede, it is very olde.- be ruled alike; yet under seuerall lawes and Master Lambard hath it all, and more too, at customes. And as Saint Gregorie sayeth of the large in explicatione verborum in the word cen-church, in una fide nihil officit ecclesiæ sancturia; it was before the conquest.—But it ma- tæ diuersa consuetudo.' So I will conclude keth nothing to this naturail allegiance and sub- for this point, that diuersitie of lawes and cusjection of birth; it is not alta ligeantia by birth tomes makes no breach of that vnitie of obediright; it is but legalis ligeantia by policie: and ence, faith, and allegeance which all liege subFitzherbert calleth it swearing to the lawe.-iects owe to their liege king and soueraigne And if that were the onely bond and mark of allegeance, many are out of it, and so at liber

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 kingdoms or dominions; nor aliens or strangers one to another, no more than a Kentish-man to a Cheshireman; 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.

facienda sunt, et 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 drinke, or blowne away with a whiffe of tobacco. Lucretius noteth, that in many there isrationis 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 he is capable of; euery man must receiue it, and keepe it in his owne vessell; he cannot borrow his neighbours braine-pan to put it in. And therefore it is not without cause, that one of the grauest and best learned lawyers of our age, [Hopperus de vera iuris prudentia p. 118.] 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. Ætate graves, 2. Eruditione præstantes, 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.

And as to the other parte of the obiection, 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 aspertion vpon the common lawe of England; that it is not sufficient to giue iustice to the kinges subiectes for lacke of sufficient meanes of trial 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 law of England in that behalfe. And it seemeth strange, that this should now bee found out to hee obiected against Scotland, since it was neuer heeretofore obiected for France, Normandie, Aquitany, nor is at this day for Ireland, Gernesey, and Jersey, &c. whereas all stand vpon the same reason for the point of triall.-How all these qualities concurre in these reBut the wisdome 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 be 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 in diueres kindes; by wager of lawe; by proofes; by examination; by inspection; by certificates of diuers kinds; 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 cuerie student may see in the books of reports.

uerend iudges, whom wee haue heard in this present case, I will spare to speake what I thinke; for, Chrysostom teacheth mee, qui laudatur in facie, flagellatur in corde.'-In seeking out this depth of reason, the same author [Hopperus, ibid. page 119.] giueth a caution, which is this; vitium quod in hoc genere fugi debet est, ne, si rationem non inuenias, mox legem 'fine 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 have 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 Thus I haue passed these foure obiections, as aliens, or shall be capable of lands in Engand therefore for this part I conclude, that if land, as naturall borne subjects there; wee are argumentum à simili were ever good and con- first to consider what is the reason while aliens cludent in lawe, my lords the iudges haue in the dominions, and vnder the obedience of prooued this case by so many plaine and di- other forraine princes, are not capable of rect examples, and like cases, and by solandes in England. And surely, the true reamanie strong arguments and 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 Mr. Atturney, and many more remembred by the iudges, as no one thing can bee more plainly exemplified, nor appeare more like to an other, than this case is to those cases which they haue remeinbred.

But if examples and arguments à simili doe faile, 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 quæ

son is, that which was noted by baron Altham; and bath since beene ofte remembred, viz. the danger that might thereby come to the king and the common-weale: specially by drawing hither too great multitudes of them: for so the treasure of the realme might bee transported by them into other forraine kingdomes and countries; whereby it might bee vsed against the king, and to the prejudice 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 serve 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.

rend iudge sir Iames Dyer, chiefe iustice of the Common Pleas, anno 23 Elizab The question there, was, whether an erroneous judgement giuen in Rie, which is a member of the cinqueportes, might bee reuersed in the Kings Bench, or Common Place at Westminster; and it was thus resolued; sed pro eo quod nulluin tale breue in Registro, nec in aliquibus præcedentibus curiarum prædictarum 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 naturalf borne subiect.

Against this, there haue also beene many obiections made, and reasons deuised, that seeme witty, and haue some shew of probability to proue, that Post-nati in Scotland are aliens, and ought not in reason to bee capable of landes in England, videlicet.-1. That England and Scotland were two ancient seuerall kingdomes vnder seuerall kings, and seuerall crownes-2. That they continue yet seuerall 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 bath 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 each 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, æquuin est acsi essent in diuersis.'

6

But the forme of pleading in the time of king Ed. 1. in Cobledickes case, which was cited out of Hengham, (and the booke shewed heere by the lord chicfe iustice Coke) is so direct and plaine for this our question, as nothing can be more plaine: and therefore I thinke it not amisse to report it againe.--That case was in effect and substaunce, thus :—A woman brought a writte of ayel against Roger Cobledicke, and declared of the seisin of Roger her grand-father, and conueied the discent to Gilbert her father; and from him to the deAnd 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 judgeand 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-him. This plea was houlden to bee insuthland. And sithence in former times the like cient; and thereupon the tenaut amended his forme of pleading was neuer seene against any plea, and pleaded further, that the demaundof the kings of Englandes subiects, which were ant was not of the ligeance of England, nor of borne 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 excép(I meane such part of it as was in the kingestion was taken, but thereupon the demaundant 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 forine of pleading, nor the matter itselte was sufficient in lawe to disable anie such plaintife: for, against French-men that were not vnder the kings obedience wee finde it often pleaded. And as those that were not subiects to the king, nor borne vnder his obedience, did then presume to bring suites and actions in England; so it can not bee thought, but that the king hauing then so large and ample dominions beyond the seas, as Normandy and Aquitany, and many other parts 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 Postnati 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 reue

prayed licence to depart from her writ. By this it appeareth plainely, that the first plea, alleadging that she was a French-woman, and not of the ligeance, nor of the fidelitie of England, was insufficient (and so declared by Berreford the chiefe iustice); for, there can bee no fidelitie nor allegeance due to England, respecting the land and soile without a soueraigne and king. But the second plea, alledging, that shee was not of the ligeance of England, nor of the fidelitie of the king, was good and sufficient: for, to the king fidelitie and allegeance is due; and therefore, since shee failed in that, she was not to be answered: and thereupon she praied licence to departe from her writte, and so she left her suite.

Now, for the reasons which haue beene drawne and strained out of the statute an. 14 Edw. 3. If they bee well examined, they serue little for this point which we haue in hand.-It is to be considered, at what time, and vpon what occasion that statute was made. King Edward 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 sanie, resolned to take vpon him the name and stile of king of France; be