THE SPEECH OF THE LORD CHANCELLOR OF England, in the Exchequer Chamber, touching the Post-nati.  
LONDON, Printed for the Society of Stationers. An. 1609.   

The Printer to the courteous Reader.  
THrough great haste (the common Spoiler of most serious Labours, Hillary Term being half spent ere this Book could come forth) the word Non, in the 45. page, and 15. line, of all the Books of the first Impression was left out, which altered the Sentence to a clean contrary Sense: Therefore, in those first imprinted Books, for Quod lego, non credo, read quod non lego, non credo, according to the correction of that place in these Books of the second Impression.   

❧ To the loving Readers.  
BEfore I presumed to speak in the Exchequer Chamber in R. C. Case (which is now commonly called, the Case of Post-nati,) I considered mine age and infirmities, and how long I had discontinued from such Legal Exercises. I might hereupon have justly challenged the privilege of silence: But greater and weightier Reasons overruled me, and enforced me to waive the benefit of that privilege: For, looking into the nature of the Question then in hand, and examining the Circumstances, I found the Case to be rare, and the Matter of great import and consequence, as being a special and principal part of the blessed and happy Union of great Britain.  
I heard many learned and judicious Arguments, made by the reverend judges: and finding that they did not all concur in Opinion (though the number was indeed so few, of them that differed, that in Greek it would not make a plural number) and that some things were by them omitted, which seemed to me to be both pertinent to the Matter, and necessary to be known, and more proper and fit to be spoken by me, respecting the place I hold, than by them, that did wholly bind themselves to the form and rule of legal Argument and Discourse: I thought that I could not, in duty, sit as a dumb and idle Hearer only: The Cause being judicially depending in the high Court of Chancery, where I was to judge of it according to Law, following the rule of mine own Conscience, and the measure of mine own understanding, and not to be swayed with the weight of other men's opinions.  
I considered also, that although Silentij tutum proemium is often true in human policy, yet sometime, there is Crimen Reticentiae; and therefore the Prophet said, Vae mihi quia tacui. And chrysostom observeth, that, Tribus modis in veritatem peccatur: 1. Veritatem prae timore tacendo: 2. Veritatem in mendatium Commutando: 3. Veritatem non defendendo. Remembering this, my Conscience told me, that howsoe●●● Silence might in this Case ●●●e excused me of the second, but I could not have escaped by ●●●ence, from offending in the first & last. And if Festus thought it not reason, to send a prisoner, without showing the Causes which were laid against him, I might have been worthily & ●ustly censured, if upon other men's arguments, and as it were ●…implicita, I should have pronounced my judgement and sentence in so great a Cause, without declaring the grounds ●●d reasons whereupon I stood. ●●us, Duty and Necessity ●●r, ratio sapienti necessitas) were the causes that induced me to speak in this rare and weighty cause, and the force of truth moved me to speak that which I did speak, without respect of pleasing or displeasing any. And so, having the warrant of a sincere conscience, which is truly said to be, veluti Comes, & Testis, & Index actionum, I have in the Chancery judged and decreed the Case for R. C. And the like judgement is also given by the judges of the King's Bench, in the Assize depending in that Court. The decree and judgement being thus passed, diverse unperfect Reports, and several patches and pieces of my Speech have been put in writing, & dispersed into many hands, and some offered to the Press. The Kings M ie. having knowledge thereof, misliked it, & thereupon commanded me to deliver to him in writing, the whole discourse of that which I said in that Cause.  
Thus I was put to an unexpected new labour, to review my scribbled & broken papers. Out of which (according to the charge imposed upon me) I gathered all which I had before spoken, & so set it down faithfully & plainly, and (as near as I could) in the same words I uttered it: it pleased his sacred M ie. to take some view of it, & taking occasion thereby, to remember the diligence of the L. chief justice of the common place, for the summary report he had published of the judges Arguments, he gave me in charge to cause this to be likewise put in Print, to prevent the Printing of such mistaken and unperfect reports of it, as were already scattered abroad.  
Whatsoever it is, it was first conceived & spoken out of conscience & duty; and is now published in humble obedience to my most gracious Sovereign. And so I offer and commend it to your good acceptance and favourable interpretation.  
T. Ellesmere Canc.   

❧ Post-nati.  
MY Lords, mine age, mine infirmity, and indisposition of health, my decay and weakness of memory, and Desuetudo, and long discontinuance from this manner of Legal exercise (above fourteen years) have bereaved me of the means and helps that should inhable me to speak in so great a Case.  
I fear therefore, that it will be deemed presumption (if not worse) that I adventure to speak herein at all; specially after so many learned and judicious Arguments of so many grave, learned, and reverend judges.  
To say the same that hath been said, must needs be unpleasant, wearisome, and loathsome to the hearers; and not to say the same, is to speak little to the purpose: for, what more can be said than hath been?  
Yet, for that the Case is depending in Chancery, and adjourned hither for difficulty in Law, & there I must give judgement according to the Law, Whether the Complainant be inhabled, by Law, to maintain his suit in that Court, or not: I hold it more fitting to deliver the reasons of my judgement here, where others have been heard, than there, before a few, which have not heard that which hath been so learnedly argued, and largely debated here.  
And therefore the Case standing thus, I will speak what I think: And I must say as one of the grave judges said, I can tell no news; But some old things which I have read and observed, I will remember; but I can not divine, or prophesy de futuris, I leave that as justice Yeluerton did.  
I am free, and at liberty Nullius addictus jurare in verba Magistri, and therefore I will speak ingenuously and freely.  
In the arguing of this Case, some things which are of great weight with me, have (in mine opinion) been passed over too lightly; and some other things which seem to me but light, have been overweighed, as I think.  
Half an hours time longer or shorter I mean not to strive for, and therefore I will presume on your patience, and assume to myself such convenient time as others have done: And yet I will husband time as well as I can.  
I will not be abashed to strengthen my weak memory with help of some scribbled papers, as others have done: for I account it a point of wisdom to follow wise men's Examples.  
Other Exordium, Insinuation, Protestation, or Preface for the Matter itself, either to prepare attentive and benevolent auditors, or to stir offence or mislike against either party, I mean not to use; it is fit for Orators, I never professed the Art, I had never skill in it: And it is not Decorum for judges, that aught to respect the Matter, and not the humours of the Hearers.  
The Exordium the Civilians use in their Sentences I like well; In Dei nomine Amen, & Deo primitùs invocato; other Exordium I care not for.  
The Case now depending in Chancery which is adjourned hither, 
The Case.  is thus.  
Robert calvin, son and heir apparent of james L. calvin of Colcrosse in the realm of Scotland, an Infant of three years of age, borne in the said Realm of Scotland, maketh title by his Bill to a messsage and Garden with th'appurtenances in the parish of Saint Buttolph without Bishopsgate in the city of London: and complaineth against john Bingley, and Richard Griffin, for detaining the Evidences concerning the same messsage and Lands, and taking the profits thereof.  
The Defendants plead, that the Plaintiff is an Alien, and that in the third year of his majesties reign of England, and in the nine and thirtieth year of his majesties reign of Scotland, he was borne in the Realm of Scotland, within the ligeance of his said Majesty, of his Realm of Scotland, and out of the ligeance of our sovereign Lord the King of his Realm of England.  
And the Defendants say further, That at the time of the birth of the Complainant, and long before, and ever sithence, the said Kingdom of Scotland was, and still is, ruled and governed by the proper Laws and Statutes of the said Kingdom of Scotland, and not by the Laws and Statutes of this Realm of England: And therefore the Defendants demand judgement, Whether the Complainant ought to be answered to his said Bill, or shall be received to prosecute the said suit against the Defendants, being for, and concerning the title of Inheritance, and evidence touching the same.  
Hereupon the Complainant hath demurred in Law.  
This is the special Case now depending in the Chancery; in which, and touching all like Cases in general, mine opinion is, and since the question was first moved hath been, That these Post-nati are not Aliens to the King, nor to his Kingdom of England, but by their Birthright, are liege subjects to the King; and capable of estates of Inheritance, and freehould of Lands in England: and may have and maintain as well Real as Personal actions for the same. And that therefore the now Complainant Robert calvin aught to be answered.  
This opinion I did first conceive upon those rules and reasons in Law (as well the Common Law of England, as the Civil law) which hereafter in the course of my Speech I will remember. And in this opinion I have been since confirmed by many great and weighty reasons.  
First, 
The proceeding in the general Case of Post-nati.  in the Statute made in the first year of his majesties reign of England, authorizing the Treaty between the Commissioners for both the Kingdoms, 
Stat. 1. jac.  it is said (as justice Warburton noted well) That both the famous & ancient Realms of England and Scotland, 
19 Mart. 1603  are now united in allegiance and loyal subjection in his royal person, to his Majesty, and his posterity for ever.  
here we have the judgement of the Parliament, that there is a Unity in allegiance to one Royal person; And therefore I see not how we may out of imaginary conceits, and by subtle distinctions strain our wits to frame several allegeances to one and the same Royal person, contrary to so plain a declaration made by Parliament.  
Next followeth his majesties Proclamation 20. Octobris 1604. 
The Proclamation, 2. jacobi 20. Octobr. 1604.  by which he assumed to himself the Name and Style of King of great Britain: In which Proclamation, among many other weighty reasons, this is added for one, We have received from those that be skilful in the Laws of the Land, That immediately upon our succession, diverse of our ancient Laws of this Realm are ipso facto expired; as namely, that of Escuage, and of the naturalisation of the Subjects. This was not done suddenly, nor lightly; but upon grave and serious deliberation, and advise: And therefore seemeth to me to be a matter of great importance, and not to be lightly regarded.  
The same twentieth of October, 
The Commissioners authorized by Parliament, did begin 20. Octob. and did continue until 6. Decemb. 2. jacobi.  these Commissioners began their Treaty. Of the grave and judicious Course which they held, in debating of the Matter then propounded, I will forbear to speak: But for this point of Naturalisation now in question, their resolution in the end was thus:  
That it shall be propounded to both the Parliaments at the next Sessions, 
The resolution of the Commissioners.  that an Act be made containing a declaration, as followeth: That all the Subjects of both the Realms, borne since the decease of Elizabeth the late Qu. of England of happy memory, and all that shallbe borne hereafter under the obedience of his Majesty, and his royal Progeny, are by the common Laws of both the Realms, and shall be for ever, inhabled to obtain, succeed, inherit, and possess all Lands, Goods, and Chattels, etc. as fully and amply as the Subjects of either Realm: respectively might have done, or may do in any sort within the Kingdom where they were borne. This, after long debating, and grave and deliberate consideration, was, in the end, the resolution of the greater part of the Commissioners, not one openly gainsaying it. And diverse of the principal judges of the Realm were present at all times when the point was debated. And herein I note the wise and judicious form of that resolution, which was not to propound to the Parliament the making of a new Law, but a declaration of the common Laws of both the Realms in this question.  
Now, if we 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 judgement, as well in Civil and Common Law, as in knowledge, and experience other ways, being assisted by the grave judges of the Realm: If this, I say, be well considered, than this Resolution must be accounted and esteemed as a matter of great and weighty importance, and much to be regarded in the deciding of this question.  
According to this Act of the Commissioners, 
The judges opinion in Parliament.  the Case was propounded in the next Session of Parliament. In the higher House, the judges were required to deliver their opinions. There were then eleven judges present; whereof ten did with one uniform consent affirm the Law to be, That the Post-nati were not Aliens, but natural Subjects (one only dissenting.) After this, the Question was debated in a solemn Conference between both the Houses of Parliament at several times, and at great length, and with much liberty: Nothing was omitted that Wit or Art could invent to object against this opinion; And that was done by men of great learning, and singular judgement in the Common Law, and Civil Law; and by some other Gentlemen of the Common House, of rare gifts for their learning knowledge, elocution and experience.  
At this Conference the judges were present; who, after they had heard all that was, or could be said, did confirm their former opinions, which they had before delivered in the higher House: Three of the chief of them declaring their reasons, and all the rest (saving one alone) concurring in the same. So, here was now a general resolution by all the judges of the Realm (one excepted) and that delivered, not privately, but in Parliament; which without more ado had been sufficient to have decided and determined this Question.  
Touching the Proclamation, 
The force and strength of the King's proclamations.  it was discreetly and modestly said by a learned Gentleman of the lower House. That it was of great respect, and much to be regarded; but yet it was not binding, nor concluding: for, Proclamations can neither make, nor declare Laws: And beside, that this Proclamation was not grounded upon any resolution of the reverend judges; but upon the opinion of some skilful in the Laws of this Land.  
Of the strength of Proclamations, being made by the King, by the advise of his Counsel and judges, I will not discourse; yet I will admonish those that be learned and studious in the Laws, and by their profession are to give counsel, and to direct themselves, and others, to take heed that they do not contemn, or lightly regard such Proclamations.  
And to induce them thereunto, I desire them to look upon, and consider advisedly these few Proclamations, Provisions, or Ordinances, which I will point out unto them; and of what validity and force they have been holden to be in construction of Law, 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 provisum est à Consilio Regis, quod nullus de potestate Regis Franciae respondeatur in Anglia antequam Angli respondeantur de iure suo in Francia. This the Plaintiffs Attorney could not deny; and thereupon the judgement was, Ideo sine die.  
Anno 20. Hen. 3. certain Provisions and Ordinances were made which were called Provisiones Merton, where the King assembled his Archbishops, Bishops, Earls, and Barons for the Coronation of the King, and his wife Queen Elinor; and the words be, Provisum est in curia Dom. Regis apud Merton coram Willihelmo Cantuariensi Archiepiscopo, & Coepiscopis, Suffraganeis suis; Et coram maiori part Comitum & Baronum Angliae ibidem existentium pro Coronatione ipsius Domini Regis & Helionorae Reginae, pro qua omnes vocati fuerunt: Cum tractatum esset de communi utilitate Regni super articulis subscriptis. Ita provisum fuit & concessum, tam a praedictis Archiepiscopis, Episcopis, Comitibus, & Baronibus, & aliis. De viduis primò etc.  
Fitzherbert citeth a Provision made Anno 19 H. 3. 
Fitzherbert Nat. Br. 32.  in these words, Et provisum fuit coram Domino Rege, Archiepiscopis, Episcopis, Comitibus, & Baronibus, Quod nulla Assisa ultimae praesentationis de caetero capiatur de Ecclesiis, Praebendatis nec de Praebendis. This Provision was allowed and continued for Law, until W. 2. Anno 13. Edw. 1. ca 5. which provides the contrary by express words.  
Anno 6. Ed. 1. 
Anno 6. Ed. 1.  the King and his judges made certain Explanations of the Statute of Gloucester, 
Explan. stat.  which are called, Explanationes statuti Glocestriae: 
Gloucestr.  And these be the words. Postmodum per Dominum Regem & justiciarios suos factae sunt quaedam Explanationes quorundam articulorum superius positorum. Which Explanations have ever since been received 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 judge Thorpes opinion Pa. 39 Ed. 3. 7. both which I will now forbear to report, and wish the Students to read the same in the printed Books, where they shall see both the effect, and the reason, and the cause thereof; They are worth their reading, and may inform and direct them what judgement to make of Proclamations.  
Touching the opinion of the judges, 
How the judges opinion delivered in parliament ought to be regarded.  some have objected (yet modestly, and I suppose, according to their conscience and understanding) That there is not like regard to be had of judges opinions given in Parliament, 
Object.  as aught to be of their judgements in their proper Courts and Seats of justice: for, in those places their Oath bindeth them; but not so in the other.  
1. To this I answer: 
Respons.  The reverence, and worthiness of the men is such, as is not to be quarreled and doubted of, if there were no Oath at all: For, if men of so great and eminent places fear not God and his judgements, even out of a religious conscience, which is Fraenum ante peccatum, & flagrum post peccatum, it may be doubted that the external ceremony of adding a Book will little avail.  
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 King's 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, vestrumque Consilium impensuri: And those Negotia be Ardua & urgentia negotia Regni etc. And their Oath, amongst other things, is, That they shall counsel the King truly in his business.  
3 This Exception may serve against the judges, as well in Cases when they sit and give judgement, as justices of Assizes, Nisi prius, Oyer and Terminer, and jail Delivery, as in this Case of Parliament: for, there they have none other Oath but their general Oath.  
4 It becomes us to esteem of judges now, as our forefathers esteemed them in times past; for, as they succeed them in Time and Place (I thank God, and the King, I have neither cause to fear any for displeasure, nor to flatter any for favour: wherefore I will neither be afraid, nor abashed to speak what I think:) I say therefore, that as our judges now succeed the former judges, in Time and Place; so they succeed them, and are not inferior to them in Wisdom, Learning, Integrity, and all other judicious and religious Virtues.  
Then let us see what the wisdom of Parliaments in times past attributed to the judges opinions declared in Parliament; Of which there be many Examples; but I will trouble you but with two or three.  
I will not remember Richard the seconds time (of which some of our Chroniclers do talk idly, and understand little) where power and might of some potent persons oppressed justice, and faithful judges, for expounding the Law sound, and truly. The first that I will remember, is this.  
In the Parliament 28. H. 6. 16. januarij, the Commons made suit, That W. de la Poole Duke of Suffolk should be committed to prison for many treasons and other heinous crimes committed by him. The Lords in Parliament were in doubt what answer to give; they demanded the opinion of the judges: Their opinion was, That he ought not to be committed; And their reason was, for that the Commons did not charge him with any particular offence, but with general slanders and reports; And therefore because the Specialties were not showed, he was not to be committed. This opinion was allowed; And thereupon 28. januarij, the Commons exhibited certain special Articles against him, viz. That he conspired with the French King to invade the Realm etc. And thereupon he 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 damages in an action of Trespass, brought against him by the Duke of York, and was committed to prison in Execution for the same. After, when the Parliament was reassembled, the Commons made suit to the King and the Lords, to have Thorpe the Speaker delivered, for the good exploit of the Parliament; whereupon the Duke of York's Counsel declared the whole Case at large. The Lords demanded the opinion of the judges, whether, in that Case, Thorpe ought to be delivered out of prison by Privilege of Parliament: The judges made this answer, That they ought not to determine the Privilege of that high Court of Parliament; But for the declaration of proceeding in lower Coutts, in cases where Writes of Supersedeas for the privilege of the Parliament be brought unto them, They answered: That if any person that is a Member of the Parliament be arrested in such cases as be not for treason or felony, or for surety of Peace, or condemnation had before the Parliament, it is used that such persons be released; and may make Attorney, so as they may have their freedom and liberty, freely to intend the Parliament. Hereupon it was concluded, That Thorpe should still remain in prison according to the Law, Notwithstanding the privilege of Parliament, and that he was the speaker. Which resolution was declared to the Commons by Walter moil, one of the King's sergeant at Law. And then the Commons were commanded in the King's name, by the Bishop of Lincoln (in the absence of the Archbishop of Canterbury then Chancellor) to choose another Speaker.  
3 In the Parliament An. 7. H. 8. a Question was moved, Whether spiritual persons might be convented before temporal judges for criminal causes; There sir john Fineux and the other judges delivered their opinion, that they might and ought to be so. And their opinion was allowed, and maintained by the King and the Lords: And D. Standish, who before had holden the same opinion, was delivered from the Bishops. And it is worth the noting, what words passed in that Case between the Archbishop of Canterbury, and that worthy judge Fineux.  
4 If a Writ of Error be brought in Parliament upon a judgement given in the King's Bench, 
Writs of Error sued in parliament.  the Lords of the higher House alone (without the Commons) are to examine the Errors; But that is by the advise and Counsel of the judges, who are to inform them what the Law is, and so to direct them in their judgement. And if the judgement be reversed, than commandment is to be given to the Lord Chancellor to do Execution accordingly. And so it was in Anno 17. R. 2. in a writ of Error brought in Parliament by the Dean and Chapter of Lichfield, against the Prior and Covent of New-port-Panell, as appeareth by the Record. But if the judgement be affirmed, than the Court of the King's Bench are to proceed to execution of the judgement, as it appeareth in Flowerdewes Case P. 1. H. 7. fol. 19 But it is to be noted, that in all such Writes of Error, the Lords are to proceed according to the Law; and for their judgement therein they are informed and guided by the judges, and do not follow their own opinions or discretions otherwise.  
This extravagant Discourse touching Proclamations, and judges opinions delivered in Parliament, and how they ought to be regarded, I have thought material and necessary, both in respect of the time wherein we live, and the Matter which we have in hand: And these be things which I think have been too lightly passed over: But if you condemn it as impertinent, I must then confess I have presumed too much upon your patience; I pray you bear with me, it is but my labour lost, and a little time misspent, if it seem so unto you: You are wont to pardon greater faults; Call it either a Pastime, or Waste-time, as pleaseth you. Now, to return to the Case we have in hand.  
The general Question having had this passage (by Proclamation, 
The process and form of proceeding in the Case of R. C. now in question.  by Commission, and by debating in Parliament) remaineth yet without conclusion or judgement: And as every man abounds in his own sense, so every one is left to his own opinion; Specially those that were not satisfied with the grave Resolution of the judges in Parliament, which (although some may term and account as bare opinions) I must always value, and esteem as a real and absolute judgement. Now, I say, this general Question is reduced to two particular Cases, and is judicially depending in two the highest Courts of justice in this Realm; and that is by one Complainant against several Defendants for the freehoulde and inheritance of several parcels of Land: and (as M. Solicitor said well) is a Case, not feigned, nor surmised, but a true Case between true parties: And being Quaestio juris, non facti, is by both these Courts adjourned hither to be decided, and determined by all the judges of England, as the rareness of the Case, and the weight and importance of it, both for the present and the future doth require.  
And the Case being of this nature and quality, it is not amiss to observe the proceeding in it: for, it is worth the observing, and not to be forgotten. The Defendants counsel, men of great learning, and in their profession inferior to none of their quality and degree, men conversant and well exercised in the Question, and such as in the great conference in parliament, most of them were specially selected & choose (for so they well deserved) as most sufficient, able, and fit, as well for Learning and Knowledge, as for all other gifts of Wit and Nature, to handle so great and rare a Question. And although it hath pleased them of their good discretion to use the pains but of a few in the debating and arguing of the Case at the Bar: yet no doubt that was done upon mature deliberation and conference with all the residue: And whatsoever the Spirits, the Learning, the Wisdom, and Knowledge of all the others, upon long study could afford, was put into the mouth of those few to serve as Organs and Instruments to deliver it unto us; which they have so well and sufficiently performed, that they deserve great praise and commendation: For, in my poor opinion, the wit of man could not devise to say more touching this Question in Law than they have said. And whatsoever hath been sithence spoken for that part, it is for the Matter but the same in substance, which the counsel at the Bar did deliver; though it hath been varied in form, and amplified with other words and phrases, and furnished with show of some other strained Cases and authorities.  
The handling of it by the learned and reverend judges, hath been such, as it may appear to the world, that every one hath spoken his own heart and conscience; and hath laboured by long study to search out the Law and the true reason of the Law in this rare Case; and so they have spoken, as Coram Deo & Angelis: None, with desire to seem popular; for nothing ought to be tam populare quam veritas: None to seem to be time-servers, or Men pleasers; for the King (whom under God they serve) being Pater patriae, and sovereign head of both these great united Kingdoms, is to them both, like as the head of a natural body is to all the Members of the same, and is not, nor can not be partial more to one than to an other. He delighteth in truth, and desireth it; and without truth he can not be pleased. He ruleth by his Law, and commandeth his judges to minister to all his subjects Law and justice sincerely, and truly; and equally and indifferently, without any partial respect.  
It was never seen, but that in all rare and difficult Cases, there have been diversity of Opinions; but yet without breach of Charity, which is the Bond of Unity. So it hath happened in this Case. The Case hath been argued at large by fourteen learned judges; twelve of them have concurred in judgement, but upon several reasons: for, as many ways may lead to one end of the journey; so diverse and several reasons may conduce to one true and certain conclusion.  
And here I may not omit the worthy memory of the late grave and reverend judge, Sir john Popham, chief justice of the King's Bench deceased (a man of great wisdom, and of singular learning and judgement in the Law) 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 Saviour jesus Christ, when all the rest of the Apostles did firmly believe it: But that his doubting confirmed, in the whole Church, the Faith of the Resurrection.  
The two worthy and learned judges that have doubted in this Case, as they bear his Name, so I doubt not but their doubting hath given occasion to clear the doubt in others; and so to confirm in both the Kingdoms, both for the Present and the Future, the truth of the judgement in this Case.  
Thus, my Lords, have you hitherto nothing from me but Amen, to that which all the judges (saving two) have said; and much more you cannot expect from me: Yet, since I must give judgement in this Case; and I said in the beginning, that I would render the reasons of my judgement: (for that is the course of argument I must hold) I will now deliver unto you, what are the special and principal reasons that first have induced me, and still move me to hold the opinion that I do: And as I go, I will endeavour to clear some doubts and questions, that partly in the conference in Parliament, and partly otherwise, I have heard made; not only touching this Case itself, but also touching the form and manner how it is to be decided and judged.  
The Case is rare, 
How this Case is to be judged, and by what Law.  and new (as it hath been often said) it was never decided Terminis terminantibus; It was never judged by any Statute Law, which is a positive Law; nor by judgement of the judges of the common Law.  
Now, the first Question is (as some would have it) How it is to be judged, and by what Law; and have wished that it might have stayed until the Parliament, and so be decided by Parliament. They that make this doubt, I will let them demur, and die in their doubts: For, the Case being adjourned hither before all the judges of England, is now to be judged by them according to the common Law of England; and not tarry for a Parliament: For, it is no transcendent Question, but that the common Law can and aught to rule it, and overrule it, as justice 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 Law of England; Whether it be Ius scriptum, or non scriptum; and such other like niceties: For, we have in this Age so many Questionists; 
Questionists  and Quo modo and Quare, are so common in most men's mouths, that they leave neither Religion, nor Law, nor King nor Counsel, nor Policy, nor Government out of question.  
And the end they have in this Question, What is the Common Law? is to shake and weaken the ground and principles of all government: And in this particular Question of the Law of England, to overthrow that Law whereby this Realm hath many hundred years been governed in all honour and happiness: or at least to cast an aspersion upon it, as though it were weak and uncertain. I will therefore declare mine opinion in this point plainly and confidently, as I think in my conscience, and as I find to be sufficiently warranted by ancient Writers, and good authorities void of all exception.  
The common Law of England is grounded upon the Law of God, 
The ground of the Common Law.  and extends itself to the original Law of Nature, and the universal Law of Nations.  
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 Crown, and the King, it is sometimes called Lex Coronae, as in Stat. 25. Edw. 3. cap. 1. Lex Coronae Angliae est & semper fuit etc. And it is sometimes called Lex Regia, as in Registro foe 61. Ad iura Regia spectat: And, Ad conseruationem iurium Coronae nostrae, & ad iura Regia ne depereant etc.  
When it respects the common subjects, it is called, Lex Terrae; as in Magna Charta ca 29. Nisi per legal judicium parium, vel per legem Terrae.  
Yet, 
The common Law is not originally Lex scripta.  in all these Cases, whether it respects the Church, the Crown, or the Subjects, it is comprehended under this general term; The common Laws of England: Which although they be for a great part thereof reduced into writing; yet they are not originally Leges scriptae.  
This I first learned of the late Lord Treasurer Burleigh (whose Honourable memory England can never forget) and hearing it from him, I endeavoured by my private study to satisfy myself thoroughly in it. And, whosoever shall well consider the Laws of England, which were before the Conquest (whereof we have some Remnants and Patches) or since the Conquest until 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; cum autem ferè in omnibus Regionibus utantur legibus & iure scripto, sola Anglia usa est in suis finibus iure non scripto & consuetudine; in ea quidem, ex non scripto Ius venit quod usus comprobavit.  
But I may not agree with Bracton, that Sola Anglia usa est iure non scripto: For I find that the gravest, and the greatest learned Writers of the Civil Law, both ancient and of this our time, do hold the same opinion, touching the Civil Law itself, for thus they write: Ex non scripto Ius venit quod usus approbavit. And thus; Ius Civil dictum ex non scripto natum est. And; Ius non scriptum dicitur Consuetudo, non quod scripto perpetuò careat, hoc enim falsum est. Name & Consuetudines in memoriam constantiorem reducuntur in Scripturam, ut caetera quoque quae sine scriptura perficiuntur: Sed non scriptum ius est: id est, quòd à scriptura vis eius non coepit nec pendeat. So, hereby it may appear how in this we concur with the Civil Law.  
But hereupon these Questionists move an other Question, 
How the common Law of England may be known.  viz. If the common Law be not written, 
Object.  how then shall it be known?  
To this I answer; 
Respons.  It is the common custom of the Realm (as Bracton saith, Ius venit quod usus comprobavit:) And it standeth upon two main pillars & principal parts, by which it is to be learned and known.  
The first is, 
Maxims and Principles.  certain known principles and Maxims, and ancieut Customs, against which there never hath been, nor aught to be any dispute. As in Cases of Subjects; an estate in fee-simple, for life, for years, Dower, Courtesy etc.  
In Cases of the Crown, the Female to inherit: the Eldest sole to be preferred: No respect of Half Blood: No tenant in Dower, or by the Courtesy of the Crown: No disability of the King's person by infancy etc.  
The second is, 
Responsa prudentum.  where there be no such Principles, then, former judgements given in like Cases: And these be but Arbitria judicum, & Responsa Prudentum, received, allowed, and put in practice and execution by the King's authority.  
Of these Bracton speaketh; Ego H. de Bracton animum erexi ad vetera judicia justorum perscrutanda; facta ipsorum, Consilia, & Responsa in unam summam redigendo compilavi.  
And before the Conquest, King Ethelbert caused a Book to be made, which was called Decreta judiciorum: And king Alured did the like, 
Lambard in explicatione verbi Hyde.  as master Lambard a judicious and learned observer of Antiquities, doth remember.  
Of these also the judges speak H. 33. H. 6. moil, fo. 8. We rule the Law according to the ancient course. Ashton, fol. 9 All our Law is guided by Use, and by Statute. And Prysot saith, fol. 9 There cannot be a positive Law, but such as was judged or made by Statute. Wherein I note also that he equalleth a judgement with a Statute.  
In 36. H. 6. fol. 25. Fortescue reasoneth thus; The Law is as I have said, and so hath been always since the Law began.  
In 37. H. 6. f. 22. Askew reasons thus; Such a Charter hath been allowable in the time of our Predecessors, which were as sage and learned as we be.  
In H. 4. Edw. 4. fol. 41. Markham reasoneth thus; It is good for us to do as it hath been used before this time, and not to keep one way one day for one party, and another day the contrary for the other party: And so the former Precedents be sufficient for us to follow: And judgement was given accordingly.  
And in the former Case 36. H. 6. 
Anno 36. H. 6.  Fortescue saith further; We have many Courses and Forms which be holden for Law.  
Also every one of these four principal Courts, The Chancery, King's Bench, Common-plees, and Exchequer, have in many things several courses and forms which are observed for Law, and that not only in that proper Court, but also in all Courts through the Realm; whereof many Examples be remembered in the Case of the Mines in Plowdens' Commentaries.  
The third: 
In novo casu nowm remedium.  But if there be no such former judgements, nor direct Examples or Precedents, than this Rule hath a further extension, which is this.  
There is a Rule in the common Law, that in novo casu nowm remedium est apponendum. Et concordent Clerici de Breve faciendo, ita quod nullus recedat à Cancellaria sine remedio. For the Chancery is properly Officina justitiae & AEquitatis; where all original writs (which in ancient times were the Grounds of all Suits) are devised and framed. And these Clerici were grave and ancient men; skilful, & long experienced in the course of the Chancery; and called Clerici de prima forma: And of late time Magistri Cancellariae; who in new and strange cases, besides their own knowledge and experience, had oftentimes conference with the grave judges for the devising and framing of new Writes when need required. And this I take to be the same which is in the Statute W. 2. cap. 24. 
St. W. 2. ca 24.  Et quotiescunque de caetero evenerit in Cancellaria, 
Anno 13. Ed. 1.  quod in uno casu reperitur breve, & in consimili casu, cadente sub eodem iure & simili indigente remedio, non reperitur, Concordent Clerici de Cancellaria in brevi faciendo, vel atterminent querentes in proximum Parliamentum: Et scribantur casus in quibus concordare non possunt, & referant eos ad proximum parliamentum: Et de consensu jurisperitorum fiat Breve, ne contingat de caetero, quòd Curia Regis deficiat conquerentibus in justicia perquirenda.  
Wherein I note these three things: First, The Clerks are to agree; and if they agree, that is an end, and stands for Law, 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 jurisperitorum fiat Breve: So Consensus jurisperitorum is the Rule, and not the multitude of vulgar opinions. The third is, That justice fail not them which complain: Which will often fail, if you stay until a Parliament: For Parliaments are not to be called for the wrong of a few private Subjects: but for the great and urgent affairs of the King and the Realm.  
I find also a like Rule in the Civil Law; 
Vbi non est directa Lex etc.  Vbi non est directa lex standum est arbitrio judicis, vel producendum ad similia. And another saith, De similibus ad similia judicium & argumentatio recipiuntur.  
4 Besides these, 
Rex solus judicat, etc.  there is an other general and certain Rule in the Civil Law, which I reserve to the last part of that which I mean to speak in this Matter.  
So, leaving that unto a more proper place, I will hereupon conclude, That if there be no former judgements, nor Examples, nor Precedents to be found, then Concordia Clericorum, & Arbitrium judicum is to seek out the true and solid reason; and thereupon to ground their judgements in all new Cases: For it was truly said by a learned Gentleman of the lower House, Deficiente lege recurrendum est ad consuetudinem: Deficiente consuetudine recurrendum ad rationem. And so from the judges we shall have Responsa prudentum to decide all such new Cases and Questions. And according to this Rule, all such new doubts and questions have been resolved and decided by the grave judges in former times.  
But here, 
A request to the professors of the Civil Law.  before I proceed further, I am to make a suit, which is this:  
That whatsoever I have spoken, or shall happen to speak of the Civil Law; or whatsoever I shall cite out of any Writer of that Law, I pray favour my Masters that profess it. I acknowledge that Law to be ancient and general in many parts of the world; and I reverence the professors of it, as men of great learning, wisdom, and judgement. I profess it not; I have learned little of it; but in that little I have found that in the real and essential parts of justice, the Civil and common Law do in many things concur, though they differ much in the form and manner of proceeding. And that which I shall have occasion to produce of that Law, will be to show how the common Law and Civil do agree in one reason and judgement in those things which I shall speak of.  
Yet I must take liberty to say, That neither in Spain, nor in France (those two great Monarchies) it is not generally received nor allowed as a concluding and binding Law.  
They take there the reason of it only as a direction to their proceeding & judgement: But to produce or allege it as a concluding or binding Law, was no less than Capitis poena.  
This I make not of myself; for, beside common practice and experience, I have an honest and substantial witness, Master Adam Blacwood a Scottishman, 
Blacwood ca 10  a man of singular learning in the Civil Law, who defendeth in like manner the Laws of Scotland, as appeareth in his learned Book entitled, Pro Regibus Apologia, written by him against a seditious Dialogue or Libel made by George Buchanan, De iure regni apud Scotos, where he tells him, Aliud Sceptrum, aliud Plectrum. But it is not amiss to recite his own words, which are thus; Philippus cognomento Pulcher, cum Lutetiae supremae jurisdictionis curiam institueret, eam Romano iure solutam esse declaravit in eamque sententiam vetus extat eius Curiae decretum, ne causarum patroni Romanarum Legum auctoritatem patriae legibus opponant. Sed cum illae bono & aequo niti videntur & probabilem utilitatis publicae causam continere, nos earum utimur haud imperio, sed ratione cui omnes homines naturae praescripto subijciuntur. Quin etsi quid adversus rationem legum Romanarum perperàm ac temerè iudicatum est, id earum multis poenis haud aestimatur, sed vel Principis, vel superioris magistratus arbitratu. Nam cum in publici muneris partem admittimur, & conceptis verbis inauguramur, solemni sacramento regiarum & municipialium legum atque morum obseruationem, nulla Romani juris mentione, spondemus. Apud Hispanos capitis poenam iis indictam legimus qui Romanarum legum auctoritatem vel in foro laudarent, vel in pulvere scholastico profiter entur. Sed si quid occurreret patrijs legibus ac moribus indefinitum quod iudicanti religionem adferret, unicum erat eximendo scrupulo regis consulendi remedium. Alaricus Tolosae regnans, idem Gothis imperavit, ut si quis adversus ipsius leges, Civil Romanorum ius citaret, temerè factum morte lueretur.  
Now to return to that which I have touched before, 
Recurrend▪ ad Rationem etc.  I say, that when there is no direct Law, nor precise Example, we must Recurrere ad rationem, 
Quod non lego non credo.  & ad responsa prudentum: For, although Quod non lego, non credo, may be a true and certain rule in Divinity; yet for interpretation of Laws, it is not always so: For we must distinguish between fidem moralem, and fidem divinam, or else we shall confound many things in the civil and politic government of Kingdoms and States. For, the first Precedent which we have now, had no precedent when it began; But as Tacitus saith, Quae nunc vetustissima creduntur nova fuerunt, & quod hody exemplis tuemur, inter exempla futurum est. And to those that hold, that nothing is to be done but by former Examples, Horace speaketh thus; O imitatores servum pecus: And Cicero saith, Non exempla maiorum quaerenda, sed confilium est eorum à quibus exempla nata sunt explicandum.  
Thus hath justice been duly administered in England, and thereby the Kings have ruled, the people have been governed, and the Kingdom hath flourished for many hundred years; and then no such busy Questionists moved any quarrel against it.  
Thus have all doubts growing upon Magna Charta, 
Exposition of Statutes.  and Charta de Foresta, made in King Henry the thirds time, and upon the Statutes of Westmin. 1. Westm. 2. Westm. 3. and many other Statutes made in Ed. 1. time: And upon Praerogativa Regis, and many other Statutes made in Ed. 2. time, been from time to time expounded; and so of later times, the Statutes of Fines, of Uses, of wills, and many more.  
Thus also have all Doubts and Cases, 
Exposition of Laws.  whereof there was no Statute or Positive Law, been always expounded: for such are most of the cases which we have in our Yeere-Bookes, and Books of Reports, which are in effect nothing but Responsa prudentum, as justice Crook did truly say.  
Upon this reason it is, 
laws obsolete.  that some laws, as well Statute Law, as common Law, are obsolete and worn out of use: for, all human laws are but Leges temporis: And the wisdom of the judges found them to be unmeet for the time they lived in, although very good and necessary for the time wherein they were made. And therefore it is said, Leges humanae nascuntur, vigent, & moriuntur, & habent ortum, statum, & occasum.  
By this Rule also, 
Laws changed.  and upon this reason it is, that oftentimes ancient Laws are changed by interpretation of the judges, as well in Cases criminal as civil.  
In criminal cases the Law was Voluntas reputabitur pro facto; but it is not so now, saving in treason only.  
In an appeal of Maim Britton fol. 48. saith, Soit le judgement, que il perde autiel member, come il aver tolle a le plaintiff; but it is not so now.  
In ancient time, one present, aiding, comforting, and assisting to a murder, was taken to be no principal, but an accessory, as it appeareth M. 40. Edw. 3. fol. 42. & 40. li. Ass. p. 8. & p. 25. But now in that case he is judged a principal. And so it was ruled by all the justices M. 4. H. 7. 18. and so Plowden affirmeth the Law to be, in his Commentaries fol. 99 & 100  
In civil causes in ancient time, the Law was holden, That he in Remainder in Tail could not have an action of Waste, nor be received upon default of tenant for life: But afterwards, the Law was often judged otherwise; and so is the common experience and practise at this day.  
In Anno 40. Ed. 3. 28. Fynchden, chief justice of the common place, saith, that in ancient time the Vicar could not have an Action against the Parson; But he saith the contrary is used at this day, which is the better.  
In ancient time a Disseisee could not enter upon the feoffee of the Disseisor, for saving of the warranty; but for many years the Law hath been holden otherwise, and so the common practice 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 disjunctive for a Copulative; a Copulative for a disjunctive; the present tense for the future; the future for the present; sometimes by equity out of the reach of the words; sometime words take in a contrary sense; sometime figuratively, as Continens pro contento, and many other like: And of all these, examples be infinite, as well in the civil law as common law:  
And oftentimes the reverend judges have had a grave regard in their proceeding, 
judges consulted with the privy Counsel.  that before they would resolve, or give judgement in such new Cases, they desired to consult with the King's privy Counsel; as appeareth in diverse Cases in King Edward the third his time.  
R. W. assaulted Adam Brabson in presence of the justices of Assize at Winchester, 
39 E. 3 li. As. p. 1.  for which A. B. complained by Bill before the said justices, alleging this offence to be in despite of the King and his justices, to his damage of an hundred pounds. R. W. pleaded, Not guilty; and was found guilty, and damages taxed to ten pounds. Thereupon the judges awarded him to prison in the Sheriffs keeping. And for the Fine, and that which should be further done for the King; for the assault done in the presence of the judges, they would have the advise of the King's Counsel: 
M. 19 Ed. 3. judgement 174  For in a like case, because R. C. did strike a jurour at Westminster, which passed in an inquest against one of his friends; It was adjudged by all the Counsel, that his right hand should be cut off; and his lands and goods forfeited to the King. These be the words in the Book.  
In this case I note three things.  

1. The judges consulted with the Counsel.  
2. They have a like case before when the Counsel was also consulted with, viz. Anno 19 E. 3. and yet they would not proceed in this case before they had again consulted with the Counsel.  
3. That before Anno 19 Edw. 3. there was no like case nor precedent for such a judgement; And therefore the judges would not of themselves pronounce that heavy judgement before they had conferred with the Counsel touching the same. And after they had the opinion and advise of the King's Counsel, they proceeded to that judgement.   
Thomas ughtred Knight brought a Formedone against a poor man and his wife; 
M. 39 Ed. 3. 35  They came and yielded to the demandant, which seemed suspicious to the Court: whereupon they examined the Matter, and stayed judgement, because it was suspicious. And Thorpe said, that in the like Case of Giles Blacket it was spoken of in Parliament: And we were commanded, that when any like Case should come, we should not go to judgement without good advise. Wherefore sue to the Counsel, and as they will have us to do, we will; and otherwise not, in this Case.  
green and Thorpe were sent by the judges to the King's Counsel (where there were 24. Bishops and Earls) 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, aswell as a letter or a syllable: for, the statute speaks but of a letter or a syllable; & it was answered, That it may well be amended: For, there cannot be a Word without a Syllable; and that it was a nice question of so sage men.  
Thus Arbitria judicum, and Responsa prudentum have been received, allowed, and reverenced in all times as Positive Law; and so it must be still; For, otherwise much mischief and great inconvenience will ensue: for new Cases happen every day: No law ever was, or ever can be made that can provide remedy for all future cases; or comprehend all circumstances of human actions which judges are to determine: Therefore, when such happen, and complaint is made; what shall judges do? Shall they give no remedy to the party grieved? Shall they stay for a Parliament? 
judges to be directed by reason and discretion.  Interim patitur justus. They must therefore follow Dictamen rationis; and so give speedy justice. And in many matters of material circumstauces they must guide themselves by discretion.  
As in judging upon Presumptions; To discern which be Presumptiones temerariae, which Probabiles, which violentae.  
So for Time; what is a convenient Time, and what not.  
So for Waste; what is Waste punishable, and what not.  
So for Tenders of money; what is a convenient place for tender of money, and what not: and what is a lawful 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 have said) That if this be thus, 
Object.  than the common Law of England is uncertain; 
That the common Law is uncertain.  and so the rule of justice, by which the people are governed, is too pliable, and too weak, and uncertain.  
By the same reason it may be said, 
Respons.  That all the Laws of all Nations are uncertain: For, in the Civil Law, which is taken to be the most universal and general Law in the world, they hold the same rule and order in all cases which be out of the direct words of the Law; and such cases be infinite: For, as I said, new cases spring every day as malice and fraud increaseth. And since the Roman empire began, most of their Laws be either Edicta Principum, or Arbitria judicum, or Responsa prudentum. And in their judgements they are guided by Arrests and former judgements, as may appear in the Books of many that have collected such Arrests. And they attribute so much to such former judgements, That as Prysot equalleth them to a Positive Law, so they hold, that Sententia facit Ius, & res iudicata pro veritate accipitur, & legis interpretatio legis vim obtinet.  
Nay (which is more uncertain) sometimes they rely upon Doctors opinions delivered in their Prelections and Treatises. And when they find them varying, and differing one from another (as sometimes they do) than they prefer that which is Communior opinio: And so in good reason they may: For, Pluralitas idem sentientium, semper superat; quia faciliùs invenitur quod à pluribus quaeritur.  
But to conclude this point, I would ask of these Novelists, what they would have done in Sibyl Belknappes case; if they had lived in Henry the fourth's time?  
Sir Robert Belknappe, 
M. 2. H. 4. 7.  that reverend and learned judge, of whom sundry noble and worthy persons, and some now of great & eminent place in England are descended, was banished out of the Realm, (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 own Name alone, not naming her Husband. Exception was taken against it, because her husband was living; and it was adjudged good, and she recovered: and the judge Markeham said;  
Ecce modo mirum quòd foemina fert breve regis,  
Non nominando virum coniunctum robore legis.  
Here was a rare and a new case, yet it was not deferred until a Parliament: it was judged, and her wrong was righted by the common Law of England, and that Ex arbitrio judicum, & ex responsis prudentum; and yet it was counted Mirum with an Ecce.  
Now to apply this to R. Calvin's case: his case is rare and new, so was that: There is no direct Law for him in precise and express terms: There was never judgement before touching any borne in Scotland, since King james began his happy reign in England: He is the first that is brought in question: So there was no direct Law for Sibyl Belknap to sue in her own name without her husband, who was then living: nay rather there was direct Law against it; yet by the Law of England she had judgement to recover with an Ecce modo mirum: So by the law of England judgement ought to be given for Robert calvin, but not with an Ecce modo mirum; but upon strong Arguments deduced à similibus, and ex dictamine rationis.  
But before I come to those arguments, I will use a few words more touching some Rules which I have read for the interpretation of laws.  
There is a grave and learned Writer in the Civil Law that setteth down four ways & forms of interpretation of laws: 
Note four forms of interpretation of Laws.  that is, first, Interpretatio historica; secondly, Etymologica; thirdly, Analogica; fourthly, Practica.  
In the Argument of this Case all these forms have been used, and largely handled: and the two first be those that seem but light to me, and therefore in mine opinion have been too much stood upon, and over-weighed.  
For the Historical interpretation, 
Historica.  it is always dark, obscure, and uncertain, of what kingdom, country, or place soever you speak; I do always and only except the divine Histories written in the Bible.  
Livy saith, In tanta rerum vetustate multi temporis errores implicantur.  
Saint Augustine speaking of the supposed Books of Henoch saith, Libri isti ob nimiam antiquitatem reijciuntur.  
Wherefore, for this part let this suffice, whether in the beginning there were one or several Kingdoms in great Britain; or one or several monarchs and Kings of these two great & famous Kingdoms in great Britain. The King our Sovereign is lawfully and lineally descended of the first great Monarches and Kings of both the Kingdoms; 
Fergus.  and that by so long a continued line of lawful descent, 
Inas.  as therein he exceedeth all the Kings that the world now knoweth; and therefore to inquire further of Historical knowledge in this Case, I hold it needless.  
For the etymological interpretation, 
Etymologica  there hath been very much said, even as much as Wit and Art could devise: There have been alleged many Definitions, Descriptions, Distinctions, Differences, Divisions, Subdivisions, Allusion of words, Extension of words, Construction of words; and nothing left unsearched to find what is Ligeantia, Allegiantia, Fides, Obedientia, Subiectio, Subditi; And who be Aborigines, Indigenae, Alienigenae, Aduenticij, Denizati, etc. And much of this hath been drawn out of some Writers of the Civil Law; amongst whom the etymological interpretation of the words Ligeus, and Ligeantia, is as uncertain and doubtful, as it is with our common Lawyers; And so upon any of these there cannot be any certain Rule found for judges to judge by, especially in new and rare Cases.  
As for Definition, Ulpian teacheth us, Omnis definitio in iure Civili 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 uncertain. Then, since both be uncertain and dangerous, I will leave both, and seek a more certain Rule to judge by.  
As for Etymology of words, I agree with him which saith, It is Levis & fallax, & plerumque ridicula. It is a Pedant Grammarians fault. Marcus Varro and others have been noted for it. And if you examine the Examples which some do bring, you will perceive how ridiculous and vain it is. So this Rule will not serve to find out that which we seek for: These be but Tendiculae verborum, & Aucupationes syllabarum as one calleth them: It may have some use, and serve a turn in Schools, but it is too light for judgements in Law, and for the seats of justice.  
Aquinas setteth down a more certain Rule, In vocibus videndum, non tàm à quo, quam ad quid sumantur. And words should be taken Sensu currenti: for Use & Custom is the best Expositor both of Laws and Words, Quem penes arbitrium & ius & norma loquendi.  
Wherefore, of the many and diverse distinctions, divisions, and subdivisions, that have been made in this Case, I will say no more but, Confusum est quicquid in pulverem sectum est: and will conclude with Bishop jewel; A man may wander and miss his way in Mists of Distinctions.  
Then leaving these Historical and etymological interpretations, 
Ligeantia sensu currenti est vinculum fidei etc.  and these curious and subtle Distinctions and Divisions, I say, Ligeantia, or Allegiantia understood Sensu currenti, is vinculum fidei & obedientiae, as justice Daniel said well. And he that is borne in any of the King's Dominions, and under the King's obedience, is the King's liege subject, and borne Ad fidem Regis (for that is the proper and ancient word which the law of England hath used; Ad fidem Regis Angliae, Ad fidem Regis Franciae) and therefore he cannot be a Stranger or Alien to the King, or in any of his Kingdoms; and by consequence, is inhabled to have lands in England, and to sue, and be sued in any Real action for the same.  
And Ligeantia hath sometimes a more large Extension: For, he that is an Alien borne out of the king's Dominions, under the obedience of another king, if he dwell in England, and be protected by the king and his Laws, he oweth to the king the duty of Allegiance; and so he is Ligatus Regi, and Ligeus Regis: and if he commit treason, the Indictment shall be contra ligeantiae suae debitum, as it was in Shirley the Frenchman's Case: yet is he not the King's subject: for, he was not borne Ad fidem Regis; But, this is not that Ligeance which we must find: For, in a true and lawful subject, there must be Subiectio, fides, & obedientia; and those cannot be severed, no more than true Faith and Charity in a true Christian. And he that hath these three à nativitate, is Ligeus Regis, and can not be a Stranger or Alien to the King, or in his Kingdoms. And that it is so, may be proved by the Rule of the other two interpretations of Law; That is, 
Analogica.  Analogica, & Practica.  
King james hath now the Kingdoms of England, Scotland, and Ireland, and the Isles of Gernsey, and jersey by descent; all these be his Dominions, and under his subjection and obedience.  
King Henry the second had England and Normandy by descent, from his mother Maud the Empress; and Anjou, and Main by descent from his father Geoffrey Plantagenet; and Ireland by conquest.  
Henry the third had England and Ireland by descent from his Grandfather Henry the second: and Aquitany by descent from his Grandmother Queen Elinor wife to King Henry the second, and daughter to the duke of Aquitany.  
Edward the first had all the same by descent; and part of Scotland by Conquest.  
Edward the second, and Edward the third had all the same by descent also: and beside, Edward the third claimed all France by descent from his mother Queen Isabella, and had the most part of it in possession; and so had Henry the fifth and Henry the sixth also.  
Now if in these king's times, subjects borne in those Countries, being then under their obedience, were no Aliens, but capable of lands in England: And if at this time subjects borne in Ireland, or Gernsey, and jersey be no Aliens, but capable of lands in England; then, by an Analogical interpretation, why should not subjects borne in Scotland be at this time in like degree? For, in proportion, and in likeness, and conveniency, there can be no difference at all.  
But whether the subjects borne in those Countries in the time of those kings were then capable of lands in England as natural subjects; 
Practica: & sic ad similia.  or were deemed Aliens, is the Question: and therein Interpretatio practica is to be considered; and so the Case is brought to be examined per similia. And in Divinity Praxis sanctorum est interpres praeceptorum.  
Now than the Question is, Whether the king's Subjects of England and Scotland, that be Post-nati, may be resembled to the King's subjects of Ireland, and the Isles of Gernesey, etc. as now they be: and to the subjects of Normandy, Anjou, and Gascoigne, and part of Scotland in former times, when the same were the Dominions, and under the obedience of the King of England: (for I speak always, and would be understood of kingdoms and dominions in possession, and under obedience, and not of those whereunto the King hath right, but hath no possession or obedience.) I hold, that in all points material concerning this Question they are alike, though not in all things: (for, than it were Idem, and not Simile:) and this can not be better understood, than by examining the Objections to the contrary: which in substance may be reduced to four in number.  
First for Ireland, 
Ireland.  it was gotten by Conquest, 
object 1.  and the Conqueror may impose what Laws he will upon them: But it is otherwise of kingdoms coming by descent.  
This is a conceited difference, 
Respons.  and lacks the foundation of Reason, and hath not the true parts of a difference: for those that are born in Ireland, and those that are borne in Scotland, are all alike for their birth within the King's Dominions, and are borne under the like subjection and obedience to the King, and have the like bond; Nay, even the same bond of Allegiance; That is, they are borne Ad fidem Regis.  
Besides, where it is said, The Conqueror may impose what Laws he will: Then consider how it was in the Interim before King john gave laws to Ireland.  
Nay, which is more, I ask whether the Conqueror of Ireland can give new laws to England, and make Irish men to be as natural borne subjects in England (if their birthright do not give it them) which before the Conquest they were not? for, that is properly the Question: But if any difference be, the Case of descent is the stronger: For, (as justice Yeluerton said) that is by an undoubted Title made by law; the other by a doubtful Title won by the Sword.  
But leave Ireland gotten by Conquest; 
France.  what say you to the great kingdom of France; which Edward the third had first in right by lawful descent, and after in possession by triumphant Conquest; and which Henry the sixth held after in possession by descent? Was ever doubt made, Whether the subjects borne there so long as it was in subjection and obedience to the King, were capable of lands in England?  
I will now turn the Case, and ask an other Question; If King james our Sovereign had first been King of England by lawful descent (as now he is) and after Scotland had descended unto him, should not the Subjects of Scotland (I speak still of Post-nati) have been judged as Natural subjects in England, as those of France were in Edward the thirds time?  
Then, he having now both kingdoms by lineal, true, and lawful descent, it can make no difference touching the capacity of Subjects, which kingdom descended to him first, and which second; but both are to him alike. And it is clear, Post-nati in England are now capable and inheritable in Scotland, though some have made a causeless and needless doubt of it: and so on the other side those of Scotland are in England.  
It is said, 
Normandy and Aquitany.  Normandy and Aquitanie were no monarchies or kingdoms, 
object 2.  but dukedoms or signiories in France, and holden of the Crown of France, and therefore not to be resembled to Scotland, which is an ancient and absolute kingdom.  
This Objection reacheth not to the reason of our Question: 
Respons.  For, be they kingdoms, be they signiories, yet the subjects borne there, were borne out of the kingdom of England, and so in that respect Aliens: But in that they were borne within the king's dominions, and under his subjection and obedience, they were no Aliens but liege and natural borne subjects to the King; and so capable and inheritable in England.  
I say beside, the Dukes of Normandy and Aquitany were absolute Princes, and had sovereign power in those countries, although they did not bear the name of kings; as at this time the Duke of Savoy; 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, etc.  
So the difference in Style and Name makes no difference in Sovereignty: For, king Henry the eight had as absolute sovereignty in Ireland, when his Style was Lord of Ireland, as when he changed his Style, and was called, King of Ireland.  
And, to say, That the tenure of the Crown of France should give any privilege to them of Normandy and Aquitanie in England is a strange conceit; It might rather be objected against them. But, as I said before, they were borne within the king's Dominions, and under his obeisance, and therefore as subjects borne in England.  
And if men may believe some ancient Stories, Aquitany and Normandy had sometimes kings, and were kingdoms of themselves: and not depending nor subject to the Crown of France: and the kingdom 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 four and twenty kings in Gaul: But as the kings of France increased in power and strength, they subdued their neighbor-Princes, and so that kingdom grew to that greatness that now it is at; even as the Heptarchy in England was dissolved, and made an entire kingdom, when one of the kings mightier than the rest subdued his neighbours.  
It is said further, 
The Crown and great seal of England.  that Normandy and Aquitany were subjects to the Crown of England; 
object 3.  and to the great Seal of England; but so is not Scotland: Ergo etc.  
This standeth not well with that which 
Respons.  was objected before; That they were but signiories holden of the Crown of France. And it is true, that before Edward the thirds time, those Kings of England that held those great signiories, did acknowledge, that they held the same of the Crown of France.  
But these Objections be light, and not worth the time that hath been spent about them. The Sovereignty is in the person of the King; the Crown is but an Ensign of Sovereignty; the investure and Coronation are but Ceremonies of honour, and majesty: the King is an absolute and perfect king before he be crowned, and without those Ceremonies.  
The Seal is to be altered and changed at the will and pleasure of the King: he may have one, he may have many, as pleaseth him. The King did use Queen Elizabeth's Seal, for diverse months after his coming into England: Queen Elizabeth used king Philip's & queen Mary's Seal for a time; and queen Marie used king Edward's seal. And all that was so done, was well and lawfully done. Many things were done by ancient kings of England before the Conquest by their signature, and sign manuel without any seal at all; and some such since the Conquest also: as Grants made by Maude the Empress to Albericke de Vere, and others.  
The King may by his great seal command all his subjects that be under his obedience wheresoever they be in the world: So he did in Normandy; so he did in Aquitany; so he did in that part of Scotland that he had in possession. And in 24. Edw. 1. his judges kept ordinary Courts of justice there: and I have seen the Records of Placita. Exercitus Regis apud Edinburgh, Apud Roxburgh, Apud S. johns-towne, etc. in Scotia. So he may command his subjects, if they be in France, Spain, Rome, or Turkey, or the Indies. And for several seals, the Earl of Chester had a special seal for that his ancient County Palatine. The Duke of Lancaster had a special seal for his new County Palatine. And after, when these Counties came to the kings possession, the Kings continued several seals in them both for the administration of justice; but as subordinate to the great Seal of England.  
And I make little doubt, but if the King shall now command any of his subjects of Scotland under his great seal of England, they will (as they ought) dutifully obey him. As in king Edward the 1. Edward the 2. and Edward the 3. times they commanded many of the Lords of that part of Scotland which then was under their obedience.  
I find, that in 13. Edw. 2. quarto die Junii, the King Constituit Adomarun de Valentia comitem Pembrochiae Custodem Regni sui; ac locum suum tenentem quamdiu Rex in partibus transmarinis moram fecerit. And the next day, viz. Die iovis quinto die Junii Rex ordinavit, quod magnum Sigillum suum remaneret clausum in liquo loco securo, dum Rex esset in partibus transmarinis: Et ordinavit quoddam aliud parvum Sigillum interim pro regimine Regni, ad brevia, etc. Consignanda, sub Teste Adomari de Valentia Comitis Pembroch. Nota, here was a petty Seal pro regimine Regni, wherein are comprised Commissions for justice, Mandatoria, & ad brevia consignanda; which is for Remedialia as they are termed.  
It is said, 
Several Laws.  that Scotland hath Laws that are proper for that kingdom, 
object 4.  & that they are not subject to the laws of England, and so è contra.  
And lastly it was said, that in England every person was within the jurisdiction of some Leete, and at the age of twelve years every one is to be sworn in the Leete to be Foiall and Loyal to the King of England; That is, to the Laws of England, (for so he understood Loyal:) But Post-nati in Scotland can not be so; and that they have an other form of oath in Scotland: Ergo, etc.  
For this last part, 
Respons.  of the Oath in the Leete, the Lord chief Baron did clear it so plainly, as more needs not to be said. This is Legalis ligeantia, It is not Alta ligeantia by birth, which is that which we have now in question.  
The Historical discourse that hath been made of leets, of Law days, of Decenna, Decennarij, of the Tenne-mens' Tale, and the Oath of all Male children of twelve years, etc. taken at the Leete, is no news indeed, it is very old.  
Master Lambard hath it all, 
Lambard in explicatione verbi Centuria.  and more too, at large in Explicatione verborum in the word Centuria; It was before the Conquest.  
But it maketh no hang to this natural Allegiance and subjection of birth; it is not Alta ligeantia by birthright; it is but Legalis ligeantia by Policy: And Fitzherbert calleth it Swearing to the Law.  
And if that were the only Bond and Mark of Allegiance, many are out of it, and so at liberty. As, children under twelve years; yet sometimes they may commit treason and felony; where, Malitia supplet aetatem: So women of all sorts; yet they may be shrewd and dangerous traitors; and if they be women nobly borne, or widows that were wives to noble men, they shall be tried per pares.  
Also Noble men of all sorts, who are neither bound to attend the Leete, nor to take that Oath, as appeareth by Britton cap. 29. treating of the Court called The Sheriffs Turn, out of which the Leete seemeth to be extracted: For, whatsoever is not presented in the Leete may be presented and punished in the Sheriffs Turn. And M Kitchen citeth Britton in this point for the Leete; and allegeth 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 use and substance is obsolete and gone.  
And, as it was said, few in this place have put in such Pleges, or taken that Oath, and yet I trust we are good subjects, and bear true faith and allegiance.  
But this hath been so fully answered and cleared by the Lord chief Baron, and the Lord Coke, chief justice of the Common pleas, as I do wrong to spend time in it.  
But touching the several Laws; I say, that several laws can make no difference in matter of Sovereignty; and in the bond of Allegiance and obedience to one King: And so it concludeth nothing for the point in question.  
Normandy and Aquitany had several laws differing from the laws of England: so had France in King Edward the 3. and Henry the 6. his time.  
Ireland, before king john's time continued their ancient Laws, and so, for the most part, have done ever since.  
Gernesey and jersey have yet at this day several laws, which, for the most part, were the ancient Laws and Customs of Normandy.  
Wales had, & in many things yet have several Laws: so for the County Palatine of Chester also.  
Yet these never were, nor must not be cantelled and cut off from their allegiance and obedience to the King; nor the King's subjects borne there be incapable of lands and inheritance in England: for where there is but one Sovereign, all his subjects borne in all his Dominions be borne Ad fidem Regis; and are bound to him by one bond of Faith and Allegiance: And in that, one is not greater nor lesser than an other: nor one to be preferred before another: but all to be obedient alike; and to be ruled alike; yet under several Laws and Customs. And as Saint Gregory sayeth of the Church, In una fide nihil officit Ecclesiae sanctae diversa consuetudo. So I will conclude for this point, That diversity of Laws and Customs makes no breach of that unity of obedience, faith, and allegiance which all liege subjects owe to their liege King and Sovereign Lord. And as none of them can be Aliens to the king, so none of them can be Aliens or Strangers in any of his kingdoms 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 have been borne in any of the kings dominions since he was King of England, are capable and inheritable in all his Dominions without exception.  
And as to the other part of the Objection, 
Defect of Trial.  that there will be defect of trial; for, things done in Scotland, cannot be 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 lands in England: but it trencheth to▪ cast some aspersion upon the common law of England; That it is not sufficient to give justice to the kings subjects for lack of sufficient means of trial of questions of fact: but to this baron Altham gave so full an answer, as more cannot be said: And so he did both clear the doubt, and did uphold the sufficiency of the law of England in that behalf. And it seemeth strange, that this should now be found out to be objected against Scotland, since it was never heretofore objected for France, Normandy, Aquitany, nor is at this day for Ireland, Gernesey, and jersey, etc. whereas all stand upon the same reason for the point of trial. But the wisdom of the law of England hath been such, as there never failed certain rules for trial of all questions in fact; and those were fitted and adapted to the Matter which was to be tried. And therefore, whosoever doth diligently observe it, he shall find in the course and practise of the laws of England above twenty several forms of trials: as by Battle; by jury, and that in diverse kinds; by Wager of Law; by Proofs; by Examination; by Inspection; by Certificates of diverse kinds; and by many other ways: And lest there should be any defect in that behalf, the Law hath provided several forms of joining of issues; and in that, hath special regard of things done out of the Realm, as every Student may see in the Books of Reports.  
Thus I have passed these four Objections, and therefore for this part I conclude, That if Argumentum à simili were ever good and concludent in Law, my Lords the judges have proved this Case by so many plain and direct Examples, and like Cases; and by so many strong arguments & solid reasons drawn out of Book Cases, out of Statutes, out of the true rules and form of pleading, and out of ancient Records and Precedents, some produced by M. Attorney, and many more remembered by the judges, as no one thing can be more plainly exemplified, nor appear more like to an other, than this Case is to those Cases which they have remembered.  
But if examples and arguments à simili do fail, 
Recurrend ad Rationem.  than it remaineth Recurrere ad Rationem; and what reason that ought to be, and how to be understood, 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 Paul's, or at Ordinaries, in their feasting and drinking, drowned with drink, or blown away with a whiff 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 be infinite, yet no man can have more of it than he is capable of: Every man must receive it, and keep it in his own vessel; he cannot borrow his neighbour's brainpan to put it in. And therefore it is not without cause, 
Hopperus de vera juris prudentia pag. 118  that one of the gravest and best learned Lawyers of our age, and a privy Counsellor to one of the greatest monarchs of Europe, describeth those that should be Interpreters of Laws by four special qualities, That is, 1. AEtate graves, 2. Erudition praestantes; 3. Vsu rerum prudentes, 4. Publica authoritate constituti: So, there must be gravity, there must be learning, there must be experience, and there must be authority: and if any one of these want, they are not to be allowed to be Interpreters of the Law.  
How all these Qualities concur in these reverend judges, whom we have heard in this present Case, I will spare to speak what I think: For, chrysostom teacheth me, Qui laudatur infacie, flagellatur in cord.  
In seeking out this depth of Reason, the same Author giveth a caution, 
Hopperus ibid. pag. 119.  which is this; Vitium quod in hoc genere fugi debet est, ne, si Rationem non invenias, mox legem sine ratione esse claims. And in 36. H. 6. Fortescue saith the same in effect, which is thus; We have many Courses and Forms which be holden for Law, and have been holden and used because of Reason; and notwithstanding the reason be not ready in memory, yet by study and labour a man may find it.  
Now when we come to examine by reason, whether Post-nati in Scotland shall be disabled as Aliens, or shall be capable of lands in England, as natural borne subjects there; we are first to consider what is the reason why Aliens in the Dominions, and under the obedience of other foreign Princes, are nor capable of lands in England: And surely, the true reason is, that which was noted by baron Altham; and hath since been oft remembered, viz. The danger that might thereby come to the king and the commonweal: Specially by drawing hither too great multitudes of them: for so the Treasure of the Realm might be transported by them into other foreign Kingdoms and Countries; whereby it might be used against the King, and to the prejudice of the State. And beside, they might underhand practise Sedition and Rebellion in the kingdom, and cause many other dangers and inconveniences: but that reason cannot serve against Post-nati in Scotland, now that there is but one King of both the kingdoms, no more than it can serve against those that are borne in Ireland, or Gernesey, or jersey: and therefore in reason they are as capable of lands in England, as the king's subjects of Ireland, and Gernesey, and jersey are.  
Against this, 
Objections.  there have also been many Objections made, and Reasons devised that seem witty, and have some show of probability to prove that Post-nati in Scotland are Aliens, and ought not in reason to be capable of lands in England, videlicet▪  
1. That England and Scotland were two ancient several kingdoms under several kings, and several crowns.  
2. That they continue yet several kingdoms.  
3. That they have yet several Laws, several Seals, several Crowns, and several Kings: For, it is said, though king james be king of both, and hath but one natural body, yet in judgement of Law, he is in respect of his two several kingdoms, as two several kings, and the subjects of each several kingdom are bound to him by distinct allegiance, according to the several Laws of the kingdom where they were borne.  
And all this is grounded upon this rule or fiction in Law: Quando duo iura concurrunt in una persona, aequum est ac si essent in diversis.  
And upon this ground is this new form of pleading devised, which the Defendants have used in this Case, such as cannot be found in any Record, ever to have been pleaded before; and may as well serve against the kings subjects of Ireland, as against the Post-nati of Scotland. And sithence in former times the like form of pleading was never seen against any of the Kings of England's subjects, which were borne in any of his dominions out of England, as in Normandy or Aquitanie, or in France (I mean such part of it as was in the kings possession, and in subjection and obedience to him, and not in that part of France which his enemies held) it may be probably inferred, That it was then generally holden, that neither such a form of pleading, nor the Matter itself was sufficient in Law to disable any such Plaintiff: for, against Frenchmen that were not under the King's obedience we find it often pleaded. And as those that were not subjects to the King, nor borne under his obedience, did then presume to bring suits, and actions in England. So it can not be thought, but that the king having then so large and ample Dominions beyond the Seas, as Normandy and Aquitany, and many other parts of France, some of his subjects borne there, had cause to have, and did bring the like suits in England. And sithence no such Plea is found to have been then used against them, it can not in Law and Reason be now allowed against the Post-nati in Scotland: For, I may say as Ascue said 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 be reasonably deduced from the Negative, as it was in the Case reported by the great learned, and most grave and reverend judge sir james Dyer chief justice of the Common pleas, 
P. 23. Elizab. Dyer. 376.  Anno 23. Elizab. The Question there, was, Whether an erroneous judgement given in Rye, which is a member of the Cinqueportes, might be reversed in the kings Bench, or Common place at Westminster; And it was thus resolved; Sed pro eo quod nullum tale breve in Registro, nec in aliquibus Praecedentibus curiarum praedictarum inveniri potuerat, dominus Cancellarius Bromley per opinionem Capitalium Iusticiariorum utriusque Banci denegavit tale breve concedere. And so justice Fenners argument holdeth well, viz. There is in this Case no law to exclude the Complainant, Ergo he is a liege and a natural borne subject.  
But the form of pleading in the time of king Ed. 1. in Cobledickes' case, which was cited out of Hengam, (and the Book showed here by the Lord chief justice Coke) is so direct and plain for this our Question, as nothing can be more plain: and therefore I think it not amiss to report it again.  
That Case was in effect and substance, thus:  
A woman brought a writ of Ayel against Roger Cobledicke, and declared of the seisin of Roger her Grandfather, and conveyed the descent to Gilbert her father; and from him to the demandant, as his daughter and heir. The Tenant pleaded, that the demandant was a French-woman, and not of the ligeance nor of the fidelity of England; and demanded judgement if she ought to have the action against him. This plea was holden to be insufficient; and thereupon the tenant amended his plea, and pleaded further, That the demandant was not of the ligeance of England, nor of the fidelity of the King; and demanded judgement, etc. And against that plea none exception was taken, but thereupon the demandant prayed licence to depart from her Writ. By this it appeareth plainly, that the first plea, alleging that she was a French-woman, and not of the ligeance, nor of the fidelity of England, was insufficient (and so declared by Berreford the chief justice;) For, there can be no fidelity nor allegiance due to England, respecting the land and soil without a Sovereign and King. But the second Plea alleging, that she was not of the ligeance of England, nor of the fidelity of the King, was good and sufficient: For, to the King fidelity and allegiance is due; and therefore, since she failed in that, she was not to be answered: and thereupon she prayed licence to depart from her writ, and so she left her suit.  
Now, 
Stat. 14. Ed. 3.  for the reasons which have been drawn and strained out of the statute An. 14. Edw. 3. 
That the Realm of England shall not be subject to France.  if they be well examined, they serve little for this point which we have in hand.  
It is to be considered, at what time, and upon what occasion that Statute was made: King Edw. the third being right heir to the Crown and Kingdom of France by descent from his Mother, and having spent many years for the recovering of the same, resolved to take upon him the Name and Style of King of France; being advised thereunto by them of Flaunders: Hereupon he did take the Style of King of France; and altered his Seal and his Arms; and after a while, placed the Arms of France before the ancient Arms of England, as they are borne at this day. This gave 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 Kingdom, began to doubt that the king would make his Imperial seat there; and conceived thereby, that the kingdom of England, being the lesser, should be in subjection of the king and kingdom of France, being the greater, and to be governed and ruled by a Viceroy, or Deputy, as they saw Ireland was. And though in the King's Style, England was placed before France, yet they saw the Arms of France marshaled before the Arms of England; though at the first bearing thereof some say it was not so.  
To clear this doubt, and to take away this fear from the Subjects of England, was this Statute made, as doth plainly appear by the words of the statute itself.  
Now if you will make an apt and proper application of that Case then between England and France, to this our Case now, between Scotland and England, it must be thus:  
1. Edw. 3. then king of England (being the lesser) had afterwards the kingdom of France (being the greater) by descent, and took the Style of King of France.  
King james king of Scotland (being the lesser) hath afterward the kingdom of England (being the greater) by descent, and taketh the Style of King of England.  
2. King Ed. 3. altered his Seal, and his Arms, and placed the Arms of France before the Arms of England.  
King james hath changed his Seal, and his Arms in England, and hath placed the Arms of England before the Arms of Scotland.  
3. It was then doubted, that King Edw. 3. would remove his Court out of England, the lesser, and keep his Imperial seat and state in France, the greater.  
King james hath indeed removed his Court out of Scotland, the lesser, and doth in his royal person (with the Queen and Prince, and all his Children) keep his Imperial seat in England, the greater.  
4. In all these the cases agree; but yet one difference there is, and that is in the Style: For king Ed. 3. in his Style placed England, the lesser, being his ancient kingdom, before France, the greater, being newly descended unto him.  
But King james in his Style placeth England, the greater, though newly descended unto him, before Scotland, the lesser, being his ancient kingdom.  
5. Now, this being thus; perhaps Scotland might out of this Example have conceived the like doubt against England, as England did then against France: But as there was then no doubt made, whether the king's subjects borne in England should be capable of lands in France; so, out of this statute, and upon this example no doubt can be inferred, whether the king's subjects now borne in Scotland, shall be capable of lands in England.  
But, all these Objections, and the ground whereupon they are framed, viz. Quando duo iura etc. have been so thoroughly and profoundly examined, and so learnedly and fully answered and cleared by the judges, as I make no doubt but all wise and indifferent hearers be well satisfied therein.  
And if there be any so possessed with a prejudicate opinion against Truth, and Reason, that will say in their own hearts licèt persuaseris non persuadebis; & so, either Serpentlike stop their ears, or else wilfully absent themselves, because they would not hear the weakness and absurdities of their own conceits laid open and confuted: If there be any such I say (as I trust there be but few, and yet I fear there be some) I would they had learned of Tertullian, That Veritas docendo suadet, non suadendo docet. And I wish that they be not found among the number of those to whom Saint Paul saith, Si quis ignorat, ignoret: And Saint john in the apocalypse, Qui sordidus est, sordescat adhuc. And I will exhort with Saint Paul. Qui tenet, teneat, and not waver or doubt by such weak arguments and objections.  
But in this new learning, 
A dangerous distinction between the King and the Crown.  there is one part of it so strange, and of so dangerous consequent, as I may not let it pass, viz. That the king is as a king divided in himself; and so as two kings of two several kingdoms; and that there be several allegeances, and several subjections due unto him respectively in regard of his several kingdoms, the one not participating with the other.  
This is a dangerous distinction between the King and the Crown, and between the King and the kingdom: It reacheth too far; I wish every good subject to beware of it. It was never taught, but either by traitors, as in Spencer's Bill in Edward the seconds time (which Baron Snig, and the Lord chief Baron, and Lord Coke remembered) or by treasonable Papists, as Harding in his Confutation of the Apology maintaineth, that Kings have their authority by the positive Law of Nations, and have no more power, than the People hath, of whom they take their temporal jurisdiction; and so Ficlerus Simanca, and others of that crew.  
Or by seditious Sectaries and Puritans, as Buchannon De jure Regni apud Scotos, Penry, Knox, and such like.  
For, by these, and those that are their followers, and of their Faction, there is in their Pamphlets too much such traitorous seed sown.  
But leaving this, 
Absurdities in this dangerous distinction  I will add a little more, to prove, that in reason Robert calvin, and other like Post-nati in Scotland, aught by Law to be capable of lands in England: and for that, I will remember one rule more which is certain and faileth not, and aught to be observed in all Interpretation of Laws; and that is, Ne quid absurdum, ne quid illusorium admittatur.  
But, upon this subtle and dangerous Distinction of Faith and Allegiance due to the King, and of Faith and Allegiance due to the Crown, and to the Kingdom (which is the only Basis and fundamental main reason to disable the Plaintiff, and all Post-nati) there follow too many gross, and fowl absurdities, whereof I will touch some few, and so conclude, that in Law and Reason this subtle, but absurd and dangerous distinction, ought not to be allowed.  
This Bond of Allegiance whereof we dispute, is Vinculum fidei; it bindeth the soul and conscience of every subject severally and respectively, to be faithful and obedient to the King: and as a Soul or Conscience cannot be framed by Policy; so Faith and Allegiance cannot be framed by Policy, nor put into a politic body. An oath must be sworn by a natural body; homage and fealty must be done by a natural body, a politic body cannot do it.  
Now then, since there is but one king, and sovereign, to whom this faith and allegiance is due by all his subjects of England and Scotland, can any human policy divide this one King, and make him two kings? Can cor Regis Angliae be in manu Domini, and cor Regis Scotiae not so? Can there be wars between the King of England, and the king of Scotland? or between the kingdom of England, and the kingdom of Scotland, so long as there is but one king? Can the king of England now send an army royal into Scotland against the king of Scotland? Can there be any Letters of Mark or reprisal now granted by the king of England, against the subjects of the king of Scotland? Can there be any Protections now, Quia profecturus in exercitu jacobi Regis Angliae in Scotiam?  
Nay shortly, Can any man be a true subject to King james as King of England, and a traitor or rebel to king james as king of Scotland? Shall a foot breadth, or an inch breadth of ground make a difference of birthright of subjects borne under one king? Nay, where there are not any certain bounds or limits known at all, but an imaginary partition wall, by a conceited fiction in Law? It is enough to propound these and such like Questions, whereof many more might be remembered: they carry a sufficient and plain answer in themselves: Magis docet qui prudentèr interrogat.  
As the King nor his heart cannot be divided, for he is one entire King over all his subjects, in which soever of his Kingdoms or Dominions they were borne, so he must not be served nor obeyed by halves; he must have entire and perfect obedience of his subjects: for, Ligentia (as Baron Heron said well) must have four qualities; It must be 1. Pura & simplex: 2. Integra & solida: 3. universalis non localis: 4. Permanens, continua, & illaesa. Divide a man's heart, and you lose both parts of it, and make no heart at all; so he that is not an entire subject, but half faced, is no subject at all; and he that is borne an entire and perfect subject, aught by Reason and Law to have all the freedoms, privileges, and benefits pertaining to his Birthright in all the kings Dominions; and such are all the Post-nati in England and Scotland. And the inconvenience of this imaginary local allegiance hath been so lately, and so fully declared by the Lord chief justice Coke, as more needs not be said in it.  
In some special Cases there sometime may be a king of subjects without land in possession, as justice Fenner noted in the government which Moses had over the people of Israel in the wilderness; and as in the Case which sir john Popham the late Lord chief justice did put in the Parliament: If a King and his subjects be driven out of his kingdom by his enemies, yet notwithstanding he continueth still King over those subjects, and they are still bound unto him by their bond of allegiance, wheresoever he and they be: But there can not be a King of land without subjects: For, that were but Imperium in belluas, and, Rex & subditi sunt relativa.  
I said there was an other general rule for expounding of Laws, 
Rex solus judicat etc.  which I reserved to be last spoken of, I will now but touch it; for, I will not stand to examine by human reasons, whether Kings were before Laws, or Laws before Kings; nor how Kings were first ordained; nor whether the kings, or the people did first make Laws; nor the several constitutions and frames of states and commonweals; nor what Plato or Aristotle have written of this argmment.  
They were men of singular learning and wisdom, but we must consider the time, and the country in which they lived, and in all their great learning they lacked the true learning of the knowledge of God. They were borne and lived in Greece, and in popular States: they were enemies, or at least mislikers of all Monarchies; yet one of them disdained not to be a servant or mercenary hireling to a Monarch. They accounted all the world barbarous, but their own Country of Greece: their opinions therefore are no Cannons to give Laws to kings and kingdoms, no more than sir Thomas More's Utopia, or such Pamphlets as we have at every Mart.  
I believe him that saith, 
Prou. ca 8.  Per me Reges regnant, & Principes justa decernunt; And I make no doubt, but that as God ordained kings, and hath given Laws to kings themselves, so he hath authorized and given power to Kings to give Laws to their subjects; and so kings did first make laws, and then ruled by their laws, and altered and changed their Laws from time to time, as they saw occasion, for the good of themselves, and their subjects.  
And this power they have from God almighty; For, as Saint Augustine saith, In hoc Reges Deo serviunt sicut eis Divinitùs praecipitur, in quantum sunt Reges, si in suo Regno bona iubeant, mala prohibeant, non solum quae pertinent ad humanam societatem, verumetiam quae ad divinam religionem.  
And I hold Thomas Aquinas his opinion to be good, Rex solutus à Legibus quòad vim coactivam, subditus est legibus quòad vim directivam propria voluntate. And for this opinion there is a stronger authority, even from God himself in Ecclesiastes, ca 8. ver. 2. Ego os Regis obseruo; Et praecepta juramenti Dei: & ver. 4. Sermo illius potestate plenus est: Nec dicere ei quisquam potest, quare ita facis?  
Now being led a little from the Common Law to the Civil Law, I find in the civil Law a direct Text, warranting that general Rule which I reserved 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 grave and notable Writers in the civil Law say, Rex est lex animata: Some say, Rex est lex loquens: Some others say, Interpretantur legem consuetudo & Princeps: Another saith, Rex solus judicat de causa à iure non definita.  
And as I may not forget Saint Augustine's words, which are these; Generale pactum est societatis humanae regibus suis obtemperare: So I may not wrong the judges of the common Law of England so much as to suffer an imputation to be cast upon them, That they, or the Common law do not attribute as great power and authority to their Sovereign's the kings of England, as the Roman laws did to their Emperors: For, Bracton the chief justice in the time of king Henry the third, hath these direct words, De Chartis Regijs & factis regum non debent nec possunt justiciarij nec privatae 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 grave opinion of the learned and reverend judges, can resolve it, here is a true and certain Rule, how both by the Civil Law, and the ancient Common law of England it may and aught to be decided: That is, by sentence of the most religious, learned, and judicious king that ever this kingdom or Island had.  
But this Case is so clear as this needeth not at all.  
And in this I would not be misunderstoode, as though I spoke of making of new Laws, or of altering the Laws now standing; I mean not so, but I speak only of interpretation of the Law in new questions and doubts, as now in this present case: neither do I mean hereby to derogate any thing from the high court of Parliament; (far be it from my thought) It is the great Council of the kingdom, wherein every subject hath interest. And to speak of the constitution or form of it, or how, or when it was first begun, is for busy Questionists; It ought to be obeyed and reverenced, but not disputed; and it is at this time impertinent to this Question.  
But certain it is, it hath been the wisdom of the Kings of this Realm to reserve in themselves that supreme power to call their Nobles, Clergy, & commons together, when they saw great and urgent Causes; and by that great Council to make Edicts and Statutes for the weal of their people, and safety of the Kingdom and State, as in Anno 10. Edw. 3. the Assembly at Nottingham for the great wars in France: And in Anno 20. H. 3. Provisiones Merton, which I remembered before.  
There have been made some Objections of inconveniency, 
Object. of Inconveniency and frugality.  as for bearing of Scot and Lot, and such other charges; and some out of frugality, that the king shall lose his profit of making Denizens, and such like: These are so light as I leave them to the wind; They are neither fit for Parliament, nor Council, nor Court.  
Another argument and reason against the Post-nati hath been lately made out 
Object. upon diffidence.  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 means. The Nation is ancient, noble and famous; they have many honourable and worthy Noble men and Gentlemen, and many wise and worthy men of all degrees and qualities; they have lands and fair possessions in Scotland: Is it therefore to be supposed, or can it in reason be imagined, that such multitude sans number will leave their native soil, and all transport themselves hither? Hath the Irish done so? Or those of Wales, or of the Isles of Man, Gernesey, and jersey? Why should we then suspect it now more for Scotland?  
Nay, do you suppose that the King of England will ever suffer so great a part of his Dominions, and so great and famous a Kingdom as Scotland is to be dispeopled? It is a doubt imagined without any foundation or ground of reason. But if it were to be doubted, the twelve judges that have concurred in opinion, and that late worthy judge Popham had as great cause to fear it as any others: They are wise, they are learned, they have fair possessions and good estates, They have posterity to care for, as others have.  
Yet, admit it be a matter worth the doubting of, what is that to the young Post-nati that are not like in many years to come hither in such number? Shall we upon this causeless fear deprive them of their lawful Birthright?  
Have we seen in these five years past any more of them than this one alone that have gotten any Lands in England? And this little that he hath is so small and poor a portion, that his purchase is not great, and therefore no just cause of offence to any.  
Nay, 
Antenati.  if you look upon the Antenati, you shall find no such confluence hither, but some few (and very few in respect of that great and populous kingdom) that have done long and worthy service to his Majesty, have, and still do attend him, which I trust no man mislikes: For, there can be none so simple, or childish (if they have but common sense) as to think that his Majesty should have come hither alone amongst us, and have left behind him in Scotland, and as it were cast off, all his old and worthy Servants.  
And if these Noble and worthy Gentlemen of Scotland, I mean the Antenati be lovingly and brotherly entertained amongst us, with mutual love & benevolence, that so we may coalescere, & be united together, by marriage, and otherwise (as in some particular cases we see it already happily begun) no doubt God will bless this Union of both these Nations, and make them, and the King, and great Britain to be famous through the world; and feared & redoubted of our enemies, and of all that wish us ill: For, Vis unita fortior, & concordia multos facit unum. But what may follow upon such arguments of diffidence and suspicion, which seem but to hinder Union, and to breed discord and dissension I will not speak; Let every wise man consider it well: For, Humana consilia castigantur ubi coelestibus se praeferunt. And remember Saint Paul's caution, Si invicem mordetis, videte ne ab invicem consumamini.  
And for the resemblance that hath been made of this Case of Post-nati (but indeed for the Union of both Kingdoms) with the housewives cutting of her cloth by a thread, I will say but this, That if she cut her piece of cloth in length aswell as in breadth, all the threads will be cut, and the cloth marred. And this cutting in this our Case, is, to cut all aswell in length as in breadth, even through all the kings Dominions; and so will rend asunder the whole frame of the Union; and cut in pieces all the threads of Allegiance.  
But now I will ask this question: 
A Question, how long this suspicion and disunion shall continue?  How long shall this suspicion and doubt continue? Shall there be a disunion for ever? If it be said, No, but until the Laws, and Customs of both Kingdoms be made one and the same: then I ask; how, and when shall that be done? And it may be, that the Constitutions of the Countries be such as there can hardly in all things be such an absolute and perfect reconciling or uniting of Laws as is fancied. Is it yet so between England and Wales? or between Kent and Cornwall? or between many other parts of this Kingdom? I say no; and I speak it confidently, and truly it is not so, nor well can be so. Therefore let England and Scotland be in like degree now, as England and Wales were for many hundred years, and in many things are yet still; and yet let Union and Love increase amongst us, even in secula seculorum. Let us not be such as Saint Bernard noteth, 
Bernard.  Amant quod non decet, timent quod non oportet, dolent vanè, gaudent vaniùs. And let us no longer make question, whether several Laws and Customs be marks of separation and disunion, or of several Allegeances; for certainly they are not.  
One other Reason remains against these Post-nati, 
Objection upon Divination  and that is out of a provident foresight, or as it were a prophesying: What if a separation of these Kingdoms fall hereafter?  
Of this I can say but Absit omen. 
Respons.  It is Potentia remota (as justice William's said) and I trust in God Remotissima: And I will ever pray to God that it never fall so, until the King of all Kings resume all Sceptres and Kingdoms into his own hands. And let us take heed of sins of Ingratitude and Disobedience; and remember, that Adam and Eve were punished, Non 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 began with seeking out the truth; so I will conclude with Esdras words, Magna est Veritas & praevalet: And with this further, Eatenus rationandum donec veritas inveniatur: cum inventa est veritas, figendum ibi judicium: Et in victoria veritatis, soli veritatis inimici pereunt.  

The Conclusion.  
THus I have here delivered my concurrence in opinion with my Lords the judges, and the reasons that induce and satisfy my conscience, That Ro. calvin, and all the Post-nati in Scotland, are in Reason, and by the Common Law of England natural borne subjects within the allegiance of the King of England; and inhabled to purchase and have free-hould and inheritance of lands in England; and to bring real actions for the same in England.  
For, if they have not this benefit by this blessed and happy Union, then are they in no better case in England, than the king of Spain's subjects borne in Spain, etc. And so by this Union they have gotten nothing: What they have lost justice Yeluerton did well note.  
And therefore I must give judgement in the Chancery, That the Defendants there ought to make direct answer to Ro. Calvin's Bill for the Lands and Evidences for which he complains.  
T. Ellesmere Canc.