this law there are two grounds of reason, the one of equity, the other of policy. That of equity was, because the common people were in no fault, but as the Scripture saith in a like case, quid fecerunt oves ista? It was the cowardice and dis loyalty of their governors that deserved punishment, but what have these sheep done? And therefore to have punished them, and deprived them of their lands and fortunes, had been unjust. That of policy was, because if the law had forthwith, upon the loss of the countries by an accident of time, pronounced the people for aliens, it had been a kind of cession of their right and a disclaimer in them, and so a greater difficulty to recover them. And therefore we see the statute which altered the law in this point was made in the time of a weak king, that, as it seemed, despaired ever to recover his right; and therefore thought better to have a little present profit by escheats, than the continuance of his claim, and the countenance of his right, by the admitting of them to enjoy their inheritances as they did before.

The state therefore of this point being thus opened, it resteth to prove our assertion, that they were naturalized: for the clearing whereof I shall need but to read the authorities, they be so direct and pregnant.

The first is the very text of the statute of prærogativa Regis. Rex habebit escatas de terris Normannorum cujuscunque feodi fuerint, salvo servitio, quod pertinet ad capitales dominos feodi illius: et hoc similiter intelligendum est, si aliqua hæreditas descendat alicui nato in partibus transmarinis, et cujus antecessores fuerunt ad fidem regis Franciæ, ut tempore regis Johannis, et non ad fidem regis Angliæ, sicut contingit de baronia Monumetæ, &c.

By which statute it appears plainly, that before the time of King John there was no colour of any escheat, because they were the king's subjects in possession, as Scotland now is; but only it determines the law from that time forward.

This statute if it had in it any obscurity, it is taken away by two lights, the one placed before it, and the other placed after it; both authors of great credit, the one for ancient, the other for late times: the former is Bracton, in his cap. De exceptionibus 24, lib. 5. fol. 427. and his words are these: Est etiam et alia exceptio quæ tenenti competit ex persona petentis; propter defectum nationis, quæ dilatoria est, et non perimit actionem ; ut

si quis alienigena qui fuerit ad fidem regis Franciæ, et actionem instituat versus aliquem, qui fuerit ad fidem regis Angliæ, tali non respondeatur, saltem donec terræ fuerint communes.

By these words it appeareth, that after the loss of the provinces beyond the seas, the naturalization of the subjects of those provinces was in no sort extinguished, but only was in suspense during the time of war and no longer; for he saith plainly that the exception, (which we call plea to the person) of alien, was not peremptory, but only dilatory; that is to say, during the time of war, and until there were peace concluded, which he terms by these words, donec terræ fuerint communes: which, though the phrase seem somewhat obscure, is expounded by Bracton himself in his fourth book, fol. 297.' to be of peace made and concluded. Whereby the inhabitants of England and those provinces mought enjoy the profits and fruits of their lands in either place communiter, that is, respectively, or as well the one as the other: so as it is clear they were no aliens in right, but only interrupted and debarred of suits in the king's courts in time of war.

The authority after the statute is that of Mr. Stamford, the best expositor of a statute that hath been in our law, a man of reverend judgment and excellent order in his writings. His words are in his exposition upon the branch of the statute which we read before: "By this branch it should appear, that at this time men of Normandy, Gascoigne, Guienne, Anjou, and Britain, were inheritable within this realm, as well as Englishmen, because that they were sometimes subjects to the kings of England, and under their dominion, until king John's time, as is aforesaid: and yet after his time, those men, saving such whose lands were taken away for treason, were still inheritable within this realm till the making of this statute; and in the time of peace between the two kings of England and France they were answerable within this realm, if they had brought any action for their lands and tenements."

So as by these three authorities, every one so plainly pursuing the other, we conclude that the subjects of Gascoigne, Guienne, Anjou, and the rest, from their first union by descent until the making of the statute of prærogativa Regis, were inheritable in England, and to be answered in the king's courts in

Apparently a wrong reference in the MS. In fol. 298. the phrase occurs, but without further explanation.

all actions, except it were in time of war. Nay more, which is de abundante, that when the provinces were lost and disannexed, and that the king was but king de jure over them, and not de facto; yet nevertheless the privilege of naturalization continued.

There resteth yet one objection, rather plausible to a popular understanding than any ways forcible in law or learning: which is a difference taken between the kingdom of Scotland and these duchies, for that the one is a kingdom, and the other was not so; and therefore that those provinces being of an inferior nature did acknowledge our laws and seals and Parliament, which the kingdom of Scotland doth not.

This difference was well given over by Mr. Walter; for it is plain that a kingdom and absolute dukedom, or any other sovereign estate, do differ honore, and not potestate: for divers duchies and counties that are now, were sometimes kingdoms, and divers kingdoms that are now, were sometimes duchies, or of other inferior style: wherein we need not travel abroad, since we have in our own state so notorious an instance of the country of Ireland, whereof king H. VIII. of late time was the first that writ himself king, the former style being lord of Ireland, and no more; and yet kings had the same authority before, that they have had since, and the nation the same marks of a sovereign state, as their Parliaments, their arms, their coins, as they now have: so as this is too superficial an allegation to labour upon.

reason.

And if any do conceive that Gascoigne and Guienne were governed by the laws of England: first that cannot be in For it is a true ground, that wheresoever any prince's title unto any country is by law, he can never change the laws, for that they create his title; and therefore, no doubt those duchies retained their own laws; which if they did, then they could not be subject to the laws of England. And next, again, the fact or practice was otherwise, as appeareth by all consent. of story and record; for those duchies continued governed by the civil law, their trials by witnesses and not by jury, their lands testamentary, and the like.

Now for the colours that some have endeavoured to give, that they should have been subordinate to the government of England; they are partly weak, and partly such as make strongly against them. For as to that, that writs of Habeas

Corpus under the great seal of England have gone to Gascoigne, it is no manner of proof; for that the king's writs, which are mandatory and not writs of ordinary justice, may go to his subjects into any foreign parts whatsoever, and under what seal it pleaseth him to use. And as to that, that some acts of Parliament have been cited, wherein the Parliament of England have taken upon them to order matters of Gascoigne; if those statutes be well looked into, nothing doth more plainly convince the contrary; for they intermeddle with nothing but that that concerneth either the English subject personally, or the territories of England locally, and never the subjects of Gascoigne or the territories of Gascoigne. For look upon the statute of 27 E. III. cap. 5. there it is said, that there shall be no forestalling of wines. But by whom? Only by English merchants; not a word of the subjects of Gascoigne, and yet no doubt they might be offenders in the same kind. So in the sixth chapter it is said, that all merchants Gascoignes may safely bring wines into what part it shall please them; here now are the persons of Gascoignes; but then the place whither? Into the realm of England. And in the seventh chapter, that erects the ports of Bordeaux and Bayonne for the staple towns of wine; the statute ordains, "that if any," but who? "English merchant, or his servants, shall buy or bargain other where, his body shall be arrested by the steward of Gascoigne, or the constable of Bordeaux: " true, for the officers of England could not catch him in Gascoigne ; but what shall become of him, shall he be proceeded with within Gascoigne? No, but he shall be sent over into England to the Tower of London.

And this doth notably disclose the reason of that custom which some have sought to wrest the other way: that custom, I say, whereof a form doth yet remain, that in every Parliament the king doth appoint certain committees in the upper house to receive the petitions of Normandy, Guienne, and the rest; which, as by the former statute doth appear, could not be for the ordering of the governments there, but for the liberties and good usage of the subjects of those parts when they came hither, or vice versa, for the restraining of the abuses and misdemeanors of our subjects when they went thither.

Wherefore I am now at an end. For as to speak of the mischiefs, I hold it not fit for this place; lest we should seem to bend the laws to policy, and not to take them in their true and

natural sense. It is enough that every man knows, that it is true of these two kingdoms, which a good father said of the churches of Christ: si inseparabiles insuperabiles. Some things I may have forgot; and some things, perhaps, I may forget willingly; for I will not press any opinion or declaration of late time which may prejudice the liberty of this debate; but ex dictis, et ex non dictis, upon the whole matter, I pray judgment for the plaintiff.