office and title of vicar general in the dioceses of Dublin, Kildare, and Fernes, by virtue of the pope's bull. Secondly, it appeared by the copies of sundry letters found among his papers at his apprehension, that he stiled himself the pope's vicar, in this form, Robertus Dublinien. et Kildaren. et Fernen, diœces, vicarius apostolicus.' Thirdly, there were produced the copies of divers acts and instruments, written for the most part with Lalor's own hand, some of institutions of popish priests to benefices, others of dispensations with marriage within the degrees, others of divorces, others of dispensations for non-payment of tithes. Whereby it was manifestly proved that he did execute the pope's bull, in usurping and exercising episcopal jurisdiction, as vicar general of the see apostolick, within the dioceses before named. To this evidence he made a three-fold answer. First, that he was no suiter for the office of vicar general, but it was imposed on him, and he accepted virtute obedientia, only to obey his superiors. Next, that he did exercise the office of vicar general in foro conscientiæ tantum, and not in foro judicii. And lastly, that those copies of institutions, dispensations and divorces, were many of them written with his man's hand, as precedents of such acts and instruments, without his privity or direction. Hereupon sir James Ley, chief justice, told him, that he could not well say, that he accepted that unlawful office virtute obedientia, for there was no virtue in that obedience; that he owed an obedience to the law and to the king, who is the true superior and sovereign over all his subjects, and hath no peer within his dominions; and that the superiors whom he meant and intended were but usurpers upon the king's jurisdiction, and therefore this excuse did aggravate his contempt, in that it appeared he had vowed obedience to those who were apparent enemies to the king and his crown. And though it were manifest that he exercised jurisdiction in foro judicii, (for every institution is a judgment, and so is every sentence of divorce) yet were his offence nothing diminished if he had executed his office of vicar general in foro conscientia tantum; for the court of man's conscience is the highest tribunal, and wherein the power of the keys is exercised in the highest degree. Hereunto the Attorney General took occasion to add thus much, that Lalor had committed these high offences, not only. against the law, but against his own conscience, and that he was already condemned in foro conscientia. For that he upon his second examination had voluntarily acknowledged himself not to be a lawful vicar general, and that he thought in his conscience he could not lawfully take upon him the said office. He hath also acknowledged our sovereign lord king James to be his lawful chief and supreme governor, in all causes, as well ecclesiasticall as civil; and that he is in conscience bound to obey him in all the said causes, &c. as it is contained in his Acknowledgment or Confession before set down; which being shewed forth by the Attorney General, the court caused it to be publickly read; and thereupon demanded of Lalor, i: that were not his free and voluntary Confession signed with his own hand, and confirmed by his oath before the lord deputy and council. He was not a little abashed at the publishing of this acknowledgment and confession in the hearing of so many principal gentlemen, to whom he had preached a contrary doctrine; therefore, said he, the shewing forth of this confession is altogether impertinent and besides the matter. Howsoever, he could not deny but that he made it, and signed it, and swore it, as it was testified by the lord deputy and the rest. Then was it demanded of him, whether since the making of this confession he had not protested to divers of his friends, that he had not acknowledged the king's supremacy in ecclesiastical causes. His answer was, that indeed he had said to some of his friends who visited him in the castle of Dublin, that he had not confessed or acknowledged that the king was his supreme governor in spiritual causes, for that the truth is, in the confession there is no mention made of spiritual causes, but of ecclesiastical. This is a subtile evasion indeed, said the attorney-general; I pray you what difference do you make between ecclesiastical causes and spiritual causes? This question, said Lalor, is sudden and unexpected at this time, and therefore you shall do well to take another day to dispute this point. Nay, said the attorneygeneral, we can never speak of it in a better time or fitter place; and therefore, though you, that bear so reverend a title, and hold the reputation of so great a clerk, require a farther time, yet shall you hear that we laymen that serve his majesty, and by the duty of our places are to maintain the jurisdiction of the crown, are never so unprovided, but that we can say somewhat touching the nature and difference of these causes. First then, let us see when this distinction of ecclesiastical or spiritual causes from civil and temporal causes did first begin in point of jurisdiction. Assuredly, for the space of three hundred years after Christ, this distinction was not known or heard of in the Christian world. For the causes of testaments, of matrimony, of bastardy and adultery, and the rest which are called ecclesiastical or spiritual causes, were merely civil, and determined by the rules of the civil law, and subject onely to the jurisdic tion of the civil magistrates, as all civilians will testifie with me. But after that the emperors had received the Christian faith out of a zeal and desire they had to grace and honour the learned and godly bishops of that time, they were pleased to single out certain special causes wherein they granted jurisdiction unto the bishops; namely, in causes of tithes, because they were paid to men of the church; in causes of matrimony, because marriages were for the most part solemnized in the church; in causes testamentary, because testaments were many times made in extremis, when church-men were present, giving | diction was first derived from Cæsar, in the spiritual comfort to the testator, and therefore execution whereof they were Cæsar's judges, so they were thought the fittest persons to take the as both their courts and causes ought still to probates of such testaments. Howbeit these have born Cæsar's image and superscription, as bishops did not proceed in these causes accord- belonging unto Cæsar; they blotted Cæsar's ing to the canons and decrees of the church, name out of the stile of their courts, and called (for the canon law was not then hatched or them courts Christian, as if the courts holden dreamed of) but according to the rules of the by other magistrates had been in comparison imperial law, as the civil magistrate did proceed but courts of Ethnicks; and the causes which in other causes; neither did the emperors, in in their nature were merely civil, they called giving this jurisdiction unto them, give away spiritual and ecclesiastical. So as if the empetheir own supreme and absolute power, to cor- ror should challenge his courts and causes rect and punish these judges as well as others, again, and say, reddite Cæsari quæ sunt Cæif they performed not their several duties. This saris,' they would all cry out on the contrary then is most certain, that the primitive jurisdic- part, and say, date Deo quæ sunt Dei,' our tion in all these causes was in the civil magis- courts bear the naine and title of Christ, the strate, and so in right it remains at this day; superscription of Cæsar is quite worn out, and and though it be derived from him, it remaineth not to be found upon them. And this point of in him as in the fountain. For every Christian their policy is worth the observing, that when monarch (as well as the godly kings of Juda) is they found their jurisdiction in natrimonial custos utriusque tabule; and consequently hath causes to be the most sweet and gainful of all power to punish not only treason, murder, theft, other, (for of matrimony they made matter of and all manner of force and fraud, but incest, money indeed) to the end that Cæsar might adultery, usury, perjury, simony, sorcery, ido- never resume so rich a perquisite of their latry, blasphemy. Neither are these causes in spiritual jurisdiction, they reduced matrimony respect of their own quality and nature to be into the number of the seven sacraments: after distinguished one from another by the names which time it had been sacrilege, if the civil of spiritual or temporal: for why is adultery a magistrate had intermeddled with the least matspiritual cause, rather than murder, when they ter that had relation to matrimony, or any deare both offences alike against the second table; pendency thereupon. So then it appeareth, or idolatry rather than perjury, being both of that all causes, whereof ecclesiastical or spiritual fences likewise against the first table? And in-persons have cognizance or jurisdiction by deed if we consider the natures of these causes, the grants or permission of princes, are called it will seem somewhat absurd, that they are ecclesiastical or spiritual causes, And as all distinguished by the name of spiritual and tem- their courts are called spiritual courts, so all poral; for, to speak properly, that which is op- causes determinable in those courts are called posed to spiritual should be termed carnal; spiritual causes. And therefore where M. and that which is opposed to temporal should Lalor hath acknowledged the king's majesty to be called eternal. And therefore if things be supreme governor in all ecclesiastical were called by their proper names, adultery causes, he hath therein acknowledged the king's should not be called a spiritual offence, but a supremacy in all spiritual causes; wherein he carnal. But shall I express plainly and briefly hath but rendered to Cæsar that which is why these causes were first denominated, some Cæsar's, and hats given unto his majesty no spiritual or ecclesiastical, and others temporal more than ali the bishops of England have and civil? yielded to his predecessors, not only in this latter age, but also in former times both before and since the conquest, as hath been before at large expressed. Here the day being far spent, the court demanded of the prisoner if he had any more to say for himself. His answer was, that he did willingly renounce his office of vicar-general, and did humbly crave his majesty's grace and pardon. And to that end, he desired the court to move the lord-deputy to be favourable unto him. Then the jury departed from the bar, and returning within half an hour, found the prisoner Guilty of the contempts whereof he was indicted. Whereupon the solicitor-ceneral moved the court to proceed to judgment. And sir Dominick Sarsfield, knight, one of the justices of his majesty's chief place, gave judgment according to the form of the statute whereupon the indictment was framed. Truly, they were so called, not from the nature of the causes, as I said before, but from the quality of the persons whom the prince had made judges in those causes. The clergy did study spiritual things, and did profess to live | secundum spiritum, and were called spiritual men; and therefore they called the causes wherein princes had given them jurisdiction, spiritual causes, after their own name and quality. But because the lay-magistrates were said to intend the things of this world, which are temporal and transitory, the clergy called them secular or temporal men, and the causes wherein they were judges temporal causes. This distinction began first in the count of Rome, where the clergy having by this jurisdiction gotten great wealth, their wealth begot pride, their pride begot ingratitude towards princes, who first gave them their jurisdiction; and then, according to the nature of all ungrateful persons, they went about to extinguish the me-["The encroachments of the church of Rome, mory of the benefit. For whereas their juris on the king's ecclesiastical jurisdiction, are the subject of other cases besides the preceding one of Præmunire. In particular they are historically discussed in ford Coke's Case of the king's Ecclesiastical Law, in the 5th Report. The publication of this latter case, with the active zeal of lord Coke as attorneygeneral, in the prosecution of the conspirators in the Gunpowder-plot, gave occasion to a volume of animadversions by the famous Jesuit father Parsons, which was published in 1606, by the title of an Answer to lord Coke's 5th Report, by a Catholick divine. But the asperity with which lord Coke was treated, did not provoke a reply. All that it drew from him was a short notice of the work in the preface to his 6th report, in which he represents the author as a calumniator, and as such disdained to answer him. But the controversy was afterwards continued by Mr. Prynne, who asserted the cause of the crown against the see of Rome, in a work of prodigious extent in the plan, for though the part published consists of three large volumes, of more than 1000 pages each, yet it reaches only to the end of the reign of Edward the first. The work we allude to, is Mr. Prynne's Chronological Vindication of the King's Supreme Ecclesiastical Jurisdiction, the publication of which commenced four or five years after the Restoration. The first volume extends to the Conquest. The second, which was published first, concludes with the reign of Henry the third. The third, being in part a supplement to the second, is occupied with the reigns of Henry the third, John, and our first Edward. When the author had advanced thus far, death interposed, and prevented the completion of the undertaking. What he lived to publish is become so extremely scarce, that 20 guineas are the common price of a compleat copy. The cause is the small remnant of copies of the first volume, most of them having been burnt in the great fire of London.-Such as are curious to see an account of the Jesuit Parsons, may consult Cambden's Annals of Elizabeth. See the translated edition in 2. Keun. Compl. Hist. 2d ed. p. 477, 576." Hargrave.] 85. The Case of the POSTNATI, or of the UNION of the Realm of Scotland with England; Trin. 6 JAMES I. A. D. 1608.* ["From the meeting of the crowns of England and Scotland in the person of the first James, grew one of the most important questions of state, which ever engaged the attention of either country. It was, whether the POSTNATI, or those born in Scotland after the accession of James to the crown of England, were in the latter country to be deemed aliens or natives. As to the Ante-nati, all scem to have agreed, that they remained aliens. But there was a great difference of opinion about the condition of the Postnati. The king, anxious for every thing which tended to consolidate the island into one kingdom, was eager to have it declared as law, that the Union of the crowns effected a mutual naturalization of the Postnati in the two countries. His wishes were soon made kuown by the Proclamation, in which he as Some of the law laid down in the following case was discussed in the case of Hall v. Campbell, infra, A. D. 1774. It was much relied on by lord Mansfield in his argument (on a point on which the judgment of the court did not turn) in that case, and is very perspicuously stated and carefully considered by Mr. Baron Maseres in his most learned and elaborate analysis and examination of the whole of lord Mansfield's argument on that occasion. See "The Canadian Freeholder," Dialogue 2d. As to the topics of Allegiance agitated in the case of the Postnati, see more in the duk Hamilton's case, infra. A. D. 1648. S East's Pl. Cr. ch. ii. § 3, 41. and the other authorities there cited. sumed the stile of King of Great Britain, with an exception however in favor of legal process, instruments, and assurances; and words were introduced, importing, that his succession to the crown of England had made a great change in the law of Naturalization. Rym. Foed. v. 16. p. 603. 2 Bac. last 4to. ed. 144. The Commissioners, appointed by the respective Parliaments of the two countries to treat for an Union of government and laws, followed the king in this language; for they resolved to propound to both parliaments a declaration of the law to that effect. But when the proposition was made, the English house of commons were found averse to it, notwithstanding the countenance given by the lords, and an opinion delivered to them by ten out of eleven judges. It was therefore determined to settle the point out of parliament in the regular way, by resorting to the English courts of justi For this purpose, two suits were in in the name of Robert Calvin, of Scotland and an infant bench for the freeho the other in Ch tings concer the sam aliens being incapable to sue for the freehold of land. These Causes were adjourned into the Exchequer-Chamber, in order to have the solemn opinion of all the judges; and there the business ended with a Resolution in favour of the Postnati, in which the lordchancellor and 12 Judges out of 14 concurred. However, very eminent lawyers appear to have entertained a different opinion of the point. In parliament, Dodridge, Hyde, Brock, Crew, Moore, and Hedley, all spoke against the Postnati. What the names of the two dissenting judges were, is not mentioned; except that lord Ellesmere alludes to both having the Christian name of Thomas, the only judges of which name at the time were lord chief justice Fleming, Mr. justice Walmesley, and Mr. justice Foster. It is suspected too, that the known inclina. tions and wishes of the king had no little influence in the decision. But be this as it may, we are not apprized that the main point of the case has been ever disturbed by any subsequent judicial opinion. The only regular Report we have of this case is by lord Coke. But there is a great deal of matter relative to it in other books. Lordchancellor Ellesmere published his Argument separately. Mr. serjeant Moore gives the history of the previous passages in parliament on the great point of law, for deciding which the case was afterwards made. In lord Bacon's Works; there are both his Speeches Na in Parliament on the subject, and his Argu⚫ment before the Judges in the Exchequerchamber, with some other pieces. 152. 159. 170. 2 Bac. 4to. ed. 173. 185. 514. thaniel Bacon, in his Book on Government, examines and controverts the principles, on which lord Coke reports the case to have been decided. Bac. on Gov. part. 2. page 76. The Parliamentary History relates the proceedings in the English parliament in the 2 and 4 Jam. on the proposal for an Union between England and Scotland, and gives a short view of some arguments in the commons on the point of Naturalization.* Archbishop Spotswood's History of the Church and State of Scotland also contains many particulars of the proceedings towards an Union. Spotsw. 479. See further Arthur Wilson's History of James the 1st, 27. 34. Sanderson's Life of the same king, 318. 338. 2 Winwood's Memorials of State, 20. 32 to 38. We shall now lay before the reader, 1. Mr. serjeant Moore's account of the Proceedings in . Parliament about the Postnati. 2. Lord Bacon's Speech as counsel for Calvin, in the Exchequer-Chamber. 3. Lord Coke's Report of Calvin's Case. 4. Lord-chancellor Ellesmere's Speech in the Exchequer-Chamber, as published by himself. * See 1 Cobb. Parl. Hist. 1018, 1027, 1069, 1071. CASE OF THE UNION OF THE REALM OF SCOTLAND WITH ENGLAND. BY act of parliament in the first session anno lawes of either nation one against the other might be abrogated, and did enumerate the same lawes. The second, they proposed a course for commerce and merchandizing by merchants of both nations between themselves and with forreiners. Thirdly, they proposed that the common law of both nations should be declared to be, that all born in either nation sithence his majesty was king of both, were mutually naturalized in both. And further, that an act might be made to naturalize all born before, with certain cautions and restrictions for bearing principall offices of the crown, offices of judicature, or having voice in parliaEngland, to whom the commis-ment, and with a saving of the kings preroOvered the same for that purpose, gative. ne of the commissioners, the first un of parliament holden anno 3 himself, the lords spiritual and he commons being all assembled use of parent. But the conhat sched by another act Jac. R. deferred Upon the two first articles, the lords and commons had sundry conferences in the Painted Chamber, and in effect agreed to give way to the substance of them. But upon the third, the commons could not assent to declare the law as was proposed, and thereupon after long debate amongst themselves, they appointed committees to confer with the lords committees, who mett the 25 of February 1606, in the Painted Chamber. At which conference sir Francis Bacon, appointed by the house to introduce the rest, begun in this manner. That this conference and the subject thereof 20 6 was non in deliberativo, but in judiciali, not people into places, and to discipline in their de bono but de vero, not to consult of a law to government, though their subjection still remain be made, but to declare the law already in the general to one head; yet the manner of planted, whereto the commons were drawn, by it is locally circumscribed to the places where insatisfaction of their judgments, not indispo- they are brought forth, and those of one place sition of their minds to the happy union in- do not, nor should partake of the discipline, tended, to oppose the proposition of the com- privileges, and birthright of the other places, missioners. And whereas his majesty had by but every one left to his own, as acquired for a proclamation expressed the law to be as the patrimony by their antecessors of that place, commissioners had proposed, the commons did upon reasons peradventure now not extant nor not take themselves prejudicated by the procla- to be exactly understood.-2. This is in use in ination; first, for that that matter caine but other nations, who obtain their naturalization obiter in the proclamation, and was not the by Charters, and for such time, and with such principal part or purpose thereof; then, for cautions, as may be granted unto them, and that the proclamation mentioneth the king to take it not by the general law of that nation be so informed by divers sages of the law, which whereto they were united.-3. In the time of is not to be understood judges of the law, but the old civil Romans, who united unto them some learned in the lawes, whose opinion may divers provinces, they had degrees in naturalthe better be opposed: yet the proclamation izing; for first, the party had jus domicilii,' bath so tempered the tongues of the speakers, theu jus civitatis,' next jus tribus,' and lastly as it hath kept down all flashes of heat, which jus honoris ;' whereas if the law of England otherwise might have happened in the argu- should be, that subjection brought all this toment. Howbeit the danger of a declaratory gether, it were a law overliberal, and more statute, being like Janus Bifrons striking both bountiful, then the laws of this civil state groundwayes, raiseth in the commons too much feared upon reason and policy.-4. That Scotland to assent to the proposition, leaving the proclamation neverthelesse to its own effect. Pur inducement pur les auters speakers apres cest induccion, he shewed that it was a singular commendation to the lawes of England, that it was not in sociable, but contented to hear and be advised by other sciences in matters of depen-all nations that hereafter may fall into the subdencie upon them; as in cases of exposition of words, by grammarians; in matters of matrimony, deprivation, bastardy, by civilians; in minerals, by natural philosophers; in uses, by moral philosophers. Upon which consideration the commons had selected out of themselves divers gentlemen, some for inducement, some for argument in the point of law. Those for inducement were to shew the law of nations, and of reason, and the stories of other countries, and the civil law elsewhere put in use upon unions; those for argument were gentlemen of the profession of the common laws of this realm: all which being here ready, he left them to discharge their own proper duties. Sir Edwyn Sandes shewed that this case was proper to be consulted with the law of nations, which is called jus gentium;' for there being no president for it in the law, 'lex deficit,' and 'deficiente lege recurritur ad consuetudinem,' and deficiente consuetudine recurritur ad ' rationem naturalem,' which ratio naturalis' is the law of nations called 'jus gentium.' The question of difference is thus, whether subjection to one king make all the people born within the places of that subjection to be naturalized over all places of that kings subjection, which as he thought, if it were to be measured by the law of reason and nations, did not. And therefore shewed 7 reasons for his opinion.-1. That although ab antiquo, when people were together in one heap irregularly, having one bead, their subjection gave to every one equal priviledge in all places of their subjection, yet sithence the world is grown to distribution of being governed by the civil law, alloweth not English by bare subjection to their king to be naturalized within thein; and therefore the law of England should be very unequal, if it should allow it to Scots here.-5. This case may give a dangerous example for mutual naturalizing of jection of the king, although they be very remote, in that their mutual cominunalty of privileges may disorder the settled government of every of the particulars; and how many of them may happen, is uncertaine; for we see, that where there were 100 kings, they came after to 11, and are now brought to 6 only within Christendome.-6. The Scots shall be in better case by this law of naturalizing then the English, in the English nation; for the English pay all impositions and taxes for services of the crown, which the Scots do not within England.-7. All the reasons given for naturalizing extend as well to them before born, as sithence the king came to the crown of England; for the subjection is now all one. Therefore, the law that should make a difference is not reasonable; and because the law is confessed to be, that those before born be not naturalized, therefore the law must also be, if it retain the same reason, that those born after are not naturalized. Nevertheless he concluded, that he held it in reason, that in respect of one subjection, the Scots should not be accounted nor deal withall by our lawes, as aliens, although not enabled to the full rights of Englishmen born amongst us. Sir Roger Owen for stories, 1. shewed, that in all the presidents of the Romans, and in all their varieties of aristocracy or monarchy, there was no naturalizing ipso jure, but by charters of grace or constitutions special, and that by Nannius begun and introduced. 2. The president of Spain and Castile is not to this point; for Alaricus the emperour first lord of all Spain |