Page:The English Reports v77 1907.pdf/410

rendum est ad rationem. But that receiveth a threefold answer:—First, That there is no such rule in the common or civil law: but the true rule of the civil law is, lex scripta si cesset, id custodiri oportet quod moribus et consuetudine inductum est, et si qua in re hoc defecerit, tunc id quod proximum et consequens ei est, et si il non appareat, tunc jus quo urbs Romana utitur, servari oportet. Secondly, If the said imaginative rule be rightly and legally understood, it may stand for truth: for if you intend ratio for the legal and profound reason of such as by diligent study and long experience and observation are so learned in the laws of this realm, as out of the reason of the same they can rule the case in question, in that sense the said rule is true: but if it be intended of the reason of the wisest man that professeth not the laws of England, then (I say) the rule is absurd and dangerous; for cuilibet in suâ arte perito est credendum^[1] et quod quisque norit in hos se exerceat.^[2] Et omnes prudentes illa admittere solent quæ probantur iis qui in suâ arte bene versati sunt, Arist. l. Topicorum cap. 6. Thirdly, There be multitudes of examples, precedents, judgments, and resolutions in the laws of England, the true and unstrained reason whereof doth decide this question; for example the dukedom of Acquitain, whereof Gascoign was parcel, and the earldom of Poitiers, came to King Henry the Second by the marriage of Eleanor, daughter and heir of William Duke of Acquitain, and Earl of Poitiers, which descended to Rich. 1., Hen. 3., Ed. 1., Ed. 2., Ed. 3., &c. In 27 lib. Ass. pl. 48.^[3] in one case there appear two judgments and one resolution to be given by the Judges of both Benches in this case following. The possessions of the Prior of Chelsey in the time of war were seised into the King's hands, for that the prior was an alien born: the prior by petition of right sued to the King, and the effect of his petition was, that before he came Prior of Chelsey, he was Prior of Andover, and whilst he was prior there, his possessions of that priory were likewise seised for the same cause supposing that he was an alien born; whereupon he sued a former petition, and alleged that he was born in Gascoin within the ligeance of the King: which point being put in issue and found by jury to be true, it was adjudged that he should have restitution of his possessions generally without mentioning of advowsons. After which restitution, one of the [19 b] said advowsons became void, the prior presented, against whom the King brought a quare impedit, wherein the King was barred; and all this was contained in the latter petition. And the book saith, that the Earl of Arundel, and Sir Guy of B. came into the Court of Common Pleas, and demanded the opinion of the Judges of that Court concerning the said case, who resolved, that upon the matter aforesaid the King had no right to seize. In which case, amongst many notable points, this one appeareth to be adjudged and resolved, that a man born in Gascoin under the King's ligeance, was no alien born, as to lands and possessions within the realm of England, and yet England and Gascoin were several and distinct countries. 2. Inherited by several and distinct titles. 3. Governed by several and distinct municipal laws, as it appeareth amongst the records in the Tower, Rot. Vasc. 10. Ed. 1. Num. 7. 4. Out of the extent of the Great Seal of England, and the jurisdiction of the Chancery of England. 5. The like objection might be made for default of trial, as hath been made against the plaintiff. And where it was said that Gascoin was no kingdom, and therefore it was not to be matched to the case in hand, it was answered, that this difference was without a diversity as to the case in question; for if the plea in the case at the Bar be good, then without question the prior had been an alien; for it might have been said, (as it is in the case at the Bar) that he was born extra ligeantiam Regis regni sui Anglicæ, et infra ligeantiam dominii sui Vasconiæ, and that they were several dominions, and governed by several laws: but then such a conceit was not hatched, that a King having several dominions should have several ligeances of his subjects. Secondly, it was answered, that Gascoin was sometime a kingdom, and likewise Millan, Burgundy, Bavaria, Bretagne, and others were, and now are become, dukedoms. Castile, Arragon, Portugal, Barcelona, &c. were sometime earldoms, afterwards dukedoms, and now kingdoms. Bohemia and Poland were