Petitionis or Ius Honorum For though a man had voyce yet he was not capable of honour and office But these be the devises commonly of popular or free estates which are jealous whom they take into their number and are unfit for Monarchies But by the Law of England the subject that is naturall borne hath a capacity or ability to all benefits whatsoever I say capacity or ability But to reduce Potentiam in actum is another case For an Earle of Ireland though he be naturalized in England yet hath so voyce in Parliament of England except he have either a call by Writ or a creation by Patent but he is capable of either But upon this quadripartite division of the ability of persons I doe observe to your Lordships three things being all effectually pertinent to the question in hand The first is that if any man conceive that the reasons for the Post-nati might serve as well for the Ante-nati He may by the distribution which wee have made plainly perceive his error For the Law looketh not back and therefore cannot by any matter ex post facto after birth after the state of the birth wherein no doubt the Law hath a grave and profound reason which is this in few words Nemo subito fingitur aliud est nasci aliud fieri Wee indeed more respect and affect thse worthy Gentlemen of Scotland whose merits and conversations we know but the Law that proceeds upon generall reason and looks upon no mens faces affecteth and priviledgeth those which drew their first breath under the obeisance of the King of England The second point is that by the former distribution it appeareth that there be but two conditions by birth either Alien or naturall borne nam tertium penitus ignor amus It is manifest then that if the Post nati of Scotland be not naturall borne they are alien born and in no better degree at all than Flemmings French Italians Spanish Germans and others which are all at this time Alien friends by reason his Majesty is in peace with all the World The third point seemeth to mee very worthy the consideration which is that in all the distribution of persons and the degrees of abilities or capacities the Kings Act is all in all without any manner of respect to Law or Parliament For it is the King that makes an Alien enemy by proclaiming a war wherewith the Law or Parliament intermeddles not So the King only grants Safe-conducts wherewith Law and Parliament intermeddle not It is the King likewise that maketh an Alien friend by concluding a peace wherewith Law and Parliament intermeddle not It is the King that makes a Denizon by his Charter absolutely of his prerogative and power wherewith Law and Parliament intermedle not And therefore it is strongly to be inferred that as all these degrees depend wholly upon the Kings act and no wayes upon Law or Parliament So the fourth although it cannot by the Kings Patent but by operation of Law yet that the law in that operation respecteth onely the Kings person without respect of subjection to Law or Parliament And thus much by way of explanation and inducement which being all matter in effect confessed iâ— the strongest ground-worke to that which is contradicted or controverted There followeth the confutation of the Arguments on the contrary side That which hath beene materially objected may be reduced to foure heads The first is that the priviledge of Naturalization followeth Allegeance and that allegeance followeth the Kingdome The second is drawne from that common ground Cum duo jura concarrunt in una persona aquum est ac si essent in duobus a rule the words whereof are taken from the Civill Law but the matter of it is received in all lawes being a very line or rule of reason to avoyd confusion The third consisteth of certaine inconveniencies conceived to ensue of this generall naturalization ipso jure The fourth is not properly an objection but a preoccupation of an objection or proofe on our part by a distinction devised betweene Countries devolute by descent and acquired by Conquest For the first it is not properly to observe that those which maintaine this new opinion whereof there is altum Silentium in our bookes of Law are not well agree in what forme to utter and expresse that for some said that allegeance hath respect to the Law some to the Crowne some to the Kingdome some to the body politique of the King so there is confusion of tongues amongst them as it commonly commeth to passe in opinions that have their foundations in subtilty and imagination of mans wit and not in the ground of nature But to leave their words and to come to their proofes they endeavour to prove this conceipt by three manner of proofes First by reason then by certaine inferences out of Statutes and lastly by certaine booke-cases mentioning and reciting the formes of pleadings The reason they bring is this That Naturalization is an operation of the Law of England and so indeed it is that may bee the true genus of it Then they adde that granted that the Law of England is of force onely within the Kingdome and Dominions of England and cannot operate but where it is in force But the Law is not in force in Scotland therefore that cannot endure this benefit of Naturalization by a birth in Scotland This reason is plausible and sensible but extreamely erronious For the Law of England for matters of benefit or forfeitures in England operateth over the World And because it is truely said that Respublica continetur poena praemio I will put a case or two of either It is plaine that if a Subject of England had conspired the death of the King in forraine parts it was by the Common Law of England treason How prove I that By the Statute of 35. of H. 8. ca. 2. wherein you shall find no words at all of making any new case of treason which was not treason before but onely of ordaining a forme of triall Ergo it was treason before And if so then the Law of England workes in forraine parts So of contempts if the King send his Privy Seale to any Subject beyond the Seas commanding him to returne and hee disobey no man will doubt but there is a contempt and yet the fact enduring the contempt was committed in forraine parts Therefore the Law of England doth extend to Acts or matters done in forraine parts So of reward Priviledge or benefit wee need seeke no other instance then the instance in question for I will put you a case that no man shall deny where the Law of England doth worke and conferre the benefit of Naturalization upon a birth neither within the Dominions of the Kingdome nor King of England By the Statute of 25. E. 3. which if you will beleeve Hussey is but a Declaration of the Common Law all children borne in any parts of the World if
potestatis est pleuitudo tempest at is And although the King in his Person be Solutus Legibus yet his Acts and Grants are limited by Law and we argue them every day But I demand Do these offices or operations of law evacuate or frustrate the originall submission which was naturall or shall it be said that all allegiance is by law No more than it can be said that potest potestâ—â— patris the power of the Father over the Child is by Law and yet no doubt Lawes do diversely define of that also the Law of some Nations having given Fathers power to put their Children to death others to sell them thrice others to disinherit them by testament at pleasure and the like Yet no man will affirm that the obedience of the child is by law though lawes in some points doe make it more positive And even so it is of allegiance of subjects to hereditary Monarches which is corroborate and confirmed by law but is the worke of the law of nature And therefore you shall finde the observation true and almost generall in all states that their law-givers were long after their first Kings who governed for a time by naturall equity without law So was Theseus long before Saloâ— in Aâ—hâ—m for was Eâ—â—itiâ—â— and 〈◊〉 long before Lycurgus in Sparta So was Romulus long before the Decemviri And even amongst our selves there were more ancient Kings of the Saxons and yet the Lawes ran under the name of Edgars Lawes And in the refounding of the Kingdome in the person of William the Conqueror when the Lawes were in some confusion for a time a man may truly say that King Edward the first was the first Law-giver who enacting some Laws and collecting others brought the Law to some perfection And therefore I will conclude this point with the Style which divers Acts of Parliaments do give unto the King which terme him very effectually and truly Our Naturall Sove raigne Liege Lord And as it was said by a principall Judge here present when he served in another place and question was moved by some occasion of the title of Bulleins Lands That he would never allow that Queene Elizabeth I remember it for the efficacy of the phrase should bee a Statute Queene but a Common Law Queen So surely I shall hardly consent that the King shall be esteemed or called only Our Rightfull Soveraigne or Our Lawfull Soveraigne but our Naturall Liege Soveraigne As Acts of Parliament speake For as the common Law is more worthy than the Statute Law So the Law of Nature is more worthy than them both Having spoken now of the King and the Law it remaineth to speake of the priviledge and benefit of Naturalization it selfe and that according to the rules of the Law of England Naturalization is best discerned in the degrees whereby the Law doth mount and ascend thereunto For it seemeth admirable unto mee to consider with what a measured hand and with how true poportions our Law doth impart and conferre the severall degrees of this benefit The degrees are foure The first degree of persons as to this purpose â—hat the Law takes knowledge of is an Alien Enemy that is such a one as is borne under the obeisance of a Prince or State that is in hostility with the King of England To this person the Law giveth no benefit or protection at all but if hee come into the Realme after war proclaimed or war in fact he comes at his own perill hee may be used as an enemy For the Law accounts of him but as the Scripture saith as of a Spye that comes to see the weaknesse of the land And so it is 2. of Ric. the 3 fo. 2. Neverthelesse this admitteth a distinction For if he come with safe conduct otherwise it is For then he may not be violated either in person or goods But yet hee must fetch his Justice at the fountaine head for none of the Conduit pipes are open to him he can have no remedy in any of the Kings Courts but he must complain himselfe before the Kings Privy Councell There he shall have a proceeding summary from houre to houre the cause shall be determined by naturall equity and not by rules of Law and the decree of the Councell shall be executed by ayde of the Chauncery as is 13. Edw. 4. An this is the first degree The second person is an Alien friend that is such a one as is borne under the obeisance of such a King or State as is confederate with the King of England or at least not in war with him To this person the Law allotteth this benefit that as the Law accounts that the hold it hath over him is but a tranfitory hold for he may be an Enemy So the Law doth induâ— him but with a transitory benefit that is of moveable goods and personall actions But for free-hold or lease or actions reall or mixt he is not inabled except it be in auter droit And so it is 9 E. 4 fo. 7. 19. E. 4 fo. 6. 5. Ma. and divers other books The third person is a Denizon using the word properly for sometime it is confounded with a naturall borne subject This is one that is but Subditus insitivus or adoptivus and is never by birth but only by the Kings Charter and by no other meane come he never so young into the Realme or stay he never so long Mansion or Habitation will not indenise him no nor swearing obedience to the King in a Leete which doth in-law the subject but only as I said the Kings grace and gift To this person the Law giveth an ability and capacity abridged not in matter but in time And as there was a time when hee was not subject So the Law doth not acknowledge him before that time For if he purchase free-hold after his Denization he may take it but if he have purchased any before he shall not hold it So if hee have children after they shall inherit but if hee have any before they shall not inherit So as he is but priviledged à parte post as the Schoole-men say and not à parte ante The fourth and last degree is a Naturall borne subject which is evermore by birth or by Act of Parliament and he is compleate and entire For in the Law of England there is nil ultra there is no more subdivision or more subtile division beyond these And therein it seemeth to mee that the wisdome of the Law as I said is to be admired both ways both because it distinguisheth so far and because it doth not distinguish further For I know that other Lawes do admit more curious distinction of this priviledge For the Romanes had besides 〈◊〉 Civitatis which answereth to Naturalization Ius Suffragii For although a man were naturalized to take lands and inheritance yet he was not inabled to have a voyce at passing of Laws or at election of Officers And yet further they have Ius
they be of English Parents continuing at that time as liege Subjects to the King and having done no act to forfeit the benefit of their allegeance are ipso facto naturalized Nay if a man looke narrowly into the Law in this point he shall find a consequence that may seeme at the first strange but yet cannot well be avoided which is that it divers Families of English-men and women plant themselves at Middleborough or at Roane or at Lysoone and have issues and their deseendents doe intermarry amongst themselves without any intermixture of forraine blood such descendents are naturalized to all generations for every generation is still of liege Parents and therefore naturalized So as you may have whole tribes and lineages of English in forraine Countries And therefore it is utterly untrue that the Law of England cannot operate of conferre naturalization but onely within the bounds of the Dominions of England To come now to their inferences upon Statutes The firstis out of this Statute which J last recyted In which Statute it is said that in foure severall places there are words borne within the allegeance of England or againe borne without the allegeance of England which say they applies the allegeance to the Kingdome and not to the person of the King To this the answer is easie for there is not trope of speech more familiar then to use the place of addition for the person So we say commonly the lyne of Yorke or the lyne of Lancaster for the lynes of the Duke of Yorke or the Duke of Lancaster So we say the possessions of Sommerset or Warmick intending the possessions of the Dukes of Sommerset or Earles of Warmick So we seeEarles signe Salisbury Northampton for the Earles of Salisbury or Northampton And in the very same manner the Statute speakes allegeance of England for allegeance of the King of England Nay more if there had been no variety in the penning of that Statute this collect on had had a little more force for those words might have beene thought to have been used of purpose and in propriety but you may find in three other severall places of the same Statute Allegeange and obeysance of the King of England and specially in the materiall and concluding place that is to say children whose Parents were at the time of their birth at the faith and obeysance of the King of England so that is manifest by this indifferent and indifferent use of both Phrases the one proper the other unproper that no man can ground any infereÌ„ce upon these words without danger of cavillation The second Statute out of which they inferre is a Statute made in 32. of H. 8. ca. touching the policy of strangers trades men within this Realme For the Parliament finding that they did eate the Englishmen out of trade and that they entertained no Apprentizes but of their o vne Nation did prohibite that they should receive any Apprentize but the Kings Subjects In which Statute is said that in 9. severall places there is to be found this context of words Aliens 〈◊〉 〈◊〉 of the Kings obedience which is pregnant say they and doth imply that there bee Aliens borne within the Kings obedience Touching this inference I have heard it said Qâ—i haeret in litera baeret in cortice but this is not worthy the name of Cortex it is but muscus 〈◊〉 the mosse of the barke For it is evident that the Statute meant to speake clearely and without equivocation and to a common understanding Now then there are aliens in common reputation aliens in precise construction ofLaw The Statute then meaning not to comprehend Irish-men or Geâ—sie-men or Calize-men for explanation sake left the word alien might be extended to them in a vulgar acceptance added those further words borne out of the Kings obedience Nay what if we should say that those words according to the received Lawes of Speech are no words of difference or limitation but of declaration or description of an alien as if it had beene said with a videlicet aliens that is such as are borne out of the Kings obedience they cannot put us from that construction But sure I am if the barke make for them the pyth makes for us for the Priviledge or liberty which the Statute meanes to deny to Aliens of entertaining Apprentizes is denyed to none borne within the Kings obedience call them Aliens or what you will And therefore by their reason a post-Natus of Scotland shall by that Statute keepe what stranger Apprentizes he will and so is put in the degree of an English The third Statute out of which inference is made is the Statute of 14. E. 3. ca. solo which hath been said to be our very case and I am of that opinion too but directly the other way therefore to open the scope and purpose of that Statute After that the title to the Crowne of France was devolute to K. E. 3. that he had changed his Stile changed his Armes changed his Seale as his Majestie hath done the Subject of England saith the Statute conceived a feare that the Realme of England might become subject to the Realme of France or to the K. as K. of France And I will give you the reasons of the double feare that it should become subject to the Realme of France they had this reason of feare Normandy had conquered England Normandy was feudall of France therefore because the superiour Seignery of France was now united in right with the Tenancy of Normandy and that England in regard of the conquest might be taken as a perquisite to Normandy they had propable reason to feare that the Kingdome of England might be drawne to be subject to the Realme of France The other feare that England might become subject to the K. as K. of France grew no doubt of this fore-sight that the Kings of England might be like to make their mansion and seate of their estate in France in regard of the Climate wealth and glory of that Kingdome and thereby the Kingdome of England might be governed by the Kings mandates and precepts issuing as from the King of France But they will say what soever the occasion was here you have the difference authorised of subjection to a K. generally and subjection to a King as K. of a certaine Kingdome but to this I give an answer three-fold First it preffeth not the question for doth any man say that a Post-natus of Scotland is naturalized in England because he is a subject of the King as K. of England No but generally because he is the K. Subject Secondly the scope of this Law is to make a distinction between Crown and Crown But the scope of their argument is to make a difference betweene Crowne and person Lastly this Statute as I said is our very case retorted against them for this is a direct Statute of separation which presupposeth that the Common Law had made an union of the Crownes
in some degree by vertue of the vnion in the Kings person â— if this statute had 〈◊〉 beene made to stop crosse the course of the common Law in that point as if Scotland now should be suitors to the King that an Act might passe to like effect and upon like feare And therefore if you will make good your distinction in this present case shew us a Statute for that But I hope you can shew no Statute of separation betweene England and Scotland And if any man say that this was a Statute declaratory of the CoÌ„mon Law he doth not marke how that is penned for after a kind of Historicall declaration in the Preamble that England was never subject to France the body of the Act is penned thus The King doth grant and establish which are words meerly introductive novae legis as if the King gave a Charter of Franchise and did invest by a Donative the Subjects of England with a new Priviledge or exemption which by the CoÌ„mon Law they had not To come now to the booke-cases which they put which I will couple together because they receive one joynt answere The first is 42. of E. 3. fo. where the booke saith exception was taken that the plaintife was borne in Scotland at Rosse out of the allegeance of England The next is 22. H. 6. fo. 38. Adrians Case where it is pleaded that a woman was borne at Burgis out of the allegeance of England The third is 13. Eliz. Dyer fo. 300 where the case begins thus Doctor Story qui notorie dignoscituresse subditus regni Angliae In all these three say they that is pleaded that the party is subject of the Kingdome of England and not of the King of England To these bookes I give this answer that they be not the Pleas at large but the words of the Reporter who speakes compendiously and narrative and not according to the solemne words of the pleading If you find a case put that it is pleaded a man was seized in Fee simple you will not inferre upon that that the words of the pleading were in feâ—do simplici but sibi haeredibus suis But shew mee some president of a pleading at large of Natus sub legeantia Regni Angliae for whereas Mr. VValter said that pleadings are variable in this point he would faine bring it to that but there is no such matter For the pleadings are constant and uniforme in this point they may vary in the word fides or legeantia or obedientia and some other circumstances but in the forme of Regni and Regis they vary not neither can there as J am perswaded be any one instance shewed forth to the contrary See 9. Eliz. 4. Baggots Assize f. 7. where the pleading at large is entred in the booke There you have alienigena natus extra legeantiam domini Regis Angliae See the presidents in the Booke of Entries Pl. 7. and two other places for there be no more and there you shall find still sub legeantia domini Regis or extra legeantiaÌ„ Domini Regis And therefore the formes of pleading which are things so reverend and are indeed towards the Reasons of the Law as Palma and Pugnus conteyning the Reason of the Law opened or unfolded or displayed they makeall for us And for the very words of Reporters in bookes you must acknowledge and say Ilicet obruimur numera for you have 22 Ass. Pl. 25. 27. 〈◊〉 the Pryor of Skeâ—â—es case Pl. 48. 14. H. 4. f. 19. 3. H. 6. f. 35. 6. H. 8. in my Lord Dyer fol. 2. In all these bookes the very words of the Reporters have the allegeance of the King and not the allegeance of England And the booke in the 24. of Eltz. 3. which is your best booke although while it is tossed at the Bar you have sometimes the word allegeance of England yet when it comes to Thorpe chiefe Iustice to give the rule he faith we will be certified by the Role whether Scotland be within the allegeance of the King Nay that further forme of pleading beateth downe your opinion That it sufficeth not to say that he is borne out of the allegeance of the King and stay there but he must shew in the affirmative under the allegeance of what King or state he was borne The Reason whereof cannot be because it may appeare whether he be a friend or an enemy for that in a reall action is all one not it cannot be because issue shal be taken thereupon for the issue must arise on the other side upon indigena pleaded and traversed And therefore it can have no other reason but to apprise the court more certainly that the countrey of the birth is none of those that are subject to the King As for the tryall that it should be impossible to de tryed I hold it not worth the answering for the ovenire facias shall goe either where the naturall birth is laid although it be but by fiction or if it be laid according to the truth it shal be tryed where the action is brought otherwise you fall upon a maine Rock that breaketh your Argument in pieces for how should the birth of an Irish-man be tryed or of 2 Gersie man Nay how should the birth of a subject be tryed that is borne of English Parents in Spain or Florence or any part of the world for to all these the like objection of tryall may be made because they are within no Counties and this receives no answer And therefore I will now passe on to the second maine Argument It is a rule of the Civill Law say they cum duo jura c. when two rights doe meete in one person there is no confusion of them but they remain still in eye of law distinct as if they were in severall persons and they bring examples of one man Bishop of two Seas or one person that is Rector of two Churches They say this unity in the Bishop or the Rector doth not create any privity between the Parishioners or Dioceseners more then if there were severall Bishops or severall Parsons This rule I allow as was said to be a Rule not of the Civill Law onely but of common reason but receiveth no forced or coyned but a true and sound distinction or limitation which is that it evermore faileth and deceiveth in cases where there is any vigor or operation of the naturall person for generally in coporations the naturall body is but suffulcimentum corporis corporati it is but as a stock to uphold and beare out the corporate body but otherwise it is in the case of the Crown as shall be manifestly proved in due place But to shew that this rule receiveth this distinction I will put but two cases The statute of the 21. Hen. 8. ordaineth that a Marquesse may retaine sixe Chaplaines qualified a Lord Treasurer of England foure a Privie Counsellour three The Lord Treasurer Paulet was Marqueffe of Winchester Lord
can a Scottishman who is a Subject to the naturall person of the King and not to the Crowne of England can a Scottishman I say be an enemy by the Lavv to the Subjects of England or must he not of necessity if he should invade England be a Rebell and no enemy not onely as to the King but as to the Subject Or can any Letters of Marte or reprisall be granted against a Scottishman that should spoyle an English-mans goods at Sea and certainly this case doth presse exceeding neere the principall case for it prooveth plainly that the naturall person of the King hath such a communication of qualities with his body politique as it makes the Subjects of either Kingdomes stand in another degree of privity one towards the other then they did before And so much for the second proofe For the five Acts of Parliament which I spoke of which are concluding to this question The first of them is that concerning the banishment of Hugh Spencer in the time of King Ed. 2. In which act there is contained the charge and accusation whereupon his exile proceeded One Article of which charge is set downe in these words Homage and Oath of the Subject is more by reason of the crowne then by reason of the person of the King So that if the King doth not guide himselfe by reason in right of the Crowne his lieges are bound by their oath to the Crowne to remoove the King By which act doth plain'y appeare the perilous consequence of this distinction concerning the person of the King and the Crowne And yet J doe acknowledge Justice and ingeruously a great difference betweene that assertion and this which is now maintained for it is one thing to make things distinct another thing to make them separable Aliud est distinctio aliud separatio and therefore J assure my selfe that those that now use and urge that diftinction dee as firmely hold that the subjection to the Kings person and to the Crowne are inseparable though distinct as I doe And it is true that the poyson of the opinion assertion of Spencer is like the poyson of a Scorpion more in the taile then in the body For it is the inference that they make which is that the King may be deposed or removed that is the treason and dislayalty of that opinion But by you leave the body is never a whit the more wholesome meare for having such a tayle belonging to it therefore we see that is Locus lubricus an opinion from which a man may eaâ—ly slide into an absurdity But upon this act of Parliament I will onely note one circumstance more and so leave it which may adde authority unto it in the opinion of the wisest and that is that these Spencers were not ancient nobles or great Patriots that were charged and prosecuted by upstarts and favourites for then that might be said that it was but the action of some flatterers who use to extoll the power of Monarches to be infinite but it was contrary a prosecution of those persons being favourites by the Nobility so as the Nobility themselves which seldome doe subscribe to the opinion of an infinite power of Monarches Yet even they could not endure but their blood did rise to heare that opinion that subjection is owing to the Crowne rather then to the person of the King The second Act of Parliament which determined this case is the act of recognition in the first yeare of his Majestie wherein you shall find that in two severall places the one in the Preamble the other in the body of the Act the Parliament doth recognize that these two Realmes of England and Scotland are under one Imperiall Crowne The Parliament doth not say under one Monarchie or King which mought referre to the person but under ono Imperiall Crowne which cannot be applyed but to the Soveraigne power of Regiment comprehending both Kingdomes And the third act of Parliament is the Act made in the fourth yeare of his Majesties Raigne for the abolition of hostile Lawes wherein your Lordships shall find likewise in two places that the Parliament doth acknowledge that there is an union of these two Kingdomes already begun in his Majesties person So as by the declaration of that act they have not onely one King but there is an union in inception in the Kingdomes themselves These two are Judgements in Parliament by way of declaration of Law against which no man can speake And certainly these are righteous and true Iudgements to be relyed upon not onely for the authority of them but for the verity of them for to any that shall well and deeply weigh the effects of Law upon this conjunction it cannot but appeare that although partes integrales of the Kingdome as the Philosophers speake such as the Lawes the Officers the Parliament are not yet commixed yet neverthelesse there is but one and the selfe-same fountaine of soveraigne power depending upon the ancient submission whereof I spake in the beginning and in that sense the Crownes and the Kingdomes are truly said to be united And the force of this truth is such that a grave and learned Gent. that defended the contrary opinion did confesse thus farre That in ancient times when Monarchies as he said were but heapes of people without any exact forme of policy that the Naturalization and communication of Priviledges did follow the person of the Monarch But otherwise since States were reduced to a more exact forme So as thus farre we did consent but still I differ from him in this that those more exact formes wrought by time and custome and Lawes are neverthelesse still upon the first foundation and doe serve onely to perfect and corroborate the force and bond of the first submission and in no sort to disanullor destroy it And therefore with these two acts doe J likewise couple the Act of 14. Ed. 3. which hath beene alleadged of the other side For by collating of that Act with this former too the truth of that we affirme will the more evidently appeare according unto the rule of reason Opposita juxta se posita magis elucescunt That act of 14. is an act of separation These two Acts formerly recited are Acts tending to union This Act is an act that maketh a new Law it is by the words of grant and establish these two Acts declare the common law as it is being by words of Recognition and Confession And therefore upon the difference of these lawes you may fubstantially ground this position That the common-Common-law of England upon the adjunction of any Kingdome unto the King of England doth make some degree of union in the Crownes and Kingdomes themselves except by a speciall Act of Parliament they be dissevered Lastly the 5. Act of Parliament which I promised is the Act made in the 42. of E. 3. cap. â— 10. which is expresse decision of the point in question The words are Item upon the Petition put
into Parliament by the Commons That Infants borne beyond the Seas in the Seignories of Callice and elsewhere within the lands and Seignories that pertain to our Soveraign Lord the King beyond the Seas bee as able and inheritable of their heritage in England as other Infants borne within the Realme of England it is accorded that the common-Common-law and the Statute formerly made be holden Upon this Act J inferre thus much first that such as the Petition mentioneth were naturalized the practice shewes Then if so it must be either by common-Common-law or Statute for so the words report not by Statute for there is no other statute but 25. of E. 3. and that extends to the case of birth out of the Kings obedience where the Parents are English Ergo it was by the Common-law for that onely remaines And so by the Declarations of this statute at the Common-law All Infants borne within the Lands and Seignories for I give you the very words againe that pertaine to our Soveraigne Lord the King it is not said as are the Dominions of England are as able and inheritable of their heritage in England as other Infants borne within the Realme of England what can be more plaine And so I leave Statutes and goe to Presidents for though the one doe bind more yet the other sometimes doth satisfie more For presidents in the producing using of that kind of proofe of all others it behoveth them to be faithfully vouched for the suppressing or keeping back of a circumstance may change the case and therefore J am determined to urge only such presidents as are without all colour or scruple of exception or objection even of those objections which I have to my thinking fully answered confuted This is now by the Providence of God the fourth time that the line and Kings of England have had Dominions Seignories united unto them as Patrimonies and by descent of bloud foure unions I say there have bin inclusive with this last The first was of Normandy in the person of William commonly called the Conqueror The 2d was of Gascoyne and Guienne and Anjou in the person of K. Hen. the 2d in his person I say though by severall titles The 3. was of the Crowne of France in the person of K. Edw. the third And the 4th of the Kingdome of Scotland in his Majesty Of these I will set aside such as by any cavillation can be excepted unto First J will set aside NormaÌ„dy because it will be said that the difference of countryes accruing by conquest from countryes annexed by descent in matter of Communication of priviledges holdeth both wayes as well of the part of the conquering Kingdome as the conquered And therfore that although Normandy was not conquest of England yet England was a conquest of Normandy and so a communication of priviledges between them Againe set aside France for that it will be said that although the King had a title in bloud and by descent yet that title was executed and recovered by Armes So as it is a mixt title of conquest descent and therefore the President not so cleare There remaines then Gascoyne Anjou and that president likewise I will reduce and abridge to a time to avoid all question For it will bee said of them also that after they were lost and recovered in ore gladii that the antient title of bloud was extinct that the King was in upon his new title by conquest Mr. Walter had found a book case in 13. of H. 6. abridged by Mr. Fitz-Herbert in title of protection placito 56. where a protection was cast â—uia profecturus in Gasconiam with the Earlo of Huntingdon and challenged because it was not a voyage royall the Justices thereupon required the sight of the coÌ„mission which was brought before them purported power to pardon Felouies treason power to coyn money power to conquer them that resist wherby M. Walter finding the word conquest collected that the Kings title at that time was reputed to bee by Conquest wherein I may not omit to give Obiter that Answer which Law and Truth provideth namely that when any King obreyneth by warre a Countrey whereunto he hath right by Birth that hee is ever in upon his Antient Right not upon his purchase by Conquest and the Reason is that there is as well a Judgement and recovery by Warre and Armes as by law and course of Justice for war is a tribunall seat wherein God giveth the judgment the tryall is by battaile or Duell as in the case of tryall of private right and then it followes that whosoever commeth in by eviction comes in his remitter so as there will bee no difference in Countreyes whereof the right commeth by descent whether the possession be obtained peaceably or by war but yet neverthelesse because I will utterly take away all manner of evasion subterfuge I will yet set apart that part of time in and during the which the subjects of Gascoyne Guyenne might bee thought to be subdued by a reconquest And therefore I will not meddle with the Prior of Shellies case though it be an excellent case because it was in that time 27. of E. 3. neither will I meddle with any cases records or presidents in the time of King H. 5. or King H. 6. for the same reason but will hold my selfe to a portion of time from the first uniting of these Provinces in the time of King H. 2. untill the time of K. Iohn At what time those Provinces were lost and from that time againe unto the 17. yeere of the Reigne of K. Edw. 2. at what time the Statute of proerogativa Rogis was made which altered the law in the point in hand That both in these times the Subjects of Gascoyn and Guyenne and Anjou were naturalized for inheritance in England by the lawes of England I shall manifestly prove and the proofe proceeds as to the former time which is our case in a very high degree a minore ad majus and as we say a multo fortiore For if this priviledge of naturalization remained unto them when the Countreyes were lost and became subjects in possession to another King much more did they enjoy it as long as they continued under the Kings subjection Therefore to open the State of this point After these Provinces were through the perturbations of the State in the infortunate time ofK. Iohn lost and severed the principall persons which did adhere unto the French were attainted of Treason and their efcheats here in England taken and seized But the people that could not resist the tempest when their Heads and Leaders were revolted continued inheritable to their possessions in England and reciprocally the people of England inherited and succeeded to their possessions in Gascoyne and were both accounted ad fidem utriusque Regis untill the Statute of Proerogativa Regis wherein the wisdome and justice of the Law
Treasurer of England and privie counsellor all at once Question was whether hee should qualifie 13. Chaplaines Now by the Rule cum duo Iura he should but adjudged he should not And the Reason was because the attendance of Chaplaines concerned and respected his naturall person he had but one soule though he had three Offices The other case which I will put is the case of Homage a man doth homage to his Lord for a Tenancie held of the mannor of Dale there descendeth unto him afterwards a Tenancie held of the mannor of Sale which mannor of Sale is likewise in the hands of the same Lord Now by the Rule cum duo jura he should doe homage againe two Tenancies and two Seignories though but one Tenant and one Lord aequum est ac si esset in duobus But ruled that he should not doe homageagaine nay in the Case of the King hee shall not pay a second respect of Homage as upon grave and deliberate consideration it was resolved 24. H. 8. and Vsus Scaccarii as is there said accordingly And the Reason is no other but because when a man is sworne to his Lord hee cannot be sworne over againe he hath but one Conscience and the Obligation of this Oatli trencheth betweene the naturall person of the Tenant and the naturall person of the Lord And certainly the Case of Homage and Tenure and of Homage Liege which is one case are things of a neere Nature save that the one is much inferiour to the other but it is good to behold these great matters of State in cases of lower Element as the Eclipse of the Sun is used to be in a paile of Water The third maine Argument conteyneth certain supposed inconveniences which may ensue of a generall Naturalization ipso jure of which kind three have bin specially remembred The first is the losse of profit to the King upon Letters of Denization and purchases of Aliens The second is the concourse of Scottishmen into this Kingdome to the infeebling of that Realme of Scotland in people and the impoverishing of this Realme of England in wealth The third is that the reason of this case stayeth not within the compasse of the present case for although it were some reason that Scottishmen were naturalized being people of the same Iland and language yet the reason which we urge which is That they are subject to the same King may be applyed to persons every way more estranged from us then they are as if in future time in the Kings descendents there should be a match with Spaine and the Dominions of Spaine should bee united with the Crowne of England by one reason say they all the VVest-Indies should be naturalized which are people not onely alterius Soli but alterius Caeli To these conceits of inconvenience how easie it is to give answer and how weake they are in themselves I thinke no man that doth attentively ponder them can doubt For how small revenue can arise of such Denizations and how honourable it were for the King to take escheats of his Subjects as if they were forreyners for seisure of aliens Lands are in regard the King hath no hold or command of their persons and services every one may perceive And for the confluence of Scottishmen I thinke wee all conceive the Spring-tide is past at the Kings first comming in And yet wee see very few families of them throughout the Cities Boroughes of England And for the naturalizing of the Indies we can readily helpe that when the case comes for we can make an act of Parliament of separation if we like not their consort But these being Reasons politique and not legall and we are not now in Parliament but before a Judgment Seate I will not meddle with them specially since I have one answer which avoids and confounds all their objections in Law which is that the very self-same objections doe hold in Countreyes purchased by Conquest For in Subjects obtained by Conquest it were more profit to indenizate by the Poll in Subjects obteyned by Conquest they may come in too fast And if King Hen. 7. had accepted the offer of Christopher Columbus whereby the Crowne of England had obteyned the Indies by conquest or occupation all the Indies had bin naturalized by the confession of the adverse part And therfore since it is confessed that Subjects obteyned by Conquest are naturalized that all these objections are common and indifferent as well to case of Conquest as case of descent these objections are in themselves destroyed And therefore to proceed now to overthrow that distinction of descent and Conquest Plato saith well the strongest of all authorities is if a man can alledge the authority of his adversaries against him selfe we doe urge the Confession of the other side that they confessed the Irish are naturalized that they confesse the Subjects of the Iles of Gersie and Garnsey and Barwick to be naturalized and the subjects of Calice and Tourney when they were English were naturalized as you may find in the 5. E. in Dyer upon the question put to the Judges by Sir Nicholas Bacon Lord Keeper To avoid this they flye to a difference which is new coyned and is I speake not to the disadvantage of the persons that use it for they are driven to it tanquam ad ultimum refugium but the difference it selfe it is I say full of ignorance and error And therefore to take a view of the supports of this difference they alledge foure Reasons The first is that Countreyes of Conquest are made parcell of England because they are acquired by the Armes and Treasure of England To this I answer That it were a very strange Argument that if I waxe rich upon the Mannor of Dale and upon the Revenue thereof purchase a close by it that it should make that parcell of the Mannor of Dale But I will set this new Learning on ground with a question or case put For J oppose them that hold this opinion with this Question if the King should conquer any Forreigne Countrey by an Army compounded of English-men and Scottish-men as it is like whensoever Warres are so it will be I demand whether this Countrey conquered shall qe naturalized both in England and Scotland because it was purchased by the joynt Armes of both And if yea whether any man will thinke it reasonable that such Subjects bee naturalized in both Kingdomes the one Kingdome not being naturalized towards the other These are the intricate consequences of Conceits A second reason they alledge is that Countreyes won by Conquest become subject to the Lawes of England which Countries Patrimoniall are not and that the Law doth draw the Allegeance and Allegeance Naturalization But to the Major proposition of that Argument touching the dependancy of aliegeance upon Law somewhat hath bin already spoken and full answer shal be given when we come to it But in this place it shall suffice to say that
cessation appeareth notably in time of Warres for silent leges inter arma And yet the Soveraignty and Imperiall power of the King is so farre from being then extinguished or suspended as contrariwsse it is raised and made more absolute for then he may proceed by his supreame authority and Martiall Law without observing formalities of the Lawes of his Kingdome And therefore whosoever speaketh of Lawes and the Kings power by Lawes and the Subjects obedience or allegeance to Lawes speake but of one halfe of the Crowne For Bracton out of Justinian doth truly define the Crowne to consist of Lawes and Armes power Civill and Martiall with the latter whereof the Law doth not intermeddle so as where it is much spoken that the Subjects of England are under one Law and the Subjects of Scotland are under another Law it is true at Edenborough or Sterling or againe in London or Yorke But if Englishmen and Scottishmen meet in an Army Royall before Calice I hope then they are under one Law So likewise not onely in time of warre but in time of peregrination If a King of England travaile or passe through forraine territories yet the allegeance of his Subjects followeth him as appeareth in that not able case which is reported in 〈◊〉 where one of the traine of K. Ed. I. as be past through France from the Holy Land imbezelled some silver Plate at Paris and Jurisdiction was demanded of this crime by the French Kings Counsell at Law 〈◊〉 〈◊〉 and demanded likewise by the Officers of K. Edw. ratione personae and after much solemnity and contestation and interpleading it was ruled and determined for King Edward and the party tryed and judged before the Knight Marshall of the Kings house and hanged after the English Law and execution in St. Germaines meadovves and so much for my first proofe For my second maine proofe that is drawn from the true legall distinction of the Kings severall capacities for they that maintaine the contrary opinion doe in effect destroy the whole force of the Kings naturall capacity as if it were drowned and swallowed up by his politique And therefore I will first prove to your Lordships that his two capacities are in no sort confounded and secondly that as his capacity politique worketh so upon his naturall person as it makes it differ from all other the naturall persons of his Subjects so è converso his naturall body worketh so upon his politique as the corporation of the Crowne utterly differeth from all other Corporations within the Realme For the first I will vouch you the very words which I find in that notable case of the Dutchie where the question was whether the grants of King Ed. 6. for Dutchy lands should be avoyded in points of nonage The case as your Lordships know well is reported by Mr. Plowden as the generall resolution of all the Judges of England and the Kings learned Counsell Ruswell the Solicitour onely except there I find the said words Comment fol. 215. There is in the King not a body naturall alone nor a body politique alone but a body naturall and politique together â—â—â—pus corporatum in corpore naturali corpus naturale in corpore corporato The like I find in the great case of the Lord Barkeley set downe by the same Reporter Comment fol. 234. Though there be in the King two bodies and that those two bodies are conjoyned yet are they by no meanes confounded the one by the other Now then to see the mutuall and reciprocall entercourse as I may terme it or influence or communication of qualities that these bodies have one upon the other The body politique of the Crowne indueth the naturall person of the King with these perfections That the King in Law shall never be said to be within age that his blood shall never be corrupted and that if he were attainted before the very assumption of the Crown purgeth it That the K. shall not take but by matter of Record although he take in his naturall capacity as upon a guift in taile That his body in Law shall be said to be as it were immortall for there is no death of the King in Law but a demise as it is tearmed with many other the like Priviledges and differences from other naturall persons too long to rehearse the rather because the question laboureth not in that part But on the contrary part let us see what oporations the Kings naturall person hath upon his Crowne and body politique Of which the chiefest and greatest is that it causeth the Crowne to goe by descent which is a thing strange and contrary to the course of all Corporations which evermore take in succession and not by descent for no man can shew mee in all the Corporations of England of what nature soever vvhether they consist of one person or of many or whether they be Temporall or Ecclesiasticall any one takes to him and his heires but all to him and his successours And therefore here you may see what a weake course that is to put cases of Bishops and Parsons and the like and to apply them to the Crowne For the King takes to him and his heires in the manner of a naturall body and the word successours is but superfluous and where that is used that is ever duly placed after the words heires The King his heires and Successours Againe no man can deny but vxor filius sunt nomina naturae A Corporation can have no wife nor a Corporation can have no sonne how is it then that it is treason to compasse the death of the Queene or of the Prince There is no part of the body politique of the Crovvne in either of them but it is entirely in the King So likewise we find in the case of the Lord Barkeley the question was whether the Statute of 35. H. 8. for that part which concerned Queene Katherine Pars joynture were a publique act or no of which the Judges ought to take notice not being pleaded And judged a publique Act. So the like question came before your Lordship my Lord Chancellour in Serjeant Heales case whether the Statute of 11. of Ed. 3 concerning the intayling of the Dukedome of Cornewall to the Prince vvere a publique Act or no and ruled likewise a publique Act. Why no man can affirme but these be operations of Lavv proceeding from the dignity of the naturall person of the King for you shall never find that another Corporation vvhatsoever of a Bishop or Master of a Colledge or Major of London vvorketh any thing in Lavv upon the vvife or sonne of the Bishop or the Major And to conclude this point and vvithall to come neere to the case in question I will shew you where the naturall person of the King hath not onely an operation in the case of his wife and children but likewise in the case of his Subjects which is the very question in hand As for example I put this case
of England is highly to be commended For of 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 iftoe It was the cowardise and disloyalty of their Governours that deserved punishmēt butwhat had these sheep done and therefore to have punish't them and deprived them of their lands fortunes had bin unjust That of policy was because if the law had forthwith upon the losse of the Countreyes by an accident of time pronounced the people for Aliens it had been a kind of Cession of their right and a diselaymer 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 weake king that as it seemed despaired ever to recover his right and therefore thought better to have a little present profit by escheats then the continuance of his claime 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 reade the authorities they be so direct and pregnant The first is the very text of the Statute of Praerogativa Regis Rex habebit escaetas de terris Normannorum cujuscunque feodi fuerint salvo servitio quod pertinet ad capitales dominos feodi illius hoc similiter intelligendum est si aliqua haereditus descendat alicui nato in partibus transmarinis cujus antecefsores fuerunt ad fidem Regis Franciae ut tempore Regis Iohannis non ad fidem Regis Angliae sicut contigit de Baronia Monumetae c. By which Statute it appeares plainly that before the time of King Iohn there was no colour of any Escheare because they were the kings Subjects in possession as Scotland now is but onely 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 th'other placed after it both authors of great credit the 〈◊〉 for antient th' other for late times The former is 〈◊〉 in his Cap. de exception 〈…〉 lib. 5. fol. 427. and his words are these Est etiam alia exceptie quae tenenti competitex persona petentis propter defectum Nationis quae dilatoria est nonperimit actionem ut si qnis alienigena qui fuerit ad fidem Regis Franciae actionem instituat versus aliquem qui fuerit ad fidem Regis Angliae tali nonrespondeatur saltem donec terrae fuerint communes By these words it appeareth that after the losse of the Provinces beyond the Seas the Naturalization of the Subjects of those Provinces was in no sort extinguished but onely was in suspence during time of warre and no longer for he saith plainly that the exception which we call plea to the person of Alien was not peremptory but onely dilatory that is to say during the time of war and untill there were peace concluded which hee tearmes by these words donec terrae fuerint communes which though the phrase seeme somewhat obscure is expounded by Bracton himselfe in his fourth booke fol. 297. to be of peace made and concluded whereby the Inhabitants of England and those Provinces might enjoy the profits and fruits of their lands in either place communiter that is respectively or as well the one as th'other so as it is cleere they were no Aliens in right but onely interrupted and debarred of Suites in the Kings Courts in time of Warre The authority after the Statute is that of Master Stamfords the best Expositor of a statute that hath bin in our law a man of reverend judgment excellent order in his writings his words are in his expositiō upon the branch of that statute which we read before By this branch it should appeare that at this time men of Normandy Gascoyne Guienne Anjou and Brittaine were inheritable within this Realme aswell as English-men because that they were sometimes Subjects to the Kings of England and under their Dominion untill K. Johns time as is aforesaid yet after his time those men saving such whose lands were taken away for treason were still inheritable within this Realme till the making of this Statute and in the time of peace betweene the two Kings of England and France they were answerable within this Realme if they had brought any action for their Lands and Tenements So as by these three authorities every one so plainly pursuing th' other we conclude that the subjects of Gascoyne Guienne Anjou and the rest from their first union by descent untill the making of the Statute of praerogativa Regis were inheritable in England and to be answered in the Kings Courts in all actions except it were in time of warre 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 neverthelesse the priviledge of naturalization continued There resteth yet one objection rather plausible to a popular understanding then any waies forcible in law or learning which is a difference taken between the Kingdome of Scotland and these Dutchies for that the one is a Kingdome and th' other was not so and therefore that those Provinces being of an inferiour nature did acknowledge our Lawes and Seales and Parliament which the Kingdome of Scotland doth not This difference was well given over by Mr. Walter for it is plaine that a Kingdome and absolute Dukedome or any other Soveraigne estate doe differ honore and not potestate For divers Dutchies and Countries that are now were sometimes Kingdomes and divers kingdomes that are now were sometimes Dutchies or of other inferiour Style wherein we neede not travaile abroad since we have in our owne state so notorious an instance of the Countrey of Ireland whereof King H. 8. of late time was the first that writ himselfe King the former Style being L. of Ireland and no more and yet Kings had the same authority before that they have had since and the same Nation the same marks of a Soveraigne State as their Parliaments their Armes their Coynes as they now have so as this is too superficiall an allegation labour upon And if any doe conceive that Gascoyne and Guyenne were governed by the Lawes of England First that cannot be in reason for it is a true ground that wheresoever any Princes Title unto any Countrey is by Law he can never change the Lawes for that they create his Title and therefore no doubt those Dutchies retained their owne Lawes which if they did then they could not be subject to the Lawes of England And next againe the fact or practize was otherwise as appeareth by all consent of Story and Record For those Dutchies continued governed by the Civill Law their tryalls by witresses and not by Jurie their lands Testamentary and the like Now for the colours that some have endeavoured to give that they should have beene subordinate to the government of England they were partly weake and partly such as make strongly against them for as to that that writs of Habeas corpus under the great Seale of England have gone to Gascoyne it is no manner of proofe for that the Kings writs which are mendatory and not writs of ordinary Justice may goe to his Subjects into any forraine parts whatsoever and under what Seale it pleaseth him to use and as to that that some Acts of Parliament have beene cited wherein the Parliaments of England have taken upon them to order matters of Gascoyne 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 Subjects personally or the territories of England locally and never the Subjects of Gascoyne for looke upon the Statute of 27. of Ed. 3. ca. 5. there it is said That there shall be no fore-stasting of Wines but by whom onely by English Merchants not a word of the Subjects of Gascoyne and yet no doubt they mighr be offenders in the same kind So in the sixt Chapter it is said That all Marchants Gascoyoes may safely bring Wines into what part it shall please them here now are the persons of Gascoynes but then the place whether◠into the Realme of England and in the 7. Chap. that erects the Ports of Burdeaux and Bayonne for the staple Townes of wine the Statute Ordaines that if any but who English Marchant or his Servants shall buy or bargaine other where his body shall be arrested by the Steward of Gascoyne or the Constable of Burdeaux true for the Officers of England could not catch him in Gascoyne but what shall become of him shall he be proceeded with within Gascoyne No but he shall be sent over into England into the Tower of London And this doth notably disclose the reason of that custome which some have sought to wrest the other way that custome I say whereof a forme doth yet remaine that in every Parliament the King doth appoint certaine Committees in the Upper-House to receive the Petitions of Normandy Guyenne and the rest which as by the former Statute doth appeare 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 via versa for the restraining of the abuses and misdemeanors of our Subjects when they went thither Wherefore I am now at an end For us to speake of the mischiefes I hold it not fit for this place left we should seeme to bend the Lawes to policy and not to take them in their true and naturall sense It is enough that every man knowes that it is true of these two Kingdomes 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 presse any opinion or declaration of late time which may prejudice the liberty of this debate but ex dictis ex non dictis upon the whole matter I prove Judgement for the Plaintiffe
severall families or Ilneages of people doe submit themselves to one line Imperiall or Royall the submission is more naturall and simple which afterwards by lawes subsequent is perfected and made more formall but that is grounded upon nature That this is so it appeareth notably in two things the one the platformes and patternes which are found in nature of Monarchies the original submissions their motives and occasions The platformes are three The first is that of a father or chiefe of a family who governing over his wife by prerogative of Sexe over his children by prerogative of age and because he is author unto them of being and over his servants by prerogative of vertue and providence for he that is able of body and improvident of mind is Natura servus that is a very modell of a King So that is the opinion of Aristotle Lib. 3. Pol. Cap. 14 where he saith Verum autem regnum est cum penes unum est rerum summa potestas quod regnum procurationem familia imitatur And therefore Lyeurgus when one counselled him to dissolve the kingdome and to establish another forme of estate he answered Sir begin to doe that which you advise first at home in your owne house noting that the chief of a family is as a King and that those that can least endure Kings abroad can be content to be Kings at home this is the first platforme which we see is meerely naturall The second is that of a Shepheard and his flocke which Zenophon saith Cyrus had ever in his mouth For shepheards are not owners of the sheepe but their office is to feede and governe no more are Kings proprietaries or owners of the people for God is sole owner of people The nations as the Scripture saith are his inheritance But the office of Kings is to governe maintaine and protect people And that is not without a mystery that the first King that was instituted by God David for Saul was butan untimely fruit was translated from a shepheard as you have it in the 78. Psal. Et elegit David servum suum de gregibus ovium sustulit eum pascere Iacob Servum suum Israel hereditatem suam This is the second platforme a worke likewise of nature The third platforme is the government of God himselfe over the world whereof lawfull Monarchies are a shadow And therefore both amongst the heathen and amongst the Christians the word sacred hath beene attributed unto Kings because of the conformity of a Monarchy with the divine Majesty never to a Senate or people And so you finde it twice in the Lord Cookes Reports once in the second booke the Bishop of Winchesters case and his first booke Cawdries case and more anciently in the 10. of H. 7. fo. 18. Rex est persona mixta cam Sacerdote an attribute which the senate of Venice or a Canton of Swisses can never challenge So we see there be presidents or platformes of Monarchies both in Nature and above Nature even from the Monarch of heaven and earth to the King if you will in an hive of bees And therefore other States are the creatures of the law and this State onely subsisteth by Nature For the originall submissions they are foure in number I will briefly touch them The first is Paternity or Patriarchy which was when a family growing so great as it could not containe it selfe within one habitation some branches of the descendents were forced to plant themselves into new families which second families could not by a naturall instinct and inclination but beare a reverence and yeeld an obeyseance to the eldest line of the ancient family from which they were derived The second is the admiration of vertue or gratitude towards merit which is likewise naturally infused into all men Of this Aristotle putteth the case well when it was the fortun of some one man either to invent some Arts of excellent use towards mans life or to congregate people that dwelt scattered into one place where they might cohabite with more comfort or to guide them from a more barrenland to a more fruitful or the like Vpon these deserts and the admiration and recompence of them people submitted themselves The third which was the most usuall of all was Conduct in warre which even in nature induceth as great an obligation as Paternity For as men owe their life and being to their Parents in regard of generation So they owe that also to Saviours in the warres in regard of preservation And therefore we finde in the 18. Chap. of the booke of Iudges verse 22. Dixerunt omnes â—iri ad Cedeon Dominare nostri tu et filij tui quoniam servasti nos de manu Madian And so we reade when it was brought to the eares of Saul that the people sung in the streets Saul hath kild his thousand David his ten thousand of enemies he said straightwaies Quid ei superest nisi ipsum regnuÌ„ for whosoever hath the military dependance wants little of being King The fourth is an enforced submission which is Conquest whereof it seemed Nymrod was the first president of whom it is said Ipse caepit potens esse in terra et erat robustus venator coram Domine And this likewise is upon the same root which is the saving or gift as it were of life and being for the Conqueror hath power of life and death over his Captives and therefore where he giveth them themselves he may reserve upon such a gift what service and subjection he will All these foure submissions are evident to be naturall and more ancient than law To speake therefore of Law which is the second part of that which is to be spoken of by way of inducement Law no doubt is the great Organ by which the soveraigne power doth move and may be truly compared to the sinewes in a naturall body as the Soveraignty may be compared to the spirits for if the Sinewes be without the spirits they are dead and without motion If the spirits move in weake sinewes it causeth trembling so the lawes with out the Kings power are dead the Kings power except the lawes be corroborate will never move constantly but be full of staggering and trepidation But towards the King himself the law doth a double office or operation The first is to entitle the King or designe him and in that sense Bracton saith well Lib. 1. fol. 5. and Lib. 3. fol. 107. Lex facit quod ipse sit Rex that is it defines his title as in our law that the kingdome shall goe to the issue female That it shall not be departable amongst daughters That the halfe bloud shall not be respected and other points differing from the rules of common inheritance The second is that whereof we need not feare to speake in good and happy times such as these are to make the ordinary power of the King more definite or regular for it was well said by a Father plenitudo