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
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
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
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
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-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
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