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
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-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
THREE SPEECHES OF The Right Honorable Sir Francis Bacon Knight then his Majesties Sollicitor Generall after LORD VERULAM Viscount Saint Alban Concerning the POST-NATI Naturalization of the Scotch in England Vnion of the Lawes of the Kingdomes of England and Scotland Published by the Authors Copy and Licensed by Authority LONDON Printed by Richard Badger for Samuel Broun and are to be sold at his shop in St. Pauls Church-yard at the signe of the white Lyon and Ball 1641. 15. May 1641. At a Committee appointed by the Honourable House of Commons in Parliament for examination of books of the licensing and suppresing of them It is ordered that these three speeches or treatises be published in print Edward Dering The Argument of S r. Francis Bacon Knight His Majesties Sollicitor generall in the Case of the POST-NATI of Scotland in the Exchequer Chamber before the Lord Chancellor and all the Iudges of England May it please Your Lord-ships THis Case Your Lord-ships doe well perceive to be of exceeding ' great consequence For whether you doe measure that by place that reacheth not onely to the Realme of England but to the whole Iland of Great-Brytaine or whether you measure that by time that extendeth not onely to the present time but much more to future generations Et natinatorum et qui nascentur ab illis And therefore as that is to receive at the barre a full and free debate so I doubt not but that shall receive from your Lord-ships a sound and iust resolution according to law and according to truth For my Lords though he were thought to have said well that said that for his word Rex fortissimus Yet he was thought to have said better evenin the opinion ofa King him selfe that said Veritas fortissima et pravalet And I doe much rejoyce to observe such a Concurrence in the whole carriage of this cause to this end that truth may prevaile The case no fained or framed case but a true case betweene true partyes The title handled formerly in some of the Kings Courts and Free-hold upon it used indeed by his Majesty in his high wisedome to give an end to this great question but not raysed occasio as the Schoole-men say arrepta non porrecta The case argued in the Kings Bench by M. Walter with great liberty and yet with good approbation of the Court The persons assigned to be of Counsell on that side inferiour to none of their quality and degree in learning and some of them most conversant and exercised in the question The Iudges in the Kings Bench have adjourned it to this place for conference with the rest of their brethren Your Lord-ship my Lord Chancellor though you be absolute Iudg in the Court where you sit and might have called to you such assistance of Iudges as to you had seemed good yet would not fore-run or leade in this case by any opinion there to be given but have chosen rather to come your selfe to this assembly all tending as I sayd to this end whereunto I for my part doe heartily subscribe ut vincat veritas that truth may first appeare and then prevaile And I doe firmely hold and doubt not but I shall well maintaine that this is the truth That Calvin the plaintiefe is Ipso Iure by the law of England a naturall borne subject to purchase Free-hold and to bring reall actions within Eugland In this case I must so consider the time as I must much more consider the matter And therefore though it may draw my speach into further length yet I dare not handle a case of this nature confusedly but purpose to observe the ancient and exact forme of pleadings which is First to explaine or induce Then to confute or answere objections And lastly to prove or confirme And first for explanation The outward question in this case is no more but whether a child borne in Scotland since his Majesties happy comming to the Crowne of England be naturalized in England or no But the inward question or State of the question evermore beginneth where that which is confessed on both sides doth leave It is confest that if these two Realmes of England and Scotland were united under one Law and one Parliament and thereby incorporated and made as one Kingdome that the Post-natus of such an union should be naturalized It is confessed that both Realmes are united in the person of our Soveraigne or because I will gaine nothing by surreption in the putting of the question that one the same naturall person is King of both Realmes It is confessed that the Lawes and Parliaments are severall So then whether this priviledge and benefit of Naturalization be an accessory or dependancy up on that which is one and joint or upon that which is severall hath beene and must be the depth of this question And therefore your Lord-ships doe see the State of this question doth evidently lead me by way of inducement to speake of three things The King the Law and the priviledge of Naturalization For if you well understand the nature of the two Principals and againe the nature of the Accessory Then shall you discerne to whether Principal the Accessory doth properly referre as a shadow to a body or Iron to an Adamant And there your Lord-ships will give me leave in a case of this quality first to visit and open the foundations and fountaines of Reason and not to begin with the positions and eruditions of a Municipall Law for so was that done in the great Case of Mines and so ought that to be done in all cases of like nature And this doth not at all detract from the sufficiency of our lawes as incompetent to decide their owne cases but rather addeth a dignity unto them when their reason appearing as well as their authority doth shew them to be as fine moneyes which are currant not onely by the stampe because they are so received but by the naturall metall that is the reason and wisedome of them And Master Littleton himselfe in his whole booke doth commend but two things to the professors of the law by the name of his sonnes the one the inquiring and searching out the reasons of the law and the other the observing of the formes of pleadings And never was there any case that came in Iudgement that required more that Littletons advice should be followed in those two points then doth the present case in question And first of the King It is evident that all other common-wealths Monarchies onely excepted doe snbsist by a law preceedent For where authority is divided amongst many officers and they not perpetuall but annuall or temporary and not to receive their authority but by election and certaine persons to have voice onely to that election and the like These are busie and curious frames which of necessity doe presuppose a law precedent written or unwritten to guide and direct them But in Monarchies especially hereditary that is when
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
the Minor proposition is false that is that the Lawes of England are not superinduced upon any Countrey by Conquest but that the old Lawes remaine untill the King by his Proclamation or Letters pattents declare other Lawes and then if he will hee may declare Lawes which be utterly repugnant and differing from the Lawes of England And hereof many antient Presidents and Records may be shewed that the Reason why Ireland is subject to the Lawes of England is not ipso jure upon conquest but grew by aCharter of K. John and that extended but to so much as was then in the Kings possession For there areRecords in the time of King S. 1 and 2 of divers particular Grants to sundry Subjects of Ireland and their Heires that they might use and observe the Lawes of England The third Reason is that there is a politique necessity of intermixture of people in case of subjection by Conquest to remove alienations of mind to securo the Stato which holdeth not in case of descent Here I perceive Mr. 〈◊〉 hath read somewhat in matter of State and so have I likewise though we may both quickly lose ourselves in cause of this Nature I find by the best opinions that there bee two meanes to assure and retaine in obedience Countreyes conquered both very differing almost in extreames the one towards the other The one is by Colonies and intermixture of people and transplantation of families which Mr. Walter spoke off and it was indeed the Romane manner but this is like an old relique much reverenced and almost never used But th'other which is the modern manner and almost wholly in practice use is by Garrisons and Citadelles and Lists or Companies of men of Warre and other like matters of terrour and bridle To the first of these which is little used it it true that naturalization doth conduce but to the latter it is utterly opposite as putting too great pride and meanes to do hurt in those that are meant to be kept short and low And yet in the very first case of the Romane proceeding Naturalization did never follow by Conquest during all the growth of the Romane Empire but was ever conferred by Charters or Donations sometimes to Cities and Townes sometimes to particular persons sometimes to Nations untill the time of Adrian the Emperour and the Law in Orbe Romano and that Law or constitution is not referred to title of Conquest and Armes onely but to all other titles as by the Donation and Testament of Kings by submission and dedition of States or the like So as this difference was as strange to them as to us And certainly I suppose it will sound strangely in the hearing of forreigne Nations that the law of England should ipso sacto naturalize subjects of Conquest and should not naturalize Subjects which grow unto the King by descent that is that it should conferre the benefit and priviledge of naturalization upon such as cannot at the first but beare hatred and rancor to the state of England and have had their hands in the bloud of the Subjects of England and should deny the like benefit to those that are conjoyned with them by a more amiable meane And that the law of England should conferre naturalization upon slaves and vassals for people conquered are no better in the beginning and should deny it to Free-men I say it will be marvelled at abroad of what complexion the lawes of England bee made that breedeth such differences But there is little danger of such scandals for this is a difference that the law of England never knew The fourth reason of this difference is that in case of Conquest the territory united can never be separated againe But in case of descent there is a possibility if his Majesties line should faile the Kingdomes may severe againe to their respective heires as in the case of 8. H. 6. where it is said that if Land descend to a man from the Ancestor on the part of his Father and a rent issuing out of it from an Ancestor on the part of the mother if the party dye without issue the Rent is revived As to this Reason I know well the continuance of the Kings line is no lesse deare to those that alleadge the reason then to us that confute it So as I doe not blame the passing of the reason but it is answered with no great difficulty for first the law doth never respect remote and forrein possibilities as noteably appeared in the great case betweene Sir Hugh Cholmley and Houlford in the Exchequer where one in the remainder to the end to bridle tenant in tayle from suffering a common recovery granted his remainder to the King and because he would be sure to have it out again without charge or trouble when his turne was served he limitted it to the King during the life of tenant in tayle Question grew whether this grant of remainder were good yea or no And it was said to be frivolous and void because it could never by any possibility execute for tenant in tayle cannot surrender and if he dyed the remainder likewise ceased To which it was answered that there was a possibility that it might execute which was thus Put case that tenant in tayle should enter into Religion having no issue then the remainder should execute and the King should hold the land during the naturall life of tenant in tayle notwithstanding his civill death But the Court una vate exploded this reason and said that Monasteries were downe and entries into Religion gone and they must be up againe ere this could be and that the Law did not respect such remote and forreine possibilities so we may hold this for the like For I think we all hope that neither of those days shall ever come either for Monasteries to be restored or for the K. line to faile but the true answer is that the possibility subsequēt remote or not remote doth not alter the operatiō of law for the present For that should be as if in case of the Rent which you put you should say that in regard that the rent maybe severed it should be said to be in esse in the meane time and should be grantable which is cleerely otherwise And so in the principall cafe if that should be which God of his goodnesse forbid cessante causa cessat effectus the benefit of naturalization for the time to come is dissolved But that altereth not the operation of the Law Rebus sic stantibus And therefore I conclude that this difference is but a devise full of weaknesse and ignorance and that there is one and the same reason of naturalizing subjects by descent and subjects by conquest and that is the union in the person of the King and therefore that the 〈◊〉 of Scotland is as cleere as that of Ireland and they that grant the one cannot deny the other And so I conclude the second part touching confutation To
proceed therefore to the prooses of our part your Lordships cannot but know many of them must be already spent in the answer which we have made to the objections For corruptio unius generatio alterius holdes aswell in Arguments as in Nature the destruction of an objection begets a proofe But neverthelefse I will avoid all iteration least I should seem either to distract your memories or to abuse your patience But will hold my selfe onely to these proofs which stand substantially of themselves and are not intermixed with matter of confutation I will therefore prove unto your Lordships that the post-natus of Scotland is by the Law of England natâ—rall and ought fo to be adjudged by three courses of proofe 1. Biâ—â—t upon point of favour of Law 2. Secondly upon reasons and authorities of Law 3. And lastly upon former presidents examples Favour of Law what meane J by that the Law is equall and favoureth not It is true not persons but things or matters it doth favour Is it not a common principle that the Law favoureth three things Life Liberty Dower And what is the reason of this favour This because our Law is grounded upon the Law of Nature And these three things doe flow from the Law of Nature preservation of life Naturall Liberty which every Beast or Bird seeketh and affecteth naturally the society of man and wife whereof Dower is the reward naturall It is well doth the Law favour Liberty so highly as a man shall infranchise his bondman when hee thinketh not of it by granting to him Lands or Goods And is the reason of it quia natura omnes homines erant liberi and that servitude or villenage doth crosse and abridge the Law of Nature And doth not the selfe-same reason hold in the present case For my Lords by the Law of Nature all men in the world are naturalized one towards another they were all made of one lumpe of earth of one breath of God they had the same common Parents Nay at the first they were as the Scripture sheweth unius Labii of one Language untill the curse which curse thankes be to God our present case is exempted from It was Ciuill and Nationall Lawes that brought in these words and differences of Civis and Exterus Alien Native And therefore because they tend to abridge the Law of Nature the Law favoureth not them but takes them strictly even as our Law hath an excellent rule that customes of Townes Burroughes shall be taken and construed strictly precisely because they doe abridge and derogate from the law of the land So by the same reason all Nationall Lawes whatsoever are to be taken strictly and hardly in any point wherein they abridge and derogate from the law of Nature Whereupon I conclude that your Lordships cannot judge the law for the other side except the case be Luce clarius And if it appeare to you but doubtfull as I thinke no man in his right senses but will yeeld it to be at least doubtfull Then ought your Lordships under your correction be it spoken to pronounce for us because of the favour of the Law Furthermore as the law of England must favour Naturalization as a branch of the law of Nature so it appeares manifestly that it doth favour it accordingly For is it not much to make a Subject Naturalized By the law of England it should suffice either place or Parents if he be born in England it is matter no though his Parents be Spanyards or what you will On th' other side if he be borne of English Parents it skilleth not though he be borne in Spaine or in any other place of the World In such sort doth the Law of England open her lappe to receive in people to be Naturalized which indeed sheweth the wisedome and excellent composition of our law And that it is the law of a Warlike and Magnanimous Nation sit for Empire For looke and you shall find that such kind of estates have been ever liberall in point of Naturalization whereas Marchant-like and envious estates have bin otherwise For the reasons of law joyned with authorities I doe first observe to your Lordships that our assertion or affirmation is simple and plaine that it sufficeth to naturalization that there be one King and that the party be natus ad sidem Regis agreeable to the definition of Littleton which is Alien is he which is born out of the allegeance of our Lord the King They of th' other side speak of respects and quoad and quatenus and such subtilties and distinctions To maintaine therefore our assertion J will use three kindes of proofes The first is that allegeance cannot be applyed to the Law or Kingdome but to the person of the King because the Allegeance of the Subject is more large and spatious and hath a greater latitude and comprehension then the Law or the Kingdome And therefore it cannot be a dependency of that without the which it may of it selfe subsist The second proofe which I will use is that the Naturall body of the King hath an operation and influence into his body politique aswell as his body politique hath upon his body Naturall And therefore that although his body politique of King of England and his body politique of King of Scotland be soverall and distinct Yet neverthelesse his Naturall person which is one hath an operation upon both and createth aprivity betweene them And the third proofe is the binding text of five severall statutes For the first of these I shall make it manifest that the allegeance is of a greater extent and dimension then Lawes or Kingdome and cannot confist by the lawes meerely because it began before laws it continueth after Lawes and it is in vigour where Lawes are suspended and have not their force That it is more antient then law appeareth by that which was spoken in the beginning by way of inducement where I did endeavour to demonstrate that the originall age of Kingdomes was governed by naturall equity that Kings were more antient then Law-givers that the first submissions were simple and upon confidence to the person of Kings and that the Allegeance of Subjects to hereditary Monarchies can no more be said to consist by lawes then the obedience of Children to Parents That Allegeance continueth after lawes I will onely put the case which was remembred by two great Judges in a great Assembly the one of them now with God which was that if a King of England should be expalsed his Kingdome and some particular subjects should follow him in flight or exile in forreigne parts and any of them there should conspire his death that upon his rocoveryof his Kingdome such a subject might by the Law of England be proceeded with for Treason committed and perpetrated at what time he had no Kingdome and in place wher ethe Law did not bind That Allegeance is in vigour and force where the power of Law hath a