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
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-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
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
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
cessation appeareth notably in time of Warres for silent leges inter arma And yet the Soveraignty and Imperiall power of the King is so farre from being then extinguished or suspended as contrariwsse it is raised and made more absolute for then he may proceed by his supreame authority and Martiall Law without observing formalities of the Lawes of his Kingdome And therefore whosoever speaketh of Lawes and the Kings power by Lawes and the Subjects obedience or allegeance to Lawes speake but of one halfe of the Crowne For Bracton out of Justinian doth truly define the Crowne to consist of Lawes and Armes power Civill and Martiall with the latter whereof the Law doth not intermeddle so as where it is much spoken that the Subjects of England are under one Law and the Subjects of Scotland are under another Law it is true at Edenborough or Sterling or againe in London or Yorke But if Englishmen and Scottishmen meet in an Army Royall before Calice I hope then they are under one Law So likewise not onely in time of warre but in time of peregrination If a King of England travaile or passe through forraine territories yet the allegeance of his Subjects followeth him as appeareth in that not able case which is reported in 〈◊〉 where one of the traine of K. Ed. I. as be past through France from the Holy Land imbezelled some silver Plate at Paris and Jurisdiction was demanded of this crime by the French Kings Counsell at Law 〈◊〉 〈◊〉 and demanded likewise by the Officers of K. Edw. ratione personae and after much solemnity and contestation and interpleading it was ruled and determined for King Edward and the party tryed and judged before the Knight Marshall of the Kings house and hanged after the English Law and execution in St. Germaines meadovves and so much for my first proofe For my second maine proofe that is drawn from the true legall distinction of the Kings severall capacities for they that maintaine the contrary opinion doe in effect destroy the whole force of the Kings naturall capacity as if it were drowned and swallowed up by his politique And therefore I will first prove to your Lordships that his two capacities are in no sort confounded and secondly that as his capacity politique worketh so upon his naturall person as it makes it differ from all other the naturall persons of his Subjects so è converso his naturall body worketh so upon his politique as the corporation of the Crowne utterly differeth from all other Corporations within the Realme For the first I will vouch you the very words which I find in that notable case of the Dutchie where the question was whether the grants of King Ed. 6. for Dutchy lands should be avoyded in points of nonage The case as your Lordships know well is reported by Mr. Plowden as the generall resolution of all the Judges of England and the Kings learned Counsell Ruswell the Solicitour onely except there I find the said words Comment fol. 215. There is in the King not a body naturall alone nor a body politique alone but a body naturall and politique together â—â—â—pus corporatum in corpore naturali corpus naturale in corpore corporato The like I find in the great case of the Lord Barkeley set downe by the same Reporter Comment fol. 234. Though there be in the King two bodies and that those two bodies are conjoyned yet are they by no meanes confounded the one by the other Now then to see the mutuall and reciprocall entercourse as I may terme it or influence or communication of qualities that these bodies have one upon the other The body politique of the Crowne indueth the naturall person of the King with these perfections That the King in Law shall never be said to be within age that his blood shall never be corrupted and that if he were attainted before the very assumption of the Crown purgeth it That the K. shall not take but by matter of Record although he take in his naturall capacity as upon a guift in taile That his body in Law shall be said to be as it were immortall for there is no death of the King in Law but a demise as it is tearmed with many other the like Priviledges and differences from other naturall persons too long to rehearse the rather because the question laboureth not in that part But on the contrary part let us see what oporations the Kings naturall person hath upon his Crowne and body politique Of which the chiefest and greatest is that it causeth the Crowne to goe by descent which is a thing strange and contrary to the course of all Corporations which evermore take in succession and not by descent for no man can shew mee in all the Corporations of England of what nature soever vvhether they consist of one person or of many or whether they be Temporall or Ecclesiasticall any one takes to him and his heires but all to him and his successours And therefore here you may see what a weake course that is to put cases of Bishops and Parsons and the like and to apply them to the Crowne For the King takes to him and his heires in the manner of a naturall body and the word successours is but superfluous and where that is used that is ever duly placed after the words heires The King his heires and Successours Againe no man can deny but vxor filius sunt nomina naturae A Corporation can have no wife nor a Corporation can have no sonne how is it then that it is treason to compasse the death of the Queene or of the Prince There is no part of the body politique of the Crovvne in either of them but it is entirely in the King So likewise we find in the case of the Lord Barkeley the question was whether the Statute of 35. H. 8. for that part which concerned Queene Katherine Pars joynture were a publique act or no of which the Judges ought to take notice not being pleaded And judged a publique Act. So the like question came before your Lordship my Lord Chancellour in Serjeant Heales case whether the Statute of 11. of Ed. 3 concerning the intayling of the Dukedome of Cornewall to the Prince vvere a publique Act or no and ruled likewise a publique Act. Why no man can affirme but these be operations of Lavv proceeding from the dignity of the naturall person of the King for you shall never find that another Corporation vvhatsoever of a Bishop or Master of a Colledge or Major of London vvorketh any thing in Lavv upon the vvife or sonne of the Bishop or the Major And to conclude this point and vvithall to come neere to the case in question I will shew you where the naturall person of the King hath not onely an operation in the case of his wife and children but likewise in the case of his Subjects which is the very question in hand As for example I put this case
of England is highly to be commended For of this law there are two grounds of reason The one of equity The other of policy That of Equity was because the common people were in no fault but as the Scripture saith in a like case quid fecerunt oves iftoe It was the cowardise and disloyalty of their Governours that deserved punishmēt butwhat had these sheep done and therefore to have punish't them and deprived them of their lands fortunes had bin unjust That of policy was because if the law had forthwith upon the losse of the Countreyes by an accident of time pronounced the people for Aliens it had been a kind of Cession of their right and a diselaymer in them and so a greater difficulty to recover them And therefore we see the Statute which altered the law in this point was made in the time of a weake king that as it seemed despaired ever to recover his right and therefore thought better to have a little present profit by escheats then the continuance of his claime and the countenance of his right by the admitting of them to enjoy their inheritances as they did before The State therefore of this point being thus opened it resteth to prove our assertion that they were naturalized for the clearing whereof I shall need but to reade the authorities they be so direct and pregnant The first is the very text of the Statute of Praerogativa Regis Rex habebit escaetas de terris Normannorum cujuscunque feodi fuerint salvo servitio quod pertinet ad capitales dominos feodi illius hoc similiter intelligendum est si aliqua haereditus descendat alicui nato in partibus transmarinis cujus antecefsores fuerunt ad fidem Regis Franciae ut tempore Regis Iohannis non ad fidem Regis Angliae sicut contigit de Baronia Monumetae c. By which Statute it appeares plainly that before the time of King Iohn there was no colour of any Escheare because they were the kings Subjects in possession as Scotland now is but onely it determines the Law from that time forward This Statute if it had in it any obscurity it is taken away by two lights the one placed before it and th'other placed after it both authors of great credit the 〈◊〉 for antient th' other for late times The former is 〈◊〉 in his Cap. de exception 〈…〉 lib. 5. fol. 427. and his words are these Est etiam alia exceptie quae tenenti competitex persona petentis propter defectum Nationis quae dilatoria est nonperimit actionem ut si qnis alienigena qui fuerit ad fidem Regis Franciae actionem instituat versus aliquem qui fuerit ad fidem Regis Angliae tali nonrespondeatur saltem donec terrae fuerint communes By these words it appeareth that after the losse of the Provinces beyond the Seas the Naturalization of the Subjects of those Provinces was in no sort extinguished but onely was in suspence during time of warre and no longer for he saith plainly that the exception which we call plea to the person of Alien was not peremptory but onely dilatory that is to say during the time of war and untill there were peace concluded which hee tearmes by these words donec terrae fuerint communes which though the phrase seeme somewhat obscure is expounded by Bracton himselfe in his fourth booke fol. 297. to be of peace made and concluded whereby the Inhabitants of England and those Provinces might enjoy the profits and fruits of their lands in either place communiter that is respectively or as well the one as th'other so as it is cleere they were no Aliens in right but onely interrupted and debarred of Suites in the Kings Courts in time of Warre The authority after the Statute is that of Master Stamfords the best Expositor of a statute that hath bin in our law a man of reverend judgment excellent order in his writings his words are in his expositiō upon the branch of that statute which we read before By this branch it should appeare that at this time men of Normandy Gascoyne Guienne Anjou and Brittaine were inheritable within this Realme aswell as English-men because that they were sometimes Subjects to the Kings of England and under their Dominion untill K. Johns time as is aforesaid yet after his time those men saving such whose lands were taken away for treason were still inheritable within this Realme till the making of this Statute and in the time of peace betweene the two Kings of England and France they were answerable within this Realme if they had brought any action for their Lands and Tenements So as by these three authorities every one so plainly pursuing th' other we conclude that the subjects of Gascoyne Guienne Anjou and the rest from their first union by descent untill the making of the Statute of praerogativa Regis were inheritable in England and to be answered in the Kings Courts in all actions except it were in time of warre Nay more which is de abundante that when the Provinces were lost and disannexed and that the King was but King de jure over them and not de facto Yet neverthelesse the priviledge of naturalization continued There resteth yet one objection rather plausible to a popular understanding then any waies forcible in law or learning which is a difference taken between the Kingdome of Scotland and these Dutchies for that the one is a Kingdome and th' other was not so and therefore that those Provinces being of an inferiour nature did acknowledge our Lawes and Seales and Parliament which the Kingdome of Scotland doth not This difference was well given over by Mr. Walter for it is plaine that a Kingdome and absolute Dukedome or any other Soveraigne estate doe differ honore and not potestate For divers Dutchies and Countries that are now were sometimes Kingdomes and divers kingdomes that are now were sometimes Dutchies or of other inferiour Style wherein we neede not travaile abroad since we have in our owne state so notorious an instance of the Countrey of Ireland whereof King H. 8. of late time was the first that writ himselfe King the former Style being L. of Ireland and no more and yet Kings had the same authority before that they have had since and the same Nation the same marks of a Soveraigne State as their Parliaments their Armes their Coynes as they now have so as this is too superficiall an allegation labour upon And if any doe conceive that Gascoyne and Guyenne were governed by the Lawes of England First that cannot be in reason for it is a true ground that wheresoever any Princes Title unto any Countrey is by Law he can never change the Lawes for that they create his Title and therefore no doubt those Dutchies retained their owne Lawes which if they did then they could not be subject to the Lawes of England And next againe the fact or practize was otherwise as appeareth by all consent of Story and Record For those Dutchies continued governed by the Civill Law their tryalls by witresses and not by Jurie their lands Testamentary and the like Now for the colours that some have endeavoured to give that they should have beene subordinate to the government of England they were partly weake and partly such as make strongly against them for as to that that writs of Habeas corpus under the great Seale of England have gone to Gascoyne it is no manner of proofe for that the Kings writs which are mendatory and not writs of ordinary Justice may goe to his Subjects into any forraine parts whatsoever and under what Seale it pleaseth him to use and as to that that some Acts of Parliament have beene cited wherein the Parliaments of England have taken upon them to order matters of Gascoyne if those Statutes be well looked into nothing doth more plainly convince the contrary for they intermeddle with nothing but that that concerneth either the English Subjects personally or the territories of England locally and never the Subjects of Gascoyne for looke upon the Statute of 27. of Ed. 3. ca. 5. there it is said That there shall be no fore-stasting of Wines but by whom onely by English Merchants not a word of the Subjects of Gascoyne and yet no doubt they mighr be offenders in the same kind So in the sixt Chapter it is said That all Marchants Gascoyoes may safely bring Wines into what part it shall please them here now are the persons of Gascoynes but then the place whether◠into the Realme of England and in the 7. Chap. that erects the Ports of Burdeaux and Bayonne for the staple Townes of wine the Statute Ordaines that if any but who English Marchant or his Servants shall buy or bargaine other where his body shall be arrested by the Steward of Gascoyne or the Constable of Burdeaux true for the Officers of England could not catch him in Gascoyne but what shall become of him shall he be proceeded with within Gascoyne No but he shall be sent over into England into the Tower of London And this doth notably disclose the reason of that custome which some have sought to wrest the other way that custome I say whereof a forme doth yet remaine that in every Parliament the King doth appoint certaine Committees in the Upper-House to receive the Petitions of Normandy Guyenne and the rest which as by the former Statute doth appeare could not be for the ordering of the governments there but for the liberties and good usage of the Subjects of those parts when they came hither or via versa for the restraining of the abuses and misdemeanors of our Subjects when they went thither Wherefore I am now at an end For us to speake of the mischiefes I hold it not fit for this place left we should seeme to bend the Lawes to policy and not to take them in their true and naturall sense It is enough that every man knowes that it is true of these two Kingdomes which a good Father said of the Churches of Christ Si inseparabiles insuperabiles Some things I may have forgot and some things perhaps I may forget willingly for I will not presse any opinion or declaration of late time which may prejudice the liberty of this debate but ex dictis ex non dictis upon the whole matter I prove Judgement for the Plaintiffe