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
in some degree by vertue of the vnion in the Kings person â— if this statute had 〈◊〉 beene made to stop crosse the course of the common Law in that point as if Scotland now should be suitors to the King that an Act might passe to like effect and upon like feare And therefore if you will make good your distinction in this present case shew us a Statute for that But I hope you can shew no Statute of separation betweene England and Scotland And if any man say that this was a Statute declaratory of the CoÌ„mon Law he doth not marke how that is penned for after a kind of Historicall declaration in the Preamble that England was never subject to France the body of the Act is penned thus The King doth grant and establish which are words meerly introductive novae legis as if the King gave a Charter of Franchise and did invest by a Donative the Subjects of England with a new Priviledge or exemption which by the CoÌ„mon Law they had not To come now to the booke-cases which they put which I will couple together because they receive one joynt answere The first is 42. of E. 3. fo. where the booke saith exception was taken that the plaintife was borne in Scotland at Rosse out of the allegeance of England The next is 22. H. 6. fo. 38. Adrians Case where it is pleaded that a woman was borne at Burgis out of the allegeance of England The third is 13. Eliz. Dyer fo. 300 where the case begins thus Doctor Story qui notorie dignoscituresse subditus regni Angliae In all these three say they that is pleaded that the party is subject of the Kingdome of England and not of the King of England To these bookes I give this answer that they be not the Pleas at large but the words of the Reporter who speakes compendiously and narrative and not according to the solemne words of the pleading If you find a case put that it is pleaded a man was seized in Fee simple you will not inferre upon that that the words of the pleading were in feâ—do simplici but sibi haeredibus suis But shew mee some president of a pleading at large of Natus sub legeantia Regni Angliae for whereas Mr. VValter said that pleadings are variable in this point he would faine bring it to that but there is no such matter For the pleadings are constant and uniforme in this point they may vary in the word fides or legeantia or obedientia and some other circumstances but in the forme of Regni and Regis they vary not neither can there as J am perswaded be any one instance shewed forth to the contrary See 9. Eliz. 4. Baggots Assize f. 7. where the pleading at large is entred in the booke There you have alienigena natus extra legeantiam domini Regis Angliae See the presidents in the Booke of Entries Pl. 7. and two other places for there be no more and there you shall find still sub legeantia domini Regis or extra legeantiaÌ„ Domini Regis And therefore the formes of pleading which are things so reverend and are indeed towards the Reasons of the Law as Palma and Pugnus conteyning the Reason of the Law opened or unfolded or displayed they makeall for us And for the very words of Reporters in bookes you must acknowledge and say Ilicet obruimur numera for you have 22 Ass. Pl. 25. 27. 〈◊〉 the Pryor of Skeâ—â—es case Pl. 48. 14. H. 4. f. 19. 3. H. 6. f. 35. 6. H. 8. in my Lord Dyer fol. 2. In all these bookes the very words of the Reporters have the allegeance of the King and not the allegeance of England And the booke in the 24. of Eltz. 3. which is your best booke although while it is tossed at the Bar you have sometimes the word allegeance of England yet when it comes to Thorpe chiefe Iustice to give the rule he faith we will be certified by the Role whether Scotland be within the allegeance of the King Nay that further forme of pleading beateth downe your opinion That it sufficeth not to say that he is borne out of the allegeance of the King and stay there but he must shew in the affirmative under the allegeance of what King or state he was borne The Reason whereof cannot be because it may appeare whether he be a friend or an enemy for that in a reall action is all one not it cannot be because issue shal be taken thereupon for the issue must arise on the other side upon indigena pleaded and traversed And therefore it can have no other reason but to apprise the court more certainly that the countrey of the birth is none of those that are subject to the King As for the tryall that it should be impossible to de tryed I hold it not worth the answering for the ovenire facias shall goe either where the naturall birth is laid although it be but by fiction or if it be laid according to the truth it shal be tryed where the action is brought otherwise you fall upon a maine Rock that breaketh your Argument in pieces for how should the birth of an Irish-man be tryed or of 2 Gersie man Nay how should the birth of a subject be tryed that is borne of English Parents in Spain or Florence or any part of the world for to all these the like objection of tryall may be made because they are within no Counties and this receives no answer And therefore I will now passe on to the second maine Argument It is a rule of the Civill Law say they cum duo jura c. when two rights doe meete in one person there is no confusion of them but they remain still in eye of law distinct as if they were in severall persons and they bring examples of one man Bishop of two Seas or one person that is Rector of two Churches They say this unity in the Bishop or the Rector doth not create any privity between the Parishioners or Dioceseners more then if there were severall Bishops or severall Parsons This rule I allow as was said to be a Rule not of the Civill Law onely but of common reason but receiveth no forced or coyned but a true and sound distinction or limitation which is that it evermore faileth and deceiveth in cases where there is any vigor or operation of the naturall person for generally in coporations the naturall body is but suffulcimentum corporis corporati it is but as a stock to uphold and beare out the corporate body but otherwise it is in the case of the Crown as shall be manifestly proved in due place But to shew that this rule receiveth this distinction I will put but two cases The statute of the 21. Hen. 8. ordaineth that a Marquesse may retaine sixe Chaplaines qualified a Lord Treasurer of England foure a Privie Counsellour three The Lord Treasurer Paulet was Marqueffe of Winchester Lord
into Parliament by the Commons That Infants borne beyond the Seas in the Seignories of Callice and elsewhere within the lands and Seignories that pertain to our Soveraign Lord the King beyond the Seas bee as able and inheritable of their heritage in England as other Infants borne within the Realme of England it is accorded that the Common-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
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