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
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
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
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