potestatis est pleuitudo tempest at is And although the King in his Person be Solutus Legibus yet his Acts and Grants are limited by Law and we argue them every day But I demand Do these offices or operations of law evacuate or frustrate the originall submission which was naturall or shall it be said that all allegiance is by law No more than it can be said that potest potestâ—â— patris the power of the Father over the Child is by Law and yet no doubt Lawes do diversely define of that also the Law of some Nations having given Fathers power to put their Children to death others to sell them thrice others to disinherit them by testament at pleasure and the like Yet no man will affirm that the obedience of the child is by law though lawes in some points doe make it more positive And even so it is of allegiance of subjects to hereditary Monarches which is corroborate and confirmed by law but is the worke of the law of nature And therefore you shall finde the observation true and almost generall in all states that their law-givers were long after their first Kings who governed for a time by naturall equity without law So was Theseus long before Saloâ— in Aâ—hâ—m for was Eâ—â—itiâ—â— and 〈◊〉 long before Lycurgus in Sparta So was Romulus long before the Decemviri And even amongst our selves there were more ancient Kings of the Saxons and yet the Lawes ran under the name of Edgars Lawes And in the refounding of the Kingdome in the person of William the Conqueror when the Lawes were in some confusion for a time a man may truly say that King Edward the first was the first Law-giver who enacting some Laws and collecting others brought the Law to some perfection And therefore I will conclude this point with the Style which divers Acts of Parliaments do give unto the King which terme him very effectually and truly Our Naturall Sove raigne Liege Lord And as it was said by a principall Judge here present when he served in another place and question was moved by some occasion of the title of Bulleins Lands That he would never allow that Queene Elizabeth I remember it for the efficacy of the phrase should bee a Statute Queene but a Common Law Queen So surely I shall hardly consent that the King shall be esteemed or called only Our Rightfull Soveraigne or Our Lawfull Soveraigne but our Naturall Liege Soveraigne As Acts of Parliament speake For as the common Law is more worthy than the Statute Law So the Law of Nature is more worthy than them both Having spoken now of the King and the Law it remaineth to speake of the priviledge and benefit of Naturalization it selfe and that according to the rules of the Law of England Naturalization is best discerned in the degrees whereby the Law doth mount and ascend thereunto For it seemeth admirable unto mee to consider with what a measured hand and with how true poportions our Law doth impart and conferre the severall degrees of this benefit The degrees are foure The first degree of persons as to this purpose â—hat the Law takes knowledge of is an Alien Enemy that is such a one as is borne under the obeisance of a Prince or State that is in hostility with the King of England To this person the Law giveth no benefit or protection at all but if hee come into the Realme after war proclaimed or war in fact he comes at his own perill hee may be used as an enemy For the Law accounts of him but as the Scripture saith as of a Spye that comes to see the weaknesse of the land And so it is 2. of Ric. the 3 fo. 2. Neverthelesse this admitteth a distinction For if he come with safe conduct otherwise it is For then he may not be violated either in person or goods But yet hee must fetch his Justice at the fountaine head for none of the Conduit pipes are open to him he can have no remedy in any of the Kings Courts but he must complain himselfe before the Kings Privy Councell There he shall have a proceeding summary from houre to houre the cause shall be determined by naturall equity and not by rules of Law and the decree of the Councell shall be executed by ayde of the Chauncery as is 13. Edw. 4. An this is the first degree The second person is an Alien friend that is such a one as is borne under the obeisance of such a King or State as is confederate with the King of England or at least not in war with him To this person the Law allotteth this benefit that as the Law accounts that the hold it hath over him is but a tranfitory hold for he may be an Enemy So the Law doth induâ— him but with a transitory benefit that is of moveable goods and personall actions But for free-hold or lease or actions reall or mixt he is not inabled except it be in auter droit And so it is 9 E. 4 fo. 7. 19. E. 4 fo. 6. 5. Ma. and divers other books The third person is a Denizon using the word properly for sometime it is confounded with a naturall borne subject This is one that is but Subditus insitivus or adoptivus and is never by birth but only by the Kings Charter and by no other meane come he never so young into the Realme or stay he never so long Mansion or Habitation will not indenise him no nor swearing obedience to the King in a Leete which doth in-law the subject but only as I said the Kings grace and gift To this person the Law giveth an ability and capacity abridged not in matter but in time And as there was a time when hee was not subject So the Law doth not acknowledge him before that time For if he purchase free-hold after his Denization he may take it but if he have purchased any before he shall not hold it So if hee have children after they shall inherit but if hee have any before they shall not inherit So as he is but priviledged à parte post as the Schoole-men say and not à parte ante The fourth and last degree is a Naturall borne subject which is evermore by birth or by Act of Parliament and he is compleate and entire For in the Law of England there is nil ultra there is no more subdivision or more subtile division beyond these And therein it seemeth to mee that the wisdome of the Law as I said is to be admired both ways both because it distinguisheth so far and because it doth not distinguish further For I know that other Lawes do admit more curious distinction of this priviledge For the Romanes had besides 〈◊〉 Civitatis which answereth to Naturalization Ius Suffragii For although a man were naturalized to take lands and inheritance yet he was not inabled to have a voyce at passing of Laws or at election of Officers And yet further they have Ius
severall families or Ilneages of people doe submit themselves to one line Imperiall or Royall the submission is more naturall and simple which afterwards by lawes subsequent is perfected and made more formall but that is grounded upon nature That this is so it appeareth notably in two things the one the platformes and patternes which are found in nature of Monarchies the original submissions their motives and occasions The platformes are three The first is that of a father or chiefe of a family who governing over his wife by prerogative of Sexe over his children by prerogative of age and because he is author unto them of being and over his servants by prerogative of vertue and providence for he that is able of body and improvident of mind is Natura servus that is a very modell of a King So that is the opinion of Aristotle Lib. 3. Pol. Cap. 14 where he saith Verum autem regnum est cum penes unum est rerum summa potestas quod regnum procurationem familia imitatur And therefore Lyeurgus when one counselled him to dissolve the kingdome and to establish another forme of estate he answered Sir begin to doe that which you advise first at home in your owne house noting that the chief of a family is as a King and that those that can least endure Kings abroad can be content to be Kings at home this is the first platforme which we see is meerely naturall The second is that of a Shepheard and his flocke which Zenophon saith Cyrus had ever in his mouth For shepheards are not owners of the sheepe but their office is to feede and governe no more are Kings proprietaries or owners of the people for God is sole owner of people The nations as the Scripture saith are his inheritance But the office of Kings is to governe maintaine and protect people And that is not without a mystery that the first King that was instituted by God David for Saul was butan untimely fruit was translated from a shepheard as you have it in the 78. Psal. Et elegit David servum suum de gregibus ovium sustulit eum pascere Iacob Servum suum Israel hereditatem suam This is the second platforme a worke likewise of nature The third platforme is the government of God himselfe over the world whereof lawfull Monarchies are a shadow And therefore both amongst the heathen and amongst the Christians the word sacred hath beene attributed unto Kings because of the conformity of a Monarchy with the divine Majesty never to a Senate or people And so you finde it twice in the Lord Cookes Reports once in the second booke the Bishop of Winchesters case and his first booke Cawdries case and more anciently in the 10. of H. 7. fo. 18. Rex est persona mixta cam Sacerdote an attribute which the senate of Venice or a Canton of Swisses can never challenge So we see there be presidents or platformes of Monarchies both in Nature and above Nature even from the Monarch of heaven and earth to the King if you will in an hive of bees And therefore other States are the creatures of the law and this State onely subsisteth by Nature For the originall submissions they are foure in number I will briefly touch them The first is Paternity or Patriarchy which was when a family growing so great as it could not containe it selfe within one habitation some branches of the descendents were forced to plant themselves into new families which second families could not by a naturall instinct and inclination but beare a reverence and yeeld an obeyseance to the eldest line of the ancient family from which they were derived The second is the admiration of vertue or gratitude towards merit which is likewise naturally infused into all men Of this Aristotle putteth the case well when it was the fortun of some one man either to invent some Arts of excellent use towards mans life or to congregate people that dwelt scattered into one place where they might cohabite with more comfort or to guide them from a more barrenland to a more fruitful or the like Vpon these deserts and the admiration and recompence of them people submitted themselves The third which was the most usuall of all was Conduct in warre which even in nature induceth as great an obligation as Paternity For as men owe their life and being to their Parents in regard of generation So they owe that also to Saviours in the warres in regard of preservation And therefore we finde in the 18. Chap. of the booke of Iudges verse 22. Dixerunt omnes â—iri ad Cedeon Dominare nostri tu et filij tui quoniam servasti nos de manu Madian And so we reade when it was brought to the eares of Saul that the people sung in the streets Saul hath kild his thousand David his ten thousand of enemies he said straightwaies Quid ei superest nisi ipsum regnuÌ„ for whosoever hath the military dependance wants little of being King The fourth is an enforced submission which is Conquest whereof it seemed Nymrod was the first president of whom it is said Ipse caepit potens esse in terra et erat robustus venator coram Domine And this likewise is upon the same root which is the saving or gift as it were of life and being for the Conqueror hath power of life and death over his Captives and therefore where he giveth them themselves he may reserve upon such a gift what service and subjection he will All these foure submissions are evident to be naturall and more ancient than law To speake therefore of Law which is the second part of that which is to be spoken of by way of inducement Law no doubt is the great Organ by which the soveraigne power doth move and may be truly compared to the sinewes in a naturall body as the Soveraignty may be compared to the spirits for if the Sinewes be without the spirits they are dead and without motion If the spirits move in weake sinewes it causeth trembling so the lawes with out the Kings power are dead the Kings power except the lawes be corroborate will never move constantly but be full of staggering and trepidation But towards the King himself the law doth a double office or operation The first is to entitle the King or designe him and in that sense Bracton saith well Lib. 1. fol. 5. and Lib. 3. fol. 107. Lex facit quod ipse sit Rex that is it defines his title as in our law that the kingdome shall goe to the issue female That it shall not be departable amongst daughters That the halfe bloud shall not be respected and other points differing from the rules of common inheritance The second is that whereof we need not feare to speake in good and happy times such as these are to make the ordinary power of the King more definite or regular for it was well said by a Father plenitudo
Petitionis or Ius Honorum For though a man had voyce yet he was not capable of honour and office But these be the devises commonly of popular or free estates which are jealous whom they take into their number and are unfit for Monarchies But by the Law of England the subject that is naturall borne hath a capacity or ability to all benefits whatsoever I say capacity or ability But to reduce Potentiam in actum is another case For an Earle of Ireland though he be naturalized in England yet hath so voyce in Parliament of England except he have either a call by Writ or a creation by Patent but he is capable of either But upon this quadripartite division of the ability of persons I doe observe to your Lordships three things being all effectually pertinent to the question in hand The first is that if any man conceive that the reasons for the Post-nati might serve as well for the Ante-nati He may by the distribution which wee have made plainly perceive his error For the Law looketh not back and therefore cannot by any matter ex post facto after birth after the state of the birth wherein no doubt the Law hath a grave and profound reason which is this in few words Nemo subito fingitur aliud est nasci aliud fieri Wee indeed more respect and affect thse worthy Gentlemen of Scotland whose merits and conversations we know but the Law that proceeds upon generall reason and looks upon no mens faces affecteth and priviledgeth those which drew their first breath under the obeisance of the King of England The second point is that by the former distribution it appeareth that there be but two conditions by birth either Alien or naturall borne nam tertium penitus ignor amus It is manifest then that if the Post nati of Scotland be not naturall borne they are alien born and in no better degree at all than Flemmings French Italians Spanish Germans and others which are all at this time Alien friends by reason his Majesty is in peace with all the World The third point seemeth to mee very worthy the consideration which is that in all the distribution of persons and the degrees of abilities or capacities the Kings Act is all in all without any manner of respect to Law or Parliament For it is the King that makes an Alien enemy by proclaiming a war wherewith the Law or Parliament intermeddles not So the King only grants Safe-conducts wherewith Law and Parliament intermeddle not It is the King likewise that maketh an Alien friend by concluding a peace wherewith Law and Parliament intermeddle not It is the King that makes a Denizon by his Charter absolutely of his prerogative and power wherewith Law and Parliament intermedle not And therefore it is strongly to be inferred that as all these degrees depend wholly upon the Kings act and no wayes upon Law or Parliament So the fourth although it cannot by the Kings Patent but by operation of Law yet that the law in that operation respecteth onely the Kings person without respect of subjection to Law or Parliament And thus much by way of explanation and inducement which being all matter in effect confessed iâ— the strongest ground-worke to that which is contradicted or controverted There followeth the confutation of the Arguments on the contrary side That which hath beene materially objected may be reduced to foure heads The first is that the priviledge of Naturalization followeth Allegeance and that allegeance followeth the Kingdome The second is drawne from that common ground Cum duo jura concarrunt in una persona aquum est ac si essent in duobus a rule the words whereof are taken from the Civill Law but the matter of it is received in all lawes being a very line or rule of reason to avoyd confusion The third consisteth of certaine inconveniencies conceived to ensue of this generall naturalization ipso jure The fourth is not properly an objection but a preoccupation of an objection or proofe on our part by a distinction devised betweene Countries devolute by descent and acquired by Conquest For the first it is not properly to observe that those which maintaine this new opinion whereof there is altum Silentium in our bookes of Law are not well agree in what forme to utter and expresse that for some said that allegeance hath respect to the Law some to the Crowne some to the Kingdome some to the body politique of the King so there is confusion of tongues amongst them as it commonly commeth to passe in opinions that have their foundations in subtilty and imagination of mans wit and not in the ground of nature But to leave their words and to come to their proofes they endeavour to prove this conceipt by three manner of proofes First by reason then by certaine inferences out of Statutes and lastly by certaine booke-cases mentioning and reciting the formes of pleadings The reason they bring is this That Naturalization is an operation of the Law of England and so indeed it is that may bee the true genus of it Then they adde that granted that the Law of England is of force onely within the Kingdome and Dominions of England and cannot operate but where it is in force But the Law is not in force in Scotland therefore that cannot endure this benefit of Naturalization by a birth in Scotland This reason is plausible and sensible but extreamely erronious For the Law of England for matters of benefit or forfeitures in England operateth over the World And because it is truely said that Respublica continetur poena praemio I will put a case or two of either It is plaine that if a Subject of England had conspired the death of the King in forraine parts it was by the Common Law of England treason How prove I that By the Statute of 35. of H. 8. ca. 2. wherein you shall find no words at all of making any new case of treason which was not treason before but onely of ordaining a forme of triall Ergo it was treason before And if so then the Law of England workes in forraine parts So of contempts if the King send his Privy Seale to any Subject beyond the Seas commanding him to returne and hee disobey no man will doubt but there is a contempt and yet the fact enduring the contempt was committed in forraine parts Therefore the Law of England doth extend to Acts or matters done in forraine parts So of reward Priviledge or benefit wee need seeke no other instance then the instance in question for I will put you a case that no man shall deny where the Law of England doth worke and conferre the benefit of Naturalization upon a birth neither within the Dominions of the Kingdome nor King of England By the Statute of 25. E. 3. which if you will beleeve Hussey is but a Declaration of the Common Law all children borne in any parts of the World if
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
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
can a Scottishman who is a Subject to the naturall person of the King and not to the Crowne of England can a Scottishman I say be an enemy by the Lavv to the Subjects of England or must he not of necessity if he should invade England be a Rebell and no enemy not onely as to the King but as to the Subject Or can any Letters of Marte or reprisall be granted against a Scottishman that should spoyle an English-mans goods at Sea and certainly this case doth presse exceeding neere the principall case for it prooveth plainly that the naturall person of the King hath such a communication of qualities with his body politique as it makes the Subjects of either Kingdomes stand in another degree of privity one towards the other then they did before And so much for the second proofe For the five Acts of Parliament which I spoke of which are concluding to this question The first of them is that concerning the banishment of Hugh Spencer in the time of King Ed. 2. In which act there is contained the charge and accusation whereupon his exile proceeded One Article of which charge is set downe in these words Homage and Oath of the Subject is more by reason of the crowne then by reason of the person of the King So that if the King doth not guide himselfe by reason in right of the Crowne his lieges are bound by their oath to the Crowne to remoove the King By which act doth plain'y appeare the perilous consequence of this distinction concerning the person of the King and the Crowne And yet J doe acknowledge Justice and ingeruously a great difference betweene that assertion and this which is now maintained for it is one thing to make things distinct another thing to make them separable Aliud est distinctio aliud separatio and therefore J assure my selfe that those that now use and urge that diftinction dee as firmely hold that the subjection to the Kings person and to the Crowne are inseparable though distinct as I doe And it is true that the poyson of the opinion assertion of Spencer is like the poyson of a Scorpion more in the taile then in the body For it is the inference that they make which is that the King may be deposed or removed that is the treason and dislayalty of that opinion But by you leave the body is never a whit the more wholesome meare for having such a tayle belonging to it therefore we see that is Locus lubricus an opinion from which a man may eaâ—ly slide into an absurdity But upon this act of Parliament I will onely note one circumstance more and so leave it which may adde authority unto it in the opinion of the wisest and that is that these Spencers were not ancient nobles or great Patriots that were charged and prosecuted by upstarts and favourites for then that might be said that it was but the action of some flatterers who use to extoll the power of Monarches to be infinite but it was contrary a prosecution of those persons being favourites by the Nobility so as the Nobility themselves which seldome doe subscribe to the opinion of an infinite power of Monarches Yet even they could not endure but their blood did rise to heare that opinion that subjection is owing to the Crowne rather then to the person of the King The second Act of Parliament which determined this case is the act of recognition in the first yeare of his Majestie wherein you shall find that in two severall places the one in the Preamble the other in the body of the Act the Parliament doth recognize that these two Realmes of England and Scotland are under one Imperiall Crowne The Parliament doth not say under one Monarchie or King which mought referre to the person but under ono Imperiall Crowne which cannot be applyed but to the Soveraigne power of Regiment comprehending both Kingdomes And the third act of Parliament is the Act made in the fourth yeare of his Majesties Raigne for the abolition of hostile Lawes wherein your Lordships shall find likewise in two places that the Parliament doth acknowledge that there is an union of these two Kingdomes already begun in his Majesties person So as by the declaration of that act they have not onely one King but there is an union in inception in the Kingdomes themselves These two are Judgements in Parliament by way of declaration of Law against which no man can speake And certainly these are righteous and true Iudgements to be relyed upon not onely for the authority of them but for the verity of them for to any that shall well and deeply weigh the effects of Law upon this conjunction it cannot but appeare that although partes integrales of the Kingdome as the Philosophers speake such as the Lawes the Officers the Parliament are not yet commixed yet neverthelesse there is but one and the selfe-same fountaine of soveraigne power depending upon the ancient submission whereof I spake in the beginning and in that sense the Crownes and the Kingdomes are truly said to be united And the force of this truth is such that a grave and learned Gent. that defended the contrary opinion did confesse thus farre That in ancient times when Monarchies as he said were but heapes of people without any exact forme of policy that the Naturalization and communication of Priviledges did follow the person of the Monarch But otherwise since States were reduced to a more exact forme So as thus farre we did consent but still I differ from him in this that those more exact formes wrought by time and custome and Lawes are neverthelesse still upon the first foundation and doe serve onely to perfect and corroborate the force and bond of the first submission and in no sort to disanullor destroy it And therefore with these two acts doe J likewise couple the Act of 14. Ed. 3. which hath beene alleadged of the other side For by collating of that Act with this former too the truth of that we affirme will the more evidently appeare according unto the rule of reason Opposita juxta se posita magis elucescunt That act of 14. is an act of separation These two Acts formerly recited are Acts tending to union This Act is an act that maketh a new Law it is by the words of grant and establish these two Acts declare the common law as it is being by words of Recognition and Confession And therefore upon the difference of these lawes you may fubstantially ground this position That the Common-law of England upon the adjunction of any Kingdome unto the King of England doth make some degree of union in the Crownes and Kingdomes themselves except by a speciall Act of Parliament they be dissevered Lastly the 5. Act of Parliament which I promised is the Act made in the 42. of E. 3. cap. â— 10. which is expresse decision of the point in question The words are Item upon the Petition put