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.


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 hought 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 [Page 2] 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 fore­run 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 [Page 3] 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 [Page 4] 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, [Page 5] 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 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 [Page 6] 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 [Page 7] 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 [...]iri ad Cedeon Dominare nostri, tu et filij tui, quoniam servasti nos de manu Madian. And so [Page 8] 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 regnū? 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 [Page 9] 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 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 potest [...] 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 Salo [...] in A [...]h [...]m: for was E [...]iti [...] and [...] [Page 10] 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 [Page 11] 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) [...]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 [Page 12] (for he may be an Enemy) So the Law doth indu [...] 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 [Page 13] 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 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 [Page 14] 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 [Page 15] 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, i [...] 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 [Page 16] 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 [Page 17] 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 they be of English Parents, conti­nuing at that time, as liege Subjects to the King, and having done no act to forfeit the benefit of [Page 18] their allegeance are ipso facto naturalized. Nay if a man looke narrowly into the Law in this point, he shall find a consequence, that may seeme at the first strange, but yet cannot well be avoided; which is that it divers Families of English-men and women plant themselves at Middleborough or at Roane, or at Lysoone, and have issues, and their deseendents doe intermarry, amongst themselves without any inter­mixture of forraine blood; such descendents are na­turalized to all generations, for every generation is still of liege Parents, and therefore naturalized. So as you may have whole tribes, and lineages of English in forraine Countries.

And therefore it is utterly untrue that the Law of England cannot operate, of conferre naturalizati­on, but onely within the bounds of the Dominions of England.

To come now to their inferences upon Statutes. The firstis out of this Statute which J last recyted. In which Statute it is said, that in foure severall places, there are words; borne within the allegeance of England; or againe borne without the allegeance of England, which (say they) applies the allegeance to the Kingdome, and not to the person of the King. To this the answer is easie: for there is not trope of speech more familiar then to use the place of addi­tion for the person. So we say commonly the lyne of Yorke, or the lyne of Lancaster, for the lynes of the Duke of Yorke or the Duke of Lancaster.

So we say the possessions of Sommerset or War­mick intending the possessions of the Dukes of Som­merset, or Earles of Warmick. So we seeEarles signe, Salisbury, Northampton, for the Earles of Salisbury or [Page 19] Northampton. And in the very same manner, the Sta­tute speakes, allegeance of England, for allegeance of the King of England. Nay more if there had been no variety in the penning of that Statute, this collect - on had had a little more force, for those words might have beene thought, to have been used of pur­pose, and in propriety; but you may find in three o­ther severall places of the same Statute, Allegeange and obeysance of the King of England, and specially in the materiall and concluding place, that is to say, children whose Parents were at the time of their birth, at the faith and obeysance of the King of Eng­land, so that is manifest by this indifferent and indifferent use of both Phrases, the one proper, the other unproper, that no man can ground any inferēce upon these words without danger of cavillation.

The second Statute out of which they inferre, is a Statute made in 32. of H. 8. ca. touching the policy of strangers trades men within this Realme. For the Parliament finding, that they did eate the English­men out of trade, and that they entertained no Ap­prentizes, but of their o vne Nation, did prohibite that they should receive any. Apprentize, but the Kings Subjects. In which Statute is said, that in 9. severall places, there is to be found this context of words, Aliens [...] [...] of the Kings obedience; which is pregnant (say they) and doth imply that there bee Aliens borne within the Kings obedience. Touching this inference I have heard it said Q [...]i haeret in litera, baeret in cortice, but this is not worthy the name, of Cortex, it is but muscus [...], the mosse of the barke. For it is evident that the Statute meant to [Page 20] speake clearely and without equivocation, and to a common understanding. Now then there are aliens in common reputation & aliens in precise constru­ction ofLaw, The Statute then meaning not to com­prehend Irish-men, or Ge [...]sie-men, or Calize-men, for explanation sake, left the word alien might be extended to them in a vulgar acceptance, added those further words, borne out of the Kings obedience? Nay, what if we should say, that those words accor­ding to the received Lawes of Speech, are no words of difference or limitation, but of declaration or description of an alien, as if it had beene said with a videlicet, aliens; that is such as are borne out of the Kings obedience: they cannot put us from that con­struction. But sure I am, if the barke make for them, the pyth makes for us, for the Priviledge or liberty which the Statute meanes to deny to Aliens of en­tertaining Apprentizes is denyed to none, borne within the Kings obedience, call them Aliens or what you will. And therefore by their reason a post-Na­tus of Scotland shall by that Statute keepe what stranger Apprentizes he will, and so is put in the degree of an English. The third Statute out of which inference is made, is the Statute of 14. E. 3. ca. solo, which hath been said to be our very case, and I am of that opinion too, but directly the other way, there­fore to open the scope and purpose of that Statute. After that the title to the Crowne of France, was devolute to K. E. 3. & that he had changed his Stile, changed his Armes, changed his Seale, (as his Maje­stie hath done) the Subject of England (saith the Sta­tute) conceived a feare that the Realme of England might become subject to the Realme of France, or to the K. as K. of France. And I will give you the reasons [Page 21] of the double feare, that it should become subject to the Realme of France they had this reason of feare: Normandy had conquered England; Normandy was feudall of France, therefore because the superiour Seignery of France was now united in right with the Tenancy of Normandy, and that England, in regard of the conquest might be taken as a perquisite to Nor­mandy, they had propable reason to feare, that the Kingdome of England might be drawne to be subject to the Realme of France. The other feare that England might become subject to the K. as K. of France grew no doubt of this fore-sight, that the Kings of England might be like to make their mansion and seate of their estate in France, in regard of the Climate, wealth, and glory of that Kingdome; and thereby the Kingdome of England might be governed by the Kings mandates and precepts issuing, as from the King of France. But they will say what soever the occasion was, here you have the difference authorised of subjection to a K. gene­rally, and subjection to a King, as K. of a certaine King­dome, but to this I give an answer three-fold.

First, it preffeth not the question; for doth any man say that a Post-natus of Scotland is naturalized in Eng­land, because he is a subject of the King, as K. of Eng­land? No, but generally, because he is the K. Subject.

Secondly, the scope of this Law is to make a di­stinction between Crown, and Crown; But the scope of their argument is to make a difference betweene Crowne and person. Lastly, this Statute (as I said) is our very case retorted against them, for this is a direct Statute of separation, which pre­supposeth that the Common Law had made an u­nion of the Crownes in some degree, by vertue of the [Page 22] vnion in the Kings person [...] 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 Cōmon 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 Cōmon 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 fe [...]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 legeantiā 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. [Page 24] Pl. 25. 27. [...]. the Pryor of Ske [...]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 shalbe 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 shalbe 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 [Page 25] 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 theCrown, 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. [Page 25] The Lord Treasurer Paulet was Marqueffe of Win­chester, Lord 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 [Page 27] 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 [Page 28] 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, [Page 29] 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 [Page 30] 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 shalbe given when we come to it. But in this place it shall suffice to say, that the Minor proposition is false, that is, that the Lawes of England are not su­perinduced upon any Countrey by Conquest; but that the old Lawes remaine un till 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, & [Page 31] 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 [Page 32] 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 [Page 33] 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 [Page 34] subsequēt, remote, or not remote doth not alter the operatiō of law for the present. For that should be, as if in case of the Rent which you put, you should say, that in regard, that the rent maybe severed, it should be said, to be in esse in the meane time, and should be grantable, which is cleerely otherwise. And so in the principall cafe, if that should be (which God of his goodnesse forbid) cessante causa, cessat effectus, the benefit of naturalization for the time to come is dis­solved. But that altereth not the operation of the Law. Rebus sic stantibus. And therefore I conclude, that this difference is but a devise full of weaknesse and ignorance: and that there is one, and the same reason of naturalizing subjects by descent, and sub­jects by conquest, and that is the union in the per­son of the King; and therefore that the [...] of Scot­land is as cleere, as that of Ireland, and they that grant the one, cannot deny the other. And so I conclude the second part, touching confutation.

To proceed therefore to the prooses of our part, your Lordships cannot but know many of them must be already spent, in the answer which we have made to the objections. For corruptio unius, genera­tio alterius, holdes aswell in Arguments, as in Na­ture, the destruction of an objection begets a proofe. But neverthelefse, I will avoid all iteration, least I should seem either to distract your memories, or to abuse your patience; But will hold my selfe onely to these proofs, which stand substantially of them­selves, and are not intermixed with matter of confu­tation. I will therefore prove unto your Lordships, that the post-natus of Scotland is by the Law of [Page 25] England nat [...]rall, and ought fo to be adjudged by three courses of proofe.

  • 1. Bi [...]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, [Page 36] 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 [Page 37] 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 Law­givers, 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 [Page 39] 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 [Page 40] 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 execurion 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, [...]pus corporatum in corpore naturali, & corpus natu­rale in corpore corporato. The like I find in the great [Page 41] 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 [Page 42] 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 [Page 43] 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 English­mans 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 [Page 44] 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 rever 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 ea [...]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 [Page 45] 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 [Page 46] 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 [Page 25] 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. [...]. 10. which is expresse decision of the point in question. The words are, Item, (upon the Petition put 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 [Page 48] 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 Normādy, because it will be said, that the difference of countryes ac­cruing by conquest, from countryes annexed by des­cent in matter of Communication of priviledges [Page 49] 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, [...]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 cōmission, 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; [Page 24] 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 [Page 29] 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. [Page 52] [...] [Page 53] [...] [Page 52] 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 & [Page 53] 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. [Page 28] 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 [Page 55] 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, [Page 58] 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.

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