therefore, whereas the rule for aliens is this, | that those born within the kings allegiance are subjects, and those born out of his allegiance are aliens, it is manifest, that Scots born in Scotland, since the king of England was king of England and Scotland both, are not born out of the kings allegiance, and so not aliens, but subjects, and so to be accounted in England. For further proof of this, the lord Cook shewed statutes, book-cases and pleadings. 42 E. 3. cap. 10, that the commons desired in ration of the law, that the kings children wheresoever born are inheritable in England. The 2 is a constitution particular for some named, and which the king shall name, which were born beinherit in England. The 3 is a new law, that children from henceforth born out of the legiance of the king, whose fathers and mothers at the time of their birth be and shall be at the faith and of the allegiance of the king of England, shall inherite in England, &c. Out of this they did infer, that the third ordinance only did touch the point now in question; which ordinance nevertheless came not to the question proposed; for the ordinance is for persons born beyond seas, and out of the kings legiance, whose parents are English; whereas our question is for persons born in Scotland, which is within the faith and allegiance of the king, and so much the odds is, as the words import, viz. out of the allegiance and within the allegiance. So as that statute directs not this controversy; and therefore it must be the common law that doth it, whereto the statute of 42 E. 3. doth referr concerning those born at Callis, and other seigniories beyond seas, that pertain to the king: which persons having been ever expounded to inherit in England, it must needs be taken, that they inherit by the common law, and not by statute. 28 H. 6, cap. 5, against extortions used by searchers amongst merchants, the merchants of Gascoigne, Guyen, Ireland and the Isles, are called the kings liege people. For statutes prerogativa regis cap. 12. which was made in the 17 year of king Edward the second, and is a declaration of the prerogative before, wherein it is declared, that the king was | to have the escheats of the lands of the Nor-giance of England. The 1 ordinance is a declamands, and all others born in parts beyond seas, whose antecessors were of the faith or loyalty of the king of France, and not of the king of England; as it happened of the barony of Monumeta, after the death of John D. Monumeta,yond seas, out of the legiance of England, to whose heirs were of Brittain and elsewhere. By which declaration the judges did infer, that out of the allegiance, and within the allegiance of the king (fides being to be understood allegiance) maketh the oddes between an alien and a denizen, and not the place of birth in England, or without England; for it is declared, that the king should have the escheats of such as were born in parts beyond seas, and whose parents were of the allegiance of the king of France, and not of the allegiance of the king of England. So that although his birth were out of the bounds of the kingdome of England and out of the reach and extent of the laws of England, yet if it were within the allegiance of the kings of England, the king was not to have his escheat as an alien, as at this time divers places that were within the limits of France were in subjection to the kings of England. And for the instance of the barony of Monumeta, they shewed that king H. 2 had four sons, Henry, Richard, Jeffrey, and John, that Jeffrey was married to the heire of Brittain, and was murthered by John, in which time the case of Monumeta happened, Brittain being not within the allegiance of the king of England, by that marriage of the king's third son. They shewed that it was not material, whether a kingdome or dukedome came to the allegiance of the king of The books and judgments cited by the judges, England, nor whether by marriage or conquest; were first 27 E. 3. in the book of assizes the for many dukedoms were sometimes kingdoms, 48 plea, the case of the prior of Shels, who be and kingdoms were but dukedoms, as Castile at ing a prior alien, and his temporalties being the first but an earldom, now a kingdom; little seised in time of war, shewed that he was not Brittain once a kingdom, then after and now a an alien, for that he was born in Gascoigne, dukedom; Ireland a dukedom, now a kingdom. within the legiance of the king; which plea was But the matter of difference is, whether they be found true by verdict, and thereupon his temfree and divided states in their laws and govern-poralties were restored. And then the same ment, and so were both these dukedoms of Aquitane, Gascoigne, Guyen, &c. which have been so much insisted upon, and so is Scotland, and yet all under one allegiance and faith to one king: which unity and allegiance to one king, taketh away the rule of alien born from them all, howsoever they were united, be it by marriage or conquest. And yet for Gascoigne and Aquitane, it came by marriage and descent, as Scotland. The next statute is the statute of case came again in question in the Common Place in a quare impedit, because in his restitution he had no special words of advowsons, whether the king might not present to the advowsons of the priory notwithstanding the restitution, for that also the restitution was, that the king of his grace did restore, &c. So it was of grace, not of right. But the book is, that the king should not present; and the reason alleadged, because the seasure was by wrong, the land, to the end a trial may be had by jury, which is not but in England; neverthelesse you may give in evidence the making of it in Ireland or the Isles. So is the case of 13 II. 4. pla. 10. [Fitz. Trial pla. 92.] for an obligation made in Gascoigne. And so is 32 H. 6. fo. 26. in debt prior being no alien, and so a restitution in that the other part; for so if a deed be made in Irecase, by which the king doth not give but do land or in Gascoigne, or in the isles, you must right, needs not contain special mention of ad-assigne the making of it in some county of Engvowsons; neither the recital of the kings grace could escape the justice of the court examining the cause, to say it was not of right. For concurrence with this book, they cited the case of 11 H. 4. fo. 26, that two husbands and their wives parceners brought an assize, and then were summoned and severed: the tenant plead-upon a bond made in the bishoprick of Durham ed to her that was severed, that her husband was an alien, and born out of the realm, and all the legiance, and not made denizen: but in the end in respect of the severance, and that the plea was in disablement of him that was severed, the writt was awarded good. Yet the note special of the case is the manner of the plea, viz. alien born out of the realm, and all the allegiance: whereof it is inferred that allegiance is further then the realm, and not confined to the circuit of the laws of the realm. 14 H. 4. fo. 19. b. one challenged a juror for that he was an alien, and the manner of his challenge is, that he was not a liege to the king, because he was born out of his legiance, and shewed that he was a Flemming; and the triers found that he was born in Flanders, but had lived of a child in England, and was sworn to the king in a leet: neverthelesse the court would not allow him to be sworn. But the note of the case is, the manner of the challenge, viz. not a liege to the king, because he was born out of his legiance. So Littleton in his chapter of villenage sheweth him to be an alien that is born out of the kings allegiance. And this distinction of allegiance quatenus king of England, and quatenus king of Scotland, or quatenus duke of Ireland, Aquitane, Gascoigne, &c. is never heard of in the books of our law. For pleadings they shewed the president in the book of entries, to be, that he that disableth an alien must alledge affirmatively, that he is an alien; and yet that sufficeth not, but he must alledge further that he was born extra obedientiam domini regis; and not that alone, but also | he must assigne a place where he was born infra obedientiam of some other king. As in 9 E. 4. fo. 7, in the assize by Bagot of the office of clerk of the crown in the Chancery, the tenant pleaded, that Bagot was an alien in this manner, dicit quod idem Johannes Bagot est alienigena genitus extra ligeanciam domini regis Angliæ, 'viz. apud Pontoys infra regnum Franciæ sub ⚫ obedientia Caroli nuncupantis se regem Franciæ, adversarii et magni inimici domini regis Angliæ. Which course of pleading cannot be held with those of Scotland; for that Scotland is not out of the kings allegiance, neither is the king of Scots enemy to the king of England, but he is also king of England, whereof both nations do and must take notice. And whereas it hath been urged that the trial of an alien must be within England, so that he which will destroy the plea of an alien against himself must assigne a place in England of his birth, and cannot assigne a place in Scotland; this is easily answered, and proveth nothing on | being a county palatine; and there the reason of this case debated, and Brown citeth it to he adjudged, that if the defendant alledge that the plaintif is a Scot born at St. Johns town in Scotland, out of the legiance, this is a trial where the writ is brought; but if the plaintif will reply, that he was born at London within the allegiance, the defendant must rejoyn, that the plaintif was born at St. Johns town in Scotland, without that, that he was born in London, and the issue shall be tried in London. So are affirmative issues allowed for necessity of trial; but evidence of his birth in any place within the kings dominions is sufficient to maintain the issue, although for form of pleading it be laid to be at London. In which case of 13 H. 4. it was put by Ireby, that a liegman of England was killed by another liegman of England in Scotland, and his wife brought her appeal in England in the court of the lord constable of England. Then the judges examined what should be given to the Scots, if they should be naturalized. First, they being not enemies, if they be aliens, are to be protected in their bodies and goods, and may bring personal actions. But if they buy land, the king, if he will, may seize it. But for dignities of honor, or voices in parliament as barons, Scotchmen cannot have in England, so long as the laws stand distinct. And therefore they cited the case of 11 E. 3. titulo briefe 473. where the writ was brought against the earl of Richmond, who alleadged, that he was duke of Brittaine, and not so named in the writ, and prayed that the writ might abate; but the judges allowed not his plea, because the dukedom of Brittaine is a forraigne dignity, of which we take no notice in England. Yet Edmond Baliol assigning the same cause in abatement of a writ, for that he was not named king of Scots, the exception was held good; for that a king is in notice of all countries, and so is a knight, but not barons, earldoms, dukedoms and the like. Neverthelesse 39 E. 3. fo. 35. en title de briefe 517. a writ was abated for not naming the defendant earle of Angus, although it be a dignity in Scotland: but the reason is shewed to be, for that he had alway a writ to attend at the parliament of England. And by this, the judges said, that the 9th objection being matter of inconvenience in places of honour was answered with this addition, that no naturalizing could make them barons of parliament of England for their dignities in Scotland, neither did naturalizing give any man a place in parliament, except he were chosen, or gave him any lands or goods except he could purchase them. And as to the rule taken by the civilians, cum duo jura concurrunt in una persona, æquum est ac si essent in diversis,' that holdeth not in things personal but real: and therefore a marquesse, that is a baron and an earle, can For the matter of the great seal the judges | tion, that the great seal is current in suborshewed, that the seal was alterable by the king dinate kingdoms, or dukedoms, and not in all at his pleasure, and he might make one seal for places of the king's dominions in distinct kingboth kingdoms, for seals, coyn, and leagues are doms. of absolute prerogative to the king without parliament, not restrained to auy assent of the people. But for further resolution of this point, how far the great seal doth command out of England, they made this distinction, that the great seal was current for remedials which grow-by the statute of 21 H. 8, have no more chapeth upon complaint of the subjects, and thereupon writs are addressed under the great seal of England, which are limited their precinct to be within the places of the jurisdiction of the courts that must give the redresse of the wrong. And therefore writs are not to go into Ireland, nor the Isles, nor Wales, nor the counties palatine; because the kings courts here have not power to hold plea of lands or things there. But the great seal hath a power preceptory to the person, which power extendeth to any place where the person may be found. And for this the lord Cook cited Nicholas Ludlowes case in 4 E. 3, in the Tower record rotulo clausa numero 21; that Ludlow being at Rome, a commandment under the great seal was sent to him to return. So Berties case in queen Maries time, and sir Franc. Inglefields in queen Elizabeths time, the privy seal went to command them to return into the realm, and for not coming their lands were seized, as appeareth by my lord Diers report of both those cases. So the case before of 39 E. 3, fol. 35, a parliament writ was current into Scotland, to the earle of Angus; and 14 II. 8, a Habeas Corpus into the Isle of Man; which Habeas Corpus is a preceptory writ to have the body of his subject, and may be directed into Scotland, or any place where the king hath ministers, otherwise And so these three judges delivered their Opihow shall the king come by the person of his nions openly, and the rest were ready and did subject whom he would command. affirme the same to be all their Opinions, but where remedial writs run not, yet precep- only justice Walmesly who differed in the main tories under the great seal do; and therefore point, the rest were Warburton and Daniel, of the position of the great seal not to be current the Common Place, Fenner, Williams, and Tanin Scotland holdeth for remedials, not for pre- field, of the Kings Bench, Snigg and Altham, ceptories and this doth answer the objec-barons of the Exchequer. So as lains then his best dignity alloweth, and not for every dignity. And as to the objection that none can be born a natural subject of two kingdoms, they denied that absolutely; for although locally he can be born but in one, yet effectually the allegiance of the king extending to both, his birthright shall extend to both.— And as to the objection that rer et regnum be relatives, and therefore the allegiance of a king can extend but to that kingdom; they answered, that rer and regna were relatives, but rex et regnum be not so relatives, as a king can be king but of one kingdom, for that were proprium quarto modo. viz. omni, soli et semper, which clearly holdeth not, but that his kingly power extending to divers nations and kingdoms, all owe him equal subjection, and are equally born to the benefit of his protection. And although he is to govern them by their distinct laws, yet any one of the people coming into the other is to have the benefit of the laws wheresoever he cometh, and is to bear the burthens and taxes of the place where he cometh; but living in one, or for his livelyhood in one, he is not to be taxed in the other, because laws ordain taxes, impositions, and charges, as a discipline of subjection particularized to every particular nation. SPEECH of Lord BACON, as Counsel for Calvin, in the Exchequer Chamber. MAY it please your lordships; This case your lordships do well perceive to be of exceeding great consequence. For whether you do measure that by place, that reacheth not only to the realm of England, but to the whole island of Great Britain; or whether you measure that by time, that extendeth not only to the present time, but much more to future generations, • Et nati natorum, et qui nascentur ab iilis,' And therefore as that is to receive at the bar a full and free debate, so I doubt not but that shall receive from your lordships a sound and just 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 fortissi mus; yet he was thought to have said better, even in the opinion of a king himself, that said, veritus fortissima, et prævalet; and I do much rejoice to observe such a concurrence in the whole carriage of this cause to this end, that truth may prevail.-The case no feigned or framed case; but a true case between true parties.-The title handled formerly in some of the king's courts, and free-hold upon it; used indeed by his majesty in his high wisdom to give an end to this great question, but not raised; occasio, as the schoolmen say, arrepte, non porrecta.-The case argued in the King's bench by Mr. Walter with great liberty, and yet with good approbation of the court; the persons assigned to be of counsel on that side, . inferior to none of their quality and degree in learning; and some of them most conversant and exercised in the question. The judges in the King's bench have adjourned it to this place for conference with the rest of their brethren. Your lordship, my lord chancellor, though you be absolute judge in the court where you sit, and might have called to you such assistance of judges as to you had seemed good; yet would not forerun or lead in this case by any opinion there to be given; but have chosen rather to come yourself to this assembly; all tending as I sait, to this end, whereunto I for my part do heartily subscribe, ut vincat veritas, that truth may first appear, and then prevail. And I do armly hold, and doubt not but I shall well maintain, that this is the truth, that Calvin the plaintiff is ipso jure by the law of England a natural born subject, to purchase free-hold, and to bring real actions within England. In this case I must so consider the time, as I must much more consider the matter. And therefore though it may draw my speech into farther length; yet I dare not handle a case of this nature confusedly, but purpose to observe the ancient and exact form of pleadings; which is, First, to explain or induce: Then, to confute, or answer objections: And lastly, to prove, or confirm. done in all cases of like nature. And this doth not at all detract from the sufficiency of our laws, as incompetent to decide their own cases, but rather addeth a dignity unto them, when their reason appearing as well as their authority doth shew them to be as fiue moneys, which are current not only by the stamp, because they are so received, but by the natural metal that is the reason and wisdom of them. And master Littleton himself in his whole book doth commend but two things to the professors of the law by the name of his sons; the one, the inquiring and searching out the reasons of the law; and the other, the observing of the forms of pleadings. And never was there any case that came in judgment that required more, that Littleton's advice should be followed in those two points, than doth the present casc in question.--And first of the king, It is evident that all other commonwealths, monarchies only excepted, do subsist by a law precedent. For where authority is divided amongst many officers, and they not perpetual, but annual or temporary, and not to receive their authority, but by election and certain persons to have voice only to that election, and the like; these are busy and curious frames, which of necessity do pre-suppose a law precedent, written or unwritten, to guide and direct them. But in monarchies, especially hereditary; that is, when several families or lineages of people do submit themselves to one line, imperial or royal, the submission is more natural and simple, which afterwards by laws subsequent is perfected and made more formal; but that is grounded upon nature. That this is so, it appeareth notably in two things; the one the platforms and patterns which are found in nature of monarchies; the original submissions,' and their motives and occasions. The platforms are three: And first for Explanation. The outward question in this case is no more, but whether a child, born in Scotland since his majesty's happy coming to the crown 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 confessed, that if these two realms of England and Scotland were united under one law and one parliament, and thereby incorporated and made as one kingdom, that the Post-natus of such an union should be naturalized. It is confessed, that The first is that of a father, or chief of a faboth realms are united in the person of our mily; who governing over his wife by prerogasovereign: or, because I will gain nothing by tive of sex, over his children by prerogative of surreption, in the putting of the question, that age, and because he is author unto them of beone and the same natural person is king of bothing, and over his servants by prerogative of virrealms. It is confessed, that the laws and parliaments are several. So then, whether this privilege and benefit of naturalization be an accessary or dependency upon that which is one and joiut, or upon that which is several, hath been, and must be the depth of this question. And therefore your lordships do see the state of this question doth evidently lead me by way of inducement to speak of three things: the king, the law, and the privilege of naturalization. For if you well understand the nature of the two principals, and again the nature of the accessory; then shall you discern to whether principal the accessory doth properly refer, as a shadow to a body, or iron to an adamant. And therefore your lordships will give me leave in a case of this quality, first to visit and open the foundations and fountains of reason, and not begin with the positions and eruditions of a municipal law; for so was that done in the great case of Mines; and so ought that to be VOL. II. tue and providence (for he that is able of body, and improvident of mind, is natura servus) that is a very model of a king. So is the opinion of Aristotle, lib. iii. Pol. cap. 14. where he saith, verum autem regnum est, cum penes unum est rerum summa potestas: quod regnum procurationem familie imitatur.' And therefore Lycurgus, when one counselled him to dissolve the kingdom, and to establish another form of estate, answered, Sir, begin to 'do that which you advise first at home in your own house: noting, that the chief of a family is as a king; and that those, that can least endure kings abroad, can be content to be kings at home. And this is the first platform, which we see is merely natural. The second is that of a shepherd and his flock, which Xenophon saith, Cyrus had ever in his mouth. For shepherds are not owners of the sheep; but their office is to feed and govern. No more are kings proprietaries or 2 P owners of the people; for God is sole owner of people. The nations,' as the scripture saith, " are his inheritance:' but the othice of kings is to govern, maintain, and protect people. And that is not without a mystery, that the first king that was instituted by God, David, for Saul was but an untimely fruit, was translated from a shepherd, as you have it in Psalm 78. Et elegit David servum suum, de gregibus ovium sustulit eum,-pascere Jacob servum suum, et Israel hæreditatem suam.' This is the second platform; a work likewise of na ture. 'dian.' And so we read when it was brought to the ears of Saul, that the people sung in the streets, Saul hath killed his thousand, and David his ten thousand' of enemies, he said straightways: quid ei superest nisi ipsum regnum? For whosoever hath the military dependence, wants little of being king. The fourth is an inforced submission, which is conquest, whereof it seemed Nimrod was the first precedent, of whom it is said; ipse cœpit 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 four submissions are evident to be natural and more ancient than law. The third platform is the government of God himself over the world, whereof lawful monarchics are a shadow. And therefore both amongst the Heathen, and amongst the Christians, the word, sacred,' hath been attributed unto kings, because of the conformity of a monarchy with a divine majesty; never to a senate or people. And so you find it twice in To speak therefore of Law, which is the sethe lord Coke's Reports; once in the second cond part of that which is to be spoken of by book, the bishop of Winchester's case; and his way of inducement. Law no doubt is the fifth book, Cawdrie's case. And more ancient-great organ by which the sovereign power doth ly in the 10 of H. 7. fol. 18. rex est persona mixta cum sacerdote;' an attribute, which the senate of Venice, or a canton of Swisses, can never challenge. So, we see, there be precedents or platforms of monarchies, both in nature, and above nature; even from the monarch of heaven and earth to the king, if you will, in an hive of bees. And therefore other states are the creatures of law; and this state only subsisteth by nature. For the original submissions, they are four 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 contain itself within one habitation, some branches of the descendants were forced to plant themselves into new families; which second families could not by a natural instinct and inclination but bear a reverence, and yield an obeisance, to the eldest line of the ancient family from which they were derived. The second is the admiration of virtue, or gratitude towards merit, which is likewise naturally infused into all men. Of this Aristotle putteth the case well, when it was the fortune of some one man, either to invent some arts of excellent use towards man's life, or to congregate people that dwelt scattered into one place where they might cohabit with more comfort, or to guide them from a more barren land to a more fruitful, or the like: upon these deserts, and the admiration and reconpence of them, people submitted themselves. The third, which was the most usual of all, was conduct in war, 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 was in regard of preservation. And therefore we find in chap. 18 of the book of Judges, ver. 29. Dixerant ⚫ omnes viri ad Gideon, dominare nostri, tu et • filii tui, quoniam servasti nos de manu Ma move, and may be truly compared to the sinews in a natural body, as the sovereignty may be compared to the spirits: for if the sinews be without the spirits, they are dead and without motion; if the spirits move in weak sinews, it causeth trembling: so the laws, without the king's power, are dead; the king's power, except the laws be corroborated, 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 intitle the king, or design him; and in that sense Bracton saith well, lib. 1. fol. 5. and lib. 3. fol. 107. Lex facit quod ipse sit rex ;' that is, it defines his title; as in our law, that the kingdom shall go to the issue female; that it shall not be departable amongst daughters; that the half-blood shall be respected, and other points differing from the rules of common inheritance. The second is, that whereof we need not fear to speak 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 potes tatis est plenitudo tempestatis.' 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 original submission, which was natural; or shall it be said that: Il allegiance is by law? No more than it can be said, that potestas patris, the power of the father over the child, is by law and yet no doubt laws do diversly 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. no man will aflirm, that the obedience of the child is by law, though laws in some points do make it more positive: and even so it is of allegiance of subjects to hereditary monarchs, Yet |