which is corroborated and confirmed by law, but is the work of the law of nature. And therefore you shall find the observation true, and almost general in all states, that their lawgivers were long after their first kings, who governed for a time by natural equity without law. So was Theseus long before Solon in Athens: so was Eurytion and Sous long before Lycurgus in Sparta: so was Romulus long before the Decemviri. And even amongst ourselves there were more ancient kings of the Saxons; and yet the laws ran under the name of Edgar's laws. And in the refounding of the kingdom in the person of William the Conqueror, when the laws were in some confusion for a time, a man may truly say, that king Edward 1 was the first lawgiver, who enacting some laws, and collecting others, brought the law to some perfection. And therefore I will conclude this point with the stile, which divers acts of parliaments do give unto the king; which term him very effectually and truly, ' our natural sovereign liege lord.' And as it was said by a principal judge here present when he served in another place, and question was moved by some occasion of the title of Bullein's lands, that he would never allow, that queen Elizabeth (I remember it for the efficacy of the phrase) should be a statute qucen, but a common-law queen so surely I shall hardly consent, that the king shall be esteemed or called only our rightful sovereign, or our lawful sovereign, but our natural liege sovereign; as acts of parliament speak: 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 speak of the privilege and benefit of Naturalization itself; and that accord- | ing 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 me, to consider, with what a measured hand, and with how true proportions, our law doth impart and confer the several degrees of this benefit. The degrees are four. but he must complain himself before the king's privy counsel: there he shall have a proceeding summary from hour to hour, the cause shall be determined by natural equity, and not by rules of law; and the decree of the counsel shall be executed by aid of the Chancery, as in 13 Ed. 4. And this is the first degree. The second person is an alien friend, that is, such a one as is born 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 transitory hold, for he may be an enemy; so the law doth indue hin but with a transitory benefit, that is, of moveable goods and personal actions. But for free-hold, or lease, or actions real or mixt, he is not enabled, except it be in autre droit. And so it is 9 Ed. 4. fol. 7. 19 Ed. 4. fol. 6. 5 Mar, and divers other books. The third person is a denizen, using the word properly, for sometimes it is confounded with a natural born subject. This is one that is but subditus infilicus, or adoptivus, and is never by birth, but only by the king's charter, and by no other mean, come he never so young into the realin, or stay he never so long. Mansion or habitation will not indenize him, no, nor swearing obedience to the king in a lect, which doth in law the subject; but only, as I said, the king's 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 he 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 he have children after, they shall inherit; but if he have any before, they shall not inherit. So as he is but privileged a parte post, as the schoolmen say, and not à parte ante. The fourth and last degree is a natural born subject, which is evermore by birth, or by act of parliament; and he is complete and entire. For in the law of England there is nil ultra, there is no more subdivision or more subtle diThe first degree of persons, as to this pur- vision beyond these. And therein it seemeth pose, that the law takes knowledge of, is an to me, that the wisdom of the law, as I said, alien enemy; that is, such a one as is born is to be admired both ways, both because it under the obeisance of a prince or state that distinguisheth so far, and because it doth not is in hostility with the king of England. To distinguish farther. For I know that other this person the law giveth no benefit or pro-laws do admit more curious distinction of this tection at all; but if he come into the realm after war proclaimed, or war in fact, he comes at his own peril, he may be used as an enemy: for the law accounts of him but, as the scripture saith, as of a spy that comes to see the weakness of the land. And so it is in 2 Rich. 3, fol. 2. Nevertheless, 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 he must fetch his justice at the fountain-head, for none of the conduit pipes are open to him: he can have no remedy in any of the king's courts; privilege: for the Romans had besides jus civitatis, which answereth to naturalization, jus suffragii. For although a man were naturalized to take lands and inheritance, yet he was not enabled to have a voice at passing of laws, or at election of officers. And yet farther they have jus petitionis, or jus bonorum. For though a man had voice, yet he was not capable of honour and office. But these be the devices 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 natural born, hath a capacity or ability to allments on the contrary side. That which hath benefits whatsoever; I say capacity or ability: been materially objected, may be reduced to but to reduce potentiam in actum, is another four heads. case. For an earl of Ireland, though he be naturalized in England, yet hath no voice in the parliament of England, except he have either a call by writ, or creation by patent; but he is capable of either. But upon this quadriparte division of the ability of persons, I do 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 we have made, plainly perceive his error. For the law looketh not back; and therefore cannot, by any matter er post fucto, after birth, alter the state of the birth; wherein no doubt the law hath a grave and profound reason; which is this, in few words, nemo subito fingitur; aliud est nasci, aliud ficri. We indeed more respect and affect those worthy gentlemen of Scotland, whose merits and conversation we know; but the law, that proceeds upon general reason, and looks upon no mens faces, affecteth and privilegeth 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 natural born; nam tertium penitus ignoramus. It is manifest then, that if the Post-nati of Scotland be not natural born, they are alien born, and in no better degree at all than Flemings, 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 first is, that the privilege of naturalization followeth allegiance, and that allegiance followeth the kingdom. -The second is drawn from that common ground, cum duo jura concurrunt in una persona, æquam est ac si essent in duobus;' a rule, the words whereof are taken from the civil law; but the matter of it is received in all laws; being a very line or rule of reason, to avoid confusion. The third consisteth of certain inconveniencies conceived to ensue of this general naturalization, ipso jure. The fourth is not properly an objection, but a pre-occupation of an objection or proof on our part, by a distinction devised between countries devolute by descent, and acquired by conquest. For the first, it is not amiss to observe that those who maintain this new opinion, whereof there is altum silentium in our books of law, are not well agreed in what form to utter and express that: for some said that allegiance hath respect to the law, some to the crown, some to the kingdom, some to the body politic of the king: so there is confusion of tongues amongst them, as it commonly cometh to pass in opinions that have their foundations in subtilty and imagination of man's wit, and not in the ground of nature. But to leave their words, and to come to their proofs: they endeavour to prove this conceit by three manner of proofs: first, by reason; then, by certain inferences out of statutes; and lastly, by certain book-cases, mentioning and reciting the forms of pleadings. Then they add, that granted, that the law of England is of force only within the kingdom 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. The third point seemeth to me very worthy The reason they bring is this: that naturalithe consideration, which is, that in all the dis-zation is an operation of the law of England; tributions of persons, and the degrees of abi- and so indeed it is, that may be the true genus lities or capacities, the king's act is all in all, of it. 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 denizen by his charter, absolutely of his prerogative and power, wherewith law and parliament intermeddle not. And therefore it is strongly to be inferred, that as all these degrees depend wholly upon the king's act, and no ways upon law or parliament; so the fourth although it comes not by the king's patent, but by op ration of law, yet that the law, in that operation, respecth only the king's person, without respect of subjection to law or parlia ment. And thus much by way of explanation and inducement: which being all matter in eflect confessed, is the strongest ground work to that which is contradicted or controverted. There followeth the confutation of the argu This reason is plausible and sensible, but extremely erroneous. For the law of England, for matters of benefit or forfeitures in England, operateth over the world. And because it is truly said that respublica continetur pœna et præmio,' I will put a case or two of either. It is plain that if a subject of England had conspired the death of the king in foreign parts, it was by the common law of England treason. How prove I that? By the statute of 35 11. 8, cap. 2; wherein you shall find no words at all of making any new case of treason which was not treason before, but only of ordaining a form of uial; ergo, it was treason before: and if so, then the law of England works in foreign parts. So of contempts, if the king send his privy seal to any subject beyond the seas, commanding him to return, and he disobey, no man will doubt but there is a contempt, and yet the fact enduring the contempt was committed in foreign parts. Therefore the law of England doth extend to acts or matters done in foreign parts. So of reward, privilege or benefit, we need seek no other instance than the instance in question; for I will put you a case that no man shall deny, where the law of England doth work and confer the benefit of naturalization upon a birth neither within the dominions of the kingdom, nor king of England. By the statute of 25 Ed. 3, which, if you will believe Hussey, is but a declaration of the common law, all children born 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 their allegiance, are ipso facto naturalized. Nay, if a man look narrowly into the law in this point, he shall find a consequence that may seem at the first strange, but yet cannot be well avoided; which is, that if divers families of English men and women plant themselves at Middleborough, or at Roan, or at Lisbon, and have issue, and their descendents do intermarry amongst themselves, without any intermixture of foreign 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 foreign countries. And therefore it is utterly untrue that the law of England cannot operate or confer naturalization, but only within the bounds of the dominions of England. To come now to their inferences upon statutes. The first is out of this statute which I last recited. In which statute it is said, that in four several places there are, these words, born within the allegiance of England;' or again, born without the allegiance of England;' which, say they, applies the allegiance to the kingdom, and not to the person of the king. To this the answer is easy; for there is no trope of speech more familiar than to use the place of addition for the person. So we say commonly, the line of York, or the line of Lancaster, for the lines of the duke of York, or the duke of Lancaster. So we say the possessions of Somerset or Warwick, intending the possessions of the dukes of Somerset or earls of Warwick. So we see earls sign, Salisbury, Northampton, for the earls of Salisbury or Northampton. And in the very same manner the statute speaks, allegiance of England, for allegiance of the king of England. Nay more, if there had been no variety in the penning of that statute, this collection had had a little more force; for those words might have been thought to have been used of purpose and in propriety; but you may find in three other several places of the statute, allegiance and obeisance of the king of England, and especially in the material and concluding place, that is to say, children whose parents were at the time of their birth at the faith and obeisance of the king of England. So that it is manifest by this indifferent and promiscuous use of both phrases, the one proper, the other improper, that no man can ground any inference upon these words, without danger of cavillation." The second statute, out of which they infer, is a statute made in 32 Hen. 8, touching the policy of strangers tradesmen within this realm. For the parliament finding that they did eat the Englishmen out of trade, and that they entertained no apprentices but of their own nation, did prohibit that they should receive any apprentices but the king's subjects In which statute is said, that in nine several places there is to be found this context of words, aliens 'born out of the king's obedience;' which is pregnant, say they, and doth imply that there be aliens born within the king's obedience. Touching this inference, I have heard it said, qui hæret in litera, hæret in cortice;' but this is not worthy the name of cortex, it is but mus cus corticis, the moss of the bark. For it is evident that the statute meant to speak clearly and without equivocation, and to a common understanding. Now then there are aliens in common reputation, and aliens in precise construction of law; the statute then meaning not to comprehend Irishmen, or Jerseymen, or Calaismen, for explanation sake, lest the word alien might be extended to them in a vulgar acceptance, added those further words, born out of the king's obedience.' Nay, what if we should say, that those words, according to the received laws of speech, are no words of difference or limitation, but of declaration or description of an alien, as if it had been said with a videlicet, aliens; that is, such as are born out of the king's obedience? They cannot put us from that construction. But sure I am, if the bark make for them, the pith makes for us; for the privilege of liberty which the statute means to deny to aliens of entertaining apprentices, is denied to none born within the king's obedience, call them aliens or what you will. And therefore by their reason, a Post-natus of Scotland shall by that statute keep what stranger apprentices 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. cap. 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 crown of France was devolute to king E. 3. and that he had changed his stile, changed his arms, changed his seal, as his majesty hath done, the subjects of England, saith tije statute, conceived a fear that the realm of England might become subject to the realm of France, or to the king as king of France. And I will give you the reasons of the double fear, that it should become subject to the realm of France. They had this reason of fear. Normandy had conquered England; Normandy was feudal of France. Therefore because the superior seig niory 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 probable reason to fear, that the kingdom of England might be drawn to be subject to the realm of France. The other fear that England might become subject to the king as king of France, grew no doubt of this foresight, that the kings of England might be like to make their mansion and seat of their estate in France, in regard of the climate, wealth, and glory of that kingdom; and thereby the kingdom of England might be governed by the king's mandates and precepts issuing as from the king of France. But they will say, whatsoever the occasion was, here you have the difference authorised of subjection to a king generally, and subjection to a king as king of a certain kingdom. But to this I give an answer three-fold. First, it presseth not the question; for doth any man say that a Postnatus of Scotland is naturalized in England, because he is a subject of the king as king of England? No, but generally because he is the king's 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 | between crown 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 crowns in some degree, by virtue of the union in the king's person, if this statute had not been made to stop and cross the course of the common law in that point; as if Scotland now should be suitors to the king, that an act might pass to like effect, and upon like fear. 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 between England and Scotland. And if any man say that this was a statute declaratory of the common law, he doth not mark how that is penned for after a kind of historical 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 merely introductive nova legis, as if the king gave a charter of franchise, and did invest, by a donative, the subjects of England with a new privilege or exemption, which by the common law they had not. To come now to the book-cases which they put; which I will couple together, because they receive one joint answer. The first is 42 E. 3. fol. where the book saith, exceptionwas taken, that the plaintiff was born in Scotland at Ross out of the allegiance of England. The next is 22 H. 4. fol. 38. Adrian's case; where it pleaded, that a woman was born at Bruges out of the allegiance of England. The third is 13 Eliz. Dyer, fol. 300. where the case begins thus: Dr. Story qui notorie dignoscitur esse subditus regni Angliæ.' In all these three, say they, that is pleaded, that the party is subject of the kingdom of England, and not of the king of England. To these books I give this answer, that they be not the pleas at large, but the words of the reporter, who speaks compendiously and narratively, and not according to the solemn words of the pleading. If you find a case put, that it is pleaded a man was seised in fee-simple, you will not infer upon that, that the words of the pleading were in feodo simplici, but sibi et hæredibus suis. But shew me some precedent of a pleading at large of nutus sub ligeantia regni Anglia; for whereas Mr. Walter said that pleadings are variable in this point, he would fain bring it to that; but there is no such matter; for the pleadings are constant and uniform in this point. They may vary in the word fides or ligeantia, or obedientia, and some other circumstances. But in the forin of regni and regis they vary not: neither can there, as I am persuaded, be any one instance shewed forth to the contrary. See 9 Eliz. 4 Baggot's Assize, fol. 7. where the pleading at large is entered in the book. There you have alienigena natus extra ligeantium domini regis Anglia. See the precedents in the book of Entries, pl. 7 and two other places; for there be no inore: and there you shall find still sub ligeantia domini regis, or extra ligeantiam domini regis. And therefore the forms of pleading, which are things so reverend, and are indeed towards the reasons of the law, as palma and pugnus, containing the reason of the law, opened or unfolded, or displayed, they make all for us. And for the very words of reporters in books, you must acknowledge and say, ilicet obruimur numero. For you have 22 Ass. pl. 25. 27 Ass. the prior of Shells ease, pl. 48. 14 II. 4. fol. 19. 3 II. 6. fol. 35. 6 H. 8 in my lord Dyer, fol. 2. In all these books, the very words of the reporters have the allegiance of the king,' and not, the allegiance of England. And the book in the 24 Edw. 3. which is your best book, although while it is tossed at the bar, you have sometimes the words allegiance of England,' yet when it comes to Thorp, chief justice, to give the rule, he saith, we will be cer'tified by the roll, whether Scotland be within the allegiance of the king.' Nay, that farther form of pleading beateth down your opinion, that it sufficeth not to say that he is born out of the allegiance of the king, and stay there, but he must shew in the affirmative, under the allegiance of what king or state he was born. The reason whereof cannot be, because it may appear whether he be a friend or an enemy, for that in a real action is all one. Nor it cannot be because issue shall be taken thereupon; for the issue must arise on the other side upon indigena pleaded and traversed. And therefore it can have no other reason, but to apprize the court more certainly, that the country of the birth is none of those that are subject to the king. 6 As for the trial, that it should be impossible this oath trencheth between the natural person of the tenant and the natural person of the lord. And certainly the case of homage and tenure, and of homage liege, which is one case, are things of a near nature, save that the one is much inferior to the other: but it is good to behold these great matters of state in cases of lower element, as the eclipse of the sun is used to be in a pail of water. to be tried, I hold it not worth the answering; no other, but because when a man is sworn to for the venire facias shall go either where the his lord, he cannot be sworn over again: he natural birth is laid, although it be but by fic-hath but one conscience, and the obligation of tion, or if it be laid according to the truth, it shall be tried where the action is brought, otherwise, you fall upon a main rock, that breaketh your argument in pieces; for how should the birth of an Irishman be tried, or of a Je seyman? Nay, how should the birth of a subject be tried, that is born of English parents in Spain or Florence, or any part of the world? For to all these the like objection of trial may be made because they are within no counties: and this receives no answer. And therefore I will now pass on to the second main argument. The third main argument containeth certain supposed inconveniences, which may ensue of a general naturalization ipso jure, of which kind three have been specially remembred.The first is the loss of profit to the king upon letters of denization and purchases of aliens.The second is the concourse of Scotsmen into this kingdom, to the infeebling of that realm of Scotland in people, and the impoverishing of this realm of England in wealth.-The third is, that the reason of this case stayeth not within the compass of the present case; for although it were some reason that Scotsmen were naturalized, being people of the same island and lan guage, yet the reason which we urge, which is, that they are subject to the same king, may be applied to persons every way more estranged from us than they are? as if in future time in the king's descendants, there should be a match with Spain, and the dominions of Spain should be united with the crown of Englaud, by one reason, say they, all the West-Indies should be naturalized; which are people not only alterius soli but alterius cæli. It is a rule of the civil law, say they, cum duo jura, &c. when two rights do meet in one person, there is no confusion of them, but they remain still in the eye of law distinct, as if they were in several persons: and they bring examples of one man, bishop of two sees, or one parson 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 than if there were several bishops, or several parsons. This rule I allow, as was said, to be a rule not of the civil law only but of common reason, but receiveth no forced or coined but a true and sound distinction or limitation; which is, that it evermore faileth and deceiveth in cases where there is any vigour or operation of the natural person; for generally in corporations the natural body is but suffulcimentum corporis corporati, it is but as a stock to uphold and bear out the corporate body; but otherwise it is in the case of To these conceits of inconvenience, how the crown, as shall be manifestly proved in due easy it is to give answer, and how weak they place. But to shew that this rule receiveth are in themselves, I think no man that doth this distinction, I will put but two cases. The attentively ponder them can doubt. For how statute of 21 [len, 8. ordaineth that a marquis small revenue can arise of such denizations; may retain six chaplains qualified, a lord trea- and how honourable were it for the king to surer of England four, a privy-councellor three, take escheats of his subjects, as if they were The lord treasurer Paulet was marquis of Win- foreigners, for seizure of aliens lands are in rechester, lord treasurer of England, and privy-gard the king hath no hold or command of counsellor, all at once. The question was, whether he should qualify thirteen chaplains? Now by the rule cum duo jura he should; but adjudged, he should not. And the reason was because the attendance of chaplains concerned and respected his natural person; he had but one soul, 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 tenancy held of the manor of Dale: there descendeth unto him afterwards a tenancy held of the manor of Sale, which manor of Sale is likewise in the hands of the same lord. Now by the rule cum duo jura, he should do homage again, two tenancies and two seigniories, though but one tenant and one lord, æquum est ac si esset in duobus. But ruled that he should not do homage again. Nay in the case of the king he should not pay a second respect of homage, as upon grave and deliberate consideration it was resolved, 24 H. 8. and usus scaccarii, as there is said, accordingly, And the reason is their persons and services: every one may perceive. And for the confluence of Scotsmen, I think, we all conceive the spring-tide is past at the king's first coming in. And yet we see very few families of them throughout the cities and boroughs of England. And for the naturalizing of the Indies, we can readily help 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 politic, and not legal, and we are not now in parliament, but before a judgment-seat, I will not meddle with them, especially since I have one answer which avoids and confounds all their objections in law; which is that the very self-same objections do hold in countries purchased by conquest. For in subjects obtained by conquest, it were more profit to indenizate by the poll; in subjects obtained by conquest, they may come in too fast. And if king Henry 7 had accepted the offer of Christopher Columbus, whereby the crown of England had obtained |