the Indies by conquest or occupation, all the | terly repugnant, and differing from the laws of Indies had been naturalized by the confession England. And hereof many ancient preceof the adverse part. And therefore since it is dents and records may be shewed, that the confessed, that subjects obtained by conquest reason why Ireland is subject to the laws of are naturalized, and that all these objections England is not ipso jure upon conquest, but are common and indifferent, as well to case of grew by a charter of king John; and that exconquest as case of descent, these objections tended but to so much as was then in the kings are in themselves destroyed. possession; for there are records in the time of king E. 1, and 2, of divers particular grants to sundry subjects of Ireland and their heirs, that they might use and observe the laws of England. 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 adversary against himself. We do urge the confession of the other side, that they confessed the Irish are naturalized that they confess the subjects of the isles of Jersey and Guernsey, and Berwick, to be naturalized; and the subjects of Calais and Tournay, when they were English, were naturalized; as you may find in the 5 Eliz. in Dyer, upon the question put to the judges by sir Nicholas Bacon, lord keeper. The third reason is, that there is a politic necessity of intermixture of people in case of subjection by conquest, to remove alienations of mind, and to secure the state; which holdeth not in case of descent. Here I perceive Mr. Walter hath read somewhat in matter of state: and so have I likewise; though we may both quickly lose ourselves in causes of this nature. I find by the best opinions, that there be two means to assure and retain in obedience countries conquered, both very ddering, almost in extremes, the one towards the other. The one is by colonies, and intermix.ore of Mr. Walter spoke of; and it was indeed the Roman manner; but this is like an old relic, much reverenced and almost never used. But the other, which is the modern manner, and almost wholly in practice and use, is by garrisons and citadels, and lists or companies of men of war, and other like matters of terror and bridle. To avoid this, they fly to a difference, which is new-coined, and is-I speak not to the disadvantage of the persons that use it, for they are driven to it tanquam ad ultimum refugium, but the difference itself—it is, I say, full of ig-people, and transplantation of families, which norance and error. And therefore, to take a view of the supports of this difference, they alledge four reasons. The first is, that countries of conquest are made parcel of England, because they are acquired by the arms and treasure of England. To this I answer, that it were a very strange argument, that if I wax rich upon the manor of Dale, and upon the revenue thereof pur- To the first of these, which is little used, it chase a close by it, that it should make that is true that naturalization doth conduce; but parcel of the manor of Dale. But I will set to the latter it is utterly opposite, as putting this new learning on ground with a question or too great pride and means to do lurt in those case put. For I oppose them that hold this that are meant to be kept short and low. And opinion with this question, if the king should yet in the very first case, of the Roman proconquer any foreign country by an army com-ceeding, naturalization did never follow by pounded of Englishmen and Scotsmen, as it is like whensoever wars are so it will be, I demand, whether this country conquered shall be naturalized both in England and Scotland, because it was purchased by the joint arms of both? And, if yea, whether any man will think it reasonable, that such subjects be naturalized in both kingdoms; the one kingdom not being naturalized towards the other? These are the intricate consequences of conceirs. conquest, during all the growth of the Roman empire; but was ever conferred by charters, or donations, sometimes to cities and towns, sometimes to particular persons, and sometimes to nations, until the time of Adrian the emperor, and the law in orbe Romano ;* and that iaw or constitution is not referred to title of conquest and arms only, but to all other titles; as by the donation and testament of kings, by submission and dedition of states, or the like; so as this difference was as strange to them as to us. Aud certainly I suppose it will sound strangely in the hearing of foreign nations, that "The law here alluded to by lord Bacon is one, by which the emperor Antoninus Curacalla communicated the rights of a Roman citizen to the whole Roman empire. It is noticed in Justinian's Digest, lib. 1. tit. 5. l. 17, and in Novell. 79. c. 5. Antoninus Pius and other emperors have been named as authors of the law. But Heinecciu, who is very full and satisfactory on the point, is clear in opinion, that this extension was first made by Caracalla. Heinecc. Syntagm. Append. lib. 1. s. 15." Hargrave. the law of England should ipso facto, natura- quent, remote or not remote, doth not alter the lize subjects of conquests, and should not na-operation of law for the present. For that turalize subjects which grow unto the king by should be, as if in case of the rent which you descent; that is, that it should confer the be- put, you should say, that in regard that the nefit and privilege of naturalization upon such rent may be severed, it should be said to be in as cannot at the first but bear hatred and ran- esse in the mean time, and should be grantacour to the state of England, and have had ble; which is clearly otherwise. And so in their hands in the blood of the subjects of the principal case, if that should be, which England, and should deny the like benefit to God of his goodness forbid, 'cessante causa those that are conjoined with them by a more 'cessat effectus,' the benefit of naturalization amiable mean; and that the law of England for the time to come is dissolved. But that should confer naturalization upon slaves and altereth not the operation of the law; rebus vassals, for people conquered are no better in 'sic stantibus.' And therefore I conclude, that the beginning, and should deny it to freemen: this difference is but a device full of weakness I say, it will be marvelled at abroad, of what and ignorance; and that there is one and the complexion the laws of England be made, that same reason of naturalizing subjects by debreedeth such differences. But there is little scent, and subjects by conquest and that is danger of such scandals; for this is a differ- the union in the person of the king; and thereence that the law of England never knew. fore that the case of Scotland is as clear as that of Ireland, and they that grant the one cannot deny the other. And so I conclude the to these proofs which stand substantially of And The fourth reason of this difference is, that in case of conquest the territory united can never be separated again. But in case of de-second part, touching confutation. scent, there is a possibility. If his majesty's To proceed. therefore to the proofs of our line should fail, the kingdoms may sever again part, your lordships cannot but know many of to their respective heirs; as in the case of 8 them must be already spent in the answer H. 6, where it is said, that if land descend to which we have made to the objections. For a man from the ancestor on the part of his corruptio unius, generatio alterius,' holds as father, and a rent issuing out of it from an an- well in arguments, as in nature: the destruccestor on the part of the mother; if the party tion of an objection begets a proof. But nedie without issue, the rent is revived. As to vertheless I will avoid all iteration, lest I should this reason, I know well the continuance of seem either to distract your memories, or to the king's line is no less dear to those that al-abuse your patience; but will hold myself only ledge the reason, than to us that confute it. So as I do not blame the pressing of the reason. But it is answered with no great difficulty. For first, the law doth never respect remote and foreign possibilities, as notably appeared in the great case between sir Hugh Cholaley and Houlford in the Exchequer, where one in the remainder, to the end to bridle tenant in tail 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 turn was served, he limited it to the king during the life of tenant in tail. Question grew, whether this graut 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 tail cannot surrender; and if he died, the remainder likewise ceased. To which it was answered, that there was a possibility that it might execute, which was thus: put case, the tenant in tail should enter into religion, having no issue; then the remainder should execute, and the king should hold the land during the natural life of tenant in tail, notwithstanding his civil death. But the court una voce exploded this reason, omnes homines erant liberi ;' and that servitude and said, that monasteries were down, and en- or villeuage doth cross and abridge the law of tries into religion gone, and they must be up nature? And doth not the self-same reason hold again ere this could be; and that the law did in the present case? For, my lords, by the law not respect such remote and foreign possibili- of nature all men in the world are naturalized ties. And so we may hold this for the like: one towards another; they were all made of for I think we all hope, that neither of those one lump of earth, of one breath of God; they days shall ever come, either for monasteries to had the same common parents: nay, at the be restored, or for the king's line to fail. But first they were, as the scripture sheweth, unius the true answer is, that the possibility subse-labii,' of one language, until the curse; which VOL. II. 1. Favour of law. What mean I by that? The law is equal, 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, and dower! And what is the reason of this favour? This, because our law is grounded upon the law of nature. And these three things do flow from the law of nature, preservation of life natural ; liberty, which every beast or bird seeketh and affecteth naturally; the society of man and wife, whereof dower is the reward natural. It is well, doth the law favour liberty so highly, as a man shall enfranchise his bondman when he thinketh not of it, by granting to him lands or goods; and is the reason of it quia natura 2 a land, be several and distinct, yet nevertheless his natural person, which is one, hath an operation upon both, and createth a privity between them.-And the third proof is the binding text of ve several statutes. For the first of these, I shall make it manifest, that the allegiance is of a greater extent and dimension than laws or kingdom, and cannot consist by the laws merely; because it began before laws, it continueth after laws, and it is in vigour where laws are suspended and have not their force. That it is more ancient than law, appeareth by that which was spoken in the beginning by way of inducement, where I did endeavour to demonstrate, that the original age of kingdoms was governed by natural equity, that kings were more ancient than law givers, that the first submissions were simple, and upon confidence to the person of kings, and that the allegiance of subjects to hereditary monarchies can n› more be said to consist by laws, than the obedience of children to parents. eur-e, thanks be to God, our present case is | exempted from. It was civil and national laws that brought in these words and di ferences of civis' and exterus,' alion and native. And therefore because they tend to abridge the Jaw of nature, the law favoureth not them, but takes them strictly; even as our law hath an excellent rule, that customs of towns and boroughs shall be taken and construed s'rely and precisely, because they do abridge and derogate from the law of the land. So by the same reason all national laws whatsoever are to be taken strictly and hardly in any point wherein they abridge and der gate from the law of narure. Whereapon I conclude, that your lord ships cannot judge the w for the other side, except the case be luce clarius. And if it appear to you but doubtful, as I think no man in his right seoses but wil yield it to le at least doubtful, then ought your lordships, under your correction be it spoken, to pronounce for us because of the favour of the law. Further more, as the law of England must favour naturalization as a branch of the law of nature, so it appears ment estly, that it doth favour it accordingly or is it not much to make a subject natura zed? By t'e law of England, it should suffice, either place or parents. If he be born in England, it is no matter ti o gh his parents be Spaniards, or wi at you will. On the other side, | if he be born of English parents, it skilleth not though he be born in Spain, or in any other place of the world. In such, sort doth the law of England open her lap, to 'eceive in people to be naturalized; which indeed sheweth the wisdom and excellent composition of our law, and that it is the law of a warlike and magnanimous nation fit for empire. For look, and you shall find that such kind of estates have been ever liberal in point of naturalization: whereas merchant-like and envious estates have been other-power of the king is so far from being then exwise. That allegiance continueth after laws, I will only pet the case, which was remembered 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 expulsed his kingdom, and some particular subjects should follow him in flight or exile in foreign parts, and any of them there should cons, ire his death; upon his recovery of his kingdom, such a subject might by the law of England be proceeded with for treason committed and perpetrated at what time he had no kingdom, and in place where the law did not bind. That allegiance is in vigour and force where the power of law hath a cessation, appeareth notably in time of wars; for silent leges inter arma.' And yet the sovereignty and imperial tinguished or suspended, as contrariwise it is For the reasons of law joined with authori- raised and made more absolute: for then he ties, I do first observe to your lordships, that may proceed by his supreme authority and our assertion or athrmation is simple and plam: martial law, without observing formalities of that it sufficeth to naturalization, that there be the laws of his kingdom. And therefore who-. one king, and that the party benatus ad fi- soever speaketh of laws, and the king's power 'dem regis,' agreeable to the definition of by laws, and the subjects obedience or allegi Littleton, which is: alien is he which is born out ance to laws, speak but of one half of the of the allegiance of our lord the king. They of crown. For Bracton, out of Justinian, doth the other side speak of respects, and quado and truly define the crown to consist of laws and quatenus, and such subtities and distinctions. arms, power civil and martial, with the latter To maintain therefore our assertion, I will use whereof the law doth not intermeddle: so as three kinds of proofs. The first is, that allegi- where it is much spoken, that the subjects of ance cannot be applied to the law or kingdom, | England are under one law, and the subjects of but to the person of the king; because the Scotland are under another law, it is true at allegiance of the subject is more large and spa-Edinburgh or Sterling, or again in London or cious, and hath a greater latitude and compre- York; but if Englishmen and Scotsmen meet hension than the law or the kingdom. And in an army royal before Calais, I hope, then therefore it cannot be a dependency of that they are under one law. So likewise not only without the which it may of itself subsist. The in time of war, but in time of peregrination. If second proof which I will use is, that the natu- a king of Enziand travel or pass through foral body of the king hath an operation and in-reign territories, yet the allegiance of his subfluence into his body politic, as well as his bodyjects followeth him; as app, sreth in that notapolitic hath upon his body natural; and there-ble case which is reported in Fieta, where one fore, that although his body politie of king of of the train of king Edward 1, as he passed England, and his body politic of king of Scot-through France from the Holy Land, imbez 6 zeled some silver plate at Paris, and jurisdiction | the king's natural person hath upon his crown was demanded of this crime by the French and body politic. Of which the chic.est and king's counsel at law, ratione sol,' and de-greatest is, that it causeth the crown to go by manded likewise by the officers of king Ed- descent, which is a thing strange, and contrary ward, ratione persone and after much su- to the course of all corporations, which everlemuity, contestation, and interpleading, it was more take in succession, and not by descent; ruled and determined for king Edward, and the for no man can show me in all the cor orations party tried and judged before the knight of England, of what nature soever, whether marshal of the king's house, and hanged after, they consist of one person, or of many, or the English law, and executed in St. Ger- whether they be temporal or ecclesiastical, any main's meadows. And so much for the first one takes to him, and his heirs, but all to him proof. and his successors. And therefore here you may see what a weak course that is, to put cases of bishops and parso is, and the like, and to apply them to the crown. For the king takes to him and his heirs in the manner of a natural body, and the word, successors, is but superfluous; and where that is used, that is ever duly placed after the word, heirs, the king, his heirs, and succes-ors.' For my second main proof, that is drawn from the true and legal distinction of the king's several capacities; for they that maintain the contrary opinion do in effect destroy the whole force of the king's natural capacity, as if it were drowned and swallowed up by his politic. And therefore I will first prove to your lordships, that his two capacities are in no sort confounded. And secondly, that as his capacity politic worketh so upon his natural person, as it makes it differ from all other the natural persons of his subjects; so e converso, his natural body worket, so upon his politic, as the corporation of the crown utterly differeth from all other corporations within the realm. For the first, I will vouch you the very words which I find in that notable case of the Duchy, where the question was, whether the grants of king Edward 6th for duchy lands should be avoided in points of nonage. The case, as your lordships know well, is reported by Mr. Plowden as the general resolution of all the judges of England, and the king's learned counsel, Rouswell the solicitor only, excepted. There I find the said words, Comment. fol. 215. There is in the king not a body natural alone, nor a body politic alone, but a body 'natural and politic together: corpus corporatum in corpore naturali, et corpus naturale ' in corpore corporato.' The like I find in the great case of the lord Berkley set down by the same reporter, Comment. fol. 234. Though there be in the king two bodies, and that those two bodies are conjoined, yet are they by no means confounded the one by the other.' Now then to see the mutual and reciprocal intercourse, as I may term it, or influence or communication of qualities, that these bodies have the one upon the other. The body politic of the crown induceth the natural 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 king shall not take but by matter of record, although he take in his natural capacity as upon a gift in tail; that his body in law shall be said to be as it were immortal; for there is no death of the king in law, but a demise, as it is termed with many other the like privileges and differences from other natural persons, too long to rehearse, the rather because the question laboureth not in that part. But on the contrary part let us see what operations Again, no man can deny but uxor et filius 'sunt nomina naturæ.' A corporation can have no wife, nor a corporation can have no son. How is it then, that it is treason to compass the death of the queen or of the prince? There is no part of the body politic of the crown in either of them, but it is inurely in the king, So likewise we find in the case of the lord Berkley, the question was, whether the statute of 35 II. 8. for that part which concerned queen Catherine Par's jointure, were a public act or no, of which the judges ought to take notice, not being pleaded; and judged a public act. So the like question came before your lordship, my lord chancellor, in serjeant Ileale's case; whether the statute of 11 Edward 3, concerning the intailing of the dukedom of Cornwall to the priace, were a public act or no; and ruled likewise a public act. Why? No man can affirm but these be operations of law, proceeding from the dignity of the natural person of the king; for you shall never find, that another corporation whatsoever of a bishop, or master of a college, or mayor of London, worketh any thing in law upon the wife or son of the bishop or the mayor. And to conclude this point, and withal to come near to the case in question, I will shew you where the natural person of tre king hath not only 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 Scotsman, who is a subject to the natural person of the king, and not to the crown of England; can a Scotsman, I say, be an enemy by the law to the subjects of England? Or must he not of necessity, if he should invade England, be a rebel and no enemy, not only as to the king, but as to the subject? Or can any letters of mart or reprisal be granted against a Scotsman that shall spoil an Englishman's goods at sea? And certainly this case doth press exceeding near the principal case; for it proveth plainly, that the natural person of the king hath such a communication of qualities with his body politic, as it makes the subjects of either kingdom stand in another degree of privity one towards the other, than they did bcfore. And so much for the second proof. 6 both kingdoms. And the third act of parlia ment is the act made in the fourth year of his majesty's reign, for the abolition of hostile laws; wherein your lordships shall find likewise in two places, that the parliament doth acknowledge, that there is an union of these two kingdoms already begun in his majesty's person: so as by the declaration of that act, they have not only one king, but there is an union in inception in the kingdoms themselves. These two are judgments in parliament by way of declaration of law, against which no man can speak. And certainly these are righ teous and true judgments to be relied upon; not only for the authority of them, but for the verity of them; for to any that shall well and deeply weigh the effects of law upon this conjunction, it cannot but appear, that although partes integrales of the kingdom, as the philosophers speak, such as the laws, the officers, the parliament, are not yet commixed; yet nevertheless there is but one and the self-same fountain of sovereign power depending upon the ancient submission, whereof I spake in the beginning; and in that sense the crowns and the kingdoms are truly said to be united. 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 E. 2; in which act there is contained the charge and accusation whereupon his exile proceeded. One article of which charge is set down in these words: Homage and oath of the subject is more by reason of the crown than by reason of the person of the king. So that if the king 'doth not guide himself by reason in right of the crown, his lieges are bound by their oath to the crown to remove the king. By which act doth plamly appear the perilous consequence of this distinction concerning the person of the king and the crown. And yet I do acknowledge justly and ingenuously a great difference between 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 I assure myself, that those that now use and urge that distinction, do as firmly hold, that the subjection to the king's person and to the crown are inseparable, though distinct, as I do. And it is true that the poison of the opinion and assertion of Spencer is like the poison of a scorpion, more in the tail than 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 disloyalty of that opinion. But by your leave, the body is never a whit the more wholSom meat for having such a tail belonging to it. Therefore we we see that is locus lubricus,' an opinion from which a man may easily slide into an absurdity. But upon this act of parliament I will only note one circumstance more, and so leave it, which may add authority unto it in the opinion of the wisest; and that is, that these Spencers were not ancient nobles or And therefore with these two acts do I likegreat patriots that were charged and prosecuted wise couple the act of 14 Ed. 3, which hath been by upstarts and favourites: for then it might alledged of the other side. For by collating of be said, that it was but the action of some flat-that act with this former two, the truth of that terers, who use to extol the power of monarchs we affirm will the more evidently appear, acto be infinite. But it was contrary; a prose- cording unto the rule of reason: opposita cution of those persons being favourites by the nobility; so as the nobility themselves, which seldom do subscribe to the opinion of an infinite power of monarchs, yet even they could not endure, but their blood did rise to hear that opinion, that subjection is owing to the crown rather than to the person of the king. The second act of parliament, which determined this case, is the Act of Recognition in the first year of his majesty, wherein you shall find, that in two several places, the one in the preamble, the other in the body of the act, the parliament doth recognise, that these two realins of England and Scotland are under one imperial crown. The parliament doth not say under one monarchy or king which might refer to the person, but under one imperial crown, which cannot be applied but to the sovereign power of regiment comprehending And the force of this truth is such, that a grave and learned gentleman, that defended the contrary opinion, did confess thus far: that in ancient times, when monarchies, as he said, were but heaps of people without any exact form of policy; that then naturalization and communication of privileges did follow the person of the monarch; but otherwise since states were reduced to a more exact form: so as thus far we did consent; but still I differ from him in this, that these more exact forms, wrought by time and custom and laws, are nevertheless still upon the first foundation, and do serve only to perfect and corroborate the force and bond of the first submission, and in no sort to disannul or destroy it. 6 juxta se posita magis elucescunt.' That act of 14 is an act of separation. These two acts formerly recited are acts tending to union. This act is an act that maketh a new law; it is by the words of grant and establish. These two acts declare the common law as it is, being by words of recognition and confession.-And therefore upon the difference of these laws you may substantially ground this position: that the common law of England, upon the adjunction of any kingdom unto the king of England, doth make some degree of union in the crowns and kingdoms themselves; except by a special act of parliament they be dissevered. Lastly, the fifth act of parliament which I promised, is the act made in the 42 of E. 3, cap. 10. which is an express decision of the point in question. The words are, Item, (upon the petition put into parliament by the commons) |