THREE SPEECHES OF The Right honourable, Sir Francis Bacon Knight, than his majesty's solicitor general, after LORD VERULAM, Viscount Saint Alban.  
Concerning the POST-NATI naturalisation of the Scotch in England union of the laws of the kingdoms of England and Scotland.  
Published by the author's Copy, and licenced by Authority.  
LONDON, Printed by Richard Badger, for Samuel Broun, and are to be sold at his shop in St. Paul's churchyard at the sign of the white lion and Ball.  
1641.   

15. May. 1641.  
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 majesty's solicitor general, in the Case of the POST-NATI of Scotland, in the Exchequer Chamber, before the Lord Chancellor and all the judges of England.  
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 natinatorum, et qui nascentur ab illis:  
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 fortissimus; Yet he was thought to have said better, evenin the opinion ofa King himself that said, Veritas fortissima et pravalet. 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 freehold 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, arrepta non porrecta.  
The case argued in the King's Bench by M. 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 said) 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 firmly hold and doubt not but I shall well maintain, that this is the truth, That Calvin the plaintiefe is Ipso Iure by the law of England a natural born subject, to purchase freehold and to bring real 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 speech into further 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.   
And first for explanation. The outward question in this case is no more, but whether a child borne in Scotland since his majesty's happy coming to the crown of England, be naturalised 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 naturalised.  
It is confessed, that both realms are united in the person of our sovereign; or (because I will gain nothing by surreption, in the putting of the question) that one & the same natural person, is King of both realms.  
It is confessed, that the laws and Parliaments are several. So then, whether this privilege and benefit of naturalisation be an accessary or dependency up on that which is one and joint, 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 naturalisation. For if you well understand the nature of the two Principals, and again the nature of the accessary; Then shall you discern, to whether Principal the accessary doth properly refer, as a shadow to a body, or Iron to an Adamant.  
And there 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 to 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 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 show them to be as fine moneys, which are currant 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 judgement, that required more that Littleton's advice should be followed in those two points, than doth the present case in question. And first of the King.  
It is evident that all other commonwealths (Monarchies only excepted) do snbsist 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 presuppose a law precedent written or unwritten to guide and direct them. But in Monarchies, especially hereditary, that is when several families, or Ilneages 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, & their motives and occasions. The platforms are three.  
The first is that of a father, or chief of a family: who governing over his wife by prerogative of sex, over his children by prerogative of age, and because he is author unto them of being; and over his servants by prerogative of virtue 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 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 kingdom and to establish another form of estate, he 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, & this is the first platform, which we see is merely natural.  
The second is, that of a shepherd and his flock; which Zenophon 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 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 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 butan untimely fruit) was translated from a shepherd, 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 platform, a work likewise of nature.  
The third platform is the government of God himself over the world, whereof lawful Monarchies, 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 the divine Majesty; never to a Senate or people. And so you find it twice in the Lord cook's Reports: once in the second book, the Bishop of Winchester's case; and his first book. 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 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 the 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 descendents 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 obeyseance 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 dwelled scattered, into one place, where they might cohabit with more comfort; or to guide them from a more barrenland to a more fruitful, or the like: upon these deserts, and the admiration and recompense 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 wars, in regard of preservation. And therefore we find in the 18. Chap. of the book of judges, verse 22. Dixerunt omnes viri ad Cedeon Dominare nostri, tu et filij tui, quoniam servasti nos de manu Madian. 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, & 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 enforced submission, which is Conquest, whereof it seemed Nymrod was the first precedent, 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 four submissions are evident to be natural and more ancient than law.  
To speak 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 sovereign power doth 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 with out the King's power, are dead; the King's power except the laws 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 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 not 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 potestatis, est plevitudo 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 original submission, which was natural? or shall it be said that all allegiance is by law? No more than it can be said, that potest potestas patris, the power of the Father over the Child, is by Law: and yet no doubt laws do diversely define of that also; the Law of some Nations having given father's 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 laws in some points do make it more positive. And even so it is of allegiance of subjects to hereditary monarchs, which is corroborate 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: was was Eurition 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 the first, 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 Style which divers Acts of Parliaments do give unto the King: which term him very effectually and truly, Our natural Sove, reign 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 Bulleins' Lands: That he would never allow, that Queen Elizabeth. (I remember it for the efficacy of the phrase) should be a Statute Queen, 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 naturalisation itself, and that according to the rules of the Law of England. Naturalisation 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 poportions our Law doth impart and confer the several degrees of this benefit: The degrees are four.  
The first degree of persons, (as to this purpose) that 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 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 2. of Ric. the 3, fo. 2. Nevertheless, this admitteth a distinction. For if he come with safe conduct, otherwise it is. For than 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: but he must complain himself before the King's Privy council: 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 council shall be executed by aid of the chancery, as is 13. Edw. 4. An this is the first degree.  
The second person, is an Alien friend, that is such a one as is borne under the obeisance of such a King or State, as is confederate with the King of England, or at least not in war with him. To this person the Law allotteth this benefit, that as the Law accounts that the hold it hath over him, is but a tranfitory hold (for he may be an Enemy) So the Law doth endue him, but with a transitory benefit, that is of movable goods and personal actions. But for freehold, or lease, or actions real, or mixed: he is not enabled, 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 denizen, using the word properly; (for sometime it is confounded with a natural born subject.) This is one, that is but Subditus insitivus, 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 realm, 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 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 freehold 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 à 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 division beyond these: And therein it seemeth to me that the wisdom of the Law (as I said) is to be admired both ways, both because it distinguisheth so far, and because it doth not distinguish further. For I know that other laws do admit more curious distinction of this privilege; For the Romans had besides 〈◊〉 Civitatis, which answereth to naturalisation, Ius Suffragii. For although a man were naturalised 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 further they have Ius Petitionis, or Ius Honorum. 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 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 Earl of Ireland, though he be naturalised in England, yet hath so voice 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 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 ex post facto, after birth, after the state of the birth; wherein no doubt the Law hath a grave and profound reason, which is this in few words, Nemo subito fingitur; aliud est nasci, aliud fieri: we indeed more respect and affect these worthy Gentlemen of Scotland whose merits and conversations we know: but the Law that proceeds upon general reason and looks upon no men's 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 borne (nam tertium penitus ignor amus.) It is manifest then, that if the Post. nati of Scotland, be not natural borne, they are alien born and in no better degree at all, than Fleming's, 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 me very worthy the consideration, which is, that in all the distribution of persons, and the degrees of abilities or capacities, the King's 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 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 cannot by the King's Patent, but by operation of Law: yet that the law, in that operation, respecteth only the King's 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, is the strongest groundwork to that which is contradicted or controverted.  
There followeth the confutation of the Arguments on the contrary side.  
That which hath been materially objected may be reduced to four heads.  
The first is, that the privilege of naturalisation, followeth allegiance, and that allegiance followeth the kingdom.  
The second is drawn 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 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 naturalisation ipso jure.  
The fourth is not properly an objection, but a preoccupation 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 properly to observe that those which maintain this new opinion, whereof there is altum Silentium in our books of Law, are not well agree 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 subtlety, 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 bookcases mentioning and reciting the forms of pleadings.  
The reason they bring is this; That naturalisation is an operation of the Law of England, and so indeed it is, that may be the true genus of it.  
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 naturalisation by a birth in Scotland.  
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 poena, & praemio. 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. 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 only of ordaining a form of trial, Ergo it was treason before. And if so, than 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; then 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 naturalisation upon a birth neither within the Dominions of the kingdom, nor King of England. By the Statute of 25. E. 3. which, if you will believe 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 their allegiance are ipso facto naturalised. 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 well be avoided; which is that it divers Families of Englishmen and women plant themselves at Middleborough or at Roan, or at Lysoone, and have issues, and their deseendents do intermarry, amongst themselves without any intermixture of foreign blood; such descendents are naturalised to all generations, for every generation is still of liege Parents, and therefore naturalised. 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, of confer naturalisation, but only within the bounds of the Dominions of England.  
To come now to their inferences upon Statutes. The firstis out of this Statute which i last recited. In which Statute it is said, that in four several places, there are words; borne within the allegiance of England; or again borne 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 not trope of speech more familiar then 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 Warmick intending the possessions of the Dukes of Somerset, or Earls of Warmick. So we seeEarles 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 collect- on 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 same Statute, Allegeange and obeisance of the King of England, and specially 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 is manifest by this indifferent and indifferent use of both Phrases, the one proper, the other unproper, 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. of H. 8. ca. touching the policy of stranger's trades men within this realm. For the Parliament finding, that they did eat the Englishmen out of trade, and that they entertained no Apprentizes, but of their o une Nation, did prohibit that they should receive any. Apprentice, but the King's Subjects. In which Statute is said, that in 9 several places, there is to be found this context of words, Aliens borne out of the King's obedience; which is pregnant (say they) and doth imply that there be Aliens borne within the King's obedience. Touching this inference I have heard it said Qui haeret in litera, baeret in cortice, but this is not worthy the name, of Cortex, it is but muscus 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 than there are aliens in common reputation & aliens in precise construction ofLaw, The Statute then meaning not to comprehend Irishmen, 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 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 borne 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 or liberty which the Statute means to deny to Aliens of entertaining Apprentizes is denied to none, borne 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 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 crown of France, was devolute to K. E. 3. & that he had changed his style, changed his arms, changed his seal, (as his majesty hath done) the Subject of England (saith the Statute) conceived a fear that the realm of England might become subject to the realm of France, or to the K. as K. 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 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 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 K. as K. 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 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 certain kingdom, but to this I give an answer threefold.  
First, it preffeth not the question; for doth any man say that a Post-natus of Scotland is naturalised 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 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 〈◊〉 been made to stop & 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; show us a Statute for that. But I hope you can show 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 novae 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 bookcases which they put: which I will couple together because they receive one joint answer.  
The first is 42. of E. 3. fo. where the book saith: exception was taken that the plaintiff was borne in Scotland at Rosse, out of the allegiance of England.  
The next is 22. H. 6. fo. 38. Adrian's Case, where it is pleaded that a woman was borne at Burgis, out of the allegiance of England.  
The third is 13. Eliz. Dyer fo. 300 where the case begins thus: Doctor Story qui notory dignoscituresse subditus regni Angliae. 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 narrative, and not according to the solemn words of the pleading. If you find a case put, that it is pleaded, a man was seized in Fee. simple, you will not infer upon that, that the words of the pleading were in feodo simplici; but sibi & haeredibus suis. But show me some precedent of a pleading at large of Natus sub legeantia Regni Angliae; 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 legeantia, or obedientia, and some other circumstances, but in the form of Regni and Regis, they vary not: neither can there, as i am persuaded be any one instance showed forth to the contrary. See 9 Eliz. 4. Baggots Assize, f. 7. where the pleading at large is entered in the book; There you have, alienigena natus extra legeantiam domini Regis Angliae. See the precedents in the book 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 legeantian 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 makeall for us. And for the very words of Reporters in books, you must acknowledge and say, Ilicet obruimur numera. for you have 22 Ass. Pl. 25. 27. ass. the prior of Skellyes 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 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. of Eltz. 3. which is your best book, although while it is tossed at the Bar, you have sometimes the word allegiance of England, yet when it comes to Thorpe chief justice to give the rule, he faith; we will be certified by the Role, whether Scotland be within the allegiance of the King. Nay that further form of pleading beateth down your opinion. That it sufficeth not to say, that he is borne out of the allegiance of the King, and stay there, but he must show in the affirmative under the allegiance of what King, or state he was borne. 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: not 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 apprise the court more certainly, that the country of the birth is none of those, that are subject to the King. As for the trial, that it should be impossible to de tried; I hold it not worth the answering; for the ovenire facias, shall go either where the natural birth is laid, although it be but by fiction, 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 2 gersy man? Nay how should the birth of a subject be tried that is borne 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.  
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 eye of law distinct, as if they were in several 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 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 coporations 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 the Crown, as shall be manifestly proved in due place. But to show that this rule receiveth this distinction, I will put but two cases. The statute of the 21. Hen. 8. ordaineth that a marquess may retain six chaplains qualified, a Lord Treasurer of England four, a privy counsellor three. The Lord Treasurer Paulet was Marqueffe of Winchester, Lord Treasurer of England and privy counsellor all at once. Question was whether he should qualify 13. Chaplains. Now by the Rule cum duo Iura, 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 signories, though but one Tenant, and one Lord, aequum est ac si esset in duobus. But ruled that he should not do homageagaine: nay in the Case of the King, he 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 sworn to his Lord, he cannot be sworn over again, he hath but one Conscience, and the Obligation of this Oatli, 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.  
The third main Argument containeth certain supposed inconveniences, which may ensue of a general naturalisation ipso jure, of which kind three have been specially remembered.  
The first is the loss of profit, to the King upon Letters of Denization, and purchases of Aliens.  
The second is the concourse of Scottishmen into this kingdom, to the enfeebling 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 Scottishmen were naturalised being people of the same island and language, 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 descendents, there should be a match with Spain, and the Dominions of Spain should be united with the crown of England by one reason (say they) all the West-indies should be naturalised; which are people not only, alterius Soli but alterius Caeli. To these conceits of inconvenience, how easy it is to give answer, and how weak they are in themselves, I think 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 foreigners (for seizure of aliens Lands are in regard the King hath no hold or command of their persons, and services) every one may perceive. And for the confluence of Scottishmen, I think we all conceive the springtide is past at the Kings first coming in. And yet we see very few families of them, throughout the Cities & boroughs of England. And for the naturalising 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 judgement seat) 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 selfsame 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 Hen. 7. had accepted the offer of Christopher Columbus, whereby the crown of England had obtained the Indies by conquest or occupation, all the Indies had been naturalised by the confession of the adverse part. And therefore since it is confessed, that Subjects obtained by Conquest are naturalised, & 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 allege the authority of his adversaries against himself, we do urge the Confession of the other side, that they confessed the Irish are naturalised, that they confess the Subjects of the isles of gersy and Garnsey, and Barwick to be naturalised, and the subjects of Calais and Tourney when they were English were naturalised, 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 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 ignorance and error. And therefore to take a view of the supports of this difference, they allege 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 purchase a close by it, that it should make that parcel of the manor of Dale. But I will set this new Learning on ground with a question or case put. For i oppose them that hold this opinion with this Question, if the King should conquer any foreign country by an Army compounded of Englishmen and scottishmen, as it is like whensoever wars are, so it will be. I demand whether this country conquered shall qe naturalised 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 naturalised in both kingdoms, the one kingdom not being naturalised towards the other? These are the intricate consequences of Conceits.  
A second reason they allege, is, that countries won by Conquest become subject to the laws of England, which Countries patrimonial are not, and that the Law doth draw the allegiance, and allegiance naturalisation.  
But to the Major proposition of that Argument, touching the dependency of aliegeance upon Law, somewhat hath been already spoken, and full answer shall be 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 laws of England are not superinduced upon any country by Conquest; but that the old laws remain until the King by his Proclamation or Letters patents declare other laws, and then if he will, he may declare laws which be utterly repugnant, and differing from the laws of England. And hereof many ancient precedents and Records may be showed; that the Reason why Ireland is subject to the laws 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 King's possession, For there areRecords in the time of King. S. 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.  
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, & 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 be two means to assure and retain in obedience countries conquered, both very differing, almost in extremes 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 Roman manner but this is like an old relic, 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 war, and other like matters of terror and bridle.  
To the first of these (which is little used) it it true that naturalisation doth conduce, but to the latter it is utterly opposite, as putting too great pride, and means to do hurt, in those that are meant to be kept short and low. And yet in the very first case of the Roman proceeding, naturalisation did never follow by 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, & sometimes to Nations, until the time of Adrian the Emperor, and the Law in orb Romano, and that Law 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. And certainly I suppose it will sound strangely in the hearing of foreign 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 confer the benefit and privilege of naturalisation upon such, as cannot at the first but bear hatred and rancour to the state of England, and have had their hands in the blood of the Subjects of England, and should deny the like benefit to those that are conjoined with them by a more amiable mean: And that the law of England, should confer naturalisation upon slaves and vassals (for people conquered are no better in the beginning) and should deny it to freemen: I say it will be marvelled at abroad, of what complexion the laws of England be 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 again. But in case of descent, there is a possibility, if his majesty's line should fail, the kingdoms may severe again to their respective heirs, 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 die without issue, the Rent is revived. As to this Reason, I know well the continuance of the King's line, is no less dear to those, that allege the reason, then to us that confute it. So as I do not blame the passing of the reason; but it is answered with no great difficulty; for first the law doth never respect remote and foreign possibilities, as noteably appeared in the great case between Sir Hugh Cholmley, 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 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 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 that 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 vate exploded this reason, and said, that Monasteries were down, and entries into Religion gone; and they must be up again ere this could be, and that the Law did not respect such remote, and foreign 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 fail, but the true answer is, that the possibility subsequent, remote, or not remote doth not alter the operation 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 mean time, and should be grantable, which is clearly otherwise. And so in the principal case, if that should be (which God of his goodness forbid) cessante causa, cessat effectus, the benefit of naturalisation 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 device full of weakness and ignorance: and that there is one, and the same reason of naturalising 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 clear, 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, holds as well in Arguments, as in Nature, the destruction of an objection begets a proof. But neverthelefse, I will avoid all iteration, lest I should seem either to distract your memories, or to abuse your patience; But will hold myself only to these proofs, which stand substantially of themselves, and are not intermixed with matter of confutation. I will therefore prove unto your Lordships, that the post-natus of Scotland is by the Law of England natural, and aught foe to be adjudged by three courses of proof.  

1. First upon point of favour of Law.  
2. Secondly, upon reasons and authorities of Law.  
3. And lastly, upon former precedents & examples.   
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, & 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 infranchise his bondman, when he 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 villainage, doth cross and abridge the Law of Nature? And doth not the selfsame reason hold in the present case; For my Lords by the Law of Nature, all men in the world are naturalised one towards another, they were all made of one lump of earth, of one breath of God, they had the same common Parents. Nay at the first they were, as the Scripture showeth, unius Labii, of one Language, until the curse, which curse (Thanks be to God) our present case is exempted from. It was civil and national laws, that brought in these words, and differences of Civis and Exterus, Alien & Native And therefore because they tend to abridge the Law of Nature, the Law favoureth not them, but takes them strictly, even as our Law hath an excellent rule, that customs of towns & Burroughes shall be taken and construed strictly & 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 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 appear to you but doubtful, as I think no man in his right senses but will yield it, to be at least doubtful, 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 naturalisation, as a branch of the law of Nature: so it appears manifestly, that it doth favour it accordingly. For is it not much to make a Subject naturalised? 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 Spaniards, or what you will. On th'other side, if he be borne of English Parents, it skilleth not though he be borne in Spain, or in any other place of the World. In such sort doth the Law of England open her lap to receive in people to be naturalised, which indeed showeth the wisdom and excellent composition of our law. And that it is the law of a Warlike and Magnanimous Nation, sit for Empire. For look, and you shall find that such kind of estates have been ever liberal in point of naturalisation: whereas marchantlike and envious estates have been otherwise. For the reasons of law joined with authorities, I do first observe to your Lordships, that our assertion or affirmation is simple and plain: that it sufficeth to naturalisation, 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 allegiance of our Lord the King. They of th'other side speak of respects, and quoad and quatenus, and such subtleties and distinctions. To maintain therefore our assertion, i will use three kinds of proofs.  
The first is, that allegiance cannot be applied to the Law or kingdom, but to the person of the King, because the allegiance of the Subject is more large and spacious, and hath a greater latitude, and comprehension, than the Law or the kingdom. And therefore it cannot be a dependency of that, without the which it may of itself subsist.  
The second proof which I will use, is, that the natural body of the King hath an operation and influence into his body politic, as well as his body politic hath upon his body natural, And therefore that although his body politic of King of England, and his body politic of King of Scotland be soverall and distinct: Yet nevertheless, his natural person, which is one, hath an operation upon both, and createth aprivity between them.  
And the third proof is the binding text of five 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 lawgivers, that the first submissions were simple, and upon confidence to the person of Kings, and that the allegiance of Subjects to hereditary Monarchies, can no more be said to consist by laws, than the obedience of Children to Parents.  
That allegiance continueth after laws, I will only put 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 expalsed his kingdom, and some particular subjects should follow him in flight, or exile in foreign parts, and any of them there should conspire his death, that upon his rocoveryof 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 ethe 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 power of the King, is so far, from being then extinguished, or suspended; as contrariwsse it is raised, and made more absolute, for than he may proceed by his supreme authority, and martial Law without observing formalities of the laws of his kingdom. And therefore whosoever speaketh of laws, and the King's power by laws, and the Subjects obedience, or allegiance to laws, speak but of one half of the crown. For Bracton out of Justinian doth truly define, the crown to consist of laws and arms, power civil and martial, 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 Edinburgh or Sterling, or again in London, or York; But if Englishmen and Scottishmen meet in an Army royal before Calais. I hope than they are under one Law. So likewise not only in time of war, but in time of peregrination: If a King of England travail, or pass through foreign territories; yet the allegiance of his Subjects followeth him, as appeareth in that not able case which is reported in 〈◊〉, where one of the train of K. Ed. I. as be past through France from the Holy Land, embezzled some silver Plate at Paris, and Jurisdiction was demanded of this crime by the French King's counsel at Law. 〈◊〉 〈◊〉, and demanded likewise by the Officers of K. Edw. ratione personae, and after much solemnity and contestation and interpleading, it was ruled and determined for King Edward, and the party tried and judged before the Knight marshal of the King's house, and hanged after the English Law, and execution in St. Germans meadows: and so much for my first proof.  
For my second main proof; that is drawn from the true & 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 è converso, his natural body worketh 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 Ed. 6. 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 Kings learned counsel, Ruswell the solicitor, only except, 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, & corpus naturale in corpore corporato. The like I find in the great case of the Lord Barkeley 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 one upon the other. The body politic of the crown endueth 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 K. 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 oporations the Kings natural person hath upon his crown and body politic: Of which the chiefest and greatest is, that it causeth the crown to go 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 show me in all the Corporations of England, of what nature soever, whether they consist of one person, or of many: or whether they be temporal or ecclesiastical, any one takes to him and his heirs, but all to him and his successors; And therefore here you may see what a weak course that is, to put cases of Bishops and Parsons, 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 words heirs. The King, his heirs and successors.  
Again no man can deny but uxor & filius sunt nomina naturae. 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 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 Queen Katherine Pars 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 sergeant. heals case: whether the Statute of 11. of Ed. 3 concerning the entailing of the dukedom of Cornwall to the Prince 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 Major of London, worketh any thing in law upon the wife, or son of the Bishop or the Major. And to conclude this point and withal to come near to the case in question, I will show you where the natural person of the 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 Scottishman who is a Subject to the natural person of the King, and not to the crown of England, can a Scottishman, 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 Scottishman, that should spoil an Englishman's goods at Sea, and certainly this case doth press exceeding near the principal case, for it prooveth 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 kingdoms stand in another degree of privity one towards the other; then they did before. And so much for the second proof.  
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 down in these words. Homage and Oath of the Subject is more by reason of the crown, then 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 plain'y appear the perilous consequence of this distinction concerning the person of the King, and the crown. And yet i do acknowledge Justice, and ingeruously 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 diftinction dee 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, & assertion of Spencer is like the poison of a Scorpion, more in the tail then in the body: For it is the inference that they make which is, that the King may be deposed or removed, that is, the treason and dislayalty of that opinion: But by you leave the body is never a whit the more wholesome meare, for having such a tail belonging to it: therefore 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 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 extol the power of monarchs to be infinite, but it was contrary; a prosecution 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 recognize, that these two realms 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 ono imperial crown, which cannot be applied but to the sovereign power of Regiment, comprehending both kingdoms. And the third act of Parliament 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 Judgements in Parliament by way of declaration of Law, against which no man can speak. And certainly these are righteous and true judgements 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 parts 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 selfsame fountain of sovereign power depending upon the ancient submission, whereof I spoke in the beginning, and in that sense, the crowns and the kingdoms 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 confess thus far: That in ancient times when Monarchies (as he said) were but heaps of people, without any exact form of policy, that the naturalisation 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 those 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 disanullor destroy it.  
And therefore with these two acts do i likewise couple the Act of 14. Ed. 3. which hath been alleged of the other side. For by collating of that Act with this former too, the truth of that we affirm will the more evidently appear, according unto the rule of reason: Opposita juxta se posita magis elucescunt. That act of 14. is an act of separation. These two Acts formerly recited are Acts tending to union. This Act is an act that maketh a new Law, it is by the words of grant and establish, these two Acts declare the common law, as it is, being by words of Recognition and Confession.  
And therefore upon the difference of these laws you may fubstantially 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 5. Act of Parliament, which I promised is the Act made in the 42. of E. 3. cap. ●. 10. which is express 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 signories of Callice, and elsewhere within the lands and signories that pertain to our sovereign Lord the King beyond the Seas, be as able and inheritable of their heritage in England, as other Infants borne within the realm of England, it is accorded that the Common-law and the Statute formerly made be holden.  
Upon this Act, i infer thus much, first that such as the Petition mentioneth, were naturalised, the practice shows; 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 King's obedience, where the Parents are English, Ergo it was by the Common-law, for that only remains. And so by the Declarations of this statute at the Common-law. All Infants borne within the Lands and signories (for I give you the very words again) that pertain to our sovereign 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 realm of England: what can be more plain? And so I leave Statutes, and go to precedents; for though the one do bind more, yet the other sometimes doth satisfy more. For precedents in the producing & using of that kind of proof, of all others it behooveth them to be faithfully vouched; for the suppressing or keeping back of a circumstance may change the case, and therefore i am determined to urge only such precedents, 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 & signories united unto them, as Patrimonies, and by descent of blood; four unions I say there have been inclusive with this last. The first was of Normandy in the person of William commonly called the Conqueror. The 2d. was of Gascoigne, and Guienne, and Aniou in the person of K. Hen. the 2d. in his person I say, though by several titles. The 3. was of the crown of France, in the person of K. Edw. the third. And the 4th. of the kingdom of Scotland in his Majesty. Of these I will set aside such, as by any cavillation can be excepted unto. First, i will set aside Normandy, because it will be said, that the difference of countries accrueing by conquest, from countries annexed by descent in matter of Communication of privileges holdeth both ways, as well of the part of the conquering kingdom, as the conquered. And therefore that although Normandy was not conquest of England, yet England was a conquest of Normandy, and so a communication of privileges between them. Again, set aside France, for that it will be said, that although the King had a title in blood, and by descent, yet that title was executed and recovered by arms: So as it is a mixed title of conquest & descent, and therefore the precedent not so clear.  
There remains than Gascoigne & Aniou, and that precedent, likewise I will reduce and abridge to a time to avoid all question. For it will be said of them also, that after they were lost and recovered in o'er gladii, that the ancient title of blood 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, quia profecturus in Gasconiam with the Earlo of Huntingdon, and challenged because it was not a voyage royal, & the Justices thereupon required the sight of the commission, which was brought before them, & purported power to pardon felovies, & treason, power to coin money, & power to conquer them that resist, whereby M. Walter finding the word conquest, collected that the King's title at that time was reputed to be by Conquest, wherein I may not omit to give Obiter that Answer, which Law and Truth provideth, namely that when any King obreyneth by war a country, whereunto he hath right by Birth, that he is ever in upon his ancient Right, not upon his purchase by Conquest; and the Reason is, that there is as well a Judgement and recovery by war and arms, as by law and course of Justice; for war is a tribunal seat, wherein God giveth the judgement, & the trial is by battle, or duel, as in the case of trial of private right, and then it follows, that whosoever cometh in by eviction, comes in his remitter: so as there will be no difference in countries whereof the right cometh by descent, whether the possession be obtained peaceably or by war, but yet nevertheless, 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 Gascoigne & Guyenne might be 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 precedents, in the time of King H. 5. or King H. 6. for the same reason, but will hold myself to a portion of time, from the first uniting of these Provinces in the time of King H. 2. until the time of K. John. At what time those Provinces were lost, and from that time again unto the 17. year of the reign 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 naturalised for inheritance in England by the laws of England. I shall manifestly prove, and the proof 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 For if this privilege of naturalisation remained unto them when the countries were lost, and became subjects in possession to another King: much more did they enjoy it, as long as they continued under the King's subjection.  
Therefore to open the State of this point. After these Provinces were through the perturbations of the State in the infortunate time ofK. John lost, and severed, the principal 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 Gascoigne, and were both accounted, ad fidem utriusque Regis, until the Statute of Proerogativa Regis, wherein the wisdom 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 cowardice and disloyalty of their governors that deserved punishment, butwhat had these sheep done, and therefore to have punished them, and deprived them of their lands & fortunes had been unjust. That of policy was, because if the law had forthwith upon the loss of the countries by an accident of time pronounced the people for Aliens, it had been a kind of session of their right, and a diselaymer in them, and so a greater difficulty to recover them. And therefore we see the Statute, which altered the law in this point, was made in the time of a weak king, that, as it seemed, despaired ever to recover his right, and therefore thought better to have a little present profit by escheats, than the continuance of his claim, 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 naturalised; for the clearing whereof, I shall need but to read 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 appears plainly that before the time of King John, there was no colour of any Escheare, because they were the King's Subjects in possession, as Scotland now is, but only 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 ancient, th'other for late times. The former is 〈◊〉 in his Cap. de exception 〈…〉, lib. 5. fol. 427. and his words are these, Est etiam & 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 loss of the Provinces beyond the Seas, the naturalisation of the Subjects of those Provinces was in no sort extinguished, but only was in suspense during time of war and no longer; for he saith plainly, that the exception which we call plea to the person of Alien, was not peremptory but only dilatory, that is to say, during the time of war, and until there were peace concluded, which he terms by these words, donec terrae fuerint communes, which though the phrase seem somewhat obscure is expounded by Bracton himself in his fourth book, 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 clear, they were no Aliens in right, but only interrupted and debarred of suits in the King's Courts in time of war.  
The authority after the Statute, is, that of Master Stamford's, the best Expositor of a statute that hath been in our law, a man of reverend judgement, & excellent order in his writings, his words are in his exposition upon the branch of that statute which we read before. By this branch it should appear, that at this time men of Normandy, Gascoigne, Guienne, Aniou, and Britain were inheritable within this realm, as well as Englishmen, because that they were sometimes Subjects to the Kings of England and under their Dominion, until K. John's time, as is aforesaid, & yet after his time, those men (saving such whose lands were taken away for treason) were still inheritable within this realm, till the making of this Statute, and in the time of peace between the two Kings of England, and France, they were answerable within this realm, 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 Gascoigne, Guienne, Aniou, and the rest from their first union by descent, until the making of the Statute, of praerogativa Regis, were inheritable in England, and to be answered in the King's Courts in all actions, except it were in time of war. 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 nevertheless, the privilege of naturalisation continued.  
There resteth yet one objection, rather plausible to a popular understanding, than any ways forcible in law, or learning, which is a difference taken between the kingdom of Scotland, and these duchies, for that the one is a kingdom, and th'other was not so, and therefore that those Provinces being of an inferior nature, did acknowledge our laws, and seals, and Parliament which the kingdom of Scotland doth not.  
This difference was well given over by Mr. Walter, for it is plain, that a kingdom and absolute dukedom, or any other sovereign estate do differ honore, and not potestate; For divers duchies, and Countries that are now, were sometimes kingdoms; and divers kingdoms that are now, were sometimes duchies, or of other inferior Style, wherein we need not travail abroad since we have in our own state so notorious an instance of the country of Ireland, whereof King H. 8. of late time was the first that writ himself 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 sovereign State, as their Parliaments, their arms, their coins, as they now have, so as this is too superficial an allegation labour upon.  
And if any do conceive, that Gascoigne and Guyenne were governed by the laws of England. First, that cannot be in reason, for it is a true ground, that wheresoever any Prince's Title unto any country is by Law, he can never change the laws, for that they create his Title: and therefore no doubt those duchies retained their own laws, which if they did, than they could not be subject to the laws of England  
And next again the fact or practice was otherwise, as appeareth by all consent of Story and Record: For those duchies continued governed by the civil Law, their trials by witresses and not by jury, their lands Testamentary, and the like.  
Now for the colours, that some have endeavoured to give, that they should have been subordinate to the government of England, they were partly weak, and partly such as make strongly against them, for as to that, that writs of Habeas corpus under the great seal of England have gone to Gascoigne, it is no manner of proof, for that the King's writs which are mendatory and not writs of ordinary Justice may go to his Subjects into any foreign parts whatsoever, and under what seal it pleaseth him to use; and as to that, that some Acts of Parliament have been cited, wherein the Parliaments of England have taken upon them to order matters of Gascoigne, 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 Gascoigne, for look 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? only by English Merchants, not a word of the Subjects of Gascoigne, and yet no doubt they mighr be offenders in the same kind.  
So in the sixt Chapter it is said, That all merchants, 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 realm of England, and in the 7. Chap. that erects the Ports of Bordeaux and Bayonne, for the staple towns of wine, the Statute ordains that if any, but who? English merchant or his Servants shall buy or bargain other where, his body shall be arrested by the Steward of Gascoigne, or the Constable of Bordeaux: true, for the Officers of England could not catch him in Gascoigne, but what shall become of him, shall he be proceeded with within Gascoigne? No, but he shall be sent over into England into the Tower of London.  
And this doth notably disclose the reason of that custom, which some have sought to wrest the other way, that custom, I say, whereof a form doth yet remain, that in every Parliament the King doth appoint certain Committees in the Upper-House to receive the Petitions of Normandy, Guyenne and the rest, which as by the former Statute doth appear 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 misdemeanours of our Subjects when they went thither.  
Wherefore I am now at an end. For us to speak of the mischiefs, I hold it not fit for this place, left we should seem to bend the laws to policy and not to take them in their true and natural sense. It is enough that every man knows, that it is true of these two kingdoms, 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 press 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 plaintiff.