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, even in the opinion of the king himself, that said, "Veritas fortissima, et prævalet:" And I do much rejoice to observe such a concurrence in the whole carriage of this cause to this end, that truth may prevail.

gain nothing by surreption, in the putting of the question, that one and 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 naturalization to be an accessory or dependency upon that which is one and joint, or upon that which is several, hath been, and must

The case no feigned or framed case; but a true be the depth of this question. And therefore 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 Mr. Walter with great liberty, and yet with good approbation of the court; the persons assigned to be of counsel on that side, inferior to none of their quality and degree in learning; and some of them most conversant and exercised in the question.

your lordships do see the state of this question doth evidently lead me by way of inducement to speak of three things: The king, the law, and the privilege of naturalization. For if you well understand the nature of the two principals, and again the nature of the accessory; then shall you discern, to whether principal the accessory doth properly refer, as a shadow to a body, or iron to an adamant.

And therefore your lordships will give me leave, in a case of this quality, first to visit and open the foundations and fountains of reason, and not begin with the positions and eruditions of 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

petent 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 current not only by the stamp, because they are so received, but by the natural metal, that is, the reason and wisdom of them.

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 | detract from the sufficiency of our laws, as incomassistance 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 plaintiff is" ipso jure," by the law of England, a natural born subject, to purchase freehold, and to bring real actions within England. In this case I must so consider the time, as I must much more consider the matter. And, therefore, though it may draw my speech into farther length; yet I dare not handle a case of this nature confusedly, but purpose to observe the ancient and exact form of pleadings; which is,

First, to explain or induce.

Then, to confute, or answer objections.
And, lastly, to prove, or confirm.

And, first, for explanation. The outward question in this case is no more, but, Whether a child, born in Scotland since his majesty's happy coming to the crown of England, be naturalized in England, or no? But the inward question or state of the question evermore beginneth where that which is confessed on both sides doth leave. It is confessed, that if these two realms of England and Scotland were united under one law and one parliament, and thereby incorporated and made as one kingdom, that the "post-natus" of such a union should be naturalized.

It is confessed, that both realms are united in the person of our sovereign; or, because I will

And Master Littleton himself in his whole book doth commend but two things to the professors of the law by the name of his sons; the one, the inquiring and searching out the reasons of the law; and the other, the observing of the forms of pleadings. And never was there any case that came in judgment that required more, that Littleton's advice should be followed in those two points, than doth the present case in question. And, first, of the king.

It is evident that all other commonwealths, monarchies only excepted, do subsist by a law precedent. For where authority is divided amongst many officers, and they not perpetual, but annual or temporary, and not to receive their authority but by election, and certain persons to have voice only to that election, and the like; these are busy and curious frames, which of necessity do presuppose a law precedent, written or unwritten, to guide and direct them: but in monarchies, especially hereditary, that is, when several families or lineages of people do submit themselves to one line, imperial or royal, the submission is more natural and simple, which afterwards by laws subsequent is perfected and made more formal; but that is grounded upon nature. That this is so, it appeareth notably in two things; the one the platforms and patterns which

are found in nature of monarchies; the original submissions, and their motives and occasions. The platforms are three :

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 the very model of a king. So is the opinion of Aristotle, lib. iii. Pol. cap. 14, where he saith, "Verum autem regnum est, cum penes unum est rerum summa potestas: quod regnum procurationem familiæ imitatur."

And therefore Lycurgus, when one counselled him to dissolve the kingdom, and to establish another form of estate, answered, "Sir, begin to do that which you advise first at home in your own house:" noting, that the chief of a family is as a king; and that those that can least endure kings abroad, can be content to be kings at home. And this is the first platform, which we see is merely natural.

The second is that of a shepherd and his flock, which, Xenophon saith, Cyrus had ever in his mouth. For shepherds are not owners of the sheep; but their office is to feed and govern: no more are kings proprietaries or owners of the people for God is sole owner of the 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 but an untimely fruit, was translated from a shepherd, as you have it in Psalm lxxviii. "Et elegit David servum suum, de gregibus ovium sustulit eum,-pascere Jacob servum suum, et Israel hæreditatem suam." This is the second platform; a work likewise of nature.

For the original submissions, they are four in number: I will briefly touch them: The first is paternity or patriarchy, which was when a family growing so great as it could not contain itself within one habitation, some branches of the descendants were forced to plant themselves into new families, which second families could not by a natural instinct and inclination but bear a reverence, and yield an obeisance to the eldest line of the ancient family from which they were derived.

The second is, the admiration of virtue, or gratitude towards merit, which is likewise naturally infused into all men. Of this Aristotle putteth the case well, when it was the fortune of some one man, either to invent some arts of excellent use towards man's life, or to congregate people, that dwelt scattered, into one place, where they might cohabit with more comfort, or to guide them from a more barren land to a more fruitful, or the like: upon these deserts, and the admiration and recompense of them, people submitted themselves.

And

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. therefore we find in chap. xviii. of the book of Judges, ver. 22, "Dixerunt omnes viri ad Gideon, Dominare nostri, tu et filii 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 thousands, and David his ten thousand of enemies," he said straightways: "Quid ei superest nisi ipsum regnum?" For whosoever hath the military dependence, wants little of being king.

the conqueror hath power of life and death over his captives; and, therefore, where he giveth them themselves, he may reserve upon such a gift what service and subjection he will. All these four submissions are evident to be natural and more ancient than law.

The fourth in an enforced submission, which is conquest, whereof it seemed Nimrod was the first precedent, of whom it is said; "Ipse cœpit potens The third platform is the government of God esse in terra, et erat robustus venator coram Domihimself over the world, whereof lawful monar-no." And this likewise is upon the same root, which chies are a shadow. And, therefore, both amongst is the saving or gift as it were of life and being; for the heathen, and amongst the Christians, the word, sacred, hath been attributed unto kings, because of the conformity of a monarchy with a divine majesty: never to a senate or people. And so you find it twice in the Lord Coke's Reports; once in the second book, the bishop of Winchester's case; and in his fifth book, Cawdrie's case; and, more anciently, in the 10 of H. VII. fol. 10. "Rex est persona mixta cum sacerdote ;" an attribute which the senate of Venice, or a canton of Swisses, can never challenge. So, we see, there be precedents or platforms of monarchies, both in nature and above nature; even from the monarch of heaven and earth, to the king, if you will, in a hive of bees. And therefore other states are the creatures of law: and this state only subsisteth by nature.

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, without the king's power, are dead; the king's power, except the laws be corroba.

rated, 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 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 plenitudo tempestatis." And although the king, in his person, be " solutus legibus," yet his acts and grants are limited by law, and we argue them every day.

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 naturalization itself; and that according to the rules of the law of England.

Naturalization is best discerned in the degrees whereby the law doth mount and ascend thereunto. For it seemeth admirable unto me, to consider with what a measured hand and with how true proportions our law doth impart and confer the several degrees of this benefit. The degrees are four.

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 born 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 in 2 Ric. III. fol. 2. Nevertheless this admitteth a distinction. For if he come with safe-conduct, otherwise it is: for then he may not be violated, either in person or goods. But yet he must fetch his justice at the fountain-head, for none of the conduit pipes are open to him; he can have no remedy in any of the king's courts; 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 in 13 Ed. IV.; and this is the first degree.

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 "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 the fathers power to put their children to death; others, to sell them thrice; others, to disinherit them by testament at pleasure, and the like. Yet no man will affirm, that the obedience of the child is by law, though laws in some points do make it more positive: and even so it is of allegiance of subjects to hereditary monarchs, which is corroborated and confirmed by law, but is the work of the law of nature. And therefore you shall find the observation true, and almost general in all states, that their lawgivers were long after their first kings, who governed for a time by natural equity without law: so was Theseus long before Solon in Athens: so was Eurytion and Sous long before Lycurgus in Sparta: so was Romulus long before the Decemviri. And even amongst ourselves there were more The second person is an alien friend, that is, ancient kings of the Saxons; and yet the laws such a one as is born under the obeisance of such ran under the name of Edgar's laws. And in the a king or state as is confederate with the king of refounding of the kingdom in the person of Wil- England, or at least not in war with him. To liam the Conqueror, when the laws were in some this person the law allotteth this benefit, that as confusion for a time, a man may truly say, that the law accounts that the hold it hath over him, is King Edward I. was the first lawgiver who, enact- but a transitory hold, for he may be an enemy, so ing some laws, and collecting others, brought the the law doth indue him but with a transitory law to some perfection. And therefore I will con- benefit, that is, of movable goods and personal clude this point with the style which divers acts of actions. But for freehold, or lease, or actions parliaments do give unto the king: which term real or mixed, he is not enabled, except it be in him, very effectually and truly, our natural," autre droit." And so it is 9 E. IV. fol. 7; 19 E sovereign, liege lord." And as it was said by a IV. fol. 6; 5 Mar., and divers other books. principal judge here present, when he served in another place, and question was moved by some occasion of the title of Bullein's lands, that he would never allow that Queen Elizabeth (I remember it for the efficacy of the phrase) should be a VOL. II.-22

The third person is a denizen, using the word properly, for sometimes it is confounded with a natural born subject. This is one that is but “subditus insitivus," or "adoptivus," and is never by birth, but only by the king's charter, and by no

Р

other mean, come he never so young into the that proceeds upon general reason, and looks upon realm, or stay he never so long. Mansion or no men's faces, affecteth and privilegeth those habitation will not idenize him, no, nor swearing which drew their first breath under the obeisance obedience to the king in a leet, which doth in-law of the King of England. 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 "a parte post," as the schoolmen say, and not "a 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 farther. For I know that other laws do admit more curious distinction of this privilege; for the Romans had, besides "jus civitatis," which answereth to naturalization, "jus suffragii." For although a man were naturalized to take lands and inheritance, yet he was not enabled to have a voice at passing of laws, or at election of officers. And yet farther they have "jus petitionis," or "jus honorum." For though a man had voice, yet he was not capable of honour and office. But these be the devises commonly of popular or free estates, which are jealous whom they take into their number, and are unfit for monarchies: but by the law of England, the subject of that is natural born 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 naturalized in England, yet hath no voice in the parliament of England, except we have either a call by writ, or 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 reason 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, alter the state of the birth; wherein no doubt the law hath a grave and profound reason; which is this, in a few words, "Nemo subito fingitur; aliud est nasci, aliud fieri:" we indeed more respect and affect those worthy gentlemen of Scotland whose merits and conversations we know; but the law

The second point is, that by the former distribution it appeareth that there be but two conditions by birth, either alien or natural born, “nam tertium penitus ignoramus." It is manifest, then, that if the post-nati of Scotland be not natural born, they are alien born, and in no better degree at all than Flemings, French, Italians, Spanish. Germans, and others, which are all at this time alien friends, by reason his majesty is in peace with all the world.

The third point seemeth to me very worthy the consideration; which is, that in all the distributions 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 opera tion, 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 ground work 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 naturalization followeth allegiance, and that allegiance followeth the kingdom.

The second is drawn from that common ground, "cum duo jura concurrent in una persona æquam est ac si essent in duobus :" a rule, the words whereof are taken from the civil law; but the matter of it is received in all laws; being a very line or rule of reason, to avoid confusion.

The third consisteth of certain inconveniences conceived to ensue of this general naturalization, “ipso jure.”

The fourth is not properly an objection, but a pre-occupation of an objection or proof on our part, by a distinction devised between countries devolute by descent, and acquired by conquest.

For the first, it is not amiss to observe tha