First, it presseth not the question; for doth any man say that a "post-natus" of Scotland is naturalized in England, because he is a subject of the king as king of England? No, but generally because he is the king's subject. king's obedience. Touching this inference, I have | whatsoever the occasion was, here you have the heard it said, "qui hæret in litere, hæret in difference authorised of subjection to a king cortice;" but this is not worthy the name of generally, and subjection to a king as king of a "cortex," it is but "muscus corticis," the moss certain kingdom: but to this I give an answer of the bark. For it is evident that the statute threefold: meant to speak clearly and without equivocation, and to a common understanding. Now, then, there are aliens in common reputation, and aliens in precise construction of law; the statute then meaning not to comprehend Irishmen, or Jerseymen, or Calaismen, for explanation-sake, lest the Secondly, The scope of this law is to make a word alien might be extended to them in a vulgar distinction between crown and crown; but the acceptance, added those further words, "born out scope of their argument is to make a difference of the king's obedience." Nay, what if we between crown and person. Lastly, this statute, should say, that those words, according to the as I said, is our very case retorted against them; received laws of speech, are no words of difference for this is a direct statute of separation, which or limitation, but of declaration or description of presupposeth that the common law had made a an alien, as if it had been said, with a “videlicet,” | union of the crowns in some degree, by virtue of aliens; that is, such as are born out of the king's the union of the king's person: if this statute had obedience they cannot put us from that construc- not been made to stop and cross the course of the tion. But sure I am, if the bark make for them, common law in that point, as if Scotland now the pith makes for us; for the privilege of liberty should be suitors to the king, that an act might which the statute means to deny to aliens of pass to like effect, and upon like fear. And, entertaining apprentices, is denied to none born therefore, if you will make good your distinction within the king's obedience, call them aliens or in this present case, show us a statute for that. what you will. And, therefore, by their reason, a But I hope you can show no statute of separation "post-natus" of Scotland shall by that statute between England and Scotland. And if any man keep what stranger apprentices he will, and so is say that this was a statute declaratory of the put in the degree of an English. The third common law, he doth not mark how that is penstatute out of which inference is made, is the ned; for after a kind of historical declaration in statute of 14 E. III. cap. solo, which hath been the preamble, that England was never subject to said to be our very case; and I am of that opinion France, the body of the act is penned thus: "The too, but directly the other way. Therefore, to open king doth grant and establish:" which are words the scope and purpose of that statute: after that merely introductive "novæ legis," as if the king the title to the crown of France was devolute to gave a charter of franchise, and did invest, by K. E. III., and that he had changed his style, a donative, the subjects of England with a new changed his arms, changed his seal, as his privilege or exemption, which by the common majesty hath done, the subjects of England, saith law they had not. the statute, conceived a fear that the realm of England might become subject to the realm of France, or to the king as king of France. And I will give you the reasons of the double fear, that it should become subject to the realm of France. They had this reason of fear; Normandy had conquered England, Normandy was feudal of France, therefore, because the superior seigniory of France was now united in right with the tenancy of Normandy, and that England, in regard of the conquest, might be taken as a perquisite to Normandy, they had probable reason to fear that the kingdom of England might be drawn to be subject to the realm of France. The other fear, that England might become subject to the king as king of France, grew no doubt of this foresight, that the kings of England inight 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, To come now to the book-cases which they put; which I will couple together, because they receive one joint answer. The first is 42 E. III. fol., where the book saith, exception was taken that the plaintiff was born in Scotland at Ross, out of the allegiance of England. The next is 22 H. VI. fol. 38, Adrian's case; where it is pleaded that a woman was born at Bruges, out of allegiance of England. The third is 13 Eliz. Dyer, fol. 300, where the case begins thus: "Doctor Story qui notorie dignoscitur esse subditus regni Angliæ.” In all these three, say they, that is pleaded, that the party is subject of the kingdom of England, and not of the king of England. To these books I give this answer, that they be not the pleas at large, but the words of the reporter, who speaks compendiously and narratively, and not according to the solemn words of the pleading. If you find a case put, that it is pleaded a man was seised in fee simple, you will not infer upon that, that the words of the plead ing were in feodo simplici," but "sibi et hæredibus suis." But show me some precedent of a pleading at large, of "natus sub ligeantia regni Angliæ;" for whereas Mr. Walter said that pleadings are variable in this point, he would fain bring it to that; but there is no such matter; for the pleadings are constant and uniform in this point: they may vary in the word "fides," or "ligeantia," or "obedientia," and some other circumstances; but in the 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 Baggot's Assize, fol. 7, where the pleading at large is entered in the book; there you have "alienigena natus extra ligeantiam domini regis Angliæ." 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 ligeantia domini regis," or “extra legeantiam domini regis." And therefore the forms of pleading, which are things so reverend, and are indeed towards the reasons of the law, as "palnia," and "pugnus," containing the reasons of the law, opened or unfolded, or displayed, they make all for us. And for the very words of reporters in books, you must acknowledge and say, “ilicet obruimur numero." For you have 22 Ass. pl. 25. 27 Ass. the prior of Shell's case, pl. 48. 14 H. IV. fol. 19. 3 H. VI. fol. 35. 6 H. VIII. in my Lord Dyer, fol. 2. In all these books the very words of the reporters have "the allegiance of the kings,” and not, the allegiance of England. And the book in the 24 Edw. III. which is your best book, although, while it is tossed at the bar, you have sometimes the words "allegiance of England," yet when it comes to Thorp, chief justice, to give the rule, he saith, "we will be certified by the roll, whether Scotland be within the allegiance of the king." Nay, that farther form of pleading beateth down your opinion that it sufficeth not to say that he is born out of the allegiance of the king, and stay there, but he must show in the affirmative, under the allegiance of what king or state he was born. The reason whereof cannot be, because it may appear whether he be a friend or an enemy, for that in a real action is all one: nor it cannot be because issue shall be taken thereupon; for the issue must arise on the other side upon "indigena" pleaded and traversed. And therefore it can have no other reason but to apprize the court more certainly, that the country of the birth is none of those that are subject to the king. As for the trial, that it should be impossible to be tried, I hold it not worth the answering; for the "venire 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 Irish man be tried, or of a Jerseyman? nay, how should the birth of a subject be tried, that is born of English parents in Spain or Florence, or any part of the world? For to all these the like objection of trial may be made, because they are within no countries: 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 the eye of law distinct, as if they were in several persons: and they bring examples of one man bishop of two sees, or one parson that is rector of two churches. They say this unity in the bishop or the rector doth not create any privity between the parishioners or dioceseners, more than if there were several bishops, or several parsons. This rule I allow, as was said, to be a rule, not of the civil law only, but of common reason, but receiveth no forced or coined, but a true and sound distinction or limitation, which is, that it evermore faileth and deceiveth in cases where there is any vigour or operation of the natural person; for generally in corporations the natural body is but "suffulcimentum tum 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 21 H. VIII. ordaineth that a marquis may retain six chaplains qualified, a lord treasurer of England four, a privy counsellor three. The Lord Treasurer Paulet was Marquis of Winchester, lord treasurer of England, and privy counsellor, all at once. The question was, whether he should qualify thirteen chaplains? Now, by the rule "Cum duo jura" he should; but adjudged, he should not. And the reason was, because the attendance of chaplains concerned and respected his natural person; he had but one soul, though he had three offices. The other case which I will put is the case of homage. A man doth homage to his lord for a tenancy held of the manor of Dale; there descendeth unto him afterwards a tenancy held of the manor of Sale, which manor of Sale is likewise in the hands of the same lord. Now, by the rule" Cum duo jura," he should do homage again, two tenancies and two seinories, though but one tenant and one lord, æquum est ac si set in duobus:" but ruled that he should not do homage again: 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 Hen. VIII. and “ usus scaccarii," as there is 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 oath trencheth between the natural person of the tenent and the natural person of the lord. | England had obtained the Indies by conquest or 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 naturalization "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 Scotsmen 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 Scotsmen were naturalized, 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 descendants, 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 naturalized; which are people not only "alterius soli, " but "alterius cœli." occupation, all the Indies had been naturalized by the confession of the adverse part. And, therefore, since it is confessed, that subjects obtained by conquest are naturalized, and 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 adversary against himself: we do urge the confession of the other side, that they confessed the Irish are naturalized; that they confess the subjects of the Isles of Jersey and Guernsey, and Berwick, to be naturalized, and the subjects of Calais and Tournay, when they were English, were naturalized; as you may find in the 5 Eliz. in Dyer, upon the question put to the judges by Sir Nicholas Bacon, lord keeper. To avoid this, they fly to a difference, which is new coined, that 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 the 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 Scotsmen, as it is like, whensoever wars are, so it will be, I demand, Whether this country conquered shall be naturalized both in England and Scotland, because it was purchased by the joint arms of both and if yea, Whether any man will think it reasonable, that such subjects be naturalized in both kingdoms; the one kingdom not being naturalized toward the other? 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 were it 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 Scotsmen, I think, we all conceive the springtide is past at the king's first coming in. And yet we see very few families of them throughout the cities and boroughs of England. And for the naturalizing of the Indies, we can readily help that, when the case comes; for we can make an act of parliament of separation, if we like not their consort. But these being reasons politic, and not legal, and we are not now in parliament, but before a judgment seat, I will not meddle with them, especially since I have one answer which avoids and confounds all their objections in law; which is, that the very selfsame objections do hold in countries purchased by conquest. For in But to the major proposition of that argument, subjects obtained y conquest, it were more profit touching the dependency of allegiance upon law, to indenizate by the poll; in subjects obtained by somewhat hath been already spoken, and full conquest, they may come in too fast. And if answer shall be given when we come to it. But King Henry VII. had accepted the offer of in this place it shall suffice to say, that the minor Christopher Columbus, whereby the crown of proposition is false; that is, that the laws of Eng 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 naturalization. land are not superinduced upon any country by conquest; but that the old laws remain until the king by his proclamation or letters patent 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 a charter of King John; and that extended but to so much as was then in the king's possession; for there are records in the time of King E. I. and II. 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, and to secure the state; which holdeth not in case of descent. Here I perceive Mr. Walter hath read somewhat in matter of state; and so have I likewise; though we may both quickly lose ourselves in causes of this nature. I find by the best opinions, that there be two means to assure and retain in obedience countries conquered, both very 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 of; and it was indeed the Roman manner but this is like an old relic, much reverenced and almost never used. But the other, which is the modern manner, and almost wholly in practice and use, is by garrisons and citadels, and lists or companies of men of war, and other like matters of terror and bridle. To the first of these, which is little used, it is true that naturalization 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, naturalization 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, and sometimes to nations, until the time of Adrian the emperor, and the law "In orbe 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 facto" naturalize subjects of conquests, and shall not naturalize subjects which grow unto the king by descent; that is, that it should confer the benefit and privilege of naturalization 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 naturalization 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 sever again to their respective heirs; as in the case of 8 Hen. VI., 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, than 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 notably 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 kings should hold the land during the natural life of tenant in tail, notwithstanding his civil death. But the court "una voce" 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. And so we may hold this for the like: for I think we all hope that neither of those days shall ever come, either for monas teries to be restored, or for the king's line to fail But the true answer is, that the possibility subse quent, 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 may be 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 naturalization 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 naturalizing subjects by descent, and subjects by conquest; and that is the union in the person of the king; and therefore that the case of Scotland is as clear as that of Ireland, and they that grant the one cannot deny the other. And so I conclude the second part, touching confutation. To proceed therefore to the proofs of our part, your lordships cannot but know many of them must be already spent in the answer which we have made to the objection. For "corruptio unius, generatio alterius," holds as well in arguments, as in nature, the destruction of an objection begets a proof. But nevertheless 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 ought so to be adjudged, by three courses of proof. 1. First, upon point of favour of law. 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 and 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 and boroughs shall be taken and constructed strictly and precisely, because they do abridge and derogate from the law of the land. So, by the same reason, all national laws whatsoever are to be taken strictly and hardly in any point wherein they abridge and 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. Further more, as the law of England must favour naturalization 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 naturalized? By the law of England, it should suffice, either place or parents, if he be born in England, it is no matter though his parents be Spaniards, or what you will. On the other side, if he be born of English parents, it skilleth not though he be born in Spain, or in any other place of the world. In such sort doth the law of England 2. Secondly, upon reason and authorities of open her lap to receive in people to be naturalized; law. which indeed showeth the wisdom and excellent 3. And, lastly, upon former precedents and ex- composition of our law, and that it is the law of amples. 1. Favour of law: what mean I by that? The law is equal and favoureth not. It is true not persons but things or matters it doth favour. Is it not a common principle, that the law favoureth three things, life, liberty, and dower? And what is the reason of this favour? This, because our law is grounded upon the law of nature. And these three things do flow from the law of nature, preservation of life natural; liberty, which every beast or bird seeketh and affecteth naturally; the society of man and wife, whereof dower is the reward natural. It is well, doth the law favour liberty so highly, as a man shall enfranchise his bondman when he thinketh not of it, by granting to him lands or goods; and is the reason of it "quia natura omnes homines erant liberi ;" and that servitude or villenage 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 aturalized one towards another; they were all a warlike and magnanimous nation, fit for empire. For look, and you shall find that such kind of estates have been ever liberal in point of naturalization; whereas merchant-like and envious estates have been 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 naturalization, that there be one king, and that the party be "natus ad fidem 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 the other side speak of respects, and "quoad," and "quatenus," and such subtilties and distinctions. To maintain therefore our assertion, I will use three kinds of proof. 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 |