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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
marib.rof Dale ; there descendeth unto him afterwards
a tenancy held of the manor of Sale, which manor of
Sale is likewise in the hands of the same lord. Now
by the rule Cum duo jura, he should do homage again,,
two tenancies and two seigniories, though but one
tenant and one lord, tequum est nc si esstt in diwbus :
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, 'J 4 Hen. VIII. and usits scaccarii, as
there is said, accordingly. And the reason is no other
but because when a man is sworn to his lord, he can-
not be s^vorn over again : lie hath but one conscience,
and the obligation of this oath trencheth between the
natural person of the tenant and the natural person of
the lord. And certainly the case of homage and te-
nure, and of homage liege, which is one case, are things
of a near nature, save that the one is much inferior
to the oilier ; 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' thud main argument containeth certain sup-
posed inconveniencies, which may ensue of a general



Case of the Post-Nati of Scotland. 339

naturalization ipso jure > of which kind three have been
specially remembred.

The first is the loss of profit to the King upon let-
ters of denization and purchases of aliens.

The second is the concourse of Scotsmen into this
kingdom, to the infeebling of that realm of Scotland
in people, and the impoverishing of this realm of
England in wealth.

The third is, that the reason of this case stayeth not
within the compass of the present case ; for although
it were some reason that Scotsmen were naturalized,
being people of the same island and 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 natu-
ralized ; which are people not only alter ins soli but
alter ins cctli.

To these conceits of inconvenience, how easy it is
to give .inswer, 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 deni-
zations, and how honourable were it for the King to
take escheats of his subjects, as if they were foreign-
ers, for seizure of aliens lands are in regard the King
hath no hold or command of their persons and ser-
vices, every one may perceive. And for the conflu-
ence of Scotsmen, I think, we all conceive the spring-
tide is past at the King's first coming in. And yet we . >
see very few families of them throughout the cities and
boroughs of England. And for the nrturalizing of
the Indies, we can readily help that, when the case
comes; for we can make an act of parliament of se-
paration 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;

z 2



340 Case of the Post-Nati of Scotland.

which is, that the very self-same objections do hold in
countries purchased by conquest. For in subjects ob-
tained by conquest,, it were more profit to indenizate
by the poll; in subjects obtained by conquest, they
may come in too fast. And if King Henry VII. had
accepted the offer of Christopher Columbus, where-
by the crown of England had obtained the Indies by
conquest or occupation, all the Indies had been natu-
ralized by the confession of the adverse part. And
therefore since it is confessed, that subjects obtained
by conquest are naturalized, and that all these objec-
tions 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 alledge
the authority of his adversary against himself: we do
urge the confession of the other side, that they con-
fessed the Irish are naturalized ; that they confess the
subjects of the isles of Jersey and Guernsey, and Ber-
wick, 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 ques-
tion 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 tanqmnn
ud ulthnum refiigium; 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
alledge four reasons.

The first is, that countries of conquest are made
parcel of England, because they are acquired by the
arms and treasure of England. To this I answer, that
it were a very strange argument, that if I wax rich
upon the manor of Dale, and upon the revenue
thereof 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 ques-



Case of the Post-Kali of Scotland. 341

tion, If the King should conquer any foreign country
by an army compounded of Englishmen and Scots-
man, as it is like, whensoever wars are, so it will be,
I demand, whether this country conquered shall be na-
turalized both in England and Scotland, because it was
purchased by the joint arms of both ? and if yea, Whe-
ther any man will think it reasonable, that such sub-
jects be naturalized in both kingdoms ; the one king-
dom not being naturalized towards the other? These
are the intricate consequences of conceits.

A second reason they alledge 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 naturaliza-
tion.

But to the major proposition of that argument, touch-
ing the dependency of allegiance upon law, somewhat
bath 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
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 maybe shewed, 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.



342 Case of the Post-Nati of Scotland.

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 to-
wards 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 relick, 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 pro-
ceeding, 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 orbc 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 should not naturalize sub-
jects which grow unto the King by descent ; that is,
that it should confer the benefit and privilege of na-
turalization 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 Eng-
land, 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 naturali-
sation upon slaves and vassals, for people conquered
are no better in the beginning, and should deny it to



Case of the Post-Nati of Scotland. S43

freemen : I say, it will be marvelled at abroad of what
complexion the laws of England be made, that breed-
eth such differences. But there is little danger of such
scandals ; for this is a difference that the law of Eng-
land 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 is^ue, the rent is re-
vived. As to this reason, I know well the continu-
ance 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 an-
swered 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 re-
mainder 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. Quesnon 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 like-
wise 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 roct exploded this
reason, and said, that monasteries were down, and
entries into religion gone, and they must be up again



344 Case of Ike Post-Nati of Scotland.

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 mo-
nasteries to be restored, or for the King's 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 re-
gard that the rent may "be severed, it should be said
to be in esse in the mean time, and should be grant-
able ; which is clearly otherwise. And so in the prin-
cipal case, if that should be, which God of his good-
ness 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 dif-
ference is but a devise full of weakness and ignorance;
and that there is one and the same reason of natu-
ralizing 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, touch-
ing confutation.

To proceed therefore to the proofs of our part, your
lordships cannot but know many of them must be al-
ready spent in the answer which we have made to the
objections. For corniptio 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 substan-
tially of themselves, and are not intermixed with mat-
ter 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.

2. Secondly, upon reasons and authorities of law.



Case of the Post-Nati of Scotland. 545

3. And lastly, upon former precedents and examples,
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 com-
mon 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 bond-
man when he thinketh not of it, by granting to him
lands or goods ; and is the reason of qula naturd om*
nes homines erant liberi ; and that servitude or villenage
doth cross and abridge the law of nature ? And doth
not the self-same reason hold in the present case ? For,
my lords, by the law of nature all men in the world
are naturalized 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 sheweth, units labit, of one lan-
guage, 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 differ-
ences, of civis and extents, alien and native. And
therefore because they tend to abridge the law of na-
ture, the law favoureth not them, but takes them strict-
ly ; even as our law hath an excellent rule, That cus-
toms of towns and boroughs shall be taken and con-
strued 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. Where-
upon 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 cor-



346 Case of the Post-Nati of Scotland.

rcction be it spoken, to pronounce for us because of
the favour of the Jaw. Furthermore ,as the law of
1'ngland 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 Eng-
land 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 Jaw of England open her lap to receive
in people to be naturalized ; which indeed sheweth
the wisdom and excellent composition of our law, and
that it is the Jaw of a warlike and magnanimous na-
tion 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 nnlus ad fidcm regis, agreeable to the defini-
tion 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 qua-
tenus, and such subtilities and distinctions. To main-
tain therefore our assertion, I will use three kinds of
proof,

The first is, that allegiance cannot be applied to the
Jaw or kingdom, but to the person of the King, be-
cause the allegiance of the subject is more large and
spacious, and hath a greater latitude and comprehen-
sion 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 na-
tural body of the King hath an operation and influ-
ence into his body politic, as well as his body politic
hath upon his body natural) and therefore that al-



Case of tht Post-Nati of Scotland. 347

though his body politic of King of England, and his
body politic of King of Scotland, be several and dis-
tinct, yet nevertheless his natural person, which is one*
hath an operation upon both, and createth a privity
between them.

And the third proof is the binding text of five se-
veral 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 the laws, it continu-
eth after laws, and it is in vigour where laws are sus-
pended and have not their force. That it is more an-
tient 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 antient than lawgivers, that the first sub-
missions were simple, and upon confidence to the per-
son 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 ex-
pulsed 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 recovery of his kingdom, such a subject might by
the law of England be proceeded with for treason
committed and perpetrated at what time he had no
kingdom, and in place where the law did not bind.

That allegiance is in vigor 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
contrariwise it is raised and made more absolute ; for
then he may proceed by his supreme authority, and
martial law, without observing formalities of the laws



348 Case of the Post-Nati of Scotland.

of his kingdom. And therefore whosoever speaketh
of laws, and the King's power by laws, and the sub-
jects obedience or allegiance to laws, speak but of
one half of the crown. For Bracton, out of Jus-
tinian, cloth 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 ano-
ther law, it is true at Edinburgh or Sterling, or again,
in London or York ; but if Englishmen and Scots-
men meet in an army royal before Calais, I hope, then
they are under one law. So likewise not only in time
of war, but in time of peregrination : If a King of
England travel or pass through foreign territories, yet
the allegiance of his subjects followeth him : as ap-
peareth in that notable case which is reported in Fleta,
where one of the train of King Edward L as he passed
through France from the Holy land, imbezzled some
plate at Paris., and jurisdiction was demanded of this
crime by the French King's counsel at law, ratione
soli, and demanded likewise by the officers of King
Edward, ratione persomc ; and after much solemnity,
contestation, and interpleading, it was ruled and de-
termined 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. Germains meadows. And so much for my first
proof.

For rny second main proof, that is drawn from the
true and legal distinction of the King's several capa-
cities ; 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 con-
founded. And secondly, that as his capacity politic
worketh so upon his natural person, as it makes it dif-
fer from all other the natural persons of his subjects ;
so c converse, his natural body worketh so upon his
politic, as the corporation of the crown utterly differeth
from all other corporations within the realm.



Case of the Post-Nati of Scotland. 349

For the first, I will vouch you the very words which
1 find in that notable case of the duchy, where the
question was, whether the grants of King Edward Vf.
for duchy lands should be avoided in points of nonage?
The case, as your lordships know well, is reported by
Mr. Plowden as the general resolution of all the judges
of England, and the King's learned counsel, Rouswell
the solicitor only excepted ; there I find the said words,
Comment, fol. 215. "There is in the King not a
" body natural alone, nor a body politic alone, but a
( body natural and politic together : corpus corpora-
<c turn in corpore naturali, ct corpus naturale in cor-
" pore corporate" The like I find in the great case of
the lord Berkley set down by the same reporter, Com-
ment, fol. 234. " Though there be in the King two
" bodies, and that those two bodies are conjoined, yet
cc are they by no means confounded the one by the
" other."'

Now then to see the mutual and reciprocal inter-
course, as I may term it, or influence or communica-
tion of qualities, that these bodies have the one upon
the other : the body politic of the crown induceth



Online LibraryFrancis BaconThe works of Francis Bacon, baron of Verulam, viscount St. Alban, and lord high chancellor of England (Volume 4) → online text (page 29 of 46)