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opinions of the Judges were not as efficacious as a judgment for settling the question.'
On the 29th of October, after the close of the session, the plaintiff in this case, an infant born since James's accession, received a grant of the lands in question, which had become forfeited by an attainder?; and the writ herein is tested 3rd November, four days after. I suppose the Chancery suit was added for the purpose of having a decision binding every possible tribunal.
Popham had died in the interval. The other Judges who had already delivered opinions in the House of Lords retained them on this occasion, and of the five additional voices four were on the same side, Foster alone going with Walmsley. I believe we have only Coke's summary of the judgment at Common Law: Lord Ellesmere published his own in a pamphlet, which is reprinted in the State Trials, Vol. II.
· See Lord Ellesmere's judgment.
· Docket in State Paper Office,
OF SIR 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 it by place, it reacheth not only to the realm of England, but to the whole island of Great Britain; or whether you measure it by time, it extendeth not only to the present time, but much more to future generations,
Et nati natorum, et qui nascentur ab illis : And therefore as it is to receive at the bar a full and free debate, so I doubt not but it 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 it 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. * 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 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: 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 unto 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 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.
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 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 Postnatus of such an union should be naturalized.
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 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 be an accessory or dependency upon 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 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 here 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 a municipal law; for so was it done in the great case of the Plowd. mines; and so ought it to be done in all cases of like nature. And this does 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 shew them to be as fine monies, 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.
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 to 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,
So in MS. If not corrupt it must mean, as Mr. Spedding suggests to me, “ that advice of Littleton."
and the like; these are busy and curious frames, which of necessity do pre-suppose 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 it 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 other 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) 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 familie 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 people. The nations, as the Scripture saith, are his inheritance: but the office of kings is to govern, maintain, and protect people. And it 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, servum suum, et Israel hæreditatem suam. This is the second platform ; a work likewise of nature.
- pascere Jacob