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 nati natorum, 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, 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 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 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 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 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 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 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 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 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 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:

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 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.

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 Coke's Reports; once in the second book, the bishop of Winchester's case; and his fifth book, Cawdrie's case; and more anciently in the 10 of H. VII. fol. 18, “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.

For the original submissions, they are four in number: I will briefly touch them: The first is paternity or patriarchy, which is 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 scat

And therefore Lycurgus, when one counselled him

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 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 thousand, 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 fourth is an enforced submission, which is conquest, whereof it seemed Nimrod was the first precedent, of whom it is said: "Ipse cœpit potens esse in terra, et erat robustus venator coram Domino." 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, without the king's power, are dead; the king's power, except the laws be corroborated, 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.

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 fathers power to put their children to death; others, to sell them thrice; others, to disin

herit 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 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 I. 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 sovereign 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 Bullein's 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 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 safeconduct, 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.

The second person is an alien friend, that is, such a one as is born 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 transitory 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 mixt, he is not enabled, except it be in autre droit. And so it is 9 E. IV. fol. 7, 19 E. IV. fol. 6, 5 Mar. and divers other books.

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 other mean, come he never so young into the realm, or stay he never so long. Mansion or habitation will not indenize him, no, nor swearing obedience to the king in a leet, 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 a parte post, as the schoolmen say, and not a parte ante.

For

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 subtile 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. 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 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 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 natural

ized in England, yet hath no voice in the parliament of England, except he 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 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, alter 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 those 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 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 the 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 ground-work to that which is contradicted or controverted.

There followeth the confutation of the arguments on the contrary side.

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 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 amiss to observe that those who maintain this new opinion, whereof there is altum silentium in our books of law, are not well agreed 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 sub- | tility 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 book-cases, mentioning and reciting the forms of pleadings.

The reason they bring is this; that naturalization 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 naturalization by birth in Scotland.

tute of 25 E. III. which, if you will believe Hussey, is but a declaration of the common law, all children born 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 naturalized. 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 be well avoided; which is, that if divers families of English men and women plant themselves at Middleborough, or at Roan, or at Lisbon, and have issue, and their descendants do intermarry amongst themselves, without any intermixture of foreign blood; such descendants are naturalized to all generations: for every generation is still of liege parents, and therefore naturalized; 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 or confer naturalization, but only within the bounds of the dominions of England.

To come now to their inferences upon statutes; the first is out of this statute which I last recited. In which statute it is said, that in four several places there are these words, "born within the allegiance of England;" or again, "born 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 no trope of speech more familiar than 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 Warwick, intending the possessions of the dukes of Somerset or earls of Warwick. So we see earls sign, Salisbury, Northampton, for the earls of Salis

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 H. VIII. cap. 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, then 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 than 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 naturalization upon a birth neither within the dominions of the kingdom, nor king of England. By the sta

ner 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 collection 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, allegiance and obeisance of the king of England, and especially 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 it is manifest by this indifferent and promiscuous use of both phrases, the one proper, the other improper, 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 Hen. VIII. touching the policy of strangers tradesmen within this realm. For the parliament finding that they did eat the Englishmen out of trade, and that they entertained no apprentices but of their own nation, did prohibit that they should receive any apprentice but the king's subjects. In which statute is said, that in nine several places there is to be found this context of words,