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 persous, 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: 80 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 hin, 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 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 remenber it for the efficacy of the phrase) should be a VOL. II.-22 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 P 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 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, abso 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 natu-lutely of his prerogative and power, wherewith ralization, "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 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 groundwork 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 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 subtlety 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 a birth in Scotland. This reason is plausible and sensible, but extremely erroneous. For the law of England, for matters of benefit or forfeitures in England, operateth over the world. And because it is truly said that "respublica continetur pæna et præmio," I will put a case or two of either. 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 statutes 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 statute 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 Warwiek, intending the possessions of the Dukes of Somerset or Earls of Warwick. So we see earls sign, Salisbury, Northampton, for the Earls of Salisbury or Northampton. And in the very same manner 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, "aliens born out of the king's obedience;" which is pregnant, say they, and doth imply that there be aliens born within the 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 word alien might be extended to them in a vulgar acceptance, added those further words, " born out of the king's obedience." Nay, what if we should say, that those words, according to the received laws of speech, are no words of difference or limitation, but of declaration or description of an alien, as if it had been said, with a "videlicet," aliens; that is, such as are born out of the king's obedience? they cannot put us from that construction. Secondly, The scope of this law is to make a distinction between crown and crown; but the scope of their argument is to make a difference between crown and person. Lastly, this statute, as I said, is our very case retorted against them; for this is a direct statute of separation, which presupposeth that the common law had made a union of the crowns in some degree, by virtue of the union of the king's person: if this statute had not been made to stop and cross the course of the common law in that point, as if Scotland now should be suitors to the king, that an act might pass to like effect, and upon like fear. And, therefore, if you will make good your distinction in this present case, show us a statute for that. But I hope you can show no statute of separation between England and Scotland. And if any man say that this was a statute declaratory of the common law, he doth not mark how that is penned; for after a kind of historical declaration in the preamble, that England was never subject to France, the body of the act is penned thus: "The king doth grant and establish:" which are words merely introductive "novæ legis," as if the king gave a charter of franchise, and did invest, by a donative, the subjects of England with a new privilege or exemption, which by the common law they had not. To come now to the book-cases which they put; which I will couple together, because they receive one joint answer. But sure I am, if the bark make for them, the pith makes for us; for the privilege of liberty which the statute means to deny to aliens of entertaining apprentices, is denied to none born within the king's obedience, call them aliens or what you will. And, therefore, by their reason, a "post-natus" of Scotland shall by that statute keep what stranger apprentices he will, and so is put in the degree of an English. The third statute out of which inference is made, is the statute of 14 E. III. cap. solo, which hath been said to be our very case; and I am of that opinion too, but directly the other way. Therefore, to open the scope and purpose of that statute: after that the title to the crown of France was devolute to K. E. III., and that he had changed his style, changed his arms, changed his seal, as his majesty hath done, the subjects of England, saith 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 To these books I give this answer, that they be might be like to make their mansion and seat of not the pleas at large, but the words of the their estate in France, in regard of the climate, reporter, who speaks compendiously and narra wealth, and glory of that kingdom; and thereby tively, and not according to the solemn words of the kingdom of England might be governed by the pleading. If you find a case put, that it is the king's mandates and precepts, issuing as pleaded a man was seised in fee simple, you will from the king of France. But they will say,, not infer upon that, that the words of the plead 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: "Dector 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. 66 And ing were "in feodo simplici," but "sibi et | man be tried, or of a Jerseyman? nay, how should hæredibus suis." But show me some precedent the birth of a subject be tried, that is born of of a pleading at large, of "natus sub ligeantia English parents in Spain or Florence, or any part regni Angliæ;" for whereas Mr. Walter said of the world? For to all these the like objection that pleadings are variable in this point, he would of trial may be made, because they are within no fain bring it to that; but there is no such matter; countries: and this receives no answer. for the pleadings are constant and uniform in this therefore I will now pass on to the second main point: they may vary in the word fides," or argument. "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 "palma," 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 66 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 |