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might be said, that it was but the action of some | flatterers, who used to extol the power of monarchs to be infinite: but it was contrary; a prosecution of those persons being favourites by the nobility; so as the nobility themselves, which seldom do subscribe to the opinion of an infinite power of monarchs, yet even they could not endure, but their blood did rise to hear that opinion, that subjection is owing to the crown rather than to the person of the king.

The second act of parliament which determined this case, is the act of recognition in the first year of his majesty, wherein you shall find, that in two several places, the one in the preamble, the other in the body of the act, the parliament doth recognise that these two realms of England and Scotland are under one imperial crown. The parliament doth not say under one monarchy or king, which might refer to the person, but under one imperial crown, which cannot be applied but to the sovereign power of regiment, comprehending both kingdoms. And the third act of parliament is the act made in the fourth year of his majesty's reign, for the abolition of hostile laws: wherein your lordships shall find likewise in two places, that the parliament doth acknowledge, that there is a union of these two kingdoms already begun in his majesty's person: so as, by the declaration of that act, they have not only one king, but there is a union in inception in the kingdoms themselves.

And, therefore, with these two acts do I likewise couple the act of 14 Edward III., which hath been alleged of the other side. For, by collating of that act with this former two, the truth of that we affirm will the more evidently appear, according unto the rule of reason: "opposita juxta se posita magis elucesunt." That act of 14 is an act of separation. These two acts formerly recited are acts tending to union. This act is an act that maketh a new law; it is by the words of grant and establish. These two acts declare the common law as it is, being by words of recognition and confession.

And, therefore, upon the difference of these laws you may substantially ground this position: That the common law of England, upon the adjunction of any kingdom unto the King of England, doth make some degree of union in the crowns and kingdoms themselves; except by a special act of parliament they be dissevered.

Lastly, the fifth act of parliament which I promised, is the act made in the 42 of E. III. cap. 10, which is an express decision of the point in question. The words are, "Item, (upon the petition put into parliament by the commons,) that infants born beyond the seas in the seigniories of Calais, and elsewhere within the lands and seigniories that pertain to our sovereign lord the king beyond the seas, be as able and inheritable for their heritage in England, as other infants born within the realm of England, it is accorded that the common law and the statute formerly made be holden."

Upon this act I infer thus much; first, that such as the petition mentioneth were naturalized, the practice shows: then, if so, it must be either by common law or statute, for so the words report: not by statute, for there is no other statute but 25 E. III., and that extends to the case of birth out of the king's obedience, where the parents are English: "ergo" it was by the common law, for that only remains. And so by the declaration of this statute at the common law,

These two are judgments in parliament by way of declaration of law, against which no man can speak. And certainly these are righteous and true judgments, to be relied upon: not only for the authority of them, but for the verity of them; for to any that shall well and deeply weigh the effects of law upon this conjunction, it cannot but appear, that although" partes integrales" of the kingdom, as the philosophers speak, such as the laws, the officers, the parliament, are not yet commixed; yet, nevertheless, there is but one and the selfsame fountain of sovereign power depending upon the ancient submission, whereof I spake in the be-"all infants, born within the lands and seigginning; and in that sense the crowns and the kingdoms are truly said to be united.

And the force of this truth is such, that a grave and learned gentleman, that defended the contrary opinion, did confess thus far: That in ancient times, when monarchies, as he said, were but heaps of people, without any exact form of policy; that then naturalization and communication of privileges did follow the person of the monarch; but otherwise, since states were reduced to a more exact form so as thus far we did consent; but still I differ from him in this, that these more exact forms, wrought by time, and custom, and laws, are nevertheless still upon the first foundation, and do serve only to perfect and corroborate the force and bond of the first submission, and in no sort to disannul or destroy it.

niories (for I give you the very words again) that pertain to our sovereign lord the king, (it is not said, as are the dominions of England,) are as able and inheritable of their heritage in England, as other infants born within the realm of England." What can be more plain? And so I leave statutes and go to precedents; for though the one do bind more, yet the other sometimes doth satisfy more.

For precedents; in the producing and using of that kind of proof, of all others it behooveth them to be faithfully vouched; for the suppressing or keeping back of a circumstance, may change the case: and therefore I am determined to urge only such precedents, as are without all colour or scruple of exception or objection, even of those objections which I have, to my thinking, fully answered and confuted. This is now, by the

providence of God, the fourth time that the line and Kings of England have had dominions and seigniories united unto them as patrimonies, and by descent of blood; four unions, I say, there have been inclusive with this last. The first was of Normandy, in the person of William, commonly called the Conqueror. The second was of Gascoigne, and Guienne, and Anjou, in the person of King Henry II.; in his person, I say, though by several titles. The third was of the crown of France, in the person of King Edward III. And the fourth of the kingdom of Scotland, in his majesty. Of these I will set aside such as by any cavillation can be excepted unto. First, I will set aside Normandy, because it will be said, that the difference of countries accruing by conquest, from countries annexed by descent, in matter of communication of privileges, holdeth both ways, as well of the part of the conquering kingdom, as the conquered; and, therefore, that although Normandy was not a conquest of England, yet England was a conquest of Normandy, and so a communication of privileges between them. Again, set aside France, for that it will be said that although the king had a title in blood and by descent, yet that title was executed and recovered by arms, so as it is a mixed title of conquest and descent, and therefore the precedent not so clear.

There remains then Gascoigne and Anjou, and that precedent likewise I will reduce and abridge to a time, to avoid all question. For it will be said of them also, that after they were lost and recovered "in ore gladii," that the ancient title of blood was extinct; and that the king was in upon his new title by conquest; and Mr. Walter hath found a book case in 13 H. VI. abridged by Mr. Fitz-Herbert, in title of "Protection, placito" 56, where a protection was cast," quia profecturus in Gasconiam" with the Earl of Huntingdon, and challenged because it was not a voyage royal; and the justices thereupon required the sight of the commission, which was brought before them, and purported power to pardon felonies and treason, power to coin money, and power to conquer them that resist: whereby Mr. Walter, finding the word conquest, collected that the king's title at that time was reputed to be by conquest; wherein I may not omit to give "obiter" that answer, which law and truth provide, namely, that when any king obtaineth by war a country whereunto he hath right by birth, that he is ever in upon his ancient right, not upon his purchase by conquest; and the reason is, that there is as well a judgment and recovery by war and arms, as by law and course of justice. For war is a tribunal-seat, wherein God giveth the judgment, and the trial is by battle, or duel, as in the case of trial of private right: and then it follows, that whosoever cometh in by eviction, comes in his "remitter;" so as there will be no difference in countries whereof the right cometh by descent,

whether the possession be obtained peaceably or by war. But yet, nevertheless, because I will utterly take away all manner of evasion and subterfuge, I will yet set apart that part of time, in and during the which the subjects of Gascoigne and Guienne might be thought to be subdued by a reconquest. And therefore I will not meddle with the Prior of Shelley's case, though it be an excellent case; because it was in the time of 27 E. III.; neither will I meddle with any cases, records, or precedents, in the time of King H. V. or King H. VI., for the same reason; but will hold myself to a portion of time from the first uniting of these provinces in the time of King H. II. until the time of King John, at what time those provinces were lost; and from that time again unto the seventeenth year of the reign of King E. II., at what time the statute of "prærogativa regis" was made, which altered the law in the point in hand.

That both in these times the subjects of Gascoigne, and Guienne, and Anjou, were naturalized for inheritance in England, by the laws of England, I shall manifestly prove; and the proof proceeds, as to the former time, which is our case, in a very high degree "a minore ad majus,” and as we say, "a multo fortiori." For if this privilege of naturalization remained unto them when the countries were lost, and became subjects in possession to another king, much more did they enjoy it as long as they continued under the king's subjection.

Therefore to open the state of this point. After these provinces were, through the perturbations of the state in the unfortunate time of King John, lost and severed, the principal persons which did adhere unto the French, were attainted of treason, and their escheats here in England taken and seized. But the people, that could not resist the tempest when their heads and leaders were revolted, continued inheritable to their possessions in England; and reciprocally the people of England inherited and succeeded to their possessions in Gascoigne, and were both accounted "ad fidem utriusque regis," until the statute of "prærogativa regis;" wherein the wisdom and justice of the law of England is highly to be commended. For of this law there are two grounds of reason, the one of equity, the other of policy; that of equity was, because the common people were in no fault, but, as the Scripture saith, in a like case, "quid fecerunt oves ista?" It was the cowardice and disloyalty of their governors that deserved punishment, but what hath these sheep done? And therefore to have punished them, and deprived them of their lands and fortunes, had been unjust. That of policy was, because if the law had forthwith, upon the loss of the countries by an accident of time, pronounced the people for aliens, it had been a kind of accession of their right, and a disclaimer in them, and so a greater

difficulty to recover them. And therefore we see the statute which altered the law in this point, was made in the time of a weak king, that, as it seemed, despaired ever to recover his right, and therefore thought better to have a little present profit by escheats, than the continuance of his claim, and the countenance of his right, by the admitting of them to enjoy their inheritance as they did before.

The state therefore of this point being thus opened, it resteth to prove our assertion; that they were naturalized; for the clearing whereof I shall need but to read the authorities, they be so direct and pregnant. The first is the very text of the statute of "prærogativa regis. Rex habebit escætas de terris Normannorum, cujuscunque feodi fuerint, salvo servitio, quod pertinet ad capitales dominos feodi illius et hoc similiter intelligendum est, si aliqua hæreditas descendat alicui nato in partibus transmarinis, et cujus antecessores fuerunt ad fidem regis Franciæ, ut tempore regis Johannis, et non ad fidem regis Angliæ, sicut contigit de baronia Monumetæ," &c.

By which statute it appears plainly, that before the time of King John there was no colour of any escheat, because they were the king's subjects in possession, as Scotland now is; but only determines the law from that time forward.

This statute, if it had in it any obscurity, it is taken away by two lights, the one placed before it; and the other placed after it; both authors of great credit, the one for ancient, the other for late times: the former is Bracton, in his cap. "De exceptionibus," lib. 5, fol. 427, and his words are these: "Est etiam et alia exceptio quæ tenenti competit ex persona petentis, propter defectum nationis, quæ dilatoria est, et non perimit actionem, ut si quis alienigena qui fuerit ad fidem regis Franciæ, et actionem instituat versus aliquem, qui fuerit ad fidem regis Angliæ, tali non respondeatur, saltem donec terræ fuerint communes."

The authority after the statute is that of Mr. Stamford, the best expositor of a statute that hath been in our law; a man of reverend judgment and excellent order in his writings; his words are in his exposition upon the branch of the statute which we read before. "By this branch it should appear, that at this time men of Normandy, Gascoigne, Guienne, Anjou, and Britain, were inheritable within this realm, as well as Englishmen, because that they were sometimes subjects to the kings of England, and under their dominion, until King John's time, as is aforesaid: and yet after his time, those men, saving such whose lands were taken away for treason, were still inheritable within this realm till the making of this statute; and in the time of peace between the two kings of England and France, they were answerable within this realm, if they had brought any action for their lands and tenements."

So as by these three authorities, every one so plainly pursuing the other, we conclude that the subjects of Gascoigne, Guienne, Anjou, and the rest, from their first union by descent, until the making of the statute of" prærogativa regis," were inheritable in England, and to be answered in the king's courts in all actions, except it were in time of war. Nay, more, which is "de abundanti," that when the provinces were lost, and disannexed, and that the king was but king "de jure" over them, and not "de facto;" yet, nevertheless, the privilege of naturalization continued.

There resteth yet one objection, rather plausible to a popular understanding than any ways forcible in law or learning, which is a difference taken between the kingdom of Scotland and these duchies, for that the one is a kingdom, and the other was not so; and therefore that those provinces being of an inferior nature, did acknowledge our laws, and seals, and parliament, which the kingdom of Scotland doth not.

This difference was well given over by Mr. Walter; for it is plain that a kingdom and abso

differ "honore," and not "potestate:" for divers duchies and countries that are now, were sometimes kingdoms: and divers kingdoms that are now, were sometimes duchies, or of other inferior style: wherein we need not travel abroad, since we have in our own state so notorious an instance of the country of Ireland, whereof King H. VIII. of late time, was the first that writ himself king, the former style being lord of Ireland, and no more; and yet kings had the same authority before, that they have had since, and the same nation the same marks of a sovereign state, as their parliament, their arms, their coins, as they now have: so as this is too superficial an allegation to labour upon.

By these words it appeareth, that after the loss of the provinces beyond the seas, the naturaliza-lute dukedom, or any other sovereign estate do tion of the subjects of those provinces was in no sort extinguished, but only was in suspense during the time of war, and no longer; for he saith plainly, that the exception, which we call plea, to the person of an alien, was not peremptory, but only dilatory, that is to say, during the time of war, and until there were peace concluded, which he terms by these words, "donec terræ fuerint communes:" which, though the phrase seem somewhat obscure, is expounded by Bracton himself in his fourth book, fol. 297, to be of peace made and concluded, whereby the inhabitants of England and those provinces might enjoy the profits and fruits of their lands in either place "communiter," that is, respectively, or as well the one as the other: so as it is clear they were no aliens in right, but only interrupted and debarred of suits in the king's courts in time of war.

And if any do conceive that Gascoigne and Giuenne were governed by the laws of England: First that cannot be in reason; for it is a true ground, That wheresoever any prince's title unto

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any country is by law, he can never change the whither? Into the realm of England. And in laws, for that they create his title; and, therefore, the seventh chapter, that erects the ports of no doubt those duchies retained their own laws; Bourdeaux and Bayonne for the staple towns of which if they did, then they could not be subject wine; the statute ordains, "that if any," but who? to the laws of England. And next, again, the " English merchant, or his servants, shall buy or fact or practice was otherwise, as appeareth by bargain otherwhere, his body shall be arrested by all consent of story and record: for those duchies the steward of Gascoigne, or the constable of continued governed by the civil law, their trials Bourdeaux:" true, for the officers of England by witnesses, and not by jury, their lands testa- could not catch him in Gascoigne ; but what mentary, and the like. shall become of him? shall he be proceeded with within Gascoigne ? No, but he shall be sent over into England into the Tower of London. And this doth notably disclose the reason of that custom which some have sought to wrest the other way: that custom, I say, whereof a form doth yet remain, that in every parliament the king doth appoint certain committees in the Upper House to receive the petitions of Normandy, Guienne, and the rest; which, as by the former statute doth appear, could not be for the ordering of the governments there, but for the liberties and good usage of the subjects of those parts when they came hither, or "vice versa," for the restraining of the abuses and misdemeanours of our subjects when they went thither.

Now, for the colours that some have endeavoured to give, that they should have been subordinate to the government of England; they were partly weak, and partly such as make strongly against them for as to that, that writs of "habeas corpus" under the great seal of England have gone to Gascoigne, it is no manner of proof; for that the king's writs, which are mandatory, and not writs of ordinary justice, may go to his subjects into any foreign parts whatsoever, and under what seal it pleaseth him to use. And as to that, that some acts of parliament have been cited, wherein the parliaments of England have taken upon them to order matters of Gascoigne : if those statutes be well looked into, nothing doth more plainly convince the contrary, for they intermeddle with nothing but that that concerneth either the English subjects personally, or the territories of England locally, and never the subjects of Gascoigne for look upon the statute of 27 E. III. cap. 5; there it is said, that there shall be no forestalling of wines. But by whom? Only by English merchants; not a word of the subjects of Gascoigne, and yet no doubt they might be of fenders in the same kind.

Wherefore I am now at an end. For us to speak of the mischiefs, I hold it not fit for this place, lest we should seem to bend the laws to policy, and not to take them in their true and natural sense. It is enough that every man knows, that it is true of these two kingdoms, which a good father said of the churches of Christ: "si inseparabiles insuperabiles." Some things I may have forgot, and some things, perhaps, I may forget willingly; for I will not press any opinion or declaration of late time which may prejudice the liberty of this debate; but "ex dictis, et ex non dictis," upon the whole matter I pray judg

So in the sixth chapter it is said, that all merchants Gascoignes may safely bring wines into what part it shall please them: here now are the persons of Gascoignes; but then the placement for the plaintiff.

TRACTS RELATING TO IRELAND.

CERTAIN CONSIDERATIONS

TOUCHING

THE PLANTATION IN IRELAND.

PRESENTED TO HIS MAJESTY, 1606.

TO THE KING.

Ir seemeth God hath reserved to your majesty's | wherein likewise your majesty hath yet a fortune times two works, which amongst the works extraordinary, and differing from former examples of kings have the supreme pre-eminence; the in the same kind. For most part of unions and union, and the plantation of kingdoms. For plantations of kingdoms have been founded in although it be a great fortune for a king to deliver the effusion of blood: but your majesty shall or recover his kingdom from long continued build" in solo puro, et in area pura," that shall calamities: yet, in the judgment of those that need no sacrifices expiatory for blood; and therehave distinguished of the degrees of sovereign fore, no doubt, under a higher and more assured honour, to be a founder of estates or kingdoms, blessing. Wherefore, as I adventured, when I excelleth all the rest. For, as in arts and sciences, was less known and less particularly bound to your to be the first inventor is more than to illustrate or majesty, than since by your undeserved favour I amplify and as in the works of God, the creation have been, to write somewhat touching the union, is greater than the preservation; and as in the which your majesty was pleased graciously to works of nature, the birth and nativity is more accept, and which since I have to my power than the continuance: so in kingdoms, the first seconded by my travails, not only in discourse, foundation or plantation is of more noble dignity but in action: so I am thereby encouraged to do and merit than all that followeth. Of which the like, touching this matter of plantation; hoping foundations there being but two kinds; the first, that your majesty will, through the weakness of my that maketh one of more; and the second, that ability, discern the strength of my affection, and maketh one of none: the latter resembling the the honest and fervent desire I have to see your creation of the world, which way "de nihilo ad majesty's person, name, and times, blessed and quid:" and the former, the edification of the exalted above those of your royal progenitors. church, which was "de multiplici ad simplex, vel And I was the rather invited this to do, by the ad unum:" it hath pleased the divine providence, remembrance, that when the lord chief justice in singular favour to your majesty, to put both deceased, Popham, served in the place wherein I these kinds of foundations or regenerations into now serve, and afterwards in the attorney's place; your hand: the one, in the union of the island of he laboured greatly in the last project, touching Britain; the other, in the plantation of great and the plantation of Munster: which, nevertheless, noble parts of the island of Ireland. Which as it seemeth, hath given more light by the errors enterprises being once happily accomplished, then thereof, what to avoid, than by the direction of the that which was uttered by one of the best orators, same, what to follow. in one of the worst verses, “O fortunatam natam me consule Romam!" may be far more truly and properly applied to your majesty's acts; "natam te rege Britanniam; natam Hiberniam." For he spake improperly of deliverance and preservation; but in these acts of yours it may be verified more naturally. For indeed unions and plantations are the very nativities of birth-days of kingdoms;

First, therefore, I will speak somewhat of the excellency of the work, and then of the means to compass and effect it.

For the excellency of the work, I will divide it into four noble and worthy consequences that will follow thereupon.

The first of the four, is honour; whereof I have spoken enough already, were it not that the harp

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