aliens being incapable to sue for the freehold of land. These Causes were adjourned into the Exchequer-Chamber, in order to have the solemn opinion of all the judges; and there the business ended with a Resolution in favour of the Postnati, in which the lordchancellor and 12 Judges out of 14 concurred. However, very eminent lawyers appear to have entertained a different opinion of the point. In parliament, Dodridge, Hyde, Brock, Crew, Moore, and Hedley, all spoke against the Postnati. What the names of the two dissenting judges were, is not mentioned; except that lord Ellesmere alludes to both having the Christian name of Thomas, the only judges of which name at the time were lord chief justice Fleming, Mr. justice Walmesley, and Mr. justice Foster. It is suspected too, that the known inclina. tions and wishes of the king had no little influence in the decision. But be this as it may, we are not apprized that the main point of the case has been ever disturbed by any subsequent judicial opinion. The only regular Report we have of this case is by lord Coke. But there is a great deal of matter relative to it in other books. Lordchancellor Ellesmere published his Argument separately. Mr. serjeant Moore gives the history of the previous passages in parliament on the great point of law, for deciding which the case was afterwards made. In lord Bacon's Works, there are both his Speeches BY in Parliament on the subject, and his Argument before the Judges in the Exchequerchamber, with some other pieces. 152. 159. 170. 2 Bac. 4to. ed. 173. 185. 514. N:thaniel Bacon, in his Book on Government, examines and controverts the principles, on which lord Coke reports the case to have been decided. Bac. on Gov. part. 2. page 76. The Parliamentary History relates the proceedings in the English parliament in the 2 and 4 Jam. on the proposal for an Union between England and Scotland, and gives a short view of some arguments in the commons on the point of Naturalization.* Archbishop Spotswood's History of the Church. and State of Scotland also contains many particulars of the proceedings towards an Union. Spotsw. 479. See further Arthur Wilson's History of James the 1st, 27. 34. Sanderson's Life of the same king, 318. 338. 2 Winwood's Memorials of State, 20. 32 to 38. We shall now lay before the reader, 1. Mr. serjeant Moore's account of the Proceedings in Parliament about the Postnati. 2. Lord Bacon's Speech as counsel for Calvin, in the Exchequer-Chamber. 3. Lord Coke's Report of Calvin's Case. 4. Lord-chancellor Ellesmere's Speech in the Exchequer-Chamber, as published by himself. * See 1 Cobb. Parl. Hist. 1018, 1027, 1069, 1071. CASE OF THE UNION OF THE REALM OF SCOTLAND WITH ENGLAND. act of parliament in the first session anno primo Jacobi regis, certain commissioners of England were appointed to meet with commissioners of Scotland, and to treat for the weale of both kingdoms, and to put their doings in schedules tripartite, to be delivered, one to the king, the other to the parliament of England, and the third to the parliament of Scotland. The commissioners of both nations met in the Painted Chamber at Westminster, anno 2. Jac. regis, and treated long, and in the end made schedules, and delivered them according to the act. The schedule for the parliament of England was presented by the lord Ellesmere lord chancellor of England, to whom the commissioners had delivered the same for that purpose, himself being one of the commissioners, the first day of the session of parliament holden anno 3 Jac. R. the king himself, the lords spiritual and temporal and the commons, being all assembled in the upper house of parliament. But the consideration of that schedule was by another act made in that sessions of an. 3 Jac. R. deferred untill the then next session. The next session being this instant of an' 4 Jacobi regis, the schedule was considered of devidedly by the lords and commons: the material parts consisting upon 3 heads. The first the commissioners did propose, that all hostile VOL. II. lawes of either nation one against the other might be abrogated, and did enumerate the same lawes. The second, they proposed a course for commerce and merchandizing by merchants of both nations between themselves and with forreiners. Thirdly, they proposed that the common law of both nations should be declared to be, that all born in either nation sithence his majesty was king of both, were mutually naturalized in both. And further, that an act might be made to naturalize all born before, with certain cautions and restrictions for bearing principall offices of the crown, offices of judicature, or having voice in parliament, and with a saving of the kings prerogatire. Upon the two first articles, the lords and commons had sundry conferences in the Painted Chamber, and in effect agreed to give way to the substance of them. But upon the third, the commons could not assent to declare the law as was proposed, and thereupon after long debate amongst themselves, they appointed committees to confer with the lords committees, who mett the 25 of February 1606, in the Painted Chamber. At which conference sir Francis Bacon, appointed by the house to introduce the rest, begun in this manner. That this conference and the subject thereof 20 people into places, and to discipline in their government, though their subjection still remain in the general to one head; yet the manner of it is locally circumscribed to the places where they are brought forth, and those of one place do not, nor should partake of the discipline, privileges, and birthright of the other places, but every one left to his own, as acquired for patrimony by their antecessors of that place, upon reasons peradventure now not extant nor to be exactly understood.-2. This is in use in other nations, who obtain their naturalization by Charters, and for such time, and with such cautions, as may be granted unto them, and take it not by the general law of that nation whereto they were united.—3. In the time of the old civil Romans, who united unto them divers provinces, they had degrees in naturalizing; for first, the party had jus domicilii,' then 'jus civitatis,' next jus tribus,' and lastly jus honoris ;' whereas if the law of England should be, that subjection brought all this together, it were a law overliberal, and more bountiful, then the laws of this civil state ground was non in deliberativo, but in judiciali, not de bono but de vero, not to consult of a law to be made, but to declare the law already planted, whereto the commons were drawn, by insatisfaction of their judgments, not indisposition of their minds to the happy union intended, to oppose the proposition of the commissioners. And whereas his majesty had by a proclamation expressed the law to be as the commissioners had proposed, the commons did not take themselves prejudicated by the proclamation; first, for that that matter caine but obiter in the proclamation, and was not the principal part or purpose thereof; then, for that the proclamation mentioneth the king to be so informed by divers sages of the law, which | is not to be understood judges of the law, but some learned in the lawes, whose opinion may the better be opposed: yet the proclamation hath so tempered the tongues of the speakers, as it hath kept down all flashes of heat, which otherwise might have happened in the arguinent. Howbeit the danger of a declaratory statute, being like Janus Bifrons striking both wayes, raiseth in the commons too much feared upon reason and policy.-4. That Scotland to assent to the proposition, leaving the proclamation neverthelesse to its own cffect. Pur inducement pur les auters speakers apres cest induccion, he shewed that it was a singular commendation to the lawes of England, that it was not in sociable, but contented to hear and be advised by other sciences in matters of dependencie upon them; as in cases of exposition of words, by grammarians; in matters of matrimony, deprivation, bastardy, by civilians; in minerals, by natural philosophers; in uses, by moral philosophers. Upon which consideration the commons had selected out of themselves divers gentlemen, some for inducement, some for argument in the point of law. Those for inducement were to shew the law of nations, and of reason, and the stories of other countries, and the civil law elsewhere put in use upon unions; those for argument were gentlemen of the profession of the common laws of this realm : all which being here ready, he left them to discharge their own proper duties. Sir Edwyn Sundes shewed that this case was proper to be consulted with the law of nations, which is called jus gentium;' for there being no president for it in the law, lex deficit,' and | 'deficiente lege recurritur ad consuetudinem,' and deficiente consuetudine recurritur ad ' rationein naturalem,' which ratio naturalis' is the law of nations called jus gentium.' The question of difference is thus, whether subjection to one king make all the people born within the places of that subjection to be naturalized over all places of that kings subjection, which as he thought, if it were to be measured by the law of reason and nations, did not. Aud therefore shewed 7 reasons for his opinion.-1. That although ab antiquo, when people were together in one heap irregularly, having one head, their subjection gave to every one equal priviledge in all places of their subjection, yet sithence the world is grown to distribution of being governed by the civil law, alloweth not English by bare subjection to their king to be naturalized within them; and therefore the law of England should be very unequal, if it shon'd allow it to Scots here.-5. This case may give a dangerous example for mutual naturalizing of all nations that hereafter may fall into the subjection of the king, although they be very remote, in that their mutual communalty of privileges may disorder the settled government of every of the particulars; and how many of them may happen, is uncertaine; for we see, that where there were 100 kings, they came after to 11, and are now brought to 6 only within Christendome.-6. The Scots shall be in better case by this law of naturalizing then the English, in the English nation; for the English pay all impositions and taxes for services of the crown, which the Scots do not within England.-7. All the reasons given for naturalizing extend as well to them before born, as sithence the king came to the crown of England; for the subjection is now all one. Therefore, the law that should make a difference is not reasonable; and because the law is confessed to Le, that those before born be not naturalized, therefore the law must also be, if it retain the same reason, that those born after are not naturalized. Nevertheless he concluded, that he held it in reason, that in respect of one subjection, the Scots should not be accounted nor deal withall by our lawes, as aliens, although not enabled to the full rights of Englishmen born amongst us. Sir Roger Owen for stories, 1. shewed, that in all the presidents of the Romans, and in all their varieties of aristocracy or monarchy, there was no naturalizing ipso jure, but by charters of grace or constitutions special, and that by Nannies begun and introduced. 2. The president of Spain and Castile is not to this point; for Alaricus the emperour first lord of all Spain gave out Castile, and the coming of Castile again is rather a reuniting or a remitter, then a new union, and therefore reasonable they be one naturalized in the other as they were at the first. 3. The president fresh of France and Scotland by marriage of the kings mother with Francis the second king of France, because the subjection made no naturalization ipso jure, therefore the Scots in France and the French in Scotland were naturalized by acts of parliament and with cautions. 6 Sir John Bennet doctor of the civil law, he shewed that the civil law had no resolution of this point in terminis terminantibus;' but of other unions lesser then kingdoms, there were rules, which be devided into these heads; one a maxime, the other a distribution; the maxime, cum duo jura concurrunt in una persona æquum est ac si essent in diversis,' as one parson of two churches, one dean of two deaneries: the customes of every place remain still distinct and devided. And he cited an example, that the earldome of Flanders and Artois were holden of the king of France as soveraign by the duke of Brabant and Holland, who within Brabant and Holland was a free state: the question was whether this duke having both the dukedome and the earldome, and owing subjection to France only for the earldome, might make a league with the English for his dukedome, without breaking allegiance with France: and this being debated in the parliament of Paris, it was adjudged he might, because he held the dukedome and the earldome as distinct in his person, and owed no subjection to France for his dukedome. The distribution he made was this, upon the difference of unum and unitum: there was a union subordinate, that is, when an inferiour is united to the superiour, as Ireland to England, in this case privilegia communicantur.' There is an union by incorporation, that is, when two be made unum, and not unitum, and then privilegia communicantur,' as Wales and England. The third is when disjunct kingdomes are united, and that unicuin' is 'secundum quid,' and 'non simpliciter;' in which case privilegia non communicantur;' and so he concluded that Scottish men were not naturalized in England; and yet he affirmed that it was in the power of the king by the civil law to naturalize them, and give them the priviledges. The earl of Salisbury here interposed, and said, that he was desirous to understand whether the arguments made were upon the point in question; for as he conceived the question now in debate was a legal question of the law of England, and therefore time was to be spent upon argument and discussion of the law of England, and so sapiens contentio aut pro 'dest aut non obest.' The Lord Chancellor then spake and said, that the first man that spake by introduction and inducement of the rest brought the question to the quick, that is, that it was not a question de bono but de vere, not what was fit to be done, but what the law already is, which is what the law of England is; in which ques|tion, if it shall be doubtful, it is more then indifferent to declare it as the commissioners have proposed, for three causes. 1. The kings proclamation having divulged it so, it is for his honor to declare it so, if it be not clear otherwise. 2. The opinion of the commissioners whom both houses trusted. 3. The act of recognition, whereby we have acknowledged the king of both, and that we both live under one imperial crown. The earl of Northampton said, that it appeared by the civilians, that in the civil law there was no presidentin terminis terminantibus;' and therefore from them we could take no rule for this case; nor no stories or examples of forraign states, which are appliable and framed to their own particular policies. Nor as this case is, can we be measured or guided by inconveniences that may be forecast; be. cause we are confined to a point of law already received and planted, and are to reason and discuss what that law is. Nevertheless he desired leave to use a comparison to them, to be commended to their consideration, between the union in a body politick and in a body natural. The head in a body natural hath his influence into all the members by spirits of Life and sense. So hath the head of the body politick, to whom all the members be children in obedience, and brothers one to the other. The sinews in a body natural are ligaments that binde together the joynts and flesh. So are lawes in the body politick that tye people in a band of subjection and civil life. The blood, that passeth in the veins of the body natural by continual motion, doth maintain and refresh the spirits of life. So trafiick, commerce, and contracts in a body politick, do support, maintaine and refresh the common-wealth. But of all these there is a superior spirit sent by God, which is the soul to the body of man, by which all our blessedness is infused. So may we well say, that the kings majestie is like the soul, a blessedness sent from God to dwell in both these nations as a continual spirit of union amongst them, to pacifie and temper all bitterness, even as the soul by instinct of reason quieteth the natural passions of the natural bodies. Wherefore let us consider how unfit it is to have two spirits or souls in one body; what their opposition may work for distemper and dissolution; what the sweet harmony of one good vertuous and religious soul in every part of the body may do, for consolidating, strengthening, and continuing in the whole body that prosperous estate of life and health that is to be wished: and therefore in the case whatsoever may tend to the happy and firm uniting of these two kingdomes in resemblance of lives and fortunes is to be inclined to, and recommended to your grave consideration. Dodridge the king's sollicitor, Laurence Hyde, Brook, Crewe, & Hedley, professors of the common law, now begin. And for the common law they urged nine reasons or argu positions is, that in the kings person there is an union of soveraignty over both nations. The second is, that notwithstanding this union, yet the fundamental lawes of either nation do remaine distinct. The third, which is the doubt between both these, whether naturalization proceed from the king or the lawes. Out of this one head all the reasons were derived as followeth. ments, that those born sithence his majesty | deaux and Bayon, and to send them to the came to the crown of England within Scotland Tower of London. An Habeas Corpus hath should not be naturalized in England. Which been directed under the great seal of England question sprang out of two positions granted, into Gascoigne, as appeareth by records of the as a third doubtful between, and this third is Kings-bench. And the islanders do send peti'oculus quæstionis.' The first of these two tions and make proctors to the parliament of England, as is still put in use to this day. By which it appeareth, that the case is not like between England and these kingdomes and dukedomes subordinate to England, as it is between England and Scotland; Scotland being a distinct kingdom not subordinate, and as ancient as England itself. And therefore whereas some have conceived, that when Gascoigne was by marriage united to England, those of Gascoigne were not aliens to England, and inforce this exposition out of the prior Shels case, 27 E. 3. pla. 48. in the book of assizes, in that the prior having his lands seized in time of war, for that he was born in Gascoigne under the kings allegeance, and thereupon the matter being found true, he had restitution; to that, it may be confessed; and yet it matcheth not our case for Scotland, a distinct kingdomne, and the reason of that restitution may be the ceasing of the wars as well as being born in Gascoigne; for those of Gascoigne were in those times accompted aliens in England, as may appeare by the statute of 38 E. 3. cap. 11. where it is enacted, that the Gascoigues and other aliens should come into England with their wines; which proveth, that those of Gascoigne could not bring their wines into England, and they were then aliens to England, by the words of Gascoignes and other aliens. 1 That lex et ligeancia' came out of one root, and as it is called 'lex a ligando,' so it is called legeance, a ligatione;' which proveth allegeance to be tied to laws; and consequently the laws of these two nations being several, notwithstanding the union of soveraignty in the kings person, the allegeance of the subjects remaineth still several; and therefore naturalization being measured by allegeance must still remain several and distinct in either nations, as allegeance and laws do, and cannot be united and made one in both nations. To inforce this they cited the statute of 25 Ed. 3. statute 2. De Natis Ultra Mare. In many places where it mentioneth legeance, is added out of the 'legeance of England, or within the same le6 geance of England; which doth infer, that legeance is tyed to the kingdome, and not to the person of the king. 2 Reason, that Postnati in Scotland are not subject to the laws of England, and therefore 7 Reason, that regnum and rer were relashould not have benefit of the laws of England. tives, and therefore distinct kingdoms, distinct 3 Reason, that every nation hath a precinct kings as to the kingdoms; and the person of wherein the laws have operation; and natu- the king possessing both kingdoms possesseth ralization is an act or operation of law; there the people and the laws of them distinct, as the fore it cannot extend to places out of the pre-kingdoms are themselves. Therefore the subcinct for the laws. Which being granted, it followeth, that as English laws extend not into Scotland, so to be naturalized by the laws of England, extends not into Scotland nor to those born in Scotland. The 4 and 5 reason, that the great seal of England, which is the organ by which the law is conveyed, is not powerful nor binding in Scotland; therefore those born in Scotland not inheritable to the laws of England, nor to be born subjects of England, when they cannot be commanded by the great seal of England. jection of every people is distinguished to the several kingdoms, and one not subject to the other, nor naturalized within the other. And this is proved by the statute of 14 E. 3. whereby it is declared, that notwithstanding the king of England were king of France, yet the people of England were not subject unto him as king of France, but only as king of England. 8 Reason, that no man can be born a subject of two allegeances, nor by birth natural of two distinct kingdoms, therefore Scots born in Scotland cannot be naturalized in England. 9 Inconvenience would ensue in honors, privileges, and things of value, which would be confounded without order, if this commixtion should be planted in both nations without discipline or rules. 6 Reason, that in subordinate kingdomes, dukedomes, or seignories, as Ireland, Gascoigne, Aquitane, Angois, the great seal of England is passable, and the parliament of England hath power; as is proved by that a writ of error may The time being thus spent the 25 day of be brought in the Kings-bench of a judgment February, the next day was appointed to proin Ireland, and the parliament of England may ceed with the conference, at which time the make a statute to bind in Ireland, if Ireland be lords committees desired the judges there atspecially named, but without special nameing tending to deliver their advice and opinions it doth not bind. So 27 E. 3. cap. 7. a statute concerning the point of law: for which the lord was made to authorise the steward of Gas-chief justice Popham had the night before coigue to arrest the bodies of such as bargaine prayed respite until this time. Whereupon for wines elsewhere, then in the portes of Bur- the said lord chief justice, and sir Edward Cook chief justice of the Common Pleas, and sir Thomas Flemming chief baron, did openly deliver their opinions and their reasons, the said lord chief justice Popham making these three inducements in commendation of the laws of England. 1 That they had continued as a rock without alteration in all the varieties of people that had possessed this land, namely the Romans, Brittons, Danes, Saxons, Normans, and English, which he imputed to the integrity and justice of these laws, every people taking a liking to them, and desirous to continue them and live by them, for which he cited Fortescues book of the laws of England. 2 Commendation, the price that those laws did cost, which was no lesse then blood; not laws of blood or bloody laws, but laws bought and purchased by the blood of our antecessors, as appeareth by Magna Charta, planted in king H. 3's time, after long and bloody wars between the kings and barons of this realin, the stories whereof do yet live fresh in every chronicle. giance is where the laws are not. 4. Between soveraignty and allegiance laws are begotten. 5. Allegiance extends as far as defence, which is beyond the circuit of laws. 6. Allegiance followeth the natural person, not the politick. To prove this, it was said, if a heap of people meet together so near, that they appoint a king, there allegiance is before they have laws proclaimed or prescribed: wherefore allegiance is before laws. If the king be expelled by force and another usurps, yet the allegiance is not taken away, though the law be taken away. If the king go out of England with a company of his servants, allegiance remaineth amongst his subjects and servants, although he be out of his own realm, whereto his laws are confined, as is proved by a case in Fleta, who wrote in Ed. 2 time, which is thus. King Ed. 1. went in person into France, to a marriage; one of his servants in France stole 2 silver dishes, for which he was apprehended by the French: the king required to have him redelivered, being his subject and of his traine; and upon dispute in the parliament of Paris, he was sent to the king of England to do his own justice upon him, whereupon he was tried before the steward and marshal of the kings house, and executed in France in a meadow called St. Jermins meadow. Which proveth that the kings law followeth his allegiance out of the local limit of the laws of England. And even so it is, where the king of England sendeth a lieutenant or general with an army royal out of the realm, the army is to be guided by the martial law of England, as the lord Cook affirmed, who also 3 Commendation is the proceedings of the law, which he devided into 3 parts. 1 Judgments. 2 Trials. 3 Testimonies. The judgments so even and so impartial, as they give way to no mans affection, nor impute blame to any man; but to say the law requireth such judgment, is an excuse satisfactory to all men, for the king, and the judges. And therefore the said lord chief justice cited a resolution in parliament when himself served as Speaker: that whereas it was proposed to have a law made, that the judges might use their discretion in appointing trials in forraine counties, in respect the meaner sort of people were over-cited the case of Fleta. If there were not a weighed with the power of great men in some shires that were parties to the suites; it was upon grave advice and consultation denied, with this answer, that it were better to live under a certain known law, though hard sometimes in a few cases, then to be subject to the alterable discretion of any judges. The trials of the law for the most part so equal by the oaths of 12, as he protested that he never knew of the multitude that had passed before himself, scarce two of a hundred passe otherwise then himself should have passed, if he had been in their case. For the testimonies being viva voce before the judges in open face of the world, he said was much to be preferred before written depositions by private examiners or commissioners. First, for that the judge and jurors discerne often by the countenance of a witnesse whether he come prepared, and by his readiness and slackness, whether he be ill affected or well affected, and by short questions may draw out circumstances to approve or discredit his testimony, and one witness may contest with another where they are viva voce. All which are taken away by written depositions in a corner. soveraign to prescribe laws, and people of allegiance to obey them, there could be no laws made nor executed. By which it appeareth, that between soveraignty and allegiance laws are begotten; and therefore in nations conquered there are no laws, yet is there present allegiance; and after allegiance gotten, it is secondary for the king to deliver laws to the people of his allegiance. And to prove the allegiance to be tyed to the body natural of the king, not to the body politick, the lord Cook cited the phrases of divers statutes mentioning the king our natural liege soveraign, and these words natural subjects' in acts of recognition usual and familiar. And to prove that allegiance extended further then the laws national, they shewed, that every king of divers kingdoms or dukedomes is to command every people to defend any of his kingdomes without respect of that nation where he is born; as if the king of Spain be invaded in Portugal, he may levy for defence of Portugal armies out of Spain, Naples, Castile, Millan, Flanders, and the like, as a thing incident to the allegiance of all his subjects to joyn together in defence of any one of his territories, without respect of extent of the laws of that nation where he was born: whereby it manifestly ap For argument the said judges answered with one assent, to the first reason of the commons, that allegeance and laws were not of equipa-peareth, that allegiance followeth the natural ration for six causes. 1. Allegiance was before laws. 2. Allegiance is after laws. 3. Alle person of the king, and is not tyed to the body politick respectively in every kingdom. And |