Imágenes de páginas
PDF
EPUB

time of king E. I. and II. of divers particular grants to sundry subjects of Ireland and their heirs, that they might use and observe the laws of England.

The third reason is, that there is a politic necessity of intermixture of people in case of subjection by conquest, to remove alienations of mind, and to secure the state; which holdeth not in case of descent. Here I perceive Mr. Walter hath read somewhat in matter of state; and so have I likewise; though we may both quickly lose ourselves in a cause of this nature.

I find by the best opinions, that there be two means to assure and retain in obedience countries conquered, both very differing, almost in extremes, the one towards the other.

The one is by colonies, and intermixture of people, and transplantation of families, which Mr. Walter spoke of; and it was indeed the Roman manner: but this is like an old relic, much reverenced and almost never used. But the other, which is the modern manner, and almost wholly in practice and use, is by garrisons and citadels, and lists or companies of men of war, and other like matters of terror and bridle.

To the first of these, which is little used, it is true that naturalization doth conduce, but to the latter it is utterly opposite, as putting too great pride and means to do hurt in those that are meant to be kept short and low. And yet in the very first case, of the Roman proceeding, naturalization did never follow by conquest, during all the growth of the Roman empire; but was ever conferred by charters, or donations, sometimes to cities and towns, sometimes to particular persons, and sometimes to nations, until the time of Adrian the emperor, and the law In orbe Romano: and that law or constitution is not referred to title of conquest and arms only, but to all other titles; as by the donation and testament of kings, by submission and dedition of states, or the like: so as this difference was as strange to them as to us. And certainly I suppose it will sound strangely, in the hearing of foreign nations, that the law of England should ipso facto naturalize subjects of conquests, and should not naturalize subjects which grow unto the king by descent; that is, that it should confer the benefit and privilege of naturalization upon such as cannot at the first but bear hatred and rancour to the state of England, and have had their hand in the blood of the subjects of England, and should deny the like benefit to those that are conjoined with them by a

more amiable mean; and that the law of England should confer naturalization upon slaves and vassals, for people conquered are no better in the beginning, and should deny it to freemen: I say, it will be marvelled at abroad, of what complexion the laws of England be made, that breedeth such differences. But there is little danger of such scandals; for this is a difference that the law of England never knew.

The fourth reason of this difference is, that in case of conquest the territory united can never be separated again; but in case of descent there is a possibility; if his Majesty's line should fail, the kingdoms may sever again to their respective heirs; as in the case of 8 Hen. VI. where it is said, that if land descend to a man from the ancestor on the part of his father, and a rent issuing out of it from an ancestor on the part of the mother; if the party die without issue, the rent is revived. As to this reason, I know well the continuance of the king's line is no less dear to those that allege the reason, than to us that confute it. So as I do not blame the pressing of the reason but it is answered with no great difficulty; for, first, the law doth never respect remote and foreign possibilities, as notably appeared in the great case between Sir Hugh Cholmley and Houlford in the exchequer, where one in the remainder, to the end to bridle tenant in tail from suffering a common recovery, granted his remainder to the king; and because he would be sure to have it out again without charge or trouble when his turn were served, he limited it to the king during the life of tenant in tail. Question grew, whether this grant of remainder were good, yea or no. And it was said to be frivolous and void, because it could never by any possibility execute; for tenant in tail cannot surrender; and if he died, the remainder likewise ceased. To which it was answered, that there was a possibility that it might execute, which was thus: Put case, that tenant in tail should enter into religion, having no issue; then the remainder should execute, and the king should hold the land during the natural life of tenant in tail, notwithstanding his civil death. But the court una voce exploded this reason, and said, that monasteries were down, and entries into religion gone, and they must be up again ere this could be; and that the law did not respect such remote and foreign possibilities. And so we may hold this for the like. For I think we all hope, that neither of those days shall ever

come, either for monasteries to be restored, or for the king's line to fail. But the true answer is, that the possibility subsequent, remote or not remote, doth not alter the operation of law for the present. For that should be as if, in case of the rent which you put, you should say, that in regard that the rent may be severed, it should be said to be in esse in the mean time, and should be grantable; which is clearly otherwise. And so in the principal case, if that should be, which God of his goodness forbid, cessante causa cessat effectus, the benefit of naturalization for the time to come is dissolved. But that altereth not the operation of the law, rebus sic stantibus. And therefore I conclude that this difference is but a device full of weakness and ignorance; and that there is one and the same reason of naturalizing subjects by descent, and subjects by conquest; and that is the union in the person of the king; and therefore that the case of Scotland is as clear as that of Ireland, and they that grant the one cannot deny the other. And so I conclude this second part, touching confutation.

To proceed therefore to the proofs of our part, your lordships cannot but know many of them must be already spent in the answer which we have made to the objections. For corruptio unius generatio alterius holds as well in arguments, as in nature; the destruction of an objection begets a proof. But nevertheless I will avoid all iteration, lest I should seem either to distrust your memories, or to abuse your patience; but will hold myself only to those proofs which stand substantially of themselves, and are not intermixed with matter of confutation. I will therefore prove unto your lordships that the post-natus of Scotland is by the law of England natural, and ought so to be adjudged, by three courses of proof.

1. First, upon point of favour of law.

2. Secondly, upon reasons and authorities of law.

3. And lastly, upon former precedents and examples.

1. Favour of law: what mean I by that? The law is equal and favoureth not. It is true, not persons; but things or matters it doth favour. Is it not a common principle, that the law favoureth three things, life, liberty, and dower? And what is the reason of this favour? This, because our law is grounded upon the law of nature, and these three things do flow from the law of nature; preservation of life, natural; liberty, which every beast or bird seeketh and affecteth,

natural; the society of man and wife, whereof dower is the reward, natural. It is well. Doth the law favour liberty so highly, as a man shall enfranchise his bondman, when he thinketh not of it, by granting to him lands or goods? and is the reason of it quia natura omnes homines erant liberi; and that servitude or villenage doth cross and abridge the law of nature? and doth not the self-same reason hold in the present case For, my lords, by the law of nature all men in the world are naturalized one towards another; they were all made of one lump of earth, of one breath of God; they had the same common parents; nay, at the first they were, as the Scripture sheweth, unius labii, of one language, until the curse; which curse, thanks be to God, our present case is exempted from. It was civil and national laws that brought in these words, and differences, of civis and exterus, alien and native. And therefore because they tend to abridge the law of nature, the law favoureth not them, but takes them strictly: even as our law hath an excellent rule, that customs of towns and boroughs shall be taken and construed strictly and precisely, because they do abridge and derogate from the law of the land. So by the same reason, all national laws whatsoever are to be taken strictly and hardly in any point wherein they abridge and derogate from the law of nature. Whereupon I conclude that your lordships cannot judge the law for the other side, except the case be luce clarius; and if it appear to you but doubtful, as I think no man in his right senses but will yield it to be at least doubtful, then ought your lordships, under your correction be it spoken, to pronounce for us because of the favour of law. Furthermore as the law of England must favour naturalization as a branch of the law of nature, so it appears manifestly, that it doth favour it accordingly. For it is not much to make a subject naturalized by the law of England: it should suffice, either place or parents. If he be born in England it is no matter though his parents be Spaniards, or what you will: on the other side, if he be born of English parents, it skilleth not though he be born in Spain, or in any other place of the world. In such sort doth the law of England open her lap to receive in people to be naturalized; which indeed sheweth the wisdom and excellent composition of our law, and that it is the law of

'I have ventured on transposing the words, which in the MS. stand "is it," with a note of interrogation at "parents," and substituting colons for full stops in several clauses following.

a warlike and a magnanimous nation fit for empire. For look, and you shall find that such kind of estates have been ever liberal in point of naturalization: whereas merchant-like and envious estates have been otherwise.

2. For the reasons of law joined with authorities, I do first observe to your lordships, that our assertion or affirmation is simple and plain: that it sufficeth to naturalization, that there be one king, and that the party be natus ad fidem regis, agreeable to the definition of Littleton, which is: Alien is he which is born out of the allegiance of our lord the king. They of the other side speak of respects, and quoad, and quatenus, and such subtilties and distinctions. To maintain therefore our assertion, I will use three kinds of proofs.

The first is, that allegiance cannot be applied to the law or kingdom, but to the person of the king, because the allegiance of the subject is more large and spacious, and hath a greater latitude and comprehension than the law or the kingdom. And therefore it cannot be a dependency of that without the which it may of itself subsist.

The second proof which I will use is, that the natural body of the king hath an operation and influence into his body politic, as well as his body politic hath upon his body natural; and therefore, that although his body politic of king of England, and his body politic of king of Scotland, be several and distinct, yet nevertheless his natural person, which is one, hath an operation upon both, and createth a privity between them.

And the third proof is the binding text of five several statutes. For the first of these, I shall make it manifest, that allegiance is of a greater extent and dimension than laws or kingdom, and cannot consist by the laws merely; because it began before laws, it continueth after laws, and it is in vigour where laws are suspended and have not their force. That it is more

'Mr. Hallam, after observing that "the high flying creed of prerogative mingled itself intimately with this question of naturalization, which was much argued on the monarchical principle of personal allegiance to the sovereign, as opposed to the half republican theory that lurked in the contrary proposition," goes on to cite in illustration this thesis of Bacon's, alongside of the 5th of Coke's, "demonstrative illations or conclusions," at the close of his Report, fol. 49.; viz. that "whatsoever is due by the law and constitution of man may be altered; but natural legiance or obedience of the subject cannot be altered; ergo, natural legiance or obedience to the sovereign is not due by the law or constitution of man." The measure of propriety is not the same for the advocate and for the judge; and there is one part of the proof which Bacon offers of the last part of his proposition, -I mean the king's supreme authority by martial law in time of war, which would, I suppose, have been open to serious comment if judicially delivered. But surely a glance at the context is enough to show that Bacon means something very different from what seems the obvious sense of

« AnteriorContinuar »