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ancient than law, appeareth by that which was spoken in the beginning by way of inducement; where I did endeavour to demonstrate, that the original age of kingdoms was governed by natural equity, that kings were more ancient than lawgivers, that the first submissions were simple, and upon confidence to the person of kings and that the allegiance of subjects to hereditary monarchs can no more be said to consist by laws, than the obedience of children to parents.

That allegiance continueth after laws, I will only put the case, which was remembered by two great judges in a great assembly, the one of them now with God: which was; that if a king of England should be expulsed his kingdom, and some particular subjects should follow him in flight or exile in foreign parts, and any of them there should conspire his death; upon his recovery of his kingdom, such a subject might by the law of England be proceeded with for treason committed and perpetrated at what time he had no kingdom, and in place where the law did not bind.

That allegiance is in vigour and force where the power of law hath a cessation, appeareth notably in time of wars. For silent leges inter arma. And yet the sovereignty and imperial power of the king is so far from being then extinguished or suspended, as contrariwise it is raised and made more absolute; for then he may proceed by his supreme authority, and martial law, without observing formalities of the laws of his kingdom. And therefore whosoever speaks of laws, and the king's power by laws, and the subject's obedience or allegiance to laws, speak but of one half of the crown. For Bracton, out of Justinian, doth truly define the crown to consist of laws and arms, power civil and martial. With the latter whereof the law doth not intermeddle: so as where it is much spoken, Coke's syllogism. That monarchy, and especially hereditary monarchy, took its rise, in general, in natural relations or peculiar exigencies antecedent to formal constitutions, and that therefore the relation of king and subject was before (though subject to be defined and regulated by) the fundamental laws of kingdoms is at least a plausible historical theory; that allegiance, according to English law, "continueth after laws' and "is in vigour where the power of law hath acceptation" he endeavours to prove below; but all this is for the purpose of making out that a natural subject of the king need not be a subject of the English laws, and has nothing to do with the question whether allegiance can or cannot be "altered by the law of man," or is or is not "due by the law of man only. Bacon does elsewhere assert the very dangerous doctrine of an "inseparable prerogative," a doctrine which could be altogether got rid of only by setting aside as unconstitutional several ruled cases which seem to have passed unquestioned among the lawyers of that day (see supra, p. 370.; 7 Co. 27.; Plowd. 502.); but I am not aware that, in his authentic works, he anywhere maintains what may be called the transcendental theory of prerogative, which I suppose Mr. Hallam to have had in view.

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that the subjects of England are under one law, and the subjects of Scotland are under another law, it is true at Edinburgh or Stirling, or again in London or York; but if Englishmen and Scotsmen meet in an army royal before Calais, I hope then they are under one law. So likewise not only in time of war, but in time of peregrination: If a king of England travel or pass through foreign territories, yet the allegiance of his subjects followeth him: as appears in that notable case which is reported in Fleta, where one of the train of king Edward I. as he passed through France from the holy land, imbezzled some silver plate at Paris, and jurisdiction was demanded of this crime by the French king's counsel at law, ratione soli, and demanded likewise by the officers of king Edward, ratione persona; and after much solemnity, contestation, and interpleading, it was ruled and determined for king Edward, and the party tried and judged before the knight marshal of the king's house, and hanged after the English law, and execution in St. Germain's meadows. And so much for my first proof.

For my second main proof, it is drawn from the true and legal distinction of the king's several capacities; for they that maintain the contrary opinion do in effect destroy the whole force of the king's natural capacity, as if it were drowned and swallowed up by his politic. And therefore I will first prove to your lordships, that his two capacities are in no sort confounded. And secondly, that as his capacity politic worketh so upon his natural person, as it makes it differ from all other the natural persons of his subjects; so e converso, his natural body worketh so upon his politic, as the corporation of the crown utterly differeth from all other corporations within the realm.

For the first, I will vouch you the very words which I find in that notable case of the duchy, where the question was, whether the grants of king Edward VI. for duchy lands should be avoided in point of nonage? The case, as your lordships know well, is reported by Mr. Plowden as the general resolution of all the judges of England, and the king's learned counsel, Rouswell the solicitor only excepted; there I find these words, Comment. fol. 285. "There is in the king not a body natural alone, nor a body politic alone, but a body natural and politic together: corpus corporatum in corpore naturali, et corpus naturale in corpore corporato." The like I find in the great case

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of the lord Barckley set down by the same reporter. Comment. fol. 234. Though there be in the king two bodies, and that those two bodies are conjoined, yet are they by no means confounded the one by the other."

Now then to see the mutual and reciprocal intercourse, as I may term it, or influence or communication of qualities, that these bodies have the one upon the other: the body politic of the crown indueth the natural person of the king with these perfections: That the king in law shall never be said to be within age: that his blood shall never be corrupted: and that if he were attainted before, the very assumption of the crown purgeth it: that the king shall not take but by matter of record, although he take in his natural capacity, as upon a gift in tail: that his body in law shall be said to be as it were immortal; for there is no death of the king in law, but a demise, as it is termed: with many other the like privileges and differences from other natural persons too long to rehearse, the rather because the question laboureth not in that part. But on the contrary part let us see what operations the king's natural person hath upon his crown and body politic: of which the chiefest and greatest is, that it causeth the crown to go by descent; which is a thing strange and contrary to the course of all corporations, which evermore take in succession and not by descent. For no man can shew me in all the corporations of England, of what nature soever, whether they consist of one person, or of many, or whether they be temporal or ecclesiastical, not any one takes to him or his heirs, but all to him and his successors. And therefore here you may see what a weak course that is, to put cases of bishops and parsons, and the like, and to apply them to the crown. For the king takes to him and his heirs in the manner of a natural body, and the word successors is but superfluous: and where it is used, it is ever duly placed after the word heirs, "the king, his heirs, and successors."

Again, no man can deny but uxor et filius sunt nomina naturæ. A corporation can have no wife, nor a corporation can have no son: how is it then that it is treason to compass the death of the queen or of the prince? There is no part of the body politic of the crown in either of them, but it is entirely in the king. So likewise we find in the case of the lord Berkley, the question was, whether the statute of 35 Henry VIII.

for that part which concerned queen Catherine Parr's jointure, were a public act or no, of which the judges ought to take notice, not being pleaded; and judged a public act.

So the like question came before your lordship, my lord Chancellor, in serjeant Heale's case: whether the statute of 11 Edward III., concerning the entailing of the dukedom of Cornwall to the prince, were a public act or no; and ruled likewise a public act. Why no man can affirm but these be operations of law, proceeding from the dignity of the natural person of the king; for you shall never find that any other corporation whatsoever of a bishop, or master of a college, or mayor of London, worketh any thing in law upon the wife or son of the bishop or the mayor. And to conclude this point, and withal to come near to the case in question, I will shew you where the natural person of the king hath not only an operation in the case of his wife and children, but likewise in the case of his subjects, which is the very question in hand. As for example, I put this case: Can a Scotsman, who is a subject,subject to the natural person of the king, and not to the crown of England-can a Scotsman, I say, be an enemy by the law to the subjects of England? Or must he not of necessity, if he should invade England, be a rebel and no enemy, not only as to the king, but as to the subject? Or can any letters of mart or reprisal be granted against a Scotsman that shall spoil an Englishman's goods at sea? And certainly this case doth press exceedingly near the principal case; for it proveth plainly, that the natural person of the king hath surely a communication of qualities with his body politic, as it makes the subjects of either kingdom stand in another degree of privity one towards the other, than they did before. And so much for the second proof.

For the five acts of parliament which I spoke of, which are concluding to this question: The first of them is that concerning the banishment of Hugh Spencer in the time of king Edward II. in which act there is contained the charge and accusation whereupon his exile proceeded, one article of which charge is set down in these words: "Homage and oath of the subject is more by reason of the crown than by reason of the person of the king: So that if the king doth not guide himself by reason in right of the crown, his lieges are bound by their oath to the crown to remove the king." By which act

doth plainly appear the perilous consequence of this distinction concerning the person of the king and the crown. And yet I do acknowledge justly and ingenuously a great difference between that assertion and this, which is now maintained: for it is one thing to make things distinct, another thing to make them separable, aliud est distinctio aliud separatio; and therefore I assure myself, that those that now use and urge that distinction, do as firmly hold, that the subjection to the king's person and the crown are inseparable, though distinct, as I do. And it is true that the poison of the opinion and assertion of Spencer is like the poison of a scorpion, more in the tail than in the body: for it is the inference that they make, which is, that the king may be deposed or removed, that is the treason and disloyalty of that opinion. But by your leave, the body is never a whit the more wholesome meat for having such a tail belonging to it; therefore we see it is locus lubricus, an opinion from which a man may easily slide into an absurdity. But upon this act of parliament I will only note one circumstance more, and so leave it, which may add authority unto it in the opinion of the wisest; and that is, that these Spencers were not ancient nobles or great patriots that were charged and prosecuted by upstarts and favourites: for then it might be said, that it was but the action of some flatterers, who use 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:

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