Provinciæ, as they saw cause, but if they had any part they had presently the benefit of all. Lastly there were no reasons for naturalization, which might not as well extend to the Antenati as the Post-nati. Yet must it be granted that they are somewhat in better state than aliens, though not in so good as naturalized subjects.1

For the law of nations and precedent of foreign estates, there were three principal observations to be made.

First that in the whole course of the Roman story there was never any naturalized ipso jure, but all by charters of constitutions. Secondly there is a good avoidance of any precedent of naturalization in Spain, because the State having been there in times past entire under one King, afterwards divided into many kingdoms, and since under one King again, it is now no union, but a reunion or a remitter.

Here the first sheet of the manuscript ends, and the rest is missing. What we have appears, from the notes in the Journals, to be about half the report of the first day's conference; which ended (after some answers made by the Lords) with an adjournment to the next day, when the Judges were to give their opinion. Of the proceedings on that day Bacon continued his report on Monday, March 2; and of this also we have an account drawn up by Carleton, though the last leaves are again missing.

Sir Francis Bacon's Report, this 2 of March,3 of the Conference had with the Lords the week before; wherein is first contained the reasons of the lower house in point of law, in the question whether the Scots born since the King came to the Crown be naturalized in England, which they held negativè, and the opinion of the Judges for the affirmative.

First he used some preamble to shew that this was a matter of substance and not of discourse, and therefore would breed more attention but less delight. His duty was to report truly and nakedly rem gestam, and not add nor diminish, nor express

1 This is the conclusion of Sir E. Sandys' part. The next point was argued by Sir Roger Owen.

2 C. J. p. 342.

3 Dom. James I. vol. xxvi. no. 66. The word "March" is now worn away, but it was distinctly legible when I made my copy.

anything with unequal advantage; wherefore he would add nothing of his own, but the order only.

In point of law, the question was held affirmatively by the Judges, and negatively by the House. Wherein there were first concessa on both sides; as the House did yield there was a union made in the King's person, and the Judges that there was a distinction betwixt the two kingdoms in regard of the separation in the laws. Now whether the one of these do draw on or involve the other, that is oculus quæstionis.

For the negative the arguments were 9: but might be contracted judicially into a less distinction of matter of allegiance and matter of jurisdiction: like the ten commandments, which were all comprised under two heads, of love of God and love of our neighbour.

1. Several laws do draw in consequence several allegiances; which argument is drawn ex notatione nominis, because lex and ligantia come both a ligando.

2. The second argument was taken out of the statute of aliens of 15° Ed. 3, de natis ultra maria, which was interpreted out of the allegiance of the kingdom and crown.

3. The Scots are not subject to the jurisdiction of our laws, and therefore they were not to enjoy the benefit of them: because it is not fit that law should impart favours and rewards which cannot enjoin obedience.

4. Every law hath his precinct and limit within which it is bounded; and therefore this law cannot naturalize men born in Scotland, where it hath no force.

5. Where our laws can effect anything they must have a potential act, as by virtue of the great seal or otherwise, which hath no power in Scotland: yet hath it power in Ireland, Garnsey, and Jarsey, which it doth hold potentially though not execute it actually.

6. There is no subordination of the crown of Scotland to the crown of England, but they stand as distinct and entire souveranities; whereas Aquitaine, Anjou, and other places in France were subordinate to this crown, as appears by good records that a corpus capias or any writ under the great seal was of force amongst them, and they had access here for their complaints in Parliament, as to this day it appears by the recital of the names of those places; yet were not those of these countries

naturalized: ergo, a fortiori, the Scots, who remain still distinct souveranities cannot be.

7. Rex et Regnum are relatives; and the subjects of a king are naturalized in that kingdom whereof he is king; and when our King here in England was King of France, lest that greater kingdom should take to itself any greater predominance over this, it was expressly declared by an Act here in Parliament that our King, as King of France, could effect nothing here in England, nor the French enjoy any part of the privileges of this country.

8. No man can be subject to two allegiances, therefore if they ought allegiance there in respect of the crown of Scotland, they could owe none here in respect of the crown of England.

9. An inconvenience of the commixture of jurisdictions, and a confusion that would grow by the Scots having honours and offices here amongst us.

THE ANSWER OF MY LORDS THE JUDges.

First they endeavoured to cut off our auxiliary forces and nudare latera, which they did by a distinction that in particular cases of judgment between person and person there might be help of other sciences, but not in this where the question only was what was law.

A discourse was then made of the worth of our law, and that set out in three points.

1. In the continuance: the law having been ever as a rock, and stood firm against all storms and against the change of all nations here in England, as against the Danes, the Saxons, the Romans, and Normans; and had there not been found some excellency in it, it would surely have been altered by some of them, as by the Romans who gave laws to all the world.

2. In the price: because they were written in blood, as at the time when the Magna Charta was obtained of the King to be confirmed by Act of Parliament.

3. In the security: because the Judge as long as his judgment was contained within the compass of law was excused; the subject knew by what law he was to govern himself and his actions; nothing was left to the Judge's discretion; and where it was required long since by a bill in Parliament to have somewhat left to the Judge to allow or dislike in a particular case

which should be made arbitrary by the said bill, it was rejected, and upon this reason, that men were better be subject to a known inconvenience than to an unknown discretion.

The answers to the arguments which concerned allegiance, and were all to be comprised in one objection, as one branch divided into many buds or leaves, were three in gross and three in particular.

1. Allegiance is more spacious than laws, and that both in extent of time and extent of place. For time three reasons. 1. Allegiance was before laws. 2. Continued after. 3. Was in force and virtue when laws were asleep. 1. At the first Kings did dare jura, and after came laws; and therefore allegiance begat laws, and not laws allegiance. 2. Allow a King were expulsed his kingdom and some

Here again we come to the end of the only sheet that has been preserved, and the rest of Bacon's report of the Judges' answer (concerning which little more can be gathered from the Journals. than that it was long and learned) must be left to imagination: which however is the less to be regretted because the whole question was, not long afterwards, solemnly argued before them all in their own court. For the present, Bacon having at last finished his long report, "in conclusion prayed the House that at other times they would use some other, and not oppress him with their favours."

8.

1

They had now had their conference upon the point of law, and received their answer: which left them in a difficulty. For upon the question what the law was, though they might dispute, the Judges must decide. It was now plain that the Judges would decide against them; and what more could they do? To do nothing, would be to leave all the Postnati in unconditional possession of the privileges to which, except upon conditions, they thought it dangerous to admit them. To alter the law by an Act of Parliament would be the constitutional remedy: but it would require the consent of the Lords and the King, which was more than they could expect. To proceed to a conference on the 'conveniency' of naturalization, would seem to imply acquiescence in the decision on the point of law. Long debates followed both in the House and in the Committee, and some fine fencing with the Upper House as to the

1 C. J. p. 345.

terms on which the next conference should be held: the Lords pressing for a conference "concerning naturalization in general," the Commons trying to commit them to an interpretation of the words which should imply not only that the discussion was to be confined to the question of "conveniency and limitations," but that the cases of the Antenati and the Postnati were not to be treated as distinct failing in which, they proceeded to instruct their own Committee to decline the discussion if such distinction were insisted on.2 And on these terms a conference was held on the 14th of March; at which nothing could be concluded because of that restriction.3

:

Of this proceeding it is easier to understand the motive than the justification for the distinction which they insisted upon ignoring was, upon any view of it, wide and important. The question was, under what 'limitations' it was convenient' that the Scotch should be admitted to the privileges of naturalization. Now the Postnati had, and the Antenati had not, a claim by the common law to be admitted to those privileges without any limitation; and though the claim might be disputable, it was not one which the House of Commons had any authority to decide. Whatever privileges therefore they bestowed upon the one, with whatever limitations accompanied, were a benefit and free gift: whatever limitations they imposed upon the other, with whatever privileges accompanied, were a disfranchisement.

Had they consented to recognize the distinction of the cases, they might have had much to say upon the inconveniences involved in the interpretation of the law upon which the distinction rested. One consequence it certainly had which might on some other occasion have proved very mischievous, and against which it might have been judicious to provide then by legislation: for if true in this, it would

1 C. J. pp. 345–349.

2 "And it is resolved by the Committee that if their Lps still urge a disjunction, not by law, which they seem to have waved, but by reason, that there shall be no reply, unless they admit them in equal state."-Cott. MSS. Tit. f. iv. p. 55.

3It is well known unto you that the last meeting brought forth little fruit, in regard of the unexpected course which was observed in the proceeding. ... as your unexpected reservation to hear without any speech took away the use and life of that intended conference."-Message from Lords to Commons, 27 March, 1607. Lords' Journals, p. 495. The conference alluded to was held on the 14th of March, and opened by Sir Edwin Sandys, whose "conclusion," according to a note of his speech in the hand of Dudley Carleton, was to this effect: "Not fit to grant perfect privileges of naturalisation unlimited to an unperfect union: therefore by order from the House no yielding to a difference between the ante-nati and post-nati; not upon any jealousy of the LL's meaning, but to give no assent to the reason of this difference expressed in the instrument: and therefore unless we might treat of them both together, we would humbly give their Lps audience, but no further proceed in conference." (Domestic, James I. xxvi. 85.)