yet of ancient time served many ages, first under Carthage, then under Rome, after under Saracens, Goths, and others, should of late years take unto themselves that spirit as to dream of a Monarchy in the West, according to that device, Video solem orientem in occidente, only because they have ravished from some wild and unarmed people mines and store' of gold; and on the other side, that this island of Brittany, seated and manned as it is, and that hath (I make no question) the best iron in the world, that is the best soldiers of the world, should think of nothing but reckonings and audits, and meum and tuum, and I cannot tell what. Mr. Speaker, I have, I take it, gone through the parts which I propounded to myself: wherein if any man shall think that I have sung placebo, for mine own particular, I would have him know that I am not so unseen in the world but that I discern it were much alike for my private fortune to rest1 a tacebo as to sing a placebo in this business. But I have spoken out of the fountain of my heart. Credidi propter quod locutus sum: I believed, therefore I spake. So as my duty is performed. The judgment is yours. God direct it for the best. 7. What was the exact form of the question before the House when this speech was made, the Journals do not distinctly explain. Bacon evidently wished to turn it upon the consideration of general policy -or "conveniency" as it was called-which was indeed the proper province of the Legislature; for upon the question what the existing law was, they had no authority to decide. And if they were satisfied that a general naturalization was expedient, though not prepared to affirm that the Post-nati were naturalized already, there was no need to meddle with the question. It would have been easy to frame the Act so as either to include them under the new law or leave them to the operation of the old. But the truth was that they were not prepared to admit any of the Scots to the benefits of naturalization, except upon conditions; and therefore it was necessary to put a veto, if possible, upon the doctrine that the Post-nati were entitled to admission as the law stood. Hence, as the debate went on, it shifted more and more from the point of 'conveniency' towards the 3 and audits om. K. 2 Britanny: R. 1 stores: K. to hold: K; the words interlined in Bacon's hand: the transcriber having left them out. point of law; and ended at last on the 5th day in an instruction to the Committee to discuss it among themselves and "report their opinion on that point only." Their opinion was that the Post-nati were not naturalized de jure: and upon their report to that effect (23 Feb.) the House having in the meantime passed a resolution (21 Feb.) that it was not fit to handle the point of conveniency before the point of law were determined-they were again instructed "to collect and set down in writing the heads of the arguments.. touching the point of law," and to consider who should be deputed to maintain each of the heads at the Conference with the Lords, which was to be the next step. 2 The object of the conference being to establish a position which Bacon had just declared to be in his opinion "contrary to reason of law, contrary to form of pleading in law, and contrary to authority and experience of law," he could not be asked to take a part in maintaining it by argument. But he was not the less fit to set forth the state of the question at issue, and to explain the proposed method of discussion: and accordingly the part assigned to him by the Houses was—“to make the entrance, by way of preamble and insinuation of the order of argument appointed to the Committee:" to which was added the duty (which proved a very heavy one) of making report of the proceedings to the House the next morning.4 It seems that at these Conferences between the Lords and the Commons, the rule was that the Commons should stand all the time, bareheaded which was found "a great hurt and danger to the health of their bodies, and almost impossible for the strongest body to endure, considering the length of conferences and the crowding and thronging there.' On this occasion, the conference having lasted very long and been continued through two successive days, the fatigue appears to have been too much for Bacon's constitution, and on the next morning he was ill and unable to appear in the House. But on Saturday, the 28th of February, he began his report: which "being," says the Journal, "very long, consisting of many divisions and particulars, and interlaced with much variety of argument and answer on both parts, the time would not allow him to finish, and so was deferred till Monday morning."6 Of this report there remains among the State papers an abstract in the hand of Dudley Carleton, drawn up apparently by himself: and though several leaves are missing, it will help us to understand the position of the question as between the two Houses, and to interpret the proceedings which followed. 2 C. J. p. 340. 1 20 Feb. C. J. p. 339. 3 24 Feb. SIR FRANCIS BACON'S REPORT OF THE FIRST DAY'S CONFERENCE TOUCHING THE QUESTION WHETHER THE SCOTCHMEN BORN SINCE THE KING CAME TO THE CROWN BE NATURALIZED IN ENGLAND,1 If want of health may not excuse attendance, nor want of hearing answer for not reporting, he knew not what to say for himself. For others they have stood as peremptories, but to him they cannot serve as dilatories. To bring out the whole and entire body he would not undertake; but to make an anatomy of it, and shew the lines and parts, which might serve to give a light, though not delight. The speeches used by the Lower House divided into two parts; first into matter of introducement; secondly into matter of argument. The introducement chiefly tended to prevent mistakings, and to persuade that this proceeding was no opposition to the main point of the Union, nor a wilful contradiction to his Majesty's proclamation, but a desire to make the Scottishmen more beholding to the State than to our laws; because our laws were firm and stable, and could neither impart favours nor expect thanks. This is not a matter in deliberativo genere but in judiciali, and the question not de bono but de vero, which might argue the insatisfaction of our judgments, not the indisposition of our wills. We might not be thought to oppose against the proclamation, because that had another main and principal intent, and these words only a passage set down by some skilful in the laws, which they term according to their usual form, sages aux loyes. That we acknowledge the power of proclamations to be great, yet not such as might explain laws. And that the explanation of a law was all one if not more than the enacting; because it was like Janus bifrons, and looked as well back how the law was ever to be taken, as forward how it should be taken hereafter, and was therefore left only to Parliament. Yet had this proclamation effected so much that in all this proceeding, which had suffered much debate, there was no flash of heat, or any unrespective word cast out. In novo casu veritas tanquam germen quod spiritu humano 1 Domestic, James I. vol. xxvi. no. 65. 2 we not in MS. aperitur et afflatur, and that therefore discourse and debate would serve to ripen it as well as bring it forth. The commendation of our law is that it is no jealous law but doth admit the society of other sciences, as of Grammar, Logic, Physic, &c., wherein the Judge doth aid himself in divers questions with the help of such as are skilful in those sciences: and therefore in a doubtful case in laws, inducement may many times help the judgment as well as proofs. We were therefore to lay open such inducements as did lead us to our opinion, and those were fetched out of the law of reason, out of the law of nations, and out of the civil law.1 Se In the law of reason there is an axiom, Deficiente lege recurritur ad consuetudinem, deficiente consuetudine recurritur ad rationem and that therefore this case was so to be adjudged because there was neither example in this state to be suited with it, nor case in law expressly for it. But by the law of reason there were seven considerations made against it. First the difference of times because states were in the beginning but heaps of people confusedly drawn together, without law or custom which might rule them, and amongst them subjection might import naturalization; but after that by process of time there were forms of States and government, they then submitted themselves to the course of laws, and naturalization went according to laws. condly there would be much inequality in it, because by our law they should be naturalized here, and their law would admit no such privilege for us amongst them. Thirdly the extent would be too large, because it should import naturalization of all which should at any time join with this Crown: and the alteration of States, by example of the often changes in the State of Rome, would breed much inconvenience. Fourthly there was another reason of inequality, because this naturalization would put them in better state than ourselves, and make them enjoy the whole benefit of our privileges, whereas they would be liable but to half of the burden. Fifthly our kind of naturalization was too large and bountiful, because there was no distinction, as is amongst others who could give Jus Civitatis, Jus Imperii or : This appears to have been the conclusion of Bacon's own part in the conference of which I gather from the entry in the Journals (p. 1023) that the Lords signified their approval. The next paragraph contains an account of the argument maintained by Sir Edwin Sandys. (See Journals, p. 345.) Compare Case of Post-nati, Vol. VII. p. 671. 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. |