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wherein your lordships shall find likewise in two places, that the parliament doth acknowledge, that there is an union of these two kingdoms already begun in his Majesty's person: so as, by the declaration of that act, they have not only one king, but there is an union in inception in the kingdoms themselves.

These two are judgments in parliament by way of declaration of law, against which no man can speak. And certainly these are righteous and true judgments to be relied upon; not only for the authority of them, but for the verity of them. For to any that shall well and deeply weigh the effects of law upon this conjunction, it cannot but appear, that although partes integrales of the kingdom, as the philosophers speak, such as the laws, the officers, the parliaments, are not yet commixed; yet nevertheless there is but one and the self-same fountain of sovereign power, depending upon the ancient submission whereof I spake in the beginning; and in that sense the crowns and the kingdoms are truly said to be united.

And the force of this truth is such, that a grave and learned gentleman, that defended the contrary opinion, did confess thus far: That in ancient times, when monarchies, as he said, were but heaps of people without any exact form of policy; that then naturalization and communication of privileges did follow the person of the monarch; but otherwise since states were reduced to a more exact form. So as thus far we did consent; but still I differ from him in this, that these more exact forms, wrought by time, and custom, and laws, are nevertheless still upon the first foundation, and do serve only to perfect and corroborate the force and bond of the first submission, and in no sort to disannul or destroy it.

And therefore with these two acts do I likewise couple the act of 14 Edward III. which hath been alleged of the other side. For by collating of that act with these former two, the truth of that we affirm will the more evidently appear, according unto the rule of reason: opposita juxta se posita magis elucescunt. That act of 14 is an act of separation: these two acts formerly recited are acts tending to union. That' act is an act that maketh a new law; for it is by words of " grant and establish": these two acts declare the common law as it is, being by words of recognition and confession.

And therefore upon the difference of these laws you may

This in MS.

substantially ground this position: That the common law of England, upon the adjunction of any kingdom unto the king of England, doth make some degree of union in the crowns and kingdoms themselves; except by a special act of parliament they be dissevered.

Lastly, the fifth act of parliament which I promised, is the act made in 42 E. III. cap. 10. which is an express decision of the point in question. The words are, "Item, (upon the "petition put into parliament by the commons that infants "born beyond the seas in the seigniories of Calais, and else"where within the lands and seigniories that pertain to our 66 sovereign lord the king beyond the seas, be as able and in"heritable of their heritage in England, as other infants born "within the realm of England,) it is accorded that the common "law and the statute formerly made be holden."

Upon this act I infer thus mnch. First, that such as the petition mentioneth were naturalized, the practice shews: then if so, it must be either by common law or statute, for so the words purport: not by statute, for there is no other statute but 25 E. III. and that extends to the case of birth out of the king's obedience, where the parents are English; ergo it was by the common law, for that only remains. And so, by the declaration of this statute, at the common law "all infants, born "within the lands and seigniories (for I give you the very "words again) that pertain to our sovereign lord the king, (it “is not said, as are the dominions of England) are as able and "inheritable of their heritage in England, as other infants born "within the realm of England." What can be more plain? And so I leave statutes and go to precedents; for though the one do bind more, yet the other sometimes doth satisfy more.

For precedents; in the producing and using of that kind of proof, of all others, it behoveth them to be faithfully vouched; for the suppressing or keeping back of a circumstance may change the case: and therefore I am determined to urge only such precedents, as are without all colour or scruple of exception or objection, even of those objections which I have, to my thinking, fully answered and confuted.

This is now, by the providence of God, the fourth time that the line and kings of England have had dominions and seigniories united unto them as patrimonies, and by descent of blood; four unions, I say, there have been inclusivè with this last. The

first was of Normandy, in the person of William, commonly called the Conqueror. The second was of Gascoigne, and Guienne, and Anjou, in the person of king Henry II.; in his person, I say, though by several titles. The third was of the crown of France, in the person of king Edward III. And the fourth of the kingdom of Scotland, in his Majesty. Of these I will set aside such as by any cavillation can be excepted unto.

First, I will set aside Normandy, because it will be said, that the difference, of country accruing by conquest from countries annexed by descent, in matter of communication of privileges, holdeth both ways, as well of the part of the conquering kingdom, as the conquered; and therefore that although Normandy was no conquest of England, yet England was a conquest of Normandy; and so a communication of privileges between them. Again, set aside France, for that it will be said that although the king had a title in blood and by descent, yet that title was executed and recovered by arms; so as it is a mixt title of conquest and descent, and therefore the precedent not so clear.

There remains then Gascoigne and Anjou, and that precedent likewise I will reduce and abridge to a time, to avoid all question. For it will be said of them also, that, after, they were lost, and recovered in ore gladii1; that the ancient title of blood was extinct; and that the king was in upon his new title by conquest and Mr. Walter hath found a book-case in 13 H. VI. abridged by Mr. Fitz-Herbert, in title of Protection placito 56., where a protection was cast, quia profecturus in Gasgoniam with the earl of Huntingdon, and challenged because it was not a voyage royal; and the justices thereupon required the sight of the commission, which was brought before them, and purported power to pardon felonies and treason, power to coin money, and power to conquer them that resist : whereby Mr. Walter, finding the word conquest, collected that the king's title at that time was reputed to be by conquest. Wherein I may not omit to give obiter that answer which law and truth provide, namely, that when any king obtaineth by war a country whereunto he hath right by birth, that he is ever in upon his ancient right, and not upon his purchase by conquest; and the reason is, that there is as well a judgment and recovery by war and arms, as by law and course of justice.

VOL. VII.

1 So in MS. but I suppose it should be jure gladii.

X X

For war is a tribunal-seat, wherein God giveth the judgment, and the trial is by battle, or duel, as in the case of trial of private right: and then it follows, that whosoever cometh in by eviction, comes in his remitter; so as there will be no difference in countries whereof the right cometh by descent, whether the possession be obtained peaceably or by war. But yet nevertheless, because I will utterly take away all manner of evasion and subterfuge, I will yet set apart that part of time, in and during the which the subjects of Gascoigne and Guienne might be thought to be subdued by a re-conquest. And therefore I will not meddle with the prior of Shells' case, though it be an excellent case, because it was in time 27 E. III.; neither will I meddle with any cases, records, or precedents, in the time of king H. V. or king H. VI. for the same reason; but will hold myself to a portion of time from the first uniting of these provinces in the time of king H. II. until the time of king John, at what time those provinces were lost; and from that time again unto the seventeenth year of the reign of king E. II. at what time the statute of prærogativa Regis was made, which altered the law in the point in hand.

That in both these times the subjects of Gascoigne, and Guienne, and Anjou, were naturalized for inheritance in England, by the laws of England, I shall manifestly prove; and the proof proceeds, as to the former time, (which is our case,) in a very high degree a minore ad majus, and as we say, a multo fortiori. For if this privilege of naturalization remained unto them when the countries were lost, and became subjects in possession to another king, much more did they enjoy it as long as they continued under the king's subjection.

Therefore to open the state of this point. After these provinces were, through the perturbations of the state in the unfortunate time of king John, lost and severed, the principal persons which did adhere unto the French were attainted of treason, and their escheats here in England taken and seized. But the people, that could not resist the tempest when their heads and leaders were revolted, continued inheritable to their possessions in England; and reciprocally the people of England inherited and succeeded to their possessions in Gascoigne, and were both accounted ad fidem utriusque regis, until the statute of prærogativa Regis. Wherein the wisdom and justice of the law of England is highly to be commended. For of

this law there are two grounds of reason, the one of equity, the other of policy. That of equity was, because the common people were in no fault, but as the Scripture saith in a like case, quid fecerunt oves istæ? It was the cowardice and dis loyalty of their governors that deserved punishment, but what have these sheep done? And therefore to have punished them, and deprived them of their lands and fortunes, had been unjust. That of policy was, because if the law had forthwith, upon the loss of the countries by an accident of time, pronounced the people for aliens, it had been a kind of cession of their right and a disclaimer in them, and so a greater difficulty to recover them. And therefore we see the statute which altered the law in this point was made in the time of a weak king, that, as it seemed, despaired ever to recover his right; and therefore thought better to have a little present profit by escheats, than the continuance of his claim, and the countenance of his right, by the admitting of them to enjoy their inheritances as they did before.

The state therefore of this point being thus opened, it resteth to prove our assertion, that they were naturalized: for the clearing whereof I shall need but to read the authorities, they be so direct and pregnant.

The first is the very text of the statute of prærogativa Regis. Rex habebit escatas de terris Normannorum cujuscunque feodi fuerint, salvo servitio, quod pertinet ad capitales dominos feodi illius: et hoc similiter intelligendum est, si aliqua hæreditas descendat alicui nato in partibus transmarinis, et cujus antecessores fuerunt ad fidem regis Francia, ut tempore regis Johannis, et non ad fidem regis Angliæ, sicut contingit de baronia Monumetæ, &c.

By which statute it appears plainly, that before the time of King John there was no colour of any escheat, because they were the king's subjects in possession, as Scotland now is; but only it determines the law from that time forward.

This statute if it had in it any obscurity, it is taken away by two lights, the one placed before it, and the other placed after it; both authors of great credit, the one for ancient, the other for late times: the former is Bracton, in his cap. De exceptionibus 24, lib. 5. fol. 427. and his words are these: Est etiam et alia exceptio quæ tenenti competit ex persona petentis, propter defectum nationis, quæ dilatoria est, et non perimit actionem ; ut

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