Page images


extremis, when church-men were present, giving , diction was first derived from Cæsar, in the spiritual comfort to the testator, and therefore execution whereof they were Cæsar's judges, so they were thought the fittest persons to take the as both their courts and causes ought still to probates of such testaments. How beit these have born Cæsar's image and superscription, as bishops did not proceed in these causes accord- belonging unto Cæsar; they blotted Cæsar's ing to the canons and decrees of the church, name out of the stile of their courts, and called (for the canon law was not then hatched or them courts Christian, as if the courts holden dreamed of) but according to the rules of the by other magistrates had been in comparison imperial law, as the civil magistrate did proceed but courts of Ethnicks ; and the causes which in other causes; neither did the emperors, in in their nature were merely civil, they called giving this jurisdiction unto then, give away spiritual and ecclesiastical. So as if the empetheir own supreme and absolute power, to cor ror should challenge his courts and causes rect and punish these judges as well as others, again, and say, ' reddite Cæsari quæ sunt Cæif they performed not their several duties. This saris,' they would all cry out on the contrary then is most certain, that the primitive jurisdic. part, and say, ' date Deo quæ sunt Dei,' our tion in all these causes was in the civil magis- courts bear the naine and title of Christ, the strate, and so in right it remains at this day; superscription of Cæsar is quite worn out, and and though it be derived from him, it remaineth not to be found upon them. And this point of in him as in the fountain. For every Christian their policy is worth the observing, that when monarchs (as well as the godly kings of Juda) is they found their jurisdiction in matrimonial custos utriusque tabulæ ; and consequently hath causes to be the most sweet and gainful of all power to punish not only treason, murder, theti, other, (for of matrimony they made matter of and all manner of force and fraud, but incest, money indeed) to the end that Cæsar might adultery, usury, perjury, simony, sorcery, ido- never resume so rich a perquisite of their latry, blasphemy. Neither are these causes in spiritual jurisdiction, they reduced matrimony respect of their own quali'y and nature to be into the number of the seven sacraments: after distinguished one from another by the names which time it had been sacrilege, if the civil of spiritual or temporal: for why is adultery a magistrate had intermeddled with the least matspiritual canse, rather than murder, when they ter that had relation to matrimony, or any deare both offences alike against the second table; pendency thereupon. So then it appearcth, or idolatry rather than perjury, being both of that all causes, whereof ecclesiastical or spiritual fences likewise against the first table? And in-persons have cognizance or jurisdiction by deed if we consider the natures of these causes, ihe grants or permission of princes, are called it will seem somewhat absurd, that they are ecclesiastical or spiritual causes. And as all distinguished by the name of spiritual and tem- their couris are called spiritual courts, so all poral; for, to speak properly, ihat which is op causes determinable in those courts are called posed to spiritual should be termed carnal; spiritual causes. And therefore where M. and that which is opposed to temporal should Lalor hath acknowledged the king's majesty to be called eternal. And therefore if things be supreme governor in all ccclesias: ical were called by their proper names, adultery causes, he hath therein acknowledged the king's should not be called a spiritual offence, but a supremacy in all spiritual causes; wherein he carnal. But shall I express plainly and briefly hath but rendered to Cæsar that which is why these causes were first denominated; some Cæsar's, and bath given unto his majesty no spiritual or ecclesiastical, and others temporal more than ali the bishops of England hare and civil?

yielded to his predecessors, not only in this Truly, they were so called, not from the na- latter age, but also in former times both before ture of the causes, as I said before, but from and since the conquest, as hath been before at the quality of the persons whom the prince bad large expressed. made judges in those causes. The clergy did Here ihe day being far spent, the court destudy spiritual things, and did profess to live mandoul of the prisoner if he had any more to secundùm spiritum, and were called spiritual say for himself." Ilis answer was, that he did men; and therefore they called the causes willingly renounce bis office of vicar-general, wherein princes had given them jurisdiction, and did humbly crave his majesty's grace and spiritual causes, after their own nanie and qua- pardon. And to that end, he desired the court lity. But because the lay-magistrates were to more the lord-deputy to be favourable unto said to intend the things of this world, which him. Then the jury departed from the bar, are temporal and transitory, the clergy called and returning wiihin half an hour, found the them secular or temporal men, and the causes prisoner Guilty of the contempts whereof he wherein they were judges temporal causes. was indicted, Whereup in the solicitor-geneThis distinction began first in the court of Rome, ral moved the court to proceed to judgment. where the clergy having by this jurisdiction And sir Dominick Sarsfield, knight, one of the gotten great wealth, their wealth begot pridle, justices of his majesty's chief place, gave judg. their pride begot ingratitude towards princes, ment according to the form of the statute who first gave them their jurisdiction; and whereupon the indictment was framed. then, according to the nature of all ungrateful persons, they went about to extinguish the ne-[" The encroachments of the church of Rome, mory of the benefit. For whereas their juris on the king's ecclesiastical jurisdiction, are the

subject of other cases besides the preceding reign of Edward the first. The work we one of Præmunire. In particular they are allude to, is Mr. Prynne's Chronological Vine historically discussed in lord Coke's Case of dication of the King's Supreme Ecclesiastical the king's Ecclesiastical Law, in the 5th Re Jurisdiccion, the publication of which comport. The publication of this latter case, menced four or five years after the Restorawith the active zeal of lord Coke as attorney tion. The first volume extends to the Congeneral, in the prosecution of the conspira quest. The second, which was published tors in the Gunpowder-plot, gave occasion to first, concludes with the reign of lienry the a volume of animadversions by the famous third. The third, being in part a suppleJesuit father Parsons, which was published ment to the second, is occupied with the in 1606, by the title of an Answer to lord reigns of lienry the third, John, and our first Coke's 5th Report, by a Catholick divine. Edward. When the author had advanced But the asperity with which lord Coke was thus far, death interposed, and presented the treated, did not provoke a reply. All that completion of the undertaking. What he it drew from him was a short notice of the lived to publish is become so extremely work in the preface to his 6th report, in scarce, that 20 guineas are the common price which he represents the author as a calum of a compleat copy. The cause is the small niator, and as such disdained to answer remnant of copies of the first voluine, most bim. But the controversy was afterwards of them having been burnt in the great fire continued hy Mr. Prynne, who asserted che of London.-Such as are curious to see an cause of the crown against the see of Rome, account of the Jesuit Parsons, may consult in a work of prodigious extent in the plan, Cambden's Annals of Elizabeth. See the for though the part published consists of translated edition in 2. Kenn. Compl. llist, three large volumes, of more than 1000 pages 2d ed. p. 477,576.” Hargrave. ] each, yet it reaches only to the end of the

85. The Case of the PostNATI, or of the Union of the Realm of

Scotland with England; Trin. 6 JAJES I. A. 1. 1608.* L“ From the meeting of the crowns of England sumed the stile of King of Great Britain,

and Scotland in the person of the first James, with an exception however in favor oi legal grew one of the most important questions process, instruments, and assurances; and of state, which ever engaged the attention of words were introduced, importing, that his either country. It was, whether the Post succession to the crown of England had NATI, or those born in Scotland after the made a great change in the law of Naturaliaccession of James to the crown of England, zation. Rym. Fød. v. 16. p. 603, 2 Bac. were in the latter country to be deemed last 410. ed. 144. The Cominissioners, apaliens or natives. A« to ine Alte-nati, all pointed by the respective Parlianients of the , seem to bave agreul, that they remained iwo countries to treat for an Union of go. aliens. But there wils a great ditierence of vernmont and laws, followed the king in this opinion abont the condition of the Postnati. language; for they resolved to propound to The king, anxious for every thing which both parliaments a declaration of the law to tended to consolidate the island into oue that dilect. But when the proposition was kingdom, was eager to have it declared as made, the English house of commons were law, that the Union of the crowns

s cifected a found averse to it, notwithstanding the counmutual naturalization of the Posinati in the tenance given by the lords, and an opinion two countries. His wishes were soon made delivered to them by ten out of eleven judges. known by the Proclamation, in which he as It was therefore determined to serile the

point out of parliament in the regular way, Soine of tbe law laid down in the fol by resorung to the English courts of justice. lowing case was discussed in the case of Hall For this purpose, two suits were instituted v. Campbell, infra, A. D. 1774. It was much in the name of Robert Calvin, a Postnatus relied on by lord Mansfield in his argument (on of Scotland and an intant; one in the king'sa point on which the judgment of the court did bench for the freehold of some land; and not turn) in that case, and is iery perspicuously the other in Chancery for detainer of wristated and carefully considered by Mr. Baroni tings concerning the title to the freehold of Maneres in his most learned and elaborate ana the same estate : and in both it was pleaded lysis and examination of the whole of lord by the defendants in abatement, that the Mansfield's argument on that occasion. See plaintiff' was an alien born in Scotland at : “ The Canadian Freeholder," Dialogue 2d. time which by the pleading appeared to be As to the topics of Allegiance agitated in the since the king's accession to the crown uf case of the Postnati, see more in the duke of England. A demurrer to this plea necessaHamilton's case, infra, A. D. 1618. See also rily brought forward tbe intended question East's Pl. Cr. ch. ii. $ 3, 41. and the cases and about the Postnati; for if Calvin was an other authorities there cited.

alien, he could not maintain either suit,

aliens being incapable to sue for the freehold in Parliament on the subject, and his Arguof land. These Causes were adjourned into ment before the Judges in the Exchequerthe Exchequer-Chamber, in order to have chainber, with some other pieces. 152. 159. the solemn opinion of all the judges; and 170. l Bac. 4to. ed. 173. 185. 514. Nithere the business ended with a Resolution thaniel Bacon, in his Book on Government, in favour of the Postnati, in which the lord examines and controverts the principles, on chancellor and 12 Judges out of 14 cun which lord Coke reports the case to have curred. However, very eminent lawyers

been decided. Bac. on Gov. part. 2. page appear to have entertained a different opi 76. The Parliamentary History relates the nion of the point. In parliament, Dodridge, proceedings in the English parliament in the Hyde, Brock, Crew, Moore, and Hedley, all 2 and 4 Jam. on the proposal for an Union spoke against the Postnati. What the names between England and Scotland, and gives a of the two dissenting judges were, is not short view of some arguments in the commentioned ; except that lord Ellesmere al mons on the point of Naturalization.* Archludes to both having the Christian name of bishop Spotswood's History of the Church Thomas, the only judges of which name at and State of Scotland also contains many the time were lord chief justice Fleming, Mr. particulars of the proceedings towards an justice Walmesley, and Mr. justice Foster. Union. Spotsw. 479. See further Arthur It is suspected too, that the known inclina. Wilson's History of James the 1st, 27. 34. tions and wishes of the king had no little Sanderson's Life of the same king, 318. influence in the decision. But be this as it 338. 2 Winwood's Memorials of State, 20. may, we are not apprized that the main 32 to 38. point of the case has been ever disturbed by We shall now lay before the reader, 1. Mr. serany subsequent judicial opinion.

jeant Moore's account of the Proceedings in The only regular Řeport we have of this case Parliament about the Postnati. 2. Lord

is hy lord Coke. But there is a great deal Bacon's Speech as counsel for Calvin, in the of matter relative to it in other books. Lord Exchequer-Chamber. 3. Lord Coke's Rechancellor Ellesmere published his Argument port of Caivin's Case. 4. Lord-chancellor separately. Mr. serjeant Moore gives the Ellesmere's Speech in the Exchequer-Chamhistory of the previous passages in parlia ber, as published by himself. ment on the great point of law, for deciding which the case was afterwards made. In lord * See 1 Cobb. Parl. Hist. 1018, 1027, 1069, Bacon's Works, there are both his Speeches 1071.


[From Moore's Reports, p. 790.] By act of parliament in the first session anno lawes of either nation one against the other primo Jacobi regis, certain commissioners of might be abrogated, and did enumerate the England were appointed to meet with comniis- same lawes. The second, they proposed a sioners of Scotland, and to treat for the weale course for commerce and merchandizing by of both kingdoms, and to put their doings in merchants of both nations between themselves schedules tripartite, to be delivered, one to the and with forreiners. Thirdly, they proposed king, the other to the parliament of England, that the common law of both nations should and the third to the parliament of Scotland. be declared to be, that all born in either naThe commissioners of both nations met in the tion sitbence his majesty was king of hoth, were Painted Chamber at Westminster, anno 2. Jac. mutually naturalized in both. And fur: her, regis, and treated long, and in the end made that an act might be inade to naturalize ali schedules, and delivered them according to the born before, with certain cautions and restricact. The schedule for the parliament of Eng: tions for bearing principall offices of the crown, land was presented by the lord Ellesmere lord offices of judicature, or having voice in parliachancellor of England, to whom the commis- ment, and with a saving of the kings prerosioners had delivered the same for that purpose, gatire. himself being one of the commissioners, the first Upon the two first articles, the lords and day of the session of parliament holden anno 3 commons had sundry conferences in the Painted Jac. R. the king bimself, the lords spiritual and Chamber, and in effect agreed to give way to temporal and the commons, being all assembled the substance of them. But upon the third, in the upper house of parliament. But the con- the commons could not assent 'to declare the sideration of that schedule was by another act law as was proposed, and thereupon after long made in that sessions of an. 3 Jac. R. deferred debate amongst themselves, they appointed untill the then next session.

committees to confer with the lords comThe next session being this instant of an' 4 mittees, who mett the 25 of February 1606, in Jacobi regis, the schedule was considered of de- the Painted Chamber. At which conference sir videdly by the lords and commons: the material Francis Bacon, appointed by the house to introparts consisting upon 3 heads. The first the duce the rest, begun in this manner. counmissioners

propose, that all hostile hat this conference and the subject thereof VOL. II.


was non in deliberalizo, but in judiciali, not people into places, and to discipline in their de buro but de rpris, not to consult of a law to government, though their subjection still remain be made, but to declare the law already in the general to one head; yet the manner of planleil, is hereto ibe commonly were drawn, by it is locally circumscribed io the places where insatisfaction of their judgments, not indispo- they are brought forth, and those of one place sition of their minds to the suppy union in do not, nor should partake of the discip.ine, tended, to oppose the proposition of the com- privileges, and birthright of the other places, missioners. And whereas bis majesty had but every one left to his own, as acquired for a proclamation expressed the law to be as the patrimony by their antecessors of that place, commissioners hud proposed, the commons did upon reasons peradventure now not extant nor not take them elves prejudicated by the procla- to be exactly understood.—2. This is in use in ination; first, for that that matter caine but oiber nations, who obtain their naturalization obiler in the proclamation, and was not the by Cbariers, and for such time, and with such prmcipal part or purpose thereof; then, for cautions, as may be granted unto them, and that the proclamation mentioneth the king to take it not by the general law of that nation be so informed by divers sages of the law, wiich | whereto they were united.-3. In the time of is not to be understood judges of the law, but the old civil Romans, who united unto them some learned in the lanes, whose opinion may divers provinces, they had degrees in naturalthe better be opposed : yet the proclamation izing; for first, the party had jus domicilii,' bath no tempered the longues of the speakers, then jus civitatis,' next * jus tribus,' and lastly as it bath kept down all ilashes of heat, which jus honoris ;' whereas if the law of England otherwi-e might have bappened in the argu- should be, that subjection brought all thus toment. How beit the danger of a declaratory gether, it were a law overliberal, and more statute, being like Janus Bifrons striking both bountiful, then the laws of this civil state groundwayes, raise th in the commons too much fear ed upon reason and policy.-4. That Scotland to assent to the proposition, leaving the pro- being gorerned by the civil law, alloweth not clamation nevertheluse to its own ctfect. Pur English by bare subjection to heir king to he inducement pur les auters speakers apris cest naturalized within them; and therefore the law induccion, he shewed that it was a singular com of England should be very unequal, if it shonid mendation to the lawes of England, that it was allow it to Scots here.—5. This case may give not in sociable, but contented to hear and be a dangerous example for mutual naturalizing of advised by other sciences in matters of depen- all nations that hereafter may tall into the sabdencie upon them; as in cases of exposition of jection of the king, although they be very words, by grammarians ; in matters of matri- remote, in that their mutual communulty of mony, deprivation, bastardy, by civilians; in privileges may disorder the settled government minerals, by natural philosophers ; in uses, by of every of the particulars; and how many of moral philosophers. Upon which consideration them may happen, is uncertaine ; for we see, ibe cominons had selected out of themselves that where there were 100 kings, they came divers genilemen, some for inducement, some after to 11, and are now brought to 6 only for argument in the point of law. Those for within Christendome.-6. The Scots shall be inducement were to shew the law of nations, in better case by this law of naturalizing then and of reason, and the stories of other coun- the English, in the English nation ; for the tries, and the civil law elsewhere put in use upon English pay all impositions and taxes for stre unions; those for aryunent were gentlemen of vices of the crown, which the Scots do not the profession of the common laws of this within England.-7. All the reasons given for realm : all which being here ready, he left them naturalizing extend as well to them before to discharge their own proper duties.

born, as sithence the king came to the crown Sir Edwyn Sundes sliewer that this case was of England; for the subjection is now all one. proper to be consulted with the law of nations, Therefore, the law that should make a differwhich is called “jus gentium;' for there being ence is not reasonable ; and because the law is no president for it in the law, “lex deficit,' and confessed tule, that those before born be not

deficiente lege reen:ritur ad consuetudinem,' naturalized, therefore the law must also be, if and deficiente consuetudine recurritur ad it retain the same reason, that those boru * rationein naturalem,' which ratio vaturalis' after are not naturalized. is the law of nations called.jus gentium.' The Nevertheless he concluded, that he held it in question of difference is thus, whether hjec- reason, that in respect of one subjection, the tion to one king inake all the people born Scots should not be accounted nor deal wiihall within the places of shat subjection to be natu by our lases, as aliens, although not enabled ralized over all places of that kinus subjection, to the full rights of Englisinien born ainongst us. which as he shought, if it were to be measured Sir Roger Quen for stories, 1. sliewed, that by the law of reason and nations, did not. And in all the presidents of the Romans, and in all therefore shewed 7 reasons for his opinion.--1. their varieties of aristocracy or monarchy, there Tbut although ab untiquo, when people were wns no naturalizing ipso jure, but by cliniters iogether in one heap irregularly, having one of grace or constitutions special, and that by beid, their subjection gave to eve:y one equal Nannies begun and introduced. 2. The president priviledge in ail places of their subjection, yet of Spain and ('a-tile is not to this point ; for siidence the world is grown to distribution of Alaricus the ensperour first lord of all Spain

gave out Castile, and the coming of Castile to be done, but what the law already is, which again is rather a reuniting or a remitter, then is what the law of England is; in which ques a new union, and therefore reasonable they tion, if it shall be douuttul, it is more then inbe one naturalized in the other as they were at ditterent to declare it as the commissivillers the tirst. 3. The president fresh of France have proposer!, for three causes. 1. The kings and Scotlaud by marriage of the kings mother proclaination having divulged it so, it is tur his with Francis the second king of France, because bonor to declare it so, if it be not clear otherthe subjection inade no naturalization ipso jure, wise. 2. The opinion of the comınissioners therefore the Scots in France and the French whom both houses trusted. 3. The act of rein Scotland were naturalized by acts of pariia- cognition, whereby we have acknowledged the ment and with cautions.

kiny of both, and that we both live under ove Sir John Bennet doctor of the civil law, he imperial crown. shewed that the civil law had no resolution of The earl of Northumpton said, that it apthis point in terminis terinioantibus ;' but of peared by the civilians, that in the civil law other unions lesser then kingdoms, here were there was no president . in terminis terminanrules, which be devided into these heads; one tibus;' and therefore from them we could take a maxime, the other a distribution ; the no rule for this case ; nor no stories or exammaxime, 'cum duo jura concurrunt in una ples of forraign states, which are appliable and

persona æquum est ac si essent in diversis,' as framed to their own particular policies. Nur one parson of two churches, one dean of two as this case is, can we he measured or guided deaneries: the customes of every place remain by inconveniences that may be forecast; le. still distinct and devided. And he cited an cause we are contined to a point of law already example, that the earldome of Flanders and received and planted, and are to reason ani Artois were holden of the king of France as discuss what that law is. Nevertheless he desired soveraign by the duke of Brabant and Holland, leave to use a comparison to them, to be comwho within Brabant and Holland was a free mended to their consideration, between the stale: the question was whether this duke union in a borly politick and in a body natural. having both the dukedome and the earldome, The head in a body natural hath his iniluence and owing subjection to France only for the into all the members by spirits of lite and sense. earldome, might make a league with the Eng. So hath the head of the body politick, to whom Tish for his dukedome, without breaking alle all the members be chuldren in obedience, and giance with France : and this being debated in brothers one to the other. The sinews in a ihe parliament of Paris, it was adjudged he body natural are ligaments that binde together might, because he held the dukedome and the the joynts and fiest. So are lawes in the body earldome as distinct in his person, and owed politick that the people in a band of subjection no subjection to France for his dukedome. and civil life. The blood, that passeth in the The distribution he made was this, upon the veins of the body natural by continual motion, difference of unum and unitum : there was a doch maintain and refresh the spirits of life. So union subordinate, that is, when an inferiour trafiick, commerce, and contracts in a body is united to the superiour, as Ireland to Eng- politick, do support, maintaine and refresh the land, in this case • privilegia comnunicantur.' common-wealth. But of all these there is a There is an union by incorporation, that is, superior spirit sent by God, which is the soul to when two be made unum, and not unitum, and the body of inan, by which all our blessedness then privilegia communicantur,' as Wales is intused. So may we well say, that the kings and England. The third is when disjunct majestie is like the soul, a blessedness sent kingdomes are united, and that unicuin' is froin God to dwell io both these natious as a “secundum quid,' and 'non simpliciter;' in continual spirit of union amongst them, to which case privilegia non communicantur;' pacifie and temper all bitterness, even as the and so he concluded that Scottish men were not soul by instinct of reason quieteth the natural naturalized in England; and yet he affirmed passions of the natural bodies. Wherefore let that it was in the power of the king by the us consider how unfit it is to have two spirits or civil law to naturalize them, and give thein the souls in one body; what their opposition may priviledges,

work for distemper and dissolution; what the The earl of Salisbury here interposed, and sweet barinony of one good vertuous and relisaid, that he was desirous to understand whe-gious soul in every part of the body inay do, ther the arguinents made were upon the point for consolidating, strengthening, and contiin question; for as he conceived the question nuing in the whole body that prosperous estate now in debate was a legal question of the law of life and health that is to be wished : and of England, and therefore time was to be spent therefore in the case whatsoever may tend to upon argument and discussion of the law of the happy and firm uniting of these iwo kingEngland, and so sapiens contentio aut pro- domes in resemblance of lives and fortunes is dest aut non obest.'

to be inclined to, and recommended to your The Lord Chancellor then spake and said, grave consideration. that the first inan, that spake by introduction Dodridge the king's sollicitor, Laurence and inducement of the rest brought the ques- Hyde, Brook, Crewe, & Hedley, professors of tion to the quick, that is, that it was not a the common law, now begin. And for the question de bono but de vero, not what was fit common law they urged nine reasons or argu,

« PreviousContinue »