PREFACE. THIS argument was first printed in 1641, together with two of Bacon's speeches in Parliament on the union, "by the author's copy." There is a copy in the British Museum, (King's MSS. 17A. LVI. p. 262.) corrected by Bacon. It was delivered in Calvin's Case (reported by Coke, 7 Rep. 1.), before Easter Term, 1608, in the Exchequer Chamber, whither an Assize by Calvin and a Chancery suit for discovery of evidence had been adjourned from the King's Bench and the Chancery respectively. Bacon insists on its being "no feigned case," though " used by His Majesty to give an end to this question: " but, however real the disseisors Richard and Nicholas Smith may have been, one can hardly doubt that the proceedings were from the beginning concerted with the Crown. The Commissioners appointed under 2 Jac. c. 2. to treat of the Union of England and Scotland had recommended', inter alia, an act to declare that, by the Common Law, natives of either kingdom born after James's accession to the Crown of England were naturalised in both. The Commons not assenting, committees of both Houses met February 25th, 1606-7, Bacon being the spokesman of the Commons to introduce the subject, and Common Lawyers, Civilians, and others following in parts assigned to them. The Lords called on the Judges for their advice; and on the 26th, Popham, Coke, and Fleming, the three chiefs, and seven others gave their opinion in favour of the Postnati, Walmsley being the only dissentient: the Chancellor Ellesmere had in the conference shown his inclination to agree with the majority. The Commons remained unconvinced and would not pass any declaratory act (H. C. journ. 28° March et passim), and the Moore, Rep. 790. opinions of the Judges were not as efficacious as a judgment for settling the question.' On the 29th of October, after the close of the session, the plaintiff in this case, an infant born since James's accession, received a grant of the lands in question, which had become forfeited by an attainder2; and the writ herein is tested 3rd November, four days after. I suppose the Chancery suit was added for the purpose of having a decision binding every possible tribunal. Popham had died in the interval. The other Judges who had already delivered opinions in the House of Lords retained them on this occasion, and of the five additional voices four were on the same side, Foster alone going with Walmsley. I believe we have only Coke's summary of the judgment at Common Law: Lord Ellesmere published his own in a pamphlet, which is reprinted in the State Trials, Vol. II. See Lord Ellesmere's judgment. Docket in State Paper Office. THE ARGUMENT OF SIR FRANCIS BACON, KNIGHT, HIS MAJESTY'S SOLICITOR-GENERAL, IN THE CASE OF THE POST-NATI OF SCOTLAND, IN THE EXCHEQUER CHAMBER, BEFORE THE LORD CHANCELLOR, AND ALL THE JUDGES OF ENGLAND. May it please your Lordships, THIS case your lordships do well perceive to be of exceeding great consequence. For whether you do measure it by place, it reacheth not only to the realm of England, but to the whole island of Great Britain; or whether you measure it by time, It extendeth not only to the present time, but much more to future generations, Et nati natorum, et qui nascentur ab illis : And therefore as it is to receive at the bar a full and free debate, so I doubt not but it shall receive from your lordships. a sound and just resolution according to law, and according to truth. For, my lords, though he were thought to have said well, that said it for his word, Rex fortissimus; yet he was thought to have said better, even in the opinion of the king himself, that said, Veritas fortissima, et prævalet. And I do much rejoice to observe such a concurrence in the whole carriage of this cause to this end, that truth may prevail. The case no feigned or framed case; but a true case between true parties: The title handled formerly in some of the king's courts, and freehold upon it; used indeed by his Majesty in his high wisdom to give an end to this great question, but not raised; occasio, as the schoolmen say, arrepta, non porrecta: The case argued in the king's bench by Mr. Walter with great liberty, and yet with good approbation of the court: The persons assigned to be of counsel on that side, inferior to none of their quality and degree in learning; and some of them most conversant and exercised in the question: The judges in the king's bench have adjourned it to this place for conference with the rest of their brethren: Your lordship, my lord chancellor, though you be absolute judge in the court where you sit, and might have called unto you such assistance of judges as to you had seemed good, yet would not forerun or lead in this case by any opinion there to be given; but have chosen rather to come yourself to this assembly:-all tending, as I said, to this end, whereunto I for my part do heartily subscribe, ut vincat veritas, that truth may first appear, and then prevail. And I do firmly hold, and doubt not but I shall well maintain, that this is the truth, that Calvin the plaintiff is ipso jure by the law of England a natural born subject to purchase freehold, and to bring real actions within England. In this case I must so consider the time, as I must much more consider the matter. And therefore though it may draw my speech into farther length; yet I dare not handle a case of this nature confusedly, but purpose to observe the ancient and exact form of pleadings; which is, First, to explain or induce. Then, to confute, or answer objections. AND first for explanation. The outward question in this case is no more, but, Whether a child, born in Scotland since his Majesty's happy coming to the crown of England, be naturalised in England, or no? But the inward question or state of the question evermore beginneth where that which is confessed on both sides doth leave. It is confessed, that if these two realms of England and Scotland were united under one law and one parliament, and thereby incorporated and made as one kingdom, that the Postnatus of such an union should be naturalized. It is confessed, that both realms are united in the person of |