Calvin's Case 7 Coke Report 1a, 77 ER 377
The SEVENTH PART of the REPORTS of SIR EDWARD COKE, Knt. Lord Chief Justice of the Common Pleas, of divers RESOLUTIONS and JUDGMENTS given, upon solemn Arguments, and with great Deliberation and Conference of the reverend Judges and Sages of the Law, of CASES IN LAW which were never Resolved or Adjudged before: and the REASONS and CAUSES of the said Resolutions and Judgments. Published in the Sixth Year of the Most High and Most Illustrious JAMES, King of England, France, and, Ireland, and of Scotland the XLII. the Fountain of all Piety and Justice, and the Life of the Law. With NOTES and REFERENCES, by JOHN FARQUHAR FRASER, Esq., of Lincoln's Inn, Barrister-at-Law.
[7-Coke-1 a] * POSTNATI (A).
Calvin's Case 7 Coke Report 1a, 77 ER 377
Report Date: 1608
Trin. 6 Jac. 1.
[See Low v. Routledge, 1865-68, LR 1 Ch 47; LR 3 HL 100; Reg v. Keyn, 1876, 2 Ex. D. 236; De Geer v. Stone, 1882, 22 Ch D. 251. Dicta at 27 b dissented from, In re Stepney Election Petition, 1886,17 QBD 46; In re Johnson  1 Ch. 833.]
James by the grace of God of England, Scotland, France, and Ireland, King, defender of the faith, &c. To the Sheriff of Middlesex greeting: Robert Calvin,
7 Coke Report 2 a, 77 ER p378
gent, hath complained to us, that Richard Smith and Nicholas Smith, unjustly, and without judgment, have disseised him of his freehold in Haggard, otherwise Haggerston, otherwise Aggerston, in the parish of St. Leonard, in Shoreditch, within thirty years now last past; and therefore we command you, that if the said Robert shall secure you to prosecute his claim, then that you cause the said tenement to be reseised with the chattels which within it were taken, and the said tenement with the chattels to be in peace until Thursday next after fifteen days of Saint Mai-tin next coming; and, in the mean time, cause twelve free and lawful men of that neighbourhood to view the said tenement, and the names of them to be inbreviated; and summon them by good summoners, that they be then before us wherever we shall then be in England, ready thereof to make recognition; and put, by sureties and safe pledges, the aforesaid Richard and Nicholas, or their bailiffs, (if they cannot be found), that they be then there, to hear the recognition; and have there the summoners, the names of the pledges, and this writ. Witness ourself at Westminster, the 3d. day of November, in the 5th year of our reign of England, France, and Ireland, and of Scotland the one-and-fortieth.
For 40s. paid in the hamper,
Middlesex, ss. The assize cometh to recognise, if Richard Smith, and Nicholas Smith unjustly, and without judgment, did disseise Rob. Calvin, gent of his freehold inetb] Haggard, otherwise Haggerston, otherwise Aggerston, in the parish of St. Leonard in Shoreditch, within thirty years now last past: and whereupon the said Robert, who is within the age of twenty-one years, by John Parkinson, and William Parkinson, his guardians, by & Court, of the said King here to this being jointly and severally specially admitted, complaineth, that they disseised him of one messuage with the appurtenances, &c. And the said Richard and Nicholas, by William Edwards, their attorney, come and say, that the said Robert ought not to be answered to his writ aforesaid, because they say, that the said Robert is an alien born, on the 5th day of Noy in the 3rd year of the reign of the King that now is, of England, France, and Ireland, and of Scotland the thirty-ninth, at Edinburgh within his kingdom of Scotland aforesaid and within the allegiance of the said lord the King, of the said kingdom of Scotland, and out of the allegiance of the said lord the King of his kingdom of England; and at the time of the birth of the said Robert Calvin, and long before, and continually afterwards, the aforesaid kingdom of Scotland, by the proper rights, laws, and statutes of the same kingdom, and not by the rights, laws, or statutes of this kingdom of England, was and yet is ruled and governed. And this he is ready to verify, and thereupon prayeth judgment, if the said Robert, to his said writ aforesaid, ought to be answered, &c. And the aforesaid Robert Calvin saith, that the aforesaid plea, by the aforesaid Richard and Nicholas above pleaded, is insufficient in law to bar him the said Robert from having an answer to his writ aforesaid; and that the said Robert to the said plea in manner and form aforesaid pleaded, needeth not, nor by the law of the land is bound to answer; and this he is ready to verify, and hereof prayeth judgment; and that the said Richard and Nicholas to the aforesaid writ of the said Robert may answer. And the said Richard and Nicholas, forasmuch as they have above alleged sufficient matter-in law to bar him the said Robert from having an answer to his said writ, which they are ready to verify; which matter the aforesaid Robert doth not gainsay, nor to the same doth in any ways answer, but the said averment altogether refuseth to admit as before pray judgment, if the aforesaid Robert ought to be answered to his said writ, &c. And because the Court of the lord the King here are not yet advised of giving their judgment of and upon the premises, day thereof is given to the parties aforesaid; before the lord the King at Westminster until Monday next after eight days of St. Hilary, to hear their Judgment thereof, because the Court of the lord the King here thereof are not yet, &;. And the assize aforesaid remains to be taken before the said lord the King, until the same Monday there, &c. And the sheriff to distrain the recognitors of the assize aforesaid: and in the interim to cause a view, &c; at which day, before the lord the King at Westminster, come as well the aforesaid Robert Calvin, by his guardians aforesaid, as the aforesaid Richard Smith and Nicholas Smith by their attorney aforesaid; and because
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the Court of the lord the King [7-Coke-2 a] here of giving their judgment of and upon the premises is not yet advised, day thereof is given to the parties aforesaid before the lord the King at Westminster, until Monday next after the morrow of the Ascension of our Lord, to hear their judgment 3 because the Court of the lord the King here are not yet, &c. And the assize aforesaid remains further to be taken, until the same Monday there, &c. 3 and the sheriff, as before, to distrain the recognitors of the assize aforesaid, and in the interim to cause a view, &c. At which day, before the lord the King at Westminster, come as well the aforesaid Robert Calvin by his guardians aforesaid, as the aforesaid Richard Smith and Nicholas Smith, by their attorney aforesaid, &c; and because the Court of the lord the King here, &c.
[2 a] THE CASE
A man born in Scotland after the accession of King James the First to the English throne, and during his reign, may hold lands in England. S.C. Howel's State Trials, Vol. H. p. 559.
The question of this case as to matter in law was, whether Robert Calvin the plaintiff(being born in Scotland since the Crown of England descended to His Majesty) be an alien born, and consequently disabled to bring any real or personal (a) action for any lands within the realm of England. After this case had been argued in the 'Court of King's Bench, at the Bar, by the counsel learned of either party, the Judges of that Court, upon conference and consideration of the weight and importance thereof, adjourned the same (according to the ancient and ordinary course and order of the law) into the (b) Exchequer Chamber, to be argued openly there; first by the counsel learned of either party, and then by all the Judges of England; where afterwards the case was argued by Bacon, Solicitor-General, on the part of the plaintiff, and by Laur. Hide for the defendant; and afterward by Hobart, Attorney-General, for the plaintiff, and by Serjeant Hutton for the defendant; and, in Easter term last, the case was argued by Heron, puisne Baron of the Exchequer, and Foster, puisne Judge of the Court of Common Pleas; and, on the second day appointed for this case, by Crook, puisne Judge of the King's Bench, and Altham, Baron of the Exchequer; the third day by Snigge, Baron of the Exchequer, and Williams, one of the Judges of the King's Bench; the fourth day by Daniel, one of the Judges of the Court of Common Pleas, and by Yelverton, one of the Judges of the King's Bench: and, in Trinity term following, by Warburton, one of the Judges of the Common Pleas, and Fenner, one of the Judges of the King's Bench; and after by Walmesley, one of the Judges of the Common Pleas, and Tanfield, Chief Baron; and, at two several days in the same term, Coke, Chief Justice of the Common Pleas, Fleming, Chief Justice f the King's Bench, and Sir Thomas Eggerton, Lord Ellesmere, Lord Chancellor of England, argued the case (the like plea in disability [7-Coke-2 b] of Robert Calvin's person being pleaded mutatis mutandis in the Chancery in a suit there for evidence concerning lands of inheritance; and, by the Lord Chancellor, adjourned also into the Exchequer-Chamber, to the end that one rule might over-rule both the said cases), And first (for that I intend to make as summary a report as I can) I will at the first set down such arguments and objections as were made and drawn out of this short record against the plaintiff by those that argued for the defendants. It was observed, that in this plea there were four nouns, quatuor nomina, which were called nomina operative, because from them all the said arguments and objections on the part of the defendants were drawn; that is to say 1. Ligeantia (which is twice repeated in the plea; for it is said, infra ligeantiam domini Regis regni sui Scot', et extra ligeantiam domini Regis regni sui Angl'). 2. Regnum (which also appeareth to be twice mentioned, viz. regnum Angl', and regnum Scot'). 3. Leges (which are twice alleged, viz. leges Angl', and leges Scot', two several and dis-
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tinct laws). 4. Alienigena (which is the conclusion of all, viz. that Robert Calvin is alienigena).
1. Ligeantia. By the first it appeareth, that the defendants do make two ligeances, one of England, and another of Scotland; and 'from these several ligeances two arguments were framed, which briefly may be concluded thus: Whosoever is born infra ligeantiant, within the ligeance of King James of his kingdom of Scotland, is alienigena, an alien born, as to the kingdom of England: but Robert Calvin was born at Edinburgh, within the ligeance of the King of his kingdom of Scotland; therefore Robert Calvin is alienigena, an alien born, as to the kingdom of England. 2. Whosoever is born extra ligeantiam, out of the ligeance of King James of his kingdom of England, is an alien as to the kingdom of England: but the plaintiff was born out of the ligeance of the King of his kingdom of England; therefore the plaintiff is an alien, &c. Both these arguments are drawn from the very words of the plea, viz. quod præd' Robertus est alienigena, natus 5 Nov anno regni domini Regis nunc Angl' &c. tertio apud Edenburg infra regnum Scot' ac infra ligeantiam, dicti domini Regis dicti regni sui Scot', ac extra ligeantiam dicti domini Regis regni sui Angl'.
2. Regna. From the several kingdoms, viz. regnum, Angl' and regnum, Scot' three arguments were drawn. 1. Quando (a) duo jura (imo duo regna) concurrunt in una persona, cequum est ac si essent in diversis: but in the King's person there concur two distinct and several kingdoms; therefore it is all one as if they were in divers persons, [7-Coke-3 a] and consequently the plaintiff is an alien, as all the antenati are, for that they were born under the ligeance of another King. 2. Whatsoever is due to the King's several politic capacities of the several kingdoms is several and divided: but ligeance of each nation is due to the King's several politic capacities of the several kingdoms; ergo, the ligeance of each nation is several and divided, and consequently the plaintiff is an alien, for that they that are born under several ligeances are aliens one to another. 3. Where the King hath several kingdoms by several titles and descents, there also are the ligeances several: but the King hath these two kingdoms by several titles and descents; therefore the ligeances are several. These three arguments are collected also from the words of the plea before remembered.
3. Leges. From the several and distinct laws of either kingdom, they did reason thus: 1. Every subject that is born out of the extent and reach of the laws of England, cannot by judgment of those laws be a natural subject to the King, in respect of his kingdom of England: but the plaintiff was born at Edinburgh, out of the extent and reach of the laws of England; therefore the plaintiff by the judgment of the laws of England cannot be a natural subject to the' King, as of his kingdom of England. 2. That subject, that is not at the time and in the place of his birth inheritable to the laws of England, cannot be inheritable or partaker of the benefits and privileges given by the laws of England: but the plaintiff at the time, and in the place of his birth was not inheritable to the laws of England, (but only to the laws of Scotland;) therefore he is not inheritable or to be partaker of the benefits or privileges of the laws of England. 3. Whatsoever appeareth to be out of the jurisdiction of the laws of England, cannot be tried by the same laws: but the plaintiff's birth at Edinburgh is out of the jurisdiction of the laws of England; therefore the same cannot be tried by the laws of England. Which three arguments were drawn from these words of the plea, viz. Quodque tempore nativitatis præd'Roberti Calvin, ac diu antea, et continu? postea, præd' regnum, Scot' per jura, leges, et statuta ejusdem regni propria, et non per jura, leges, seu statula hujus regni Angl' regulat' et gubernat fuit, et adhuc est.
4. Alienigena. From this word alienigena they argued thus: every subject that is alien' gentis (i, e.) alien' ligeant', est alienigena: but such a one is the plaintiff; therefore, &c. And to these nine arguments all that was spoken learnedly and at large by those that argued against the plaintiff may be reduced.
[7-Coke-3 b] But it was resolved by the Lord Chancellor and twelve Judges, viz. the two Chief Justices, the Chief Baron, Justice Fenner, Warberton, Yelverton, Daniel, Williams, Baron Snigge, Baron Altham, Justice Crooke, and Baron Heron, that the
7 Coke Report 4 a, 77 ER p381
plaintiff was no alien, and consequently that he ought to be answered in this assise by the defendants.
This case was as elaborately, substantially, and judicially argued b the Lord Chancellor, and by my brethren the Judges, as I over read or heard of any; and so in mine opinion the weight and consequence of the cause, both in præsenti et perpetuis futuris temporibus justly deserved,: for though it was one of the shortest and least that ever we argued in this Court, yet was it the longest and weightiest that ever was argued in any Court, the shortest in syllables, and the longest in substance; the least for the value (and yet not tending to the right of that least) but the weightiest for the consequent, both for the present, and for all posterity. And therefore it was said, that those that had written de fossilibus did observe, that gold bidden in the bowels of the earth, was in respect of the mass of the whole earth, pram in mango; but of this short plea it might be truly said (which is more strange) that here was magnum in Parco. And in the arguments of those that argued for the plaintiff, I specially noted, that albeit they spake according to their own heart, yet they spake not out of their own bead and invention: wherein they followed the counsel given in God's book, interroga pristinam generationem (for out of the old fields must come the new corn) et diligenter investiga patrum memoriam, and diligently search out the judgments of our forefathers, and that for divers reasons: first on our own part, Hesterni enim sumus et ignoramus, et vita nostra sicut umbra super terram; for we are but of yesterday, (and therefore had need of the wisdom of those that were before us) and had been ignorant (if we had not received light and knowledge from our forefathers) and our days upon the earth are but as a shadow, in respect of the old ancient days and times past, wherein the laws have been by the wisdom of the most excellent men, in many successions of ages, by long and continual experience, (the trial of right and truth) fined and refined, which no one man, (being of so short a time) albeit he had in his head the wisdom of all the men in the world, in any one age could ever have effected or attained unto. And therefore it is optima regula, qua nulla est verior aut firmior in jure, neminem oportet esse sapientiorem legibus: no man ought to [7-Coke-4 a] take upon him to be wiser than the laws. Secondly, in respect of our forefathers: ipsi (saith the text) docebunt te, et loquentur tibi, et ex corde suo preferent eloquentia, they shall teach thee, and tell thee, and shall utter the words of their heart, without all equivocation or mental reservation; they (I say) that cannot be daunted with fear of any power above them, nor be dazzled with the applause of the popular about them, nor fretted with any discontentment (the matter of opposition and contradiction) within them, but shall speak the words of their heart, without all affection or infection whatsoever.
Also in their arguments of this cause concerning an alien, they told no strange histories, cited no foreign laws, produced no alien precedents, and that for two causes; the one, for that the laws of England are so copious in this point, as, God willing, by the report of this case shall appear; the other, lest their arguments concerning an alien born should become foreign, strange, and an alien to the state of the question, which being quæstio juris concerning freehold and inheritance in England, is only to be decided by the laws of this realm. And albeit I concurred with those that adjudged the plaintiff to be no alien, yet do I find a mere stranger in this case, such a one as the eye of the law (our books and book-cases) never saw, as the ears of the law (our reporters) never heard of, nor the mouth of the law (for judex est lex loquens) the Judges our forefathers of the law never tasted: I say, such a one, as the stomach of the law, our exquisite and perfect records of pleadings, entries, and judgments, (that make equal and true distribution of all cases in question) never digested. In a word, this little plea is a great stranger to the laws of England, as shall manifestly appear by the resolution of this case. And now that I bay taken upon me to make a report of their arguments, I ought to do the same as truly, fully, and sincerely as possibly 1 can. Howbeit, seeing that almost every Judge had in the course of his argument a peculiar method, and I must only hold myself to one, I shall give no just offence to any, if I challenge that which of right is due to every reporter, that is, to reduce the sum and effect of all to such a method, as, upon consideration had of all the arguments, the reporter himself thinketh to be fittest and clearest for the right understanding of the true reasons and causes of the judgment and resolution of the case in question.
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In this case five things did fall into consideration. 1. Ligeantia. 2. Leges. 3. Regna. 4. Alienigena. 5. Which legal inconveniences would ensue on either side.
[7-Coke-4 b] 1. Concerning ligeance: 1. It was resolved that ligeance was: 2. How many kinds of ligeances there were: 3. Where ligeance was due: 4. To whom it was due: and last, how it was due.
2. For the laws: 1. That ligeance or obedience of the subject to the Sovereign is due by the law of nature: 2. That this law of nature is part of the laws of England:
3. That the law of nature was before any judicial or municipal law in the world:,
4. That the law of nature is immutable, and cannot be changed.
3. As touching the kingdoms, how far forth by the act of law the union is already made, and wherein the kingdoms do yet remain separate and divided.
4. of alienigena, an alien born: 1. What an alien born is in law: 2. The division and diversity of aliens: 3. Incidents to every alien: 4. Authorities in law: 5. Demonstrative conclusions upon the premises, that the plaintiff can be no alien.
5. Upon due consideration had of the consequent of this case: what inconveniences legal should follow on either party.
And these several parts, I will, in this report, pursue in such order as they have been propounded; and, first, de, ligeantia.
1. (a) Ligeance is a true and faithful obedience of the subject due to his Sovereign. - This ligeance and obedience is an incident inseparable to every subject: for as soon as he is born he oweth by birth-right ligeance and obedience to his Sovereign. Ligeantia est vinculum fidei; and ligeantia est quasi legis essentia. Ligeaalia est ligarnentum, quasi ligatio mentium: quia sicut ligamentum est connexio articulorum et juncturarum, &c. As the ligatures or strings do knit together the joints of all the parts of the body, so doth ligeance join together the Sovereign and all his subjects, quasi uno ligamine. Glanville, who wrote in the reign of H. 2. lib. 9. cap. 4. speaking of the connexion which ought to be between the lord and tenant that holdeth by hone saith, that mutua debet esse domini et fide litatis connexion ita quod quantum debet omino ex homagio, tantum illi debet dominus ex dominio, præter solam reverentiam, and the lord, (saith he) ought to defend his tenant. But between the Sovereign and the subject there is without comparison a higher and greater connexion: for as the subject oweth to the King his true and faithful ligeance and obedience, so the Sovereign is to govern and protect his subjects, [7-Coke-5 a] regere et firotegere subditos: so as between the Sovereign and subject there is duplex et reciprocum ligamen; quia sicut subditus regi tenetur ad obedientiam, ita rex subdito tenetur ad protectionem: merito igitur ligeantia dicitur a ligando, quia continet in se duplex ligamen. And therefore it is holden in 20 H. 7. 8. a. that there is a liege or ligeance between the King and the subject. And Fortescue, cap. 13. Rex (b) ad tutelam legis corporum et bonorum subditorum erectus est. And in the Acts of Parliament of IO R. 2. cap. 5. and 11 R. 2. cap. 1. 14 H. 8. cap. 2. &c. subjects are called liege people; and in the Acts of Parliament in 34 H. 8. cap. 1. and 35 H. 8. cap. 3. &c. the King is called the liege lord of his subjects. And with this agreeth M. Skeene in his book De Expositione Verborum, (which book was cited by one of the Judges which argued against the plaintiff) ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him; and he is called their liege lord, because he should maintain and defend them. Whereby it appeareth, that in this point the law of England and of Scotland is all one. Therefore it is truly said that protectio trahit subjectionem, et subjectio protectionem. And hereby it plainly appeareth, that ligeance doth not begin by the oath in the leet; for many men owe true ligeance that never were sworn in a leet, and the swearing in a leet maketh no (c) denization, as the book is adjudged in 14 H. 4. fol. 19. b. This word ligeance is well expressed by divers several names or synonyma which we find in our books. Sometimes it is called the obedience or obeisance of the subject to the King, obedientia
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Regi, 9 E. 4. 7. b. 9 E. 4. 6. (d) 2 R. 3. 2. a. in the Book of Entries, Ejectione Firm' 7. 14 H. 6. cap. 2. 22 H. 8. cap. 8. &c. Sometimes he is called a natural liege man that is born under the power of the King, sub potestate Regis, 4 H. 3. (e) tit. Dower. Vide the statute of 11 E. 3. c. 2. Sometimes ligeance is called faith, fides, ad fidem Regis, &c. Bracton, who wrote in the reign of H. 3. lib. 5. Tractat' de Exception', cap. 24. fol. 427. Est etiam alia exceptio quæ competit ex person‚ quærenti‚, proper defectum nationis, ut si quis alienigena qui fuit ad fidem Regis Franc', &c. And Fleta (which book was made in the reign of E. 1.) agreeth therewith; for 1. 6. C. 47. de except' ex omissione Participis, it is said, vel decere potuit, quod nihil juris clamare poterit tanquam paraticeps eo quod est ad fidem Regis Franciæ, quia alienigenæ repelli debent in Angl' ab agendo, donec fuerunt ad fidem Reg' Angl'. Vide 25 E. 3. de natis ultra mare, faith and ligeance of the King of England; and Litt lib. 2. cap. Homage, (b) saving the faith that I owe to our Sovereign Lord the King, and Glanv. 1. 9. c. 1. Salva fide debita, dom' Regi e- hæredibus suis. Sometimes ligeance is [7-Coke-5 b] called ligealty, 22 Ass pl. 25. By all which it eVidently appeareth, that they that are born under the obedience, power, faith, ligealty, or ligeance of the King, are natural subjects, and no aliens. So, as seeing now it doth appear what ligeance is, it followeth in order, that we speak of the several kinds of ligeance. But herein we need to be very wary, for this caveat the law giveth, ubi lex non distinguit nec nos distinguere debemus; and certainly, lex non distinguit, but where omnia membra dividentia, are to be found out and proved by the law itself.
2. There is found in the law four kinds of ligeances; the first is, ligeantia naturalis, absoluta pura, et indefinite, and this originally is due by nature and birth-right, and is called alta ligeantia, and he that oweth this is called subditus natus. The second is called ligeantia acquisita, not by nature but by acquisition or denization, being called a denizen, or rather donaizon, because he is subditus datus. The third is, ligeantia localis, wrought by the law; and that is when an alien that is in amity cometh into England, because as long as he is within England, he is within the King's protection; therefore so long as he is here, he oweth unto the King a local obedience or ligeance, for that the one (as it hath been said) draweth the other. The fourth is a legal obedience, or ligeance which is called legal, because the municipal laws of this realm have prescribed the order and form of it; and this to be done upon oath at the torn of the leet. The first, that is, ligeance natural, &c. appeareth by the said Acts of Parliament, wherein the King is called natural liege lord, and his people natural liege subjects; this also doth appear in the indictments of treason (which of all other things are the most curiously and certainly indicted and penned) for in the indictment of the Lord Dacre, in 26 H. 8. it is said præd' Dominus Dacre debitum fideietligeant suæ, quod præfato, domino Regi naturaliter et de jure impendere debuit, minime curans, &c. And Reginald Pool was indicted in 30 H. 8. for committing treason contradom' Regem supremum et naturalem dominum suum. And to this end were cited the indictment of Edward Duke of Somerset in 5 E. 6. and many others both of ancient and later times. But in the indictment of treason of John Dethick in 2 and 3 Phil and Mar it is said, quod præd' Johannes machinans; &c. prædict' dominum Philippum et dominam Mariam supremos dominos suos, and omitted (naturalis) because King Philip was not his natural liege lord. And of this point more shall be said when we speak of local obedience. The second is ligeant' acquisita, or denization; and this in the books and records of the law appeareth to be threefold: 1. Absolute, as the common denizations be, to them and their [7-Coke-6 a] heirs, without any limitation or restraint: 2. Limited, as when the King doth grant letters of denization to an alien, and to the heirs (a) males of his body, as it appeareth in 9 E. 4. fol. 7, 8. in Baggot's case: or to an alien for term of his life, as was granted to J. Reynel, 11 H. 6. 3. It may be granted upon (b) condition, for (c) cujus est dare, ejus est disponere, whereof I have seen divers precedents.
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And this denization of an alien may be effected three manner of way as it was in 3 A. 6. 55. in dower: by letters patent, as the usual conquest, as if the King and his subjects should conquer another kin as well antenati as postnati, as well, they which fought in the field remained at home, for defence of their country, or employed denizens of the kingdom or dominion conquered. of which point hereafter.
3. Concerning the local obedience it is observable, that as there on the King's part, so there is a (d) local ligeance of the sub this appeareth in 4 Mar. Br. 32. (e) and 3 and 4 Ail and Mar. Dy Frenchman, being in amity with the King, came into England, and subjects of this realm in treason against the King and Queen, a concluded (f) contraligeant' suæ debitum; for he owed to the King that is, so long as he was within the King's protection; which Loa but momentary and uncertain, is yet strong enough to make a nat. he hath issue here, that issue is (g) a natural born subject; a fortiori under the natural and absolute ligeance of the King (which, as it alta ligeantia) as the plaintiff in the case in question was, ought to subject; for localis ligeantia, est ligeantia intima et minima, et maxim? incerta. And it is to be observed, that it is nec cælum, nec solum, neither the soil, but ligeantia and obedientia that make the subject born; for come into the realm, and possess town or fort, and have issue the subject to the King of England, though he be born upon his meridian, for that he was not born under the ligeance of a subject protection of the King. And concerning this local obedience, a pre Hilar. 36 Eliz when Stephano Ferrara de Gama, and Emanuel Lewis Tinoco, two Portuguese born, coming to England under Queen Elizabeth's safe conduct, and living here under her protection, joined with Doctor Lopez in treason within [7-Coke-6 b] this realm against Her Majesty; and in this case two points were resolve First, that their indictment ought to begin, that they intended trea Reginam. &c. omitting these words (naturalem domin suam) and ought (a) ligeant' suæ debitum. But if an (b) alien enemy come to invade I taken in war, he cannot be indicted of treason (B); for the indict cannot conclude contraligeant suæ debitum, for he never was in the protection of owed any manner of ligeance unto him, but malice and enmity, and be put to death by martial law. And so it was in anno 15 H. 7. i case, who being an alien born in Flanders, feigned himself to be a Edward the Fourth, and invaded this realm with great power, with upon him the dignity Royal: but being taken in the war, it was justices, that he could not be punished by the common law, but be and marshal (who had special commission under the Great Seal to E the same according to martial law) he had sentence to be quartered, which was executed accordingly. And this appearet Griffith Attorney-General, by an extract out of the book of Hobart, to King H. 7.
4. Now are we to speak of legal ligeance, which in our books viz. 7 E. 2. Tit. Avowry 211. 4 E. 3. fol. 42. 13 E. 3. tit. Avowry 120, &c. is called suit Royal,
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because that the ligeance of the subject is only due unto the King. This oath of ligeance appeareth in Britton, who wrote in anno 5 E. 1. cap. 29. (and is yet commonly in use to this day in every leet) and in our books; the effect whereof is: "You shall swear, that from this day forward, you shall be true and faithful to our Sovereign Lord King James and his heirs, and truth and faith shall bear of life and memeber and terrence honour, and you shall neither know nor hear of any ill or damage intended unto him that you shall not defend. So help you Almighty God." The substance and effect hereof is, as hath been said, due by the law of nature, ex institutione naturæ, as hereafter shall appear: the form and addition of the oath is, ex provisione hominis. In this oath of ligeance five things wre observed. 1. That for the time it is indefinite, and without limit, "from this day forward." Secondly, two excellent qualities are required, that is, to be "true and faithful." 3. To whom, "to our Sovereign Lord the King and his heirs:" (and albeit Britton doth say, to the K. of Eng. that is spoken proper excellentiam, to design the person, and not [7-Coke-7 a] to confine the ligeance; for a subject doth not swear his ligeance to the King, only as King of England, and not to him as King of Scotland, or of Ireland, &c. but generally to the King). 4. In what manner; "and faith and troth shall bear, &c. of life and memeber," that is, until the letting out of th elast drop of our dearest heart's blood. 5. Where and in what places ought these things to be done, in all places whatsoever, for, "you shall neither know nor hear of any ill or damage, &c." that you shall not defend, &c. so as natural ligeance is not circumscribed within any place. It is holden 12 H. 7. 18. b. that he that is sworn in the leet, is worn to the King for his ligeance, that is, to be true and faithful to the King; and if he be once sworn for his ligeance, he shall not be sworn again during his life. And all letters patent of denization be, that the patentee shall behave himself tanquam verus et fidelis ligeus domini Regis. And this oath of ligeance at the torn and leet was first instituted by King Arthur; for so I read, Inter leges Sancti Edwardi Regis ante conquestum 3 cap. 35. Et quod omnes principes et comites, proceres, milites et liberi homines debent jurare, &c. in Folkemote, et similiter omnes proceres regni, et milites et liberi homines universi totius regni Britann' facere debent inpleno Folkemote fidelitatem domino Regi, &c. Hanc legem invenit Arthurus Rex Saracenot et inimicos a regno, &c. et hujus legis authoritate Etheldredus Rex uno et eodem die per universum rregnum Danos occidit. Bide Lambert inter leges Regis Edwardi, * &c. fol. 135 et 136. By this it appeareth, when and from whom this legal ligeance had his first institution within this realm. Ligeantia, in the case in question, is meant and intended of the first kind of ligeance, that is, of ligeance natural, absolute, &c. due by nature and birth-right. But if the plaintiff's father be made a denizen, and purchase lands in England to him and his heirs, and die seised, this land shall never descend to the plaintiff, for that the King by his letters patent may make a denizen, but cannot naturalize him to allpurposes, as an Act of Parliament may do; neither can letters patent make any inheritable in this case, that by the common law cannot inherit. And herewith agreeth 36 H. 6. tit. Denizen Br. 9.
Homage in our book is two-fold, that is to say, homagium ligeum; and that is as much as ligeance, of which Bracton speaketh, 1. 2. c. 35. f. 79. Soli Regi debet' sine dominio seu servitio, [7-Coke-7 b] and there is homagium feodale, which hath his original by tenure. In Fitz. Nat. Brev. 269. there is a writ for respiting of this later himage which is due ratione feodi sive tenuræ: sciatis quod respectuamus homagium nobis de terr' et tenementis quæ tenenter de nobis in capite debit'. But homagium ligeum, i, e. ligeantia, is inherent and inseparable, and cannot be respited.
3. Now are we come to (and almost past) the ocnsideration of this circumstance, where natural ligeance should be due: for by that which hath been said, it appeareth, that ligeance, and faith and truth which are her members and parts, are qualities of the mind and soul of man, and cannot be circumscribed within the predicament of ubi, for that were to confound predicaments, and to go about to drive (an absurd and impossible thing) the predicament of quality into the predicament of ubi. Non respondetur ad hanc quæstionem, ubi est? to say, Berus et fidelis subditus est; sed ad hand quætionem, qualis est? Recte et apte respondetur, verus et fidelis ligeus, &c. est. But yet
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for the greater illustration of the matter, the point was handled by itself, and that ligeance of the subject was of as great an extent and latitude, as the Royal power and protection of the King, et ? converso. It appeareth by the stat. of 11 H. 7. cap. 1. and 2 E. 6. cap. 2. that the subjects of England are bound by their ligeance to go with the King, &c. in his wars, as well within the realm, &c. as without. And therefore we daily see, that when either Ireland, or any other of His Majesty's dominions, be infested with invasion or insurrection, the King of England sendeth his subject out of England, and his subjects out of Scotland, also into Ireland, for the withstanding or suppressing of the same, to the end his rebels may feel the swords of either nation. And so may his subjects of Guernsey, Jersey, Isle of Man, &c. be commanded to make their swords good against either rebel or enemy, as occasion shall be offered; whereas if natural ligeance of the subjects of England should be local, that is, confined within the realmof England or Scotland, &c. then were not they bound to go out of the ocntinent of the realmof England or Scotland, &c. And the opinion of Thirninge in 7 H. 4. tit. Protect' 100. is thus to be understood, that an English subject is not compellable to go out of the realm without wages, according to the statutes of 1 E. 3. c. 7. 18 E. 3. c. 8. 18 H. 6. c. 19, &c. 7 H. 7. c. 1. 3 H. 8. c. 5, &c. In ann. 25 E. 1. Bigot Earl of Norfolk and Suffolk, and Earl Marshal of England, and Bohun Earl of Hereford and High constble of England, did exhibit a petition to the King in French which I habe seen anciently recorded) on [7-Coke-8 a] the behalf of the commons of England, concerning how and in what sort they were to be employed in His Majesty's wars out of the realm of England; and the record saith that, post multas et varias altercationes, it was resolved, they ought to go but in such manner and formas after was declared by the said statutes, which seem to be but declarative of the common law. And this doth plentifully and namifestly appear in our books, being truly and rightly understood. In 3 H. 6. tit. Protection 2. one had the benefit of a ptotection, for that he was sent into the King's wars in comitiva of the protector; and it appeareth by the record, and by the chronicles also, that this employment was into France; the greatest part thereof then being under the King's actual obedience, so as the subjects of England were employed into France for the defence and safety thereof: in which case it was observed, that seeing the protector, who was a prorex, went, the same was adjudged a voyage Royal, 8 H. 6. fol. 16. b. the Lord Talbot went with a company of Englishmen into France, then also being for the greatest part under the actual obedience of the King, who had the benefit of their protectins allowed unto them. And here were observed the words of the writ in the Register, fol 88. where it appeareth, that men were employed in the King's wars out of the realm per præceptum nostrum, and the usual words of the writ of protection be in obsequio nostro. *32 H. 6. fol. 4. a. it appeareth, that Englishmen were pressed into Guyienne. 44 E. 3. 12. a. into Gascoyne with the Duke of Lancaster, 17 H. 6. tit. Protection, into || Gascoyne with the Earl of Huntington, steward of Guienne, 11 and 12 H. 4. 7. into (a) Ireland, and out of this realm with the Duke of Gloucester and the Lord Knolles: vide (b) 19 H. 6. 35. b. And it appeareth in 19 Ed. 2. tit. Avowry 224. 26 Ass. 66. 7 H. 4. 19, &c. that there was forinsecum servitium foreign service, which Bracton, fol. 36. calleth regale servitium; and in Fitz. N. B. 28. that the king may send men to seve him in his wars beyond the sea. But thus much (if it be not in so plain a case too much) shall suffice for this point for the King's power, to command the sevice of his subjects in his wars out of the realm, whereupon it was concluded, that the ligeance of a natural-born subject was not local, and confined only to England. Now let us see what the law saith in time of peace, concerning the King's protection and power of command, as well without the realm, as within, that his subjects in all places may be protected from violence, and that justice may equally be administered to all his subjects.
[7-Coke-8 b] In the Register, fol. 25 b. Rex universis et singulis admirall', castellan', custodibus
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castrorum, villar', et aliorum fortalitiorum præpositis, vicecom' majoribus, custumariis, custodib' portuum, et alior' locor' maritimor' ballivis, ministr', et aliis fidel' suis, tam in transmarinis quam in cismarinis partib' ad quos, &c. sallutem. Sciatis, quod suscepimus in protectionem et defension' nostram, necnon ad salvam et securam gardiam nostram W. veniendo in regnum nostrum Angl', et potestatem nostram, tam per terram quam per mare cum uno valetto suo, ac res ac bona sua quæcunque ad tractand' cum dilecto nostro et fideli L. pro redemptione prisonarii ipsius L. infra regnum et potestatem nostram præd' per sex menses morando et exinde ad propria redeundo. Et ideo, &c. quod ipsum W. cum valetto, rebus et bonis suis præd' veniendo in regn' et potestat' nostram præd tam per terr' quam per mare ibid' ut prædict' est ex caus‚ antedict‚ morando, et exinde ad propria redeundo, mauteneatis, protegatis, et defendatis; non inferentes, &c. per sex menses duratur'. T. &c. In which writ three things are to be observed. 1. That the King hath fidem et fideles in partib' transmarinis. 2. That he hath protection' in partib' transmarinis. 3. That he hath potestatem inpartibus transmarinis. In the Register fo. 26. Rex universis et singulis admirallis, castellanis, custodibus castrorum, villaru, et aliorum fortalitionrum præpositis, vicecom majoribus, custumariis, custodib' portuum, et alior' locor' maritimorum ballivis, ministris, et aliis fidelibus suis, tam in transmarinis quam in cismarinis partibus ad quos, &c. salutem. Sciatis quod suscepimus in protectionem et defensionem nostram, necnon in salvum et securum conductum nostr' I. valettum P. et L. Burgensuim de Lyons obsidum nostrorum, qui de licenti‚ nostr‚ ad partes transmarinas profecturus est, pro finantia magistrorum suorum prædict' obtinenda vel defenda, eundo ad partes prædictas ibidem morando, et exinde in Angl' redeundo. Et ideo vobis mandamus, quod eidem I. eundo ad partes præd' ibidem morando, et exinde in Angl' redeundo, ut præd' est, in person‚, bonis, aut revus suis, non inferatis, seu quantum in vobi sest ab aliis inferri permittatis injuriam, molestiam, &c. aut gravamen. Sed eum potius salvum et securm conductum, cum per loca passus, seu districtus vestros transierit, et super hoc requisiti fueritis, suis sumptibus habere faciatis. Et si quid eis forisfactum fuerit, &c. reformari faciatis. In cujus, &c. per tres ann' durat' T. &c. And certainly this was, when Lyons in France (bordering upon Burgundy, an ancient friend to England), was under the actual obedience of King Henry VI. For the King commanded fidelibus suis, his faithful magistrates there, [7-Coke-9 a] that if any injury were there done, it should be by them reformed and redressed, and that they should protect the party in his person and goods in peace. In the Register, fol. 26. two other writs: Rex omnibus seneschallis, majoribus, juratis, paribus præpositis, ballivis et fidelibus suis in ducatu Aquitaniæ ad quos, &c. salutem. Quia dilecti nobis T. et A. cives civitat' Burdegal' coram nobis in Cancellar' nost' Angl' et Aquitan' jura sua prosequentes, et metuentes ex verisimilibus conjecturis per quosdam sibi comminantes tam in corpore quam in rebus suis, sibi posse grave damnum inferri, supplicaverunt nobis sibi de protectione regia providere: nos volentes dictos T. et A. ab oppressionibus indebitis præservare, suscepimus ipsos T. et A. res ac justas possessiones et bona sua quæcunque in protectionem et salvam gardiam nostram specialem. Et vobis et cuilibet vestrum injungmus et mandamus, quod ipsos T. et A. familias, res ac bona sua quæcunque a violentiis et gravaminibus indebitits defendatis, et ipsos in justis possessionibussuis manuteneatis. Et si quid in præjudicium hujus protectionis et salvæ gardiæ nost' attentatum inveneritis, ad statum debitum reducatis. Et ne quis se possit per ignorantiam excusare præsentem protectionem et salvam gardiam nostram faciatis in locis de quibus requisiti fueritis infra district' vestrum publice intimari, inhibentes imnibus et singulis sub pænis gravibus, ne dictis A. et T. seu famulis suis in personis seu rebus suis, injuriam molestiam, damnum aliquod inferant seu gravamen: et penocellas nostras in locis et bonis ipsorum T. et A. in signum protetionis et sal' gard' memorat', cum super hoc eoquisiti fueritis, apponatis. In cujus, &c. dat' in palatio nostro Westm' sub Magni Sigilli testimonio, sexto die Augusti anno 44 E. 3. - Rex universis et singgulis seneschallis, constabular' castellanis, præposit', minist', et omnib' ballivis et fidelibus suis in dominio nostro Aquitan' constitutis ad quos, &c. salut'. Volentes G. et R. uxor ejus favore prosequi gratiose, ipsos G. et R. homines et familias suas ac justas possessiones, et bona sua quæcunque, suscepimus in protectionem et defensionem nostram, necnon in salvam gardiam nostram specialem. Et ideo vobis et cuilibet vestrum injungimus et mandamus, quod ipsos G. et R. eorum homines, familias suas, ac justas possessiones et bona sua quæcunque manuteneatis, protegatis, et defendatis: non inferentes eis seu quantum in vobis est ab aliis inferri permittentes, injuriam, molestiam, damnum, vilentiam, impedi-
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mentum aliquod seu gravamen. Et si quid eis forisfact', injuriatum vel contra eos indebite attentatum fuerit, id eis sine dilatione corrigi, et ad statum debitum reduci faciatis, prout ad vos et quemlibet vestrum noveritis pertinere: penocellas super domibus suis in signum duratur' T. &c. [7-Coke-9 b] By all which it is manifest, that the protection and government of the King is general over all his dominions and kingdoms, as well in time of peace by justice, as in time of war by the sword, and that all be at his command, and under his obedience. Now seeing poweer and protection draweth ligeance, it followeth, that seeing the King's power, command, and protection extendeth out of England, that ligeance cannot be local, or confined within the bounds thereof. He that is abjured the realm, Qui abjurat regnum amittit regnum. sed non Regem, amittit patriam, sed non patrem patriæ: for notwithstanding the abjuration, he oweth the King his ligeance, and he remaineth within the King's protection; for the King may pardon and restore him to his country again. So seeing that ligeance is a quality of the mind, and not confined within any place; it followeth, that the plea that doth confine the ligeance of the plaintiff to the kingom of Scotland, infra ligeantiam Regis reggni sui Scotiæ, et extra ligeantiam Regis regni sui Angliæ, whereby the defendants do make one local ligeance for the natural subjects of England, and another local ligeance for the natural subjects of Scotland, is utterly insufficient, and against the nature and quality of natural lineage, as often it hath been said. And Coke, Chief Justice of the Court of common Pleas, cited a ruled case out of Hingham's Reports, tempore E. 1. which in his argument he shewed in Court written in parchment, in an ancient hand of that time. Constance de N. brought a writ of ayel against Roger de Cobledike and others. named in the writ, and counted that from the seisin of Roger her grandfather it descended to Gilbert his son, and from Gilbert to Constance, as daughter and heir. Sutton dit, Sir, el ne doit este responde, pur ceo que el est Francois et nient de la ligeance ne a la foy Denglitterre, et demand judgement si el doit action aver: that is, she is not to be answered, for that she is a French woman, and not of the ligeance, nor of the faithof England, and damanded judgment, if she this action ought to have. Bereford (then Chief Justice of the court of Common Pleas) by the rule of the Court disalloweth the plea, for that it was too short, in that it referred ligeance and faith to England, and not to the King: and thereupon Sutton saith as followeth: Sir, nous voilomous averre, que el ne est my de la ligeance Denglitterre, ne a la foy le Roy et demand jugement, et si vous agardes que el doit este responde, nous dirromus assets: that is, Sir, we will aver, that she is not of the ligeance of England, nor of the faith of the King, and demand judgment, &c; [7-Coke-10 a] which latter words of the plea (nor of the faith of the King) referred faith to the King indefinitely and generally, and restrained not the same to England, and thereupon the plea was allowed for good, according to the rule of the Court: for the book saith, that afterward the plaintiff desired leave to depart from her writ. The rule of that case of Cobledike, did (as Coke, Chief Justice, said) over-rule this case of Calvin, in the very point now in question; for that the plea in this case doth not refer faith or ligeance to the King indefinitely and generally, but limiteth and restrainet faith and ligeance to the kingdom:Extra ligeantiam Regis regni sui Angliæ, out of the ligeance of the King of his kingdom of Englan; which afterwards the Lord Chancellor and the Chief Justice of the King's Bench, having copies of the said ancient report, affirmed in their arguments. So as this point was thus concluded, Quod ligeantia naturalis nullis claustris coercetur nullis metis refrænatur, nullis finibus premitur.
4 and 5. By that which hath been said, it appeareth, that this legeance is due only to the King; so as therein the question is not now, cui, sed quomodo debetur. It is true, that the King hath two capacities in him: one a natural body, being descended of the blood Royal of the realm; and this body is of the creation of Almighty God, and is subject to death, infirmity, and such like; the other is a || politic body or capacity, so called, because it is framed by the policy of man (and in 21 E. 4. 39. b. is called a mysticall body;) and in this capacity the King is esteemed to be immortal, invisible, not subject to death, infirmity, infancy, (a) nonage, &c. Pl. Com. in the case of The
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Lord Barkley, 238. and in the case of The Duchy 213. 6 E. 3. 291. and 26 Ass pl. 54. Now, seeing the King hath but one person, and several capacities, and one politic capacity for the realm of England, and another for the realm of Scotland, it is necessary to be considered, to which capacity ligeance is due. And it was resolved, that it was due to the natural person of the King (which is ever accompanied with the politic capacity, and the politic capacity as it were appropriated to the natural capacity), and it is not due to the politic capacity only, that is, to his Crown or 'kingdom distinct from his natural capacity, and that for divers reasons. First- every subject (as it hath been affirmed by those that argued against the plaintiff) is presumed by law to be sworn to the King, which is to his natural person, and likewise the King is sworn to his subjects, (as it appeareth in Bracton, lib. 3. de Actionibus, cap. 9. fol. 107) which oath he taketh in his natural [1 0 b] person: for the politic capacity is invisible and immortal; nay, the politic body hath no soul, for it is framed by the policy of man. 2. In all indictments of treason, when any do intend or compass mortem et destructionem domini Regis (which must needs be understood of his natural body, for his politic body is immortal, and not subject to death,) the indictment concludeth, contra (a) ligeantice suæ debitum; ergo, the ligeance is due to the natural body. Vide Fit. Justice of Peace 53. and PI. Corn. 384. in The Earl of Leicester's case. 3. It is true, that the King in genere dieth not but, no question, in individuo he dieth: as for example, H. 8. E. 6. &c. and Queen Eliz died, otherwise you- should have many Kings at once. In 2 and 3 Ph. and Mar. Dyer 228. (b) one Constable dispersed divers bills in the streets in the night, in which it was written, that King E. 6. was alive, and in France, &c.: and in Coleman-street in London, he pointed to a young man, and said, that he was King Edward the Sixth. And this being spoken de individuo (and accompanied with other circumstances) was resolved to be high treason; for the which Constable was attainted and executed. 4 A (c) body politic (being invisible) can as a body politic neither make or take homage: Vide 33 H. 8. tit. Fealty, Brook 15. 5. In fide, in faith or ligeance nothing ought to be feigned, but ought to be exfidenonficla. 6. The King holdeth the kingdoi of England by birthright inherent, by descent from the blood Royal, whereupon succession doth attend; and therefore it is usually said, to the King, his heirs, and successors, wherein heirs is' first named, and successors is attendant upon heirs. And yet in our ancient books succession and successor are taken for hereditance and heirs. Bract. U. 2. de Acquirendo Rerum Dominio c. 29. -Et sciend' est quod hæreditas est successio in universum jus quod defunctus antecessor habuit, ex causd quacunque acquisitionis vel successionis, et alibi affinitatis jure nulla successio permitlitur. But the title is by descent; by Queen Elizabeth's death the Crown and kingdom of England descended to His Majesty, and he was fully and absolutely thereby King, without any essential, ceremony or act to be done ex postfacto: for coronation is but a Royal ornament and solemnization of the Royal descent, but no part of the title. In the first year of His Majesty's reign, before His Majesty's coronation, Watson (d) and Clerk;, se inar inpriests, and others, were of opinion, that His Majesty was no complete and absolute King before his coronation, but that coronation did add a confirmation-and perfection to the descent; and therefore (observe their damnable and damned consequent) that they by (11 a] strength and power might before his coronation take him and his Royal issue into their possession, keep him prisoner in the Tower, remove such counsellors and great officers as pleased them, and constitute others in their places, &c. And that these and other (acts) of like nature could not be treason against His Majesty, before he were a crowned King. But it was clearly resolved by all the Judges of England, that presently by the descent His Majesty was completely and absolutely King, without any essential ceremony or act to be done ex post facto, and that (e) coronation was but a Royal ornament, and outward solemnization of the descent.
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And this appeareth evidently by infinite precedents and book case example in a case so clear for all) King Henry VI. was not crowned u his reign, and yet divers men before his coronation were attain felony, &c. and he was as absolute and complete a King, both for ma as for grants, &c. before his coronation, as he was after, as it appear of 1, 2, 3, 4, 5, 6, and 7 years of the same King. And the like for many other Kings of this realm, which for brevity in a case so which it manifestly appeareth, that by the laws of England there regnum within the same. If the King be seised of land by a d dieth seised, this descent shall toll the entry of him that right by 9 (a) E. 4. 51. But if the next King had it by succession, that no entity, as it appeareth by Littleton, fol. 97. If a disseisor of an land to the King who dieth seised, this descent taketh away the e as it is said in 34 H. 6. fol. 34. (b) 45. lib. Ass pl. 6. Plow. Co case was; K. H. 3. gave a manor to his brother the Earl of Co what time the same was a fee-simple conditional) K. H. 3. died, Statute of Donis Conditional' (having no issue) by deed exchange warranty for other lands in fee, and died without issue, and assets descended upon his nephew King Edward I; and it was a warranty and assets, which descended upon the natural person of him of the possibility of reverter. In the reign of Ed. 2. the Sp and the son, to cover the treason hatched in their hearts, invented damned opinion, that homage and oath of ligeance was more by re Crown (that is, of his politic capacity) than by reason of the person o upon which opinion they inferred execrable and detestable conseq King do not demean himself by reason in the right of his CroWD, bi by oath to remove the King. 2. Seeing that the King could not b of law that ought to be done by the sword. 3. That his lieges b in aid of him, and in default of him. All which were condemned b one in the reign of Ed. 2. called -Exilium Hugonis le Spencer, and th Ed. 3. c. 1. Bracton, lib. 2. de Acquirendo Rerum Dominio, c. 24. f. enim Corona Regis facere justitiam et judic',ettenere pacem, et sine quib non potest nee tenere; hujusmodi autem jura sive jurisdictiones ad pers transferri non polerunt, nee a privatd, persond possideri, nee users nee hoc datum fuit ei desuper, sicut jurisdiclio delegata delegari non pole remaneat cum ipso Rege. Et lib. 3. De Actionibus, cap. 9. fol 107. Separare autem debet Rex, cum sit Dei vicarius in terra, jus ab injuria, æquam ab iniquo, ut honeste vivant, et quod nullus alium 16edat, et quod unicuique quod suum contributione reddatur. In respect whereof one saith, that Corona est quasi cor menta sunt misericordia et juslicia. And therefore a King's Crown of the laws, where justice, &c. is administered; for so saith P. v. Coronam dicimus legis judicium esse, proplerea quod cerlis est vinculis com nostra veluli religata coercetur. Therefore if you take that which is signified by the Crown, that is, to do justice and judgment, to maintain the peace of the land, &c. to separate right from wrong, and the good from the ill: that is to be U capacity of the King, that in rei verilate hath capacity, and is adc wlth endowments as well of the soul as of the body, and thereby and judgment according to right and equity, and to maintain the find out and discern the truth, and not of the invisible and immo hath no such endowments; for of itself it hath neither soul nor b divers books and Acts of Parliament speak of the ligeance of England as 31 E. 3. tit. Cosinage 5. 52 Ed. 3. 2. 13 E. 3. tit. Brief 677. 25 Ed. 3. Stat. de Natis Ultra
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Mare. All these and other speaking briefly in a vulgar manner (for (a) loquendum ut vulgus) and not pleading (for sentiendum ut docti) are to be understood of the ligeance due by the people of England to the King; for no man will affirm, that England itself, taking it for the continent thereof, doth owe any [7-Coke-12 a] ligeance or faith, or that any faith or ligeance should be due to it: but it manifestly appeareth, that the ligeance or faith of the subject is proprium qu arto modo to the King, onmi soli et semper. And oftentimes in the reports of our book cases, and in Acts of Parliament also, the Crown or kingdom is taken for the King himself, as in Fitzh. Natur. Brey fol. 5. Tenure in capite is a tenure of the Crown, and is a seignory in gross, that is of the person (C) of the King: and so is 30 H. 8. Dyer fol. 44, 45. a tenure in chief, as of the Crown, is merely the tenure of the person of the- King and therewith agreeth 28 H. 8. tit. Tenure 65. Br. The statute, of 4 H. 5. cap ultimo gave priors aliens, which were conventual to the King and his heirs, by which gift saith U H. 6. 34. the same were annexed to the Crown. And in the said'Act of 2 Ed. 3. whereas it is said in the beginning, within the ligeance of England, it is twice afterwards said in the said Act within the ligeance of the King, and yet all one ligeance due to the King. So in 42 Ed. 3. fol. 2. where it is first said, the ligeance of England, it is afterwards in the same case called the ligeance of the King; wherein though they used several manner and phrases of speech, yet they intended one and the same ligeance. So in our usual commission of assise, of gaol delivery, of oyer and terminer, of the peace, &c. power is given to execute justice, secundum legem et consuetudinem regni nostri Angliæ; and yet Littleton, lib. 2. in his chapter of Villenage, fol. 43. in disabling of a man that is attainted in a præmunire saith, that the same is the King's law; and so doth the register in the writ of adjura, regia style the same.
The reasons and cause wherefore by the policy of the law the King is a body politic, are three, viz. 1. causa majestatis, 2. causa necessitates, and 3. causa utililatis. First, causa majestatis, the King cannot give or take but by matter of record for the dignity of his person. Secondly, causa necessitalis, as to avoid the (a) attainder of him that hath right to the crowd, as it appeareth in 1 H. 7. 4. lest in the interim there should be an (b) interregnum, which the law will not suffer. Also by force of this politic capacity, though the (c) King be within age, yet may he make leases and other grants (D), and the same shall bind him; otherwise his revenue should decay, and the King should not be able to reward service, &c. Lastly, causa utilitatis, as when lands and possessions descend from his collateral ancestors, being subjects, as from the Earl [7-Coke-12 b] of March, &c. to the King, now is the King seised of the same injure Coronæ, in his politic capacity; for which cause the same shall go with the Crown; and there, albeit Queen Elizabeth was of the half blood to Queen Mary, yet she in her body politic enjoyed all those fee-simple lands, as by the law she ought, and no collateral cousin of the whole blood to Queen Mary ought to have the same. And these are the causes wherefore by the policy of the law the King is made a body politic: so as for these special purposes the law make him a body politic, immortal and invisible, whereunto our liegance cannot appertain. But to conclude this point, our liegance is to our natural liege Sovereign, descended of the blood royal of the Kings of this realm. And thus much of this general part de ligeantid, now followeth the Second Part, De Legibus, wherein these parts were considered first that the ligeance or faith of the subject is due unto the King by the law of nature: secondly, that the law of nature is part of the law of England: thirdly, that
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the law of nature was before any judicial or municipal law: fourthly nature is immutable.
The law of nature is that which God at the time of creation of infused into his heart, for his preservation and direction; and this is lex æterna, the moral law, called also the law of nature. And by this law, written God in the heart of man, were the people of God a long time gone law was written by Moses, who was the first reporter or writer of The Apostle in the second chapter to the Romans saith, Cum enim gentes quæ elegem non habent naturaliter ea quæ legissunt faciunt. And this is within the moral law, honora patrem, which doubtless doth extend to him that is pater patriæ. And these be the words of the Great Divine, Hoc Deus in Sacris Scripturis jubet, hoc ut quilibet subditus obediat superior and Aristotle, nature's secretary, lib. 1. Cap. 5. that jus naturale est, quod apud omnes homines eandem habet potentiam. agree Bracton, lib. 1. cap. 5. and Fortescue, cap. 8. 12. 13. and Student, cap. 2. and 4. And the reason hereof is, for that God a [7-Coke-13 a] to all, and therefore the law of God and nature is one to al nature is the faith, ligeance, and obedience of the subject due to superior. And Aristotle 1. Politicorum proveth, that to command nature, and that magistracy is of nature: for whatsoever is necessary for the preservation of the society of man is due by the law of nature and government are necessary and profitable for the preservation man; therefore magistracy and government are of nature. And erewith accordeth Tully, lib. 3. De legibus, sine imperio nee domus ulla, nec civilas, nec universum genus stare, nec ipse denique mundus potest. This law indeed is the eternal law of the Creator, infused into the heart of the time of his creation, was two thousand years before any laws written judicial or municipal laws. And certain it is, that before judicial were made, Kings did decide causes according to natural equity, an any rule or formality of law, but did dare Jura. And this appeareth by Fortescue, cap. 12 and 13. and by Virgil that philosophical poet, 7th Aeneid.
Hoc Priami gestamen erat, cumjura, vocatis
More claret populism
And 5th AEneid.
- Gandet regno Trojanus Acestes, Indicitlue forum et partibus dat jura vocatis.
And Pomponius, lib. 2. cap. De Origine Juris, affirmeth the Superbus's time there was no civil law written, and that Papirius observations into writing, which was called Jus Civile Papirianum wherefore laws were made and published, appeareth in Fortescue, Tully, lib. 2. officiorum: at cum jus æquabile ab uno viro homines non consequerentur, inventi sunt leges. Now it appeareth by demonstrative reason faith, and obedience of the subject to the Sovereign, was before judicial laws. 1. For that government and subjection were long before any municipal or judicial laws. 2. For that it had been in vain to have prescribed to such as owed obedience, faith, and ligeance before, in respect w' bound to obey and observe them: Frustra, enim [7-Coke-13 b] feruntur leges nisi subditis et obedientibus. Seeing then that faith, obedience, and ligeance are due by the law of nature, it followeth that the same cannot be changed or taken away; or municipal laws have inflicted and imposed in several places, or divers and several punishments and penalties, for breach or not observance of the law of nature, (for that law only consisted in commanding or prohibit certain punishment or penalty), yet the very law of nature itself never was nor could be (a) altered or changed. And therefore it is certainly true, that (b) jura naturalia
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sunt immutabilia. And herewith agreeth Bracton, lib. 1. cap. 5. and Doctor and Student, cap. 5 and 6. And this appeareth plainly and plentifully in our books.
If a man hath a ward (e) by reason of a seigniory, and is outlawed, he forfeiteth the wardship to the King: but if a man hath the wardship of his own son or daughter, which is his heir apparent, and is outlawed, be doth not (a) forfeit this wardship; for nature hath annexed it to the person of the father, as it appeareth in 33 H. 6. 55. b. -Et bonus Rex nihil a bono patre differt, et patria dicitur a patre, quia habet communes patrem, qui est pater patriæ. In the same manner, maris et fæminæ conjunctio est de jure naturæ, as Bracton, in the same book and chapter, and St. Germin in his book of the Doctor and Student, cap. 5. do hold. Now, if he that is attainted of treason or felony, be slain by one that hath no authority, or executed by him that hath authority, but pursueth not his warrant, in this case his eldest son can have no appeal (F), for he must bring his appeal as heir, which being ex provisione hominis, he loseth it by the attainder of his father; but his (b) wife (if any he have) shall have an appeal, because she is to have her appeal as wife, which she remaineth notwithstanding the attainder, because maris et fæminæ conjunctio is de jure naturæ, and therefore (it being to be intended of true and right matrimony) is indissoluble; and this is proved by the book in 33 H. 6. 57. So if there be mother and daughter, and the daughter is attainted of felony, now cannot she be heir to her mother for the cause aforesaid; yet after her attainder, if she kill her mother, this is, parricide and petit treason; for yet she remaineth her daughter, for that is of nature, and herewith agreeth 21 E. 3. 17. b. If a man be attainted of felony or treason, he hath lost the King's legal protection, for he is thereby utterly disabled to sue any action real or personal (which is a greater disability than an alien in league hath) and yet such a person so attainted hath not lost that [7-Coke-14 a] protection which by the law of nature is given to this King, for that is indelebitis et immutabilis, and therefore the King may protect and pardon him, and if any man kill him without warrant, he shall be punished by the law as a manslayer, and thereunto accordeth 4 Ed. 4. and 35 H. 6. 57. 2 Ass pl. 3. By the statute of 25 Ed. 3. cap. 22. a man attainted in a premunire, is by express words out of the King's protection generally; and yet this extendeth only to legal protection, as it appeareth by Littleton, fol. 43. for the Parliament could not take away that protection which the 1w of nature giveth unto him; and therefore notwithstanding that statute, the King may protect and pardon him. And though by that statute it was farther enacted, that it should be done with him as with an enemy, by which words any man, might have slain such a person (as it is holden in 24 H. 8. tit. Coron. Br. 197.) until the statute made anno 5 Eliz cap. 1. yet the King might protect and pardon him. A man outlawed is out of the benefit of the municipal law; for so saith Fitz. N. B. 161. a. utlagatis est quasi extra legem positus: and Bract. 1. 3. tract. 2. c. 11. saith, that ea put geret lupinum; and yet is he not out either of his natural ligeance, or of the King's. natural protection; for neither of them is tied to municipal laws, but is due by the law of nature, which (as hath been said) was long before any judicial or municipal laws. And therefore if a man were outlawed for felony yet was he within the King's natural protection, for no man but the sheriff could execute him, as it is adjudged in, 2 lib. Ass pl. 3. Every subject is by his natural ligeance bound to obey and serve his sovereign, &c. It is enacted by the Parliament of 23 H. 6. that no man should serve the Kin as sheriff of any county, above one year, and that notwithstanding any clause of non obstante to the contrary, that is to say, notwithstanding that the King should expressly dispense with the said statute: howbeit it is agreed in 2 H. 7. that, against the express purview of that Act, the King may, by a special non obstante dispense with that Act, for that the Act could not bar the King of the service of his subject, which the law of nature did give unto him. By these and many other cases that might be cited out of our books, it appeareth, how plentiful the authorities of
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our laws be in this matter. Wherefore to conclude this point (and to exclude all that hath been or could be objected against it) if the obedience and ligeance of the subject to his sovereign be due by the law of nature, if that law be parcel of the laws, as well of England, as of all other nations, and is immutable, and that postnati and we of England are united by birthright, [7-Coke-14 b] in obedience and ligeance (which is the true cause of natural subjection) by the law of nature; it followeth that Calvin the plaintiff being born under one ligeance to one King, cannot be an alien born; and there is great reason, that the law of nature should direct this case, wherein five natural operations are remarkable: first the King hath the Crown of England by birthright; being naturally procreated of the blood royal of this realm: secondly, Calvin the plaintiff naturalized by procreation and birth-right, since the descent of the Crown of England: thirdly, ligeance and obedience of the subject to the sovereign, due by the law of nature: fourthly, protection and government due by the law of nature: fifthly, this case, in the opinion of divers, was more doubtful in the beginning, but the further it proceeded, the clearer and stronger it grew; and therefore the doubt grew from some violent passion, and not from any reason grounded upon the law of nature, quia quanto magis violentus motus (qui fit contranaturam) appropinquat ad suum finem, tanto debiliores et tardiores sunt ejus motus; sed naturalis motus, quanto magis approprinquat ad suum finem, tanto fortiores et velociores sunt ejus motus. Hereby it appeareth how weak the objection grounded upon the rule of (a) quanto du jura concurrunt in, und, persond, &c. is: for that rule holdeth not in personal things, that is, when two persons are necessarily and inevitably required by law, as in the case of an alien born there is; and therefore no man will say that now the King of England can make war or league with the King of Scotland, et sic de cæteris; and so in case of an alien born, you must of necessity have two several ligeances to two several persons. And to conclude this point concerning laws, non adservatur diversitas regnor sed regnant', nonpatriarum, sed patrum patriar', non coronarum, sed coronatorum, non regum municipalium, sed regum majestatum. And therefore thus were directly and clearly answered as well the objections drawn from the severalty of the kingdoms, seeing there is but one head of both, and the postnati and us joined in ligeance to that one head, which is copula et tanquam oculus of this case; as also the distinction of the laws, seeing that ligeance of the subjects of both kingdoms, is due to their sovereign by one law, and that is the law of nature.
For the third, it is first to be understood, that as the law hath wrought four unions, so the law doth still make four separations: The first union is of both kingdoms under one natural liege Sovereign King, and so acknowledged by the Act of [7-Coke-15 a] Parliament of recognition. The 2d. is an union of ligeance and obedience of the subjects of both kingdoms, due by the law of nature to their sovereign: and this union doth suffice to rule and overrule the case in question: and this in substance is but a uniting of the hearts of the subjects of both kingdoms one to another, under one head and sovereign. The 3d. union is an union of protection of both kingdoms, equally belonging to the subjects of either of them: and therefore the two first arguments or objections drawn from two supposed several ligeances were fallacious, for they did disjungere conjungenda. The 4th union and conjunction is of the three lions of England, and that one of Scotland, united and quartered in one escutcheon.
Concerning the separations yet remaining: 1. England and Scotland remain several and distinct kingdoms. 2. They are governed by several judicial or municipal laws. 3. They have several distinct and separate Parliaments. 4. Each kingdom hath several nobilities: for albeit a postnatus in Scotland, or any of his posterity, be the heir of a nobleman of Scotland, and by his birth is legitimated in England, yet he is none of the (a) peers or nobility of England; for his natural ligeance and obedience, due by the law of nature, maketh him a subject and no alien within England: but that subjection maketh him not noble within England; for that nobility had his original by the King's creation, and not of nature. And this is manifested by express authorities, grounded upon excellent reasons in our books. If
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baron, viscount, earl, marquis, or duke of England, bring any action, real or personal, and the defendant pleadeth in abatement of the writ that he is no baron, viscount, earl, &c. and thereupon the demandant or plaintiff taketh issue; this issue shall not be tried by jury, but by the (a) record (G) of Parliament, whether he or his ancestor, whose heir he is, were called to serve there as a peer, and one of the nobility of the realm. And so are our books adjudged in 22 Ass. 24-. 48 Edw. 3. 30. 35 H. 6. 40. 20 Eliz. Dyer. 360. Vide in the Sixth Part of my Reports, in The Countess of Rutland's case. So as the man, that is not de jure a peer, or one of the nobility, to serve in the Upper House of the Parliament of England, is not in the legal proceedings of law accounted noble within England. And therefore if a countee of France or Spain, or any other foreign kingdom, should come into England, he should not here sue, or be sued by the name of countee, &c. for that he is none of the nobles that are members of the [7-Coke-15 b] Upper House of the Parliament of England; and herewith agree the book-cases of (b) 20 Ed. 4. 6. a. b. and I1 Ed. 3. tit. Bre. 473. like law it is, and for the same reason, of an earl or baron of Ireland, he is not any peer, or of the nobility of this realm: and herewith agreeth the book in 8 R. tit. (c) Proces pl. Ultim'; where in an action of debt, process of outlawry was awarded against the Earl of Ormond in Ireland; which ought not to have been, if he had been noble here. Vide Dyer (d) 20 Eliz. 360.
But yet there is a diversity in our books worthy of observation; for the highest and lowest dignities are universal: for if a King of a foreign nation come into England, by the leave of the King of this realm (as it ought to be) in this case he shall sue and be sued by the name of a King; and herewith agreeth 11 E. 3. tit. Br. (e) 473. where the case was, that Alice, which was the wife of R. de 0. brought a writ of dower against John Earl of Richmond, and the writ was præcip. Johann' Comiti Richmondite custodi terr' et hæredis of William the son of R. de. 0. the tenant pleaded that he is duke of Britain, not named duke, judgment of the writ? But it is ruled that the writ was good; for that the dukedom of Britain was not within the realm of England. But there it is said, that if a man bring a writ against Edward (f) Baliol, and name him not King of Scotland, the writ shall abate for the cause aforesaid. And hereof there is a notable precedent in Fleta, lib. 2. cap. 3. see. 9. where treating of the jurisdiction of the King's Court of Marshalsea it is said et hæc omnia ex officio' suo licite facere poterit (ss seneschal' aul' hospitii Regis) non obstante alicujus libertate, etiam in alieno regno dum tamen reus in hospitio Regis poterit inveniri secundum quod contigit Paris. anno 14 Ed. 1. de Engelramo de Nogent capto in hospitio Regi 3 Angl' (ipso rege tunc apud Parisiam existente) cum discis argenti furatis recenter su er facto, rege Franc' tunc presentee et unde licet Curia Regis Franc' de præd' latrone per castellanum, Paris petita fuerit, habitis hinc et inde tractatibus in Consilio Regis Franc', tandem consideratumfitit; quod Rex Angl' illa regia prærogativa, et hospitii sui privilegio uteretur, et ganderet, qui coram Roberto Fitz-John milite tunc hospitii Regis Angl' seneschallo de latrocinio convidus, per considerationem, ejus cur, fuit (a) suspensus in patibulo sancti Germani de pratis. Which proveth, that though the King be in a foreign kingdom, yet he is judged in law a King there. The other part of the said diversity is proved by the book-ease in 20 (b) E. 4. fol. 6. a. b. where, in a writ of debt brought by Sir J. Douglas, Knight, against Elizabeth Molford, the defendant, demanded judgment of the writ; for that [7-Coke-16 a] the plaintiff was an earl of Scotland (H), but not of England; and that our
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Sovereign Lord the King had granted unto him safe conduct, not named by his name of dignity, judgment of the writ, &c. And there Justice Littleton giveth the rule: the plaintiff(saith be) is an earl in Scotland, but not in England; and if our Sovereign Lord the King grant to a duke of France a safe conduct to merchandize, and enter into his realm, if the duke cometh and bringeth merchandize into this land, and is to sue art action here he ought not to name himself duke; for he is not a duke in this land, but only in France. And these be the very words of that book-case; out of which I collect three things. First, that the plaintiff was named by the name of a knight, wheresoever be received that degree of dignity. Vide (c) 7 H. 6. 14 b. accord. 2. That an earl of another nation or kingdom is no earl (to be so named in legal proceedings) within this realm: and herewith agreeth the book of (d) 11 Ed. 3. The Earl of Richmond's case before recited. 3. That albeit the King by his letters patent of safe conduct do name him duke, yet that appellation maketh him no duke, to sue or to be sued by that name within England: so as the law in these points (apparent in our books) being observed and rightly understood, it appeareth how causeless their fear was that the adjudging of the plaintiff to be no alien should make a confusion of the nobilities of either kingdom.
Now are we in order come to the fourth noun (which is the fourth general part), alienigena; wherein six things did fall into consideration. 1. Who was alienigena, an alien born by the laws of England. 2. How many kinds of aliens born there were. 3. What incidents belonged to an alien born. 4. The reason why an alien is not capable of inheritance or freehold within England. 5. Examples, resolutions, or judgments reported in our books in all successions of ages, proving the plaintiff to be no alien. 6. Demonstrative conclusions upon the premises, approving the same.
1. An alien is a subject that is born out of the ligeance of the King, and under the ligeance of another; and can have no real or personal action for or concerning land: but in every such action the tenant or defendant may plead that he was born in such a country which is not within ligeance of the King; and demand Judgment, if he shall be answered. And this is in effect the description which Littleton himself maketh, lib. 2. cap. 14. Villen. fol. 43. Alienigena est alienæ gentis seu alienæ ligeantice, qui etiam [7-Coke-16 b] dicitur peregrinus, alienus, exoticus, extraneos, &c. Extraneus est subditus, qui extra terram, i, e. potestatem Regis natus est. And the usual and right pleading of an alien born doth lively and truly describe and express what be 1s. And therein two things are to be observed. 1. That the most usual and best pleading in this case, is, both exclusive and inclusive, viz. extra ligeantiam domini Regis, &c. et infra ligeantiam alterius Regis, as it appeareth in (a) 9 Ed. 4. 7. b. Book of Entries, fol. 244, &c. which cannot possibly be pleaded in this case, for two causes. 1. For that one King is sovereign of both kingdoms. 2. One ligeance is due by both to one sovereign; and in case of an alien there must of necessity be several Kings and several ligeances. Secondly, no pleading was ever extra regnum, or extra legem, which are circumscribed to place, but extra ligeantiam, which (as it hath been said) is not local or tied to any place.
It appeareth by Bracton, lib. 3. tract. 2. c. 15. fol. 134. that (b) Canutus the Danish King, having settled himself in this kingdom in peace, kept notwithstanding (for the better continuance thereof) great armies within this realm. The peers and nobles of England, distasting this government by arms and armies, odimus accipitrem quia semper vivit in armis, wisely and politically persuaded the King, that they would provide for the safety of him and his people, and yet his armies, carrying with them many inconveniencies, should be withdrawn: and therefore offered that they would consent to a law, that whosoever should kill an alien, and be apprehended, and could not acquit himself, he should be subject to justice: but if the manslayer fled, and could not be taken, then the town where the man was slain should forfeit sixty-six
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marks unto the King; and if the town were not able to pay it, then the hundred should forfeit and pay the same unto the King's treasure: whereunto the King assented. This law was penned quicunque occiderit Francigenam, &c; not excluding other aliens, but putting Francigena, a Frenchman, for example, that others must be like unto him, in owing several ligeance to a several sovereign, that is, to be extra ligeantiam Regis Angl', and infra ligeantiam alterius Regis. And it appears before, out of Bracton and Fleta, that both of them use the same example (in describing of an alien) ad fidem Regis Franciæ. And it was holden, that except it could be proved that the party slain was an Englishman, that he should be taken for an alien: and this was called Englesherie, Englesheria, that is, a proof that the party slain was an Englishman. (Hereupon [7-Coke-17 a] Canutu's presently withdrew his armies, and within a while after lost his Crown, and the same was restored to his right owner.) The said law of Englesherie continued until 14 Ed. 3. cap. 4. and then the same was by Act of Parliament ousted and abolished. So amongst the laws of William the First, (published by Master Lambert, fol. 125.) omnis Francigena (there put for example as before is said, to express what manner of person alienigena should be) qui Tempore, Edvardi propinqua nostri fuit particeps legum et consuetudinem Anglorum (that is made denize") quod dicunt ad scot et lot persolvat secundum legem Anglorum.
Every man is either alienigena, an alien born, or subditus, a subject born. Every alien is either a friend that is in league, &c. or an enemy that is in open war, &c. Every alien enemy is either pro tempore, temporary for a time, or perpetuus, perpetual, or specialiter permissus, permitted especially. Every subject is either natus, born, or datus, given or made: and of these briefly in their order. An alien friend, as at this time, a German, a Frenchman, a Spaniard, &c. (all the Kings and princes in Christendom being now in league with our sovereign: but a Scot being a subject, cannot be said to be a friend, nor Scotland to be solum amici) may by the common law have, acquire, and get within this realm, by gift, trade, or other lawful means, any treasure, or (a) goods personal whatsoever, as well as an Englishman, and may maintain any (b) action for the same: but (c) but lands within this realm, or houses (but for their necessary habitation only) alien friends cannot acquire, or get, nor maintain any action real or personal, for any land or house, unless the house be for their necessary habitation. For if they should be disabled to acquire and maintain these things, it were in effect to deny unto them trade and traffic, which is the life of every island. But if this alien become an enemy, (as all alien friends may) then is he utterly disabled to maintain any action, or get any thing within this realm. And this is to be understood of a temporary alien, that being an enemy may be a friend, or becoming a friend may be an enemy. But a perpetual enemy (though there be no wars by fire and sword between them) cannot maintain any action, or get any thing within this realm. All infidels are in law perpetui (d) inimici, perpetual enemies (for the law presumes not that they will be converted, that being remota potentia, a remote possibility) for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual [7-Coke-17 b] hostility, and can be no (a) peace; for as the Apostle saith, 2 Cor. 6. 15. Quæ autem conventio Christi ad Belial, aut quæ, pars fideli cum infideli, and the law saith, Judæo Christianum nullum serviat mancipium, nefas enim est quem, Christus redemit blasphemum, Christi in servitutis vinculis detinere. Register 282. Infideles sunt Christi et Christianorum inimici. And herewith agreeth the book in 12 H. 8. fol. 4. where it is holden that a Pagan cannot have or maintain any action at all (I).
And upon this ground there is a diversity between a conquest of a kingdom of a
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Christian King, and the conquest of a kingdom of an infidel; for if a King come to a Christian kingdom by conquest, seeing that he hath vilæ et necis potestatem, he may at his pleasure alter and change the laws of that kingdom: but until be doth make an alteration of those laws the ancient laws of that kingdom remain (K). But if a Christian King should conquer a kingdom of an infidel, and bring them under his subjection, there ipso facto the laws of the infidel are abrogated, for that they be not only against Christianity, but against the law of God and of nature, contained in the decalogue; and in that case, until certain laws be established amongst them, the King by himself, and such Judges as he shall appoint, shall judge them and their causes according to natural equity, in such sort as Kings in ancient time did with their kingdoms, before any certain municipal laws were given, as before hath been said. But if a King hath a kingdom by title of descent, there seeing by the laws of that kingdom he doth inherit the kingdom, he cannot change those laws of himself, without consent of Parliament. Also if a King hath a Christian kingdom by conquest, as King Henry the Second had Ireland, after King John had given unto them, being under his obedience and subjection, the laws of England for the government of that country, no succeeding King could alter the same without Parliament. And in that case, while the realm of England, and that of Ireland were governed by several laws, any that was born in Ireland was no alien to the realm of England. In which precedent of Ireland three things are to be observed. 1. That then there had been two descents, one from Henry the Second to King Richard the First, and from Richard to King John, before the alteration of the laws. 2. That albeit Ireland was a distinct, dominion, yet the title thereof being by conquest, the same by judgment of law might by express words be bound by Act of the Parliament of England. 3. That albeit no[7-Coke-18 a] reservation were in King John's charter, yet by judgment of law a writ of error did lie in the King's Bench in England of an erroneous Judgment in the King's Bench of Ireland. Furthermore, in the case of a conquest of Christian kingdom, as well those that served in wars at the conquest as those that remained at home for the safety and peace of their country, and other the King's subjects, as well antenati as postnati, are capable of lands in the kingdom or country conquered, and may maintain any real action, and have the like privileges and benefits there, as they may have in England.
The third kind of enemy is, inimicus permissus, an enemy that cometh into the realm by the King's safe conduct, of which you may read in the Register, fol. 25. Book of Entries, Ejectione Firmæ, 7, 32 H. 6. 23. b. &c. Now what a subject born is, appeareth at large by that which hath been said de ligeantia: and so likewise de
(K) Memorandum 9th of August, 1722, it was said by the Master of the Rolls to have been determined by the Lords of the Privy Council, upon an appeal to the King in Council from the foreign plantations:-
1st. That if there be a new and uninhabited country found out by English subjects, as the law is the birthright of every subject, so wherever they go, they carry their law with them, and therefore such new found country is to be governed by the laws of England, though after such country is inhabiter by the English, Acts of Parliament made in England, without naming the foreign plantations, will not bind them; for which reason it has been determined that the Statute of Frauds and Perjuries, which requires three witnesses, and that these should subscribe in the testator's presence in the case of a devise of a. land, does not bind Barbadoes: but that
2ndly. Where the King of England conquers a country, it is a different consideration; for there the conqueror, by saving the lives of the people conquered, gains a right and- property in such people, in consequence of which he may impose upon them what law be pleases: but
3dly. Until such laws given by the conquering prince, the laws and customs of the conquered country shall hold place, unless where these are contrary to our religion, or enact any thing that is malum in se, or are silent; for in all such cases the laws of the conquering Country shall prevail. 2 Peere Williams, 75. et Vid. Collett v Lord Keith, 2 East 260. Blankard v Galdy, 4 Mod. 225. SC.2 Salk. 411. Attorney-General v. Stewart, 2 Meriv. 159.
7 Coke Report 18 b, 77 ER p399
subdito dato, of a donaison: for that is the right name, so called, because his legitimation is given unto him; for if you derive denizen from deins nee, one born within the obedience or ligeance of the King, then such a one should be all one with a naturalborn subject. And it appeareth before out of the laws of King W. 1. of what antiquity the making of denizens by the King of England hath been.
3. There be regularly (unless it be in special cases) three incidents to a subject born. 1. That the parents be under the actual obedience of the King. 2. That the place of his birth be within the King's dominion. And, 3. The time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom that was born under the ligeance of a King of another kingdom, albeit afterwards one kingdom descend to the King of the other. For the first, it is termed actual obedience, because, though the King f' England hath absolute right to other kingdoms or dominions, as France, Aquitai, Normandy, &c. yet seeing the King is not in actual possession thereof, none born there since the Crown of England was out of actual possession thereof, are subjects to the King of England. 2. The place is observable, but so as many times ligeance or obedience without any place within the King's dominions may make a subject born, but any place within the King's dominions may make a subject born, but any place within the King's dominions without obedience can never produce a natural subject. And therefore if any of the King's ambassadors in foreign nations, have children there of their wives, being English women, by the common laws of England they are natural-born subjects, and yet they are born out-of the King's dominions. But if enemies should come into any of the King's dominions, and surprise any castle or fort, and [7-Coke-18 b] possess the same by hostility, and have issue there, that issue is no subject to the King, though he be born within his dominions, for that he was not born under the King's ligeance or obedience. But the time of his (a) birth is of the essence of a subject born; for he cannot be a subject to the King of England, unless at the time of his birth he was under the ligeance and obedience of the King. And that is the reason that antenati in Scotland (for that at the time of their birth they were under the ligeance and obedience, of another King) are aliens born, in respect of the time of their birth.
4. It followeth next in course to set down the reasons wherefore an alien born is not capable of inheritance within England, and that he is not for three reasons. 1. The secrets of the realm might thereby be discovered. 2. The revenues of the realm (the sinews of war, and ornament of peace,) should be taken and enjoyed by strangers born. 3. It should tend to the destruction of the realm. Which three reasons do appear in the statute of 2 H. 5. cap and 4 H. 5. cap ultimo. But it may be demanded, wherein doth that destruction consist; whereunto it is answered; first, it tends to destruction tempore belli; for then strangers might fortify themselves in the heart of the realm, and be ready to set fire on the commonwealth, as was excellently shadowed by the Trojan horse in Virgil's Second Book of his Aneid, where a very few men in the heart of the city did more mischief in a few hours, than ten thousand men without the walls in ten years. Secondly tempore pacis for so might many aliens born get a great part of the inheritance and freehold of the realm, whereof there should follow a failure of justice (the supporter of the commonwealth) for that aliens born cannot be returned of juries (a) for the trial of issues between the King and the subject, or between subject and subject. And for this purpose, and many other, (see a charter worthy of observation) of King Ed. 3. written to Pope Clement, datum apud Westm 26. die Sept. ann regni nostri Franciæ 4 regni vero Angliæ 17.
5. Now are we to come to the examples, resolutions, and judgments of former times; wherein two things are to be observed, first, how many cases in our books do over-rule this case in question for ubi (b) eadem ratio ibi idem jus, et de similibus idem est judicium. 2. That for want of an express text of law in terminis terminantibus and of examples and precedents in like cases (as was objected by some) we are driven to determine the question by natural reason: for it was said, si cesset lex scripta id custodiri [7-Coke-19 a] oportet quod moribus et consuetudine inductum est, et si qua in re hoc de cerit, recur-
7 Coke Report 20 a, 77 ER p400
rendum est ad rationem. But that receiveth a threefold answer: - First, That there is no such rule in the common or civil law: but the true rule of the civil law is, lex scripta si cesser, id custodiri oporlet quod moribus et consuetudine inductum est, et si qua in re hoc defecerit, tune id quod proximum et consequens ei est, et si id non appareat, tunc jus quo urbs Romana utitur, servari oportel.' Secondly, If the said imaginative rule be rightly and legally understood, it may stand for truth: for if you intend ratio for the legal and profound reason of such as by diligent study and long experience and observation are so learned in the laws of this realm, as out of the reason of the same they can rule the case in question, in that sense the said rule is true: but if it be intended of the reason of the wisest man that professeth not the laws of England, then (I say) the rule is absurd and dangerous; for (a) cuilibet in suit, arte perito est credendum et quod quisque (b) norit in hoc se exerceat. Et omnes, prudentes illa admittere solent uce, probantur iis qui in suæ parle bene versati sunt, Arist. 1. Topicorum cap. 6. Thirdly there be multitudes of examples, precedents, judgments, and resolutions in the laws of England, the true and unstrained reason whereof doth decide this question; for example the dukedom of Acquitain, whereof Gascoign was parcel, and the earldom of Poitiers, came to King Henry the Second by the marriage of Eleanor, daughter and heir of William Duke of Acquitain, and Earl of Poitiers, which descended to Rich. I. Hen. 3. Ed. I. Ed. 2. Ed. 3. &c. In 27 lib. (c) Ass pl. 48. in one case there appear two judgments and one resolution to be given by the Judges of both Benches in this case following. The possessions of the Prior of Chelsey in the time of war were seised into the Kin-'s hands, for that the prior was an alien born: the prior by petition of right sued to the King, and the effect of his petition was, that before he came Prior of Chelsey, he was Prior of Andover, and whilst he was prior there, his possessions of that priory were likewise seised for the same cause supposing that he was an alien born; whereupon he sued a former petition, and alleged that he was born in Gascoign within the ligeance of the King: which point being put in issue and found by jury to be true, it was adjudged that he should have restitution of his possessions generally without mentioning of advowsons. After which restitution, one of the [7-Coke-19 b] said advowsons became void, the prior presented, against whom the King brought a quare impedit, wherein the King was barred; and NI this was contained in the latter petition. And the book saith, that the Earl of Arundel, and Sir Guy of B. came into the Court of Common Pleas, and demanded the opinion of the Judges of that Court concerning the said case, who resolved, that upon the matter aforesaid the King had no right to seize. In which case, amongst many notable points, this one appeareth to be adjudged and resolved, that a man born in Gascoin under the King's ligeance, was no alien born, as to lands land possessions within the realm of England, and yet England and Gascoin were several and distinct countries. 2. Inherited by several and distinct titles. 3. Governed by several and distinct municipal laws, as it appeareth amongst the records in the Tower, Rot. Vasc. 10. Ed. 1. Nam. 7. 4. Out of the extent of the Great Seal of England, and the jurisdiction of the Chancery of England. 5. The like objection might be made for default of trial, as hath been made against the plaintiff And where it was said that Gascoin was no kingdom, and therefore it was not to be matched to the case in hand, it was answered, that this difference was without a diversity as to the case in question; for if the plea in the case at the Bar be good, then without question the prior had been an alien; for it might have been said, (as it is in the case at the Bar) that he was born extra ligeantiam Regis regni sui Angliæ, et infra ligeantiam dominii sui Vasconice, and that they were several dominions, and governed by several laws: but then such a conceit was not hatched, that a King having several dominions should have several ligeances of his subjects. Secondly, it was answered, that Gascoin was sometime a kingdom, and likewise Millan, Burgundy, Bavaria, Bretagne, and others were, and now are become, dukedoms. Castile, Arragon, Portugal, Barcelona, &c. were sometime earldoms, afterwards dukedoms, and now kingdoms. Bohemia and Poland were
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sometime dukedoms, and now kingdoms; and (omitting many other, and coming nearer home,) Ireland was before 32 H. 8. a lordship; and now is a kingdom, and yet the King of England was as absolute a prince and sovereign when he was Lord of Ireland, as now when he is styled King of the same. 10 Ed. 3. 41. an exchange was made between an Englishman and a Gascoin, of lands in England and in Gascoin; ergo, the Gascoin was no alien, for then had he not been capable of lands in England, 1 H. 4. 1. the King brought a writ of right of ward against one Sybil, whose husband was exiled into Gascoin; [7-Coke-20 a] ergo Gascoin is no parcel or member of England, for exilium est patrice privatio, natalis soli, mutation legum nativarum amissio; 4 E. 3. 10 b. the King directed his writ out of Chancery under the Great Seal of England, to the Mayor of (a) Bordeaux, (a city in Gascoin) then being under the King's obedience, to certify, whether one that was outlawed here in England, was at that time in the King's service under him in obsequio Regis: whereby it, appeareth that the King's writ did run into Gascoin, for it is the trial that the common law hath appointed in that case. But as to other cases, it is to be understood that there be two kinds of writs brevia mandatoriae tremedialia, etbrevia mandatoria et non remedialia: brevia mandatoria et remedialia, as writs of right, of formedon, &c. of debt, trespass, &c. and shortly all writs real and personal, whereby the party wronged is to recover somewhat, and to be remedied for that wrong was offered unto him, are returnable or determinable in some Court of Justice within England, and to be served and executed by the sheriffs, or other ministers of justice within England, and these cannot by any means extend into any other kingdom, country, or nation, though that it be under the King's actual ligeance and obedience. But the other kind of writs that are mandatory, and not remedial, are not tied to any place, but do follow subjection and ligeance, in what country or nation soever the subject is, as the King's writ to command any of his subjects residing in any foreign country to return into any of the King's own dominions, sub fide et ligeantia quibus nobis tenemini. And so are the aforesaid mandatory writs cited out of the Register of protection for safety of body and goods, and requiring that if any injury be offered, that the same be redressed according to the laws and customs of that place. Vide le Reg fol. 26. Stamford Prærog cap. 12. fol. 39. saith, that men born in Gascoin are inheritable to lands in England. This doth also appear by divers Acts of Parliament: for by the whole Parliament, 39 E. 3. cap. 16. it is agreed, that the Gascoins are of the ligeance and subjection of the King. Vide 42 Ed. 3. cap. 2. and 28 H. 6. cap. 5. &c.
Guienne was another part of Aquitain, and came by the same title; and those of Guienne were by Act of Parliament in 13 H. 4. not imprinted, ex Rot. Parliament eodem anno, adjudged and declared to be no aliens, but able to possess and purchase, &c. lands within this realm. And so doth Stamford take the law. Prærog c. 12. f. 39. [7-Coke-20 b] And thus much of the dukedom of Aquitain, which (together with the earldom of Poitiers) came to King Henry the Second (as hath been said) by marriage, and continued in the actual possession of the Kings of England by ten descents, viz. from the first year of King Henry the Second, unto the two and thirtieth year of King Henry the Sixth, which was upon the very point of three hundred years, within which duchy there were (as some write) four archbishopries, 24 bishoprics, 15 earldoms, 202 baronies, and above a thousand captainships and bailliwicks; and in all this long time neither book case nor record can be found wherein any plea was offered to disable any of them that were born there, by foreign birth, but the contrary hereof directly appeareth by the said book case of (a) 27 lib. Ass. 48.
The Kings of England had sometimes Normandy under actual ligeance and obedience. The question is then, whether men born in Normandy, after one King had them both, were inheritable to lands in England; and it is evident by our books that they were: for so it appeareth by the declaratory Act of 17 Ed. 2. de Prærog. Reg e. 12. that they were inheritable to, and capable of lands in England; for te purview of that statute is quod Rex habebit escaelas de terris Normannorum, &c. Ergo Normans might have lands in England, et hoc similiter intelligendum est, si aliqua hæreditas descendat alicui nato in partibus transmarinis, &c. Whereby it appeareth,
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that they were capable of lands within England by descent. And that this Act of 17 E. 2. was but a declaration of the common law, it appeareth both by Bracton who (as it hath been said) wrote in the reign of Henry the Third, lib. 3. tract. 2. c. 1. f. 116. and by Britton who wrote in 5 E. T. c. 18. that all such lands as any Norman had either by descent or purchase, escheated to the King for their treason, in revolting from their natural liege lord and sovereign. And therefore Stamford Prærog cap. 12. fol. 39. expounding the said statute of 17 E. 2. cap. 12. concludeth, that by that chapter it should appear (as, if he had said, it is apparent without question) that all men born in Normandy, Gascoin, Guienne, Anjou, and Britain, (whilst they were under actual disobedience) were inheritable within this realm as well as Englishmen. And the reason thereof was, for that the were one ligeance due to one sovereign * And so much (Omitting nine other authorities) for Normandy: saving I cannot let pass the isles of Guernsey and Jersey, parts and parcels of the dukedom of Normandy, yet remaining under the actual ligeance and obedience of the King, I think no man will doubt, but those that are [7-Coke-21 a] born in Guernsey and Jersey (though those isles are no parcel of the realm of England, but several dominions enjoyed by several titles, governed by several laws) are inheritable, and capable of any lands within the realm of England, 1 E. 3. fol. 7. Commission to determine the title of lands within the said isles, according to the laws of the isles; and Mich. 41 E. 3. in the Treasury, Quia negotium, præd' nec aliqua alia negotia de insul‚, præd' emergentia non debent terminari nisi secundum legem insulæ præd',&c. And the Register fol. 22. Rex fidelibus suis de Jernsey et Gersey. King William the First brought this dukedom of Normandy with him, which by five descents continued under the actual obedience of the Kings of England; and in or about the 6th year of King John, the Crown of England lost the actual possession thereof, until King Henry the Fifth recovered it again, and left it to King Henry the Sixth, who lost it in the 28th of his reign; wherein were (as some write) one archbishopric and six bishoprics, and an hundred strong towns and fortresses, besides those that were wasted in war. Maud the Empress, the only daughter and heir of Henry the First, took to her second husband Jeffrey Plantagenet, Earl of Anjou, Tourain, and Mayne, who had issue King H. 2. to whom the said earldom by just title descended, who, and the Kings that succeeded him, stiled themselves by the name of comes Andeguv', &c. until King E.3. became King of all France; and such as were born within that earldom, so long as it was under the actual obedience of the King of England, were no aliens, but natural-born subjects; and never any offer made, that we can find, to disable them for foreign birth. But leave we Normandy and Anjou, and speak we of the little, but yet ancient and absolute kingdom of the Isle of Man *, as it appeareth by diverse ancient and authentic records; as taking one for many. Artold King of Man sued to King H. 3. to come into England to confer with him, and to perform certain things which were due to King H. 3. Thereupon King H. 3. 21 Decemb ann regn sui 34, at Winchester, by his letters patent' gave licence to Artold King of Man, as followeth: Rex omnibus salutem. Sciatis, quod licentiam, dedimus, &c. Artoldo Regi de Man veniendo ad nos in, Angl', ad loquend' nobise' et ad faciend' nobis quod facere debet; et ideo vobis mandamus quod ei Regi in veniendo ad nos iu Angl', vel ibi morando, vel inde redeundo nullum, faciat' ant fieri permittatis damnum, injur', molestiam, aut gravamen, vel etiam hominib' suis quos secure ducet et si aliquid eis forisfact' fuerit, id eis sine dilat faciat' emendari. - In cujus, &c. duratur' usque ad fast' S. Mich. Wherein [7-Coke-21 b] two things are to be observed; 1. That seeing that Artold King of Man sued for a licence in this case to the King, it proveth him an absolute Kizig'; for that a monarch or an absolute prince cannot come into England without licence of the King, but any subject being in league, may come into this realm without licence. 2. That the King in his licence doth style him by the name of a king. It was resolved in 11 H. 8. that where an office was found after the decease of Thomas Earl of Derby, and that he died seised,
7 Coke Report 22 a, 77 ER p403
&c. of the Isle of Man, that the said office was utterly void , for that the Isle of Man, Normandy, Gascoign, &c. were out of the power of the Chancery, and governed by several laws; and yet none will doubt, but those that are born within that isle are capable and inheritable of lands within the realm of England. Wales* was some time a kingdom, as it appeareth by 19 H. 6. fol. 6. and by the Act of Parliament of 2 H. 5. c. 6. but whilst it was a kingdom, the same was holden, and within the fee, of the King of England; and this appeareth by our books, Fleta, lib. I. cap. 16. 1 E. 3. 14. 8 E. 3. 59. 13 E. 3. tit. Jurisdict'. 10 H. 4. 6. Plow. Com. 368. And in this respect in divers ancient charters, Kings of old time styled themselves in several manners, as King Edgar, Britanniæ Ba(mXcy Etheldredus, totius Albio,'Dei providenti‚ Imperator; -Edredus Magn' Britann' Monarcha, Which among many other of like nature I have seen. But by the statute of 12 E. 1. Wales was united and incorporated into England, and parcel of England in possession; and therefore it is ruled in 7 H. 4. f. 13. a. that no protection doth lie quia moratur in Wallia, because Wales is within the realm of England . And where it is recited in the Act of 27 H. 8. that Wales was ever parcel of the realm of England, it is true in this sense, viz. that before 12 E. 1. it was parcel in tenure, and since it is parcel of the body of the realm. And whosoever is born within the fee of the King of England, though it be in another kingdom, is a natural-born subject, and capable and inheritable of lands in England, as it appeareth in Plow. Com. 126. And therefore those that were born in Wales before 12 E. 1. whilst it was only holden of England, were capable and inheritable of lands in England.
Now come we to France and the members thereof, as Callice, Guynes, Tournay, &c. which descended to King Edward the Third, as son and heir to Isabel, daughter and heir to Philip le Beau, King of France. Certain it is, whilst [7-Coke-22 a] King Henry the Sixth had both England and the heart and greatest part of France under his actual ligeance and obedience (for he was crowned King of France in Paris), that they that were then born in those parts of France, that were under actual ligeance and obedience, were no aliens, but capable of and inheritable to lands in England. And that is proved by the writs in the register, fol. 26. cited before. But in the inrolment of letters patent of denization in the Exchequer, int' originalia, ann. 11 H. 6. with the Lord Treasurer's remembrancer was strongly urged and objected; for (it was said) thereby it appeareth, that King H. 6. in anno " of his reign, did make denizen one Reynel born in France; whereunto it was, answered, that it is proved by the said letters patent, that he was born in France before King Henry the Sixth had the actual possession of the Crown of France, so as he was antenatus; and this appeareth by the said letters patent whereby the King granteth, that Magister Johannes Beynel serviens noster, &c. infra regnum nostrum Franc' oriundus pro termino vilæ suæ sit ligeus noster, et eodem modo teneatur sicut verus et fidelis noster infra regnum Angl' oriundus, ac quod ipse terras infra regnum nostrum. Angl' seu alia dominia nostra per quirere possit et valeat. Now if that Reynel had been born since Henry the Sixth had the quiet possession of France (the King being crowned King of France about one year before), of necessity be must be an infant of very tender age, and then the King would never have called him his servant, nor made the patent (as thereby may be collected) for his service, nor have called him by the name of Magister Johannes Beynel: but without question he was antenatus, born before the King had the actual and real possession of that Crown.
Calais is a part of the kingdom of France, and never was parcel of the kingdom of England, and the Kings of England enjoyed Calais * in and from the reign of King Edward the Third, until the loss thereof in Queen Mary's time, by the same title that they had to France. And it is evident by our books, that those that were born in Calais were capable and inheritable to lands in England, 42 E. 3. c. 10. Vide 21 H. 7.
7 Coke Report 22 b, 77 ER p404
33. b. 19 H. 6. 2 E. 4. 1. a. b. 39 H. 6. 39 a. 21 E. 4. 18 a. 28 H. 6. 3 b. By all which it is manifest, that Calais being parcel of France was under the actual obedience and commandment of the King, by consequent those that were born there were natural-born subjects, and no aliens. Calais from the reign of King Edward 3. until the fifth year of Queen Mary, remained under the actual obedience, of the King of England. [7-Coke-22 b] Guines also, another part of France, was under the like obedience to-King Henry the Sixth, as appeareth by 31 H. 6. fol. 4. And Tournay was under the obedience of Henry the Eighth, as it appeareth by 5 El. Dyer, fol. 224; for there it is resolved, that a bastard born at Tournay, whilst it was under the obedience of Henry the Eighth, was a natural subject, as an issue born within this realm by aliens. If then those that were born at Tournay, Calais, &c. whilst they were under the obedience of the King, were natural subjects, and no aliens, it followeth, that when the Kingdom of France (whereof those were parcels) was under the King's obedience, that those that were then born there were natural subjects and no aliens.
Next followeth Ireland *, which originally came to the Kings of England by Conquest: but who was the first conqueror thereof, hath been a question. I have seen a charter made by King Edgar in these words: -Ego Edgarus Anglorum Bao-O'EVg, omniumque insularum oceani, quæ Britanniam circumjacent, Imperator et Dominus, ratias ago ipsi Deo omnipotenti Regi meo, qui meum imperium ampliavit et exaltavit super regnum patrum meorum, &c. mihi Concessit jpropilia divinitas, cum Anglorum imperio omnia regna insularum oceani, et cum suis ferocissimis Regibus usque Norvegiam, maximam que partem Hibern', cum sud noblissim‚ civitate de Dublina, Anglorum regno subjugare, qua propter et ego Christi gloriam, et laudem in regno meo exaltare, et ejus servitium amplificare devotus disposui, &c. Yet for that it was wholly conquered in the reign of Henry the Second the honour of the conquest of Ireland is attributed to him, and his style was, Rex Angl' Dominus Hibern' Dux Normann' Dux Acquittan' et Comes Andegay', King of England, Lord of Ireland, Duke of Normandy, Duke of Aquitain, and Earl of Anjou*. That Ireland is a dominion separate and divided from England, it is evident from our books, 20 H. 6. 8. Sir John Pilkington's case. 32 H. 6. 25. 20 Eliz. Dyer 360. Plow. Com. 360. And 2 R. 3. 12 a. Hibernia habet Parliamentum, et faciunt leges, et nostra statuta, non ligant eos, quia non miltunt milites ad Parliamentum (which is to be understood, unless they be especially named) sed personæ eorum sunt subjecti Regis, sicut inhabitantes in Calesi‚, Gasconi‚, et Guyan. Wherein it is to be observed, that the Irishman (as to subjection) is compared to men born in Calais, Gascoin, and Guienne. Concerning their laws ex rotulis potentium de anno 11 Regis H. 3. there is a charter which that King made, beginning in these words, Rex, &c. Baronibus, militibus, et omnibus libera tenentibus L. salutem, satis ut credimus [7-Coke-23 a] vestra andivit discretion quod quando bono memoriæ (a) Johannes quondam Rex Anglj' pater noster venit in Hiberniam, ipse duxit secum, viros discretos et legis perilos, quorum communi consilio et ad instantiam Hibernensium statuil et precepit leges Anglicanas in Hibern' ita quod leges easdem, in scripturas redactas reliquit sub sigalo, suo ad Scaccarium Dublin'. So as now the laws of England became the proper laws of Ireland; and therefore, because they have Parliaments holden there whereat they have made divers particular laws concerning that dominion, as it appeareth in 20 H. 6. S. & 20 El. (b) Dyer 360. and for that they retain unto this day divers of their ancient customs, the book in 20 H. 6. 8. holdeth, that Ireland is governed by laws and customs, separate and diverse from the laws of England. A voyage royal may be made into Ireland. Vide (c) 11 H. 4. 7. a. & 7 (d) E. 4. 27. a. which proveth it a distinct dominion. And in anno 33 Reg. El. it was resolved by all the Judges of England in the case of (e) O' Burke an Irishman, who
7 Coke Report 23 b, 77 ER p405
had committed high treason in Ireland, that be, by the statute of 23 H. 8. c. 33. might be indicted, arraigned, and tried for the same in England, according to the purview of that statute: the words of which statute be, "That all treasons, &c. committed by any (f) person out of the realm of England shall be from henceforth enquired of, &c." and they all resolved (as afterwards they did also in Sir John Perrot's case) that Ireland was out of the realm of England, and that treasons committed there were to be tried within England by that statute. In the statute of 4 Hen. 7. cap. 24. of (g) Fines, provision is made for them that be out of this land; and it is holden in Plow. Com in Stowel's case 375, that he that is in Ireland is out of this land, and consequently within that proviso. Might not then the like plea be devised as well against any person born in Ireland, as (this is against Calvin that is a postnatus) in Scotland? For the Irishman is born extra ligeantiam Regis regni sui Angl', &c. which be verba operative in the plea: but all men know that they are natural-born subjects, and capable of and inheritable to lands in England. Lastly, to conclude this part with (h) Scotland itself: in ancient time part of (i) Scotland (besides Berwick) was within the power and ligeance of the King of England, as appeareth by our books (k) 42 E. 3. 2. b. The Lord Beaumont's case, 11 E. 3. c. 2, &c. and by precedents hereafter mentioned; and that part (though it were under the King of England's ligeance and obedience) yet was it governed by the laws of Scotland. [7-Coke-23 b] Ex rotulis Scotiæ, anno 11 Ed. 3. amongst the records in the Tower of London. Rex, &c. Constituimus Bich. Talebot Justiciarium, nostrum vilice Berwici super Twedam, ac omnium aliarum, terrarum nostrorum i n vartibus Scot', ad faciend' omnia et singula quæ ad officium justiciarii pertinent, secundum lege met consuetudinem regni Scot'. And after anno 26 E. 3. ex eodem rot. Rex Henrico de Percey, Ricarda de Nevil, &c. Volumus et vobis et alteri vestrum tenore præsentium Committimus et mandamus, quod homines nostri de Scot' ad pacem et obedientiam nostram existentes, legibus, libertatibus, et liberis consuetudinibus, quibus ipsi et antecessores sui tempore celebris memoriæ, Alexandri quondam Regis' Scot' rationabiliter usi fuerunt uti ut gaudere deberent, Prout in quibusdam indentures, de plenius dicitur contineri. And there is a writ in the Register 295 a. Dedimus potestatem recipendi ad fidem et pacem nostram homines de Galloway. Now the case in (a) 42 Ed. 3. 2. b. (which was within sixteen years of the said grant, concerning the laws in 26 E. 3.) ruleth it, that so many as were born in that part of Scotland that was under the ligeance of the King were no aliens, but inheritable to lands in England; yet was that part of Scotland in another kingdom, governed by several laws, &c. And if they were natural subjects in that case, when the King of England had but part of Scotland, what reason should there be why those that are born there, when the King hath all Scotland, should not be natural subjects, and no aliens? So, likewise, (b) Berwick is no part of England, nor governed by the laws of England; and yet they that have been born there, since they were under the obedience of on; King, are natural-born subjects, and no aliens, as it appeareth in 15 R. 2. cap. 7, &c. Vide (c) 19 H. 6. 35. b. & 39 H. 6. 39. a. And yet in all these cases and examples, if this new devised plea had been sufficient, they should have been all aliens, against so many judgments, resolutions, authorities, and judicial precedents in all successions of ages. There were sometimes in England, whilst the beptarchy lasted, seven several crowned Kings of seven several and distinct kingdoms; but in the end the West Saxons Lot the monarchy, and all the other Kings melted (as it were) the crowns to make one imperial diadem for the King of the West Saxons over all. Now when the whole was under the actual and real ligeance and obedience of one King, were any that were born in any of those several and distinct kingdoms aliens one to another? Certainly they being born under the obedience of one King
7 Coke Report 24 a, 77 ER p406
and sovereign were all natural-born subjects, and capable of and inheritable unto any lands in any of the said kingdoms.
[7-Coke-24 a] In the holy history reported by St. Luke, ex dictamine Spiritus Sancti, cap. 21 et 22 Act. Apostolorum, it is certain that St. Paul was a Jew, born in Tarsus, a famous city of Cilicia; for it appeareth in the said 21st chapter, ver. 39. by his own words, Ego homo sum quidem Judæus a Tarso Cilicice, non ignotæ civitatis municeps. And in the 22d. chapter, ver. 3. Ego sum vir Judæus natus Tarso, Cilicice, &c; and then made that excellent sermon there recorded, which, when the Jews heard, the text saith, ver. 22. Levaverunt vocem suam dicentes, Tolle de terra hujusmodi, non enim fas est eum vivere; vociferantibus autem eis et projicientibus vestimenta sua, et pulverum jactantibus in aerem, Claudius Lysias, the popular Tribune, to please this turbulent and profane multitude (though it were utterly against justice and common reason) the text saith Jussit Tribunus induci eum in castra; 2. flagellis ecedi, and 3. torqueri eum (quid ita?) ut sciret propter quam causain sic acclamarent; and when they had bound Paul with cords, ready to execute the Tribune's unjust commandment, the blessed Apostle (to avoid unlawful and sharp punishment) took hold of the law of a heathen emperor, and said to the Centurion standing by him, Si hominem Romanum et indemnatum licet vobis flagellare ?) Which when the Centurion heard, he went to the Tribune and said, Quid adurus es? Hic enim homo cives Romanus est. Then came the Tribune to Paul, and said unto him, Dic milli si tu Romanus es? At ille dixit, etiam. And the Tribune answered, Ego multa summa civitatem hanc consequutus sum. But Paul, not meaning to conceal the dignity of his birthright, said, Ego autem et natus sum: as if he should have said to the Tribune, you have your freedom by purchase of money, and I (by a more noble means) by birthright and inheritance. Protinus ergo (saith the text) decesserunt ab illo qui illum torturi erant, Tribunus quoque timuit postquam rescivit, quia civis Romanus essel, et quia alligasset eum. So as hereby it is manifest that Paul was a Jew, born at Tarsus in Cilicia, in Asia Minor; and yet being born under the obedience of the Roman Emperor, he was by birth a citizen of Rome in Italy in Europe, that is, capable of and inheritable to all privileges and immunities of that city. But such a plea as is now imagined against Calvin might have made St. Paul an alien to Rome. For if the Emperor of Rome had several ligeances for every several kingdom and country under his obedience, then might it have been said against St. Paul, that he was extra [7-Coke-24 b] ligeantiam Imperatoris regni sui Italice, et infra' ligeantiam Imperatoris regni sui Cilicice, &c. But as St. Paul was Judæus patri‚, et Romanus privilegio, Judæus natione et Romanus jure nationum; so may Calvin say, that he is Scotus patria, et Anglus privilegio Scotus natione, et Anglus jure nationum.
Samaria in Syria was the chief city of the ten tribes - but it being usurped by the King of Syria, and the Jews taken prisoners, and carried away in captivity, was after inhabited by the Panyms. Now albeit Samaria of right belonged to Jewry, yet because the people of Samaria were not under actual obedience, by the judgment of the Chief Justice of the whole world they were adjudged alienigen 6e, aliens: for in the Evangelist St. Luke, c. 17. when Christ had cleansed the ten lepers, unus autem ex illis (saith the text) ut vidit quia mundatus esset, regressus est cum magn‚ voce magnificans Deum, et cecidit in faciem ante pedes ejus gratias agens, et hic erat Samaritanus. Et Jesus respondens dixit, Nonne decem mundati sunt,etnovem ubi sunt? Non est inventus qui rediret et daret gloriam Deo nisi hic alienigena. So as, by his judgment, this Samaritan was alienigena, a stranger born; because he had the place, but wanted obedience. Et si desit obedientia, non adjuvet locus. And this agreeth with the divine, who saith, Si locus salvare poluisset, Satan de cælo pro sua inobedientia non cecidisset. Adam in paradiso non cecidisset, Lot in monte, non cecidisset, sed potius in Sodom.
6. Now resteth the sixth part of this division, that is to say, six demonstrative matrons or conclusions, drawn plainly and expressly from the premises.
1. Every one that is an alien by birth, may be, or might have been, an enemy by accident: but Calvin could never at any time be an enemy by any accident; llrA he cannot be an alien by birth. Vide 33 H. 6. f. 1. a. b. the difference between an alien enemy, and a subject traitor. Hostes sunt qui nobis, vel quibus nos helium decernimus, cæteri proditores, prædones, &c. The major is apparent, and is proved by that which hath been said. Et Vide Magna Charta, cap. 30. 19 E. 4. 6. 9 E. 3. c. 1. 27 E. 3.c. 2. 4 H. 5. c. 7. 14 E. 3. stat. 2. c. 2. &c.
7 Coke Report 25 a, 77 ER p407
2. Whosoever are born under one natural ligeance and obedience due by the law of nature to one sovereign are natural-born subjects: but Calvin was born under one natural ligeance and obedience, due by the law of nature to one sovereign; ergo, he is a natural-born subject.
[7-Coke-25 a] 3. Whosoever is born within the King's power or protection, is no alien: but Calvin was born under the King's power and protection; ergo he is no alien.
4. Every stranger born must at his birth be either amicus or inimicus: but Calvin at his birth could neither be amicus nor inimicus; ei-go he is no stranger born. Inimicus he cannot be, because he is subditus: for that cause also he cannot be amicus; neither now can Scotia be said to be solum amici, as hath been said.
5. Whatsoever is due by the law or constitution of man, may be altered: but natural ligeance or obedience of the subject to the sovereign cannot be altered; ergo natural ligeance or obedience to the sovereign is not due by the law or constitution of man. Again, whatsoever is due by the law of nature, cannot be altered: but ligeance and obedience of the subject to the sovereign is due by the law of nature; ergo it cannot be altered. It hath been proved before that ligeance or obedience of the inferior to the superior, of the subject to the sovereign, was due by the law of nature many thousand years before any law of man was made; which ligeance or obedience (being the only mark to distinguish a subject from an alien) could not be altered; therefore it remaineth still due by the law of nature. For leges naturæ perfectissimæ sunt et immutabiles, humani vero juris conditio semper in infinitum decurrit, et nihil est in eo quod per moriuntur perpetuo stare possit. Leges humance nascuntur, vivunt, moriuntur.
Lastly, whosoever at his birth cannot be an alien to the King of England, cannot be an alien to any of his subjects of England: but the plaintiff at his birth could be no alien to the King of England; ergo the plaintiff cannot be an alien to any of the subjects of England. The major and minor both be two positiones perspicue veræ. For as to the major it is to be observed, that whosoever is an alien born, is so accounted in law, in respect of the King: and that appeareth first, by the pleading so often before remembered, that he must be extra ligeantiam, Regis, without any mention making of the subject. 2. When an alien born purchaseth any lands, the King only shall have them, though they be holden of a subject, in which case the subject loseth his seigniory. And as it is said in our books an alien may purchase ad præficuum Regis; but the act of law giveth the alien nothing: and therefore if a woman alien marrieth a subject, she shall not be endowed (L), neither shall an alien be tenant by the curtesy. Vide 3 H. 6. 55 a. 4 H. 3. 179. 3. The subject shall plead that the defendant is an [7-Coke-25 b] alien born, for the benefit of the King, that he upon office found may seize; and 2. that the tenant may yield to the King the land, and not to the alien, because the King hath best right thereunto. 4. Leagues between our sovereign and others are the only means to make aliens friends, et fædera percutere, to make leagues, only and wholly pertaineth to the King. 5. Wars do make aliens enemies, and bellum indicere belongeth only and wholly to the King, and not to the subject, as appeareth in 19 Ed. 4. 4. fol. 6 b 6. The King only without the subject may make not only letters of safe conduct, but letters patent of denization, to whom, and how many he will, and enable them at his pleasure to sue any of his subjects in any action whatsoever real or personal, which the King could not do without the subject, if the subject had any interest given unto him by the law in any thing concerning an alien born. Nay, the law is more precise herein than in a number of other cases to of higher nature: for the King cannot grant to any other to make of strangers born, denizens; it is by the law itself so inseparably and individually annexed to his Royal person (as the book is in 20 H. 7. fol. 8). For the law esteemeth it a point of high prerogative, jus majestatis, et inter insignia summæ potestatis to make aliens born subjects of the realm, and capable of the lands and inheritances of England in such sort as any natural born subject 1s. And therefore by the statute of 27 H. 8. c. 24. many of the most ancient prerogatives and Royal flowers of the Crown, as authority to pardon treason, murther, manslaughter, and felony, power to make justices in eyre, Justices of Assise, justices of peace, and gaol delivery, and such like, having been severed and divided
7 Coke Report 26 a, 77 ER p408
from the Crown, were again re-united to the same: but authority to make letters of denization was never mentioned therein to be resumed, for that never any claimed the same by any pretext whatsoever, being a matter of so high a point of prerogative. So as the pleading against an alien, the purchase by any alien, leagues and wars between aliens, denizations, and safe conducts of aliens, have aspect only and wholly unto the King. It followeth therefore, that no man can be alien to the subject that is not alien to the King. Non potest esse alienigena corpori, quinon est capiti, non gregi qui non est Regi.
The authorities of law cited in this case for maintenance of the judgment, 4 H. 3. tit. Dower. Bracton, lib. 5. fol. 427. Fleta, lib. 6. cap. 47. In temi. E. 1. Hingham's Report. 17 Ed. 2. cap. 12. 11 Ed. 3. [7-Coke-26 a] cap. 2. 14 Ed. 3 Statut de Francia. 42 Ed. 3. fol. 2. 42 Ed. 3. cap. 10. 22 Lib. Ass. 25. 13 Rich. 2. cap. 2. 15 Rich. 2. cap. 7. 11 Hen. 4. fol. 26. 14 Hen. 4. fol. 19. 13 H. 4. Statutum de Guyan. 29 Hen. 6. tit. Estoppel 48. 28 H. 6. cap. 5. 32 Hen. 6. fol. 23. 32 Hen. 6. fol. 26. Littl. temps Ed. 4. lib. 2. cap. Villenage. 15 Ed. 4. fol. 15. 19 Ed. 4. 6. 22 E. d. 4. cap. 8. 2 Rich. 3. 2. and 12. 6 Hen. 8. fol. 2. Dyer. 14 H. 8. cap. 2. No manner of stranger born out of the King's obeisance, 22 H. 8. c. 8. Every person born out of the realm of England, out of the King's obeisance, 32 H. 8. c. 16. 25, H. 8. 0. 15, &c. 4 Ed. 6. Plowd. Comment fol. 2. Fogassa's case. 2 and 3 Ph. and Mar. Dyer 145. Shirley's case. 5 El. Dyer 224. 13 El. c. 7. de Bankrupts. All commissions ancient and late, for the finding of offices, to entitle the Kingto the lands of aliens born; also all letters patent of denization of ancient and later times do prove, that he is no alien that is born under the King's obedience.
Now we are come to consider of legal inconveniences: and first of such as have been objected against the plaintiff; an, secondly, of such as should follow, if it had been adjudged against the plaintiff.
Of such inconveniences as were objected against the plaintiff, there remain only four to be answered; for all the rest are clearly and fully satisfied before: 1. That if postnati should be inheritable to our laws and inheritances, it were reason they should be bound by our laws; but postnati are not bound by our statute or common laws; for they having (as it was objected) never so much freehold or inheritance, cannot be returned of juries, nor subject to scot or lot, nor chargeable to subsidies or quinzimes, nor bound by any Act of Parliament made in England. 2. Whether one be born within the kingdom of Scotland or no, is not triable in England, for that it is a thing done out of this realm, and no jury can be returned for the trial of any such issue: and what, inconvenience should thereof follow, if such pleas that wanted trial should be allowed (for then all aliens might imagine the like plea) they that objected it, left it to the consideration of others. 3. It was objected, that this innovation was so dangerous, that the certain event thereof no man could foresee, and therefore some thought it fit, that things should stand and continue as they had been in former time for fear of the worst. 4. If postnati were by law legitimated in England, it was objected what inconvenience and confusion should [7-Coke-26 b] follow if (for the punishment of us all) the King's Royal issue should fail, &c. whereby those kingdoms might again be divided. All the other arguments and objections that have been made have been answered before, and need not to be repeated again.
1. To the first it was resolved, that the cause of this doubt was the mistaking of the law: for if a postnatus do purchase any lands in England, he shall be subject in respect thereof, not only to the laws of this realm, but also to all services and contributions, and to the payment of subsidies, taxes, and public charges, as any denizen or Englishman shall be; nay, if he dwell in England, the King may command him, by a writ of ne exeat regnum, that he depart not out of England. But if a postnatus dwell in Scotland, and have lands in England, he shall be chargeable for the same to all intents and purposes as if an Englishman were owner thereof, and dwelt in Scotland, Ireland, in the Isles of Man, Guernsey, or Jersey, or elsewhere. The same law is of an Irishman that dwells in Ireland, and hath land in England. But if postnati, or Irishmen, men of the Isles of Man, Guernsey, Jersey, &c. have lands within England, and dwell here, they shall be subject to all services and public charges within this realm, as any Englishman shall be. So as to services and charges, the postnati and Englishmen born are all in one predicament.
7 Coke Report 27 a, 77 ER p409
2. Concerning the trial, a threefold answer was thereunto made and resolved: 1. That the like objection might be made against Irishmen, Gascoins, Normans, men of the Isles of Man, Guernsey, and Jersey, of Berwick, &c. all which appear by the rule of our books to be natural born subjects; and yet no jury can come out of any of those countries and places, for trial of their births there. 2. If the demandant or plaintiff in any action concerning lands be born in Ireland, Guernsey, Jersey, &c. out of the realm of England, if the tenant or defendant plead, that he was born out of the ligeance of the King, &c. the demandant or plaintiff may reply, that he was born under the ligeance of the King at such place within England; and upon the evidence the place shall not be material, but only the issue shall be, whether the demandant or plaintiff were born under the ligeance of the King in any of his kingdoms or dominions whatsoever: and in that case the jury, (if they will) may find the special matter, viz. the place where he was born, and leave it to the judgment of the Court: and that jurors may take knowledge of things done [7-Coke-27 a] out of the realm in this and like cases, Vide 7 H. 7. 8 b. 20 Ed. 3. Averment 34. 5 Ric. 2. tit. Trial 54. 15 Ed. 4. 15. 32 H. 6. 25. Fitz. Nat. Brey. 196. Vide Dowdale's case, in the Sixth Part of my Reports, fol. 47. and there divers other judgments be vouched (M). 3 Brown, in anno 32 H. 6. reporteth a judgment then lately given, that where the defendant pleaded that the plaintiff was a Scot, born at St. John's town in Scotland, out of the ligeance of the King; whereupon they were at issue, and that issue was tried where the writ was brought, and that appeareth also by 27 Ass pl. 24. that the jury did find the prior to be born in Gascoin. (for so much is necessarily proved by the words trove fuit.) And 20 Ed. 3. tit. Averment 34. in a juris utrum, the death of one of the vouchees was alleged at such a castle in Britain, and this was inquired of by the jury; and it is holden in 5 Rich. 2. tit. Trial 54. that if a man be adhering to the enemies of the King in France, his land is forfeitable, and his adherency shall be tried where the land is, as oftentimes hath been done, as there it is said by Belknap: and Fitz. Nat. Br. 196 in a mortdanc. if the ancestor died in intinere peregrinationis sum vers. Terram sanctam, the jury shall enquire of it: but in the case at Bar, seeing the defendant hath pleaded the truth of the case, and the plaintiff hath not denied it, but demurred upon the same, and thereby confessed all matters of fact, the Court now ought to judge upon the special matter, even as if a jury upon an issue joined in England, as it is aforesaid, had found the special matter, and left it to the Court.
3. To the third it was answered and resolved, that this judgment was rather a renovation of the judgments and censures of the reverend Judges and sages of the law in so many ages past, than any innovation, as appeareth by the book and bookcases before recited: neither have Judges power to judge according to that which they think to be fit, but that which out of the laws they know to be right and consonant to law. Judex bonus nihil ex arbitrio suo faciat, nec proposito domestics voluntatis, sed juxta leges et jura pronuntiat. And as for timores, fears grounded upon no just cause, qui non cadunt in constantem virum, vani timores æstimandi sunt.
4. And as to the fourth, it is less than a dream of a shadow, or a shadow of a dream: for it hath been often said, natural legitimation respecteth actual obedience to the sovereign at the time of the birth; for as the antenati remain aliens as to the Crown of England, because they were born when there were several Kings of the several kingdoms, and the [7-Coke-27 b] uniting of the kingdoms by descent subsequent cannot make him a subject to that Crown to which he was alien at the time of his birth: so albeit the kingdoms (which Almighty God of his infinite goodness and mercy divert) should by descent be divided, and governed by several Kings; yet it was resolved, that all those that were born under one natural obedience while the realms were united under one sovereign, should remain natural born subjects, and no aliens; for that naturalization due and vested by birthright, cannot by any separation of the Crowns afterward be taken away: nor he that was by judgment of law a natural subject at the time of his birth, become an alien by such a matter ex post facto. And in that case, upon such an accident, our postnatus may be ad fidem utriusque Regis, as Bracton saith in the afore remembered place, fol. 427. Sicut Anglicus non
7 Coke Report 28 a, 77 ER p410
auditur inplacitando aliquem de Terris et tenement' in Franci‚ ita nec debet Francigena et alienigena, qui fuerit ad fidem Regis Franciæ, audiri placitando in Anglid: sed tamen sunt aliqui Francigenæ in Franci‚ qui sunt adfidem utriusque; et semperfuerunt ante Normaniam deperditam, et post, et qui placitant hic et ibi, ed, ratione qua sunt ad fidem utriusque, sicut fuit Willielmus comes mareschallus et manens Angli‚, et M. de Gynes manens in Franci‚, et alii plures. Concerning the reason drawn from the (a) etymologies, it made against them, for that by their own derivation alienæ gentis and alienæ ligeantice is all one: but arguments drawn from etymologies are too weak and too light for Judges to build their judgments upon: for sæpenumero ubi proprietas (b) verborum altenditur, sensus veritatis dimittitur: and yet when they agree with the judgment of law, Judges may use them for ornaments. But on the other side, some inconveniences should follow, if the plea against the plaintiff should be allowed: for first it maketh ligeance local: Videlicet, ligeantia Regis regni sib Scotiæ, and ligeantia Regis regni sui Angliæ: whereupon should follow, first, that faith or ligeance, which is universal, should be confined within local limits and bounds: secondly, that the subjects should not be bound to serve the King in peace or in war out of those limits; thirdly, it should illegitimate many, and some of noble blood, which were born in Gascoin, Guienne, Normandy, Calais, Tournay, France, and divers other of His Majesty's dominions, whilst the same were in actual [7-Coke-28 a] obedience, and in Berwick, Ireland, Guernsey, and Jersey, if this plea should have been admitted for good. And, thirdly, this strange and new devised plea inclineth too much to countenance that dangerous and desperate error of the Spencers, touched before, to receive any allowance within Westminster-hall.
In the proceeding of this case, these things were observed, and so did the Chief Justice of the Common Pleas publicly deliver in the end of his argument in the Exchequer Chamber. First, that no commandment or messuage by word or writing was sent or delivered from any whatsoever to any of the Judges, to cause them to incline to any opinion in this case; which I remember, for that it is honourable for the State, and consonant to the laws and statutes of this realm. Secondly, there was observed, what a concurrence of judgments, resolutions, and rules, there be in our books in all ages concerning this case, as if they had been prepared for the deciding of the question of this point: and that (which never fell out in any doubtful case) no one opinion in all our books is against this judgment. Thirdly, that the five Judges of the King's Bench, who adjourned this case into the Exchequer Chamber, rather adjourned it for weight than difficulty, for all they in their arguments una v. oce concurred with the judgment. Fourthly, that never any case was adjudged in the Exchequer Chamber with greater concordance and less variety of opinions, the Lord Chancellor and twelve of the Judges concurring in one opinion. Fifthly, that there was not in any remembrance so honourable, great, and intelligent an auditory at the bearing of the arguments of any Exchequer Chamber case, as was at this case now adjudged. Sixthly, it appeareth, that jurisprudentia legis communis Angliæ est scientia socialis et copiosa: sociable, in that it agreeth with the principles and rules of other excellent sciences, divine and human: copious, for that quamvis ad ea quæ frequentius accidunt jura adaptantur, yet in a case so rare, and of such a quality, that loss is the assured end of the practice of it (for no alien can purchase lands, but he loseth them; and ipso facto the King is entitled thereunto, in respect whereof a man would think few men would attempt it) there should be such a multitude and farrago of authorities in all successions of ages, in our books and bookcases, for the deciding of a point of so rare an accident. Et sic determinate et terminala est ista quæstio.
[7-Coke-28 b] The Judgment in the said Case, as entered on Record, &c.
"Whereupon all and singular the premises being seen, and by the Court of the Lord the now Kino, here diligently inspected and examined, and mature deliberation being had thereof; for that it appears to the Court of the Lord the now King here, that the aforesaid plea of the said Richard Smith and Nicholas Smith above pleaded,
7 Coke Report 1 a, 77 ER p411
is not sufficient in law to bar the said Robert Calvin from having an answer to his aforesaid writ: therefore it is considered by the Court of the lord the now King here, that the aforesaid Richard Smith and Nicholas Smith to the writ of the said Robert do further answer."
[See now the statutes for the union of both kingdoms.]-Note to former edition.
Bulwer's Case 7 Coke Report 1a, 77 ER 411
Report Date: 1584
[7-Coke-1 a] BULWER'S CASE.
Mich. 26 & 29 Eliz.
[See British South Africa Company v. Companhia de Mo?ambique  AC 631.]
B. brought an action on the case in the county of N. for maliciously causing him to be outlawed in London upon process sued out of a Court at Westminster, and causing him to be imprisoned in N. upon a capias utlagatum directed to the sheriff of that county, but issued at Westminster; and upon demurrer it was adjudged that the action was well brought in the county of N.
In all cases where the action is founded on two things done in several counties, and both are material or traversable, and the one without the other does not maintain the action, the plaintiff may bring his action in which county he will. SC.4 Leon. 52.
Bulwer of Dalling in Norfolk, brought an action on his case against George Smith, and declared that one Henry Heydon, Esq. did recover 201. &c. in the Common Pleas against the plaintiff, and after judgment, and before execution, the said Henry Heydon died, and afterwards the said defendant knowing thereof, at W. in the county of Norfolk to outlaw the plaintiff upon the said judgment in the name of Henry Heydon malitios et deceptiv? machinatus est, in performance of which the defendant, Trin. 23 Eliz at Westminster in Middlesex, purchased a writ of capias ad satisfaciendum, in the name of the said Henry, upon the said judgment, directed to the Sheriffs of London, who by the procurement of the defendant returned non est inventus; whereupon the defendant purchased a writ of exigent in the name of the said Henry, which writ the said sheriff by the procurement of the said defendant returned, that at several Hustings the said now plaintiff had been demanded, et ad Hustingum ad communibus placitis tent' in GuildhalI, civitatis præd' die Lun' prox post Festum Apostol. Simonis et Jud', anno supradict' præd' the now plaintiff, quint' exactus fuit, &c. et ideo ipse the plaintiff utlagalus fuit: and afterwards Pasch. 24 El. the defendant purchased out of the said Common Pleas a writ of capias utlagatum, in the name of the said Henry, directed to the Sheriff of Norfolk, to arrest his body, &c. which writ did mention that the said now plaintiff was outlawed die Lun' prox' ante Festum Apostolorum Simonis et Jud', &c. And the said writ the defendant at W. aforesaid in the said county of Norfolk, did deliver to one Robert Godfrey then deputy to the sheriff of the said county, to the intent that he should execute the said writ, the which Robert by force of the said writ took, and arrested the said now plaintiff, and did imprison him by the space of two months, until the now plaintiff purchased his charter of pardon, by reason of which outlawry he forfeited all his goods and chattels: and upon this declaration the defendant did demur in law; and the principal cause of the demurrer was because this action, by the pretence of the defendant, [7-Coke-1 b] ought to have been brought in Middlesex where the wrong began, for there (as it was said) the defendant took out as well the cap ad satisfac as the exigent and the cap' utlagalum also. And although the cap utlagal' was executed in Norfolk, yet the action ought to be brought where the wrong began; as in the case of conspiracy in 42 E. 3. 14 a. and divers other cases also were put; also by the outlawry which was in London all his goods and chattels were forfeited where it is more reason to bring the action than in Norfolk. But it was answered and resolved, that the (a) action was well brought in Norfolk; for it
7 Coke Report 2 a, 77 ER p412
is a maxim in law, quod ibi semper debet fieri triatio, ubi jurator meliorem possunt habere notitiam. And in Norfolk was the visible wrong, for there the plaintiff was imprisoned for the space of two months, and therefore it is great reason that the plaintiff may have his action there; and it doth not appear by the record what goods or chattels the plaintiff had at the time of the outlawry, but for the aggravating of the damages, the plaintiff may give in evidence what goods and chattels he hath forfeited by the outlawry. And this action doth consist upon two principal parts, the one, matter of record, and the other matter in fact; and none of the matters of record, but is mixed with matter of fact; and no matter of fact, but is mixed with matter of record: for the writs and the outlawry are matters of record, but mixed with matters in fact, sc. purchasing, and prosecution of them by the defendant in the name of Henry Heydon, which are matters in fact; also the imprisonment is a matter in fact, but it is mixed with the writ of cap' utlagat', which is of record, sc. if the plaintiff was arrested by virtue thereof. And matters in fact are triable only by the country and not matters of record; and when one matter in One county is depending upon the matter in the other county, there the plaintiff may (b) choose in which county he will bring his action (unless the defendant upon the general issue pleaded, should be prejudiced in his trial, as he would not be in this case) as if two (c) conspire to indict a man in one county, and-they by their malicious prosecution make the execution of their conspiracy in another county, and there cause the party to be indicted, the plaintiff may have his action of conspiracy in which county he will, for they put their conspiracy in one county in execution in the other, and the matter of record of the indictment is mixed with the matter of fact. But if they conspire in one county, by force of which conspiracy without any other act by them, he is indicted in another county, there the writ ought to be brought in the county where the conspiracy was, for the defendants have done nothing in the county where the indictment was, nor were parties nor privies to the finding of the indictment, but only by the conspiracy in the other county. And that appears in 14 E. 4. 3 b. and so 6e books in (d) 42 E. 3. 14 a. 20 (e) H. 6. 1 0 a. b. F. N B. (f) 116 b. and other books are well reconciled. If a (g) menace be made in Essex by which my tenants depart in London, I shall have my action in Essex, and not [7-Coke-2 a] in London, for in such case I have done nothing in London, 9 H. 6. 42 b. In all cases where the action is founded upon two (a) things done in several counties, and both are material or traversable, and the one without the other doth not maintain the action, there the plaintiff may choose to bring his action in which of the counties he will (A), as it is if a servant be (b) retained in one county and departs in another, and therewith agree 41 E. 3. 1 b. 34 H. 6. 18 a. 38 H. 6. 15 b. 15 E. 4. 6. 20 H. 6. 11. 29 H. Dyer 38. 20 E. 3. 25. &c. So if a man be arrested in execution
7 Coke Report 2 b, 77 ER p413
in one county, and be (c) escapes into another county, the plaintiff may choose to bring his action in which of the counties he will, and therewith agree 15 E. 4. 3 a. b. 30 H. 6. 6 a. b. 11 El. Dy. 27 8. So in a writ of (d) annuity founded on a prescription against a man of religion, or body corporate, where the church or house is in one county, and the seisin is alleged in another county, the plaintiff may choose in which county he will bring his action. 48 E. 3. 26. a. b. 4 H. 4. 1. 4 H. 6. 5 b. 10 H. 6. 19 a. b. 39 H. 6. 15 b. 2 E. 4. 28 b. 4 E. 4. 26 a. &c. F. N. B. 152 e. Otherwise if the annuity be granted in one county to be paid in another, the action lies where the grant was, and so is 8 H. 6. 23 b. So if a man cites one in one county to appear before (e) the Admiral in another county, for a thing done in the body of the county, by force of which the party appears, he may have his action in the one County or the other at his pleasure, 5 Ma. Dyer 159 b. 42 E. 3. 14 a. 44 E. 3. 31 b. 32 a. 46 E. 3. 8 b. 3 H. 4. 3 a. 38 H. 6. 14 b. 14 E. 4. 3 a. b. The same law of the Spiritual Court. So if the defendant casts a protection in one county, and remains in another county, he may bring his action in which of the counties he pleases. 20 H. 6. 10 a. b. So if a man strikes a person in one county, (f) and he dies in another county, the appeal of murder may be brought in the one or the other county, and yet the defendant did nothing in the county where the party died, but the (g) death which ensued on the stroke makes the felony. 18 E. 3. 32. 9 H. 6. 63. 45 Ass pl. 9. 43 Ed. 3. 3 (h) H. 7. 12 a. 4 H. 7. 18. 6 H. 7. 10. 11 H. 4. 93. If a man commits (i) a robbery in one county, and carries the goods into divers counties, the party robbed may have an appeal of felony in which of the counties he will, but not an (k) appeal (B) of robbery but only in the county where the robbery was done; for it is felony in all the counties where the goods are carried (for felony doth not divest property) but it is not robbery (which ought to be done to the person of a man) but only in the county where the robbery was done. 4 H. 7. 5 b. 9 H. 8. 39, 40. Dyer, 11 H. 4. 93. 3 E. 3. tit. Ass. 446. In debt if a man declares on a lease (l) for years in one county of land in another county, he ought to bring his action where the lease was made, and not where the land lies; for the action is grounded upon the contract made by the lease (c). 38 H. 6. 15. acc. per Cur. 8 H. 6. 23. Acc. Vide 4 H. 6. 18. 14 E. 4. 3. 29 H. 8. 40 Dyer. So the law well explained in a case in which are [7-Coke-2 b] varieties of opinions in our books. But if a lease be made in one county, and the land lies in another, the action of (a) waste shall be brought where the land lies, and not where the lease was made, although the term be passed; for the land and damages, or damages only for the waste which is local, shall be recovered. 14 E. 4. acc. If a
7 Coke Report 3 a, 77 ER p414
man promises to (b) cure one- in one county, and misdoeth in another county, the plaintiff has his election to bring his action in which of the counties he will, and therewith agrees 11 R. 2. Action sur le Case 37. If a man doth not repair a wall in Essex, which he ought to repair, whereby my land in Middlesex is drowned, I may bring my action in Essex, for there is the &fault, as it is adjudged in 7 H. 4. 8; or f may Turing in Middlesex, for there I have the damage, as it is proved by 11 R. 2. Action sur le Case 36. So if one forge a (c) deed in one county and proclaims it in another, the plaintiff may choose in which county he will bring his action. 29H.8.38. 22H.6.5a, b. But when the defendant upon pleading not guilty shall be prejudiced in his trial, there the plaintiff hath not election to bring his action in which county he will, (d) 29 H. 8. Dyer 38. where Gawyn sued an appeal of robbery in the county of Wilts where the robbery was done, against Hussey and Gibbs, as accessories, and declared that the principals named in the writ, and who were attainted, did the robbery in the county of Wilts, and that the defendant feloniously at London, before the robbery done, did abet them to do it; and it was adjudged, that although the plaintiff can have but (e) One appeal against the principals and accessories, and against the principal of necessity it ought to be brought in the county of Wilts, yet because those of the county of Wilts upon not guilty pleaded, and London cannot join), and those in Wilts cannot inquire of a thing in London, although it be transitory (for in case of felony which concerns the life of a man, every act shall be tried in the proper county where the act was in truth done) the appeal against the said accessories did abate, 43 E. 3. 17, 18, 19. And it is to be observed, that in all real actions, if any issue rises on the land, or in any action in which the possession of the land or (f) local thiD01, or which rises on the land b reason thereof, is to be recovered, all these shall be brought in the county where the land lies; as in a writ of right of ward of land, or writ of intrusion of ward, these shall be brought in the county where the land lies; although the refusal were, or the seigniory be in another county, 29 E. 3. 3. 38 H. 6. 1, b. 22 R. 2. Bre. 937. Acc. So in a writ of right of ward for the body only, it shall be brought in the county where the land is, for that is in the right and savours of the land, 21 E. 3. 42. 30 E. - 3. 25. 9 E. 3. 12, 13. 10 E. 3. 7. ace and the reason of 40 E. 3A. agrees with it, although the judgment there is mentioned to be given contrary. But a writ of ravishment of ward shall be brought where the ravishment was, and not where the land is, or where the body is carried: for it [7-Coke-3 a] is founded on the ravishment. 38 H. 6. 14 b. 22 R. 2. Brey. 937. and 12 E. Dy. 289. And a writ of forfeiture of marriage shall be brought where the land is, for the writ doth suppose an intrusion into the land; and therewith agrees the said book in 22 R. 2. and 38 H. 6. 15 a. And a writ de valore (a) maritagii shall be brought where the land is; for the lord need not make any (b) tender: but if he makes a tender, and the other refuses, and he alleges it in the county, then the writ de valore maritagii lies in the county where the refusal was, 22 R. 2. Brey. 937. 38 H. 6. 15 a. Writs of qui imp and qu incumbravit (c) shall be always brought where the church is; for by the one the plaintiff shall recover his presentment, and by the other the bishop's clerk shall be removed, and the plaintiff's clerk admitted, 38 H. 6. 14 and 15 accord. Vide 4 Ed. 3. 9. Otherwise it is in the King's case. But a qu. (d) non admisit shall be brought in the county where the refusal was, and not in the county where the church is, because damages are only to be recovered, and the refusal is the beginning of the wrong, and the ground of the action; and so is the book adjudged in 38 H. 6. 14 and 15. F. N. B. 47. f. And a qu. imp of a prebend shall be brought in the county where the cathedral church is,
7 Coke Report 3 b, 77 ER p415
and not in the county where the body of the prebend is; for the plaintiffs clerk is to be inducted and installed in the cathedral church, a-rid therewith agrees 21 E. 3. 5. and 2 El. Dy. 194. (e) but 43 E. 3. 34. and 15 Ed. 3. Br. 325. seem contrary. 24 E. 3. 37. And so the law is well explained in a case in which there were different opinions in our books. And if a man at the common law had a rent issuing out of two counties, he could not have had an (f) assise in one county, because every part of the land in the two counties is charged with the rent, and all should be put in view, as it is agreed in 18 E. 2. Ass. 380. 18 E. 3. 32. 10 E. 3. 21. 10 Ass p. 4. and 18 Ass. P. l. But if a man makes a lease pur auter vie of land in two counties, rendering rent, and the rent is behind, and cest' que vie dies, the lessor shall have ail action of debt in which of the counties he will, for now it is changed into debt; and in that case no land shall be put in view, but the person of the debtor shall be only charged by the common law. So if a rent he issuing Out of the land of B. in two counties, and the rent is behind, and he who has the rent dies, his executors may have ail action of debt against B. in which of the counties they will, on the statute of 32 H. 8. cap. 37; for although he ought to bring his action in one of the counties, yet at the common law the person of the defendant is chargeable in the action of debt, and not the land. And before the statute of (g) 6 R. 2. c. 2. a writ of debt and account against a receiver, and such actions might be brought in such county where the party might he best brought in to answer, and the plaintiff might have declared on a contract or receipt, &c. in any other county, quod debitum et contractus, &c. sunt (h) nullius loci. See for that 2 Ed. 3. 44. 6 Ed. 3. 266. and 275. 8 E. 3. 380. [7-Coke-3 b] 10 E. 3. 7. 19 E. 3. Jurisd. 29. 29 E. 3. 26. 33 E. 2. tit. Jurisd. 57. 40 E. 3. 7. 3 H. 6. 30. 15 E. 4. 1,9. 21 E. 4. 88. As in 22 H. 6. 9 and 10 a. b. where the King granted the office of surveyor of packing of all manner of cloths within London and the liberties thereof, which are in two counties, and the assise was brought in Middlesex, and there Newton and Paston said, that there is a great difference between an assise of rent and that assise; for where a rent-charge is issuing out of lands in divers counties, every parcel is chargeable with the whole, and all the ter-tenants ought to be named; but here the person is charged and not the land, and yet the office-for which the assise was brought did extend in two counties. And if a fine or feoffment be made of lands in two counties, with warranty, the warrants charke may be brought in any of the counties, 29 E. 3. 3 a. b. It is purviewed by the statute of 7 R. 2. c. 10. that an assise of nov' disseis. shall for the future be granted and made of a rent behind, due for tenement in divers counties to be held in confin' comitat': and thereupon the assise shall be taken and tried by the people of the same county, in the same manner and form as it is done of a common of pasture in one county appendant to tenements in another county: for at the common law, if a man had bad common in land in one county appendant or appurtenant to land in another county, he should have two several writs to the sheriffs of the several counties. Or if the land to which, &c. lay in one county, and the land in which, lay in several counties, there he should have a writ of assise to the sheriff of the county where the land in which, &c. lay, and several writs to the sheriff of the county where the land in which, &c. lay; and all that appears in the regist and F. N. B. 180 a. And the same law is, when a nuisance is done in one county, and the land to which, &c. is in another county, as it appears also in the register, and F. N. B. 183 k. (D). So that if a man hath a rent in three or four
7 Coke Report 4 a, 77 ER p416
counties, it seemeth that he who is disseised may have several assises to be brought in confin' comitatuum; for the letter of the statute of 7 R. 2. is general of rent due for tenements in several counties. And although it hath a reference to the case of common of pasture, &c. yet forasmuch as in the case of common of pasture, if the land in which, &c. lay in several counties, and the land to which, &c. lay in another county, there should be as many writs as there are several counties; thence it follows, that such remedy he shall have who hath a rent issuing out of lands in many counties. Also the case of common is put exempli grati‚ et simililudinari, et null' simile quatuor pedib' currit; and it is not necessary that a simile should agree in all points. And the statute of 7 T.R. 2. was made to satisfy a doubt which was conceived before: for thereby it is enacted, that writs in such case shall be made in the Chancery without any manner of contradiction, as well of disseisins before made, as after to be made. And the doubt was on the statute of Magna Charta, cap. 2. Recognitiones de novo, disseisin 6 [7-Coke-4 a] et de morte antecessor' non caviantur nisi in suis comitatu. And some held, that the same was not observed when the Justices of Assise did sit in confinio comitatuum; and, namely, when there are twenty counties mesne between the two counties, as it is in the book in 5 E. 4. 2 b. But that doubt also might be conceived on the said assise of noy disseisin of common when the land in which, &c. is in one county, and the land to which, &c. in another county (which case without question is not restrained by the said statute. For assise of noy disseisin of common of pasture lay at the common law, as by the statute of Westminster 2. c. 29. appears), 1 0 E. 3. 2 1. and 10 Ass p. 4. And if need were, the statute of Westminster 2. c. 28. doth extend to the said case of rent, by which it is provided, quod quotiescunque de cætero, evenerit in cancellaria quod in uno casu resent' breve, et in consimili casu, cadente sub eod jure, et simili inidgente remedio non resent' concordant clerici in canceller' in brevi faciendo, &c. vel ad proxim' Parliament' de consensu arisperitor` fiat breve. And the statute concludes with the effect of a maxim of the common law, quod Cur' dom' Regis non debet deficere conquerentibus in justitia, perquirenda. 38 E. 3. 33 a. where the case was, that the King brought a writ of right of the fourth part of the tithes and offerings of the church of St. Dunstan in the West, in Fleet-street, in the suburbs of London, against the Prior of St. John's of Jerusalem in England, there Candish took exception to the writ, because although this writ was given by the statute of Westminster 2. c. 5. toward the end, and artic. Clerc. 2. which statute gave, that he shall have a writ ad petendum advocation' decimar petitar', &c. And this writ is brought of the fourth part of tithes and offerings, which is not warranted by the statute judgment of the writ, forasmuch as the statutes do not give any writ of the fourth part of tithes. Thorpe, the Chief Justice, who gave the rule, said, although the statute do not limit by express words, but of tithes, yet those in the Chancery may make: a writ in consim' casu, and the writ is good enough; wherefore answer. And In 18 E. 2. Br. 287. a writ of entry was brought in the county of Suffolk, the tenant pleaded a release of the ancestor of the plaintiff with warranty, which was denied, and found for the plaintiff in London, by a jury of Friday-street, &c. for which the demandant did recover; and the tenant brought an attaint, and there exception was taken, because in the writ is not comprised to attach the party, judgment, &c. And for the plaintiff it was said, that the writ was granted to the Sheriff of London to summon the 24, and attach the 12, and another writ to the Sheriff of Suffolk to attach the party where the land was, and both the writs were read in Court. To which it was said, that there was no special law, that did maintain that writ which is out of the common course. Berisford the
7 Coke Report 4 b, 77 ER p417
Chief Justice, who gave the rule, said, in a now case, a new remedy, &c. wherefore answer. And therefore, if there be lord and tenant, and the tenancy doth extend into two counties, in this case if the rents and services he behind, the lord may have several writs of customs and services, for every county one writ, and shall have [7-Coke-4 b] them returnable at one day in the Common Pleas, and then to count upon them as his case is, quia aliter Curia (a) Regis deficeret conquerentibus in justitia perquirenda, and therewith agree Fitz. Nai.'Brey. 151. b. and 30 Ed. 1. Droit pl. ultim 6. And that is a good example, pro quolibet consimili casu, &c. simili indigente remedio. Vide 12 Ed. 1. tit. Attaint 71. a very good case; and the reason and rule of the book in 21 Ed. 3. 18. is to be observed, where the case was, that a fine was levied of a manor in one county, and the tenancy lay in another county; now where the per quæ servitia should be brought was the question; and it was adjudged that it was well brought in the county where the manor was. And there Stone gave the rule of the Court in these words: he can have no other writ, for his writ must be according to the fine, and brought in the county where the note is levied. Vide 11 Rich. 2. tit. Action sur le Case 36. 7 H. 4. 8. Vide 26 Hen. 6. tit. Covenant 9. 41 Ass pl. 12. 9 Hen. 5, 6. 22 Hen. 6. 5. And in the principal case where it was objected, that the said capias utlagatum was erroneous; for it was proximum ante festum, &c. where it should be, a post festum, &c. the Court took no regard to it; for the error in the writ which the defendant himself hath wrongfully brought, shall not (b) advantage himself; but in regard he was imprisoned and troubled thereby, that gave the plaintiff cause of action. Also the Court did not regard the clause, that the defendant at W. in the county of Norfolk, &c. malitios? et deceptiv? machinats fuit, &c. for that is so secret and so uncertain, that it cannot be tried.
Corbet's Case 7 Coke Report 5a, 77 ER 417
Report Date: 1585
[7-Coke-5 a] SIR MILES CORBET'S CASE.
Hil. 27 Eliz.
In the Exchequer.
Resolved 1. Where one has purchased divers parcels of land in D. together, in which the inhabitants have used to have shack and long since has inclosed it; and notwithstanding always after harvest the inhabitants have had shack there, by passing into it by bars or gates with their cattle, then it shall be taken as common apendant or appurtenant, and the owner cannot exclude them of common: but if in the town of S. the custom and usage hath been, that every owner in the same town hath inclosed their own lands from time to time, and so hath held it in severalty, any owner may inclose, and hold in severalty, and exclude himself to have shack with the others.
2. If the commons of the town of A. and of the town of B. are adjoining, and one ought to have common with the other, by reason of vicinage and in A. there are fifty acres, and in B. one hundred acres of common, the inhabitants of A. cannot put more cattle into their common of fifty acres than it will feed; nec e converso.
Between Sir Edw. Clere and Miles Corbet, then esquire, now a knight, it was resolved in a case concerning the parsonage of Marham, in the county of Norfolk, that where in the county of Norfolk there is a special manor 'of common called shack, which is to be taken in arable land, after harvest until the land be sowed again, &c. and it began in ancient time in this manner: the fields of arable land in this country consist of the lands of many and divers several persons lying intermixed in many and several small parcels, so that it is not possible that any of them, without trespass to the others, can feed their cattle in their own land; and therefore every one doth put in their cattle to feed promiscu in the open field. These words, " To go shack," is as
7 Coke Report 5 b, 77 ER p418
much as to say to go at liberty, or to go at large: in which the policy of old times is to be observed, that the severance of fields in such small parcels to so many several persons was to avoid inclosure, and to maintain tillage. But it is to be observed, that the said common, called shack, which in the beginning was but in the nature of a feeding because of vicinage for avoiding of suit, within some places of that country, is by custom altered into the nature of a common appendant or appurtenant, and in some places it retains its original nature; and the rule to know it is the custom and usage of every several town or place, for consuetudo loci est observanda. And therefore if in the town of D. (exempli gratia) one who hath purchased divers parcels together, in which the inhabitants have used to have shack, and long time since has inclosed it; and notwithstanding always after harvest the inhabitants have had shack there, by passing into it by bars or gates with their cattle, there it shall be taken as common appendant or appurtenant, and the owner cannot exclude them of common there, notwithstanding he will not common with them, but hold his own lands so inclosed in severalty; and that is proved by the usage; for notwithstanding the ancient inclosure, the inhabitants have always had common there. But if in the town of -S. the custom and usage hath been, that every Owner in the same town hath inclosed [7-Coke-5 b] their own lands from time to time, and so hath held it in severalty, there this usage proves, that it was but in the nature of shack originally for the cause of vicinage, and so it continues; and therefore there he may inclose (A) and hold in severalty, and exclude himself to have shack with the others. And although in the said case of the town of D. the usage hath been, that notwithstanding the inclosure by divers inhabitants of late times the other inhabitants have had shack there; yet if a man hath an ancient close of ancient time taken out of the field, and be and all those whose estate he hath have held it always in severalty, he may well keep it inclosed: for as to such parcel so anciently inclosed, the shack there doth retain its ancient and original nature. And he who claims shack there cannot prescribe to have common in it. Nota, a good resolution which stands with reason; and no inconvenience, innovation, or cause of suits or trouble can thereupon arise, but quiet and repose will be thereby in many cases established, which I thought fit to be reported, because it is a general case in the said country; and at first the Court was altogether ignorant of the nature of this common called shack. It was also resolved at the same time, that if the commons of the town of A. and of the town of B. are adjoining, and that one ought to have common with the other by reason of vicinage, and in the town of A. there are fifty acres of common, and in the town of B. there are an hundred acres of common; in that case the inhabitants of the town of A. cannot put more cattle into their common of fifty acres than it will feed, without any respect to the common within the town of B. nec e converso; for the original cause of this common for cause of vicinage was not for profit, but for preventing of suits in a Champaign country; for the reciprocal escapes of the one town into the other: and therefore if the common of the town of A. will feed fifty beasts, and of the town of, B. an hundred beasts, it is no prejudice to the one or the other, if the cattle of one town escape and feed in the common of the other town reciprocally; for if all the cattle feed promiscu together through the whole, it will be no prejudice to one or the other.
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[Note. The like intercommoning is in Lincolnshire, Yorkshire and other counties; and in Mich term, 18 Car. 2. B. R. Twisden, Justice, said, that this common called sh‚ck was but Common per cause de vicinage.]-Note to former edition.
[7-Coke-6 a] CASES UPON THE STAT. OF 13 ED. 1. OF WINCHESTER.
Westm. 1 c. 9. 2 Inst. 172. 3 Inst. 117, 118. 2 Saund. 423. 5 Co. 67 b.
The purview of the said Act is, "That from henceforth every county be so well kept, that immediately after robberies and felonies committed, fresh suit be made from town to town, and from county to county, &c." And after the felony or robbery is committed, the county shall have no longer space than 40 days, within which 40 (a) days it shall behove them to agree for the robbery or trespass, or else that they answer for the bodies of the offenders, &c. Upon which words divers resolutions have been made.