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Part Seven of the Reports - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. I 
The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 1.
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Part Seven of the Reports
The Seventh Part of Coke’s Reports was published in 1608. It was originally entitled La sept part des reports Sr. Edw. Coke chivaler, chiefe Justice del Common Banke: des divers resolutions & judgements done sur solemne arguments & avec grand deliberation & conference des tresreverend judges & sages de la ley, de cases en ley queux ne fueront unques resolve ou adiudges par deuant: et les raisons & causes des dits resolutions & judgements. Publies en le size an del treshaut & tresillustre Jaques roy d’Engl. Fr. & Irel. & de Escoce le 42. Le fountaine de tout Pietie & Justice, & la vie de la Ley. In English, The Seventh Part of the Reports of Sir Edward Coke, Knight, Lord Chief Justice of Common Pleas, of divers Resolutions and Judgments given upon solemn Arguments, and with greatdeliberation 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 thereof. Published in the Sixth year of the most high and Most Illustrious James, King of England, France, and Ireland, and of Scotland the 42., the Fountain of all Justice, and the life of the Law. Coke maintained that he had not intended to publish another part of the Reports so quickly, but the significance of the first case in Part Seven, Calvin’s Case, convinced him to bring it to print. Calvin’s Case was of great importance to the constitution of Great Britain in the relationship among its constituent nations and with her new colonies. The case was also important in determining the role of the courts, the Parliament, and the King and in determining the status of the subject to the King. Besides Calvin’s Case, this part of the Reports covers a wide range of mainly more recent cases, of local enforcement of criminal laws, property, appointment to offices, uses (a predecessor to the modern trust), wild animals, estates, inheritance, procedure, the powers of the Queen, and the effects of divorce.
Epigrams from the Title Page:
Frequentibus Argumentis & Collationibus latens veritas aperitur, cum sub eisdem verbis saepe lateat multiplex intellectus.
Veritas saepius agitata magis splendescit in lucem.1
(Preface) Deo, Patriae, Tibi.2
I had no sooner (good Reader) made an end of the Sixth Part of my Commentaries or Reports, but the greatest Case that ever was argued in the Hall of Westminster began to come in question, and afterwards was Argued by all the Judges of England. This great Case (for that Memory is infida & labilis3 ) whiles the Matter was recent and fresh in mind, and almost yet sounding in the Ear, I set down in writing, out of my short Observations which I had taken of the effect of every Argument, (as my manner is, and ever hath been) a summary memorial of the principal authorities and reasons of the Resolutions of that Case, for mine own private solace and instruction. I never thought to have published the same, for that it was not like to give any direction in like Cases that might happen, (the chiefest end of publishing Reports) it is of his own nature so like the Phoenix, and so singular and rare in accident, as the union of two famous and ancient Kingdoms in ligeance and obedience under one great and mighty Monarch. Now when I had ended it for my private, I was by commandment to begin again (a matter of no small labour and difficulty) for the publick. For certainly, that succinct method and collection that will serve for the private memorial or repertory, especially of him that knew and heard all, will nothing become a publick Report for the present and all posterity, or be sufficient to instruct those Readers, who of themselves know nothing, but must be instructed by the Report only in the right rule and reason of the case in question. And as unda gignit undam,4 so commonly one labour cometh not alone: This brought on another with it; for seeing this Case was of so rare a quality, I thought good as well for thine instruction and use (good Reader) as for the repose and quiet of many, inresolving of Questions and Doubts (wherein there hath been great diversity of Opinions) concerning their estates and possessions, to publish some others that are common in accident, weighty in consequent, and yet never resolved or adjudged before: So as it is now verified in this, that which hath been said of old, Labor labori laborem addit.5
With this Seventh Work or part of my Reports (whereunto Almighty God of his goodness hath in this short time, amongst many other publick Employments, enabled me) I have out of my love unto all my dear Countrymen, of what perswasion in Religion soever they be, thought good to give them all a caveat or fore-warning in a Case of great importance, that deeply and dangerously concerns them all in so high a point, that in the first degree it is a Praemunire,6 and in the second High Treason. And yet many men, without all fear (by reason I think they know not the Law) run into the danger thereof almost every day. I must confess, that this is a writing or a scribling World, quotidie plures, quotidie pejus scribunt.7 And sure I am, that no man can either bring over those Books of late written (which I have seen) from Rome or Romanists, or read them, and justifie them, or deliver them over to any other with a liking and allowance of the same (as the Authors end and desire is they should) but they run into desperate dangers and downfalls; for the first offence is a Praemunire, which is to be adjudged to be out of the Kings protection, to lose all their Lands and Goods, and to suffer perpetual Imprisonment, and they that offend the second time therein, incur the heavy danger of high Treason. These Books have glorious and goodly Titles, which promise directions for the Conscience, and remedies for the Soul, but there is mors in olla:8 They are like to Apothecaries Boxes, quorum tituli pollicentur remedia, sed pixides ipsae venena continent,9 whose Titles promise remedies, but the Boxes themselves contain Poyson. This forewarning I give out of conscience and care of their safety, that blindfold might fall into so great danger by their means whom they so much reverence. I am not afraid of Gnats that can prick and cannot hurt, nor of Drones that keep a buzzing, and would, but cannot sting.
Non metuo pulicis stimulos, fucique susurros.10
And little do I esteem an uncharitable and malicious practise in publishing of an erroneous and ill spelled Pamphlet, under the name Pricket, and dedicating it to my singular good Lord and Father in Law the Earl of Excester, as a Charge given at the Affises holden at the City of Norwich, 4 Augusti 1606. Which I protest was not only published without my privity, but (besides the omission of divers principal matters) that there is no one period therein expressed in that sort and sense that I delivered it: Wherein it is worthy of observation how their expectation (of scandalizing me) was wholly deceived, for behold the catastrophe. Such of the Readers as were learned in the Laws, finding not only gross Errors and Absurdities in Law, but palpable mistakings in the very words of Art, and the whole context of that rude and ragged Stile, wholly dissonant (the Subject being legal) from a Lawyers dialect, concluded, that inimicus & iniquus homo superseminavit zizania in medio tritici:11 The other discreet and indifferent Readers, out of Sense and Reason, found out the same conclusion, both in respect of the vanity of the phrase, and for that, I publishing about the same time one of my Commentaries, would, if I had intended the publication of any such matter, have done it my self, and not to have suffered any of my works to pass under the name of Pricket, and so una voce conclamaverunt omnes,12 That it was a shameful and shamless practice, and the Author thereof, to be a wicked and malicious falsary.
In these and the rest of my Reports, I have (as much as I could) avoided Obscurity, Ambiguity, Jeopardy, Novelty and Prolixity. 1. Obscurity, for that is like unto Darkness, wherein a Man for want of Light, can hardly with all his industry discern any way. 2. Ambiguity, where there is Light enough, but there be so many winding and intricate ways, as a Man, for want of direction, shall be much perplexed and intangled, to find out the right way. 3. Jeopardy, either in publishing of any thing, that might rather stir up Suits and controversies in this troublesome World, than stablish quietness and repose between Man and Man (for a Commentary should not be like unto the Winterly Sun; that raiseth up greater and thicker Mists and Fogs, than it is able to disperse) or in bringing the Reader, by any means, into the least question of peril or danger at all. 4. Novelty, For I have ever holden all new or private interpretations, or opinions, which have no Ground or Warrant out of the Reason or Rule of our Books, or former Presidents, to be dangerous, and not worthy of any Observation: For periculosum existimo quod honorum virorum non comprobatur exemplo.14 5. Prolixity, For a Report ought to be no longer than the matter requireth, and as Languor prolixus gravat medicum, ita relatio prolixa gravat lectorem.15
The Case of Postnati, I confess, is longer than any of the rest, and that for three Causes. 1. For that it was an Exchequer-chamber Case, for deciding whereof all the Judges of England (as the Law doth require) did argue openly and at large. 2. For that never any Case within Mans Memory, was argued by so many Judges in the Exchequer-chamber, as this was, there having argued the Lord Chancellor and 14 Judges. 3. For the variety as well of the important matter, as of the several kinds of excellent Learning and knowledge, delivered in the Arguments of this Case.
Finally, With these Wishes and Desires I conclude. 1. That the Studious Reader might indeed receive as great profit and delight in Reading this work, as I did (unless mine own judgment deceive me) in composing and framing thereof. 2. That quoad ejus fieri possit, quaiam plurima legibus ipsis difiniantur, quam paucissima vero Judicis arbitrio relinquantur.16
Calvin’s Case, or the Case of the Postnati.1
(1608) Trinity Term, 6 James I
In the Court of King’s Bench, heard in the Exchequer by the Chancellor and all the Judges of England. First Published in the Reports, volume 7, page 1a.
Ed.: Under the feudal system, the absolute loyalty owed by a subject to the King, an allegiance enforced by duties that were tied to the holding of interests in land, made unthinkable, and illegal, the ownership of land by one person in two different kingdoms. When King James VI of Scotland assumed the English throne, both the Scots and the English were beholden to the same monarch, and the traditional reason for prohibiting a foreigner to own lands in the kingdom, which would have barred a Scot from holding lands in England and vice versa, was considerably weakened. It was particularly difficult when applied to someone who was born after James had taken the new throne, who were called the post-nati, a phrase by which the case is often known. The issue in this case arose when Robert Calvin, who was a Scot born three years after James’s coronation in England, came by land in England. His lands were entered by Richard and Nicholas Smith, and when Calvin’s guardians sued, the Smith’s defense was that Robert could not own the land.
The case was heard by all of the judges of England, while Coke was Chief Justice of Common Pleas, with arguments by Bacon as Solicitor General and Hobart as Attorney General. Coke was very active in this case, arguing the King’s position throughout and presenting, here the last argument, for Calvin, before the Court’s judgment. The Court, considering arguments based on the nature of allegiance, majesty, conquest, natural reason, and an unalterable law of nature, held that Calvin was not an alien, and he could hold land in England. This case had tremendous implications for James’s view of forging a single nation of Great Britain, as well as for the rights of subjects living in the new colonies overseas. For the effects of citizenship on a local level, see James Bagg’s Case, p. 404.
The writ of Assize.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, gent. hath complained to us, that Richard Smith and Nicholas Smith, unjustly, and without judgment, have disseised him of his freehold in |[1 b] 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 Martin 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,
The Count.Middlesex, ss. The assize cometh to recognise, The Count. if Richard Smith, and Nicholas Smith unjustly, and without judgment, did disseise Rob. Calvin, gent. of his freehold in 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 the 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.Aliance pleaded in bar. 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 Nov. 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.Demurrer. 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,Joinder. 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.Continuances. 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, &c. 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,Curia advisare valt. as the aforesaid Richard Smith and Nicholas Smith by their attorney aforesaid; and because the Court of the Lord the King |[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: 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.: and the sheriff, as before, to distrain the recoguitors 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.
The Question.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 action for any lands within the realm of England. After this case had been argued in the Court of King’s Bench at the barre, 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 Law) into the 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, ontheseconddayappointed 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 Warbarton one of the Judges of the Common Pleas, and Fenner one of the Judges of the King’s Bench: and after argued 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, ch. Justice of the King’s Bench, and Sir Thomas Egerton, Lord Ellesmere, Lord Chancellor of England, argued the case (the like plea in disability |[2 b] of Robert Calvin’s person being pleaded mutatis mutandis2 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 overrule 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,The arguments and objections on the part of the defendant. by those that argued for the Defendants. It was observed, that in this plea there were four nouns, quatuor nomina,3 which were called nomina operativa,4 because from them all the said arguments and objections on the part of the Defendants were drawn; that is to say, 1. Ligeantia5 (which is twice repeated in the plea, for it is said, Infra ligeantiam domini regis regni sui Scotiae, et extra ligeantiam domini regis regni sui Angliae.)6 2. Regnuum7 (which also appeareth to be twice mentioned, viz. regnum Angliae, and regnum Scotiae.)8 3. Leges9 (which are twice alleged, viz. Leges Angliae, and leges Scotiae,10 two several and distinct Lawes). 4. Alienigena11 (which is the conclusion of all, viz. that Robert Calvin is Alienigena).
1. Ligentia. 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 ligeantiam, 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 praedictus Robertus est alienigena, natus 5 Novembrisannoregnidomini regis nunc Angliae, &c. tertio, apud Edenburgh infra regnum Scotiae, ac infra ligeantiam dicti domini regis dicti regni sui Scotiae, ac extra ligeantiam dicti domini regis regni sui Angliae.12
2. Regna. From the several kingdoms, viz. regnum Angliae, and regnum Scotiae, three arguments were drawn: 1. Quando duo jura (imo duo regna) concurrunt in una persona, aequum est ac si essent in diversis:13 but in the King’s person there concurr two distinct and several kingdoms; therefore it is all one as if they were in divers persons, |[3 a] and consequently the Plaintiff is an alien as all the Antenati14 be 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 politique 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 be 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 lawes 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 lawes 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 Edenborough 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 praeedictus Roberti Calvin, ac diu antea, et continuè postea, praedictum regnum Scotiae per jura, leges et statuta ejusdem regni propria, et non per jura, leges, seu statuta hujus regni Angliae regulat’ et gubernat’ fuit, et adhuc est.15
4. Alienigena. From this word Alienigena they argued thus Every subject that is alienae gentis (id est) alienae ligeantiae, est alienigena:16 but such a one is the plaintiff; therefore, &c. And to these arguments, all that was spoken learnedly and at large by those that argued against the Plaintiff may bereduced.
|[3 b] But it was resolved by the L. Chancellor and twelve Judges, viz. the 2. chief Justices, the chief baron, Justice Fenner, Warbarton, Yelverton, Daniel, Williams, baron Snig, baron Altham, Justice Crooke, and baron Heron, that the Plaintiff was no alien, and consequently that he ought to be answered in this Assise by the Defendant.
How this case was argued by the Lord Chancellor and the Judges.This case was as elaborately, substantially, and judicially argued by the Lord Chancellor, and by my brethren the Judges, as I ever read or heard of any; and so in mine opinion the weight and consequence of the cause, both in praesenti et perpetuis futuris temporibus17 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 fossilibus18 did observe, that gold hidden in the bowels of the earth, was in respect of the masse of the whole earth, parvum in magno:19 but of this short plea it might be truly said (which is more strange) that here was magnum in parvo.20 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 head and invention: wherein they followed the counsel given in God’s book, Interroga pristinam generationem21 (for out of the old fields must come the new corn) et diligenter investiga patrum memoriam,22 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:23 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 daies upon the earth are but as a shadow, in respect of the old ancient dayes 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:24 no man ought to |[4 a] take upon him to be wiser than the laws. Secondly, in respect of our forefathers: Ipsi25 (saith the text) docebunt te, et loquentur tibi, et ex corde suo proferent eloquia,26 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 case 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 forein, strange, and an alien to the state of the question, which being quaestio juris,27 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 loquens28 ) the Judges our forefathers of the Law never tasted: I say, such a one, as the stomack of the Law, our exquisit 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 have taken upon me to make a report of their arguments,The method that the reporter doth use. I ought to do the same as truly, fully, and sincerely as possibly I 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 summe 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.
What things did fall into consideration in this case.In this case 5. things did fall into consideration. 1. Ligeantia. 2. Leges. 3. Regna. 4. Alienigena. 5. What legal inconveniences would ensue on either side.
|[4 b] 1. Concerning ligeance: 1. It was resolved what ligeance was: 2. How many kinds of ligeances there were: 3. Where ligeance was due: 4. To whom it was due: and lastly, 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 kingdomes: How farr forth by the act of Law the Union is already made, and wherein the kingdomes doe 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.
The 1st general part what ligeance is.1. 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. Ligeantia est ligamentum, quasi ligatio mentium: quia sicut ligamentum est connexio articulorum et juncturarum, &c.29 As the ligatures or strings do knit together the joints of all the parts of the body, so doth ligeance joyn together the Sovereign and all his Subjects, quasi uno ligamine. Glanvil, who wrote in the reign of Hen. 2. lib. 9. cap. 4. speaking of the connexion which ought to be between the Lord and Tenant that holdeth by homage, saith, That mutua debet esse dominii et fidelitatis connexio, ita quod quantum debet domino ex homagio, tantum illi debet dominus ex dominio, praeter solam reverentiam,30 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, |[5 a] regere etprotegere subditos suos:30Note.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.31 And therefore it is holden in 20 H. 7, 8. that there is a liege or ligeance between the King and the subject. And Fortescue, cap. 13. Rex ad tutelam legis, corporum, et bonorum subditorum erectus est.32 And in the Acts of Parliament of 10 Rich. 2. cap. 5. and 11 Rich. 2. cap. 1. 14 Hen. 8. cap. 2. &c. Subjects are called liege people: and in the acts of Parliament in 34 Hen. 8. cap. 1. and 35 Hen. 8. cap. 3., &c. the King is called the liege Lord of his Subjects. And with this agreeth M. Skene in hisbook 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.33 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 denization, as the book is adjudged in 14 Hen. 4. fol. 19. This word ligeance is well expressed by divers several names or synonymia which we find in our books. Sometime it is called the obedience or obeysance of the subject to the King, obedientia regi, 9 Edw. 4. 7. 9 Edw. 4. 6. 2 Rich. 3. 2. in the book of entries, Ejectione Firm’. 14 Hen. 8. cap. 2. 22 Hen. 8. cap. 8., &c. Sometime he is called a natural liege man that is born under the power of the King, sub potestate regis,34 2. Hen. 3. tit. Dower. Vide the Statute de 11 Edw. 3. cap. 2 Sometimes ligeance is called faith Fides, ad fidem Regis, &c. Bracton who wrote in the reign of Hen. 3. lib. 5. tractat’ de exceptionibus, cap. 24. fol. 427. Est etiam alia exceptio quae competit ex persona quaerentis, proper defectum nationis, ut si quis alienigena qui fuit ad fidem Regis Franc’, &c.35 And Fleta (which book was made in the reign of E. 1.) agreeth therewith; for lib. 6. c. 47. de exceptione ex omissione participis, it is said, vel dicere potuit, quod nihil juris clamare poterit tanquam particeps eo quod est ad fidem regis Franciae, quia alienigenae repelli debent in Anglia ab agendo, donec fuerunt ad fidem regis Angliae.36Vide 25 Edw. 3. de natis ultra mare.37 [faith and ligeance of the King of England; and Litt. lib. 2. cap. Homage, saving the faith that I owe to our Sovereign Lord the King] and Glanvil, lib. 9. cap. 1. Salva fide debita dom’ Regi et haeredibus suis.38 Sometimes ligeance is |[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;39 andcertainly lex non distinguit,40 but where omnia membra dividentia41 are to be found out and proved by the law itself.
How many kinds of Ligeonces there be.2. There is found in the law four kinds of ligeances: the first is, ligeantia naturalis, absoluta, pura, et indefinita,42 and this originally is due by nature and birthright, and is called alta ligeantia42a and he that oweth this is called subditus natus.43 The second is called ligeantia acquisita,44 not by nature but by acquisition or denization, being called a denizen, or rather donaizon, because he is subditus datus.45 The third is ligeantia localis46 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 there, 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 or Leet.Ligeantia naturalis. 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 Hen. 8. it is said, praed’ Dominus Dacre debitum fidei et ligeant’ suae, quod praefato domino Regi naturaliter et de jure impendere debuit, minime curans, &c.47 And Reginald Pool was indicted in 30 Hen. 8. for committing treason contra dom’Regemsupremum et naturalem dominum suum.48 And to this end were cited the indictment of Edward Duke of Somerset in 5 Edw. 6. and many others both of ancient and later times. But in the indictment of treason of John Dethick in 2 and 3 Ph. and Mar. it is said, quod praed’ Johannes machinans, &c. praedict’ dominum Philippum et dominam Mariam supremos dominos suos,49 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.Ligeantia acquisita. 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 |[6 a] heires, without any limitation or restraint: 2. limited, as when the King doth grant letters of denization to an alien, and to the heirs males of his body, as it appeareth in 9 Edw. 4. fol. 7. in Baggot’s case; or to an alien for term of his life, as was granted to John Reynel, 11 Hen. 6. 3. It may be granted upon condition, for cujus est dare, ejus est disponere,50 whereof I have seen divers precedents. And this denization of an alien may be effected three manner of wayes: by Parliament, as it was in 3 Hen. 6. 55. in Dower: by letters patents, as the usual manner is: and by conquest, as if the King and his subjects should conquer another Kingdome or dominion, as well Antenati as Postnati, as well they which fought in the field, as they which remained at home for defence of their countrey, or employed elsewhere, are all denizens of the kingdom or dominion conquered. Of which point more shall be said hereafter.
Ligeantia localis.3. Concerning the local obedience, it is observable, that as there is a local protection on the King’s part, so there is a local ligeance of the subject’s part. And this appeareth in 4 Mar. Br. 32. and 3 and 4 Ph. and Mar. Dyer 144. Sherley a Frenchman, being in amity with the King, came into England, and joyned with divers subjects of this realm in treason against the Kingand Queen, and the indictment concluded contra ligeant’ suae debitum;51 for he owed to the King a local obedience, that is, so long as he was within the King’s protection: which local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he hath issue here, that issue is a natural born subject: a fortiori52 he that is born under the natural and absolute ligeance of the King (which as it hath been said, is alta ligeantia) as the plaintiff in the case in question was, ought to be a natural born subject; for localis ligeantia est ligeantia infima et minima, et maxime incerta.53 And it is to be observed, that it is nec coelum, nec solum,54 neither the climate nor the soyl, but ligeantia and obedientia that make the subject born: for if enemies should come into the realm, and possess a town or fort, and have issue there, that issue is no subject to the King of England, though he be born upon his soyl, and under his meridian, for that he was not born under the ligeance of a subject, nor under the protection of the King. And concerning this local obedience, a president was cited in Hill. 36. Eliz. when Stephano Ferrara de Gama, and Emanuel Lewes Tinoco, two Portugals born, coming into England under Queen Elizabeth’s safe-conduct, and living here under her protection, joyned with Doctor Lopez in treason within |[6 b] this Realm against her Majesty: and in this case two points were resolved by the Judges. First, that their indictment ought to begin, that they intended treason contra dominam Reginam, &c.55 omitting these words (naturalem domin’ suam)56 and ought to conclude contra ligeant’ suae debitum. But if an alien enemy come to invade this realm, and be taken in warr, he cannot be indicted of treason: for the indictment cannot conclude contra ligeant’ suae debitum, for he never was in the protection of the King, nor ever owed any manner of ligeance unto him, but malice and enmity, and therefore he shall be put to death by martial law. And so it was in anno 15 Hen. 7. in Perkin Warbeck’s case, who being analienborn in Flanders, feigned himself to be one of the sons of Edward the fourth, and invaded this realm with great power, with an intent to take upon him the dignity royall: but being taken in the warr, it was resolved by the Justices, that he could not be punished by the Common law, but before the Constable and Marshal (who had special commission under the great Seal, to hear and determine the same according to martial law) he had sentence to be drawn, hanged, and quartered, which was executed accordingly. And this appeareth in the book of Griffeth Attorney general, by an extract out of the book of Hobart, Attorney general to King Hen. 7.
Ligeantia legalis.4. Now are we to speak of legal ligeance, which in our books, viz. 7 Edw. 2. tit. Avowry 211. 4 E. 3. fol. 42. 13 E. 3. tit. Avowry 120, &c. is called Suit Royall, 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 Edw. 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 faithfull to our Sovereign Lord King James; and his heires, and truth and faith shall bear of life and member, and terrene 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 naturae,57 as hereafter shall appear: the form and addition of the oath is, ex provisione hominis.58 In this oath of ligeance five things were observed. First, 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.” Third, To whom? “to our Sovereign Lord the King and his heirs”: (And albeit Britton doth say, to the King of England that is spoken proper excellentiam, to design the person, and not |[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). Fourth. In what manner? “and faith and troth shall bear, &c. of life and member;” that is, until the letting out of the last drop of our dearest heart blood. Fifth. 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 Hen. 7. 18b. That he that is sworn in the Leet, is sworn 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 patents of denization be, that the Patentee shall behave himself tanquam verus et fidelis ligeus domini Regis.59 And this oath of ligeance at the Tourne 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 in pleno Folkemote fidelitatem domino Regi, &c. Hanc legem invenit Arthurus qui quondam fuit inclytissimus Rex Britonum, &c. hujus legis authoritate expulit Arthurus Rex Saracenos et inimicos a regno, &c. et hujus legis authoritate Etheldredus Rex uno et eodem die per universum regnum Danos occidit. Vide Lambert inter leges Regis Edwardi, &c. fol. 135 et 136.60 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 Patents may make a denizen, but cannot naturalize him to all purposes, as an Act of Parliament may doe; neither can Letters Patents make any inheritable in this case, that by the common Law cannot inherit. And herewith agreeth 36 Hen. 6. tit. Denizen Br. 9.
Homage is two-fold.Homage in our book is twofold, that is to say, Homagium Ligeum,61 and that is as much as ligeance, of which Bracton speaketh, lib. 2. c. 35. fol. 79. Soli Regi debet’ sine dominio, seu servitio:62 |[7 b] and there is Homagium feodale,63 which hath his original by tenure. In Fit. Nat. Brev. 269. there is a writ for respiting of this later homage (which is due ratione feodi sive tenurae:) Sciatis quod respectuamus homagium nobis de terr’ et tenementis quae tenentur de nobis in capite debit’.64 But Homagium ligeum, i.e. Ligeantia, is inherent and inseparable, and cannot be respited.
Where natural legiance is due.3. Now are we come unto (and almost past) the consideration 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 ubi65 for that were to confound predicaments, and to goe about to drive (an absurd and impossible thing) the predicament of Quality into the predicament of ubi. Non respondetur ad hanc quaestionem, ubi est? to say, Verus et fidelis subditus est; sed ad hanc quaestionem, qualis est? Recte et apte respondetur, verus et fidelis ligeus, &c. est.66 But yet for the greater illustration of the matter, this 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 è converso.67 It appeareth by the statute of 11 Hen. 7. cap. 1. and 2 Edw. 6. cap. 2. that the subjects of England are bound by their ligeance to goe 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 subjects 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 realm of England or Scotland, &c. then were not they bound to goe out of the continent of the realm of England or Scotland, &c. And the opinion of Thirninge in 7 Hen. 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 Edw. 3. c. 7. 18 Edw. 3. c. 8. 18 Hen. 6. c. 19, &c. 7 Hen. 7. c. 1. 3 Hen. 8. c. 5, &c. In anno 25 Edw. 1. Bigot Earl of Norfolk and Suffolk, and Earl Marshal of England, and Bohun Earl of Hereford and High Constable of England, did exhibit a petition to the King in French (which I have seen anciently recorded) on |[8 a] the behalf of the Commons of England, concerning how and in what sort they were to be employed in his Majesty’s warrs out of the realm of England: and the Record saith, that, post multas et varias altercationes,68 it was resolved, they ought to go but in such manner and form as after was declared by the said Statutes, which seem to be but declarative of the common Law. And this dothplentifully and manifestly appear in our books, being truly and rightly understood. In 3 H. 6. tit. Protection 2. one had the benefit of a protection, for that he was sent into the King’s wars in comitiva,69 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 Prorex,70 went, the same was adjudged a voyage royal, 8 Hen. 6. fol. 16. 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 protections 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 warrs out of the realm per praeceptum nostrum,71 and the usual words of the writ of protection be in obsequio nostro.72 32 Hen. 6. fol. 4. it appeareth, that Englishmen were pressed into Guyenne, 44 Edw. 3. 12. into Gascoyn with the Duke of Lancaster, 17 Hen. 6. tit. Protection, into Gascoyn with the Earl of Huntington, steward of Guienne, 11 Hen. 4. 7. into Ireland, and out of this realm with the Duke of Gloucester and the Lord Knolles: Vide 19 Hen. 6. 35. And it appeareth in 19 Edw. 2. tit. Avowrie 224. 26 Ass. 66. 7 Hen. 19, &c. that there was forinsecum servitium73 foreign service, which Bracton, fol. 36. calleth regale servitium;74 and in Fitz. N. B. 28. that the King may send men to serve him in his warrs 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 service 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.
|[8 b] In the Register, fol. 25 b. Rex universis et singulis admirall’, castellan’, custodibus castrorum, villar’, et aliorum fortalitiorum praepositis, 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. salutem. 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 quaecunque ad tractand’ cum dilecto nostro et fideli L. pro redemptione prisonarii ipsius L. infra regnum et potestatem nostram praed’ per sex menses morando et exinde ad propria redeundo. Et ideo, &c. quod ipsum W. cum valetto, rebus et bonis suis praed’ veniendo in regn’ et potestat’ nostram praed’ tam per terr’ quam per mare ibid’ ut praedict’ est ex causa antedicta morando, et exinde ad propria redeundo, manuteneatis, protegatis, et defendatis; non inferentes, &c. seu gravamen. Et si quid eis forisfactum, &c. reformari faciatis. In cujus, &c. per sex menses duratur’. T. &c.75 In which writ 3. things are to be observed: 1. that the King hath fidem et fideles in partib’ transmarinis.76 2. that he hath protection’ in partib’ transmarinis.77 3. that he hath potestatem in partibus transmarinis.78 In the Register fo. 26. Rex universis et singulis admirallis, castellanis, custodibus castrorum, villarum, et aliorum fortalitiorum praepositis, 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. Burgensium de Lyons obsidum nostrorum, qui de licentia nostra ad partes transmarinas profecturus est, pro finantia magistrorum suorum praedict’ obtinenda vel deferenda, eundo ad partes praedictas ibidem morando, et exinde in Angl’ redeundo. Et ideo vobis mandamus, quod eidem I. eundo ad partes praed’ ibidem morando, et exinde in Angl’ redeundo, ut praed’ est, in persona, bonis, aut rebus suis, non inferatis, seu quantum in vobis est ab aliis inferri permittatis injuriam, molestiam, &c. aut gravamen. Sed eum potius salvum et securum 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.79 And certainly this was, when Lyons in France (bordering upon Burgundy, an ancient friend to England) was under the actual obedience of King Henry the 6. For the King commanded fidelibus suis,80 his faithfull Magistrates there, |[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 praepositis, ballivis et fidelibus suis in ducatu Aquitaniae 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 praeservare, suscepimus ipsos T. et A. res ac justas possessiones et bona sua quaecunque in protectionem et salvam gardiam nostram specialem. Et vobis et cuilibet vestrum injungimus et mandamus, quod ipsos T. et A. familias, res ac bona sua quaecunque a violentiis et gravaminibus indebitis defendatis, et ipsos in justis possessionibus suis manuteneatis. Et si quid in praejudicium hujus protectionis et salvae gardiae nost’ attentatum inveneritis, ad statum debitum reducatis. Et ne quis se possit per ignorantiam excusare praesentem protectionem et salvam gardiam nostram faciatis in locis de quibus requisiti fueritis infradistrict’ vestrum publice intimari, inhibentes omnibus et singulis sub poenis 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 protectionis et sal’ gard’ memorat’, cum super hoc requisiti fueritis, apponatis. In cujus, &c. dat’ in palatio nostro Westm’ sub Magni Sigilli testimonio, sexto die Augusti anno 44 E. 3.81Rex universis et singulis seneschallis, constabular’ castellanis, praeposit’, minist’, et omnib’ ballivis et fidelibus suis in dominio nostro Aquitan’ constitutis ad quos, &c. salut’. Volentes G. et R. uxorom ejus favore prosequi gratiose, ipsos G. et R. homines et familias suas ac justas possessiones, et bona sua quaecunque, 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 quaecunque manuteneatis, protegatis, et defendatis: non inferentes eis seu quantum in vobis est ab aliis inferri permittentes, injuriam, molestiam, damnum, violentiam, impedimentum aliquod seu gravamen. Et si quid eis forisfact’, injuriatum vel contra cos 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 praesentis salvae gardiae nostrae (prout moris erit) facientes. In cujus, &c. per unum annum duratur’ T. &c.82 |[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 warr by the sword, and that all be at his command, and under his obedience. Now seeing power 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 patriae83 : 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 as 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 kingdom of Scotland, infra ligeantiam Regis regni sui Scotica, et extra ligeantiam regis regni sui Angliae,84 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 unsufficient, 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 Dengliterre, et demaund judgement si el doit action aver:85 that she is not to be answered, for that she is a French woman, and not of the ligeance, nor of the faith of England, and demand 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 Dengliterre, ne a la foy le Roy et demaund jugement, et si vous agardes que el doit este responde, nous dirromus assets:86 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. |[10 a] Which later 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 referre faith or ligeance to the King indefinitely and generally, but limiteth and restraineth faith and ligeance to the kingdom: Extra ligeantiam regis regni sui Angliae,87 out of the ligeance of the King of his kingdom of England; 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, refraenatur, nullis finibus premitur.88
To whom and how ligeance is due.4 & 5. By that which hath been said it appeareth, that this ligeance is due only to the King; so as therein the question is not now, cui, sed quomodo debetur.89 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 Edw. 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, nonage, &c. Vide Pl. Com. in the case of The Lord Barkley, 238. and in the case of The Duchy 213. 6 Edw. 3. 291. and 26 Ass pl. 54. Now seeing the King hath but one person, and several capacities, and one politique capacitie 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 politique capacity, and the politique capacity as it were appropriated to the natural capacity) and it is not due to the politique 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 |[10 b] person: for the politique capacity is invisible and immortal; nay, the politique body hath no soul, for it is framed by the policy of man. 2. In all indictments of Treason, when any doe intend or compass mortem et destructionem domini Regis90 (which must needs be understood of his natural body, for his politique body is immortal, and not subject to death) the indictment concludeth, contra ligeantiae suae debitum;91ergo, the ligeance is due to the natural body. Vid Fit. Justice of Peace 53. et Pl. Com. 384. in The Earl of Leicester’s case. 3. It is true, that the King in genere92 dieth not, but, no question, in individuo93 he dieth: as for example, Henry the eighth, Edward the sixth &c. and Queen Elizabeth died, otherwise you should have many kings at once. In 2 et 3 Ph. et Mar. Dyer 128. one Constable dispersed divers bills in the streets in the night, in which was written, that King Edward the sixth was alive, & in France, &c: and in Coeman 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 body politique (being invisible) can as a body politique neither make nor take homage: Vide 33 Hen. 8. tit. Fealty, Brook. 5. In fide,94 in faith or ligeance nothing ought to be feigned, but ought to be ex fide non ficta.95 6. The King holdeth the kingdom 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. Bracton lib. 2. de acquirendo rerum dominio c. 29. Et sciend’ est quod haereditas est successio in universum jus quod defunctus antecessor habuit, ex causa quacunque acquisitionis vel successionis, et alibi affinitatis jure nulla successio permittitur.96 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 post facto:97 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 Majesties reign, before his Majesties coronation, Watson and Clarke, Seminary priests, 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 coronation was but a Royal ornament, and outward solemnization of the descent. And this appeareth evidently by infinite precedents and book cases, as (taking one example in a case so clear for all) King Henry the Sixth was not crowned until the eighth year of his reign, and yet divers men before his coronation were attainted of Treason, of Felony, &c. and he was as absolute and complete a King, both for matters of judicature, as for grants, &c. before his coronation, as he was after, as it appeareth in the Reports of the 1, 2, 3, 4, 5, 6, and 7 years of the same King. And the like might be produced for many other Kings of this Realm, which for brevity in a case so clear I omit. But which it manifestly appeareth, that by the Laws of England there can be no inter regnum within the same. If the King be seised of land by a defeasible title, and dieth seised, this descent shall toll the entry of him that right hath, as it appeareth by 9 Edw. 4. 51. But if the next King had it by succession, that should take away no entry, as it appeareth by Littleton fol. 97. If a disseisor of an infant convey the land to the King who dieth seised, this descent taketh away the entry of the Infant, as it is said in 34 Hen. 6. fol. 34. 45. lib. Ass. pl. 6. Plow. Com. 234. where the case was: King Henry the third gave a Mannor to his brother the Earl of Cornwall in tail (at what time the same was a fee simple conditional) King Henry the third dyed, the Earl before the Statute of Donis conditional’ (having no issue) by deed exchanged the Mannor with warranty for other lands in fee, and died, without issue, and the warranty and assets descended upon his nephew King Edward the first; and it was adjudged, that this warranty and assets, which descended upon the natural person of the King, barred him of the possibility of reverter. In the reign of Edward the second the Spencers, the father and the son, to cover the Treason hatched in their hearts, invented this damnable and damned opinion, That homage and oath of ligeance was more by reason of the King’s Crown (that is, of his politic capacity) than by reason of the person of the |[11 b] King, upon which opinion they inferred execrable and detestable consequences: 1. If the King do not demean himself by reason in the right of his Crown, his lieges are bound by oath to remove the King: 2. Seeing that the King could not be reformed by suit of Law that ought to be done per aspert.98 3. That his lieges be bound to govern in aid of him, and in default of him. All which were condemned by two Parliaments, one in the reign of Edward the second called Exilium Hugonis le Spencer, and the other in Anno 1. Ed. 3. cap 1. Bracton lib. 2. de acquirendo rerum dominio,99 c. 24. fol 55, saith thus, Est enim corona Regis facere justitiam et judic’, et tenere pacem, et sine quibus corona consistere non potest nec tenere; hujusmodi autem jura sive jurisdictiones ad personas vel tenementa transferri non poterunt, nec a privata persona possideri, nec usus nec executio juris, nisi hoc datum fuit ei desuper, sicut jurisdictio delegata delegari non poterit quin ordinaria 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, oequam ab iniquo, ut omnes sibi subjecti honeste vivant, et quod nullus alium laedat, et quod unicuique quod suum fuerit recta contributione reddatur.100 In respect whereof one saith, That Corona est quasi cor ornans, cujus ornamenta sunt misericordia et justicia.101 And therefore a King’s Crown is an Hieroglyphick of the Lawes, where Justice, &c. is administered; for so saith P. Val. lib. 41. pag. 400. Coronam dicimus legis judicium esse, propterea quod certis est vinculis complicata, quibus vita nostra veluti religata coercetur.102 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 understood of that capacity of the King, that in rei veritate103 hath capacity, and is adorned and indued with indowments as well of the soul as of the body, and thereby able to doe Justice and Judgment according to right and equity, and to maintain the peace, &c. and to find out and discern the truth, and not of the invisibleandimmortal capacity that hath no such indowments; for of itself it hath neither soul nor body. And where divers Books and Acts of Parliament speak of the Ligeance of England, as 31 Edw. 3. tit. Cosinage 5. 42 Edw. 3. 2. 13 Edw. 3. tit. Br. 677. 25 Edw. 3. Statut. de natis ultra mare. All these and other speaking briefly in a vulgar manner (for loquendum ut vulgus104 ) and not pleading (for sentiendum ut docti105 ) 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 |[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 quarto modo,106 to the King, omni, soli, et semper.107 And oftentimes in the Reports of our Book cases, and in Acts of Parliament also, the Crown or Kingdome is taken for the King himself, as in Fitzh.i.e. Of the politic capacity. Natur. Brev. fol. 5. Tenure in capite108 is a Tenure of the Crown, and is a Seignorie in grosse, that is, of the person of the King: and so is 30 Hen. 8. Dyer fol. 44, 45. a Tenure in chief, as of the Crown, is merely a Tenure of the person of the King, and therewith agreeth 28 Henry 8. tit. Tenure Br. 65. The Statute of 4 Hen. 5. cap. ultimo gave Priors aliens, which were conventual to the King and his heirs, by which gift saith 34 Hen. 6. 34. the same were annexed to the Crown. And in the said Act of 25 Edw. 3. whereas it is said in the beginning, within the Ligeance of England, it is twice afterward said in the same Act within the Ligeance of the King, and yet all one Ligeance due to the King. So in 42 Edw. 3. fol. 2. where it is first said, the Ligeance of England, it is afterward 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 Angliae;109 and yet Littleton lib. 2. in his chapter of Villenage, fol. 43. in disabling of a man that is attainted in a Praemunire110 saith, That the same is the King’s Law; and so doth the Register in the Writ of ad jura regia111 style the same.The reasons wherefore the King by judgment of law with a politic capacity.
The reasons and cause wherefore by the policy of the Law the King is a body politique, are three, viz. 1. causa majestatis,112 2. causa necessitatis,113 and 3. causa utilitatis.114 First, causa majestatis, the King cannot give or take but by matter of Record for the dignity of his person. Secondly, causa necessitatis, as to avoyd the attainder of him that hath right to the Crown, as it appeareth in 1 Hen. 7. 4. lest in the interim there should be an Interregnum,115 which the Law will not suffer. Also by force of this politique capacity, though the King be within age, yet may he make Leases and other Grants, 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 |[12 b] of March, &c. to the King, now is the King seised of the same in jure coronae,116 in his politique capacity; for which cause the same shall go with the Crown; and therefore, albeit Queen Elizabeth was of the half blood to Queen Mary, yet she in her body politique enjoyed all those fee simple lands, as by the Law she ought, & 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 politique: So as for these special purposes the Law makes him a body politique, immortal, and invisible, whereunto our liegance cannot appertain. But to conclude this point, our liegance is due to our natural liege Sovereign, descended of the blood Royal of the Kings of this Realm. And thus much of the first general part de Ligeantiâ.117
De legibus. The second general part.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 the Law of Nature was before any Judicial or Municipal Law: Fourthly, That the Law of Nature is Immutable.
The Law of Nature.The Law of Nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction; and this is lex aeterna,118 the Moral Law, called also the Law of Nature. And by this Law, written with the finger of God in the heart of man, were the people of God a long time governed, before that Law was written by Moses, who was the first Reporter or Writer of Law in the world. The Apostle inthe second Chapter to the Romans saith, Cum enim gentes quae legem non habent naturaliter ea quae legis sunt faciunt.119 And this is within that commandment of the Moral Law, Honora patrem,120 which doubtless doth extend to him that is pater patriae121 And the Apostle saith, Omnis anima potestatibus sublimioribus subdita sit.122 And these be the words of the great Divine, Hoc Deus in Sacris Scripturis jubet. hoc lex naturae dictari, ut quilibet subditus obediat superio,123 And Aristotle, Nature’s Secretary, Lib. 5. Aethic. saith, That jus naturale est, quod apud omnes homines eandem habet potentiam.124 And herewith doth agree Bracton, lib. 1. cap. 5. and Fortescue, cap. 8, 12, 13, and 16. Doctor and Student, cap. 2. and 4. And the reason hereof is, for that God and Nature is one |[13 a] to all, and therefore the Law of God and Nature is one to all. By this Law of Nature is the Faith, Ligeance, and Obedience of the Subject due to his Sovereign or Superiour. And Aristotle 1. Politicorum proveth, that to Command and to Obey is of Nature, and that Magistracy is of Nature: For whatsoever is necessary and profitable for the preservation of the society of man, is due by the Law of nature: But Magistracy and Government are necessary and profitable for the Preservation of the society of man; therefore Magistracy and Government are of Nature. And herewith accordeth Tully lib. 3. de legibus, Sineimperio nec domus ulla, nec civitas, nec gens, nec hominum universum genus stare, nec ipse denique mundus potest.125 This Law of Nature, which indeed is the eternal Law of the Creator, infused into the heart of the creature at the time of his creation, was two thousand years before any Laws written, and before any Judicial or Municipal Laws. And certain it is, That before Judicial or Municipal Laws were made, Kings did decide causes according to natural equity, and were not tied to any rule or formality of Law, but did dare jura.126 And this appeareth by Fortescue, cap. 12 & 13. and by Virgil that Philosophical Poet, 7th Aeneid.
And 5th Aeneid.
And Pomponius lib. 2. cap. de origine juris, affirmeth, that in Tarquinius Superbus’s time there was no Civile Law written, and that Papirius reduced certain observations into writing, which was called Jus Civile Papirianum. Now the reason wherefore Laws were made and published, appeareth in Fortescue cap. 13. and in Tully lib. 2. officiorum: At cum jus aequabile ab uno viro homines non consequerentur, inventae sunt leges.129 Now it appeareth by demonstrative reason, that Ligeance, Faith, and Obedience of the Subject to the Sovereign, was before any Municipal or 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 Laws to any, but to such as owed Obedience, Faith, and Ligeance before, in respect whereof they were bound to obey and observe them: Frustra enim |[13 b] feruntur leges nisi subditis et obedientibus.130 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; for albeit Judicial or Municipal Laws have inflicted and imposed in several places, or at several times, divers and several punishments and penalties for breach or not observance of the Law of Nature (for that law onely consisted in commanding or prohibiting, without any certain punishment or penalty), yet the very Law of Nature itself, never was nor could be altered or changed. And therefore it is certainly true, that Jura naturalia sunt immutabilia.131 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 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, he doth not forfeit this Wardship; for nature hath annexed it to the person of the Father, as it appeareth in 33 Hen. 6. 55. Et bonus Rex nihil a bono patre differt, et patria dicitur a patre, quia habet communem patrem, qui est pater patriae.132 In the same manner, maris et foeminae conjunctio est de jure naturae,133 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, for he must bring his appeal as heir, which being ex provisione hominis,134 he loseth it by the attainder of his Father: but his 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 foeminae conjunctio135 is de jure naturae,136 and therefore (it being to be intended of true and right Matrimony) is indissoluble: and this is proved by the book in 33 Hen. 6. fol. 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 Paricide and Petit treason; for she remaineth her daughter, for that is of nature, and herewith agreeth 21 Edw. 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 |[14 a] protection which by the law of nature is given to the King; for that is indelebilis et immutabilis,137 andtherefore 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 Edw. 4. and 35 Hen. 6. 57. 2 Ass. pl. 3. By the statute of 25 Edw. 3. cap. 22. a man attainted in a Praemunire,138 is by expresse words out of the King’s protection generally; and yet this extendeth onely to legal protection, as it appeareth by Littleton, fol. 43. for the Parliament could not take away that protection which the Law of Nature giveth unto him; and therefore, notwithstanding that Statute, the King may protect and pardon him. And though by that Statute it was further 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 Hen. 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 Fitzh. Nat. Brev. 161. Utlagatus est quasi extra legem positus:139 and Bracton lib. 3. tract. 2. cap 11. saith, that caput geret lupinum;140 and yet is he not out either of his natural ligeance, or of the King’s natural protection; for neither of them are tyed 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 Hen. 6. that no man should serve the King as Sheriff of any County, above one year, and that, notwithstanding any clause of non obstante141 to the contrary, that is to say, notwithstanding that the King should expressly dispense with the said Statute: howbeit it is agreed in 2 Hen. 7. that against the expresse purview of that act, the king may by a special Non obstante dispense with that act, for that the act could not barr 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 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 Postnati142 and we of England are united by birth right, |[14 b] in obedience and ligeance (which is the true cause of natural subjection) by the law of nature;Itfolloweth, that Calvin the Plaintiff being born under one ligeance to one King,i.e. of Scotland. 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 birth right, 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 cleerer 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 contra naturam) appropinquat ad suum finem, tanto debiliores et tardiores sunt ejus motus; sed naturalis motus, quanto magis appropinquat at suum finem, tanto fortiores et velociores sunt ejus motus.143 Hereby it appeareth how weak the objection grounded upon the rule of Quanto duo jura concurrunt in una personû, &c.144 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 warr or league with the King of Scotland, et sic de caeteris:145 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’, non patriarum, sed patrum patriar’, non coronarum, sed coronatorum, non legum municipalium, sed regum majestatum.146 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 joyned in ligeance to that one head, which is copula et tanquam oculus147 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.
The 3d general part concerning both kingdoms.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 |[15 a] Parliament of recognition. The second 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 over rule 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 third 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.148 The fourth 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: First, England and Scotland remain several & distinct kingdoms; 2. They are governed by several judicial or municipal laws; 3. They have several distinct and separat 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 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 a Baron, Viscount Earl, Marquess, or Duke of England, bring any action real or personal, andthedefendantpleadeth 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 record 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 6 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 |[15 b] upper house of the Parliament of England: and herewith agree the book cases of 20 Edw. 4. 6. and 11 Edw. 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 Rich. 2 tit. 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 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 forein 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 Edw. 3. tit. Br. 473. where the case was, that Alice, which was the wife of R. de O. brought a writ of Dower against John Earl of Richmond, and the writ was, Praecip. Johann’ Comiti Richmondiae custodi terr’ et haeredis149 of William the son of R. de. O. 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 Brittain was not within the Realm of England. But there it is said, that if a man bring a writ against Edward 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. 14. where treating of the jurisdiction of the King’s Court of Marshalsea it is said, Et haec omnia ex officio suo licite facere poterit (ss. seneschal’ aul’ hospitii Regis) non obstantealicujus 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 Regis Angl’ (ipso rege tunc apud Parisiam existente) cum discis argenti furatis recenter super facto, rege Franc’ tunc presente, et unde licet curia Regis Franc’ de praed’ latrone per castellanum Paris. petita fuerit, habitis hic et inde tractatibus in Consilio Regis Franc’, tandem consideratum fuit; quod Rex Angl’ illa regia praerogativa, et hospitii sui privilegio uteretur, et gauderet, qui coram Roberto Fitz-John milite tunc hospitii Regis Angl’ seneschallo de latrocinio convictus, per considerationem ejus cur. fuit suspensus in patibulo sancti Germani de Pratis.150 Which proveth, that though the king be in forein kingdom, yet he is judged in law a king there. The other part of the said diversity, is proved by the book case in 20 Edw. 4. fol. 6. where, in a writ of debt brought by Sir John Douglas knight, against Elizabeth. Molford, the defendant, demanded judgment of the writ, for that |[16 a] the Plaintiff was an Earl of Scotland, but not of England; and that our 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 he) 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 merchandise, and enter into his Realm, if the Duke cometh and bringeth merchandise into this land, and is to sue an 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 he received that degree of dignity. Vide 7 Hen. 6. 14 b. accord. Second. 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 11 Edw. 3. The Earl of Richmond’s case before recited. Third. That albeit the king by his Letters Patents of safe conduct doe 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.
The 4th general Part. De alienigena.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, and judgments, reported in our books in all succession of ages, proving the Plaintiff to be no alien. 6. Demonstrative conclusions upon the premises, approving the same.
Who is an alien.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 alienae gentis seu alience ligeantiae, qui etiam |[16 b] dicitur peregrinus, alienus, exoticus, extraneus, &c. Extraneus est subditus, qui extra terram, i.e. potestatem regis natus est.151 And the usual and right pleading of an alien born doth lively and truly describe and express what he is. 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,152 as it appeareth in 9 Ed. 4. 7. Book of Entries, fol. 244, &c. which cannot possibly be pleaded in this case, for two causes; First for that one king is Sovereign of both kingdoms; second, 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,153 or extra legem,154 which are circumscribed to place, but extra ligeantiam,155 which (as it hath been said) is not local or tied to any place.
It appeareth by Bracton lib. 3. tract. 2. cap. 15. fol. 134. that Canutus the Danish king, having settled himself in this kingdom in peace, kept notwithstanding (for the better continuance there of) 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)156 wisely and politikely 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 66 marks unto the King: and if the Town were not able to pay it, then the Hundered should forfeit and pay the same unto the King’s treasure; whereunto the King assented. This law was penned Quicunque occiderit Francigenam, &c.157 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’,158 and infra ligeanitiam alterius Regis.159 And it appeareth before out of Bracton and Fleta, that both of them use the same examples (in describing of an alien) ad fidem Regis Franciae.160 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 |[17 a] Canutus 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 Edw. 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 Francigena161 (there put for example as before is said, to expresse what manner of person alienigena should be) qui tempore Edvardi propinqui nostri fuit particeps legum et consuetudinum Anglorum162 (that is, made denizen) quod dicunt ad scot et lot persolvat secundum legem Anglorum.163
How many kinds of aliens there be.Every man is either Alienigena, an Alien born, or subditus,164 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 amici165 ) may by the Common Law have, require, and get within this Realm, by gift, trade, or other lawfull means, any treasure, or goods personal whatsoever, as well as any Englishman, and may maintain any action for the same: But Lands within this Realm, or houses (but for their necessary habitation onely) 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 traffique, 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 inimici166 perpetual enemies (for the Law presumes not that they will be converted, that being remota potentia,167 a remote possibility) for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual |[17 b] hostility, and can be no peace; for as the Apostle saith, 2 Cor. 15. Quae autem conventio Christi ad Belial, aut quae pars fideli cum infideli, and the Law saith, Judaeo Christianum nullum serviat mancipium, nefas enim est quem Christus redemit blasphemum Christi in servitutis vinculis detinere. Register 282. Infideles sunt Christi et Christianorum inimici.168 And herewith agreeth the Book in 12 Hen. 8. fol. 4. where it is holden that a Pagan cannot have or maintain any action at all.
By what laws kingdoms gotten by conquest, &c. shall be governed.And upon this ground there is a diversity between a conquest of a kingdom of a 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 vitae et necis potestatem,169 he may at his pleasure alter and change the Laws of that kingdom, but untill he doth make an alteration of those Laws, the ancient Laws of that kingdom remain. But if a Christian King should conquer a kingdom of an Infidel, and bring them under his subjection, there ipso facto170 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, untill 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 have 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,Ireland. 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 expresse words be bound by the Parliaments of England. 3. That albeit no |[18 a] reservation were in King John’s Charter, yet by judgment of Law a Writ of Error did lye in the king’s bench in England, of an erroneous Judgment in the king’s bench of Ireland. Furthermore, in the case of the conquest of a Christian kingdom, as well those that served in Wars at the Conquest, as those that remained at home for the safetie 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 Firmae 7, 32 Hen. 6. 23. &c. Now what a Subject born is, appeareth at large by that which hath been said de ligeantia: and so likewise de subdito dato,171 of a donaison;172 for that is the right name, so called, because his legitimation is given unto him; for if you derive denizen from deins nee,173 one born within the obedience or ligeance of the King, then such a one should be all one with a natural born subject. And it appeareth before out of the laws of King William the First of what antiquity the making of denizens by the King of England hath been.
Of the incidents to an alien.3. There be regulary (unlesse 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 of England hath absolute right to other kingdoms or dominions, as France, Aquitain, 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 forein 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 |[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 birth is of the essence of a subject born; for he cannot be a subject to the king of England, unlesse 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.
Wherefore an alien born is not capable of lands.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 Statutes of 2 Hen 5. cap. and 4 Hen. 5. cap. ultimo. But it may be demanded, Wherein doth that destruction consist; Whereunto it is answered; First, it tends to destruction tempore belli;174 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 Aeneid, 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,175 for so might many aliens born get a great part of the inheritance and freehold of the Realm, whereof there shall follow a failure of Justice (the supporter of the Commonwealth) for that Aliens born cannot be returned of Juries 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 Edw. and the third written to Pope Clement, Datum apud Westm’ 26. die Sept. ann. regni nostri Franciae 4 regni vero Angliae 17.176
Examples and authorities in law.5. Now are we come to the Examples, Resolutions, and Judgments offormer times; wherein two things are to be observed, First, how many Cases in our Books do over-rule this Case in question for ubi eadem ratio ibi idem jus, et de similibus idem est judicium.177 2. That for want of an express Text of Law in terminis terminantibus178 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 |[19 a] oportet quod moribus et consuetudine inductum est, et si qua in re hoc defecerit, recurrendum est ad rationem.179 But that receiveth a threefold answer: First, that there is no such rule in the Common or Civile Law; but the true rule of the Civile Law is, Lex scripta si cesset, id custodiri oportet quod moribus et consuetudine inductum est, et si qua in re hoc defecerit, tunc id quod proximum et consequens ei est, et si id non appareat, tunc jus quo urbs Romana utitur, servari oportet.180 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 inquestion, 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 cuilibet in sua arte perito est credendum et quod quisque norit in hoc se exerceat. Et omnes prudentes illa admittere solent quae probantur iis qui in sua arte bene versati sunt,181 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 Gascoin was parcel, and the Earldom of Poitiers, came to King Henry the second by the marriage of Elianor, daughter and heir of William Duke of Acquitain, and Earl of Poitiers, which descended to Richard the First, Henry the Third, Edward the First, Edward the Second, Edward the Third 3., &c. In 27 lib. 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 king’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 whiles 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 Gascoin within the ligeance of the king: which point being put in Issue and found by Jury to be true, it was adjudged he should have restitution of his possessions generally without mentioning of advowsons. After which restitution, one of the |[19 b] said advowsons became voyd, the Prior presented, against whom the king brought a Quare Impedit,182 wherein the king was barred, and all this was contained in the later petition. And the Book saith, that the Earle of Arundel, and Sir Guy de 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 and 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. Edw. 1. Num. 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 tryal, 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 Bar) that he was born extra ligeantiam regis regni sui Angliae, et infra ligeantiam dominii sui Vasconiae,183 and that they were several dominions, and governed by severall 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 wassometime a kingdome, and likewise Millain, Burgundy, Bavaria, Brittain, and others were, and now are become, Dukdoms. Castile, Arragon, Portugal, Barcelona, &c. were sometime Earldoms, afterwards Dukedoms, and now kingdoms. Bohemia and Polonia were sometime dukedoms, and now kingdoms, and (omitting many other, and coming nearer home) Ireland was before 32 Henry the eighth 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 Edw. 3. 41. an exchange was made between an Englishman and a Gascoyn, 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 Hen. 4. 1. the King brought a Writ of right of ward against one Sybill, whose husband was exiled into Gascoin; |[20 a] ergo Gascoin is no parcel or member of England, for exilium est patriae privatio, natalis soli mutatio, legum nativarum amissio184 4 Edw. 4. 10. the king directed his Writ out of the Chancery under the Great Seal of England, to the Maior of Burdeaux (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 Regis185 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, viz. brevia mandatoria et remedialia, et brevia mandatoria et non remedialia: brevia mandatoria et remedialia,186 as Writs of Right, of Formedon, &c.187 of Debt, Trespasse, &c. and shortly, all Writs real and personal, whereby the party wronged is to recover somewhat, and to be remedied for that wrong that 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 tyed to any place, but doe 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 forein Country to return into any of the king’s own Dominions, Sub fide et ligeantia quibus nobis tenemini.188 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 Register fol. 26. Stamford Praerog. 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 Edw. 3. cap. 16. it is agreed, that the Gascoins are of the ligeance and subjection of the King. Vide 42 Edw. 3. cap. 2. & 28 Hen. 6. cap. 5. &c.
Guyen, Guienne.Guyen was another part of Aquitain, and came by the same title: and those of Guyen were by act of Parliament in 13 Hen. 4. not imprinted, ex Rot. Parliament. eodem anno,189 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, praerog. c. 12. f. 39. |[20 b] And thus much of the Dukedom of Aquitaine, 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 Dutchie there were (as some write) 4. Archbishopricks, 24. Bishopricks, 15. Earldoms, 202 Baronies, and above a thousand Captainships and Bailiwicks; and in all this long time, neither book case nor record can be found wherein any plea was offered to disae any of them that were born there, by forein birth, but the contrary hereof directly appeareth by the said book case of 27 lib. Ass. 48.
Normandy, Normenia, Normandia.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 Edw. 2. de praerog. Regis, c. 12. that they were inheritable to, and capable of lands in England: for the purview of that Statute is quod Rex habebit escaetas de terris Normannorum, &c.190ergo Normans might have lands in England: et hoc similiter intelligendum est, si aliqua haereditas descendat alicui nato in partibus transmarinis, &c.191 Whereby it appeareth, that they were capable of lands within England by descent. And that this Act of 17 Edw. 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 Edw. 1. 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 praerog. cap. 12. fol. 39. expounding the said Statute of 17 Edw. 2. cap. 12. concludeth, that by that chapter it should appear (as ifhehadsaid, it is apparent without question) that all men born in Normandy, Gascoin, Guyen, Anjou, and Brittain, (whiles they were under actual disobedience) were inheritable within this realm as well as Englishmen. And the reason thereof was, for that they were one ligeance due to one Sovereign. And so much (omitting many other authorities) for Normandy: saving I cannot let passe the Isles of Jernsey and Gersey, 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 |[21 a] born in Jernsey and Gersey (though those Isles are no parcel of the Realm of England,Guernsey and Jesey. but several dominions, enjoyed by several titles, governed by several laws) are inheritable and capable of any lands within the Realm of England, 1 Edw. 3. fo. 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 praed’ nec aliqua alia negotia de insula praed’ emergentia non debent terminari nisi secundum legem insulaepraed’,&c.192 And the Register, fol. 22. Rex fidelibus suis de Jernsey et Gersey.193 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 sixth 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 year of his reign: wherein were (as some write) one Archbishoprick, and six Bishopricks, and an hundred strong towns and fortresses, besides those that were wasted in warre. Maud the Empresse, the only daughter and heir to Henry the first, took to her second husband Jeffrey Plantaginet, Earl of Anjou, Tourain, and Mayne, who had issue King Henry the second to whom the said Earldom by just titledescended, who, and the kings that succeeded him, stiled themselves by the name of Comes Andeguv,194&c. untill King Edward the third 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 forein birth. But leave we Normandy and Anjou, and speak we of the little, but yet ancient and absolute kingdom of the Isle of Man,Man, Mannia. as it appeareth by diverse ancient and authentike records; as taking one for many. Artold King of Man sued to King Henry the third to come into England to conferr with him, and to perform certain things which were due to King Henry the third thereupon King Henry the third 28. Decemb. ann. regn. sui 34, at Winchester, by his letters patents gave license 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’ nobisc’ 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’ aut fieri permittatis damnum, injur’, molestiam, aut gravamen, vel etiam hominib’ suis quos secum ducet et si aliquid eis forisfact’ fuerit, id eis sine dilat’ faciat’ emendari. In cujus, &c. duratur’ usque ad fest’ S. Mich.195 Wherein |[21 b] 2 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 King 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 stile him by the name of a King. It was resolved in 11 Hen. 8. that where an office was found after the decease of Thomas Earl of Darby, and that he died seised, &c. of the Isle of Man, that the said office was utterly void, for that the Isle of Man, Normandy, Gascoin, &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, Cambria, Wallia. Wales was sometimes a kingdom, as it appeareth by 19 Hen. 6. fol. 6. and by the act of Parliament of 2 Hen. 5. cap. 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. 1. cap. 16. 1 Edw. 3. 14. 8 Edw. 3. 59. 13 Edw. 3. tit. Jurisdict’. 10 Hen. 4. 6. Plow. Com. 368. And in this respect, in divers ancient Charters, Kings of old time styled themselves inseveralmanners, as King Edgar, Britannia Basilen’c; Etheldredus, totius Albionis dei providentia Imperator; Edredus magnae Britanniae monarcha,196 which among many other of like nature I have seen. But by the Statute of 12 Edw. 1. Wales was united and incorporated into England, and made parcel of England in possession; and therefore it is ruled in 7 Hen. 4. fol. 1. 4. that no protection doth lie quia moratur in Wallia,197 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 Edw. 1. whilst it was onely holden of England, were capable and inheritable of lands in England.
France, Gallia, Francia.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, whiles |[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 Patents of denization in the Exchequer, int’ originalia,198 Anno 11 Hen. 6. with the Lord Treasurer’s Remembrancer, was strongly urged and objected: for (it was said) thereby it appeareth, that King Henry the sixth in Anno 11 of his reign, did make denizen one Reynel, born in France: Whereunto it was answered, that it is proved by the said Letters Patents, 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 Patents, whereby the King granteth, that Magister Johannes Reynel serviens noster, &c. infra regnum nostrum Franc’ oriundus pro termino vitae suae 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 perquirere possit et valeat.199 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 he 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 called him by the name of Magister Johannes Reynel: But without question he was Antenatus, born before the King had the actual and real possession of that Crown.
Calice, Calecia, Caletum.Callice [Calais] is a part of the kingdom of France, and never was parcell of the kingdom of England, and the kings of England enjoyed Callice in and from the reign of King Edward the third, until the losse thereof in Queen Maries time, by the same title that they had to France. And it is evident by our books, that those that were born in Callice, were capable and inheritable to lands in England, 42 Edw. 3. cap. 10. Vide 21 Hen. 7. 33. 19 Hen. 6. 2 Edw. 4. 1. 39 Hen. 6. 39. 21 Edw. 4. 18. 28 Hen. 6. 3 b. By all which it is manifest, that Callice being parcel of France, was under the actual obedience and commandment of the King, and by consequent those that were born there, were natural born subjects, and no aliens. Callice from the reign of King Edward the third until the fifth year of Queen Mary, remained under the actual obedience of the king of England. |[22 b] Guines also, another part of France, was under the like obedience to King Henry the sixth, as appeareth by 32 Hen. 6. fol. 4.Guynes, Tournay. And Tournay was under the obedience of Henry the eighth., as it appeareth by 5 Eliz. Dyer, fol. 224. for there it is resolved, that a bastard born at Tournay, whiles 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, Callice, &c. whiles 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.
Ireland, Hibernia.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 Βασιλεν̀ς, omniumque insularum oceani, quae Britanniam circumjacent, Imperator et Dominus, gratias ago ipsi Deo omnipotenti Regi meo, qui meum imperium sic ampliavit et exaltavit super regnum patrum meorum, &c. mihi concessit propitia divinitas, cum Anglorum imperio omnia regna insularum oceani, et cum suis ferocissimis Regibus usque Norvegiam, maximamque partem Hibern’, cum sua noblissima civitate de Dublina, Anglorum regno subjugare, quapropter et ego Christi gloriam et laudem in regno meo exaltare, et ejus servitium amplificare devotus disposui, &c.200 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 Andegav’,201 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 Hen. 6. 8. Sir John Pilkington’s case. 32 Hen. 6. 25. 20 Eliz. Dyer 360. Plow. Com. 360. And 2 Rich. 3. 12. Hibernia habet Parliamentum, et faciunt leges, et nostra statuta non ligant eos, quia non mittunt milites ad Parliamentum (which is to be understood, unlesse they be especially named) sed personae eorum sunt subjecti regis, sicut inhabitantes in Calesia, Gasconia, et Guyan.202 Wherein it is to be observed, that the Irishman (as to subjection) is compared to men born in Calice, Gascoin, and Guyan. Concerning their Laws, Ex rotulis patentium de Anno 11 Regis Hen. 3.203 there is a Charter which that king made, beginning in these words, Rex, &c., Baronibus, militibus, et omnibus libere tenentibus L. salutem, satis ut credimus |[23 a] vestra audivit discretio, quod quando bonae memoriae Johannes quondam Rex Angl’ pater noster venit in Hiberniam ipse duxit secum viros discretos et legis peritos, quorum communi consilio et ad instantiam Hibernensium statuit et precepit leges Anglicanas in Hibern’ ita quod leges easdem in scripturas redactas reliquit sub sigillo suo ad Scaccarium Dublin’.204 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 Hen. 6. 8. & 20 Eliz. Dyer 360. and for that they retain unto this day divers of their ancient customs, the book in 20 Hen. 6. 8. holdeth, that Irelandis governed by laws and customs, separate and diverse from the Laws of England. A voyage royal may be made into Ireland. Vide 11 Hen. 4. 7. & 7 Edw. 4. 27. 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 Orurke an Irishman, who had committed high Treason in Ireland, that he by the statute of 33 Hen. 8. c. 23. 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 person out of the realm of England, shall be from henceforth inquired of, &c. And they all resolved (as afterward 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 Fines, provision is made for them that be out of this land, and it is holden in Pl. 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 Post-natus205 ) in Scotland? For the Irishman is born extra ligeantiam regis regni sui Angl’, &c.206 which be verba operativa207 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 Scotland itself; in ancient time part of Scotland (besides Berwick) was within the power and ligeance of the King of England, as it appeareth by our Books 42 Edw. 3. 2. The Lord Beaumont’s case, 11 Edw. 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. |[23 b] Ex rotulis Scotiae, Anno 11 Edw. 3. amongst the records in the Tower of London. Rex, &c. Constituimus Rich. Talebot Justiciarium nostrum villae Berwici super Twedam, ac omnium aliarum terrarum nostrarum in partibus Scot’, ad faciend’ omnia et singula quae ad officium justiciarii pertinent, secundum legem et consuetudinem regni Scot’.208 And after Anno 26 Edw. 3. ex eodem rot. Rex Henrico de Percey, Ricarda de Nevil, &c. Volumus et vobis et alteri vestrum tenore praesentium committimus et mandamus, quod homines nostri de Scot’ ad pacem et obedientiam nostram existentes, legibus, libertatibus, et liberis consuetudinibus, quibusipsietantecessores sui tempore celebris memoriae Alexandri quondam Regis Scot’ rationabiliter usi fuerunt, uti ut gaudere deberent, prout in quibusdam indenturis, &c. plenius dicitur contineri.209 And there is a Writ in the Register 295 a. Dedimuspotestatem recipendi ad fidem et pacem nostram homines de Galloway.210 Now the case in 42 Edw. 3. 2. (which was within sixteen years of the said grant, concerning the Lawes in 26 Edw. 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 Kingdome governed by several Lawes, &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 Barwick is no part of England, nor governed by the Lawes of England; and yet they that have been born there, since they were under the obedience of one King, are natural born Subjects, and no aliens, as it appeareth in 15 Rich. 2. cap. 7, &c. Vide 19 Hen. 6. 35. & 39 Hen. 6. 39. 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, whiles the Heptarchy lasted, seven several crowned Kings of several and distinct Kingdomes, but in the end the West Saxons got the Monarchy, and all the other Kings melted (as it were) their 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 Kingdomes, aliens one to another? Certainly they being born under the obedience of one King and Sovereign were all natural born subjects, and capable of and inheritable unto any lands in any of the said Kingdomes.
|[24 a] In the holy History reported by St. Luke, Ex dictamine spiritus sancti, cap. 21 et 22 Act. Apostolorum,211 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, 39 verse, by his own words: Ego homo sum quidem Judaeus a Tarso Ciliciae non ignotae civitatis municeps.212 And in the 22d chapter, 3. verse, Ego sum vir Judaeus natus Tarso Ciliciae, &c.213 and then made that excellent Sermon there recorded, which when the Jews heard, the Text saith, verse 22. Levaverunt vocem suam dicentes, tolle de terra hujusmodi, non enim fas est eum vivere: vociferantibus autem eis et projicientibus vestimenta sua, et pulverem jactantibus in aerem,214 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 caedi, et 3. torqueri eum (quid ita?) ut sciret propter quam causam sic acclamarent:215 and when they had bound Paul with cords, ready to execute the Tribune’s unjust commandment, the blessed Apostle (to avoid unlawfull and sharp punishment) took hold of the law of a heathen Emperour, and said to the Centurion standing by him, Si hominem Romanum et indemnatum licet vobis flagellare?216 Which when the Centurion heard, he went to the Tribune and said, Quid acturus es? Hic enim homo civis Romanus est.217 Then came the Tribune to Paul, and said unto him: Dic mihi si tu Romanus es? At ille dixit, etiam.218 And the Tribune answered, Ego multa summa civitatem hanc consequutus sum.219 But Paul not meaning to conceal the dignity of his birth-right, said, Ego autem et natus sum:220 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 birth-right and inheritance. Protinus ergo (saith the text) decesserunt ab illo qui illum torturi erant. Tribunus quoque timuit postquam rescivit, quia civis Romanus esset, et quia alligasset eum.221 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 Emperour, 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 Emperour of Rome had several ligeances for every several Kingdome and Countrey under his obedience, then might it have been said against St. Paul, that he was extra |[24 b] ligeantiam Imperatoris regni sui Italiae, et infra ligeantiam Imperatoris regni sui Ciliciae, &c.222 But as Saint Paul was Judaeus patria et Romanus privilegio, Judaeus natione et Romanus jure nationum;223 so may Calvin say, that he is Scotus patriae et Anglus privilegio; Scotus natione, et Anglus jure nationum.224
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 incaptivity, was after inhabited by the Panyms. Now albeit Samaria of right belonged to Jurie, 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 Alienigenae, 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 magna voce magnificans Deum, et cecidit in faciem ante pedes ejus gratias agens, et hic erat Samaritanus. Et Jesus respondens dixit, Nonne decem mundati sunt, et novem ubi sunt? Non est inventus qui rediret et daret gloriam Deo nisi hic alienigena.225 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.226 And this agreeth with the Divine, who saith, Si locus salvare potuisset, Satan de coelo pro sua inobedientia non cecidisset. Adam in paradiso non cecidisset, Lot in monte non cecidisset, sed potius in Sodom.227
6. Now resteth the sixth part of this division, that is to say, six demonstrative illations, 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; ergo he cannot be an alien by birth. Vide 33 Hen. 6. fol. 1. the differencebetween an alien enemy and a subject traytor. Hostes sunt qui nobis, vel quibus nos bellum decernimus, caeteri proditores, praedones, &c.228 The major is apparent, and is proved by that which hath been said. Et vide Magna Charta, cap. 30. 19 Edw. 4. 6. 9 Edw. 3. c. 1. 27 Edw. 3. c. 2. 4 Hen. 5. c. 7. 14 Edw. 3. stat. 2. c. 2. &c.
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.
|[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,229 or inimicus:230 But Calvin at his birth could neither be amicus nor inimicus; ergo he is no stranger born. Inimicus he cannot be, because he is subditus, and for that cause also he cannot be amicus; neither now can Scotia be said to be solum amici,231 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 onely mark to distinguish a subject from an alien) could not be altered; therefore it remaineth still due by the Law of Nature. For Leges naturae perfectissimae sunt et immutabiles, humani vero juris conditio semper in infinitum decurrit, et nihil est in eo quod perpetuo stare possit. Leges humanae nascuntur, vivunt, moriuntur.232
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 propositiones perspicue verae.233 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 onely shall have them, though they be holden of a subject, in which case the subject loseth his Seigniorie. And as it is said in our Books, an Alien may purchase ad proficuum Regis;234 but the act of Law giveth the alien nothing: And therefore if a woman alien marrieth a subject, she shall not be endowed, neither shall an alien be tenant by the courtesy. Vide 3 Hen. 6. 55. 4 Hen. 3. 179. 3. The subject shall plead, that the defendant is an |[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 onely means to make aliens friends, et foedera percutere,235 to make Leagues, onely and wholly pertaineth to the king. 5. Wars do make aliens enemies, and bellum indicere236 belongeth onely and wholly to the king, and not to the subject, as appeareth in 19 Edw. 4. fol. 6. 6. The King onely without the subject may make not onely Letters of Safe conduct, but Letters Patents 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 doe 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 number of other cases, 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 Hen. 7. fol. 8.) For the Law esteemeth it a point of high Prerogative, Jus majestatis, et inter insignia summae potestatis237 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 is. And therefore by the Statute of 27 Hen. 8. cap. 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 from the Crown, were again reunited 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 an alien, leagues and wars between aliens, denizations, and safeconducts of aliens, have aspect onely and wholly unto the king. It followeth therefore, that no man can be alien to the subject that is not an alien to the king, Non potest esse alienigena corpori, qui non est capiti, non gregi qui non est Regi.238
The authorities of Law cited in this case for maintenance of the Judgment, 4 Hen. 3. tit. Dower. Bracton lib. 5. fol. 427. Fleta, lib. 6. cap. 47. In temps E. 1. Hingham’s Report. 17 Edw. 2. cap. 12. 11 Edw. 3. |[26 a] cap. 2. 14 Edw. 3 Statut. de Franciâǎ. 42 Edw. 3. fol. 2. 42 Edw. 3. cap. 10. 22 Lib. Ass. 25. 13 Rich. 2. cap. 2. 15 Rich. 2. cap. 7. 11 Hen. 4 fol. 19 13 Hen. 4. fol. 26. 14 Hen. 4. fol. 19. 13 Hen. 4. Statutum de Guyan. 29 Hen. 6. tit. Estoppel 48. 28 Hen. 6. cap. 5. 32 Hen. 6. fol. 23. 32 Hen. 6. fol. 26. Littl. temps Edw. 4. lib. 2. cap. Villenage. 15 Edw. 4. fol. 15. 19 Edw. 4. 6. 22 Edw. 4. cap. 8. 2 Rich. 3. 2. and 12. 6 Hen. 8. fol. 2. Dyer. 14 Hen. 8. cap. 2. No manner of stranger born out of the King’s obeysance, 22 Hen. 8. cap. 2. Every person born out of the Realm of England, out of the King’s obeysance, 32 Hen. 8. cap. 16. 25 Hen. 8. cap. 15, &c. 4 Ed. 6. Plowd. Comment. fol. 2. Fogasse’s case. 2 and 3 Phil. and Mar. Dyer 145. Shirley’s case. 5 Eliz. Dyer 224. 13 Eliz. cap. 7. de Bankrupts. All Commissions ancient and late, for the finding of offices, to entitle the King to the lands of the Aliens born: Also all Letters Patents of Denizationofancient and later times do prove, That he is no alien that is born under the king’s obedience.
The 5th general part concerning inconveniences.Now we are come to consider of legal inconveniences: And first of such as have been objected against the Plaintiff, and, secondly of such as shouldfollow, if it had been adjudged against the Plaintiff.
Of such inconveniences as were objected against the Plaintiff, there remain onely 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 that 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 tryable in England, for that it is a thing done out of this Realm, and no Jury can be returned for the tryal of any such Issue: And what inconvenience should thereof follow, if such pleas that wanted tryal 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 |[26 b] follow, if (for the punishment of us all) the King’s royal Issue should faile, &c. whereby those kingdomes 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 onely to the Laws of this Realm, but also to all services and contributions, and to the payment of Subsidies, Taxes, and publique 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,239 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, Jernsey, or Gersey, 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, Jernsey, Gersey, &c. have lands within England, and dwell here, they shall be subject to all services and publique 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.
2. Concerning the tryal, 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, Jernsey, and Gersey, 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 or places, for trial of their births there. 2. If the demandant or plaintiff in any action concerning lands be born in Ireland, Jernsey, Gersey, &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 soever: 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 |[27 a] out of the Realm in this and like cases, vide 7 Hen. 7. 8. b. 20 Edw. 3. Averment 34. 5 Ric. 2. tit. Trial 54. 15 Edw. 4. 15. 32 Hen. 6. 25. Fitz. Nat. Br. 196. Vid Dowdales case in the sixth part of my Reports, fol. 47. and there divers other judgments be vouched. 3. Brown in Anno 32 Hen. 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 fuit240 And 20 Ed. 3. tit. Averment 34. in a juris utrum,241 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. Bre. 196 in a Mortdanc,242 if the ancestor died in intinere peregrinationis sum vers. Terram sanctam243 the Jury shall inquire of it. But in the case at barr, 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 especial matter, even as if a Jury upon an issue joyned in England, as it is aforesaid, had found the especial 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 it appeareth by the books and book cases 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 domesticae voluntatis, sed juxta leges et jura pronuntiat.244 And as for timores,245 fears grounded upon no just cause, Qui non cadunt in constantem virum, vani timores aestimandi sunt.246
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 |[27 b] uniting of the kingdoms by descent subsequent, cannot make him a Subject to that Crown to which he was an 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, whiles 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,247 as Bracton saith in the afore remembered place, fol. 427. Sicut Anglicus non auditur in placitando aliquem de terris et tenement, in Francia ita nec debet Francigena et alienigena, qui fuerit ad fidem Regis Franciae, audiri placitando in Angiui: sed tamen sunt aliqui Francigenae in Francia qui sunt ad fidem utriusque: et semper fuerunt ante Normaniam deper ditam et post, et qui placitant hic et ibi, ea ratione qua sunt ad fidem utriusque, sicut fuit Willielmus comes mareschallus et manens Angiui, et M. de Gynes manens in Francia, et alli plures.248 Concerning the reason drawn from the Etymologies, it made against them, for that by their own derivation, alienae gentis249 and alienaeligeantiae250 is all one: But arguments drawn from Etymologies, are too weak and too light for Judges to build their judgments upon: for Saepenumero ubi proprietas verborum attenditur, sensus veritatis amittitur:251 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 Plaintiffshould be allowed: for first it maketh Ligeance local: videlicet, Ligeantia Regis regni sui Scotiae, and Ligeantia Regis regni sui Angliae:252 whereupon should follow, First, That faith or ligeance, which is universal, should be confined within locall limits and bounds; Secondly, That the Subject should not be bound to serve the King in peace or in warre out of those limits; Thirdly, it should illegitimate many, and some of noble blood, which were born in Gascoign, Guyen, Normandie, Callice, Tournay, France, and divers other of his Majesties Dominions, whiles the same were in actual |[28 a] obedience, and in Berwick, Ireland, Jernsey, and Gersey, 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 publiquely 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 doubtfull 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 for difficulty, for all they in their arguments una voce253 concurred with the judgment. Fourthly, That never any case was adjudged in the Exchequer Chamber with greater concordance and lesse variety of opinions, the Lord Chancellor and twelve of the Judges concurring in one opinion. Fifthly, That there was not in any remembrance sohonourable, great, and intelligent an auditory at the hearing of the arguments of any Exchequer Chamber case, as was at this case now adjudged. Sixthly it appeareth, that Jurisprudentia legis communis Angliae est scientia socialis et copiosa:254 sociable, in that it agreeth with the principles and rules of other excellent Sciences, divine and human: copious, for that quamvis ad ea quae frequentius accidunt jura adaptantur,255 yet in a case so rare, and of such a quality, that losse 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 book cases, for the deciding of a point of so rare an accident. Et sic determinata et terminata est ista quaestio.256
|[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 King 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, 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.”
The Case of Swans.
(1592) Trinity Term, 34 Elizabeth I
Before the Queen’s Commissioners.
First Published in the Reports, volume 7, page 15b.
Ed.: Joan Young and Thomas Saunger received a writ from the Exchequer, directing the sheriff of Dorset to round up 400 loose swans from the rivers of the county. Swans are Royal fowl, however, and a wild swan is the property of the monarch. The right to these swans in Dorset was once held by the local abbot, who lost the right along with the abbey to Henry VIII at the dissollution. Henry then granted the estate to Giles Strangeways, whose heir gave them a right to the swans for one year. The question is whether the swans were Strangeways’s or remained the Queen’s. Coke, as Solicitor General, represented the Queen. The Court held that the swans that are ferae naturae, or wild animals, cannot be given by transfer or taken by prescription.
Between the Queen, and the Lady Joan Young, late the wife of Sir John Young Knight deceased and Thomas Saunger defendants, the Case was such. An Office was found at W. in the County of Dorset, 18th of September Ann. 32 Eliz. before Sir Matthew Arundel and other Commissioners of the Queen under the great Seal, Quod a villa de Abbotsbury, in praed’ com’ Dorset, usque ad mare per insulam de Portland in eodem Com’ est quaedam aestuaria, Anglicè a Mere or Fleet, in quam mare fluit et refluit, in qua quidem aestuaria sunt 500 cigni, quorum 410. sunt albi, et 90 cignetti, et quod omnes praedicti cigni et cignetti sunt in possessione J. Young & Tho. Saunger, & quod quilibet eorum est valoris 2s. 6d. quodque major pars tempore captionis dictae inquisitionis minime fuer’ signat’:1 hich Office being certified into the Exchequer, a writ was directed to the Sheriff of the same County to seise all the said white Swans not marked, by force whereof the Sheriff returned, that he had seised 400 white Swans, &c. To which afterwards, Hil. 34 Eliz. the said |[16 a] Joan Young and Thomas Saunger pleaded; Quod praedict’ aestuaria sive aqua, jacet in paroch’ de Abbotsbury in Com. Dorset2 and abutted it) and that before the Inquisition taken, the Abbot of Abbotsbury was seised de praed’ aestuaria, et de ripis et solo ejusdem3 in fee, and that at the time of the inquisition, and time out of mind, fuit et adhuc est quidam volatus cignorum et cignettor’ feror’, vocat’ a game of wild swans, &c. in aestuaria sive aqua illa, et ripis, et solo ejusdem nidificant’, gignen’ et frequentant’ Anglice haunting, de quo quidem volatu cignor’etcignettor’ praed’ abbas et omnes praedecessores sui Abbates Monasterii praed’, per totum tempus praedict’ habuere et gavisi fuerunt, et habere et gaudere consueverunt, tot’ profic’ et increment’ omnium et singulor’ cignor’ et cignettor’ feror’, in aestuaria praed’ nidificant’, gignen’ et frequent’ qui quidem cigni et cignetti per totum tempus praed’ fuerunt ferae naturae, et infra idem tempus iidem cigni et cignetti seu eorum aliqui aliquo signo non usi fuissent, nec consuevissent signari, nisi quod praed’ nuper Abbas et praedecessores sui praed’ per totum tempus praed’ ad eorum libitum quosd’ seu aliquos de minorib’ cignettis annuatim pullulant’ quos ad usum et culinae et hospitalitatis suae statuerunt expendend’, in hunc modum annuatim signare consueverunt, et usi fuerunt viz. amputare mediam juncturam unius alae, Anglice, to cut off the pinion of one wing, cujuslibet talis cignetti, ea intentione, quod cignetti sic amputati minime valerent avolare.4 And afterwards the Abbot surrendered the premises to King Henry the eighth who anno 35 of his Reign granted to Giles Strangways, Esq. by his Letters Patent inter alia, totam illam liberam Piscariam nostr’ in aqua, vocat’ the Fleet Abbotsbury praed’, ac omnia messuag’, aquas, piscat’ et caetera haereditam’ nostr’ quaecunque in Abbotsbury, in dict’ Com’ Dorset dict’ nuper Monasterio, &c. adeo plene et integre, &c. et in tam amplis modo et forma &c.5 and that the said Giles died, and that the same descended to Giles Strangways his Cousin and heir, who demised to the Defendants the said Game of swans for one year, &c. and prayed quod manus dictae dominae Reginae amoveantur.6 Upon which the Queen’s Attorney did demur in the law.
1. It was Resolved, That all white Swans not marked, which having gained their natural liberty, and are swimming in an open and common River, might be seised to the King’s use by his prerogative, because that Volatilia, (quae sunt ferae naturae) alia sunt regalia, alia communia: and so Aquatilium, alia sunt regalia, alia communia:7 as a Swan is a Royal fowl; and all those, the property whereof is not known, do belong to the King by his prerogative: and so Whales and Sturgeons are Royal Fishes, and belong to the King by his Prerogative. And there hath been an ancient Officer of the King’s, called Magister deductus cignorum,8 |[16 b] which continueth to this day. But it was Resolved also, That the subject might have property in white Swans not marked, as some may have swans not marked in his private waters, the property of which belongs to him, and not to the King; and if they go out of his private waters into an open and common River, he may bring them back and take them again. And therewith agreeth Bracton, lib. 2. cap. 1. fo. 9. Si autem animalia fera facta fuerint mansueta, & ex consuetudine eunt, & redeunt, volant, & revolant, (ut sunt Cervi, Cigni, Pavones, et Columbae, et hujusmodi) eousque nostra intelligantur, quamdiu habuerint animum revertendi.9 But if they have gained their natural liberty, and are swimming in open and common Rivers, the King’s Officer may seise them in the open and common River for the King: for one white Swan, without such pursuit as aforesaid, cannot be known from another, and when the property of a swan cannot be known, the same being of its nature a Fowl Royal, doth belong to the King; and in this case the book of 7 Hen. 6. 27.wasvouched, where Sir John Tiptoft brought an action of Trespass for wrongful taking of his Swans; the Defendant pleaded that he was seised of the Lordship of S. within which Lordship, all those whose estate he hath in the said Lordship, had had time out of mind, &c. all estreies being within the said Manor; and we say that the said Swans were estraying at the time in the place where, &c. and we as Landlords did seise and make proclamations in Fairs and Markets, and so soon as we had notice that they were your Swans, we delivered them to you at such a place. The Plaintiff replied, That he was seised of the Manor of B. joining to the Lordship of S. and we say, that we and our Ancestors, and all those, &c. have used time out of mind, &c. to have Swans swimming through all the Lordship of S. and we say, that long time before the taking we put them in there, and gave notice of them to the Defendant that they were our Swans; and prayed his Damages. And the opinion of Strange there was well approved by the Court, that the Replication was good: For when the Plaintiff may lawfully put his swans there, they cannot be estrays, no more than the Cattle of any can be estrays in such place where they ought to have Common; because they are there where the Owner hath an interest to put them, and in which place they may be without negligence or laches10 of the Owner. Out of which Case, these points were observed concerning Swans, 1. That every one who hath Swans within his Manor, that is to say, within his private waters, hath a property in them, for the Writ of Trespasswas of wrongful taking his Swans; scil. Quare cignos suos &c.11 2. That one may prescribe to have a game of Swans within his Manor, as well as a Warren, or Park. 3. That he who hath such a game of Swans may prescribe, that his Swans may swim within the |[17 a] Manor of another. 4. That a swan may be an Estray, and so cannot any other Fowl, as I have read in any Book. In 2 Rich. 3. 15 & 16. The Lord Strange and Sir John Charlton brought an Action of Trespass against 3, because the Defendants had taken and carried away 40 Cygnets of the Plaintiff’s in the County of Bucks, to his damages of 10 l. One of the Defendants pleaded, That the water of the Thames ran through the whole realm, and that the County of Buckingham is adjoining to the Thames, and that the custom of the said County of Buckingham is, and hath been time out of mind, &c. That every Swan (for Cignet in the book is taken for a Swan) which hath course in any water, which water runs to the Thames within the same County. That if any Swan cometh on the land of any man, and there builds, and hath Cignets on the same land, that then he who hath the property of the Swan shall have 2 of the Cignets, and he who hath the land shall have the third Cignet, which shall be of less value than the other 2; and that was adjudged a good custom, because the possessor of the Land suffers them to build there, where he may drive them off. And by this Judgment it also appears, That a man may allege a Custom or Prescribe in Swans or Cignets. And in the same Case it is said, That the truth of the matter was, that the Lord Strange had certain Swans which were Cocks, and Sir John Charleton certain Swans which were Hens, and they had Cignets between them; and for these Cignets the owners did join in one Action, for in such case by the general custom of the Realm, which is the Common Law in such case, the Cignets do belong to both the owners in common equally, scil. to the owner of the Cock, and the owner of the Hen; and the Cignets shall be divided betwixt them. And the Law thereof is founded on a reason in nature; for the Cock Swan is an emblem or representation of an affectionate and true Husband to his Wife above all other Fowle; for the Cock Swan holdeth himself to one female only; and for this cause nature hath conferred on him a gift beyond all others; that is, to die so joyfully, that he sings sweetly when he dies; upon which the Poet saith,
And therefore this case of the Swan doth differ from the case of Kine, or other brute beasts. Vide 7. Hen. 4. 9. And it was agreed that none can have a Swan mark, which in Latin is called cigninota13 if it not be by the grant of the King, or of his Officers authorised thereto, or by prescription. And if he hath a lawful Swan-mark, and hath Swans swimming in open and common Rivers, lawfully marked therewith, they belong to him ratione privilegii.14 But none shall have a Swan-mark, or Game of Swans, if he hath not Lands or Tenements of an Estate of Freehold of the yearly value of five Marks, above all charges, on pain of forfeiture of his Swans, whereof the King shall have one moiety, and he who seises shall have the other moiety: and that is by the stat. of 22 Edw. 4. cap. 6. And he who hath such Swan-mark may grant it over. And thereof I have seen a notable precedent in the time of Henry the sixth which is such, Notum sit omnib’ hominib’ praesentib’ et futuris, quod ego J. Steward Miles, dedi et |[17 b] concessi Tho’ fil’ meo primogenito, et haeredib’ suis, cigninot’ meam armor’ meor’, prout in margine laterali pingitur, quae mihi jure haereditar’ descendeb’ post mort’ J. Steward mil’ patris mei: Habend’ sibi et haeredib’ suis, una cum omnib’ cignis et cignicul’ cum dicta nota baculi nodati signat’, sub condit’ quod quilib’ feria solis durante vita a gula Augusti, usque ad Cornisprivium apud dom’ meam de Darford, unum cignicul’ bene signat’ mihi aut meis deliberet, quod si defecerit, tunc volo, quod hoc praesens chirographum cassetur penitus, et pro nihilo habeatur. In cuj’ rei testimon’ ad instant’ Matildae uxor’ meae, meum sigil’ secret’ Christi crucifixi praesentib’ feci apponi. Hiis testib’ R. Clerico, J. D. Conyers, Alano Fabro, et al’ Dat. apud dom’ meam mansional’ de Darf. in vigilia S. Dunst’ ep’ an’ regni Regis Hen’ post conquest’ Angliae sexti.15 14. And in the Margent was printed a little ragged staff. And in this case it was resolved, that in some of them which are ferae naturae,16 a man hath jus proprietatis,17 a right of property, and in some of them a man hath jus privilegii,18 a right of privilege. And there are three manner of rights of property, scil. property absolute, property qualified, and property possessory. A man hath not absolute property in any thing which is ferae naturae, but in those which are domitae naturae.19 Property qualified and possessory a man may have in those which are ferae naturae; and to such property a man may attain by two ways, by industry, or ratione impotentiae et loci;20 by industry as by taking them, or by making them mansueta, i.e. manui assueta, or domesticae, i.e. domui assueta:21 But in those which are ferae naturae, and by industry are made tame, a man hath but a qualified property in them, scil. so long as they remain tame, for if they do attain to their natural liberty, and have not animum revertendi,22 the property is lost, ratione impotentiae et loci: As if a man has young Shovelers or Goshawks, or the like, which are ferae naturae, and they build in my land, I have possessory property in them, for if one takes them when they cannot fly, the owner of the soil shall have an action of Trespass, Quare boscum suum fregit, et tres pullos espervor’ suor’, or aidear’ suar’ pretii tantum, nupe in eod’ bosco nidificant’, cepit, et asportav’;23 and therewithagreeth the regist. and F. N. B. 86. (D) L. & 89. K. 10 Edw. 4. 14. 18 Edw. 4. 8. 14 Hen. 8. 1 b. Stamf. 25 b. &c. vide 12 Hen. 8. 4. & 18. Hen. 8. 12. But when a man hath savage beasts ratione privilegii, as by reason of a Park, Warren, &c. he hath not any property in the Deer, or Conies, or Pheasants, or Partridges, and therefore in an action, Quare Parcum Warrennum, &c. fregit et intrav’, et 3. damas, lepores, cuniculos, phasianos, perdices, cepit et asportavit,24 he shall not say (suos)25 for he hath no property in them, but they do belong to him ratione privil’ for his game and pleasure, so long as they remain in the privileged place; for if the owner of the Park dies, his heir shall have them, and not his Executors or Administrators, because without them the Park, which is an |[18 a] Inheritance, is not complete; nor can Felony be committed of them, but of those which are made tame, in which a man by his industry hath any property, Felony may be committed. And therewith agrees the rule of the book in 3 Hen. 6. 55 b. 8 Edw. 4. 5 b. 22 Hen. 6. 59. which is ill reported, and 43 Edw 4. 24. vide 22 Ass. 12 Hen. 3. 13 Eliz. Dyer 306. 38 Edw. 3. 19. Vide 2 Edw. 2. tit. Distress. 2 Edw. 3. Avowry 182. But a man may have property in some things which are of so base nature, that no Felony can be committed of them; and no man shall lose life or member for them, as of a Blood-hound or Mastiff, molessus,26 12 Hen. 8. 3. Vide 18 Hen. 8. 2. But he who steals the Eggs of Swans out of the Nest shall be imprisoned for a year and a day, and fined at the will of the King; one moiety to the King, the other to the owner of the Land where the eggs were so taken, and that is by the Statute of 11 Hen. 7. cap. 17. And it hath been said of old time, That he who steals a Swan in an open and common River, lawfully marked, the same Swan (if it may be) or another swan, should be hung in a house by the beak, and he who stole it shall in recompence thereof be obliged to give the owner so much Wheat that may cover all the swan, by putting and turning the Wheat on the head of the Swan, until the head of the Swan be covered with the Wheat. And it was resolved, That in the principal case the prescription was insufficient; for the effect of the prescription is to have all wild Swans, which are ferae naturae,27 and not marked nidificant, gignent, et frequentant’,28 within the said Creek. And such prescription for a Warren would be insufficient, scil. to have all Pheasants and Partridges, nidificantes, gignentes,29 and frequenting within his Manor. But he ought to say, to have free Warren of them within his Manor: For although they are nidificantes, gignentes, and frequenting withinthemanor, he cannot have them jure privilegii,30 but so long as they are within the place. But it was resolved, That if the defendants had alleged, that within the said Creek there had been time out of mind &c. a game of wild Swans not marked, building and breeding; and then had prescribed, that such Abbot and all his Predecessors, &c. had used at all times to have and take to their use some of the said Game of wild Swans and their Cignets within the said creek, it had been good; for although Swans are royal Fowls, yet in such a manner a man may prescribe in them: for that may have a lawful beginning by the King’s grant: For in Rot. Parliam 16 Rich. 2. part. 1. numero. 3a. like grant was of wild Swans unmarked in the County of Cambridge, to B. Bereford, Knight. The like grant in Rot Parl. anno 30 Edw. 3 part 2. num. 20. the King granted to C. W. all his wild Swans unmarked between Oxford and London for seven years. In Rot. Parl. an. 1 Hen. 4. part. 6. numer. 14. A grant was made to John Fenne, to survey and keep all wild swans unmarked; ita quod de proficuo respondeat ad Scaccarium.31 |[18 b] By which it appear, that the King may grant wild Swans unmarked; and by consequence a man may prescribe in them within a certain place, because it may have a lawful beginning. And a man may prescribe to have Royal Fish within his Manor, as it is held in 39 Edw. 3. 35. for the reason aforesaid. And yet without prescription they do belong to the King by his Prerogative.
(1605) Hilary Term, 2 James I.
Before all the Justices of England.
First Published in the Reports, volume 7, page 36b.
Ed.: Queen Elizabeth issued a grant that would allow its recipient to be free of the burdens of a penal statute, giving the grant before there was a judgment against the recipient for violating the statute. The grant also allowed the recipient to give similar dispensations to others. This is contrary to the law and will not be allowed, a view that would be reflected in the seventeenth century in England’s Bill of Rights. This case is an important illustration of common law limits on Royal authority and is essentially an enforcement of separation of powers between the Parliament and the Crown. Look for wonderful metaphors on the King’s powers in law, and their limits.
This Term upon Letters directed to the Judges to have their Resolution concerning the validity of a Grant made by Queen Elizabeth, under the great Seal, of the penalty and benefit of a penal Statute, with power to dispense with the said statute, and to make a warrent to the Lord Chancellor, or Keeper of the great Seal, to make as many dispensations, and to whom he pleased; And upon great Consideration and deliberation by all the Judges of England, It was Resolved, That the said grant was utterly against Law. And in this case these points were Resolved, 1. That when a Statute is made by Parliament for the good of the Commonwealth, the King cannot give the penalty, benefit, and dispensation of such Act to any subject; Or give power to any subject to dispense with it, and to make a warrant to the great Seal for Licences in such case to be made: For when a Statute is made pro bono publico,1 and the King (as the head of the Commonwealth, and the fountain of Justice and Mercy) is trusted the whole Realm with it; this confidence and trust is so inseparably joined and annexed to the person of the King in so high a point of Sovereignty, that he cannot transfer the same to the disposition or power of any private person, or to any private use: for it was committed to the King by all his Subjects for the good of the Commonwealth. And if he may grant the penalty of one Act, he may grant the penalty of Two, and so in infinitum.2 And such grant of a penalty was never seen in our Books. But it is true, the King may (upon any cause moving him in respect of time, place, or person, &c.) make a Non Obstante3 |[37 a] to dispense with any particular person, that he shall not incur the penalty of the Statute, and therewith agree our books. But the King cannot commit the Sword of his Justice, or the Scale of his Mercy, concerning any penal Statute to any subject, as is aforesaid. 2. It was also Resolved, That the penalty of an Act of Parliament cannot be levied by any grant of the King, but only according to the purpose and purview of the Act: for the Act which gives the penalty ought to be followed only in the prosecution and levying thereof: and great inconveniences would thereon follow, if penal Laws should be transferred to subjects. 1. Justice thereby should be scandalized; for when such Forfeitures are granted, or promised to be granted before they are recovered, the same is the cause of a more violent and undue proceeding. 2. When it is publicly known, that the Forfeiture and penalty of the Act of Parliament is granted, it is a great cause that the Act itself is not executed; for the Judge and Jurors, and every other, is thereby discouraged. 3. Thereupon would follow, that no penalty should by any Act of Parliament be given to the King, but limited to such uses with which the King could not dispense. And hereupon divers who had sued to have the benefit of certain penal Laws, were upon this Resolution denied. And the Certificate of all the Judges of England concerning such grants of penal Laws and Statutes was in these words. “May it please your lordships, we have (as we are required by your honourable Letters of the 21st of October last) conferred and considered amongst ourselves (calling to us his Majesty’s Counsel learned) of such matters as were thereby referred unto us, and have thereupon, with one consent, resolved for Law and conveniency as followeth: First, That the prosecution and execution of any penal Statute cannot be granted to any, for that the Act being made by the policy and wisdom of the Parliament for the general good of the whole Realm, and of trust committed to the King, as to the head of Justice, and of the weal public, the same cannot by Law be transferred over to any subject; neither can any penal Statute be prosecuted or executed by his Majesty’s grant, in other manner or order of proceeding, than by the Act itself is provided and prescribed: Neither do we find any such grants in any former ages: And of late years, upon doubt conceived, that penal Laws might be sought to be granted over, some Parliaments have forborn to give forfeitures to the Crown, and have disposed thereof to the relief of the Poor, and other charitable uses, which cannot be granted or employed otherwise. We are also of opinion, That it is inconvenient, that the Forfeitures upon penal Laws or others oflikenature. should be granted to any other before the same be recovered or vested in his Majesty by due and lawful proceeding; for that in our experience |[37 b] it maketh the more violent and undue proceeding against the subject, to the scandal of Justice, and the offence of many. But if by the industry or diligence of any, there accrueth any benefit to his Majesty, after the recovery, such have been rewarded out of the same at the King’s good pleasure, &c. Dated 8 November, 1604.” And to this Letter all the Judges of England set their hands.
[1. ][Ed.: The hidden truth is opened up by frequent argument and conference, since hiding beneath the same words there is often a manifold understanding. The truth being frequently considered shines greater in the light.]
[2. ][Ed.: To God, to the country, to you.]
[3. ][Ed.: untrustworthy and unstable.]
[4. ][Ed.: a wave begets a wave,]
[5. ][Ed.: Labour adds work to work.]
[6. ][Ed.: The offence of introducing a foreign power into the Kingdom, used particularly to regulate Roman Catholics in the Kingdom.]
[7. ][Ed.: every day more people write, and every day worse.]
[8. ][Ed.: death in a jar.]
[9. ][Ed.: the labels whereof promise remedies, but the boxes themselves contain poison,]
[10. ][Ed.: I am not afraid of the sting of the flea and the humming of the drone.]
[11. ][Ed.: an enemy and a wicked man has scattered tares in the midst of the wheat.]
[12. ][Ed.: they all shouted with one voice.]
[13. ][Ed.: For force and wrong turn themselves around, and most often return to him from whence they came.]
[14. ][Ed.: I consider anything dangerous that is not proved by the example of good men.]
[15. ][Ed.: just as a prolonged illness grieves the doctor, so a prolix report grieves the reader.]
[16. ][Ed.: as far as may be, most things should be defined by the laws themselves and little should be left to the discretion of the judge.]
[1. ][Ed.: Those born after [the accession of James VI of Scotland to the throne of England].]
[2. ][Ed.: changing what ought to be changed.]
[3. ][Ed.: four nouns.]
[4. ][Ed.: operative nouns.]
[5. ][Ed.: allegiance.]
[6. ][Ed.: Within the allegiance of the Lord King of his realm of Scotland and outside the allegiance of the Lord King of his realm of England.]
[7. ][Ed.: the realm.]
[8. ][Ed.: the realm of England [and] the realm of Scotland.]
[9. ][Ed.: laws.]
[10. ][Ed.: laws of England [and] laws of Scotland.]
[11. ][Ed.: alien born.]
[12. ][Ed.: That the aforesaid Robert is an alien born, born on the fifth of November in the third year of the reign of the present Lord King of England, etc. at Edinburgh within the realm of Scotland and within the allegiance of the said Lord King of his said realm of Scotland and outside the allegiance of the said Lord King of his realm of England.]
[13. ][Ed.: when two rights (nay two realms) come together in one person, it is the same as if they were in several.]
[14. ][Ed.: born before [the union].]
[15. ][Ed.: And that at the time of the birth of the aforesaid Robert Calvin, and long before, and continuously thereafter, the aforesaid realm of Scotland was ruled and governed by the proper written and unwritten laws and statutes of the same realm and not by the written and unwritten laws and statutes of this realm of England, and it still is.]
[16. ][Ed.: of an alien people, that is, of an alien allegiance, is an alien born.]
[17. ][Ed.: at the present and in the future in perpetuity.]
[18. ][Ed.: of things which may be dug from the earth.]
[19. ][Ed.: a small thing in a great.]
[20. ][Ed.: a great thing in a small [matter].]
[21. ][Ed.: Examine the first generation.]
[22. ][Ed.: and diligently investigate the memory of [your] fathers.]
[23. ][Ed.: for we are yesterday’s men, and our life is but a shadow upon the earth.]
[24. ][Ed.: the best rule, than which nothing is more true or more settled in law, that no one ought to consider himself wiser than the laws.]
[25. ][Ed.: they.]
[26. ][Ed.: [they] will teach you and tell you, and speak eloquently from their heart.]
[27. ][Ed.: a question of law.]
[28. ][Ed.: A judge is the law speaking.]
[29. ][Ed.: Allegiance is a bond of faith. Allegiance is, as it were, the essence of law. Allegiance is a ligament, as it were a tying together of minds, just as a ligament is a connection of limbs and joints, etc.]
[30. ][Ed.: the bond of trust arising from lordship should be mutual, so that the lord owes as much to [his man] on account of lordship as he owes to his lord on account of lordship, save only reverence. Ed.: to rule and protect the subjects.]
[30. ][Ed.: the bond of trust arising from lordship should be mutual, so that the lord owes as much to [his man] on account of lordship as he owes to his lord on account of lordship, save only reverence. Ed.: to rule and protect the subjects.]
[31. ][Ed.: a dual and reciprocal tie, because just as the subject is bound in obedience to the king, so the king is bound to the protection of the subject; and therefore allegiance is properly so called from ligando (tying) because it contains within itself a two-way tie.]
[32. ][Ed.: the King is made in order to safeguard the law, the bodies and the goods of the subjects.]
[33. ][Ed.: protection attracts subjection, and subjection protection.]
[34. ][Ed.: under the power of the King.]
[35. ][Ed.: There is also an exception with respect to the person of the plaintiff, on account of a defect of birth, as where he is an alien born who owed allegiance [“was to the faith of”] the King of France, etc.]
[36. ][Ed.: or [the plaintiff] may say that he can claim no right as a parcener because he owes allegiance to [literally, is to the faith of] the King of France, because aliens born ought to be barred from suing in England until they owe allegiance to [are to the faith of] the king of England.]
[37. ][Ed.: concerning those born overseas.]
[38. ][Ed.: Saving the faith due to the lord king and his heirs.]
[39. ][Ed.: where the law makes no distinction, we ought not to distinguish.]
[40. ][Ed.: the law makes no distinction.]
[41. ][Ed.: all the points of difference.]
[42. ][Ed.: natural, absolute, pure and unlimited allegiance.]
[42a. ][Ed.: high allegiance.]
[43. ][Ed.: subject born.]
[44. ][Ed.: acquired allegiance.]
[45. ][Ed.: a subject made by gift.]
[46. ][Ed.: local allegiance.]
[47. ][Ed.: the aforesaid Lord Dacre, not regarding the duty of his faith and allegiance which naturally and rightfully he ought to have borne to the lord king, etc.]
[48. ][Ed.: against the Lord King, his sovereign and natural lord.]
[49. ][Ed.: that the aforesaid John, scheming, etc. the aforesaid Lord Philip and Lady Mary his sovereign lords.]
[50. ][Ed.: whose is to give, his is to dispose.]
[51. ][Ed.: against the duty of his allegiance.]
[52. ][Ed.: so much the more so.]
[53. ][Ed.: local allegiance is something mean and small, and extremely uncertain.]
[54. ][Ed.: neither the climate (lit. sky) nor the soil.]
[55. ][Ed.: against the Lady Queen, etc.]
[56. ][Ed.: his natural lady.]
[57. ][Ed.: from the law of nature, or custom.]
[58. ][Ed.: the ordinance of man.]
[59. ][Ed.: as a true and faithful liege of the Lord King.]
[60. ][Ed.: And that all princes and earls, peers, knights and free men ought to swear, etc. in the folkmoot, and likewise all peers of the realm and the knights and free men of the whole realm of Britain ought to do fealty to the lord king in full folk-moot, etc. This law was introduced by Arthur, who was once a most famous king of the Britons, [and] by authority of this law King Arthur expelled the Saracens and enemies from the realm, etc.; and by authority of this law King Ethelred on one and the same day killed the Danes throughout the realm. See Lambarde, under the laws of King Edward, etc., ff. 135 and 136.]
[61. ][Ed.: Liege Homage.]
[62. ][Ed.: it is owed to the King alone, without lordship or service.]
[63. ][Ed.: feudal Homage.]
[64. ][Ed.: by reason of fee or tenure: Know ye that we have respited the homage due to us from the lands and tenements which are held of us in chief.]
[65. ][Ed.: where.]
[66. ][Ed.: It is not an answer to the question ‘Where is he?’ to say that he is a true and faithful subject. However, the question ‘What kind of person is he?’ is rightly and aptly answered by saying that he is a true and faithful liege.]
[67. ][Ed.: and conversely.]
[68. ][Ed.: after many and various altercations.]
[69. ][Ed.: in the company.]
[70. ][Ed.: viceroy.]
[71. ][Ed.: by our command.]
[72. ][Ed.: in our following.]
[73. ][Ed.: foreign service.]
[74. ][Ed.: royal service.]
[75. ][Ed.: The King to all and singular admirals, chatelains, keepers of castles, vills and other fortresses, provosts, sheriffs, mayors, customers, keepers of ports and other maritime places, bailiffs, ministers, and others his faithful subjects, both overseas and on this side of the seas, to whom [these presents shall come], greeting. Know ye that we have taken into our protection and defence, and also under our security and safeguard, W., on his coming into our realm of England and into our power, both by land and by sea, with one yeoman (or valet), and whatsoever his things and goods, to remain for six months in order to treat with our beloved and faithful L. for the redemption of a prisoner of him the said L. within our realm and power, and then to return from thence to his own country. And therefore [we command you] etc. that you support, protect and defend the selfsame W. with his yeoman, things and goods aforesaid, coming into our realm and power aforesaid both by land and by sea and there remaining as aforesaid for the aforesaid cause, and returning from thence to his own country, not imposing [upon them injury] etc. or grievance. And if any wrong is done to them etc. you shall reform it. In [witness] whereof etc.; to last for six months. Witness, etc.]
[76. ][Ed.: allegiance (literally “faith”) and faithful subjects in parts [lands] beyond the seas.]
[77. ][Ed.: protection in parts [lands] beyond the seas.]
[78. ][Ed.: power in parts [lands] beyond the seas.]
[79. ][Ed.: The king to all and singular admirals, chatelains, keepers of castles, vills and other fortresses, provosts, sheriffs, mayors, customers, keepers of ports and other maritime places, bailiffs, ministers, and others his faithful subjects, both overseas and on this side of the seas, to whom [these presents shall come], greeting. Know ye that we have taken into our protection and defence, and also under our sure and safe conduct, J. the yeoman (or valet) of P. and L., burgesses of Lyons, our hostages, who by our licence is setting out to parts beyond the seas to obtain or bring his masters’ money, while he is going to the parts aforesaid, staying there, and returning from thence into England. And therefore we command you not to lay any injury, molestation etc. or grievance upon the same J. while going to the parts aforesaid, staying there, and returning from thence into England, as above, in his person, goods or things, nor (so far as you are able) to permit others to do so, but rather cause him to have at his own costs safe and sure conduct as he goes through your districts and as you are thereupon requested. And if any wrong is done to them etc., cause it to be reformed. In [witness] whereof etc.; to last for three years. Witness, etc.]
[80. ][Ed.: to his faithful [subjects].]
[81. ][Ed.: The king to all his stewards, mayors, jurats, peers, provosts, bailiffs and faithful subjects in the duchy of Aquitaine to whom [these presents shall come], greeting. Because our beloved T. and A., citizens of the city of Bordeaux, pursuing their rights before us in our chancery of England and Aquitaine, and fearing by reasonable conjectures the possibility of suffering grave damage through certain people threatening them, both in their bodies as in their goods, have made supplication unto us to provide royal protection: we, wishing to preserve the said T. and A. from undue oppression, have taken them the said T. and A., their things and rightful possessions, and whatsoever their goods, into our special protection and safeguard. And we enjoin and command you, and each of you, that you defend them the said T. and A., their servants, things, and whatsoever their goods, from violence and undue grievance, and maintain them in their rightful possessions. And if anything in prejudice of this our protection and safeguard should come to your attention, return things to their due condition. And that no one may excuse themselves by ignorance of our present protection and safeguard, cause it to be publicly announced in places where you shall be requested within your districts, forbidding all and singular under grievous penalties that they should not inflict any injury, molestation, damage or grievance upon the said A. and T., or their servants, in their persons or things; and, when you are thereunto requested, put our pensells (i.e. little banners or labels) on the places and goods of the selfsame T. and A., as a sign of protection and safeguard being remembered. In [witness] whereof, etc. Given in our palace of Westminster under the witness of the great seal, on the sixth day of August in forty-fourth year of Edward III.]
[82. ][Ed.: The king to all and singular his stewards, constables, chatelains, provosts, ministers and all bailiffs and faithful subjects in our lordship of Aquitaine to whom [these presents shall come], greeting. We, wishing graciously to favour G., and R. his wife, have taken them the said G. and R. and their servants and rightful possessions, and whatsoever their goods, into our protection and defence and into our special safeguard. Therefore we enjoin and command you, and each of you, that you support, protect and defend them the said G. and R., their men and servants, their rightful possessions, and whatsoever their goods, not inflicting upon them or (as far as you are able) permitting others to inflict upon them any injury, molestation, damage, violence, hindrance or grievance. And if any wrong is done to them or unduly committed against them, you are to correct it without delay and cause things to be returned to their due condition, as far as you know to belong to you and each of you, making pensells (i.e. little banners) upon their houses, as the custom is, as a token of our present safeguard. In [witness] whereof, etc.; to last for one year. Witness, etc.]
[83. ][Ed.: He who abjures the realm leaves the realm but not the king; he leaves the country, but not the father of the country.]
[84. ][Ed.: within the allegiance of the king of his realm of Scotland, and outside the allegiance of the king of his realm of England.]
[85. ][Ed.: Sutton said: Sir, she ought not to be answered, because she is French and not of the allegiance or faith of England, and he demanded judgment whether she ought to have an action.]
[86. ][Ed.: Sir, we will aver that she is not of the allegiance of England, nor of the king’s faith, and we demand judgment. And if you award that she should be answered, we will have enough to say.]
[87. ][Ed.: Outside the king’s allegiance of his realm of England.]
[88. ][Ed.: That natural allegiance is not confined by any enclosures, nor restrained by any bounds, nor constrained by any limits.]
[89. ][Ed.: [not now] to whom, but in what way, it is owed.]
[90. ][Ed.: the death and destruction of the lord king.]
[91. ][Ed.: against the duty of his allegiance.]
[92. ][Ed.: in the abstract (or literally, “of his genus”).]
[93. ][Ed.: in the individual.]
[94. ][Ed.: In faith.]
[95. ][Ed.: from unfeigned faith.]
[96. ][Ed.: And it is to be known that inheritance is a succession to all the right that the deceased ancestor had, by reason of whatsoever acquisition or succession, and elsewhere no succession is permitted by right of affinity.]
[97. ][Ed.: afterwards.]
[98. ][Ed.: by the sword.]
[99. ][Ed.: The banishment of Hugh Despenser; of Acquiring the Dominion of Things.]
[100. ][Ed.: For the king’s crown is to do justice, give judgment, and keep the peace, and without these things the crown can neither subsist or endure. These rights or jurisdictions cannot be transferred topersons or tenements, nor possessed by a private person—neither the usage nor the execution of the right—unless it was given to him from above as a delegated jurisdiction; and jurisdiction cannot be delegated without an ordinary jurisdiction remaining in the king himself.
[101. ][Ed.: Corona (the crown) is, as it were, cor ornans (an ornamenting heart), the ornaments whereof are mercy and justice.]
[102. ][Ed.: We call the judgment the crown of the law, because it is tied up with certain bonds whereby our lives are coerced as if by ties.]
[103. ][Ed.: in truth.]
[104. ][Ed.: we must speak as the common people.]
[105. ][Ed.: we must plead as the learned.]
[106. ][Ed.: appropriate in the fourth way. (legal allegiance)]
[107. ][Ed.: all, only and always.]
[108. ][Ed.: in chief.]
[109. ][Ed.: according to the law and custom of our realm of England.]
[110. ][Ed.: procedure for conviction for premunire.]
[111. ][Ed.: Writ to enforce crown rights in a living.]
[112. ][Ed.: by reason of majesty.]
[113. ][Ed.: by reason of necessity.]
[114. ][Ed.: by reason of utility.]
[115. ][Ed.: interregnum (interval between kings).]
[116. ][Ed.: by the law of the Crown,]
[117. ][Ed.: concerning allegiance.]
[118. ][Ed.: eternal law.]
[119. ][Ed.: for people who have no law naturally do those things which are of law.]
[120. ][Ed.: Honour [thy] father.]
[121. ][Ed.: father of the country.]
[122. ][Ed.: Every soul is subject to more sublime powers.]
[123. ][Ed.: Here God in the holy scriptures wills it to be laid down as the law of nature that every subject should obey the sovereign.]
[124. ][Ed.: The law of nature is that which has the same power among all men.]
[125. ][Ed.: Without government, no house, no city, no people, no kind of man, can stand, nor in the course of time can the world itself.]
[126. ][Ed.: give the laws.]
[127. ][Ed.: This was Priam’s burden, when, after his wont, he gave laws to the assembled peoples. [Virgil, Aeneid, 7. 246.].]
[128. ][Ed.: Trojan Acestes delights in his kingdom, proclaims a court, and gives laws to the assembled senate (lit. fathers). [Virgil, Aeneid, 5. 757.].]
[129. ][Ed.: Since men will not follow a law devised by one man, though it is equitable, [written] laws have been invented.]
[130. ][Ed.: It is in vain to make laws unless there are subjects and persons who will obey them.]
[131. ][Ed.: The laws of nature are immutable.]
[132. ][Ed.: A good king is not different from a good father, and patria (country) is so called from pater (father), because it has a common father who is pater patriae (father of the country).]
[133. ][Ed.: The union of husband and wife is by the law of nature,]
[134. ][Ed.: by the provision of man.]
[135. ][Ed.: the union of husband and wife.]
[136. ][Ed.: by the law of nature,]
[137. ][Ed.: indelible and immutable.]
[138. ][Ed.: Writ against those who introduce a foreign power to the Kingdom; used to regulate Roman Catholics.]
[139. ][Ed.: An outlaw is, as it were, put outside the law.]
[140. ][Ed.: he bears the head of the wolf.]
[141. ][Ed.: notwithstanding, words commencing a writ relieving someone of an obligation or power.]
[142. ][Ed.: those born after [the union].]
[143. ][Ed.: Because a violent passion (one made contrary to nature) becomes slower and weaker the closer it approaches its end, whereas a natural motion becomes faster and stronger.]
[144. ][Ed.: When two rights come together in one person, etc.]
[145. ][Ed.: and thus the union.]
[146. ][Ed.: a distinction is not to be made of realms, but of rulers; not of countries, but of fathers of countries; not of crowns, but of the crowned; not of municipal laws, but of king’s majesties.]
[147. ][Ed.: a coupling, and, as it were, an eye.]
[148. ][Ed.: separate things which ought to be conjoined.]
[149. ][Ed.: command John, earl of Richmond, guardian of the land and heir.]
[150. ][Ed.: And he (namely the steward of the hall of the king’s household) may lawfully do all these things by virtue of his office, notwithstanding any liberty—even in someone else’s realm—provided that the offender may be found in the king’s household. For example, in Paris in the fourteenth year of Edward I, Ingelram de Nogent happened to be arrested in the household of the king of England (the king himself then being in Paris) with discs of stolen silver recently made, the king of France being then present: and although the [jurisdiction of the] court of the king of France was claimed by the châtelain of Paris in respect of the aforesaid thief, whereupon a discussion occurred in the council of the king of France, at length it was decided that the king of England should use and enjoy that royal prerogative, and the privilege of his household; and he was convicted of larceny before Robert Fitz John, knight, then steward of the household of the king of England, by judgment of the court, and hanged on the gallows of St Germain des Pres.]
[151. ][Ed.: An alien born is of foreign birth or foreign allegiance, and is also called peregrinus (foreigner), alien, exotic, stranger, etc. A stranger is a subject who is born outside the land, that is, outside the king’s power.]
[152. ][Ed.: outside the allegiance of the lord king, etc. and within the allegiance of the other king.]
[153. ][Ed.: outside the kingdom.]
[154. ][Ed.: outside the law.]
[155. ][Ed.: outside allegiance.]
[156. ][Ed.: We hate the hawk because he always lives in arms.]
[157. ][Ed.: Whosoever should find a Frenchman, etc.]
[158. ][Ed.: outside the allegiance of the king of England.]
[159. ][Ed.: within the allegiance of the other king.]
[160. ][Ed.: owing allegiance to (literally, “to the faith of”) the king of France.]
[161. ][Ed.: Every Frenchman . . .]
[162. ][Ed.: . . . who in the time of our kinsman Edward had a share in the law and custom of the English . . .]
[163. ][Ed.: . . . paid what was called Scot and lot according to the law of the English.]
[164. ][Ed.: subject.]
[165. ][Ed.: friendly soil.]
[166. ][Ed.: perpetual enemies.]
[167. ][Ed.: a remote possibility.]
[168. ][Ed.: 2 Corinthians 6, 15: And what covenant has Christ with Belial? Or what has a believer to do with an infidel?
[169. ][Ed.: power of life and death.]
[170. ][Ed.: by that fact.]
[171. ][Ed.: a subject by reason of gift.]
[172. ][Ed.: gift.]
[173. ][Ed.: born within [the allegiance].]
[174. ][Ed.: in time of war.]
[175. ][Ed.: in time of peace.]
[176. ][Ed.: given at Westminster on the twenty-sixth day of September in the fourth year of our reign of France and in the seventeenth year of our reign of England.]
[177. ][Ed.: where the reason is the same, the law is the same; and where things are similar, the judgment is the same.]
[178. ][Ed.: in terms to be determined.]
[179. ][Ed.: if a written law ceases [to be in force], it is necessary to observe that which has been brought in by usage and custom; and, if that is lacking, recourse may be had to reason.]
[180. ][Ed.: If a written law ceases [to be in force], it is necessary to observe that which has been brought in by usage and custom; and, if that is lacking, then that which is nearest and consequent upon it; and, if that is not apparent, then it behoves to observe the rule used by Roman law.]
[181. ][Ed.: credit is to be given to anyone who is an expert in his craft and therefore in each by how he has practiced [the law]. And all prudent persons are accustomed to admit those things which are approved by those who are well versed in their craft.]
[182. ][Ed.: Writ to recover a presentation; a real action to determine a disputed title to an advowson, which was the control of the patronage of an ecclesiastical office that controlled land.]
[183. ][Ed.: outside the king’s allegiance of his realm of England and within the allegiance of his lordship of Gascony.]
[184. ][Ed.: exile is a deprivation of country, a change of native soil, a loss of native laws.]
[185. ][Ed.: in the king’s following.]
[186. ][Ed.: mandatory and remedial writs, and mandatory but not remedial writs. Mandatory and remedial writs . . .]
[187. ][Ed.: Writ brought by a person claiming a gift in tail.]
[188. ][Ed.: under the faith and allegiance by which you are held to us.]
[189. ][Ed.: from the rolls of the parliament of that year.]
[190. ][Ed.: that the king shall have escheats of Norman lands, etc.]
[191. ][Ed.: and this is likewise to be understood, if any inheritance descends to anyone born in parts beyond the seas, etc.]
[192. ][Ed.: because neither the aforesaid business nor any other business arising from the aforesaid island ought to be determined except in accordance with the law of the aforesaid island, etc.]
[193. ][Ed.: The king to his faithful [subjects] of Jersey and Guernsey.]
[194. ][Ed.: Earl of Anjou.]
[195. ][Ed.: The king to all [etc.], greeting. Know ye that we have given licence etc. to Artold, king of Man, to come to us in England to speak with us and to do for us what ought to be done; and therefore we command you that you do not cause, or allow to be caused, anydamage, injury, molestation, orgrievance, to the same king while coming to us in England, staying there, or returning from thence, nor to his men whom he brings with him, and if any wrong is done to them you are to cause it to be put right without delay. In [witness] whereof, etc.; to last until the feast of St Michael.]
[196. ][Ed.: King; Ethelred, of all Albion the provident Emperor; Edredy great monarch of the Britons.]
[197. ][Ed.: because he is staying in Wales.]
[198. ][Ed.: amonst the ‘originalia’ rolls.]
[199. ][Ed.: Master John Reynel, our servant, etc., born within our realm of France, shall be our liege for term of his life, and shall keep himself in the same manner as a true and faithful subject of ours born within the realm of England, and that he may and shall have power to acquire lands within our realm of England or other our dominions.]
[200. ][Ed.: I, Edgar, king of the English, and emperor and lord of all the islands of the ocean which surround Britain, give thanks to the almighty God himself, my king, who has amplified and exalted my power over the realm of my fathers etc. and by whose divine favour it has been granted to me to subjugate with English power all the kingdoms of the islands of the ocean, with their fiercest kings, as far as Norway and the greater part of Ireland (with its most noble city of Dublin), to the English kingdom, on account of which I have arranged to exalt the glory and praise of Christ in my realm, and to amplify his service of devotion, etc.]
[201. ][Ed.: King of the English, Lord of Ireland, Duke of Normandy, Duke of Acquitain, and Count of Anjou.]
[202. ][Ed.: Ireland has a parliament, and they make laws, and our statutes do not bind them because they do not send knights to parliament . . . but their persons are the king’s subjects, just as the inhabitants in Calais, Gascony and Guienne.]
[203. ][Ed.: Out of the patent rolls for the eleventh year of King Henry III.]
[204. ][Ed.: The king etc. to the barons, knights, and other free tenants of L., greeting. We believe your discretion has sufficiently heard that when John, our father of good memory, lately king of England, came into Ireland he took with him discerning men who were learned in the law, by whose common advice and at the instance of the Irish he laid down and ordained the English laws in Ireland, so that he left the same laws edited in writing under his seal at the Exchequer in Dublin.]
[205. ][Ed.: person born after [the union].]
[206. ][Ed.: outside the king’s allegiance of his realm of England, etc.]
[207. ][Ed.: operative words.]
[208. ][Ed.: The king, etc. We have constituted Richard Talbot our justice of the vill of Berwick upon Tweed and of all our other lands in the parts of Scotland, to do all and singular the things which belong to the office of a justice according to the law and custom of the realm of Scotland.]
[209. ][Ed.: The king to Henry de Percy, Richard de Nevil, etc., [greeting]. We will and, by the tenor of the presents, we commit and command you and each of you that our men of Scotland, being in peace and in our obedience, ought to use and enjoy the laws, liberties and free customs which they and their ancestors reasonably used in the time of Alexander of celebrated memory, king of Scots, as in certain indentures etc. is said to be more fully contained.]
[210. ][Ed.: We give authority to receive the men of Galloway into our faith and peace.]
[211. ][Ed.: By the word of the Holy Spirit, in chapters 21 and 22 of the Acts of the Apostles.]
[212. ][Ed.: I am a man, a certain Jew of Tarsus in Cilicia, a free citizen of no mean city.]
[213. ][Ed.: I am a man, a Jew born in Tarsus in Cilicia, etc.]
[214. ][Ed.: They raised their voices, saying, ‘Take him from this earth, he is not fit to live,’ shouting and casting off their clothes and throwing dust in the air.]
[215. ][Ed.: the tribune ordered him to be put in a fortress, and examined with whipping and torture, in order to know the reason why they cried out against him.]
[216. ][Ed.: If he is a Roman and uncondemned, is it lawful for you to whip him?]
[217. ][Ed.: Take heed what you do. For this man is a Roman citizen.]
[218. ][Ed.: Tell me if you are a Roman. And he said, ‘Yes’.]
[219. ][Ed.: I obtained my citizenship (freedom of the city) with a great sum.]
[220. ][Ed.: But I was born so.]
[221. ][Ed.: Then forthwith those who were about to torture him departed; and the tribune also was afraid, after he knew that he was a Roman, because he had tied him up.]
[222. ][Ed.: outside the emperor’s allegiance of his realm of Italy, and within the emperor’s allegiance of his realm of Cilicia, etc.]
[223. ][Ed.: A Jew by country and a Roman by privilege, a Jew by birth and a Roman by the law of nations.]
[224. ][Ed.: A Scot by country and an Englishman by privilege.]
[225. ][Ed.: And one of them, when he saw that he was healed, went back and with a loud voice glorified God, and fell down on his face at his feet, giving him thanks: and he was a Samaritan. And Jesus answering said, ‘Were there not ten that were cleansed? Where are the other nine? None of them is found to come back and give glory to God except this foreigner.’]
[226. ][Ed.: And, if obedience is lacking, the place does not help.]
[227. ][Ed.: If the place could save, Satan would not have fallen from heaven for his disobedience, Adam would not have fallen in paradise, Lot would not have fallen on the mountain but rather in Sodom.]
[228. ][Ed.: Enemies are those who wage war with us; others are traitors, robbers, etc.]
[229. ][Ed.: friend.]
[230. ][Ed.: enemy.]
[231. ][Ed.: friendly territory.]
[232. ][Ed.: The laws of nature are most perfect and immutable, whereas the condition of human law always runs into the infinite and there is nothing in them which can stand for ever. Human laws are born, live, and die.]
[233. ][Ed.: propositions of obvious truth.]
[234. ][Ed.: to the king’s profit.]
[235. ][Ed.: and make treaties.]
[236. ][Ed.: proclaiming war.]
[237. ][Ed.: A right of majesty, and among the ensigns of the highest power.]
[238. ][Ed.: One cannot be an alien to the body who is not so to the head, an alien to the people who is not so to the king.]
[239. ][Ed.: Literally, “that he should not leave the realm,” a writ issued in chancery forbidding travel out of the kingdom without leave of the King or a court.]
[240. ][Ed.: it was found.]
[241. ][Ed.: Writ by which the incumbent holder of an interest in lands of the Church seeks recovery of that interest from another.]
[242. ][Ed.: Mort’d ancestor, a writ to recover real property lost at the death of an ancestor.]
[243. ][Ed.: in going on his pilgrimage to the Holy Land.]
[244. ][Ed.: A good judge does nothing by his own whim, nor by the suggestion of his own will, but pronounces according to statutes and laws [leges et jura].]
[245. ][Ed.: fears.]
[246. ][Ed.: Fears are to be accounted trifling if they would not operate upon a constant man.]
[247. ][Ed.: in the allegiance (literally, “to the faith”) of either king.]
[248. ][Ed.: Just as an Englishman shall not be heard to implead anyone for lands and tenements in France, so should not a Frenchman and an alien born, who owes allegiance to [lit. is to the faith of] the king of France, be heard to plead in England; yet there are some Frenchmen in France who owe allegiance to both kings, and always did, both before the loss of Normandy and after, and who plead here and over there, by reason that they owe allegiance to both, as was William, earl marshal, living in England, and M. de Gynes, living in France, and many others.]
[249. ][Ed.: of foreign birth.]
[250. ][Ed.: of foreign allegiance.]
[251. ][Ed.: Often where the precise meaning of words is attended to, the true sense is lost.]
[252. ][Ed.: namely, the King’s allegiance of his realm of Scotland, [and] the King’s allegiance of his realm of England.]
[253. ][Ed.: with one voice.]
[254. ][Ed.: The jurisprudence of the common law of England is a sociable and a copious science.]
[255. ][Ed.: although the laws are adapted to those things that more frequently happen.]
[256. ][Ed.: And thus is this question determined and ended.]
[1. ][Ed.: that from the vill of Abbotsbury in the aforesaid county of Dorset as far as the sea, by the island of Portland in the same county, there is a certain estuary, called in English a ‘mere’ or ‘fleet’, in which the sea ebbs and flows, in which estuary there are five hundred swans, whereof four hundred and ten are white and ninety are cygnets, and that all the aforesaid swans and cygnets are in the possession of Joan Young and Thomas Saunger, and that each of them is worth two shillings and sixpence, and that the greater part of them at the time of the taking of this inquisition were unmarked.]
[2. ][Ed.: That the aforesaid estuary or water lies in the parish of Abbotsbury in the county of Dorset.]
[3. ][Ed.: of the aforesaid estuary and of the banks and soil of the same.]
[4. ][Ed.: there was and still is a certain flock of wild swans and cygnets called ‘a game of wild swans’ in that estuary or water, nesting, breeding and congregating—in English ‘haunting’—in the banks and soil of the same, of which same game of swans and cygnets the aforesaid abbot and all his predecessors, as abbots of the aforesaid monastery, for the whole time aforesaid, have had and enjoyed and have been accustomed to have and enjoy all the profit and gain of all and singular the wild swans and cygnets nesting, breeding and haunting in the estuary aforesaid, which swans and cygnets for the whole time aforesaid were ferae naturae (of a wild nature), and within the same time neither the same swans and cygnets nor any of them were used or accustomed to be marked with any mark, save that the aforesaid late abbot and his aforesaid predecessors for the whole time aforesaid have been accustomed annually to mark at their free pleasure some of the smaller cygnets coming forth each year which were to be spent in his kitchen and hospitality, in this manner, namely to amputate the middle joint of one wing—in English ‘to cut off the pinion of one wing’—of every such cygnet, with the intention that the cygnets so amputated should not be able to fly away.]
[5. ][Ed.: amongst other things, all that our free fishery in the water called ‘the fleet’ in Abbotsbury aforesaid, and all messuages, waters, fisheries and other our hereditaments whatsoever in Abbotsbury in the said county of Dorset [belonging] to the said late monastery etc., as plainly and fully etc. and in as ample a manner and form, etc.]
[6. ][Ed.: that the hands of the lady queen be ousted.]
[7. ][Ed.: because fowl, which are of a wild nature, are sometimes royal and sometimes common.]
[8. ][Ed.: master of the game of swans.]
[9. ][Ed.: But if wild animals are made tame, and are accustomed go and return, or fly away and fly back, as do deer, swans, peacocks and pigeons, and the like, they shall be understood to be ours so long as they have animus revertendi (the intention of returning).]
[10. ][Ed.: unreasonable delay.]
[11. ][Ed.: that is to say, why [he took] his swans, etc.]
[12. ][Ed.: The swan, chanter of its own death, modulates sweet songs with failing tongue [Martial, Epigrams, 13. 77. 1.].]
[13. ][Ed.: swan mark.]
[14. ][Ed.: by reason of privilege.]
[15. ][Ed.: Be it noted by all men present and to come that I, J. Steward, knight, have given and granted to Thomas, my firstborn son, and his heirs, my swan-mark of my arms, as painted in the side-margin, which descended to me by hereditary right after the death of J. Steward, knight, my father, to have and to hold unto him and his heirs, with all the swans and cygnets marked with the said sign of a knotted staff, upon condition that every Sunday during his lifetime between the gule of August [i.e., Lammas] and Carnisprivium [i.e., the beginning of Lent] he shall deliver to me or mine at my house of Darford one cygnet well marked; and, if he defaults, then I will that this my present chirograph should be utterlyquashed and had for naught. In witness whereof, at the instance of my wife Maud, I have caused my privy seal with the crucifix to be set to the presents, these being witnesses: R. Clerk, J. [de] Conyers, Alan Smith, and others. Given at my mansion house of Darford on the vigil of St Dunstan the Bishop in the fourteenth year of the reign of King Henry the sixth after the conquest.]
[16. ][Ed.: of a wild nature.]
[17. ][Ed.: right of property.]
[18. ][Ed.: right of privilege.]
[19. ][Ed.: domesticated by nature.]
[20. ][Ed.: by reason of powerlessness and place.]
[21. ][Ed.: domesticated, that is, habituated to the house.]
[22. ][Ed.: intention of returning.]
[23. ][Ed.: [to show] Why he broke his wood, and took and carried away three sparrowhawk chicks, of such and such a price, lately nesting in the same wood.]
[24. ][Ed.: [to show] Why he broke and entered the park, warren, etc., and took and carried away three does [or] hares, rabbits, pheasants, partridges.]
[25. ][Ed.: his.]
[26. ][Ed.: mastiff.]
[27. ][Ed.: of a wild nature.]
[28. ][Ed.: nesting, breeding and haunting.]
[29. ][Ed.: nesting, breeding.]
[30. ][Ed.: by right of privilege.]
[31. ][Ed.: so that he answer for the profit to the Exchequer.]
[1. ][Ed.: for the public good.]
[2. ][Ed.: infinitely.]
[3. ][Ed.: Notwithstanding; an order relieving a person of a power or a liability.]