⚫ that infants born beyond the seas in the seig. 'niories of Calais, and elsewhere within the lands and seigniories that pertain to our sovereign lord the king beyond the seas, be as able and inheritable of their heritage in England, as other infauts born within the realm of England, it is accorded that the coinmon law and 'the statute formerly made be holden.' Upon this act I infer thus much; first, that such as the petition mentioneth were naturalized, the practice shews; then if so, it must be either by common law or statute, for so the words report: not by statute, for there is no other stature but 23 E. 3, and that extends to the case of birth out of the king's obedience, where the parents are English; ergo it was by the common law, for that only remains. And so by the declaration of this statute at the common law, all infants, born within the lands and seigniories (for I give you the very words again) that pertain to our sovereign lord the king, (it is not said, as are the dominions of England) are as able and inheritable of their heritage in England, as other infants born within the realm of England.' What can be more plain? and so I leave statutes and go to precedents; for though the one do bind more, yet the other sometimes doth satisfy more. For precedents, in the producing and using of that kind of proof, of all others it behoveth them to be faithfully vouched; for the suppressing or keeping back of a circumstance, may change the case: and therefore I am determined to urge only such precedents, as are without all colour or scruple of exception or objection, even of those objections which I have, to my thinking, fully answered and confuted. This is now, by the providence of God, the fourth time that the line and kings of England have had dominions and seigniories united unto them as patrimonies, and by descent of blood; four unions, I say, there have been, inclusive with this last. The first was of Normandy, in the person of William, commonly called the Conqueror. The second was of Gascoigne, and Guienne, and Anjou, in the person of H. 2; in his person, I say, though by several titles. The third was of the crown of France, in the person of E. 3. And the fourth of the kingdom of Scotland, in his majesty. Of these I will set aside such as by any cavillation can be excepted unto. First, I will set aside Normandy; because it will be said, that the difference of countries accruing by conquest, from countries annexed by descent, in matter of communication of privileges, holdeth both ways, as well of the part of the conquering kingdom, as the conquered; and therefore that although Normandy was not a conquest of England, yet England was a conquest of Normandy, and so a communication of privileges between them. Again, set aside France; for that it will be said that although the king had a title in blood and by descent, yet that title was executed and recovered by arms, so as it is a mixt title of conquest and descent, and therefore the precedent not so clear. There remains then Gascoigne and Anjou, and that precedent likewise I will reduce and abridge to a time, to avoid all question. For it will be said of them also, that after they were lost and recovered in ore gladii, that the ancient title of blood was extinct; and that the king was in upon his new title by conquest. And Mr. Walter hath found a book-case in 13 H. 6. abridged by Mr. Fitz-Herbert, in title of Protection, placito 56, where a protection was cast, quia profecturus in Gasconiam' with the earl of Huntingdon, and challenged because it was not a voyage royal; and the justices thereupon required the sight of the commission, which was brought before them, and purported power to pardon felonies and treason, power to coin money, and power to conquer them that resist: whereby Mr. Walter, finding the word conquest, collected that the king's title at that time was reputed to be by conquest. Wherein I may not omit to give obiter that answer which law and truth provide, namely, that when any king obtaineth by war a country whereunto he hath right by birth, that he is ever in upon his ancient right, not upon his purchase by conquest; and the reason is, that there is as well a judgment and recovery by war and arins, as by law and course of justice. For war is a tribunal-seat, wherein God giveth the judgment, and the trial is by battle or duel, as in the case of trial of private right: and then it follows, that whosoever cometh in by eviction, comes in his Remitter: so as there will be no difference in countries whereof the right cometh by descent, whether the possession be obtained peaceably or by But yet nevertheless, because I will utterly take away all manner of evasion and subterfuge, I will yet set apart that part of time, in and during the which the subjects of Gascoigne and Guienne might be thought to be subdued by a re-conquest. And therefore I will not meddle with the prior of Shelley's case, though it be an excellent case; because it was in the time of 27 E. 3; neither will I meddle with any cases, records, or precedents, in the time of king H. 5, or king H. 6, for the same reason; but will hold myself to a portion of time from the first uniting of these provinces in the time of king H. 2, until the time of king John, at what time those provinces were lost; and from that time again unto the seventeenth year of the reign of E. 2, at what time the statute of Prærogativa Regis was made, which altered the law in the point in hand.-That both in these times the subjects of Gascoigne, and Guienne, and Anjou, were naturalized for inheritance in England by the laws of England, I shall manifestly prove; and the proof proceeds, as to the former time, which is our case, in a very high degree à minore ad majus, and as we say, à multo fortiori. For if this privilege of naturalization remained unto them when the countries were lost, and became subjects in possession to another king, much more did they enjoy it as long as they continued under the king's subjection. war. competit ex persona petentis, propter defectum Therefore to open the state of this point. After these provinces were, through the per-nationis, que dilatoria est, et non perimit turbations of the state in the unfortunate time 'actionem; ut si quis alienigena, qui fuerit ad of king John, lost and severed, the principal 'fidem regis Francia, et actionein instituat persons which did adhere unto the French, versus aliquem, qui fuerit ad fidem regis were attainted of treason, and their escheats Angliæ, tali non respondeatur, saltem doneehere in England taken and seized. But the 'terræ fuerint communes. By these words it people, that could not resist the tempest when appeareth, that after the loss of the provinces their heads and leaders were i evolted, continued beyond the seas, the naturalization of the subinheritable to their possessions in England; jects of those provinces was in no sort extiuand reciprocally the people of England juherit-guished, but only was in suspence during the ed and succeeded to their possessions in Gas- time of war, and no longer; for he s utu plajuly, coigne, and were both accounted ad fidem that the exception, which we call plea, to the utriusque regis,' until the statute of Præro-person of an alien, was not peremptory, but, gativa Regis; wherein the wisdom and justice only dilato. y; that is to say, during the time of of the law of England is bigily to be com- war, and until there were peace concluded, mended. For of this law there are two grounds which he terms by the-e words, doncc terræ of reason, the one of equity, the other of policy. fuerint communes:' which, though the phrase That of equity was, because the common people seem somewhat obscure, is expounded by were in no fault, but, as the scripture saith in Bracton himself in his fourth book, fol. 297, to a like case, qui fecerunt oves istæ? It was be of peace made and concluded, whereby the the cowardise and disloyalty of their governors | inhabitants of England and those provinces that deserved punishment, but what had these might enjoy the profits and fruits of their lands sheep done?" And therefore to have punish din either place communiter,' that is, respecthem, and deprived them of their lands and uvely, or as well the one as the other. fortunes, had been unjust. That of policy was, it is clear they were no aliens in right, but only because if the law had forthwith, upon the loss interrupted and debarred of suits in the king's of the countries by an accident of time, pro- courts in ume of war. nounced the people for aliens, it had been a kind of accession of their right, and a disclaimer in them, and so a greater diticulty to recover them. And therefore we see the statute, which altered the law in this point, was made in the time of a weak king, that, as it seemed, despaired ever to recover his right, and therefore thought better to have a little present profit by escheats, than the continuance of his claim, and the countenance of his right, by the admilting of them to enjoy their inheritance as they did before. 6 The state therefore of this point being thus opened, it resteth to prove our assertion, that they were naturalized; for the clearing whereof I shall need but to read the authorities, they be so direct and pregnant. The first is the very text of the statute of Prærogativa Regis, ¦ Rex ballebit escaetas de terris Normannorum, 'cujuscunque feodi fuerint, salvo servitio, quod pertinet ad capitales dominos feodi illius: et hoc similiter intelligendum est, si aliqua hæreditas descendat alicui nato in partibus transmarinis, et cujus antecessores fuerunt ad fidem regis Francie, ut tempore regis Johannis, et non ad fidem regis Angliæ, sicut contigit de baronia Mon metæ, &c.'-By which statute it appears plainly, that before the time of king John there was no colour of any escheat, because they were the king's subjects in possession, as Scotland now is; but only it determines the law from that time forward.-This stature, if it had in it any obscurity, it is taken away by two lights; the one placed before it, and the other placed after it; both authors of great credit, the one for ancient, the other for late times. The former is Bracton, in his cap. de Exceptionibus, lib. 5. fol. 427. and his words are these: Est etiam et alia exceptio, quæ tenenti So as The authority after the statute is that of Mr. Stamford, the best expositor of a statute that hath been in our law; a man of reverend judg ment and excellent order in his waitings. Hig words are in his exposition upon the branch of the statute which we read before. By this 'branch it should appear, that at this time mon ' of Normandy, Gascoigne, Guienne, Anjou, and Britain, were inheritable within this 'readm, as well as Euglishmen; because that they were sometimes subjects to the kings of England, and under their dominion, until king John's time, as is aforesaid: and yet ' after bis time, those men, saving such whose 'lands were taken away for treason, were still inheritable within this realm till the making of this statute; and in the time of peace between the two kings of England and France, they were answerable within this realin, if they had brought any action for their lands ' and tenements.' So as by these three authorities, every one so plainly pursuing the other, we conclude that the subjects of Gascoigne, Guienne, Anjou, and the rest, from their first union by descent, until the making of the statute of Prærogativa Regis, were inheritable in England, and to be answered in the king's courts in all actions, except it were in time of war. Nay more, which is de abundanti, that when the provinces were lost, and disannexed, and that the king was but king de jure over them, and not de facto, yet nevertheless the privilege of naturali"zation continued. There resteth yet one objection, rather plausible to a popular understanding than any ways forcible in law or learning, which is a difference taken between the kingdom of Scotland and these duchies; for that the one is a kingdom, and the other was not so; and therefore that those provinces, being of an inferior nature, did acknowledge our laws, and seals, and parliament, which the kingdom of Scotland doth not. This difference was well given over by Mr. Walter; for it is plain that a kingdom and absolute dukedom, or any other sovereign estate, do differ honore, and not potestate: for divers duches and countries, that are now, were sometimes kingdoms; and divers kingdoms, that are now, were sometimes duchies, or of other inferior stile: wherein we need not travel abroad, since we have in our own state so notorious an instance of the country of Ireland, whereof king H. 8, of late time was the first that writ himself king, the former stile being lord of Ireland, and no more; and yet kings had the same authority before, that they have had since, and the same nation the same marks of a sovereign state, as their parliaments, their arms, their coins, as they now have: so as this is too superficial an allegation to labour upon, And if any do conceive that Gascoigne and Guienne were governed by the laws of England; first, that cannot be in reason; for it is a true ground, that wheresoever any prince's title unto any country is by law, he can never change the laws, for that they create his title: and therefore no doubt those duchies retained their own laws; which if they did, then they could not be subject to the laws of England. And next, again, the fact or practice was otherwise, as appeareth by all consent of story and record for those duchies continued governed by the civil law, their trials by witnesses, and not by jury, their lands testamentary, aud the like. : with nothing but that that concerneth either the English subjects personally, or the territories of England locally, and never the subjects of Gascoigne. For look upon the statute of 27 E. 3. cap. 5. there it is said, that there shall be no forestalling of wines. But by whom? Only by English merchants; not a word of the subjects of Gascoigne; and yet no doubt they might be offenders in the same kind. So in the sixth chapter it is said, that all merchants Gascoignes may safely bring wines into what part it shall please them. Here now are the persons of Gascoignes. But then the place whither? Into the realm of England. And ju the seventh chapter, that erects the ports of Bourdeaux and Bayonne for the staple towns of wine; the statute ordains, that if any,' but who? English merchant, or his servants, shall buy or bargain other where, his body shall be arrested by the steward of Gascoigne, or the constable of Bourdeaux? True, for the officers of England could not catch him in Gascoigne But what shall become of him, shall he be proceeded with within Gascoigne ? No, but he shall be sent over into England into the Tower of London.--And this doth notably disclose the reason of that custom which some have sought to wrest the other way: that custom, I say, whereof a form doth yet remain, that in every parliament the king doth appoint certain committees in the upper-house to receive the petitions of Normandy, Guienne, and the rest; which, as by the former statute doth appear, could not be for the ordering of the governments there, but for the liberties and good usage of the subjects of those parts when they came hither; or vice versa, for the restraining of the abuses and misdemeanors of our subjects when they went thither. 6 Wherefore I am now at an end. For us to speak of the mischiefs, I hold it not fit for this place, lest we should seem to bend the laws to Now for the colours that some have endeavoured to give, that they should have been subordinate to the government of England; they were partly weak, and partly such as make strongly against them: for as to that, that writs of Habeas Corpus under the great seal of Eng-policy, and not to take them in their true and land have gone to Gascoigne, it is no manner of proof; for that the king's writs, which are mandatory, and not writs of ordinary justice, may go to his subjects into any foreign parts whatsoever, and under what seal it pleaseth him to use. And as to that, that some acts of parliament have been cited, wherein the parliaments of England have taken upon them to order matters of Gascoigne; if those statutes be well looked into, nothing doth more plainly convince the contrary; for they intermeddle natural sense. It is enough that every man knows, that it is true of these two kingdoms, which a good father said of the churches of Christ: si inseparabiles insuperabiles. Some things I may have forgot, and some things per haps I may forget willingly; for I will not press any opinion or declaration of late time which may prejudice the liberty of this debate; but ex dictis, et ex non dictis,' upon the whole matter I pray judgment for the plaintiff. Lord Coke's Report of Calvin's CASE.* From the 7th part of his Reports. [The following Report is printed from Serjeant Wilson's edition of lord Coke's Reports. All the References included in brackets are by Mr. Chilton and the editors of the editions since the one by him. The Case is dated by lord Coke, Trin. 6 Jam. 1.] The WRIT of Assise. Scotland the 39th, 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 Engiand; and at the time of the birth of the said Robert Calvin, and long before, and continually afterwards, the aforesaid kingdom of Scotland, by the proper rights, laws, and statutes of the same kingdom, and not by the rights, laws, or statutes of this kingdom of England, was and yet is ruled and governed. And this he is ready to verify, and thereupon prayeth judgment, if the said Robert, to his said writ aforesaid, ought to be answered, &c, And the aforesaid Robert Calvin saith, that the aforesaid plea, by the aforesaid Richard and Nicholas above pleaded, is insufficient in law, to bar him the said Robert from having an answer to his writ aforesaid; and that the said Robert, to the said plea in manner and form aforesaid pleaded, needeth not, nor by the law of the land is bound to answer; and this he is ready to verify, and bereof prayeth judgment; and that the seid Richard and Nicholas, to the aforesaid writ of the said Robert, may answer. And the said Richard and Nicholas, forasmuch as they have above alledged sufficient matter in law to bar him the said Robert from baving an answer, to his said writ, which they are ready to veri 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 hun of his freehold in Haggard, otherwise Haggerton, otherwise Aggerston, in the parish of St. Leonard, in Shoreditch, within 30 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 15 days of St. Martin next coming; and in the mean time, cause 12 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 Nov. in the 5th year of our reign of England, France, and Ireland, and of Scot-fy, which matter the aforesaid Robert doth not land the one and fortieth.-For 40s. paid in the Hanper, KINDESLEY. gainsay, nor to the saine doth in any ways answer, but the said averment altogether refuseth Middlesex, ss.; The assise cometh to recog- to admit as before; pray judgment, if the aforenize, if Rich. Smith, and Nich. Smith unjustly, said Robert ought to be answered to his said and without judgment, did di-seise Rob. Cal-writ, &c. And because the court of the lord vin, gent. of his freehold in Haggard, otherwise | Haggerston, otherwise Aggerston, in the parish of St. Leonard in Shoreditch, within 30 years now last past: and whereupon, the said Robert, who is within the age of 21 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. And the said Richard and Nicholas, by William Edwards, their attorney, come and say, that the said Robert ought not to be auswered to his writ aforesaid, because they say, that the said Robert is an alien, born on the 5th day of Nov. in the 3d year of the reign of the king that now is, of England, France, and Ireland, and of * Vid. Dy. fo. 304. 2. Jo. 10. Vaugh. 286. 279. 301. 1. Lev. 59. Plowden's case of the Dutchy, Ellesmere's Postnati, Bacon on Governm. 2. pt. 76. Atwood's Superiority, 304. Salk. 411, 412. Skiun. 134, 172, 198, 335, 442. 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 8 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 assise aforefaid 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 assise 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 R. Calvin, by bis guardians aforesaid, as the aforesaid Rich. Smith and Nic. Smith, by their attorney aforesaid; and because the court of the lord the king 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 assise aforesaid remains further to be taken until the same Monday there, &c. and the sheriffs as before to distrain the recognitors of the assise 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. And first, for that I intend to make as summary a report as I can, I will at the first set down such arguments and objections as were made and drawn out of this short record against the plaintiff, by tho-e that argued for the defendants. It was observed, that in this plea there were four nouns quatuor nomina, winch were called, nomina operativa, because from them all the said arguments and objections on the part of the defendants were drawn; that is to say, 1. Ligeantia (which is twice repeated in the plea, for it is said, intra ligeantiam domini regis regni sui Scot', et extra ligeantiam do'mini regis regni sui Angl.') 2. Regnum (which also appeareth to be twice mentioned, viz. regnum Angl.' and 'regnum Scot.') 3. Leges (which are twice alledged, viz. leges Angl,' and leges Scot.' two several and distinct laws. 4. Alienigenia (which is the conclusion of all, viz. that Robert Calvin is alienigena.') 1. Ligeantia. By the first it appeareth, that the defendants do make two ligeances, one of England, and another of Scotland, and from these several ligeances two arguments were framed, which briefly may be concluded thus. 1. 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 præd Robertus est alienigena, natus 5 Nov, auno regni domini regis nunc. Angl' &c. tertio apud Edenburgh infra regnum Scot', ac infra ligeantiam dicti domini regis dicti regni sui Scot', ac extra ligeantiam 'dicti domini regis regni sui Angl. The question of this case as to matter in law was, whether Robert Calvin the plaintiff, being born in Scotland since the crown of England descended to his majesty, be an alien born, and consequently disabled to bring any real or personal (a) action for any lands within the realm of England. After this case had been argued in the court of King's Bench, at the bar, by the counsel learned of either party, the judges of that court, upon conference and consideration of the weight and importance thereof, adjourned the same, according to the ancient and ordinary course and order of the law, into the (b) Exchequer-Chamber, to be argued openly there; first by the counsel learned of either party, and then by all the judges of England; where afterwards the case was argued by Bacon Solicitor General, on the part of the plaintiff, and by Laur. Hide, for the defendant; and afterward by Hobart Attorney General, for the plaintiff, and by Serjeant Hutton, for the defendant; and in Easter terin last, the case was argued by Heron, puisne baron of the Exchequer, and Foster puisne judge of the court of Common Pleas; and on the second day appointed for this case, by Crook, puisne judge of the King's Bench, and Altham, baron of the Exchequer; the third day by Snigge, baron of the Exchequer, and Williams, one of the judges of the King's Bench; the fourth day by Daniel, one of the judges of the court of Common Pleas, and by Yelverton, one of the judges of the King's Bench : and in Trinity term following, by Warburton, one of the judges of 2. Regna. From the several kingdoms, viz. the Common Pleas, and Fenner, one of the regnum Angl' and 'regnum Scot',' three judges of the king's Bench; and after by arguments were drawn. 1. Quando (a) duo Walmesley, one of the judges of the Commonjura (imo dua regna) concurrunt in una perPleas, and Tanfield, chief baron; and at two several days in the same term, Coke, chief justice of the Common Pleas, Fleming, chief justice of the King's Bench, and sir Thomas Eggerton, lord Ellesmere, lord chancellor of England, argued the case, the like plea in disability of Robert Calvin's person being pleaded mutatis mutandis in the Chancery in a suit there for evidence concerning lands of inheritance, and by the lord chancellor adjourned also into the Exchequer-Chamber, to the end that one rule might over-rule both the said cases. (a) 1 Bulst. 134. Yelv. 198. Owen 45. Co. Lit. 129. b. 1 and 25. Moor 431. 1 Keb. 266. Cr. El. 142, 683. Cro. Car. 9. 4 Inst. 152. (b) 2 Bulst. 146. VOL. IL sona, æquum est ac si essent in diversis;' but in the king's person there concur two distinct and several kingdoms; therefore it is all one as if they were in divers persons, and consequently the plaintif is an alien, as all the Antenati are, for that they were born under the ligeance of another king. 2. Whatsoever is due to the king's several politic capacities of the several kingdoms is several and divided; but ligeance of each nation is due to the king's several politic capacities of the several kingdoms; ergo, the ligeance of each nation is several and divided, and consequently the plaintiff is an alien, for that they that are born (a) Ellesmere's Postnati 88. postea Co. 118. a. Cawly 209. Moor 793, 804, 2 R |