under several ligeances are aliens one to ano-bles, and the longest in substance; the least ther. 3. Where the king hath several king- for the value (and yet not tending to the right doms by several titles and descents, there also of that least) but the weightiest for the conseare the ligeances several; but the king hath quent, both for the present, and for all postethese two kingdoms by several titles and de-rity. And therefore it was said, that those scents; therefore the geances are several. These three arguments are collected also from the words of the plea before remembered.

that had written de fossilibus did observe, that gold, hidden in the bowels of the earth, was in respect of the mass of the whole earth, parvum in magno; but of this short plea it might he truly said (which is more strange) that here was magnum in parvo.

3. Leges. From the several and distinct laws of either kingdom, they did reason thus. 1. Every subject, that is born out of the extent and reach of the laws of England, cannot by And in the Arguments of those that argued judgment of those laws be a natural subject to for the plaintiff I specially noted, that albeit the king, in respect of his kingdom of England, they spake according to their own heart, yet but the plaintiff was born at Edinburgh, out of they spake not out of their own head and inthe extent and reach of the laws of England; vention: wherein they followed the counsel therefore the plaintiff, by the judgment of the given in God's Book, [Job. viii. 8.] interroga laws of England, cannot be a natural subjectpristinam generationem' (for out of the old to the king, as of his kingdom of England. 2. fields must come the new corn) et diligenter That subject, that is not at the time and in the investiga patrum memoriam,' and diligently place of his birth inheritable to the laws of search out the judgments of our forefathers, England; cannot be inheritable or partaker of and that for divers reasons. First, on our own the benefits and privileges given by the laws of part, hesterni enim sumus et ignoramus, et England? but the plaintiff at the time, and in vita nostra sicut umbra super terram; for we the place of his birth, was not inheritable to are but of yesterday, (and therefore had need the laws of England, but only to the laws of of the wisdom of those that were before us) Scotland; therefore he is not inheritable or to and had been ignorant, if we had not received be partaker of the benefits or privileges of the light and knowledge from our forefathers and laws of England. 3. Whatsoever appeareth to our days upon the earth are but as a shadow, be out of the jurisdiction of the laws of Eng- in respect of the old ancient days and times land, cannot be tried by the same laws; but past, wherein the laws have been by the wisthe plaintiff's birth at Edinburgh is out of the dom of the most excellent men, in many sucjurisdiction of the laws of England; therefore cessions of ages, by long and continual expethe same cannot be tried by the laws of Eng-rience, the trial of right and truth, fined and land. Which three arguments were drawn from these words of the plea, viz. quodque tempore nativitatis præd' Roberti Calvin, ac diu antea, et continue postea, præd' regnum Scot' per jura, leges et statuta ejusdem regni propria, et non per jura, leges, seu statuta hujus regni Angl' regulat' et gubernat' fuit, et

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;' [Co. Lit. 97. b.] no man ought to take upon him to be wiser 4. Alienigena. From this word 'alienigena' than the laws. Secondly, in respect of our they argued thus, every subject that is alien' forefathers. Ipsi, saith the text, docebunt gentis (i. e.) alien' ligeant', est alienigena;' butte, et loquentur tibi, et ex corde suo proferunt such a one is the plaintiff'; therefore, &c.

' adbuc est.'

And to these nine arguments all that was spoken learnedly and at large by those that argued against the plaintiff may be reduced.

But it was resolved by the Lord Chancellor and twelve Judges, viz. the two Chief Justices, the Chief Baron, Justice Fenner, Warburton, Yelverton, Daniel, Williams, Baron Snigge, Baron Altham, Justice Crooke, and Baron Heron, that the plaintiff was no alien, and consequently that he ought to be answered in this assize by the defendants.

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 præsenti et perpetuis futuris temporibus' justly deserved; for though it was one of the shortest and least that ever we argued in this court, yet was it the longest and weightiest that ever was argued in any court, the shortest in sylla

eloquia,' they shall teach thee, and tell thee, and shall utter the words of their heart, without all equivocation or mental reservation; they I say, that cannot be daunted with fear of any power above them, nor be dazzled with the applause of the popular about them, nor fretted with any discontentment, the matter of opposition and contradiction, within them, but shall speak the words of their heart, without all affection or infection whatsoever.

Also in their arguments of this cause concerning an alien, they told no strange histories, cited no foreign laws, produced no alien precedents; and that for two causes the one, for that the laws of England are so copious in this point, as, God willing, by the report of this case shall appear; the other, lest their arguments, concerning an alien born, should become foreign, strange, and an alien to the state of the question, which, being quæstio juris concerning freehold and inheritance in England, is only to be decided by the laws of this realm.

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 ligamentuin, quasi ligatio mentium; quia sicut ligamentun, est 'connexio articulorum et juncturarum, &c.' As the ligatures or strings do knit together the joints of all the parts of the body, so doth ligeance join together the sovereign and all his subjects, quasi uno ligamine. Glanvi le, who wrote in the reign of H. 2, lib. 9. cap. 4. spenk

And albeit I concurred with those that adjudged the plaintiff to be no alien, yet do I find a mere stranger in this case, such a one as the eye of the law, our books and book-cases, never saw, as the ears of the law (our reporters) never heard of, nor the mouth of the law, for judex est lex loquens,' the judges our forefathers of the law, never tasted: I say, such a one, as the stomach of the law, our exquisite and perfect records of pleadings, entries, and judgments, that make equal and true distribution of all cases in question, never digested. In a word, this little plea is a great stranger to the laws of England, as shall manifestly appear by the re-ing of the connexion which ought to be between solution of this case.

And now that I have taken upon me to make a report of their arguments, 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 tone, I shall give no just offence to any, if I challenge that which of right is due to every reporter, that is, to reduce the sum and effect of all to such a method, as, upon consideration had of all the arguments, the reporter himself thinketh to be fittest and clearest for the right understanding of the true reasons and causes of the judgment and resolution of the case in question.

In this case five things did fall into consideration. 1. Ligeantia. 2. Leges. 3. Regna. 4. Alienigena. 5. What legal inconveniences would ensue on either side.

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 last, how it was due.

2. For the laws: 1. That ligeance or obedience of the subject to the sovereign is due by the law of nature. 2. That this law of nature is part of the laws of England. 3. That the law of nature was before any judicial or municipal law in the world. 4. That the law of nature is immutable, and cannot be changed.

3. As touching the kingdoms: how far torth by the act of law the union is already made, and wherein the kingdoms do yet remain separate and divided.

4. Of Alienigena, an alien born: 1. What an alien born is in law. 2. The division and diversity of aliens. 3. Incidents to every alien. 4. Authorities in law. 5. Demonstrative conclusions upon the premises, that the plaintiff

can be no alien.

5. Upon due consideration had of the consequent of this case: what inconveniences legal should follow on either party.

And these several parts I will in this report pursue in such order as they have been propounded; and first de ligeuntia.

1. (b) Ligeance is a true and faithful obedience of the subject due to his sovereign. This

(b) Bacon's Discourse of Laws and Government, 2d. part fo. 46, 47, &c. Co. Lit. 129. a. Grotius, lib. 2. fol. 160.

the lord and tenant that holdeth by homage, saith, that mutua debet csse domini et fidelitatis connexio, ita quod quantum debet do'mino ex homag:o, tantum illi debet dominus ex dominio, præter solam reverentiam,' and the lord, saith he, ought to defend his tenant. But between the sovereign and the subject there is without comparison a higher and greater connexion; for as the subject oweth to the king his true and faithful ligeance and obedience, so the sovereign is to govern and protect his subjects, regere et protegere subditos suos,' so as between the sovereign and subject there is duplex et reciprocum ligamen; quia sicut subditus regi tenetur ad obedientiam, ita rex subdito tenetur ad protectionem: merito igitur ligeantia dicitur a ligando, quia 'continet in se duplex ligamen.' And therefore it is holden in 20 H. 7, 8. a that there is a liege or ligeance between the king and the subject. And Fortescue, cap. 13, rex (c) ad

เ

6

tutelam legis corporum et bonorum subditorum erectus cst.' And in the acts of parliainent of 10 R. 2, cap. 5. and 11 R. 2, cap. 1; 14 H. 3, cap. 9, &c. subjects are called liege people; and in the acts of parliament in 34 H. 8, cap. 1, and 35 II. 8, cap. 3, &c. the king is called the liege lord of his subjects. And with this agreeth M. Skeene in his book De Expositione Verborum, (which book was cited by one of the judges which aigued 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 EngTherefore it land and of Scotland is all one. is truly said, that protectio trahit subjectionem, et subjectio protectionem. And hereby it plainly appeareth, that ligeance doth not begin by the oath in the leet; for many men owe true ligeance that never were sworn in a leet, and the swearing in a leet maketh no (d) denization, as the book is adjudged in 14 H. 4, fol. 19, b. This word ligeance is well expressed by divers several names or synonywa which we find in our books. Sometimes it is called the obedience or obeysance of the subject to the

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. [Co. Litt. 129 a.] This also doth appear in the indictments of treason (which or all other things are the most curiously and certainly indicted and penned) for in the indictment of the lord Dacre, in 26 H. 8, it is said, 'præd' dominus Dacre

king, obedientia regi,' 9 E. 4, 7. b. 9 E. 4. 6. (e) 2 R. 3, 2. a. in the book of Entries, ejectione firm' 7. 11 H. 8, cap. 2; 22 H. 8, cap. 8, &c. Sometimes he is called a natural liege man that is born under the power of the king, sub potestate regis,' 4 H.3, (f) tit. Dower. Vide the stat. of 11 E. 3, c. 2. Some times ligeance is called faith, fides, ad fidem regis, &c. Bracton, who wrote in the reign of H. 3, lib, 5, Tractat' de Exception' cap. 24, fol.debitum fidei et ligeant' suæ, quod præfato 427. Est etiam alia exceptio quæ competit ex 'domino regi naturaliter et de jure impenaere ⚫ personâ quærentis, propter defectum nationis, debuit, minime curans, &c.' And Reginald ut si quis alienigena qui fuit ad fidem regis Pool was indicted in 30 H. 8, for committing Franc', &c.' And Fleta (which book was treason contra dom' regem supremum et namade in the reign of E. 1.) agreeth therewith; turalem doninum suum.' And to this end for 1. 6, c. 47. De Except' ex Omissione Par- were cited the indictment of Edward duke of ticipis, it is said, vel dicere potuit, quod Somerset in 5 E. 6, and many others both nihil juris clankare poterit tanquam parti- of ancient and later times. But in the inceps, eo quod est ad fidem regis Francia, dictment of treason of John Dethick in 2 < quia alienigenæ repelli debent in Angl' ab and 3 Philip and Mary it is said, quod agendo, donec fuerunt ad fidem reg' Ang'. præd' Johannes machinans, &c. prædict' doVide 25 E. 3, De Natis Ultra Mare, faith minum Philippum et dominam Mariam suand geance of the king of England; and premos dominos suos,' and omitted naturales' Litt. lib. 2. cap. Homage, (a) saving the because king Philip was not his natural liege faith that I owe to our sovereign lord the lord.. And of this point more shall be said king;' and Glanv. 1. 9. c. 1, salva fide debi- when we speak of Local Obedience. The seta dom' regi et hæredibus suis.' Sometimes cond is Ligeant' Acquisita, or denization; and ligeance is called ligealty, 22 Ass. pl. 25. By this in the books and records of the law apall which it evidently appeareth, that they that peareth to be three-fold. [Co. Lit. 122, 2.] 1. are born under the obedience, power, faith, li- Absolute, as the common denizations be, to gealty, or ligeance of the king, are natural sub-them and their heirs, without any limitation or jects, and no aliens. So, as seeing now it doth appear what ligeance is, it followeth in order, that we speak of the several kinds of ligeance. But herein we need to be very wary, for this caveat the law giveth, ubi lex non distinguit, nec nos distinguere debemus ;' and certainly lex non distinguit,' but where omnia membra dividentia' are to be found out and proved by the law itself.

6

2. There is found in the law four kinds of ligeances; the first is, ligeantia naturalis, absoluta, pura et indefinita; and this originally is due by nature and birth-right, and is called alta ligeantia,' and he that oweth this is called subditus natus.' The second is called ⚫ligeantia acquisita,' not by nature but by acquisition or denization, being called a denizen, or rather domaizon, because he is subditus datus.' Co. Lit. 129. a. The third is ligeantia localis,' wrought by the law, and that is when an alien that is in amity cometh into England, because as long as he is within England, he is within the king's protection; therefore so long as he is here, he oweth unto the king a local obedience or ligeance, for that the one (as it hath been said) draweth the other. The fourth is a legal obedience, or ligeance which is called legal, because the municipal laws of this realm have prescribed the order and form of it; and this to be done upon oath at the torn or leet.

restraint. 2. Limited, as when the king doth grant letters of denization to an alien, and to the heirs (b) males of his body, as it appeareth in 9 E. 4. fol. 7, 8, in Baggot's case; or to an alien for term of his life, as was granted to J. Revnel, 11 H. 6. 3. It may be granted upon (c) condition, for (d) cujus est dare, ejus est disponere,' whereof I have seen divers precedents. And this denization of an alien may be effected three manner of ways; by parliament, as it was in 3 H. 6. 55, in Dower; by letters patent, as the usual manner is; and by conquest, as if the king and his subjects should conquer another kingdom 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 country, or employed elsewhere, are all denizens of the kingdom or dominion conquered. Of which point more shall be said hereafter.

3. Concerning the Local Obedience it is obseivable, that as there is a local protection on the king's part, so there is a (e) local ligeance of the subjects part. And this appeareth in 4 Mar. Br. 32. (f) and 3 and 4 Phil, and Mar. Dyer, 114. Sherley a Frenchman, being in anity with the king, came into England, and joined with divers subjects of this realm in treason against the king and queen, and the indict

(b) 9 E. 4. 8. (c) Co. Lit. 129. a. 274. b. (d) 2 Co. 7. b. 4 Inst. 192. 2 Siderf. 73. Hard. 412. Lit. Rep. 128. 1 And. 115. Salk. 411, 412. 4 Mod. 215, 222. Vaugh. 405. Dav. 36.

Br. 9.

6

nos occidit.' Vide Lambert inter leges regis, manded to make their swords good against Edwardi, &c. fol. 135 and 136. [Co. Lit. 68. either rebel or enemy, as occasion shall be b. 172. b.] By this it appeareth, when and offered. Whereas if natural ligeance of the from whom this legal ligeance had his first in-subjects of England should be local, that is, stitution within this realm. Ligeantia in the confined within the realm of England or Scotcase in question is meant and intended of the land, &c. then were not they bound to go out first kind of ligeance, that is, of ligeance natu- of the continent of the realm of England or ral, absolute, &c. due by nature and birth-right. Scotland, &c. [2 Inst. 47, 48, 528.] And the But if the plaintiff's father be made a denizen, opinion of Thirninge in 7 H.-4. tit. Protect' and purchase lands in England to him and his 100, is thus to be understood, that an English heirs, and die seised, this land shall never de- subject is not compellable to go out of the scend to the plaintiff; [Co. Lit. 8. a. 129. a.] realm without wages, according to the statutes for that the king by his letters patent may make of 1 E. 3, c. 7. 18 E. 3, c. 8. 18 H. 6, c. 19, , a denizen, but cannot naturalize him to all pur- &c. 7 H. 7, c. 1. 3 H. 3, c. 5. &c. [2 Inst 528.] poses, as an act of parliament may do; neither In ann. 25 E. 1, Bigot earl of Norfolk and Sufcan letters patent make any inheritable in this folk, and earl marshal of England, and Bohun case, that by the common law cannot inherit. earl of Hereford and high constable of England, And herewith agreeth 36 H. 6, tit. Denizen, did exhibit a petition to the king in French (which I have seen anciently recorded) [MayHomage in our book is two-fold, that is to nard's E. 2. fo.] on the behalf of the commons say, homagium ligeum,' and that is as much as of England, concerning how and in what sort ligeance, of which Bracton speaketh, 1. 2. c. 35. they were to be employed in his majesty's wars f. 79. 'Soli regi debet' sive dominio seu ser- out of the realm of England; [2 Inst. 528.] vitio,' and there is homagium feodale,' which and the record saith, that, post multas et bath his original by tenure. [Co. Lit. 68. b. varias altercationes,' it was resolved, they Vaug. 279.] In Fit. Nat. Brev. 269, there is a ought to go but in such manner and form writ for respiting of this later homage, which is as after was declared by the said statutes, due ratione feodi sive tenure: sciatis quod which seem to be but declarative of the ' respectuamus homagium nobis de terr' et te- common law. And this doth plentifully and 'nementis quæ tenenter de nobis in capite de- manifestly appear in our books, being truly bit.' But homagium ligeum, i. ligeantia,' is in- and rightly understood. In 3 H. 6, tit. Proherent and inseparable, and cannot be respited. tection 2, one had the benefit of a protection, 3. Now are we come to (and almost past) for that he was sent into the king's wars in the consideration of this circumstance, where comitiva' of the protector; [Co. Lit. 130. b.] natural hgeance should be due: for by that and it appeareth by the record, and by the which hath been said, it appeareth that ligeance, chronicles also, that this employment was into and faith and truth, which are her members and France; [Co. Lit. 130. b. the greatest part parts, are qualities of the mind and soul of man, thereof then being under the king's actual obeand cannot be circumscribed within the predi-dience, so as the subjects of England were emcament of ubi; for that were to confound pre-ployed into France for the defence and safety dicaments, and to go about to drive (an absurd thereof; in which case it was observed, that and impossible thing) the predicament of qua- seeing the protector, who was Prorex, went, the lity into the predicament of uli Non respon- saine was adjudged a voyage royal, 8 HI. 6. fol. 'detur ad hanc quæstionem, ubi cest?' To say, 10. b. the lord Talbot went with a company of verus et fidelus subditus est; sed ad hanc Englishmen into France, then also being for quæstionem, qualis est? Recte et apte respon- the greatest part under the actual obedience of 'detur, verus et fidelis ligeus, &c. est.' But the king, who had the benefit of their protecyet for the greater illustration of the matter, tions allowed unto them. [Fitz. protect. 5. Br. the point was handled by itself, and that lige protect. 48.] And here were observed the ance of the subject was of as great an extent words of the writ in the Register, fol. 88. where' and latitude, as the royal power and protection it appeareth that men were employed in the of the king, et è converso.' It appeareth by king's wars out of the realm per præceptum the stat. of 11 H. 7, cap. 1. and 2 E. 6, cap. 2. nostrum,' and the usual words of the writ of that the subjects of England are bound by their protection be in obsequio nostro,' [Fitz. proligeance to go with the king, &c. in his wars, as tect. 13.] 32 H. 6. fol. 4. a. it appeareth, that well within the realin, &c. as without. And Englishmen were pressed into Guyienne, [Fitz. therefore we daily see, that when either Ireland, protect. 35. Br. protect. 24.] 44 E. 3. 12. a. or any other of his majesty's dominions, be in-into Gascoyne with the duke of Lancaster, 17 fested 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 com

6

See L. L. Saxon per Wilkins p. 204.

H. 6. tit. Protection, into [Fitz. protect. 56.]
Gascoyne with the earl of Huntingdon, steward
of Guienne, 11 and 12 H. 4. 7. a. into (a)
Ireland, and out of this realm with the duke of
Gloucester and the lord Knolles: vide (b) 19

(a) Fitz. Protect. 24. Co. Lit. 130. b. Br. Protect. 3.

(b) Fitz, Protect. 8. Br. Protect. 49.