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384
CALVIN'S CASE
7 CO. REP. 6 b.

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 observable, that as there is a local protection on the King's part, so there is a local ligeance of the subject's part.[1] And this appeareth in 4 Mar. Br. 32.[2] and 3 and 4 Phil. and Mar. Dyer 144. Sherley a Frenchman, being in amity with the King, came into England, and joined with divers subjects of this realm in treason against the King and Queen, and the indictment concluded contra ligeant' suæ debitum;[3] for he owed to the King local obedience, that is, so long as he was within the King's protection; which local obedience being but momentary and uncertain, is yet strong enough to make a natural subject, for if he hath issue here, that issue is a natural born subject;[4] a fortiori 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. And it is to be observed, that it is nec cœlum, nec solum, neither the climate nor the soil, but ligeantia and obedientia that make the subject born; for if enemies should come into the realm, and possess town or fort, and have issue there, that issue is no subject to the King of England, though he be born upon his soil, 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 precedent was cited in Hilar. 36 Eliz. when Stephano Ferrara de Gama, and Emanuel Lewis Tinoco, two Portuguese born, coming to England under Queen Elizabeth's safe conduct, and living here under her protection, joined with Doctor Lopez in treason within [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. omitting these words (naturalem domin' suam) and ought to conclude contra ligeant' suæ debitum.[5] But if an alien enemy come to invade this realm,[6] and be taken in war, he cannot be indicted of treason;[N 1] for the indictment cannot conclude contra ligeant' suæ 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 H. 7, in Perkin Warbeck's case, who being an alien born 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 Royal: but being taken in the war, 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 bear 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 Griffith Attorney-General, by an extract out of the book of Hobart, Attorney-General to King H. 7.

4. Now are we to speak of legal ligeance, which in our books viz. 7 E. 2. tit. Avowry 211. 4 E. 3. fol. 42. 13 E. 3. tit. Avowry 120, &c. is called suit Royal,

  1. ↑ Co. Lit. 129 a.
  2. ↑ B. N. C. 487.
  3. ↑ Hob. 271. Co. Lit. 129 a. Dyer 145, pl. 62. Cawly 184. 3 Inst. 11.
  4. ↑ Co. Lit. 8 a. 5 Eliz. Dyer 224 a. b.
  5. ↑ 3 Inst. 11. Dy. 145. pl. 62. Cawly 185. Hob. 271. Co. Lit. 129 a.
  6. ↑ 3 Inst. 5. 11. Bacon's Hist. H. 7. fo. 11. 6 East 592.
  1. ↑ Vid. Rex v. Depardo, 1 Taunt. 26, that a manslaughter committed in China, by an alien enemy, who had been a prisoner of war, and was then acting as a mariner on board an English merchant-ship, and the deceased being an Englishman, cannot be tried here under a commission issued in pursuance of the statutes 33 H. 8. c. 23, and 43 Geo. 3. c. 113. § 6.
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