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7 CO. REP. 14 a.
CALVIN'S CASE
393

sunt immutabilia. And herewith agreeth Bracton, lib. 1. cap. 5. and Doctor and Student, cap. 5 and 6. And this appeareth plainly and plentifully in our books.

If a man hath a ward by reason of a seigniory,[N 1] 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;[1] for nature hath annexed it to the person of the father, as it appeareth in 33 H. 6. 55. b. Et bonus Rex nihil a bono patre differt, et patria dicitur a patre, quia habet communem patrem, qui est pater patriæ. In the same manner, maris et fœminæ conjunctio est de jure naturæ, as Bracton, in the same book and chapter, and St. Germin in his book of the Doctor and Student, cap. 5., do hold. Now, if he that is attainted of treason or felony, be slain by one that hath no authority, or executed by him that hath authority, but pursueth not his warrant, in this case his eldest son can have no appeal,[N 2] for he must bring his appeal as heir, which being ex provisione hominis, he loseth it by the attainder of his father; but his wife (if any he have) shall have an appeal,[2] because she is to have her appeal as wife, which she remaineth notwithstanding the attainder, because maris et fœminæ conjunctio is de jure naturæ, and therefore (it being to be intended of true and right matrimony) is indissoluble; and this is proved by the book in 33 H. 6. 57. So if there be mother and daughter, and the daughter is attainted of felony, now cannot she be heir to her mother for the cause aforesaid; yet after her attainder, if she kill her mother, this is patricide and petit treason; for yet she remaineth her daughter, for that is of nature, and herewith agreeth 21 E. 3. 17. b. If a man be attainted of felony or treason, he hath lost the King's legal protection, for he is thereby utterly disabled to sue any action real or personal (which is a greater disability than an alien in league hath) and yet such a person so attainted hath not lost that [14 a] protection which by the law of nature is given to the King, for that is indelebilis et immutabilis, and therefore the King may protect and pardon him, and if any man kill him without warrant, he shall be punished by the law as a manslayer, and thereunto accordeth 4 Ed. 4. and 35 H. 6. 57. 2 Ass. pl. 3. By the statute of 25 Ed. 3. cap. 22. a man attainted in a præmunire, is by express words out of the King's protection generally; and yet this extendeth only to legal protection, as it appeareth by Littleton, fol. 43. for the Parliament could not take away that protection which the 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 farther enacted, that it should be done with him as with an enemy, by which words any man might have slain such a person (as it is holden in 24 H. 8. tit. Coron. Br. 197.) until the statute made anno 5 Eliz. cap. 1. yet the King might protect and pardon him. A man outlawed is out of the benefit of the municipal law; for so saith Fitz. N. B. 161. a. utlagatus est quasi extra legem positus: and Bract. l. 3. tract. 2. c. 11. saith, that caput geret lupinum; and yet is he not out either of his natural ligeance, or of the King's natural protection; for neither of them is tied to municipal laws, but is due by the law of nature, which (as hath been said) was long before any judicial or municipal laws. And therefore if a man were outlawed for felony, yet was he within the King's natural protection, for no man but the sheriff could execute him, as it is adjudged in 2 lib. Ass. pl. 3. Every subject is by his natural ligeance bound to obey and serve his sovereign, &c. It is enacted by the Parliament of 23 H. 6. that no man should serve the King as sheriff of any county, above one year, and that notwithstanding any clause of non obstante to the contrary, that is to say, notwithstanding that the King should expressly dispense with the said statute: howbeit it is agreed in 2 H. 7. that against the express purview of that Act, the King may, by a special non obstante dispense with that Act, for that the Act could not bar the King of the service of his subject, which the law of nature did give unto him. By these and many other cases that might be cited out of our books, it appeareth, how plentiful the authorities of

  1. ↑ 3 Co. 39 a. 7 Co. 12 b. Co. Lit. 84 b. Br. Gard. 6. Br. Forfeit, 70. Plowd. 294 a. Englefield's case. 2 Inst. 234.
  2. ↑ Stamf. Cor. 59. c. 35 H. 6. 58 a. Br. Appeal 5. 131. Fitz. Cor. 21. 2 Inst. 215.
  1. ↑ Wardships, by reason of knight's service abolished, stat. 12 Car. 2, cap. 24.
  2. ↑ Appeals of treason, felony, and other offences abolished, stat. 59 Geo. 3. cap. 46.

K. B. vi.—13*

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