Page:The English Reports v77 1907.pdf/406

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396
CALVIN'S CASE
7 CO. REP. 16 b.

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 merchandize, and enter into his realm, if the duke cometh and bringeth merchandize 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 H. 6. 14 b.[1] accord. 2. 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 Ed. 3.[2] The Earl of Richmond's case before recited. 3. That albeit the King by his letters patent of safe conduct do 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.

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, or judgments reported in our books in all successions of ages, proving the plaintiff to be no alien. 6. Demonstrative conclusions upon the premises, approving the same.

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 alienæ gentis seu alienæ ligeantiæ, qui etiam [16 b] dicitur peregrinus, alienus, exoticus, extraneus, &c. Extraneus est subditus, qui extra terram, i.e. potestatem Regis natus est. 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, as it appeareth in 9 Ed. 4. 7. b. Book of Entries, fol. 244, &c.[3] which cannot possibly be pleaded in this case, for two causes. 1. For that one King is sovereign of both kingdoms. 2. 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, or extra legem, which are circumscribed to place, but extra ligeantium, which (as it hath been said) is not local or tied to any place.

It appeareth by Bracton, lib. 3. tract. 2. c. 15. fol. 134. that Canutus the Danish King,[4] having settled himself in this kingdom in peace, kept notwithstanding (for the better continuance thereof) 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, wisely and politically 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 sixty-six

    Britain; the right and privilege of sitting in the House of Lords, and the privileges depending thereon, and the right of sitting on the trial of peers, only excepted.

  1. ↑ Br. Brief 159. Fitz. Brief 35.
  2. ↑ 11 E. 3. Fitz. Brief. 473. Antea 15 b. Moor 803. 9 Co. 117 b.
  3. ↑ Antea 5 a.
  4. ↑ Stanf. Cor. 17. f.
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