Page:The English Reports v77 1907.pdf/407

marks unto the King; and if the town were not able to pay it, then the hundred should forfeit and pay the same unto the King's treasure: whereunto the King assented. This law was penned quicunque occiderit Francigenam, &c.; not excluding other aliens, but putting Francigena, a Frenchman, for example, that others must be like unto him, in owing several ligeance to a several sovereign, that is, to be extra ligeantiam Regis Angl', and infra ligeantiam alterius Regis. And it appears before, out of Bracton and Fleta, that both of them use the same example (in describing of an alien) ad fidem Regis Franciæ. And it was holden, that except it could be proved that the party slain was an Englishman, that he should be taken for an alien: and this was called Englesherie, Englesheria, that is, a proof that the party slain was an Englishman. (Hereupon [17 a] Canutus presently withdrew his armies, and within a while after lost his Crown, and the same was restored to his right owner.) The said law of Englesherie continued until 14 Ed. 3. cap. 4. and then the same was by Act of Parliament ousted and abolished. So amongst the laws of William the First, (published by Master Lambert, fol. 125.) omnis Francigena (there put for example as before is said, to express what manner of person alienigena should be) qui tempore Edvardi propinqui nostri fuit particeps legum et consuetudinem Anglorum (that is made denizen) quod dicunt ad scot et lot persolvat secundum legem Anglorum.

Every man is either alienigena, an alien born, or subditus, a subject born. Every alien is either a friend that is in league, &c. or an enemy that is in open war, &c. Every alien enemy is either pro tempore, temporary for a time, or perpetuus, perpetual, or specialiter permissus, permitted especially. Every subject is either natus, born, or datus, given or made: and of these briefly in their order. An alien friend, as at this time, a German, a Frenchman, a Spaniard, &c. (all the Kings and princes in Christendom being now in league with our sovereign: but a Scot being a subject, cannot be said to be a friend, nor Scotland to be solum amici) may by the common law have, acquire, and get within this realm, by gift, trade, or other lawful means, any treasure, or goods personal whatsoever,^[1] as well as an Englishman, and may maintain any action for the same^[2]: but but lands within this realm,^[3] or houses (but for their necessary habitation only) alien friends cannot acquire, or get, nor maintain any action real or personal, for any land or house, unless the house be for their necessary habitation. For if they should be disabled to acquire and maintain these things, it were in effect to deny unto them trade and traffic, which is the life of every island. But if this alien become an enemy, (as all alien friends may) then is he utterly disabled to maintain any action, or get any thing within this realm. And this is to be understood of a temporary alien, that being an enemy may be a friend, or becoming a friend may be an enemy. But a perpetual enemy (though there be no wars by fire and sword between them) cannot maintain any action, or get any thing within this realm. All infidels are in law perpetui inimici,^[4] perpetual enemies (for the law presumes not that they will be converted, that being remota potentia, a remote possibility) for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual [17 b] hostility, and can be no peace;^[5] for as the Apostle saith, 2 Cor. 6. 15. Quæ autem conventio Christi ad Belial, aut quæ pars fideli cum infideli, and the law saith, Judæo Christianum nullum serriat mancipium, nefas enim est quem Christus redemit blasphemum Christi in servitutis vinculis detinere. Register 282. Infideles sunt Christi et Christianorum inimici. And herewith agreeth the book in 12 H. 8. fol. 4. where it is holden that a Pagan cannot have or maintain any action at all.^{[N 1]}

And upon this ground there is a diversity between a conquest of a kingdom of a