Page:The English Reports v77 1907.pdf/411

sometime dukedoms, and now kingdoms; and (omitting many other, and coming nearer home,) Ireland was before 32 H. 8. a lordship; and now is a kingdom, and yet the King of England was as absolute a prince and sovereign when he was Lord of Ireland, as now when he is styled King of the same. 10 Ed. 3. 41. an exchange was made between an Englishman and a Gascoin, of lands in England and in Gascoin; ergo, the Gascoin was no alien, for then had he not been capable of lands in England, 1 H. 4. 1. the King brought a writ of right of ward against one Sybil, whose husband was exiled into Gascoin; [20 a] ergo Gascoin is no parcel or member of England, for exilium est patriæ privatio, natalis soli, mutatio, legum nativarum amissio; 4 E. 3. 10 b. the King directed his writ out of Chancery under the Great Seal of England, to the Mayor of Burdeaux,^[1] (a city in Gascoin) then being under the King's obedience, to certify, whether one that was outlawed here in England, was at that time in the King's service under him in obsequio Regis: whereby it appeareth that the King's writ did run into Gascoin, for it is the trial that the common law hath appointed in that case. But as to other cases, it is to be understood, that there be two kinds of writs brevia mandatoria et remedialia, et brevia mandatoria et non remedialia: brevia mandatoria et remedialia, as writs of right, of formedon, &c. of debt, trespass, &c. and shortly all writs real and personal, whereby the party wronged is to recover somewhat, and to be remedied for that wrong was offered unto him, are returnable or determinable in some Court of Justice within England, and to be served and executed by the sheriffs, or other ministers of justice within England, and these cannot by any means extend into any other kingdom, country, or nation, though that it be under the King's actual ligeance and obedience. But the other kind of writs that are mandatory, and not remedial, are not tied to any place, but do follow subjection and ligeance, in what country or nation soever the subject is, as the King's writ to command any of his subjects residing in any foreign country to return into any of the King's own dominions, sub fide et ligeantia quibus nobis tenemini. And so are the aforesaid mandatory writs cited out of the Register of protection for safety of body and goods, and requiring that if any injury be offered, that the same be redressed according to the laws and customs of that place. Vide le Reg. fol. 26. Stamford Prærog. cap. 12. fol. 39. saith, that men born in Gascoin are inheritable to lands in England. This doth also appear by divers Acts of Parliament: for by the whole Parliament, 39 E. 3. cap. 16. it is agreed, that the Gascoins are of the ligeance and subjection of the King. Vide 42 Ed. 3. cap. 2. and 28 H. 6. cap. 5. &c.

Guienne was another part of Aquitain, and came by the same title; and those of Guienne were by Act of Parliament in 13 H. 4. not imprinted, ex Rot. Parliament. eodem anno, adjudged and declared to be no aliens, but able to possess and purchase, &c. lands within this realm. And so doth Stamford take the law. Prærog. c. 12. f. 39. [20 b] And thus much of the dukedom of Aquitain, which (together with the earldom of Poitiers) came to King Henry the Second (as hath been said) by marriage, and continued in the actual possession of the Kings of England by ten descents, viz. from the first year of King Henry the Second, unto the two and thirtieth year of King Henry the Sixth, which was upon the very point of three hundred years, within which duchy there were (as some write) four archbishoprics, 24 bishoprics, 15 earldoms, 202 baronies, and above a thousand captainships and bailliwicks; and in all this long time neither book case nor record can be found wherein any plea was offered to disable any of them that were born there, by foreign birth, but the contrary hereof directly appeareth by the said book case of 27 lib. Ass. 48.^[2]

The Kings of England had sometimes Normandy under actual ligeance and obedience. The question is then, whether men born in Normandy, after one King had them both, were inheritable to lands in England; and it is evident by our books that they were: for so it appeareth by the declaratory Act of 17 Ed. 2. de Prærog. Reg. c. 12. that they were inheritable to, and capable of lands in England; for the purview of that statute is quod Rex habebit escaetas de terris Normannorum, &c. Ergo Normans might have lands in England, et hoc similiter intelligendum est, si aliqua hæreditas descendat alicui nato in partibus transmarinis, &c. Whereby it appeareth,