Page:The English Reports v77 1907.pdf/415

This page has been proofread, but needs to be validated.
7 CO. REP. 23 b.
CALVIN'S CASE
405

had committed high treason in Ireland, that he, by the statute of 23 H. 8. c. 33. might be indicted, arraigned, and tried for the same in England, according to the purview of that statute: the words of which statute be, "That all treasons, &c. committed by any person out of the realm of England shall be from henceforth enquired of, &c."[1] and they all resolved (as afterwards they did also in Sir John Perrot's case) that Ireland was out of the realm of England, and that treasons committed there were to be tried within England by that statute. In the statute of 4 Hen. 7. cap. 24. of Fines, provision is made for them that be out of this land;[2] and it is holden in Plow. Com. in Stowel's case 375, that he that is in Ireland is out of this land, and consequently within that proviso. Might not then the like plea be devised as well against any person born in Ireland, as (this is against Calvin that is a postnatus) in Scotland? For the Irishman is born extra ligeantiam Regis regni sui Angl', &c. which be verba operativa in the plea: but all men know that they are natural-born subjects, and capable of and inheritable to lands in England. Lastly, to conclude this part with Scotland itself[3] in ancient time part of Scotland (besides Berwick) was within the power and ligeance of the King of England,[4] as appeareth by our books 42 E. 3. 2. b.[5] The Lord Beaumont's case, 11 E. 3. c. 2, &c. and by precedents hereafter mentioned; and that part (though it were under the King of England's ligeance and obedience) yet was it governed by the laws of Scotland. [23 b] Ex rotulis Scotiæ, anno 11 Ed. 3. amongst the records in the Tower of London. Rex, &c. Constituimus Rich. Talebot Justiciarium nostrum villæ Berwici super Twedam, ac omnium aliarum terrarum nostrarum in partibus Scot', ad faciend' omnia et singula quæ ad officium justiciarii pertinent, secundum legem et consuetudinem regni Scot'. And after anno 26 E. 3. ex eodem rot.

Rex Henrico de Percey, Ricarda de Nevil, &c. Volumus et vobis et alteri vestrum tenore præsentium committimus et mandamus, quod homines nostri de Scot' ad pacem et obedientiam nostram existentes, legibus, libertatibus, et liberis consuetudinibus, quibus ipsi et antecessores sui tempore celebris memoriæ Alexandri quondam Regis Scot' rationabiliter usi fuerunt, uti ut gaudere deberent, prout in quibusdam indenturis, &c. plenius dicitur contineri.

And there is a writ in the Register 295 a. Dedimus potestatem recipendi ad fidem et pacem nostram homines de Galloway. Now the case in 42 Ed. 3. 2. b.[6] (which was within sixteen years of the said grant, concerning the laws in 26 E. 3.) ruleth it, that so many as were born in that part of Scotland that was under the ligeance of the King were no aliens, but inheritable to lands in England; yet was that part of Scotland in another kingdom, governed by several laws, &c. And if they were natural subjects in that case, when the King of England bad but part of Scotland, what reason should there be why those that are born there, when the King hath all Scotland, should not be natural subjects, and no aliens? So, likewise, Berwick is no part of England, nor governed by the laws of England;[7] and yet they that have been born there, since they were under the obedience of one King, are natural-born subjects, and no aliens, as it appeareth in 15 R. 2. cap. 7, &c. Vide 19 H. 6. 35. b. & 39 H. 6. 39. a.[8] And yet in all these cases and examples, if this new devised plea had been sufficient, they should have been all aliens, against so many judgments, resolutions, authorities, and judicial precedents in all successions of ages. There were sometimes in England, whilst the heptarchy lasted, seven several crowned Kings of seven several and distinct kingdoms; but in the end the West Saxons got the monarchy, and all the other Kings melted (as it were) the crowns to make one imperial diadem for the King of the West Saxons over all. Now when the whole was under the actual and real ligeance and obedience of one King, were any that were born in any of those several and distinct kingdoms aliens one to another? Certainly they being born under the obedience of one King

  1. ↑ 35 H. 8. c. 2.
  2. ↑ Cawly 93. Co. Litt. 261 b. 3 Inst. 11.
  3. ↑ 3 Inst. 18. Plowd. 368. b. Scotland, Scotia.
  4. ↑ Heylin's Cosmog. lib. 4. p. 305, 306.
  5. ↑ Fitz. Brief. 551.
  6. ↑ Fitz. Brief, 551. Ant. 23. a.
  7. ↑ 1 Sid. 381, 382. 2 Burro. 858.
  8. ↑ Fitz. Protect. 8. Br. Protect. 49.
This article is issued from Wikisource. The text is available under Creative Commons Attribution-Share Alike 4.0 unless otherwise noted. Additional terms may apply for the media files.