52 entries, 27 unidentified (rearranged in identified and unidentified)

I have compiled the below list which I have previously forwarded to you:

************ ********* ********* ********

Name – OBAMA, BARACK H
Gender – Male
Street Address – 180 N LA SALLE ST APT 2200N
City, State, Zip – CHICAGO IL 60601-2501
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 042-68-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Feb 07 – Jun 07
************ ********* ********* ********

Name – OBAMA, BARACK H
Gender – Male
Street Address – 5450 S EAST VIEW PARK APT 1
City, State, Zip – CHIC AGO IL 60615-5916
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 042-68-xxxx
Age – 47
Date of Birth – Aug, 1961
Deceased – No
Date Record Verified -
************ ********* ********* ********

Name – OBAMA, BARACK H
Gender – Male
Street Address – 5450 EASTVIEW PARK S APT 1
City, State, Zip – CHICAGO IL 60615
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 042-68-xxxx
Age – 47
Date of Birth – Aug, 1961
Deceased – No
Date Record Verified -
************ ********* ********* ********

Name – OBAMA, BARACK H
Gender – Male
Street Address – 5429 S HARPER AVE APT 1N
City, State, Zip – CHICAGO IL 60615-5548
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 042-68-xxxx
Age – 47
Date of Birth – Aug 04, 1961
Deceased – No
Date Record Verified – Oct 86
************ ********* ********* ********

Name – OBAMA, BARACK H
Gender – Male
Street Address – 5324 S KIMBARK AVE
City, State, Zip – CHICAGO IL 60615-5287
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 042-68-xxxx
Age – 47
Date of Birth – Aug 04, 1961
Deceased – No
Date Record Verified – Jun 88 – Dec 90
************ ********* ********* ********

Name – OBAMA, BARACK H
Gender – Male
Street Address – N 1N
City, State, Zip – CHICAGO IL 60615
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 042-68-xxxx
Age – 47
Date of Birth – Aug 04, 1961
Deceased – No
Date Record Verified – Jan 88
************ ********* ********* ********

Name – OBAMA, BARACK H
Gender – Male
Street Address – 54501 SE VW
City, State, Zip – CHICAGO IL 60615
Probable Current Address – No
Telephone – 000-684-4809
Telephone Accountholder -
Social Security – 042-68-xxxx
Age – 47
Date of Birth – Aug 04, 1961
Deceased – No

Name – OBAMA, BARACK
Street Address – 713 HART SENATE
City, State, Zip – WASHINGTON DC 20510-0001
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 282-80-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Apr 08 – Nov 08
************ ********* ********* ********

Name – OBAMA, BARACK

Street Address – 10131 53RD ST E
City, State, Zip – CHICAGO IL 60615
Probable Current Address – No
Telephone – 217-782-5338 – CST
Telephone Accountholder -
Social Security – 364-03-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Mar 03 – Jul 03
************ ********* ********* ********

Name – OBAMA, BARACK
Street Address – 10131 53RD ST E
City, State, Zip – CHICAGO IL 60615
Probable Current Address – No
Telephone – 773-363-1996 -=2 0CST
Telephone Accountholder -
Social Security – 364-03-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Mar 03 – Jul 03
************ ********* ********* ********

Name – OBAMA, BARACK
Street Address – 10131/2 53RD ST E
City, State, Zip – CHICAGO IL 60615
Probable Current Address – No
Telephone – 217-782-5338 – CST
Telephone Accountholder -
Social Security – 364-03-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Mar 03 – Jul 03
************ ********* ********* ********

Name – OBAMA, BARACK
Street Address – 10131/2 53RD ST E
City, State, Zip – CHICAGO IL 60615
Probable Current Address – No
Telephone – 773-363-1996 – CST
Telephone Accountholder -
Social Security – 364-03-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Mar 03 – Jul 03
************ ********* ********* ********

Name – OBAMA, BARACK
Gender – Male
Street Address – 5046 S GREENWOOD AVE
City, State, Zip – CHICAGO IL 60615-2806
Probable Current Address – Yes
Telephone -
Telephone Accountholder -
Social Security – 042-68-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Jun 05 – Nov 05
************ ********* ********* ********

Name – OBAMA, BARACK
Gender – Male
Street Address20- 5046 S GREENWOOD AVE
City, State, Zip – CHICAGO IL 60615-2806
Probable Current Address – No
Telephone – 773-684-4809 – CST
Telephone Accountholder -
Social Security – 042-68-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Jun 05 – Nov 05

************ ********* ********* ********

Name – OBAMA, BARACK H
Gender – Male
Street Address – 5450 E VIEW PARK APT 1
City, State, Zip – CHICAGO IL 60615
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 042-68-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified -
************ ********* ********* ********

Name – OBAMA, BARACK H
Gender – Male
Street Address – 54501 SE VIEW PARK
City, State, Zip – CHICAGO IL 60615
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 042-68-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verifie d -
************ ********* ********* ********

Name – OBAMA, BARACK H
Gender – Male
Street Address – 7436 S EUCLID
City, State, Zip – CHICAGO IL 60649
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 042-68-xxxx
Age – 47
Date of Birth – Aug, 1961
Deceased – No
Date Record Verified -

Name – OBAMA, BARACK HUSSEIN
Gender – Male
Street Address – 180 N LA SALLE ST STE 2200
City, State, Zip – CHICAGO IL 60601-2610
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 042-68-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Feb 07 – Jun 08
************ ********* ********* ********

Name – OBAMA, BARACK HUSSEIN
Gender – Male
Street Address – 5450 S EAST VIEW PARK # 1
City, State, Zip – CHICAGO IL 60615-5916
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 042-68-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Jul 02 – Jul 06
************ ********* ********* ********

Name – OBAMA, BARACK HUSSEIN
Gender – Male
Street Address – 5046 S GREENWOOD AVE
City, State, Zip – CHICAGO IL 60615-2806
Probable Current Address – Yes
Telephone -
Telephone Accountholder -
Social Security – 042-68-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Jun 05 – Apr 08
************ ********* ********* ********

Name – OBAMA, BARACK HUSSEIN
Gender – Male
=0 AStreet Address – 5046 S GREENWOOD AVE
City, State, Zip – CHICAGO IL 60615-2806
Probable Current Address – No
Telephone – 773-684-4809 – CST
Telephone Accountholder -
Social Security – 042-68-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Jun 05 – Apr 08
************ ********* ********* ********

Name – OBAMA, BARACK HUSSEIN
Gender – Male
Street Address – 54501 E VIEW PARK S
City, State, Zip – CHICAGO IL 60615
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 042-68-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Jun 97 – Aug 04
************ ********* ********* ********

Name – OBAMA, BARACK HUSSEIN
Gender – Male
Street Address – PO BOX 49798
City, State, Zip – CHICAGO IL 60649
Probable Current Address – No
Telephone – 773-684-4809 – CST
Telephone Accountholder -
Social Security – 042-68-xxxx
Age – 47
Date of Birth – Aug 04, 1961
Deceased – No
Date Record Verified – Sep 99
************ ********* ********* ********

Name – OBAMA, BARACK HUSSEIN
Gender – Male
Street Address – 365 BROADWAY APT B1
City, State, Zip – SOMERVILLE MA 02145-2440

Note: USPS zip Valid address

Source: Address BET 1988 AND 1991 365 Broadway #B1, Somerville, MA

Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 042-68-xxxx
Age – 119
Date of Birth – 1890
Deceased20- No
Date Record Verified -
************ ********* ********* ********

Name – OBAMA, BARACK H
Gender – Male
Street Address – 365 BROADWAY APT B1
City, State, Zip – SOMERVILLE MA 02145-2440

Note: USPS zip Valid address

Source: Address BET 1988 AND 1991 365 Broadway #B1, Somerville, MA

Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 042-68-xxxx
Age – 47
Date of Birth – Aug 04, 1961
Deceased – No
Date Record Verified -
************ ********* ********* ********

Unidentified

************ ********* ********* ********

Name – OBAMA, BARACK
Gender – Male
Street Address – 355 POMELO AVE
City, State, Zip – BREA CA 92821-4129

Notes: Google Maps returns a match, looks like a residential area. USPS Zip code matches

Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 537-36-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Oct 08 – Dec 08
************ ********* ********* ********

Name – OBAMA, BARACK
Street Address - 3535 OLIVE ST
City, State, Zip – DENVER CO 80207-1523

Notes: Google Maps returns a match, looks like a residential area. USPS Zip code matches.

Probable Current Address – No
Telephone – 720-336-7722 – MST
Telephone Accountholder -
Social Security – 456-73-xxxx
Age -
Date of Birth -
Deceased – No
Dat e Record Verified – Sep 08
************ ********* ********* ********

Name – OBAMA, BARACK
Street Address – 40 TRANSFER ST
City, State, Zip – DENVER CO 80207

Notes: No zip code match, 80207 is Denver Zip

Probable Current Address – No
Telephone – 303-545-0199 – MST
Telephone Accountholder -
Social Security – 011-23-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Nov 07 – Mar 08
************ ********* ********* ********

Name – OBAMA, BARACK

Gender – Male
Street Address – APPLE ST
City, State, Zip – MELBOURNE FL 32940

Notes: Zip code matches Melbourne.  No Apple St found. Match in US Search, Melbourne

Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 762-41-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Oct 08 – Dec 08
************ ********* ********* ********

Name – OBAMA, BARACK
Street Address – 1603 RUCKER RD
City, State, Zip – ALPHARETTA GA 30004-1435
Probable Current Address – No

Note: Not a valid address in USPS database

Telephone -
Telephone Accountholder -
Social Security – 579-02-xxxx
Age – Date of Birth -
Deceased – No
Date Record Verified – Feb 08 – Aug 08
************ ********* ********* ********

Name – OBAMA, BARACK
Street Address – 505 FARR RD APT C
City, State, Zip – COLUMBUS GA 31907-6275
Probable Current Address – No

Note: USPS zip code matches

Telephone -
Telephone Accountholder -
Social Security – 420-67-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Jan 08 – Mar 08
************ ********* ********* ********

Name – OBAMA, BARACK
Street Address – 505 FARR RD APT C
City, State, Zip – COLUMBUS GA 31907-6275
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 423-29-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Feb 08 – Aug 08
************ ********* ********* ********

Name – OBAMA, BARACK
Street Address – 83775 BATES RD
City, State, Zip – JACKSON NJ 08527
Probable Current Address – No

Notes:  Valid zip but address not found

Telephone -
Telephone Accountholder -
Social Security – 485-40-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Feb 08 – Aug 08
************ ********* ********* ********

Name – OBAMA, BARACK
Gender – Male
Street Address – 4034 BRICK CHURCH PIKE
City, State, Zip – NASHVILLE TN 37207-1515

Notes: USPS returns valid zip. Google Maps shows valid hit.

Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 427-45-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Nov 08 – Dec 08
************ ********* ********* ********

Name – OBAMA, BARACK
Street Address – 1000 NW 33 AVE
City, State, Zip – FORT WORTH TX 76180
Probable Current Address – No

Note: USPS not a valid address

Telephone -
Telephone Accountholder -
Social Security – 675-54-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Apr 08 – Oct 08
************ ********* ************** ***

Name – OBAMA, BARACK
Street Address – PO BOX 1236
City, State, Zip – PROVO UT 84603-1236
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 901-09-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Jun 07 – Jan 08
************ ********* ********* ********

Name – OBAMA, BARACK
Street Address – 111 PENNSYLVANIA AVE
City, State, Zip – WASHINGTON UT 84780

Note: Haha

Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 799-89-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Jul 07 – Feb 08

************ ********* ********* ********

Name – OBAMA, BARACK H

Gender – Male
Street Address – 4085 JACOBS LNDG
City, State, Zip – SAINT CHARLES MO 63304-7495
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 999-88-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Oct 08 – Dec 08
************ ********* ********* ********

Name – OBAMA, BARACK HUSSEIN
Gender – Male
Street Address – 300 MASSACHUSETTS AVE NW
City, State, Zip – WASHINGTON DC 20001-2629
Probable Current Address – No
Telephone -
Telephone Accountholder20-
Social Security – 042-68-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Sep 05
************ ********* ********* ********

Name – OBAMA, BARAK

Street Address – 1009 DIGITAL HWY
City, State, Zip – LOS ANGELES CA 90045
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 999-61-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Dec 05 – Apr 06
************ ********* ********* ********

Name – OBAMA, BARAK
Gender – Male
Street Address – 123 SOUTH DR
City, State, Zip – MIAMI SPRINGS FL 33166-5921

Notes: USSearch match, Miami Springs

Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 606-34-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Aug 08 – Dec 08
************ ********* ********* ********

Name – OBAMA, BARAK
Street Address – 1234 HAPPY ST SE
City, State, Zip – COVINGTON WA 98042
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 535-22-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – May 08 – Sep 08
************ ********* ********* ********

Name – OBAMA, BARRACK
Gender – Male
Street Address – 123 MAIN ST
City, State, Zip – COLUMBUS OH 43207
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 245 -85-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Aug 08 – Dec 08
************ ********* ********* ********

Name – OBAMA, BARRACK
Street Address – 2323 ARISTOTLE CT
City, State, Zip – FAIRFAX VA 22030
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 703-59-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Oct 08 – Dec 08
************ ********* ********* ********

Name – OBAMA, BARRAK
Street Address – 611 N CAPITOL AVE
City, State, Zip – INDIANAPOLIS IN 46204-1205
Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 264-87-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Nov 08 – Dec 08
************ ********* ********* ********

Name – OBAMA, BERTRAND H
Gender – Male
Street Address – 11235 OAK LEAF DR APT 1720
City, State, Zip – SILVER SPRING MD 20901-1318

Notes USPS matches zip code. Match at intelius as relative of Roy A Obama Silver Springs

Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 578-11-xxxx
Age – 44
Date of Birth – Jan, 1965
Deceased – No
Date Record Verified – Dec 95 – Feb 06
************ ********* ********* ********

Name – OBAMA, BERTRAND H OBANG
Gender – Male
Street Address – 11235 OAK LEAF 1720 DR
City, State,=2 0Zip – SILVER SPRING MD 20901

Notes USPS matches zip code. Match at intelius as relative of Roy A Obama Silver Springs

Probable Current Address – No
Telephone – 301-345-0961 – EST
Telephone Accountholder -
Social Security – 578-11-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Sep 97 – May 04
************ ********* ********* ********

Name – OBAMA, BERTRAND O
Gender – Male
Street Address – 11235 OAK LEAF DR APT 1720
City, State, Zip – SILVER SPRING MD 20901-1306

Notes USPS matches zip code. Match at intelius as relative of Roy A Obama Silver Springs

Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 578-11-xxxx
Age – 45
Date of Birth – 1964
Deceased – No
Date Record Verified -
************ ********* ********* ********

Name – OBAMA, BOB A
Gender – Male
Street Address – 5719 N CANAL # 4
City, State, Zip – SPOKANE WA 99216

Note: Alekseys Installation 5719 N. Canal Rd., Spokane , WA Whitepages returns match for Bob A. Obama in Spokane

Probable Current Address – No

Telephone -
Telephone Accountholder -
Social Security – 468-31-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Nov 08 – Dec 08
************ ********* ********* ********

Name – OBAMA, BORACK
Street Address – 222 20TH ST
City, State, Zip – SAN DIEGO CA 92102-3812

Notes: Borack Obama match in Whitepages, NY address

Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 560-11-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Jan 08 – May 08
************ ********* ********* ********

Name – OBAMA, BORAK
Street Address – 3112 1 2 ST
City, State, Zip – SAINT AUGUSTINE FL 32080

Note: Match in USSearch in St Augustine

Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 213-47-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Mar 08 – Dec 08
************ ********* ********* ********

Name – OBAMA, BRACK
Street Address – WHITE HOUSE
City, State, Zip – BALTIMORE MD 21454

Notes: Haha what can I say

Probable Current Address – No
Telephone -
Telephone Accountholder -
Social Security – 410-67-xxxx
Age -
Date of Birth -
Deceased – No
Date Record Verified – Nov 08 – Dec 08
************ ********* ********* ********

Very truly yours,

SANKEY INVESTIGATIONS

Extracts of an opinion of Mr Attorney General Bates dated November 29 1862

We have natural-born citizens, (Constitution, article 2, par. 5,) not made by law or otherwise, but born. And this class is the large majority—in fact) the mass of our citizens— for all others are exceptions specially provided for by law. As they become citizens in the natural way, by birth, so they remain citizens during their natural lives, unless, by their own voluntary act, they expatriate themselves and become citizens or subjects of another nation. For we have no law (as the French have) to decitizenise a citizen who has become such either by the natural process of birth or by the legal process of adoption. And in this connection the Constitution says not one word, and furnishes not one hint, in relation to the color or to the ancestral race of the ” natural-born citizen.” Whatever may have been said in the opinions of judges and lawyers, and in State statutes, about negroes, mulattoes, and persons of color, the Constitution is wholly silent upon that subject. The Constitution itself does not make the citizens; (it is, in fact, made by them.) It only intends and recognizes such of them as are natural—homeborn—and provides for the naturalization of such of them as were alien—foreign-born— making the latter, as far as nature will allow, like the former.

And I am not aware of any provision in our laws to warrant us in presuming the existence in this country of a class of persons intermediate between citizens and aliens. In England there is such a class, clearly denned by law, and called denizens. “A denizen,” Hays Sir William Blackstone, ” is an alien born, but who has obtained, ex donatione regis, letters-patent to make him an English subject; a high and incommunicable branch of the royal prerogative. A denizen is in a kind of middle state between an alien and a natural-born subject, and partakes of both of them.”—(Sharwood’s Com., 374.) In this country I know of but one legal authority tending to show the existence of such a class among us. One of my learned predecessors, Mr. Legare, (4 Opin., 147,) supposes that there may be such a class, and that free colored persons may be ranked in it. Yet, in that same opinion, he declares that a “freeman of color, a native of this country, may be admitted to the privileges of a pre-emptioner under the 10th section of the act of the 4th September, 1841.” And that act declares that a pre-emptioner must be either a citizen of the United States or a person who had declared his intention to become a citizen, as required by the naturalization laws. Of course the ” colored man ” must have been a citizen, or he could not have entered the land under that act of Congress. If not a citizen then by virtue of his native birth, he never could become one by force of law, for our laws extend the privileges of naturalization to such persons only as are “aliens, being free white persons,” and he was neither ; not alien, because natural-born in the country; and not a free white person, because, though free, confessedly ” a man of color.”

If this be a true principle—and I do not doubt it—it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchigement strong enough to override the ” natural born” right as recognized by the Constitution in terms the most simple and comprehensive, and without any reference to race or color, or any other accidental circumstance.

That nativity furnishes the rule, both of duty and of right, as between the individual and the government, is a historical and political truth so old and so universally accepted that it is needless to prove it by authority. Nevertheless, for the satisfaction of those who may have doubts upon the subject, I note a few books, which, I think, cannot fail to remove all such doubts: Kent s Com., vol. 2, part 4, sec. 25; Bl. Com., book 1, ch. 10, p. 365; 7 Co. Rep., Calvin’s case; 4 Term Rep., p. 300, Doe v. Jones; 3 Pet. Rep., p. 246, Shanks v. Dupont; and see a very learned treatise, attributed to Mr. Binney in 2 Am. Law Reporter, 193.

In every civilized country the individual is born to duties and rights—the duty of allegiance and the right to protection; and these are correlative obligations, the one the price of the other, and they constitute the all-sufficient bond of union between the individual and his country, and the country he is born in is, prima facie, hit country. In most countries the old law was broadly laid down that this natural connection between the individual and his native country was perpetual—at least that the tie was indissoluble by the act of the subject alone. (See Bl. Com. supra ; 3 Pet. Rep.)

Orly filed another one. This one with a ‘death threat’ which she fails to explain as having any relevance to her case and with a letter that she has exhausted her FOIA options. Of course, Orly may not have carefully read Lamberth’s ruling (see below). PS: Does Orly know that the case has already been closed?

05/24/2010 30 SUPPLEMENTAL MEMORANDUM to re 29 Reply to opposition to Motion filed by ORLY TAITZ. (Attachments: # 1 Exhibit 05.18.10 letter from SSA, # 2 Exhibit 05.19.10 Death threat)(TAITZ, ORLY) (Entered: 05/24/2010)

Yesterday Taitz received a letter from Jonathan R. Cantor, Executive Director of Office of Privacy and Disclosure of the Social Security Administration dated and signed May 18, 2010. (Exhibit 1 Letter and envelope) As a stroke of providence the letter states “This is our final decision in this matter. If you still believe the decision is incorrect, however, the law permits you to seek review in a district court of the United States

From the ruling by Judge Lamberth

3. Ms. Taitz would be well advised to review the Social Security Administration’s FOIA Regulations, in particular 20 C.F.R. 402.10. See also 5 U.S.C. 552(b)(6); see generally Sherman v. U.S. Dep’t of Army, 244 F.3d 357 (5th Cir. 2001)

§402.10 Policy.

As a general policy, SSA follows a balanced approach in administering FOIA. We not only recognize the right of public access to information in the possession of SSA, but also protect the integrity of internal processes. In addition, we recognize the legitimate interests of organizations or persons who have submitted records to SSA or who would otherwise be affected by release of records. For example, we have no discretion to release certain records, such as trade secrets and confidential commercial information, prohibited from release by law. This policy calls for the fullest responsible disclosure consistent with those requirements of administrative necessity and confidentiality which are recognized in the FOIA.

5 USC 553(b)(6)

(6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

Sherman v. U.S. Dep’t of Army, 244 F.3d 357 (5th Cir. 2001)

TAITZ v OBAMA (QW) – 30 – SUPPLEMENTAL MEMORANDUM – gov.uscourts.dcd.140567.30.0

A somewhat rambling filing by Pamela Barnett, as a pro se.

SUPERIOR COURT OF CALIFORNIA
COUNTY OF SACRAMENTO

Pamela Barnett
Plaintiff, pro-se
v.
Damon Jerrell Dunn (A.K.A. Damon Dunn); Debra Bowen individually and officially as The California Secretary of State; Edmund G. Brown Jr. (A.K.A. Jerry Brown) Officially as The California Attorney General and individually; and John Doe(s)
and Jane Doe(s)
Defendants

COMPLAINT with Cal. Election Code §8001 (a) 2 Cal. Election Code § 8800 NVRA / HAVA related Law
and Jury trial for damages

I – INTRODUCTION Parties

1. Defendant Damon Jerrell Dunn (a.k.a Damon Dunn). Defendant Dunn,is a natural person resident in California (CA) at 3131 Michelson Unit 708W Irvine CA 92612 with mailing address located at 2070 Business Center Drive Suite 140 Irvine CA 92612 With Email damondunn@vahoo com , and is questionably on the California Republican Party primary ballot as a declared candidate for the State of California Republican Party Candidate for Secretary of State of California on June 8, 2010.

2. Defendant Debra Bowen (Defendant Bowen,SOS), is a natural person sued in her official capacity as the Secretary of State of the State of California (SOS), with place of business located at 1500 11″” Street, 5′*’ Floor Sacramento, CA, 95814 Fax (916) 653- 3214 with CAL. ELEC. CODE § 10: California Code – Section 10 is the chief of elections officer of the state, and has the powers and duties specified in Section 12172.5 of the Government Code; and is sued individually herein for breach of Fiduciary Duty

3. Defendant Edmund G. Brown Jr. (A.K.A. Jerry Brown, Defendant Brown, AG) is a natural person sued in his oofficial capacity as The California Attorney General (AG), with place of business located at California Department of Justice Office of the Attorney General 1300    ”I” Street – Suite 125 Sacramento, California 94244-2550 is the chief law enforcement officer of the state with powers and duties specified with Government code to prosecute election crime; and is sued individually herein for breach of Fiduciary Duty.

4. Plaintiff Pamela Bamett, is a natural person with place for service located at 2541 Warrego Way, Sacramento, CA, 95826 Telephone: (415) 846-7170 Fax. (866) 908- 2252, and who is duly registered to vote in California and enrolled / affiliated member of the California Republican Party eligible to vote at the California Republican Party Pnmary scheduled for June 8, 2010 and at the General Election in 2010

II-JURISDICTION 5. Venue is proper in the County of Sacramento and this is the proper court for this
complaint as the events complained of occurred within this county because it involves the Secretary of State of California (SOS) and a candidate for Secretary of State as is Defendant in the California statewide Republican Party Direct Primary and then the General Election ballots with CA Election Code (CEC) § 12; and at a Jury trial General Damages be assessed were the Primary to proceed illegally, would result in Defendants liability to reimburse the cost of the Republican primary and costs incurred of any opposing candidate and or Plaintiff herein along with those similariy situated; and that junsdiction shall be given preference in the CA Courts with CAL. CCP. CODE § 44 ^^’ that according to CAL. ELEC. CODE § 8800: California Code – Section 8800. No candidate whose declaration of candidacy has been filed for any primary election may withdraw as a candidate at that primary election. Must be removed by Judicial Order.

III – BACKGROUND FACTS

FIRST CAUSE OF ACTION Defendant Dunn Maliciously Violated CEC § 8001 (a) 2 / NVRA / HAVA

6. Plaintiffreallegeseachandeveryallegationcontainedintheaboveparagraphs1 through 5 with the same force and effect as though herein set forth at length omits it for brevity

7. Plaintiff alleges that Defendant Dunn’s actions constituted a violation of California Civil Code § 8001(a) 2 national Voter Registration Act of 1993 (NVRA) and Help America to Vote Act of 2002 (HAVA) in that defendant had at all times mentioned herein with explicit knowledge of the law acts with malice.

^ CAL ELEC CODE § 316: California Code – Section 316 “Direct primary” is the primary election held on the first Tuesday after the first Monday in June in each even-numbered year, to nominate candidates to be voted for at the ensuing general election or to elect members of a party central committee

^ • CA CCP Code § 44, California Code – Section 44 Appeals m probate proceedings, in contested election cases, and in actions for libel or slander by a person who holds any elective public office or a candidate for any such office alleged to have occurred during the course of an election campaign shall be given preference in hearing in the courts of appeal, and in the Supreme Court when transferred thereto All these cases shall be placed on the calendar in the order of their date of issue, next after cases in which the people of the state are parties

8. The California Election Code (CEC) requires that to be eligible to be a qualified candidate for Secretary of State a declared and a nominated candidate shall under §201 of the California Elections Code “be a registered voter and otherwise qualified to vote for that office at the time nomination papers are issued to the person”; and

9. On March 13, 2009, Defendant Dunn filed a registration to vote in Californiaand to affiliate with the California Republican Party (see Exhibit A).

10. Defendant Dunn filed his voter card registration in CA on March 13 2009, less then 8 months prior to his declaration of candidacy on November 5, 2009;

11. Further, CEC and related law requires with CEC § 8001. California Code – Section 8001. (a) No declaration of candidacy for a partisan office… shall be filed, by a candidate unless (1) at the time of presentation of the declaration and continuously for not less than three months immediately pnor to that time, or for as long as he has been eligible to register to vote in the state, the candidate is shown by his affidavit of registration to be affiliated with the political party the nomination of which he seeks, and (2) the candidate has not been registered as affiliated with a qualified political partv other than that political partv the nomination ofwhich he seeks within 12 months, or, in the case of an election governed by Chapter 1 (commencing with Section 10700) of Part 6 of Division 10, within three months immediately pnor to the filing of the declaration. (b)The elections official shall attach a certificate to the declaration of candidacy showing the date on which the candidate registered as intending to affiliate with the political party the nomination of which he seeks, and indicating that the candidate has not been affiliated with any other qualified political party for the period specified in subdivision (a) immediately preceding the filing of the declaration. This section shall not apply to declarations of candidacy filed by a candidate of a political party participating in its first direct primary election subsequent to its qualification as a political party pursuant to Section 5100 (Emphasis added by Plaintiff)

12. Defendant Dunn had not been registered and enrolled / affiliated with the Republican Party of California, any State, and or National Republican Party affiliation for 12 months as of November 13, 2010.

13 On or about November 5, 2009, Defendant Dunn, who had been registered and enrolled / affiliated with the Flonda Democratic Party within 12 months, filed the declaration for his candidacy (See Exhibit B) for the California Republican Party nomination Direct Pnmary with Defendant Bowen

14. That according to CAL. ELEC CODE § 305: California Code – Section 305. (a)”Candidate,” for purposes of Section 2184, includes any person who declares in wnting, under penalty of perjury that he or she is a candidate, naming the office (b)”Candidate,” as used in Article 1 (commencing with Section 20200) of Chapter 3 of Division 20, means an individual listed on the ballot, or who has qualified to have wnte- in votes on his or her behalf counted by election officials, for nomination or for election to any elective state or local office, or who receives a contribution or makes an expenditure or gives his or her consent for any other person to receive a contribution or makes an expenditure with a view to bnnging about his or her nomination or election to any elective state or local office, whether or not the specific elective office for which he or she will seek nomination or election is known at the time the contnbution is received or the expenditure is made. The term “candidate” includes any officeholder who is subject to a recall election. CEC Section 305 (c)”Candidate for public office,” as used in Chapter 5 (commencing with Section 20400) of Division 20, means an individual who has qualified to have his or her name listed on the ballot of any election, or who has qualified to have written votes on his or her behalf counted by election officials, for nomination for, or election to, any state, regional, county, municipal, or distnct office which IS filled at an election.

15. Defendant Dunn filed as eariy as possible to maximize press coverage to take advantage over not being affiliated as a Republican Party Member with more Campaign exposure.

16. Defendant Dunn sought out advice from John and Jane Doe(s) to violate CEC § 8001 (a) 2 in order to maximize advantage over any other affiliated California Republican Party candidate if any were to file a declaration by say March 2010 or the minimum available time before the pnmary election on June 8, 2010.

17. Defendant Dunn knew that by filing early he was violating CEC § 8001 (a) 2 and was only an affiliated republican for about 8 months and decided not to wait until say March to file the Declaration, instead sought to conceal and expunge his Florida Democratic Party affiliation record.

18. That based upon information and belief and according to a letter written April 13, 2010 by Jean Marie Atkins Director of Voter Administration the Duval County Board of Election and obtained in person by Dr. Orly Taitz while in Florida (see Exhibit C). on July 10, 2009, Defendant Dunn contacted the Flonda Board of Elections to have any record of enrollment or affiliation with the Flonda Democratic Party in the Duval County database expunged from the official record.

19. The Florida Board of Election database in Duval County records that Defendant Dunn registered in Florida (see Exhibit D) is affiliated with the Democratic Party.

20. That based upon information and belief the Flonda Board of Elections Official with the fiduciary duty to safeguard the records ofthe Board of Elections including those of Defendant Dunn refused to expunge the records when he asked July 10 2009, and prove that Defendant Dunn was a Florida Democrat within the 12 month penod pnor to Defendant Dunn declaring his candidacy in California on November 5, 2009.

21. For the purpose of adhering to the CEC §8001 (a)2 requirement Defendant Dunn in effect was affiliated with the Democratic Party in Florida prior to November 5 2009, when he filed his declaration of candidacy and intends to file nomination papers with CEC §8040, acted in bad faith to falsify the California Election Record and circumvent requirements of NVRA and HAVA requiring State to State notification of change.

22. Defendant Dunn violated NVRA and HAVA with the filings shown as Exhibit A and Exhibit B thereby injuring Plaintiff along with those similarly situated

23. Moreover, Defendant Dunn committed voter fraud according to statutes CEC §18203 and §18500 by intentionally not entenng in his voter registration card information about the fact that he registered somewhere before and that he registered as a Democrat, maliciously failed to provide at Section 16 of the form shown as Exhibit A that he was previously registered in Florida, and thereby concealed evidence of a cnme Defendant Dunn intended to commit to become California SOS

24 PlaintiffisasupporterandcontnbutortothecandidacyofDr.OriyTaitz,DDS J D Esq., who is a duly declared candidate on the ballot at the California Republican Party Primary scheduled for June 8, 2010 for the nomination by the California Republican Party as the Republican Candidate for the California Secretary of State at the November 2010 General Election; and that Dr. Taitz’s only opponent is Defendant Dunn at the Republican Nomination at the Pnmary other than write-in candidates, and were Defendant Dunn removed from the Pnmary Ballot as demanded herein, Dr Taitz would be the Republican candidate for California SOS on the General Election Ballot of November 2010.

25. Defendant Dunn poaching as a Democrat has infringed Plaintiff’s First amendment nghts to protected speech and association along with those similariy situated as an enrolled affiliated member of the California Republican Party with CEC 8001(a) 2.

26. Defendant Dunn and the State of California Secretary of State Defendant Bowen whose state action has infringed Republican Party Affiliation nghts and success at the elections have infnnged Plaintiff’s right to a reasonable expectation of participation and success with like-minded Party members at the Elections.

27. Because of the violation of Law by Defendant Dunn, Plaintiff is damaged financially and will suffer irreparable harm were Defendant Dunn allowed by Defendant Bowen and or the SOS agents to remain on the pnmary ballot and that time is off the essence in order to prevent irreparable harm in the primary on June 8, 2010.

SECOND CAUSE OF ACTION

Defendant Bowen and Defendant Dunn Maliciously Violated CEC § 8001(a) 2 NVRA / HAVA and related law

28. Plaintiff realleges each and every allegation contained in the above paragraphs 1
through 27 with the same force and effect as though herein set forth at length omits it for
brevity 29 Plaintiff alleges that Defendants’ actions constitute a violation of California Civil

Code § 8001 (a)2 NVRA HAVA and related law in that Defendant Bowen and Defendant Dunn (Defendants) act together after November 5, 2009 at all times mentioned herein with explicit knowledge of the law act with malice in regards to the Declaration of Candidacy of Orly Taitz.

30. That Based upon information and belief:
a.
b.
c.
d.
Dr. Taitz called the office of the Secretary of State at the Elections Division, whose Chief is Cathy Mitchells, and talked to an investigator by the name of Dariene, who did not disclose her last name. That Dr. Taitz asked Dariene, why Damon Dunn was not removed from the ballot in light of the fact that Dunn was not eligible under CEC § 8001 (a) 2 and therefore, did not qualify to be on the Republican Party Primary Ballot on Junes, 2010; and Further, Dr. Taitz asked Dariene what penalties will be assessed in regards to Mr. Dunn’s voter fraud, in relation to the fact that he did not disclose his pnor voter registration as a Democrat on the March 13 2009 registration form shown as Exhibit A Dariene stated to Dr. Taitz that she will relate this to her supenor and one of two attorneys working in the department, and said, “Someone will call back”. To date Dr. Taitz has not received a response as promised and
which has precipitated this complaint as time is of the essence with irreparable harm were Mr. Dunn to remain on the ballot; To date no follow-up by the Chief of Elections has happened.
e.

31. That as a pattern, Dr. Taitz told Plaintiff that when Dr. Taitz reported Barack Hussein Obama ineligible a year and a half ago Defendant Bowen and or agents were supposed to call Dr. Taitz back and schedule an administrative hearing was never done.

32. That on November 17, 2009, progressive community organizer Damon Dunn candidate for the Republican nomination for California Secretary of State was interviewed by Bryan Suits at 7:30 PM on KFI AM 640 (httD://itunes aDDle.com/us/DOdcast/kfi-am-640-brvan-suits/id272690196), during the interview stated he: “Cast first vote May 2009″ is a “rags to riches democrat story..” “Family vote as democrat.” “November 2008 Prop 8 …The Sentinel Newspaper an African America newspaper… community service in my entire life…Make a Wish Foundation…the Latino Education Attainment Initiative…” and as for his own family in Texas when asked “why are they still living in the trailer?” said “teach them to fish…” at Stanford his Mentor “is Condoleezza Rice at Stanford University” and when asked as to his ability to win he said “Barack Obama got record numbers of people to vote for him….people follow people not parties…”

33. That on January 11, 2010 Defendant Dunn was interviewed (see Exhibit E) by Mark DeVaughn a contributing writer at the Bootleg on Scout.com with FoxSports.com outlet who reported that Mr. Dunn as saying:
first
“Football is the common denominator,” he said. “It helps in the connection
process you have with other people.” A recent Los Angeles Times article about him noted a play that came at the expense of those whose vote he’s courting. Conventional wisdom says that USC alumni and fans – heads expanded with success over the past decade – have forgiven Dunn for his 93-yard kickoff return for a touchdown during Stanford’s 24-20 victory in 1996.
On non-football topics, Dunn speaks in excited and vibrant tones. Diverse political heroes include Martin Luther King. Barack Obama and Governor Pete Wilson. He remains a political novice, having never run for office previously. He registered to vote as a Democrat a decade ago but never actually went to the polls until May of 2009. Like a lost soul finding religion, Dunn found the proper path to affecting meaningful change, encouraged by a lasting relationship with former U.S. Secretary of State Condi Rice, whom he met while a student at Stanford, when Rice served as the University’s Provost. Now Dunn feels he “gets” It. No more standing on the sidelines and failing to get involved in the process. As he told the Los Angeles Times, “Who better to reach a non-voter than a recovering non-voter?” (Emphasis added by Plaintiff)

34. On or about March 16. 2010, the authorized Campaign for Defendant Debra Bowen sent a campaign contribution solicitation throughout the State attacking Dr. Taitz as a fringe member of the California Republican Party (see Exhibit F) and therein defers to the “wealthy developer” Defendant Dunn as if a mainstream “right-wing” Republican Party candidate on the primary ballot and after Defendant Bowen was notified Mr. Dunn like Barack Hussein Obama is also ineligible to run for office in the solicitation states.
As you know, wealthy developer Damon Dunn, who says he got into the race at Kari Rove’s urging, is also running for the Republican nomination Whoever prevails in the pnmary MUST be taken senously because of their ability to raise money and distort the issues through their national nght-wing networks.
Please contribute today to help Debra stand against rightwing ideologues like Oriy Taitz, and continue serving the people of Califomia!

Oriy Taitz’ candidacy would be amusing if it weren’t so serious. Her primary reason for running is to challenge President Obama’s citizenship and invalidate the 2008 election. In fact Taitz has sued Debra twice to try to invalidate Obama’s victory

We can’t let fringe conspiracy theorists use this office to get a foot in the door and undermine our democracy.
Debra’s opponents are well connected, and have the ability to raise large sums of money from across the country. We must make sure she has the resources to beat them.
Please contribute today to help Debra stand against right-wing ideologues like Oriy Taitz, and continue serving the people of Califomia!
We can’t underestimate the importance ofthis race. The Secretary of State is the one person in state government who is responsible for the integnty of our elections As we saw in Flonda in 2000 and in Ohio four years later, we need public servants we trust in this position, not people with a political agenda
Debra has long served the people of California with integrity. We need her in the Secretary of State’s office, not a conspiracy theonst like Orly Taitz.

35. However, contrary to the authonzed Bowen Campaign Statement shown as Exhibit F as to Defendant Dunn that was released on or about March 16, 2010 and that coincided with the release of the Fnday March 5, 2010 Democrat love-fest interview of Defendant Dunn and Defendant Bowen on the Califomia Focus Syndicated Column, a twice-weekly syndicated newspaper column on California public affairs, by Thomas D. Elias in his article “>4 Down-The-TicketRace With Two Likely Winner^ (see Exhibit G) reported Defendant Damon Dunn saying of Defendant Debra Bowen that.
“She gets credit for restoring some integrity to the process,” Dunn said in an interview, referring to Bowen’s review of electronic voting machines and the resulting return to large-scale use of paper ballots. In fact, she gets so much credit that as of early March, Dunn was the only declared Republican candidate running against her. There was still a possibility that another might jump in- Oriy Taitz, another Orange County figure who is a leader of the “birther” movement that questions whether President Obama is eligible for his job.
But Dunn, the only Republican now campaigning, enthusiastically and unequivocally says he will win this fall and become California’s first African- Amencan statewide officeholder since Mervyn Dymally was lieutenant governor in the late 1970s
And further in the article, Mr. Elias continues to report the rebuttal of Defendant Bowen from his interview with her saying that:
“One thing Bowen doesn’t buy is the notion that Dunn’s candidacy is the product of a plot devised by Republican strategist Kari Rove, long the chief political adviser to former President George W. Bush, for the GOP to take control of the national election process at the state level
Bowen scoffs at the idea of a Rovian plot. “I’m not much for conspiracy theories,” she said. “Besides, I don’t think Kari Rove would exactly be an asset in California.”

36. On December 9, 2008, Plaintiff had complained to Defendant Bowen of the ineligibility of Barack Hussein Obama to be on the ballot in California see Exhibit H.

37. Defendant Bowen has no opponents in the Democratic Pnmary June 8, 2010.

38. Defendant Bowen chose to take sides and interfere into the internal campaign of the two candidates for the Republican Party nomination Defendant Dunn and Orly Taitz.

39 Arguendo, Defendant Bowen is at best a Progressive Social Democrat on the European model of social democracy, that was devised in the twentieth century by the Catholic scholar Jacques Maritain whose work for the Roman Catholic Church formed the socialist labor unions within a mixed feudal class system, in which governance is done without the consent of the collective social classes that are divided into an imaginary left and right wing, as a form of consumer/producer dialectical materialism; and whose European social fascist form of government controls a public dominated economic collective that diminishes private enterprise and is juxtaposed to the American model of a representative republic of limited government control over the private economy that with the U.S. Constitution and founding documents officials only serve by the consent of the sovereign individual(s) within. That there are no collective nghts or class structure per se in the United States of America, despite the Euro-socialist tendency to create such; and in the USA the true dynamic between individuals is based upon either greater government interference versus less government interference in private economy that guarantees equal provision of justice for an individual without any collective per se – e.g. individual rights versus a collective left behind in feudal Europe

40. On Apnl 2, 2010, Plaintiff complained to Defendant Brown of Defendant Bowen who had responded on March 23, 2010 to the complaint shown as Exhibit H in the matter of the ineligibility of Barack Hussein Obama specifically a to the forensic proof of the fraud proven done by Mr. Obama and or his agents for the declaration with CEC §8001 (a) 2 for ballot access to the November 2008 General Election (see Exhibit IV

41. Defendant Bowen acts under color of CEC §8800 without fulfilling the ministerial duty to investigate the fraud or filing a Judicial action to remove Defendant Dunn.

42. Defendant Brown has not responded to the filing shown as Exhibit I.

43. That Defendant Brown is hereby also served with the charge against Defendant Dunn and Defendant Bowen in the matter of the November 13, 2009 filing of the Declaration shown as Exhibit B and Exhibit A as a violation of the NVRA and HAVA.

44. That Plaintiff on May 3, 2010 faxed a complaint letter with attachments to the California Board of Election Chief and followed up with a trip to the Office to wit nothing has been received to date and thereby requires expedited handling by the Court herein; see a copy of Plaintiffs cover letter with fax confirmation herewith marked see Exhibit J.

45. That according to the CAL. ELEC. CODE § 12: California Code – Section 12.

Whenever any candidate files a declaration of candidacy, nomination paper, or any other paper evidencing an intention to be a candidate for any public office at any election in this state with either the Secretary of State or a county elections official, the candidate shall bv the filing irrevocably appoint the Secretary of State or the county elections official with whom the filing is made, and their successors in office, the candidate’s attorneys upon whom all process in any action or proceeding against him or her concerning his or her candidacy or the election laws may be served with the same effect as if the candidate had been lawfully served with process. The appointment shall continue until the day of the election.

If in any action or proceeding arisinq out of or in connection with anv matters concerninq his or her candidacy or the election laws it is shown by affidavit to the satisfaction ofa court oriudge that personal service ofprocess against the candidate cannot be made with the exercise of due diligence, the court oriudge may make an order that the service be made upon the candidate by delivering by hand to the Secretary of State or the countv elections official appointed as the candidate’s attorney for service ofprocess, or to any person employed in his or her office in the capacity of assistant or deputy, one copy of the process for the defendant to be served, together with a copy of the order authonzing the service Service in this manner consfitutes personal service upon the candidate. The Secretary of State and the county elecfions officials of all counfies shall keep a record of all process served upon them under this secfion, and shall record therein the fime of service and their action with reference thereto.
Upon the receipt ofservice ofprocess the Secretary of State or the county elections official shall immediately give notice ofthe service ofthe process to the candidate bv fonA/arding the copv ofthe process to the candidate at the address shown on his or her declaration, nomination paper affidavit or other evidence of intention to be a candidate filed with that officer bv special delivery registered mail with reguest for return receipt (Emphasis added by Plaintiff)

46. That according to CAL. ELEC. CODE § 17: California Code – Secfion 17.

The Secretary of State shall establish and maintain administrative complaint procedures, pursuant to the requirements of the Help America Vote Act of 2002 (42 U.S.C. Sec. 15512), in order to remedy grievances in the administrafion of elections. The Secretary of State may not require that the administrative remedies provided in the complaint procedures established pursuant to this secfion be exhausted in order to pursue any other remedies provided by state or federal law.

47. That according to CAL. ELEC. CODE § 18203: California Code – Secfion 18203. Any person who files or submits for filing a nomination paper or declaration of candidacy knowing that it or any part of it has been made falsely is punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in the state prison for 16 months or two or three years or by both the fine and impnsonment

48. That both Defendants along with those yet named maliciously filed the Declarafion of candidacy shown as Exhibit B.

49. That accordingly to CAL. ELEC. CODE § 18500. California Code – Secfion 18500. Any person who commits fraud or attempts to commit fraud, and any person who aids or abets fraud or attempts to aid or abet fraud, in connecfion with any vote cast, to be cast, or attempted to be cast, is guilty of a felony, punishable by imprisonment for 16 months or two or three years.

50 That Defendants maliciously concealed and entered false statements into the public record with intention of fraudulentiy obtaining votes

51. That accordingly to CAL. ELEC. CODE § 18501: California Code – Section 18501. Any public official who knowingly violates any of the provisions of this chapter, and thereby aids in any way the illegal casting or attempting to cast a vote, or who connives to nullify any of the provisions of this chapter in order that fraud may beperpetrated, shall forever be disqualified from holding office in this state and upon conviction shall be sentenced to a state pnson for 16 months or two or three years

52 That Defendant Bowen along with those public officials yet named have maliciously breached the fiduciary duty to aid and abet the violation of law to further conceal and enter false statements into the public record with intention of fraudulently obtaining votes otherwise act individually by ultra vires.

53. That based upon the foregoing series of complaints and lack of response by Defendant Bowen she has not only a conflict of interest in this matter but fails to adhere to her fiduciary duty.

54. Irreparable harm to Plaintiff along with those similariy situated includes, (i) the denial of Republican Party voters an accurate ballot and representation according to the law; (ll) the denial of an honest trustiworthy SOS on the ballot for the General Voters at the Election were Mr. Dunn somehow to defeat SOS Candidate Oriy Taitz at the Republican Primary; and (iii) cause the need for launching a petition effort for independent candidate ballot access were Dr. Taitz, who is the only qualified declared candidate for the Republican candidacy for the SOS.

THIRD CAUSE OF ACTION Defendant Bowen Breach of Fiduciary Duty

55. Plaintiff realleges each and every allegafion contained in the above paragraphs 1 through 54 with the same force and effect as though herein set forth at length omits it for brevity.

56. Plaintiff alleges that Defendant Bowen’s acfions constitute a violation of California Civil Code § 18501 in that Defendant Bowen acted with a conflict of interest after November 13, 2009 at all times menfioned herein under color of law with explicit knowledge of the law with malice when after it was shown that the Defendant Dunn’s Voter registration form shown as Exhibit A was incomplete as to his prior registration address in Florida which effected the Declaration of Candidacy filed on or about November 13, 2009 shown as Exhibit B.

FOURTH CAUSE OF ACTION Defendant Brown Breach of Fiduciary Duty

57. Plaintiff realleges each and every allegafion contained in the above paragraphs 1 through 56 with the same force and effect as though herein set forth at length omits it for brevity

58 Plaintiff alleges that Defendant Brown’s inacfion constitutes a violation of California Civil Code § 18501 in effect is adding and abetting Defendant Bowen when she acted with a conflict of interest after November 13, 2009 at all times mentioned herein with explicit knowledge of the law with malice when after it was shown that the Defendant Dunn’s Voter registration form shown as Exhibit A was incomplete as to his prior registrafion address in Florida which effected the Declaration of Candidacy filed on or about November 13, 2009 shown as Exhibit B.

FIFTH CAUSE OF ACTION ALL Defendants Unjust Enrichment

59. Plaintiff realleges each and every allegafion contained in the above paragraphs 1 through 58 with the same force and effect as though herein set forth at length omits it for brevity.

60. Plaintiff alleges that ALL Defendants’ actions constitute a common law violation of equity by concealment, bad faith dealing, conflict of interest, entenng false or misleading statements into the public records for the purpose of unjust enrichment to the detnment of Plaintiff in the amount of $x.xx , and along with those similariy situated in the amount of $x.xx.

WHEREFORE, plaintiff prays for a judgment against defendants as follows:

1. For an order of SOS to remove Defendant Dunn from the Republican Primary Ballot as Mr. Dunn has not met the statutory requirement with CEC §8001 (a)2, NVRA and HAVA, and for consequenfial damages according to proof at trial by jury and that this matter be referred for cnminal prosecution,

2. For an order to investigate forensic evidence of document fraud.

3. For an order barring Defendant Debra Bowen from the General Elecfion ballot in that she is in violafion of CEC §18501 NVRA / HAVA; and for consequenfial damages according to proof at trial by jury and that the matter be referred for criminal prosecution,

4. For an order barring Defendant Jerry Brown from the General Elecfion ballot in that he is in violafion of CEC §18501 NVRA and HAVA; and for consequential damages according to proof at trial by jury and that the matter be referred for criminal prosecution;

5. For punitive damages for fraud, oppression, and malice;

6.  For costs and attorney fees of suit herein incurred according to statute; a’n'd’,

7. For such other and further relief as the court may deem just and proper

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Polly J. Price, NATURAL LAW AND BIRTHRIGHT CITIZENSHIP IN CALVIN’S CASE (1608), 9 Yale J.L. & Human. 73 (1997)

Yale Journal of Law and the Humanities
Winter 1997

Copyright © 1997 Yale Journal of Law and the Humanities, Inc.; Polly J. Price

I. Introduction

Great empires and humble nations alike have made similar choices in determining who will be citizens. The world’s nations emphasize one or the other of only two methods for determining citizenship at birth. Most nations assign citizenship at birth according to the citizenship of at least one of the parents. A few nations, including the United States, assign citizenship on the circumstance of place of birth–within the territorial boundaries of the nation–regardless of the citizenship of the parents. While the United States also permits the children of its citizens born abroad to be considered U.S. citizens from birth, the predominant mode of birthright citizenship in this country, and the only one grounded in the Constitution, [FN1] is that which bestows citizenship upon anyone born on United States soil.

The roots of United States conceptions of birthright citizenship lie deep in England’s medieval past. This Article explores Calvin’s Case (1608) [FN2] and the early modern common-law mind that first articulated a theoretical basis for territorial birthright citizenship. Involving all the important English judges of the day, Calvin’s Case addressed the question of whether persons born in Scotland, following the descent of the English crown to the Scottish King James VI in 1603, would be considered “subjects” in England. Calvin’s Case determined that all *74 persons born within any territory held by the King of England were to enjoy the benefits of English law as subjects of the King. A person born within the King’s dominion owed allegiance to the sovereign and in turn was entitled to the King’s protection. [FN3] Calvin’s Case is the earliest, most influential theoretical articulation by an English court of what came to be the common-law rule that a person’s status was vested at birth, and based upon place of birth. In the view of Sir Edward Coke, one of the judges deciding Calvin’s Case, the court’s determination was required by the divine law of nature, which was “indeed . . . the eternal law of the Creator” [FN4] and “part of the law of England.” [FN5]

Coke’s report of Calvin’s Case was one of the most important English common- law decisions adopted by courts in the early history of the United States. Rules of citizenship derived from Calvin’s Case became the basis of the American common-law rule of birthright citizenship, [FN6] a rule that was later embodied in the Fourteenth Amendment of the U.S. Constitution and which is now the subject of heated political and legal debate. Remarkably, the rule of birthright citizenship derived from Calvin’s Case remained a status conferred by the common law, as opposed to statutory or constitutional law, for centuries. Until 1898 in the United States, and as late as 1949 in Britain, there were still some cases in which the determination of nationality depended upon the common-law rule of birth within a territory. [FN7]

Only two years prior to Calvin’s Case, the English King granted to the colonists of Virginia a charter that guaranteed them the “rights” of Englishmen: The colonists were to “have and enjoy all Liberties, Franchises, and Immunities . . . to all Intents and Purposes, as if they had been abiding and born, within this our Realm of England.” [FN8] In *75 Calvin’s Case, by contrast, judges resolved the question of whether persons in Scotland were by birth “subjects” of the English King by turning to the common law rather than to charters or other royal proclamations. Today, the determination of national status in most parts of the world, as for the Virginia colonists in 1606, is a matter of positive law–either statutory or constitutional. But Calvin’s Case began a three-century period in which the rule determining citizenship in the English-speaking world, a rule based on place of birth, was self-consciously the product of judicial decisions.

This Article is the first study to set the decision in Calvin’s Case within the broader context of continental legal and political thought and to provide a sustained discussion of the natural law origins of birthright citizenship in the common law. In particular, this Article highlights the role of natural law in the decision in Calvin’s Case, a role that had far-reaching effects on the development of birthright citizenship in the United States. James I’s plans to unite Scotland and England, following his inheritance of the crown of England in 1603, sparked a wide-ranging search for a legal solution to the question of which persons were entitled to the rights and entitlements of English law. Lawyers, in both the civil- and common-law traditions, contributed to the substantial literature on uniting the laws of the two kingdoms. The political debate preceding Calvin’s Case searched for examples of how other legal systems resolved the question of the relationship of subjects within kingdoms united by descent.

This Article will also consider the political writings of Thomas Craig and Jean Bodin to show that legal thinkers outside of England provided solutions similar to that attained in Calvin’s Case. For Craig, the basis for determining status at birth was the jus feudale–Craig arrived at this rule without reference to the English precedent that Coke discussed in Calvin’s Case. [FN9] Coke, on the other hand, relied not on a general jus feudale pre- dating or underlying English common law but on natural law. Nonetheless, their conclusions were the same: James’s Scottish subjects born in Scotland after, but not before, he ascended to the throne of England were to be considered subjects in England as well.

Bodin’s theories of sovereignty [FN10] suggest that he would probably have shared Coke’s view of the status of James’s Scottish subjects in *76 England. For both Bodin and Coke, natural law or unwritten, fundamental law–law that was beyond the reach of the customary or municipal law– determined who was a subject. Because the law of nature was, by definition, the same in Scotland and in England, differences in the municipal laws of the two countries were irrelevant. In addition, Bodin’s Republique, like Calvin’s Case, emphasizes a mutuality of obligation between the sovereign and the subject.

As suggested below, Craig’s De Unione and Bodin’s Republique indicate that in 1608 political theorists and lawyers trained in both the civil and common law could arrive at similar resolutions of the problem in Calvin’s Case without citing a single civil- or common-law rule. Indeed, a unifying factor in Bodin’s Republique, Craig’s De Unione, and Coke’s report of Calvin’s Case is that the duty of allegiance that made one a subject, and that would unite all of the King’s subjects regardless of the existence of diverse laws within separate kingdoms, was emphatically not a creation of positive law. Although these works are from three different kingdoms and claim three different sources of law, they share an underlying similarity of political thought. This similarity leads one to pause when considering Coke’s claim that the justices in Calvin’s Case consulted “no strange histories, cited no foreign laws, [and] produced no alien precedents” in reaching their decision. [FN11] To accept this claim at face value is to miss a critical confluence of ideas between legal thinkers of civil- and 00common-law backgrounds that would, in subsequent centuries, further the establishment of the unique English rule of territorial birthright citizenship. [FN12]

*77 The Jus Soli and the Jus Sanguinis

Before examining the issues in Calvin’s Case, it is useful to have some understanding of current methods for assigning citizenship or nationality at birth. The territorial rule derived from Calvin’s Case rendered the status of British colonists different from that of colonists of other European countries. Calvin’s Case led to what is today known in international law as the jus soli, the rule under which nationality is acquired by the mere fact of birth within the territory of a state. [FN13] The other great rule for assigning nationality at birth, the jus sanguinis, is identified with the civil law. It holds that, regardless of the place of birth, nationality is acquired by descent following the status of at least one parent (usually the father). [FN14] The United States, Great Britain, and many Latin American countries traditionally have favored the jus soli over the jus sanguinis as a rule for acquisition of citizenship by birth. [FN15] By contrast, the jus sanguinis has been the favored rule in almost all European nations. [FN16]

No nation relies exclusively on one of these principles to determine who is a natural-born subject or citizen. [FN17] In Britain, even before Calvin’s Case, various acts and proclamations provided that a child born out of the territory of England could also be a natural-born subject, as long as the child’s parents owed allegiance to the sovereign of England. [FN18] This is an example of the jus sanguinis operating alongside the jus soli. In the history of both Britain and the United States, the jus sanguinis has always been established by statute, never *78 by judge-made law. [FN19] This fact underscores the uniqueness of the jus soli as a feature or creation of the common law and suggests the importance of Calvin’s Case in the development of the rule.

Both the jus soli and the jus sanguinis are in the first instance products of medieval law. However, the rule we refer to today as the jus soli is emphasized in this Article because of its emergence as a common-law “rule” and its unique influence in common-law countries. [FN20] Calvin’s Case, as this Article will relate, was shaped by the prevalent political theories of the time, including the belief in the authority of divine law. In subsequent centuries, this common-law rule of the jus soli itself changed in response to changing political exigencies.

Given the present controversy in the United States over the status and rights of both legal and illegal immigrants, this work of legal history may have some contemporary relevance. A proposed constitutional amendment to abolish birthright citizenship for the children of illegal aliens is currently before Congress. Its advocates claim that amendment is necessary to eliminate incentives for illegal immigration. [FN21] The constitutional amendment would deny the children of illegal aliens automatic U.S. citizenship by virtue of birth within one of the fifty states. Instead, it would permit citizenship status only for children who have at least one parent who is a citizen or legal resident of the United States. Children of illegal aliens would retain *79 the citizenship of their parents. [FN22] Testimony concerning the proposed constitutional amendment before the House Judiciary Committee pitted law professors from Yale and Columbia in a debate over the historical origins and meaning of the citizenship clause of the Fourteenth Amendment. [FN23] Although the proposed amendment did not reach a floor vote during that legislative session, in late 1996 the Republican Party established in its platform the goal of eliminating birthright citizenship for children of illegal aliens. [FN24] A national commentator likened the Republican move as a return to the era of Dred Scott. [FN25]

In Calvin’s Case, there are perhaps larger stories to be told, such as the development of ideas of nationhood [FN26] and the impending constitutional crises between the English King and the Commons later in the seventeenth century. These larger stories are themselves related to concepts of allegiance and the role of natural law in determining the obligations of subject and sovereign. [FN27] This Article focuses more narrowly upon the rule of status acquisition articulated in Calvin’s Case because the significance of natural law in the articulation of this rule has not been emphasized in the history of birthright citizenship. In addition, this examination furthers our understanding of the development of common-law rules from a wider, comparative perspective. While it may also help us to understand better the *80 surprisingly dominant role of courts in fashioning the United States rule of birthright citizenship, this Article will focus upon the earliest stages of that development for the range of ideas and societal influences within which the rule developed.

II. Subjects and Aliens in England Prior to 1608

A. Robert Calvin’s Legal Problem

With the end of the Tudor dynasty following the death of Elizabeth in 1603, James VI of Scotland inherited the throne of England as James I, thereby uniting the two kingdoms in the “union of the crowns.” [FN28] At once there was considerable debate concerning the extent of union effected by the succession of the Scottish King to the crown of England. [FN29] James, however, considered a regal union alone to be insufficient. [FN30] Upon his arrival in England, James advocated a closer unity between the laws, institutions, economies, and churches of England and Scotland to protect and strengthen the Stuart dynasty. [FN31]

In the early years of his reign, James himself led a sizable literary effort advocating a closer union. [FN32] Of particular importance were the discussions of naturalization contained in proposals to unite the laws of the two countries, written by both common lawyers and civil lawyers. [FN33] Civil lawyers, also known as “civilians,” were a relatively *81 small group of professionals who studied Roman law–the Corpus Juris Civilis as systematized and interpreted in the twelfth and succeeding centuries by scholars, notably the glossators and, later, the post-glossators or commentators. [FN34] Civilians had earned the degree of Doctor of Civil Law at Oxford, Doctor of Laws at Cambridge, or an equivalent degree at a continental university, and their professional practice as lawyers was primarily in the ecclesiastical courts, the High Court of Admiralty, and the High Court of Chivalry. [FN35] Civil lawyers in the early seventeenth century in England were closely identified with crown interests because they relied on royal patronage for their professional livelihood. [FN36]

The most pressing question of political debate soon became the legal status of James’s Scottish subjects in England. According to English law, were Scots aliens or were they subjects, capable of possessing and asserting at least some of the rights of English subjects, including holding land and suing in English courts? These political issues were fully debated in Parliament beginning in 1604, but the matter was not settled there. [FN37] Instead, the King’s men “determined to settle the point out of Parliament in the regular way, by resorting to the English courts of justice.” [FN38]

In 1607, two civil suits were initiated in the King’s Bench and Chancery over two estates in England conveyed to a Scottish child, named as Robert “Calvin” in the pleadings, though evidence indicates the child’s true name was Robert “Colville.” [FN39] Robert was born in Scotland after 1603, the year in which the English throne descended to James. Robert’s guardians, John and William Parkinson, initiated the suits, claiming that Robert had been forcibly dispossessed of both estates. The defendants in the King’s Bench were Nicholas and Robert Smith. Robert Calvin complained that the defendants *82 “unjustly, and without judgment, have disseised him of his freehold in Haggard” (Haggerston, parish of St. Leonard in Shoreditch). [FN40] One “Bingley” was the defendant in the Chancery case on a similar writ concerning an estate in Bishopsgate, St. Buttolph’s. [FN41] The defendants in both cases responded with a plea “in disability of Robert Calvin’s person” that the writs were inadmissible because Calvin was an alien. [FN42] Calvin was an alien, they argued, because he had been born “within [James's] kingdom of Scotland, and out of the allegiance of the said lord the King of his kingdom of England.” [FN43] If Calvin were an alien, he would, according to English law, be unable to be seised of a freehold in England. [FN44] The defendants’ plea thus made the status of persons born in Scotland after the accession of James I to the throne of England the paramount legal issue.

The two cases were adjourned to the Exchequer Chamber to be heard by all the King’s Bench and Common Pleas justices as well as the Lord Chancellor and barons of the Exchequer. In June 1608, fourteen justices assembled for arguments in the case. Coke reports that “the five judges of the King’s Bench, who adjourned this case into the Exchequer Chamber, rather adjourned it for weight than difficulty.” [FN45] Serjeants Laurence Hyde and Richard Hutton represented the defendants. [FN46] James’s own Solicitor General, Francis Bacon, along with Attorney General Henry Hobart, argued the plaintiff’s position on behalf of the crown. [FN47] All but two of the justices determined that persons born in Scotland after the accession of James to the throne of England (the postnati, as they were referred to in the case) were to be regarded not as aliens in England but as natural-born subjects, qualified to inherit English land. [FN48] The postnati as subjects born into the allegiance of James after he became King of England owed their allegiance to the sovereign of England as well as Scotland. [FN49] By constrast, the antenati, those born before 1603, were *83 born into the allegiance of a King with no relation to the English throne. Therefore, unless the antenati were naturalized by statute, these Scottish subjects of James remained aliens as a matter of English law. [FN50]

Several accounts of Calvin’s Case were published, [FN51] but by far the most influential was that of Sir Edward Coke, Chief Justice of the Common Pleas. Coke’s published reports were widely accessible to lawyers of later ages, and Coke’s report of Calvin’s Case was the first comprehensive statement in England of the law of naturalization. Calvin’s Case established a territorial rule for acquisition of subject status at birth:

Every one born within the dominions of the King of England, whether here or in his colonies or dependencies, being under the protection of–therefore, according to our common law, owes allegiance to–the King and is subject to all the duties and entitled to enjoy all the rights and liberties of an Englishman. [FN52]

Birth within the King’s territory was not, however, the sole method for acquiring subject status at birth. A rule derived from the statute De Natis Ultra Mare of 1351 permitted children born abroad of English parents to be considered natural-born subjects. [FN53] But the rule that presumed anyone born within the territory of the King to be a natural-born subject of the King remained a part of English law until 1981. [FN54]

For Coke, as this Article will show, the decision turned on the allegiance owed by those born in the King’s territories to their sovereign’s “natural body,” [FN55] as opposed to his body politic. Coke equated a subject’s relationship to a King with other personal *84 relationships, such as master-servant and parent-child. [FN56] The most important constitutional aspect of the case is its support for the idea that a King ruled by the law of nature, thereby requiring “natural” allegiance of all subjects wherever they may be located. The case emphasized the allegiance due to a sovereign solely by virtue of the circumstances of birth; the inquiry was never concerned with conscious choice of allegiance or membership in a corporate body. The postnati, therefore, owed allegiance to a King who happened also to be King of England, by virtue of their birth in Scotland after the English crown descended to James. In effect, by determining that the Scottish postnati were subjects in England, the decision established that a merger of England and Scotland had taken place to some degree at a political level, as well as through medieval dynastic law. [FN57]

Those historians who have considered the legal precedents for Coke’s opinion in the case generally maintain that the outcome was inevitable. [FN58] Indeed, most lawyers of the day agreed that the postnati, at least, were de jure subjects at the time of James’s proclamation of union–well before Calvin’s Case was brought before the English justices. English lawyers had consistently held for some time that birth within the kingdom, including territories held by an English King, qualified one as a natural-born subject. [FN59] Even lawyers for the defendants in Calvin’s Case admitted that the status of “subject” or “alien” was determined by whether a person was born owing allegiance to the King, as indicated by the Latin phrase ad fidem Regis. [FN60]

Coke also claimed continuity of the rule announced in Calvin’s Case with English legal precedent. Coke addressed two reasons why the *85 judges in Calvin’s Case had consulted “no strange histories, cited no foreign laws, [and] produced no alien precedents” [FN61] in reaching their decision:

[T]he one, for that the laws of England are so copious in this point, as, God willing, by the report of this case shall appear; the other, lest their arguments, concerning an alien born, should become foreign, strange, and an alien to the state of the question, which, being quaestio juris concerning freehold and inheritance in England, is only to be decided by the laws of this realm. [FN62]

To view the outcome simply as inevitable, however, is to misunderstand the political situation of the time, and to underestimate the heavy hand of a rule thought to be compelled by the law of nature. If, indeed, such compelling precedent existed that the King’s advocates readily instituted the suit in order to bypass Parliament through a judicial determination of the matter, [FN63] then the length and complexity of both Coke’s and Lord Chancellor Ellesmere’s opinions are puzzling. It seems this was not a case to which precedent easily applied. Ellesmere thought the matter “to be rare . . . [and] of great import and consequence.” [FN64] Coke found “the weight and consequence of the cause, both in praesenti et perpetuis futuris temporibus justly deserved. . . . [It] was the longest and weightiest that ever was argued in any Court.” [FN65]

In fact, as considered in the following sections, the legal precedent–as that term was understood at the time–should have been enough to resolve the question in favor of the postnati with little debate. The problem the justices faced was not a lack of precedent but an unsettled theory of sovereignty under which the question of who is a subject and who is an alien had to be reconciled. The justices were called upon to determine the essence of allegiance within the theory of the King’s two bodies–a theory argued by the defendants in Calvin’s Case as well as by those in the Commons who were opposed to any closer union with Scotland. [FN66] The theory of the *86 King’s two bodies, an idea that had developed over centuries and was firmly established under the influence of Tudor common lawyers, [FN67] was a serious challenge to the received law of naturalization. This challenge was met, in turn, with ideas not drawn entirely from English common law. A closer examination of the theory of sovereignty challenging the English customary law, and Coke’s method of resolving the issue in line with the past, reveal a significant expansion of the dialogue concerning the nature of sovereignty and allegiance over the sixteenth and early seventeenth centuries. Partly as a result of the unique challenge posed by the Stuart succession, continental ideas of sovereignty and allegiance contributed to the resolution of Calvin’s Case, despite its apparent congruence with English law.

B. Terminology in 1608

Before considering the conceptual roots of Calvin’s Case, it is useful to summarize the basic categories used to describe a person’s status in early seventeenth-century England. Today, detailed categories of “nationals” and “citizens” vary from country to country. In the United States, for example, a “national of the United States” can be either a citizen of the United States or a person who, though not a citizen of the United States, owes permanent allegiance to the United States. [FN68] For purposes of this Article, however, there are only five recognized distinctions to be understood in the context of Calvin’s Case: “subject,” “alien,” “denizen,” “natural-born subject,” and “naturalized subject.”

In 1608 in England (and indeed in the law of Great Britain until the mid- twentieth century), [FN69] one was either a subject, an alien, or a denizen. Subjects, in turn, were either “natural-born” or “naturalized.” A subject owed fealty or allegiance to a monarch, and the status was derived from feudal conceptions of governance. [FN70] An alien, by contrast, was not necessarily an enemy of the monarch, but was “one born in a strange country.” [FN71] An alien could become a denizen if he were “enfranchised here in England by the Prince’s charter, and enabled . . . to do as the King’s native subjects do: namely, to purchase, and to possess lands, to be capable of any office or dignity.” [FN72] A *87 natural-born subject, as the name suggests, was a person who was born into the King’s allegiance, either by birth within England or by birth within a territory held by the king. [FN73] A naturalized subject was similar to a denizen, but the former status could be conferred only by act of Parliament, [FN74] and sometimes by virtue of being a member of a territory that had been conquered by the monarch of England, [FN75] although in 1608 the terms natural-born and naturalized appear to have been used rather imprecisely. [FN76]

Today, as a matter of international law, we are accustomed to think of national status in terms of citizenship. The words “citizenship” and “nationality” have similar meanings, although the overlap between the two terms is not complete. [FN77] As a matter of international law and human rights, the link between political rights and nationality has been described in the following terms:

It is generally accepted today that nationality is an inherent right of all human beings. Not only is nationality the basic requirement for the exercise of political rights, it also has an important bearing on the individual’s legal capacity. Thus, despite the fact that it is traditionally accepted that the conferral and regulation of nationality are matters for each State to decide, contemporary developments indicate that international law does impose certain limits on the broad powers enjoyed by the States in that area . . . . [FN78]

In England, by contrast, the proper term for a British national remains “subject.” The term “citizen” was not used in English legal discourse in 1608, and indeed in most of Europe “citizen” was not used as a legal term outside of the Byzantine empire until well into the early modern period. [FN79] “Subject,” in contrast to the “citizen” of ancient Rome, was a legal relationship originating from feudal law *88 and politics. [FN80] “Citizen” was the preferred term in the American colonies after independence, [FN81] probably derived from French uses of the term and explained in part by the need of the colonists to distinguish membership in the new United States from their previous status as subjects of the King of Britain.

In 1608, however, the status of “subject” did not carry with it a defined sense of political membership or participation. Calvin’s Case, of course, predated both the Petition of Right of 1628 [FN82] and the Bill of Rights of 1689. [FN83] In 1608, the status of subject was primarily a duty, namely, the duty of allegiance. It did provide some rights, however, including the right to hold land in the King’s dominion and to sue in the King’s courts. The language of rights attaching to a subject’s status was used in both Scottish [FN84] and continental political and legal thought of the time. [FN85]

Although not expressly using the term “rights” in Calvin’s Case, however, the judges clearly had specific legal entitlement in mind. For Coke, the legal entitlement attaching to the status of subject included “the King’s legal protection,” [FN86] the “ability to sue any action real or personal,” [FN87] “protection and government due by the law of nature,” *89 [FN88] a “union of protection of both kingdoms, equally belonging to the subjects of either of them,” [FN89] and capacity to inherit “any lands in any of the said kingdoms.” [FN90] Lord Chancellor Ellesmere, who also reported the decision of the Exchequer Chamber in Calvin’s Case (though his report was less well-known in subsequent centuries than was Coke’s report), stated that a subject “ought by reason and law to have all the freedoms, privileges, and benefits pertaining to his birth-right in all the King’s dominions.” [FN91] Though not yet precisely delineated in English legal discourse, some of the “freedoms, privileges and benefits” enjoyed by a subject included “that no man may be deprived of his possessions, nor be placed in confinement, until he have been duly summoned before and condemned by a lawful tribunal.” [FN92] When used in this Article the association of rights with the status of subject is to be understood in this limited sense.

C. Coke’s View of Precedent

To appreciate better the problem raised by Calvin’s Case, it is necessary to understand both the state of the law of subjects and aliens prior to 1608 and the judges’ probable views concerning the relationship of prior cases and statutes to the controversy in Calvin’s Case. In the late sixteenth and early seventeenth centuries, the judges of the King’s Bench and Common Pleas had begun to use the term precedent when referring to prior, privately published judicial decisions, as well as to statutes and charters. [FN93] There was as of yet no doctrine of precedent in the modern sense. Coke was perhaps the first English judge to have used the term with frequency to refer to the substantive result or rule laid down in a prior case that had some factual similarity to the case at hand. [FN94] Coke reported general principles stated by the courts but with little factual comparison and little distinction between what today is categorized as ratio decidendi (the holding) versus obiter dictum (dictum). [FN95] In Calvin’s Case, Coke *90 does not convey the sense that judges are bound by prior decisions. Rather, precedents merely gave evidence of a legal principle or rule that may or may not contribute to the resolution of a particular case.

Coke’s use of the term “precedent” in Calvin’s Case was purely to stress continuity with the past–a desire to show consistency with historical legal practices, but with no reciprocal view that historical examples (whether cases, statutes, or custom) were controlling, nor that the reasoning of any case was binding. In fact, some statutes became part of the customary law of England because jurists viewed them to be merely restatements or clarifications of the common law. Coke, in particular, frequently took the earliest statutes to be what we would view today as declaratory judgments–customary law that had been “elaborated, summarized and enforced by statute.” [FN96] On the other hand, some of Coke’s contemporaries, and perhaps Coke himself, at times took the view of Lord Chancellor Ellesmere:

Some laws, as well statute law as common law, are obsolete and worn out of use: for, all human laws are but leges temporis: and the wisdom of the judges found them to be unmeet for the time they lived in, although very good and necessary for the time wherein they were made. [FN97]

In Calvin’s Case, at least, Coke referred to “custom” more so than “precedent,” and custom is probably closer to what he meant by precedent than our present-day notion of the term. [FN98]

*91 In 1605, Sir Thomas Craig, a Scottish lawyer trained in the civil law, wrote about the working of precedent in English customary law. As in Scotland, Craig wrote, judges of English common-law courts “give the first place to the provisions of statutory or Parliament-made law, provided the subject at issue is dealt with, permitted, or prohibited in any statute. . . . [If] statute law offers nothing to instruct a judicial decision, recourse is had in England to common law.” [FN99] This “common” or “customary” law, according to Craig, was the “system of law the English kings at their coronation solemnly promise to respect as unchangeable and inviolable.” [FN100] If neither statute nor common law avail “to satisfy the judge,” [FN101] then next in order of preference come maxims, local custom, and finally “the precedents set by previous judicial decisions.” [FN102] Of these precedents, Craig wrote:

If no guidance can be obtained from custom, general axioms, or prescription, then the precedents set by previous judicial decisions in similar cases, and particularly in the Court of King’s Bench, must be followed, on which fresh cases when they arise must be decided if the circumstances are similar. Against a decision based on precedents there is no effective exception or reply other than proof that the circumstances of the two cases differ; and the smallest detail of difference frequently avails to break down the alleged similarity of fact. . . . If one party to the action can produce a case where the judgment supports his own contention, the other argues with all his might that the circumstances of the case before the court are distinguishable from those of the precedent quoted. It is left to the judge to pronounce which is right, and to state the points of resemblance or difference between the two cases. [FN103]

Craig based his conclusions on observation only, disclaiming any first-hand experience with the English courts. [FN104] Nonetheless, Craig confirms the importance of statutes in the English courts, although his view does not fully resonate with Coke’s view that statutes may *92 themselves only embody or evidence the ancient, customary law of England.

D. Precedent for the Problem of the Postnati

Returning to the legal precedent, or examples from England’s history, available to the judges in Calvin’s Case, we know that as early as the thirteenth century in a treatise by Henry de Bracton, [FN105] subject status was a corollary of allegiance. A subject’s duty of allegiance to his King was much like the feudal vassal’s duty of fealty to his lord. [FN106] Aliens, on the other hand, did not owe allegiance to the King and accordingly had few rights, although an alien could become a denizen, which meant that he had been “enfranchised here in England by the Prince’s charter, and enabled . . . to do as the King’s native subjects do: namely, to purchase, and to possess lands, to be capable of any office or dignity.” [FN107] The concept that a person who owed fealty to another King could be “an alien by birth” is clearly present. Bracton described an appropriate plea in defense of an action for land, if the plaintiff were an alien:

[I]f he be an alien by birth who is of fealty to the King of France, and he brings an action against some one who is of fealty to the King of England, no answer shall be made to such a person at least until the lands shall be common, nor even if the King has allowed him to plead, because as an Englishman is not heard, if he implead any one concerning lands and tenements in France, so ought not a native of France and a born alien who is of fealty to the King of France to be heard, if he impleads any one in England. [FN108]

Thus a subject’s duty of allegiance to the King was not a duty arising from a relationship concerning a specific piece of land, but was territorial in nature from an early period. [FN109]

Moreover, the geographical boundaries of the English King’s territories were constantly changing throughout the medieval period, and the rules determining subject status changed accordingly. During *93 the reign of Edward III, two fourteenth-century statutes established fairly clear rules concerning the acquisition of the status of “subject by birth.” One, a statute of 1368, provided that persons born in any of the King’s territories were subjects in England. [FN110] The statute was claimed to be based in judicial precedents which came from a time when the King had large continental possessions. [FN111] The 1351 statute De Natis Ultra Mare allowed children born outside of the King’s territories to inherit land as natural subjects if the parents were “of the faith and ligeance of the King of England.” [FN112] The statute De Natis established:

[T]he law of the Crown of England is, and always hath been such, that the children of the kings of England, in whatsoever parts they be born . . . be able and ought to bear the inheritance after the death of their ancestors, [and that] all children inheritors, which from henceforth shall be born without the ligeance of the king, whose fathers and mothers at the time of their birth be and shall be ad fidem Regis [of the faith and ligeance] of the King of England, shall have and enjoy the same benefits and advantages . . . as the other inheritors afore said in time to come . . . . [FN113]

By at least the fourteenth century, then, birth in England was not the exclusive avenue for acquiring the status of a natural-born subject. In Calvin’s Case, however, no statute specifically addressed the status of James’s Scottish subjects.

In the early sixteenth century, the rule was firmly developed that aliens could not inherit land in England. In fact, one of the few exceptions to the “olde custome of the realme” [FN114]–that the eldest son is the only heir to his father’s estate–was that if a younger son were a natural-born subject whose elder brother was born before the act of denization, the younger would be the heir. Thus, in Doctor and Student, Christopher St. German wrote: “Also if an alien have a son that is an alien and after is made Denizen and hath another son, and *94 after purchases lands and dies, the younger son shall inherit as heir and not the eldest.” [FN115] The status of denizen, which could be conferred by the King without act of Parliament, gave the person and his heirs the right to acquire land and sue in the English courts, but it had no retroactive operation. [FN116] Coke later agreed with the characterization of the status of a denizen described in Doctor and Student:

The difference between a naturalization and denization: by a denization, which the King may grant of himself without a Parliament, the party himself, and children born after, are made capable of all rights and privileges as freeborn Englishmen; by a naturalization those children which he had before are also included. [FN117]

Despite the fact that the civilian John Cowell’s 1607 law dictionary, The Interpreter, was condemned by James I in 1610 because it drew its arguments “from the Imperial Laws of the Roman emperors,” [FN118] there is little reason to doubt that Cowell’s definition of the English law concerning aliens was correct and widely held: An alien was “one born in a strange country,” but:

[A] man born out of the land, so it be within the limits of the King’s obedience, beyond the seas, or of English parents, out of the King’s obedience (so the parents at the time of the birth, be of the King’s allegiance) is no alien in account, but a subject to the king. [FN119]

Further evidence that this formulation was generally accepted before the time of Calvin’s Case can be drawn from the fact that both the plaintiff and the defendants cited Littleton, along with the statute De Natis, for the rule: “Alien is he which is born out of the allegiance of our lord the king.” [FN120] According to the defendants in Calvin’s Case, however, Robert Calvin was born into the allegiance not of the King of England, but of the King of Scotland. For this reason, they argued, the judges could not simply declare that under the common law the postnati were subjects of England, though they might become *95 denizens by charter, or they might become naturalized subjects by Act of Parliament.

Ireland, Wales, Normandy, and Gascony, won and lost periodically by English kings in previous centuries, provided other examples the judges could consult. Persons born in Ireland after its conquest by Henry II were considered natural-born subjects, “capable of and inheritable to lands in England.” [FN121] Although originally assimilated by conquest, thus differing from the situation of the union of the crowns, subsequent English monarchs acquired the conquered territories of Ireland through descent. Similarly, Wales, though soon assimilated as part of the kingdom of England, was for a time (before Edward I) held only as “parcel in tenure,” and persons born in Wales before Edward I were “capable and inheritable of lands in England.” [FN122]

Moreover, medieval English history provided two other examples in which persons born in territories outside of England were not considered aliens in England. Like James I, Henry II acquired Gascony, Guienne, and Anjou through “a title in blood and by descent,” and Edward III acquired the crown of France in like manner. [FN123] The praerogativa Regis of Edward II indicates that persons born in Normandy while under the reign of the English King were to be considered natural-born subjects. [FN124] A statute from the reign of Edward III indicated that “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.” [FN125]

These examples were not precisely parallel to James’s situation, of course. Henry II inherited Anjou from his father, then married Eleanor of Aquitaine (Gascony, Guienne), and after that became King of England. Further, although Edward III claimed the crown of France, he cannot be said to have “acquired” it to quite the same extent as Henry VI. Conspicuously absent in all of these precedents, though, is any allusion to or discussion of a source of the rule in divine law or the law of nature.

*96 What was the legal status of Scots in England prior to the union of the crowns? Thomas Craig, writing in 1605, described the situation in this manner:

On the strictest grounds of equity I do not hesitate to say, that for three or four centuries past we have been most unfairly treated by our neighbors, who have regarded us as foreigners, and have compelled us to be naturalized to qualify for the enjoyment of English citizenship. [T]here is [now] no English law or statute in which Scotsmen are debarred from title to or possession of property validly acquired in England. . . . Are the goods of Scotsmen who have acquired property in England by inheritance, purchase, or exchange, or have died in England testate or intestate, to be treated as the property of aliens and be swept into the Exchequer as so much treasure trove? Our wise King will never allow Scotsmen, his own kin, to be treated as foreigners in his own dominions, to be liable to heavier burdens than the English, or to be deprived of property which they have acquired by marriage or some other equitable title. [FN126]

Craig shows us, again, that disposition of property was of primary importance in the question behind the status of James’s Scottish subjects in England.

Before the English justices in the Exchequer Chamber decided Robert Calvin’s status, members of Parliament debated extensively the status of the postnati. [FN127] The King’s men proposed bills to naturalize all of James’s Scottish subjects, including the postnati, but the bills failed to gain approval in Parliament. [FN128] As a result, the English rights of Scottish subjects were settled by the judges of the realm. The parliamentary debates, the subject of the next section, are important for an understanding of Calvin’s Case because leaders of the opposition in the Commons also represented Calvin’s opponents in the suit before the justices. Thus, one would expect that this confrontation might provide clues to the formation of the defendants’ arguments in Calvin’s Case. Another important point to be gleaned from the debates concerns evidence that English lawyers and lawmakers sought a resolution to the problem of the postnati from continental legal practices.

*97 III. The Legal Theory of the King’s Two Bodies

A. The Parliamentary Debates, 1606-1607

The Commissioners of Union, [FN129] whose members included Francis Bacon, Thomas Craig, and Lord Chancellor Ellesmere, recommended two bills to the Parliament in 1606. [FN130] The first simply declared that under existing law the postnati were de jure English subjects. The second was a charter of naturalization for all Scots born before 1603, the antenati. [FN131]

Both bills were defeated, after provoking substantial hostility in the Commons. To those opposed to any closer union with the Scots, the declaration concerning the postnati must have seemed to be the first step toward James’s “perfect union,” cleverly implemented by prerogative under the guise of the common law. In particular, there was substantial opposition in both kingdoms to proposals for uniting the laws of the two countries, [FN132] and in a speech to the Commons in support of the acts Bacon had referred to a possible union of laws:

[A]ccording to true reason of estate, Naturalization is in order first and precedent to union of laws; in degree, a less matter than union of laws; and in nature, separable, not inseparable, from union of laws. For Naturalization doth but take out the marks of a foreigner, but union of laws makes them entirely as ourselves. [FN133]

Opposition to the acts was also expressed with fears that an influx of “hungry Scots” would flood England. [FN134] Nicholas Fuller, a Puritan *98 agitator and recognized leader of those opposing an extension of the privileges of English subjects to the Scots, thought that patronage opportunities within England ought to be reserved only for English subjects. [FN135] Another Parliamentarian compared England to a rich pasture threatened with a herd of famished cattle. [FN136]

Five common lawyers, two of whom, Serjeants Richard Hutton and Laurence Hyde, would continue to oppose the naturalization of the postnati as counsel for the defendants in Calvin’s Case, [FN137] led the legal attack on the proposition that the postnati were English subjects as a matter of common law. From Bacon’s and Coke’s summaries of the issues in Calvin’s Case, it appears that the legal arguments made by counsel for the defendants were substantially the same as those presented in the debate over the Naturalization Act in the Commons. [FN138] Because we do not have a complete report of the defendants’ arguments before the Exchequer Chamber, the legal debates in Parliament over the Naturalization Act are all the more important.

The legal arguments that the postnati were aliens in England were threefold. (1) Whoever is born out of the “ligeance” of King James of his kingdom of England is an alien as to the kingdom of England, applying equally to the postnati and the antenati. (2) Allegiance in each kingdom is due to the King’s body politic of that kingdom. The allegiance due by a King’s subject, therefore, is several and divided between the two kingdoms. The allegiance due by Scots to James’s Scottish body politic does not establish that Scots are subjects of the King in England. (3) A subject born out of the reach of the laws of England cannot be a natural-born subject of the King in England and take advantage of the protections or rights afforded by English law. The defendants equated birth and jurisdiction on the question of inheritance. They claimed that a subject who was not at the time and in the place of his birth inheritable to the laws of England could not be inheritable to the laws of England, even if he later owes allegiance to a King who is also King of England. [FN139]

Viewed from the parliamentary debates, the defendants in Calvin’s Case seem to have had two motives. One was a general opposition to closer union with Scotland, and the other was parliamentary fear of the legal theory of absolute monarchy prevalent in Europe at that *99 time and believed to be espoused by James I. [FN140] The legal theory of absolute monarchy posed a very real problem to the resolution of Calvin’s Case. In 1598, prior to his accession to the English throne, James wrote in The Trew Law of Free Monarchies that because kings derive their authority directly from God, not from laws enacted by a Parliament, they were not subject to positive law. [FN141] James derived many of his ideas from Bodin, who himself was widely followed by supporters of absolute monarchy in Europe in the late sixteenth and early seventeenth centuries. [FN142] Bodin and James (at least in 1598) both advocated that the absolute power of the monarch lies in the King’s right to give laws without the consent of his subjects, and thus, the king, as a matter of natural law, was the final source of positive law. [FN143] James’s English subjects may reasonably have feared that the new King viewed the union of the crowns in 1603 to make all of James’s subjects, in England and Scotland, subject to one law– his.

According to Bacon, the thrust of the defendants’ case was that the allegiance required of a subject was allegiance to the “kingdom of England,” the King’s other body, not to the person of the King. [FN144] The accepted ad fidem Regis formulation, however, clearly precluded a limitation of this type. The defendants’ challenge to the nature of a subject’s allegiance was a very complex idea involving corporate governmental capacities attributed to the King’s person. The strength of the defendants’ argument was that their resolution of the case did not require past precedent to be contradicted or ignored.

The debates in the Commons over the Naturalization Act initially challenged the applicability of the statute De Natis. Following the Commissioners’ proposals, leaders of the opposition in the Commons selected persons trained in civil law as well as common lawyers to present grounds for opposition to the Naturalization Act, with the civilians to argue “the law of nations, and of reason, and the stories of other countries, and the civil law elsewhere put in use upon unions.” [FN145] Sir Edwin Sandys considered the case “proper to be *100 consulted with the law of nations, which is called jus gentium; for there being no precedent for it in the law.” [FN146]

The civilians participating in the debates apparently did not discuss any rule of citizenship claimed to derive from the post-classical texts of Roman law that were glossed and commented upon in the West from the late eleventh through the fifteenth centuries. [FN147] Nor did any reference to ancient Roman practice appear in the arguments in Calvin’s Case, [FN148] except for a remark by Bacon that no “Roman rule” was relevant to the question at hand: The judges had to decide whether subjects “which grow unto the King by descent” were naturalized, while Roman citizenship “did never follow by conquest, during all the growth of the Roman empire; but was ever conferred by charters or donations, sometimes to cities and towns, sometimes to particular persons, and sometimes to nations, until the time of Adrian the emperor, and the law In orbe Romano.” [FN149]

It appears that all of the participants understood that a rule of acquisition of citizenship derived from the ancient law of Rome–because it was conferred on persons in new territories by “charters or donations”–was far removed from the question whether the postnati of Scotland were de jure natural-born subjects according to the customary laws of England. [FN150] Coke was familiar with canon law and Roman law as applied in various types of cases in the English ecclesiastical courts and royal prerogative courts, including the High Court of Star Chamber, the High Court of Chivalry, the High Court of Admiralty, and the Court of Requests. But he considered them to be “foreign” bodies of law in the sense that they were particular customs that had been incorporated into the common law, compared to the common law traditionally applied in the courts of Common *101 Pleas, King’s Bench, and Exchequer. [FN151] But even that law was not exclusively English common law, as evidenced by Coke’s frequent use of maxims derived from the civil law. [FN152]

The Earl of Northampton noted that the civil lawyers had suggested little precedent to resolve the status of the postnati. [FN153] Thus, the debate centered on the significance of the statute De Natis. Common lawyers opposed to the Naturalization Act argued that allegiance proceeded from the laws of England and not the person of the king, citing language in De Natis referring to the “ligeance of England,” which meant that allegiance was “tied to the kingdom, and not to the person of the king.” [FN154] James as King of Scotland received a different allegiance from his Scottish subjects than he did from his English subjects as King of England, because James in essence possessed two political bodies–”the person of the King possessing both kingdoms possesseth the people and the laws of them distinct, as the kingdoms are themselves.” [FN155] No one could be born “a subject of two allegiances,” and therefore Scots born in Scotland could not be natural subjects in England. [FN156]

In essence, these common lawyers attempted to limit allegiance to the territory of England by considering the foundation for the obligation of allegiance. Their contention was that allegiance was a function of the laws of the kingdom, a positive law notion that in some respects separated English common law from the crown. By linking allegiance to the laws of England, the common lawyers attempted to contradict the rule apparently settled since the reign of Edward III that a person did not have to be born within the territory of England to be a natural-born subject.

But their formulation fell easily before the language ad fidem Regis in the statute De Natis. The formulation ad fidem Regis meant that *102 allegiance was to the person of the King. [FN157] This, at least, was the response of ten of eleven judges consulted on the question. [FN158] Chief Justice Popham, Sir Thomas Flemming, and Coke delivered opinions to the Lords in Parliament determining that allegiance was to the person of the King and not to the laws of England. [FN159]

Following the consultation with the judges, it was surely evident to the opposition faction that the ad fidem Regis formulation excluded arguments concerning allegiance other than to the King’s person. It is not surprising that Hutton and Hyde, as counsel for the defendants in Calvin’s Case, conformed their arguments accordingly. They employed a combination of the ideas of the civilians and common lawyers presented in the parliamentary debates. The civilians may have suggested little precedent from the law of nations, as the Earl of Northampton reported, [FN160] but the civil lawyers made a unique contribution to the debate in the form of a maxim derived from the Digest of Justinian.

B. A Maxim from the Civil Law

In the parliamentary debates, a civilian consulted on the matter, Sir John Bennet, [FN161] admitted that the civil law provided no resolution to the problem of the status of the postnati, but for “other unions lesser then kingdoms,” Bennett said that the maxim “cum duo jura concurrunt in una persona aequum est ac si essent in diversis” (when two rights meet in one person, it is the same as if they were in different persons) showed that “the customs of every place remain still distinct and divided.” [FN162] In contemporary law, there are numerous examples of the principle embodied in the maxim cum duo jura–one person may simultaneously exercise several distinct legal capacities or functions. [FN163] Bennet noted that the maxim was used to *103 distinguish between two ecclesiastical entities joined under one person, “as one parson of two churches, [or] one dean of two deaneries.” [FN164] Since the customs of the two countries remained divided after the union of the crowns, Bennet seemed to argue that each entity bestowed separate rights upon its own subjects. Hence, the postnati of Scotland had no better claim to natural-born subject status in England than did the antenati.

In Calvin’s Case the defendants argued that James had two distinct capacities–his “body politic” and his natural body. Because there had been no union of the laws of Scotland and the laws of England, James’s body politic remained different for each of his kingdoms. Because allegiance was due to the King’s body politic and not his natural body, the defendants argued that the plaintiff owed allegiance to James’s Scottish body politic but not to James’s English body politic. That the two kingdoms (and their laws) remained distinct within James’s political capacities was shown by reference to the maxim Bennet discussed in the parliamentary debates, “Quando duo jura concurrunt in una persona, aequum est acessent in diversis.” [FN165] The defendants argued the maxim established that parishioners in two parishes under one bishop did not thereby become related to each other. [FN166] Ellesmere denied the distinction between James’s capacities and characterized the defendants’ case differently: “The subjects of each several kingdom are bound to him by distinct allegiance, according to the several laws of the kingdom where they were born. And all this is grounded upon this rule of fiction in Law: Quando duo jura . . . .” [FN167]

The maxim cum duo jura was critical to the defendants’ characterization of ad fidem Regis and therefore to their resistance to the legal theory of absolute monarchy. By contending that ad fidem Regis meant allegiance to the political aspect of the King’s body, the defendants’ position fit within the accepted rule of territorial birth while maintaining that this allegiance was required by the customary laws of England. [FN168] The King might very well have two capacities, as English law had recognized for several centuries, [FN169] but because the English and Scottish bodies politic remained distinct, the ad fidem *104 Regis test worked to deny subject status in England to the postnati of Scotland.

Bennet’s introduction of the maxim into the parliamentary debate on naturalization was not its first appearance in English legal discourse. The maxim was used in an ecclesiastical context a few years earlier in Acton’s Case. [FN170] There the question was whether a statute of Henry VII [FN171] forbidding a cleric from holding a plurality of benefices prohibited two chaplains of a widowed baroness from acquiring additional benefices upon her marriage to another nobleman.

In Acton’s Case the chaplains had argued that their holdings did not exceed any statutory limit because the Act did not apply to rights retained in elevation of status: “If a bishop is translated to an archbishopric, or a baron is created an earl, now he has both these dignities, and as it is commonly said, Quando duo jura concurrunt in una persona, aequum est ac si essent in diversis.” [FN172] Coke’s answer, in Acton’s Case, was that the maxim was not contrary to the Act: “[B]ut yet within this Act he can have but as many as an archbishop, or an earl may have; for although he has sundry dignities, yet he is but one and the same person to whom the attendance and service shall be done . . . .” [FN173] Therefore, the two chaplains could retain the benefices granted them by the baroness prior to her remarriage, and they could take additional benefices resulting from her marriage to another noble.

Coke subsequently considered the maxim in Calvin’s Case. [FN174] The maxim’s use in Calvin’s Case provides an example of an English court directly borrowing a maxim from the civil law and converting it to an entirely different use. The maxim appears in several late medieval collections of Brocardica iuris, collections of maxims compiled by the scholars who glossed the Corpus Juris Civilis, [FN175] and is cited there to the Digest of Justinian. [FN176] Bartolus derived the maxim in essentially *105 the form used by Bennet from a case concerning challenges to a will by a minor’s guardian when the guardian stood to gain from the will in another capacity. [FN177] Bennet, however, used the maxim in the very different context of ecclesiastical pluralities: “[A]s one Parson of two Churches, one Dean of two Deaneries; the Customes of every place remain still distinct and divided.” [FN178] The subsequent use of the maxim in English customary law, and in Calvin’s Case in particular, illustrates how “much of medieval canon law passed over–often unnoticed–into the law of the state.” [FN179]

C. The Debate Moves to the Courtroom

The arguments presented to the Exchequer Chamber in Calvin’s Case echoed the parliamentary debates of the preceding year. With the understanding that subject status acquired by birth prior to 1608 was not limited to the territorial boundaries of England, Bacon argued that Cobledike’s Case [FN180] also provided support for the proposition that the postnati of Scotland were natural subjects in England. In the reign of Edward I, Constance de N. swore out a writ against Roger de Cobledike, claiming that a freehold held by Cobledike had descended to her as rightful heir. [FN181] In defense, Cobledike argued that the plaintiff was a “French woman, and not of the ligeance, nor of the faith of England,” and demanded judgment. Cobledike’s argument *106 that the opposing party was “not of the ligeance and faith of England” was held insufficient because it “referred ligeance and faith to England, and not to the king.” [FN182] The plea was amended (and later accepted) to state that the plaintiff was “not of the ligeance of England nor of the faith of the king.” [FN183] This plea suggests that a King’s subject in another territory was not an alien in England, but that Constance did not qualify as a subject of the King. Like the statute De Natis, the allegiance was ad fidem Regis, or “to the faith of the king,” strengthening the argument that allegiance was a personal tie between the subject and the King’s natural body instead of to the kingdom of England. [FN184]

Bacon also noted the several examples from English history in which the King’s subjects in other territories were not considered aliens in England. [FN185] Bacon found evidence in the praerogativa Regis that persons born in territories subject to the King but not in England were natural-born subjects, [FN186] and, citing Bracton, claimed this status was not altered by a loss of the province due to a change in sovereignty, as consistent practice would require. [FN187]

Ellesmere agreed with Bacon’s characterization of the rule concerning aliens:

[F]or where there is but one sovereign, all his subjects born in all his Dominions be born Ad fidem Regis; and are bound to him by one bond of Faith and Allegiance: And in that, one is not greater nor lesser than another; nor one to be preferred before another: but all to be obedient alike; and to be ruled alike; yet under several laws and customs. . . . And therefore all that have been born in any of the King’s Dominions since he was King of England are capable and inheritable in all his Dominions without exceptions. [FN188]

Coke, too, had little trouble with the formulation of the rule to be applied:

*107 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 the ligeance of the king. [FN189]

Coke further noted, and Ellesmere agreed, [FN190] that Cobledike’s Case “did overrule this case of Calvin, in the very point now in question; for that the plea in this case doth not refer faith or ligeance to the King indefinitely and generally, but limiteth and restraineth faith and ligeance to the kingdom.” [FN191] Thus, according to Coke, it was not a bar to the plaintiff’s action that Scotland had a separate Parliament and laws and remained a distinct kingdom within the union of the crowns.

Despite the precedent of recognizing, albeit through statute, the subject status of persons in the French possessions of Henry II and Edward III, [FN192] and the general agreement that one was not an alien according to English law if birth were ad fidem Regis, [FN193] Coke could not easily rule in favor of the plaintiff. While not challenging the rule derived from the statute De Natis, counsel for the defendants argued that the necessary allegiance for birth ad fidem Regis was to the King’s body politic and the laws of England. They argued that the postnati could not be considered naturalized subjects with respect to the laws of England because they were not subject to the territorial reach of laws enacted by the English Parliament. It was not sufficient that the postnati of Scotland happened to owe allegiance to a King who was also England’s monarch.

Bacon argued that legal precedent, as that word was understood at the time, permitted the assembled judges of the realm simply to declare that the postnati were subjects in England. This argument posed a problem in Calvin’s Case because the English legal concept of sovereignty had changed substantially since the fourteenth century when most of the applicable law of naturalization had developed. This development in the notion of sovereignty took the form of the theory *108 of “the King’s two bodies,” a conception not entirely new to English political thought but one that had undergone substantial development at the hands of Tudor common lawyers. In essence, the theory addressed the problem of continuity necessary for perpetuating hereditary kingdoms; namely, what happened to sovereignty upon the King’s death. English jurists held that the body politic survived death and was transferred immediately to another body natural according to the laws of succession. No coronation was necessary to bestow the sovereignty of the body politic upon the new monarch. [FN194] The legal fiction of the King’s two bodies had been used in English political thought for some time, but it took on very distinctive characteristics in the late Tudor and early Stuart periods. [FN195] The theory of “the King’s two bodies” was applied for the first time to the law of subejcts and aliens in Calvin’s Case.

D. Francis Bacon’s Proposal: The Law of Nature

Bacon, as counsel for the plaintiff, disagreed with the proposition that allegiance must be either to the King’s body politic or his body natural. Bacon argued that while the King might have a body politic for some purposes– to resolve questions of the validity of a prince’s acts before ascending the throne as sovereign [FN196]–the common law of England had always held that the two were inseparable. Bacon quoted from Plowden: “There is in the King not a body natural alone, nor a body politic alone, but a body natural and politic together: Corpus corporatum in corpore naturali, et corpus naturale in corpore corporato.” [FN197] (The corporate body subsists in a natural body, and the natural body in a corporate body.) Bacon denied that the cum duo jura maxim held otherwise, and denied that the maxim was applicable to English common law:

It is a rule of the civil law, say they . . . when two rights do meet in one person, there is no confusion of them, but they remain still in the eye of law distinct, as if they were in several persons: and *109 they bring examples of it of one man bishop of two sees . . . . [B]ut [this rule] receiveth no forced or coined but a true and sound distinction or limitation, which is, that it evermore faileth and deceiveth in cases where there is any vigor or operation of the natural person. [FN198]

Bacon made no further reference to this maxim, nor did he explain on what ground it was inapplicable. Rejecting the idea that allegiance was to the King’s body politic, however, did not avoid the defendants’ additional claim that allegiance was due by the laws of England. [FN199] Allegiance might be to the King’s natural body, but if this allegiance were a function of the laws of James’s separate bodies politic, Robert Calvin would still be an alien in England.

Bacon’s answer was that allegiance was due not by the law of either England or Scotland alone but by the law of nature, itself a part of the law of England, as it was part of the laws of all nations:

Law no doubt is the great organ by which the sovereign power doth move, and may be truly compared to the sinews in a natural body . . . . But towards the King himself the law doth a double office or operation: the first is to entitle the king, or design him . . . . The second is . . . to make the ordinary power of the King more definite or regular. . . . But I demand, do these offices or operations of law evacuate or frustrate the original submission, which was natural? Or shall it be said that all allegiance is by law? No more than it can be said, that potestas patria, the power of the father over the child, is by law. And yet no doubt laws do diversely define of that also; the law of some nations having given the fathers power to put their children to death; others, to sell them thrice . . . . Yet no man will affirm, that the obedience of the child is by law, though laws in some points do make it more positive: and even so it is of allegiance of subjects to hereditary monarchs, which is corroborated and confirmed by law, but is the work of the law of nature. [FN200]

In support of the claim that allegiance was due to a sovereign by the law of nature, Bacon offered “divers acts of Parliaments” that titled the King “our natural sovereign and liege lord.” [FN201] Further, according to Bacon, “allegiance began before laws”: “The original age of kingdoms was governed by natural equity . . . . [K]ings were more ancient than lawgivers [[[and] the first submissions were simple *110 . . . .” [FN202] Bacon’s arguments are particularly noteworthy because they strongly resonate with Bodin’s writings concerning the source of the obligation of allegiance. [FN203] Bacon’s analogy of the source of the duty of allegiance in the law of nature, similar to the operation of natural law within families, also appears in Bodin’s Republique. [FN204]

An additional step remained. In order to find that the allegiance due by the law of nature to the King’s natural body meant that James’s Scottish and English subjects were mutually naturalized, Bacon argued:

For, my lords, by the law of nature all men in the world are naturalized one towards another. . . . It was civil and national laws that brought in these words, and differences, of civis and exterus, alien and native. And therefore because they tend to abridge the law of nature, the law favoureth not them, but takes them strictly . . . . So by the same reason, all national laws whatsoever are to be taken strictly and hardly in any point wherein they abridge and derogate from the law of nature. [FN205]

Bacon offered no further proof that natural law required this result. Perhaps the paucity of evidence reveals a difficulty in refuting the defendants’ two- body theory of allegiance and overcoming the prevailing notion that the nerves of England’s body politic–an idea favoring a positive law of allegiance– should determine the status of the postnati.

Bennet’s maxim, first introduced in the parliamentary debates, was used later by the defendants in Calvin’s Case to support the distinction between the King’s two bodies. This indicates some interaction between the civilians and common lawyers opposing the Naturalization Act. [FN206] For the plaintiff, Francis Bacon cited the maxim and noted that “the words whereof are taken from the civil law; but the matter of it is received in all laws; being a very line or rule of reason, to avoid confusion.” [FN207]

*111 According to Coke in Acton’s Case, the maxim was “commonly said.” [FN208] While the context in which it was commonly said remains unclear, Acton’s Case and Bennet’s speech in Parliament are strong evidence that its common use was ecclesiastical. [FN209] Although the application of the maxim in Acton’s Case is not quite Bennet’s “as one Parson of two churches, one Dean of two Deaneries,” both instances are far different still from the maxim’s source in Bartolus. In Calvin’s Case it was used to determine the rights of subjects in separate kingdoms. The transformation is one from ecclesiastical governance to political governance of non-clerics. [FN210]

In any event, although the cum duo jura maxim does not appear to have been used in the medieval theory of the King’s two bodies before Calvin’s Case, [FN211] the common lawyers’ use of this maxim in connection with their peculiar theory of sovereignty is not surprising. The theory of the King’s two bodies, as it was developed by the time of Bracton, seems to have originated in ecclesiastical notions of the corpus mysticum and Christ’s two natures. [FN212] In essence, the theory of the King’s two capacities addressed a problem of continuity necessary for perpetuating hereditary kingdoms: namely, what happened to sovereignty upon the King’s death–a problem confronting continental civilian thinkers as well. [FN213]

From Plowden’s Reports it is evident that common lawyers in the late Tudor period were familiar with this dual concept of sovereignty. [FN214] According to Plowden,

*112 that by the Common Law no Act which the King does as king, shall be defeated by his Nonage. For the King has in him two Bodies, viz., a Body natural, and a Body politic. His Body natural . . . is a Body mortal, subject to all Infirmities that come by Nature or Accident . . . and to the like Defects that happen to the natural Bodies of other People. But his Body politic is a Body that cannot be seen or handled, consisting of Policy and Government, and constituted for the Direction of the People, and the Management of the public weal . . . what the King does in his Body politic, cannot be invalidated or frustrated by any Disability in his natural Body. [FN215]

The cum duo jura maxim also made sense in the theory of the King’s two bodies because, again from Plowden, the two bodies were inseparable:

So that he has a Body natural, adorned and invested with the Estate and Dignity royal; and he has not a Body natural distinct and divided by itself from the Office and Dignity royal, but a Body natural and a Body politic together indivisible; and these two Bodies are incorporated in one Person, and make one Body and not divers, that is the Body corporate in the Body natural, et e contra the Body natural in the Body corporate. So that the Body natural, by this conjunction of the Body politic to it . . . is magnified, and by the said Consolidation hath in it the Body politic. [FN216]Thus, in 1608, ample precedent existed for the distinction between the King’s two bodies–enough that Coke readily admitted the dual capacity of the king. [FN217] However, the theory had apparently not been used before to determine who was a subject and who was an alien. Coke found the defendants’ plea “a mere stranger in this case, such a one as the eye of the law (our books and book-cases) never saw, as the ears of the law (our reporters) never heard of . . . . In a word, this little plea is a great stranger to the laws of England . . . .” [FN218] The core of the defendants’ challenge, the innovative application of the two-body theory to the law of subjects and aliens, placed the origins of allegiance inside the province of human law in a way that the language ad fidem Regis would otherwise prohibit. Because the basic theory of the King’s two bodies was not unprecedented in the common law, the addition of the maxim cum duo jura to the *113 theory posed substantial difficulties for the justices in the Exchequer Chamber.

IV. The Resolution of Calvin’s CaseThe theory of the King’s two bodies presented two questions that had to be settled in order to decide Calvin’s Case. The first question, to which of the King’s two capacities a subject’s allegiance was due, was answered by Coke by his determination that allegiance was due to the King’s natural body by the law of nature. [FN219] The second question was related to the first: Would allegiance to the King’s natural body be sufficient to make one a natural subject within a separate body politic?Coke’s affirmative answer to this second question required an understanding of sovereignty that had much in common with civilian legal thought. The difficulties posed by the second question required an understanding of the meaning of “body politic” as applied to the government of England in the early seventeenth century. The King’s body politic arose from a mystical notion of immortality and immutability attributed to the crown to provide for continuity of sovereignty upon succession. [FN220] When applied to the kingdom, however, body politic meant that part of the kingdom which was “framed by the policy of man,” [FN221] a notion widely used by civilians and common lawyers alike to refer to the public and private laws of the realm. The laws of England were the sinews and nerves of the body politic, with the King as its head. [FN222] The defendants in Calvin’s Case understood “body politic” to have positive law connotations. The defendants pointed to “municipal laws of this realm [that have] prescribed the order and form” of allegiance, or legal obedience. [FN223] *114 Coke, on the other hand, resoundingly rejected the idea that the allegiance owed at birth was tied to municipal law. Instead, Coke maintained that it was required by the divine law of nature. [FN224]Coke’s resolution of the case essentially followed that suggested by Bacon– allegiance was due by the law of nature to the King’s natural body, and since both Scottish and English subjects owed allegiance to the same sovereign, Scots who were born into the allegiance of James at the time he was also King of England were natural subjects in England. Coke’s contribution was to spell out more clearly why this last proposition should be so. Although the two countries might have different laws, Scots were subject to the same natural law of allegiance as the English. Despite finding clear authority in Cobledike’s Case that if Robert Calvin were ad fidem Regis he was “no alien,” Coke agreed with the defendants that the question still to be resolved implicated the theory of the King’s two bodies. [FN225] Coke reached a result consistent with past English practice by recognizing that persons born in territories acquired by an English sovereign “in blood and by descent” were natural subjects in England. [FN226]According to Coke, the mutual oath between a liege lord and his subject was natural ligeance. Natural ligeance existed between the King and his subjects, with the King offering protection in return for loyalty. [FN227] To support his claim that every subject from birth was presumed by law to be sworn to the natural person of the king, Coke pointed to the banishment of the Spencers by Edward II, allegedly for the offending words: that homage and oath of ligeance was more by reason of the King’s crown (that is, of his politic capacity) than by reason of the person of the King . . . [so that] if the King do not demean himself by reason in right of his Crown, his lieges be bound by oath to remove the king. [FN228]In addition, Coke discussed the nature of hereditary sovereignty in England in order to show that this feudal notion of allegiance could not be to the King’s body politic. The King “holdeth the kingdom of *115 England by birth right inherent, by descent from the blood Royal, whereupon succession doth attend.” [FN229] Because the sovereign’s title was “by the descent” and “without any essential ceremony or act to be done ex post facto” (e.g., coronation), there could be no interregnum. [FN230] Hence, the body politic, or laws of the realm, added nothing to James’s rightful claim to sovereignty. Nonetheless, his rightful claim to sovereignty was the basis for the allegiance owed by his subjects: “[S]o as for these special purposes the law makes him a body politic, immortal and invisible, whereunto our ligeance cannot appertain.” [FN231]Coke next turned to the source of this allegiance. The law of nature, part of the law of England, required the allegiance of a subject to his “natural liege Sovereign.” [FN232] Coke wrote that “[t]he law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction; and this is lex aeterna, the moral law, called also the law of nature.” [FN233] Coke further wrote: And the reason hereof is, for that God and nature is one to all, and therefore the law of God and nature is one to all. By this law of nature is the faith, ligeance, and obedience of the subject due to his Sovereign or superior. . . . This law of nature, which indeed is the eternal law of the Creator, infused into the heart of the creature at the time of his creation, was two thousand years before any laws written, and before any judicial or municipal laws. [FN234]Coke cited Aristotle’s Politica as evidence that power to command obedience for the profit of society was of the law of nature and before any municipal laws. Further, according to Coke, Fortescue provided evidence that before there were any municipal laws, English kings had decided cases according to natural equity–more evidence that the law of nature existed before the development of much of what seventeenth-*116 century lawyers considered to be the common or customary law of England. [FN235]The critical result was that allegiance to the English sovereign, and for a time, acquisition of and rights associated with citizenship in the former American colonies, were considered not to be the subject of municipal or positive law-making. Coke stated: Seeing then that faith, obedience, and ligeance are due by the law of nature, it followeth that the same cannot be changed or taken away; for albeit judicial or municipal laws have inflicted and imposed in several places, or at several times, divers and several punishments and penalties, for breach or not observance of the law of nature, (for that law only consisted in commanding or prohibiting, without any certain punishment or penalty), yet the very law of nature itself never was nor could be altered or changed. And therefore it is certainly true, that jura naturalia sunt immutabilia. [FN236]More importantly, Calvin’s Case also established by implication the rule of the jus soli itself as a divine institution, ordained by the laws of God and nature. The antenati remained aliens even though they currently owed allegiance to the person who was King of England. “Calvin the plaintiff,” Coke wrote, was “naturalized by procreation and birth-right.” [FN237] This was because, according to Coke, one’s status is “vested by birthright:” [F]or as the antenati remain aliens as to the Crown of England, because they were born when there were several kings of the several kingdoms, and the uniting of the kingdoms by descent subsequent cannot make him a subject to that Crown to which he was alien at the time of his birth. . . . [A]ll those that were born under one natural obedience while the realms were united under one sovereign, should remain natural born subjects, and no aliens; for that naturalization due and vested by birthright, cannot by any separation of the Crowns afterward be taken away: nor he that was by judgment of law a natural subject at the time of his birth, become an alien by such a matter ex post facto. [FN238]The conservative English approach to the status of the Scots favored de jure naturalization of only the postnati. In this way, the effects (perceived or real) of Scots invading England as land and office holders would be gradual, because only those persons born after 1603 would be entitled to hold land or office, barring individual *117 acts of denization by James I. The decision in Calvin’s Case thus drew a distinction based upon time of birth, permitting Scottish children, but not their Scottish parents, to be natural subjects, thereby grounding the rule firmly in what we know today as the jus soli. Thus, the time of birth was “of essence,” [FN239] and it, too, became part of the divine law embraced by Coke: But if enemies should come into any of the King’s dominions, and surprise any castle or fort, and possess the same by hostility, and have issue there, that issue is no subject to the king, though he be born within his dominions, for that he was not born under the King’s ligeance or obedience. But the time of his birth is of the essence of a subject born; for he cannot be a subject to the King of England, unless at the time of his birth he was under the ligeance and obedience of the king. And that is the reason that antenati in Scotland (for that at the time of their birth they were under the ligeance and obedience, of another king) are aliens born, in respect of the time of their birth. [FN240]The distinction appears to us today almost ludicrous: Scottish parents owed the same allegiance to James as did their children, but unless they had been born owing that allegiance, that is, born after 1603, they were not natural subjects. Thus, to some extent an historical accident–the failure of the Tudor line and descent of the English crown to James Stuart of Scotland–established the jus soli as a product of natural law in a way that the jus sanguinis, in England at least, never was.

The Law of NatureHaving found allegiance due to the King’s natural body by the law of nature, Coke still faced the problem that troubled Bacon–why the law of nature also required subjects in a King’s various territories to be naturalized as to each other. Said another way, the problem was to explain why James’s Scottish subjects born after he inherited the English throne were entitled to be treated as Englishmen when in England, while James’s Scottish subjects born before 1603 were not so *118 entitled. Coke’s answer, drawn from the law of nature, and, he claimed, the law of “all other nations,” was that the allegiance due to James from his Scottish subjects born after 1603 was now the same as that due from his English subjects. [FN241] Those born before 1603 were born into a different allegiance and could only become subjects in England by act of positive law subsequent to their birth. Further, because this law of nature was “immutable,” the result for the postnati was not changed by the fact that Scotland had a different legal system from England. Because there was only “one ligeance” to one king, and the primary allegiance that mattered was that acquired at birth, Calvin was not an alien in England. [FN242]Surprisingly, then, although Coke cited the statute De Natis and Cobledike’s Case, among other precedents, the law of determining natural-born status as developed from the fourteenth century was not central to Coke’s resolution of the case. Rather, Coke based his holding upon an “immutable” natural law that preceded any municipal or judicial law in England. At least for the legal basis of allegiance, in contrast to the theory of the King’s two bodies, Coke endorsed a more unified notion of sovereignty in holding for the plaintiff in Calvin’s Case. The result, nonetheless, was that the postnati enjoyed the protections of English law, even though all Scottish subjects while in Scotland were out of the jurisdictional reach of the English Parliament. [FN243] Thus Coke added a horizontal link between the Scottish postnati and English subjects to the vertical relationship between subject and sovereign. According to Coke, [I]f the obedience and ligeance of the subject to his sovereign be due by the law of nature, if that law be parcel of the laws, as well of England, as of all other nations, and is immutable, and that [the] postnati and we of England are united by birth-right in obedience and ligeance (which is the true cause of natural subjection) by the law of nature, it followeth that Calvin the plaintiff . . . cannot be an alien born. . . . [F]or . . . the law hath wrought . . . a union of ligeance and obedience of the subjects of both kingdoms, due by the law of nature. . . . [A]nd this in substance is but a uniting of the hearts of the subjects of both kingdoms one to another, under one head and sovereign. [FN244]*119 Coke thus created a rule to determine status at birth that was “immutable” and hence could not be changed by human laws. [FN245]Scotland, by contrast, resolved the status of James’s English subjects by statute. In 1607, the Scottish Parliament passed an act that provided for naturalization not only of the English postnati but of the antenati as well, with the only limitation for the antenati being that they could not hold office of crown, judiciary, or Parliament except by exercise of the royal prerogative. [FN246] The Scottish Parliament enacted the naturalization charter with considerable resentment over the defeat of James’s proposals to the English Parliament concerning naturalization of the Scots and over James’s refusal to naturalize all Scots by prerogative power. [FN247] The resentment, in fact, made the Act something of a rhetorical gesture: The naturalization provisions were “suspendit and . . . of na strength force nor effect heireftir Ay and quhill and unto the speciall tyme that the Estaittis of England be thair Acts and statutis in Parliament decerne grant and allow the same.” [FN248]The English Parliament, of course, did not enact a naturalization bill; instead, the matter was determined by the judges in Calvin’s Case. Little is known of the effect of the Scottish naturalization statute after the decision in Calvin’s Case. Had the Scottish courts instead determined the status of English subjects by judicial decree, the juxtaposition with Calvin’s Case would have provided an unparalleled opportunity for comparative legal history on the law of citizenship in the two kingdoms. In any event, the fact that the English Parliament failed to enact any statute naturalizing the Scots permitted the English judges to decide the matter, thus ushering natural law into what would later become the rule of the jus soli.Chancellor Ellesmere, in his report of the case, best explained the nature of allegiance that made the Scottish postnati subjects together with the English: This bond of allegiance, whereof we dispute, is vinculum fidei; it bindeth the soul and conscience of every subject severally and respectively, to be faithful and obedient to the king: and as a soul or conscience cannot be framed by policy; so faith and allegiance cannot be framed by policy, nor put into a politic body. An oath must be sworn by a natural body; homage and fealty must be done by a natural body, a politic body cannot do it. . . . As the *120 King nor his heart cannot be divided, for he is one entire King over all his subjects, in whichsoever of his kingdoms and dominions they were born, so he must not be served or obeyed by halves; he must have entire and perfect obedience of his subjects . . . . [A]nd he, that is born an entire and perfect subject ought by reason and law to have all the freedoms, privileges, and benefits pertaining to his birthright in all the King’s dominions . . . . [FN249]Coke’s assertion that the determining factor in Calvin’s Case was “a union of ligeance and obedience of the subjects of both kingdoms, due by the law of nature to their Sovereign” [FN250] should not be read to support Bacon’s claim that the sovereign was not subject to municipal laws, [FN251] even though allegiance was not dependent upon municipal law. And though Coke also said that the reciprocal obligations of subject and sovereign are not “tied to municipal laws,” [FN252] if Coke meant that there was no legal limit upon a King’s actions, this would be an astonishing outcome, given that in coming years Coke would champion the parliamentary cause against royal prerogative, highly irritating Bacon in the process.At the time of Calvin’s Case, though, the King’s prerogative was an issue of concern to Coke and some members of the English Parliament. We know from other sources that Coke clearly supported a constitutional limit to the King’s prerogative, although he accepted James’s basic theory of government. [FN253] This larger story is a complicated topic, with an even more complicated historiography. In 1604 Parliament refused James’s request to change his title from King of England to King of Great Britain [FN254] and rejected James’s goal of a union of laws and institutions of the two kingdoms. Parliament thereby expressed its fear that union of the two kingdoms was part of a larger plan to destroy English law and subjugate the English Parliament. *121 [ FN255] Coke was surely aware of this ambivalence as he wrote his opinion in Calvin’s Case.Coke’s limiting principle in Calvin’s Case appears to have been the reciprocal nature of the relationship placed on subject and sovereign. In return for the subject’s loyalty, the sovereign owed “protection and government due by the law of nature.” [FN256] Although Coke did not elaborate what the law of nature might require of the King concerning protection and government of his subjects, an avenue of restraint upon royal prerogative was clearly present. Coke could have chosen the theory of the King’s two bodies as argued in Calvin’s Case as a principle limiting royal prerogative. That he instead insisted that the King had a political body only for a few specific purposes, [FN257] and chose to place the King under the law of nature (a position that ultimately lead to Coke’s dismissal as chief justice in 1616), perhaps reveals the continuing hazard of adopting any stance suggesting treason. Despite this fundamental difference between Bacon’s proposals and Coke’s resolution of Calvin’s Case, both reached outside of English precedent in order to affirm Robert Calvin’s claim that he was a natural subject of the King of England.In England, the immediate effect of Calvin’s Case was minimal. The decision meant that an entire generation would pass before the effects would be felt. In 1603 few postnati were old enough to pose any immediate threat of wholesale incursions into English patronage. Parliamentary compilations for the period immediately following Calvin’s Case record occasional acts of denization of Scottish antenati, but the numbers are not overwhelming. [FN258] Calvin’s Case itself appears to have generated little comment in England. If general acceptance is the “age-old sanction of law,” [FN259] then the relative lack of criticism in the two decades after 1608 attests to its strength. A speech in Parliament by Sir Robert Phelps, in 1628, is apparently one of the *122 few recorded instances of public criticism of the decision. Phelps considered Calvin’s Case to be the first of several court decisions “all exceeding one another in prejudice.” [FN260] Of Calvin’s Case, he said, “I do not complain of it but only mention it” [FN261] in a diatribe against “foreign dangers” and James’s perceived increasing propensity to “scoff at Parliaments, at laws, at all.” [FN262]

V. Continental Legal Thought and the Jus FeudaleA. The Acquisition of Citizenship at Birth in France and the Italian CitiesWas there any possibility for the judges of England in 1608 to draw directly from continental examples in their consideration of the status of the postnati? At the time of Calvin’s Case, there were perhaps as many as one hundred civil lawyers in England who had studied the jus gentium, or the law of nations, at Oxford, Cambridge, or abroad. These professionals were a source of contemporary knowledge of international law and practice. [FN263] Because of their knowledge and experience with questions of international law, civilians were often used in diplomatic service and as advisors to the Privy Council on treaties and other issues concerning international relations. [FN264] They were, in fact, consulted on the status of James’s Scottish subjects in England in the Commons debates preceding Calvin’s Case. The evidence suggests that some participants in the political debates in England over the status of James’s Scottish subjects were both interested in, and at least vaguely informed about, naturalization practices in the “civil law” as well as in other kingdoms and territories. [FN265] A brief consideration of some naturalization practices on the continent is therefore instructive to consider the extent to which English jurists in 1608 could borrow from other legal systems. [FN266]*123 France and England are usually considered the best examples of the emerging nation-state in the late middle ages and hence the earliest examples for judicial determinations relating to national status. In 1600, citizenship had little meaning as a term designating national status or origin for most European residents outside of France and England. The term “citizen” was significant, if at all, only in the cities. In rural areas, the feudal relationship with a local lord probably was the most significant legal and social status.While the discontinuities between what we might term “naturalization” practices in France and England in the early modern period are striking, in some respects the legal developments during this period parallel each other. The themes of discontinuity are: (1) The scholastic sources from the Commentators, used by some French jurists to describe acts and court decisions concerning naturalization, [FN267] seem never to have been a part of English legal discourse on the acquisition of the status of natural-born subject; (2) French jurists (and the earlier Commentators) sometimes used the word “citizen” interchangeably with the word “subject” in legal discourse, with some expression that the relationship was contractual, [FN268] an idea not as evident in English legal thought; and (3) French jurists (following the Commentators and the practice in the Italian cities) placed more emphasis on the jus sanguinis as a theory underlying all rules of naturalization. [FN269] On the other hand, the themes of continuity include: (1) As in England, the function of legal rules concerning naturalization were formed through questions of inheritance and land-holding; (2) an emerging concept of the jus soli in France contemporary with Calvin’s Case broadened the scholastic emphasis on the jus sanguinis; [FN270] and (3) at least in the writings of Jean Bodin, a parallel idea that allegiance was a natural, irrevocable duty by native-born persons, creating a vertical bond between prince and subject individually rather than a horizontal bond between citizens as a whole. [FN271]French and Italian jurists in the fifteenth century frequently considered questions of status acquired at birth according to a model of citizenship developed by the Commentators. The city-states of Italy in the twelfth and thirteenth centuries gave rise to jurists who had *124 only recently rediscovered the Roman law texts compiled under Justinian, which they systematized into the Corpus Juris Civilis. The Commentators, who followed later, devoted themselves to the Corpus Juris to apply that body of learning to then-contemporary legal issues within the city-state. Bartolus [FN272] was among the first to consider the Roman law of acquisition of citizenship, the civilitas civitatis. Persons became citizens either by birth or by statutory process. Under the formulation articulated by Bartolus, and apparently followed in the Italian cities of the thirteenth and fourteenth centuries, a citizen by birth–a civis ab origine–was one who had been born within the territory of the state and to at least one parent who was already a citizen of the state. [FN273] French jurists and courts in the sixteenth century seem to apply opinions and ideas from the Corpus Juris Civilis of the Commentators, especially rules establishing citizenship according to the jus sanguinis, to a much greater extent than can be discerned from the arguments in the English Parliament and in Calvin’s Case. French jurists, in fact, made far greater efforts to link French practices with ancient Greece and Rome than with earlier practice in France or even contemporary Italian practices. [FN274]The continuities and discontinuities with English legal practices aside, legal developments in France do not seem to have provided any direct precedent or examples to resolve Calvin’s Case. In the decades prior to Calvin’s Case, French courts had no occasion to consider wholesale naturalization of a separate kingdom, as in the case of the postnati in England. Instead, incorporation of separate kingdoms had occurred by conquest such as after the Italian wars, or by royal act or legislation. [FN275] Interestingly, because of political alliances during the sixteenth century, Scots enjoyed many privileges in France, though they appear never to have been considered as a group to be the equivalent of natural-born French subjects. [FN276]France, though often viewed to have employed a rule of the jus soli in the period contemporary with Calvin’s Case, [FN277] in reality employed a combination of both the jus soli and the jus sanguinis *125 similar to Italian definitions of natural citizenship. [FN278] Prior to the sixteenth century, the children of foreign parents were unable to inherit land in France even if they had been born within the kingdom of France. [FN279] A growing tendency to emphasize the jus soli can be discerned in the sixteenth century, but French jurists simultaneously developed the view that citizenship depended, to some degree, upon intent of the individual to reside in France, and they also linked citizenship with membership in the corporation that embodied the state. [FN280]B. Excommunication and Religious Oaths of AllegianceYet another group of legal scholars at work in Europe around the time of Calvin’s Case possessed a developed law of hierarchical, governing relationship–the Canonists. The extent of their contribution to rules determining the acquisition of citizenship status has not been considered in the detail that it deserves. Ecclesiastical courts in England as well as France dealt with issues related to domicile and status in its family law jurisdiction (including disposition of property), the status of aliens, excommunicants, [FN281] sectarians, and others. Thus, a thorough study of ecclesiastical courts and the laws they applied could well produce evidence of a contribution by canon lawyers to the development of legal theories determining national status. Excommunication, in fact, provides a strikingly close analogy to the law of subjects and aliens developed in the early modern period. Excommunication in the middle ages, in England and on the continent, did not entail banishment or physical exclusion from a territory, but rather was a type of public ostracism within the community, separating an individual from some benefits of community membership to encourage repentance and return to the spiritual fold. [FN282] The line between political and spiritual community often blurred. Canon law in the medieval period, for example, called for the suspension of feudal ties owing to an excommunicant during the period of excommunication. [FN283] Furthermore, excommunicants could not sue in civil litigation or accuse in criminal trials, excommunicants’ rights as defendants were curtailed, and excommunicants could not enforce *126 contracts. Secular courts were held by canon law to enforce the withdrawal from the community. [FN284] English royal courts frequently recognized the legal disabilities of excommunicants from the twelfth through the fifteenth centuries. [FN285] In these respects, excommunicants and aliens suffered similar legal disabilities in the royal courts of England, at least until the period of the Reformation.As late as 1797, legal authority in England apparently still supported the rule that one who had been excommunicated by spiritual authority suffered legal disabilities equivalent to those of aliens: “[B]y the excommunication the party is disabled to sue any action, or to have any remedy for any wrong done unto him so long as he shall remain excommunicate.” [FN286] Furthermore, neither excommunication nor alien status was necessarily permanent. Excommunicants and aliens shared in common the need for formal admittance into the political community. To restore civil rights to an excommunicant or an alien, some formal adjudication was required, either by Church authorities in the case of excommunication, or by Parliament or the crown in the case of aliens.After the Reformation, oaths of allegiance were increasingly used as religious tests, and these oaths probably replaced excommunication as the primary form of political control of religious beliefs. It is therefore instructive to consider, however briefly, the relationship of law, religion, and citizenship through the oaths of allegiance required of adult subjects throughout the early modern period in England. [FN287] In 1605, James promulgated a new oath of allegiance acknowledging James as “lawful and rightful King” and promising to defend him in case of attack. [FN288] Critically, the oath also contained the following: “I do from my heart abhor, detest, and adjure, as impious and heretical, this damnable doctrine and position, that princes which be excommunicated or deposed by the Pope may be deposed or murdered by their subjects or any other whatsoever.” [FN289] Clearly directed at Catholics, the oath demanded that James’s subjects deny the Pope’s *127 authority in secular matters. The oath was required of all non- noble persons eighteen years of age and older after 1610. [FN290]How did James view the relationship, if any, between the oath of allegiance taken as an adult, and the natural allegiance owing at birth? In the 1607 tract An Apologie for the Oath of Allegiance, James gave the following explanation: [A] forme of Oath was framed to be taken by my Subjects, whereby they should make a clear profession of their resolution, faithfully to persist in their obedience unto me, according to their natural allegiance; To the end that I might hereby make a separation, not only between all my good Subjects in general, and unfaithful Traitors, that intended to withdraw themselves from my obedience: but specially to make a separation between so many of my Subjects, who although they were otherwise Popishly affected, yet retained in their hearts the print of their natural duty to their sovereign: and those who . . . could not contain themselves within the bounds of their natural allegiance, but thought diversity of religion a safe pretext for all kinds of treasons and rebellions against their sovereign. [FN291]“Natural allegiance,” of course, corresponds with the allegiance owing at birth in Calvin’s Case. All subjects owed allegiance to the crown from birth. There is no obvious inconsistency in requiring a separate oath of allegiance as an adult, because oaths of allegiance gave content and definition to the general allegiance owing at birth. Oaths could serve several purposes: (1) as confirmation of loyalty, similar to practices in some Christian faiths in which infant baptism is followed by confirmation upon reaching adulthood; (2) to ferret out religious dissent; or (3) to identify treason or treasonous beliefs. In the late sixteenth and early seventeenth centuries, in particular, there is clearly a religious test motivating oaths of allegiance to the English monarch. The substance of the oath, according to James (disingenuously), was that the oath was “merely civil.” [FN292]Catholics were expressly forbidden to take this oath by Paul V in September 1606, pronouncements that provoked James’s Apologie. [FN293] The result, according to James, was that the Pope’s admonition meant that Catholics “must now renounce and forswear their profession of obedience already sworn, and so must as it were at the third instance, foreswear [sic] their former two Oaths, first closely sworn, by their birth in their natural Allegiance; and next, *128 clearly confirmed by this Oath, which doeth nothing but express the same.” [FN294]All of this suggests that we are only beginning to explore the intersection between law and religion in the development of concepts of citizenship. Coke, in fact, adopted Protestant teachings on the status of Jews (derived from thirteenth-century canon law doctrines on infidels) as part of natural law in Calvin’s Case. [FN295] The early canonists developed a tradition of rights discourse, [FN296] and its relationship to the development of Western concepts of citizenship only recently has begun to be explored. [FN297]Although it is difficult to conclude that English lawyers in the early seventeenth century could look to any specific continental legal practice for a resolution of the problem of the postnati, Calvin’s Case was not the first consideration of that issue in writing of the time. Two other legal thinkers, whose works were readily accessible to Bacon and Coke, had earlier arrived at very similar conclusions concerning the questions raised by Calvin’s Case. One, Sir Thomas Craig (1538-1608), a Scottish lawyer, wrote about the problem of the postnati while serving on James’s commission of union. Another, Jean Bodin (1529-1596), the French civil lawyer and political thinker, in his 1576 work Les Six Livres de la Republique (first translated into English in an edition published in 1606), [FN298] proposed that the mutual obligations between subject and King inherent in sovereignty brought about a commonality of citizenship between communities with differing laws.C. Thomas Craig on the Feudal LawIn 1605, Craig addressed the question of naturalization of James’s Scottish subjects in his De Unione Regnorum Britanniae. [FN299] Craig’s purpose in writing the De Unione was to advocate a “perfect” union–a “single powerful monarchy” to avoid “the catastrophes of *129 the past [that] have so vexed the island.” [FN300] An essential component of this perfect union was the “sharing of offices, dignities, and rights” between the King’s Scottish and English subjects. Craig concurred with English opponents of a “perfect” union that this sharing would not extend to those deemed “aliens” by English law. Thus, the issue of naturalization of James’s Scottish subjects received considerable attention in Craig’s De Unione. [FN301]The core of Craig’s arguments on the question of status at birth came from his conception of the international character of the jus feudale. [FN302] The jus feudale, or “feudal law,” was taught as part of the jus commune in the universities of Europe from the eleventh to sixteenth centuries. Feudal law was a body of secular law governing primarily the system of rights and obligations associated with lord-vassal relationships, landholding and tenure. It had begun as manorial custom, but came to be viewed as a system of customary law with many commonalities in its practices throughout Europe. [FN303]

[end]

Calvin’s Case 7 Coke Report 1a, 77 ER 377

The SEVENTH PART of the REPORTS of SIR EDWARD COKE, Knt. Lord Chief Justice of the Common Pleas, of divers RESOLUTIONS and JUDGMENTS given, upon solemn Arguments, and with great Deliberation and Conference of the reverend Judges and Sages of the Law, of CASES IN LAW which were never Resolved or Adjudged before: and the REASONS and CAUSES of the said Resolutions and Judgments. Published in the Sixth Year of the Most High and Most Illustrious JAMES, King of England, France, and, Ireland, and of Scotland the XLII. the Fountain of all Piety and Justice, and the Life of the Law. With NOTES and REFERENCES, by JOHN FARQUHAR FRASER, Esq., of Lincoln’s Inn, Barrister-at-Law.

[7-Coke-1 a] * POSTNATI (A).

Calvin’s Case 7 Coke Report 1a, 77 ER 377

Report Date: 1608

CALVIN’S CASE.

Trin. 6 Jac. 1.

[See Low v. Routledge, 1865-68, LR 1 Ch 47; LR 3 HL 100; Reg v. Keyn, 1876, 2 Ex. D. 236; De Geer v. Stone, 1882, 22 Ch D. 251. Dicta at 27 b dissented from, In re Stepney Election Petition, 1886,17 QBD 46; In re Johnson [1903] 1 Ch. 833.]

James by the grace of God of England, Scotland, France, and Ireland, King, defender of the faith, &c. To the Sheriff of Middlesex greeting: Robert Calvin,

7 Coke Report 2 a, 77 ER p378

gent, hath complained to us, that Richard Smith and Nicholas Smith, unjustly, and without judgment, have disseised him of his freehold in Haggard, otherwise Haggerston, otherwise Aggerston, in the parish of St. Leonard, in Shoreditch, within thirty years now last past; and therefore we command you, that if the said Robert shall secure you to prosecute his claim, then that you cause the said tenement to be reseised with the chattels which within it were taken, and the said tenement with the chattels to be in peace until Thursday next after fifteen days of Saint Mai-tin next coming; and, in the mean time, cause twelve free and lawful men of that neighbourhood to view the said tenement, and the names of them to be inbreviated; and summon them by good summoners, that they be then before us wherever we shall then be in England, ready thereof to make recognition; and put, by sureties and safe pledges, the aforesaid Richard and Nicholas, or their bailiffs, (if they cannot be found), that they be then there, to hear the recognition; and have there the summoners, the names of the pledges, and this writ. Witness ourself at Westminster, the 3d. day of November, in the 5th year of our reign of England, France, and Ireland, and of Scotland the one-and-fortieth.

For 40s. paid in the hamper,

KINDESLEY.

Middlesex, ss. The assize cometh to recognise, if Richard Smith, and Nicholas Smith unjustly, and without judgment, did disseise Rob. Calvin, gent of his freehold inetb] Haggard, otherwise Haggerston, otherwise Aggerston, in the parish of St. Leonard in Shoreditch, within thirty years now last past: and whereupon the said Robert, who is within the age of twenty-one years, by John Parkinson, and William Parkinson, his guardians, by & Court, of the said King here to this being jointly and severally specially admitted, complaineth, that they disseised him of one messuage with the appurtenances, &c. And the said Richard and Nicholas, by William Edwards, their attorney, come and say, that the said Robert ought not to be answered to his writ aforesaid, because they say, that the said Robert is an alien born, on the 5th day of Noy in the 3rd year of the reign of the King that now is, of England, France, and Ireland, and of Scotland the thirty-ninth, at Edinburgh within his kingdom of Scotland aforesaid and within the allegiance of the said lord the King, of the said kingdom of Scotland, and out of the allegiance of the said lord the King of his kingdom of England; and at the time of the birth of the said Robert Calvin, and long before, and continually afterwards, the aforesaid kingdom of Scotland, by the proper rights, laws, and statutes of the same kingdom, and not by the rights, laws, or statutes of this kingdom of England, was and yet is ruled and governed. And this he is ready to verify, and thereupon prayeth judgment, if the said Robert, to his said writ aforesaid, ought to be answered, &c. And the aforesaid Robert Calvin saith, that the aforesaid plea, by the aforesaid Richard and Nicholas above pleaded, is insufficient in law to bar him the said Robert from having an answer to his writ aforesaid; and that the said Robert to the said plea in manner and form aforesaid pleaded, needeth not, nor by the law of the land is bound to answer; and this he is ready to verify, and hereof prayeth judgment; and that the said Richard and Nicholas to the aforesaid writ of the said Robert may answer. And the said Richard and Nicholas, forasmuch as they have above alleged sufficient matter-in law to bar him the said Robert from having an answer to his said writ, which they are ready to verify; which matter the aforesaid Robert doth not gainsay, nor to the same doth in any ways answer, but the said averment altogether refuseth to admit as before pray judgment, if the aforesaid Robert ought to be answered to his said writ, &c. And because the Court of the lord the King here are not yet advised of giving their judgment of and upon the premises, day thereof is given to the parties aforesaid; before the lord the King at Westminster until Monday next after eight days of St. Hilary, to hear their Judgment thereof, because the Court of the lord the King here thereof are not yet, &;. And the assize aforesaid remains to be taken before the said lord the King, until the same Monday there, &c. And the sheriff to distrain the recognitors of the assize aforesaid: and in the interim to cause a view, &c; at which day, before the lord the King at Westminster, come as well the aforesaid Robert Calvin, by his guardians aforesaid, as the aforesaid Richard Smith and Nicholas Smith by their attorney aforesaid; and because

7 Coke Report 2 a, 77 ER p379

the Court of the lord the King [7-Coke-2 a] here of giving their judgment of and upon the premises is not yet advised, day thereof is given to the parties aforesaid before the lord the King at Westminster, until Monday next after the morrow of the Ascension of our Lord, to hear their judgment 3 because the Court of the lord the King here are not yet, &c. And the assize aforesaid remains further to be taken, until the same Monday there, &c. 3 and the sheriff, as before, to distrain the recognitors of the assize aforesaid, and in the interim to cause a view, &c. At which day, before the lord the King at Westminster, come as well the aforesaid Robert Calvin by his guardians aforesaid, as the aforesaid Richard Smith and Nicholas Smith, by their attorney aforesaid, &c; and because the Court of the lord the King here, &c.

[2 a] THE CASE

A man born in Scotland after the accession of King James the First to the English throne, and during his reign, may hold lands in England. S.C. Howel’s State Trials, Vol. H. p. 559.

The question of this case as to matter in law was, whether Robert Calvin the plaintiff(being born in Scotland since the Crown of England descended to His Majesty) be an alien born, and consequently disabled to bring any real or personal (a) action for any lands within the realm of England. After this case had been argued in the ‘Court of King’s Bench, at the Bar, by the counsel learned of either party, the Judges of that Court, upon conference and consideration of the weight and importance thereof, adjourned the same (according to the ancient and ordinary course and order of the law) into the (b) Exchequer Chamber, to be argued openly there; first by the counsel learned of either party, and then by all the Judges of England; where afterwards the case was argued by Bacon, Solicitor-General, on the part of the plaintiff, and by Laur. Hide for the defendant; and afterward by Hobart, Attorney-General, for the plaintiff, and by Serjeant Hutton for the defendant; and, in Easter term last, the case was argued by Heron, puisne Baron of the Exchequer, and Foster, puisne Judge of the Court of Common Pleas; and, on the second day appointed for this case, by Crook, puisne Judge of the King’s Bench, and Altham, Baron of the Exchequer; the third day by Snigge, Baron of the Exchequer, and Williams, one of the Judges of the King’s Bench; the fourth day by Daniel, one of the Judges of the Court of Common Pleas, and by Yelverton, one of the Judges of the King’s Bench: and, in Trinity term following, by Warburton, one of the Judges of the Common Pleas, and Fenner, one of the Judges of the King’s Bench; and after by Walmesley, one of the Judges of the Common Pleas, and Tanfield, Chief Baron; and, at two several days in the same term, Coke, Chief Justice of the Common Pleas, Fleming, Chief Justice f the King’s Bench, and Sir Thomas Eggerton, Lord Ellesmere, Lord Chancellor of England, argued the case (the like plea in disability [7-Coke-2 b] of Robert Calvin’s person being pleaded mutatis mutandis in the Chancery in a suit there for evidence concerning lands of inheritance; and, by the Lord Chancellor, adjourned also into the Exchequer-Chamber, to the end that one rule might over-rule both the said cases), And first (for that I intend to make as summary a report as I can) I will at the first set down such arguments and objections as were made and drawn out of this short record against the plaintiff by those that argued for the defendants. It was observed, that in this plea there were four nouns, quatuor nomina, which were called nomina operative, because from them all the said arguments and objections on the part of the defendants were drawn; that is to say 1. Ligeantia (which is twice repeated in the plea; for it is said, infra ligeantiam domini Regis regni sui Scot’, et extra ligeantiam domini Regis regni sui Angl’). 2. Regnum (which also appeareth to be twice mentioned, viz. regnum Angl’, and regnum Scot’). 3. Leges (which are twice alleged, viz. leges Angl’, and leges Scot’, two several and dis-

7 Coke Report 3 a, 77 ER p380

tinct laws). 4. Alienigena (which is the conclusion of all, viz. that Robert Calvin is alienigena).

1. Ligeantia. By the first it appeareth, that the defendants do make two ligeances, one of England, and another of Scotland; and ‘from these several ligeances two arguments were framed, which briefly may be concluded thus: Whosoever is born infra ligeantiant, within the ligeance of King James of his kingdom of Scotland, is alienigena, an alien born, as to the kingdom of England: but Robert Calvin was born at Edinburgh, within the ligeance of the King of his kingdom of Scotland; therefore Robert Calvin is alienigena, an alien born, as to the kingdom of England. 2. Whosoever is born extra ligeantiam, out of the ligeance of King James of his kingdom of England, is an alien as to the kingdom of England: but the plaintiff was born out of the ligeance of the King of his kingdom of England; therefore the plaintiff is an alien, &c. Both these arguments are drawn from the very words of the plea, viz. quod præd’ Robertus est alienigena, natus 5 Nov anno regni domini Regis nunc Angl’ &c. tertio apud Edenburg infra regnum Scot’ ac infra ligeantiam, dicti domini Regis dicti regni sui Scot’, ac extra ligeantiam dicti domini Regis regni sui Angl’.

2. Regna. From the several kingdoms, viz. regnum, Angl’ and regnum, Scot’ three arguments were drawn. 1. Quando (a) duo jura (imo duo regna) concurrunt in una persona, cequum est ac si essent in diversis: but in the King’s person there concur two distinct and several kingdoms; therefore it is all one as if they were in divers persons, [7-Coke-3 a] and consequently the plaintiff is an alien, as all the antenati are, for that they were born under the ligeance of another King. 2. Whatsoever is due to the King’s several politic capacities of the several kingdoms is several and divided: but ligeance of each nation is due to the King’s several politic capacities of the several kingdoms; ergo, the ligeance of each nation is several and divided, and consequently the plaintiff is an alien, for that they that are born under several ligeances are aliens one to another. 3. Where the King hath several kingdoms by several titles and descents, there also are the ligeances several: but the King hath these two kingdoms by several titles and descents; therefore the ligeances are several. These three arguments are collected also from the words of the plea before remembered.

3. Leges. From the several and distinct laws of either kingdom, they did reason thus: 1. Every subject that is born out of the extent and reach of the laws of England, cannot by judgment of those laws be a natural subject to the King, in respect of his kingdom of England: but the plaintiff was born at Edinburgh, out of the extent and reach of the laws of England; therefore the plaintiff by the judgment of the laws of England cannot be a natural subject to the’ King, as of his kingdom of England. 2. That subject, that is not at the time and in the place of his birth inheritable to the laws of England, cannot be inheritable or partaker of the benefits and privileges given by the laws of England: but the plaintiff at the time, and in the place of his birth was not inheritable to the laws of England, (but only to the laws of Scotland;) therefore he is not inheritable or to be partaker of the benefits or privileges of the laws of England. 3. Whatsoever appeareth to be out of the jurisdiction of the laws of England, cannot be tried by the same laws: but the plaintiff’s birth at Edinburgh is out of the jurisdiction of the laws of England; therefore the same cannot be tried by the laws of England. Which three arguments were drawn from these words of the plea, viz. Quodque tempore nativitatis præd’Roberti Calvin, ac diu antea, et continu? postea, præd’ regnum, Scot’ per jura, leges, et statuta ejusdem regni propria, et non per jura, leges, seu statula hujus regni Angl’ regulat’ et gubernat fuit, et adhuc est.

4. Alienigena. From this word alienigena they argued thus: every subject that is alien’ gentis (i, e.) alien’ ligeant’, est alienigena: but such a one is the plaintiff; therefore, &c. And to these nine arguments all that was spoken learnedly and at large by those that argued against the plaintiff may be reduced.

[7-Coke-3 b] But it was resolved by the Lord Chancellor and twelve Judges, viz. the two Chief Justices, the Chief Baron, Justice Fenner, Warberton, Yelverton, Daniel, Williams, Baron Snigge, Baron Altham, Justice Crooke, and Baron Heron, that the

7 Coke Report 4 a, 77 ER p381

plaintiff was no alien, and consequently that he ought to be answered in this assise by the defendants.

This case was as elaborately, substantially, and judicially argued b the Lord Chancellor, and by my brethren the Judges, as I over read or heard of any; and so in mine opinion the weight and consequence of the cause, both in præsenti et perpetuis futuris temporibus justly deserved,: for though it was one of the shortest and least that ever we argued in this Court, yet was it the longest and weightiest that ever was argued in any Court, the shortest in syllables, and the longest in substance; the least for the value (and yet not tending to the right of that least) but the weightiest for the consequent, both for the present, and for all posterity. And therefore it was said, that those that had written de fossilibus did observe, that gold bidden in the bowels of the earth, was in respect of the mass of the whole earth, pram in mango; but of this short plea it might be truly said (which is more strange) that here was magnum in Parco. And in the arguments of those that argued for the plaintiff, I specially noted, that albeit they spake according to their own heart, yet they spake not out of their own bead and invention: wherein they followed the counsel given in God’s book, interroga pristinam generationem (for out of the old fields must come the new corn) et diligenter investiga patrum memoriam, and diligently search out the judgments of our forefathers, and that for divers reasons: first on our own part, Hesterni enim sumus et ignoramus, et vita nostra sicut umbra super terram; for we are but of yesterday, (and therefore had need of the wisdom of those that were before us) and had been ignorant (if we had not received light and knowledge from our forefathers) and our days upon the earth are but as a shadow, in respect of the old ancient days and times past, wherein the laws have been by the wisdom of the most excellent men, in many successions of ages, by long and continual experience, (the trial of right and truth) fined and refined, which no one man, (being of so short a time) albeit he had in his head the wisdom of all the men in the world, in any one age could ever have effected or attained unto. And therefore it is optima regula, qua nulla est verior aut firmior in jure, neminem oportet esse sapientiorem legibus: no man ought to [7-Coke-4 a] take upon him to be wiser than the laws. Secondly, in respect of our forefathers: ipsi (saith the text) docebunt te, et loquentur tibi, et ex corde suo preferent eloquentia, they shall teach thee, and tell thee, and shall utter the words of their heart, without all equivocation or mental reservation; they (I say) that cannot be daunted with fear of any power above them, nor be dazzled with the applause of the popular about them, nor fretted with any discontentment (the matter of opposition and contradiction) within them, but shall speak the words of their heart, without all affection or infection whatsoever.

Also in their arguments of this cause concerning an alien, they told no strange histories, cited no foreign laws, produced no alien precedents, and that for two causes; the one, for that the laws of England are so copious in this point, as, God willing, by the report of this case shall appear; the other, lest their arguments concerning an alien born should become foreign, strange, and an alien to the state of the question, which being quæstio juris concerning freehold and inheritance in England, is only to be decided by the laws of this realm. And albeit I concurred with those that adjudged the plaintiff to be no alien, yet do I find a mere stranger in this case, such a one as the eye of the law (our books and book-cases) never saw, as the ears of the law (our reporters) never heard of, nor the mouth of the law (for judex est lex loquens) the Judges our forefathers of the law never tasted: I say, such a one, as the stomach of the law, our exquisite and perfect records of pleadings, entries, and judgments, (that make equal and true distribution of all cases in question) never digested. In a word, this little plea is a great stranger to the laws of England, as shall manifestly appear by the resolution of this case. And now that I bay taken upon me to make a report of their arguments, I ought to do the same as truly, fully, and sincerely as possibly 1 can. Howbeit, seeing that almost every Judge had in the course of his argument a peculiar method, and I must only hold myself to one, I shall give no just offence to any, if I challenge that which of right is due to every reporter, that is, to reduce the sum and effect of all to such a method, as, upon consideration had of all the arguments, the reporter himself thinketh to be fittest and clearest for the right understanding of the true reasons and causes of the judgment and resolution of the case in question.

7 Coke Report 4 b, 77 ER p382

In this case five things did fall into consideration. 1. Ligeantia. 2. Leges. 3. Regna. 4. Alienigena. 5. Which legal inconveniences would ensue on either side.

[7-Coke-4 b] 1. Concerning ligeance: 1. It was resolved that ligeance was: 2. How many kinds of ligeances there were: 3. Where ligeance was due: 4. To whom it was due: and last, how it was due.

2. For the laws: 1. That ligeance or obedience of the subject to the Sovereign is due by the law of nature: 2. That this law of nature is part of the laws of England:

3. That the law of nature was before any judicial or municipal law in the world:,

4. That the law of nature is immutable, and cannot be changed.

3. As touching the kingdoms, how far forth by the act of law the union is already made, and wherein the kingdoms do yet remain separate and divided.

4. of alienigena, an alien born: 1. What an alien born is in law: 2. The division and diversity of aliens: 3. Incidents to every alien: 4. Authorities in law: 5. Demonstrative conclusions upon the premises, that the plaintiff can be no alien.

5. Upon due consideration had of the consequent of this case: what inconveniences legal should follow on either party.

And these several parts, I will, in this report, pursue in such order as they have been propounded; and, first, de, ligeantia.

1. (a) Ligeance is a true and faithful obedience of the subject due to his Sovereign. – This ligeance and obedience is an incident inseparable to every subject: for as soon as he is born he oweth by birth-right ligeance and obedience to his Sovereign. Ligeantia est vinculum fidei; and ligeantia est quasi legis essentia. Ligeaalia est ligarnentum, quasi ligatio mentium: quia sicut ligamentum est connexio articulorum et juncturarum, &c. As the ligatures or strings do knit together the joints of all the parts of the body, so doth ligeance join together the Sovereign and all his subjects, quasi uno ligamine. Glanville, who wrote in the reign of H. 2. lib. 9. cap. 4. speaking of the connexion which ought to be between the lord and tenant that holdeth by hone saith, that mutua debet esse domini et fide litatis connexion ita quod quantum debet omino ex homagio, tantum illi debet dominus ex dominio, præter solam reverentiam, and the lord, (saith he) ought to defend his tenant. But between the Sovereign and the subject there is without comparison a higher and greater connexion: for as the subject oweth to the King his true and faithful ligeance and obedience, so the Sovereign is to govern and protect his subjects, [7-Coke-5 a] regere et firotegere subditos: so as between the Sovereign and subject there is duplex et reciprocum ligamen; quia sicut subditus regi tenetur ad obedientiam, ita rex subdito tenetur ad protectionem: merito igitur ligeantia dicitur a ligando, quia continet in se duplex ligamen. And therefore it is holden in 20 H. 7. 8. a. that there is a liege or ligeance between the King and the subject. And Fortescue, cap. 13. Rex (b) ad tutelam legis corporum et bonorum subditorum erectus est. And in the Acts of Parliament of IO R. 2. cap. 5. and 11 R. 2. cap. 1. 14 H. 8. cap. 2. &c. subjects are called liege people; and in the Acts of Parliament in 34 H. 8. cap. 1. and 35 H. 8. cap. 3. &c. the King is called the liege lord of his subjects. And with this agreeth M. Skeene in his book De Expositione Verborum, (which book was cited by one of the Judges which argued against the plaintiff) ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him; and he is called their liege lord, because he should maintain and defend them. Whereby it appeareth, that in this point the law of England and of Scotland is all one. Therefore it is truly said that protectio trahit subjectionem, et subjectio protectionem. And hereby it plainly appeareth, that ligeance doth not begin by the oath in the leet; for many men owe true ligeance that never were sworn in a leet, and the swearing in a leet maketh no (c) denization, as the book is adjudged in 14 H. 4. fol. 19. b. This word ligeance is well expressed by divers several names or synonyma which we find in our books. Sometimes it is called the obedience or obeisance of the subject to the King, obedientia

7 Coke Report 5 b, 77 ER p383

Regi, 9 E. 4. 7. b. 9 E. 4. 6. (d) 2 R. 3. 2. a. in the Book of Entries, Ejectione Firm’ 7. 14 H. 6. cap. 2. 22 H. 8. cap. 8. &c. Sometimes he is called a natural liege man that is born under the power of the King, sub potestate Regis, 4 H. 3. (e) tit. Dower. Vide the statute of 11 E. 3. c. 2. Sometimes ligeance is called faith, fides, ad fidem Regis, &c. Bracton, who wrote in the reign of H. 3. lib. 5. Tractat’ de Exception’, cap. 24. fol. 427. Est etiam alia exceptio quæ competit ex person‚ quærenti‚, proper defectum nationis, ut si quis alienigena qui fuit ad fidem Regis Franc’, &c. And Fleta (which book was made in the reign of E. 1.) agreeth therewith; for 1. 6. C. 47. de except’ ex omissione Participis, it is said, vel decere potuit, quod nihil juris clamare poterit tanquam paraticeps eo quod est ad fidem Regis Franciæ, quia alienigenæ repelli debent in Angl’ ab agendo, donec fuerunt ad fidem Reg’ Angl’. Vide 25 E. 3. de natis ultra mare, faith and ligeance of the King of England; and Litt lib. 2. cap. Homage, (b) saving the faith that I owe to our Sovereign Lord the King, and Glanv. 1. 9. c. 1. Salva fide debita, dom’ Regi e- hæredibus suis. Sometimes ligeance is [7-Coke-5 b] called ligealty, 22 Ass pl. 25. By all which it eVidently appeareth, that they that are born under the obedience, power, faith, ligealty, or ligeance of the King, are natural subjects, and no aliens. So, as seeing now it doth appear what ligeance is, it followeth in order, that we speak of the several kinds of ligeance. But herein we need to be very wary, for this caveat the law giveth, ubi lex non distinguit nec nos distinguere debemus; and certainly, lex non distinguit, but where omnia membra dividentia, are to be found out and proved by the law itself.

2. There is found in the law four kinds of ligeances; the first is, ligeantia naturalis, absoluta pura, et indefinite, and this originally is due by nature and birth-right, and is called alta ligeantia, and he that oweth this is called subditus natus. The second is called ligeantia acquisita, not by nature but by acquisition or denization, being called a denizen, or rather donaizon, because he is subditus datus. The third is, ligeantia localis, wrought by the law; and that is when an alien that is in amity cometh into England, because as long as he is within England, he is within the King’s protection; therefore so long as he is here, he oweth unto the King a local obedience or ligeance, for that the one (as it hath been said) draweth the other. The fourth is a legal obedience, or ligeance which is called legal, because the municipal laws of this realm have prescribed the order and form of it; and this to be done upon oath at the torn of the leet. The first, that is, ligeance natural, &c. appeareth by the said Acts of Parliament, wherein the King is called natural liege lord, and his people natural liege subjects; this also doth appear in the indictments of treason (which of all other things are the most curiously and certainly indicted and penned) for in the indictment of the Lord Dacre, in 26 H. 8. it is said præd’ Dominus Dacre debitum fideietligeant suæ, quod præfato, domino Regi naturaliter et de jure impendere debuit, minime curans, &c. And Reginald Pool was indicted in 30 H. 8. for committing treason contradom’ Regem supremum et naturalem dominum suum. And to this end were cited the indictment of Edward Duke of Somerset in 5 E. 6. and many others both of ancient and later times. But in the indictment of treason of John Dethick in 2 and 3 Phil and Mar it is said, quod præd’ Johannes machinans; &c. prædict’ dominum Philippum et dominam Mariam supremos dominos suos, and omitted (naturalis) because King Philip was not his natural liege lord. And of this point more shall be said when we speak of local obedience. The second is ligeant’ acquisita, or denization; and this in the books and records of the law appeareth to be threefold: 1. Absolute, as the common denizations be, to them and their [7-Coke-6 a] heirs, without any limitation or restraint: 2. Limited, as when the King doth grant letters of denization to an alien, and to the heirs (a) males of his body, as it appeareth in 9 E. 4. fol. 7, 8. in Baggot’s case: or to an alien for term of his life, as was granted to J. Reynel, 11 H. 6. 3. It may be granted upon (b) condition, for (c) cujus est dare, ejus est disponere, whereof I have seen divers precedents.

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And this denization of an alien may be effected three manner of way as it was in 3 A. 6. 55. in dower: by letters patent, as the usual conquest, as if the King and his subjects should conquer another kin as well antenati as postnati, as well, they which fought in the field remained at home, for defence of their country, or employed denizens of the kingdom or dominion conquered. of which point hereafter.

3. Concerning the local obedience it is observable, that as there on the King’s part, so there is a (d) local ligeance of the sub this appeareth in 4 Mar. Br. 32. (e) and 3 and 4 Ail and Mar. Dy Frenchman, being in amity with the King, came into England, and subjects of this realm in treason against the King and Queen, a concluded (f) contraligeant’ suæ debitum; for he owed to the King that is, so long as he was within the King’s protection; which Loa but momentary and uncertain, is yet strong enough to make a nat. he hath issue here, that issue is (g) a natural born subject; a fortiori under the natural and absolute ligeance of the King (which, as it alta ligeantia) as the plaintiff in the case in question was, ought to subject; for localis ligeantia, est ligeantia intima et minima, et maxim? incerta. And it is to be observed, that it is nec cælum, nec solum, neither the soil, but ligeantia and obedientia that make the subject born; for come into the realm, and possess town or fort, and have issue the subject to the King of England, though he be born upon his meridian, for that he was not born under the ligeance of a subject protection of the King. And concerning this local obedience, a pre Hilar. 36 Eliz when Stephano Ferrara de Gama, and Emanuel Lewis Tinoco, two Portuguese born, coming to England under Queen Elizabeth’s safe conduct, and living here under her protection, joined with Doctor Lopez in treason within [7-Coke-6 b] this realm against Her Majesty; and in this case two points were resolve First, that their indictment ought to begin, that they intended trea Reginam. &c. omitting these words (naturalem domin suam) and ought (a) ligeant’ suæ debitum. But if an (b) alien enemy come to invade I taken in war, he cannot be indicted of treason (B); for the indict cannot conclude contraligeant suæ debitum, for he never was in the protection of owed any manner of ligeance unto him, but malice and enmity, and be put to death by martial law. And so it was in anno 15 H. 7. i case, who being an alien born in Flanders, feigned himself to be a Edward the Fourth, and invaded this realm with great power, with upon him the dignity Royal: but being taken in the war, it was justices, that he could not be punished by the common law, but be and marshal (who had special commission under the Great Seal to E the same according to martial law) he had sentence to be quartered, which was executed accordingly. And this appearet Griffith Attorney-General, by an extract out of the book of Hobart, to King H. 7.

4. Now are we to speak of legal ligeance, which in our books viz. 7 E. 2. Tit. Avowry 211. 4 E. 3. fol. 42. 13 E. 3. tit. Avowry 120, &c. is called suit Royal,

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because that the ligeance of the subject is only due unto the King. This oath of ligeance appeareth in Britton, who wrote in anno 5 E. 1. cap. 29. (and is yet commonly in use to this day in every leet) and in our books; the effect whereof is: “You shall swear, that from this day forward, you shall be true and faithful to our Sovereign Lord King James and his heirs, and truth and faith shall bear of life and memeber and terrence honour, and you shall neither know nor hear of any ill or damage intended unto him that you shall not defend. So help you Almighty God.” The substance and effect hereof is, as hath been said, due by the law of nature, ex institutione naturæ, as hereafter shall appear: the form and addition of the oath is, ex provisione hominis. In this oath of ligeance five things wre observed. 1. That for the time it is indefinite, and without limit, “from this day forward.” Secondly, two excellent qualities are required, that is, to be “true and faithful.” 3. To whom, “to our Sovereign Lord the King and his heirs:” (and albeit Britton doth say, to the K. of Eng. that is spoken proper excellentiam, to design the person, and not [7-Coke-7 a] to confine the ligeance; for a subject doth not swear his ligeance to the King, only as King of England, and not to him as King of Scotland, or of Ireland, &c. but generally to the King). 4. In what manner; “and faith and troth shall bear, &c. of life and memeber,” that is, until the letting out of th elast drop of our dearest heart’s blood. 5. Where and in what places ought these things to be done, in all places whatsoever, for, “you shall neither know nor hear of any ill or damage, &c.” that you shall not defend, &c. so as natural ligeance is not circumscribed within any place. It is holden 12 H. 7. 18. b. that he that is sworn in the leet, is worn to the King for his ligeance, that is, to be true and faithful to the King; and if he be once sworn for his ligeance, he shall not be sworn again during his life. And all letters patent of denization be, that the patentee shall behave himself tanquam verus et fidelis ligeus domini Regis. And this oath of ligeance at the torn and leet was first instituted by King Arthur; for so I read, Inter leges Sancti Edwardi Regis ante conquestum 3 cap. 35. Et quod omnes principes et comites, proceres, milites et liberi homines debent jurare, &c. in Folkemote, et similiter omnes proceres regni, et milites et liberi homines universi totius regni Britann’ facere debent inpleno Folkemote fidelitatem domino Regi, &c. Hanc legem invenit Arthurus Rex Saracenot et inimicos a regno, &c. et hujus legis authoritate Etheldredus Rex uno et eodem die per universum rregnum Danos occidit. Bide Lambert inter leges Regis Edwardi, * &c. fol. 135 et 136. By this it appeareth, when and from whom this legal ligeance had his first institution within this realm. Ligeantia, in the case in question, is meant and intended of the first kind of ligeance, that is, of ligeance natural, absolute, &c. due by nature and birth-right. But if the plaintiff’s father be made a denizen, and purchase lands in England to him and his heirs, and die seised, this land shall never descend to the plaintiff, for that the King by his letters patent may make a denizen, but cannot naturalize him to allpurposes, as an Act of Parliament may do; neither can letters patent make any inheritable in this case, that by the common law cannot inherit. And herewith agreeth 36 H. 6. tit. Denizen Br. 9.

Homage in our book is two-fold, that is to say, homagium ligeum; and that is as much as ligeance, of which Bracton speaketh, 1. 2. c. 35. f. 79. Soli Regi debet’ sine dominio seu servitio, [7-Coke-7 b] and there is homagium feodale, which hath his original by tenure. In Fitz. Nat. Brev. 269. there is a writ for respiting of this later himage which is due ratione feodi sive tenuræ: sciatis quod respectuamus homagium nobis de terr’ et tenementis quæ tenenter de nobis in capite debit’. But homagium ligeum, i, e. ligeantia, is inherent and inseparable, and cannot be respited.

3. Now are we come to (and almost past) the ocnsideration of this circumstance, where natural ligeance should be due: for by that which hath been said, it appeareth, that ligeance, and faith and truth which are her members and parts, are qualities of the mind and soul of man, and cannot be circumscribed within the predicament of ubi, for that were to confound predicaments, and to go about to drive (an absurd and impossible thing) the predicament of quality into the predicament of ubi. Non respondetur ad hanc quæstionem, ubi est? to say, Berus et fidelis subditus est; sed ad hand quætionem, qualis est? Recte et apte respondetur, verus et fidelis ligeus, &c. est. But yet

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for the greater illustration of the matter, the point was handled by itself, and that ligeance of the subject was of as great an extent and latitude, as the Royal power and protection of the King, et ? converso. It appeareth by the stat. of 11 H. 7. cap. 1. and 2 E. 6. cap. 2. that the subjects of England are bound by their ligeance to go with the King, &c. in his wars, as well within the realm, &c. as without. And therefore we daily see, that when either Ireland, or any other of His Majesty’s dominions, be infested with invasion or insurrection, the King of England sendeth his subject out of England, and his subjects out of Scotland, also into Ireland, for the withstanding or suppressing of the same, to the end his rebels may feel the swords of either nation. And so may his subjects of Guernsey, Jersey, Isle of Man, &c. be commanded to make their swords good against either rebel or enemy, as occasion shall be offered; whereas if natural ligeance of the subjects of England should be local, that is, confined within the realmof England or Scotland, &c. then were not they bound to go out of the ocntinent of the realmof England or Scotland, &c. And the opinion of Thirninge in 7 H. 4. tit. Protect’ 100. is thus to be understood, that an English subject is not compellable to go out of the realm without wages, according to the statutes of 1 E. 3. c. 7. 18 E. 3. c. 8. 18 H. 6. c. 19, &c. 7 H. 7. c. 1. 3 H. 8. c. 5, &c. In ann. 25 E. 1. Bigot Earl of Norfolk and Suffolk, and Earl Marshal of England, and Bohun Earl of Hereford and High constble of England, did exhibit a petition to the King in French which I habe seen anciently recorded) on [7-Coke-8 a] the behalf of the commons of England, concerning how and in what sort they were to be employed in His Majesty’s wars out of the realm of England; and the record saith that, post multas et varias altercationes, it was resolved, they ought to go but in such manner and formas after was declared by the said statutes, which seem to be but declarative of the common law. And this doth plentifully and namifestly appear in our books, being truly and rightly understood. In 3 H. 6. tit. Protection 2. one had the benefit of a ptotection, for that he was sent into the King’s wars in comitiva of the protector; and it appeareth by the record, and by the chronicles also, that this employment was into France; the greatest part thereof then being under the King’s actual obedience, so as the subjects of England were employed into France for the defence and safety thereof: in which case it was observed, that seeing the protector, who was a prorex, went, the same was adjudged a voyage Royal, 8 H. 6. fol. 16. b. the Lord Talbot went with a company of Englishmen into France, then also being for the greatest part under the actual obedience of the King, who had the benefit of their protectins allowed unto them. And here were observed the words of the writ in the Register, fol 88. where it appeareth, that men were employed in the King’s wars out of the realm per præceptum nostrum, and the usual words of the writ of protection be in obsequio nostro. *32 H. 6. fol. 4. a. it appeareth, that Englishmen were pressed into Guyienne. 44 E. 3. 12. a. into Gascoyne with the Duke of Lancaster, 17 H. 6. tit. Protection, into || Gascoyne with the Earl of Huntington, steward of Guienne, 11 and 12 H. 4. 7. into (a) Ireland, and out of this realm with the Duke of Gloucester and the Lord Knolles: vide (b) 19 H. 6. 35. b. And it appeareth in 19 Ed. 2. tit. Avowry 224. 26 Ass. 66. 7 H. 4. 19, &c. that there was forinsecum servitium foreign service, which Bracton, fol. 36. calleth regale servitium; and in Fitz. N. B. 28. that the king may send men to seve him in his wars beyond the sea. But thus much (if it be not in so plain a case too much) shall suffice for this point for the King’s power, to command the sevice of his subjects in his wars out of the realm, whereupon it was concluded, that the ligeance of a natural-born subject was not local, and confined only to England. Now let us see what the law saith in time of peace, concerning the King’s protection and power of command, as well without the realm, as within, that his subjects in all places may be protected from violence, and that justice may equally be administered to all his subjects.

[7-Coke-8 b] In the Register, fol. 25 b. Rex universis et singulis admirall’, castellan’, custodibus

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castrorum, villar’, et aliorum fortalitiorum præpositis, vicecom’ majoribus, custumariis, custodib’ portuum, et alior’ locor’ maritimor’ ballivis, ministr’, et aliis fidel’ suis, tam in transmarinis quam in cismarinis partib’ ad quos, &c. sallutem. Sciatis, quod suscepimus in protectionem et defension’ nostram, necnon ad salvam et securam gardiam nostram W. veniendo in regnum nostrum Angl’, et potestatem nostram, tam per terram quam per mare cum uno valetto suo, ac res ac bona sua quæcunque ad tractand’ cum dilecto nostro et fideli L. pro redemptione prisonarii ipsius L. infra regnum et potestatem nostram præd’ per sex menses morando et exinde ad propria redeundo. Et ideo, &c. quod ipsum W. cum valetto, rebus et bonis suis præd’ veniendo in regn’ et potestat’ nostram præd tam per terr’ quam per mare ibid’ ut prædict’ est ex caus‚ antedict‚ morando, et exinde ad propria redeundo, mauteneatis, protegatis, et defendatis; non inferentes, &c. per sex menses duratur’. T. &c. In which writ three things are to be observed. 1. That the King hath fidem et fideles in partib’ transmarinis. 2. That he hath protection’ in partib’ transmarinis. 3. That he hath potestatem inpartibus transmarinis. In the Register fo. 26. Rex universis et singulis admirallis, castellanis, custodibus castrorum, villaru, et aliorum fortalitionrum præpositis, vicecom majoribus, custumariis, custodib’ portuum, et alior’ locor’ maritimorum ballivis, ministris, et aliis fidelibus suis, tam in transmarinis quam in cismarinis partibus ad quos, &c. salutem. Sciatis quod suscepimus in protectionem et defensionem nostram, necnon in salvum et securum conductum nostr’ I. valettum P. et L. Burgensuim de Lyons obsidum nostrorum, qui de licenti‚ nostr‚ ad partes transmarinas profecturus est, pro finantia magistrorum suorum prædict’ obtinenda vel defenda, eundo ad partes prædictas ibidem morando, et exinde in Angl’ redeundo. Et ideo vobis mandamus, quod eidem I. eundo ad partes præd’ ibidem morando, et exinde in Angl’ redeundo, ut præd’ est, in person‚, bonis, aut revus suis, non inferatis, seu quantum in vobi sest ab aliis inferri permittatis injuriam, molestiam, &c. aut gravamen. Sed eum potius salvum et securm conductum, cum per loca passus, seu districtus vestros transierit, et super hoc requisiti fueritis, suis sumptibus habere faciatis. Et si quid eis forisfactum fuerit, &c. reformari faciatis. In cujus, &c. per tres ann’ durat’ T. &c. And certainly this was, when Lyons in France (bordering upon Burgundy, an ancient friend to England), was under the actual obedience of King Henry VI. For the King commanded fidelibus suis, his faithful magistrates there, [7-Coke-9 a] that if any injury were there done, it should be by them reformed and redressed, and that they should protect the party in his person and goods in peace. In the Register, fol. 26. two other writs: Rex omnibus seneschallis, majoribus, juratis, paribus præpositis, ballivis et fidelibus suis in ducatu Aquitaniæ ad quos, &c. salutem. Quia dilecti nobis T. et A. cives civitat’ Burdegal’ coram nobis in Cancellar’ nost’ Angl’ et Aquitan’ jura sua prosequentes, et metuentes ex verisimilibus conjecturis per quosdam sibi comminantes tam in corpore quam in rebus suis, sibi posse grave damnum inferri, supplicaverunt nobis sibi de protectione regia providere: nos volentes dictos T. et A. ab oppressionibus indebitis præservare, suscepimus ipsos T. et A. res ac justas possessiones et bona sua quæcunque in protectionem et salvam gardiam nostram specialem. Et vobis et cuilibet vestrum injungmus et mandamus, quod ipsos T. et A. familias, res ac bona sua quæcunque a violentiis et gravaminibus indebitits defendatis, et ipsos in justis possessionibussuis manuteneatis. Et si quid in præjudicium hujus protectionis et salvæ gardiæ nost’ attentatum inveneritis, ad statum debitum reducatis. Et ne quis se possit per ignorantiam excusare præsentem protectionem et salvam gardiam nostram faciatis in locis de quibus requisiti fueritis infra district’ vestrum publice intimari, inhibentes imnibus et singulis sub pænis gravibus, ne dictis A. et T. seu famulis suis in personis seu rebus suis, injuriam molestiam, damnum aliquod inferant seu gravamen: et penocellas nostras in locis et bonis ipsorum T. et A. in signum protetionis et sal’ gard’ memorat’, cum super hoc eoquisiti fueritis, apponatis. In cujus, &c. dat’ in palatio nostro Westm’ sub Magni Sigilli testimonio, sexto die Augusti anno 44 E. 3. – Rex universis et singgulis seneschallis, constabular’ castellanis, præposit’, minist’, et omnib’ ballivis et fidelibus suis in dominio nostro Aquitan’ constitutis ad quos, &c. salut’. Volentes G. et R. uxor ejus favore prosequi gratiose, ipsos G. et R. homines et familias suas ac justas possessiones, et bona sua quæcunque, suscepimus in protectionem et defensionem nostram, necnon in salvam gardiam nostram specialem. Et ideo vobis et cuilibet vestrum injungimus et mandamus, quod ipsos G. et R. eorum homines, familias suas, ac justas possessiones et bona sua quæcunque manuteneatis, protegatis, et defendatis: non inferentes eis seu quantum in vobis est ab aliis inferri permittentes, injuriam, molestiam, damnum, vilentiam, impedi-

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mentum aliquod seu gravamen. Et si quid eis forisfact’, injuriatum vel contra eos indebite attentatum fuerit, id eis sine dilatione corrigi, et ad statum debitum reduci faciatis, prout ad vos et quemlibet vestrum noveritis pertinere: penocellas super domibus suis in signum duratur’ T. &c. [7-Coke-9 b] By all which it is manifest, that the protection and government of the King is general over all his dominions and kingdoms, as well in time of peace by justice, as in time of war by the sword, and that all be at his command, and under his obedience. Now seeing poweer and protection draweth ligeance, it followeth, that seeing the King’s power, command, and protection extendeth out of England, that ligeance cannot be local, or confined within the bounds thereof. He that is abjured the realm, Qui abjurat regnum amittit regnum. sed non Regem, amittit patriam, sed non patrem patriæ: for notwithstanding the abjuration, he oweth the King his ligeance, and he remaineth within the King’s protection; for the King may pardon and restore him to his country again. So seeing that ligeance is a quality of the mind, and not confined within any place; it followeth, that the plea that doth confine the ligeance of the plaintiff to the kingom of Scotland, infra ligeantiam Regis reggni sui Scotiæ, et extra ligeantiam Regis regni sui Angliæ, whereby the defendants do make one local ligeance for the natural subjects of England, and another local ligeance for the natural subjects of Scotland, is utterly insufficient, and against the nature and quality of natural lineage, as often it hath been said. And Coke, Chief Justice of the Court of common Pleas, cited a ruled case out of Hingham’s Reports, tempore E. 1. which in his argument he shewed in Court written in parchment, in an ancient hand of that time. Constance de N. brought a writ of ayel against Roger de Cobledike and others. named in the writ, and counted that from the seisin of Roger her grandfather it descended to Gilbert his son, and from Gilbert to Constance, as daughter and heir. Sutton dit, Sir, el ne doit este responde, pur ceo que el est Francois et nient de la ligeance ne a la foy Denglitterre, et demand judgement si el doit action aver: that is, she is not to be answered, for that she is a French woman, and not of the ligeance, nor of the faithof England, and damanded judgment, if she this action ought to have. Bereford (then Chief Justice of the court of Common Pleas) by the rule of the Court disalloweth the plea, for that it was too short, in that it referred ligeance and faith to England, and not to the King: and thereupon Sutton saith as followeth: Sir, nous voilomous averre, que el ne est my de la ligeance Denglitterre, ne a la foy le Roy et demand jugement, et si vous agardes que el doit este responde, nous dirromus assets: that is, Sir, we will aver, that she is not of the ligeance of England, nor of the faith of the King, and demand judgment, &c; [7-Coke-10 a] which latter words of the plea (nor of the faith of the King) referred faith to the King indefinitely and generally, and restrained not the same to England, and thereupon the plea was allowed for good, according to the rule of the Court: for the book saith, that afterward the plaintiff desired leave to depart from her writ. The rule of that case of Cobledike, did (as Coke, Chief Justice, said) over-rule this case of Calvin, in the very point now in question; for that the plea in this case doth not refer faith or ligeance to the King indefinitely and generally, but limiteth and restrainet faith and ligeance to the kingdom:Extra ligeantiam Regis regni sui Angliæ, out of the ligeance of the King of his kingdom of Englan; which afterwards the Lord Chancellor and the Chief Justice of the King’s Bench, having copies of the said ancient report, affirmed in their arguments. So as this point was thus concluded, Quod ligeantia naturalis nullis claustris coercetur nullis metis refrænatur, nullis finibus premitur.

4 and 5. By that which hath been said, it appeareth, that this legeance is due only to the King; so as therein the question is not now, cui, sed quomodo debetur. It is true, that the King hath two capacities in him: one a natural body, being descended of the blood Royal of the realm; and this body is of the creation of Almighty God, and is subject to death, infirmity, and such like; the other is a || politic body or capacity, so called, because it is framed by the policy of man (and in 21 E. 4. 39. b. is called a mysticall body;) and in this capacity the King is esteemed to be immortal, invisible, not subject to death, infirmity, infancy, (a) nonage, &c. Pl. Com. in the case of The

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Lord Barkley, 238. and in the case of The Duchy 213. 6 E. 3. 291. and 26 Ass pl. 54. Now, seeing the King hath but one person, and several capacities, and one politic capacity for the realm of England, and another for the realm of Scotland, it is necessary to be considered, to which capacity ligeance is due. And it was resolved, that it was due to the natural person of the King (which is ever accompanied with the politic capacity, and the politic capacity as it were appropriated to the natural capacity), and it is not due to the politic capacity only, that is, to his Crown or ‘kingdom distinct from his natural capacity, and that for divers reasons. First- every subject (as it hath been affirmed by those that argued against the plaintiff) is presumed by law to be sworn to the King, which is to his natural person, and likewise the King is sworn to his subjects, (as it appeareth in Bracton, lib. 3. de Actionibus, cap. 9. fol. 107) which oath he taketh in his natural [1 0 b] person: for the politic capacity is invisible and immortal; nay, the politic body hath no soul, for it is framed by the policy of man. 2. In all indictments of treason, when any do intend or compass mortem et destructionem domini Regis (which must needs be understood of his natural body, for his politic body is immortal, and not subject to death,) the indictment concludeth, contra (a) ligeantice suæ debitum; ergo, the ligeance is due to the natural body. Vide Fit. Justice of Peace 53. and PI. Corn. 384. in The Earl of Leicester’s case. 3. It is true, that the King in genere dieth not but, no question, in individuo he dieth: as for example, H. 8. E. 6. &c. and Queen Eliz died, otherwise you- should have many Kings at once. In 2 and 3 Ph. and Mar. Dyer 228. (b) one Constable dispersed divers bills in the streets in the night, in which it was written, that King E. 6. was alive, and in France, &c.: and in Coleman-street in London, he pointed to a young man, and said, that he was King Edward the Sixth. And this being spoken de individuo (and accompanied with other circumstances) was resolved to be high treason; for the which Constable was attainted and executed. 4 A (c) body politic (being invisible) can as a body politic neither make or take homage: Vide 33 H. 8. tit. Fealty, Brook 15. 5. In fide, in faith or ligeance nothing ought to be feigned, but ought to be exfidenonficla. 6. The King holdeth the kingdoi of England by birthright inherent, by descent from the blood Royal, whereupon succession doth attend; and therefore it is usually said, to the King, his heirs, and successors, wherein heirs is’ first named, and successors is attendant upon heirs. And yet in our ancient books succession and successor are taken for hereditance and heirs. Bract. U. 2. de Acquirendo Rerum Dominio c. 29. -Et sciend’ est quod hæreditas est successio in universum jus quod defunctus antecessor habuit, ex causd quacunque acquisitionis vel successionis, et alibi affinitatis jure nulla successio permitlitur. But the title is by descent; by Queen Elizabeth’s death the Crown and kingdom of England descended to His Majesty, and he was fully and absolutely thereby King, without any essential, ceremony or act to be done ex postfacto: for coronation is but a Royal ornament and solemnization of the Royal descent, but no part of the title. In the first year of His Majesty’s reign, before His Majesty’s coronation, Watson (d) and Clerk;, se inar inpriests, and others, were of opinion, that His Majesty was no complete and absolute King before his coronation, but that coronation did add a confirmation-and perfection to the descent; and therefore (observe their damnable and damned consequent) that they by (11 a] strength and power might before his coronation take him and his Royal issue into their possession, keep him prisoner in the Tower, remove such counsellors and great officers as pleased them, and constitute others in their places, &c. And that these and other (acts) of like nature could not be treason against His Majesty, before he were a crowned King. But it was clearly resolved by all the Judges of England, that presently by the descent His Majesty was completely and absolutely King, without any essential ceremony or act to be done ex post facto, and that (e) coronation was but a Royal ornament, and outward solemnization of the descent.

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And this appeareth evidently by infinite precedents and book case example in a case so clear for all) King Henry VI. was not crowned u his reign, and yet divers men before his coronation were attain felony, &c. and he was as absolute and complete a King, both for ma as for grants, &c. before his coronation, as he was after, as it appear of 1, 2, 3, 4, 5, 6, and 7 years of the same King. And the like for many other Kings of this realm, which for brevity in a case so which it manifestly appeareth, that by the laws of England there regnum within the same. If the King be seised of land by a d dieth seised, this descent shall toll the entry of him that right by 9 (a) E. 4. 51. But if the next King had it by succession, that no entity, as it appeareth by Littleton, fol. 97. If a disseisor of an land to the King who dieth seised, this descent taketh away the e as it is said in 34 H. 6. fol. 34. (b) 45. lib. Ass pl. 6. Plow. Co case was; K. H. 3. gave a manor to his brother the Earl of Co what time the same was a fee-simple conditional) K. H. 3. died, Statute of Donis Conditional’ (having no issue) by deed exchange warranty for other lands in fee, and died without issue, and assets descended upon his nephew King Edward I; and it was a warranty and assets, which descended upon the natural person of him of the possibility of reverter. In the reign of Ed. 2. the Sp and the son, to cover the treason hatched in their hearts, invented damned opinion, that homage and oath of ligeance was more by re Crown (that is, of his politic capacity) than by reason of the person o upon which opinion they inferred execrable and detestable conseq King do not demean himself by reason in the right of his CroWD, bi by oath to remove the King. 2. Seeing that the King could not b of law that ought to be done by the sword. 3. That his lieges b in aid of him, and in default of him. All which were condemned b one in the reign of Ed. 2. called -Exilium Hugonis le Spencer, and th Ed. 3. c. 1. Bracton, lib. 2. de Acquirendo Rerum Dominio, c. 24. f. enim Corona Regis facere justitiam et judic’,ettenere pacem, et sine quib non potest nee tenere; hujusmodi autem jura sive jurisdictiones ad pers transferri non polerunt, nee a privatd, persond possideri, nee users nee hoc datum fuit ei desuper, sicut jurisdiclio delegata delegari non pole remaneat cum ipso Rege. Et lib. 3. De Actionibus, cap. 9. fol 107. Separare autem debet Rex, cum sit Dei vicarius in terra, jus ab injuria, æquam ab iniquo, ut honeste vivant, et quod nullus alium 16edat, et quod unicuique quod suum contributione reddatur. In respect whereof one saith, that Corona est quasi cor menta sunt misericordia et juslicia. And therefore a King’s Crown of the laws, where justice, &c. is administered; for so saith P. v. Coronam dicimus legis judicium esse, proplerea quod cerlis est vinculis com nostra veluli religata coercetur. Therefore if you take that which is signified by the Crown, that is, to do justice and judgment, to maintain the peace of the land, &c. to separate right from wrong, and the good from the ill: that is to be U capacity of the King, that in rei verilate hath capacity, and is adc wlth endowments as well of the soul as of the body, and thereby and judgment according to right and equity, and to maintain the find out and discern the truth, and not of the invisible and immo hath no such endowments; for of itself it hath neither soul nor b divers books and Acts of Parliament speak of the ligeance of England as 31 E. 3. tit. Cosinage 5. 52 Ed. 3. 2. 13 E. 3. tit. Brief 677. 25 Ed. 3. Stat. de Natis Ultra

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Mare. All these and other speaking briefly in a vulgar manner (for (a) loquendum ut vulgus) and not pleading (for sentiendum ut docti) are to be understood of the ligeance due by the people of England to the King; for no man will affirm, that England itself, taking it for the continent thereof, doth owe any [7-Coke-12 a] ligeance or faith, or that any faith or ligeance should be due to it: but it manifestly appeareth, that the ligeance or faith of the subject is proprium qu arto modo to the King, onmi soli et semper. And oftentimes in the reports of our book cases, and in Acts of Parliament also, the Crown or kingdom is taken for the King himself, as in Fitzh. Natur. Brey fol. 5. Tenure in capite is a tenure of the Crown, and is a seignory in gross, that is of the person (C) of the King: and so is 30 H. 8. Dyer fol. 44, 45. a tenure in chief, as of the Crown, is merely the tenure of the person of the- King and therewith agreeth 28 H. 8. tit. Tenure 65. Br. The statute, of 4 H. 5. cap ultimo gave priors aliens, which were conventual to the King and his heirs, by which gift saith U H. 6. 34. the same were annexed to the Crown. And in the said’Act of 2 Ed. 3. whereas it is said in the beginning, within the ligeance of England, it is twice afterwards said in the said Act within the ligeance of the King, and yet all one ligeance due to the King. So in 42 Ed. 3. fol. 2. where it is first said, the ligeance of England, it is afterwards in the same case called the ligeance of the King; wherein though they used several manner and phrases of speech, yet they intended one and the same ligeance. So in our usual commission of assise, of gaol delivery, of oyer and terminer, of the peace, &c. power is given to execute justice, secundum legem et consuetudinem regni nostri Angliæ; and yet Littleton, lib. 2. in his chapter of Villenage, fol. 43. in disabling of a man that is attainted in a præmunire saith, that the same is the King’s law; and so doth the register in the writ of adjura, regia style the same.

The reasons and cause wherefore by the policy of the law the King is a body politic, are three, viz. 1. causa majestatis, 2. causa necessitates, and 3. causa utililatis. First, causa majestatis, the King cannot give or take but by matter of record for the dignity of his person. Secondly, causa necessitalis, as to avoid the (a) attainder of him that hath right to the crowd, as it appeareth in 1 H. 7. 4. lest in the interim there should be an (b) interregnum, which the law will not suffer. Also by force of this politic capacity, though the (c) King be within age, yet may he make leases and other grants (D), and the same shall bind him; otherwise his revenue should decay, and the King should not be able to reward service, &c. Lastly, causa utilitatis, as when lands and possessions descend from his collateral ancestors, being subjects, as from the Earl [7-Coke-12 b] of March, &c. to the King, now is the King seised of the same injure Coronæ, in his politic capacity; for which cause the same shall go with the Crown; and there, albeit Queen Elizabeth was of the half blood to Queen Mary, yet she in her body politic enjoyed all those fee-simple lands, as by the law she ought, and no collateral cousin of the whole blood to Queen Mary ought to have the same. And these are the causes wherefore by the policy of the law the King is made a body politic: so as for these special purposes the law make him a body politic, immortal and invisible, whereunto our liegance cannot appertain. But to conclude this point, our liegance is to our natural liege Sovereign, descended of the blood royal of the Kings of this realm. And thus much of this general part de ligeantid, now followeth the Second Part, De Legibus, wherein these parts were considered first that the ligeance or faith of the subject is due unto the King by the law of nature: secondly, that the law of nature is part of the law of England: thirdly, that

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the law of nature was before any judicial or municipal law: fourthly nature is immutable.

The law of nature is that which God at the time of creation of infused into his heart, for his preservation and direction; and this is lex æterna, the moral law, called also the law of nature. And by this law, written God in the heart of man, were the people of God a long time gone law was written by Moses, who was the first reporter or writer of The Apostle in the second chapter to the Romans saith, Cum enim gentes quæ elegem non habent naturaliter ea quæ legissunt faciunt. And this is within the moral law, honora patrem, which doubtless doth extend to him that is pater patriæ. And these be the words of the Great Divine, Hoc Deus in Sacris Scripturis jubet, hoc ut quilibet subditus obediat superior and Aristotle, nature’s secretary, lib. 1. Cap. 5. that jus naturale est, quod apud omnes homines eandem habet potentiam. agree Bracton, lib. 1. cap. 5. and Fortescue, cap. 8. 12. 13. and Student, cap. 2. and 4. And the reason hereof is, for that God a [7-Coke-13 a] to all, and therefore the law of God and nature is one to al nature is the faith, ligeance, and obedience of the subject due to superior. And Aristotle 1. Politicorum proveth, that to command nature, and that magistracy is of nature: for whatsoever is necessary for the preservation of the society of man is due by the law of nature and government are necessary and profitable for the preservation man; therefore magistracy and government are of nature. And erewith accordeth Tully, lib. 3. De legibus, sine imperio nee domus ulla, nec civilas, nec universum genus stare, nec ipse denique mundus potest. This law indeed is the eternal law of the Creator, infused into the heart of the time of his creation, was two thousand years before any laws written judicial or municipal laws. And certain it is, that before judicial were made, Kings did decide causes according to natural equity, an any rule or formality of law, but did dare Jura. And this appeareth by Fortescue, cap. 12 and 13. and by Virgil that philosophical poet, 7th Aeneid.

Hoc Priami gestamen erat, cumjura, vocatis

More claret populism

And 5th AEneid.

- Gandet regno Trojanus Acestes, Indicitlue forum et partibus dat jura vocatis.

And Pomponius, lib. 2. cap. De Origine Juris, affirmeth the Superbus’s time there was no civil law written, and that Papirius observations into writing, which was called Jus Civile Papirianum wherefore laws were made and published, appeareth in Fortescue, Tully, lib. 2. officiorum: at cum jus æquabile ab uno viro homines non consequerentur, inventi sunt leges. Now it appeareth by demonstrative reason faith, and obedience of the subject to the Sovereign, was before judicial laws. 1. For that government and subjection were long before any municipal or judicial laws. 2. For that it had been in vain to have prescribed to such as owed obedience, faith, and ligeance before, in respect w’ bound to obey and observe them: Frustra, enim [7-Coke-13 b] feruntur leges nisi subditis et obedientibus. Seeing then that faith, obedience, and ligeance are due by the law of nature, it followeth that the same cannot be changed or taken away; or municipal laws have inflicted and imposed in several places, or divers and several punishments and penalties, for breach or not observance of the law of nature, (for that law only consisted in commanding or prohibit certain punishment or penalty), yet the very law of nature itself never was nor could be (a) altered or changed. And therefore it is certainly true, that (b) jura naturalia

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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 (e) by reason of a seigniory, 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, be doth not (a) forfeit this wardship; 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 communes patrem, qui est pater patriæ. In the same manner, maris et fæminæ 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 (F), for he must bring his appeal as heir, which being ex provisione hominis, he loseth it by the attainder of his father; but his (b) wife (if any he have) shall have an appeal, because she is to have her appeal as wife, which she remaineth notwithstanding the attainder, because maris et fæminæ 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, parricide 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 [7-Coke-14 a] protection which by the law of nature is given to this King, for that is indelebitis 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 premunire, 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 1w 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. utlagatis est quasi extra legem positus: and Bract. 1. 3. tract. 2. c. 11. saith, that ea put 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 Kin 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

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our laws be in this matter. Wherefore to conclude this point (and to exclude all that hath been or could be objected against it) if the obedience and ligeance of the subject to his sovereign be due by the law of nature, if that law be parcel of the laws, as well of England, as of all other nations, and is immutable, and that postnati and we of England are united by birthright, [7-Coke-14 b] in obedience and ligeance (which is the true cause of natural subjection) by the law of nature; it followeth that Calvin the plaintiff being born under one ligeance to one King, cannot be an alien born; and there is great reason, that the law of nature should direct this case, wherein five natural operations are remarkable: first the King hath the Crown of England by birthright; being naturally procreated of the blood royal of this realm: secondly, Calvin the plaintiff naturalized by procreation and birth-right, since the descent of the Crown of England: thirdly, ligeance and obedience of the subject to the sovereign, due by the law of nature: fourthly, protection and government due by the law of nature: fifthly, this case, in the opinion of divers, was more doubtful in the beginning, but the further it proceeded, the clearer and stronger it grew; and therefore the doubt grew from some violent passion, and not from any reason grounded upon the law of nature, quia quanto magis violentus motus (qui fit contranaturam) appropinquat ad suum finem, tanto debiliores et tardiores sunt ejus motus; sed naturalis motus, quanto magis approprinquat ad suum finem, tanto fortiores et velociores sunt ejus motus. Hereby it appeareth how weak the objection grounded upon the rule of (a) quanto du jura concurrunt in, und, persond, &c. is: for that rule holdeth not in personal things, that is, when two persons are necessarily and inevitably required by law, as in the case of an alien born there is; and therefore no man will say that now the King of England can make war or league with the King of Scotland, et sic de cæteris; and so in case of an alien born, you must of necessity have two several ligeances to two several persons. And to conclude this point concerning laws, non adservatur diversitas regnor sed regnant’, nonpatriarum, sed patrum patriar’, non coronarum, sed coronatorum, non regum municipalium, sed regum majestatum. And therefore thus were directly and clearly answered as well the objections drawn from the severalty of the kingdoms, seeing there is but one head of both, and the postnati and us joined in ligeance to that one head, which is copula et tanquam oculus of this case; as also the distinction of the laws, seeing that ligeance of the subjects of both kingdoms, is due to their sovereign by one law, and that is the law of nature.

For the third, it is first to be understood, that as the law hath wrought four unions, so the law doth still make four separations: The first union is of both kingdoms under one natural liege Sovereign King, and so acknowledged by the Act of [7-Coke-15 a] Parliament of recognition. The 2d. is an union of ligeance and obedience of the subjects of both kingdoms, due by the law of nature to their sovereign: and this union doth suffice to rule and overrule the case in question: and this in substance is but a uniting of the hearts of the subjects of both kingdoms one to another, under one head and sovereign. The 3d. union is an union of protection of both kingdoms, equally belonging to the subjects of either of them: and therefore the two first arguments or objections drawn from two supposed several ligeances were fallacious, for they did disjungere conjungenda. The 4th union and conjunction is of the three lions of England, and that one of Scotland, united and quartered in one escutcheon.

Concerning the separations yet remaining: 1. England and Scotland remain several and distinct kingdoms. 2. They are governed by several judicial or municipal laws. 3. They have several distinct and separate Parliaments. 4. Each kingdom hath several nobilities: for albeit a postnatus in Scotland, or any of his posterity, be the heir of a nobleman of Scotland, and by his birth is legitimated in England, yet he is none of the (a) peers or nobility of England; for his natural ligeance and obedience, due by the law of nature, maketh him a subject and no alien within England: but that subjection maketh him not noble within England; for that nobility had his original by the King’s creation, and not of nature. And this is manifested by express authorities, grounded upon excellent reasons in our books. If

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baron, viscount, earl, marquis, or duke of England, bring any action, real or personal, and the defendant pleadeth in abatement of the writ that he is no baron, viscount, earl, &c. and thereupon the demandant or plaintiff taketh issue; this issue shall not be tried by jury, but by the (a) record (G) of Parliament, whether he or his ancestor, whose heir he is, were called to serve there as a peer, and one of the nobility of the realm. And so are our books adjudged in 22 Ass. 24-. 48 Edw. 3. 30. 35 H. 6. 40. 20 Eliz. Dyer. 360. Vide in the Sixth Part of my Reports, in The Countess of Rutland’s case. So as the man, that is not de jure a peer, or one of the nobility, to serve in the Upper House of the Parliament of England, is not in the legal proceedings of law accounted noble within England. And therefore if a countee of France or Spain, or any other foreign kingdom, should come into England, he should not here sue, or be sued by the name of countee, &c. for that he is none of the nobles that are members of the [7-Coke-15 b] Upper House of the Parliament of England; and herewith agree the book-cases of (b) 20 Ed. 4. 6. a. b. and I1 Ed. 3. tit. Bre. 473. like law it is, and for the same reason, of an earl or baron of Ireland, he is not any peer, or of the nobility of this realm: and herewith agreeth the book in 8 R. tit. (c) Proces pl. Ultim’; where in an action of debt, process of outlawry was awarded against the Earl of Ormond in Ireland; which ought not to have been, if he had been noble here. Vide Dyer (d) 20 Eliz. 360.

But yet there is a diversity in our books worthy of observation; for the highest and lowest dignities are universal: for if a King of a foreign nation come into England, by the leave of the King of this realm (as it ought to be) in this case he shall sue and be sued by the name of a King; and herewith agreeth 11 E. 3. tit. Br. (e) 473. where the case was, that Alice, which was the wife of R. de 0. brought a writ of dower against John Earl of Richmond, and the writ was  præcip. Johann’ Comiti Richmondite custodi terr’ et hæredis of William the son of R. de. 0. the tenant pleaded that he is duke of Britain, not named duke, judgment of the writ? But it is ruled that the writ was good; for that the dukedom of Britain was not within the realm of England. But there it is said, that if a man bring a writ against Edward (f) Baliol, and name him not King of Scotland, the writ shall abate for the cause aforesaid. And hereof there is a notable precedent in Fleta, lib. 2. cap. 3. see. 9. where treating of the jurisdiction of the King’s Court of Marshalsea it is said et hæc omnia ex officio’ suo licite facere poterit (ss seneschal’ aul’ hospitii Regis) non obstante alicujus libertate, etiam in alieno regno dum tamen reus in hospitio Regis poterit inveniri secundum quod contigit Paris. anno 14 Ed. 1. de Engelramo de Nogent capto in hospitio Regi 3 Angl’ (ipso rege tunc apud Parisiam existente) cum discis argenti furatis recenter su er facto, rege Franc’ tunc presentee et unde licet Curia Regis Franc’ de præd’ latrone per castellanum, Paris petita fuerit, habitis hinc et inde tractatibus in Consilio Regis Franc’, tandem consideratumfitit; quod Rex Angl’ illa regia prærogativa, et hospitii sui privilegio uteretur, et ganderet, qui coram Roberto Fitz-John milite tunc hospitii Regis Angl’ seneschallo de latrocinio convidus, per considerationem, ejus cur, fuit (a) suspensus in patibulo sancti Germani de pratis. Which proveth, that though the King be in a foreign kingdom, yet he is judged in law a King there. The other part of the said diversity is proved by the book-ease in 20 (b) E. 4. fol. 6. a. b. where, in a writ of debt brought by Sir J. Douglas, Knight, against Elizabeth Molford, the defendant, demanded judgment of the writ; for that [7-Coke-16 a] the plaintiff was an earl of Scotland (H), but not of England; and that our

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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 be) 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 art 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 be received that degree of dignity. Vide (c) 7 H. 6. 14 b. 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 (d) 11 Ed. 3. 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 ligeantice, qui etiam [7-Coke-16 b] dicitur peregrinus, alienus, exoticus, extraneos, &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 be 1s. 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 (a) 9 Ed. 4. 7. b. Book of Entries, fol. 244, &c. 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 ligeantiam, 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 (b) Canutus the Danish King, 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

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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 [7-Coke-17 a] Canutu’s 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 propinqua nostri fuit particeps legum et consuetudinem Anglorum (that is made denize”) 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 (a)        goods personal whatsoever, as well as an Englishman, and may maintain any (b) action for the same: but (c) but lands within this realm, 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 (d) inimici, 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 [7-Coke-17 b] hostility, and can be no (a) peace; 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 serviat 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 (I).

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

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Christian King, and the conquest of a kingdom of an infidel; for if a King come to a Christian kingdom by conquest, seeing that he hath vilæ et necis potestatem, he may at his pleasure alter and change the laws of that kingdom: but until be doth make an alteration of those laws the ancient laws of that kingdom remain (K). But if a Christian King should conquer a kingdom of an infidel, and bring them under his subjection, there ipso facto the laws of the infidel are abrogated, for that they be not only against Christianity, but against the law of God and of nature, contained in the decalogue; and in that case, until certain laws be established amongst them, the King by himself, and such Judges as he shall appoint, shall judge them and their causes according to natural equity, in such sort as Kings in ancient time did with their kingdoms, before any certain municipal laws were given, as before hath been said. But if a King hath a kingdom by title of descent, there seeing by the laws of that kingdom he doth inherit the kingdom, he cannot change those laws of himself, without consent of Parliament. Also if a King hath a Christian kingdom by conquest, as King Henry the Second had Ireland, after King John had given unto them, being under his obedience and subjection, the laws of England for the government of that country, no succeeding King could alter the same without Parliament. And in that case, while the realm of England, and that of Ireland were governed by several laws, any that was born in Ireland was no alien to the realm of England. In which precedent of Ireland three things are to be observed. 1. That then there had been two descents, one from Henry the Second to King Richard the First, and from Richard to King John, before the alteration of the laws. 2. That albeit Ireland was a distinct, dominion, yet the title thereof being by conquest, the same by judgment of law might by express words be bound by Act of the Parliament of England. 3. That albeit no[7-Coke-18 a] reservation were in King John’s charter, yet by judgment of law a writ of error did lie in the King’s Bench in England of an erroneous Judgment in the King’s Bench of Ireland. Furthermore, in the case of a conquest of Christian kingdom, as well those that served in wars at the conquest as those that remained at home for the safety and peace of their country, and other the King’s subjects, as well antenati as postnati, are capable of lands in the kingdom or country conquered, and may maintain any real action, and have the like privileges and benefits there, as they may have in England.

The third kind of enemy is, inimicus permissus, an enemy that cometh into the realm by the King’s safe conduct, of which you may read in the Register, fol. 25. Book of Entries, Ejectione Firmæ, 7, 32 H. 6. 23. b. &c. Now what a subject born is, appeareth at large by that which hath been said de ligeantia: and so likewise de

(K)        Memorandum 9th of August, 1722, it was said by the Master of the Rolls to have been determined by the Lords of the Privy Council, upon an appeal to the King in Council from the foreign plantations:-

1st. That if there be a new and uninhabited country found out by English subjects, as the law is the birthright of every subject, so wherever they go, they carry their law with them, and therefore such new found country is to be governed by the laws of England, though after such country is inhabiter by the English, Acts of Parliament made in England, without naming the foreign plantations, will not bind them; for which reason it has been determined that the Statute of Frauds and Perjuries, which requires three witnesses, and that these should subscribe in the testator’s presence in the case of a devise of a. land, does not bind Barbadoes: but that

2ndly. Where the King of England conquers a country, it is a different consideration; for there the conqueror, by saving the lives of the people conquered, gains a right and- property in such people, in consequence of which he may impose upon them what law be pleases: but

3dly. Until such laws given by the conquering prince, the laws and customs of the conquered country shall hold place, unless where these are contrary to our religion, or enact any thing that is malum in se, or are silent; for in all such cases the laws of the conquering Country shall prevail. 2 Peere Williams, 75. et Vid. Collett v Lord Keith, 2 East 260. Blankard v Galdy, 4 Mod. 225. SC.2 Salk. 411. Attorney-General v. Stewart, 2 Meriv. 159.

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subdito dato, of a donaison: for that is the right name, so called, because his legitimation is given unto him; for if you derive denizen from deins nee, one born within the obedience or ligeance of the King, then such a one should be all one with a naturalborn subject. And it appeareth before out of the laws of King W. 1. of what antiquity the making of denizens by the King of England hath been.

3. There be regularly (unless it be in special cases) three incidents to a subject born. 1. That the parents be under the actual obedience of the King. 2. That the place of his birth be within the King’s dominion. And, 3. The time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom that was born under the ligeance of a King of another kingdom, albeit afterwards one kingdom descend to the King of the other. For the first, it is termed actual obedience, because, though the King f’ England hath absolute right to other kingdoms or dominions, as France, Aquitai, Normandy, &c. yet seeing the King is not in actual possession thereof, none born there since the Crown of England was out of actual possession thereof, are subjects to the King of England. 2. The place is observable, but so as many times ligeance or obedience without any place within the King’s dominions may make a subject born, but any place within the King’s dominions may make a subject born, but any place within the King’s dominions without obedience can never produce a natural subject. And therefore if any of the King’s ambassadors in foreign nations, have children there of their wives, being English women, by the common laws of England they are natural-born subjects, and yet they are born out-of the King’s dominions. But if enemies should come into any of the King’s dominions, and surprise any castle or fort, and [7-Coke-18 b] possess the same by hostility, and have issue there, that issue is no subject to the King, though he be born within his dominions, for that he was not born under the King’s ligeance or obedience. But the time of his (a) birth is of the essence of a subject born; for he cannot be a subject to the King of England, unless at the time of his birth he was under the ligeance and obedience of the King. And that is the reason that antenati in Scotland (for that at the time of their birth they were under the ligeance and obedience, of another King) are aliens born, in respect of the time of their birth.

4. It followeth next in course to set down the reasons wherefore an alien born is not capable of inheritance within England, and that he is not for three reasons. 1. The secrets of the realm might thereby be discovered. 2. The revenues of the realm (the sinews of war, and ornament of peace,) should be taken and enjoyed by strangers born. 3. It should tend to the destruction of the realm. Which three reasons do appear in the statute of 2 H. 5. cap and 4 H. 5. cap ultimo. But it may be demanded, wherein doth that destruction consist; whereunto it is answered; first, it tends to destruction tempore belli; for then strangers might fortify themselves in the heart of the realm, and be ready to set fire on the commonwealth, as was excellently shadowed by the Trojan horse in Virgil’s Second Book of his Aneid, where a very few men in the heart of the city did more mischief in a few hours, than ten thousand men without the walls in ten years. Secondly tempore pacis for so might many aliens born get a great part of the inheritance and freehold of the realm, whereof there should follow a failure of justice (the supporter of the commonwealth) for that aliens born cannot be returned of juries (a) for the trial of issues between the King and the subject, or between subject and subject. And for this purpose, and many other, (see a charter worthy of observation) of King Ed. 3. written to Pope Clement, datum apud Westm 26. die Sept. ann regni nostri Franciæ 4 regni vero Angliæ 17.

5. Now are we to come to the examples, resolutions, and judgments of former times; wherein two things are to be observed, first, how many cases in our books do over-rule this case in question for ubi (b) eadem ratio ibi idem jus, et de similibus idem est judicium. 2. That for want of an express text of law in terminis terminantibus and of examples and precedents in like cases (as was objected by some) we are driven to determine the question by natural reason: for it was said, si cesset lex scripta id custodiri [7-Coke-19 a] oportet quod moribus et consuetudine inductum est, et si qua in re hoc de cerit, recur-

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rendum est ad rationem. But that receiveth a threefold answer: – First, That there is no such rule in the common or civil law: but the true rule of the civil law is, lex scripta si cesser, id custodiri oporlet quod moribus et consuetudine inductum est, et si qua in re hoc defecerit, tune id quod proximum et consequens ei est, et si id non appareat, tunc jus quo urbs Romana utitur, servari oportel.’ Secondly, If the said imaginative rule be rightly and legally understood, it may stand for truth: for if you intend ratio for the legal and profound reason of such as by diligent study and long experience and observation are so learned in the laws of this realm, as out of the reason of the same they can rule the case in question, in that sense the said rule is true: but if it be intended of the reason of the wisest man that professeth not the laws of England, then (I say) the rule is absurd and dangerous; for (a) cuilibet in suit, arte perito est credendum et quod quisque (b) norit in hoc se exerceat. Et omnes, prudentes illa admittere solent uce, probantur iis qui in suæ parle bene versati sunt, Arist. 1. Topicorum cap. 6. Thirdly there be multitudes of examples, precedents, judgments, and resolutions in the laws of England, the true and unstrained reason whereof doth decide this question; for example the dukedom of Acquitain, whereof Gascoign was parcel, and the earldom of Poitiers, came to King Henry the Second by the marriage of Eleanor, daughter and heir of William Duke of Acquitain, and Earl of Poitiers, which descended to Rich. I. Hen. 3. Ed. I. Ed. 2. Ed. 3. &c. In 27 lib. (c) Ass pl. 48. in one case there appear two judgments and one resolution to be given by the Judges of both Benches in this case following. The possessions of the Prior of Chelsey in the time of war were seised into the Kin-’s hands, for that the prior was an alien born: the prior by petition of right sued to the King, and the effect of his petition was, that before he came Prior of Chelsey, he was Prior of Andover, and whilst he was prior there, his possessions of that priory were likewise seised for the same cause supposing that he was an alien born; whereupon he sued a former petition, and alleged that he was born in Gascoign within the ligeance of the King: which point being put in issue and found by jury to be true, it was adjudged that he should have restitution of his possessions generally without mentioning of advowsons. After which restitution, one of the [7-Coke-19 b] said advowsons became void, the prior presented, against whom the King brought a quare impedit, wherein the King was barred; and NI this was contained in the latter petition. And the book saith, that the Earl of Arundel, and Sir Guy of B. came into the Court of Common Pleas, and demanded the opinion of the Judges of that Court concerning the said case, who resolved, that upon the matter aforesaid the King had no right to seize. In which case, amongst many notable points, this one appeareth to be adjudged and resolved, that a man born in Gascoin under the King’s ligeance, was no alien born, as to lands land possessions within the realm of England, and yet England and Gascoin were several and distinct countries. 2. Inherited by several and distinct titles. 3. Governed by several and distinct municipal laws, as it appeareth amongst the records in the Tower, Rot. Vasc. 10. Ed. 1. Nam. 7. 4. Out of the extent of the Great Seal of England, and the jurisdiction of the Chancery of England. 5. The like objection might be made for default of trial, as hath been made against the plaintiff And where it was said that Gascoin was no kingdom, and therefore it was not to be matched to the case in hand, it was answered, that this difference was without a diversity as to the case in question; for if the plea in the case at the Bar be good, then without question the prior had been an alien; for it might have been said, (as it is in the case at the Bar) that he was born extra ligeantiam Regis regni sui Angliæ, et infra ligeantiam dominii sui Vasconice, and that they were several dominions, and governed by several laws: but then such a conceit was not hatched, that a King having several dominions should have several ligeances of his subjects. Secondly, it was answered, that Gascoin was sometime a kingdom, and likewise Millan, Burgundy, Bavaria, Bretagne, and others were, and now are become, dukedoms. Castile, Arragon, Portugal, Barcelona, &c. were sometime earldoms, afterwards dukedoms, and now kingdoms. Bohemia and Poland were

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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; [7-Coke-20 a] ergo Gascoin is no parcel or member of England, for exilium est patrice privatio, natalis soli, mutation 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 (a) Bordeaux, (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 mandatoriae tremedialia, etbrevia 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. [7-Coke-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 archbishopries, 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 (a) 27 lib. Ass. 48.

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 e. 12. that they were inheritable to, and capable of lands in England; for te purview of that statute is quod Rex habebit escaelas 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,

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that they were capable of lands within England by descent. And that this Act of 17 E. 2. was but a declaration of the common law, it appeareth both by Bracton who (as it hath been said) wrote in the reign of Henry the Third, lib. 3. tract. 2. c. 1. f. 116. and by Britton who wrote in 5 E. T. c. 18. that all such lands as any Norman had either by descent or purchase, escheated to the King for their treason, in revolting from their natural liege lord and sovereign. And therefore Stamford Prærog cap. 12. fol. 39. expounding the said statute of 17 E. 2. cap. 12. concludeth, that by that chapter it should appear (as, if he had said, it is apparent without question) that all men born in Normandy, Gascoin, Guienne, Anjou, and Britain, (whilst they were under actual disobedience) were inheritable within this realm as well as Englishmen. And the reason thereof was, for that the were one ligeance due to one sovereign * And so much (Omitting nine other authorities) for Normandy: saving I cannot let pass the isles of Guernsey and Jersey, parts and parcels of the dukedom of Normandy, yet remaining under the actual ligeance and obedience of the King, I think no man will doubt, but those that are [7-Coke-21 a] born in Guernsey and Jersey (though those isles are no parcel of the realm of England, but several dominions enjoyed by several titles, governed by several laws) are inheritable, and capable of any lands within the realm of England, 1 E. 3. fol. 7. Commission to determine the title of lands within the said isles, according to the laws of the isles; and Mich. 41 E. 3. in the Treasury, Quia negotium, præd’ nec aliqua alia negotia de insul‚, præd’ emergentia non debent terminari nisi secundum legem insulæ præd’,&c. And the Register fol. 22. Rex fidelibus suis de Jernsey et Gersey. King William the First brought this dukedom of Normandy with him, which by five descents continued under the actual obedience of the Kings of England; and in or about the 6th year of King John, the Crown of England lost the actual possession thereof, until King Henry the Fifth recovered it again, and left it to King Henry the Sixth, who lost it in the 28th of his reign; wherein were (as some write) one archbishopric and six bishoprics, and an hundred strong towns and fortresses, besides those that were wasted in war. Maud the Empress, the only daughter and heir of Henry the First, took to her second husband Jeffrey Plantagenet, Earl of Anjou, Tourain, and Mayne, who had issue King H. 2. to whom the said earldom by just title descended, who, and the Kings that succeeded him, stiled themselves by the name of comes Andeguv’, &c. until King E.3. became King of all France; and such as were born within that earldom, so long as it was under the actual obedience of the King of England, were no aliens, but natural-born subjects; and never any offer made, that we can find, to disable them for foreign birth. But leave we Normandy and Anjou, and speak we of the little, but yet ancient and absolute kingdom of the Isle of Man *, as it appeareth by diverse ancient and authentic records; as taking one for many. Artold King of Man sued to King H. 3. to come into England to confer with him, and to perform certain things which were due to King H. 3. Thereupon King H. 3. 21 Decemb ann regn sui 34, at Winchester, by his letters patent’ gave licence to Artold King of Man, as followeth: Rex omnibus salutem. Sciatis, quod licentiam, dedimus, &c. Artoldo Regi de Man veniendo ad nos in, Angl’, ad loquend’ nobise’ et ad faciend’ nobis quod facere debet; et ideo vobis mandamus quod ei Regi in veniendo ad nos iu Angl’, vel ibi morando, vel inde redeundo nullum, faciat’ ant fieri permittatis damnum, injur’, molestiam, aut gravamen, vel etiam hominib’ suis quos secure ducet et si aliquid eis forisfact’ fuerit, id eis sine dilat faciat’ emendari. – In cujus, &c. duratur’ usque ad fast’ S. Mich. Wherein [7-Coke-21 b] two things are to be observed; 1. That seeing that Artold King of Man sued for a licence in this case to the King, it proveth him an absolute Kizig’; for that a monarch or an absolute prince cannot come into England without licence of the King, but any subject being in league, may come into this realm without licence. 2. That the King in his licence doth style him by the name of a king. It was resolved in 11 H. 8. that where an office was found after the decease of Thomas Earl of Derby, and that he died seised,

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&c. of the Isle of Man, that the said office was utterly void , for that the Isle of Man, Normandy, Gascoign, &c. were out of the power of the Chancery, and governed by several laws; and yet none will doubt, but those that are born within that isle are capable and inheritable of lands within the realm of England. Wales* was some time a kingdom, as it appeareth by 19 H. 6. fol. 6. and by the Act of Parliament of 2 H. 5. c. 6. but whilst it was a kingdom, the same was holden, and within the fee, of the King of England; and this appeareth by our books, Fleta, lib. I. cap. 16. 1 E. 3. 14. 8 E. 3. 59. 13 E. 3. tit. Jurisdict’. 10 H. 4. 6. Plow. Com. 368. And in this respect in divers ancient charters, Kings of old time styled themselves in several manners, as King Edgar, Britanniæ Ba(mXcy Etheldredus, totius Albio,’Dei providenti‚ Imperator; -Edredus Magn’ Britann’ Monarcha, Which among many other of like nature I have seen. But by the statute of 12 E. 1. Wales was united and incorporated into England, and parcel of England in possession; and therefore it is ruled in 7 H. 4. f. 13. a. that no protection doth lie quia moratur in Wallia, because Wales is within the realm of England . And where it is recited in the Act of 27 H. 8. that Wales was ever parcel of the realm of England, it is true in this sense, viz. that before 12 E. 1. it was parcel in tenure, and since it is parcel of the body of the realm. And whosoever is born within the fee of the King of England, though it be in another kingdom, is a natural-born subject, and capable and inheritable of lands in England, as it appeareth in Plow. Com. 126. And therefore those that were born in Wales before 12 E. 1. whilst it was only holden of England, were capable and inheritable of lands in England.

Now come we to France and the members thereof, as Callice, Guynes, Tournay, &c. which descended to King Edward the Third, as son and heir to Isabel, daughter and heir to Philip le Beau, King of France. Certain it is, whilst [7-Coke-22 a] King Henry the Sixth had both England and the heart and greatest part of France under his actual ligeance and obedience (for he was crowned King of France in Paris), that they that were then born in those parts of France, that were under actual ligeance and obedience, were no aliens, but capable of and inheritable to lands in England. And that is proved by the writs in the register, fol. 26. cited before. But in the inrolment of letters patent of denization in the Exchequer, int’ originalia, ann. 11 H. 6. with the Lord Treasurer’s remembrancer was strongly urged and objected; for (it was said) thereby it appeareth, that King H. 6. in anno ” of his reign, did make denizen one Reynel born in France; whereunto it was, answered, that it is proved by the said letters patent, that he was born in France before King Henry the Sixth had the actual possession of the Crown of France, so as he was antenatus; and this appeareth by the said letters patent whereby the King granteth, that Magister Johannes Beynel serviens noster, &c. infra regnum nostrum Franc’ oriundus pro termino vilæ suæ sit ligeus noster, et eodem modo teneatur sicut verus et fidelis noster infra regnum Angl’ oriundus, ac quod ipse terras infra regnum nostrum. Angl’ seu alia dominia nostra per quirere possit et valeat. Now if that Reynel had been born since Henry the Sixth had the quiet possession of France (the King being crowned King of France about one year before), of necessity be must be an infant of very tender age, and then the King would never have called him his servant, nor made the patent (as thereby may be collected) for his service, nor have called him by the name of Magister Johannes Beynel: but without question he was antenatus, born before the King had the actual and real possession of that Crown.

Calais is a part of the kingdom of France, and never was parcel of the kingdom of England, and the Kings of England enjoyed Calais * in and from the reign of King Edward the Third, until the loss thereof in Queen Mary’s time, by the same title that they had to France. And it is evident by our books, that those that were born in Calais were capable and inheritable to lands in England, 42 E. 3. c. 10. Vide 21 H. 7.

7 Coke Report 22 b, 77 ER p404

33. b. 19 H. 6. 2 E. 4. 1. a. b. 39 H. 6. 39 a. 21 E. 4. 18 a. 28 H. 6. 3 b. By all which it is manifest, that Calais being parcel of France was under the actual obedience and commandment of the King, by consequent those that were born there were natural-born subjects, and no aliens. Calais from the reign of King Edward 3. until the fifth year of Queen Mary, remained under the actual obedience, of the King of England. [7-Coke-22 b] Guines also, another part of France, was under the like obedience to-King Henry the Sixth, as appeareth by 31 H. 6. fol. 4. And Tournay was under the obedience of Henry the Eighth, as it appeareth by 5 El. Dyer, fol. 224; for there it is resolved, that a bastard born at Tournay, whilst it was under the obedience of Henry the Eighth, was a natural subject, as an issue born within this realm by aliens. If then those that were born at Tournay, Calais, &c. whilst they were under the obedience of the King, were natural subjects, and no aliens, it followeth, that when the Kingdom of France (whereof those were parcels) was under the King’s obedience, that those that were then born there were natural subjects and no aliens.

Next followeth Ireland *, which originally came to the Kings of England by Conquest: but who was the first conqueror thereof, hath been a question. I have seen a charter made by King Edgar in these words: -Ego Edgarus Anglorum Bao-O’EVg, omniumque insularum oceani, quæ Britanniam circumjacent, Imperator et Dominus, ratias ago ipsi Deo omnipotenti Regi meo, qui meum imperium ampliavit et exaltavit super regnum patrum meorum, &c. mihi Concessit jpropilia divinitas, cum Anglorum imperio omnia regna insularum oceani, et cum suis ferocissimis Regibus usque Norvegiam, maximam que partem Hibern’, cum sud noblissim‚ civitate de Dublina, Anglorum regno subjugare, qua propter et ego Christi gloriam, et laudem in regno meo exaltare, et ejus servitium amplificare devotus disposui, &c. Yet for that it was wholly conquered in the reign of Henry the Second the honour of the conquest of Ireland is attributed to him, and his style was, Rex Angl’ Dominus Hibern’ Dux Normann’ Dux Acquittan’ et Comes Andegay’, King of England, Lord of Ireland, Duke of Normandy, Duke of Aquitain, and Earl of Anjou*. That Ireland is a dominion separate and divided from England, it is evident from our books, 20 H. 6. 8. Sir John Pilkington’s case. 32 H. 6. 25. 20 Eliz. Dyer 360. Plow. Com. 360. And 2 R. 3. 12 a. Hibernia habet Parliamentum, et faciunt leges, et nostra statuta, non ligant eos, quia non miltunt milites ad Parliamentum (which is to be understood, unless they be especially named) sed personæ eorum sunt subjecti Regis, sicut inhabitantes in Calesi‚, Gasconi‚, et Guyan. Wherein it is to be observed, that the Irishman (as to subjection) is compared to men born in Calais, Gascoin, and Guienne. Concerning their laws ex rotulis potentium de anno 11 Regis H. 3. there is a charter which that King made, beginning in these words, Rex, &c. Baronibus, militibus, et omnibus libera tenentibus L. salutem, satis ut credimus [7-Coke-23 a] vestra andivit discretion quod quando bono memoriæ (a) Johannes quondam Rex Anglj’ pater noster venit in Hiberniam, ipse duxit secum, viros discretos et legis perilos, quorum communi consilio et ad instantiam Hibernensium statuil et precepit leges Anglicanas in Hibern’ ita quod leges easdem, in scripturas redactas reliquit sub sigalo, suo ad Scaccarium Dublin’. So as now the laws of England became the proper laws of Ireland; and therefore, because they have Parliaments holden there whereat they have made divers particular laws concerning that dominion, as it appeareth in 20 H. 6. S. & 20 El. (b) Dyer 360. and for that they retain unto this day divers of their ancient customs, the book in 20 H. 6. 8. holdeth, that Ireland is governed by laws and customs, separate and diverse from the laws of England. A voyage royal may be made into Ireland. Vide (c) 11 H. 4. 7. a. & 7 (d) E. 4. 27. a. which proveth it a distinct dominion. And in anno 33 Reg. El. it was resolved by all the Judges of England in the case of (e) O’ Burke an Irishman, who

7 Coke Report 23 b, 77 ER p405

had committed high treason in Ireland, that be, 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 (f) person out of the realm of England shall be from henceforth enquired of, &c.” 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 (g) Fines, provision is made for them that be out of this land; 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 operative 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 (h) Scotland itself: in ancient time part of (i) Scotland (besides Berwick) was within the power and ligeance of the King of England, as appeareth by our books (k) 42 E. 3. 2. b. 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. [7-Coke-23 b] Ex rotulis Scotiæ, anno 11 Ed. 3. amongst the records in the Tower of London. Rex, &c. Constituimus Bich. Talebot Justiciarium, nostrum vilice Berwici super Twedam, ac omnium aliarum, terrarum nostrorum i n vartibus Scot’, ad faciend’ omnia et singula quæ ad officium justiciarii pertinent, secundum lege met 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 indentures, de 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 (a) 42 Ed. 3. 2. b. (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 had 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, (b) Berwick is no part of England, nor governed by the laws of England; and yet they that have been born there, since they were under the obedience of on; King, are natural-born subjects, and no aliens, as it appeareth in 15 R. 2. cap. 7, &c. Vide (c) 19 H. 6. 35. b. & 39 H. 6. 39. a. 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 beptarchy lasted, seven several crowned Kings of seven several and distinct kingdoms; but in the end the West Saxons Lot 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

7 Coke Report 24 a, 77 ER p406

and sovereign were all natural-born subjects, and capable of and inheritable unto any lands in any of the said kingdoms.

[7-Coke-24 a] In the holy history reported by St. Luke, ex dictamine Spiritus Sancti, cap. 21 et 22 Act. Apostolorum, it is certain that St. Paul was a Jew, born in Tarsus, a famous city of Cilicia; for it appeareth in the said 21st chapter, ver. 39. by his own words, Ego homo sum quidem Judæus a Tarso Cilicice, non ignotæ civitatis municeps. And in the 22d. chapter, ver. 3. Ego sum vir Judæus natus Tarso, Cilicice, &c; and then made that excellent sermon there recorded, which, when the Jews heard, the text saith, ver. 22. Levaverunt vocem suam dicentes, Tolle de terra hujusmodi, non enim fas est eum vivere; vociferantibus autem eis et projicientibus vestimenta sua, et pulverum jactantibus in aerem, Claudius Lysias, the popular Tribune, to please this turbulent and profane multitude (though it were utterly against justice and common reason) the text saith Jussit Tribunus induci eum in castra; 2. flagellis ecedi, and 3. torqueri eum (quid ita?) ut sciret propter quam causain sic acclamarent; and when they had bound Paul with cords, ready to execute the Tribune’s unjust commandment, the blessed Apostle (to avoid unlawful and sharp punishment) took hold of the law of a heathen emperor, and said to the Centurion standing by him, Si hominem Romanum et indemnatum licet vobis flagellare ?) Which when the Centurion heard, he went to the Tribune and said, Quid adurus es? Hic enim homo cives Romanus est. Then came the Tribune to Paul, and said unto him, Dic milli si tu Romanus es? At ille dixit, etiam. And the Tribune answered, Ego multa summa civitatem hanc consequutus sum. But Paul, not meaning to conceal the dignity of his birthright, said, Ego autem et natus sum: as if he should have said to the Tribune, you have your freedom by purchase of money, and I (by a more noble means) by birthright and inheritance. Protinus ergo (saith the text) decesserunt ab illo qui illum torturi erant, Tribunus quoque timuit postquam rescivit, quia civis Romanus essel, et quia alligasset eum. So as hereby it is manifest that Paul was a Jew, born at Tarsus in Cilicia, in Asia Minor; and yet being born under the obedience of the Roman Emperor, he was by birth a citizen of Rome in Italy in Europe, that is, capable of and inheritable to all privileges and immunities of that city. But such a plea as is now imagined against Calvin might have made St. Paul an alien to Rome. For if the Emperor of Rome had several ligeances for every several kingdom and country under his obedience, then might it have been said against St. Paul, that he was extra [7-Coke-24 b] ligeantiam Imperatoris regni sui Italice, et infra’ ligeantiam Imperatoris regni sui Cilicice, &c. But as St. Paul was Judæus patri‚, et Romanus privilegio, Judæus natione et Romanus jure nationum; so may Calvin say, that he is Scotus patria, et Anglus privilegio Scotus natione, et Anglus jure nationum.

Samaria in Syria was the chief city of the ten tribes – but it being usurped by the King of Syria, and the Jews taken prisoners, and carried away in captivity, was after inhabited by the Panyms. Now albeit Samaria of right belonged to Jewry, yet because the people of Samaria were not under actual obedience, by the judgment of the Chief Justice of the whole world they were adjudged alienigen 6e, aliens: for in the Evangelist St. Luke, c. 17. when Christ had cleansed the ten lepers, unus autem ex illis (saith the text) ut vidit quia mundatus esset, regressus est cum magn‚ voce magnificans Deum, et cecidit in faciem ante pedes ejus gratias agens, et hic erat Samaritanus. Et Jesus respondens dixit, Nonne decem mundati sunt,etnovem ubi sunt? Non est inventus qui rediret et daret gloriam Deo nisi hic alienigena. So as, by his judgment, this Samaritan was alienigena, a stranger born; because he had the place, but wanted obedience. Et si desit obedientia, non adjuvet locus. And this agreeth with the divine, who saith, Si locus salvare poluisset, Satan de cælo pro sua inobedientia non cecidisset. Adam in paradiso non cecidisset, Lot in monte, non cecidisset, sed potius in Sodom.

6. Now resteth the sixth part of this division, that is to say, six demonstrative matrons or conclusions, drawn plainly and expressly from the premises.

1. Every one that is an alien by birth, may be, or might have been, an enemy by accident: but Calvin could never at any time be an enemy by any accident; llrA he cannot be an alien by birth. Vide 33 H. 6. f. 1. a. b. the difference between an alien enemy, and a subject traitor. Hostes sunt qui nobis, vel quibus nos helium decernimus, cæteri proditores, prædones, &c. The major is apparent, and is proved by that which hath been said. Et Vide Magna Charta, cap. 30. 19 E. 4. 6. 9 E. 3. c. 1. 27 E. 3.c. 2. 4 H. 5. c. 7. 14 E. 3. stat. 2. c. 2. &c.

7 Coke Report 25 a, 77 ER p407

2. Whosoever are born under one natural ligeance and obedience due by the law of nature to one sovereign are natural-born subjects: but Calvin was born under one natural ligeance and obedience, due by the law of nature to one sovereign; ergo, he is a natural-born subject.

[7-Coke-25 a] 3. Whosoever is born within the King’s power or protection, is no alien: but Calvin was born under the King’s power and protection; ergo he is no alien.

4. Every stranger born must at his birth be either amicus or inimicus: but Calvin at his birth could neither be amicus nor inimicus; ei-go he is no stranger born. Inimicus he cannot be, because he is subditus: for that cause also he cannot be amicus; neither now can Scotia be said to be solum amici, as hath been said.

5. Whatsoever is due by the law or constitution of man, may be altered: but natural ligeance or obedience of the subject to the sovereign cannot be altered; ergo natural ligeance or obedience to the sovereign is not due by the law or constitution of man. Again, whatsoever is due by the law of nature, cannot be altered: but ligeance and obedience of the subject to the sovereign is due by the law of nature; ergo it cannot be altered. It hath been proved before that ligeance or obedience of the inferior to the superior, of the subject to the sovereign, was due by the law of nature many thousand years before any law of man was made; which ligeance or obedience (being the only mark to distinguish a subject from an alien) could not be altered; therefore it remaineth still due by the law of nature. For leges naturæ perfectissimæ sunt et immutabiles, humani vero juris conditio semper in infinitum decurrit, et nihil est in eo quod per moriuntur perpetuo stare possit. Leges humance nascuntur, vivunt, moriuntur.

Lastly, whosoever at his birth cannot be an alien to the King of England, cannot be an alien to any of his subjects of England: but the plaintiff at his birth could be no alien to the King of England; ergo the plaintiff cannot be an alien to any of the subjects of England. The major and minor both be two positiones perspicue veræ. For as to the major it is to be observed, that whosoever is an alien born, is so accounted in law, in respect of the King: and that appeareth first, by the pleading so often before remembered, that he must be extra ligeantiam, Regis, without any mention making of the subject. 2. When an alien born purchaseth any lands, the King only shall have them, though they be holden of a subject, in which case the subject loseth his seigniory. And as it is said in our books an alien may purchase ad præficuum Regis; but the act of law giveth the alien nothing: and therefore if a woman alien marrieth a subject, she shall not be endowed (L), neither shall an alien be tenant by the curtesy. Vide 3 H. 6. 55 a. 4 H. 3. 179. 3. The subject shall plead that the defendant is an [7-Coke-25 b] alien born, for the benefit of the King, that he upon office found may seize; and 2. that the tenant may yield to the King the land, and not to the alien, because the King hath best right thereunto. 4. Leagues between our sovereign and others are the only means to make aliens friends, et fædera percutere, to make leagues, only and wholly pertaineth to the King. 5. Wars do make aliens enemies, and bellum indicere belongeth only and wholly to the King, and not to the subject, as appeareth in 19 Ed. 4. 4. fol. 6 b 6. The King only without the subject may make not only letters of safe conduct, but letters patent of denization, to whom, and how many he will, and enable them at his pleasure to sue any of his subjects in any action whatsoever real or personal, which the King could not do without the subject, if the subject had any interest given unto him by the law in any thing concerning an alien born. Nay, the law is more precise herein than in a number of other cases to of higher nature: for the King cannot grant to any other to make of strangers born, denizens; it is by the law itself so inseparably and individually annexed to his Royal person (as the book is in 20 H. 7. fol. 8). For the law esteemeth it a point of high prerogative, jus majestatis, et inter insignia summæ potestatis to make aliens born subjects of the realm, and capable of the lands and inheritances of England in such sort as any natural born subject 1s. And therefore by the statute of 27 H. 8. c. 24. many of the most ancient prerogatives and Royal flowers of the Crown, as authority to pardon treason, murther, manslaughter, and felony, power to make justices in eyre, Justices of Assise, justices of peace, and gaol delivery, and such like, having been severed and divided

7 Coke Report 26 a, 77 ER p408

from the Crown, were again re-united to the same: but authority to make letters of denization was never mentioned therein to be resumed, for that never any claimed the same by any pretext whatsoever, being a matter of so high a point of prerogative. So as the pleading against an alien, the purchase by any alien, leagues and wars between aliens, denizations, and safe conducts of aliens, have aspect only and wholly unto the King. It followeth therefore, that no man can be alien to the subject that is not alien to the King. Non potest esse alienigena corpori, quinon est capiti, non gregi qui non est Regi.

The authorities of law cited in this case for maintenance of the judgment, 4 H. 3. tit. Dower. Bracton, lib. 5. fol. 427. Fleta, lib. 6. cap. 47. In temi. E. 1. Hingham’s Report. 17 Ed. 2. cap. 12. 11 Ed. 3. [7-Coke-26 a] cap. 2. 14 Ed. 3 Statut de Francia. 42 Ed. 3. fol. 2. 42 Ed. 3. cap. 10. 22 Lib. Ass. 25. 13 Rich. 2. cap. 2. 15 Rich. 2. cap. 7. 11 Hen. 4. fol. 26. 14 Hen. 4. fol. 19. 13 H. 4. Statutum de Guyan. 29 Hen. 6. tit. Estoppel 48. 28 H. 6. cap. 5. 32 Hen. 6. fol. 23. 32 Hen. 6. fol. 26. Littl. temps Ed. 4. lib. 2. cap. Villenage. 15 Ed. 4. fol. 15. 19 Ed. 4. 6. 22 E. d. 4. cap. 8. 2 Rich. 3. 2. and 12. 6 Hen. 8. fol. 2. Dyer. 14 H. 8. cap. 2. No manner of stranger born out of the King’s obeisance, 22 H. 8. c. 8. Every person born out of the realm of England, out of the King’s obeisance, 32 H. 8. c. 16. 25, H. 8. 0. 15, &c. 4 Ed. 6. Plowd. Comment fol. 2. Fogassa’s case. 2 and 3 Ph. and Mar. Dyer 145. Shirley’s case. 5 El. Dyer 224. 13 El. c. 7. de Bankrupts. All commissions ancient and late, for the finding of offices, to entitle the Kingto the lands of aliens born; also all letters patent of denization of ancient and later times do prove, that he is no alien that is born under the King’s obedience.

Now we are come to consider of legal inconveniences: and first of such as have been objected against the plaintiff; an, secondly, of such as should follow, if it had been adjudged against the plaintiff.

Of such inconveniences as were objected against the plaintiff, there remain only four to be answered; for all the rest are clearly and fully satisfied before: 1. That if postnati should be inheritable to our laws and inheritances, it were reason they should be bound by our laws; but postnati are not bound by our statute or common laws; for they having (as it was objected) never so much freehold or inheritance, cannot be returned of juries, nor subject to scot or lot, nor chargeable to subsidies or quinzimes, nor bound by any Act of Parliament made in England. 2. Whether one be born within the kingdom of Scotland or no, is not triable in England, for that it is a thing done out of this realm, and no jury can be returned for the trial of any such issue: and what, inconvenience should thereof follow, if such pleas that wanted trial should be allowed (for then all aliens might imagine the like plea) they that objected it, left it to the consideration of others. 3. It was objected, that this innovation was so dangerous, that the certain event thereof no man could foresee, and therefore some thought it fit, that things should stand and continue as they had been in former time for fear of the worst. 4. If postnati were by law legitimated in England, it was objected what inconvenience and confusion should [7-Coke-26 b] follow if (for the punishment of us all) the King’s Royal issue should fail, &c. whereby those kingdoms might again be divided. All the other arguments and objections that have been made have been answered before, and need not to be repeated again.

1. To the first it was resolved, that the cause of this doubt was the mistaking of the law: for if a postnatus do purchase any lands in England, he shall be subject in respect thereof, not only to the laws of this realm, but also to all services and contributions, and to the payment of subsidies, taxes, and public charges, as any denizen or Englishman shall be; nay, if he dwell in England, the King may command him, by a writ of ne exeat regnum, that he depart not out of England. But if a postnatus dwell in Scotland, and have lands in England, he shall be chargeable for the same to all intents and purposes as if an Englishman were owner thereof, and dwelt in Scotland, Ireland, in the Isles of Man, Guernsey, or Jersey, or elsewhere. The same law is of an Irishman that dwells in Ireland, and hath land in England. But if postnati, or Irishmen, men of the Isles of Man, Guernsey, Jersey, &c. have lands within England, and dwell here, they shall be subject to all services and public charges within this realm, as any Englishman shall be. So as to services and charges, the postnati and Englishmen born are all in one predicament.

7 Coke Report 27 a, 77 ER p409

2. Concerning the trial, a threefold answer was thereunto made and resolved:             1. That the like objection might be made against Irishmen, Gascoins, Normans, men of the Isles of Man, Guernsey, and Jersey, of Berwick, &c. all which appear by the rule of our books to be natural born subjects; and yet no jury can come out of any of those countries and places, for trial of their births there. 2. If the demandant or plaintiff in any action concerning lands be born in Ireland, Guernsey, Jersey, &c. out of the realm of England, if the tenant or defendant plead, that he was born out of the ligeance of the King, &c. the demandant or plaintiff may reply, that he was born under the ligeance of the King at such place within England; and upon the evidence the place shall not be material, but only the issue shall be, whether the demandant or plaintiff were born under the ligeance of the King in any of his kingdoms or dominions whatsoever: and in that case the jury, (if they will) may find the special matter, viz. the place where he was born, and leave it to the judgment of the Court: and that jurors may take knowledge of things done [7-Coke-27 a] out of the realm in this and like cases, Vide 7 H. 7. 8 b. 20 Ed. 3. Averment 34. 5 Ric. 2. tit. Trial 54. 15 Ed. 4. 15. 32 H. 6. 25. Fitz. Nat. Brey. 196. Vide Dowdale’s case, in the Sixth Part of my Reports, fol. 47. and there divers other judgments be vouched (M). 3 Brown, in anno 32 H. 6. reporteth a judgment then lately given, that where the defendant pleaded that the plaintiff was a Scot, born at St. John’s town in Scotland, out of the ligeance of the King; whereupon they were at issue, and that issue was tried where the writ was brought, and that appeareth also by 27 Ass pl. 24. that the jury did find the prior to be born in Gascoin. (for so much is necessarily proved by the words trove fuit.) And 20 Ed. 3. tit. Averment 34. in a juris utrum, the death of one of the vouchees was alleged at such a castle in Britain, and this was inquired of by the jury; and it is holden in 5 Rich. 2. tit. Trial 54. that if a man be adhering to the enemies of the King in France, his land is forfeitable, and his adherency shall be tried where the land is, as oftentimes hath been done, as there it is said by Belknap: and Fitz. Nat. Br. 196 in a mortdanc. if the ancestor died in intinere peregrinationis sum vers. Terram sanctam, the jury shall enquire of it: but in the case at Bar, seeing the defendant hath pleaded the truth of the case, and the plaintiff hath not denied it, but demurred upon the same, and thereby confessed all matters of fact, the Court now ought to judge upon the special matter, even as if a jury upon an issue joined in England, as it is aforesaid, had found the special matter, and left it to the Court.

3. To the third it was answered and resolved, that this judgment was rather a renovation of the judgments and censures of the reverend Judges and sages of the law in so many ages past, than any innovation, as appeareth by the book and bookcases before recited: neither have Judges power to judge according to that which they think to be fit, but that which out of the laws they know to be right and consonant to law. Judex bonus nihil ex arbitrio suo faciat, nec proposito domestics voluntatis, sed juxta leges et jura pronuntiat. And as for timores, fears grounded upon no just cause, qui non cadunt in constantem virum, vani timores æstimandi sunt.

4. And as to the fourth, it is less than a dream of a shadow, or a shadow of a dream: for it hath been often said, natural legitimation respecteth actual obedience to the sovereign at the time of the birth; for as the antenati remain aliens as to the Crown of England, because they were born when there were several Kings of the several kingdoms, and the [7-Coke-27 b] uniting of the kingdoms by descent subsequent cannot make him a subject to that Crown to which he was alien at the time of his birth: so albeit the kingdoms (which Almighty God of his infinite goodness and mercy divert) should by descent be divided, and governed by several Kings; yet it was resolved, that all those that were born under one natural obedience while the realms were united under one sovereign, should remain natural born subjects, and no aliens; for that naturalization due and vested by birthright, cannot by any separation of the Crowns afterward be taken away: nor he that was by judgment of law a natural subject at the time of his birth, become an alien by such a matter ex post facto. And in that case, upon such an accident, our postnatus may be ad fidem utriusque Regis, as Bracton saith in the afore remembered place, fol. 427. Sicut Anglicus non

7 Coke Report 28 a, 77 ER p410

auditur inplacitando aliquem de Terris et tenement’ in Franci‚ ita nec debet Francigena et alienigena, qui fuerit ad fidem Regis Franciæ, audiri placitando in Anglid: sed tamen sunt aliqui Francigenæ in Franci‚ qui sunt adfidem utriusque; et semperfuerunt ante Normaniam deperditam, et post, et qui placitant hic et ibi, ed, ratione qua sunt ad fidem utriusque, sicut fuit Willielmus comes mareschallus et manens Angli‚, et M. de Gynes manens in Franci‚, et alii plures. Concerning the reason drawn from the (a) etymologies, it made against them, for that by their own derivation alienæ gentis and alienæ ligeantice is all one: but arguments drawn from etymologies are too weak and too light for Judges to build their judgments upon: for sæpenumero ubi proprietas (b) verborum altenditur, sensus veritatis dimittitur: and yet when they agree with the judgment of law, Judges may use them for ornaments. But on the other side, some inconveniences should follow, if the plea against the plaintiff should be allowed: for first it maketh ligeance local: Videlicet, ligeantia Regis regni sib Scotiæ, and ligeantia Regis regni sui Angliæ: whereupon should follow, first, that faith or ligeance, which is universal, should be confined within local limits and bounds: secondly, that the subjects should not be bound to serve the King in peace or in war out of those limits; thirdly, it should illegitimate many, and some of noble blood, which were born in Gascoin, Guienne, Normandy, Calais, Tournay, France, and divers other of His Majesty’s dominions, whilst the same were in actual [7-Coke-28 a] obedience, and in Berwick, Ireland, Guernsey, and Jersey, if this plea should have been admitted for good. And, thirdly, this strange and new devised plea inclineth too much to countenance that dangerous and desperate error of the Spencers, touched before, to receive any allowance within Westminster-hall.

In the proceeding of this case, these things were observed, and so did the Chief Justice of the Common Pleas publicly deliver in the end of his argument in the Exchequer Chamber. First, that no commandment or messuage by word or writing was sent or delivered from any whatsoever to any of the Judges, to cause them to incline to any opinion in this case; which I remember, for that it is honourable for the State, and consonant to the laws and statutes of this realm. Secondly, there was observed, what a concurrence of judgments, resolutions, and rules, there be in our books in all ages concerning this case, as if they had been prepared for the deciding of the question of this point: and that (which never fell out in any doubtful case) no one opinion in all our books is against this judgment. Thirdly, that the five Judges of the King’s Bench, who adjourned this case into the Exchequer Chamber, rather adjourned it for weight than difficulty, for all they in their arguments una v. oce concurred with the judgment. Fourthly, that never any case was adjudged in the Exchequer Chamber with greater concordance and less variety of opinions, the Lord Chancellor and twelve of the Judges concurring in one opinion. Fifthly, that there was not in any remembrance so honourable, great, and intelligent an auditory at the bearing of the arguments of any Exchequer Chamber case, as was at this case now adjudged. Sixthly, it appeareth, that jurisprudentia legis communis Angliæ est scientia socialis et copiosa: sociable, in that it agreeth with the principles and rules of other excellent sciences, divine and human: copious, for that quamvis ad ea quæ frequentius accidunt jura adaptantur, yet in a case so rare, and of such a quality, that loss is the assured end of the practice of it (for no alien can purchase lands, but he loseth them; and ipso facto the King is entitled thereunto, in respect whereof a man would think few men would attempt it) there should be such a multitude and farrago of authorities in all successions of ages, in our books and bookcases, for the deciding of a point of so rare an accident. Et sic determinate et terminala est ista quæstio.

[7-Coke-28 b] The Judgment in the said Case, as entered on Record, &c.

“Whereupon all and singular the premises being seen, and by the Court of the Lord the now Kino, here diligently inspected and examined, and mature deliberation being had thereof; for that it appears to the Court of the Lord the now King here, that the aforesaid plea of the said Richard Smith and Nicholas Smith above pleaded,

7 Coke Report 1 a, 77 ER p411

is not sufficient in law to bar the said Robert Calvin from having an answer to his aforesaid writ: therefore it is considered by the Court of the lord the now King here, that the aforesaid Richard Smith and Nicholas Smith to the writ of the said Robert do further answer.”

The goal of this blog is to provide a more in-depth overview of the history of the birther movement, the main players, the legal cases, the arguments, the myths and the ‘Good, Bad and Ugly”.

Most of the interesting lawsuits have been settled and after having been involved in addressing claims, doing much research, it seems like a good time and place to reflect back on the last 2 years or so.

The Wiki will provide an overview of scholarly research, and will address claims, myths and facts surrounding the eligibility of President Obama.

I have been playing with the idea of adding a forum to the site but I believe that sites such as politijab.com, provides a much better platform. Instead my goals will be to focus on collecting a comprehensive overview of the birther movement.

Obama outperforms Leno

“At least my approval ratings are still high in the country of my birth”

“Biden talked me into it. He leaned over and he said, ‘Mr President this is no ordinary dinner. This is a big (ELECTRONIC BLEEP)in’ meal’.”

“The only person whose ratings fell more than mine last year is here tonight,” the president said. “It is Jay.”

On Arizona’s tough new anti-immigration law, Obama took aim at Arizona senator John McCain and presidential rival: “Unfortunately John McCain couldn’t make it. Recently he claimed he had never identified himself as a maverick. And we all know what happens in Arizona when you don’t have ID. Adios amigos!”

Darren Huff was featured on Sentinel Radio.

Darren is made aware by Leo Haffey of the precedent cases but argues that he is following “God’s law”. “I may be the next one locked up”. “I need to go by the laws”. “There is no law against doing what is right.”