not Aliens Scotland is a Kingdom by union and therefore those that were born in Scotland under the allegiance of the King as of his Kingdom of Scotland before the Crown came united were Aliens born and such plea against such Persons was a good plea but those that were born since the Crown of England descended to King James are not Aliens for they were born sub side legiantia Domini Regis so those that are born at this day in Uirginia New England Barbadoes Jamaiâ—…a or any other of his Majesties Plantations and Dominions are natural born Subjects and not Aliens so likewise those that are born upon the King of England's Seas are not Aliens X. But if an Alien be made an Abbot Prior Bishop or Dean the plea of an Alien we shall not disable him to to bring any real or mixt action concerning the possessions that he hold in his politique capacity because the same is brought in auter droit The like Law is for an Executor or Administrator because the recovery is to anothers use If an action is brought against an Alien and there is a Verdict and Judgment against him yet he may bring a writ of Error and be plaintif there and that such plea is not good in that case Though an Alien may purchase and take that which he cannot keep nor retain yet the Law hath provided a mean of enquiry before he can be devested of the same for until Office be found the free-hold is in him And this Office which is to gain to the King a Fee or Free-hold must be under the Great Seal of England for a Commission under the Exchequer Seal is not sufficient to entitle the King to the Lands of an Alien born for the Commission is that which gives a title to the King for before that the King hath no title but in cases of Treason there upon Attainder the Lands are in the King without Office and in that case to inform the Court a Commission may go out under the Echequer Seal XI If an Alien and a Subject born purchase Lands to them and to their Heirs they are joint tenants and shall join in Assize and the Survivor shall hold place till Office found By the finding of this Office the party is out of possession if the same be of Houses or Lands or such things as do lye in livery but of Rents Common advowsons and other Inheritances incorporeal which lye in grant the Alien is not out of possession be they appendant or in gross therefore if an Information or an Action be brought for the same the party may traverse the Office in that Court where the Action or Information is brought for the King And if the King obtains not the possession within the year after the Office found he cannot seize without a scire facias It is not for the Honour of the King an Alien purchasing of a Copyhold to seize the same for that the same is a base tenure and so it was adjudged where a Copy-hold was surrendred to J. S. in trust that one Holland an Alien should take the profits thereof to his own use and benefit upon an Inquisition taken it was adjudged the same was void and should be quashed because the King cannot be entitled to the Copyhold Lands of an Alien nor to the use of Copyhold Lands as the principal case was An Alien Infant under the age of 21 years cannot be a Merchant Trader within this Realm nor can he enter any goods in his own name at the Custom-house If an Englishman shall go beyond the Seas and shall there become a sworn Subject to any Forraign Prince or State he shall be look'd upon in the nature of an Alien and shall pay such Impositions as Aliens if he comes and lives in England again he shall be restored to his liberties An Alien is robbed and then he makes his Executor and dyes and afterwards the goods are waift the Lord of the Franchise shall not have them but the Executors Vide Stat. 13. E. 4. All personal actions he may sue as on a Bond so likewise for words for the Common Law according to the Laws of Nations protects Trade and Traffique and not to have the benefit of the Law in such cases is to deny Trade CHAP. III. Of Naturalization and Denization I. Whether the Kings of England can naturalize without Act of Parliament II. What operation Naturalization hath in reference to remove the disability arising from themselves III. What operation naturalization hath as in reference to remove deffects arising from a lineal or collateral Ancestor IV. A Kingdom conquered and united to the Crown of England whether by granting them a power to make Laws can implicitely create in them such a Soveraignty as to impose on the Realm of England V. Of Persons naturalized by a Kingdom dependant whether capable of imposing on one that is absolute VI. Of Kingdoms obtained by conquest how the Empire of the same is acquired and how the Conqueror succeeds VII Ireland what condition it was accounted before the Conquest as in reference to the Natives of the same and whether by making it a Kingdom they can create a Forraigner as a natural born subject of England VIII Of Aliens as in reference to the transmission of their Goods Chattels by the Laws of France IX Of the Priviledges the Kings of England of old claimed in the Estates of Jews dying comorant here and how the same at this day stands X. Of Persons born in places annexed or claimed by the Crown of England how esteemed by the Laws of the same XI Of Denization and what operation it hath according to the Laws of England XII Where an Alien is capable of Dower by the Laws of England and where not and of the total incapacity of a Jew XIII Whether a Denizon is capable of the creation and retention of Honour by the Laws of England I. THe Father and the Mother are the fountain of the blood natural and as it is that that makes their Issue Sons or Daughters so it is that that makes them Brothers and Sisters but it is the civil qualifications of the blood that makes them inheritable one to the other and capable of enjoying the immunities and priviledges of the Kingdom but that is from another fountain viz. The Law of the Land which finding them legitimate doth transplant them into the Civil rights of the Land by an Act called Naturalization which does superinduce and cloath that natural consanguinity with a Civil hereditary quality whereby they are enabled not only to inherit each other but also to enjoy all the immunities and priviledges that meer natural born Subjects may or can challenge II. According to the Laws of Normandy the Prince might naturalize but such naturalization could not divest the descent already vested But according to our Law by no way but by Act of Parliament and that cures the defect as
that to be when the matter in controversie is tam quod merita quâ—…m quod modum praecedendi not doubtful for in doubtful matters the presumption is ever for the Judge or Court But the Reprisal must be grounded on a wrong Judgement given in matters not doubtful which might have been redressed one way or other either by the ordinary or extraordinary power of the Country or place and the which was apparently perverted or deny'd But if the matter be doubtful then otherwise for in causes dubious or difficult there is a presumption always that Justice was truly administred by them who were duely elected to publick Judgements XI And yet in this later case some who are of opinion that if the cause were dubious and if the Judgement were against apparent right the Stranger oppressed is let into his satisfaction and the reason is because the Judge's authority is not the same over Forraigners as over Subjects for the reason above mentioned If an English Merchant shall prosecute a Suit in the Ordinary Courts of Law beyond Seas and Sentence or Judgement shall pass against him from which he appeals to the Supream Judgement and there the first Judgement or Sentence is affirmed though the Complainant hath received a Judgement against the real right of the cause yet this will be no cause for Letters of Reprisal though perhaps it may occasion Letters of Request if there be strong circumstances for the same to have a rehearing of the cause But if an English Man shall recover a debt there and then the Officer having the debtor in custody will wilfully let the Prisoner escape and then become insolvent the same may perhaps occasion Reprisal In England if a Forraigner brings an Action personal against I S. and the matter is found special or general and the Party prays Judgement and the Court refuses it and then the Deffendant dyes and with him the Action the nature of it being such the Party is here without remedy the same may occasion Letters of Reprisals if it be accompained with those circumstances that evince an apparent denyal of Justice i. e. as putting it off from Term to Term without cause An English Man pursues his right in the legal Courts beyond Seas and the Military Governor opposes the prosecution and by force conveys away the debtor and his Goods the Sentence or Judgement is obtained its ultimate end being Execution being thus frustrated may occasion Letters of Reprisal XII Persons murdered spoiled or otherwise dampnify'd in hostile manner in the Territories or places belonging to that King to whom Letters of Request are issued forth if no satisfaction be returned Letters of Reprisal may issue forth and the Parties petitioners are not in such cases compelled to ressort to the Ordinary prosecution But the Prince of that Country against whom the same are awarded must repair the damage out of his or their Estates who committed the injuries and if that proves deficient it must then fall as a common debt on his Country XIII Such Letters of Request generally allot a time certain for damages to be repaired if not Reprisals to issue forth XIV It is not the place of any Mans Nativity but his domicil not of his Origination but of his Habitation that â—…bjects him to Reprise The Law doth not consider so much where he was Born as where he lives not so much where he came into the World as where he improves the World If therefore Letters of Reprisal should be awarded against the Subjects of the Duke of Florence and a Native of Florence but denizied or Naturalized in England should have a Ship on a Voyage for Leighorn if a caption should be made the same is not lawful nor can the same be made prise XV. Nor doth it any where appear that Reprisals can be granted on misfortunes happenning to Persons or their Goods residing or being in Forraign parts in time of War there for if any misfortune happens or is occasioned to their effects or to their Persons then they must be contented to sit down under the losse it being their own faults they would not fly or relinquish the place when they fore-saw the Country was subject to the spoil of the Souldiers and devastation of the Conqueror The factions of the Guelfs and Gibellins in Florence warring against each other The Guelfs obtaining the Victory and thrusting the Gibellins out of it after they had taken the City Domum cujusdam Hugonis de Papi in hoc Regno Angliae demorantae diruerunt and plundred his Goods therein qui Hugo supplicavit Dom. Regi ut inde Itali Mercatores of that faction and City then in England emendas hic sibi facerent upon which adjudicatum fuit quod dicti Mercatores dicto Hugoni satisfaciant pro damnis susceptis destructione domus suae upon which a Writ of error was brought and the Judgement was reversed in these words Quod non est consuetudo Angliae de aliqua transgressione facta in aliena Regione tempore Guerrae vel alio modo consideratum est quod totus processus ejus effectus provocentur c. XVI By right for so it is now called of rendring like for like there are many Persons exempted and those whose Persons are so priviledged have also protection for their Goods some by the Laws of Nations some by the Civil Law others by the Common Law among which Embassadors by the Laws of Nations their retinue and Goods are exempt coming from him who awarded the Reprise the Laws of Nations not only providing for the Dignity of him that sends but likewise the security going and coming of him that is sent Nor against those that travel for Religion nor on Students Schollars or their Books nor on Women or Children by the Civil Law nor those that travel through a Country staying but a little while there By the Canon Law Ecclesiastical Persons are expresly exempt from Reprisals A Merchant of another place then that against which Reprisals are granted albeit the Factor of such Goods were of that place are not Subject to Reprisals XVII Ships driven into Port by storm or stress of weather have an exemption from the Law of Reprisals according to the Jus commune but by the Law of England otherwise unless expresly provided for in the Writ or Commission But if such Ship flyes from his own Country to avoid confiscation or some other fault and is driven in by stress off she may then become subject to be prize But it is not lawful to make seizure in any Ports but in his who awarded the Reprisal or his against whom the same issued for the Ports of other Princes or States the Peace of them are to be maintained XVIII Ships attaqued by those that have Letters of Reprise and refused to be yielded up may be assaulted and entered and though it may fall out not by intention but by accident that some of those that so
him on the face and gave him a push on the back and after this he was Registred for a Freeman This being performed the Servant having his head shaven purposely at that time received a Cap as a Token of Liberty Tertullian observes That at this time of their Manumission the Servants received from their Masters a white Garment a Gold Ring and a new Name added to their former By the Laws of England every Subject Born within the Kings Dominions is a Freeman of this Realm as appears by the Grand Charter Cap. 14. yea though he be a Bond-Slave to a Subject But a Stranger Born is no Free-man till the King have made him a Denizon in whose Power alone without the help of any other one may be made Free To be a Freeman of the Realm the place of Birth is held more considerable than the Quality of the Person Yet by the opinion of Hussey Chief Justice in 1 R. 3. fo 4. And in Calvins Case of the Post Nati it is held for Law That if Ambassadors of this Realm have Children Born in France or else where the Father and Mother being Natural Born Subjects the Children are Free of the Realm of England But if either the Father or the Mother of such Children were an Alien then are not those Children Free But the Law is conceived to be otherwise at this day The Statute de Natis ultra mare 25 E. 3. Cap. declares the Issue Born of an English-man upon an English-woman shall be a Denizon for upon the Construction of this Statute it has been adjudged more than once That if an English-man marry a Foreiner and has Issue by her Born beyond Seas the Issue is a Natural Born Subject IX Disfranchising by the Romans called Capitis diminutio was Three fold Maxima Media Minima the least degree was when the Censors pulled a Man from a higher Tribe down to a lower and less Honourable or when by any Censure they disabled a man from suffraging or giving his Voice in the publick Assemblies such as were thus in the last manner punished were termed Aerarii and in aerarios veluti quia omnia alia jura Civium Romanorum preterquam tributi aeris conferendi amiserunt Gellius relates That P. Scipio Nascica and M. Pompilius being Censors taking a view of the Roman Knights observed one of them to be mounted on a lean starvling Horse himself being exceeding fat whereupon they demanded the Reason why his Horse was so lean himself being so fat his Answer was Quoniam ego inquit me curro statius mens servus By the Ancient Laws of England and by the Great Charter no Freeman shall be taken or Imprisoned but by the Lawful Judgment of his Peers that is by Jury Peers for Peers ordinary Juries for others who are their Peers or by the Law of the Land which is always understood by due process of the Law and not the Law of the Land generally for otherwise that would comprehend Bond-men whom we call Villains who are excluded by the word Liber for such Bond-men might be Imprisoned at the pleasure of his Lord but a Free-man neither could nor can without a just Cause nor does the Priviledge extend to private Actions or Suits between Subject and Subject but even between the Sovereign and the Subject Hence it is that if a Peer of the Realm be Arraigned at the Suit of the King for a Murder he shall be tryed by his Peers that is by the Nobles But if he be appealed of Murder upon the prosecution of a Subject his Tryal shall be by an ordinary Jury of 12 Free-holders and as the Grand Charter did and does protect the Persons of Free-men so likewise their Free-hold For by the same Charter it is declared That the King or His Ministers shall out no man of his Free-hold without reasonable Judgment and so it was rul'd upon a Petition in Parliament setting forth that a Writ under the Privy Seal went to the Guardian of the Great Seal to cause Lands to be seized into the Kings Hands and that thereupon a Writ issued forth to the Escheater to seize against the form of the Great Charter upon debate of which the Party had Judgment to be restored the greatest and most Explanatory Act which succeeded in point of Confirmation was that of Edward the 3d. the words are That no Man of what Estate or Condition soever he be shall be put out of the Lands and Tenements nor taken or imprisoned nor dis-inherited nor put to death without he be brought to answer by due process of the Law that is by the Common Law 2. Diminutio media was an Exilement out of the City without the loss of ones Freedom the words of the Judgment or Sentence were Tibi aquae igni interdico 3. Diminutio maxima was the loss both of the City and the Freedom and by his Judgment or Sentence was obliged and limited to one peculiar Countrey all other places in general being forbidden him There was a Fourth kind of Banishment Disfranchising called relegatio which was the Exilement only for a season as that of Ovid's The Laws of England in this matter have some resemblance with those of the Romans for Bracton observes 4 Distinctions 1. Specialis hoc est interdictio talis Provinciae Civitatis Burgi aut Villae 2. Generalis Interdictio totius Regni aliquando est 3. Temporaria pro duobus tribus quatuor aut pluribus annis aut c. 4. Perpetua pro termino vitae exilium est aliquando ex arbitrio principis sicut in exiliando Duces Hertfordiae Norfolciae per Regem Richardum Secundum aliquando per Judicium Terrae ut fit in Casu Piers de Gaviston etiam in Casu Hugonis de le Spencer Junioris qui ambo fuerunt exilit ' per Judicium in Parliamento So likewise was that of the Banishment of the Earl of Clarendon who dyed beyond the Seas X. Abjuration was also a Legal Exile by the Judgment of the Common Law as also by the Statute Law and in the Statute of Westm the second Cap. 35. He which Ravishes a Ward and cannot render the Ward unmarried or the value of his Marriage must abjure the Realm and this is a General Exile And by the Statute made 31 Ed. 1. Butchers are to be abjured the Town if they offend the Fourth time in selling measled Flesh and this is a Special Banishment A man Exil'd does forfeit these things 1. Hee looseth thereby the Freedom and Liberty of the Nation out of which he is Exiled 2. He forfeits his freedom in the Burrough or City where he was free for he which forfeits the Freedom of the whole Realm forfeits his Freedom in every part 3. The Law accounts him as one dead for his Heir may enter and so may his Wife enter into her own Lands and may sue
as the Conqueror should transmit to them all which are the tokens of a Nation by conquest made subordinate to the Conqueror and are part Heril and part Civil and though they may remain a Kingdom and absolute within themselves as to the making of Laws to the obliging each other yet they can no wayes impose on their Conqueror for though that be true which in Quintilian is alledged on the behalf of the Thebanes that that only is the Conquerors which he holds himself but an Incorporeal right can not be holden and the condition of an Heir and of a Conqueror is different because the right passeth to the former by the descent but only the thing by the last by virtue of the Conquest But certainly that is no objection for he that is master of the Persons is also master of the things and of all right which does belong to the Persons for he that is possessed dotâ—… not possesse for himself nor hath he any thing in his power who hath not himself and so it is if he leaves the right of a Kingdom to a conquered People he may take to himself some things which were the Kingdoms for it is at his pleasure to appoint what measure he will to his own favour from hence it is we may observe what fort of Empire that Kingdom is at this day VII Now Ireland before the same became united to the Crown by the Conquest of Henry the II. the natives were meer Aliens and out of the protection of the Laws of this Realm yet when once they became a conquered People and subject to the Crown of England and united ad fidem Regis there did arise their allegeance but that union neither made them capable of the Laws of England nor of their own till such time as the Conqueror had so declared them now what do they desire in order to revive their Government First they humbly beg of King Henry II. that since he was pleased that they should remain as a distinct Dominion that their ancient Customes or Usages should not continue that he would be pleased to ordain that such Laws as he had in England should be of force and observed in Ireland pursuant to which he grants them power to hold Assemblies by the three Estates of the Realm and that they should be regulated according to the institution and manner of the Parliaments in England should have the benefit of Magna Charta and other the great Laws of England and by such means puts them into a method of Governing themselves according to the known wayes of England and to make such Laws as should bind among themselves and by following the example of those of England their Judgment might be supervized and corrected according to the Justice and Laws of England by Writs of Error Appeal and the like Now here is no continuing or reviving their Ancient Government but the introducing a new one part Civil and part Heril nor indeed had they before any such thing as a Parliament there or general Assembly of the three Estates for when Henry the II. went over there were several Kings or Scepts who had their several and distinct Assemblies but when they submitted this great Assembly of Estates which he constituted was a collection out of all of them for their future well Government so that whatsoever modus of Regiment the Conqueror declared it was no more then for the well Governing of the Place and making such Laws as were necessary and proper amongst themselves But for them to impose by vertue of an Act of Naturalization upon an absolute Kingdom as England without the consent of the three Estates of the same surely was never intended much less effected the case is both great and curious therefore c. VIII By the Laws of France all Persons not born under legeance of that King are accounted Aliens and if they dye the King is entitled to the estate for all shall be seized into his Exchequer or Finances but if they make a Will the prerogative is disappointed Yet that extends only to Chattels personal in which Strangers passing through the same have greater immunities then Aliens there resident for Travailers dying without Will the Heirs or Executors shall have benefit and possession of their Estates IX The like Priviledge the Kings of England formerly claimed in the Goods and Estates of the Jews after their death if the Heir sued not and paid a fine to the King to enjoy them as by this Record appears Irratores super sacrum suum dicunt quod praedictum Messuagium fuit quondam Eliae le Bland qui c. diem claufit extremum quia mos est Judaeismi quod Dominus Reg omnia Cattalla Judaei mortui de jure dare poterit cui voluerit nisi propinquer haeres ejusdem Judaei finem feceret pro eisdem dicunt quod Dominus Rex dictum Messuagium dare poterit cui voluerit sine injuria alicui facienda si ita quod sit haeres dicti Eliae finem non fecerit pro Catallis ejusdem Eliae habendis c. But whether the same is now used may seem doubtful for the goods of Aliens escheat not at this day to the Crown but Administration shall be committed to the next of Kin. X. By the Laws of France Flanders Milan and the French County of Savoy though possessed by several other Princes yet the Natives of the same partake in the immunities with the natural born Subjects of France and if they dye without Will their Heirs claim their Estates the reason given because say they those Countreys were never alienated from them but were alwayes annexed to the Crown of France who acknowledges them to be their Subjects to this day But in England it is otherwise for those that are born in Gascoin Normandy Acquitain and those other Territories which were formerly the possessions of the Crown of England in which if any had been born when subject to the same they would have been natural born Subjects yet now are esteemed Aliens and so was the case vouched by Shard of a Norman who had robbed together with other English divers of his Majesties Subjects in the Narrow Seas being taken and arraigned the Norman was found guilty only of Fellony and the rest of Treason for that Normandy being lost by King John was out of the allegiance of Ed. 3. and the Norman was accounted as an Alien XI In France the Kings may there Denizize so likewise here in England but with this difference the Letters of Denization by those of France remove the totall disability and incapacity of the Alien But in England the Charter of Donasion or Denization is but a temporary partial and imperfect amotion of the disability of an Alien for though it puts the Person Indenizen'd as to some purposes in the condition of a Subject and enables a transmission hereditary to his Children born after the Denization