Calvin's Case

JurisdictionEngland & Wales
Judgment Date01 January 1616
Date01 January 1616
CourtCourt of the King's Bench

English Reports Citation: 77 E.R. 377

King's Bench Division

Calvin's Case

See Low v. Routledge, 1865-68, L. R. 1 Ch. 47; L. R. 3 H. L. 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 Q. B. D. 46; In re Johnson [1903], 1 Ch. 833.

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. 11132.21(8ä210 El al * POSTN A.TI (A). CALVIN'S CASE. Trio, 6 Jac. 1. [See Low v. Routledge, 1865-68, L. R. 1 Ch. 47 ; L. R. 3 H. L. 100; Reg. v. ICeyn, 1876, 2 Ex. D. 236; De Geer v. Stone, 1882, 22 Ch. D. 251. Dicta at 27 b dissented from, lore Stepney Election Petition, 1886, 17 Q. B. D. 46 ; In re Johnson [1903], 1Ch. 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, * Moor 790. Vide Dyer fo. 304. 2 Jon, 10. Vaugh. 286. 279. 301. 1 Lev. 59. Plowd. case of the Dutchy. Ellesmer, Postnati, 1, 2, &c. Bacon of Government 2 pt. 76. Atwood's Superiority 304. Salk, 411, 412. Skinner 134. 172. 198. 335. 442. Com. Dig. Allegiance. (A) Vid. Doe v. Acklani, 2 Barn. and Cress. 779. S. C. 4 Dow. and Ryl. 394, that children horn in the United States of America, since the recognition of their independence, of parents born there before that time, and continuing to reside there after wards, are aliens, and cannot inherit lands in this country. 377 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 Martin 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 oneand-fortieth. For 40s. paid in the hamper, KINDESLEY. Middlesex, se. The assize cometh to recognise, if Richard Smith, and Nicholas Smith unjustly, and without judgment, did disseise Rob. Calvin, gent. of his freehold in [1 IA 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, hy John Parkinson, and William Parkinson, his guardians, by the 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 clay of Nov. 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 afore said, 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 trot, 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 afore- said writ of the said Robert may answer. And the said Richard and Nicholas, foras- much 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, &c. And the assize aforesaid remains to be taken before the said lord the King, until the same Monday there, iVe. 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 the Court of the lord the King [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 ; because the Court of the lord the King here are not yet, &e. And the assize aforesaid remains further to be taken, until the same Monday there, &c. ; and the sheriff, as before, to distrain the recognitors of the assize aforesaid, and in the interior 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 afore- said, &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. II. 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 (I) 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 Sergeant 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 clay 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 of the King's Bench, and Sir Thomas Eggerton, Lord Ellesmere, Lord Chancellor of England, argued the case (the like plea in disability [2 b] of Robert Calvin's person being pleaded mittatis Inutandis 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...

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