Commentaries on the Laws of England Part 32

[Footnote y: Stat. 29 Car. II. c. 6.]

[Footnote z: 7 Rep. 18.]

[Footnote a: Cro. Car. 601. Mar. 91. Jenk. Cent. 3.]

[Footnote b: 7 Ann. c. 5. and 4 Geo. II. c. 21.]

THE children of aliens, born here in England, are, generally speaking, natural-born subjects, and ent.i.tled to all the privileges of such. In which the const.i.tution of France differs from ours; for there, by their _jus albinatus_, if a child be born of foreign parents, it is an alien[c].

[Footnote c: Jenk. Cent. 3. cites _treasure francois_, 312.]

A DENIZEN 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[d]. A denizen is in a kind of middle state between an alien, and natural-born subject, and partakes of both of them. He may take lands by purchase or devise, which an alien may not; but cannot take by inheritance[e]: for his parent, through whom he must claim, being an alien had no inheritable blood, and therefore could convey none to the son. And, upon a like defect of hereditary blood, the issue of a denizen, born _before_ denization, cannot inherit to him; but his issue born _after_, may[f].

A denizen is not excused[g] from paying the alien's duty, and some other mercantile burthens. And no denizen can be of the privy council, or either house of parliament, or have any office of trust, civil or military, or be capable of any grant from the crown[h].

[Footnote d: 7 Rep. Calvin's case. 25.]

[Footnote e: 11 Rep. 67.]

[Footnote f: Co. Litt. 8. Vaugh. 285.]

[Footnote g: Stat. 22 Hen. VIII. c. 8.]

[Footnote h: Stat. 12 W. III. c. 2.]

NATURALIZATION cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king's ligeance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, &c[i].

No bill for naturalization can be received in either house of parliament, without such disabling clause in it[k]. Neither can any person be naturalized or restored in blood, unless he hath received the sacrament of the Lord's supper within one month before the bringing in of the bill; and unless he also takes the oaths of allegiance and supremacy in the presence of the parliament[l].

[Footnote i: _Ibid._]

[Footnote k: Stat. 1 Geo. I. c. 4.]

[Footnote l: Stat. 7 Jac. I. c. 2.]

THESE are the princ.i.p.al distinctions between aliens, denizens, and natives: distinctions, which endeavors have been frequently used since the commencement of this century to lay almost totally aside, by one general naturalization-act for all foreign protestants. An attempt which was once carried into execution by the statute 7 Ann. c. 5. but this, after three years experience of it, was repealed by the statute 10 Ann. c. 5. except one clause, which was just now mentioned, for naturalizing the children of English parents born abroad. However, every foreign seaman who in time of war serves two years on board an English s.h.i.+p is _ipso facto_ naturalized[m]; and all foreign protestants, and Jews, upon their residing seven years in any of the American colonies, without being absent above two months at a time, are upon taking the oaths naturalized to all intents and purposes, as if they had been born in this kingdom[n]; and therefore are admissible to all such privileges, and no other, as protestants or Jews born in this kingdom are ent.i.tled to. What those privileges are[o], was the subject of very high debates about the time of the famous Jew-bill[p]; which enabled all Jews to prefer bills of naturalization in parliament, without receiving the sacrament, as ordained by statute 7 Jac. I. It is not my intention to revive this controversy again; for the act lived only a few months, and was then repealed[q]: therefore peace be now to it's _manes_.

[Footnote m: Stat. 13 Geo. II. c. 3.]

[Footnote n: Stat. 13 Geo. II. c. 7. 20 Geo. II. c. 24. 2 Geo. III. c.

25.]

[Footnote o: A pretty accurate account of the Jews, till their banishment in 8 Edw. I. may be found in Molloy _de jure maritimo_, b.

3. c. 6.]

[Footnote p: Stat. 26 Geo. II. c. 26.]

[Footnote q: Stat. 27 Geo. II. c. 1.]

CHAPTER THE ELEVENTH.

OF THE CLERGY.

THE people, whether aliens, denizens, or natural-born subjects, are divisible into two kinds; the clergy and laity: the clergy, comprehending all persons in holy orders, and in ecclesiastical offices, will be the subject of the following chapter.

THIS venerable body of men, being separate and set apart from the rest of the people, in order to attend the more closely to the service of almighty G.o.d, have thereupon large privileges allowed them by our munic.i.p.al laws: and had formerly much greater, which were abridged at the time of the reformation, on account of the ill use which the popish clergy had endeavoured to make of them. For, the laws having exempted them from almost every personal duty, they attempted a total exemption from every secular tie. But it is observed by sir Edward c.o.ke[a], that, as the overflowing of waters doth many times make the river to lose it's proper chanel, so in times past ecclesiastical persons, seeking to extend their liberties beyond their true bounds, either lost or enjoyed not those which of right belonged to them. The personal exemptions do indeed for the most part continue. A clergyman cannot be compelled to serve on a jury, nor to appear at a court-leet or view of frank pledge; which almost every other person is obliged to do[b]: but, if a layman is summoned on a jury, and before the trial takes orders, he shall notwithstanding appear and be sworn[c]. Neither can he be chosen to any temporal office; as bailiff, reeve, constable, or the like: in regard of his own continual attendance on the sacred function[d]. During his attendance on divine service he is privileged from arrests in civil suits[e]. In cases also of felony, a clerk in orders shall have the benefit of his clergy, without being branded in the hand; and may likewise have it more than once: in both which particulars he is distinguished from a layman[f]. But as they have their privileges, so also they have their disabilities, on account of their spiritual avocations. Clergymen, we have seen[g], are incapable of sitting in the house of commons; and by statute 21 Hen. VIII. c.

13. are not allowed to take any lands or tenements to farm, upon pain of 10_l._ _per_ month, and total avoidance of the lease; nor shall engage in any manner of trade, nor sell any merchandize, under forfeiture of the treble value. Which prohibition is consonant to the canon law.

[Footnote a: 2 Inst. 4.]

[Footnote b: F.N.B. 160. 2 Inst. 4.]

[Footnote c: 4 Leon. 190.]

[Footnote d: Finch. L. 88.]

[Footnote e: Stat. 50 Edw. III. c. 5. 1 Ric. II. c. 16.]

[Footnote f: 2 Inst. 637. Stat. 4 Hen. VII. c. 13. & 1 Edw. VI. c.

12.]

[Footnote g: page 169.]

IN the frame and const.i.tution of ecclesiastical polity there are divers ranks and degrees: which I shall consider in their respective order, merely as they are taken notice of by the secular laws of England; without intermeddling with the canons and const.i.tutions, by which they have bound themselves. And under each division I shall consider, 1. The method of their appointment; 2. Their rights and duties; and 3. The manner wherein their character or office may cease.

I. AN arch-bishop or bishop is elected by the chapter of his cathedral church, by virtue of a licence from the crown. Election was, in very early times, the usual mode of elevation to the episcopal chair throughout all christendom; and this was promiscuously performed by the laity as well as the clergy[h]: till at length, it becoming tumultuous, the emperors and other sovereigns of the respective kingdoms of Europe took the election in some degree into their own hands; by reserving to themselves the right of confirming these elections, and of granting invest.i.ture of the temporalties, which now began almost universally to be annexed to this spiritual dignity; without which confirmation and invest.i.ture, the elected bishop could neither be consecrated, nor receive any secular profits. This right was acknowleged in the emperor Charlemagne, _A.D._ 773, by pope Hadrian I, and the council of Lateran[i], and universally exercised by other christian princes: but the policy of the court of Rome at the same time began by degrees to exclude the laity from any share in these elections, and to confine them wholly to the clergy, which at length was completely effected; the mere form of election appearing to the people to be a thing of little consequence, while the crown was in possession of an absolute negative, which was almost equivalent to a direct right of nomination. Hence the right of appointing to bishop.r.i.c.ks is said to have been in the crown of England[k] (as well as other kingdoms in Europe) even in the Saxon times, because the rights of confirmation and invest.i.ture were in effect (though not in form) a right of complete donation[l]. But when, by length of time, the custom of making elections by the clergy only was fully established, the popes began to except to the usual method of granting these invest.i.tures, which was _per annulum et baculum_, by the prince's delivering to the prelate a ring, and a pastoral staff or crosier; pretending, that this was an encroachment on the church's authority, and an attempt by these symbols to confer a spiritual jurisdiction: and pope Gregory VII, towards the close of the eleventh century, published a bulle of excommunication against all princes who should dare to confer invest.i.tures, and all prelates who should venture to receive them[m]. This was a bold step towards effecting the plan then adopted by the Roman see, of rendering the clergy intirely independent of the civil authority: and long and eager were the contests occasioned by this dispute. But at length when the emperor Henry V agreed to remove all suspicion of encroachment on the spiritual character, by conferring invest.i.tures for the future _per sceptrum_ and not _per annulum et baculum_; and when the kings of England and France consented also to alter the form in their kingdoms, and receive only homage from the bishops for their temporalties, instead of investing them by the ring and crosier; the court of Rome found it prudent to suspend for a while it's other pretensions[n].

[Footnote h: _per clerum et populum._ Palm. 25. 2 Roll. Rep. 102. M.

Paris. _A.D._ 1095.]

[Footnote i: _Decret._ 1. _dist._ 63. _c._ 22.]

[Footnote k: Palm. 28.]

[Footnote l: "_Nulla electio praelatorum (sunt verba Ingulphi) erat mere libera et canonica; sed omnes dignitates tam episcoporum, quam abbatum, per annulum et baculum regis curia pro sua complacentia conferebat._" _Penes clericos et monachos fuit electio, sed electum a rege postulabant._ Selden. _Jan. Angl._ l. 1. --. 39.]

[Footnote m: _Decret._ 2. _caus._ 16. _qu._ 7. _c._ 12 & 13.]

[Footnote n: Mod. Un. Hist. xxv. 363. xxix. 115.]

THIS concession was obtained from king Henry the first in England, by means of that obstinate and arrogant prelate, arch-bishop Anselm[o]: but king John (about a century afterwards) in order to obtain the protection of the pope against his discontented barons, was prevailed upon to give up by a charter, to all the monasteries and cathedrals in the kingdom, the free right of electing their prelates, whether abbots or bishops: reserving only to the crown the custody of the temporalties during the vacancy; the form of granting a licence to elect, (which is the original of our _conge d'eslire_) on refusal whereof the electors might proceed without it; and the right of approbation afterwards, which was not to be denied without a reasonable and lawful cause[p]. This grant was expressly recognized and confirmed in king John's _magna carta_[q], and was again established by statute 25 Edw. III. st. 6. --. 3.

[Footnote o: M. Paris. _A.D._ 1107.]

[Footnote p: M. Paris. _A.D._ 1214. 1 Rym. _Foed._ 198.]