ePub 版

the son could not inherit his mother's lands in England, because he was to all intents and purposes an alien. Yet the grandchildren of such male ancestors are not privileged in respect of the alien's duty, except they be protestants, and actually reside within the realm; neither are they enabled to claim any estate or interest, unless the claim is made within five years after the same shall accrue.

The children of aliens born in Great Britain are, generally speaking, esteemed natural born subjects, and entitled to all the privileges of such, unless the alien parents are acting in the realm as enemies. In this par ticular the constitution of France differs from ours; for by their jus albinatus in that kingdom, a child born of foreign parents is an alien.

A DENIZEN is an alien born, who has obtained, ex donatione legis, letters patent from the king to make him a British subject, a high and incommunicable branch of the royal prerogative. A denizen is, therefore, a sort of middle state between an alien and a natural born subject, and partakes of both their natures. He may either purchase lands at his discretion, or succeed to them by will or devise, neither of which an alien can do, but he cannot take by inheritance, which a natural born subject can do; for the denizen's parent, through whom he must claim, being an alien, had consequently no inheritable blood, and therefore could not convey any to his son. And upon a like defect of hereditary blood, a denizen's issue born before denization, cannot inherit his real property, but his issue born after may. A denizen is not excused from paying the alien's duty, and some other mercantile burdens. All denizens are absolutely barred the privilege of being either members of the privy council, or of the great council of the nation-parliament—and that too either of the house of peers or commons. Neither can they enjoy any office of civil or military trust, nor be capable of accepting any grant of lands from the crown. Natural born subjects may devise a title by descent, through their parents or any ancestor, though they may have been aliens. But by a subsequent statute, the following restriction has been superadded: that no natural born subject shall devise a title through an alien parent or ancestor, unless he be born at the time of his ancestor's death, who dies seised of the estate which he claims by descent. With this exception, that if a descent shall be cast upon the daughter of an alien, it shall be divested in favour of an after born son; and in case of an after born daughter or daughters only, all the sisters shall be co- -parceners.


NATURALIZATION can only be performed by act of parliament, for the act of naturalization puts the alien in exactly the same state as if he had been born under the king's allegiance, with this exception, that be,

* 11 & 12 W. and M., c. 6. 25 Geo. II., c. 39.

as well as a denizen, is incapable of being a member of the privy council or parliament, or of holding offices, grants, &c. This restriction was found necessary by our ancestors after the Revolution, arising out of a jealousy of the partiality which the prince of Orange so glaringly showed towards his Dutch favourites, on whom he bestowed titles, and would have bestowed all the crown lands in the kingdom, had not the parliament remonstrated with him in a way not to be misunderstood. Without this disabling clause, no bill of naturalization can be received; nor without a clause disabling the person from obtaining any immunity in trade thereby in any foreign country, unless he shall reside in Great Britain for seven years next after the commencement of the session in which he has been naturalized. Neither can any person be naturalized or restored in blood, unless he has 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. But in the cases of foreign princes and princesses, these provisions have usually been dispensed with by special acts of parliament, previous to the introduction of bills for their naturalization.

These are the principal distinctions between aliens, denizens, and natives, and which parliament has frequently endeavoured to set aside since the Revolution by one general act of naturalization in favour of all foreign protestants. It was attempted in the reign of queen Anne. But after three years' experience of its inexpediency, it was repealed, with the exception of the clause which has just been mentioned for naturalizing the children of British parents born abroad. Every foreign seaman who serves for two years in time of war on board a British man of war is, by virtue of the king's proclamation, ipso facto naturalized, under the restrictions, however, of the statute of 12 Wil. III., already noticed; and all foreign protestants and Jews, after a residence of seven years in any of the American colonies, without having been absent for more than two months at a time, and also all foreign protestants who have served two years there in a military capacity, or have been einployed for three years in the whale fishery, without afterwards absenting themselves from the king's dominions for more than one year, and none of them falling within the incapacities already mentioned, shall on taking the oaths of allegiance and abjuration,† or, in some particular cases, an affirmation to the same effect, be naturalized to all intents and purposes, as if they had been natural born subjects of the British crown. Except as to sitting in parliament, holding offices, and receiving grants of land, &c. from the crown. They are therefore admissible to all the other privileges to which protestants or Jews born in

* 12 Wil. III.

4 Geo. II., c. 21.

this kingdom are entitled. The famous Jew bill in the year 1753, was the subject of very high debates, but which was carried, and enabled al Jews to prefer bills of naturalization in parliament without receiving the sacrament of the Lord's supper according to the rites of the church of England, which had been ordained by the statute passed in their favour by James I. This statute, however, was only in force a few months, and was repealed the following year: "that the above mentioned act, and the several matters and things therein contained, shall be, and is, and are hereby repealed and made void to all intents and purposes whatsoever."+


THE PEOPLE, whether aliens, denizens, or natural born subjects, are divisible into two kinds, clergy and laity. Aliens and denizens have been already discussed. The following section will be devoted to the clergy, comprehending all persons in holy orders, and in ecclesiastical offices. The lay part of his majesty's subjects, or such of the people as are not comprehended under the denomination of the clergy, are divided into the distinct states of the civil, the military, and the maritime, have been already described, and we therefore refer to them merely in this place.

This venerable body of men, being separate and set apart from the rest of the people, in order to attend more closely to the service of Almighty God, have in consequence considerable privileges allowed them by the municipal laws of these kingdoms, which formerly were much greater, but which were greatly abridged at the Reformation, on account of the abominable abuses which had crept into the whole body of the Romish clergy. The laws having exempted them from almost every personal duty and obligation, they attempted to relieve themselves from every secular tie. In reflecting on this most absurd abuse of their reasonable privileges, Sir Edward Coke observes," that as the overflowing of waters doth many times make the river to lose its proper channel, so in times past ecclesias tical 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 which the Romish clergy enjoyed, still for the most part continue to be enjoyed by their protestant successors. A clergyman in any part of Great Britain, cannot be compelled to serve on a jury, nor to appear at a court leet, or view of Frank pledge in England or

*26 Geo. II., c. 26.

27 Geo. II., c. 1.-Blackstone's Commentaries, with Professor Christian's Notes, &c. Statutes at Large

2 Inst. 4.

Ireland, which almost every other person in these two kingdoms is obliged to do: but if a layman should be summoned on a jury, and before the trial takes place he should take holy orders, he must notwithstanding appear at the trial and be sworn. A clergyman cannot be chosen to any temporal office, such as bailiff, reeve, constable, or the like, in regard of his own continual attendance on his sacred functions. He is privileged from being arrested for civil suits during his performance of divine service, that is for a reasonable time, eundo, redeundo, et morando, in going, returning, and remaining to perform divine service. Also in cases of felony, a clerk in orders, that is a clergyman, could have had the benefit of clergy, without being branded in the hand, and that too more than once; in both which particulars he was distinguished from a layman. This was a peculiar privilege of the clergy of the church of England, that sentence could never be passed on them for any number of manslaughters, bigamies, simple larcenies, or other clergyable offences; but a layman, even a peer, might have been ousted of clergy, and subjected to the sentence of death on a second conviction for a clergyable offence; for if a layman had once been convicted of manslaughter, he might for bigamy, or any other felony within the benefit of clergy afterwards suffer death, on production of the previous conviction, although any of these crimes for the first offence would not subject a man to the punishment of death. But for the honour of that numerous class of his majesty's subjects, there has never almost been an instance in which they have had occasion to claim the benefit of this privilege.

Benefit of clergy, privilegium clericale, being now wholly abolished,* the law on the subject is of little more use now than as a matter of history or curiosity. It had its origin in the pious regard paid by Christian princes to the church in its infant state, and the ill use which the Romish clergy made of that piety. The exemptions which their piety induced them to make, were principally of two kinds: 1. Exemption of places consecrated to religious duties from criminal arrests, which was the foundation of sanctuaries. 2. Exemptions of the persons of the clergy from criminal process before a secular judge, in a few particular cases, which was the true original and meaning of the benefit of clergy. "The wisdom of the English legislature having, in the course of a long and laborious process, extracted by a noble alchymy rich medicines out of poisonous ingredients; and converted by gradual mutations, what was at first an unreasonable exemption of particular popish ecclesiastics, into a merciful mitigation of the general law, with respect to capital punishment." But as the clergy have their privileges, so also they have many disabilities,

* 7 & 8 Geo. IV., c. 28.

on account of their spiritual avocations. The clergy are incapable of sitting in the house of commons, because they sit in the convocation, which is in fact part and parcel of the parliament. A committee of the house of commons in 1785, decided that a gentleman, who had been regularly admitted to deacon's orders, was incapable of being a member of that house. Many of the arguments in that case might with equal force be urged for the admission or exclusion of a person in priest's orders. The chief authorities for the exclusion of the clergy, are certain entries in the journals of the house of commons, where it is urged that persons returned being clerks, they either have or might have a voice in the house of convocation. Lord Coke says, "that none of the clergy, though they be of the lowest order, are eligible, because they are of another body, that is, of the convocation;" and he refers to an entry in the commons' journals. But besides these authorities, there are canons of the church which prohibit the clergy from voluntarily relinquishing the office of a deacon or minister, from using themselves in the course of their lives as laymen, and from exercising secular jurisdictions. Mr Woodesdon has observed,† that the arguments from the convocation ought not to be urged against unbeneficed clergymen, as they can neither sit in the convocation, nor vote for the proctors or representatives in convocation.


[ocr errors][ocr errors][merged small]

The same reason for disqualifying the inferior clergy from sitting in the house of commons, were it good, might be applied for the exclusion of the bishops from the house of lords, because they sit of right in, and form the upper house of convocation, to which they are summoned by the king's writ, and are not elected like the members of the lower house of convocation. It frequently happens that a lay peerage descends to a clergyman in priest's orders but it has never been supposed, even although he should obtain a benefice, that his sacred character would disable him from taking his seat in the house of peers. Until the Reformation, twenty-nine of the regular clergy, abbots and priors, who were dead in law to most other purposes, had seats in the house of lords in consequence of the lands which they held in capite of the crown. In Scotland, the three estates sat and voted together in one chamber. It would have been unaccountable, if by the common law holy orders had excluded one of these estates from parliament, and not the others; but both in Scotland and Ireland, the clergy were declared to be ineligible by statute; by which we may clearly infer, that without the authority of an act of parliament, the clergy would of common right have participated in this privilege with other subjects. Mr Hody very justly calls the argument drawn from the convocation a new pretence, which was resorted to in the time of queen Mary of bloody memory,‡ in order to exclude some protestant clergy from the house of ¦ Wight, 293. Lord Mountm. 50.

* 4 Inst. 47.

t1 Gibs. Cod. 180. 184.

« 上一頁繼續 »