use for the king is thereupon entitled to them. (s) If an alien could acquire a permanent property in lands, he must owe an allegiance, equally permanent with that property, to the king of England; which would probably be inconsistent with that which he owes to his own natural liege lord: besides that thereby the nation might in time be subject to foreign influence, and feel many other inconveniences. Wherefore by the civil law such contracts were also made void; (t) but the prince had no such advantage of forfeiture thereby as with us in England. Among other reasons which might be given for our constitution, it seems to be intended by way of punishment for the alien's presumption, in attempting to acquire any landed property for the vendor is not affected by it, he having resigned his right and received an equivalent in exchange. Yet an alien may acquire a property in goods, money, and other personal estate, or may hire a house for his habitation; (u) for personal estate is of a transitory and moveable nature; and, besides, this indulgence to strangers is necessary for the advancement of trade. Aliens also may trade as freely as other people: only they are subject to certain higher duties at the custom-house: and there are also some obsolete statutes of Henry VIII., prohibiting alien artificers to work for themselves in this kingdom: but it is generally held that they s Co. Litt. 2. 8 (7) As to an alien's disability respecting lands, see 1 Chitty's Comm. L. 162. and 2 Bar. & Cres. 779. 4 D. & L. 394. The common law of this country has always been jealous of foreigners; from the conquest till upwards of two hundred years afterwards, it does not appear that strangers were permitted to reside in England, even on account of commerce, beyond a limited time, except by a special warrant, for they were considered only as sojourners coming to a fair or market, and were obliged to employ their landlords as brokers to buy and sell their commodities; and we find that one stranger was often arrested for the debt, or punished for the misdemeanor of other, as if all strangers were to be looked upon as a people with whom the English were in a state of perpetual war, and therefore might make reprisals on the first they could lay hands on. Tucker's Remarks on Naturalization Bill, 2. 3. 13. 15 2 Inst. 204. Rymer's Fo dera, vols. 1, 2, 3, 4. 1 Anderson's History of Commerce, 237. 242. At this day by the 56 Geo. III. c. 86. continued in force by 5 Geo. IV. c. 37. for two years after passing of that act, aliens may by proclamation, &c. be compelled to depart this realm under pain of heavy penalties for neglecting to do so; and by sec. 9. aliens, except domestic servants, must, within a week af ter their arrival here, produce their certificates to the chief magistrate of the place, or to a jus tice, or where certificate is lost, deliver an account of the particulars under a penalty for neg lecting to do so; and by sec. 10. mayors, &c. may detain aliens suspected of being dangerous persons, and transmit to the secretary of state an account of their proceedings; by sec. 15. no ambassadors or other public ministers duly authorized, nor their domestic servants registered or actually attendant on them, shall be deemed aliens within the act, and the act shall not extend to aliens not more than fourteen years old; by sec. 19. aliens having quitted France on account of the late troubles are not liable to be arrested for debts contracted beyond seas, other than the dominions of his majesty. The 5 Geo. IV. c. 37. enacts that the above act shall not extend to aliens having been continually resident here seven years. The privileges and disabilities to which aliens are entitled or subject are so numerous, both as respects the statute as the common law, that it would be utterly impracticable to give a concise view of them; and the reader must be referred to Tucker's Remarks on the Naturalization Bill, and 1 Chit. Com. Law, 131 to 168. See also post 2 vol. 249. 126. Chitty. (8) A political reason may be given for this, which I think stronger than any here adduced. If aliens were admitted to purchase and hold lands in this country, it might at any time be in the power of a foreign state to raise a powerful party amongst us; for power is ever the concomitant of property. This may more easily be illustrated, by briefly stating the measures taken by Russia prior to the dismemberment of Poland. For a considerable time previous to this act-(an act which has certainly cast an indelible stain upon the powers concerned in it) the czarina sent several of her subjects with large sums of money into Poland, to purchase all the estates that offered for sale; at the same time professing publicly the greatest attachment to the interests of that devoted kingdom. This had a double effect; for it not only raised in that country a powerful party completely devoted to her interest, but it at the same time, and in the same ratio, devested a large proportion of power and influence from the nobles. This proved a solid foundation for her subsequent acts; for afterwards, when she laid aside the veil which covered her designs, the country was so enfeebled by the measures she had taken, that notwithstanding the glorious and persevering struggles of a Kosiusko, it fell an easy prey to her rapacity. Archbold. were virtually repealed by statute 5 Eliz. c. 7. Also an alien may bring an action concerning personal property, and make a will, and may dispose of his personal estate; (w) not as it is in France, where the king at the death of an alien is entitled to all he is worth, by the droit d'auboine or jus albinatus, (x) unless he has a peculiar exemption. When I mention these rights of an alien, I must be understood of alien friends only, or such whose countries are in peace with our's: for alien enemies have no rights, no privileges, unless by the king's special favour during the time of war. 10 When I say that an alien is one who is born out of the king's dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood absolutely so, with only a very few exceptions: so that a particular act of parliament became necessary after the Restoration, (y)" for the naturalization of children of his majesty's Eng"lish subjects, born in foreign countries during the late troubles." [373] And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king's ambassadors born abroad were always held to be natural subjects: (2) for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England's allegiance, represented by his father, the ambassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. (a) But by several more modern statutes (b) these restrictions are still far her taken off: so that all children, born out of the king's ligeance, whose fathers (or grandfathers by the father's side) were natural-born subjects, are now deemed to be natural-born subjects themselves, to all intents and purposes; unless their said ancestors were attainted, or banished beyond sea, for high treason; or were at the birth of such children in the service of a prince at enmity with Great Britain. Yet the grandchildren of such ancestors shall not be privileged in respect of the alien's duty, except they be protestants, and actually reside within the realm; nor shall be enabled to claim any estate or interest, unless the claim be made within five years [374] after the same shall accrue. The children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such. In which w Lutw. 54. x A word derived from alibi natus. Spelm. Gl. 24. y Stat. 29. Car. II. c. 6. z 7 Rep. 18. A Cro. Car. 601. Mar. 91. Jenk. Cent. 3. b 7 Ann. c. 5. 4 Geo. II. c. 21. and 13 Geo. III. c. 21. (9) The droit d'aubaine was abolished by the constituent assembly in 1790 and 1791. See Code Civil L. 1. tit. 1. s. 11. (10) When an alien dies in the United States during a war with his native country, leaving per. sonal property, his relations abroad the next of kin, being aliens, are not entitled to a distributive of the property. Bradwell v. Weeks. 13 John. Rep. 1. An alien enemy, flagrante bello, can maintain no action within real or personal, but his right is suspended only during the war. Hutchinson v. Book, 11. Mass. Rep. 119. Bell. v. Chapman, 10 John. 183. But aliens residing in the United States at the commencement of a war between their native country and the United States, may sue and be sued as in time of peace. Clark. v. Morey. 10. John. 69. Ed. the constitution of France differs from ours; for thère, by their jus albinatus, if a child be born of foreign parents, it is an alien. (c) A denizen is an alien born, but who has obtained ex donatione legis 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 denizan 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 of lands, &c. from the crown. (h)" 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, holding offices, grants, &c. (i) No bill for naturalization can be received in either house of parliament, without such disabling clause in it: (j) nor without a clause disabling the person from obtaining any immunity in trade thereby, in any foreign counc Jenk. Cent. 3. cites treasure francois. S12. d 7 Rep. Calvin's case. 25. e 11 Rep. 67. f Co. Litt. %. Vaugh. 285. g Stat. 22 Hen. VIII. c. 8. h Stat. 12 W. III. c. 2. j Stat. 1 Geo. I. c. 4. i Ibid. (11) As to denization in general, see 1 Chitty's Comm. L. 120. The right of making deni. zens is not exclusively vested in the king, for it may be by parliament; but it is scarcely ever exercised by any but the royal power. It may be effected by conquest, 7 Co. 6. a. 2. Vent. 6. Com. Dig. Aliens. D. I. The king cannot delegate this right to another. 7 Co. 25. b. Com. Dig. Aliens, D. 1. See form of Letters of Denization, 2 Chitty's Comm. L. appendix, $27. The British law protects denizens made so by this country, but also respects the rights of those who have been declared denizens of foreign states; thus a natural-born subject of England having been admitted a denizen of the United States of America, is entitled as such denizen to the benefit of the treaty between England and the United States, which authorizes the trade of Americans to the territories of the British East India Company, though as an English subject he would not have been permitted to carry on such a commerce. 8 T. R. 31. 1 B & P. 430. Chitty. (12) Therefore a person naturalized is not even eligible to the office of constable. 5 Burr. 2788. As to naturalization in general, see Chalmer's Coll. Op. 382. Com. Dig. Aliens, B. 2. 1 Chitty's Com. Law, 123 to 130. and see form of acts of naturalization, 2 Chitty's Com. L. appendix. 324 to 327. A person may become naturalized ipso facto by complying with the conditions pointed out in certain general statutes. Naturalization cancels all defects, and is allowed to have a retrospective energy, which simple denization has not. Co. Lit. 129. a post 2 vol. 250. ; and if a man take an alien to wife, and afterwards sell his land, and his wife be naturalized, she shall be endowed of the lands sold before her naturalization, Co. Lit. 33. a.; and if a man be naturalized, his brother and his son before shall inherit. Co. Lit. 129. a. 1 Vent. 419. 2 Rol. 93. Naturalization is not, as denization may be, merely for a time, but is absolutely for ever; and not for life only, or to him and the heirs of his body, or upon condition. Cro. Jac. 539. Co. Lit. 129. a. 2. This practice of naturalizing foreigners is not peculiar to the English constitution; and though the stranger thus adopted becomes a subject of the state which welcomes him, yet he does not release himself from his natural allegiance to the governinent under which he was born. See 1 Bos. & P. 443. Bac. Ab. Aliens, a. Woodeson, 382. Naturalizations in a foreign country, without licence, will not discharge a natural-born subject from his allegiance. 2 Chalm. Col. Op. 363. But though a natural-born subject cannot voluntarily emancipate himself from his natural allegiance, so as to exempt himself from the duties incident thereto, yet he may, by his violation of law, forfeit many of the advantages of a natural-born subject, and place himself in the situation of an alien. Thus it has been enacted, that if an English subject go beyond the scas, and and there become a sworn subject to any foreign prince or state, he shall, while abroad, pay such impositions as aliens do. 14 & 15 Hen. VIII. c. 4. Chitty try; unless he shall have resided in Britain for seven years next after the commencement of the session in which he is naturalized. (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. (1) But these provisions have been usually dispensed with by special acts of parliament, previous to bills of naturalization of any foreign princes or princesses. (m) 13 These are the principal distinctions between aliens, denizens, and natives distinctions, which it hath been frequently endeavoured since the commencement of this century to lay almost totally aside, by one [375] general naturalization act for all foreign protestants. 14 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 ship by virtue of the king's proclamation, is ipso facto naturalized, under the like restrictions as in statute 12 W. III. c. 2.; (n) 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, and all foreign protestants serving two years in a military capacity there, or being three years employed 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 declared by statute 4 Geo. II. c. 21. shall be (upon taking the oaths of allegiance and abjuration, or, in some cases, an affirmation to the same effect) naturalized to all intents and purposes, as if they had been born in this kingdom; except as to sitting in parliament or in privy council, and holding offices or grants of lands, &c. from the crown, within the kingdoms of Great Britain or Ireland. (0) They therefore are admissible to all other privileges which protestants or Jews born in this kingdom are entitled to. What those privileges are, with respect to Jews (p) in particular, was the subject of very high debates about the time of the famous Jew-bill; (9) which enables 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: () therefore peace be now to its manes. k Stat. 14 Geo. III. c. 84. 15 1 Stat. 7 Jac. I. c. 2. m Stat. 4 Ann. c. 1. 7 Geo. I. c. S. 9 Geo. II. c. 24. 4 Geo. III. c. 4. o Stat. 13 Geo. II. c. 7. 20 Geo. II. c. 44. 22 Geo. II. c. 45. 2 Geo. III. c. 25. 13 Geo. III. c. 25. q Stat. 26 Geo. II. c. 26. r Stat. 27 Geo. II. c. 1. (13) See act of naturalization of prince Leopold, 56 Geo. III 2 Chitty's Com. L. appendix, 324. (14) See Tucker's Essay on Trade, 84, &c. and Tucker's History of the Naturalization Bill, &c. (15) If an alien be naturalized, he shall be to all intents, as a natural subject, and shall inherit as if born in this country. Ainsley v. Martin. 9 Mass. Rep. 454. Naturalization has relation back, and confirms the title of the purchaser of lands granted during alienage. Jackson v. Beach. 1 John. Cas. 399. Ed. CHAP. XI. OF THE CLERGY.' THE people, whether aliens, denizens, or natural-born subjects, are divisible into two kinds; the clergy and the 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 services of Almighty God, have thereupon large privileges allowed them by our municipal 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 Coke, (a) that, as the overflowing of waters doth many times make the river to lose its chanproper nel, 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 [377] other person is obliged to do: (b) but if a layman is summoned on a 2 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)3 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. (ƒ)' But as they have their pri a 2 Inst. 4. 4 b F. N. B. 160. 2 Inst. 4. (1) As to the law affecting the clergy in general, see Burn's Ecc. L. per tot. Com. Dig. tit. Esglise. As there is no established religion in the United States, much of the law contained in this chapEd. ter is inapplicable here. (2) And ecclesiastical persons are not bound to appear at the torn or view of frank-pledge. 52 Hen. III. c. 10. 9 Edw. fl. c. 3. 2 Inst. 4. Ecclesiastical persons are not bound, and ought not to serve in war. 2 Inst. 4. (3) This privilege only extends whilst the clergyman is going to or returning from church, or performing divine service, and not if he stay in church with a fraudulent design of eluding the process of the law. See 12 Co. 100. Tidd. Prac. 8 ed. 217. An action on the case would lie at the suit of the clergyman, for maliciously arresting contrary to the above law. See 3 Wils. 341. Chitty. 2 Bla. Rep. 1087. 1190. Dougl. 671. Watson, ch. 34. p. 341. (4) 2 Hale, 374, 375, 389. This is a pecular privilege of the clergy, that sentence of death can never be passed upon them for any number of manslaughters, bigamies, simple larcenies, or other clergyable offences; but a layman, even a peer, may be ousted of clergy, and will be subject to the judgment of death upon a second conviction of a clergyable offence; for if a layman has once been convicted of manslaughter, upon production of the conviction he may afterwards suffer death for a felony, within clergy, or which would not be a capital crime in another person not so circumstanced. But for the honour of the clergy, there are few or no instances in which Chitty. they have had occasion to claim the benefit of this privilege. See 4 vol. c. 28. |