to the prince 10 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 his 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 farther taken off: so that all children, born out of the king's legiance, 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 (15). 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 after the same shall accrue.

The children of aliens, born here in England, are, generally [*374] speaking, natural-born subjects (16), and entitled to all the *privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien (c) (17), (18).

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 (19). And, upon a like defect of hereditary blood, the issue of a denizen, born before denization, cannot inherit to him;

(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.

(15) All these exceptions to the common law, introduced by the legislature, are in cases where the father or grandfather is a naturalorn subject; but there is no provision made or the children born abroad of a mother, a na'ural-born subject, married to an alien. See Count Duroure v. Jones, 4 T. R. 300.

(16) Unless the alien parents are acting in the realm as enemies; for my Lord Coke says, it is not cælum nec solum, but their being born within the allegiance, and under the protection of the king. 7 Co. 18, a.

(17) "In this respect there is not any difference between our laws and those of France. In each country birth confers the right of naturalization." 1 Woodd. 386.

(18) By the Code Civile, 1, 1, 9, a child born of foreign parents in France may, within a year after attaining the age of twenty-one, elaim the rights of a Frenchman, declaring, if not then domiciled in France, his intention

(c) Jenk. Cent. 3, cities Treasure François, 312.
(d) 7 Rep. Calvin's case, 25.
(e) 11 Rep. 67.

to fix there, and actually fixing there within a month from such declaration.

(19) Bv the 11 and 12 W. III. c. 6, naturalborn subjects may derive a title by descent through their parents or any ancestor, though they are aliens. But by 25 Geo. II. c. 39, this restriction is superadded, viz. that no naturalborn subject shall derive a title through an alien parent or ancestor, unless he be born at the tine of the death of the ancestor who dies seised of the estate which he claims by descent, with this exception, that if a descent shall be cast upon a daughter of an alien, it shall be divested in favour of an after-born son; and in case of an after-born daughter or daugh ters only, all the sisters shall be coparceners. This exception, as it should seem, would have been quite superfluous, if Lord Coke had not held that a son of an alien could not inhe: from his brother, though the contrary had been since determined. Harg. Co. Litt. 8. a.

but his issue born after may (ƒ). A denizen is not excused (g) from pay. ing 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) (20).

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) (21). No bill for naturalization can be received in either house of parliament without such disabling clause in it (j): ner without a clause disabling the person from obtaining any immunity in trade thereby in any foreign country, 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 (). 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).

(20) As to denization in general, see 1 Chitty's Comm. L. 120. The right of making denizens 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. 1. 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, 327.

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 be tween 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.t

(21) Therefore a person naturalized is not even eligible to the office of constable. 5 Burr. 2738.

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 n certain general statutes.

(k) Stat. 14 Geo. III. c. 84.

(1) Stat. 7 Jac. I. c. 2

(m) Stat. 4 Ann. c. 1. 7 Geo. II. c. 3. 9 Geo. n. c. 24. 4 Geo. III. c. 4.

Naturalization cancels all defects, and is allowed to have a retrospective energy, which simple denization has not, Co. Lit. 129. a. post 2 book, 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.*

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 welconies him, yet he does not release himself from his natural allegiance to the government under which he was born. See I Bos. & P. 443. Bac. Ab. Aliens, a. 1 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 natu ral 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 seas, 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.

There seems to be no case in favour of this dictum of Lord Coke. Naturalization is retrospective when it does not affect third persons, if the words of the act give them that ef + Naturalization is retrospective only if the words of the law make it so: and not so as to impair termediate right. See 20 Wen. 388.

fect; so if a man be naturalized, his brother or his son born before may inherit, if they be natives. See! Vent. 419; also vol. 2, p. 132 n. 24. and p. 250; Co. Lit. 129. a. ; 2 Rol.

[*375]

*These are the principal distinctions between aliens, denizens, and natives distinctions, which it hath been frequently endea voured 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 broad. (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 afterward 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 the privy council, and holding offices or grants of lands, &c. from the crown within the kingdoms of Great Britain or Ireland (o). 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 (r): therefore peace be now to its manes (22), (23).

(n) Stat. 13 Geo. II. c. 3.

(0) Stat. 13 Geo. II. c. 7. 20 Geo. III. c. 44. 22 'Geo. II. c. 45. 2 Geo. III. c. 25. 13 Geo. III. c. 25.

(p) A pretty accurate account of the Jews till

(22) 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, so far as to confirm the title of the purchaser of lands granted during alienage. Jackson v. Beach. 1 John Cas. 399.

(23) Any free white alien, not a subject of a country at war with the U. S. may become a citizen of the U. S. on declaring on oath, before the proper courts, his intention to become such citizen, and to renounce his foreign alle giance two years before his admission; and at the time of his admission, also declaring on oath that he will support the Constitution of the U. S.; and that he renounces all foreign allegiance provided the court be satisfied that he has resided five years within the U. S. and one year in the state where the court is held; also that he is of good moral character and attached to the Constitution.

their banishment in 8 Edward I. may be found in
Prynne's Demurrer, and in Molloy de jure Mariti-
mo, b. 3. c. 6.

(g) Stat. 26 Geo. II. c. 26.
(r) Stat. 27 Geo. II. c. 1.

turalized, if dwelling in the U. S., and the children of citizens of the U. S. though born out of the U. S., are considered as citizens, unless their father has never resided in the U. S.

If an alien, who has declared his intention as above, and has obtained the certificate of the time of his arrival, age, name, &c. as re quired by the second section of the act of 1802, die before he is naturalized, his widow and children will be considered as citizens, and enjoy the rights of citizenship on taking the oaths required by law. Story's Laws, U. S. 850, 853, 1974. These two last sections seem to apply only to those naturalized in 1802: query.t

In New-York aliens cannot hold offices, nor can they take lands by descent or devise unless they have taken the steps required by statute 1 R. S. 116.720. 2 id. 57. The widow of an alien may be endowed of lands owred by her husband if at his death she were an inhabitant of the state. 1 R. S. 740.

The children under 21 years of persons naThese two sections seem not to be prospective, but only apply to those, who came within the vet af the time of its passage, in 1802

CHAPTER XI

OF THE CLERGY (1).

THEeople, 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 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 proper chan nel, so in times past ecclesiastical persons, seeking to extend their liberties beyond their true bounds, either lost on 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 *sum- [*377] moned 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), (2). 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 (3):54in both which particulars he is distinguished from a lay

(1) As to the law affecting the clergy in general, see Burn's Ecc. L. per tot. Com. Dig. tit. Esglise.

A there is no established religion in the U. S much of the law contained in this chapter is inapplicable here.

(d) Finch. L. 88.

(e) Stat. 50 Edw. III. c. 5. 1 Ric. II. c. 16.

redeundo, et morando, to perform divine service. 10 Co. 100.

(3) 2 Hale, 374, 375. 389. This is a pecu liar 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 of fence; for if a layman has once been convict. ed 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 they have had occasion to claim the benef≫ his privilege. See Book 4, c. 28. † +(54) See Hov. n. (54), at 1 e cad of the Vol.. B. I.

In New-York, the Constitution forbids any clergyman holding any civil or military office or place within the state. Art. 7, Sect. 4. As the Constitution of the U. S. has no such prohibition, they may be officers of the U. S. They are exempt from military duty, and from working on roads; their property also to the amount of 1500 dolls. is exempt from taxation. 1 R. S. 285, 506, 388. In most other respects the law makes no distinction between them and other citizens; and most of the states make no provision for their support.

That is, for a reasonable time, eundo,

man

nsten (ƒ). But as they have their privileges, so also they have their disa. bilities, on account of their spiritual avocations. Clergymen, we have seen (g), are incapable of sitting in the house of commons; and, by sta tute 21 Hen. VIII. c. 13, are not, in general, allowed to take any lands or tenements to farm, upon pain of 101. per month, and total avoidance of the lease (4); nor upon like pain to keep any tanhouse or brewhouse (5); nor shall engage in any manner of trade, nor sell any merchandize, under forfeiture of the treble value (6): which prohibition is consonant to the canon law.

In the frame and constitution 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 constitutions, by which the clergy 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. J

I. An archbishop 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 [*378] *emperors and other sovereigns of the respective kingdoms of

Europe took the appointment, in some degree, into their own hands, by reserving to themselves the right of confirming these elections, and of granting investiture of the temporalities, which now began almost universally to be annexed to this spiritual dignity; without which confir mation and investiture, the elected bishop could neither be consecrated nor receive any secular profits. This right was acknowledged 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 bishopricks is said to have been in the crown of England (k) (as well as other

(f) 2 Inst. 637, stat. 4 Hen. VII. c. 13, and 1 Edw. Rep. 102. M. Paris, A. D. 1095. VI. c. 12. (g) Page 175.

(k) Per Clerum et populum. Palm. 25. 2 Roll.

(4) By stat. 57 G. III. c. 99, 2, all beneficed or dignified clergymen, and all curates or lecturers, are restrained from taking to farm more than eighty acres without the written consent of the bishop; and which consent, it also thereby appears, must specify the number of years for which it was taken, and which may not exceed seven, for which the certificate was granted. The penalty is 40s. per acre for every acre above eighty acres.

And some very gross cases of trading by clergymen having reached the ears of the framers of this statute, a prohibitory clause was therein inserted, 3, by which carrying on trade, or buying and selling for lucre, causes

(i) Decret. I Dist. 63, c. 22.
(k) Palm. 28.

a forfeiture of the goods bought or sold, and the contracts entered into in any such trade or dealing are declared void. The avoidance of the contracts, and the forfeiture of the goods sold by clergymen, may seem to bear particularly severe upon a vendee who may be ignorant of the character or disability of the person with whom he was dealing.

(5) One sees some reason why a poor cler gyman should be tempted to sell ale; but the singular prohibition to keep a tanhouse proba bly originated from a practice peculiar to the time.

(6) See note 4, supra.