natural-born subjects. Natural-born subjects are such as are born
within the dominions of the crown of England, that is, within the
ligeance, or as it is generally called, the allegiance of the king;
and aliens, such as are born out of it. Allegiance is the tie, or
_ligamen_, which binds the subject to the king, in return for that
protection which the king affords the subject. The thing itself, or
substantial part of it, is founded in reason and the nature of
government; the name and the form are derived to us from our Gothic
ancestors. Under the feodal system, every owner of lands held them in
subjection to some superior or lord, from whom or whose ancestors the
tenant or vasal had received them: and there was a mutual trust or
confidence subsisting between the lord and vasal, that the lord should
protect the vasal in the enjoyment of the territory he had granted
him, and, on the other hand, that the vasal should be faithful to the
lord and defend him against all his enemies. This obligation on the
part of the vasal was called his _fidelitas_ or fealty; and an oath of
fealty was required, by the feodal law, to be taken by all tenants to
their landlord, which is couched in almost the same terms as our
antient oath of allegiance[a]: except that in the usual oath of fealty
there was frequently a saving or exception of the faith due to a
superior lord by name, under whom the landlord himself was perhaps
only a tenant or vasal. But when the acknowlegement was made to the
absolute superior himself, who was vasal to no man, it was no longer
called the oath of fealty, but the oath of allegiance; and therein the
tenant swore to bear faith to his sovereign lord, in opposition to all
men, without any saving or exception: "_contra omnes homines
fidelitatem fecit_[b]." Land held by this exalted species of fealty
was called _feudum ligium_, a liege fee; the vasals _homines ligii_,
or liege men; and the sovereign their _dominus ligius_, or liege lord.
And when sovereign princes did homage to each other, for lands held
under their respective sovereignties, a distinction was always made
between _simple_ homage, which was only an acknowlegement of
tenure[c]; and _liege_ homage, which included the fealty
before-mentioned, and the services consequent upon it. Thus when
Edward III, in 1329, did homage to Philip VI of France, for his ducal
dominions on that continent, it was warmly disputed of what species
the homage was to be, whether _liege_ or _simple_ homage[d]. With us
in England, it becoming a settled principle of tenure, that _all_
lands in the kingdom are holden of the king as their sovereign and
lord paramount, no oath but that of fealty could ever be taken to
inferior lords, and the oath of allegiance was necessarily confined to
the person of the king alone. By an easy analogy the term of
allegiance was soon brought to signify all other engagements, which
are due from subjects to their prince, as well as those duties which
were simply and merely territorial. And the oath of allegiance, as
administred for upwards of six hundred years[e], contained a promise
"to be true and faithful to the king and his heirs, and truth and
faith to bear of life and limb and terrene honour, and not to know or
hear of any ill or damage intended him, without defending him
therefrom." Upon which sir Matthew Hale[f] makes this remark; that it
was short and plain, not entangled with long or intricate clauses or
declarations, and yet is comprehensive of the whole duty from the
subject to his sovereign. But, at the revolution, the terms of this
oath being thought perhaps to favour too much the notion of
non-resistance, the present form was introduced by the convention
parliament, which is more general and indeterminate than the former;
the subject only promising "that he will be faithful and bear _true_
allegiance to the king," without mentioning "his heirs," or specifying
in the least wherein that allegiance consists. The oath of supremacy
is principally calculated as a renuntiation of the pope's pretended
authority: and the oath of abjuration, introduced in the reign of king
William[g], very amply supplies the loose and general texture of the
oath of allegiance; it recognizing the right of his majesty, derived
under the act of settlement; engaging to support him to the utmost of
the juror's power; promising to disclose all traiterous conspiracies
against him; and expressly renouncing any claim of the pretender, by
name, in as clear and explicit terms as the English language can
furnish. This oath must be taken by all persons in any office, trust,
or employment; and may be tendered by two justices of the peace to any
person, whom they shall suspect of disaffection[h]. But the oath of
allegiance may be tendered[i] to all persons above the age of twelve
years, whether natives, denizens, or aliens, either in the court-leet
of the manor, or in the sheriff's tourn, which is the court-leet of
the county.
[Footnote a: 2 _Feud._ 5, 6, 7.]
[Footnote b: 2 _Feud._ 99.]
[Footnote c: 7 Rep. Calvin's case. 7.]
[Footnote d: 2 Carte. 401. Mod. Un. Hist. xxiii. 420.]
[Footnote e: Mirror. _c._ 3. Sec. 35. Fleta. 3. 16. Britton. _c._ 29. 7
Rep. Calvin's case. 6.]
[Footnote f: 1 Hal. P.C. 63.]
[Footnote g: Stat. 13 W. III. c. 6.]
[Footnote h: Stat. 1 Geo. I. c. 13.]
[Footnote i: 2 Inst. 121. 1 Hal. P.C. 64.]
BUT, besides these express engagements, the law also holds that there
is an implied, original, and virtual allegiance, owing from every
subject to his sovereign, antecedently to any express promise; and
although the subject never swore any faith or allegiance in form. For
as the king, by the very descent of the crown, is fully invested with
all the rights and bound to all the duties of sovereignty, before his
coronation; so the subject is bound to his prince by an intrinsic
allegiance, before the superinduction of those outward bonds of oath,
homage, and fealty; which were only instituted to remind the subject
of this his previous duty, and for the better securing it's
performance[k]. The formal profession therefore, or oath of
subjection, is nothing more than a declaration in words of what was
before implied in law. Which occasions sir Edward Coke very justly to
observe[l], that "all subjects are equally bounden to their
allegiance, as if they had taken the oath; because it is written by
the finger of the law in their hearts, and the taking of the corporal
oath is but an outward declaration of the same." The sanction of an
oath, it is true, in case of violation of duty, makes the guilt still
more accumulated, by superadding perjury to treason; but it does not
encrease the civil obligation to loyalty; it only strengthens the
_social_ tie by uniting it with that of _religion_.
[Footnote k: 1 Hal. P.C. 61.]
[Footnote l: 2 Inst. 121.]
ALLEGIANCE, both express and implied, is however distinguished by the
law into two sorts or species, the one natural, the other local; the
former being also perpetual, the latter temporary. Natural allegiance
is such as is due from all men born within the king's dominions
immediately upon their birth[m]. For, immediately upon their birth,
they are under the king's protection; at a time too, when (during
their infancy) they are incapable of protecting themselves. Natural
allegiance is therefore a debt of gratitude; which cannot be
forfeited, cancelled, or altered, by any change of time, place, or
circumstance, nor by any thing but the united concurrence of the
legislature[n]. An Englishman who removes to France, or to China, owes
the same allegiance to the king of England there as at home, and
twenty years hence as well as now. For it is a principle of universal
law[o], that the natural-born subject of one prince cannot by any act
of his own, no, not by swearing allegiance to another, put off or
discharge his natural allegiance to the former: for this natural
allegiance was intrinsic, and primitive, and antecedent to the other;
and cannot be devested without the concurrent act of that prince to
whom it was first due. Indeed the natural-born subject of one prince,
to whom he owes allegiance, may be entangled by subjecting himself
absolutely to another; but it is his own act that brings him into
these straits and difficulties, of owing service to two masters; and
it is unreasonable that, by such voluntary act of his own, he should
be able at pleasure to unloose those bands, by which he is connected
to his natural prince.
[Footnote m: 7 Rep. 7.]
[Footnote n: 2 P. Wms. 124.]
[Footnote o: 1 Hal. P.C. 68.]
LOCAL allegiance is such as is due from an alien, or stranger born,
for so long time as he continues within the king's dominion and
protection[p]: and it ceases, the instant such stranger transfers
himself from this kingdom to another. Natural allegiance is therefore
perpetual, and local temporary only: and that for this reason,
evidently founded upon the nature of government; that allegiance is a
debt due from the subject, upon an implied contract with the prince,
that so long as the one affords protection, so long the other will
demean himself faithfully. As therefore the prince is always under a
constant tie to protect his natural-born subjects, at all times and in
all countries, for this reason their allegiance due to him is equally
universal and permanent. But, on the other hand, as the prince affords
his protection to an alien, only during his residence in this realm,
the allegiance of an alien is confined (in point of time) to the
duration of such his residence, and (in point of locality) to the
dominions of the British empire. From which considerations sir Matthew
Hale[q] deduces this consequence, that, though there be an usurper of
the crown, yet it is treason for any subject, while the usurper is in
full possession of the sovereignty, to practice any thing against his
crown and dignity: wherefore, although the true prince regain the
sovereignty, yet such attempts against the usurper (unless in defence
or aid of the rightful king) have been afterwards punished with death;
because of the breach of that temporary allegiance, which was due to
him as king _de facto_. And upon this footing, after Edward IV
recovered the crown, which had been long detained from his house by
the line of Lancaster, treasons committed against Henry VI were
capitally punished, though Henry had been declared an usurper by
parliament.
[Footnote p: 7 Rep. 6.]
[Footnote q: 1 Hal. P.C. 60.]
THIS oath of allegiance, or rather the allegiance itself, is held to
be applicable not only to the political capacity of the king, or regal
office, but to his natural person, and blood-royal: and for the
misapplication of their allegiance, viz. to the regal capacity or
crown, exclusive of the person of the king, were the Spencers banished
in the reign of Edward II[r]. And from hence arose that principle of
personal attachment, and affectionate loyalty, which induced our
forefathers (and, if occasion required, would doubtless induce their
sons) to hazard all that was dear to them, life, fortune, and family,
in defence and support of their liege lord and sovereign.
[Footnote r: 1 Hal. P.C. 67.]
THIS allegiance then, both express and implied, is the duty of all the
king's subjects, under the distinctions here laid down, of local and
temporary, or universal and perpetual. Their rights are also
distinguishable by the same criterions of time and locality;
natural-born subjects having a great variety of rights, which they
acquire by being born within the king's ligeance, and can never
forfeit by any distance of place or time, but only by their own
misbehaviour: the explanation of which rights is the principal subject
of the two first books of these commentaries. The same is also in some
degree the case of aliens; though their rights are much more
circumscribed, being acquired only by residence here, and lost
whenever they remove. I shall however here endeavour to chalk out some
of the principal lines, whereby they are distinguished from natives,
descending to farther particulars when they come in course.
AN alien born may purchase lands, or other estates: but not for his
own 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 escheat 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 they were virtually repealed by
statute 5 Eliz. c. 7. Also an alien may bring an action concerning
personal property, and may make a will, and 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'aubaine_ 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 ours; for alien-enemies
have no rights, no privileges, unless by the king's special favour,
during the time of war.
[Footnote s: Co. Litt. 2.]
[Footnote t: _Cod._ _l._ 11. _tit._ 55.]
[Footnote u: 7 Rep. 17.]
[Footnote w: Lutw. 34.]
[Footnote x: The word is derived from _alibi natus_; Spelm. Gl. 24.]
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 English subjects, born in foreign countries during
the late troubles. 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 embassadors born abroad were always
held to be natural subjects[z]: 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 embassador. 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
farther taken off: so that all children, born out of the king's
ligeance, whose _fathers_ were natural-born subjects, are now
natural-born subjects themselves, to all intents and purposes, without
any exception; unless their said fathers were attainted, or banished
beyond sea, for high treason; or were then in the service of a prince
at enmity with Great Britain.
[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 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].
[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 principal 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 ship 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 entitled 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 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 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 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 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 investiture of the temporalties, which now
began almost universally to be annexed to this spiritual dignity;
without which confirmation and investiture, 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
bishopricks 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 investiture 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 investitures, 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 investitures, 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 investitures 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].