5 Eliz. c. 7. (5) Also an alien may bring an action concerning personal property, and may make a will, and dispose of his personal estate ": 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, unless he has a peculiar exemption. (6) 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. 4 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 [ 373 ] absolutely so, with only a very few exceptions: so that a particular act of parliament became necessary after the restoration," 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: 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 con w Lutw. 34. x A word derived from alibi natus. Spelm. Gl. 24. (5) See Vol. II. p. 293. n.(6). y Stat. 29 Car. 2. c. 6. (6) The constituent assembly in 1790 and 1791 entirely abolished the droit d'aubaine; but the Code Civil has restrained the operation of these laws to the natives of those countries in which no such right exists against Frenchmen. See Code Civil, l.i. tit.1. s.11. b sent, might inherit as if born in England: and accordingly it hath been so adjudged in behalf of merchants. But by several more modern statutes these restrictions are still farther 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. (7) Yet the grandchildren of such ancestors shall not be privileged in respect of the alien's duty, except they be protestants, and [374] 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 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 ©. (8) 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". 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: for his parent, through whom he must claim, being an alien, had no inheritable blood, and a Cro. Car. 601. Mar. 91. Jenk. Cent. 3. b 7 Ann. c. 5. 4 Geo. II. c. 21. and 13 Geo. 3. c. 21. Jenk. Cent. 3. cites treasure fran cois. 312. d7 Rep. Calvin's case. 25. e Co. Litt. 8. a. (7) But the children of a British mother married to a foreigner are aliens if born abroad. 4T.R.300. Durouse v. Jones. (8) But now a child born in France of foreign parents, may, within a year after attaining 21 years, claim the character of a Frenchman, declaring, if not then resident in France, his intention to fix there, and actually fixing there within a year from such declaration. tit.1. s. 9. Code Civil, 1.i. therefore could convey none to the son. And, upon a like defect 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.. No bill for naturalization can be received in either house of parliament, without such disabling clause in it': nor 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 . 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 THESE are the principal distinctions between aliens, deni- [375] zens, and natives: distinctions, which it hath been frequently endeavoured 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. f Co. Litt. 8. Vaugh. 285. s Stat. 22 Hen. VIII. c. 8. h Stat. 12 W. III. c. 2. i Ibid. Stat. 1 Geo. I. st. 2. c. 4. 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. II. c. 24. 4 Geo. III. c. 4. 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."; 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. 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; 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: therefore peace be now to it's manes. n Stat. 13 Geo. II. c. 3. c. 44. c. 25. PA pretty accurate account of the Jews till their banishment in 8 Edw.I. may be found in Prynne's demurrer, and in Molloy de jure maritimo. b.3.c.6. (9) 9 Stat. 26 Geo. II. c. 26. Stat. 27 Geo. II. c.1. (9) See a learned note on the same subject in Mr. Turner's History of England, at the end of the reign of Edward I. 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, that, as the overflowing of waters doth many times make the river to lose its proper channel, 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 . Neither can he be chosen to any temporal office; as bailiff, reeve, constable, [377] a 2 Inst. 4. bF. N. B. 160. 2 Inst. 4. € 4 Leon. 190. |