been usually dispensed with by special acts of parliament, previous to bilis of naturalization of any foreign princes or princesses m. [375] 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 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 but this, after three years experience of it, was repealed by the statute 10 Ann.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 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 m Stat. 4 Ann. c. 1. 7 Geo. II. c. 3. 9 Geo. II. c. 24. 4 Geo. III. c. 4. n Stat. 13 Geo. II. c. 3. o Stat. 13 Geo. II. c. 7. 20 Geo. II. c. 44. 22 Geo. II. c. 45. 2 Geo. III. c. 25. 13 Gen. III. c. 25. are, with respect to Jews p in particular, was the subject of very high debates about the time of the famous Jew-bill; 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 I. It is not my intention to revive this controversy again; for the act lived only a few months, and was then repealed: therefore peace be now to its manes. p A 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. q Stat. 26 Geo. II. c. 26. CHAPTER THE ELEVENTH. OF THE CLERGY. THE people, whether aliens, denizens, or natural-born sub jects, 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 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 refor mation 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 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 [377] 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 a 2 Inst. 4. b F. N. B. 160. 2 Inst. 4. c 4 Leon. 190. 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 functiond. During his attendance on divine service he is privileged from arrests in civil suitse (1). 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 (2): in both which particulars he is distinguished from a layman. But as they have their privileges, so also they have their disabilities, on account of their spiritual avocations. Clergymen, we have seen, are incapable of sitting in the house of commons (3); and by statute 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 d Finch. L. 88. f 2 Inst. 637. Stat. 4 Hen. VII. c. 13. and 1 Edw. VI. c. 12 g Page 175. e Stat. 50 Edw. III. c. 5. 1 Ric. II. c. 16. (1) That is, for a reasonable time, eundo, redeundo, et morando, to perform divine service. 12 Co. 100. (2) This is a peculiar 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 bigamy, or any other felony, within clergy, or which would not be a capital crime to ano-. ther person not so circumstanced. But for the honor of the clergy, there are few or no instances in which they have had occasion to claim the benefit of this privilege. See 4 vol. c. 28. (3) Sec p. 175. n. 37. ante. (4) But if they have not sufficient glebe, they may take a farm for the necessary expenses and consumption of their households. 21 Hen. VIII. c. 13. s. 8. (5) The singular prohibition to keep a tanhouse probably originated from a practice peculiar to the time. manner of trade, nor sell any merchandise, under forefeiture 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. I. An arch-bishop or bishop is elected by the chapter of his cathedral church, by virtue of a license 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 [378] 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 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 acknowledged in the emperor Charlemagne, A. D. 773, by Pope Hadrian I, and the council of Laterani, 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 h Per clerum et populum. Palm. 25. 2 Roll. Rep. 102. M. Paris. A. D. 1095. i Decret. 1. dist. 63. c. 22. (6) Though a clergyman is subject to this penalty for trading, yet his contracts are valid, and he is liable to be made a bankrupt. Cooke, Bankr. 33. |