be provided and kept for that purpose only; and that every person so neglecting or refusing to take the said oaths, shall be, from the time of his neglect or refusal, taken, esteemed, and adjudged a popish recusant convict, and as such to forfeit and be proceeded against." (a) The persons who are expressly required to take the oaths, and yet refuse to take them, according to the acts are, ipso facto, adjudged incapable and disabled in law to hold or enjoy any of the offices or employments mentioned in the statute 1 Geo. 1. st. 2. c. 13. s. 2.; and if they execute such offices or employments without duly taking the oaths, they are, on conviction thereof, "disabled to sue or use any action or suit, or to be guardian of any child, or executor or administrator of any person, or capable of any legacy, or deed of gift, or to be in any office within the realm of Great Britain, or to vote at any election for members to serve in Parliament, and shall forfeit the sum of five hundred pounds, to be recovered by a common informer, in an action in one of the Courts at Westminster, and by way of summary complaint before the Court of Sessions, or prosecution before the Court of Justiciary in Scotland." SECT. III. Of such Rights of the King over the Persons of his Subjects, as more immediately result from the Allegiance and Submission due from them. THE King has an interest in all his subjects; and is so far entitled to their services, that in case of a sudden invasion or formidable insurrection, his Majesty may legally demand and enforce their personal assistance, though he can on no occasion compel them to leave the country for warlike or other purposes. (b) His Majesty may also, on any occasion, employ, and compel his subjects to serve in such offices or functions as the public good and the nature of the constitution require. (c) It is a general rule, that where a person is legally (a) Persons who refuse to appear before Justices when summoned to take the oaths, &c. are liable to be punished, as if they refused to take them. 1 Geo. 1. (b) Foster, 158. 16 Vin. 169. As to Impressing Seamen, &c. post. ch. 4. 1 Ld. Ray. 52, 33. Bac. Ab. 520. tit. 1 Term. Rep. 682. called (c) Moore, 111. and cases cited 5 Prerogative, C. 2. called upon to perform a public duty, he is liable to be punished if he refuse to perform it. (a) Hence, for instance, a lawyer is bound on pain of punishment to accept the degree of Serjeant at Law, when called thereto by the King's writ; (b) nor can a person duly appointed sheriff legally refuse to execute that office. (c) This doctrine is not confined to the case of offices immediately under the Crown, nor to officers appointed by his Majesty; for persons named jurymen or parish officers must serve. (d) Nor can a dignity or honour, as for instance that of knighthood, be legally refused. (e) There seems also to be no doubt, that a person summoned by the King to the House of Lords, or elected and returned to serve in the House of Commons, is liable to be punished if, being qualified, he refuse to become a member of either assembly. (f) Various statutes require persons to take the oaths of allegiance and abjuration, and other oaths, before they act in any public office or employment to which they may have been nominated; and provide, that on their neglecting or refusing to take the oaths, they shall be unable to enjoy or possess such offices or employments. (g) As no one can avail himself of his own wrong, it seems that a person legally called upon and appointed to execute any public office or employment, cannot protect himself from the consequences of his refusal to serve therein, by neglecting to take the oaths required. (h) It appears, however, to be clear, that a person may legally decline any public function, where sincere religious scruples (which our law does not attempt to disturb or punish, unless they manifestly endanger the peace and welfare of society,) prevent him from conscientiously taking the oaths required. (i) (a) Per Ld. Ellenborough, 2 M. and Selw. 218. (b) 2 Inst. 214. 2 M. and Selw. 218. (c) See Bac. Ab. ubi supra. By 1 Rich. 2. c. 11. no man who has served the office of sheriff for one year is obliged to serve the same within three years after, if there be other sufficient within the county. (d) See cases cited, 1 Term Rep. 682, 684. (e) 3 Cruis. Dig. 194, 195. (f) See 5 Rich. 2. st. 2. c. 4. 6 Hen. 8. c. 16. 4 Inst. 43 and 44. 1 P. Wms. 592. 3 Cruis. Dig. 194, 195; 221. 2 M. and Selw. 218, 220, 222, 2 Bac. (h) See 2 M. and Selw. 218. 2 Mod. R. 299. 1 Freem. 327. 1 Ld. Ray. 32, 33. 1 Dougl. on Elections, 283, note. Bac. Ab. Sheriffs, B. (i) See Ld. Mansfield's most able argument in Cowp. 382, 394. and Harrison v. Evans, Cowp. 393, note, and 535; and see S. C. cited Bac. Ab. Sheriff, B. 2 Burn, Ecc. Law, 185. 6 Bro. P. C.181. Per Ld. Ellenborough, 2 M. and Selw. 218; but see 1 Ld. Raym. 29. It is a general rule, that the King, as executive magistrate and representative of his people, possesses the power of exempting individuals from their common law liability to serve in certain public offices and employments, although such offices and employments are not under the immediate controul of the Crown, and the persons who fill them are not appointed by the King. (a) It has, therefore, been held, that the Crown may exempt a subject from the offices of Sheriff, (b) Alderman of London, (c) Juryman, (d) Constable, and other offices and employments of a similar description. (e) It is, however, an established rule of law, that the King cannot grant an exemption from duties which are imposed by statutes, and which affect the general interest of the realm. (f) Therefore, where a statute enacted, that "The Lord Lieutenants of the several Counties should charge any person with horse and arms for the maintenance of the militia, &c." a charter of exemption from such charge was held invalid. (g) Nor are grants of exemption from the Crown valid where they might occasion a failure of justice, and a public injury; and, consequently, the King cannot exempt a whole county or hundred from serving on juries. (h) And it is a most important limitation of the power of the King in this respect, that his Majesty cannot exempt a person from his liability to be elected a member of, and to serve in Parliament, (i) on account, it should seem, of the nature of the employment. The power of the Crown to grant exemptions from the liability of seamen to be pressed, may be rested on the consideration that (a) 1 Term Rep. 679, 686, &c. (b) 1 Ld. Raym. 32, 3. Savil. 43. 2 Co. R. 46. b. 5 Bac. Ab. 520. Prerog. C. 2. (c) 1 Sid. 287. 5 Bac. Ab. 608. tit. Privilege A. (d) 2 Rol. Ab. 198. R. 2; 199. 1. 5. Sav. 43. Sid. 127. 243. Raym. 113. Hardr. 389. Dougl. 4th ed. 188. It is said in 3 Bac. Ab. 758, 9. that it seems that such exemption does not extend to jurors returned into the King's Bench, unless there be express words including that Court; also, by the better opinion, the Sheriff cannot return such privilege of exemption, but each particular juror must come in and demand it. But such cbarter of exemption does not extend to the Court of King's Bench, unless particularly named; nor to any case where the King is concerned, unless it has these words, licet tangat nos. And the Sheriff must not return such privilege, but the persons who would have the benefit of it must claim it. 5 Bac. Ab. Privilege A. p. 609. Dougl. 188. (e) See 6 Com. Dig. 49. tit. Prerogative D. (D. 33.) (f) 2 Rol. Ab. 198. K. pl. 1. 202. T. pl. 2. Bac. Ab. Privilege A. (g) Mod. 12. (h) Bac. Ab. Juries E. 6. (i) 4 Inst. 49. See 2 M. and Selw. 214. the the right of pressing is vested in the Crown alone. This will be considered hereafter. Grants of exemptions are construed strictly, and must be clearly made out. (a) The King's right to restrain his subjects from leaving his dominions, and to compel them to return from foreign countries, is also grounded on the interest which his Majesty has in his subjects; but the King has in general no legal power to force any of his subjects out of his dominions, even to carry on a necessary war. (b) By the common law, every one, generally speaking, is at liberty to go out of the kingdom without the leave of the King, (c) though some particular classes of persons were it seems always forbidden to do so, without a licence previously obtained. (d) The King's right to keep his subjects within the realm, which exists at common law, (e) and is expressly recognized in the great charter of King John, (f) may be exercised either by laying on an embargo, which, however, can it seems be legally done only in time of enmity, and in case of necessity, &c.; (g) or by the common law writ (h) of ne exeat regno; or, if Fitzherbert be correct, by proclamation, because the King may not know where to find his subject so as to direct a writ to him. (¿) The writ of ne exeat regno, or de securitate invenienda, appears from the words used in it, "quam plurima nobis et coronæ nostræ prejudicialia ibidem prosequi intendis," to be a state writ, (k) and clearly it was originally used merely as such, principally in cases of attempts, or suspected attempts, prejudicial to the King and nation; in which case the Lord Chancellor granted it on application from any of the principal Secretaries, without shewing cause, or upon such information as his Lordship thought of weight. (1) The writ may still be used on similar occasions, and may be obtained in the same manner; and, when it is not issued out of Chancery in aid of the debt or demand of a private individual, and in order to prevent the party from evading justice, the King is not restricted to any particular cases; so that the causes of its issuing, and the grounds and motives on which it is granted, are not traversable; and of course, therefore, the King may issue it at pleasure, without any reasons applicable to the party restrained. (a) And it is laid down, that any one upon surmise to the Chancery, may cause this writ to be sued out for the King. (b) But though the writ of ne exeat regno is certainly in its nature and origin a state writ, yet it has been gradually introduced into the Court of Chancery, and is now become a common process therein, in order to prevent individuals from going abroad to avoid the payment of their debts. (c) And it may be legally awarded by the Lord Chancellor, not only in aid of a proceeding in the Court of Chancery, but also to prevent a defendant in an Ecclesiastical Court from evading the payment of alimony decreed therein by leaving the kingdom. (d) It is, however, permitted to be used in these cases merely on the ground that a failure of justice would otherwise ensue, and debtors would be able boldly to set their creditors at defiance. It is therefore established, that the writ is not issuable out of Chancery at the instance of a creditor, in respect of a demand for which his debtors might be arrested at law. (e) In order to obtain the writ, in respect of an equitable debt, it is necessary that there should be a bill filed in the Court of Chancery, for it is grounded on such proceeding, and till the bill is filed there is no cause before the Court; (f) though it was formerly held otherwise. (g) The plaintiff must also make a positive affidavit of his debt, and state the amount of it; (h) nor will the writ be granted if the debt be of an uncertain nature, (i) though it is sufficient if it arise out of cross accounts, and in that case the plaintiff may, it seems, swear that he believes the balance stated to be due to him. (k) Where the demand (a) Dyer, 165, h. 179. Lane, 29. Moor, 109. 3 Inst. 179. Com. 53. Skin. 166. 12 Mod. 562. (b) F. N. B. 85. F. Com. Dig. Chan. cery, (4 B.) (c) 5 Rac. Ab. 522. 3 P. W. 312. 7 Ves. 417. (d) 2 Ventr. 345. 1 Ch. R. 715. 2 Atk. 210. Ambl. 76. Beames, 30. (e) 3 P. W. 312. 2 Atk. 410. Ambl. 76. 3 Bro. Ch. R. 218. 427. Beames, |