Commentaries on the Laws of England Part 31

[Footnote r: Stra. 544.]

[Footnote s: Foley. 249.]

[Footnote t: Stat. 13 & 14 Car. II c. 12. 1 Jac. II. c. 17. 3 & 4 W. & M. c. 11.]

[Footnote u: Stat. 13 & 14 Car. II. c. 12.]

[Footnote w: Stat. 3 & 4 W. & M. c. 11.]

[Footnote x: Stat. 3 & 4 W. & M. c. 11. 8 & 9 W. III. c. 10. and 31 Geo. II. c. 11.]

[Footnote y: Salk. 524.]

[Footnote z: Stat. 9 Geo. I. c. 7.]

ALL persons, not so settled, may be removed to their own parishes, on complaint of the overseers, by two justices of the peace, if they shall adjudge them likely to become chargeable to the parish, into which they have intruded: unless they are in a way of getting a legal settlement, as by having hired a house of 10_l._ _per annum_, or living in an annual service; for then they are not removeable[a]. And in all other cases, if the parish to which they belong, will grant them a certificate, acknowleging them to be _their_ paris.h.i.+oners, they cannot be removed merely because _likely_ to become chargeable, but only when they become _actually_ chargeable[b]. But such certificated persons can gain no settlement by any of the means above-mentioned; unless by renting a tenement of 10_l._ _per annum_, or by serving an annual office in the parish, being legally placed therein: neither can an apprentice or servant to such certificated person gain a settlement by such their service[c].

[Footnote a: Salk. 472.]

[Footnote b: Stat. 8 & 9 W. III. c. 30.]

[Footnote c: Stat. 12 Ann. c. 18.]

THESE are the general heads of the laws relating to the poor, which, by the resolutions of the courts of justice thereon within a century past, are branched into a great variety. And yet, notwithstanding the pains that has been taken about them, they still remain very imperfect, and inadequate to the purposes they are designed for: a fate, that has generally attended most of our statute laws, where they have not the foundation of the common law to build on. When the s.h.i.+res, the hundreds, and the t.i.things, were kept in the same admirable order that they were disposed in by the great Alfred, there were no persons idle, consequently none but the impotent that needed relief: and the statute of 43 Eliz. seems entirely founded on the same principle. But when this excellent scheme was neglected and departed from, we cannot but observe with concern, what miserable s.h.i.+fts and lame expedients have from time to time been adopted, in order to patch up the flaws occasioned by this neglect. There is not a more necessary or more certain maxim in the frame and const.i.tution of society, than that every individual must contribute his share, in order to the well-being of the community: and surely they must be very deficient in sound policy, who suffer one half of a parish to continue idle, dissolute, and unemployed; and then form visionary schemes, and at length are amazed to find, that the industry of the other half is not able to maintain the whole.

CHAPTER THE TENTH.

OF THE PEOPLE, WHETHER ALIENS, DENIZENS, OR NATIVES.

HAVING, in the eight preceding chapters, treated of persons as they stand in the public relations of _magistrates_, I now proceed to consider such persons as fall under the denomination of the _people_.

And herein all the inferior and subordinate magistrates, treated of in the last chapter, are included.

THE first and most obvious division of the people is into aliens and 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 a.n.a.logy 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 princ.i.p.ally 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. --. 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 inst.i.tuted 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 c.o.ke 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 acc.u.mulated, 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 grat.i.tude; which cannot be forfeited, cancelled, or altered, by any change of time, place, or circ.u.mstance, 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 princ.i.p.al 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 circ.u.mscribed, being acquired only by residence here, and lost whenever they remove. I shall however here endeavour to chalk out some of the princ.i.p.al 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 ent.i.tled 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 const.i.tution, 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 ent.i.tled 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. _t.i.t._ 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 emba.s.sadors 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 emba.s.sador. 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 pa.s.sed 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.