Imágenes de páginas
PDF
EPUB

each year. All towns where there is a separate court of quarter-sessions have a coroner of their own, chosen for life by the council. That assembly, composed of the mayor, aldermen, and councillors, is the governing body of the town, having power to levy rates on the inhabitants for municipal purposes, to manage the paving, lighting, cleansing, and watching of the town; and to make by-laws for the good government of the town. The police of the towns is managed by a watch-committee, presided over by the mayor, and appointed out of their own body by the council. That committee appoint a sufficient number of constables, who have power to act, not only within the town, but also in the county where it is situated, and any other county within the distance of seven miles; and they also regulate the salaries of those officers, which are paid by the treasurer. Besides these constables, who now form a regular corp9 of police, two justices of the borough must, in the month of October in every year, appoint as many inhabitants as they think fit, to be special constables, and to act in case of need.

A3 for the administration of justice at quarter-sessions, and the commission of the peace in corporate towns, we have already considered that subject in treating of criminal courts.

Such are the chief features of the system devised by the legislature for the good government of incorporated towns in England and Wales.

Her majesty is empowered by the statute, on petition of the inhabitant householders, to grant, with the advice of her privy-council, a charter of incorporation, according to the provisions of the act, to any town not already incorporated.

CHAPTER XXIII.

OF NATURAL-BORN SUBJECTS, DENIZENS, AND ALIENS, AND OF CORPORATIONS.

We have now considered the several branches of the sovereign power, and the magistrates by whom they are administered. The next and last portion of our investigations will be concerning the people, for whose benefit all government is instituted. And under this head are included, in their private capacity, all magistrates and other persons exercising public functions, excepting the one supreme magistrate, in whom the law sees only the imperial majesty of the whole state.

Persons may be considered either simply as men, or as citizens of a state; and, again, citizens may be considered either in their relation towards each other, or in their relation to the state. The first of these divisions belongs to primary natural law, or that which regards men simply as reasonable and responsible beings, bound by the divine law; and the second belongs both to secondary natural law,—regarding men not simply as such, but with reference to the institution of the social state,—and also to municipal law. Again, the relations of citizens towards each other belong to private law; and their relations to the state are matter of public law. The scope and object of this Commentary require that we should confine ourselves to the last. We will, therefore, in this chapter, first consider the most obvious division of the people with reference to the state,—namely, into aliens, and natural-born subjects,— and then proceed to the examination of bodies corporate, that is to say, certain aggregate bodies of men, which are invested by the law with the character of persons, and certain individuals to whom the law has given a peculiar abstract quality independent of their personal character, whether public or private. Thus we shall first see who are the natural persons composing the nation, and then investigate the nature and attributes of certain artificial persons created and devised by law within the state for divers purposes of society and government.

Blackstone defines natural-born subjects to be such as are born within the dominions of the crown of England, that is, within the legiance, or, as it is generally called, the allegiance, of the king; and aliens, such as are born out of it. And on this subject we cannot do better than to adopt the very words of that great writer. "Allegiance is the tie or ligamen which binds the subject to the king, in return for that protection which the king affords to the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and form are derived to us from our Gothic ancestors. Under the feudal system every owner of lands held them in subjection to some superior or lord, from whom or whose ancestors the tenant or vassal had received them; and there was a mutual trust or confidence subsisting between the lord and vassal, that the lord should protect the vassal in the enjoyment of the territory he had granted him; and, on the other hand, that the vassal should be faithful to the lord, and defend him against all his enemies. This obligation on the part of the vassal was called his fidelitas, or fealty; and an oath of fealty was required by the feudal law to be taken by all tenants to their landlord, which is couched in almost the same terms as our ancient oath of allegiance,1 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 vassal. But when the acknowledgment was made to the absolute superior himself, who was vassal to no man, it was Do 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? Land held by this exalted species of fealty was called feodum ligium, a liege fee; the vassals ligii, or liegemen; 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 acknowledgment of tenure,3 and liege homage, which included the fealty before mentioned and the services consequent upon it. Thus, when our Edward III., in 1329, did homage to Edward VI. of France for his ducal dominions on the Continent, it was warmly disputed of what species the homage was to be, whether liege or simple homage.4 But 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 all those duties which are simply and merely territorial. And the oath of allegiance, as administered

1 2 Feud. 5, 6, 7. 1 Ibid. 99.

• 7 Rep. Calvin's case, 7. * 2 Carte, 401.

for upwards of six hundred years,1 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 Hale2 makes this remark: 1 and 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 at least wherein that allegiance consists.

"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 its performance.-"1 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

1 Mirror, c. iii. § 35. Fleta, 3. 16 Britton, c. xxix. 7 Rep. Calvin's case, 6.

1 1 Hale, P. C. 63. 3 Ibid. 61.

« AnteriorContinuar »