 Chapter 9 of Subordinate Magistrates. In a former chapter of these commentaries we distinguished magistrates into two kinds—Supreme, or those in whom the sovereign power of the state resides, and subordinate, or those who act in an inferior, secondary sphere. We have hitherto considered the former kind only—namely, the supreme legislative power or parliament, and the supreme executive power, which is the king, and are now to proceed to inquire into the rites and duties of the principal subordinate magistrates. And herein we are not to investigate the powers and duties of His Majesty's great officers of state, the Lord Treasurer, Lord Chamberlain, the principal secretaries, or the like, because I do not know that they are in that capacity in any considerable degree the objects of our laws, or have any very important share of magistracy conferred upon them, except that the secretaries of state are allowed the power of commitment in order to bring offenders to trial. Nor shall I hear treat of the office and authority of the Lord Chancellor, or the other judges of the Superior Courts of Justice, because they will find a more proper place in the third part of these commentaries. Nor shall I enter into any minute disquisitions with regard to the right and dignities of mayors and aldermen, or other magistrates of particular corporations, because these are mere private and strictly municipal rights, depending entirely upon the domestic constitution of their respective franchises. But the magistrates and officers, whose rights and duties it will be proper in this chapter to consider, are such as are generally in use and have a jurisdiction and authority dispersed throughout the kingdom, which are principally sheriffs, coroners, justices of the peace, constables, surveyors of highways, and overseers of the poor. In treating all of which I shall inquire into, first, their antiquity and original, first, the manner in which they are appointed and may be removed, and lastly their rights and duties, and first, of sheriffs. 1. The sheriff is an officer of very great antiquity in this kingdom, his name being derived from two Saxon words, Shire Reeve, the bailiff or officer of the Shire. He is called in Latin Vice-Cums, as being the deputy of the Earl or Cums, to whom the custody of the Shire is said to have been committed at the first division of this kingdom into counties. With the earls in process of time, by reason of their high employment and attendance on the king's person, not being able to transact the business of the county, were delivered of that burden, reserving to themselves the honor, but the labor was laid on the sheriff. So that now the sheriff does all the king's business in the county, and though he still be called Vice-Cums, yet he is entirely independent of, and not subject to the earl, the king by his letter's patent committing custodium comitatus to the sheriff, and him alone. Sheriffs were formerly chosen by the inhabitants of the several counties, in confirmation of which it was ordained by statute 28th Edward I, C. 8, that the people should have election of sheriffs in every Shire, where the shrivality is not of inheritance. For anciently in some counties, particularly on the borders, the sheriffs were hereditary, as I apprehend they are in Scotland, and in the county of Westmoreland to this day, and the city of London has also the inheritance of the shrivality of Middlesex bested in their body by Charter. The reason of these popular elections is assigned in the same statute, C. 13, that the commons might choose such as would not be a burden to them. And herein appears plainly a strong trace of the democratical part of our constitution, in which form of government it is an indispensable requisite that the people should choose their own magistrates. This election was in all probability not absolutely vested in the commons, but required the royal approbation. For in the Gothic constitution the judges of their county courts, which office is executed by our sheriff, were elected by the people, but confirmed by the king, and the form of their election was thus managed. The people, or in Coli territory, chose twelve electors, and they nominated three persons, ex quibus, rex unum, confirmabot. But with us in England these popular elections, growing tumultuous, were put an end to by the statute Ninth Edward II, statute II, which enacted that the sheriffs should from thenceforth be assigned by the Lord Chancellor, treasurer, and the judges, as being persons in whom the same trust might with confidence be reposed. By statutes Fourteenth Edward III, C. 7, and Twenty-third Henry VI, C. 8, the Chancellor, treasurer, chief justices, and chief barons, are to make this election, and that on the morrow of all souls in the ex-checker. But the custom is, and has been, at least ever since the time of Fortescue, who was chief judge and chancellor to Henry VI, that all judges and certain other great officers meet in the ex-checker chamber on the morrow of all souls yearly, which day is now altered to the morrow of St. Martin by the act for abbreviating Michaelmas term, and then and there nominate three persons to the king, who afterwards appoint one of them to be sheriff. This custom, of the twelve judges nominating three persons, seems borrowed from the Gothic constitution before mentioned, with this difference, that among the Goths the twelve nominors were first elected by the people themselves. And this usage of ours at its first introduction, I am apt to believe, was founded upon some statute, though not now to be found among our printed laws. First, because it is materially different from the directions of all the statutes before mentioned, which it is hard to conceive that the judges would have countenanced by their concurrence, or that Fortescue would have inserted in his book, unless by the authority of some statute, and also because a statute is expressly referred to in the record which Sir Edward Koch tells us he transcribed from the council-book of 3 March, 4 Henry VI, and which is in substance as follows. The king had, of his own authority, appointed a man sheriff of Lincolnshire, which office he refused to take upon him, whereupon the opinions of the judges were taken, what should be done in this behalf. And the two chief justices, Sir John Fortescue and Sir Prisett, delivered the unanimous opinion of them all, that the king did an error when he made a person sheriff, that was not chosen and presented to him according to the statute, that the person refusing was liable to no fine for disobedience, as if he had been one of the three persons chosen according to the tenor of the statute, that they would advise the king to have recourse to the three persons that were chosen according to the statute, or that some other thrifty man be entreated to occupy the office for this year, and that the next year to eschew such inconveniences the order of the statute in this behalf be observed. But notwithstanding this unanimous resolution of all the judges of England, thus entered in the council-book, some of our writers have affirmed that the king, by his prerogative, may name whom he pleases to be sheriff, whether chosen by the judges or no. This is grounded on a very particular case in the fifth year of Queen Elizabeth, when, by reason of the plague, there was no Mickelmas term kept at Westminster, so that the judges could not meet there in Crestino and Amorum to nominate the sheriffs, whereupon the queen named them herself, without such previous assembly, appointing for the most part one of the two remaining in the last year's list. And this case, thus circumstance, is the only precedent in our books for the making these extraordinary sheriffs. It is true, the reporter adds, that it was held that the queen, by her prerogative, might make a sheriff without the election of the judges, non-abstantu ale quo statutum in contrarium, but the doctrine of non-abstantes, which sets the prerogative above the laws, was effectually demolished by the Bill of Rights of the Revolution, and abdicated Westminster Hall when King James abdicated the kingdom. so that the sheriffs cannot now be legally appointed, otherwise than according to the known and established law. Sheriffs, by virtue of several old statutes, are to continue in their office no longer than one year, and yet it hath been said that a sheriff may be appointed Durante Beno Placito, or during the king's pleasure, and so is the form of the royal writ. Therefore till a new sheriff be named his office cannot be determined, unless by his own death or the demise of the King, in which last case it was usual for the successor to send a new writ to the old sheriff, but now by statute First Anne, Statute One, C-8, all officers appointed by the preceding king may hold their offices for six months after the king's demise, unless sooner displaced by the successor. We may farther observe that by statute First Richard II, C-11, no man, that has served the office of sheriff for one year, can be compelled to serve the same again within three years. We shall find it is of the utmost importance to have the sheriff appointed according to law, when we consider his power and duty. These are either as a judge, as the keeper of the king's peace, as a ministerial officer of the Superior Courts of Justice, or as the king's bailiff. In his judicial capacity he is to hear and determine all cases of Forty Shilling's Value and Under, in his county court, of which more in its proper place, and he has also judicial power in diverse other civil cases. He is likewise to decide the election of knights of the Shire, subject to the control of the House of Commons, of coroners and of verterers, to judge of the qualification of voters, and to return such as he shall determine to be duly elected. As the keeper of the king's peace, both by common law and special commission, he is the first man in the county, and superior in rank to any nobleman therein, during his office. He may apprehend and commit to prison all persons who break the peace, or attempt to break it, and may bind anyone in reconnaissance to keep the king's peace. He may, and is bound ex officio, to pursue and take all traitors, murderers, felons, and other misdoers, and commit them to jail for safe custody. He also is to defend his county against any of the king's enemies when they come into the land, and for this purpose, as well as for keeping the peace and pursuing felons, he may command all the people of his county to attend him, which is called the posicumatatus, or power of the county, which summons every person above fifteen years old, and under degree of a peer, is bound to attend upon warning under pain of fine and imprisonment. But though the sheriff is thus principal conservator of the peace of his county, yet, by the express direction of the great charter, he, together with the constable, coroner, and certain other officers of the king, are forbidden to hold any pleas of the crown, or in other words, to try any criminal offense. For it would be highly unbecoming that the executioners of justice should also be the judges, should impose, as well as levy, fines and emersements, should one day condemn a man to death, and personally execute him the next. Neither may he act as an ordinary justice of the peace during the time of his office, for this would be equally inconsistent, he being in many respects the servant of the justices. In his ministerial capacity the sheriff is bound to execute all process issuing from the king's courts of justice. In the commencement of civil causes he is to serve the writ, to arrest and to take bail. When the cause comes to trial he must summon and return the jury. When it is determined he must see the judgment of the court carried into execution. In criminal matters he also arrests and imprisons. He returns the jury, he has the custody of the delinquent, and he executes the sentence of the court, though it extend to death itself. As the king's bailiff it is his business to preserve the rights of the king within his bailiwick, for so his county is frequently called in the writs, a word introduced by the princes of the Norman line in imitation of the French, whose territory is divided into bailiwick's, as that of England into counties. He must seize to the king's use all lands devolved to the crown by a tainer or a sheet. He must levy all fines and forpatures, must seize and keep all waifs, wrecks, astrays, and the like, unless they be granted to some subject, and must also collect the king's rents within his bailiwick, if commanded by process from the ex-checker. To execute these various offices the sheriff has under him many inferior officers, and under sheriff bailiffs and jailers, who must neither buy, sell, nor farm their offices on forfeiture of five hundred pounds. The under-sheriff usually performs all the duties of the office, a very few only accepted, where the personal presence of the high sheriff is necessary. But no under-sheriff shall abide in his office above one year, and if he does, by statute twenty-third Henry VI, C. 8, he forfeits two hundred pounds—a very large penalty in those early days. And no under-sheriff or sheriff's officer shall practice as an attorney during the time he continues in such office, for this would be a great inlet to partiality and depression. But these salutary regulations are shamefully evaded by practicing in the names of other attorneys, and putting in sham deputies by way of nominal under-sheriffs, by reason of which, says Dalton, the under-sheriffs and bailiffs do grow so cunning in their several places that they are able to deceive, and it may be well feared that many of them do deceive both the king, the high sheriff, and the county. Bailiffs or sheriff's officers are either bailiffs of hundreds or special bailiffs. Bailiffs of hundreds are appointed over those respective districts by the sheriffs to collect fines therein, to summon juries, to attend the judges and justices at the assizes and quarter-sessions, and also to execute rits and process in the several hundreds. But as these are generally plain men, and not thoroughly skillful in this latter part of their office, that of serving rits and making arrest in executions, it is now usual to join special bailiffs with them, who are generally mean persons employed by the sheriffs on account of their adroitness and dexterity in hunting and seizing their prey. The sheriff being answerable for the misdemeanors of these bailiffs, they are therefore usually bound in a bond for the execution of their office, and thence are called bound bailiffs, which the common people have corrupted into a much more homely appellation. Jailers are also the servants of the sheriff, and he must be responsible for their conduct. Their business is to keep safely all such persons as are committed to them by lawful warrant, and if they suffer any such to escape, the sheriff shall answer it to the king, if it be a criminal matter, or in a civil case to the party injured. And to this end the sheriff must have land sufficient within the county to answer the king and his people. The abuses of jailers and sheriff's officers toward the unfortunate persons in their custody are well restrained and guarded against by statute 32 George II, C. 28. The vast expense which Custom had introduced in serving the office of high sheriff was grown such a burden to the subject that it was enacted by statute 13 and 14th Charles II, C. 21, that no sheriff should keep any table at the assizes except for his own family, or give any presence to the judges or their servants, or have more than forty men in livery. Yet for the sake of safety and decency he may not have less than twenty men in England and twelve in Wales, upon forfeiture, in any of these cases, of two hundred pounds. The coroners is also a very ancient office at the common law. He is called coroner, coronator, because he hath principally to do with pleas of the crown, or such wherein the king is more immediately concerned. And in this light the lord chief justice of the king's bench is the principal coroner in the kingdom, and may if he pleases exercise the jurisdiction of a coroner in any part of the realm. But there are also particular coroners for every county of England, usually four, but sometimes six, and sometimes fewer. This officer is of equal antiquity with the sheriff, and was ordained together with him to keep the peace when the earls gave up the wardship of the county. He is still chosen by all the freeholders in the county court, as by the policy of our ancient laws the sheriffs and conservatives of the peace and all other officers were who were concerned in matters that affected the liberty of the people, and as verterers of the forest still are, those whose business it is to stand between the prerogative and the subject in the execution of the forest laws. For this purpose there is a writ at common law, decorinator elegendo, in which it is expressly commanded that the sheriff quadtelum elegi faciat, qui mellius eschiat e vellit e pazit officio eleintandere. And in order to affect this, the more surely it was enacted by the statute of Westminster I, that none but lawful and discreet knights should be chosen. But it seems it is now sufficient if a man have lands enough to be made a knight, whether he be really knighted or not, and there was an instance in the Fifth Edward III of a man being removed from this office because he was only a merchant. The coroner ought also to have a state sufficient to maintain the dignity of his office, and answer any fines that may be set upon him for his misdemeanor, and if he have not enough to answer his fine shall be levied on the county as a punishment for electing an insufficient officer. Now indeed, through the culpable neglect of gentlemen of property, this office has been suffered to fall into disrepute, and to get into low and indigent hands, so that although formerly no coroner would condescend to be paid for serving his country, and they were by the aforesaid statute of Westminster I expressly forbidden to take a reward under pain of great forfeiture to the king, yet for many years past they have only desired to be chosen for the sake of their perquisites, being allowed fees for their attendance by the statute III Henry VII C. I, which Sir Edward Coat complains of heavily, though they have since his time been much enlarged. The coroner is chosen for life, but may be removed, either by being made sheriff or chosen verterer, which are offices incompatible with the other, or by the king's writ decorinator ex serrano, for a cause to be therein assigned, as that he is engaged in other business, is incapacitated by years or sickness, hath not a sufficient estate in the county, or lives in an inconvenient part of it. And by the statute XXV George II C. XXIX, extortion, neglect, or misbehavior are also made causes of removal. The offices and power of a coroner are also, like those of sheriff, either judicial or ministerial, but principally judicial. This is in great measure ascertained by the statute IV Edward I, the officio coronatoris, and consists first in inquiring, when any person is slain or dies suddenly, concerning the manner of his death. And this must be supervism corporatis, for if the body be not found, the coroner cannot sit. He must also sit at the very place where the death happened, and his inquiry is made by a jury from four, five, or six of the neighboring towns over whom he is to preside. If any be found guilty by this inquest of murder, he is to commit to prison for farther trial, and is also to inquire concerning their lands, goods, and chattels, which are forfeited thereby. But whether it be murder or not, he must inquire whether any deodon has accrued to the king, or the lord of the franchise by this death, and must certify the whole of this inquisition to the court of the king's bench, or the next to sizes. Another branch of his office is to inquire concerning shipwrecks, and certify whether wreck or not, and who is in possession of the goods. Concerning treasure trove, he is also to inquire who were the finders, and where it is, and whether any one be suspected of having found and concealed a treasure. And that may be well perceived, say at the old statute of Edward I, where one liveth riotously, haunting taverns and hath done so of a long time, whereupon he might be attached and held to bail upon this suspicion only. The ministerial office of the coroner is only as the sheriff's substitute, for when just exception can be taken to the sheriff for suspicion of partiality, as that he is at interested in the suit, or of kindred, to either plaintiff or defendant. The process must then be awarded to the coroner, instead of the sheriff, for execution of the king's writs. CHAPTER IX OF THE COMMONTERIES ON THE LAWS OF ENGLAND BOOK I. The next species of subordinate magistrates whom I am to consider are justices of the peace, the principal of whom is the Custis rotolarum, or keeper of the records of the county. The common law hath ever a special care in regard for the conservation of the peace, for peace is the very end and foundation of civil society. And therefore, before the present constitution of justices was invented, there were peculiar officers appointed by the common law for the maintenance of the public peace. Of these some had, and still have, this power annexed to other offices which they hold, others had it merely by itself, and were thence named Custodes or Conservatoris passes. Those that were so viture office I still continue, but the latter sort are superseded by the modern justices. The king's majesty is, by his office and dignity royal, the principal conservator of the peace within all his dominions, and may give authority to any other to see the peace kept, and to punish such as break it. Hence it is usually called a king's peace. The Lord Chancellor or Keeper, the Lord Treasurer, the Lord High Steward of England, the Lord Marshal, the Lord High Constable of England, when any such officers are in being, and all the justices of the king's court bench, by virtue of their offices, and the master of the roles, by prescription, are general conservators of the peace throughout the whole kingdom, and may commit all breakers of it, or bind them in recognizes to keep it. The other judges are only so in their own courts. The coroner is also a conservator of the peace within his own county, as is also the sheriff, and both of them may make a recognizance or security for the peace. Constables, Thingman, and the like, are also conservators of the peace within their own jurisdictions, and may apprehend all breakers of the peace, and commit them till they find sureties for their keeping it. Those that were, without any office, simply and merely conservators of the peace, were chosen by the free-holders in full county court before the sheriff. The writ for their election, directing them to be chosen, deprob yore bus, a mel yore bus, in comatato suo, in castores pasches. But when Queen Isabelle, the wife of Edward II, had contrived to depose her husband by a forced resignation of the crown, and set up his son Edward III in his place, this being a thing then without example in England, it was feared would much alarm the people, especially as the old king was living, though hurried about from castle to castle, till at last he met with an untimely death. To prevent, therefore, any risings or other disturbance of the peace, the new king sent rids to all the sheriffs in England, the form of which is preserved by Thomas Walsingham, giving a plausible account of the manner of his obtaining the crown, to wit that it was done ipsias patris ben aplacito, and with all commanding each sheriff that the peace be kept throughout his ballywig, on pain and peril of disinheritance and loss of life and limb. And in a few weeks after the date of these rids, it was ordained in Parliament that for the better maintaining and keeping of the peace in every county, good men and lawful, which were no maintainers of evil or bearers in the county, should be assigned to keep the peace. And in this manner, and upon this occasion, was the election of the conservators of the peace taken from the people, and given to the king, this assignment being construed to be by the king's commission. But still they were called only conservators, wardens, or keepers of the peace, till the statute, thirty-four, Edward the Third, C. I, gave them the power of trian felonies, and then they acquired the more honorable appellation of justices. These justices are appointed by the king's special commission under the great seal, the form of which was settled by the judges A.D. 1590. This appoints them all, jointly and severally, to keep the peace, and any two or more of them to inquire of and determine felonies and other misdemeanors, in which number some particular justices, or one of them, are directed to be always included, and no business to be done without their presence, the words of the commission running thus, quorum alequem vestrim, a, b, c, d, etc., unum esse volumas, once the persons so named are usually called justices of the quorum. And formerly it was customary to appoint only a select number of justices, eminent for their skill and discretion, to be of the quorum. But now the practice is to the advance of almost all of them to that dignity, naming them all over again in the quorum and clause, except perhaps only some one inconsiderable person for the sake of propriety, and no exception is now allowable for not expressing in the form of warrants, etc., that the justice who issued them is of the quorum. Touching the number and qualifications of these justices, it was ordained by statute 18, Edward III, C. II, that two or three of the best reputation in each county shall be assigned to be keepers of the peace. With these being found rather too few for that purpose, it was provided by statute 34, Edward III, C. I, that one lord, and three or four of the most worthy men in the county, with some learned in the law, shall be made justices in every county. But afterwards the number of justices, through the ambition of private persons, became so large, that it was thought necessary by statute 12, Richard II, C. X, and 14, Richard II, C. XI, to restrain them at first to six, and afterwards to eight only. But this rule is now disregarded, and the cause seems to be, as Lambert observed long ago, that the growing number of statute laws, committed from time to time to the charge of justices of the peace, have occasioned also, and very reasonably, their increase to a larger number. And as to their qualifications, the statutes just cited direct them to be of the best reputation, and most worthy men in the county, and the statute 13, Richard II, C. X, orders them to be of the most sufficient knights, esquires, and gentlemen of the law. Also by statute II, Henry V, statute I, C. IV, and statute II, C. I, they must be resident in their several counties. And because contrary to these statutes, men of small substance had crept into the commission, whose poverty made them both covetous and contemptible, it was enacted by statute 18, Henry VI, C. XI, that no justice should be put in commission if he had not lands to the value of twenty pounds per annum. And the rate of money being so greatly altered since that time, it is now enacted by statute V, George II, C. XI, that every justice, except as therein accepted, shall have one hundred pounds per annum clear of all deductions, and if he acts without such qualification he shall forfeit one hundred pounds, which is almost an equivalent to the twenty pounds per annum required in Henry VI's time. But of this qualification the justice must now make oath. Also it is provided by the Act V, George II, that no practicing attorney, solicitor, or proctor shall be capable of acting as justice of the peace. As the office of these justices is conferred by the king, so it subsists only during his pleasure, and is determinable, one, by the demise of the crown, that is, in six months after, two, by express writ under the great seal discharging any particular person from being any longer justice, three, by superseding the commission by writ of supersedas, which suspends the power of all the justices, but does not totally destroy it, seeing it may be revived again by another writ, called a proscendendo, four, by a new commission, which virtually though silently discharges all the former justices that are not included therein, for two commissions cannot subsist at once, five, by a session of the office of Sheriff or Coroner. Formerly it was thought that if a man was named in any commission of the peace, and had afterwards a new dignity conferred upon him, that this determined his office. He no longer answering the description of the commission. But now it is provided that notwithstanding a new title of dignity the justice on whom it is conferred shall still continue a justice. The power, office, and duty of a justice of the peace depend on his commission, and on the several statutes which have created objects of his jurisdiction. His commission first empowers him singly to conserve the peace, and thereby gives him all the power of the ancient conservators of the common law, in suppressing riots and affrays, in taking securities for the peace, and in apprehending and committing felons and other inferior criminals. It also empowers any two or more of them to hear and determine all felonies and other offenses, which is the ground of their jurisdiction at sessions, of which more will be said in its proper place. And as to the powers given to one, two, or more justices by the several statutes, that from time to time have heaped upon them such an infinite variety of business, that few care to undertake, and fewer understand, the office, they are such and of so great importance to the public, that the country is greatly obliged to any worthy magistrate, that without sinister views of his own will engage in this troublesome service. And therefore, if a well-meaning justice makes any undesigned slip in his practice, great leniety and indulgence is shown to him in the courts of law. And there are many statutes meant to protect him in the upright discharge of his office, which, among other privileges, prohibits such justices from being sued for any oversights without notice beforehand, and stop all suits begun on tender made of sufficient amends. But on the other hand, any malicious or tyrannical abuse of their office is sure to be severely punished, and all persons who recover a verdict against a justice for any willful or malicious injury are entitled to double costs. It is impossible upon our present plan to enter minutely into the particulars of the accumulated authority, thus committed to the charge of these magistrates. I must therefore refer myself at present to such subsequent parts of these commentaries, as will in their turns comprise almost every object of the justice's jurisdiction, and in the meantime recommend to the student the perusal of Mr. Lombard's Aaron Arca, and Dr. Burns's Justice of the Peace, wherein he will find everything relative to his subject, both in ancient and modern practice, collected with great care and accuracy, and disposed in a most clear and judicious method. I shall next consider some offices of lower rank than those which have gone before, and of more confined jurisdiction, but still such as are universally in use throughout every part of the kingdom. Fourthly, then, of the Constable. The word Constable is frequently said to be derived from the Saxon, Coningstaple, and to signify the support of the King. But as we borrowed the name as well as the office of Constable from the French, I am rather inclined to deduce it with Sir H. Spellman and Dr. Cowell from that language, wherein it is plainly derived from the Latin, commis stabuli, an officer well known in the Empire, so-called because, like the great Constable of France, as well as the Lord High Constable of England, he was to regulate all matters of chivalry, tilts, tournaments, and feats of arms, which were performed on horseback. This great office of Lord High Constable hath been disused in England, except only on great and solemn occasions, as the King's coronation and the like, ever since the attainer of Stafford, Duke of Buckingham, under King Henry VIII, as in France it was suppressed about a century after by Edict of Louis XIII. But from his office, says Lombard, this lower Constable ship was at first drawn and fetched, and is, as it were, a very finger of that hand. For the Statute of Westminster, which first appoints them, directs that, for the better keeping of the peace, two Constables in every hundred and franchise shall inspect all matters relating to arms and armor. Constables are of two sorts, High Constables and Petty Constables. The former were first ordained by the Statute of Winchester, as before mentioned, and are appointed at the court leaps of the franchise or hundred over which they preside, or in default of that by the Justices at their quarter-sessions, and are removable by the same authority that appoints them. The Petty Constables are inferior officers in every town and parish, subordinate to the High Constable of the Hundred, first instituted about the reign of Edward III. These Petty Constables have two offices united in them, the one ancient, the other modern. Their ancient office is that of Hedboro, tithing men, or boar's-holder, of whom we formerly spoke, and who are as ancient as the time of King Alfred. Their more modern office is that of Constable merely, which was appointed, as was observed, so lately as the reign of Edward III, in order to assist the High Constable. And in general the ancient Hedboros, tithing men, and boar's-holders were made use of to serve as Petty Constables, though not so generally, but that in many places they still continue distinct officers from the Constable. They are all chosen by the jury at the court elite, or if no court elite be held, they are appointed by two justices of the peace. The general duty of all Constables, both High and Petty, as well as of the other officers, is to keep the king's peace in their several districts, and to that purpose they are armed with very large powers, of arresting and imprisoning, of breaking open houses and the like, of the extent of which powers, considering what manner of men are for the most part put upon these offices, it is perhaps very well that they are generally kept in ignorance. One of their principal duties arising from the statute of Winchester, which appoints them, is to keep watch and ward in their respective jurisdictions. Ward, guard, or custodia is chiefly intended of the daytime, in order to apprehend rioters and robbers on the highways, the manner of doing which is left to the discretion of the justices of the peace and the Constable. The hundred being, however, answerable for all robberies committed therein, by daylight, for having kept negligent guard. Watch is properly applicable to the night only, being called among our Teutonic ancestors Vacht, or Vachta, and it begins at the time when ward ends, and ends when that begins, for by the statute of Winchester, in wild towns the gates shall be closed from sun-setting to sun-rising, and watch shall be kept in every borough in town, especially in the summer season, to apprehend all robes, vagabonds, and night-walkers, and make them give account of themselves. The Constable may appoint watchmen at his discretion, regulated by the custom of the place, and these, being his deputies, have for the time being the authority of their principle. But with regard to the infinite number of other minute duties that are laid upon Constables by diversity of statutes, I must again refer to Mr. Lombard and Dr. Byrne, in whose compilations may be also seen what duties belong to the Constable or Tithing-man indifferently, and what to the Constable only, for the Constable may do whatever the Tithing-man may, but it does not hold e-converso, for the Tithing-man has not an equal power with the Constable. CHAPTER IX. We are next to consider the surveyors of the highways. Every parish is bound of common rites to keep the high roads that go through it in good and sufficient repair, unless by reason of the tenure of lands, or otherwise this care is consigned to some particular private person. From this burden no man was exempt by our ancient laws, whatever other immunities he might enjoy, this being part of the Trinoda necessitas, to which every man's estate was subject, vis expeditio contra hostum archium constructio apontium reparatio, for, though the reparation of bridges only is expressed, yet that of roads also must be understood, as in the Roman law, ad instruccionis reparanisc eterum apontium, nullum genus hominem, nullisca dinicratis ecvenerationis meritus cesare oportit. And indeed now, for the most part, the care of the roads only seems to be left to parishes, that of bridges being in great measure devolved upon the county at large, by Statute 22 Henry VIII, C. V. If the parish neglected these repairs, they might formerly, as they still may, be indicted for such their neglect. But it was not then incumbent upon any particular officer to call the parish together, and set them upon this work. For which reason, by the Statute 2 and 3, P. H. and M. C. VIII, surveyors of the highways were ordered to be chosen in every parish. These surveyors were, originally, according to the Statute of Philip and Mary, to be appointed by the constable and church wardens of the parish. But now they are constituted by two neighboring justices. Out of such substantial inhabitants as have either ten pounds per annum of their own, or rent thirty pounds a year, or are worth in personal estate one hundred pounds. Their office and duty consists in putting in execution a variety of statutes for the repairs of the highways, that is, of ways leading from one town to another, by which it is enacted, one, that they may remove all annoyances in the highways, or give notice to the owner to remove them, who is liable to penalties on non-compliance. Two, they are to call together all the inhabitants of the parish six days in every year, to labor in repairing on the highways, all persons keeping drafts, or occupying lands, being obliged to send a team for every draft, and for every fifty pounds a year, which they keep or occupy, and all other persons to work or find a laborer. The work must be completed before harvest, as well for providing a good road for carrying in the corn, as also because all hands are then supposed to be employed in harvest work. And every cartway must be made eight feet wide at the least, and may be increased by the quarter-sessions to the breadth of four and twenty feet. The surveyors may lay out their own money in purchasing materials for repairs, where there is not sufficient within the parish, and shall be reimbursed by a rate to be allowed at a special session. Four, in case the personal labor of the parish be not sufficient, the surveyors, with the consent of the quarter-sessions, may levy a rate, not exceeding six pence in the pound on the parish, in aid of the personal duty, for the due application of which they are to account upon oath. As for turnpikes, which are now universally introduced in aid of such rates, and the law relating to them, these depend entirely on the particular powers granted in the several road acts, and therefore have nothing to do with this compendium of general law. I proceed, therefore, lastly, to consider the overseers of the poor, their original appointment and duty. The poor of England, till the time of Henry VIII, subsisted entirely upon private benevolence, and the charity of well-disposed Christians. For though it appears by the mirror that by the common law the poor were to be sustained by parson's, rectors of the church, and the parishioners, so that none of them die for default of substance, and though by the statutes twelve Richard II, C. VII, and XIX, Henry VII, C. XII, the poor are directed to be sustained in cities or towns wherein they were born, or such wherein they had dwelt for three years, which seemed to be the first rudiments of parish settlements. Yet till the statute 27 Henry VIII, C. XXVI, I find no compulsory method chalked out for this purpose. But the poor seem to have been left to such relief as the humanity of their particular neighbors would afford them. The monasteries were, in particular, their principal resource. And among other bad effects which attended the monastic institutions, it was not perhaps one of the least, though frequently esteemed quite otherwise, that they supported and fed a very numerous and very idle poor, whose sustenance depended upon what was daily distributed in alms at the gates of the religious houses. But upon the total dissolution of these, the inconvenience of this encouraging the poor in habits of indolence and beggary was quickly felt throughout the kingdom, and abundance of statutes were made in the reign of King Henry VIII for providing for the poor and impotent, which the preambles to some of them recite had of late years strangely increased. These poor were principally of two sorts, sick and impotent, and therefore unable to work, idle and sturdy, and therefore able but not willing to exercise any honest employment. To provide in some measure for both of these, in and about the Metropolis, his son Edward VI founded three royal hospitals, Christ's and St. Thomas's, for the relief of the impotent through infancy or sickness, and Bridewell for the punishment and employment of the vigorous and idle. But these were far from being sufficient for the care of the poor throughout the kingdom at large, and therefore, after many other fruitless experiments by Statute 43 Elizabeth C. II, overseers of the poor were appointed in every parish. By virtue of the statute last mentioned, these overseers are to be nominated yearly and Easter week, or within one month after, by two justices dwelling near the parish. They must be substantial householders and so expressed to be in the appointment of the justices. Their office and duty, according to the same statute, are principally these. First, to raise competent sums for the necessary relief of the poor, impotent, old, blind, and such other, being poor and not able to work, and secondly, to provide work for such as are able and cannot otherwise get employment. But this latter part of their duty, which, according to the wise regulations of that salutary statute, should go hand in hand with the other, is now most shamefully neglected. However, for these joint purposes they are empowered to make in levy rates upon the several inhabitants of the parish by the same act of parliament, which has been farther explained and enforced by several subsequent statutes. The two great objects of this statute seem to have been, one, to relieve the impotent poor and them only, two, to find employment for such as are able to work, and this principally by providing stocks to be worked up at home, which perhaps might be more beneficial than accumulating all the poor in one common workhouse, a practice which tends to destroy all domestic connections, the only felicity of the honest and industrious laborer, and to put the sober and diligent upon a level in point of their earnings with those who are disillute and idle. Whereas if none were to be relieved but those who are incapable to get their livings, and that in proportion to their incapacity, if no children were to be removed from their parents, but such as are brought up in rags and idleness, and if every poor man and his family were employed whenever they requested it, and were allowed the whole profits of their labor, a spirit of cheerful industry would soon diffuse itself through every cottage, work would become very easy and habitual, when absolutely necessary to their daily subsistence, and the most indigent peasant would go through his task without a murmur if assured that he and his children, when incapable of work through infancy, age, or infirmity, would then, and then only, be entitled to support from his opulent neighbors. This appears to have been the plan of the statute of Queen Elizabeth, in which the only defect was confining the management of the poor to small, parochial districts, which are frequently incapable of furnishing proper work, or providing an able director. However, the laborious poor were then at liberty to seek employment to wherever it was to be had, none being obliged to reside in the places of their settlement, but such as were unable or unwilling to work, and those places of settlement being only such where they were born, or had made their abode originally for three years, and afterwards in the case of vagabonds for one year only. After the restoration a very different plan was adopted, which has rendered the employment of the poor more difficult, by authorizing the subdivision of parishes, has greatly increased their number, by confining them all to their respective districts, has given birth to the intricacy of our poor laws, by multiplying and rendering more easy the methods of gaining settlements, and in consequence has created an infinity of expensive lawsuits between contending neighborhoods concerning those settlements and removals. By the statute 13 and 14 of Charles II C-12, a legal settlement was declared to be gained by birth, inhabitancy, apprenticeship, or service for forty days, within which period all intruders were made removable from any parish by two justices of the peace unless they settled in a tenement of the annual value of ten pounds. The frauds, naturally consequence upon this provision, which gave a settlement by so short a residence, produced the statute first James II C-17, which directed notice and writing to be delivered to the parish officers before a settlement could be gained by such residence. Subsequent provisions allowed other circumstances of notoriety to be equivalent to such notice given, and those circumstances have from time to time been altered, enlarged, or restrained, whenever the experience of new inconveniences arising daily from new regulations suggested the necessity of a remedy. And the doctrine of certificates was invented by way of counterpoys to restrain a man and his family from acquiring a new settlement by any length of residence whatever, unless in two particular accepted cases, which makes parishes very cautious of giving such certificates, and of course confines the poor at home, where frequently no adequate employment can be had. The law of settlements may be therefore now reduced to the following general heads, or a settlement in a parish may be acquired, one, by birth, which is always prima facia the place of settlement until some other can be shown. This is also always the place of settlement of a bastard child, for a bastard, having in the eye of the law no father, cannot be referred to his settlement as other children may. But in legitimate children, though the place of birth be prima facia the settlement, yet it is not conclusively so, for there are, too, settlements by parentage, being the settlement of one's father or mother, all children being really settled in the parish where their parents are settled, until they get a new settlement for themselves. A new settlement may be acquired several ways, as, three, by marriage, for a woman marrying a man that is settled in another parish, changes her own, the law not permitting the separation of husband and wife. But if the man be a foreigner, and has no settlement, hers is suspended during his life, if he be able to maintain her, but after his death she may return again to her old settlements. The other methods of acquiring settlements in any parish are all reducible to this one, of forty days residence therein. But this forty days residence, which is construed to be lodging or lying there, must not be by fraud, or stealth, or in any clandestine manner, but accompanied with one or the other of the following concomitance circumstances. The next method, therefore, of gaining settlement is, four, by forty days residence and notice. For if a stranger comes into a parish and delivers notice in writing of his place of abode and number of his family to one of the overseers, which must be read in the church and registered, and resides there unmolested for forty days after such notice, he is legally settled thereby. For the law presumes that such a one, at the time of notice, is not likely to become chargeable, else he would not venture to give it, or that, in such case, the parish would take care to remove him. But there are also other circumstances equivalent to such notice, therefore, five, renting for a year a tenement of the yearly value of ten pounds, and residing forty days in the parish gains a settlement without notice, upon the principle of having substance enough to gain credit for such a house. Six, being charged to in paying the public taxes and levies of the parish, and seven, executing any public parochial office for a whole year in the parish, as church warden, etc., are both of them equivalent to notice, and gain a settlement when coupled with a residence of forty days. Eight, being hired for a year when unmarried and serving a year in the same service, and nine, being bound an apprentice for seven years, give the servant an apprentice a settlement without notice in that place wherein they serve the last forty days. This is meant to encourage application to trades, and going out to reputable services. Ten, lastly, the having in a state of one's own, and residing thereon forty days, however small the value may be, in case it be acquired by act of law of a third person, as by dissent, gift, device, etc., is a sufficient settlement. But if a man acquire it by his own act, as purchase, in its popular sense, in consideration of money paid, then unless the consideration advance, bona fide, be thirty pounds, it is no settlement for any longer time than the person shall inhabit thereon. He is in no case removable from his own property, but he shall not, by any trifling or fraudulent purchases of his own, acquire a permanent and lasting settlement. 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 adudge 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 ten pounds per annum, or living in an annual service, for then they are not removable. And in all other cases, if the parish to which they belong will grant them a certificate acknowledging them to be their parishioners, they cannot be removed merely because likely to become chargeable, but only when they become actually chargeable. But such certificated persons can gain no settlement by any of the means above mentioned, unless by renting a tenement of ten pounds 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. These are the general heads of the laws relating to the poor, which by the parishioners of the courts of justice thereon within a century past, are branched into great variety. And yet notwithstanding the pains that has been taken about them all, 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 shires, the hundreds, and the tithings 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 forty-third Elizabeth 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 shifts and lame expedience 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 a more certain maxim in the frame and constitution 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 X 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 legions, as it is generally called, the allegiance of the king and aliens, such as are born out of it. Allegiance is the tie, or ligament, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or a substantial part of it, is founded in reason in the nature of government. The name and the 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. 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 no longer called the oath of fealty, but the oath of allegiance, and therein the tenants wore to bear faith to his sovereign lord, in opposition to all men, without any saving or exception. Land held by this exalted species of fealty was called feudum ligium, a liege fee, the vassals hominus legii, or liegemen, and the sovereign, their dominus legius, or liege lord. And when the sovereign princes did homage to each other, for lands held under their respective sovereignty, a distinction was always made between simple homage, which was only an acknowledgment of tenure, 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 duke-old dominions on that continent, it was warmly disputed of what species the homage was to be, whether liege or simple homage. With us in England, it becoming a settled principle of tenure, that all lands in the kingdom are holding of the king as their sovereign and lord paramount, no oath but that a 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 those duties which were simply and merely territorial. And the oath of allegiance, as administered for upwards of six hundred years, 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 tarry and honor, and not to know or hear of any ill or damage intended him, without defending him therefrom. Upon which Matthew Hale 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 principally calculated as a renunciation of the pope's pretended authority, and the oath of abjuration, introduced in the reign of King William, very amply supplies the loose and general texture of the oath of allegiance. It recognises the right of his majesty, derived under the act of settlement, engaging to support him, the utmost of the juror's power, promising to disclose all traitorous conspiracies against him, and expressly renouncing any claim of the pretender in as clear and explicit terms as the English language can furnish. This oath must be taken by all persons and any office, trust, or employment, and may be tendered by two justices of the peace to any person whom they shall suspect of disaffection. But the oath of allegiance may be tendered to all persons above the age of twelve years, whether natives, denizens, or aliens, either in the court-lead of the manor, or in the sheriff's torn, which is the court-lead of the county. 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, incidentally, to any express promise, and although the subject never swore any faith or allegiance in any 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 super-induction of those outward bounds 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. The formal profession, therefore, or oath of subjection, is nothing more than a declaration in words of what was before implied in law, which occasioned Sir Edward Koch very justly to observe that all subjects are equally bound in 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 accumulated by super-adding perjury to treason, but it does not increase the civil obligations to loyalty, it only strengthens the social tie by uniting it with that of religion. Allegiance, both expressed 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. 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 dead of gratitude, which cannot be forfeited, cancelled, or altered by any change of time, place, or circumstance, nor by anything but the united concurrence of the legislature. 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 that the natural born subject of one prince cannot, by any act of his own, know 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 divested 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. 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, and it ceases the instant such stranger transfers himself from this kingdom to another. Natural allegiance is therefore perpetual and local temporary only, and 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 region 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 consideration Sir Matthew Hale deduces his consequence, that though there be a usurper of the crown, yet it is treason for any subject, while the usurper is in full possession of the sovereignty, to practice anything against his crown and dignity, wherefore, although the true prince regained the sovereignty, yet such attempts against the usurper, unless in defense 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 the fourth recovered the crown, which had been long detained from his house by the line of Lancaster, treasons committed against Henry the sixth were capital punishment, though Henry had been declared and usurper by Parliament. 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, was exclusive of the person of the king, where the Spencers banished in the reign of Edward the Second. 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 defense and support of their legelord and sovereign. 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 criterion of time and locality. Natural born subjects having a great variety of rights, which they acquire by being born within the king's legions, and can never forfeit at any distance of place or time, but only by their own misbehavior, the explanation of which rights is the principle subject of the first two books of these commentaries. The same is also in some degree the case of aliens, though their rights are much more circumscribed, being acquired only by residents here, and lost whenever they remove. I shall, however, here endeavor to chalk out some of the principle 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 entitled to him. If an alien could acquire a permanent property in lands, he must owe an allegiance, either permanent with that property to the king of England, which would probably be inconsistent with that which he owes to his natural legelord. 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, but the prince had no such advantage of a sheet thereby as with us in England. Among other reasons which might be given for our constitution 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, for personal estate is of transitory and movable 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 that they were virtually repealed by statute V Elizabeth C-7. Also an alien may bring 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 doire d'Abin or jus albinatus, 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 own special favor during time of war. 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, for the naturalization of the 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 ambassadors 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 post-laminium to be born under the king of England's allegiance, represented by his father, the ambassador. To encourage also foreign commerce, it was enacted by Statute 25 Edward III, Statute II, 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 consent, 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 legions, 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. 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 juice albinatus, if a child be born of foreign parents, it is an alien. A denizen is an alien born, but who has obtained ex-denation, regious letters patent to make him an English subject, a high and incommutable branch of the royal prerogative. A denizen is in a kind of middle state between an alien and natural-born subjects, 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 therefore could convey none to the son. And upon a like defect of hereditary blood, the issue of a denizen, born before denization, cannot inherit to him, but his issue born after may. A denizen is not excused from paying the alien's duty, and some other mercantile burdens, and no denizen can be of the privy council, or either house of parliament, or have any office of trust, civil or military, or be capable of any grant from the crown. Naturalization cannot be performed but by an 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 legions, except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, etc. No bill for naturalization can be received in either house of parliament without such disabling clause in it. 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 bringing in of the bill, and unless he also takes the oaths of allegiance and supremacy in the presence of the parliament. These are the principal distinctions between aliens, denizens, and natives, distinctions which endeavors have been frequently used 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 Seven Anne C. Five, but this, after three years' experience of it, was repealed by the statute Ten Anne C. Five, 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 is ipso facto naturalized, 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, are upon taking oaths naturalized to all intents and purposes as if they had been born in this kingdom, and therefore are admissible to all such privileges and no other as protestants or Jews born in this kingdom are entitled to. What those privileges are 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 ordered by statute Seventh James the First. 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 minds. End of section 38. Section 39 Part 1 of Chapter 11 of the Commentaries on the Laws of England, Book 1. This is a LibriVox recording. All LibriVox recordings are in the public domain. For more information or to volunteer, please visit LibriVox.org. Recording by a Father Xyle of Detroit. Commentaries on the Laws of England by William Blackston. Book 1, Chapter 22, Part 2. Chapter 11 of the Clergy. The people, whether aliens, denizens, or natural born subjects, are divisible into two kinds. The clergy and the 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, hath 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 endeavored 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 Koch 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 belong 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 courtly or view of frank pledge, which almost every other person is obliged to do. 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, rave, constable or the like, in regard of his own continual attendance on the sacred function. During his attendance on divine service, he is privileged from arrests in civil suits. 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. In both which particulars he is distinguished from a layman. But as they have their privilege, 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, and by statute, 22 Henry VIII, XIII, are not allowed to take any lands or tenements to farm upon pain of ten pounds per month and total avoidance of the lease, nor shall engage in any manner of trade nor sell any merchandise under forfeiture of the treble value, which prohibition is consonant to the canon law. In the frame and constitution of ecclesiastical polity there are diverse 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 they have bound themselves. And under each division I shall consider, I, the method of their appointment, II, their rights and duties, and III, the manner wherein their character or office may cease. I. An archbishop 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 by the clergy. Till at length, it becoming tumultuous, the emperors and other sovereigns of the respective kingdoms of Europe took the election in some degree into their own hands, by reserving to themselves the right of confirming these elections and of granting investiture of the temporalities, 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 on Odomini 773 by Pope Hadrian I and by the Council of Lateran 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 laity from any share in these elections and to confine them wholly to the clergy, which at length was completely effective, the mere form of election appearing to the people to be a thing of little consequence, while the crown was in possession of an absolute negative which was almost equivalent to a direct right of nomination. Hence the right of appointing to bishoprics is said to have been in the crown of England, as well as other kingdoms in Europe, even in the Saxon times, because the rights of confirmation and investiture were in effect, though not in form, a right of complete donation. But when by length of time the custom of making elections by the clergy was fully established, the popes began to accept to the usual method of granting these investitures, which was per annum ed baculum by the princes delivering to the prelet a ring and a pastoral staff or crozier, pretending that this was an encroachment on the Church's authority and an attempt by these symbols to confer a spiritual jurisdiction, and Pope Gregory VII, towards the close of the 11th century, published a bull of excommunication against all princes who should dare to confer investitures and all prelates who should venture to receive them. This was a bold step towards effecting the plan then adopted by the Roman sea of rendering the clergy entirely independent of the civil authority, and long and eager were the contests occasioned by this dispute. But at length, when the Emperor Henry V agreed to remove all suspicion of encroachment on the spiritual character by conferring investitures for the future per skeptum and not per annulum ed baculum, and when the kings of England and France consented also to alter the form in their kingdoms and receive only homage from the bishops for their temporalities instead of investing them by the ring and crozier, the Court of Rome found it prudent to suspend for a while its other pretensions. This concession was obtained from King Henry I in England by means of that obstinate and arrogant prelate Archbishop Anselm. But King John, about a century afterwards, in order to obtain the protection of the Pope against his discontented barons, was prevailed upon to give up by charter to all the monasteries and cathedrals in the kingdom the free right of electing their prelates, whether abbots or bishops, reserving only to the crown the custody of the temporalities during the vacancy, the form of granting a license to elect, which is the original of our range de l'esier on the refusal whereof the electors might proceed without it, and the right of uprobation afterwards, which was not to be denied without a reasonable and lawful cause. This grant was expressly recognized and confirmed in King John's Magna Carta, and was again established by Statute 25 Edward III, Statute 6, Chapter 3. But by Statute 25, Henry VIII in Chapter 20, the anteant right of nomination, was in effect restored to the crown. It being enacted that, at every future avoidance of a bishopric, the king may send the dean and chapter his usual license to proceed to election, which is always to be accompanied with a letter missive from the king containing the name of the person whom he would have them elect. And if the dean and chapter delay their election above twelve days, the nomination shall devolve to the king, who may by letters patent appoint such person as he pleases. This election or nomination, if it be of a bishop, must be signified by the king's letters patent to the archbishop of the province, if it be of an archbishop to the other archbishop and two bishops, or to four bishops, requiring them to confirm, invest, and consecrate the person so elected, which they are bound to perform immediately without any application to the sea of Rome. After which the bishop-elect shall sue to the king for his temporalities, shall make oath to the king and none other, and shall take restitution of his secular possessions out of the king's hands only. And if such dean and chapter do not elect in the manner by this act appointed, or if such archbishop or bishop do refuse to confirm, invest, and consecrate such bishop-elect, they shall incur all the penalties of appremuniere. An archbishop is the chief of the clergy in a whole province, and has the inspection of the bishops of that province, as well as of the inferior clergy, and may deprive them on notorious cause. The archbishop has also his own diocese, wherein he exercises Episcopal jurisdiction, as in his province he exercises Archepiscopal. As archbishop he, upon receipt of the king's writ, calls the bishops and clergy of his province to meet in convocation, but without the king's writ he cannot assemble them. To him all appeals are made from inferior jurisdictions within his province, and as an appeal lies from the bishops in person to him in person, so it also lies from the consistory courts of each diocese to his Archepiscopal court. During the vacancy of any sea in his province, he is guardian of the spiritualities thereof, as the king is of the temporalities, and he executes all ecclesiastical jurisdiction therein. If an Archepiscopal sea be vacant, the dean and chapter are the spiritual guardians ever since the office of prior of Canterbury was abolished at the Reformation. The Archbishop is entitled to present any lapse to all the ecclesiastical livings in the disposal of his diocesan bishops, if not filled within six months, and the Archbishop has a customary prerogative when a bishop is consecrated by him to name a clerk or chaplain of his own to be provided for by such suffragan bishop, in lieu of which it is now usual for the bishop to make over by deed to the Archbishop his executors and assigns the next presentation of such dignity or benefits in the bishop's disposal within that sea, as the Archbishop himself shall choose, which is therefore called his option, which options are only binding on the bishop himself who grants them and not his successors. The prerogative itself seems to be derived from the legantine power formally annexed by the Popes to the Metropolitan of Canterbury, and we may add that the papal claim itself, like most others of that encroaching sea, was probably set up in imitation of the imperial prerogative called primae or primarii praesis, whereby the emperor exercises and hath immemorially exercised a rite of naming the first premon that becomes vacant after his accession in every church of the empire. At rite that was also exercised by the crown of England in the reign of Edward the first, and which probably gave rise to the royal courtes which were mentioned in a former chapter. It is also the privilege by custom of the Archbishop of Canterbury to crown the kings and queens of this kingdom, and he hath also by the Statute 25, Henry VIII, Chapter 21, the power of granting dispensations, in any case, not contrary to the holy scriptures and the law of God, where the pope used formally to grant them, which is the foundation of his granting special licenses to marry at any place or time to hold two livings and the like, and on this also is founded the rite he exercises of conferring degrees in prejudice of the two universities. The power and authority of a bishop besides the administration of certain holy ordinances peculiar to that sacred order consists principally in inspecting the manners of the people and clergy and punishing them in order to reformation by ecclesiastical censures. To this purpose he has several courts under him and may visit at pleasure every part of his diocese. His chancellor is appointed to hold his courts for him and to assist him in matters of ecclesiastical law, who as well as all other ecclesiastical officers, if lay or married, must be a doctor of the civil law so created in some university. It is also the business of a bishop to institute and to direct induction to all ecclesiastical livings in his diocese. Archbishoprics and bishoprics may become void by death, deprivation or any very gross and notorious crime and also by resignation. All resignations must be made to some superior. Therefore a bishop must resign to his metropolitan, but the archbishop can resign to none but the king himself. 2. A dean and chapter are the counsel of the bishop to assist him with their advice in affairs of religion and also in the temporal concerns of his sea. When the rest of the clergy were settled in the several parishes of each diocese, as hath formerly been mentioned, these were reserved for the celebration of divine service in the bishop's own cathedral, and the chief of them who presided over the rest obtained the name of Decanus, or dean, being probably at first appointed to superintend ten canons or prebandaries. All antideens are elected by the chapter, by Quang de Lisire from the king, and letters missive of recommendation, in the same manner as bishops. But in those chapters that were founded by Henry VIII out of the spoils of the dissolved monasteries, the denary is donative, and the installation merely by the king's letters patent. The chapter consisting of canons or prebandaries are sometimes appointed by the king, sometimes by the bishop, and sometimes elected by each other. The dean and chapter are, as was before observed, the nominal electors of a bishop. The bishop is their ordinary and immediate superior, and has generally speaking the power of visiting them and correcting their excesses and enormities. They had also a check on the bishop at common law, for till the statute 32 Henry VIII, chapter 28, his grant or lease would not have bound his successors unless confirmed by the dean and chapter. Deanaries and prebans may become void, like a bishopric, by death, by deprivation, or by resignation, to either the king or the bishop. Also, I may here mention once for all, that if a dean, prebandary, or other spiritual person be made a bishop, all the performance he was before possessed of are void, and the king may present them in right of his prerogative royal. But they are not void by the election, but only by the consecration. 3. An archdeacon hath an ecclesiastical jurisdiction immediately subordinate to the bishop throughout the whole of his diocese, or in some particular part of it. He is usually appointed by the bishop himself, and hath a kind of episcopal authority, originally derived from the bishop, but now independent and distinct from his. He therefore visits the clergy and has his separate court for punishment of offenders by spiritual censures, and for hearing all other causes of ecclesiastical cognizance. 4. The rural deans are very antient officers of the church, but almost grown out of use, though their deanaries still subsist as an ecclesiastical division of the diocese or archdeenery. They seem to have been deputies of the bishop, planted all round his diocese, the better to inspect the conduct of the parochial clergy, and therefore armed with an inferior degree of judicial and coercive authority. End of Section 39. End of Part 1 of Chapter 11 of the Commentaries on the Laws of England, Book 1, Recording by Father Zeile, Detroit, Michigan.