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 counterpoise, to restrain a man and his family from acquiring a new settlement by any length of residence whatever, unless in two particular excepted 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, 1. By birth; for, wherever a child is first known to be, that is always prima facie the place of settlement, until some other can be shewn. (q) This is also [ *363] generally the place of settlement of a bastard child; (r) for a bastard having in the eye of the law no father, cannot be referred to his settlement as other children may. (s) But, in legitimate children, though the place of birth be prima facie the settlement, yet it is not conclusively so; for there are, 2. Settlements by parentage, being the settlement of one's father or mother: all legitimate children being really settled in the parish where their parents are settled, until they get a new settlement for themselves. (t) A new settlement may be acquired several ways; as, 3. By marriage. For a woman marrying a man that is settled in another parish changes her own settlement: the law not permitting the separation of husband and wife. (u) But if the man has no settlement, hers is suspended during his life, if he remains in England and is able to maintain her; but in his absence, or after his death, or during, perhaps, his inability, she may be removed to her old settlement. (v) 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 made notorious by one or other of the following concomitant circumstances. The next method therefore of gaining a settlement is, 4. 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. (w) 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, 5. Renting for a year *a tenement of the yearly value of ten pounds, and residing forty days in the parish, gains a settle- [ *364] ment without notice; (x) upon the principle of having substance enough to gain credit for such a house. 6. Being charged to and paying the public taxes and levies of the parish; excepting those for scavengers, highways, (y) and the duties on houses and windows; (2) and, 7. Executing, when legally appointed, any public parochial office for a whole year in the parish, as churchwarden, &c., are both of them equivalent to notice, and gain a settlement, (a) if coupled with a residence of forty days. 8. Being hired for a year, when unmarried and childless, and serving a year in the same service; and 9. Being bound an apprentice, give the servant and apprentice a settlement without notice, (b) in that place wherein they serve the last forty days. This is meant to encourage application to trades, and going out to reputable services. 10. Lastly, the having an estate of one's own, and residing thereon forty days, however small the value may be, in case it be acquired by act of law, or of a third person, as by descent, gift, devise, &c., is a sufficient settlement: (c) but if a man acquire it by his own act, as by purchase, (in its popular sense, in consideration of money paid,) then (q) Carth. 433. Comb. 364. Salk. 485. 1 Lord Raym. 567. (t) Salk. 528. 2 Lord Raym. 1473. (u) Stra. 544. (r) See p. 459. (v) Foley, 249, 251, 252. (w) Stat. 13 and 14 Car. II, c. 12. 1 Jac. II, c. 17. 3 and 4 W. and Mar. c. 11. (z) Stat. 13 and 14 Car. II, c 12. (y) Stat. 9 Geo. I, c. 7. 2 6. (z) Stat. 21 Geo. II, c. 10. 18 Geo. III, c. 26. (b) Stat. 3 and 4 W. and M. c. 11. (8) Salk. 427. (a) Stat. 3 and 4 W. and M. c. 11. unless the consideration advanced bona fide be 307., it is no settlement for any longer time than the persons shall inhabit thereon. (d) He is in no case removable from his own property; but he shall not, by any trifling or fraudulent purchase 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 adjudge them likely to become chargeable to the parish into which they have intruded: unless they are in a way of getting a legal settlement, as by having hired a house of 107. per annum, or living in an *annual service; for then [*365] they are not removable. (e) 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. (f) But such certificated person can gain no settlement by any of the means above mentioned, unless by renting a tenement of 10l. 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. (g) These are the general heads of the laws relating to the poor, which, by the resolutions of the courts of justice thereon within a century past, are branched into a great variety. (25) And yet, notwithstanding the pains that have been taken about them, they still remain very imperfect, and inadequate to the purposes they are designed for: a fate that has generally attended most of our statute laws, where they have not the foundation of the common law to build on. When the shires, the hundreds, and the tithings were kept in the same admirable order in which they were disposed by the great Alfred, there were no persons idle, consequently none but the impotent that needed relief: and the statute of 43 Eliz. seems entirely founded on the same principle. But when this excellent scheme was neglected and departed from, we cannot but observe with concern what miserable shifts and lame expedients have from time to time been adopted in order to patch up the flaws occasioned by this neglect. There is not a more necessary or more certain maxim in the frame and 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 are at length amazed to find that the industry of the other half is not able to maintain the whole. (d) Stat. 9 Geo. I, c. 7. (e) Salk. 472. (f) Stat. 8 and 9 W. III, c. 30. (g) Stat. 12 Ann. c. 18. (25) [The duty of relieving or removing our poor formerly devolved on the overseers, but by the 4 and 5 Wm. IV, c. 76, the poor law commissioners, and by the 12 and 13 Vic. c. 103, the poor law board were empowered to consolidate any number of parishes into one union for the relief of the poor. This being done, each parish has to elect one or more guardians, who act for the relief of the poor in the union, subject to the rules of the poor law board. In this case the overseers have nothing to do with giving relief, except in cases of sudden emergencies; they have, however, certain duties to perform in relation to the election of guardians. They are bound to make and levy the poor rates, and have other duties imposed upon them, most of which, however, may be discharged by an assistant overseer, a paid officer whom the inhabitants of each parish may appoint if they think fit.] In the United States the care of the dependent poor devolves upon the individual states, and provision is made in them all for that object. Township and county officers are chosen to administer the public bounty, and asylums are provided for those who need permanent relief. The reader will consult the statutes of his state for information concerning the system of relief for the poor there established. 230 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 naturalborn subjects. (1) Natural-born subjects are such as are born within the dominions of the crown of England; that is, within the ligeance, or, as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors. Under the feudal system, every owner of lands held them in subjection to some superior or lord, from whom or whose ancestors the tenant or vassel 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 obli- [*367] gation on the part of the vassal was called 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; (a) except that in the usual oath of fealty there was frequently a saving or exception of the faith due to a superior lord by name, under whom the landlord himself was perhaps only a tenant or 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 tenant swore to bear faith to his sovereign lord, in opposition to all men, without any saving or exception: "contra omnes homines fidelitatem fecit." (b) Land held by this exalted species of fealty was called feudum ligium, a liege fee; the vassals homines ligii, or liege men; and the sovereign their dominus ligius, or liege lord. And when sovereign princes did homage to each other, for lands held under their respective sovereignties, a distinction was always made between simple homage, which was only an acknowledgment of tenure, (c) and liege (b) 2 Feud. 99. (a) 2 Feud. 5, 6, 7. (c) 7 Rep. Calvin's case, 7. (1) [Natural-born subjects are persons born within the allegiance, power, or protection of the crown of England, which terms embrace not only persons born within the dominions of his majesty, or of his homagers and the children of subjects in the service of the king abroad, and the king's children, and the heirs of the crown, all of whom are natural-born subjects by the common law; but also under various statutes, all persons, though born abroad, whose father and grandfather by the father's side were natural-born subjects at common law, unless the father or paternal grandfather, through whom the claim is made, was at the time of the birth of such children liable, in case of his return into this country, to the penalties of treason or felony, or was in the actual service of any foreign prince then at enmity with the crown of England. Persons born in transmarine territories belonging to the king of England, m any other right than that of the English crown, as for instance, the Hanoverians, and persons doing service to the king, as officers of such transmarine territories, are not natural-born subjects. See Vaughan, 286. A child born out of the allegiance of the crown of England is not entitled to be deemed a natural-born subject, unless the father be at the time of the birth of the child not a subject only, but a subject by birth. Therefore, children born in the United States of America, since the recognition of their independence, of parents born there before that time, and continuing to reside there afterwards, are aliens, and cannot inherit lands here. 2 Bar. and Cres. 779; 4 D. and R. 394, S. C. homage, which included the fealty before mentioned, and the services consequent upon it. Thus when our Edward III, in 1329, did homage to Philip VI, of France, for his ducal dominions on that continent, it was warmly disputed of what species the homage was to be, whether liege or simple homage. (d) 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 those duties which were simply and merely territorial. And the oath of allegiance, as administered for *upwards of six hundred years, (e) contained a promise "to [*368] be true and faithful to the king and his heirs, and truth and faith to bear of life and limb and terrene honour, and not to know or hear of any ill or damage intended him, without defending him therefrom." Upon which Sir Matthew Hale (f) makes this remark, that it was short and plain, not entangled with long or intricate causes 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 nonresistance, 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, (g) very amply supplies the loose and general texture of the oath of allegiance; it recognizing the right of his majesty, derived under the act of settlement; engaging to support him to the utmost of the juror's power; promising to disclose all traitorous conspiracies against him; and expressly renouncing any claim of the descendants of the late pretender, in as clear and explicit terms as the English language can furnish. This oath must be taken by all persons in any office, trust, or employment; and may be tendered by two justices of the peace to any person whom they shall suspect of disaffection. (h) And the oath of allegiance may be tendered (i) to all persons above the age of twelve years, whether natives, denizens, or aliens, either in the court-leet of the manor, or in the sheriff's tourn, which is the court-leet of the county. (2) But, besides these express engagements, the law also holds that there is an implied, original, and virtual allegiance, *owing from every subject to [*369] 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 (d) 2 Cart. 401. Mod. Un. Hist. xxiii. 420. (e) Mirror, c. 3, 35. Fleta, 3, 16. Britton, c. 29. 7 Rep. Calvin's case, 6. (f) 1 Hal. P. C. 63. (g) Stat. 13 W. III, c. 6. (h) Stat. I, Geo. I, c. 13. 6 Geo. III, c. 53. (i) 2 Inst. 121. 1 Hal. P.C. 61. (2) As regards these oaths great changes have from time to time been made by statute, which it will not be necessary for us to follow here. The subject is now covered by statute 31 and 32 Vic. c. 72, under which no person can be "required or authorized to take the oaths of allegiance, supremacy and abjuration, or any of such oaths, or any oath substituted for such oaths or any of them," except the persons indicated in that act, in the Clerical Subscription Act, 1865," (as to which see next chapter) and the "Parliamentary Oaths Act, 1866." The general purpose of the statute 31 and 32 Vic. c. 72, as well as of other statutes which preceded it, was to relieve Roman Catholics and other persons having religious scruples which precluded their taking the oaths formerly required, from the disabilities under which they lay in consequence, and to enable them to serve the state in positions of honor and responsibility in common with their fellow subjects. The oath of allegiance now required is simply that the juror "will be faithful and bear true allegiance to her majesty Queen Victoria, her heirs and successors according to law;" and the oath required of officers generally is, that they will well and truly serve her majesty in their respective offices; while judicial officers are to add to the same a further pledge, that they "will do right to all manner of people after the laws and usages of this realm, without fear or favor, affection or ill will." 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. (k) The formal profession, therefore, or oath of subjection, is nothing more than a declaration in words of what was before implied in law. Which occasions Sir Edward Coke very justly to observe, (1) that "all subjects are equally bounden to their allegiance as if they had taken the oath; because it is written by the finger of the law in their hearts, and the taking of the corporal oath is but an outward declaration of the same." The sanction of an oath, it is true, in case of violation of duty, makes the guilt still more accumulated, by superadding perjury to treason but it does not increase the civil obligation to loyalty; it only strengthens the social tie by uniting it with that of religion. Allegiance, both express and implied, is however distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king's dominions immediately upon their birth. (m) For, immediately upon their birth, they are under the king's protection: at a time, too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, cancelled, or altered by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature. (n) An Englishman who removes to France, or to China, owes the same allegiance to the king [*370] of England there as at home, and twenty years hence as well as now. For it is a principal of universal law, (o) that the natural-born subject of one prince cannot by any act of his own, no, not by swearing allegiance to another, put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic, and primitive, and antecedent to the other; and cannot be divested without the concurrent act of that prince to whom it was first due. (3) 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. (4) (k) 1 Hal. P. C. 61. (1) 2 Inst. 121. (m) 7 Rep. 7. (n) 2P. Wms. 124. (0) 1 Hal. P. C. 68. (3) [And this seems to have guided the courts both of England and America, since the peace between these powers, which ended in the declaration and acknowledgment of the independence of America. It has been determined that the effect of the concurrent acts of the two governments was to divest a natural-born subject of the British king, adhering to the United States of America, of his right to inherit land in England; and so in K. B., it has been determined that the treaty virtually prevented Americans adhering to the crown from inheriting lands in America. See the English case, Doe d. Thomas v. Acklam, 2 B. and C. 779, which cites 7 Wheaton's R. 535.] (4) [Sir Michael Foster observes, that "the well-known maxim, which the writers upon our law have adopted and applied to this case, nemo potest exuere patriam, comprehendeth the whole doctrine of natural allegiance." Fost. 184. And this is exemplified by a strong instance in the report which that learned judge has given of Æneas Macdonald's case. He was a native of Great Britain, but had received his education from his early infancy in France, had spent his riper years in a profitable employment in that kingdom, and had accepted a commission in the service of the French king; acting under that commission, he was taken in arms against the king of England, for which he was indicted and convicted of high treason; but was pardoned upon condition of his leaving the kingdom, and continuing abroad during his life. Ib. 59.] The doctrine here stated has been accepted by the courts of America as a part of our inheritance of the common law of England. See the cases of Talbot v. Janson, 3 Dall. 133; Isaac Williams's Case, 2 Cranch, 82; Murray v. The Charming Betsey, Id. 124; United States v. Gillies, 1 Pet. C. C. 159; The Santissima Trinidad, 7 Wheat 283; Shanks v. Dupont, 3 Pet. 242; Ainslie v. Martin, 9 Mass. 461. To say however that it is "a principle of universal law," is to occupy disputed ground. Chancellor Kent, who declared and defended the doctrine, admits that the writers on public law have generally spoken in favor of the right of a subject to 233 VOL. I.-30 |