網頁圖片
PDF
ePub 版

observe, "he knew he had the duchy of Lancaster by sure and indefeasible title, but that his title to the crown was not so assured; for that after the decease of Richard II, the right of the crown was in the heir of Lionel, duke of Clarence, second son of Edward III; John of Gaunt, father to this Henry IV, being but the fourth son." And therefore he procured an act of parliament, in the first year of his reign, ordaining that the duchy of Lancaster, and all other his hereditary estates, with all their royalties and franchises, should remain to him and his heirs for ever; and should remain, descend, be administered, and governed, in like manner as if he never had attained the regal dignity; and thus they descended to his son and grandson, Henry V and Henry VI, many new territories and privileges being annexed to the duchy by the former. (c) Henry VI being attainted in 1 Edw. IV, this duchy was declared in parliament *to have become forfeited to the crown, (d) and at the same time an act [*119] was made to incorporate the duchy of Lancaster, to continue the county palatine, (which might otherwise have determined by the attainder,) (e) and to make the same parcel of the duchy; and farther to vest the whole in King Edward IV and his heirs, kings of England, for ever; but under a separate guiding and governance from the other inheritances of the crown. And in I Hen. VII another act was made, to resume such parts of the duchy lands as had been dismembered from it in the reign of Edward IV, and to vest the inheritance of the whole in the king and his heirs forever, as amply and largely, and in like manner, form, and condition, separate from the crown of England and possession of the same, as the three Henries and Edward IV, or any of them, had and held the same. (ƒ)

The Isle of Ely is not a county palatine, though sometimes erroneously called so, but only a royal franchise; the bishop having, by grant of King Henry the First, jura regalia within the Isle of Ely, whereby he exercises a jurisdiction over all causes, as well criminal as civil. (g)

*There are also counties corporate, which are certain cities and towns, [*120] some with more, some with less territory annexed to them; to which, out of special grace and favour, the kings of England have granted the privilege to be counties of themselves, and not to be comprized in any other county; but to be governed by their own sheriffs and other magistrates, so that no officers of the county at large have any power to intermeddle therein. Such are London, York, Bristol, Norwich, Coventry, and many others. And thus much of the countries subject to the laws of England. (20)

(d) 1 Ventr. 155.

(e) 1 Ventr. 157.

(c) Parl. 2 Hen. V. n. 30. 3 Hen. V. n. 15. (f) Some have entertained an opinion (Plowd. 220, 1, 2. Lamb. Archeion. 233. 4 Inst. 206) that by this act the right of the duchy vested only in the natural, and not in the political person of King Henry VII as formerly in that of Henry IV, and was descendible to his natural heirs, independent of the succession to the crown. And, ifthis notion were well founded, it might have become a very curious question, at the time of the revolution in 1688, in whom the right of the duchy remained after King James's abdication, and previous to the attainder of the pretended prince of Wales. But it is observable, that in the same act the duchy of Cornwall is also vested in King Henry VII and his heirs; which could never be intended in any event to be separated from the inheritance of the crown. And indeed it seems to have been understood very early after the statute of Henry VII, that the duchy of Lancaster was by no means thereby made a separate inheritance from the rest of the royal patrimony, since it descended with the crown to the half-blood in the instances of Queen Mary and Queen Elizabeth, which it could not have done as the estate of a mere duke of Lancaster, in the common course of legal descent. The better opinion therefore seems, to be that of those judges, who held (Plowd. 221) that notwithstanding the statute of Henry VII (which was only an act of resumption) the duchy still remained, as established by the act of Edward IV, separate from the other possessions of the crown in order and government, but united in point of inheritance. (g) 4 Inst. 220.

(20) There is an important difference between the civil divisions of Great Britain and those of the United States, in that, in the latter country, there is no one authority possessing such universal powers as are possessed by the parliament of the former. By the constitution of the United States, which defines the powers of the national government, that government possesses in respect to all the states exclusive control over all those concerns which would naturally form the subject of relations with other governments, and also over some matters of internal concern which it was deemed important to confer upon the general government with a view to the general harmony, and in order to "a more perfect union." All those powers not by the constitution conferred upon the general government remain with the states. With the states local self-government is the rule: for convenience in administering it, the state is divided into counties and towns, and it also creates village, borough, and city governments to meet the wants of dense populations. All the jurisdictions inferior to the state possess only such powers as the

state confers upon them by the legislation by which they are created. See Cooley Const. Lim. cc. 2 and 8. Also, Dillon on Municipal Corporations.

The congress of the United States possesses the power of exclusive legislation in all cases over the District of Columbia: Const. art. 1, § 8; and under another provision, art. 4, § 3, it has exercised the authority to originate governments for the territories, and to modify and supervise them from time to time; but how far this authority is rightful has been of late the subject of dispute between political parties, and also by the Mormon authorities exercising functions of government without congressional permission in Utah. The subject is treated on legal grounds by Judge Jameson in his work on the Constitutional Convention.

75

COMMENTARIES

ON

THE LAWS OF ENGLAND.

BOOK THE FIRST.

OF THE RIGHTS OF PERSONS.

CHAPTER I.

OF THE ABSOLUTE RIGHTS OF INDIVIDUALS.

The objects of the laws of England are so very numerous and extensive, that, in order to consider them with any tolerable ease and perspicuity, it will be necessary to distribute them methodically, under proper and distinct heads; avoiding as much as possible divisions too large and comprehensive on the one hand, and too trifling and minute on the other; both of which are equally productive of confusion.

*Now, as municipal law is a rule of civil conduct, commanding what is right, and prohibiting what is wrong; or as Cicero, (a) and after him [*122] our Bracton, (b) have expressed it, sanctio justa, jubens honesta et prohibens contraria, it follows that the primary and principal objects of the law are RIGHTS and WRONGS. In the prosecution, therefore, of these commentaries, I shall follow this very simple and obvious division; and shall, in the first place, consider the rights that are commanded, and secondly the wrongs that are forbidden, by the laws of England.

Rights are, however, liable to another subdivision; being either, first, those which concern and are annexed to the persons of men, and are then called jura personarum, or the rights of persons; or they are, secondly, such as a man may acquire over external objects, or things unconnected with his person; which are styled jura rerum, or the rights of things. Wrongs also are divisible into, first, private wrongs, which, being an infringement merely of particular rights, concern individuals only, and are called civil injuries; and secondly, public wrongs, which, being a breach of general and public rights, affect the whole community, and are called crimes and misdemeanors. (1)

[blocks in formation]

(1) [This classification was adopted by Lord Ch. J. Hale (see Hale's Analysis of the Law), who introduced it into our system from the Institutes. It has also been adopted in the Code Civil of France.]

[ocr errors]

The objects of the laws of England falling into this fourfold division, the present commentaries will therefore consist of the four following parts. 1. The rights of persons, with the means whereby such rights may be either acquired or lost. 2. The rights of things, with the means also of acquiring and losing them. 3. Private wrongs, or civil injuries; with the means of redressing them by law. 4. Public wrongs, or crimes and misdemeanors; with the means of prevention and punishment. (2)

We are now first to consider the rights of persons, with the means of acquiring and losing them.

*Now the rights of persons that are commanded to be observed by the [*123] municipal laws are of two sorts: first, such as are due from every citizen, which are usually called civil duties; and, secondly, such as belong to him, which is the more popular acceptation of rights or jura. Both may indeed be comprised in this latter division; for, as all social duties are of a relative nature, at the same time that they are due from one man, or set of men, they must also be due to another. But I apprehend it will be more clear and easy to consider many of them as duties required from, rather than as rights belonging to, particular persons. Thus, for instance, allegiance is usually, and therefore most easily, considered as the duty of the people, and protection as the duty of the magistrate; and yet they are reciprocally the rights as well as duties of each other. Allegiance is the right of the magistrate, and protection the right of the people. Persons also are divided by the law into either natural persons, or artificial. Natural persons are such as the God of nature formed us; artificial are such as are created and devised by human laws for the purposes of society and government, which are called corporations or bodies politic.

The rights of persons considered in their natural capacities are also of two sorts, absolute and relative. Absolute, which are such as appertain and belong to particular men, merely as individuals or single persons: relative, which are incident to them as members of society, and standing in various relations to each other. The first, that is, absolute rights, will be the subject of the present chapter.

By the absolute rights of individuals, we mean those which are so in their primary and strictest sense; such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it. But with regard to the absolute duties, which man is bound *to [*124] perform considered as a mere individual, it is not to be expected that any human municipal law should at all explain or enforce them. For the end and intent of such laws being only to regulate the behaviour of mankind, as they are members of society, and stand in various relations to each other, they have consequently no concern with any other but social or relative duties. Let a man therefore be ever so abandoned in his principles, or vicious in his practice, pro

(2) [The distinction between private wrongs and public wrongs is more intelligible, and more accurately limited by the nature of the subjects, than the distinction between the rights of things, and the rights of persons; for all rights whatever must be the rights of certain persons to certain things. Every right is annexed to a certain character or relation, which each individual bears in society. The rights of kings, lords, judges, husbands, fathers, heirs, purchasers, and occupants, are all dependent upon the respective characters of the claimants. These rights might again be divided into rights to possess certain things, and the rights to do certain actions. This latter class of rights constitute powers and authority. But the distinction of rights of persons and rights of things, in the first two books of the Commentaries, seems to have no other difference than the antithesis of the expression, and that, too, resting upon a solecism; for the expression, rights of things, or a right of a horse, is contrary to the idiom of the English language; we say, invariably, a right to a thing. The distinction intended by the learned judge, in the first two books, appears, in a great degree, to be that of the rights of persons in public stations, and the rights of persons in private relations. But, as the order of legal subjects is, in a great measure, arbitrary, and does not admit of that mathematical arrangement where one proposition generates another, it perhaps would be difficult to discover any method more satisfactory than that which the learned judge has pursued, and which was first suggested by Lord Ch. J. Hale. See Hale's Analysis of the Law.]

Austin on the Province of Jurisprudence considers at some length and criticises the classification of the text.

« 上一頁繼續 »