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council, or the lords of the admiralty, if the stores be for the use of the royal navy; not to receive back any stores formerly issued, until they have been reviewed by the surveyor, and registered by the clerks of the ord nance; to ascertain that all his majesty's storehouses be in good and sufficient repair and accommodation; and the stores kept in such order and lustre as is fit for his majesty's honour and service.*
ALIENS, DENIZENS, AND NATIVES.
Under the name of the people, is included every individual from the highest to the lowest subject in the realm : princes, nobility, clergy, magistrates, gentry, and commonalty, all united, compose what is called the people. “ The first and most obvious division,” says Sir William Blackstone, “ of the people, therefore, is into aliens and natural born subjects.” The latter are such as are born within the dominions of the British crown; that is, within the allegiance of the king; and the former, or aliens, are such as have been born in the dominions of other sovereigns, and whose allegiance are therefore due to them. Every subject owes allegiance to the king; it is the tie or ligamen, which binds the subject to the sovereign, and is the return for that protection which the king affords to him. The substantial part, or thing itself, is founded in reason, the divine law, and the nature of government; but its name and form have descended to us from our feudal ancestors. Under the feudal system every owner of lands held them in subjection to the crown originally, or to some inferior lord, who had obtained of the crown, from whom or his ancestors the tenant or vassal had received them. This produced a natural trust or confidence between the lord and the vassal, that the former should protect the latter in the enjoyment of the land or territory which he had granted him, and the vassal on the other hand reciprocally engaged to be faithful to his lord or superior, and to defend him against all his enemies. The vassal's obligation was called his fidelitas, or fealty; and the feudal law required all tenants to take an oath of fealty or fidelity to their landlords, which ran in nearly the same language as our ancient oath of fealty to the crown, professing, “ that he did become his man from that day forth, of life and limb and earthly honour:” except that in the usual oath of fealty 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, that is the king, it was no longer called the oath of
* Blackstone's Commentaries-Custance on the Constitution-Chamberlayne's Anglia Notitia-Statutes at Large.
sealty, but of allegiance; and therein the tenant swore to bear faith to his sovereign lord, in opposition to all men, contra omnes homines fidelitatem fecit; without any saving clause or mental reservation whatever. We have formerly mentioned, that it is the grand and fundamental maxim of the feudal tenure, that all lands were originally granted out by the sovereign, and are therefore holden, either mediately or immediately of the crown." Land held by this exalted species of tenure was called a liege fee; the vassals were designated liege men; and the sovereign the liege lord. When sovereign princes did homage to each other for lands held under their respective sovereignties, as the kings of Scotland frequently did for lands held by them as proprietors in England, they were always careful to make a distinction between simple and liege homage. Simple homage was merely an acknowledgment of tenure ; and liege homage, which included the submission and fealty before mentioned, and the services to which that oath bound the recipient. In the year 1329, when Edward III. of England did homage to Philip VI. of France, for his ducal dominions in that kingdom, the nature of the homage was warmly disputed. Philip naturally enough demanded liege, and the king of England proffered simple, homage. But as it became a settled principle in England, that all the lands in the kingdom are holden of the king as their sovereign and lord paramount, the oath of fealty, therefore, could alone be taken to inferior lords, and the oath of allegiance was confined to the person of the king alone. By an easy analogy the term of allegiance was gradually brought to signify all other engagements which subjects owe to their prince, as well as mere territorial duties ; and the oath of allegiance contained for upwards of six hundred years, a promises to be true and faithful to the king and his heirs, and truth and faith to bear of life and limb and terrene honour, and not to know or hear of any ill or damage intended him without defending therefrom.” These were the exact words also of the oath of allegiance in Scotland, and the clause in italics was the cause of the adherence of the official men and the bishops to the house of Stuart at the Revolution in 1688. Sir Matthew Hale remarks, that this oath was short and plain, not entangled with long and intricate clauses or declarations, and clearly comprehends the whole duty of a subject to his sovereign. At the Revolution the oath of allegiance was altered, the subject simply swearing, “ that he will be faithful, and bear true allegiance to the king;" this form was introduced by the convention parliament, and is more general and indeterminate than the former, as it neither binds to continue their fidelity to the heir, nor in any manner specifies in what that allegiance consists. The oath of supremacy is principally intended as a renunciation of the pope's pretended authority, as no crown can be supreme which has a superior, and it is well known that the pope pretended
to be lord of lords, and king of kings. The oath of abjuration was introduced in the last year of the reign of William III., and was intended to supply the loose and general texture of the oath of allegiance: it runs, " I, A. B., do truly and sincerely acknowledge, profess, testify, and declare, in my conscience before God and the world, that our sovereign lord, king William, is lawful and rightful king of this realm, and all other his majesty's dominious and countries thereunto belonging. And I do solemnly and sincerely declare, that I do believe in my conscience, that the person pretended to be the prince of Wales, during the life of the late king James, and since bis decease pretending to be and taking upon himself the style and title of king of England, by the name of James III., hath not any right or title whatsoever to the crown of this realm, or any other the dominions thereunto belonging: and I do renounce, refuse, and abjure any allegiance or obedience to him. And I do swear, that I will bear faith and true allegiance to his majesty king William, and him will defend to the utmost of my power, against all traitorous conspiracies and attempts whatsoever which shall be made against his person, crown, or dignity. And I will do my best endeavour to disclose and make known to his majesty and his successors all treasons and traitorous conspiracies, which I shall know to be against him or any of them. And I do faithfully promise, to the utmost of my power, to support and maintain, and defend the limitation and succession of the crown, against him the said James and all other persons whatsoever, as the same is and stands limited to his majesty during his majesty's life, and after his majesty's decease to the princess Anne of Denmark, and the heirs of her body, being protestants; and for default of such issue, to the heirs of the body of his majesty, being protestants : and as the same by another act is, and stands limited after the decease of his majesty and the princess Anne of Denmark, and for default of issue of said princess and of his majesty respectively, to the princess Sophia, electress and duchess dowager of Hanover, and the heirs of her body, being protestants. And all these things I do sincerely and plainly acknowledge and swear, according to these express words by me spoken, and according to the plain and common sense and understanding of the same words, without any equivocation, mental evasion, or secret reservation whatsoever. And I do make this recognition, acknowledgment, abjuration, renunciation, and promise, heartily, willingly, and truly, upon the true faith of a Christian.”* This oath might now with great propriety be laid aside, since that illustrious line of princes, against which it was intended to operate, are long since become extinct. It must be taken by all persons in any office, trust, or employment, and may be tendered by
* Statute 13 Will. III., c. 6.
two justices of the peace to any person whom they may suspect of disaffection to government. The oath of allegiance may be tendered to any one above the age of twelve years, whether natives, denizens, or alieng.
But besides these express engagements, there is also an implied, original, and virtual allegiance, which every subject owes to his sovereign, antecedently and independently of all express promise or oath, even although the subject should never swear allegiance in form. For, as the king, by descent of the crown, is fully invested with all the rights, and is himself bound to perform all the duties of the sovereignty, before his coronation, and even although he never were crowned; so is the subject bound to his prince, by an intrinsic allegiance before the superinduction of those external bonds of oaths, homage, and fealty, which were merely instituted to remind the subject of this his previous and bounden duty, and for the better securing its performance. The formal profession, or oath of subjection, therefore, is nothing more than a verbal declaration of what was previously implied in law. On this subject Sir Edward Coke has the following just and emphatic remark: “ 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 the violation of the duty, accumulates greater guilt, by superadding treason; but it does not increase the civil obligation to loyalty, it only strengthens the social tie by uniting it with religion.
Allegiance, whether expressed or implied, is, however, distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, whereas the latter is only temporary. That which is natural is due irrespectively from all men born within the king's dominions immediately on their birth, because the moment they are born they are under the king's protection, and that too at a period when from their tender age they cannot protect themselves. Natural allegiance, therefore, becomes on the part of the subject a debt of gratitude, which can neither be forfeited, cancelled, nor altered by any change of time, place, or circumstances whatever, unless by the united concurrence of the legislature. A British subject removing to France, America, or China, still owes the same allegiance to the king of Great Britain, as if he were never to leave the kingdom, and that too were he to be absent for any number of years. It is a principle of universal law, that the natural born subject of one prince, cannot put off or discharge his natural allegiance to his sovereign by any act of his own, no, not even by swearing
* 2 Inst. 121.
allegiance to another; for the natural allegiance was intrinsic and primi. tive, and antecedent to the other, and cannot be divested without the concurrent act and consent of that prince to whom it was first due. It is true, that the natural born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely by oaths to another; but the subjection to these straits and difficulties, that is, of serving two masters, being his own act, it is unreasonable that he should be able at pleasure, by any such voluntary act of his own, to throw off his allegiance, and unloose the bands which connect him with his natural sovereign. The legal maxim, nemo potest exuere patriam, comprehends the whole doctrine of natural allegiance. This is exemplified in the case of a Mr Eneas Macdonald, who was a native of Great Britain, but from his earliest infancy had received his education in France, had enjoyed for many years a profitable employment in that kingdom, and had even accepted a commission in the French king's army. Acting under that commission, he was taken in arms serving against the king of England, for which he was indicted and convicted of high treason; but received a pardon on the condition that he should leave the kingdom, and reside abroad during all the days of his natural life.*
Local allegiance is what is due by an alien, or a native of a foreign country, being a stranger born, during the time, and no longer, that he continues within the king's dominion and protection. This allegiance naturally ceases the moment that the alien removes to another state or kingdom. It has, however, been laid down by all the judges of England, that “ if an alien, seeking the protection of the crown, and having a family and effects here, should, during a war with his native country, go thither, and there adhere to the king's enemies for purposes of hostility, he may be dealt with as a traitor."+ Our natural allegiance is, therefore, perpetual, but the local allegiance of an alien, with the above exception, is merely temporary; and that for this reason, evidently founded on the nature of government, allegiance being a debt due from the subject, upon an implied contract with the prince, that so long as the latter affords protection, the former must yield an implicit obedience. As, therefore, the prince is always under a constant tie to protect bis natural born subjects at all times, and in all countries, for this reason their allegiance due to him, “ not only for wrath, but also for conscience sake,” 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, an alien's allegiance is consequently confined (in point of time at least) to the duration of his residence; and (in point of locality) to the dominions of
* Sir M. Foster, 59.
† Foster, 185.