BOOK I. the fame terms as our antient oath of allegiance: except that in the usual oath of fealty there was frequently a saving or exception of the faith due to a fuperior lord by name, under whom the landlord himself was perhaps only a tenant or vafal. But when the acknowlegement was made to the abfolute fuperior himself, who was vafal to no man, it was no longer called the oath of fealty, but the oath of allegiance; and therein the tenant fwore to bear faith to his fovereign lord, in oppofition to all men, without any faving or exception: "contra omnes homines fidelitatem fecit." Land held by this exalted fpecies of fealty was called feudum ligium, a liege fee; the vasals homines ligii, or liege men; and the sovereign their dominus ligius, or liege lord. And when fovereign princes did homage to each other, for lands held under their respective sovereignties, a distinction was always made between fimple homage, which was only an acknowlegement of tenure; and liege homage, which included the fealty before-mentioned, and the fervices confequent 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 fpecies the homage was to be, whether liege or fimple homage. 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 fovereign and lord paramount, no oath but that of fealty could ever be taken to inferior lords, and the oath of allegiance was neceffarily confined to the person of the king alone. By an easy analogy the term of allegiance was foon brought to fignify all other engagements, which are due from fubjects to their prince, as well as those duties which were fimply and merely territo[368] rial. And the oath of allegiance, as administered for up wards of fix hundred years e, contained a promise "to be "true and faithful to the king and his heirs, and truth and "faith to bear of life and limb and terrene honour, and "not to know or hear of any ill or damage intended him, a 2 Feud. 5, 6, 7. b 2 Feud. 99. 7 Rep. Calvin's cafe. 7. da Cart. 401.Mod. Un. Hift. xxiii, 2 420. e Mirror. c. 3. § 35. Fleta. 3. 16. Britton. c. 29. 7 Rep. Calvin's cafe. 6. " without "without defending him therefrom." Upon which fir Matthew Halef makes this remark; that it was fhort and plain, not entangled with long or intricate claufes or declarations, and yet is comprehenfive of the whole duty from the fubject to his fovereign. But, at the revolution, the terms of this oath being thought perhaps to favour too much the notion of non-refiftance, the prefent form was introduced by the convention parliament, which is more general and indeterminate than the former; the fubject only promifing that he will be faithful and bear true allegiance to the king," without mentioning "his heirs," or fpecifying in the least wherein that allegiance confifts. The oath of fupremacy 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 recognizing the right of his majefty, derived under the act of fettlement; engaging to fupport him to the utmost of the juror's power; promifing to disclose all traiterous confpiracies against him; and exprefsly renouncing any claim of the defcendants of the late pretender, in as clear and explicit terms as the English language can furnish. This oath must be taken by all perfons in any office, truft, or employment; and may be tendered by two juftices of the peace to any perfon, whom they fhall fufpect of difaffection". And the oath of allegiance may be tendered to all perfons above the age of twelve years, whether natives, denizens, or aliens, either in the court-leet of the manor, or in the fheriff's tourn, which is the court-leet of the county. BUT, befides thefe exprefs engagements, the law alfo holds that there is an implied, original, and virtual allegiance, owing from every fubject to his fovereign, antecedently to any [369] exprefs promife; and although the fubject never fwore any faith or allegiance in form. For as the king, by the very defcent of the crown, is fully invefted with all the rights and bound to all the duties of fovereignty, before his coronation ; fr Hal. P. C. 63. 8 Stat. 13 W. III. c. 6. VOL. I. I i h Stat. 1 Geo, I. c. 13. 6 Geo. III. c. 53. fo fo the fubject is bound to his prince by an intrinfic allegiance, before the fuper-induction of thofe outward bonds of oath, homage, and fealty; which were only inftituted to remind the fubject of this his previous duty, and for the better securing it's performance *. The formal profeffion therefore, or oath of fubjection, is nothing more than a declaration in words of what was before implied in law. Which occafions fir Edward Coke very justly to obferve', 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 declara"tion of the fame." The fanction of an oath, it is true, in cafe of violation of duty, makes the guilt ftill more accumulated, by fuperadding perjury to treafon: but it does not increase the civil obligation to loyalty; it only strengthens the facial tie by uniting it with that of religion. ALLEGIANCE, both exprefs and implied, is however diftin guished by the law into two forts or species, the one natural, the other local; the former being alfo perpetual, the latter temporary. Natural allegiance is fuch 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 debt of gratitude; which cannot be forfeited, cancelled, or altered by any change of time, place, or circumftance, nor by any thing but the united concurrence of the legiflature". An Englishman who removes to France, or to China, owes the fame allegiance to the king of England there 370 as at home, and twenty years hence as well as now. For it is a principle of univerfal law, that the natural-born fubject of one prince cannot by any act of his own, no, not by fwearing allegiance to another, put off or difcharge his natural allegiance to the former: for this natural allegiance was intrinfic, and primitive, and antecedent to the other; and cannot be de vefted without the concurrent act of that prince to whom it was firft due. Indeed the natural-born fubject of one prince, to whom he owes allegiance, may be entangled by fubjecting himself abfolutely to another: but it is his own act that brings him into these ftraits and difficulties, of owing service to two masters; and it is unreasonable that, by fuch voluntary act of his own, he should be able at pleasure to unloose those bands, by which he is connected to his natural prince (1). LOCAL allegiance is fuch as is due from an alien, or ftranger born, for fo long time as he continues within the king's dominion and protection: and it ceafes, the inftant such ftranger transfers himself from this kingdom to another (2). P 7 Rep. 6. (1) Sir Michael Fofter obferves, that "the well known maxim, "which the writers upon our law have adopted and applied to "this cafe, nemo poteft exuere patriam, comprehendeth the whole "doctrine of natural allegiance." Foft. 184. And this is exemplified by a strong inftance in the report which that learned judge has given of Æneas Macdonald's cafe. 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 commiffion in the fervice of the French king; acting under that commiffion, he was taken in arms against the king of England, for which he was indicted and convicted of high treafon; but was pardoned upon, condition of his leaving the kingdom, and continuing abroad during his life. Ib. 59. This is certainly an extreme cafe; and we fhould have reafon to think our law deficient in juftice and humanity if we could difcover any intermediate general limit, to which the law could be relaxed confiftently with found policy or the public fafety. (2) Mr. J. Fofter informs us, that it was laid down in a meeting of all the judges, that "if an alien, feeking the protection of "the crown, and having a family and effects here, fhould, during a war with his native country, go thither, and there adhere "to the king's enemies for purposes of hoftility, he may be dealt "with as a traitor." Foft. 185. Natural allegiance is therefore perpetual, and local temporary only: and that for this reason, evidently founded upon the nature of government; that allegiance is a debt due from the fubject, upon an implied contract with the prince, that fo long as the one affords protection, fo long the other will demean himself faithfully. As therefore the prince is always under a conftant tie to protect his natural-born fubjects, at all times and in all countries, for this reafon their allegi ance due to him is equally univerfal and permanent. But, on the other hand, as the prince affords his protection to an alien, only during his refidence in this realm, the allegiance of an alien is confined (in point of time) to the duration of fuch his refidence, and (in point of locality) to the dominions of the British empire. From which confiderations fir Matthew Hale deduces this confequence, that, though there be an ufurper of the crown, yet it is treafon for any fubject, while the ufurper is in full poffeffion of the fovereignty, to [371] practife any thing against his crown and dignity: wherefore, although the true prince regain the fovereignty, yet fuch attempts against the ufurper (unless in defence 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 faclo. And upon this footing, after Edward IV recovered the crown, which had been long detained from his houfe by the line of Lancaster, treasons committed against Henry VI were capitally punished; though Henry had been declared an ufurper 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 perfon, and bloodroyal and for the mifapplication of their allegiance, viz. to the regal capacity or crown, exclufive of the perfon of the king, were the Spencers banished in the reign of Edward II'. And from hence arefe that principle of perfonal attachment, and affectionate loyalty, which induced cur forefathers, (and, if occafion required, would doubtlefs induce their funs) to 1 Hal. P. C. 67. 11 Hal. P. C. 6c. |