« 上一頁繼續 »
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 aliens.
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 pria tive, and antecedent to the other, and cannot be divested without ( concurrent act and consent of that prince to whom it was first due. It true, that the natural born subject of one prince, to whom he owes all giance, may be entangled by subjecting himself absolutely by oaths another; but the subjection to these straits and difficulties, that is, serving two masters, being his own act, it is unreasonable that he shou be able at pleasure, by any such voluntary act of his own, to throw his allegiance, and unloose the bands which connect him with his natur sovereign. The legal maxim, nemo potest exuere patriam, compr hends the whole doctrine of natural allegiance. This is exemplified i the case of a Mr Eneas Macdonald, who was a native of Great Britai but from his earliest infancy had received his education in France, bs enjoyed for many years a profitable employment in that kingdom, and ha even accepted a commission in the French king's army. Acting unde that commission, he was taken in arms serving against the king of Erg land, 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 Englane, 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 his 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
† Foster, 185.
* Sir M. Foster, 59.
e British empire. From these considerations Sir Matthew Hale deduces is consequence : "that though there should be an usurper of the crown, t while he is in full possession of the sovereignty, it is treason for any bject to practise any thing against his crown and dignity; and, therefore, though the true prince should regain his sovereignty, attempts formerly ade against the usurper (unless these have been made in defence or aid I the rightful king) have always been punished with death, on account of at temporary allegiance which was due to the usurper as king de facto. And after king Edward IV., of the house of York, recovered the crown, hich had been usurped by three successive sovereigns of the house of ancaster, treasons committed against Henry VI., the last usurper of that ne, were capitally punished; though Henry himself had been declared by arliament an usurper."
This oath of allegiance, or rather the allegiance itself, is held not only pplicable to the political capacity of the king, or regal office, but also to is natural person, or blood royal. For the misapplication of their allegiance to the crown or regal capacity, exclusive of the person of the king, the Spensers were banished in the reign of Edward II. Hence arose that principle of personal attachment and affectionate loyalty, which induced our forefathers on various occasions, but especially in the case of the princes of the house of Stuart, to hazard all that was dear to them— life, fortune, and family-in defence and support of their liege lord and sovereign. I have no doubt but the same principle would actuate their sons, were it God's will that their loyalty to the house of Brunswick should be tried in the same fiery furnace.
This allegiance, therefore, both expressed and implied, is the peremptory duty of all the king's subjects, divided however into the natural distinctions of local and temporary, or universal and perpetual. Their rights are also distinguished by the same criterions of time and locality, natural born subjects having a great variety of rights, which they acquire by their birth, and can neither forfeit by distance, place, nor time, except by their own misconduct in the breach of any known law. Aliens are in some degree in the same position, though their rights are much more circumscribed, being acquired only by their residence within the king's dominions, and of which they are deprived whenever they withdraw from his protection. I will endeavour to point out some of the principal lines whereby they are distinguished from native subjects, descending to farther particulars as 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 them. A woman alien cannot be endowed, unless she marries by the king's license; in which case she be endowed: neither can a husband alien be a tenant by courtesy,
that is, hold an estate in right of his wife. If an alien could acquire a permanent property in lands, he must owe an allegiance, equally permanent as that property, to the king of Great Britain, and which would of course be inconsistent with the allegiance which he owes to his own natural liege lord; and besides, in process of time, the nation might become subject to foreign influence, and of course liable to many inconveniences. Among other reasons which might be given for the constitution of this point, it seems to have been intended by way of punishment for the alien's presumption in attempting to procure any landed property, that by the civil law such contracts were made void. For the vender is not affected by it, he having resigned his right, and received an equivalent in exchange. Nevertheless, an alien may acquire a property in goods, money, and other personal estate, or may hire a house for his habitation; because personal estate is of a transitory and movable nature; and besides, this indulgence to strangers is necessary for the advancement of trade and commerce. Aliens may trade as freely as other people, only they were subject to certain higher duties at the customhouse, but which were removed by the 24 George III. There were also some obsolete statutes of Henry VIII, which prohibited alien artificers from working for themselves in this kingdom; but it is generally held that they were virtually repealed by statute 5 Elizabeth, c. 7. But Mr Hargrave says, that the statute 32 of Henry VIII. is still unrepealed, notwithstanding its apparent opposition to good policy and the improved spirit of commerce and the age in which we live. An alien may bring an action concerning personal property; may make a will, and dispose of his personal estate in Great Britain; but it is not so in France, when on the death of an alien, the king is entitled to claim and take possession of all his property, by the droit d'aubaine, or jus albinatus, unless indeed the alien enjoyed any peculiar exception. But when these rights of an alien are mentioned, it must be borne in mind that it is only friendly aliens, that is, the natives of those countries which are in peace and amity with ourselves, who are entitled to these privileges. Aliens, or natives of foreign countries at war with ourselves, have no such rights and privileges during the continuance of the war, unless by the king's special favour. But an alien enemy could sue in our courts on a ransom bill, before all ransoms of captured ships were prohibited by statute 22 Geo. III., c. 2.; and Lord Mansfield, in a case of that kind, declared from the bench, that it was sound policy as well as good morality, to keep faith with an enemy in time of war. This is a contract which arises out of a state of hostility, and is to be governed by the law of nations and the eternal rules of justice."+
* Coke. Litt. 2. n. 7.
† Doug. 625.
When it is said, that an alien is one that is born out of the king's dominions or allegiance, it must be understood with some degree of restriction. Before the Restoration, the common law, with a very few exceptions, made every man born out of the kingdom an alien, so that after that happy event, when the throne and the altar were restored, a particular act of parliament became necessary "for the naturalization of children of his majesty's English subjects, born in foreign countries during the late troubles."* This maxim of the common law proceeded on the general principle that every man owes a natural allegiance to the sovereign under whose protection he is born, and that he cannot owe two such allegiances, or serve two masters at once. The children of the king's ambassadors born abroad were always held to be the king's natural subjects, because the father, though residing in a foreign country, owes not even a local allegiance to the prince to whom he is sent, but is the representative of his own sovereign, who owes allegiance to no man. So also with regard to his son; he was supposed by a sort of fiction to be born under the king of Great Britain's allegiance, represented by his father the ambassador. In the same sense the children of other British subjects who are born under the roof of the British ambassador, are, to all intents and purposes, British subjects, and not the subjects of that sovereign in whose dominions they are born. It is, therefore, very customary for our country women residing abroad, to repair for their accouchement to the house of his majesty's ambassador, which preserves their rights as British subjects. To encourage foreign commerce, it was enacted 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 sea by her husband's consent, might inherit as if they had been born in England; and it has accordingly been so adjudged in behalf of merchants. But by several statutes of more modern date, these restrictions have been still farther taken off, so that all children born abroad in foreign countries, whose fathers (or grandfathers by the father's side) were natural born subjects, are now esteemed natural born subjects themselves. Unless indeed these said ancestors were attainted or banished beyond sea for high treason, or were at the birth of such children in the service of a prince at enmity with the crown of Great Britain. All these exceptions to the common law, however, are in cases where the father or grandfather is a natural born subject; but there is no provision made for the children who have been born abroad, of a mother a natural born British subject who has married a foreigner. And in the case of the count Duroure, who was a Frenchman, and had married an Englishwoman, by whom he had a son born in France, it was decided that
* Statute 29 Car. II., c. 6.
25 Edward III., st. 2.