CHAPTER THE TENT H.

OF THE PEOPLE, WHETHER ALIENS, DENIZENS, OR NATIVES.

H

AVING, in the eight preceding chapters, treated of per. fons as they stand in the public relations of magiftrates, now proceed to confider fuch perfons as fall under the denomination of the people. And herein all the inferior and fubordinate magiftrates, treated of in the laft chapter, are included,

THE first and moft obvious divifion of the people is into aliens and natural born-fubjects. Natural-born fubjects are fuch 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, fuch 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 fubject. The thing itself, or fubftantial part of it, is founded in reafon and the nature of government; the name and the form are derived to us from our Gothic ancestors. Under the feodal fyftem, every owner of lands held them in fubjection to fome fuperior or lord, from whom or whofe ancestors the tenant or vafal had received them: and there was a mutual trust or confidence fubfifting between the lord and vafal, that the lord fhould protect the vafal in the enjoyment of the territory he had granted him, and, on the

other

other hand, that the vafal fhould be faithful to the lord and defend him against all his enemies. This obligation on the part of the vafal was called his fidelitas or fealty; and an oath of fealty was required, by the feodal law, to be taken by all tenants to their landlord, which is couched in almost the fame terms as our antient oath of allegiance': except that in the ufual oath of fealty there was frequently a faving 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 species of fealty was called feudum ligium, a liege fee; the vaffals homines ligii, or liege men; and the fovereign their dominus ligius, or liege lord. And when fovereign princes did homage to each other, for lands held under their respective sovereignties, a diftinction 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 leige or fimple homage. But with us in England, it becoming a fettled 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 perfon of the king alone. By an eafy analogy the term of allegiance was foon brought to fignify all other engagements, which are due from subjects to their prince, as well as thofe duties which were fimply and merely territorial. And the oath of allegiance, as adniniftred

a 2 Fend. 5, 6, 7

b2 Feud 99.

Ren. Calvin's cafe. ".

d2 Carte. 401. Mod. Un. 1ft xxii. 417.

BOOK I. miniftred for upwards of fix hundred years, 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, without de"fending him therefrom." Upon which fir Matthew Hale 'makes this remark; that it was short and plain, not entangled with long or intricate claufes or declarations, and yet is comprehenfive of the whole duty from the subject 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 in the convention parliament, which is more gencral 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 allegiancé confifts. The oath of fupremacy is principally calculated as a renuntiation of the pope's pretended authority: and the oath of abjuration, introduced in the reign of king William, very amply fupplies the loofe 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 expressly renouncing any claim of the defcendants of the late pretender, in as clear and explicit terms as the English language can furnili. 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 Thall 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 theriff's tourn, which is the court-leet of the county.

BUT, befides these express engagements, the law also holds that there is an implied, original, and virtual allegiance, owing from

e Mirror. c. 3. 35. cta. 3. 16. Brit- g Stat. 13 W. III. c. 6. tou. c. 19. 7 Kep. Alvin's cafe. 6.

h Stat. 1 Geo. 1. c. 13. 6 Ceo. III. c. 53. i 2 Inft. 121. 1 Hal. P. C. 64.

from every fubject to his fovereign, antecedently to any 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 invested with all the rights and bound to all the duties of fovereignty, before his coronation; fo the fubject is bound to his prince by an intrinsic allegiance, before the fuperinduction of those outward bonds of oath, homage, and fealty; which were only inftituted to remind the subject of this his previous duty, and for the better fecuring 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 juftly to obfèrve', that all fubjects 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 cath is "but an outward declaration of the fame." The fanction of an oath, it is true, in case of violation of duty, makes the guilt ftill more accumulated, by fuperadding perjury to treason: but it does not encrease the civil obligation to loyalty; it only strengthens the focial tie by uniting it with that of religion.

ALLEGIANCE, both exprefs and implied, is however diftinguished by the law into two forts or fpecies, 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 themfelves. 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 as at home, and twenty years

Y Y

hence

hence as well as now. For it is a principle of universal 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 discharge his natural allegiance to the former: for this natural allegiance was intrinfic, and primitive, and antecedent to the other; and cannot be devefted without the concurrent act of that prince to whom it was firft duc. 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 straits and difficulties, of owing service to two mafters; and it is unreasonable that, by fuch voluntary act of his own, he fhould be able at pleasure to unloose those bands, by which he is connected to his natural prince.

LOCAL allegiance is fuch as is due from an alien, or stranger. born, for fo long time as he continues within the king's dominion and protection': and it ceafes, the instant such stranger transfers himfelf from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only: and that for this reafon, evidently founded upon the nature of government; that allegiance is a debt duc 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 allegiance 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 poffeflion of the fovereignty, to practice any thing against his crown and dig

nity:

o Hal. P. C. 68.

P 7 Rep. 6.

q Hal. P. C. 6.