our antient oath of allegiance a; except that in the usual oath of fealty there was frequently 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 vasal. But when the acknowledgment was made to the absolute superior himself, who was vasal to no man, it was no longer called the oath of fealty, but the oath of allegiance; and therein the tenant swore to bear faith to his sovereign lord, in opposition to all men, without any saving or exception; "contra omnes "homines fidelitatem fecit." Land held by this exalted species 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 sovereign princes did homage to each other for lands held under their respective sovereignties, a distinction was always made between simple homage, which was only an acknowledgment of tenure ; and liege homage, which included the fealty before mentioned, and the services consequent 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 species the homage was to be, whether liege or simple 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 sovereign and lord paramount, no oath but that of fealty could ever be taken to inferior lords, and the oath of allegiance was necessarily confined to the person of the king alone. By an easy analogy the term of allegiance was soon brought to signify all other engagements which are due from subjects to their prince, as well as those duties which were simply and merely territorial. And the oath of [368] allegiance, as administered for upwards of six hundred years o; 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 defending him therefrom." Upon which sir Matthew Hale' makes this remark; that it was short and plain, not entangled with long or intricate

a 2 Feud. 5, 6, 7.

b2 Feud. 99.

7 Rep. Calvin's case. 7.

d 2 Cart. 401.

Mod. Un. Hist. xxii,

e Mirror. c. 3. § 35. Fleta. 3. 16. Britton. c. 29. 7 Rep. Calvin's case. 6, f 1 Hal. P. C. 63.

420.

of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another: but it is his own act that brings him into these straits and difficulties, of owing service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands by which he is connected to his natural prince.

LOCAL allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king's dominion and protection P; and it ceases the instant such stranger transfers himself from this kingdom to another. 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 subject, upon an implied contract with the prince, that so long as the one affords protection, so long the other will demean himself faithfully. 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 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, the allegiance of an alien is confined (in point of time) to the duration of such his residence, and (in point of locality) to the dominions of the British empire. From which considerations sir Matthew Hale deduces this consequence, that, though there be an usurper of the crown, yet it is treason for any subject, while the usurper is in full possession of the sovereignty, to practise

P 7 Rep. 6.

41 Hal. P.C.60.

case of Doe dem. Thomas v. Acklam, 2 B. & C.779. in which it was holden, that upon the recognition by his late majesty of the United States of America to be free, sovereign, and independent states, in the treaty of Paris in 1783, under the sanction of the British legislature, 22 G.3. c.46., the natural-born subjects of his majesty adhering to the United States ceased to be subjects of the crown of England, and became aliens and incapable of inheriting lands in England. That the natives of Great Britain are aliens and incapable of inheriting lands in the United States of America, had been previously holden in the case of Bright's Lessee v. Rochester, 7 Wheaton's Reports of Cases in the supreme court of the United States, 555.

any thing against his crown and dignity: wherefore, although the true prince regain the sovereignty, yet such attempts against the usurper (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 facto. And upon this footing, after Edward IV. recovered the crown, which had been long detained from his house by the line of Lancaster, treasons committed against Henry VI. were capitally punished; though Henry had been declared an usurper by parliament. (3)

:

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 person and bloodroyal and for the misapplication of their allegiance, viz. to the regal capacity or crown, exclusive of the person of the king, were the Spencers banished in the reign of Edward II. ' And from hence arose that principle of personal attachment and affectionate loyalty which induced our forefathers (and if occasion required, would doubtless induce their sons) to hazard all that was dear to them, life, fortune, and family, in defence and support of their liege lord and sovereign.

THIS allegiance then, both express and implied, is the duty of all the king's subjects, under the distinctions here laid down, of local and temporary, or universal and perpetual. 'Their rights are also distinguishable by the same criterions of time and locality; natural-born subjects having a great variety

r1 Hal. P. C. 67.

(3) See Foster's Crown Law, discourse the fourth, p.396. The principle laid down as to temporary allegiance being due to a king de facto appears to be correct; but the instance put of punishment inflicted in the reign of Edward the Fourth for treason against Henry the Sixth is extremely doubtful. Sir Ralph Grey is the person mentioned by Lord Hale, but he was taken in actual rebellion against Edward the Fourth some years after he had been in full possession of the crown, and his treason against Henry the Sixth appears to be mentioned only to account for his being degraded before he was beheaded, which distinction from others who suffered at the same time, he obtained pur cause de son perjury, et doubleness, que il avoit fait al roy Hen. 6 jades Roy, et auxi al roy Edward le Quart, que

of rights, which they acquire by being born within the king's ligeance, and can never forfeit by any distance of place or time, but only by their own misbehaviour: the explanation of which rights is the principal subject of the two first books of these commentaries. The same is also in some degree the case of aliens; though their rights are much more circumscribed, being acquired only by residence here, and lost whenever they remove. I shall however here endeavour to 372] chalk out some of the principal lines whereby they are distinguished from natives, descending to farther particulars when 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. If an alien could acquire a permanent property in lands, he must owe an allegiance, equally permanent with that property, to the king of England; which would probably be inconsistent with that which he owes to his own natural liege lord: besides that thereby the nation might in time be subject to foreign influence, and feel many other inconveniences. Wherefore by the civil law such contracts were also made void : but the prince had no such advantage of forfeiture thereby as with us in England. Among other reasons which might be given for our constitution, it seems to be intended by way of punishment for the alien's presumption, in attempting to acquire any landed property: for the vendor is not affected by it, he having resigned his right, and received an equivalent in exchange. Yet an alien may acquire a property in goods, money, and other personal estate, or may hire a house for his habitation ": for personal estate is of a transitory and moveable nature; and, besides, this indulgence to strangers is necessary for the advancement of trade. Aliens also may trade as freely as other people; only they are subject to certain higher duties at the custom-house (4): and there are also some obsolete statutes of Henry VIII., prohibiting alien artificers to work for themselves in this kingdom: but it is generally held that they were virtually repealed by statute

⚫ Co. Litt. 2.

Cod. l.11. tit. 55.

☐ 7 Rep.17.

(4) These have been repealed, see ante, p. 316. n. (15),

5 Eliz. c. 7. (5) Also an alien may bring an action concerning personal property, and may make a will, and dispose of his personal estate": not as it is in France, where the king at the death of an alien is entitled to all he is worth, by the droit d'aubaine or jus albinatus*, unless he has a peculiar exemption. (6) When I mention these rights of an alien, I must be understood of alien friends only, or such whose countries are in peace with our's: for alien enemies have no rights, no privileges, unless by the king's special favour during the time of war.

WHEN I say that an alien is one who is born out of the king's dominions, or allegiance, this also must be understood with some restrictions. The common law indeed stood [373] absolutely so, with only a very few exceptions: so that a particular act of parliament became necessary after the restoration," for the naturalization of children of his majesty's

English subjects, born in foreign countries during the late "troubles." And this maxim of the law proceeded upon a general principle,, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king's embassadors born abroad were always held to be natural subjects for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England's allegiance, represented by his father, the embassador. To encou. rage also foreign commerce, it was enacted by statute 25 Edw. III. st. 2. 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 seas by her husband's con

w Lutw. 34.

* A word derived from alibi natus.

Spelm. Gl. 24.

(5) See Vol.II. p. 293. n.(6).

y Stat. 29 Car. 2. c. 6.
z 7 Rep. 18.

(6) The constituent assembly in 1790 and 1791 entirely abolished the droit d'aubaine; but the Code Civil has restrained the operation of these laws to the natives of those countries in which no such right exists against Frenchmen. See Code Civil, 1.i. tit.1. s.11.