fees & de tenements, que jeo teigne de lui, leaument les ferray as termes dues a mon poer: si moy ayde Dieu & les Seyntz, &c."

Now, besides this oath of fealty or ailigeance to the king, there were anciently certain oaths administered to persons of a different age; but these have been long disused, as namely, that, which Britton mentions cap. 12. viz. that all above the age of fourteen years,(m) should swear to be true and faithful to the king, and that they should not be felons nor assenters to felons, excepting men of religion, women, clerks, knights, and their eldest sons;(n) and of the like [65] nature was that oath appointed by king Henry III. to be taken by all men above fifteen years, consisting of divers particulars in order to the preservation of the peace, and mentioned at large by Bracton, Lib. III. Tract. 2. cap. 1. de Corona; both which it seems were temporary provisions for preservation of the peace, and therefore administered to persons above fourteen and fifteen years, and differed from this settled oath of alligeance above mentioned.

2. What kind of oath of fidelity this is: As there is homagium ligeum, and homagium simplex, so there is fidelitas ligea and fidelitas simplex; this, that is performed to the king, is fidelitas ligea, and differs from the later, 1. In that this is performed to a king, the other to a mesne lord. 2. This is performed without relation to any tenure of lands. 3. This is without exception of the fidelity to any person, that is always salva fide & ligeantia domini regis.

Yet there seems to be a double kind of lige fealty,[6] as where there is a prince, that is subordinate to another, and yet hath jura summi imperii over his subjects: such was the king of Scots, whilst in some times of Edward I. and Edward III. he was in subjection to the crown of England; such was the prince of Wales before the conquest thereof by Edward I. and the full union of it to the crown of England; and thus it was in many investitutes made formerly by the kings of England: for instance anno 35 H. 3. when that king gave to his son Edward the principality of Gascoigne in France, so that the great men of that country fecerunt ei homagium & fidelitatis juramentum; yet Matthew Paris(o) tells us, that dominus rex tumen sibi retinuit principale dominium, 'scilicet ligeantiam.

The like was done by E. 3. when Rot. Vascon. 36 E. 3. m. 18. the king had given to the Black Prince the principality of Aquitain

(m) This probably should be twelve years. See 2 Co. Instit. 147. Vide supra in notis, p. 24.

(n) This exception seems not to relate to the oath, but to the being in a decenna or tithing. The whole passage runs thus: Volons nous, que tres tous ceux de xiiii ans de southe nous facent le serement, que ils nous ferrount fealx & leaux, & que ils ne serrount felons, ne a felons assentaunts, & volons, que toutz soient en dizeyne, & plevys par deseyners, sauve gentz de religion, clers & chivalers & lours fitz eynes, & femes." (0) p. 845.

[6] See Anstey's Cons. of Engl. 92,

with a regal jurisdiction, viz. merum & mixtum imperium, so that in relation to the subjects of Aquitain he was in [66] nature of a sovereign; yet the king not only reserved homagium ligeum to be performed to him by the prince, but also reserved his own sovereignty, viz. Dominio directo & superioritate nobis semper specialiter reservatis: by reason whereof the king did not only substitute his delegates or judges de la sovereignty et de resort to receive appeals from the prince, as appears by Mr. Selden's Tit. Honoris, part 2. cap. 3. § 4. but was intitled to a superior alligeance of all the subjects of Aquitain: so that here were two alligeances; one due to the prince, which was qualified and restrained, salvà fide regis; and the other absolute, which was due to the king as supreme.[7]

Again, when in the year 1170, Hen. 2. by consent of parliament,(p) as it seems, (for otherwise it could not be done,) made his eldest son king of England; so that there was rex pater, and rex filius, yet he reserved to himself the supreme alligeance of all his subjects: "Et in crastino coronationis illius rex pater fecit Willielmum regem Scotorum, & Davidem fratrem suum, & comites, & barones regni devenire homines novi regis, & jurare ei fidelitatem contra omnes homines, salvâ fidelitate suâ;". Quod vide apud Hoveden sub eodem anno,(q) and the instrument itself at large apud Brompton, p. 1104:(r)" Hæc est conventio & finis, quae Willielmus rex Scotiæ fecit cum domino suo Henrico rege Angliæ filio Matildis imperatricis, viz. quod dictus Willielmus rex Scotia devenit homo ligeus domini regis Angliæ contra omnem hominem de Scotia, & de omnibus terris suis aliis, & fidelitatem ei fecit, ut ligeo domino suo, sicut alii homines suo principi facere solent; similiter fecit homagium Henrico filio suo, & fidelitatem, salva fidelitate domini regis patris sui, &c. Comites & barones de terrâ regis Scotiæ, de quibus dominus rex Angliæ homagium habere voluerit, facient ei homagium contra omnem hominem, & fidelitatem, ut ligeo domino suo, sicut alii homines sui ei facere solent, & Hen- [67] rico regi filio suo & hæredibus suis, salva fidelitate domini regis patris sui."

Here was first the supreme king, namely rex pater, who did not oust himself of his regality, as some have mistaken, but had the sovereignty still, for he reserved his ligeance from the new king, and from all his subjects; yea, and in farther testimony thereof, the rex filius in the year 1175, did his father lige homage, and swore alligeance contra omnes homines, as appears by Hoveden. Secondly, Here is a subordinate king, rex filius, who, though in relation to his father

(p) Hoveden sub anno 1170, Brompton, p. 1061.

(4) Et sub anno 1175.

(r) Et in libro rubro scaccarii, fol. CLXVI. & Rymer's Fœdera, vol. I. p. 39, ex magno rotulo penes Camerar'.

[7] The citizens of the United States owe a double allegiance; first, to the United States, and then to the State of which they are citizens. 2 Kent's Com. 43.

VOL. 1.-9

he was a subject, yet in relation to his subjects, and particularly to the king of Scots, was a sovereign. Thirdly, Here is yet another subordinate king, William, the king of Scots, who was a sovereign in relation to his subjects; and altho there was an alligeance or fidelitas ligea due by the subjects of Scotland to their king William, yet it was salva fidelitate to the kings of England, father and son; and tho there was a lige fealty due to rex filius, yet it was salvá fide regis patris; but the fidelity or alligeance to the rex pater was purely fidelitas ligea, for it had no exception.

. 3. The third observable upon this oath of alligeance is, that it is not only applicable to the politic capacity of the king, but to the person of the king, as well as to his office, or capacity; and for the misapplication of the alligeance to the regal capacity or crown, exclusive of the person of the king, among other things the Spencers were banished. Vide Judicium inde in Veteri Magna Charta, & 7 Rep. 11. Calvin's case, for the oath is to be applied to the person of the king, as well as his crown.

1

4. That in all oaths of fealty, as likewise in the profession of homage to any inferior or subordinate lord or prince, it must be salvá fide & ligeantia domini regis; and to omit this saving, is punishable in such lord: see for this, the notable Record of 6 E. 1. against the bishop of Exeter, Co. Litt. § 85,(s) and it is no more than is used in other kingdoms. Vide Spelm. in titulo Fidelitas. The emperor Frederic Barbarossa in the year 1152, made a law that within his

empire in omni sacramento fidelitatis imperator nomina[68] tim excipiatur, which obtained presently the like observation in all other countries, and accordingly is the Custumer de Normandy, cap. 29 & Glossa, 2 da. Ibidem.

5. That tho there may be due from the same person subordinate alligeances, which tho they are not without an exception of the fidelity due to the superior prince, yet are in their kind sacramenta ligea fidelitatis, or subordinate alligeances, yet there cannot, or at least should not be two or more co-ordinate absolute ligeances by one person to several independent or absolute princes; for that lawful prince, that hath the prior obligation of alligeance from his subject, cannot lose that interest without his own consent by his subject's resigning himself to the subjection of another; and hence it is, that the natural-born subject of one prince cannot by swearing alligeance to another prince put off or discharge him from that natural alligeance; for this natural alligeance was intrinsic and primitive, and antecedent to the other, and cannot be devested without the concurrent act of that prince to whom it was first due :[S] indeed, the subject of

(8) p. 65, a. b.

[8] In his lectures on the Laws and Constitution of England, p. 94, Mr. Anstey thus speaks: "Upon no better foundation than the speculation of a Publicist, it has been as sumed, that the rights of the subject are so thoroughly reciprocal, that, where the one ceases or is suspended, the other ceases and is suspended too: and that the one cannot be lessened and impaired, without the other being weakened in proportion. Such positions are unknown to the laws of England. It is not from compact or reciprocity but from

a prince, to whom he owes alligeance, may entangle himself by his absolute subjecting himself to another prince, which may bring him into great straits; but he cannot by such a subjection devest the right of subjection and alligeance, that he first owed to his lawful prince.(1) [9]

It appears by Bracton, Lib. V. cap. 24,(u) that there were very many, that had been anciently ad Fidem regis Anglæ & Franciæ, especially before the loss of Normandy; such were the comes marescallus that usually lived in England, and M. de Feynes manens in Francia, who were ad fidem utriusque regis, but they ever ordered their homages and fealties so, that they swore or professed ligeance or lige homage only to one; and the homage they performed to the other, was not purely lige homage, but rather feudal, as shall be shewn more hereafter: and therefore when war happened between the two crowns, remaneat personalitèr quilibet eorum cum eo, cui fecerat ligeantiam, & faciat servitium debitum ei, [ 69 ] cum quo non steterat in persona, namely, the service due from the feud or fee he holds: but this did not always satisfy the prince, cum quo non steterat in persond, but their possessions were

(1) The case here put by our author is evidently meant of a private subject's swearing alligeance to a foreign prince, and has no relation to a national withdrawing alligeance from a prince, who has abdicated the throne.

(u) Tractat 5. De Exceptionibus.

birth, that the Queen's claim to subjection and her subject's claim to liberties arise. Both claims spring together and from the same source. The subject's life is the natural term of both. Yet it is always possible that one of them may be determined incidentally and before its time. The subject may forfeit his liberties, or the Queen may by her own act, withdraw him from her subjection. In the first case, the Queen is not deprived of her subject, notwithstanding his forfeiture of right. In the second case, albeit, no longer de facto true and lawful, he still retains the rights which were vested in him by his birth. There is, indeed, a close connexion between this fallacy and the proposition of American jurists-false as we have seen it to be-that it is in the power of the citizen to renounce his alligeance, and without the consent of his sovereign, to take upon himself, in all respects, the character and rights of a citizen of a foreign state. To this pretension it is once for all to be replied, that the character of a British subject-once vested by birth— cannot be extinguished or suspended by the mere adoption of any foreign allegiance. The party may withdraw himself from the local obedience and protection of his sovereign, and yet not cease to be within her actual obedience and protection. (Calvin's Case, 7 Rep. 8. a.) He may place himself beyond the jurisdiction of the public justice of his country, and thus forego its benefits; but he cannot place himself beyond the jurisdic. tion of the executive power. The Queen's remedial writs cannot by any means extend into his foreign domicil; but those that are mandatory and not remedial, do reach him even there. They are not tied to any place, but do follow subjection and ligeance in what country or nation soever the subject is. (7 Rep. 20. a.) Amittit regnum sed non Regem. Amittit patriam, sed non patrem patriæ." (7 Id. 2. b.) See 2 Kent's Com.

43. 49.

[9] The doctrine of perpetual allegiance is not applied by the British courts to the Ameri can ante nati. Their doctrine is, that the American ante nati, by remaining in America after the peace, lost their character of British subjects; and our rule is, that by withdraw. ing from this country and adhering to the British government, they lost, or rather never acquired the character of American citizens. The right of election in all revolutions like that of America is well established. Inglis v. The Sailor's Snug Harbour, 3 Peters, 99. The Revolution severed the ties of allegiance; and made the inhabitants of each country aliens to the other. 3 Story on Cons. 571.

usually seized, and rarely or not without difficulty restored without a capitulation to that purpose between the two crowns. Vide Clause. 15 H. 3. m. 21. pro Henrico de la Vagor, Claus. 20 H. 3. m. 1. pro Simone Montford and Placita Parl. 18 E. 1,(x) the petition of the earl of Ewe in France for the castles of Hasting and Tikehull is answered, "Quandocunque placuerit domino regi Franciæ terras & tenementa hominibus istius regni restituere, quæ sua fuerunt, in potestate ipsius domini regio, quod ipse dominus rex Angliæ de castris & terris prædictis prædicto comiti reddendis faciet, quod de consilio suo viderit esse faciendum."

But sometimes it fell out, that the inconsiderateness of persons carried them upon presumptions of some advantages to make alligeance to both princes; and then the successes of either side rendered them within the penalty of the breach of alligeance to the adverse party.

Peter Brian had the earldom of Richmond here in England, and held it of the crown of England, and the duchy of Britany in France, which was held of the crown of France, (though Brompton tells us, that by an agreement between Richard I. and the king of France sub anno 1191.(y) the seigniory thereof was bestowed upon the king of England) he was an homager of the crown of France, and upon some agreement between him and the king of England touching a war with France, he came into England, and, as it seems, swore fealty to the crown of England; but afterwards he fell in again with the king of France, and betrayed the army of the king of England, and per internuncios reddidit Angle regi homagium; but he lost himself with both crowns: the king of France disposed of the duchy of Britany to his son, and the king of England gave the earldom of Richmond to Peter de Sabaudia; tho upon an

exchange he afterwards took it back, and restored it to a [70] son of the former earl. M. Paris sub anno 1234. p. 406. and Claus. 19 H. 3 m. 17. dors. where in a letter by the king to the pope the whole story is related.

After this, John de Breme otherwise Montford descended from the above-mentioned Peter, falling in with king Edward III. after his assumption of the title of France, was restored to the duchy of Britany and earldom of Richmond; and Claus. 19 E. III. p. 1. m. 14. dors. did his lige homage to king Edward III. as king of France in these words: "Monseigneur, jeo vous recognoisse droiturell roy de France, et a vous, come à mon seignior liege et droiturell roy de France, face mon homage pur le dit duchy de Bretagne, quel jeo claime tener de vous, mon seignior, et deveigne vostre home lige de vie, et de membre, et de terrene honor, a vivre et morir countre touts gents." His son John de Montford falling back to the king of France lost the earldom of Richmond by judgment in parliament, 7 R. 2. but entered de recordo. Rot. Parl. 14 R. 2. n. 14.

These difficulties befel those, that were ad fidem utriusque regis; (x) Ryley's, Plac. Parl. p. 20. (y) Vide Brompton, p. 1196.