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[“ without defending him therefrom ” (9). But, at the Revolution, another form was introduced by the convention parliament (h), the subject only promising “ that he will be faithful and bear true allegiance” to the sovereign, without mentioning “ his heirs," or specifying in the least wherein that allegiance consists.] And in the oath of allegiance as administered up to the 23rd July, 1858, the style so introduced was still retained. But from the 23rd July, 1858, a single oath was substituted, by the 21 & 22 Vict. (1858), c. 48, to be taken in the same cases as the several oaths of allegiance, supremacy, and abjuration previously in force ; and by the Office and Oath Act, 1867, such substituted oath was re-framed, so as to adapt it to the use not only of Protestants, but also of Roman Catholics and Jews. The form of oath was once more altered, however, by the Promissory Oaths Act, 1868 ; and, as so settled (i), is now used (with a few exceptions) whenever an oath of allegiance is required to be taken by a subject, that is to say, as the general rule, on the acceptance of any of the chief offices of state, or of a judicial appointment in the Supreme Court of Judicature, or of the office of justice of the peace, and the like. The oath of allegiance is also required to be taken by aliens before they can claim the benefits of naturalisation (k).
[But besides this express engagement, the law also holds
(g) Mirrour, ch. 3, s. 35; Fleta, 3, 16; Britton, ch. 29 ; Calrin's Case (1608), 7 Rep. 6 b.
(h) 1 W. & M. (1688), c. 8.
(i) The Promissory Oaths Act, 1871, does not affect the form of the oath thus settled.
(*Naturalization Act, 1870, s. 9. The oath, as framed by the Pro. missory Oaths Act, 1868, s. 2, is in the following simple terms :-
“I, A. B., do swear that I will be “faithful and bear true allegiance “to her Majesty Queen Victoria, “her heirs and successors, accord“ing to law. So help me God”; and an affirmation, under the Oaths Act, 1888, is in exactly the same form, except that the introductory words are: “I, A. B., do " solemnly, sincerely, and truly " declare and affirm.”
[that there is an implied, original, and virtual allegiance owing from every subject to his sovereign, antecedently to and independently of any express promise. For, as the king, by the very descent of the crown, is fully invested with all the rights, and bound to all the duties, of sovereignty before his coronation, so the subject is bound to his prince by an intrinsic allegiance, before the superinduction of those outward bonds of oath, homage, and fealty ; the formal profession of subjection being nothing more than a declaration in words of what was before implied in law. Which occasions Sir Edward Coke very justly to observe, that “all subjects are equally “ bounden to their allegiance as if they had taken the “ oath ; and the taking of the corporal oath is but an “ outward declaration of the same” (1).
Allegiance, both express and implied, is distinguished by the law into two species, the one natural, the other local. Natural allegiance is such as is due from naturalborn subjects (m); and this is a tie which (subject to a qualification of recent introduction, and presently to be explained) cannot be severed or altered by any change of time, place, or circumstance, nor by anything but the united concurrence of the legislature, for nemo potest exuere patriam. An Englishman who removes to France, or to China, owes the same allegiance to the king of England there as at home, and twenty years hence as well as now. For it was a principle of our law, that the naturalborn subject of one prince could not by any act of his own, not even by swearing allegiance to another,-put off or discharge his natural allegiance to the former (n). It is true that the natural-born subject of one prince, to whom he owed allegiance, might be entangled by subjecting himself absolutely to another (0); but it was
(1) 2 Inst. 121.
(m) Calvin': Case (1608), 7 Rep. 5 b.
(n) i Hale, P. C. 68.
(0) Marryat v. Wilson (1799), 1 Bos. & Pul. 443.
[his own fault that brought him into these straits and difficulties of owing service to two masters (p).
Local allegiance, on the other hand, is such as is due from an alien, or stranger-born, for so long time as he continues within the king's dominion (9); it ceases the instant such stranger transfers himself from this kingdom to another, because 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, so their allegiance to him is correspondingly universal and permanent. But 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 any thing against his crown and dignity (1); and accordingly we find, in fact, that, even after the true prince has regained the sovereignty, 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.]
(p) The operation of the maxim nemo potest exuere patriam, is exemplified in the case of Eneas Macdonald (A.D. 1746), who was a native of Great Britain, but, having received his education from early infancy in France, and having spent his riper years in a profitable employment in that kingdom, had accepted a commis. sion in the service of the French
king. While acting under that commission, he was taken in arms against the king of England, and was indicted therefor and convicted of high treason. He was, however, pardoned upon condition of his leaving the kingdom, and continuing abroad during his life.
(0) Calvin's Case (1608), 7 Rep. 6 a.
(r) 1 Hale, P. C. 60.
The doctrine, however, of the perpetual character of natural allegiance must now be taken with some qualification. For, by the Naturalization Acts of 1870 and 1872, it has been provided, that any British subject who, when in any foreign state and not under any disability, shall have voluntarily become naturalized in such state, shall thenceforth be deemed to have ceased to be a British subject, and be regarded as an alien, provision being at the same time made to enable such person, on the same conditions as other aliens, to obtain from the secretary of state a certificate of re-admission to British nationality (s). And the Acts also provide, that any person who, by reason of having been born within the dominions of his Majesty, is a natural-born subject, but who also at the time of his birth became, under the law of any foreign state, a subject of that state, and any person who was born out of his Majesty's dominions of a father being a British subject, may make a declaration of alienage, and shall thenceforth cease to be a British subject (t).
The capacity of an alien may be enlarged by his becoming a denizen, or by his being naturalized ; and there are, therefore, four distinguishable conditions of subjects, viz., (1) Natural-born subjects; (2) Aliens ; (3) Denizens; and (4) Persons naturalized. Some notice shall here be taken of each of these in their order (u).
1. Natural-born subjects.- All persons born within the limits of the British Empire fall within this descrip
(8) Naturalization Act, 1870, ss. 6, 8. Any British subject who, before the passing of the Act, had become naturalized in a foreign state, was enabled to pre. serve his British nationality by making a declaration of his
desire so to do within a limited period, viz., two years after the 12th May, 1870.
(t) Sect. 4.
(21) See generally on the subject of British nationality, Dicey, Conflict of Laws, p. 173.
tion (w); and this rule extends even to those born of aliens residing in the dominions of the Crown, provided their parents were not at the time in enmity with our monarch. But if a man be born within the realm, of parents who are alien enemies, or be born (of whatever parents) in a country not parcel of the British dominions, he is an alien by the common law, though, by statute law, important exceptions have been now grafted on this rule; wherefore it became necessary, after the Restoration, to pass a particular Act of Parliament, "for the naturaliza“tion of children of his Majesty's English subjects born in “ foreign countries during the late trouble,” i.e., during the Commonwealth (y).
The children of the king or queen, however, and the heirs of the crown, wherever born, have always been held natural-born subjects. And the case has always been the same with regard to the children of British ambassadors, born abroad (); for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is accredited, therefore the son is held to be born under the king's allegiance, represented by his father the ambassador. Other very material exceptions have also at divers times been introduced by statute ; [for, to encourage foreign commerce, it was enacted, by the 25 Edward III. (1350), st. 1, that all children born abroad, provided both their parents were, at the time of their birth, in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England (a), and it hath been so adjudged on behalf of merchants (6). And by several more recent statutes, the restriction of the common law has been still further relaxed (c), so that,