"without defending him therefrom." Upon which fir Matthew Hale makes this remark; that it was fhort and plain, not entangled with long or intricate claufes or declarations, and yet is comprehenfive of the whole duty from the fubject 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 by the convention parliament, which is more general and indeterminate than the former; the fubject only promif ing "that he will be faithful and bear true allegiance to the "king," without mentioning "his heirs," or fpecifying in the leaft wherein that allegiance confifts. The oath of fupremacy is principally calculated as a renunciation 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; promising to disclose all traiterous confpiracies against him; and exprefsly renouncing any claim of the defcendants of the late pretender, in as clear and explicit terms as the English language can furnish. 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 fhall 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 fheriff's tourn, which is the court-leet of the county. BUT, befides thefe exprefs engagements, the law alfo holds that there is an implied, original, and virtual allegiance, owing 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 intrinfic allegiance, before the fuper-induction of thofe outward bonds of oath, homage, and fealty; which were only inflituted to remind the fubject of this his previous duty, and for the better securing it's performance. The formal profeilion 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 obferve', 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 oath is but an outward declara"tion of the fame." The fanction of an oath, it is true, in cafe of violation of duty, makes the guilt ftill more accumu lated, by fuperadding perjury to treafon: but it does not increafe the civil obligation to loyalty; it only ftrengthens the facial tie by uniting it with that of religion. ALLEGIANCE, both exprefs and implied, is however diftinguifhed 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 themselves. Natural allegiance is -therefore a debt of gratitude; which cannot be forfeited, can celled, or altered, by any change of time, place, or circumftance, nor by any thing but the united concurrence of the legifiature. 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 hence as well as now. For it is a principle of univerfal law, that the natural-born subject of one prince cannot by any act of his own, no, not by fwearing allegiance to another, put off or discharge his natural alle. giance to the former : for this natural allegiance was intrinfic, and primitive, and antecedent to the other; and cannot be de ki Hal. P. C. 61. 12 Inft. 121. ➡7 Rep. 7. n2 P. Wms. 124. A a 3 vefled vefted without the concurrent act of that prince to whom it was firft due. Indeed the natural-born fubject of one prince, to whom he owes allegiance, may be entangled by fubjecting himfelf 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 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 fuch as is due from an alien, or ftranger born, for fo long time as he continues within the king's dominion and protection P: and it ceases, the instant fuch stranger transfers himself 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 due 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 subjects, 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 9 deduces this confequence, that, though there be an ufurper of the crown, yet it is treafon for any subject, while the ufurper is in full poffeffion of the fovereignty, to practice any thing against his crown and dignity: wherefore, although the true prince regain the fovereignty, yet fuch attempts against the ufurper (unlefs in defence or aid of the rightful king) have been afterwards punifhed with death; becaufe 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 P 7 Rep. 5. I Hal. P. C. 60. detained detained from his houfe by the line of Lancafter, treasons committed against Henry VI, were capitally punished; though Henry had been declared an ufurper by parliament. 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 perfon, and blood✩ royal and for the mifapplication of their allegiance, viz. to the regal capacity or crown, exclufive of the perfon of the king, were the Spencers banished in the reign of Edward II'. And from hence arofe that principle of perfonal attachment, and affectionate loyalty, which induced our forefathers, (and, if occafion required, would doubtlefs induce their fons) to hazard all that was dear to them, life, fortune, and family, in defence and fupport of their liege lord and fovereign. THIS allegiance then, both exprefs and implied, is the duty of all the king's fubjects, under the diftinctions here laid down, of local and temporary, or univerfal and perpetual. Their rights are alfo diftinguishable by the fame criterions of time and locality; natural-born fubjects having a great variety 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 mifbehaviour: the explanation of which rights is the principal fubject of the two first books of thefe commentaries. The fame is alfo in fome degree the cafe of aliens; though their rights are much more circumfcribed, being acquired only by refidence here, and loft whenever they remove. I fhall however here endeavour to chalk out fome of the principal lines, whereby they àre diftinguished from natives, defcending to farther particulars when they come in courfe. AN alien born may purchase lands, or other eftates: 'but not for his own ufe; for the king is thereupon entitled to them. If an alien could acquire a permanent property in lands, he muft owe an allegiance, equally permanent with that property, to the king of England; which would probably be inconfiftent with that, which he owes to his own s Co. Litt. 2. 1 Hal. P. C. 67. A a 4 natural natural liege lord: befides that thereby the nation might in time be fubject to foreign influence, and feel many other inconveniencies. Wherefore by the civil law fuch contracts were also made void but the prince had no fuch advantage of forfeiture thereby, as with us in England. Among other reasons, which might be given for our conftitution, it seems to be intended by way of punishment for the alien's prefumption, in attempting to acquire any landed property: for the vendor is not affected by it, he having refigned his right, and received an equivalent in exchange. Yet an alien may acquire a property in goods, money, and other perfonal estate, or may hire a houfe for his habitation": for perfonal eftate is of a transitory and moveable nature; and, befides, this indulgence to ftrangers is neceffary for the advancement of trade. Aliens also may trade as freely as other people; only they are fubject to certain higher duties at the custom-house: and there are alfo fome obfolete ftatutes of Henry VIII, prohibiting alien artificers to work for themfelves in this kingdom; but it is generally held that they were virtually repealed by ftatute 5 Eliz. c. 7. Also an alien may bring an action concerning perfonal property, and may make a will, and difpofe of his perfonal eftate 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, When I mention these rights of an alien, I must be understood of alienfriends only, or fuch whofe countries are in peace with ours; for alien-enemies have no rights, no privileges, unless by the king's fpecial favour, during the time of war, WHEN I fay, that an alien is one who is born out of the king's dominions, or allegiance, this alfo must be underftood with fome reftrictions. The common law indeed flood abfolutely fo; with only a very few exceptions: fo that a particular act of parliament became neceffary after the resta ration, "for the naturalization of children of his majesty's "English subjects, born in foreign countries during the late t Cod. l. 11. tit. 53. u 7 Rep. 17. w Lutw. 34: * A word derived from alibi nature Spelin. Gl, 24.. Y Stat. 29 Car. II. c. 6. "troubles," |