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jurors, etc., present that J. S., being a subject of our lady the Queen, not regarding the duty of his allegiance and wholly withdrawing the allegiance, fidelity, and obedience, which every true and faithful subject of our said lady the Queen should and of right ought to bear towards," etc. (a).
And in the case of a peer of the realm, articles of impeachment for high treason recited that J. S., “being a subject of His Majesty, and having withdrawn that due obedience, fidelity and allegiance which as a loyal subject he owed, and of right ought to bear to his only true, lawful, and undoubted sovereign of this kingdom,” etc. (b).
In Calvin's Case (c), adjudged in 1609 by the Court of Exchequer, a much quoted authority, the fundamental principles governing the question are laid down.
“Ligeance" is there defined as " the true and faithful obedience of the subject due to his sovereign. This ligeance and obedience is an incident inseparable to every subject" (p. 8); and it is said to be "a quality of the mind and soul, not confined within any place” (pp. 12, 16); that it is due by the law of nature (p. 22); and that "the ligeance of the subject is of as great an extent and latitude as the royal power and protection of the king, et è converso (p. 13); that the maxim was, protectio trahit subjectionem et subjectio protectionem; and that “power and protection draweth ligeance, and it followeth that seeing the king's power, command, and protection extendeth out of England, that ligeance cannot be local or confined within the bounds thereof” (p, 16); and it was held to be due at all times and in all countries (d).
(a) Arch. Crim. Pleadings (17th ed.) 20. (6) Lord Lovat's Case (1746), Howell's State Trials, vol. xviii. p. 546. (c)* 7 Rep. 1, and xviii. State Trials. (d) Broom's Com., vol. i. p. 445.
Sir M. Foster says, “Natural allegiance, namely, that which is due from all men born within the king's dominions, and which arises by nature and birth, is founded in the relation every man standeth in to the Crown, considered as the head of that society whereof he is born a member, and on the peculiar privileges he deriveth from that relation, which are with great propriety called his birthright (e). It is a reciprocal bond, by which the subject is held to obedience and the king to protection (f).
This allegiance was by the common law of England, held to be indefeasible (g) or perpetual, a doctrine which has given rise to much controversy, and which has been urgently assailed, especially by American statesmen, although at the same time, and until 1868, it continued to be law in the United States, as will presently be shown. Sir M. Foster, in his work on Crown Law already referred to, speaking of the privileges derived by the subject from the relation above mentioned, at p. 183, says, " This birthright, nothing but his own demerit can deprive him of; it is indefeasible and perpetual ; and consequently the duty of allegiance which arises out of it, and is inseparably connected with it, is, in consideration of law, likewise inalienable and perpetual ;" and he refers to a then modern case "in which this doctrine was treated by the Court as a point never get disputed.” This was the case of Æneas Macdonald (h), who was tried for high treason in the King's Bench, for having borne arms in the rebellion of 1745. It appeared that the prisoner had been brought up from early infancy in France, and that he held a commission from the French king. His counsel, in addressing the jury, spoke of the doctrine of natural allegiance as a slavish principle,
(e) Foster's Crown Law, 183 (1762). (f) Com. Dig. vol. i. p. 553 cit. Calvin's Case; Chitty on Prerog. 10. (g) 1 Inst. 129a ; Cockb. pp. 63, 128. (h) Foster's Cr. Cas. p. 59, and State Trials, vol. xviii. p. 858.
derogating from the principles of the revolution. But the Court interposed and said it never was doubted that a subject born, taking a commission from a foreign prince and committing high treason, may be punished as a subject for such treason, notwithstanding his foreign commission, and that it was not in the power of any private person to shake off his allegiance, or transfer it to a foreign prince; nor was it in the power of a foreign prince, by naturalizing or employing subjects of Great Britain to dissolve the bond of allegiance between them and the Crown. Lord Chief Justice Lee told the jury that the only fact to be tried was whether he was a subject of Great Britian, as in that case he must be found guilty. He was found guilty and received sentence of death as in cases of high treason; but received a pardon on condition of banishment (i).
Nothing," said Vice-Chancellor Shadwell, in a case before him in 1847, “I apprehend can be more certain, than that a natural born subject cannot throw off his allegiance by any such acts," referring to naturalization in the United States (j).
And as recently as 1867 the doctrine was re-affirmed by Chief Baron Piggott and Mr. Justice Keogh at Dublin, on trying a charge of treason felony. A jury de medietate lingua, consisting half of subjects and half of foreigners, was applied for, on the ground that the prisoner, though born in Ireland, was a citizen of the United States, having been naturalized there; but the application was refused, the Court ruling that according to the law of England, a law which had been administered without variation or doubt from the earliest times, he who once was under the allegiance of the English sovereign remained so forever (k).
(i) Cockb. 64, note n.
When the Crown has asserted, as of right, its claim to the subject’s allegiance, such claim has been based on the Royal Prerogative. Thus, in 1806, Sir John Nicholl, King's Advocate, advised the government that His Majesty by his royal prerogative had a right to require the services of all seafaring subjects against the enemy, and to seize them by force wherever they should be found. “ This right,” he said, “had from time immemorial been asserted in practice and acquiesced in by foreign nations" (1).
And, in 1807, in exercise of a right-of which Sir R. Phillimore says, “ Every State has the right of recalling (jus avocandi) its citizens from foreign countries, especially for the purpose of performing military services to their own country" (m)—the King's proclamation was issued, recalling the seafaring subjects referred to, and expressly denying that letters of naturalization or certificates of citizenship given them by foreign governments could in any manner divest natural born subjects of the allegiance owing to their lawful sovereign (n) And so, as stated by Sir R. Phillimore, the law of England "affixed until quite recently on all who were born of parents who were not enemies within its territory an indelible allegiance" (o).
The law of England, observed the late Lord Chief Justice of England, Sir Alex. Cockburn, asserts “as an inflexible rule, that no British subject can put off his country, or the natural allegiance which he owes to the sovereign, even with the assent of the sovereign; in short, that natural allegiance cannot be got rid of by anything less than an Act of the Legislature, of which it is believed no instance has occurred” (p).
(1) Cockb. 72.
(b). Having shown that the doctrine of indelible allegiance was the invariable law of England from the earliest times to the recent date already mentioned, it will now be shown that it became part of the law of this country at the time of its conquest and cession in 1763, and has since continued to be part of our law until the 4th July, 1883.
Upon the principle laid down in Calvin's Case, and referred to in other authorities mentioned, that allegiance is a reciprocal bond by which the subject is held to obedience and the king to protection, it would apparently be sufficient to show that the sovereignty of the British Crown became in fact established in this country upon the conclusion of the Treaty of Paris, 10th July, 1763, and the issue of the proclamation of the King of England which followed it in October of that year (q), introducing the law of England, and the appointment of a Governor,-and to argue that these latter being acts of sovereignty, the relationship of subject and sovereign, governed and governor, was then established between the inhabitants of this country and the King of England, and that from that relationship sprang at once the duty of allegiance on the part of the people of this country to the British Crown, an allegiance too of that nature alone which was known to the common law of England, and known to the Crown's prerogative-namely—an indelible allegiance.
Uninhabited countries discovered and planted by British subjects, and countries acquired by conquest and cession, are differently regarded with reference to the laws to be introduced (r). But those considerations would not
(9) Ann. Reg. 1763, 208.
(v) Calvin's Case, supra; Clarke's Col. Law, p. 4 et seq.; Leith's Black. 2nd ed. p. 33; and see Campbell v. Hall, Cowp. 204; The Mayor of Lyons v. The East India Co., I Moore, P. C. 175.