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laws in a conquered country, this legislation being subordinate that is, subordinate to his own authority in parliament, he cannot make any new change contrary to fundamental principles ; he cannot exempt an inhabitant from that particular dominion as, for instance, from the laws of trade, or from the power of parliament, or give him privileges exclusive of his other subjects, and so in many other instances which might be put.
Lord Brougham observed in the case of The Mayor of Lyons v. The East India Co.(y) that it cannot be said that the inhabitants of a conquered or ceded country continue aliens unless and until the conqueror or purchaser grants them naturalization (2).
But we are not without decisions of the highest authority in our own Courts bearing upon the subject. In the Court of Queen's Bench for Upper Canada, in 1845, in a case (a) in which the principal question before the Court was whether 9 Geo. II. cap. 36 (the Statute of Mortmain), was in force in Upper Canada, Sir J. B. Robinson, C.J., took occasion to trace the history of the introduction of the laws which governed the colony; referring to it as "a conquered or ceded country," and as "the conquered Province of Canada, ceded by the French Government by the Treaty of Paris,” and “in which, therefore, after the cession, it was in the power of the Crown, independently of the legislature, to have introduced either the laws of England or any other." And again the learned Chief Justice speaks of the proclamation of October, 1763, as "introducing the law of England in general terms into countries ceded by the treaty of Paris,"—observing that it “assured to the inhabitants the enjoyment of the benefit of the laws of England” (p. 85). (y) 1 Moo. P. C. 286.
(z) It was said in the case of Donegani v. Donegani, in the Privy Council, that “when the King of England became King of Canada, the natives of Canada became his subjects.” Knapp P. C. C. 85.
(a) Doe d. Anderson v. Todd, 2 U. C. R. 82.
It is evident, therefore, whether we view it as part of the common law of England, or as a prerogative right of the Crown, that the doctrine of indelible allegiance became part of the law of this country at the time that the sovereignty of the British Crown was established over it.
This doctrine, however, was expressly affirmed by the same eminent authority just cited, as part of the law of this Province. In the case of Doe d. Hay v. Hunt (b), Robinson, C.J., delivered the judgment of the Court, and referring to the plaintiff's ancestor, observes that he "was born a British subject, being the child of British subjects born within the dominion of the British Crown, Detroit being beyond all question British territory in 1769, the time of his birth. He had not in our opinion lost his status of a British subject in 1813, when H. Hay died, nor indeed up to the time of his death, though he may have entitled himself to be regarded in the United States as an American citizen, and may have enjoyed all the rights of American citizenship. His claiming such rights, however openly and unequivocally. his enjoying them rightfully according to the laws of the United States, or usurping them wrongfully, if he was suffered to do so, would not deprive him of his legal character of a British subject, nor would he lose that character by disclaiming to be a British subject, or even abjuring allegiance to the Crown. I mean, that upon general principles of law it is true that he could not by any such conduct divest himself of his allegiance, and had no choice to exercise.”
The learned Judge here affirmed the doctrine in the clearest and fullest manner possible, contemplating the case of a man who had entitled himself to be regarded in the United States as an American citizen," i. e., by naturalization, in
(6) 11 U. C. R. 381.
cluding as it does there, the “ abjuring of allegiance to the Crown.” The principle is pushed to its utmost limit, and its inflexibility shown in the strongest light. This enunciation of the rule by so eminent an authority is especially worthy of note, because it was this view of the doctrine and its operation in the particular direction mentioned, which afterwards, when it had grown to be of vast importance, engaged much of the attention of the British Parliament and of many eminent jurists and statesmen who took an active interest in the measure which has since become law.
In a later case (c), in 1866, Chief Justice Draper refers to the rule as then prevailing in this Province, citing the case already referred to of Æneas Macdonald (d), as laying it down that, “it was not in the power of any private subject to shake off his allegiance and to transfer it to a foreign prince.”
The learned Chief Justice also cited Sir W. Blackstone to the effect that natural allegiance "could not be forfeited, cancelled, or altered by any change of time, place, or circumstances.”
And in the case of Regina v. Lynch, (e), on motion for a new trial, Hagarty, J., upheld the direction of Wilson, J., to the jury, at the trial in which the learned Judge had reiterated the rule, instructing the jury that the rule of law was, "once a British subject always one." Although that does not appear to have been material to the case, or indeed to the case which preceded it of Regina v. McMahon, the prisoner not having been placed upon trial for treason, but under a Provincial Statute for felony, yet, the question having been brought under the notice of the Court by counsel for the
(c) Reg. v. McMahon, 26 U. C. R. 195.
prisoner, the learned Judges recognized the rules stated as then being the law of this Province.
(e) The same rule was recognized by the Courts of the United States before the recent change in their law.
In 1817, Mr. Justice Washington, an Associate Justice of the Supreme Court, expressed himself as follows :-“I must be more enlightened upon the subject of allegiance than I have yet been before I can admit that a citizen of the United States can throw off his allegiance to his country without some law authorizing him to do so." And further on, in the same case, he speaks of “the perpetual allegiance" due by a man to the country in which he was born (f).
In the earliest years of the Republic attention was directed to the subject. In 1795, one of the Judges of the Supreme Court of the United States said, "A statute of the United States relative to expatriation is much wanted, especially as the common law of England is by the constitution of some of the States expressly recognized and adopted" (g).
It is worthy of remark that as early as 1792 the example of passing an expatriation law was set by the State of Virginia, which expressly authorized expatriation as follows: --"Whenever any citizen of this Commonwealth shall ” (prescribing formalities) " declare that he relinquishes the character of a citizen and shall depart out of this Commonwealth * * he shall be considered as having exercised his right of expatriation and shall thenceforth be deemed no citizen” (h).
Upon this it may be remarked, however, that in so far as such a law as that last mentioned purported to affect citizen
(f) The United States v. Gillies, Dall. 310.
ship of the United States it would have been considered ultra vires of a State Legislature, and that such a power belonged only to the Federal jurisdiction, which, however, did not follow that example until the year 1868, when the question was dealt with by Congress.
In the case of The Santissima Trinidad, in 1821 (i), the abstract question of the alleged natural right to dissolve the connexion between an individual and his country seems to have been brought under the notice of Chief Justice Marshall, but that distinguished Judge deemed it unnecessary to the decision of the case before him. And in the same case, on appeal to the Supreme Court, Mr. Justice Story merely referred to the question, giving no opinion upon it at that time (p. 347). But in a later case (1830) that eminent jurist, in delivering the opinion of the Supreme Court of the United States, said, “the general doctrine is that no person can by any act of their own, without the consent of the Government, put off their allegiance and become aliens" (1).
In 1856, Mr. Attorney-General Caleb Cushing, summing up a review of the cases relating to expatriation, said, "It is a significant fact at all events that on many occasions where the question presented itself, not one of the Judges of the Supreme Court has affirmed, while others have emphatically denied the unlimited right of expatriation from the United States" (k).
Chancellor Kent said, “from an historical review of the principal decisions in the Federal Courts, the better opinion would seem to be, that a citizen cannot renounce his allegiance to the United States, without the permission of
(i) Brackenbrough, 478.