s. 141., and 1 Vict. c. lxxviii. s. 49., on petition of the inhabitant householders, to grant, with the advice of her privy-council, a charter of incorporation, according to the provisions of the Municipal Corporation Act, to any town whether already incorporated or not.' CHAPTER XXIII. OF NATURAL-BORN SUBJECTS, DENIZENS, AND ALIENS, AND OF CORPORATIONS. We have now considered the several branches of the sovereign power, and the magistrates by whom they are administered. The next and last portion of our investigations will be concerning the people, for whose benefit all government is instituted. And under this head are included, in their private capacity, all magistrates and other persons exercising public functions, excepting the one supreme magistrate, in whom the law sees only the imperial majesty of the whole state.2 Persons may be considered either simply as men, or as citizens of a state; and, again, citizens may be considered either in their relation towards each other, or in their relation to the state. The first of these divisions belongs to primary natural law, or that which regards men simply as reasonable and responsible beings, bound by the divine law; and the second belongs both to secondary natural law, regarding men not simply as such, but with reference to the institution of the social state, and also to municipal law. Again, the relations of citizens towards each other belong to private law; and their relations to the state are matter of public law. The scope and object of this Commentary require that we should confine ourselves to the last. We will, therefore, in this chapter, first consider the most obvious division of the people with reference to the state, namely, into aliens, and natural-born subjects,— and then proceed to the examination of bodies corporate, that is to 1 Doubts having arisen respecting the validity of the charters of incorporation granted in pursuance of the act, they are confirmed by stat. 5 & 6 Vict. c. cxl., passed on 12th August, 1842, and provisions made for granting compensation to persons who have sustained loss by the grant of such charters. As to the construction of stat. 1 Vict. c. lxxviii. § 49. see Rutter v. Chapman, 8 Mees. & Wel. 1. 2 § 4. Instit. De Jur. Nat. Gent. et Civ. say, certain aggregate bodies of men, which are invested by the law with the character of persons, and certain individuals to whom the law has given a peculiar abstract quality independent of their personal character whether public or private. Thus we shall first see who are the natural persons composing the nation, and then investigate the nature and attributes of certain artificial persons created and devised by law within the state for divers purposes of society and government. Blackstone defines natural-born subjects to be such as are born within the dominions of the crown of England, that is, within the legiance, or, as it is generally called, the allegiance, of the king; and aliens, such as are born out of it. And on this subject we cannot do better than to adopt the very words of that great writer. "Allegiance is the tie or ligamen which binds the subject to the king, in return for that protection which the king affords to the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and form are derived to us from our Gothic ancestors. Under the feudal system every owner of lands held them in subjection to some superior or lord, from whom or whose ancestors the tenant or vassal had received them; and there was a mutual trust or confidence subsisting between the lord and vassal, that the lord should protect the vassal in the enjoyment of the territory he had granted him; and, on the other hand, that the vassal should be faithful to the lord, and defend him against all his enemies. This obligation on the part of the vassal was called his fidelitas, or fealty; and an oath of fealty was required by the feudal law to be taken by all tenants to their landlord, which is couched in almost the same terms as our ancient oath of allegiance', except that in the usual oath of fealty there was frequently a saving or exception of the faith due to a superior lord by name, under whom the landlord himself was, perhaps, only a tenant or vassal. But when the acknowledgment was made to the absolute superior himself, who was vassal to no man, it was no longer called the oath of fealty, but the oath of allegiance; and therein the tenant swore to bear faith to his sovereign lord in opposition to all men, without any saving or exceptioncontra omnes homines fidelitatem fecit." Land held by this exalted species of fealty was called feudum ligium, a liege fee; the vassals ligii, or liegemen; and the sovereign their dominus ligius, or liege lord. And when sovereign princes did homage to each other for lands held under their respective sovereignties, a distinction was always made between simple homage, which was only an acknowledg ment of tenure 3, and liege homage, which included the fealty before 37 Rep. Calvin's case, 7.] 2 Lib. Feud. 5, 6, 7. 2 Ibid. 99. mentioned and the services consequent upon it. Thus, when our Edward III., in 1329, did homage to Edward VI. of France for his ducal dominions on the Continent, it was warmly disputed of what species the homage was to be, whether liege or simple homage. But with us in England, it becoming a settled principle of tenure that all lands in the kingdom are holden of the king as their sovereign and lord paramount, no oath but that of fealty could ever be taken to inferior lords, and the oath of allegiance was necessarily confined to the person of the king alone. By an easy analogy, the term of allegiance was soon brought to signify all other engagements which are due from subjects to their prince, as well as all those duties which are simply and merely territorial. And the oath of allegiance, as administered for upwards of six hundred years 2, contained a promise to be true and faithful to the king and his heirs, and truth and faith to bear of life and limb and terrene honour, and not to know or hear of any ill or damage intended him without defending him therefrom. Upon which sir Matthew Hale 3 makes this remark: and it was short and plain, not entangled with long or intricate clauses or declarations, and yet is comprehensive of the whole duty from the subject to his sovereign.' But at the Revolution, the terms of this oath being thought, perhaps, to favour too much the notion of non-resistance, the present form was introduced by the convention-parliament, which is more general and indeterminate than the former, the subject only promising that he will be faithful and bear true allegiance to the king, without mentioning his heirs, or specifying at least wherein that allegiance consists. "But, besides these express engagements, the law also holds that there is an implied, original, and virtual allegiance, owing from every subject to his sovereign, antecedently to any express promise, and although the subject never swore any faith or allegiance in form; 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, which were only instituted to remind the subject of this his previous duty, and for the better securing its performance. The formal profession, therefore, or oath of subjection, is nothing more than a declaration in words of what was before implied in law; which occasions sir E. Coke very justly to observe", that' all subjects are equally bounden to their allegiance, as if they had taken 1 2 Carte, 401. 2 Mirror, c. iii. § 35. Fleta, 3. 3 1 Hale, P. C. 63. 16 Britton, c. xxix. 7 Rep. Calvin's case, 6. D D 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 declaration of the same.' The sanction of an oath, it is true, in case of violation of duty, makes the guilt still more accumulated by superadding perjury to treason: but it does not increase the civil obligation to loyalty; it only strengthens the social tie by uniting it with that of religion. Allegiance, both express and implied, is, however, distinguished by the law into sorts or species,-the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the dominions of the crown, immediately on 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, cancelled, or altered, by any change of time, place, or circumstance, nor any thing but the united concurrence of the legislature." 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 is a principle of universal law3, that the natural-born subject of one prince cannot by any act of his ownno, not by swearing allegiance to another— put off or discharge his natural allegiance to the former: for this natural allegiance was intrinsic and primitive, and antecedent to the other, and cannot be divested without the concurrent act of that prince to whom it was first due. Indeed, the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another; but it is his own act that brings him into these straits and difficulties of owing service to two masters, 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 such as is due from an alien, or stranger 17 Rep. 7. 3 2 2 P. Wms. 124. 1 Hale, P. C. 68.; and Pufendorf, de Offic. Hom. et Civ. lib. ii. c. xviii. § 15. 4 It seems doubtful whether this doctrine of the English law holds good in the United States of America to its full extent, though the weight of authority, so far as regard the opinions of the American judges, is in its favour, especially in Talbot v. Janson, 3 Dallas, 133. (supreme court); and Kent concludes, after a review of the cases, that "the better opinion would seem to be that a citizen cannot renounce his allegiance to the United States without the permission of the government, to be declared by law; and that, as there is no existing legislative regulation on the case, the rule of the English common law remains unaltered." 2 Kent, Com. 48. Doe d. Thomas v. Acklam, 2 B. & C. 779. Achmuty v. Mulcaster, 5 B. & C. 771. And see Story's case, Dyer's Rep. 298 b. 300 b. 1 Hale, P. C. 68. Foster, Crown Law, 7. 59. 183. born, for so long time as he continues within the king's dominion and protection1; and it ceases the instant such stranger transfers himself from this kingdom to another. Natural allegiance is therefore perpetual, and local temporary only; and that for this reason, evidently founded upon the nature of government, that 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, for this reason their allegiance due to him is equally universal and permanent. But, on the other hand, as the prince affords his protection to an alien only during his residence in this realm, the allegiance of the 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 Hale2 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, except in aid of the rightful heir: wherefore, although the true prince regain his sovereignty, yet 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 a king de facto. And upon this footing, after Edward IV. recovered the crown, which had been long detained from his house by the line of Lancaster, treasons committed against Henry VI. were capitally punished, though Henry had been declared an usurper by parliament. On the same principle is grounded the celebrated statute of allegiance 11 Hen. VII. c. i. whereby it is enacted, that all persons that attend upon the king and sovereign lord of this land for the time being in his person, and do him true and faithful service of allegiance in the same, or be in other places by his commandment in the wars within this land or without, that, for the said deed and true duty of allegiance, he or they shall be in no wise convict or attaint of high treason nor of other offences for that cause by act of parliament, or otherwise by any process of law.' That statute was formed for the purpose of giving some security against the law of treasons to persons attending on and serving a king in actual possession of the throne though only a king de facto and not de jure; but as Lord Hale remarks, it was a vain provision against future acts of parliament.* 17 Rep. 6. 3 1 Hale, P. C. 101, 102. 41 Hale, P. C. 272, 273. 2 1 Hale, P. C. 60. Foster, P. C. 397. And see a learned tract, entitled the Case of Allegiance to a King in Possession, 1690, pp. 71. |