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 granted The acts of congress relating to naturalization, provide: That any alien, being a free white person, may be admitted to become a citizen of the United States, or any of them, on the following conditions, and not otherwise: First. That he shall have declared, on oath or affirmation, before the supreme, superior, district or circuit court of some one of the states, or of the territorial districts of the United States, or a circuit or district court of the United States, or before a clerk of either of said courts, two years at least before his admission, that it was his bona fide intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, potentate, state or sovereignty whatever, and particularly, by name, the prince, potentate, state or sovereignty whereof such alien may, at the time, be a citizen or subject. Secondly. That he shall, at the time of his application to be admitted, declare on oath or affirmation, before some one of the courts aforesaid, that he will support the constitution of the United States, and that he doth absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state or sovereignty whatever, and particularly, by name, the prince, potentate, state or sovereignty whereof he was before a citizen or subject; which proceedings shall be recorded by the clerk of the court. Thirdly. That the court admitting such alien shall be satisfied that he has resided within the United States five years at least, and within the state or territory where such court is at the time held, one year at least; and it shall further appear to their satisfaction that during that time he has behaved as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same; Provided, That the oath of the applicant shall, in no case, be allowed to prove his residence. Fourthly. That in case the alien, applying to be admitted to citizenship, shall have borne any hereditary title, or been of any of the orders of nobility in the kingdom or state from which he came, he shall, in addition to the above requisites, make an express renunciation of his title or order of nobility in the court to which his application shall be made, which renunciation shall be recorded in the said court: Provided, That no alien who shall be a native citizen, denizen or subject of any country, state or sovereign with whom the United States shall be at war at the time of his application, shall be then admitted to be a citizen of the United States. Any alien, of the age of twenty-one years and upward, who has enlisted or shall enlist in the armies of the United States, either the regular or the volunteer forces, and has been or shall be hereafter honorably discharged, may be admitted to become a citizen of the United States, upon his petition, without any previous declaration of his intention to become a citizen of the United States, and he shall not be required to prove more than one year's residence within the United States previous to his application to become such citizen; and the court admitting such alien shall, in addition to such proof of residence and good moral character, as is now provided by law, be satisfied by competent proof of such person having been honorably discharged from the service of the United States as aforesaid. Any alien, being a free white person and a minor, under the age of twenty-one years, who shall have resided in the United States three years next preceding his arriving at the age of twentyone years, and who shall have continued to reside therein to the time he may make application to be admitted a citizen thereof, may, after he arrives at the age of twenty-one years, and after he shall have resided five years within the United States, including the three years of his minority, be admitted a citizen of the United States, without having made the declaration required in the first condition of the first section of the act to which this is in addition, three years previous to his admission; Provided, Such alien shall make the declaration required therein at the time of his or her admission; and shall further declare on oath, and prove to the satisfaction of the court, that, for three years next preceding, it has been the bona fide intention of such alien to become a citizen of the United States; and shall, in all other respects, comply with the laws in regard to naturalization. The children of persons duly naturalized under any of the laws of the United States, or 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 [*442] feudal law, to be taken by every tenant to his landlord, *couched in almost the same terms as our ancient oath of allegiance(a); except that in the 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 exception; "contra omnes homines fidelitatem fecit "(b). Land held by this exalted species of fealty was called feudum ligium, a liege fee; the vassals homines ligii, or liege men; 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 acknowledgment of tenure(c); and liege homage, which included the fealty before mentioned, and the services consequent upon it. Thus when our Edward III., in 1329, did homage to Philip 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(d). But with us, in England, it becoming a settled principle of tenure, that all lands in the kingdom are holden of the sovereign as 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 sovereign. By an easy analogy the term "allegiance" was soon brought to signify all other engagements which are due from subjects to their prince, as well as those duties which were simply and The oath of al- merely territorial. And the oath of allegiance, as administered for upwards of six hundred years (e), 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(ƒ) makes this remark; that it was short and plain, legiance. [*443] (a) 2 Feud. 5, 6, 7. (b) 2 Feud. 99. (d) 2 Carte, 401. (c) Calvin's Case, 7 Rep. 7. (e) Mirror, c. 3, s. 35; Fleta, 3, 16; Britton, c. 29; Calvin's Case, 7 Rep. 6. (f) 1 Hale, P. C. 63. who, previous to the passing of any law on that subject by the government of the United States, may have become a citizen of any of the said states, under the laws thereof, being under the age of twenty-one years, at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States, and the children of persons who now are or have been citizens shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States: Provided, That the right of citizenship shall not descend to persons whose fathers have never resided within the United States. When any alien who shall have complied with the first condition specified in the first section of the said original act, and who shall die before he is actually naturalized, the widow and children of such alien shall be considered as citizens of the United States, and shall be entitled to all rights and privileges as such, upon taking the oaths prescribed by law. The various statutes which have been quoted will be found in 2 Stat at Large, 153; id. 292; id. 811; 3 Stat at Large, 259; 4 id. 69; id. 310; 9 Stat. at Large, 240; 12 id. 597. not entangled with long or intricate clauses or declarations, and yet was 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, another form, more general and indeterminate, was introduced by the convention parliament, the subject only promising "that he would be faithful and bear true allegiance to the king," without mentioning "his heirs," or specifying in the least wherein that allegiance might consist. The oath of supremacy was principally calculated as a renunciation of the pope's pretended authority: and the oath of abjuration, introduced in the reign of king William (g), very amply supplied the loose and general texture of the oath of allegiance; it recognising the right of his majesty, derived under the act of settlement: engaging to support him to the utmost of the juror's power; promising to disclose all traitorous conspiracies against him; and expressly renouncing any claim of the descendants of the pretender, in as clear and explicit terms as the English language could furnish. This oath was required to be taken by all persons in any office, trust, or employment; and might be tendered by two justices of the peace to any person whom they suspected of disaffection(h). And the oath of allegiance might formerly have been tendered (i) to any person above the age of twelve years, whether native, denizen, or alien, either in the court-leet of the manor, or in the sheriff's tourn, which was the court-leet of the *county; a refusal to take it when duly tendered being indictable(k). [* 444] In regard to the taking of the oaths above-mentioned and the form of words which should be used to express allegiance, many important changes have by statutes passed during the last century been effected; these changes having been made in a truly liberal spirit, with a view to satisfy religious scruples, and so preventing the exclusion from various offices of men dissenting from the religious tenets of our Established Church, yet well qualified to serve the state and well-affected towards the crown. The statutory changes referred to need not here otherwise than thus generally be noticed (1), inasmuch as the subject before us has by statute 31 & 32 Vict. c. 72, been much simplified, and put upon a basis likely to endure. No person can now "be required or authorised to take the oaths of allegiance, supremacy, and abjuration, or any of such oaths, or any oath substituted for such oaths or any of them, or to make any declaration to the like effect of such oaths or any of them "(m), except the persons indicated in the above act, in the "Clerical Subscription Act, 1865 "(n), and the "Parliamentary Oaths Act, 1866 "(o). The statute 31 & 32 Vict. c. 72, moreover, prescribes three forms of oath, respectively constituting the oath of allegiance, the official, and the judicial oath. By the first of these, A. B. swears that he "will be faithful and bear true allegiance to her majesty queen Victoria, her heirs and successors, according to law;" by the second, that he "will well and truly serve" her majesty "in the office of -; " and by the third, that he "will well and truly serve" her majesty "in the office of " and " will do *right to all manner of [ *445] people after the laws and usages of this realm without fear or favour, (g) Stat. 13 Will. 3, c. 6. (h) Stats. 1 Geo. 1, c. 13; 6 Geo. 3, c. 53. (i) 2 Inst. 121; 1 Hale, P. C. 64. (k) Broom's Const. Law, p. 12 (k). For details respecting them, see Raw- linson's Municip. Corp. Acts, (ed. by Geary,) pp. 88 (1); 397 (3); 556 (2). (m) 31 & 32 Vict. c. 72, s. 9. (n) Post, c. 11. (0) 29 & 30 Vict. c. 19. affection or ill-will." With the first of the foregoing oaths only have we here any direct concern; but the consideration of it cannot be altogether dissevered from that of the other two. The effect of the statute is as under: 1st, the form of the oath of allegiance is to be always as above. 2ndly. The official or the judicial oath must, in conjunction with the oath of allegiance, be tendered to and taken by each of the officers(p) named in the schedule(g) to the act; and if any such officer declines or neglects to take any such oath when duly tendered, he shall, if he has already entered on his office, vacate the same; and if he has not entered upon it, be disqualified from doing so. 3rdly. Where an affirmation or a declaration is under any statute permitted in lieu of the oath(r), such affirmation or declaration is to be mutatis mutandis in like form as the oath for which it is substituted, and the penalty for not making it will be the same(s). But, besides express engagements, such as above considered, the law 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 sovereign, by the 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 outward solemnities, and irrespective of them, such formalities having been only instituted to remind the subject of his previous duty, and for the better securing its performance(t). The profession, therefore, of subjection, is nothing more than a declaration in words of what was before implied in law. *Which [ *446] occasions sir Edward Coke justly to observe(u), that "all subjects 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 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; and the policy of our legislature has of late been unmistakeably evinced to do away with unnecessary oaths. Allegiance, expressed or implied, is distinguished by the common law into two sorts or species, the one natural, the other local; the former being perpetual, the latter temporary. Natural allegiance is such as is due Allegiance at common law. from all men born within the dominions of the crown immediately upon their birth(x). For, immediately upon their birth, they are under the sovereign's protection: at a time too, when (during infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude: which cannot (according to our customary law) be forfeited, cancelled, or altered by any change of time, place, or circumstance, nor by anything but the united concurrence of the legislature(y). According to our customary law, an Englishman who removes to France, or to China, owes the same allegiance to the sovereign of England there as at home, and will owe it twenty (p) Sects. 5, 6. (g) Parts 1 & 2. (r) See sects. 12, 13. (8) Sect. 11. (t) 1 Hale, P. C. 61. (u) 2 Inst. 121. (x) Calvin's Case, 7 Rep. 7. years hence as well as now. For it is a principle of universal law (z), that the natural-born subject of one prince cannot by any act of his own, no, 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(a). The natural-born subject [*447] of one prince to whom that subject owes allegiance, may indeed 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 with and tied to his natural prince.(116) Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the dominion and protection of the crown(b), and by our customary law it ceases the instant such stranger transfers himself from this kingdom to another. Natural allegiance is therefore perpetual, and local allegiance temporary only: 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, [*448] so long the other will demean himself faithfully. As therefore the prince is under a constant tie to protect his natural-born subjects at all times and in all countries, 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 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 (c) 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 anything against his crown and dignity: wherefore, although the true prince regain the 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 king de facto. And upon this footing, after (2) 1 Hale, P. C. 68. (a) This principle may be exemplified by the case of Eneas McDonald (Fost. 184). There a native of Great Britain, who had received his education from infancy in France, had spent his riper years in a profitable employment in that kingdom, and had accepted a commission in the service of the French king; having, whilst acting under that commission, been taken in arms against the king of England, was indicted and convicted of high treason; though afterwards pardoned, on condition of his leaving the kingdom for ever. In Doe v. Acklam, 2 B. & C. 779, it was held that upon the recognition of the independence of the United States of America in 1783, the natural born subjects of the crown of England, adhering to the United States, became aliens to all intents and purposes. In Doe v. Mulcaster, 5 B. & C. 771, the con verse was held, viz., that children, born in the (b) Calvin's Case, 7 Rep. 6. (116) See notes 90 and 115, ante. |