1 though their sovereign is at war with this country; (a) for they equally enjoy his Majesty's protection. (b) It is even stated by Sir M. Foster, to have been laid down at a meeting of all the Judges, that if an alien, seeking the protection of the Crown, and having a family and effects here, should, during a war with his native country, go thither, and there adhere to the King's enemies for purposes of hostility, he may be dealt with as a traitor. (c) But aliens who in an hostile manner invade the kingdom, whether their King be at war or peace with ours, and whether they come by themselves, or in company with English traitors, cannot be punished as traitors, but shall be dealt with by martial law. (d) So with respect to any conquered country it is clear that the inhabitants, when once received into the King's protection, become his subjects; and are to be universally considered in that light and not as enemies or aliens; but if the territory be lost by conquest, the after-born inhabitants are to be considered aliens. (e) The mere birth of a person within this country will not constitute him a subject thereof, unless he was also born under the King's obedience and protection; and therefore if foreign enemies should invade the realm, and have children born within it, such children would be aliens. (f) But children born here of alien friends are natural born subjects of this country, (g) as are in general children born either in his Majesty's colonies, or plantations, or on those parts of the ocean which are reputed the English seas. (h) By the common law the children of natural born subjects of this country were aliens if born out of the King's dominions: (i) and the only exception allowed was in the case of children of English ambassadors. (k) But by legislative provision (1) all children born out of the King's ligeance, whose fathers (or grandfathers by the father's side) were natural born subjects, are now natural born subjects themselves for (a) 1 Wooddn. V. L. 379. (b) See 7 Rep. 6. Dyer, 145. Hob. 971. 2 Salkd. 630. pl. 2. Statute, 32 Hen. 8. c. 16. 1 Hal. P. C. 59. 1 Bla. Com. 370. (c) Fost. C. L. 185. (d) 1 Hawk. P. C. c. 17. s. 6. (e) Dyer, 224. Vaugh.281, Cowp. 208. 2 Chalmers' Cull. of Op. 384, 5, &c. (f) Co. R. 18, a, b. (g) Ib. 1 Inst. 8, a. 1 Bla. Com. 373,374. (h) Molloy, 370. (i) 4 Term R. 308, 310. (k) 7 Rep. 18. (1) 7 Ann. c. 5. 4 G. 2. c. 21. 13 G. 3. c. 21. See 1 Bla. Com. 373. 4 Term R. 309, every purpose, unless their said fathers at the time of the birth of such children abroad, were either attainted of high treason, or liable to the penalties of high treason, or felony, in case of their returning into England or Ireland, without the King's licence; or in the actual service of a prince at enmity with Great Britain. If, however, an English woman, a natural born subject of this realm, marry an alien abroad, their issue are aliens also, as none of the statutes make any provision for such a case. (a) By various Acts of Parliament, persons not natural born subjects may, in certain cases, become naturalized, as if they were born within the King's territories. Thus every foreign seaman, who in time of war serves two years on board an English ship, by virtue of the King's proclamation is, ipso facto, naturalized, under the like restrictions as in statute 12 W. 3. c. 2. (b); and all foreign Protestants and Jews, upon their residing seven years in any of the American colonies, without being absent above two months at a time; and all foreign Protestants, serving two years in a military capacity there, or being three years employed in the whale fishery, without afterwards absenting themselves from the King's dominions for more than one year, and none of them falling within the incapacities declared by statute 4 G. 2. c. 21. shall be (upon taking the oaths of allegiance and abjuration, or, in some cases, an affirmation to the same effect) naturalized to all intents and purposes, as if they had been born in this kingdom; except as to sitting in Parliament, or in Privy Council, and holding offices or grants of land, &c. from the Crown, within the kingdoms of Great Britain or Ireland. (c) Though it has been asserted that the King may nullify for the future, that allegiance which natural born subjects owe him, by ceding a colony in which they live to another potentate; (d) yet there can be no doubt that his Majesty is not by law enabled to naturalize an alien. To effect that, an Act of Parliament is necessary, and such act cancels all defects of blood, and has a retrospective energy, so as to enable a son born before the na (a) 4 Term Rep. 300. (b) 13 Geo. 2. c. 3. (c) Stat. 13 Geo. 2. c. 7. (d) See 1 Wooddn. 382. But this is by no means clear: it has been strongly urged that the character and rights of 7 an English born subject are personal, unchangeable, and indelible, and that the King cannot take away this birthright without the aid of Parliament. See several able opinions in Chalmers, See ante 12. turalization turalization to inherit, &c.; an effect and power which do not attach to simple denization. (a) His Majesty is, however, entrusted with the important power of making an alien a denizen; which is in a kind of middle state between an alien and natural born subject, and partakes of both of them. (b) Denization enables the alien to purchase, and to transmit lands by de scent, &c. but does not qualify him to take any degree of nobility, or to sit in Parliament, be of the Privy Council, or hold any office of trust, civil or military, or take any grant of lands from the Crown. (c) This prerogative cannot be delegated by the Crown to any one (d), and should be granted according to the statute 32 Hen. 8. c. 16. s. 7. (e) with a proviso in the letters patent, that the denizen shall be obedient to the sta tutes in force before the making of that statute: but such proviso does not constitute a condition; and therefore the denization is not avoided by the denizen being guilty of a breach of the laws. (f) Denization may be granted for life, or for years; or to the alien born, and the heirs of his body, or to the heirs generally; or for particular purposes and intents, and in certain places, and no further, or upon condition. (g) SECT. II. Of the Nature and Extent of Allegiance, and of taking the Oaths of Allegiance. THE well known maxim nemo potest exuere patriam' comprehends the whole doctrine of natural allegiance; (h) and is taken in its full extent by the English laws. (i) The very existence, and at all events the welfare, of a State would be endangered if its natural born subjects could withdraw, or transfer, with impunity, that natural allegiance which the law of every nation (k) has rendered perpetual and unalienable. To the inseparable and (a) 1 Ventr. 419. Co. Lit. 129. Bac. Ab. Aliens B. 1 Bla. Com. 374. 2 Ib. 249, 250. See post, tit. Escheat as to an alien and denizen inheriting, &c. (b) 1 Bla. Com. 374. (c) Bac. Ab. Aliens B. Molloy, Bk. 3. c. 3. s. 14. 12 W. 3. c. 2. (d) 2 Roll. Abr. 93. 7 Co. 25. b. note 7. See 1 Wooddn. V. L. 373. (ƒ) 1 Rol. Ab. 195. Lane, 58. (g) 2 Rol. Ab. 95. 2 Cro. Jac. 539. 7 Co. 5. b.; 6. 1 Inst. 129. a. 1 Wooddn. V. L. 386, 7. Co. Lit. 129. a. 2 Jones, 12. (h) Foster, Cr. L. 184. (i) See 1 Bla. C. 369, &c. 7 Co. 7. 2 P. Wms. 124. Hal. P. C. 59, 61. (k) See Aylif. Civil Law, b. 2. t. 3. lasting lasting qualities of this allegiance, which constitute its leading features, we may add, that it is not so much due to the country, as to the sovereign; and is due to him in his natural, more than in his political character. (a) Sir W. Blackstone (b) terms natural allegiance a debt of gratitude, and we have already seen that it has been considered to be due, in return for that protection which individuals within the King's dominions enjoy from his Majesty. (c) Local allegiance, which is due from an alien or stranger born, whilst he continues within the dominions of the King, (d) is implied by law, on the principles we have just considered; but is merely of a temporary nature, and ceases immediately the foreigner withdraws himself from this kingdom. (e) Though the duties of the people towards their sovereign are implied by law; yet, as an oath will most probably impress those duties more strongly on the mind, it has been wisely ordained, that it shall be taken in various cases. By the common law the oath of allegiance to the King may be tendered either in the court leet, or sheriff's tourn, to all persons above the age of twelve years, whether natives, aliens, or denizens; and whether they hold lands of the King or not: which oath they are by law obliged to take. (f) The oath of fealty, which, during the feudal tyranny, every tenant or vassal was obliged to take to his landlord, generally contained a clause, "salvú fide et ligeantiá domini regis:" and it was even considered that the lord was liable to be punished if such clause were not inserted. (g) By the oath of allegiance, the person swearing promises to be faithful and bear true allegiance to his Majesty King George. (h) The oath of abjuration, which applies to Ireland, and all the King's dominions, (i) recognizes the right of his Majesty to be King; promises to maintain the succession of the Crown; denies the right of the descendants of the late Pretender, and adjures allegiance to them; it promises and engages, that the person swearing will bear faith and true allegiance to the King, and will defend his Majesty against all trai 66 torous conspiracies and attempts whatsoever against his person, crown or dignity; and disclose and make known to his Majesty and his successors, all treasons and traitorous conspiracies. (a) This oath must by the statute be taken by every person that shall be admitted into any office or shall receive any pay, by reason of any patent or grant from the King or by his authority, or by authority derived from him in England, or in the navy, or in the several Islands of Jersey and Guernsey, or that shall be admitted into any service, office or employment, in the household or family of the King or Queen, or of any of his Majesty's issue, and all ecclesiastical persons, heads or governors, of what denomination soever, and all other members of colleges and halls, within either of the universities, that are or shall be of the foundation, or that do or shall enjoy any exhibition, at the age of eighteen years; and all persons teaching or reading to pupils in either of the universities or elsewhere, and schoolmasters and ushers, and all preachers and teachers of separate congregations, high and chief constables, and every person who shall act as serjeant at law, counsellor at law, barrister, advocate, attorney, solicitor, proctor, clerk or notary, in England. (b) The statute 1 Geo. 1. st. 2. c. 13. s. 10. (c) enacts, that "Two or more Justices of Peace, or any other person specially appointed by the King, by order in the Privy Council, or by Commission under the Great Seal, may administer and tender the oaths thereinbefore appointed to be taken, to any person whom they shall suspect to be dangerous or disaffected to his Majesty or his Government; and if any person to whom the said oaths shall be so tendered, shall neglect or refuse to take the same, such Justices, or other person appointed as aforesaid, tendering the said oaths, shall certify the refusal thereof to the next Quarter Sessions of the County, &c. in which such refusal shall be made, and the said refusal shall be recorded amongst the rolls of that sessions, and shall be from thence. certified by the Clerk of the Peace of such County, &c. into the Court of Chancery or King's Bench, Court of Sessions, or Court of Justiciary in Scotland, there to be recorded amongst the rolls of the said Courts, in a roll or rolls there to |