An
allegiance is a duty of fidelity said to be
owed by a subject or a
citizen to his/her
state or
sovereign.
Etymology
Mid. English
ligeaunce; med. Latin
ligeantia("a
liegance"); the al- was probably added through confusion with
another legal term,
allegeance, an
allegation;
the
French allegeance comes
from the English; the word is formed from "liege," of which the
derivation is given under that heading; the connection with
Latin ligare, to bind, is
erroneous.
Usage
The term
allegiance is often used by English legal
commentators in a larger sense, divided by them into natural and
local, the latter applying to the deference which even a foreigner
must pay to the institutions of the country in which he happens to
live; but it is in its proper sense. In which it indicates national
character and the subjection due to that character, that the word
is important.
In that sense it represents the
feudal
liege homage, which could be due only
to one lord, while simple
homage might be due
to every lord under, whom the person in question held land.
United Kingdom
The
English doctrine, which was at one time adopted in the United States
, asserted that allegiance was indelible: "Nemo
potest exuere patriam". Accordingly, as the law stood before
1870, every person who by birth or
naturalization satisfied the conditions set
forth, though he should be removed in infancy to another country
where his family resided, owed an allegiance to the British crown
which he could never resign or lose, except by act of parliament or
by the recognition of the independence or the cession of the
portion of British territory in which he resided.
Allegiance is the tie which binds the subject to the
Sovereign in return for that protection which the
Sovereign affords the subject. It was the mutual bond and
obligation between monarch and subjects, whereby subjects are
called his liege subjects, because they are bound to obey and serve
him; and he is called their liege lord, because he should maintain
and defend them (
Ex parte Anderson (1861) 3 El & El
487; 121 ER 525;
China Navigation Co v Attorney-General
(1932) 48 TLR 375;
Attorney-General v Nissan [1969] 1 All
ER 629;
Oppenheimer v Cattermole [1972] 3 All ER 1106).
The duty of the Crown towards its subjects is to govern and
protect. The reciprocal duty of the subject towards the Crown is
that of allegiance.
At common law allegiance is a true and faithful obedience of the
subject due to his Sovereign. As the subject owes to his king his
true and faithful allegiance and obedience, so the Sovereign is to
govern and protect his subjects,
regere et protegere subdititos
suos, so as between the Sovereign and subject there is:
- duplex et reciprocum ligamen; quia sicut subditus regi
tenetur ad obedientiam, ita rex subdito tenetur ad protectionem;
merito igitur ligeantia dicitur a ligando, quia continet in se
duplex ligamen (Calvin's Case (1608) 7 Co Rep 1a;
Jenk 306; 2 State Tr 559; 77 ER 377).
Natural allegiance and obedience is an incident inseparable to
every subject, for as soon as the Sovereign is born, they owe
allegiance and obedience (
Ex parte Anderson (1861) 3 El
& El 487; 121 ER 525). Natural-born subjects owe allegiance
wherever they may be. Where territory is occupied in the course of
hostilities by an enemy's force, even if the annexation of the
occupied country is proclaimed by the enemy, there can be no change
of allegiance during the progress of hostilities on the part of a
citizen of the occupied country (
R v Vermaak (1900) 21 NLR
204 (South Africa)).
Allegiance is owed both to the Sovereign as a natural person and to
the Sovereign in the political capacity (
Re Stepney Election
Petition, Isaacson v Durant (1886) 17 QBD 54 (per
Lord Coleridge CJ)).
Attachment to the person of the reigning Sovereign is not
sufficient. Loyalty requires affection also to the office of the
Sovereign, attachment to royalty, attachment to the law and to the
constitution of the realm, and he who would, by force or by fraud,
endeavour to prostrate that law and constitution, though he may
retain his affection for its head, can boast but an imperfect and
spurious species of loyalty (
R v O'Connell (1844) 7 ILR
261).
There were four kinds of allegiances (
Rittson v Stordy
(1855) 3 Sm & G 230;
De Geer v Stone (1882) 22 Ch D
243;
Isaacson v Durant (1886) 54 LT 684;
Gibson, Gavin
v Gibson [1913] 3 KB 379;
Joyce v DPP [1946] AC 347;
Collingwood v Pace (1661) O Bridg 410;
Lane v
Bennett (1836) 1 M & W 70;
Lyons Corp v East India
Co (1836) 1 Moo PCC 175;
Birtwhistle v Vardill (1840)
7 Cl & Fin 895;
R v Lopez, R v Sattler (1858) Dears
& B 525; Ex p Brown (1864) 5 B & S 280);
(a)
Ligeantia naturalis, absoluta, pura et indefinita, and
this originally is due by nature and birthright, and is called
alta ligeantia, and those that owe this are called
subditus natus;
(b)
Ligeantia acquisita, not by nature but by acquisition
or denization, being called a denizen, or rather denizon, because
they are
subditus datus;
(c)
Ligeantia localis, by operation of law, when a
friendly alien enters the country, because so long as they are in
the country they are within the Sovereign's protection, therefore
they owe the Sovereign a local obedience or allegiance (
R v
Cowle (1759) 2 Burr 834;
Low v Routledge (1865) 1 Ch
App 42;
Re Johnson, Roberts v Attorney-General [1903] 1 Ch
821;
Tingley v Muller [1917] 2 Ch 144;
Rodriguez v
Speyer [1919] AC 59;
Johnstone v Pedlar [1921] 2 AC
262;
R v Tucker (1694) Show Parl Cas 186;
R v
Keyn (1876) 2 Ex D 63;
Re Stepney Election Petn, Isaacson
v Durant (1886) 17 QBD 54);
(d) A legal obedience, where a particular law requires the taking
of an oath of allegiance by subject or alien alike.
Natural allegiance was acquired by birth within the Sovereign's
dominions (except for the issue of diplomats or of invading forces
or of an alien in enemy occupied territory). The natural allegiance
and obedience is an incident inseparable to every subject, for as
soon as they are born they owe by birthright allegiance and
obedience to the Sovereign (
Ex p. Anderson (1861)
3 E & E 487). A natural-born subject owes allegiance wherever
they may be, so that where territory is occupied in the course of
hostilities by an enemy's force, even if the annexation of the
occupied country is proclaimed by the enemy, there can be no change
of allegiance during the progress of hostilities on the part of a
citizen of the occupied country (
R v Vermaak (1900) 21 NLR
204 (South Africa)).
Acquired allegiance was acquired by naturalisation or denization.
Denization, or
ligeantia acquisita, appears to be
threefold (
Thomas v Sorrel (1673) 3 Keb 143);
- (a) absolute, as the common denization, without any limitation
or restraint;
- (b) limited, as when the Sovereign grants letters of denization
to an alien, and the alien's male heirs, or to an alien for the
term of their life;
- (c) It may be granted upon condition, cujus est dare, ejus
est disponere, and this denization of an alien may come about
three ways: by Parliament; by letters patent, which was the usual
manner; and by conquest.
Local allegiance was due by an alien while in the protection of the
Crown. All friendly resident aliens incurred all the obligations of
subjects (
The Angelique (1801) 3 Ch Rob App 7). An alien,
coming into a colony also became, temporarily a subject of the
Crown, and acquired rights both within and beyond the colony, and
these latter rights could not be affected by the laws of that
colony (
Routledge v Low (1868) LR 3 HL 100; 37 LJ Ch 454;
18 LT 874; 16 WR 1081, HL;
Reid v Maxwell (1886) 2 TLR
790;
Falcon v Famous Players Film Co [1926] 2 KB
474).
A resident alien owed allegiance even when the protection of the
Crown was withdrawn owing to the occupation of an enemy, because
the absence of the Crown's protection was temporary and involuntary
(
de Jager v Attorney-Geneneral of Natal [1907] AC
326).
Legal allegiance was due when an alien took an oath of allegiance
required for a particular office under the Crown.
By the
Naturalization Act
1870, it was made possible for British subjects to renounce
their nationality and allegiance, and the ways in which that
nationality is lost are defined. So British subjects voluntarily
naturalized in a foreign state are deemed aliens from the time of
such naturalization, unless, in the case of persons naturalized
before the passing of the act, they have declared their desire to
remain British subjects within two years from the passing of the
act. Persons who from having been born within British territory are
British subjects, but who at birth became under the law of any
foreign state subjects of such state, and also persons who though
born abroad are British subjects by reason of parentage, may by
declarations of alienage get rid of British nationality.
Emigration to an uncivilized country leaves
British nationality unaffected: indeed the right claimed by all
states to follow with their authority their subjects so emigrating
is one of the usual and recognized means of
colonial expansion.
United States
The doctrine that no man can cast off his native allegiance without
the consent of his sovereign was early abandoned in the United
States, and on
July 27,
1868, the day before the
Fourteenth
Amendment was adopted,
U.S. Congress declared in the
preamble of the
Expatriation Act
that "the right of expatriation is a natural and inherent right of
all people, indispensable to the enjoyment of the rights of life,
liberty and the pursuit of happiness," and (Section I) one of "the
fundamental principles of this government" (
United States Revised
Statutes, sec. 1999). Every natural-born citizen of a foreign
state who also an American citizen and every natural-born American
citizen who is a citizen of a foreign land owes a double
allegiance, one to the United States, and one to his homeland (in
the event of an immigrant becoming a citizen of the US), or to his
adopted land (in the event of an emigrant natural born citizen of
the US becoming a citizen of another nation). If these allegiances
come into conflict, he or she may be guilty of treason against one
or both. If the demands of these two sovereigns upon his duty of
allegiance come into conflict, those of the United States have the
paramount authority in American law; likewise, those of the foreign
land have paramount authority in their legal system. In such a
situation, it may be incumbent on the individual to
abjure one of his citizenships to avoid
possibly being forced into situations where countervailing duties
are required of him, such as might occur in the event of war.
Oath of allegiance
The oath of allegiance is an
oath of fidelity
to the sovereign taken by all persons holding important public
office and as a condition of naturalization. By ancient common law
it might be required of all persons above the age of twelve, and it
was repeatedly used as a test for the disaffected.
In England
it was first
imposed by statute in the reign of Elizabeth I of England (1558) and its form has more than once been altered
since. Up to the time of the revolution the promise was, "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." This was thought to favour the doctrine
of absolute non-resistance, and accordingly the convention
parliament enacted the form that has been in use since that time -
"I do sincerely promise and swear that I will be faithful and bear
true allegiance to His Majesty ..."
In Islam
The
Islamic word for allegiance is Bay'at
(Arabic: بيعت), which means "taking hand". The practice is
sanctioned in the
Qur'an by Surah 48:10:
"Verily, those who give thee their allegiance, they give it but to
Allah Himself".
The word is used for the
oath of allegiance to
an
emir. It is also used for the initiation
ceremony specific to many
Sufi orders.
See also
References
- See also Salmond on "Citizenship and Allegiance," in the
Law Quarterly Review (July 1901, January 1902).
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