matters shall be performed as therein pointed out, the king is not, in many instances, prevented from adopting a different course in pursuance of his prerogative.' NEMO PATRIAM IN QUA NATUS EST EXUERE NEC LIGEANTIÆ (Co. Lit. 129, a.) A man cannot abjure his native country nor the allegiance which he owes to his sovereign. Allegiance is defined, by Sir E. Coke, to be "a true and faithful obedience of the subject due to his sovereign.' And in the words of the late Mr. Justice Story, "Allegiance is nothing more [*53] than the tie or duty of obedience of a subject to his sovereign, under whose protection he is; and allegiance by birth is that which arises from being born within the dominions, and under the protection, of a particular sovereign. Two things usually occur to create citizenship: first, birth, locally within the dominions of the sovereign; secondly, birth, within the protection and obedience, or, in other words, within the legiance of the sovereign. That is, the party must be born within a place where the sovereign is, at the time, in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign as such de facto. There are some exceptions, which are founded upon peculiar reasons, and which indeed illustrate and confirm the general doctrine."3 Allegiance is the tie which binds the subject to the Crown, in return for that protection which the Crown affords to the subject, and is distinguished by the law into two sorts or species, the one natural, the other local. Natural allegiance is such as is due from all men born within the dominions of the Crown, immediately upon their birth; and to this species of allegiance it is that the above maxim, which is taken in its full extent by the English laws, is applicable. It cannot be forfeited, cancelled, or altered by any change of time, place, or circumstance, nor by anything but the united concurrence of the legislature. It is a principle of universal law that the natural-born subject of one prince cannot, by any act of his own, not even by swearing allegiance to another, put off or discharge his 4 1 Chit. Pre. Crown, 383, 384. 33 Peters's R. (U. S.) 155. 2 Calvin's case, 7 Rep. 5. 4 Foster, Cr. Law, 184. 1 natural allegiance to the former, *origine propriâ neminem posse voluntate suâ eximi manifestum est, for this natural [*54] 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; and the reason is, that the very existence, or 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 has rendered perpetual and unalienable.3 Hence, although a British subject may, in certain cases, forfeit his rights as such by adhering to a foreign power, he yet remains always liable to his duties, and if in the course of such employment, he violates the laws of his native country, he will be exposed to punishment when he comes within reach of her tribunals. The tie of natural allegiance may, however, be severed with the concurrence of the legislature—for instance, upon the recognition of the United States of America, as free, sovereign, and independent states, it was decided that the natural-born subjects of the English Crown adhering to the United States ceased to be subjects of the Crown of England, and became aliens and incapable of inheriting lands in England." It remains to add, that local allegiance is such as is due *from an alien or stranger born whilst he continues within the do- [*55] minion and protection of the Crown; but it is merely of a temporary nature, and ceases the instant such stranger transfers himself from this kingdom to another. For, 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; the rule being that, protectio trahit subjectionem et sub1 Cod. 10, 38, 4. 2 See 1 Bla. Com. c. 10; Foster, Cr. Law, 184; Hale, P. C. 68, judgment, Wilson v. Marryat, 8 T. R. 45; S. C. affirmed in error, 1 B. & P. 430; Jackson v. White, 20 Johnson, R. (U. S.) 318; Shanks v. Dupont, 3 Peters, R. (U. S.) 246; Ingliss v. Trustees of the Sailors' Snug Harbour, Id. 122. But see Vattel, b. 1, c. 19, ss. 220-228. 3 Chit. Pre. Crown, 15. 42 Steph. Com. 425. 5 Doe d. Thomas v. Acklam, 2 B. & C. 779; Doe d. Stansbury v. Arkwright, 5 C. & P. 575. In Blight's Lessee v. Rochester, 7 Wheaton's R. (U. S.) 535, it was held that British subjects, born before the Revolution, are equally incapable with those born after, of inheriting or transmitting the inheritance of lands in the United States. 6 1 Bla. Com. 370; Chit. Pre. Crown, 16. See Wolff v. Oxholm, 6 M. & S. 92; Rex v. Johnson, 6 East, 583. jectio protectionem1-a maxim which has obtained in every age and every country, and extends not only to those who are born within the king's dominions, but also to foreigners who live within them, even though their sovereign is at war with this country, for they equally enjoy the protection of the Crown.2 [*56] *CHAPTER III. I. THE JUDICIAL OFFICE. THE maxims contained in this section exhibit very briefly the more important of those duties which attach to individuals filling judicial offices, and discharging the various functions appertaining thereto; it would have been inconsistent with the plan and limits of this volume to consider them at greater length, and would not, it is believed, have added materially to its practical utility.3 BONI JUDICIS EST AMPLIARE JURISDICTIONEM. It is the duty of a judge, when requisite, to extend the limits of his jurisdiction. "The maxim of the English law is to amplify its remedies, and, without usurping jurisdiction, to apply its rules, to the advancement of substantial justice;" and, accordingly, the principle upon which our courts of law act is to enforce the performance of contracts not injurious to society, and to administer justice to a party who can [*57] make *that justice appear, by enlarging the legal remedy, if necessary, in order to attain the justice of the case; for the common law of the land is the birthright of the subject, and bonus judex secundum æquum et bonum judicat, et æquitatem stricto juri 1 Calvin's case, 7 Rep. 5; Craw v. Ramsay, Vaughan, R. 279; Co. Litt. 65, a. 2 Chit. Pre. Crown, 12, 13. As to the important distinctions between a naturalborn subject and an alien, see 2 Steph. Com. 426. 3 As to the authority of, and necessity of adhering to, judicial decisions, refer to Ram's Treatise on the Science of Legal Judgment, chaps. iii. v. xiv. Per Lord Abinger, C. B., Russell v. Smyth, 9 M. & W. 818; see also per Lord Mansfield, C. J., 4 Burr. 2239. præfert. "I commend the judge," observes Lord Hobart, "who seems fine and ingenious, so it tend to right and equity; and I condemn them who, either out of pleasure to show a subtle wit, will destroy, or out of incuriousness or negligence will not labour to support, the act of the party by the art or act of the law."2 The action for money had and received may be mentioned as peculiarly illustrative of the principle above set forth; for the very nature and foundation of this action is that the plaintiff is in conscience entitled to the money sought to be recovered; and it has been observed, that this kind of equitable action to recover back money which ought not in justice to be kept is very beneficial, and, therefore, much encouraged. It lies only for money which, ex æquo et bono, the defendant ought to refund.3 "The ground," observed Tindal, C. J., in a recent case, "upon which an action of this description is maintainable, is that the money received by the defendants is money which, ex æquo et bono, ought to be paid over to the plaintiff. Such is the principle upon which the action has rested from the time of Lord Mansfield. When money has been received without consideration, or upon a consideration that has failed, the recipient holds it ex æquo et bono for the plaintiff." The power of directing an amendment of the record, *which [*58] a judge at Nisi Prius in certain cases possesses, may likewise be instanced as one which is confided to him by the legislature, in order that it may be applied "to the advancement of substantial justice." The general maxim under consideration is also peculiarly applicable with reference to the jurisdiction of a judge at chambers, and 1 Per Buller, J., 4 T. R. 344. See Ashmole v. Wainwright, 2 Q. B. 837. 2 Hobart, 125. 3 Per Lord Mansfield, C. J., Moses v. Macfarlane, 2 Bur. 1012. 4 Edwards v. Bates, 8 Scott, N. R. 414. 5 See 3 & 4 Will. 4, c. 42, s. 23. “The only guide which the judge at Nisi Prius can have as to making an amendment, is that pointed out by the act, viz., whether the amendment is or is not to correct a misstatement not material to the interests of the case, and by which the opposite party cannot have been prejudiced;" per Rolfe, B., Cooke v. Stratford, 13 M. & W. 387. See also Culverwell v. Nugee, 15 M. & W. 559; Christie v. Bell, 16 L. J., Exch. 179, where an amendment of writ was allowed to save the Statute of Limitations; Moore v. Magan, 16 M. & W. 95; Campbell v. Smart, 11 Jur. 1018. 6 "I think the jurisdiction which judges have of setting aside demurrers as frivolous, is productive of the best effects, and prevents vexatious and expensive litigation," per Lord Denman, C. J., 16 L. J., Q. B., 16. to the many important and arduous duties which are there discharged by him. The proceeding by application to a judge at chambers, has indeed been devised and adopted by the courts under the sanction of the legislature, for the purpose of preventing the delay, expense, and inconvenience which must inevitably ensue if applications to the courts were in all cases, and under all circumstances, indispensably necessary. A judge in chambers, indeed, acts under the delegated authority of the court, and his jurisdiction is essentially different from that of a judge sitting at Nisi Prius; for in the latter case, the judge, it has been said, has no equitable jurisdiction, and can only look to the strict legal rights of the parties on record, whereas in the former, the judge has a wider field for the exercise of his discretion, and in some instances has a supreme jurisdiction, which is not subject to the review of the court in banc.1 *In a recent case, where it was held that a judge at cham[*59] bers has jurisdiction to fix the amount of costs to be paid as the condition of making an order, the maxim to which we have here directed our attention, was expressly applied. "As to the power of the judge to tax costs," remarked Vaughan, J., "if he is willing to do it, and can save expense, it is clear that what the officer of the court may do, the judge may do, and boni judicis est ampliare jurisdictionem, i. e. justitiam."2 Again, in construing an act of Parliament, it is a settled rule of construction, that cases out of a letter of a statute, yet within the same mischief or cause of the making of the same, shall be within the remedy thereby provided ; and, accordingly, it is laid down, that for the sure and true interpretation of all statutes (be they penal or beneficial, restrictive or enlarging of the common law), four things must be considered: 1st, what was the common law before the making of the act; 2dly, what was the mischief for which the common law did not provide; 3dly, what remedy has been appointed by the legislature for such mischief; and, 4thly, the true reason of the remedy; and then the duty of the judges is to put such a construction upon the statute, as shall suppress the mischief, and advance the remedy 1 Bagley, Ch. Pr., 1, 2, 4. Per Lord Ellenborough, C. J., Alner v. George, 1 Camp. 393. 2 Collins v. Aron, 4 Bing. N. C. 233, R. 229, and cases cited Id. 231, n. (44). justitiam, not jurisdictionem, as it has been often cited," per Lord Mansfield, C. J., 285. See Clement v. Weaver, 4 Scott, N. "The true text is boni judicis est ampliare 1 Burr. 304. 3 Co. Litt. 24, b; Jenk. Cent. 58, 60, 226; 3 Bla. Com. 430, 431. |