Rule when applicable. fraud (y); and, though not named, he is bound by the general words of statutes which tend to perform the will of a founder or donor(z). The stat. 11 Geo. 4 & 1 Will. 4, c. 70, intitled "An Act for the more effectual Administration of Justice in England and Wales," in the preamble, declares its intention to be to make more effectual provision for the administration of justice in England and Wales, and by the 8th section enacts, "that writs of error upon any judgment given by any of the said courts (Queen's Bench, Common Pleas, and Exchequer) shall hereafter be made returnable only before the judges or judges and barons, as the case may be, of the other two courts in the Exchequer Chamber." It was held, that this statute extends to a judgment given against a defendant on an indictment in the Queen's Bench; and it was observed, that, in the case of an act of Parliament passed expressly for the further advancement of justice, and in its particular enactment using terms so comprehensive as to include all cases brought up by writ of error, there was not, in the opinion of the Court, either authority or principle for implying the exception of criminal cases upon the ground that the king, as the public prosecutor, is not expressly mentioned in the act, and that, by such a construction of the act, its object and intent could best be attained (a). But, as above stated, acts of Parliament which would divest the king of any of his prerogatives do not, in general, extend to, or bind the king, unless there be express words to that effect; therefore, the statutes of limitation, bank (y) Chit. Pre. Crown, 382; 2 Dwarr. Stats. 668. (2) Vin. Abr. "Statutes," E. 10, pl. 11; 5 Rep. 146; Willion v. Berk ley, Plowd. 236; 2 Dwarr. Stats. 669. (a) Judgment, Rex v. Wright, 1 A. & E. 447. ruptcy, insolvency, and set-off are irrelevant in the case of the king, nor does the Statute of Frauds relate to him (b). Also by mere indifferent statutes, directing that certain measures 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 (c). NEMO PATRIAM IN QUA NATUS EST EXUERE NEC LIGEANTIÆ DEBITUM EJURARE POSSIT. (Co. Litt. 129. a.)—A man cannot abjure his native country nor the allegiance which he owes to his sovereign. Allegiance is the tie which binds the subject to the Crown, in return for that protection which the Crown affords the subject; it 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 (d). 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 natural allegiance to the former, for this natural allegiance was intrinsic and primitive, and antecedent to the other, and cannot be devested without the concurrent act of that prince (b) Chit. Pre. Crown, 366, 383; Rex v. Copland, Hughes, 204, 230; Vin. Abr. "Statutes," (E. 10); Flather's Arch. Bank., 9th ed., 179. D to whom it was first due (e); 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 (f). 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 (g). The tie of natural allegiance may, however, be severed by 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 (h). It remains to add that local allegiance is such as is due from an alien or stranger-born whilst he continues within the dominion 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, But see (e) See 1 Bla. Com. c. 10; Foster, Cr. Law, 184; judgment, Wilson v. Marryat, 8 T. R. 45. Vattel, b. 1, c. 19, ss. 220-228. (f) Chit. Pre. Crown, 15. (g) 2 Steph. Com. 425. (h) Doe d. Thomas v. Acklam, 2 B. & C. 779; Doe d. Stansbury v. Arkwright, 5 C. & P. 575. See Bright's Lessee v. Rochester, (7 Wheaton's R. in the Supreme Court, U. S.), where it was held, that the natives of Great Britain are aliens, and incapable of inheriting land in the United States. in point of time, to the duration of such his residence, and, in point of locality, to the dominions of the British Empire (i); the rule being, that protectio trahit subjectionem et subjectio protectionem (k)-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 (1). (i) 1 Bla. Com. 370; Chit. Pre. Crown, 16. See Wolff v. Oxholm, 6 M. & S. 92; Rex v. Johnson, 6 East, 583. (k) Calvin's case, 7 Rep. 5; Craw v. Ramsay, Vaughan, R. 279; Co. Litt. 65. a. (1) Chit. Pre. Crown, 12, 13. As to the important distinctions between a natural-born subject and an alien, see 2 Steph. Com. 426. 36 CHAPTER II. SI. THE JUDICIAL OFFICE. THE maxims contained in this division have been selected in order to exhibit very briefly the more important duties of those filling the judicial office, and discharging the important 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 to its practical utility (a). Chanc. BONI JUDICIS EST AMPLIARE JURISDICTIONEM. Prec. 329).—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 (b). The judges are entrusted by the constitution with a portion of jurisdiction, defined and marked out by the common law or acts of Parliament (c); and it is a principle consonant to the spirit of that constitution, and which may con (a) As to the authority of, and adherence to judicial decisions, refer to Ram's Treatise on the Science of Legal Judgment, chaps. iii., v., and xiv. See also 2 Dwarris on Statutes, pp. 780-797, which treats of the Boundaries of Legislation and of Judicial In terpretation, and the remarks of Mr. Amos, in his edition of Fortescue, pp. 198-200. (b) Per Lord Abinger, C. B., Russell v. Smyth, 9 M. & W. 818. (c) R. v. Almon, Wilmot's Notes, 256. |