If ‘dicta’ was irrelevant, they wouldn’t write it. It isn’t binding, but it explains their reasoning and is often used to guide future questions - as has the dicta of WKA.
This is lengthy - but worth the read ...
This was Gray's writing - and he CLEARLY was trying to sway FUTURE opinion with his writing, since he COULD NOT get the majority in Ark to declare Ark natural-born. But, he abused the privilege by lying and obfuscating. From Calvin's Case [1608], he did not cite the following:
"3. Concerning the local obedience it is observable, that as there on the King's part, so there is a (d) local ligeance of the sub this appeareth in 4 Mar. Br. 32. (e) and 3 and 4 Ail and Mar. Dy Frenchman, being in amity with the King, came into England, and subjects of this realm in treason against the King and Queen, a concluded (f) contraligeant' suæ debitum; for he owed to the King that is, so long as he was within the King's protection; which Loa but momentary and uncertain, is yet strong enough to make a nat. he hath issue here, that issue is (g) a natural born subject; a fortiori under the natural and absolute ligeance of the King (which, as it alta ligeantia) as the plaintiff in the case in question was, ought to subject; for localis ligeantia, est ligeantia intima et minima, et maxim? incerta. And it is to be observed, that it is nec cælum, nec solum, neither the soil, but ligeantia and obedientia that make the subject born; for come into the realm, and possess town or fort, and have issue the subject to the King of England, though he be born upon his meridian, for that he was not born under the ligeance of a subject protection of the King."
AND [from Calvin's Case]:
"3. There be regularly (unless it be in special cases) three incidents to a subject born. 1. That the parents be under the actual obedience of the King. 2. That the place of his birth be within the King's dominion. And, 3. The time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom that was born under the ligeance of a King of another kingdom, albeit afterwards one kingdom descend to the King of the other. For the first, it is termed actual obedience, because, though the King f' England hath absolute right to other kingdoms or dominions, as France, Aquitai, Normandy, &c. yet seeing the King is not in actual possession thereof, none born there since the Crown of England was out of actual possession thereof, are subjects to the King of England. 2. The place is observable, but so as many times ligeance or obedience without any place within the King's dominions may make a subject born, but any place within the King's dominions may make a subject born, but any place within the King's dominions without obedience can never produce a natural subject. And therefore if any of the King's ambassadors in foreign nations, have children there of their wives, being English women, by the common laws of England they are natural-born subjects, and yet they are born out-of the King's dominions. But if enemies should come into any of the King's dominions, and surprise any castle or fort, and [7-Coke-18 b] possess the same by hostility, and have issue there, that issue is no subject to the King, though he be born within his dominions, for that he was not born under the King's ligeance or obedience. But the time of his (a) birth is of the essence of a subject born; for he cannot be a subject to the King of England, unless at the time of his birth he was under the ligeance and obedience of the King. And that is the reason that antenati in Scotland (for that at the time of their birth they were under the ligeance and obedience, of another King) are aliens born, in respect of the time of their birth."
Gray then cited from Dicey's "A Digest of the Laws of England With Reference to Conflict of Laws" - consolidating Rule 20 and 22 together:
""British subject" means any person who owes permanent allegiance to the Crown. "Permanent" allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes "temporary" allegiance to the Crown. "Natural-born British subject" means a British subject who has become a British subject at the moment of his birth." "Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality."
"The exceptions afterwards mentioned by Mr. Dicey are only these two:"
"1. Any person who (his father being an alien enemy) is born in a part of the British dominions, which at the time of such [p658] person's birth is in hostile occupation, is an alien."
"2. Any person whose father (being an alien) is at the time of such person's birth an ambassador or other diplomatic agent accredited to the Crown by the Sovereign of a foreign State is (though born within the British dominions) an alien."
Gray continued quoting Dicey:
"The exceptional and unimportant instances in which birth within the British dominions does not of itself confer British nationality are due to the fact that, though at common law nationality or allegiance in substance depended on the place of a person's birth, it in theory at least depended, not upon the locality of a man's birth, but upon his being born within the jurisdiction and allegiance of the king of England; and it might occasionally happen that a person was born within the dominions without being born within the allegiance, or, in other words, under the protection and control of the Crown."
NOW, what does all this mean ???
From Ark, Calvin's Case, and Dicey it IS NOT birth within the realm that determines who is and is not natural-born. It is PERMANENT ALLEGIANCE.
Now, birth within the realm does, GENERALLY SPEAKING, confer natural-born status. And, true, children of aliens were NORMALLY accorded natural-born status. But, that was for two reasons:
1. Aliens WERE NOT free to come and go as they pleased. They had to have leave of the Crown in order to leave the country. So, they usually spent their entire lives in-country.
2. Dual nationality was ALMOST ENTIRELY unknown at the time. Not many nations, other than England at the time, allowed it. So, when Dicey only cited the two exceptions, he listed the two that NORMALLY occurred. If dual nationality were more common, English Law would have clarified the definition of "natural-born" to NOT include dual nationals.
Now, as far as alien children being natural-born [per Common Law], there was no such law. Ark, Dicey, and even Calvin's Case got it wrong.
From a debate in Parliament in the 13th year of Elizabeth I's reign [1571]:
" ... Moreover, statute there is none to maintain this opinion, that saith, every person is English that is born in England, of whatsoever nation his parents be. Then of necessity it must be by custom, if it be law: which having no reason to maintain it, or if it be contrary to reason is no law, have it never so long continuance; but is, as evil, to be abolished, as the laws of the realm do plainly teach us. For they say, customs not grounded on reason, or contrary to reason, cannot prescribe ..."
AND:
" ... And mark, I pray you, now into what absurdities ye shall fall, if this should be admitted for law, that every one born in England should be free in England, of whatsoever nation his parents were. I ask this question, If the child of an alien born in England should be free in England; and by reason his father is a Scot before also in Scotland, (as doubtless by the law he is, wheresoever he be born,) if wars should happen, (as it hath done many times between these two realms,) whose part shall he take? No man can serve two masters at one time, saith the right Lawmaker, and also common reason. If he follow the Scotch part, then he is a traitor to England. If he should with England, then he is a traitor to Scotland. If he will take part with neither, then is he a traitor to both. For every man by the laws of nature, (which is God’s law,) and by the law of every realm, is bound to declare himself a member of one commonwealth: that is, to bestow his life and goods in the defence thereof, when need requires. Therefore I ask, which part it is like that he will take, that is a mongrel of both nations? ..."
And further, if we are to take these sources at their word, they are relying on Common Law. The origin of Common Law is from the time of William I [the Conqueror]. And the second law of William the Conqueror was:
"We decree also that every freeman shall affirm by oath and compact that he will be loyal to king William both within and without England, that he will preserve with him his lands and honor with all fidelity and defend him against his enemies."
Now, when William first conquered England, this would have been necessary for the British to submit to William. However, children born after William assumed the Crown ALSO had to take the oath when they reached adulthood. If birth within the realm conferred an exclusive allegiance to the sovreign - there WOULD NOT have been a need for these children to swear the oath.
So, it is exclusive allegiance that determines whether one is natural-born. And, that allegiance IS NOT automatically conferred upon birth within the realm [per Common Law].