Chap. 10.] ALIENS, DENIZENS, OR NATIVES. 366
CHAPTER X.
OF THE PEOPLE, WHETHER ALIENS, DENIZENS OR NATIVES.
HAVING, in the eight preceding chapters, treated of persons as they stand in
the public relations of -magistrates, I now proceed to consider such persons as fall
under the denomination of the people. And herein all the inferior and subordi-
nate magistrates treated of in the last chapter are included.
The first and most obvious division of the people is into aliens and natural-
born subjects. (1) Natural-born subjects are such as are born within the domin-
ions of the crown of England; that is, within the ligeance, or, as it is generally
called, the allegiance of the king; and aliens, such as are born out of it.
Allegiance is the tie, or ligamen, which binds the subject to the king, in return
for that protection which the king affords the subject. The thing itself, or sub-
stantial part of it, is founded in reason and the nature of government; the
name and the form are derived to us from our Gothic ancestors. Under the
feudal system, every owner of lands held them in subjection to some superior or
lord, from whom or whose ancestors the tenant or vassel had received them;
and there was a mutual trust or confidence subsisting between the lord and
vassal, that the lord should protect the vassal in the enjoyment of the territory
he had granted him, and, on the *other hand, that the vassal should be r +gg~ -j
faithful to the lord, and defend him against all his enemies. This obli- <- -"
gation on the part of the vassal was calledfidelitas, or fealty; and an oath of
fealty was required, by the feudal law, to be taken by all tenants to their land-
lord, which is couched in almost the same terms as our ancient oath of alle-
giance ; («) except that in the usual oath of fealty there was frequently a saving
or exception of the faith due to a superior lord by name, under whom the land-
lord himself was perhaps only a tenant or vassal. But when the acknowledg-
ment was made to the absolute superior himself, who was vassal to no man, it
was no longer called the oath of fealty, but the oath of allegiance; and therein
the tenant swore to bear faith to his sovereign lord, in opposition to all men,
without any saving or exception: "contra omnes homines fidelitatem fecit." (b)
Land held by this exalted species of fealty was called feudum ligium, a liege fee;
the vassals homines ligii, or liege men; and the sovereign their dominus ligius,
or liege lord. And when sovereign princes did homage to each other, for lands
held under their respective sovereignties, a distinction was always made between
simple homage, which was only an acknowledgment of tenure, (c) and liege
(a) 2 Fend, r,, 6, 7. Ch) 2 Fend. 99. (c) 7 Bep. Calvin's case, 7.
(\) [Natural-born subjects are persons bom within the allegiance, power, or protection of
the crown of England, which terms embrace not only persons born within the dominions of
his majesty, or ot his homagers and the children of subjects in the service of the king abroad,
and the king's children, and the heirs of the crown, aU of whom are natural-born subjects
b}' the common law; but also under various statutes, all persona, though born abroad, whose
father and grandfather by the father's side were natural-born subjects at common law, unless
the father or paternal grandfather, through whom the claim is made, was at the time of the
birth of such children liable, in case of his return into this country, to the penalties of treason
or felouv, or was in the actual service of any foreign prince then at enmity with the crown of
England.
Persons born in transmarine territories belonging to the king of England, in any other right
than that of the English crown, as for instance, the Hanoverians, and persons doing service to
the king, as officers of such transmarine territories, are not natural-born subjects. See
Vaughan, 286.
A child born put of the allegiance of the crown of England is not entitled to be deemed a
natural-born subject, unless the father be at the time of the birth of the child not a subject
only, but a subject by birth. Therefore, children born in the United States of America, since
the recognition of their independence, of parents born there before that time, and continuing
to reside there afterwards, are aliens, and cannot inherit lands here. 2 Bar. and Ores. 779; 4
D. and It. 394, S. C.
!431 Generated for asbigham (University of Michigan) on 2013-04-29 18:51 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google 367 ALIENS, DENIZENS, OR NATIVES. [Book I.
homage, which included the fealty before mentioned, and the services consequent
upon it. Thus when our Edward III, in 1329, did homage to Philip \ I, of
France, for his ducal dominions on that continent, it was warmly disputed of
what species the homage was to be, whether liege or simple homage, (d) But
with us in England, it becoming a settled principle of tenure that all lands in
the kingdom are holden of the king as their sovereign and lord paramount, no
oath but that of fealty could ever be taken to inferior lords, and the oath of
allegiance was necessarily confined to the person of the king alone. By an
easy analogy, the term of allegiance was soon brought to signify all other
engagements which are due from subjects to their prince, as well as those duties
which were simply and merely territorial. And the oath of allegiance, as admin-
f *368 1 i^red f°r *upwards of six hundred years, (e) contained a promise " to
L *' ' -1 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 dam-
age intended him, without defending him therefrom." Upon which Sir Mat-
thew Hale (/) makes this remark, that it was short and plain, not entangled
with long or intricate causes or declarations, and yet is comprehensive of the
whole duty from the subject to his sovereign. But at the revolution, the terms
of this oath being thought perhaps to favour too much the notion of non-
resistance, the present form was introduced by the convention parliament, which
is more general and indeterminate than the former ; the subject only promising
" that he will be faithful and bear true allegiance to the king," without mention-
ing " his heirs," or specifying in the least wherein that allegiance consists. The
oath of supremacy is principally calculated as a renunciation of the pope'spre-
tended authority; and the oath of abjuration, introduced in the reign of King
William, (g) very amply supplies the loose and general texture of the oath of
allegiance; it recognizing the right of his majesty, derived under the act of
settlement ; engaging to support him to the utmost of the juror's power; prom-
ising to disclose all traitorous conspiracies against him ; and expressly renounc-
ing any claim of the descendants of the late pretender, in as clear and explicit
terms as the English language can furnish. This oath must be taken by all per-
sons in any office, trust, or employment ; and may be tendered by two justices
of the peace to any person whom they shall suspect of disaffection, (h) And the
oath of allegiance may be tendered (t ) to all persons above the age of twelve
years, whether natives, denizens, or aliens, either in the court-leet of the manor,
or in the sheriff's tourn, which is the court-leet of the county. (2)
But, besides these express engagements, the law also holds that there is an
T *369 1 original, and virtual allegiance, *owing from every subject to
L J his sovereign, antecedently to any express promise ; and although the
subject never swore any faith or allegiance in form. For as the king, by the
very descent of the crown, is fully invested with all the rights, and bound to all
(d) 2 Cart. 401. Hod. Un. Hist, xzlll. 420.
(t) Mirror, c. 3, ( 35. Fleta, 3, 18. Britton, o. 29. 7 Rep. Calvin's case, 6. (f) \ Hal. P. C. 83.
( (2) As regards these oaths great changes have from time to time been made by statute, •which it wifi not be necessary for ns to follow here. The subject is now covered by statute 31 and 32 Tic. c. 72, under which no person can be "required or authorized to take the oaths of allegiance, supremacy and abjuration, or any of such oaths, or any oath substituted for such oaths or any of them," except the persons indicated in that act, in the Clerical Subscrip- tion Act, 1865," (as to which see neit chapter) and the " Parliamentary Oaths Act, 1866." The general purpose of the statute 31 and 32 Vic. c. 72, as well as of other statutes which preceded it, was to relieve Roman Catholics and other persons having^ religions scruples which pre- cluded their taking the oaths formerly required, from the disabilities under which they lay in consequence, and to enable them to serve the state in positions of honor and responsibility in common with their fellow subjects. The oath of allegiance now required is simply that the juror "will be faithful and bear true allegiance to her majesty Queen Victoria, her heirs and successor* according to law ; " and the oath required of officers generally is, that they will well and truly serve her majesty in their respective offices ; while judicial officers are to add to the same a further pledge, that they " will do right to all manner of people after the laws and usages of this realm, without fear or favor, affection or ill will." 232 Generated for asbigham (University of Michigan) on 2013-04-29 18:51 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google Chap. 10.] ALIENS, DENIZENS, OR N ATIYES. 369 Chap. 10.] ALIENS, DENIZENS, OB NATIVES. 369 the duties, of sovereignty, before his coronation; so the subject is bound to his the duties, of sovereignty, before his coronation; so the subject is bound to his prince by an intrinsic allegiance, before the superinduction of those outward prince by an intrinsic allegiance, before the superinduction of those outward bonds of oath, homage, and fealty; which were only instituted to remind the bonds of oath, homage, and fealty ; which were only instituted to remind the subject of this his previous duty, and for the better securing its performance, (k) subject of this his previous duty, and for the better securing its performance. (k) The formal profession, therefore, or oath of subjection, is nothing more than a The formal profession, therefore, or oath of subjection, is nothing more than a. declaration in words of what was before implied in law. Which occasions Sir declaration in words of what was before implied in law. Which occasions Sir Edward Coke very justly to observe, (1) that " all subjects are equally bounden to their allegiance as if they had taken the oath ; because it is written by the Edward Coke very justly to observe, (l) that "all subjects are equally bounden finger of the law in their hearts, and the taking of the corporal oath is but an to their allegiance as if they had taken the oath ; because it is written by the outward declaration of the same." The sanction of an oath, it is true, in case of finger of the law in their hearts, and the taking of the corporal oath is but an violation of duty, makes the guilt still more accumulated, by superadding per- outward declaration of the same." The sanction of an oath, it is true, in case of jury to treason: but it does not increase the civil obligation to loyalty; it only violation of duty, makes the guilt still more accumulated, by superadding per strengthens the social tie by uniting it with that of religion. jury to treason : but it does not increase the civil obligation to loyalty; it only Allegiance, both express and implied, is however distinguished by the law into strengthens the social tie by uniting it with that of reli[Jion. two sorts or species, the one natural, the other local; the former being also per- Allegiance, both express and implied, is however distmguished by the law into petual, the latter temporary. Natural allegiance is such as is due from all men two sorts or species, the one natural, the other local ; the former being also per born within the king's dominions immediately upon their birth, (m) For, petual, the latter temporary. N a.tural allegiance is such as is due from all men immediately upon their birth, they are under the king's protection: at a time, born within the king's dominions immediately uPon their birth. (m) For, too, when (during their infancy) they are incapable of protecting themselves. immediatel_Y: u~on their birth, they are under the kmg's protection : at a time, Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, too, when (durmg their infancy) they a.re incapable of protecting themselves. cancelled, or altered by any change of time, place, or circumstance, nor by any Natural allegiance is therefore a debt of gratitude; which cannot be forfeited, thing but the united concurrence of the legislature, (n) An Englishman who cancelled, or altered by any change of time, place, or circumstance, nor by any removes to France, or to China, owes the same allegiance *to the king r *„„,. -• of England there as at home, and twenty years hence as well as now. <- * thing but the united concurrence of the legislature. (n) An Englishman who For it is a principal of universal law, (o) that the natural-born subject of one removes to France, or to Chinu., owes the same allegiance *to the king [ ,..370 ] prince cannot by any act of his own, no, not by swearing allegiance to another, of England there as at home, and twenty years hence as well as now. put off or discharge his natural allegiance to the former : for this natural alle- For it is a principal of universal law, (o) that the natural-born subject of one giance was intrinsic, and primitive, and antecedent to the other; and cannot be prince cannot by any act of his own, no, not by swearing allegiance to another, divested without the concurrent act of that prince to whom it was first due. (3) put off or discharge his natural allegiance to the former: for this natural alle Indeed the natural-born subject of one prince, to whom he owes allegiance, may giance was intrinsic, and primitive, and antecedent to the other; and cannot be be entangled by subjecting himself absolutely to another; but it is nis own act divested without the concurrent act of that prince to whom it was first due. (3) that brings him into these straits and difficulties, of owing service to two mas- Indeed the natural-born subject of one prince, t-0 whom he owes allegiance, may ters ; and it is unreasonable that, by such voluntary act of nis own, he should be be entangled by subjecting himself absolutely to another; but it is his own a.ct able at pleasure to unloose those bands by which he is connected to his natural that brings him into these straits and difficulties, of owing service to two mas prince. (4) ters ; and it is unreasonable that, by such voluntary act ofhis own, he should be ft) 1 Hal. P. C. 81. (I) Zlnst. 121. (m) 7 Eep. 7. (n) 2 P. Wing. 124. (o) 1 Hal. P. C. 68. able at :pleasure to unloose those bands by which he is connected to his natural (3) [And this seems to have guided the courts both of England and America, since the prince. (4) peace between these powers, which ended in the declaration and acknowledgment of the independence of America. It has been determined that the effect of the concurrent acts of the {k) 1 Hal. P. C. 61. (l) 2 Inst. 121. (m) 7 Rep. 7. (n) 2 P. Wm1. 19'. (o) l Hal. P. C. 68. two governments was to divest a natural-born subject of the British king, adhering to the United States of America, of his right to inherit land in England; and so in K. B., it has been deter- (3) [And this seems to have guided the courts both of England and America, since the mined that the treaty virtually prevented Americans adhering to the crown from inheriting lands peace between these poweni, which ended in the declaration and acknowledgment of the in America. See the English case, Doe d. Thomas v. Acklam, 2 B. and C. 779, which cites 7 mdependence of America. It has been determined that the effect of the concurrent act.s of the "WTieaton'B R. 535.] two govermnent.s was to divest a natural-born suhject of the .British king, adhering to the United (4) [Sir Michael Foster observes, that " the well-known maxim, which the writers upon our States of .America, of his right to inherit hmd in England ; and t10 in K. B., it has been deter law have adopted and applied to this case, nemo potest exuere patriam, comprehendeth the mined that the treaty virtnally prevented Americans adhering to the crown from inheriting lands in .America. See the English case, Doe d. Thomas v. .Acklam, 2 B. and C. 77g, which cites 7 whole doctrine of natural allegiance." Fost. 184. And this is exemplified by a strong instance Wheaton111 R. 535.] in the report which that learned judge has given of >Eneas Macdonald's case. He was a ( 4) [Sir Michael Foster observes, that "the well-known maxim, which the writers upon our native of Great Britain, but had received his education from his early infancy in France, had law have adopted and applied to this r.ase, mmw potest exuere patria-m., comprehendeth the spent iiU riper years in a profitable employment in that kingdom, and had accepted a com- whole doctrine of natural allegianre." Fost. 184. And this is exemplified by a 1:1trong instance mission in the service of the French king; acting under that commission, he was taKen in arms in the repnrt which that learned judge has ¢ven of ...!Eneas .Macdonald's case. He was a native of Great Britain, but had received his education from his early infancy in France, had against the king of England, for which he was indicted and convicted of high treason; but s~nt hi-1 riper ye&r11 in a ~rofite.ble employment in that kingdom, and had accepted a com was pardoned upon condition of his leaving the kingdom, and continuing abroad during his life. mission in the service of the French king ; acting under that commission, he wa.~ talten in arms Ib. 59.] against the king of En~land, for which he was indicted and convicted of high trea.'!on ; but The doctrine here stated has been accepted by the courts of America as a part of our was pardoned upon condition of his leaving the kingdom, and continuing abroad during his life. inheritance of the common law of England. See the cases of Talbot r. Janson, 3 Dall. 133; lb. 59.] The doctrine here stated ha.~ been RCcepted by the courts of America n.-. a part of our Isaac Williams's Case, 2 Cranch, 82; Murray v. The Charming Betsey, Id. 124; United States ». inberitanro of the common Jaw of England. See the co.set! of Ta.I.bot v. Janson, 3 Dall. 133; Gillies, 1 Pet. C. C. 159; The Santissima Trinidad, 7 Wheat 283 ; Shanks v. Dupont, 3 Pet. 242; IRaaC Williams's Case,2 Cranch, 8".l; Murray ti. The Charming Betsey, Id. 124; United States v. AinslJe v. Martin, 9 Mass. 461. To say however th»t it is "a principle of universal law," is to Gillies, 1 Pet. C. C. 159 ; The Se.ntissima Trinidad, 7 Wheat 283 ; Shanks ti. Dupont, 3 Pet. 242; occupy disputed ground. Chancellor Kent, who declared and defended the doctrine, admits .Ainf'lie v. Martin, 9 Mass. 461. To say however that it if! "a/rinciple of univer~e.l law," is to that the writers on public law have generally spoken in favor of the right of a subject to ocrupy di~puted ground. Chancellor Kent, who declared an defended the doctrine, admits VOL. I.—30 233 that the writers on public law have generally spoken in favor of the right of a subject to VoL. I.-30 233 Generated for asbigham (University of Michigan) on 2013-04-29 18:51 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google 370 ALIENR, DENIZENS, OR NATIVES. [Book L 370 ALIENS, DENIZENS, OR NATIVES. [Book L Local allegiance is such as is due from an alien or stranger born, for so long Local allegiance is such as is due from a.n alien or stranger born, for so Jong time as he continues within the king's dominion and protection: (p) and it time as he continues within the king's dominion and protection: (P) and it ceases the iiistaut such stranger transfers himself from this kingdom to ceases the instant such stranger transfers himself from this kmgdom to another. Natural allegiance is therefore perpetual, and local, temporary only; another. Natural allegiance is therefore perpetual, and local, temporarv only; and that for this reason, evidently founded upon the nature of government; and that for this reason, evidently founded upon the nature of government; that allegiance is a debt due from the subject, upon an implied contract with the that allegiance is a debt due from the subject, upon an implied contract with the prince, that so long as the one affords protection, so long the other will demean prince, that so long 88 the one affords protection, so long the other will demean himself faithfully. As therefore the prince is always under a constant tie to himself faithfully. As therefore the J)rince is always under a constant tie t.o protect his natural-born subjects, at all times and in all countries, for this reason protect his natural-born subjects, at al times and in all countries, for this reason their allegiance due to him is equally universal and permanent But, on the their allegiance due to him is equally universal and :permanent. But, on the other hand, as the prince affords his protection to an alien, only during his resi- other hand, as the prince affords his protection to an ahen, only during his resi dence 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 dence in this realm, the allegiance of an alien is confined, in point of time, to the British empire. From which considerations Sir Mathew Hale (q) deduces this duration of such his residence, and, in point of locality, to the dominions of the consequence, that though there be an usurper of the crown, yet it is treason for British empire. From which considerntions Sir Mathew Hale (q) deduces this any subject, while the usurper is in full possession of the sovereignty to consequence, that though there be an usurper of the crown, yet it is treason for F *3711 *Practlce anv thing against his crown and dignity; wherefore, although any subject, while the usurper is in full possession of the sovereignty to " " J the true prince regain the sovereignty, yet such attempts against the [ •371 ] *practice any thing against his crown und dignity; wherefore, although usurper (unless in defence or aid of the rightful king) have been afterwards pun- the true prince regain the sovereignty, yet such attempts against the ished with death ; because of the breach of that temporary allegiance, which was usurper (unless in defence or aid of the rightful kmg) have been afterwards pun due to him as king de facto. And upon this footing, after Edward IV recovered ished with denth ; because of the breach of that temporary allegiance, which was the crown, which had been long detained from his house by the line of Lancas- due to him as king de facto. And upon this footing, after Edward IV recovered ter, treasons committed against Henry VI were capitally punished, though Henry the crown, which had been long detained from his house by the line of Lancas had been declared an usurper by parliament. ter, trea.sons committed against Henry VI were capitally punished, though Henry This oath of allegiance, or rather the allegiance itself, is held to be applicable had been declared an usurper by parliament. not only to the political capacity of the king, or regal office, but to his natural This oath of alle~ance, or rather the allegiance itself, is held to be applicable person and blood-royal; and for the misapplication of their allegiance, viz.: to not only to the political capacity of the king, or regal office, but to his natural the regal capacity or crown, exclusive of the person of the king, were the Spen- cers banished in the reign of Henry II. (r) And from hence arose that principle person and blood-royal; and for the misapplication of their allegiance, viz.: to of personal attachment, and affectionate loyalty, which induced our forefathers the regal capacity or crown, exclusive of the person of the king, were the Spen (and, if occasion required, would doubtless induce their sons) to hazard all that cers banishe.d in the reign of Henry II. (r) And from hence arose th:Lt principle was dear to them, life, fortune, and family, in defence and support of their liege of personal attachment, and affectionate loyalty, which induced our forefathers lord and sovereign. (and, if occasion required, would doubtless induce their sons) to hazard all that This allegiance, then, both express and implied, is the duty of all the king^s was dear to them, life, fortune, and family, in defence and support of their liege subjects, under the distinctions here laid down, of local and temporary, or uni- lord and sovereign. versal and perpetual. Their rights are also distinguishable by the same This allegiance, then, both express and implied, is the duty of all the king's criterions of time and locality; natural-born subjects having a great variety of subjects, under the distinctions here laid down, of local and temporary, or uni (p) 7 Hep. 6. (q) 1 Hal. P. C. 60. (r) 1 Hal. P. C. 67. versal and perpetual. Their rights are also distinguishable by the same emigrate and abandon his native country, unless there is some positive restraint by law, or he criterions of time and locality; natural-born subjects having a great variety of is at the time in possession of a public trust, or unless his country is in distress or in war, and stands in need of his assistance. And he quotes the declaration of Cicero, that it was the (p) 7 Rep. 6. (q) 1 Hal. P. C. 00. (r) 1 Hal. P. C. trl. immutable foundation of Roman liberty, that every man is master of his rights of citizenship, and may retain or renounce them at his pleasure. " Ne guts invitus civitate mutetur : nece in civitate maneat invitus. Hcec gunt etvim fundamenta firmissima nostrce libertatw, svi quemqvc emigrate and abandon his native country, unless there is some positive restraint by law, or he ii! at the time in poeaession of a public trust, or unless hie country is in distress or in war, and juris et retinendi et dimittendi esse dominum." Mr. Lawrence, in his edition of "Wneaton's stand1:1 in need of his assistance. .And he quotes the declaration of Cicero, that it was the International Law has discussed this subject on general principles, taking a view opposed to immutable foundation of Roman liberty, that every man is master of his right.s of citizenship, that of the English and American courts, and more in harmony with that which has gener- and may retain or renounce them at his ple88ure. "Ne quis invitus cii.'ftate mlltetu.r ,· ncre ;n ally prevailed among the American people and in the executive councils. The claim on the part e-h'itate maneat imlitWJ. Hrec simt etitm fundam.enta firmissima 11-0stra: libertatis, Btli quemq1w of Great Britain of a right to search American vessels for British seamen, which brought on juri.Y et retinendi et dimittendi esse domimmi." Mr. Lawrence, in his edition of Wheaton':: International Law has discussed this subject on general principles, taking a view opposed to the war of 1812, was based upon this doctrine of perpetual allegiance, and though resisted on that of the English and American courts, and more in harmony with that which has gener· other grounds, wag denied also as inconsistent with a general principle of international law, ally prevailed ainong the American people and in the executive councils. The claim on the part which permitted expatriation where emigration was not forbidden. The supreme court of Ken- of Great Britain of a. right to search .American vessels for Britif;h seamen, which brought on tucky has declared the right of expatriation to be a practical and fundamental American doc- the war of 1812, was b88ed upon this doctrine of ~rpet.ueJ allegiance, and though resisted on trine, and that where no statute regulation on the subject exists, the citizen may in good faith other ground11, W&I! denied also as inconsi!•tent with a general principle of international law, emi~ation abjure his country and his allegiance, and the assent of the government was to be presumed. which permitted expatriation where was not forbidden. The supreme court of Ken· tncky hM declnrcd the right of exp11.tri11.t10n to be a practical and fundamental American doc· Alsberry v. Hawking, 9 Dana, 178. This view is in harmonv with the prevailing American sen- trine, and that where no statute regulation on the 1mbject e:rist.'!, the citizen may in good faith timent, to which the government is at this time endeavoring to give effect Ly treaties with abjure his country and his allegiance, and the assent of the government was to be pre.qimed . European nations. Negotiations were opened with the European courts, with this end in view, .Ah1berry "· Hawkins, 9 Dana, 178. This view is in harmony with the prevailing American sen· during the administration of President Johnson, and at the present time there is every prospect timent, to which the government is at this time endeavoring to give effect by treaties with of their being generally successful. European nationa. Negotiations were opened with the European r.onrts, with this end in view. durin~ the administration of President Johnson, and at the present time there is every prospect 234 ot' their being generally stJccct111ful. 234 Generated for asbigham (University of Michigan) on 2013-04-29 18:51 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google Chap. 10.] ALIENS, DENIZENS, OR NATIVES. 371 Chap. 10.] ALIENS, DENIZENS, OR NATIVES. 371 rights, which they acquire by being born within the king's ligeance, and can rights, which they acquire by being born within the kin~'s ligeance, and can never forfeit by any distance of place or time, but only by their own misbehaviour; the explanation of which rights is the principal subject of the two first books of never forfeit ~y any di~tan~ of pl.ace or tii;iie,,but onl~ by their own misbehaviour; these Commentaries. The same is also in some degree the case of aliens ; the explanat10n of which rights is the pnnmpal subject of the two first books of though their rights are much more circumscribed, being acquired only by resi- these Commentaries. The same is also in some degree the case of aliens ; dence here, and lost whenever they remove. I shall however here endeavour to though their rights are much more circumscribed, being acquired only by resi chalk out some of the principal lines, whereby *they are distinguished from r 1.3172 1 dence here~ and lost whenever they remove. I shall however here endeavour to natives, descending to farther particulars when they come in course. ' ' chalk out some of the principal lines, whereby *they are distin~1ished from [ ,..372 ] An alien born may purchase lands, or other estates: but not for his own use, natiYes, descending to farther particulars when they come m course. for the king is thereupon entitled to them.(s) (5) If an alien could acquire a An alien born may purchase lands, or other estates: but not for his own use, permanent property in lands, he must owe an allegiance, equally permanent with for the king is thereupon entitled to them.(s) (5) If au alien could acquire a that property, to the king of England, which would probably be inconsistent permanent property in lands, he must owe an allegiance, equally permanent with with that which he owes to his own natural liege lord: besides that thereby the that property, to tbe king of England, which would probably be inconsistent nation might in time be subject to foreign influence, and feel many other incon- with that which he owes to his own natural liege lord: besides that thereby the veniences. Wherefore by the civil law such contracts were also made void: (t) nation might in time be subject to foreign influence, and feel many other incon but the prince had no such advantage of forfeiture thereby, as with us in Eng- veniences. Wherefore by the civil law such contracts were also made void: (t) land. Among other reasons which might be given for our constitution, it seems but the prince had no such advantage of forfeiture thereby, as with us in Eng to be intended by way of punishment for the alien's presumption, in attempting land.. Among other reasons '_Vhich might be giyen. for our co~stit~tion, it se~ms to acquire any lauded property; for the vendor is not affected by it, he having to be mtended by way of punishment for the a.hens presumpt10n, m attemptmg resigned his right, and received an equivalent in exchange. Yet an alien may acquire a property in goods, money and other personal estate, or may hire a to acquire any landed property; for the vendor is not affected by it, be having house for his habitation: (u) for personal estate is of a transitory and movable resigned his right, and received an equivalent in exchange. Yet an alien may nature; and besides, this indulgence to strangers is necessary for the advance- acquire a prope:tJ.' in goods, money and other personal estate, or may hire a ment of trade.(6) Aliens also may trade as freely as other people, only they are house for his habitation: (u) for personal estate is of a transitory and movable subject to certain higher duties at the custom-house ;(7) ana there are also some nature; and besides, this indulgence to strangers is necessary for the advance obsolete statutes of Sen. VIII prohibiting alien artificers to work for themselves ment of trade.(6) Aliens also may trade as freely as other people, only they are in this kingdom; but it is generally held that they were virtually repealed by subject to certain higher duties at the custom-house ;(7) and there are also some statute 5 Eliz. c. 7. Also an alien may bring an action concerning personal obsolete statutes of Hen. VIII prohibiting alien artificers to work for themselves property, and make a will, and dispose of his personal estate: (w) not as it is in in this kingdom ; but it is generally held that they were virtually repealed by France, where the king at the death of an alien is entitled to all he is worth, statute 5 Eliz. c. 7. Also an alien may bring an action concerning personal bythedroitd'aubaineoTJusalbinatus, (x) unless he has a peculiar exemption.(S) property, and make a will, and dispose of his personal estate: (w) not as it is in When I mention these rights of an alien, I must be understood of alien friends France, where the king at the death of an alien is entitled to all he is worth, only, or such whose countries are in peace with ours; for alien enemies have no bythedroitd'aubaineorjusalbinatus, (x) unless he has a peculiar exemption.(8) •"rights, no privileges, unless by the King's special favour, during the r M7o -, When I mention these rights of an ahen, I must be understood of alien friends timeofwar.(9) I"""5 I only, or such whose countries are in peace with ours; for alien enemies have no When I say, that an alien is one who is born out of the king's dominions, or *.rights, no privileges, unless by the king's special favour, during the [ ,.. ] allegiance, this also must be understood with some restrictions. The common 373 war.(9) (si Co. LItt. 2. (<) Cod. 1. 11, tit. M. (iii 7 Rep. 17. (w) l.ntw. 84. time of (x} A word derived from alibi natut. Spelm. Gl. 24. When I say, that an alien is one who is born out of the king's dominions, or (5) The lands which aliens take, by deed or devise, they may hold as against all persons allegiance, this also must be understood with some restrictions. The common except the sovereign. People v. Coupling, 2 Hill, 67; Wadsworth v. "Wadsworth, 12 N. T. (1) Co. Litt. 2. (t) Cod. I. 11, tit. M. (u1 7 Rep. 17. (to) Lutw. 3'. 376; Wright v. Saddler, 20 id. 320; Cross v. De Valle, 1 Wai. 1; Wilbur r. Tobey, 16 Pick. 179. {Zl A word derived from alUri natua. Spelm. GI. 24. Whether inquest of office is necessary, see book 2, p. 249, n. (10). An alien has no inheritable blood through which title may be deduced, and consequently (5) The lands which aliens take, by deed or clevise, thev may hold as against all persons one cannot take lands by descent who must, claim by representation through an alien. Jack- except the sovereign. People v. Conkling, 2 Hill, u7; Wutlswortb t'. Wadsworth, 12 N. Y. son «. Green, 7 Wend. 333; Levy «. McCartee, 6 Pet. 102. But one brother may inherit from 376; Wri~ht 11• .Saddler,20id.320; Cross v. De Valle, 1Wal.1; Wilbur r. Tobey, 111 Pick.179. another, notwithstanding the father is an alien; the descent as to the brothers being imme- Whether mquest of office is necessary, see book 2, p. 249, n. (10). diate. Collingwood v. Pace, Sid. 193. An alien ha.s no inheritable blood throngh which title may be deduced, and consequently one cannot take lands by descent who mnst claim by representation through an alien. Jack· Some of the American states have abolished the disability of aliens to hold lands, which, son v. Green, 7 Wend. 333; Levy v. McCartee, 6 Pet. 10-.l. But one brother may inherit from as to those states, rest upon no sound reasons. another, notwithstanding the father is an alien ; the descent as to the brothers being imme (6) By statute 7 and 8 Vic. c. 66, an alien friend may hold every species of personal clia.te. Collingwoocl v. Pace, Sid. 193. property except chattels real, and may take and hold any lands, houses and other tenements for Some of the American states ha."f'e abolished the disability of aliens to hold lands, which, the purpose of residence or occupation, or for the purpose of any business, trade or manufac- &> to those states, rest npon no sound roaBon11. (6) By statute 7 and 8 Vic. c. 66, an alien friend may hold every Apecies of personal ture, for any term not exceeding twenty-one years. property except chattel~ real, and may take and hold any lands, houseR and other tenements for (7) [Repealed, except as to some city duties, by statute 24 Geo. II, st. 2, c. 16.] the purpose of retliclence or OC'cupation, or for the purpose of any business, trade or manufac (8) [But by the Code Civile the droit (9) During the late civil war in the United States, it was held that the people within the (") [But by the Code Citiile the rlrott d'aubaine does not exist against natives of countries limits occupied by the insurgents, and controlled by their military forces, were to be regarded wherein such right i:i not enforced againr1t Frenchmen.] (9) Dnrin~ the late civil war in the United States, it WBS held that the people within the as being, and as having the rights only of, alien enemies, irrespective of their sympathies as limit8 occupied by tlrn in;iurgents, and controlled by their military forces, were to be regarded between the belligerents, Alexander's Cotton, 2 Wai. 404. as heinj!;, and 1\8 haYing the rlf?hts only of~ alien enemies, irrespective of their sympathies as 235 between the belligercnt. law, indeed, stood absolutely so, with only a very few exceptions; so that a par- ticular act of parliament became necessary after the restoration,(y) " for the naturalization of children of his majesty's English subjects, born in foreign countries during the late troubles." And this maxim of the law proceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two such allegiances, or serve two masters, at once. Yet the children of the king's ambassadors born abroad were always held to be natural subjects:(«) for as the father, though in a foreign country, owes not even a local allegiance to the prince to whom he is sent; so, with regard to the son also, he was held (by a kind of postliminium) to be born under the king of England's allegiance, represented by his father the ambassador. To encourage also foreign commerce, it was enacted by statute 25 Edw. Ill, st. 2, that all children born abroad, provided both their parents were at the time of the birth in allegiance to the king, and the mother had passed the seas by her husband's consent, might inherit as if born in England; and accordingly it hath been so adjudged in De- half of merchants.(a) But by several more modern statutes (b) these restrictions are still farther taken off; so that all children, born out of the king's ligeance, whose fathers (or grandfathers by the father's side) were natural-born subjects, are now deemed to be natural-born subjects themselves to all intents and pur- poses ; unless their said ancestors were attainted, or banished beyond sea, for high treason; or were at the birth of such children in the service of a prince at enmity with Great Britian.(lO) Yet the grandchildren of such ancestors shall not be privileged in respect of the alien's duty, except they be protestants, and actually reside within the realm; nor shall be enabled to claim any estate or interest, unless the claim be made within five years after the same shall accrue. The children of aliens, born here in England, are, generally speaking, natural- F *3741 born subjects, and entitled to all the *privileges of sucn.(ll) In which L J the constitution of France differs from ours; for there, by their jus albi- natus, if a child be born of foreign parents, it is an alien.(e) (12) A denizen is an alien born, but who has obtained ex donations regis letters patent to make him an English subject: a high and incommunicable branch of the royal prerogative.^) A denizen is in a kind of middle state, between an alien and natural-born subject, and partakes of both of them. He may take land by purchase or devise, which an alien may not; but cannot take by inher- itance :(e) for his parent, through whom he must claim, being an alien, had no inheritable blood; and therefore could convey none to the son. And, upon a like defect of hereditary blood, the issue of a denizen, born before denization, cannot inherit to him; but his issue born after may.(/) A denizen is not ex- cused (g) from paying the alien's duty, and some other mercantile burthens. And no denizen can oe of the privy council, or either house of parliament, or have any office or trust, civil or military, or be capable of any grant of lands, &c., from the crown.(A) Naturalization cannot be performed but by act of parliament: for by this an alien is put in exactly the same state as if he had been born in the king's lige- (y) Stat. 29 Car. II, c. 6. (*) 7 Bep. 18. (a) Cro. Car. 601. Mar. 91. Jenk. Cent. 3. (0) 7 Ann. c. 5. 4 On. II, c. 21, and 13 Geo. III. c. 21. (ci Jenk. Cent. 3, cites Treasure Francois, 313 (d) 7 Rep. Calvin's case, 26. fe( 11 Rep. 67. (/) Co. Litt. 8. Vaugh. 285. (g} Stat. 22 Hen. VIII c. 8. (») Stat. II W. in, o. 3. (10) By statute 7 and 8 Vic. o. 66, s. 3, every person born abroad, of a mother who is a natural-bom subject of the United Kingdom, is " capable of taking to him, his heirs, execu- tors or administrators, any estate, real or personal, by devise or purchase, or inheritance of succession." (11) And they may trace title by inheritance through ancestors born out of the allegiance. Statute 11 and 12 Win. Ill, c. 6, and 25 Geo. II, c. 39. By statute 21 and 22 Tic. o. 20, a proceeding is allowed to be had in the court for divorce and matrimonial causes, for determining the right of any person to be deemed a natural-born subject of the crown; but the proceeding will not affect the right of third persons not cited or made parties thereto. (12) [" In this respect there is not any difference between our laws and those of France. In each country birth confers the right of naturalization." 1 Woodd. 386.] 236 Generated for asbigham (University of Michigan) on 2013-04-29 18:51 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google Chap. 10.] ALTENR, DENIZENS, OR NATIVES. 374 Chap. 10.] ALIENS, DENIZENS, OR NATIVES. 374 ance; except only that he is incapable, as well as a denizen, of being a member ance; except only that he is incapable, as well as a denizen, of being a member of the privy council, or parliament, holding offices, grants, &c. (i) No bill for of the privy council, or parliament, holding offices, grants, &c.(i) No bill for naturalization can be received in either house of parliament without such disa- naturalization can be receiYed in either house of parliament without such disa bling clause in it: (_;') nor without a clause disabling the person from obtaining bling clause in it: (j) nor without a clause disabling the person from obtaining any immunity in trade thereby in any foreign country, unless he shall have any immunity in trade thereby in any foreign country, unless he shall have resided in Britain for seven vears next after the commencement of the session resided in Britain for seven vears next after the commencement of the session in which he is naturalized, (k) Neither can any person be naturalized or in which he is naturalized. (k) Neither can any person be naturalized or restored in blood unless he hath received the sacrament of the Lord's supper restored in blood unless he hath received the sacrament of the Lord's supper within one month before the bringing in of the bill; and unless he also takes "'ithin one month before the bringing in of the bill; and unless he also takes the oaths of allegiance and supremacy in the presence of the parliament. (I) But these provisions have been usually dispensed with by special acts of (m) the oaths of allegiance and supremacy in the presence of the parliament. (l) parliament, previous to bills of naturalization of any foreign princes or prin- But these provisions have been usually dispensed with by special acts of (m) cesses. (13) parliament, previous to bills of naturalization of any foreign princes or prin *These are the principal distinctions between aliens, denizens, and r +n~r -, cesses. (13) natives: distinctions, which it hath been frequently endeavoured since "- J *These are the principal distinctions between aliens, denizens, and * r. the commencement of this century to lay almost totally aside, by one general natives: distinctions, which it hath been frequently endeavoured since [ 37"] naturalization act for all foreign protestants. An attempt which was once car- the commencement of this century to lay almost totally a.side, by one general ried into execution by the statute 7 Ann. c. 5; but this, after three years' exper- naturalization act for all foreign protestants. An attempt which was once car ience of it, was repealed by the statute 10 Ann. c. 5, except one clause, which ried into execution by the statute 7 Ann. c. 5; but this, after three years' exper was just now mentioned, for naturalizing the children of English parents born ience of it, was repealed by the statute 10 Ann. c. 5, except one clause, which abroad. However, every foreign seamen, who in time of war serves two years was just now mentioned, for naturalizing the children of English parents born on board an English ship, by virtue of the king's proclamation, is ipso facto nat- abroad. Howeyer, every foreign seamen, who in time of war serves two years uralized under the like restrictions as in statute 12 Wm. Ill, c. 2; (») and all for- on board an English ship, by virtue of the king's proclamation, is ipso facto nat eign protestants, and Jews, upon their residing seven years in any of the Amer- uralized under the like restrictions as in statute 12 Wm. III, c. 2; (n) and all for ican 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 eign protestants, and Jews, upon their residing seven years in any of the Amer employed in the whale fishery, without afterwards absenting themselves from the ican colonies, without being absent above two months at a time, and all foreign king's dominions for more than one year, and none of them falling within the protestants serving two years in a military capacity there, or being three years incapacities declared by statute 4 Geo. II, c. 21, shall be, (upon taking the oaths employed in the whale fishery, without afterwards absenting themselves from the of allegiance and abjuration, or in some cases, an affirmation to the same effect) king's dominions for more than one year, and none of them falling within the naturalized to all intents and purposes, as if they had been born in this king- incapacities declared by statute 4 Geo. II, c. 21, shall be, (upon taking the oaths dom ; except as to sitting in parliament or in the privy council, and holding of allegiance and abjuration, or in some cases, an affirmation to the same effect) offices or grants of lands, &c., from the crown within tne kingdoms of Great naturalized to all intents and purposes, as if they had been born in this king Britain or Ireland, (o) They therefore are admissible to all other privileges, dom; except as to sitting in parliament or in the privy council, and holding which protestants or Jews born in this kingdom are entitled to. What those offices or grants of lands, &c., from the crown withm the kingdoms of Great privileges are, with respect to Jews (p) in particular, was the subject of very Britain or Ireland, (o) They therefore are admissible to all other privileges, high debates about the time of the famous Jew-bill; (q) which enables all Jews which protestants or Jews born in this kingdom are entitled to. What those to prefer bills of naturalization in parliament, without receiving the sacrament, privileges a.re, with respect to Jews (p) in particular, was the subject of ,·ery as ordained by statute 7 Jac. I. (14) It is not my intention to revive this contro- high debates about the time of the famous Jew-bill; (q) which enables all Jews versy again; for the act lived only a few months, and was then repealed: (r) to prefer bills of naturalization in parliament, without receiving the sacrament, therefore peace be now to its manes. (15) as ordained by statut~ 7 Jae. I. (14) It is not my intention to revive this contro ft} Ibid. fjj Stat. 1 Goo. I, o. 4. (k) Stat. 14 Geo. in, c. M. (I) Stat.7 Jac. I. c. 2. (m) Stat. 4 Ann. c. 1. 7 Geo. II, c. 3. 9 Geo. II, c. 24. 4 Geo. Ill, o. 4. (n) Stat. 12 Geo. U, c. 3. versy again; for the act lived only a few months, and was then repealed: (r) (o) Stat. 12 Geo. II, c. 7. 20 Geo. in, c. 44. 22 Geo. H. o. 45. 2 Geo. HI, c. 25. 13 Goo. m, c. 25. therefore peace be now to its manes. (15) (p) A pretty accurate account of the Jews till their banishment in 8 Edward I, may be found in Prynne's fi) Ibid. (j) Stat. I Geo. I, c. '· (k) Stat. U Geo. IIJf c. 84. (l) Sr.at.7 Jae. I. c. 2. (m) Stat. 4 Ann. c. 1. 7 Geo. II, c. 8. 9 Geo. II.t. c. 2'. 4 Geo. II, c. 4. (n) Stat. 12 Geo. 11, c. 3. Demurrer, and in Molloy dejvre Maritime, b. 3, c. 6. (o) 'ltat. 12 Geo. II, c. 7. 20 Geo. III, c. 44. 2'l ueo. Il1 c. '6. 2 Geo. Ill, c. 26. 13 Goo. m, c. 26. (q) Stat. 26 Geo. II, c. 28. (r) Stat. 27 Geo. H, c. 1. (p) A pretty RCcurate account ofthc Jews till their ban1&hment In 8 Edward I, may lie Connd In Prynne's Demurrer, and In Molloy dejure Maritime, b. 3, c. 6. (13) [And now an alien is enabled, on complying with the provisions of the recent statute 7 ( q) St.at. 26 Geo. II, c. 26. (rJ Stat. Z1 Geo. II, c. 1. and 8 Vic. c. 66, to obtain from a principal secretary of state a certificate of naturalization, con- ferring upon him all the rights and capacities of a natural-born British subject, except the (13) [And now an alien is enabled, on complying with the provisioill! of the recont i;tatute 7 capacity of being a member of the privy council, or of either house of parliament, and such rights and 8 Vic. c. 66, to obtain from a principal secretary of Rt.ate a certificate of naturalization, con ferrin~ upon him all the rights and capacities of a natural-born Briti11h Hubjcct, except the and capacities, if any, as may be specially excepted in the certificate. By the same statute it is capacity of being a member of the privy council, or of either houi~e of parliament, and such ri~htl! moreover enacted that any woman married or who shall be married to a natural-born subject or and capacities, if any, as wav be specially excepted in the certificate. By the same statute 1t is person naturalized, shall be deemed and taken to be herself naturalized, and shall have all the moreover enacted that any woman married or who shall be married to a natural-born subject or rights and privileges of a natural-born subject.] person naturalized, shall be deemed and taken to be herself naturalized, and shall have all the (14) Jews were excluded from holding civil offices, not by any direct enactment, but solely by rights and privileges of a natural.born subject.] the form of the asseveration appended to the abjuration oath, and the declaration required by 9 (14) Jews were excluded from holding civil offices, not by any direct ensctment, but solely by the form of the 81l80Veration appended to the abjuration oath, and tho declaration required by 9 Geo. IV, c. 17, which was to be made " upon the true faith of a Christian." By statute 8 and 9 Geo. IV, c. 17, which was to be made "upon the true faith of a Christian." By statute 8 and 9 Vic. c. :>•', this declaration was dispensed with in the case of corporate offices, and under statute Vic. c. 5~. this declaration wa11 dispensed with in the case of corporate offices, and under statute 23 and 24 Vic. c 63, Jews are now admitted to the house of commons. 23 and 24 Vic. c 63, Jews are now admitted to the house of comu1ons. (15) By the constitution of the United States, congress is empowered "to establish an (15) By the con11titution of the United States, congress is empowered "to establish an uniform rule of naturalization." Art 1. $ 8. The requirement of uniformity necessarily uniform rnle of naturalization.'' .Art. 1, ~ 8. The requirement of uniformity nece~sarily 237 237 Generated for asbigham (University of Michigan) on 2013-04-29 18:51 GMT / http://hdl.handle.net/2027/nyp.33433008577102 Public Domain, Google-digitized / http://www.hathitrust.org/access_use#pd-google