Front Page Titles (by Subject) CHAPTER X.: OF THE PEOPLE, WHETHER ALIENS, DENIZENS, OR NATIVES. - Commentaries on the Laws of England in Four Books, vol. 1
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CHAPTER X.: OF THE PEOPLE, WHETHER ALIENS, DENIZENS, OR NATIVES. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 1 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893). Vol. 1 - Books I & II.
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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 subordinate 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 dominions 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 substantial 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 feodal system, every owner of lands held them in subjection to some superior or lord, from whom, or whose ancestors, the tenant or vassal 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 *[*367other hand, that the vassal should be faithful to the lord, and defend him against all his enemies. This obligation on the part of the vassal was called fidelitas, or fealty; and an oath of fealty was required, by the feodal law, to be taken by all tenants to their landlord, which is couched in almost the same terms as our ancient oath of allegiance;(a) 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 landlord himself was perhaps only a tenant or vassal. But when the acknowledgment 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 homage, which included the fealty before mentioned, and the services consequent upon it. Thus, when our Edward III., in 1329, did homage to Philip VI. 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 administered for *[*368upwards of six hundred years,(e) contained a promise “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.” Upon which Sir Matthew Hale(f) makes this remark, that it was short and plain, not entangled with long or intricate clauses 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 mentioning “his heirs,” or specifying in the least wherein that allegiance consists. The oath of supremacy is principally calculated as a renunciation of the pope’s pretended 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 recognising the right of his majesty, derived under the act of settlement; engaging to support him to the utmost of the juror’s power; promising to disclose all traitorous conspiracies against him; and expressly renouncing 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 persons 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(i) 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.
But, besides these express engagements, the law also holds that there is an implied, original, and virtual allegiance, **369]owing from every subject to 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 descent of the crown, is fully invested with all the rights, and bound to all 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 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) 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 Edward Coke very justly to observe,(l) that “all subjects are equally bounden to their allegiance as if they had taken the oath; because it is written by the finger of the law in their hearts, and the taking of the corporal oath is but an outward declaration of the same.” The sanction of an oath, it is true, in case of violation of duty, makes the guilt still more accumulated, by superadding perjury to treason; but it does not increase the civil obligation to loyalty; it only strengthens the social tie by uniting it with that of religion.
Allegiance, both express and implied, is, however, distinguished by the law into two sorts or species, the one natural, the other local; the former being also perpetual, the latter temporary. Natural allegiance is such as is due from all men born within the king’s dominions immediately upon their birth.(m) For, immediately upon their birth, they are under the king’s protection; at a time, too, when (during their infancy) they are incapable of protecting themselves. Natural allegiance is therefore a debt of gratitude, which cannot be forfeited, cancelled, or altered by any change of time, place, or circumstance, nor by any thing but the united concurrence of the legislature.(n) An Englishman who removes to France, or to China, owes the same allegiance **370]to the king of England there as at home, and twenty years hence as well as now. For it is a principle of universal law,(o) that the natural-born subject of one prince cannot by any act of his own, no, not 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 to whom it was first due.2 Indeed, the natural-born subject of one prince, to whom he owes allegiance, may be entangled by subjecting himself absolutely to another: but it is his own act that brings him into these straits and difficulties, of owing service to two masters; and it is unreasonable that, by such voluntary act of his own, he should be able at pleasure to unloose those bands by which he is connected to his natural prince.3
Local allegiance is such as is due from an alien, or stranger born, for so long time as he continues within the king’s dominion and protection:(p) and it ceases the instant such stranger transfers himself from this kingdom to another.4 Natural allegiance is therefore perpetual, and local temporary only; 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 prince, that so long as the one affords protection, so long the other will demean himself faithfully. As therefore the prince is always under a constant tie to protect his natural-born subjects, at all times and in all countries, for this reason 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 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. From which considerations Sir Matthew Hale(q) deduces this consequence, that though there be a usurper of the crown, yet it is treason for any subject, while the usurper is in full possession of the sovereignty, to **371]practise any thing against his crown and dignity: wherefore, although the true prince regain the sovereignty, yet such attempts against the usurper (unless in defence or aid of the rightful king) have been afterwards punished with death; because of the breach of that temporary allegiance which was due to him as king de facto. And upon this footing, after Edward IV. recovered the crown, which had been long detained from his house by the line of Lancaster, treasons committed against Henry VI. were capitally punished, though Henry had been declared a usurper by parliament.
This oath of allegiance, or rather the allegiance itself, is held to be applicable not only to the political capacity of the king, or regal office, but to his natural person, and blood-royal; and for the misapplication of their allegiance, viz. to the regal capacity or crown, exclusive of the person of the king, were the Spencers banished in the reign of Edward II.(r) And from hence arose that principle of personal attachment, and affectionate loyalty, which induced our forefathers (and, if occasion required, would doubtless induce their sons) to hazard all that was dear to them, life, fortune, and family, in defence and support of their liege lord and sovereign.5
This allegiance, then, both express and implied, is the duty of all the king’s subjects, under the distinctions here laid down, of local and temporary, or universal and perpetual. Their rights are also distinguishable by the same criterions of time and locality; natural-born subjects having a great variety of rights, which they acquire by being born within the king’s ligeance, and ear 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 these commentaries. The same is also in some degree the case of aliens; though their rights are much more circumscribed, being acquired only by residence here, and lost whenever they remove. I shall, however, here endeavour to chalk out some of the principal lines, whereby *[*372they are distinguished from natives, descending to further particulars when they come in course.
An alien born may purchase lands, or other estates: but not for his own use, for the king is thereupon entitled to them.(s)6 If an alien could acquire a permanent property in lands, he must owe an allegiance, equally permanent with that property, to the king of England, which would probably be inconsistent with that which he owes to his own natural liege lord: besides that thereby the nation might in time be subject to foreign, influence, and feel many other inconveniences.7 Wherefore by the civil law such contracts were also made void:(t) but the prince had no such advantage of forfeiture thereby, as with us in England. Among other reasons which might be given for our constitution, it seems to be intended by way of punishment for the alien’s presumption, in attempting to acquire any landed property; for the vendor is not affected by it, he having 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 house for his habitation:(u)8 for personal estate is of a transitory and movable nature; and, besides, this indulgence to strangers is necessary for the advancement of trade. Aliens also may trade as freely as other people, only they are subject to certain higher duties at the custom-house;9 and there are also some obsolete statutes of Hen. VIII. prohibiting alien artificers to work for themselves in this kingdom; but it is generally held that they were virtually repealed by statute 5 Eliz. c. 7.10 Also, an alien may bring an action concerning personal property, and may make a will, and dispose of his personal estate:(w) not as it is in France, where the king at the death of an alien is entitled to all he is worth, by the droit d’aubaine or jus albinatus,(x) unless he has a peculiar exemption.11 When I mention these rights of an alien, I must be understood of alien friends only, or such whose countries are in peace with ours; for alien enemies have no **373]rights, no privileges, unless by the king’s special favour, during the time of war.12
When I say that an alien is one who is born out of the king’s dominions, or allegiance, this also must be understood with some restrictions. The common law, indeed, stood absolutely so, with only a very few exceptions; so that a particular act of parliament became necessary after the restoration,(y) “for the naturalization of the 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:(z) 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. III. 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 behalf of merchants.(a) But by several more modern statutes(b) these restrictions are still further 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 purposes; 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 Britain.13 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.14
The children of aliens, born here in England, are, generally speaking, natural-born subjects,15 and entitled to all the *[*374privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien.(c)16
A denizen is an alien born, but who has obtained ex donatione regis letters patent to make him an English subject: a high and incommunicable branch of the royal prerogative.(d) 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 lands by purchase or devise, which an alien may not; but cannot take by inheritance:(e) for his parent, through whom he must claim, being an alien, had no inheritable blood; and therefore could convey none to the son.17 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.(f) A denizen is not excused(g) from paying the alien’s duty, and some other mercantile burdens. And no denizen can be of the privy council, or either house of parliament, or have any office of trust, civil or military, or be capable of any grant of lands, &c. from the crown.(h)18
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 ligeance; 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)19 No bill for naturalization can be received in either house of parliament without such disabling 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 resided in Britain for seven years next after the commencement of the session 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 within 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.(l) But these provisions have been usually dispensed with by special acts of parliament, previous to bills of naturalization of any foreign princes or princesses.(m)
*[*375These are the principal distinctions between aliens, denizens, and natives: distinctions, which it hath been frequently endeavoured since the commencement of this century to lay almost totally aside, by one general naturalization-act for all foreign protestants. An attempt which was once carried into execution by the statute 7 Anne, c. 5; but this, after three years’ experience of it, was repealed by the statute 10 Anne, c. 5, except one clause, which was just now mentioned, for naturalizing the children of English parents born abroad. However, every foreign seaman, who in time of war serves two years on board an English ship, by virtue of the king’s proclamation, is ipso facto naturalized under the like restrictions as in statute 12 W. III. c. 2;(n) and all foreign protestants, and Jews, upon their residing seven years in any of the American 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 employed in the whale fishery, without afterwards absenting themselves from the king’s dominions for more than one year, and none of them falling within the incapacities declared by statute 4 Geo. II. c. 21, shall be (upon taking the oaths of allegiance and abjuration, or, in some cases, an affirmation to the same effect) naturalized to all intents and purposes, as if they had been born in this kingdom; except as to sitting in parliament or in the privy council, and holding offices or grants of lands, &c. from the crown within the kingdoms of Great Britain or Ireland.(o) They therefore are admissible to all other privileges which protestants or Jews born in this kingdom are entitled to. What those privileges are, with respect to Jews(p) in particular, was the subject of very high debates about the time of the famous Jew-bill;(q) which enables all fews to prefer bills of naturalization in parliament, without receiving the sacrament, as ordained by statute 7 Jac. I. It is not my intention to revive this controversy again; for the act lived only a few months, and was then repealed:(r) therefore peace be now to its manes.20
[1 ] Natural-born subjects are persons born 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 of 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, all of whom are natural-born subjects by the common law, but also, under various statutes, all persons, 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 felony, or was in the actual service of any foreign prince then at enmity with the crown of England, excepting always from the benefit both of the common law and of the statutes those artificers and manufacturers who are declared aliens by 5 Geo. I. c. 27. See 1 Chit. Com. Law, 117, 119, 130; but artificers may now go abroad. 5 Geo. IV. c. 97.
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 out 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. & Cres. 779. 4 D. & R. 394, S. C.—Chitty.
[(a) ] 2 Feud. 5, 6, 7.
[(b) ] 2 Feud. 99.
[(c) ] 7 Rep. Calvin’s case, 7.
[(d) ] 2 Cart. 401. Mod. Un. Hist. xxiii. 420.
[(e) ] Mirror, c. 3, 35. Fleta, 3, 16. Britton, c. 29. 7 Rep. Calvin’s case, 6.
[(f) ] 1 Hal. P. C. 63.
[(g) ] Stat. 13 W. III. c. 6.
[(h) ] Stat. 1 Geo. I. c. 13. 6 Geo. III. c. 63.
[(i) ] 2 Inst. 121. 1 Hal. P. C. 64.
[(k) ] 1 Hal. P. C. 61.
[(l) ] 2 Inst. 121.
[(m) ] 7 Rep. 7.
[(n) ] 2 P. Wms. 124.
[(o) ] 1 Hal. P. C. 68.
[2 ] And this seems to have guided the courts both of England and America, since the 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 two governments was to devest 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 King’s Bench, it has been determined that the treaty virtually prevented Americans adhering to the crown from inheriting lands in America. See the English case, Doe d. Thomas vs. Acklam, 2 B. & C. 729, which cites 7 Wheaton’s R. 535. See also 1 Peters’s C. C. R. 159.—Chitty.
[3 ] Sir Michael Foster observes “that the well-known maxim which the writers upon our law have adopted and applied to this case, nemo potest exuere patriam, comprehendeth the whole doctrine of natural allegiance.” Fost. 184. And this is exemplified by a strong instance in the report which that learned judge has given of Æneas Macdonald’s case. He was a native of Great Britain, but had received his education from his early infancy in France, had spent his riper years in a profitable employment in that kingdom, and had accepted a commission in the service of the French king; acting under that commission, he was taken in arms against the king of England, for which he was indicted and convicted of high treason, but was pardoned upon condition of his leaving the kingdom and continuing abroad during his life. Ib. 59.
This is certainly an extreme case; and we should have reason to think our law deficient in justice and humanity if we could discover any intermediate general limit to which the law could be relaxed consistently with sound policy or the public safety.—Christian.
The writers on public law have spoken rather loosely, but generally in favour, of the right of a subject or citizen to abandon his native country, unless there be some positive restraint by law or he is at the time in possession of a public trust, or unless his country be in distress or at war, or stands in need of his assistance. It is plain that any exceptions destroy the rule, especially such as those just mentioned. It amounts to saying that, when a society has no reason, the removal of a member ought not to be opposed. Cicero regarded it as one of the firmest foundations of Roman liberty that the Roman citizen had the privilege to stay or renounce his residence at pleasure; but this is different from the unqualified right of expatriation. The question has been frequently discussed in the courts of the United States; and, though never expressly decided, Chancellor Kent, from a historical review of these discussions, concludes that the better opinion is that a citizen cannot renounce his allegiance without permission to be declared by law, and that, as there is no existing legislative regulation in the case, the rule of the English common law—nemo potest exuere patriam—remains unaltered. 2 Kent’s Com. 449. Judge Patterson expressed the opinion, that though the legislature of a particular State should by law specify the lawful causes of expatriation and prescribe the manner in which it might be effected, the emigration could only affect the local allegiance of the party, and would not draw after it a renunciation of the higher allegiance due to the United States. 3 Dallas, 133. Professor Tucker takes an entirely different view, and has come to a different conclusion. Tucker’s Blackstone, Appendix, note K.
There are practical difficulties which, in all probability, will ever prevent any legislative action. However, as for all commercial purposes, even in time of war, the national character is determined exclusively by domicil, without regard either to natural or acquired allegiance, and as it would offend the sense of humanity of enlightened nations at present to treat as criminals, persons who, by the silent acquiescence, and therefore the presumed consent, of the country of their birth, had removed their fortunes and assumed new duties of obedience in other countries, if even they should be taken in arms against their native country, the question is not of immediate practical moment. Though Great Britain has never formally, yet she has really in fact, abandoned her once asserted right to impress her native subjects on board of foreign merchantmen: the right of visitation and search of public national armed vessels for that purpose was never asserted.
In case, however, of revolutions, it is recognised as law—at least in this country—that persons dissatisfied with the change have a right to remove with their effects, provided that right be exercised within a reasonable time. The sound and prevailing doctrine now is, that by the treaty of peace of 1783, Great Britain and the United States became respectively entitled, as against each other, to the allegiance of all persons who were at the time adhering to the governments respectively, and that those persons became aliens in respect to the government to which they did not adhere. Of course all persons born in the United States had the right to adhere or not to the new government, as they might elect.
There is this difference between the decisions of the English and American courts,—a difference which seems naturally to result from their different national positions in reference to the question. The former adopt the date of the definitive treaty of peace by which the independence of the United States was acknowledged, viz. Sept. 3, 1783, as the period when the change took place. The American courts assume the date of the Declaration of Independence, July 4, 1776, as that period. 2 Barnwell & Cressw. 729. 5 ibid. 771. 3 Peters, 99. 1 Dallas, 53. 2 Cranch, 279. 4 ibid. 209.—Sharswood.
[(p) ] 7 Rep. 6.
[4 ] Mr. J. Foster informs us that it was laid down in a meeting of all the judges, that “if an alien, seeking the protection of the crown, and having a family and effects here, should, during a war with his native country, go thither, and there adhere to the king’s enemies for purposes of hostility, he may be dealt with as a traitor.” Fost. 185.—Christian.
The question might at this day probably well admit of re-argument. The text appears to me to be the better doctrine. For suppose that, on his return to the dominions of his sovereign to whom he was owing his natural allegiance, such sovereign should compel his taking arms, can it be justly argued that either way he must be punished,—by his natural sovereign if he disobey, and, by the adopted sovereign, put to death for appearing or taking arms against him? But lord Stowel has, I believe, lately determined conformably with the authority mentioned by Mr. J. Foster.—Chitty.
[(q) ] 1 Hal. P. C. 60.
[(r) ] 1 Hal. P. C. 67.
[5 ] Sir William Wyndham said, that were he to find the crown dangling in a bush he would stand by and defend it to the last. How much matter of regret would it be that the spirit of an expression of service and loyalty so fine, so just, and so exalted should ever be wasted upon a sovereign who might be unacquainted with his people’s wrongs until he should hear of them in their remonstrances!—Chitty.
[(s) ] Co. Litt. 2.
[6 ] A woman alien cannot be endowed, unless she marries by the license of the king; and then she shall be endowed by 8 Hen. V. No. 15, Rot. Parl. Harg. Co. Litt. 31, a. n. 9. Neither can a husband alien be tenant by the curtesy. 7 Co. 25.—Christian.
As to an alien’s disability respecting lands, see 1 Chitty’s Com. L. 162, and 2 Bar. & Cres. 779. 4 D. & L. 394. The common law of this country has always been jealous of foreigners; from the conquest till upwards of two hundred years afterwards, it does not appear that strangers were permitted to reside in England even on account of commerce beyond a limited time, except by a special warrant, for they were considered only as sojourners coming to a fair or market, and were obliged to employ their landlords as brokers to buy and sell their commodities; and we find that one stranger was often arrested for the debt or punished for the misdemeanour of another, as if all strangers were to be looked upon as a people with whom the English were in a state of perpetual war, and therefore might make reprisals on the first they could lay hands on. Tucker’s Remarks on Naturalization Bill, 2, 3, 13, 15. 2 Inst. 204. Rymer’s Fœdera, vols. 1, 2, 3, 4. 1 Anderson’s History of Commerce, 237, 242. At this day by the 56 Geo. III. c. 86, continued in force by 5 Geo. IV. c. 37, for two years after passing of that act, aliens may by proclamation, &c. be compelled to depart this realm, under pain of heavy penalties for neglecting to do so; and by sec. 9, aliens, except domestic servants, must, within a week after their arrival here, produce their certificates to the chief magistrate of the place, or to a justice, or, where certificate is lost, deliver an account of the particulars under a penalty for neglecting to do so; and by sec. 10, mayors, &c. may detain aliens suspected of being dangerous persons, and transmit to the secretary of state an account of their proceedings; by sec. 15, no ambassadors or other public ministers duly authorized, nor their domestic servants registered or actually attendant on them, shall be deemed aliens within the act, and the act shall not extend to aliens not more than fourteen years old; by sec. 19, aliens having quitted France on account of the late troubles are not liable to be arrested for debts contracted beyond seas, other than the dominions of his majesty. The 5 Geo. IV. c. 37 enacts that the above act shall not extend to aliens having been continually resident here seven years.
The privileges and disabilities to which aliens are entitled or subject, are so numerous, both as respects the statute as the common law, that it would be utterly impracticable to give a concise view of them; and the reader must be referred to Tucker’s Remarks on the Naturalization Bill, and 1 Chit. Com. Law, 131 to 168. See also post, 2 book. 249, 126.—Chitty.
[7 ] A political reason may be given for this, which I think stronger than any here adduced. If aliens were admitted to purchase and hold lands in this country, it might at any time be in the power of a foreign state to raise a powerful party amongst us; for power is ever the concomitant of property.
This may more easily be illustrated, by briefly stating the measures taken by Russia prior to the dismemberment of Poland. For a considerable time previous to this act (an act which has certainly cast an indelible stain upon the powers concerned in it) the czarina sent several of her subjects with large sums of money into Poland, to purchase all the estates that offered for sale; at the same time professing publicly the greatest attachment to the interests of that devoted kingdom. This had a double effect; for it not only raised in that country a powerful party completely devoted to her interest, but it at the same time, and in the same ratio, devested a large proportion of power and influence from the nobles. This proved a solid foundation for her subsequent acts; for afterwards, when she laid aside the veil which covered her designs, the country was so enfeebled by the measures she had taken, that, notwithstanding the glorious and persevering struggles of a Kosciuszko, it fell an easy prey to her rapacity.—Chitty.
[(t) ] Cod. l. 11, tit. 55.
[(u) ] 7 Rep. 17.
[8 ] But a lease of lands will be forfeited to the king. Co. Litt. 2.—Christian.
[9 ] Repealed, except as to some city duties, by stat. 24 Geo. II. st. 2. c. 16.—Chitty.
[10 ] Mr. Hargrave says the statute 32 Hen. VIII. c. 16, however contrary it may seem to good policy and the spirit of commerce, still remains unrepealed. Co. Litt. 2. n. 7. See also 1 Woodd. 373.—Christian.
[(w) ] Lutw. 34.
[(x) ] A word derived from alibi natus. Spelm. Gl. 24.
[11 ] The Constituent Assembly in 1790 and 1791 entirely abolished the droit d’aubaine; but the code civil has restrained the operation of these laws to the nations of those countries in which no such right exists against Frenchmen. See Code Civil, l. 1. tit. 1, s. 11.—Coleridge.
[12 ] Until all ransoms of captured ships and property were prohibited by 22 Geo. III. c. 25, an alien enemy could sue in our courts upon a ransom bill. Lord Mansfield, in a case of that kind, declared that “it was sound policy, as well as good morality, to keep faith with an enemy in time of war. This is a contract which arises out of a state of hostility, and is to be governed by the law of nations, and the eternal rules of justice.” Doug. 625.—Christian.
[(y) ] Stat. 29 Car. II. c. 6.
[(z) ] 7 Rep. 18.
[(a) ] Cro. Car. 601. Mar. 91. Jenk. Cent. 3.
[(b) ] 7 Anne, c. 5. 4 Geo. II. c. 21, and 13 Geo. III. c. 21.
[13 ] All these exceptions to the common law, introduced by the legislature, are in cases where the father or grandfather is a natural-born subject; but there is no provision made for the children born abroad of a mother, a natural-born subject, married to an alien. See Count Duroure vs. Jones, 4 T. R. 300.—Christian.
[14 ] Persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, whose fathers were or shall be at the time of their birth citizens of the United States, shall be deemed and considered, and are hereby declared to be, citizens of the United States. Provided, however, that the rights of citizenship shall not descend to persons whose fathers never resided in the United States.
Any woman who might lawfully be naturalized under the existing laws, married, or who shall be married, to a citizen of the United States, shall be deemed and taken to be a citizen. Act of Congress 10 Feb. 1855. 10 Stat. at Large, 604, stat. 7 & 8 Vict. c. 60, makes the same provision as to women.
The children of a British mother married to a foreigner are aliens, if born abroad. Duroure vs. Jones, 4 T. R. 360. The language of the act of Congress implies the same.—Sharswood.
So much doubt, however, hangs over this subject that a case arose a few years ago in which a party, whose grandfather had been born out of the British dominions, wished to establish his rights as a British subject; and the opinions of the most eminent lawyers in the country were taken on the question, five of whom thought that he could inherit, and five that he could not. On the other hand, the earl of Athlone, seventh in descent from Godart de Ginchell, created by king William in March, 1691-92, earl of Athlone, and who claimed to take his seat in the Irish house of peers in 1795, (more than a century after the family had left these kingdoms to reside in Holland,) was admitted by that assembly to be a native-born subject of the British crown, and he took his inheritance within the ligeance of the king accordingly. Vide Report on the Laws affecting Aliens, June, 1843.—Hargrave.
[15 ] Unless the alien parents are acting in the realm as enemies; for my lord Coke says, it is not cœlum nec solum, but their being born within the allegiance and under the protection of the king. 7 Co. 18, a.—Christian.
[(c) ] Jenk. Cent. 3, cities Treasure François, 312.
[16 ] But now a child born in France of foreign parents may, within a year after attaining twenty-one years, claim the character of a Frenchman, declaring, if not then resident in France, his intention to fix there, and actually fixing there within a year from such declaration. Code Civil, l. i. tit. 1, s. 9.—Coleridge.
“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.—Chitty.
[(d) ] 7 Rep. Calvin’s case, 25.
[(e) ] 11 Rep. 67.
[17 ] By the 11 & 12 W. III. c. 6, natural-born subjects may derive a title by descent through their parents or any ancestor, though they are aliens. But by 25 Geo. II. c. 39, this restriction is superadded, viz. that no natural-born subject shall derive a title through an alien parent or ancestor, unless he be born at the time of the death of the ancestor who dies seised of the estate which he claims by descent, with this exception, that if a descent shall be cast upon a daughter of an alien, it shall be divested in favour of an after-born son; and in case of an after-born daughter or daughters only, all the sisters shall be coparceners.—Christian.
This exception, as it should seem, would have been quite superfluous, if lord Coke had not held that a son of an alien could not inherit from his brother, though the contrary has been since determined. Harg. Co. Litt. 8, a.—Chitty.
[(f) ] Co. Litt. 8. Vaugh. 285.
[(g) ] Stat. 22 Hen. VIII. c. 8.
[(h) ] Stat. 12 W. III. c. 3.
[18 ] As to denization in general, see 1 Chitty’s Com. L. 120. The right of making denizens is not exclusively vested in the king, for it may be by parliament; but it is scarcely ever exercised by any but the royal power. It may be effected by conquest. 7 Co. 6, a. 2. Vent. 6 Com. Dig. Aliens, D. 1. The king cannot delegate this right to another. 7 Co. 25, b. Com. Dig. Aliens, D. 1. See form of letters of denization, 2 Chitty’s Com. L. appendix, 327.
The British law protects denizens made so by this country, but also respects the rights of those who have been declared denizens of foreign states. Thus a natural-born subject of England having been admitted a denizen of the United States of America, is entitled as such denizen to the benefit of the treaty between England and the United States, which authorizes the trade of Americans to the territories of the British East India Company, though as an English subject he would not have been permitted to carry on such a commerce. 8 T. R. 31. 1 B. & P. 430.—Chitty.
[(i) ] Ibid.
[19 ] Therefore a person naturalized is not even eligible to the office of constable. 5 Burr. 2788.
As to naturalization in general, see Chalm. Col. Op. 382. Com. Dig. Aliens, B. 2. 1 Chitty’s Com. Law, 123 to 130, and see form of acts of naturalization, 2 Chitty’s Com. L. appendix, 324 to 327.
A person may become naturalized ipso facto by complying with the conditions pointed out in certain general statutes.
Naturalization cancels all defects, and is allowed to have a retrospective energy, which simple denization has not, (Co. Litt. 129, a. post, 2 book, 250;) and if a man take an alien to wife, and afterwards sell his land, and his wife be naturalized, she shall be endowed of the lands sold before her naturalization. Co. Litt. 33, a.
There seems to be no case in favour of this dictum of lord Coke. Naturalization is retrospective when it does not affect third persons, if the words of the act give them that effect; so if a man be naturalized, his brother or his son born before may inherit, if they be natives. See 1 Vent. 419; also vol. 2, p. 132, n. 24, and p. 250; Co. Litt. 129, a.; 2 Rol. 93.
Naturalization is not, as denization may be, merely for a time, but is absolutely forever, and not for life only, or to him and the heirs of his body, or upon condition. Cro. Jac. 539. Co. Lit. 129, a. 2.
This practice of naturalizing foreigners is not peculiar to the English constitution; and though the stranger thus adopted becomes a subject of the state which welcomes him, yet he does not release himself from his natural allegiance to the government under which he was born. See 1 Bos. & P. 443. Bac. Ab. Aliens, a. 1 Wooddeson, 282. Naturalizations in a foreign country, without license, will not discharge a natural-born subject from his allegiance. 2 Chalm. Col. Op. 363.
But though a natural-born subject cannot voluntarily emancipate himself from his natural allegiance, so as to exempt himself from the duties incident thereto, yet he may, by his violation of law, forfeit many of the advantages of a natural-born subject, and place himself in the situation of an alien. Thus it has been enacted, that if an English subject go beyond the seas, and there become a sworn subject to any foreign prince or state, he shall, while abroad, pay such impositions as aliens do. 14 & 15 Hen. VIII. c. 4.—Chitty.
The second mode of naturalization recently provided (7 & 8 Vict. c. 66, s. 7, 12) is much more simple. This may be obtained by every alien coming to reside in any part of Great Britain or Ireland, with intention to settle therein, upon a memorial first presented to one of the secretaries of state, who may, if he shall see fit after proper inquiries, issue a certificate granting to the memorialist, upon his taking the oath of allegiance and supremacy in the act set forth within sixty days from the day of the date of such certificate, all the rights and privileges of a natural-born British subject, except the capacity of being a member of the privy council or a member of either house of parliament, and except the rights and capacities, if any, specially excepted in obtaining such certificate.—Stewart.
[(j) ] Stat. 1 Geo. I. c. 4.
[(k) ] Stat. 14 Geo. III. c. 84.
[(l) ] Stat. 7 Jac. I. c. 2.
[(m) ] Stat. 4 Anne, c. 1 7 Geo. II. c. 3. 9 Geo. II. c. 24. 4 Geo. III. c. 4.
[(n) ] Stat. 13 Geo. II. c. 3.
[(o) ] Stat. 13 Geo. II. c. 7. 20 Geo. III. c. 44. 22 Geo. II. c. 45. 2 Geo. III. c. 25. 13 Geo. III. c. 25.
[(p) ] A pretty accurate account of the Jews till their banishment in 8 Edward I. may be found in Prynne’s Demurrer, and in Molloy de jure Maritimo, b. 3, c. 6.
[(q) ] Stat. 26 Geo. II. c. 26.
[(r) ] Stat. 27 Geo. II. c. 1.
[20 ] Congress is vested with power “to establish an uniform rule of naturalization.” Const. U. S. art. 1, s. 8. A mere grant of power in affirmative terms to Congress does not per se delegate an exclusive power. This arises only when the constitution has in express terms given an exclusive power to Congress or has prohibited the exercise of a like power by the States, or where there is a direct repugnancy or incompatibility in the exercise of it by the States. In this last class must be reckoned the power to establish a uniform rule of naturalization. 1 Kent’s Com. 390. “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” Const. U. S. art. 4, s. 2. It is evident that no rule of naturalization would be uniform unless the power in Congress were held to be exclusive.
By the provisions of various acts of Congress, any alien, being a free white person, may be admitted to become a citizen of the United States, or any of them, on the following conditions, and not otherwise:—
1. He shall have declared on oath or affirmation before a circuit, district, or territorial court of the United States, or any court of record of any individual State having common law jurisdiction and a seal and clerk, or prothonotary, or before the clerks of either of the said courts, two years at least before his admission, that it was bona fide his intention to become a citizen of the United States, and to renounce forever all allegiance and fidelity to any foreign prince, state, or sovereignty whatever, and particularly by name the prince, potentate, state, or sovereignty whereof such alien may at the time be a citizen or subject.
2. He shall, at the time of his application to be admitted, declare on oath or affirmation, before some one of the courts aforesaid, that he will support the constitution of the United States, and that he doth absolutely and entirely renounce and abjure all allegiance and fidelity to every foreign prince, potentate, state, or sovereignty whereof he was before a citizen or subject; which proceedings shall be recorded by the clerk of the court.
3. The court admitting such alien shall be satisfied that he has resided within the United States five years at least, and within the State or Territory where such court is at the time held one year at least; and it shall further appear to their satisfaction that during that time he has behaved as a man of good moral character, attached to the principles of the constitution of the United States, and well disposed to the good order and happiness of the same: Provided, that the oath of the applicant shall in no case be allowed to prove his residence.
4. In case the alien applying to be admitted to citizenship shall have borne any hereditary title or been of any of the orders of nobility in the kingdom or state from which he came, he shall, in addition to the above requisites, make an express renunciation of his title or order of nobility, in the court to which his application shall be made; which renunciation shall be recorded in the said court.
5. Any alien, being a free white person and a minor under the age of twenty-one years, who shall have resided in the United States three years next preceding his arriving at the age of twenty-one years, and who shall have continued to reside therein to the time he may make application to be admitted a citizen thereof, may, after he arrives at the age of twenty-one years, and after he shall have resided five years within the United States, including the three years of his minority, be admitted a citizen of the United States without having made any previous declaration of intention: he shall, however, make the declaration at the time of admission, and shall further declare on oath, and prove to the satisfaction of the court, that for three years next preceding, it has been the bona fide intention of such alien to become a citizen of the United States, and shall in all other respects comply with the laws in regard to naturalization.
6. When any alien who shall have declared his intentions shall die before he is actually naturalized, the widow and the children of such alien shall be considered as citizens of the United States, and shall be entitled to all rights and privileges as such upon taking the oaths prescribed by law.
7. The children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject by the government of the United States, may have become citizens of any one of the said States, under the laws thereof, being under the age of twenty-one years at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States; and the children of persons who now are or have been citizens of the United States shall be considered as citizens of the United States: Provided, that the right of citizen shall not descend to persons whose fathers have never resided within the United States. The naturalization of a father ipso facto makes his son then residing in the United States, and under twenty-one years of age, a citizen. 1 English, 621. This provision is prospective in its operation, and applies to subsequent as well as precedent naturalization. 8 Paige, 433.
8. No alien who shall be a native, citizen, denizen, or subject of any country, state, or sovereign with whom the United States shall be at war at the time of his application, shall be then admitted to be a citizen of the United States.
Acts of Congress, 14 April, 1802, (2 Story’s Laws, 850,) 26 March, 1804, (id. 942,) 26 May, 1824, (3 id. 1973,) 24 May, 1828, (4 id. 2145.)
It is not necessary that the record of naturalization shall state that all the legal prerequisites were complied with, the judgment of the court admitting the applicant being conclusive of the fact of such compliance. 7 Cranch, 420. 4 Peters, 406. 13 Wendell, 524.
There are two classes of persons residing in the United States whose status is somewhat peculiar,—negroes and Indians. In regard to the former, it has been held in some of the State courts, (Amy vs. Smith, 1 Litt. 334; Crandall vs. The State, 10 Conn. 340; State vs. Claiborne, 1 Meigs, 331; Hobbs vs. Fogg, 6 Watts, 553,) and now finally settled in the Supreme Court of the United States, (Dred Scott vs. Sandford, 19 Howard, 393,) that they are not, and cannot under the existing constitution and laws be, citizens of the United States. It is admitted that the constitution and laws of any particular State may confer upon them the most important civil and political rights,—even the elective franchise,—as they may do in regard to aliens; but it is not in their power to make them technically citizens, so as to give them the right to sue in the Federal courts or to claim those privileges in every State which appertain to the citizens of such State. At the time of the adoption of the Federal constitution, they were not recognised as the citizens of any of the States, and subsequently to that period the power of naturalization was exclusively in Congress. They are not, however, aliens; and the power granted to Congress to establish a uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country under a foreign government. It is not a power to raise to the rank of a citizen any one born in the United States who, from birth or parentage, by the laws of the country belongs to an inferior and subordinate class. “The situation of this population,” says C. J. Taney, “was altogether unlike that of the Indian race. The latter, it is true, formed no part of the colonial communities, and never amalgamated with them in social connections or in government. But, although they were uncivilized, they were yet a free and independent people, associated together in nations or tribes, and governed by their own laws. Many of these political communities were situated in territories to which the white race claimed the ultimate right of dominion. But that claim was acknowledged to be subject to the right of the Indians to occupy it as long as they thought proper; and neither the English nor colonial governments claimed or exercised any dominion over the tribe or nation by whom it was occupied, nor claimed the right to the possession of the territory, until the tribe or nation consented to cede it. These Indian governments were regarded and treated as foreign governments as much as if an ocean had separated the red man from the white; and their freedom has constantly been acknowledged, from the time of the first emigration to the English colonies to the present day, by the different governments which succeeded each other. Treaties have been negotiated with them, and their alliance sought for in war; and the people who compose these Indian political communities have always been treated as foreigners not living under our government. It is true that the course of events has brought the Indian tribes within the limits of the United States under subjection to the white race: and it has been found necessary, for their sake as well as our own, to regard them as in a state of pupilage, and to legislate to a certain extent over them and the territory they occupy. But they may, without doubt, like the subjects of any other foreign government, be naturalized by the authority of Congress and become citizens of a State and of the United States; and, if an individual should leave his nation or tribe and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people.” 19 Howard, 403. It is to be observed, however, that, under our present naturalization act, 14 April, 1802, the right of becoming citizens is confined to aliens “being free white persons.”
In reference to the clause of the constitution which declares that “the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States,” it is proper to observe that it establishes not a full but a limited intercommunication of privileges. A citizen of one State must have all the requisites to the exercise of any civil or political rights which are established by the constitution or laws of that State in regard to their own citizens. If a property-qualification or a period of residence is required in order to vote, it must be fulfilled. Campbell vs. Morris, 3 Harr. & McH. 554. Murray vs. McCarty, 2 Munf. 398.
It is a common error to connect the elective franchise inseparably with citizenship, as if elector and citizen were convertible terms. In regard to the persons who shall exercise this franchise in each State, it is determined entirely by the constitution and laws of the State. They may confer the privilege on aliens, negroes, Indians, women, and children. Even in regard to the choice of representatives in Congress and electors of President of the United States, the Federal constitution leaves the matter entirely in the hands of the State. As to representatives, it is provided that “the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislature.” Art. 1, s. 2. And, as to the Presidential electors, “each State shall appoint, in such manner as the legislature thereof may direct, a number of electors,” &c. Art. 2, s. 1.—Sharswood.