Sivut kuvina

aliens; though their rights are much more circumscribed, being acquired only by residence here, and lost whenever they remove. I shall, however, here endeavor to chalk out some of the principal lines whereby they are distinguished from natives, descending to further particulars when they come in


An alien born may purchase lands or other estates; but not Disabilities and rights of for his own use; for the king is thereupon entitled to them.s aliens. 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; be- [372] sides that thereby the nation might in time be subject to foreign influence, and feel many other inconveniences. 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 ;" 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; and there are also some obsolete statutes of Henry 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prohibiting alien artificers to work for themselves in this kingdom; but it is generally held that they were virtually repealed by statute 5 Eliz., c. 7. 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, unless he has a

⚫ Co. Litt., 2.

t Cod., l. 11, tit. 55.
u 7 Rep., 17.


Lutw., 34

A word derived from alibi natus.-
Spelm., Gl., 24.

are precluded by 3 & 4 Wm. IV., c. 54,
55, from owning British registered ship-
ping, and are therefore compelled to in-
vest their capital in foreign-built vessels.

(3) So it has been recently held that, under a devise of lands in trust to sell and invest the proceeds after payment of mortgages in the funds in trust for persons, some of whom were aliens, the crown was not entitled to the share of (4) Aliens, on their arrival in this the aliens either in the land or the pro- country, ought to be officially reported ceeds, but the same was to be applied by the officers of customs; see 6 & 7 for the benefit of the aliens as directed Wm. IV., c. 11, supra, p. 260, n. 18. by the testator. (1 Beav., 79; conf. 4 And as to the duties on goods imported M. & C., 525.) On the other hand, belonging to aliens, see supra, p. 317, aliens, though resident in England, and n. 36.

carrying on the business of merchants,

peculiar exemption. 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 rights, no privileges, unless by the king's special favor during the time of war.

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, "for the naturalization of children of his majesty's English subjects, [373] 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 can not owe two such allegiances, or serve two masters, at once. Yet the children of the king's embassadors 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 embassador. 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 statutesb 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."

y Stat. 29 Car. II., c. 6.
27 Rep., 18.

b 7 Ann., c. 5; 4 Geo. II., c. 21, and 13 Geo. III., c. 21.

a Cro. Car., 601; Mar., 91; Jenk., Cent. 3.

(5) This right was abolished in 1791 by an act of the Constituent Assembly. But by the Code Civil (1. 1, tit. 1, s. 11) it was revived as against natives of those countries whose laws subjected natives of France to a similar oppression.

not succeed to the property of his moth er, nor inherit the rights of a British subject. 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,

(6) Yet it was held by the judges in 1791 (4 T. R., 300), that, by the act 4 Geo. II., the heritable capacity is limited to the children of British fathers only. five of whom thought that he could inA child born abroad, therefore, of a herit, and five that he could not. British mother and foreign father, can the other hand, the Earl of Athlone,


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-born subjects, and entitled to all the privileges 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

A denizen is an alien born, but who has obtained ex dona- Denizens. tione legis letters patent to make him an English subject; a high and incommunicable branch of the royal prerogative.d A [374] 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 can not 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. And, upon a like defect of hereditary blood, the issue of a denizen, born before denization, can not inherit to him; but his issue born after may. A denizen is not excuseds 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

Naturalization can not be performed but by act of Parlia- Naturalized ment;* for by this an alien is put in exactly the same state as if

C Jenk., Cent. 3, cites Treasure Franfois, 312.

d 7 Rep., Calvin's case, 25.

e Co. Litt., 8, a.

seventh in descent from Godart de Ginckell, created by King William, in March, 1691-2, 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 nativeborn subject of the British crown, and

f Co. Litt., 8; Vaugh., 285.
Stat. 22 Hen. VIII., c. 8.
h Stat. 12 Wm. III., c. 2.

he took his inheritance within the lige-
ance of the king accordingly. (Vide
Report on the Laws affecting Aliens,
June, 1843.)

(7) But by the Code Civil (1. 1, tit. 1, s. 9) such child may, within one year after attaining twenty-one years of age, elect France for his country.

Nor can an alien be naturalized in the United States, so as to acquire the political rights of a native-born citizen, but in conformity with the acts of Congress. By the Constitution of the U. S., the power of establishing a uniform rule of naturalization is given to Congress; and that power having been exercised, all laws or constitutions of individual states coming in conflict with the provisions of the act of Congress passed to carry into effect the power conferred by the Constitution of the U. S. must yield to the paramount authority of that Constitution. (See 1 Kent's Comm., 423; 2 Dallas, 370; 3 Wash., C. C. R., 313; 2 Wheaton, 269; 5 Id., 49.) No doubt individual states may confer upon aliens the privilege of acquiring, holding, and transmitting real estate, and, if deemed expedient, may confer upon them political rights having an operation exclusively within their respective bounds; but they can not do any act interfering with the rights and priv


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

No bill for naturalization can be received in either house of Parliament without such disabling clause in it ; 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. 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. 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

These are the principal distinctions between aliens, denizens, and natives; distinctions which it hath been frequently endeavored, since the commencement of this century, to lay almost [375] totally aside, by one general naturalization act for all foreign Protestants; an attempt which was once carried into execution by the statute 7 Ann., c. 5; but this, after three years' experience of it, was repealed by the statute 10 Ann., 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 Wm. 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 afterward 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

iStat. 12 Wm. III., c. 2.

Stat. 1 Geo. I., st. 2, c. 4.
Stat. 14 Geo. III., c. 84.
Stat 7 Jac. I., c. 2.

(8) For example, the act for the naturalization of his Royal Highness Prince

m Stat. 4 Ann., c. 1; 7 Geo. II., c. 3; 9 Geo. II., c. 24; 4 Geo. III., c. 4. Stat. 13 Geo. II., c. 3.

Albert, which has been already mentioned, supra, p. 224, n. 5.

ileges of the citizens of other states: for instance, they can not confer the right to vote for a member of Congress upon a person not entitled by the act of Congress to be naturalized as a citizen. An individual elected a member of Congress by the votes of persons not citizens of the United States, according to the act of Congress would not be entitled to a seat in the House of Representatives.

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. 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 JewsP in particular, was the subject of very high debates about the time of the famous Jew Bill; which enabled all Jews 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.'

Stat. 13 Geo. II., c. 7; 20 Geo. II., c. 44; 22 Geo. II., c. 45; 2 Geo. III., c. 25; 13 Geo. III., c. 25.

PA pretty accurate account of the Jews till their banishment in 8 Edw. I.

(9) Jews are excluded from holding civil offices, not by any direct enactment or test, but solely the form of asservation appended to the abjuration oath and the declaration required by Geo. IV., c. 17, which is couched in these terms: "upon the true faith of a Christian." In the year 1834 a bill was brought into Parliament to remove the Jewish disabilities, and passed in the House of Commons by large majorities, but was thrown out in the Lords. It was brought forward again in 1836, and again passed in the House of Commons, but was not introduced into the House of Lords, owing, it is said, to the late period of the session at which it had been introduced into the House of Commons. Lastly, in 1841 the attempt was renewed on a motion to bring in a bill to admit Jews into municipal corporations, which passed in the House of Commons by large majorities, but was again defeated in the UpVOL. I.—Z

may be found in Prynne's Demurrer, and in Molloy, De Jure Maritimo, b. 3,

c. 6.

9 Stat. 26 Geo. II., c. 26.

Stat. 27 Geo. II., c. 1.

per House. The maxim constantly referred to on all trials for blasphemous libels, viz., "that Christianity is parcel of the law of England," forms the bur den of the speeches offered to the legislature in opposition to this measure. See, further, Tucker's History of the Naturalization Bill; Blunt's Treatise on the Jews; and Goldsmith's Remarks on the Civil Disabilities of the British Jews; and for the law learning relating to the Jews, see the cases cited by Mr. Swanston, in his report of the Bedford Charity Case, 2 Swanst., 470.

It may be observed that, by 5 & 6 Wm. IV., c. 28, the declaration to be required under 9 Geo. IV., c. 17, of all persons filling corporate offices, is set aside, so far as regards sheriffs of cities and towns being counties of themselves. A Jew, therefore, may fill those offices. See Rex v. Humphrey, 3 N. & P., 681.

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