nity: wherefore, although the truc prince regain the fovereignty yet fuch attempts against the ufurper (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, treafons committed against Henry VI were capitally punished, though Henry had been declared an ufurper 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 perfon, and blood-royal: and for the mifapplication of their allegiance, viz. to the regal capacity or crown, exclufive of the perfon of the king, were the Spencers banished in the reign of Edward II'. And from hence arofe that principal of perfonal attachment, and affectionate loyalty, which induced our forefathers (and, if occafion required, would doubtless induce their fons) to hazard all that was dear to them, life, fortune, and family, in defence and fupport of their liege lord and fovereign, THIS allegiance then, both exprefs and implied, is the duty of all the king's fubjects, under the diftinctions here laid down, of local and temporary, or univerfal and perpetual. Their rights are alfo diftinguishable by the fame criterions of time and locality; natural-born fubjects having a great variety of rights, which they acquire by being born within the king's ligeance, and can never forfeit by any distance of place or time, but only by their own mifbehaviour: the explanation of which rights is the principal fubject of the two first books of thefe commentaries. The fame is alfo in fome degree the cafe of aliens; though their rights are much more circumfcribed, being acquired only by refidence here, and loft whenever they remove. Ifhall however here endeavour to chalk out fome of the principal lines, whereby they Y y 2 TL. P. C. 6 are are distinguished from natives, descending to farther particulars when they come in courfe. AN alien born may purchase lands, or other eftates; but not for his own ufe; for the king is thereupon entitled to them'. If an alien could acquire a permanent property in lands, he muft 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; befides that thereby the nation might in time be fubject to foreign influence, and feel many other inconveniences. Wherefore by the civil law fuch contracts were alfo made void': but the prince had no fuch advantage of forfeiture thereby, as with us in England. Among other reasons, which might be given for our conftitution, it seems to be intended by way of punishment for the alien's prefumption, in attempting to acquire any landed property: for the vendor is not affected by it, he having refigned his right, and received an equivalent in exchange. Yet an alien may acquire a property in goods, money, and other perfonal eftate, or may hire a houfe for his habitation"; for perfonal eftate is of a tranfitory and moveable nature; and, besides, this indulgence to ftrangers is neceflary for the advancement of trade. Aliens alfo may trade as freely as other people; only they are fubject to certain higher dutics at the cuf tom-house; and there are alto fome obfolete statutes of Henry VIII, prohibiting alien artificers to work for themfelves in this kingdom; but it is generally held that they were virtually repealed by ftatute 5 Eliz. c. 7. Alío an alien may bring an action concerning perfonal property, and may make a will, and difpofe of his perfonal eftatc: 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 peculiar exemption. When I mention thefe rights of an alien, I must be understood of alienfriends only, or fuch whofe countries are in peace with ours; for alien-enemies have no rights, no privileges, unless by the king's fpecial favour, during the time of war. WHEN I fay, than an alien is one who is born out of the king's dominions, or allegiance, this alfo must be understood with fome restrictions. The common law indeed stood abfolutely fo; with only a very few exceptions: fo that a particular act of parliament became neceffary after the restoration", "for the naturalization of "children of his majesty's English subjects, born in foreign coun"tries during the late troubles." And this maxim of the law pro ceeded upon a general principle, that every man owes natural allegiance where he is born, and cannot owe two fuch allegiances, or ferve two mafters, at once. Yet the children of the king's embaffadors 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 fent; fo, with regard to the fon alfo, he was held (by a kind of poftliminium) to be born under the king of England's allegiance, represented by his father, the embassador. To encourage alfo foreign commerce, it was enacted by ftatutc 25 Edw. III. ft. 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 paffed the feas by her husband's confent, might inherit as if born in England: and accordingly it hath been fo adjudged in behalf of merchants." But by feveral more modern ftatutes thefe reftrictions are ftill farther taken off: fo that all the children,born out of the king's ligeance, whofe fathers were natural-born fubjects, are now natural-born fubjects themselves, to all intents and purposes, without any exception: unless their faid fathers were attainted, or banished beyond fea, for high treafon; or were then in the fervice of a prince at emnity with Great Britain. THE children of aliens, born here in England, are, generally fpeaking, natural-born fubjects, and entitled to all the privileges Stat. 29 Car. I c. 6. 7 of : Cre. Car. G01. Mar. or. Jenk. Cent. 3. Aan. c. 5. and 4 Geo. II. c. 21. of fuch. In which the conftitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is an alien'. 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. A denizen is in a kind of middle ftate, between an alien and naturalborn fubject, and partakes of both of them. He may take lands by purchase or devise, which an alien may not; but cannot take by inheritance: for his parent, through whom he must claim, being an alien,had no inheritable blood; and therefore could convey none to the fon. And, upon a like defect of hereditary blood, the iffue of a denizen, born before denization, cannot inherit to him; but his iffue born after, may'. A denizen is not excused from paying the alien's duty, and fome other mercantile burthens. And no denizen can be of the privy council, or either house of parliament, or have any office of truft, civil or military, or be capable of any grant from the crown", NATURALIZATION cannot be performed but by act of parliament for by this an alien is put in exactly the fame 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, &c. No bill for naturalization can be received in either houfe of parliament, without fuch difabling claufe in it. Neither can any perfon be naturalized or reftored in blood, unless he hath received the facrament of the lord's fupper within one month before the bringing in of the bill; and unless he alfo takes the oaths of allegiance and fupremacy in the prefence of the parliament'. c Jenk. Cent. 3. cites treafure françois, 31. Rep. Calvin's cafe. 25. d e 11 Rep. 67. f Co. Litt. 8. Vaugh. 285. g Stat. 21. Hen. VIII. c. 8. h Stat. 12 W. III. c. 2. k Stat. 1 Geo. I. c. 4. I Stat. 7 Jac. I. c. 2. THESE THESE are the principal distinctions between aliens, denizens, and natives: diftinctions, which endeavours have been frequently ufed fince the commencement of this century to lay almost totally afide, by one general naturalization-act for all foreign proteftants. 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 is ipfo facto naturalized"; and all foreign protestants, and Jews, upon their refiding seven years in any of the American colonies, without being absent above two months at a time, or ferving two years in a military capacity there, are (upon taking the oaths) naturalized to all intents and purposes, as if they had been born in this kingdom"; and therefore are admiffible to all fuch privileges, and no other, as proteftants or Jews born in this kingdom are entitled to. What those privileges are, with respect to Jews.in particular, was the fubject 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 facrament as ordained by ftatute 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": therefore peace be now to it's manes. m Stat. 13 Geo. II. c. 3. till their banishment in 8 Edw. I. may be n Stat. 13 Geo. II. c. 7. 20 Geo. II. c. 24. found in Molloy de jure maritimo, b. 3. c. 6. a Geo. III. c. 25. p Stat. 26 Geo. II. c. 26. o A pretty accurate account of the Jews, q Stat. 27 Geo. II. c. 1. |