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CHAP. VII.

ALIENS AND DENIZENS.

[1 Black. Com. ch. 10; 2 Steph. Com. B. 4, ch. 2.]

Having finished our account of the person and attributes of the Sovereign in his relative capacity, we proceed next to inquire into the relation of his subjects or people, whether aliens, denizens, or

natives.

Subjects.]-The most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the Crown of England, that is, within the allegiance of the King: and aliens are 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 ancient oath of allegiance 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." But at the Revolution the terms of this oath were altered; 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 alle

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giance consists. The oath of The oath of supremacy is principally calculated as a renunciation of the Pope's pretended authority; and the oath of abjuration very amply supplies the loose and general texture of the oath of allegiance. These oaths (or in the case of Roman Catholics, an oath in substitution for them), must be taken by all persons in any office, trust, or employment (a); and may be tendered by two justices of the peace to any person whom they shall suspect of disaffection. And the oath of allegiance may be tendered to all persons above the age of twelve years, whether natives, denizens, or aliens, either in the court leet, or in the sheriff's tourn. But besides these express engagements, the law also holds, that there is an implied, original, and virtual allegiance owing from every subject to his sovereign, antecedently to any express promise; and although the subject never swore any faith or allegiance in form. giance, both express and implied, is distinguished into two species, the one natural,—the other local. Natural allegiance is such as is due from all men born within the King's dominions, immediately upon their birth; for immediately upon their birth they are under the King's protection; and this allegiance cannot be forfeited, cancelled, or altered by any change of time, place, or circumstance; nor by anything but the united concurrence of the legislature. An Englishman who removes to France or to China, owes the same allegiance to the King of England there, as at home, and twenty years hence as well as now; for it is by some writers said to be a principle of universal law, though the practice of some foreign countries is different, that the natural-born subject of one Prince cannot, by any act of his own, put off or discharge his natural allegiance; though he may forfeit his

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rights as a British subject by adhering to a foreign power (b). Local allegiance is such as is due from an alien or a stranger for so long time as he continues within the King's dominion and protection; for it ceases the instant such stranger transfers himself from this kingdom to another.

Foreigners coming into England.]-By the law of nations, no member of one society has a right to intrude into another; the admission of strangers, therefore, entirely depends on the will of the State. But great tenderness is shown by our laws, not only to foreigners driven on the coast by necessity, or by any cause that deserves pity or compassion, but with regard also to the admission of strangers who come spontaneously; for, so long as their nation continues at peace with ours, and they themselves behave peaceably, they are under the King's protection, though liable to be sent home whenever the King sees occasion. By the 6 & 7 Will. 4, c. 11, aliens are required to be registered, but the act is little attended to. By an act of the 12th Vict. powers have been given to the Secretary of State to order (with certain exceptions) any alien to quit the kingdom. An appeal lies against any such order (c). But no subject of a nation at war with us can, by the law of nations, come into the realm; nor can travel upon the high seas, or send his goods and merchandise from one place to another, without danger of being seized by our subjects, unless he has letters of safe-conduct; which, by divers ancient statutes, must be granted under the King's seal, and inrolled in Chancery. But passports under the King's sign manual, or licences from his ambassadors abroad, are now more usually obtained, and are allowed to be of equal validity.

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Aliens.]-Aliens, as contradistinguished from natural-born subjects, are such as are not born within the dominions of the Crown of England, or within the allegiance of the King. But from this rule of the common law must be excepted, the children of the Kings of England, in whatsoever parts they be born; the children of the King's ambassadors born abroad; for as the father, though in a foreign country, owes not even a local allegiance to the Prince to whom he is sent, so his children are held to be born (by a kind of postliminium) under the King of England's allegiance, represented by his father the ambassador. To encourage also foreign commerce, it is enacted by 25 Edw. 3, st. 2, "that all children born without the ligeance of the King, whose fathers and mothers at the time. of their birth shall owe allegiance to the King, shall be the same as subjects born within the dominions of the Crown, if the mothers of such children do pass the sea by the licence and will of their husbands."-And it seems not to be material whether the parents of such children be married abroad or in England; or whether the mother be an alien or not; provided the father be a merchant, and resided out of the King's dominions for the purpose of merchandising. By 7 Anne, c. 5, the children of all natural-born subjects born out of the dominions of the Crown, shall be deemed naturalborn subjects of this kingdom.-And this act is, by 4 Geo. 2, c. 21, explained to mean all such children whose fathers are natural-born subjects at the time of the birth of such children, except their fathers were attainted or banished beyond sea for high treason, or were then in the service of a Prince at enmity with Great Britain. By 12 and 13 Will. 3, c. 2, s. 3, and 25 Geo. 2, st. 2, c. 39, naturalborn subjects may inherit and make their title by

ancestors born beyond sea (d). By 13 Geo. 3, c. 21, all persons born out of the allegiance of the Crown of Great Britain, whose fathers, by 7 Anne, c. 5, and 4 Geo. 2, c. 21, are entitled to the rights of natural-born subiects, shall be considered as naturalborn subjects. But this did not extend to the case of a mother marrying a foreigner, and having a child abroad, and it was accordingly held that such a child could not inherit his mother's lands in England (e). But now by the 7 and 8 Vict., c. 66, every person born or to be born in a foreign country of a mother being a natural-born subject, may take any estate, real or personal, by devise or purchase, or inheritance of succession.-And by sect. 16 of the same statute any alien woman married to a natural-born subject or person naturalised, shall be thereby naturalised and have all the rights and privileges of a natural-born subject, the chief among which will be the right to dower (f).

By the policy of the English constitution, aliens lie under several disabilities, and are denied in many instances the benefit of our laws: they cannot purchase lands except for the King's use; they are incapable of taking by descent or inheriting (though, as we have seen, title may in certain cases be traced through them); they cannot take benefices without the King's licence, and they cannot enjoy a place of trust, or take a grant of lands from the Crown. Aliens are, however, allowed to carry on trade; which privilege is confirmed to them by Magna Charta, and divers other acts of Parliament and the spirit of modern jurisprudence rather contracts than extends the disabilities of aliens, because the shutting them out tends to the loss of the people, which, laboriously employed, are the true riches of the country; they are therefore allowed to maintain personal actions, for this privilege is

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